In a recent decision, the Australian government refused to grant a Partner (Provisional) visa to an Indian national who did not pass the character test due to a substantial criminal record.
The applicant, Ms Rita, had applied for a spouse visa for her husband Manish, who is in India currently. In a decision on 25 November 2022, the Immigration Minister refused the application under section 501 (1) of the Immigration Act because he did not pass the character test. An Australian resident Ms Rita, who married Manish on 3 January 2019, appealed against the minister’s decision at the Administrative Appeals Tribunal.
During the hearing, AAT heard that Manish had a substantial criminal record in the US. He was charged with various crimes, including Domestic Battery and Battery, in Indiana on 9 August 2004. He pleaded guilty to Domestic Battery and was sentenced to 365 days imprisonment. Having served 16 days, the remaining 349 days were suspended, and he was placed on probation. A US court had ordered to remove him from the country however, the decision was stayed, and Manish left the country willingly.
The partner visa applicant, Manish said he wanted to make amends. “Due to the nature of the trouble that I had found myself in while in the USA, I knew that I could not go on like this and decided that I needed to address my problems and seek help for my addiction and alcohol dependency. Once back in my home country of India, I admitted myself to Muktangan Rehabilitation Centre on 26 September 2012. I completed five weeks of treatment and rehabilitation on 29 October 2012,” he added in the affidavit. The AAT also learned that Ms Rita is Manish’s third wife, and the couple has a daughter who is an Australian citizen.
Manish argued that he has abstained from alcohol use since May 2015 and was never charged with “intimate partner violence”. AAT learned that he was charged with battery and domestic battery on 9 August 2004.
The tribunal said, “Despite the Applicant’s earlier attempt to characterise the offending as minor, it is now clear that it was both family violence as defined and serious. The applicant kicked his then-wife, Ms KA. He entered a plea of guilty on the facts set out by the Court. The applicant’s lack of transparency about this offending, as set out above, is concerning. This offending is very serious.”
“The Applicant has been sentenced to several terms of imprisonment. He has served a number of brief periods in prison or Immigration detention. This is indicative of a pattern of offending,” said Senior Member J Rau SC in his decision.
He noted that the Australian community expects non-citizens to obey Australian laws while in Australia. “I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct,” said Mr Rau.
Though Mr Rau accepted the fact that it would in the child’s interest if the father is in Australia but “if he were to relapse into alcohol abuse, this may well be very detrimental to Child’s best interests.”
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