Written by Matthew Halliday, Director GA Consulting & Senior Registered Migration Agent (MARA0701636)
One of our recent clients who having applied for a working holiday was faced with addressing the Department of Home Affairs regarding a character issue. Our client 'Joseph' was a Jehovah's witness and owing to his religious beliefs, he refused to join Korea's national service. Due to his refusal to participate in Korea's national service he was sentenced to one year imprisonment.
Under Australian Immigration law, in particularly section 501 of the Migration Act 1958 (Cth), the Minister may refuse or cancel a visa where an applicant or visa holder is found to have a substantial criminal record. A substantial criminal is defined as in subsection 501(7) as follows:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
In Joseph's case, he was facing refusal as he had been sentenced to a year's imprisonment for his refusal to participate in national service.
We helped Joseph prepare a submission along with supporting evidence for submission to the Department of Home to evidence his beliefs, his overall good character, the unlikelihood that he would pose a threat to the community and also to argue about the recognition of similar offences in Australia and the current change in Korean law.
The character unit took around two months to assess his case, and on the basis of our submission, provided notification that the Minister had decided not to refuse his visa on character grounds. His visa was granted on the same day.
The lesson to draw from this is that where a proper and professional submission is provided to the Department of Home Affairs, it is possible to have the Minister decide in favour of the visa applicant. However it is also very important to carefully build a strong case based on the previous case law, evidence with strong probitive value and to draft a well reasoned submission.
Are you looking to apply for a visa to Australia and looking to appoint an agent? With over 15 years of experience in the field as a Registered Migration Agent, we are able to give you the best chance for your migration success.
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