Employer-Sponsored Visa Granted Despite Character Concerns

Our client, a highly skilled professional from Europe, had been offered a position with a major Australian employer under the Subclass 482 Temporary Skill Shortage visa program. The employer had obtained an approved nomination, and the client's qualifications and experience were well-suited to the role. However, the client had a historical criminal record in their home country. Approximately 12 years prior to the visa application, the client had been convicted of a driving offence that resulted in a short custodial sentence. The client had fully served their sentence, had no subsequent offences, and had lived an exemplary life since the conviction. During the visa application process, the Department issued a notice of intention to refuse the application under section 501 of the Migration Act, on the ground that the client did not pass the character test due to having a substantial criminal record (a sentence of imprisonment of 12 months or more).

Section 501 character refusals are among the most serious grounds for visa refusal. The legislation creates a presumption against the grant of a visa where the applicant does not pass the character test, and the decision-maker must be satisfied that there is "another reason" to grant the visa despite the character concerns. The specific challenges included: - The client's sentence met the threshold for a "substantial criminal record" under the Act, meaning the character test was automatically failed. - Direction No. 99 (now Direction No. 110) sets out the considerations that decision-makers must take into account, including protection of the Australian community, expectations of the Australian community, and the best interests of any children. - The offence, while historical, involved a custodial sentence, which is viewed seriously regardless of the time elapsed. - The employer was growing concerned about the delay and was considering withdrawing the nomination.

We prepared detailed submissions addressing each of the considerations in the Ministerial Direction: 1. We obtained a comprehensive criminal history certificate from the client's home country confirming that the single offence was the only entry on their record, and that no further offences had been committed in the 12 years since. 2. We obtained character references from the client's current and former employers, professional colleagues, and community members in their home country, all attesting to the client's good character and rehabilitation. 3. We prepared a detailed personal statement from the client acknowledging the offence, expressing genuine remorse, and explaining the circumstances and the steps they had taken to ensure it would never be repeated. 4. We obtained evidence of the client's professional qualifications, their contribution to their field, and the genuine need for their skills in Australia, demonstrating that the grant of the visa would be in Australia's economic interest. 5. We engaged with the employer to maintain their support and obtained a letter from the employer confirming the importance of the role and their continued commitment to the nomination. 6. We made submissions on each of the primary and other considerations in the Ministerial Direction, demonstrating that the balance of considerations favoured the grant of the visa.

The Department accepted our submissions and granted the Subclass 482 visa. The delegate found that while the client did not pass the character test due to their substantial criminal record, there was "another reason" to grant the visa, having regard to the totality of the circumstances. The delegate specifically noted the significant passage of time since the offence, the absence of any subsequent offending, the compelling evidence of rehabilitation and good character, and the genuine economic benefit of the client's presence in Australia. Our client has since commenced their role in Australia and is making a significant contribution to their employer and the Australian economy. They are now exploring pathways to permanent residence. This case illustrates that a criminal record does not automatically preclude a person from obtaining an Australian visa, provided that the matter is handled with care, transparency, and comprehensive supporting evidence.

KEY FACTS

Approved

6 months from engagement to visa grant