In China, a lot of people think drink driving, unlicensed driving is not great, cut points, fine some money to end; even a lot of people will take the blame for friends, think this is a small matter. But in Australia, drinking driving, driving without a license is considered to be irresponsible to others and society, is very serious. It would be remorseful of you to delay your chance of getting an Australian permanent resident visa because of traffic violations such as drunk driving.
The story of Xiao Wang
Xiao Wang went to high school in Australia in 2008 and went to the University of Science in 2010. In 2011, Wang met his classmate Xiaomei, an Australian citizen. Xiao Wang and Mei fell in love and married in China in June 2013. After the marriage, Xiao Wang applied for a spouse visa. In January 2014, the first temporary visa for the spouse visa was granted, and Xiao Wang and Xiao Mei returned to Australia together in July 2017. When Xiao Wang thought his spouse's visa was about to be granted a second-step permanent resident visa, Wang received a letter from the Immigration Board saying that he had previously recorded injuries caused by drunken driving and unlicensed driving. Can not meet the immigration authorities to apply for permanent visa character requirements, want to cancel Xiao Wang's visa. Xiao Wang is stupid now. What's going on?
The past
On October 29, 2012, when Xiao Wang was still a young college student at Keting University, he had a few drinks with a few friends, and he wanted to show his car skills and drive his friends home. Unfortunately, Xiao Wang had a car accident, two friends and Xiao Wang were injured. Xiao Wang was indicted by the police and suspended in court, meaning he didn't have to go to jail, just to report his position to the police. Xiao Wang thinks he is not in prison, which is not a big deal. It was not expected that the Immigration Board had checked it out, citing this as a reason to believe that Xiao Wang did not meet the character requirements of his application for a permanent resident visa and that he had to reject Wang's application for a spouse visa (permanent resident).
Provisions of immigration law on character requirements
Section 501, paragraph 1, of the Australian Immigration Act provides for the right to reject an applicant's visa application if the Immigration Board considers that the applicant does not meet the character requirements. Paragraph 6 of the same article provides that if the applicant has a formal criminal record, the applicant does not meet the character requirements. Paragraph 7 of the same article provides that a record of a sentence of 12 months or more imprisonment for an offence shall be deemed to be an official criminal record. Now, because of this rule, Xiao Wang faces refusing to sign.
Proceedings before the Migration Court
Wang has provided evidence that he has given birth to two children in Australia with Xiaomei, hoping the Immigration Service can look at them and open the net. The Immigration Board also rejected Xiao Wang's visa application on February 1, 2018. Xiao Wang then appealed in the immigration court. The immigration court heard Xiao Wang's case on April 24, 2018. Wang presented his wife Xiaomei's statement in immigration court, the birth certificates of his two children (one only a few months old and a two-year-old), and a letter of character from current employers and friends, hoping the court would consider the verdict at its discretion.
The Migration Court referred to the 65th policy guidance on immigration legislation and procedures. This provision requires that the Migration Tribunal, when considering the relevant cases, need to take into account:
- To protect the Australian public (visa applicants may later commit) from serious crimes;
- The interests of Australian citizens and Australian children;
- The expectations of the Australian public.
Now, there is plenty of evidence in favor of Xiao Wang in the immigration court appeal: Xiao Wang and Xiao Mei's two children, Wang's character proof letter, Xiao Mei's statement, ask the Immigration Board to consider making a judgement in his favour. At the same time, Wang claimed that his past crimes were only drunk driving, not drug trafficking, killing and so on, not as a serious crime.
The immigration representative disagreed with Xiao Wang, noting that in Zaya and Minister for Immigration and Border Protection's case, deputy presiding judge Kendall said: "at present, society feels that the perpetrators of traffic violations are not as serious as other criminal cases. However, the consequences of intentional killing and drunk driving are the same for the victims and families of victims killed by traffic accidents. The immigration court takes the traffic accident very seriously, because the consequences of the traffic accident are very serious. "
The immigration court agreed with immigration that Xiao Wang's actions were less serious because it was not a traffic accident.
However, because of the Australian court's principle of "children's interests first", the Immigration Board now favours granting Wang's spouse visa.
At this time, immigration showed a copy of the material: January 2018, Xiao Wang for drunk driving by the traffic bureau issued a ticket. This time Xiao Wang did not have a car accident, just night from the casino watching the game back drunk driving, was arrested by the police, penalized. At first, Xiao Wang thought it was a minor matter, but the immigration court did not think so.
The immigration court held the view that Xiao Wang, who had previously been injured by drink driving and driving without a license (two passengers, plus himself, a total of three), was now considering denying Wang's spouse (permanent resident) visa at the time of the Immigration Board's consideration of denying Xiao Wang's spouse (permanent resident) visa. Unexpectedly, drunk driving was caught again, indicating that Xiao Wang had not learned any lessons from the past. The immigration court said Wang's act of knowingly committing a crime was dangerous to the Australian public.
Wang argued on the grounds that he had been under great pressure because of the immigration court's consideration of refusing to sign. He drank a little wine and wanted to go to the casino to relax. He was not careful to drink his car. Wang also said he would see a therapist for alcohol addiction in the future and promise not to do so again. The immigration representative directly asked Xiao Wang in court, saying that you went to see a therapist after drinking driving in 2012, why did you commit drunk driving again in 2018? Xiao Wang was silent.
The immigration court finally ruled that although Xiao Wang had two Australian children, Wang's wife Xiaomei and Wang's current employer wanted Wang to stay in Australia, Wang's knowingly criminal behavior was too dangerous for the Australian public. The responsibility to protect the Australian public outweighs the responsibility to protect one or two Australian individuals, so the Immigration Court correctly ruled that the Immigration Board had decided to cancel the visa, and Wang lost the case.
epilogue
With the exception of drunk driving, any dispute that leads to a criminal record could affect a client's Australian visa application. However, this does not mean that as long as there is a criminal record, it must not meet the character requirements, can not apply for a visa. In this case, the immigration court also pointed out that the length of stay of visa applicants in Australia, the applicant's consistent performance, the age of the applicant's previous incident, the impact on other Australian citizens, and so on, will affect the final visa approval.
Disclaimer: this article is written by Advocate of WB Legal, copyright and all rights reserved by WB Legal Group Weber Group. Note that, for the sake of readability and drama, the characters and contents of the article have been falsified and do not represent real individuals or events. At the same time, this article is not legal advice, this law firm is not responsible for any losses caused by relying on the content of this article; please contact the law firm for formal legal advice.
