The Administrative Appeals Tribunal (AAT) has upheld the Australian Minister for Immigration, Citizenship and Multicultural Affairs (Migration) decision to not grant a Partner Visa to an Indian national who did not pass the character test.
In a recent decision, AAT said the refusal was due to the partner’s substantial criminal record in the US:
“The Applicant’s visa application was refused under section 501 (1) of the Act on the basis that he did not pass the character test (“the Decision”).“
Ms Sawant, an Australian resident based in Adelaide, had applied for a spouse visa for her 48-year-old husband Mr Kambli who is currently based in India.
Earlier 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.
On 20 March 2023, the Tribunal was alerted to the fact that the application initially lodged with the Tribunal, named Mr Kambli as the applicant. Ms Sawant then appealed against the minister’s decision at the AAT naming herself as the applicant.
The Tribunal heard that Mr Kambli had a substantial criminal record in the US and was charged with various crimes, including Domestic Battery and Battery in 2004. It noted:
“The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is therefore whether the discretion should be exercised to refuse to grant his visa application pursuant to s 501 (1) of the Act. In doing so, the Tribunal must have regard to Direction 99.”
The Tribunal was told that Mr Kambli had pleaded guilty to Domestic Battery and was sentenced to 365 days imprisonment. Further, after serving 16 days sentence, the remaining 349 days were suspended with Mr Kambli being placed on probation. Later, a US court also ordered Manish to leave the country. However, this decision was stayed and Mr Kambli left the country voluntarily.
Mr Kambli told the Tribunal through an affidavit and gave evidence by Microsoft Teams from India that 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.”
Mr Kambli added:
“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.”
Mr Kambli said he has abstained from alcohol since 2015 and was never charged with “intimate partner violence”.
Senior Member J. Rau SC noted for the Tribunal:
“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.”
Mr Rau added in his decision:
“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.”
The Tribunal was updated that Ms Sawant is Mr Kambli’s third wife, and they now have a daughter who is an Australian citizen.
Nita also told the Tribunal that she required Mr Kambli’s assistance “to adequately care for her teenage daughter and to manage her work/life balance in Australia.”
Mr Rau accepted that it would be in the child’s interest if the father, Mr Kambli, is in Australia but added that the Australian community expects non-citizens to obey Australian laws while in Australia.
He said:
“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.”
The Tribunal concluded that if Mr Kambli is not granted a Partner Visa, his relationship with the child will remain as it is and they can meet in India and electronically. He, therefore, ruled in favour of refusing to grant Ms Sawant’s visa application.
