Case Study: Urgent Tourist Visa with Character Issues

We were contacted by two US Citizens trying to travel to Australia as part of a cruise.

Their first mistake was to apply for a 600 visa, a tourist visa, which is processed by a human case officer, instead of the ETA 601, which is generally aut0-granted. 

Having made that mistake they rightly declared a historic character issue from 12 years earlier. This offence was their only offense in their life, and only resulted in a misdemeanour charge, no jail time.

For whatever reason this triggered the department sending them an s.56 request, which is effectively a “we are going to refuse your visa on character grounds unless you convince us otherwise”. As part of the request they were asked to do police checks for the US, both Federal and State, as well as to explain their offense in their own words. This process is affording them “natural justice”, which in plain English means giving them a chance to comment before the refusal.

In this case, their concern was nothing to do with that, as they were oblivious to how serious the s.56 request was. Their concern was they had about 10 days left before their cruise, and without a visa for Australia the cruise line would rightly not let them board the ship. Their cruise, all in, had probably cost them in the region of $20,000 AUD, so it was going to be a big deal to miss out.

Their issue was an FBI check would take 13 weeks or more, so there was no way to provide it in time.

The other issue they were unaware of, was that if you are requested to provide a police check, and you fail to do so, that is grounds for refusal of itself. 

Their offense was minor in our minds, it was a product of medication which led them to want to commit suicide, which in turn led them to being pulled over with a gun in the back seat of the car. Ironically, that wasn’t even the issue, the issue was they refused to get out of the car as the police officer was alone, and demanded a second officer attended. That inflamed the situation, and resulted in trumped up charges, which were later mostly dropped.

To assist we looked at their case, asked them to provide character witnesses, and we wrote a statement for them about what had happened, using their own words form a phone consultation to fill out the statement. We also wrote a legal submission where we argued the trivial nature of their offence, that it was a one off, and the extenuating circumstances of it.

We also noted the law around failure to provide a police check, pointing out that the decision to refuse for failure to provide the check was not mandatory, but was discretionary, and asked for discretion to be used not to refuse.

Most importantly, we looked at the law itself, PIC 4001, which states, in effect, that the applicant must satisfy the Minister that they are of good character, and that the Minister if satisfied can grant their visa, AND if not satisfied can still grant their visa.

We argued that while we felt the Minister should be satisfied, the lack of the police check itself might give cause for concern, but that given the law allowed the Minister to grant their visa without being satisfied, this gives grounds for the case officer to proceed with the visa grant regardless.

So, in effect, we asked them to waive the police check, ignore the failure to provide it, and to either accept that they were of good character, and if not, to grant their visa regardless.

There was no doubt in our mind that they posed zero risk to Australians, and that they were of good character. The art was in giving the case officer grounds to proceed regardless.

We were delighted when, two days later, their tourist visa was granted, allowing the couple to go on their cruise.