Offshore Class 309 Partner Visa Granted Despite Section 501 Character Referral — UK Applicant with US Drug Conviction

Visa TypeSubclass 309

CategoryCharacter / Section 501

Case Summary

A UK citizen who had a US drug possession conviction and had been deported from the US lodged an offshore partner visa application to join his Australian citizen partner and their Australian child. His application was referred for section 501 character assessment. We successfully argued the case on the basis of the impact on the child, and the visa was granted.

Background

The applicant was a UK citizen who had been in a long-standing relationship with an Australian born citizen, and the couple had an Australian citizen child. He had migrated to the US as a child and while there received a drug conviction for possession, which led to his deportation back to the UK. He lodged an offshore Class 309 partner visa application to enter Australia and re-join his family. Due to his criminal history, the application was referred for a section 501 character assessment.

Challenges

Drug conviction in the US triggered a section 501 character assessment for the offshore partner visa
Deportation history from the US added to the adverse character narrative
Needed to establish that the impact on the Australian citizen child and family unit outweighed the character concerns

How We Helped

We prepared submissions focused on the primacy of the best interests of the Australian citizen child. We acknowledged the serious nature of the prior drug conviction but argued that the mitigating circumstances — including the context in which the offence occurred — and the catastrophic effect that a visa refusal would have on the child justified grant of the visa. We framed the case around the child's need to grow up with both parents in Australia.

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Key Success Factors

Child's best interests argument — the Australian citizen child's need to have both parents present
Acknowledgement of the seriousness of the offence combined with contextual mitigation
Evidence that visa refusal would cause particular and lasting harm to the child

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Outcome

The visa was granted. The applicant was able to join his Australian citizen partner and their child in Australia.

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