chris brown's Australian visa: the lAW bit

420 entertainment visa and chris brown: some legal aspects of the character test

We have noticed quite a few comments regarding Chris Brown's Australian tour and whether he should be granted an entertainment visa. Speaking from experience, our view is that Brown is unlikely to fail the character test purely because of his past criminal charges (ie from a legal stand point). 

NOTE: This article is an overview (and an very very short one at that) relating to the law and  Brown's 420 Entertainment Visa Application. 

Domestic violence, no matter who is involved, is not on.   

Why?  From our analysis of the information and reports relating to the charges, and breaches of parole, under the Migration Act, the reported acts do not appear sufficient to reject his application based on his 'criminal record'.

Don’t misunderstand us, we are not making any comment regarding the public policy considerations expressed around twitter and the media, nor the seriousness of Brown's past abuse and violence. The test is a legal test and Brown as with anyone will be afforded that test. 

Given the publicity and public interest surrounding Brown’s convictions, breaches of probation and arrests, for Brown it will not be a straightforward application. 

Brown previously gained entry into Australia with a recorded conviction, during which he exhibited no signs of causing a threat to the well-being of the community. While the Department considers a broad range of factors while exercising its discretion the nature of Brown’s parole breaches are unlikely to be fatal to his application.  Further,  Brown’s 2009 conviction will unlikely have a decisive impact on the Department’s decision, and it can be navigated appropriately in the visa application. Brown’s 2013 conviction will be of more significance to the Department than the 2009 conviction.

Brown was denied entry to Canada earlier in the year, that decision is not automatically relevant to this Australian application and nor is the UK decision. It will be dealt with under our Migration Act. 

the character test

The Department requires that individuals applying to work, visit or migrate to Australia are of good character as defined by the Migration Act 1958.  In making a determination on whether a person is fit for entry, the Department applies a character test which ultimately decides whether or not a person is granted a visa to enter Australia. 

The Minister and decision makers in the Department have the power to make a decision to grant or refuse a visa on character grounds and this is done on a case-by-case basis. The Minister or the Department have the authority to revoke a visa that has already been granted if it is later established that the person has failed the character test.

A person is deemed to have failed the character test if (for example):

1.  they have a substantial criminal record
   
2.  they have an association with another individual, group or organisation whom the Minister reasonably believes has engaged in criminal conduct
   
3.  they are likely to engage in criminal activities in Australia
   
4. they are likely to harass, stalk, or molest another person while in the country
   
5. they are likely to incite discord within the community, or a segment of the community within Australia
   
6.  they represent a danger to the community, or a segment of that community by being likely to become involved in activities that are disruptive, violent or threatening.

In deciding to grant or refuse a visa, an overriding consideration for the Department is the well being of the community. If there is a possibility that the community or other individuals might face a threat from an applicant, the visa may be denied.

So let’s look at the criminal character  test in relation to Chris Brown.  

Substantial Criminal Record

As far as the Migration Act is concerned Brown does not have a substantial criminal record as defined by the Act, because Brown has not been:  

1. sentenced to death
   
2. sentenced to life imprisonment
   
3. sentenced to a term of imprisonment of 12 months or more
   
4. sentenced to two or more terms of imprisonment with the total of those terms being 12 months or more
   
5. acquitted of a crime due to insanity or mental impairment.
   

[these are the actual elements a 'substantial criminal record' is assessed against under the Act, 'Substantial  criminal record' is tested under these items, not subjective views of the public]

Notwithstanding this, the Department will still take into consideration the nature of each of his convictions and jail time when assessing the application and will expect Browns team to address these issue to a satisfactory standard.

While Brown has been convicted of a crime, he is not under Australian law automatically disqualified from entry to Australia due to this. 

Likelihood of Engaging in Criminal Activity 

Whilst there has been a degree of public interest surrounding Brown’s convictions, the breaches of probation and arrests will also attract interest. Provided relevant safeguards (if required) are in place the Department will likely be satisfied that this is not an issue. {Keep in mind this is the likelihood of engaging in 'criminal activity'].   Brown toured a couple of years ago without incident, which will be taken into consideration and in reality will be favourable for his visa application. 

Danger to the community

This is very broad and all encompassing. In practice it is often reserved and implemented as a measure to deny those who are suspected of terrorism from entry to Australia. However, there is precedent of this provision being used on a more general basis to deny applicants the right to enter the country.

In addition to the criteria outlined in the Act, the Department refers to set of internal Departmental guidelines when assessing applicants which it deems as being controversial. Such individuals are deemed as being controversial due to their activities, reputation, known record or the cause they represent and propagate:

• vilifies or incites discord in the Australian community or a segment of that community
• represent a danger to the Australian community or a segment of that community
• be contrary to Australia's foreign policy interests.

 
This may provide  basis for refusing the visa however we do not consider that his 420 Entertainment Visa application would fail here.  

Past and Present Character
Of course there is that phrase at section  501, namely subsection 501 (6) (c) where; someone does not pass the character test if .....  [paraphrased] having regards to a persons "past or present criminal conduct or  past or present conduct" they are not of good character.  Unfortunately for all 501 (6) (c) is  widely worded and is the subjective test. There is a Ministerial direction that requires decision makers to take into account "all relevant circumstances of a particular case", including evidence of good behavior. 

The Direction states  factors for consideration of  "a person’s past or present general conduct"

 ‘Not of good character is ’:

1. whether the person has been involved in activities which show contempt or disregard for the law or human rights (such as war crimes, crimes against humanity, terrorist activities, drug trafficking, ‘political extremism’, extortion, fraud, or ‘a history of serious breaches of immigration law’)
2. whether the person has been removed or deported from Australia or another country, and the circumstances that led to the removal or deportation
3. whether the person has been dishonourably discharged or discharged prematurely from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct, that in Australia would be regarded as serious

The subjective discretion under section 501 (6)  that the Minster is able to exercise will likely be invoked, but a refusal in our view would no be able to sole rely on the criminal character test. It will need to take into account other factors. Potentially a notice will be issued to Brown before the visa is formally applied for advising of the Ministers intention to refuse entry. If that is the case Brown will have 28 days to address concerns raised in the notice.  

On the social side of the debate, a clear and very reasonable argument focuses on the symbolic significance that Chris Brown’s Australian tour will have relating to the acceptability of family violence in society. Conversely a google search displays reports of recent charity work done and also funding provided by Brown for domestic violence programs. Whatever ones stance is on these points, from a legal stand point as it relates to the character test and criminal history under the Migration Act, it is not straight forward that Brown  will fail the test and as there is a strong arguments in his favor. Chances are that he will be entitled under law to be granted an Australia 420 Entertainment Visa, ............ we will wait and see....