It is supposed to be billed as a clash of football superstars. Neymar Jnr v Lionel Messi. Brazil v Argentina. A "friendly" football match to be held at the Melbourne Cricket Ground on 9 June 2017.
Local media have billed these two Barcelona teammates as starring in a "Superclasico" of long-time international rivals, and probably the two most successful football nations in South America (apologies, Uruguay).
Those that follow the news of these highly-paid, professional footballers are no doubt aware that Lionel Messi was convicted by a Spanish court of tax evasion last year, receiving a 21-month suspended sentence. An appeal was reportedly supposed to be filed, however, information confirming this, and its outcome, is hard to find or the matter has not yet been resolved.
Some may ask, what does that have anything to do with a football match that is estimated to draw a crowd of over 90,000, and be a boon for Victoria’s economy?
It matters very much as spectators may be disappointed if Lionel Messi is not allowed to set foot on Australian soil, let alone lace up his boots and take the field. Luckily, he should be saved, unlike many of his shots on goal…
All visa applications are subject to Public Interest Criteria (PIC), however, instead of applying PICs evenly across the board to every visas, depending on their requirements, PICs are applied to individual subclasses of visas. The reason why is that certain PICs will not be appropriate in the circumstances. For instance, PIC 4009 requires that the visa applicant intends to live permanently in Australia. This PIC would not be appropriate for those wishing to visit Australia as a tourist.
While all PICs are equally important, one that applies to most, if not all, visa subclasses is PIC 4001, otherwise known as the character requirement. Under policy, even if it is not applied to a particular subclass “all visa applicants are still required to be of good character and may have their visa refused…if they are found not to pass the character test.” The character test is naturally designed to protect the Australian community and is a provision to either cancel an existing visa, for those found to not pass the character test after visa grant, or to refuse a visa application.
The character requirement involves an assessment of a number of factors that may endanger the Australian public. This includes a reasonable suspicion of association with groups involved with criminal activity, past and present criminal and general conduct, risk of offending in Australia, and outstanding charges in a foreign country, among others.
Probably the most used factor relied upon to cancel or refuse a visa is the substantial criminal record assessment. Among other things, a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. Most important, a suspended sentence is considered to be a term of imprisonment even if that person never sets foot in a prison.
So where does this leave Mr Messi if he is deemed to have a substantial criminal record, because his tax evasion conviction has not yet been contested, and quashed by the Spanish Supreme Court?
Luckily, PIC 4001 provides an out:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
Not knowing if a visa application has even been made, it seems that the Minister can allow Mr Messi to come to Australia so Argentina can battle its old foe. With an economic windfall on the line, it seems unlikely the Minister would be so harsh as to not allow the star attraction to participate. Perhaps for lesser football gods, the Minister may not be so forgiving. The only danger Messi poses to the Australian community are to rival football codes.
Let’s just hope that if his conviction still stands, it is declared. Failure to do so will open up a different can of worms in itself!
Disclaimer: This case study is, as the title suggests, hypothetical. The author does not act for, or have any knowledge of, any visa application made for the aforementioned person.