Gavin Wills and Minister for Immigration and Border Protection

[2016] AATA 794

Wills and Minister for Immigration and Border Protection (Migration) [2016] AATA 794 (12 October 2016)

Division	GENERAL DIVISION
File Number(s)	2016/3953
Re	Gavin Wills
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	12 October 2016
Place	Brisbane

I affirm the decision under review.

..................................[sgd]......................................

Deputy President Dr P McDermott RFD

CATCHWORDS

MIGRATION – application for visa refused on character grounds – applicant does not pass the character test – sentenced to a term imprisonment totalling more than 12 months – the protection of the Australian community from criminal or other serious conduct relevant – expectations of Australian community not met – other considerations relevant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 234, 499, 500, 501
Migration Regulations 1994 (Cth) Sch 2, cl 186.213

CASES

Mlinar and Minister for Immigration Multicultural Affairs (1997) 48 ALD 771

SECONDARY MATERIALS

Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

12 October 2016

INTRODUCTION

1. This is an application for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”) dated 14 July 2016 to refuse to grant Mr Gavin Wills (“the applicant”) an Employer Nomination (Permanent) (Class EN) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).[1] This Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(b) of the Act.

   [1] Exhibit A, G Documents, G9.

   BACKGROUND

2. The applicant is a 35 year old citizen of the United Kingdom. In December 2008 the applicant first arrived in Australia on a Working Holiday (Temporary) (Class TZ) visa. In November 2010 he departed Australia. In April 2012 he returned to Australia on a Tourist (Class TR) visa and has remained here since then.[2]

   [2] Exhibit A, G Documents, G37.

3. On 29 November 2013 the applicant was convicted of assault occasioning bodily harm. The offence itself occurred on 21 November 2010. The Gladstone District Court sentencing him to a term of imprisonment of 15 months which was suspended for 24 months. He was also ordered to pay restitution of $4,100 and compensation of $4,900.[3]

   [3] Exhibit A, G Documents, G15.

4. On 9 January 2014 the partner of the applicant lodged an application for an Employer Nomination (Permanent) (Class EN) visa.[4] The applicant was listed as a migrating family member to be included in the application.[5]

   [4] Exhibit A, G Documents, G13.

   [5] Ibid.

5. On 25 July 2014 the Department of Immigration and Border Protection (“the Department”) notified the applicant of an intention to consider refusing to grant him the visa under s 501(1) of the Act.[6]

   [6] Exhibit A, G Documents, G4.

6. On 14 July 2016 a delegate of the respondent refused to grant the applicant an Employer Nomination (Permanent) (Class EN) visa pursuant to s 501(1) the Act.[7] On 29 July 2016 the applicant lodged an application with this Tribunal for a review of the decision of the delegate.

   CHARACTER TEST

   [7] Exhibit A, G Documents, G9.

   Substantial criminal record

7. Section 501(1) of the Act provides that the respondent may refuse to grant a visa to a person if the person does not pass the character test. Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record.

8. Section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if he or she has been sentenced a term of imprisonment of 12 months or more. On 29 November 2013 the applicant was sentenced to a term of imprisonment of 15 months which was suspended for 24 months.[8] Therefore, he has a substantial criminal record for the purposes of s 501(7)(c) of the Act.

   [8] Exhibit A, G Documents, G15.

   MINISTERIAL DIRECTION

9. Section 499 of the Act empowers the respondent to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal must consider Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and remains in force.

10. The Preamble of the Direction provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to exercise the discretion to refuse to grant a visa under s 501 of the Act.[9]

    [9] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [6.1(4)].

11. The Preamble espouses seven principles which provide a framework within which decision-makers should approach their specific task:[10]

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    [10] Ibid at [6.3].

12. Paragraph 8 of the Direction provides:

    …

    (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4) Primary considerations should generally be given greater weight than the other considerations.

    (5) One or more primary considerations may outweigh other primary considerations.

13. In deciding whether to refuse the applicant’s application for a visa, para 11(1) of the Direction provides the following primary considerations:

    a) Protection of the Australian community from criminal or other serious conduct;

    b) The best interests of minor children in Australia;

    c) Expectations of the Australian community.

14. I will consider each of these primary considerations in turn.

    Primary consideration A – The protection of the Australian community from criminal or other serious conduct

15. Paragraph 11.1(1) of the Direction provides:

    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.

16. Paragraph 11.1(1) of the Direction provides that decision-makers should also give consideration to:

    a) The nature and seriousness of the non-citizen’s conduct to date; and

    b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the applicant’s conduct to date

17. The applicant has committed several offences in the United Kingdom. On 18 February 1998 he received a caution for possessing a controlled drug.[11]

    [11] Exhibit A, G Documents, G17.

18. On 21 October 1999 he was ordered to pay a fine of £100 and costs of £70 for a charge of theft.[12]

    [12] Ibid.

19. On 4 January 2001 he was ordered to pay a fine of £100 and costs of £55 for disorderly behaviour or using threatening/abusive/insulting words likely to cause harassment, alarm or distress.[13]

    [13] Ibid.

20. On 8 August 2002 he was ordered to pay a fine of £100 and his driving licence was endorsed six penalty points for using an uninsured vehicle.[14] His driving licence was also endorsed for four other charges, namely: failing to stop after an accident; failing to report an accident; driving without due care and attention; and driving otherwise than in accordance with a licence.[15]

    [14] Ibid.

    [15] Ibid.

21. On 17 December 2008 the applicant completed an Australian incoming passenger card. The applicant indicated on the card that he did not have any criminal convictions.[16] On 27 April 2012 the applicant again completed an Australian incoming passenger card. The applicant indicated on the card that he did not have any criminal convictions.[17] The making of a false statement to the Department in connection with the person’s entry or immigration clearance into Australia is an offence under s 234(1)(c) of the Act.

    [16] Exhibit A, G Documents, G38.

    [17] Ibid.

22. The applicant has been charged with several offences in Australia. On 27 July 2009 the Proserpine Magistrates Court made an order for the forfeiting of bail on a charge of urinating in a public place. On 18 November 2010 the applicant appeared before the Gladstone Magistrates Court for a further charge of urinating in a public place. On this occasion no conviction was recorded and the applicant was fined $100.[18]

    [18] Exhibit A, G Documents, G39.

23. On 16 January 2009 a complaint was made that the applicant committed a violent offence with a weapon. This complaint was later withdrawn and as such I do not attach any weight to it.[19]

    [19] Exhibit G, Queensland Police Service Court Brief: assault occasioning bodily harm.

24. On 4 January 2011 the applicant appeared before the Gladstone Magistrates Court on a charge of committing a public nuisance. No conviction was recorded and the applicant was fined $400.[20] The Queensland Police Service Court Brief prepared in relation to the offence refers to “fighting” between two groups and Police having to “pull the two fighting parties apart”.[21] The applicant denied that he was involved in any violence and that the altercation was a verbal argument. He stated that he was issued the court attendance notice for speaking back to a police officer who told him to “shut up”.

    [20] Ibid.

    [21] Exhibit F, Queensland Police Service Court Brief: commit public nuisance.

25. On 29 October 2013 the applicant appeared before the Gladstone Magistrates Court charged with breaching a condition of his bail. No conviction was recorded and he was fined $300.[22] He stated that he failed to comply with the reporting condition because he was living some distance from the nearest police station and the motor vehicle that he relied on was being used by a friend who was seeking medical assistance.

    [22] Exhibit A, G Documents, G39.

26. On 29 November 2013 the applicant was convicted of assault occasioning bodily harm. The Gladstone District Court sentenced the applicant to a term of imprisonment of 15 months which was suspended for 24 months. He was also ordered to pay restitution of $4,100 and compensation of $4,900.[23]

    [23] Exhibit A, G Documents, G15.

27. The sentencing judge, His Honour Judge Butler SC, described the offence as follows:[24]

    You met the complainant Mr Mason at a nightclub on the evening of the Saturday, the 20^th of November 2010, or perhaps more likely in the early hours of the morning of the following day.

    It was some time after 1.30 am when you all went, at his invitation, back to his house at Gladstone. You sat on his verandah with friends and the complainant went to get some alcohol and came back to the group. He was choosing some music on the iPod and you punched him to the temple from behind without warning. The punch was of sufficient force to knock him to the ground, and he looked up to see you standing above him, yelling and screaming, and you then punched him twice to the head and he lapsed into unconsciousness. No explanation has been provided for what occurred, other than you had been drinking heavily around the time.

    [24] Exhibit A, G Documents, G16.

28. In giving evidence the applicant gave a different account of what transpired. He asserted that the complainant had first struck him but he pleaded guilty because of legal advice that the defence of self-defence was not available to him as the force he applied was an excessive response. There is no cogent reason why this Tribunal should not accept the facts as set out by the sentencing judge. Deputy President Chappell explained in Mlinar and Minister for Immigration Multicultural Affairs (1997) 48 ALD 771 at 776 that this Tribunal cannot go behind a conviction.

29. In considering the nature and seriousness of the applicant’s conduct, I have taken into account the impact of the offence on the victim. The sentencing judge observed that:[25]

    A concerning matter is the extent of the injury that Mr Mason suffered as a result of what occurred. He received injuries to his left eye. The photographs demonstrate how that eye looked at the time. It was badly bruised. He required sutures around the eye, but upon greater examination at the Royal Brisbane Hospital he had to receive surgery to the face… That is not a trivial injury; it’s a very serious one.

    …

    The complainant has suffered ongoing impacts from this injury. He even now feels numbness after all these years around the left cheek, the cheekbone area and the left side of the nose up above the left eyebrow, the temple area.

    …

    He’s had to spend a period attending a psychiatrist and he’s still on medication for depression, so what in a few seconds you did when you lashed out against this man has had an ongoing impact on his life and will continue to have an impact on his life into the future.

    [25] Exhibit A, G Documents, G16 at pp. 134-135.

30. Paragraph 11.1.1(1)(a) of the Direction contains the observation that violent crimes are to be viewed as serious. I certainly regard this offence as serious given the violent nature of the offence.

31. The applicant stated that his now former partner had returned to the United Kingdom three months prior to the offence and his relationship with her was deteriorating. The breakdown of their relationship had a significant impact on the applicant as they had been together for several years and she was pregnant with their child. The applicant felt “alone and abandoned” as a result of both his former partner and father not speaking to him. He resorted to heavy drinking and attending nightclubs with bad company. He accepts that he made “poor choices” and that his judgement was “very poor”.[26]

    [26] Exhibit B, Statements lodged by the Applicant: Statement of Applicant dated 29 August 2016 at [2].

32. I accept that the applicant is remorseful for the offence. In his statement dated 29 August 2016 he stated:[27]

    I cannot justify my actions that night, and to this day I regret my actions. I accept that it was a serious offence. I was heavily intoxicated which affected my judgement. I do feel extreme remorse for the victim and I hope he is not affected by what I have done to him.

    [27] Exhibit B, Statements lodged by the Applicant: Statement of Applicant dated 29 August 2016 at [3].

33. On 25 June 2016 the applicant was charged with drink driving at a rate of 0.15 and over.[28] The applicant stated that he was consuming alcohol because pay cuts and layoffs were announced at his place of work which had depressed him. The applicant asserts that he only had one and a half cans of pre-mixed spirits on that occasion. On 22 July 2016 the applicant was convicted, his driver’s licence was suspended for six months and he was fined $1,050.

    [28] Exhibit B, Statements lodged by the Applicant: Statement of Applicant dated 29 August 2016 at [10].

34. Paragraph 11.1.1(1)(f) of the Direction provides that I may consider the frequency of the applicant’s offending. I consider the commission of a further offence arising from the consumption of alcohol as serious.

    The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

35. I am required to consider whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. Paragraph 11.1.2(4) of the Direction provides that the risk of harm is to be considered in the context of the purpose of the intended stay and the type of visa being applied for. The applicant has applied for an Employer Nomination (Permanent) (Class EN) visa and intends to remain in Australia for the foreseeable future if his visa application is granted.

36. Paragraph 11.1.2(1) of the Direction provides:

    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

37. I have stated above that the offence of assault occasioning bodily harm is highly serious. As such, the community’s tolerance for any future harm is low.

38. The applicant contends that the likelihood that he will commit further offences or engage in other serious conduct is low. He contends that he was faced with personal hardship in late 2010 which caused him to act out of character when he committed the offence. In support of this contention, the applicant referred the Tribunal to the sentencing judge’s remarks that the offence “does seem to be out of character”.[29]

    [29] Exhibit A, G Documents, G16 at p. 136.

39. The applicant relies upon the report of Mr Nick Calcagnini, Consultant Psychologist, which was prepared after consulting with the applicant on 2 August 2014.[30] Mr Calcagnini opined that the applicant’s “chances of re-offending are to be considered as very negligible” because “the circumstances surrounding his past offending behaviour led [him] to behave in a manner which appears to be largely out of character”.[31]

    [30] Exhibit A, G Documents, G28.

    [31] Ibid at p. 157.

1. The applicant also relies upon the report of Ms Catherine Bone, Clinical Psychologist, dated 17 August 2016.[32] Ms Bone opined:[33]

   Should Mr Wills reoffend in the future, it is likely that it will occur in a similar context. That is, he would likely be in a situation where he became angry and in order to try to moderate his anger he would begin drinking alcohol. As he continues to drink his aggression would escalate. If he were in a situation with others where there was a high level of intoxication he may reoffend. However, his risk is LOW given that his reported lifestyle and other factors have changed.

   [32] Exhibit B, Statements lodged by the Applicant: Psychological Report prepared by Catherine Bone dated 17 August 2015.

   [33] Ibid at p. 10.

2. The respondent contended at the hearing that the Tribunal cannot accept the assessment that the applicant has a low risk of reoffending. This contention is made on the basis that the applicant’s lifestyle has not changed in terms of abstaining from the consumption of alcohol. The applicant was charged with drink driving at a rate of 0.15 and over as recently as 25 June 2016.[34]

   [34] Exhibit B, Statements lodged by the Applicant: Statement of Applicant dated 29 August 2016 at [10].

3. Paragraph 11.1.2(3)(b)(ii) provides that I am able to consider any evidence of rehabilitation achieved. I accept that the applicant has recently attended the DO IT Program drug and alcohol rehabilitation sessions facilitated by Serco.[35] However, I also accept the submission of the respondent that a sufficient period of time has not elapsed since the applicant last offended in June 2016 to establish that the applicant has rehabilitated.

   [35] Exhibit E, Letter from Serco dated 21 September 2016.

4. I consider that the primary consideration of the protection of the Australian community from criminal or other serious conduct weighs in favour of refusing the applicant’s visa application.

   Primary consideration B – Best interests of minor children in Australia affected by the decision

5. The applicant does not have any minor children in Australia. He is the father of a child who resides in the United Kingdom. This consideration does not weigh for or against the refusal of the applicant’s visa application.

   Primary consideration C - Expectations of the Australian community

6. Paragraph 11.3(1) of the Direction provides that visa refusal may be appropriate because the nature of the offences committed are such that the Australian community would expect that the person should not be granted a visa. I consider that the Australian community would expect that someone who has committed the offence of assault occasioning bodily harm in circumstances where that person was unprovoked would have their visa application refused.

7. The Australian community expects non-citizens to obey Australian laws while in Australia.[36] This expectation has been breached as recently as 25 June 2016 when the applicant was charged with drink driving at a rate of 0.15 and over.[37]

   [36] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [11.3(1)].

   [37] Exhibit B, Statements lodged by the Applicant: Statement of Applicant dated 29 August 2016 at [10].

8. The Australian community would expect that every person who enters Australia would truthfully complete their incoming passenger cards. The applicant failed to disclose his criminal convictions on incoming passenger cards on 17 December 2008 and 27 April 2012.[38] I accept that the applicant has expressed regret for these false declarations.

   [38] Exhibit A, G Documents, G38.

9. The applicant has lodged a number of statements from family, friends and colleagues who support his application. I accept that the applicant is held in high regard in his local community.[39] However, for the reasons above, I consider that the primary consideration of the expectations of the Australian community weighs in favour of refusing the applicant’s visa application.

   [39] Exhibit B, Statements lodged by the Applicant.

   Other Considerations

10. Paragraph 12(1) of the Direction provides that I have to consider the other considerations where they are relevant.

    Strength, nature and duration of ties

11. The applicant has resided in Australia for approximately six years having first arrived in December 2008, departing in November 2010, and returning in April 2012.[40]

    [40] Exhibit A, G Documents, G37.

12. A number of the applicant’s family members reside in Australia, including his father, step-mother, and siblings. I accept that the applicant has strong ties to these family members having viewed their statements.

13. The applicant’s partner, who was the primary applicant for this visa application, is currently based in Australia.

14. The applicant has positive ties to his employer which I have discussed further below. I find that this consideration weighs heavily in favour of granting the applicant’s visa application.

    Impact on Australian business interests

15. The applicant is employed as an Advanced Scaffolder with Monadelphous Engineering Pty Ltd (“Monadelphous”) and has been for the bulk of his time in Australia.[41] Several staff members made statements in support of the applicant’s application which indicate that he is held in high regard in the workplace.

    [41] Exhibit B, Statements lodged by the Applicant: Statement of Dwayne Hopkins dated 19 August 2016.

16. The site manager of Monadelphous, Dwayne Hopkins, stated that the applicant is “a valued employee” and emphasised that there are “no suitably skilled employees to currently replace Gavin for the upcoming works”.[42] Another colleague the applicant, Jason Rowsell, referred to a number of personal qualities that the applicant brings to the workplace, including: leadership; mutual respect with colleagues; willingness to assist others; reliability; punctuality; and positivity.[43]

    [42] Ibid.

    [43] Exhibit B, Statements lodged by the Applicant: Statement of Jason Rowsell dated 26 July 2016.

17. I am satisfied that a decision to refuse the applicant’s visa application would adversely impact on the business interests of Monadelphous. It is apparent that the applicant is highly valued by his employer in terms of both his skills and experience, as well as in terms of his personal qualities.

18. While there is no evidence that the business that is conducted by Monadelphous is concerned with “the delivery of a major project, or delivery of an important service to Australia” in terms of para 12.4 of the Direction, the business is nonetheless a significant business. In view of para 12 which indicates that the other considerations are not limited to those in the Direction, I am able to consider the impact of the decision to refuse the visa on the Australian business. This consideration weighs heavily in favour of granting the applicant’s visa application.

    Impact on victims

19. There is no evidence before the Tribunal that victims of the applicant’s offences will be impacted by the decision to revoke the cancellation of the applicant’s visa. This other consideration is not a matter that weighs either for or against the revocation of the cancellation of the visa.

    Partner of applicant

20. The applicant contends that the impact of the decision to refuse the applicant’s visa on the applicant’s partner is a relevant consideration. The partner of the applicant is currently based in Australia and desires to remain here permanently.[44] A decision to refuse to grant the applicant’s visa application would in turn amount to a refusal of his partner’s application and also cancel her current visa.

    [44] Exhibit B, Statements lodged by the Applicant: Statement of Holly Loveridge (undated).

21. The respondent contended after the hearing that it was open to the applicant’s partner to withdraw her application and lodge a new application that does not include the applicant. In response, the applicant contended that such an application would not necessarily succeed because the applicant is a member of his partner’s family unit and consequently the application would not meet the public interest criteria.[45]

    [45] See Migration Regulations 1994 (Cth) Sch 2, cl 186.213.

22. I consider that the impact of a decision whether to grant or refuse the applicant’s visa application on his partner weighs in favour of granting the visa application.

    CONCLUSION

23. The applicant does not pass the character test as defined in s 501(6) of the Act. I am satisfied that the discretion to refuse the visa application on character grounds should be exercised. I have considered each of the primary and other considerations as they relate to the applicant’s application.

24. The first primary consideration weighs strongly in favour of refusing the applicant’s visa application. The applicant’s offending conduct has been highly serious, particularly the offence of assault occasioning bodily harm committed on 20 November 2010. The more recent offence of drink driving at a rate of 0.15 and over committed on 25 June 2016 is also concerning.

25. I have considered the psychological reports which have indicated that the prospects of the applicant reoffending are low. The report of Mr Calcagnini was predicated on the assumption that the applicant was no longer consuming alcohol. This assumption was incorrect.

26. There remains a risk that the applicant would commit further offences or engage in other serious conduct. There is a risk of the applicant reoffending given that he committed the offence of drink driving at a rate of 0.15 and over as recently as 25 June 2016. This indicates that the applicant has recently consumed alcohol to excess in circumstances where the applicant posed a threat to public safety by driving a vehicle while intoxicated. Ms Bone is of the opinion that if the applicant continues to drink alcohol his aggression would escalate. Moreover, I have had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

27. The second primary consideration does not weigh for or against the refusal of the applicant’s visa application. The applicant does not have any minor children in Australia.

28. The third consideration weighs in favour of refusing the applicant’s visa application. I consider that the Australian community would expect that applicant’s visa application be refused given that he has committed the offence of assault occasioning bodily harm, made false statements on incoming declaration cards, and recently committed the offence of drink driving at a rate of 0.15 and over.

29. There are other considerations which weigh heavily in favour of granting the applicant’s application for a visa, including: the strength, nature and ties the applicant has with Australia; the impact on Australian business interests; and the impact of the decision concerning the applicant’s visa application on his partner’s visa status. However, para 8(4) of the Direction provides that the primary considerations should generally be given greater weight than the other considerations. This is in my view certainly appropriate in this case.

    DECISION

30. I affirm the decision under review.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.................................[sgd].......................................

Associate

Dated 12 October 2016

Date of hearing	23 September 2016
Date final submissions received	5 October 2016
Counsel for the Applicant	Mr P Bickford
Advocate for the Applicant	Mr P Duncan, Avisa Migration Solutions
Solicitors for the Respondent	Mr M Hawker, Sparke Helmore