Hughes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2019] AATA 5427
•17 December 2019
Hughes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5427 (17 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1584
Re:Richard Hughes
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Brigadier A G Warner, Member
Date:17 December 2019
Place:Perth
The decision under review is set aside and remitted to the Department for re-determination.
..........................[sgd]..............................................
Brigadier A G Warner, Member
CATCHWORDS
MIGRATION – Section 501 visa refusal – sentenced to a term of imprisonment of 12 months or more – whether visa applicant passes character test – whether there is another reason the Tribunal should exercise its discretion to grant the visa – application of Direction No. 79 – weighing of primary and other considerations – protection of Australian community – expectations of the Australian community – impact on family members – decision under review set aside and remitted
LEGISLATION
Migration Act 1958 (Cth) – ss 500, 500(6L), 501, 501(1), 501(6), 501(6)(d), 501(6)(d)(i)
CASES
BXTW and Minister for Home Affairs (Migration) [2019] AATA 4446
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
KLLV and Minister for Immigration and Border Protection (Migration) [2016] AATA 896Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1, 6.3, 11.1.1(1), 11.1.2, 11.1.2(4), 11.3(1), 12, 12.4(1), Annex A 6(2), 6(3)
REASONS FOR DECISION
Brigadier A G Warner, Member
17 December 2019
INTRODUCTION
By an application dated 23 March 2019, Mr Richard Hughes (the Applicant) seeks review of a decision of a delegate of the Minister for Home Affairs (the delegate), dated 19 February 2019, to refuse to grant his step-father, Mr Stephen Craig Spiller (the visa applicant), a Visitor (Class FA) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act) (T2).
The application for review is made in accordance with s 500 of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of a decision of a delegate of the Minister under s 501(1) of the Act. Given that the visa applicant is offshore, the requirement for the Tribunal to make a decision within 84 days of notification of the delegate’s decision does not apply: s 500(6L) of the Act.
Mr G Boylan appeared for Mr Hughes who attended the hearing in Perth and gave evidence on affirmation.
The visa applicant, his wife and Pastor Mark Thomas gave oral evidence on affirmation by telephone conference from the United Kingdom.
Mr A Burgess of Sparke Helmore Lawyers represented the Respondent.
BACKGROUND
The visa applicant is a 57 year old citizen of the United Kingdom, where he currently resides.
On 12 April 1988 in the Cardiff Magistrates Court, the visa applicant was convicted of two counts of theft – shoplifting and fined £25 for each offence (T13/79).
In the early hours of the morning of 17 February 2014, the visa applicant was involved in a traffic accident on the M6 motorway in the United Kingdom (Exhibit A2, p16). Whilst driving a heavy goods vehicle, the visa applicant lost concentration and drifted from one lane to another. He then over-corrected, going onto the shoulder and making impact with the rear of a van parked approximately one metre onto the shoulder. The visa applicant was subsequently charged with, and convicted of causing serious injury by dangerous driving. The sentencing judge, His Honour Judge Griffiths-Jones, determined that the dangerous driving categorisation arose from “3 or 4 seconds at most by way of a panic overreaction from having moved from the first lane partially into the second lane, an act in itself which is not part of the dangerous driving and did not cause any danger, but his overreaction to that is the dangerous driving” (Exhibit A2, p23).
On 21 October 2015 in the Crown Court in Warwick in the United Kingdom, His Honour sentenced the visa applicant to twelve and a half months imprisonment suspended for 18 months (Exhibit A2, pp13-37).
On 13 January 2018, the visa applicant applied for the visa. In the application, he declared that he had been convicted of theft/shoplifting on 12 April 1988 and dangerous driving on 21 October 2015 (T4/17-28).
On 26 May 2018, the visa applicant was issued a Notice of Intention to Consider Refusal (the Notice) in relation to the visa (T10/57-67). The Notice informed the visa applicant that consideration was to be given to whether his visa application should be refused under
s 501(1) of the Act. The Notice informed the visa applicant that the information available indicated that he may not pass the character test by virtue of s 501(6)(d)(i) of the Act and invited him to comment or provide information on whether (a) he met the character test, and (b) the discretion to refuse the visa should not be exercised.
On 25 February 2019, a delegate of the Minister refused to grant the visa under s 501(1) of the Act (T11/71-75).
ISSUE
The Tribunal must decide:
a.whether the visa applicant passes the character test; and if not
b.whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the visa applicant a visa.
LEGISLATION AND POLICY
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test.
The character test is defined in s 501(6) of the Act. Relevantly, a person will not pass the character test if they have a “substantial criminal record,” the definition of which includes circumstances where a person is sentenced to a term of imprisonment of 12 months or more.
Section 501(6)(d) provides that a person will not pass the character test if there is a risk that the person would engage in criminal conduct in Australia.
Section 501(1) provides that the Minister “may refuse to grant a visa to a person” who does not satisfy the character test. That is, by virtue of the word “may”, if the visa applicant does not pass the character test, the decision-maker has a discretionary power to either refuse or grant the visa.
In considering a refusal under s 501 of the Act, the decision-maker must have regard to any written directions given by the Minister under the Act. The relevant direction in these proceedings is Direction No. 79, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79).
Direction 79 provides a framework of principles within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under
s 501 of the Act. The principles are detailed in paragraph 6.3 of Direction 79 (Principles) as follows:
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 women or children or vulnerable members of the community such as 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.
Guided by the Principles, the Tribunal must take into account the primary considerations in Part B para 11 of Direction 79, in deciding whether to refuse a non-citizen’s visa. The primary considerations are:
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.
The Tribunal must take into account other considerations where relevant. These other considerations, at Part B para 12, include but are not limited to:
a.International non-refoulement obligations;
b.Impact on family members;
c.Impact on victims; and
d.Impact on Australian business interests.
Paragraph 6(2) of Annexure A to Direction 79 provides that the grant for refusal under
s 501(6)(d) of the Act is “enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in [the specified] conduct”.
Paragraph 6(3) of Annexure A to Direction 79 states that it is not sufficient to find that the person has engaged in such conduct in the past; there must be a risk that the person would engage in the specified conduct in the future.
Paragraph 6.1 of Annexure A to Direction 79 provides further guidance as to what may constitute the behaviour prescribed in s 501(6)(d)(i) of the Act, in particular, by reference to the requirement for the risk of a criminal conviction resulting from an applicant’s behaviour.
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T20, pp1-120);
·Applicant’s Statement of Facts, Issues and Contentions dated 19 June 2019 (Exhibit A1);
·Applicant’s Submission dated 22 May 2019, including Attachments 1-6, dated 22 May 2019 (Exhibit A2);
·Applicant’s Further Submission to Respondent’s Statement of Facts, Issues and Contentions including 1 page Driving Licence record of Steven Craig Spiller received by Tribunal 1 Aug 2019 (Exhibit A3);
·Respondent’s Statement of Facts, Issues and Contentions dated 18 July 2019 (Exhibit R1);
·The oral evidence of the visa applicant;
·The oral evidence of Mrs Kathryn Gaye Spiller;
·The oral evidence of Pastor Mark Thomas; and
·The oral evidence of the Applicant.
CONSIDERATION
Does the visa applicant pass the character test?
The Respondent contends that the visa applicant does not pass the character test by virtue of being sentenced to a term of imprisonment of over 12 months, or there being a risk that the visa applicant would engage in criminal conduct in Australia (Exhibit R1, para 21).
The Respondent notes (Exhibit R1, para 11) that:
There is some inconsistency as to whether the visa applicant was sentenced to a term of imprisonment of 12 months or more. It is clear from the transcript of proceedings in the Crown Court at Warwick that Judge Griffiths-Jones sentenced the visa applicant the [sic] twelve and a half months imprisonment suspended for a period of eighteen months (see page 36 of the visa applicant’s further evidence). The visa applicant’s police check however indicates that he was sentenced to 50 weeks imprisonment (T8/52).
In the refusal decision, the delegate found that the visa applicant “was convicted by the Warwick Crown Court in the United Kingdom of cause [sic] serious injury by dangerous driving and was sentenced to 50 weeks imprisonment, suspended for 18 months” (T11/72, para 5). However, the relevant transcript of proceedings shows that His Honour sentenced the visa applicant to 12 and a half months’ imprisonment suspended for a period of 18 months (Exhibit A2, p36). In their oral evidence, Mr Hughes, the visa applicant and Mrs Spiller all confirmed that the visa applicant was sentenced to 12 months imprisonment suspended for 18 months. It follows that, notwithstanding the delegate’s finding, the visa applicant fails the character test.
The Respondent contends that “the visa applicant has engaged in conduct of concern and that the risk of him engaging in further such behaviour is greater than “minimal or remote”” (Exhibit R1, para 26).
Mr Hughes believes that insufficient weight was given to the evidence that the visa applicant would be unlikely to commit any offence in Australia should a visa be granted. He submits that the visa applicant is a changed man who has given up driving heavy vehicles following the accident and has no convictions of any kind since. Mr Hughes also submits that: “The decision referred to the applicant by stating that he would be “disappointed” if his step father received an unfavourable decision which is far from accurate” (T2/7).
The Tribunal must now determine whether there is another reason why the refusal decision should be set aside, and does so within the framework of Direction 79. In BXTW and Minister for Home Affairs (Migration) [2019] AATA 4446 at [66], Senior Member Emeritus Professor PA Fairall described the process thus:
The correct or preferable decision is one that takes into account all relevant considerations and excludes any irrelevant consideration. In reaching a conclusion as to the resolution of all the various factors, the process is neither formulaic nor mechanistic. The final result is not merely an aggregation of the various factors, but a synthesis thereof (Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at [3])
The Discretion – Direction 79 considerations
Primary considerations
Protection of the Australian community
The first primary consideration for the Tribunal is the protection of the Australian community from harm as a result of criminal activity or other serious conduct, and this involves consideration of the nature and seriousness of the visa applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
The Tribunal has regard to the factors set out in paragraph 11.1.1(1) of Direction 79 in considering the nature and seriousness of the visa applicant’s criminal offending or other serious conduct.
Taking into consideration the factors relevant to the present application, the Respondent contends that the visa applicant’s prior conduct was both criminal and serious (Exhibit R1, para 29).
The Respondent submits that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, and as the visa applicant was sentenced to a term of imprisonment (wholly suspended) for his offending, that sentence must reflect the object seriousness of the offences involved (Exhibit R1, para 31). The Respondent submits:
The seriousness of the visa applicant’s dangerous driving offence is highlighted by the remarks of Judge Griffiths-Jones which relevantly included:
a.“There are two very serious features of this case. The first is that a heavy goods vehicle was involved, and the second is because consequence does play a part in sentencing: the injuries to the injured party in the Vauxhall Vivaro were catastrophic and permanent”.
b.“This is an offence which is so serious that it calls for a sentence of imprisonment”
(Exhibit R1, para 30).
Further remarks by the judge are relevant to the consideration of the nature and seriousness of the visa applicant’s conduct. In the Goodyear Indication prior to sentencing, His Honour stated with respect to the visa applicant:
He has no relevant convictions. He was an HGV driver. The prosecution suggest that although the defendant is guilty of dangerous driving, it is over the line into dangerous driving, and although that is the appropriate charge, it is only just over the line as opposed to otherwise careless driving.
The reason they say that, is Mr Spiller had not been drinking, he had not been speeding, he had not been driving a vehicle that had any mechanical defect, and that the period of dangerous driving was for 3 or 4 seconds at most by way of a panic overreaction from having moved from the first lane partially into the second lane, an act in itself which is not part of the dangerous driving and did not cause any danger, but his overreaction to that is the dangerous driving (Exhibit A2, p23).
In sentencing remarks, His Honour stated: “The degree of moral culpability is that which is evident over a very short period of time” (Exhibit A2, p35).
There is no dispute that the visa applicant’s offence, although resulting from an accident, was serious and that the Australian community would not accept a similar occurrence in Australia.
Risk to the Australian community
The Tribunal now turns to the second element of the primary consideration the protection of the Australian community, that being the risk to the Australian community.
In assessing whether the visa applicant represents an unacceptable risk of harm to the Australian community, the Tribunal must have regard to paragraph 11.1.2 of Direction 79, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Tribunal must have regard to, cumulatively: the nature of the harm to individuals or the Australian community should the visa applicant engage in further criminal or other serious conduct; and the likelihood of the visa applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the visa applicant re-offending, evidence of rehabilitation and duration of the intended stay in Australia. Paragraph 11.1.2(4) provides that the Tribunal should also consider the risk of harm in the context of whether there are strong or compassionate reasons for granting a visa.
The Respondent contends that the visa applicant: “… presents as risk of re-offending in circumstances where the visa applicant has provided no more than unsubstantiated assertions that he would not drive in Australia, there is no evidence that he does not drive in the United Kingdom and there is no independent evidence of his driving history (either pre or post the dangerous driving offence) and there is no independent expert evidence relevant to his risk of re-offending” (Exhibit R1, para 34).
In this contention, the Respondent notes that s 501(6)(d) of the Act “… cannot be interpreted to require a risk that is significant. Rather, as the tribunal observed in KLLV, the subsection is engaged “as long as the risk is real and not fanciful or remote”” (Exhibit R1, para 23).
In its assessment of the risk should the visa applicant commit further offences or engage in other serious conduct, the Tribunal considers the following relevant material:
a.In sentencing remarks, His Honour stated:
It is fair to you to say that because it is perfectly obviously you are an otherwise decent man, with a conscience, that this has had a very profound effect on you. I say this not in any way to equate the degree of sympathy which is applicable to you as compared with Mr Starsmore, but so that at least
Mr Starsmore and his family have, if it is any consolation, the consolation that you have found this a very difficult burden to bear, and that you have behaved with proper responsibility, resigning from your job as a heavy goods vehicle driver, unable to face the risk that you could ever do something so terrible again. It does speak of a decent man for you as well.…
You have no relevant convictions. You have nothing by way of road traffic offences. You gave up driving heavy goods vehicles (Exhibit A1, p35).
b.A licence summary in the name of the visa applicant generated on 30 July 2019 records the “Causing serious injury by dangerous driving” conviction, and details that he holds a current full licence valid from 9 February 2018 with no offences or points endorsements (Attachment to Exhibit A3).
c.Before the Tribunal the visa applicant said that since his conviction he and his wife had travelled outside the United Kingdom on three occasions. He said that whilst travelling in New Zealand his wife did all the driving, and during trips to Spain and Austria neither drove at all. In relation to his driving record, the visa applicant told the Tribunal: “I had a clean driving licence at the time of the – the unfortunate accident, and still have that now” (Transcript, p18).
d.The accident resulting in the visa applicant’s conviction occurred on 17 February 2014 and he was sentenced on 21 October 2015. The evidence is that the visa applicant served his suspended imprisonment sentence without incident and has regained his entitlement to drive. There is no evidence before the Tribunal of subsequent criminal or traffic offending.
e.
As noted at paragraph [40] above, the Tribunal should consider risk in the context of any compassionate reasons for granting a visa. The close and enduring relationship between Mr Hughes and the visa applicant is not in dispute and the impact of a decision to refuse is discussed under ‘other considerations’ below.
The Tribunal is of the view that the importance of this father-son relationship to the visa applicant, and its preservation, would serve to mitigate the risk of him engaging in conduct which might cause harm to the Australian community.
f.
The risk of similar offending with subsequent harm to the Australian community could only arise if the visa applicant were to drive a motor vehicle in Australia.
His conviction for dangerous driving resulted from driving a heavy goods vehicle and he is no longer authorised to drive such vehicles. Further, in written statements and in testimony before the Tribunal, the visa applicant, Mr Hughes and Mrs Spiller have given assurances that if granted a visa, the visa applicant would not drive whilst in Australia.
g.Having regard to the evidence, I am satisfied that the visa applicant is genuinely remorseful of his offence. Relevant to the visa applicant’s assurance that he would not drive in Australia, the Tribunal notes the oral evidence of Pastor Mark Thomas:
I’d have no concerns whatsoever about his reliability or I’d have no concerns that he would undergo any illegal activity or criminal act while he’s there. In addition to that he’s stated to me on more than one occasion he’d have no intention of driving. And if it would be of help, if it’s possible then to do something to ensure that, such as surrender his driving licence when he came to Australia or some such, he’d be very happy to do that. But I don’t foresee there to be any problem whatsoever. I would take him at his word (Transcript, pp 26-27).
The Tribunal is satisfied that the likelihood of the visa applicant engaging in similar offending or criminal activity is minimal. The Tribunal is also satisfied that the risk to the Australian community should the visa applicant be granted a visa, is low, and that the Australian community would accept that he represents a tolerable risk having regard to all the circumstances.
Best interests of minor children in Australia
This second primary consideration does not arise in this matter.
Expectations of the Australian Community
Paragraph 11.3(1) of Direction 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of that person. Visa refusal may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
Relevant to this third primary consideration, the Respondent submits:
It is not the case that this factor will always weigh in favour of refusal: DKXY v Minister for Home Affairs [2019] FCA 495 at [30]. However, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to a visa applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in paragraph 11.3 which will of its nature weigh in favour of refusal, at least in most cases: FYBR v Minister for Home Affairs [2019] FCA 500 at [42].
(Exhibit R1, para 39).The Tribunal does not disagree. However, it is difficult to assess the expectations of the community in an application such as this where the visa applicant’s conviction was a consequence of a traffic accident, albeit a serious one causing catastrophic and permanent injury. Clearly the Australian community would expect a visa to be refused where the evidence and circumstances indicate a risk of similar offending or criminal behaviour.
Although expressed in a visa cancellation matter rather than a visa refusal matter, the Tribunal notes the relevant view of Member Burford in the matter Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 at [173]-[174] in relation to the expectations primary consideration:
[173]It follows that in deciding whether or not to revoke a cancellation decision. The Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
[174]However, it remains for the tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
Having regard to the passage of time since the accident and related conviction, the absence of evidence of further offending in the United Kingdom or elsewhere, the visa applicant no longer driving heavy vehicles, assurances that the visa applicant will not drive in Australia, positive references to his character by Mr Hughes, Mrs Spiller,
Pastor Mark Thomas and Judge Griffiths-Jones, and the reasonable desire of Mr Hughes to have his stepfather able to visit him in Australia where Mr Hughes is now a citizen and intending to reside permanently, the Tribunal is of the view that the expectation of the Australian community weighs against granting a visa, but not with significant or pivotal weight.
Other Considerations
International non-refoulement obligations
This consideration does not arise in this matter.
Impact on family members
The Respondent acknowledges that there would some impact on the visa applicant’s family in Australia, that is Mr Hughes and his wife, should the visa be refused and submits that there is no evidence to suggest that the visa applicant’s family is unable to visit him in the United Kingdom. The Respondent contends “that this consideration weighs in favour of the visa applicant, but should only be given limited weight and is not outweighed by any of the other considerations weighing against refusal” (Exhibit R1, para 44).
In his Statement of Facts, Issues and Contentions, Mr Hughes stated:
The visa refusal resulted in Mr Spiller being unable to attend Mr Hughes’ wedding having Mr Spiller and his mother attending one of the most important days in his life was very important to the applicant as any reasonable person would agree.
The prospect of his step father never being able to visit he and his new wife and future family in Australia is devastating to the applicant and for this reason he has lodged this application for review of the decision (Exhibit A1, p1).
In his testimony before the Tribunal, Mr Hughes described the relationship with the visa applicant as follows: “He is my parent and my role model and I love him dearly” (Transcript, p12). Mr Hughes reiterated that it was devastating that the visa applicant might not be able to visit him in Australia where Mr Hughes has been granted citizenship and where he will be spending the rest of his life.
The Tribunal concludes that this other consideration weighs in favour of granting the visa.
Impact on victims
The victim of the visa applicant’s dangerous driving offence suffered catastrophic and permanent injuries and resides in the United Kingdom. There is no evidence that the victim of the visa applicant’s offending would be impacted by a decision in this matter, and the Tribunal takes consideration of this factor no further.
Impact on Australian business interests
Paragraph 12.4(1) of Direction 79 provides that this consideration involves the impact on Australian business interests if the visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivery of an important service to Australia. As there is no evidence that the visa applicant has employment or business interests in Australia and no submissions have been made relative to this factor, the Tribunal takes this other consideration no further.
CONCLUSION
The Tribunal finds that the visa applicant’s offence of causing serious injury by dangerous driving, which resulted in the refusal of a visa, is serious, but that the risk to the Australian community of further offending or other serious conduct was minimal. Carefully weighing the two elements of the first primary consideration, the Tribunal concludes that Protection of the Australian community weighs in favour of granting a visa.
The Tribunal finds that consideration of the primary consideration, Expectations of the Australian community, weighs against the visa applicant being granted a visa, but with limited weight.
The Tribunal is satisfied that the only other consideration of relevance in this matter, impact on family members, weighs in favour of granting a visa.
The visa applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the visa should be granted. Taking into account all of the provisions of and considerations required by Direction 79, together with the authorities mentioned above, the Tribunal is satisfied there is another reason why the decision to refuse the visa applicant’s visa under s 501(1) of the Act should be set aside, and that doing so is the preferable decision in all the circumstances.
DECISION
The decision under review is set aside and remitted to the Department for re-determination.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member
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Associate
Dated: 17 December 2019
Date(s) of hearing: 7 November 2019 Advocate for the Applicant: Mr Ged Boylan Solicitors for the Applicant: Nichigo Centre Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore
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