Fitzpatrick and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 708

Fitzpatrick and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 708 (30 May 2025)
Applicant/s:  Timothy Fitzpatrick
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/1945

Tribunal:General Member S Evans
Place:Sydney
Date of Decision: 30 May 2025
Date of Written Reasons: 11 June 2025
Decision:The Tribunal sets aside the reviewable decision of a delegate of the Respondent to cancel the Applicant’s Special Category (Class TY) (Subclass 444) visa and in substitution decides that the cancellation of the Applicant’s visa is revoked.

..........[SGD]........................................................
General Member S Evans
Catchwords
MIGRATION – Cancellation of Class TY Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 – Applicant does not pass the character test – Applicant has been a member of outlaw motorcycle gangs – whether to exercise the discretion to cancel the visa – offending where no conviction recorded - best interests of minor children – strength, nature and duration of ties to Australia – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
INTRODUCTION

Timothy Fitzpatrick (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) to exercise the discretion provided by s 501(6)(b) of the Migration Act 1958 (Cth) (the Act) to cancel his Special Category (Class TY) (Subclass 444) visa (visa) under s 501(2) of the Act.
On 4 October 2024 the Applicant was sent Notice of Intention to Consider Cancellation (NOICC) of his visa. The NOICC indicated that the Respondent held information that suggested the Applicant may not pass the character test by operation of 501(6)(b) of the Act. The Applicant responded to the notice with submissions and evidence.[1]
[1] G-Documents (‘G’), G23.
On 21 January 2025 a delegate of the Respondent exercised the discretion under s 501(2) of the Act to cancel the Applicant’s visa (the reviewable decision) and he was notified of the decision on 7 March 2025.[2] On 14 March 2025 the Applicant applied to the Tribunal for review of the decision.
[2] G2/15.
The hearing was rescheduled to accommodate a delay in issuing summons to the NSW Police in respect to the Applicant. The decision to set aside the reviewable decision was made and provided to the parties on 30 May 2025 with a note that written reasons would be provided within a reasonable time. These are the written reasons.[3]
[3] Khalil v Minister for Home Affairs [2019] FCAFC 151 at [48].
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501(2) empowers the Minister to cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(b) of the Act provides person does not pass the character test “if the Minister reasonably suspects”:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct.
The Tribunal must make ‘clear and definitive findings in respect of the relevant components or elements of s 501(6)(b)’.[4]
[4] Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177 at [145].
The Minister has made written directions under s 499 of the Act, which apply to decision-makers deciding whether to exercise a discretion to cancel a visa under s 501(2) of the Act. The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).[5]
[5] Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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 noncitizens 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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation ,even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
It is conceded by the Applicant that he does not pass the character test. Consistent with the parties, I am not satisfied the Applicant passes the character test by reason of s 501(6)(b) as he has been a member of the Bandidos and the Hells Angels outlaw motorcycle gangs. Both groups are recognised as outlaw motorcycle gangs (OMCG) with longstanding links to organised crime.
As the Applicant fails the character test, the issue for the Tribunal is whether, having regard to the Direction, to exercise the discretion in s 501(2) of the Act to cancel the visa.
EVIDENCE
The Applicant is a 67-year-old citizen of New Zealand who has resided in Australia since first arriving in June 1979. He has provided written statements and gave evidence at the hearing.
The Applicant’s evidence
The Applicant is a qualified builder and quantity surveyor who previously worked at his cousin’s building company. He has also been employed in the security industry and ran his own security company providing ‘VIP protection’ for different entities. He has also sold insurance.
Around 1983 or 1984 the Applicant injured his back in a workplace accident rendering him unable to work for many years. In 2017 he was seriously injured in another workplace accident. Since the accident he has had 17 operations and has five more procedures scheduled. He is now 67 years-old and says orthopaedic specialists have described his body as ‘riddled with degenerative and traumatic pathology’.
In a medical report, orthopaedic surgeon Dr Drew Dickson confirms the Applicant has multiple discrete injuries on his cervical spine, thoracic spine, lumbar spine, both shoulders, elbows, wrists, hips, knees, ankles and feet. He experiences chronic neuralgia in his hands and lower limbs which causes numbness and gait instability. He has arthritis in multiple joints which cause radiating pain and weakness.[6]
[6] G85.
A medical report by Dr Gavin Soo dated 27 November 2024 details a recent shoulder reconstruction, knee arthroscopy and lumbar decompression which have delivered partial relief to the Applicant. Further surgery is required including hip resurfacing and ankle fusion. Dr Soo warns that any disruption to the current sequence of operations or to post-operative rehabilitation places the Applicant at high risk of chronic pain and permanent mobility loss.[7]
[7] G88.
The Applicant is dedicated to his family. His wife and two adult children reside in Australia, as do his four grandchildren. He provides care and companionship to his elderly father-in-law. Until being held in immigration detention, the Applicant was his wife’s primary carer. The Applicant fears his removal from Australia would be ‘catastrophic’ for his family.
Evidence of the Applicant’s wife
The Applicant and his wife met in 1985. In her statement dated 22 April 2025, the Applicant’s wife writes that the Applicant’s time in immigration detention is the longest they have been apart since they met in 1985. She described the experience of being separated from the Applicant as extremely distressing. She is deeply troubled by the impact the Applicant’s deportation would have on her family.
The Applicant’s wife suffers from medical conditions including bipolar affective disorder, depression, PTSD, diabetes and osteoarthritis. She claims to have recently been diagnosed with early onset dementia. The Applicant is her primary carer, and she is unable to independently complete activities of daily living without his assistance and care.
Evidence of the Applicant’s daughter
The Applicant’s adult daughter has provided a statement dated 22 April 2025 and gave evidence at the hearing. She suffers from trauma following a serious sexual assault when she was a minor and workplace bullying. She has been diagnosed with PTSD, anxiety, major depressive mood disorder and major adjustment disorder. When she was growing up the Applicant was her primary carer because of her mother’s poor mental health. She said the Applicant has supported her during treatment of her medical conditions and consistently prioritised the wellbeing of her and their family, including her two children, over his own needs.
Her eldest child has complex medical and psychological needs. The Applicant takes him to medical appointments and has been a constant, calming presence and become a father figure’ to the child. At just one year old, her youngest son has formed a bond with the Applicant, who he ‘adores’ and becomes visibly excited in his presence.
The Applicant’s daughter says his removal would be catastrophic for her, her family and particularly her eldest child, who regularly turns to the Applicant for guidance and support. She believes the Applicant’s removal would have profound negative effects which she fears may trigger her PTSD and depression.
Evidence of the Applicant’s son
The Applicant’s adult son has provided a statement dated 22 April 2025 in which he confirms his father provides care to his mother. He writes that the Applicant sacrificed his career and social life to support his mother who struggles with physical conditions and mental illness.
His two children both consistently express how deeply they miss the Applicant. He considers his father a role model whose removal from Australia would cause profound and lasting harm to he and his family.
CONSIDERATION
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1 of Direction 110 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’
Nature and seriousness of the Applicant’s conduct to date
The Applicant describes his limited criminal history as ‘relatively minor’. An Australian Criminal Intelligence Commission Check Results Report records the Applicant was found guilty of assault on 25 May 1987, assault occasioning actual bodily harm on 21 April 1997 and stalk/intimidate w/i to cause fear physical/mental harm on 6 June 2005. Sentencing for the 1987 offence was deferred on the Applicant entering into recognizance to be of good behaviour for two years, he was fined and received 24 months supervision for the 1997 offence, and issued a section 10 bond for the 2005 offence.
As the offences were not recorded as convictions, I am precluded from having regard to them and I have placed no weight on the offending.[8]
[8] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 [73]-[74]
In a written statement, the Applicant acknowledges that he was previously a member of both the Bandidos and Hells Angels motorcycle clubs.[9] He claims to have ‘long since’ ceased any involvement with these organisations, aside from occasionally attending funerals of some former clubmates that he knew.[10]
[9] Applicant’s statement of 22 April 2025.
[10] Ibid.
The Respondent submits that the Bandidos and Hells Angels OMCG are notorious for their involvement in, amongst other things, organised crime, proliferation of illicit firearms, drug trafficking and violent crime. The Respondent has provided media releases from Australian law enforcement bodies including Australian Border Force, Australian Federal Police, Queensland Police and the Australian Crime and Intelligence Commission detailing operations targeting OMCG’s between 2020 and 2023.[11] Also in evidence is the Australian Criminal Intelligence Commission’s Australia Outlaw Motorcycle Gang report.
[11] G13, G17, G18.
A newspaper article which appeared in the Herald Sun newspaper on 10 September 2012 purports to explain the Hells Angels OMCG, its size, scale and history of violence, murder kidnap, and drug manufacture and distribution. Another article published in the same newspaper in July 2018, details the ‘brutal and bloodied history’ of the Bandidos motorcycle gang in Australia, including public shootings and ‘brutal acts of retribution’.
The Applicant’s evidence is that he came to be involved with the Bandidos after he was asked to join the club in the late 1980s. In 2013, about a decade after leaving the Bandidos, he joined the Hells Angels after being invited to do so. He claims to have remained a member of the Hells Angels until 2019, leaving after his wife became ill. He explained there was no formal process for leaving the club, which he left amicably after informing the club of his intention to do so.
A Department of Home Affairs file note records that New South Wales police reported on 14 May 2020 the Applicant was sighted wearing a black long-sleeved jumper with Hells Angels Australia logo on the back. Police were advised that between October 2015 and February 2017, the Applicant was a member of the Hells Angels OMCG and a previous member of the Bandidos. The Applicant’s Facebook profile revealed he ‘Works at Hells Angels’ and his Facebook friends included international Hells Angels chapters from the United States, Denmark and Sydney. He also had a Hells Angels Australia tattoo.[12]
[12] G8.
In a statement provided on 20 December 2021, the Applicant wrote he had no knowledge that either of the organisations were involved in criminal activity and had never been involved in criminal activity while he was a gang member. He repeated this evidence at the hearing and explained that he first became involved with the Bandidos because he developed a passion for motorcycles after mustering on horses.
The Applicant was asked by counsel for the Respondent if he was aware of the Milperra Massacre, in which a feud between the Bandidos and another OMCG led to a 14-year-old child and multiple OMCG members being shot and killed.[13] The Applicant confirmed he was aware of the incident and the Bandidos’ involvement. He said the incident did not deter him from joining the Bandidos as it occurred a long time before he became a member. The Applicant’s evidence was that when he later joined the Hells Angels, he was aware of the gang’s reputation for criminal activity through newspaper reports.
[13] G109.
At the hearing the Applicant confirmed he joined both gangs as a member, and held positions including sergeant-at-arms, vice president and president at the Bandidos. In his capacity as sergeant-at-arms, the Applicant said he was required to ensure other members ‘kept in line’ and ‘did the right thing. When asked what this entailed, he said it required him to ensure members behaved in a ‘civilised manner’, and those who engaged in unacceptable behaviour or did not comply were removed from the club. He said that in his capacity as sergeant-at-arms he did not remove any members and had never ordered violence against a member.

The Applicant confirmed he had a Bandidos tattoo which he has removed. He currently has a Hells Angels tattoo. He also wore a jacket depicting the Hells Angels logo and insignia at a funeral he attended in September 2020, which he claims he no longer owns.
The Applicant’s evidence regarding the membership of the OMCGs of which he was a member was at times vague or inconsistent. His recollection of the dates during which he was a member proved somewhat inaccurate. Having regard to the Applicant’s own evidence, I consider that he continues to have contact with members of the Hells Angels, but there is little evidence to support him maintaining more than an association with the gang.
I am satisfied that the Applicant has been a long-standing member of OMCGs and at times held powerful positions in the formal structure of the organisations. The gangs are known for their involvement in serious organised crimes which are detrimental to the direct victims and harmful to the broader community. I accept the Respondent’s submissions that irrespective of whether the Applicant personally engaged in illicit activities, membership of the groups strengthens their presence in Australia and the harm they cause. On this basis, I find the Applicant’s conduct to be serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:[14]
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[14] Direction 110, paragraph 8.1.2.
Guidance on determining the risk to the Australian community can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[15] Her Honour said that it was necessary to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[15] Tanielu v Minister for Immigration and Border Protection[2014] FCAFC 673
Should the Applicant continue his OMCG membership, affiliation or otherwise support the OMCGs, he may contribute to the harms associated with the criminal activities of those gangs.
The Applicant describes his OMCG membership as ‘passive’ and says his conduct did not itself inflict any material physical or financial injury to the community. At 67 years old, the Applicant is in poor physical health. Even if he were to maintain his gang membership, he argues the risk to the community would be limited and not rise to the level of the serious harms associated with OMCGs. With reference to Rogers and Minister for Immigration and Multicultural Affairs, the Applicant submits that absent gang related charges or findings against the Applicant, it is difficult to identify any risk associated with the Applicant’s gang membership.[16]
[16] Rogers and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 28 [27].
Having regard to the Direction, the Applicant has not provided evidence of rehabilitation or indicated meaningful remorse for his membership of OMCG. In my view, he has regularly sought to downplay his involvement in OMCGs and the harm caused by OMCG membership. Overall, the evidence supports that there is a real risk that the Applicant will maintain an association with OMCG members.
When assessing the risk posed by the Applicant, I take into consideration there are no gang related charges or findings against the Applicant. Nonetheless, future association with OMCGs by the Applicant would be expected to contribute to the harm caused by these gangs. In my view, the Applicant’s future contribution to the gangs, and it follows the harm they cause, would be less than when he was a member and office bearer in OMCGs.
Conclusion as to the protection of the Australian community
The Applicant’s long-held membership and continued association with OMCGs means that the protection of the Australian community weighs in favour of cancelling the visa.
Primary consideration 2: Family violence
There is no evidence that this consideration is relevant and it weighs neutrally.
Primary consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
The Applicant has close family ties in Australia notably his wife, daughter, and son. Each has provided a statement outlining their support for the Applicant and the detrimental impact his removal would have on their lives.
The Applicant has resided in Australia for most of his adult life having arrived in 1979 age 21. He and his wife have been together since 1985. As outlined in her statement, she suffers a range of physical and mental health conditions. Should the Applicant be deported, her functional capacity and overall mental state is likely to deteriorate significantly, which the Applicant fears will place her at risk of self-harm.
In their statements, both the Applicant’s adult children speak of their close relationship with their father throughout their lives. The Applicant’s daughter writes of the extensive support he has provided as she addressed her mental health and the challenge of caring for her sons.
The Applicant is the primary carer for his father-in-law - who is in his nineties – and would be emotionally and practically impacted should the Applicant’s visa be cancelled. The Applicant has referred to other family members in Australia, including a brother-in-law, sister-in-law as well as uncles, aunts, nephews, nieces and cousins. However, these individuals have not provided statements in support of the Applicant and there is very limited information about the strength of the Applicant’s relationship with them.
The Applicant has engaged in paid employment while in Australia. He has also contributed to the community through other measures including his participation in rugby league, helping apprehend a man who was reported to be exposing himself outside a school and providing first aid to a stranger who fainted.
I am satisfied that the Applicant maintains significant ties to Australia, notably his wife and adult children, and has contributed to the community.
Primarily on the basis of his relationship with his wife and children, this consideration weighs heavily against cancelling the visa.
Primary consideration 4: The best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[17] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[18]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[17] Direction 110, para 8.4.
[18] Ibid.
The Applicant has four minor grandchildren who are relevant to this consideration. They are his grandsons aged 11, 1 and 2, and 6-year-old granddaughter.
The Applicant’s daughter, who is the mother to two of the Applicant’s grandsons, gave evidence that the Applicant has maintained a significant role in caring for both her children. Her eldest son has been diagnosed with ADHD, depression and anxiety, oppositional defiant disorder, and autism spectrum disorder. Medical reports are in evidence with reference to significant role the Applicant has played in the child’s life and the negative impact the Applicant’s continued absence will have on him. A medical report provided by the child’s psychologist states his symptoms worsened since the Applicant’s transfer to immigration detention.
The Applicant’s son is father to his two-year-old grandson and six-year-old granddaughter. The Applicant has helped care for both the children, and in a statement his son writes that both children deeply miss the Applicant.
Each of the Applicant’s grandchildren have others who fulfill the parental role. However, I accept that there would be a substantial emotional and practical impact on the Applicant’s grandchildren, particularly the eldest grandson, should the Applicant be removed from Australia.
This primary consideration weighs strongly against exercising the discretion to cancel the Applicant’s visa.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated in the Direction, without independently assessing the community's expectations in the particular case.
The Applicant has associated with two OMCGs which have known links to organised crime and the commission of very serious violent and other crime, such as firearms and drug trafficking. The safety of the Australia community is the highest priority of the Australian government, and the Australian community expects the government to cancel the visas of non-citizens who raise serious character concerns through their conduct.
This consideration weighs very heavily in favour of cancelling the Applicant’s visa.
Other considerations
In deciding whether to exercise the discretion to cancel the Applicant’s visa, I must also take into account the other considerations listed in Direction 110 where relevant.
Legal consequences of the decision
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to be removed from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Should the visa be cancelled, the Applicant would be prohibited from applying for other visas by operation of s 501E of the Act. The Applicant’s removal and future exclusion from Australia would be a legal consequence a decision to cancel the visa which flow naturally from the intended operation of the Act. Having had regard to Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] I find this weighs nominally in the Applicant’s favour.
[19] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 at [39] – [43].
Absent evidence to suggest that Australia’s non-refoulement obligations are enlivened in respect of the Applicant, this consideration weighs neutrally.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires me to consider the practical obstacles the Applicant may face should he return to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens in that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
I have previously detailed the Applicant’s medical conditions including the injuries caused by the 2017 workplace accident. I note the Applicant also suffers from PTSD and pervasive depressive disorder and anxiety.
Psychiatrist Dr Sturrock records an escalation of rage agitation and catastrophic thinking in the Applicant in 2024 as surgery loomed and his fear of deportation intensified.[20] The Applicant currently receives weekly psychotherapy and takes antidepressant medication. He fears removal to New Zealand would interrupt treatment for his medical conditions, compromising his mental and physical rehabilitation and elevating the risk of self-harm.
[20] G109.
The Applicant accepts he would not face any language barriers but has concerns about the challenge of cultural reintegration having emigrated to Australia when he was 21 years-old. Having lived in Australia for more than 45 years, he says his meaningful social contacts, personal doctors, auxiliary health supports and community contacts are in Sydney’s western suburbs. He has no close relatives in New Zealand and is estranged from his adopted brother. He fears his impaired physical mobility, lack of an existing support network and an unfamiliar environment would make re-establishing himself in New Zealand very difficult.
The Applicant’s ongoing treatment and planned surgeries are funded by his workers compensation provider and he is not reliant on the public health system. He is in the process of finalising a compensation claim related to his workplace injuries. Should he be removed, he would be reliant on the public health system in New Zealand and expects to be subject to longer waiting times of up to 5 years for planned surgeries.
I accept the Applicant would face social isolation and additional complexity and delay treating his multiple medical conditions in New Zealand. This consideration weighs substantially against exercising the discretion to cancel the visa.
CONCLUSION
Having considered the Applicant’s specific circumstances, I am required to carry out the evaluative exercise of weighing up the factors to determine whether to exercise the power under s 501(2) to cancel the Applicant’s visa.
The primary consideration of the protection of the Australian community weighs in favour of cancelling the Applicant’s visa. Through his membership of two outlaw motorcycle gangs the Applicant has engaged in conduct which is harmful to the Australian community. The weight afforded to the consideration of the protection of the Australian community is mitigated by the absence of gang related offending on the Applicant’s part and the evidence he has significantly less active involvement with OMCGs. The expectations of the Australian community weigh very heavily in favour of exercising the discretion.
The Applicant has resided in Australia since 1979. His immediate family members are committed to him and his wife and daughter are benefit from his support. The Applicant’s ties to the Australian community weigh heavily against exercising the discretion. The best interests of the Applicant’s grandchildren are also served by the Applicant remaining in Australia and I afford their interests significant weight.
The legal consequences of the decision weigh neutrally. Having particular regard to the Applicant’s compromised physical health and lack of existing social or family support in New Zealand, the impediments he would face in that country are afforded substantial weight against exercising the discretion to cancel the visa.
On balance, having weighed the considerations, I find the correct and preferable decision is to revoke the decision to cancel the Applicant’s visa.
DECISION
For the reasons outlined above, the Tribunal sets aside the reviewable decision of a delegate of the Respondent to cancel the Applicant’s Special Category (Class TY) (Subclass 444) visa and in substitution decides that the cancellation of the Applicant’s visa is revoked.

Date(s) of hearing: 22 May 2025

Counsel for the Applicant: Dr J Donnelly

Solicitors for the Applicant: Mr S Levitt, Levitt Robinson Solicitors

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Mr A Westenberg, Sparke Helmore

Date(s) of hearing:	22 May 2025
Counsel for the Applicant:	Dr J Donnelly
Solicitors for the Applicant:	Mr S Levitt, Levitt Robinson Solicitors
Counsel for the Respondent:	Mr G Johnson
Solicitors for the Respondent:	Mr A Westenberg, Sparke Helmore