McGlone and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 3202

McGlone and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3202 (12 September 2022)

Division:GENERAL DIVISION

File Number:          2022/5360

Re:Richard McGlone

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis

Date of Decision:               12 September 2022

Date of Written Reasons:      30 September 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 17 June 2022 to not revoke the cancellation of the Applicant’s visa.

................[SGD]..................................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501C

Table of Contents

Decision

REASONS FOR DECISION

Introduction and background

An important procedural aspect of the matter

legislative framework

Does the Applicant pass the Character Test?

Is there another reason for the revocation of the cancellation of the Applicant’s visa?

The principles in paragraph 5.2

The Primary and Other Considerations

Primary consideration 1 – protection of the australian community

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

Paragraph 8.1.1(1)(a)(i)

Paragraph 8.1.1(1)(a)(ii)

Paragraph 8.1.1(1)(a)(iii)

Paragraph 8.1.1(1)(b)(i)

Paragraph 8.1.1(1)(b)(ii)

Paragraph 8.1.1(1)(b)(iii)

Paragraph 8.1.1(1)(b)(iv)

Paragraph 8.1.1(1)(c)

Paragraph 8.1.1(1)(d)

Paragraph 8.1.1(1)(e)

Paragraph 8.1.1(1)(f)

Paragraph 8.1.1(1)(g)

Conclusion about the nature and seriousness of the Applicant’s conduct

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

The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

The likelihood of the non-citizen engaging in further criminal or other serious conduct

(i) Information and evidence on the risk of the Applicant reoffending

(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision

(iii) Conclusions about risk

Conclusion: Primary Consideration 1

Primary consideration 2: family violence

Who are members of the Applicant’s family?

Did any of the Applicant’s conduct constitute family violence?

Assessment of the seriousness of the Applicant’s family violence

Conclusion: Primary Consideration 2

Primary consideration 3: the best interests of minor children in australia

Identification of the relevant minor children

Are there any other relevant children for the purposes of this Primary Consideration 3?

The parties’ respective contentions

The Applicant’s written evidence

The Applicant’s oral evidence

The written evidence of Ms Jodie McGlone

The written evidence of [Child A] and [Child M]

The medical information about [Child M]

The medical information about [Child A]

Application of factors in paragraph 8.3(4) of the Direction to the relevant children

Findings about the relevant minor children

Conclusion: Primary Consideration 3

Primary consideration 4: expectations of the australian community

Conclusion: Primary Consideration 4

Other considerations

Other Consideration (a): International non-refoulement obligations

Other Consideration (b): Extent of impediments if removed

The Applicant’s written submissions

The Applicant’s oral evidence

The Respondent’s written submissions

Other Consideration (c): Impact on victims

Other Consideration (d): Links to the Australian Community

(1)      Strength, nature and duration of ties

1. Impact of non-revocation on the Applicant’s immediate family

2. Strength, nature, and duration of “other ties” – length of residence

3. Strength, nature, and duration of “other ties” – family and other social links

(2)      Impact on Australian business interests

Weight allocable to Other Consideration (d): links to the Australian community

Findings: Other Considerations

Conclusion

Is there another reason to revoke the cancellation of the Applicant’s visa

DECISION

REASONS FOR DECISION

Senior Member Theodore Tavoularis

30 September 2022

Introduction and background

1. Richard McGlone (“the Applicant”) is a 46-year-old male who was born in New Zealand. He will be 47 years of age in June of next year. His movement history runs from his initial arrival on 12 December 1982 to his most recent arrival in 28 August 2012.[1] He first came to Australia when he was four years old and has spent the overwhelming majority of his life in Australia. Any absences from Australia have been for relatively short periods and, for all intents and purposes, he has regarded Australia as his country of residence since his initial arrival.

   [1] See generally, Movement Records, R1, pp 307-311.

2. The Applicant does not have a lengthy criminal history in Australia. It is not lengthy in terms of the number of offences committed nor in terms of the period of time across which his offences were committed. Rather, his offending has been of a very significant level of seriousness involving the commission of very serious drug offences that were not punished once, but twice. I make this comment with some caution because the circumstances of this “twice punished” comment are not the fault of the Applicant. At this point, it is necessary to have regard to the totality of the Applicant’s offending history which the Respondent, in its Statement of Facts, Issues and Contentions (“SFIC”), has helpfully summarised:

Court	Date	Offence	Result
Downing Centre District Court	13 November 2020	Joint commission import/export commercial quantity border controlled precursors	Convicted. No further penalty imposed.
Downing Centre District Court	13 November 2020	Conspiracy import/export commercial quantity of border-controlled drugs/plants	Convicted Imprisonment: 7 years and 3 months Commence: 23 July 2017 (Methamphetamine)
Downing Centre District Court	13 November 2020	Dealing with proceeds of crime $10,000 or more	Convicted. No further penalty imposed.
Downing Centre District Court	21 July 2016	Joint commission import/export commercial quantity of border control precursors	Convicted Imprisonment: 16 years Commence: 30 January 2016 (Pseudoephedrine) Total effective sentence imprisonment 19 years to date from 30 January 2016 (pseudoephedrine) Note: conviction quashed, and the Applicant was re-sentenced on 13 November 2020
Downing Centre District Court	21 July 2016	Conspiracy/ import/export commercial quantity of border controlled drugs	Convicted Imprisonment: 10 years Commence: 30 January 2016 Total effective sentence imprisonment 19 years to date from 30 January 2016 (pseudoephedrine) Note: conviction quashed, and the Applicant was re-sentenced on 13 November 2020
Downing Centre District Court	21 July 2016	Dealing with proceeds of crime $100,000 or more	Convicted Imprisonment: 5 years Commence: 30 January 2016 Note: conviction quashed, and the Applicant was re-sentenced on 13 November 2020
Waverley Local Court	16 February 2007	Common assault	Dismissed

1. On 15 January 2021, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. On 5 and 10 February 2021, the Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation decision.

2. On 17 June 2022, a delegate of the Respondent decided that the discretion subsisting in s 501CA(4) of the Act to revoke the Applicant’s visa was not enlivened. The Applicant was notified of this decision on 20 June 2022.

3. On 28 June 2022, the Applicant applied to this Tribunal for review of the abovementioned decision of the delegate made on 17 June 2022 refusing to revoke the mandatory cancellation of his visa.

4. The hearing proceeded before me on 1, 2 and 7 September 2022. At the commencement of the hearing, I sought and obtained the parties’ agreement to an Exhibit List which sought to accurately particularise the material before the Tribunal.[2] Attached to these Reasons and marked “Annexure A” is a true and correct copy of the Exhibit List agreed to by the parties. In terms of how the hearing proceeded, the following occurred on each of the three hearing dates:

   [2] Transcript, p 2, lines 14-41.

   1 September 2022

   ·Evidence of the Applicant (in chief and in cross-examination);

   ·[Interposed] Ms Alison Cullen – psychologist (in chief, in cross-examination, re-examination);

   ·[Applicant’s evidence resumed] re-examination of the Applicant;

   ·Evidence of the Applicant’s wife (Ms Jodie McGlone) (in chief, in cross-examination, and re-examination);

   ·Evidence of the Applicant’s adult son (Maia Dowd) (in chief, no cross-examination);

   ·Evidence of the Applicant’s friend (Amon Buchanan) (in chief, no cross-examination);

   2 September 2022

   ·Evidence of the Applicant’s friend (Georgie James) (in chief, no cross-examination)

   ·Evidence of the Applicant’s friend (Maria Stathakis) (in chief, no cross-examination)

   7 September 2022

   ·Evidence of the Applicant’s brother (Morgan Allen McGlone) (in chief, cross-examination, no re-examination)

   ·Evidence of the Applicant’s first wife (Paige Dowd) (in chief, no re-examination)

   ·Oral closing submissions – Applicant

   ·Oral closing submissions – Respondent

   ·Oral closing submissions of the Applicant in reply

   An important procedural aspect of the matter

5. When the respective representatives of the parties prepared their material, in particular, their respective SFICs, neither made mention to any aspect of the evidence relating to the commission of any acts of family violence by this Applicant and of the extent to which the relevant auspices of the prevailing Ministerial Direction[3] (“the Direction” or “Direction 90”) were engaged by any such evidence.[4] This is not the fault of the parties.

   [3] Direction No. 90 – Migration Act 1958 (Cth) – Direction under section 499 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

   [4] See A2, Applicant’s SFIC, pp 16-17, paras [79]-[82]; see also, R2, Respondent’s SFIC, p 8, para [23].

6. After the parties had filed their respective material and after the Applicant had the opportunity to file any responsive material, the Tribunal received certain material which has earlier been summonsed by the Respondent. This material pointed to the possible commission of certain acts of family violence by the Applicant which may have engaged the auspices of paragraphs 8.1.1(1)(a)(iii) and paragraph 8.2 of the Direction. Of course, it was open to the Respondent to amend its material at any time prior to or even during the hearing to address this lately received material.

7. However, the Act precluded the Applicant from being able to do so. This is because of the operative effect of s 500(6H) and (6J) of the Act precludes the Tribunal from having regard to any information presented orally or in documentary form in support of an applicant’s case unless that material was given to the Respondent at least two business days before the Tribunal holds its hearing in relation to such an applicant.

8. Based on my view that the subject material received by way of summons may very well be relevant to any issue of domestic violence in the instant case, I sought to afford procedural fairness to the Applicant such that he had a reasonable opportunity to both (1) consider this lately received material and (2) respond to it. At the conclusion of the second day of the hearing I did, with the consent of the parties, make certain procedural directions facilitating the Tribunal’s receipt of written submissions on the specific issue of family violence and otherwise setting out how the matter would proceed on its third hearing day, that being 7 September 2022. Attached to these Reasons and marked “Annexure B” is a true and correct copy of the procedural directions made immediately following the conclusion of the second hearing day on 2 September 2022.

9. The third hearing day (7 September 2022) was listed for Wednesday and the 84^th day in this matter occurred on the following Monday, 12 September 2022. On the 84^th day, I caused a short-form decision to be published such as to ensure the Tribunal met its obligation pursuant to s 500(6L)(c) of the Act.[5] Also attached to these Reasons and marked “Annexure C” is a true and correct copy of my short-form decision published on 12 September 2022. I now publish my detailed written reasons for that short-form decision.

   [5]   Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].

   legislative framework

10. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

    4 The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

    I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]

    “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]

    [6] [2018] FCAFC 151.

    [7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

11. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

    Does the Applicant pass the Character Test?

12. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, “substantial criminal record”. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:

    “…

    (c) the person has been sentenced to a term of imprisonment of 12 months or more;

    (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;

    …”

13. On 13 November 2020, the Applicant was convicted and sentenced to a term of imprisonment of seven years and three months for the offence of “Conspiracy import/export commercial quantity or border-controlled drugs/plants”. This was a head sentence for some additional offences comprising (1) “Joint commission import/export commercial quantity border-controlled precursors”; and (2) “Dealing with proceeds of crime of $10,000 or more”. For these additional offences, the Applicant’s criminal history is noted with the words “Convicted. No further penalty imposed”.

14. What matters for present purposes is whether or not the Applicant has received a singular term of imprisonment of 12 months or more, or in the alternative, whether he has received custodial terms, the cumulative total of which equate to or exceed 12 months. What does not matter for present purposes is the amount of time the Applicant has actually served.[8]

    [8] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

15. The parties are ad idem that the Applicant does not pass the character test.[9] I agree. The abovementioned sentence of seven years and three months confirms the Applicant does not pass the character test. I am therefore satisfied (and I find) that the Applicant has a “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [9] See A2, p 3, paras [25] and [29]; see also, R2, p 3, para [10].

16. Thus, the only live issue before the Tribunal is whether it should exercise its discretion pursuant to s 501CA(4) of the Act to revoke the decision of the delegate refusing to set aside the mandatory cancellation of the visa. Specifically, this is the abovementioned refusal to revoke decision made on 17 June 2022. This too is a joint position of the parties.[10]

    [10] See A2, p 4, para [28]; see also, R2, p 3, para [11].

    Is there another reason for the revocation of the cancellation of the Applicant’s visa?

17. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (to which I have earlier allocated the acronyms of “Direction” or “Direction 90”) has application.[11] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    “Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[12]

    [11]    Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

    [12]    Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The principles in paragraph 5.2

1. Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:

   (a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.

   (b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.

   (c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).

   (d)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. However, 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.

   (e)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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

   The Primary and Other Considerations

2. Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.

3. The Primary Considerations I must take into account are:

   “(1) protection of the Australian community from criminal or other serious conduct;

   (2) whether the conduct engaged in constituted family violence;

   (3) the best interests of minor children in Australia;

   (4) expectations of the Australian community.”[13]

   [13]    Direction, paragraph 8.

4. The Other Considerations which, where relevant, I must take into account, “include but are not limited to”:

   “a) international non-refoulement obligations;

   b) extent of impediments if removed;

   c) impact on victims;

   d) links to the Australian community, including:

   i) strength, nature and duration of ties to Australia;

   ii) impact on Australian business interests”[14]

   [14]    Direction, paragraph 9(1).

5. Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:

   (a)Information from independent and authoritative sources should be given appropriate weight;

   (b)Primary Considerations should “generally” be given greater weight than Other Considerations; and

   (c)One or more Primary Considerations may outweigh other Primary Considerations.

6. I will now turn to addressing the abovementioned Primary and Other Considerations.

   primary consideration 1 – protection of the australian community

7. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

8. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

   (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.

9. I will consider each in turn.

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

10. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. In terms of preliminary impressions of the Applicant’s offending, one need not look too deeply into the evidence to reach a conclusion that it has been (at the very least) very serious and must weigh heavily against revocation of the mandatory cancellation decision.

11. He was sentenced to a quite lengthy term of imprisonment for a head term of seven years and three months as a result of the extent of his involvement in the importation of commercial quantities of border-controlled drugs and precursors from a number of locations around the world. There is little to cavil with the proposition that his offending was part of a more broadly coordinated and internationally based enterprise. The unlawful consignments originated from a number of countries comprising Chile, Bangladesh and Abidjan.[15]

    [15] R1, p 58.

12. One need not recount the voluminous literature on the extent of harm to the community that such drugs cause. This harm is not just limited to consumers of those substances. It extends to family members and other people close to and otherwise involved with such drug users. It also goes without saying that the adverse consequences of these substances is to consume an inordinate amount of the community’s health, policing and judicial sentencing apparatuses.

13. One should also have regard to the wholesale value of the imported drugs and precursors in respect of which the Applicant was convicted and sentenced. During a sentencing episode in 2016, it was noted that if the subject substances were sold in pure form on the black market they would have attracted a value of between $6.16 million and $6.93 million. Further, the wholesale value of the methylamphetamine, if sold to the black market for such substances, would have yielded a value of between $1.99 million and $2.5 million in crystal form and $3.43 million to $5.39 million if sold in powder form.[16]

    [16] Ibid.

14. As will be noted from a discussion of the evidence, the Applicant committed these offences entirely for his own financial gain and he prioritised that objective over and above (1) the often-catastrophic effect these substances have on the community and (2) the reality that he was very seriously breaching Australian laws which – as he must have surely known – were in place because of the community’s determination to stamp out this type of offending.

15. The Applicant’s engagement with the illicit drug trade was not limited to the importation of border control drugs. It extended to personally selling cocaine. During the hearing, he agreed that some 18 bags of that substance plus measuring scales found as a result of a police raid on his residence in May 2013 confirmed this. He further confirmed in evidence to this Tribunal that the significant sum of $42,550 in cash located by the police during the May 2013 raid was in fact the proceeds of his activity in selling cocaine.

16. I will now apply the relevant paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.

    Paragraph 8.1.1(1)(a)(i)

17. This paragraph looks for the commission of violent and/or sexual crimes. If an applicant has committed such offences, this paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community. Having regard to the Applicant’s abovementioned criminal history, there is no reference to the commission of any such crime and, accordingly, this paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.

    Paragraph 8.1.1(1)(a)(ii)

18. This paragraph refers to crimes of a violent nature against women or children and, if such offences have been committed by an Applicant, then, regardless of the sentence imposed, such offences are viewed “very seriously” by the Australian Government and the Australian community. Once again, a review of the Applicant’s criminal history precludes application of this paragraph towards any assessment of the nature and seriousness of his conduct. While there is reference in the criminal history to an appearance at the Waverley Local Court on 16 February 2007 for an offence of “Common assault – T2” there is a “DISMISSED” notation in the “Result” column of the history.

19. That said, there is material from the NSW Police Force before the Tribunal which records that the Applicant committed this offence on 14 July 2006 and that it was ultimately dismissed at the Waverley Local Court on 16 February 2007.[17] There is further reference to the Applicant being recorded as a “person of interest” by NSW Police on 16 February 2007 as part of an incident-type described as “APPREHENDED VIOLENCE ORDER”.[18] I will, out of an abundance of caution, and for the purpose of being fair to the Applicant, respect the “DISMISSED” notation on his criminal history and not apply this paragraph to an assessment of the nature and seriousness of his conduct.

    [17] R1, p 148.

    [18] R3, p 4.

    Paragraph 8.1.1(1)(a)(iii)

20. This paragraph compels a decision-maker to look for acts of family violence in an applicant’s offending history and, if such offending can be ascertained from the material, then it is viewed “very seriously” by the Australian Government and the Australian community. Importantly, this paragraph compels this inquiry “regardless of whether there is a conviction for an offence or a sentence imposed”. As an initial observation, I note for the purposes of these Reasons that there is no reference to any conviction for such offending apparent from the Applicant’s offending history. I repeat my above observations about the “Common assault” notation on the Applicant’s criminal history from 16 February 2007. This charge is noted as having been “DISMISSED” and, accordingly, it is only procedurally fair to the Applicant that I do not find that he has “a conviction” for such offending.

21. However, for the purposes of this paragraph, this is not the end of the inquiry. This is because I must have regard to such conduct – if attributable to the Applicant – “regardless of whether there is a conviction” for such offending. The material discloses such material. As mentioned earlier, it emerged during the first two hearing days that certain material from the NSW Police Force had been produced under summons by the Respondent. There is an incident narrative in that material which dates from 14 July 2006. The relevant portion of that incident narrative appears thus:

    "…The accused (Richard MCGLONE) and the victim (………) originally met in 1995 when they become involved in a relationship. . The relationship continued on and off until 2002 when the two separated. The accused and the victim were involved in a de-facto relationship for approximately 7 years. During this time the accused and the victim had three children together currently aged 9.7 and 5. . The accused and the victim share the time with the children and to date there are no Family Law Court Orders . . The accused and the victim have had normal relationship arguments previously however, to date their has not been any Police action required. . On Friday the 14th July 2006, the accused had the three children with him and was expected to attend the home of the victim at 8.30am to sign christening papers as the children were christened on the 7th July 2006. . The accused failed to attend the victim's home address at this time. The victim called the accused on his mobile phone. The accused and the victim began to argue regarding this matter. . About 10.30am the accused has arrived at the home address of the victim with the children. The victim had the papers to be signed layed out on the kitchen table read to be signed. . The accused went into the house to sign the papers and after a short time the accused and the victim began to argue about the accused not placing his home address on the christening papers. . The accused and the victim began to argue about this which quickly progressed to an argument about the accused's girlfriend and the welfare of his children. . The accused and the victim have walked to the front door of the home where the accused has begun to state how happy he was with his life and that his girlfriend was pregnant. The victim has become very upset during this argument and told the accused to get out of her house. . The victim pushed the accused in an attept to get him outside the door. The accused replied saying something to the effect of, "Don't fucking hit me again or something will happen".

    The accused attempted again to push the accused out of her house when the accused grabbed the victim by one of her arms and placed in his other hand around her throat. The accused began to squeeze the victim's throat and pushed her up against a glass pain beside the front door. The accused then forced the victim to the floor on her back and continued to apply pressure to her throat. . At this time the three children were approximately 2 metres away in the lounge room. . The victim has struggled kicking and thrashing with her legs and arms to break free of the grasp of the accused. . The victim was able to get free, got to her feet and headed to the kitchen. The victim was very scarred and fearfull of the accused and so grabbed a kitchen knife from the knife block. The victim went and stood near to the door of the kitchen and lounge room . The victim held the knife at about chest level and screamed to the accused, "get the fuck out of my house." The victim was at this time extremely scarred of the accused. . The victim again screamed, "Get the fuck out of my house." The victim pointed the knife in the direction of the front door as she said this. . The accused came at the victim again knocking the knife out of the victim's hand and forcing her to the ground. The accused placed either one hand or two hands around the throat of the victim and began to squeeze. The children were still present at this time and screaming, "Daddy stop." The victim stated she began to feel dizzy and thought she was ging to …….. out. The victim continued to struggle to get free of the accused and was able to release the grasp on her throat momentarily before the accused again took hold of the victims throat . . The victim looked at the accused and said, "Im sorry let me go." The victim was in an extremely distressed state. . The accused then released his grasp and promptly left the home. . Police attended a short time later where it was observed the victim had redness and swelling to her throat area. The victim also had a number of small lacerations to her throat and lower jaw. . As a result of the squeezing of the neck and the struggle which had taken place the victim stated she was in severe pain to her throat, neck, chest and back. The victim attended the Price of Wales Hospital for treatment. . Police obtained a statement from the victim and photographed her injuries. Police prepared a Complaint and Summons and attended Waverley Local Court and spoke with the Chamber Magistrate. . An Interim Apprehended Violence Order was granted. Orders made under section 562BC, A. B. Other orders made, 1. 3. 4. 11 and 13."[19]

    [Errors in original; my emphasis]

    [19] R3, pp 20-21.

22. It should be noted that the element of domestically violent conduct also falls within the auspices of Primary Consideration 2 of the Direction. There, the decision-maker is required to make a detailed analysis about whether such conduct actually constitutes domestic violence, whether it was perpetrated against a member of the person’s family and, as well, to assess the seriousness of that conduct. For the present purposes of this paragraph 8.1.1(1)(a)(iii), it suffices for there to be domestically violent conduct referrable to this Applicant in the material now before the Tribunal. Clearly, there is. Accordingly, the auspices of this specific paragraph 8.1.1(1)(a)(iii) can be utilised as a means of rendering the nature of the Applicant’s conduct in this realm as “very serious”.

    Paragraph 8.1.1(1)(b)(i)

23. There is no evidence in either the oral or written material telling me this Applicant has committed any offences in the realm of causing a person to enter into or being a party to a forced marriage. There is no recorded conviction for such offending nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This particular paragraph is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s conduct.

    Paragraph 8.1.1(1)(b)(ii)

24. This paragraph is concerned with the commission of any offence against who are described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. There are no such convictions in the Applicant’s offending history for such conduct. This paragraph is therefore not relevant to the assessment of the nature and seriousness of the applicant’s conduct.

    Paragraph 8.1.1(1)(b)(iii)

25. This paragraph is concerned with serious conduct involving, “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. To the best of my understanding of the material, the Respondent has not propounded this component of the Direction in either its written or oral submissions. Further, I cannot find anything in the transcript demonstrating that either party made any submission about this particular paragraph at the hearing before me. I therefore find that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.

    Paragraph 8.1.1(1)(b)(iv)

26. This paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this paragraph. It was not propounded by the Respondent in either its written or oral submissions. This paragraph is thus not relevant to any assessment of the nature and seriousness of the Applicant’s conduct in Australia.

    Paragraph 8.1.1(1)(c)

27. In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[20] (2) acts of family violence;[21] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[22] The Applicant does not have convictions for offences in either the first or third categories. Similarly, he does not have any conviction for acts of family violence. Therefore, the preclusion in this paragraph does not refer to any of the sentences that have been imposed on the Applicant.

    [20]    Paragraph 8.1.1(1)(a)(ii).

    [21]    Paragraph 8.1.1(1)(a)(iii).

    [22]    Paragraph 8.1.1(1)(b)(i).

1. Of course, the Applicant has had a sentence – and indeed, a very significant sentence – imposed upon him for his other non-precluded offending to date. The sentence is that imposed upon him on 13 November 2020 that saw him convicted and imprisoned for a head custodial term of seven years and three months. The imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. It logically follows that the imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offending sought to be punished.

2. Clearly, there is little to cavil with the proposition (and finding) that the abovementioned sentence imposed on the Applicant is a sure guide of the very significant level of seriousness the sentencing Judge thought was represented by the Applicant’s offending. There is detailed reference to the circumstances surrounding the Applicant’s offending in the learned sentencing Judge’s sentencing remarks. I have earlier detailed how the earlier sentencing remarks from 2016 valued – in black market dollar terms – the sheer amount of unlawful substance involved in the entire unlawful transaction for which the Applicant was charged, convicted, sentenced in July 2016 and then re-sentenced in November 2020.

3. We are talking about 63.1771 kilograms of pseudoephedrine (precursor) with a value of between $6.16 million and $6.9 million. We are also talking about 5.9686 kilograms of methamphetamine with a value of between $1.99 million and $2.5 million (if sold in crystal form) and $3.43 million and $5.39 million (if sold in powder form). On a worst-case calculation, the Applicant was a fundamental component of an offending enterprise involving unlawful border-controlled drugs for something in the order of over $12 million. This is very significant offending and the nature of the seven year and three-month head term is strongly indicative of how this sentence militates in favour of a finding that the Applicant’s offending has been, at the very least, of a very serious nature.

4. The nature and extent of the abovementioned head sentence also speaks to the level of intricate sophistication inherent from the circumstances of the Applicant’s offending. Perhaps one should expect such level of intricacy in the execution of a very serious crime involving some $10 million - $12 million of unlawful product. The Respondent has cited nine specific elements of this sophisticated unlawful conduct in its SFIC.[23] On any reasonable view, there was much precision and significant resources dedicated to the success of the unlawful enterprise. In a relevant portion of the earlier sentencing remarks, the learned sentencing Judge characterised the objective seriousness of the offending thus:

   'The evidence before the Court demonstrates a very sophisticated and well-resourced criminal enterprise to import substantial quantities of border controlled precursor and drug into Australia. The enterprise required the establishment of a system to abuse customs procedures, requiring not simply a knowledge of the procedures, but the participation of a person in authority who was able to direct other persons to comply with breaches of the under bond customs transport system to enable removal of the substances from the system. Such a system must, as a matter of common sense, have been arranged prior to the investment of substantial funds to allow the purchase of the substances overseas and air transport. The quantities involved were substantial…”[24]

   [23] R2, p 5, para [19(a)(i)-(ix)].

   [24] R1, p 58.

5. The nature and extent of the seven year and three-month sentence imposed on the Applicant in November 2020 can also be seen in the learned sentencing Judge’s intention to “send a message” of specific deterrence to others who may be contemplating an involvement in the seemingly “fast money” and “quick financial fix” that often lures people into engaging in such offending. With particular reference to the issue of deterrence sought to be achieved by the nature of the sentence imposed, the learned sentencing judge (at the first sentencing episode) said the following:

   “[63] Involvement at any level in a drug importation offence must attract a significant

   sentence otherwise the interests of general deterrence are not served. R v Pang
   NSWCCA 4; (1999) 105 A Crim R 474 at 476. In relation to proceeds of crime offences, general deterrence is also of particular importance. Proceeds of crime charges by their nature tend to be difficult to detect, investigate and to prosecute. This type of offence critically involves the possession (or disposition) of funds used or gained from illegal activities, without confidence in which the original crimes would be unlikely to be committed in the first place.
   [64] In relation to specific deterrence, the offences before the Court were not an uncharacteristic aberration for the offenders. The cash seized in each of the offender's residence, and the drugs and scales (contaminated with traces of cocaine) located at McGlone 's residence indicate that both offenders have been engaged in the drug trade over a period of time, although neither is being sentenced except in respect of the current offences.
   [65] Accordingly, there is a strong need for specific deterrence in this instance. Objectively viewed, the offender's criminality is very high, and a substantial period of full time imprisonment is the only appropriate sentence in the circumstances to have an adequate deterrent effect on these offenders and to reflect general deterrence.”[25]

   [Emphasis in original]

   [25] R1, p 67.

6. Similarly, the sentence imposed on the Applicant is also indicative of the very serious nature of his offending when one has regard to the learned sentencing Judge’s thoughts (at the first sentencing hearing) about the extent to which the Applicant and his co-offender were entitled to leniency:

   “[73] Neither [Co-offender]  or Mr McGlone is entitled to any leniency that might otherwise be afforded to first time offenders in circumstances where it is clear that their involvement in these matters was not an isolated event, but part of an ongoing

   involvement in the drug trade, as demonstrated by:

   ·The large amount of cash located at each of their premises

   ·The high patterns of personal spending above their legitimately earned income. In the case of [Co-offender], represented by gambling losses, and in respect of McGlone, car, holiday and housing expenses.

   ·The cocaine pills and scales contaminated with traces of cocaine located at McGlone 's residence.

   ·The coded communication between the two offenders using phones registered in false names over a period extending potentially up to 12 months before their arrest.”[26]

   [Emphasis in original]

   [26] R1, p 68.

7. In the SFIC filed on behalf of the Applicant, the posture taken is one of purporting to urge the Tribunal to take account of the difference between the sentencing regime imposed on 21 July 2016 compared to that imposed on 13 November 2020. At the first sentencing hearing, the Applicant received a head custodial term of 19 years. At the second, it was seven years and three months. Of course, the Applicant is entitled to take advantage of, and to otherwise be heard, on any issue that may materially impact upon any sentence imposed on him. The posture adopted in the Applicant’s SFIC is to counterpoint the nature and extent of the first sentencing regime compared to the second and to suggest that because the second regime is less severe than the first, the Tribunal should somehow be led to a finding that the Applicant’s offending is somehow less serious as a result.[27]

   [27] See generally, A2, pp 9-10, para [48(1)(c)].

8. Such an approach, is with respect, to miss the point of this paragraph 8.1.1(1)(c). While 19 years is a significant head custodial term, so is seven years and three months. The abovementioned sentencing remarks made by the learned Judge who imposed the first sentencing regime remain both relevant and apposite to the nature and seriousness of the Applicant’s offending even in circumstances where a different second sentencing regime was imposed on him. The second sentencing regime had little or nothing to do with a perception that the nature and seriousness of the Applicant’s conduct had decreased over time. It had more to do with the impact that the second sentencing Judge thought the Applicant’s prolonged involvement with the process had on the sentence to be imposed. This is clear from the second sentencing Judge’s remarks to this effect:

   “…it is my intention essentially to try and sentence both Mr McKell and Mr McGlone to as low a sentence that I think is appropriate. I think because of the history of this matter, the unfortunate way in which the matter proceeded through the courts, because of their demonstrated rehabilitation both in custody and out of custody, and because of the factors in their strong subjective cases, that there is a real basis to give them as lenient sentence as is possible as a matter of law.”[28]

   [28] R1, p 137.

9. Therefore, the first sentencing Judge’s remarks about the nature and seriousness of the Applicant’s conduct are accurate even in the circumstances of the second sentencing regime. Therefore also, the imposition of a second and less severe second sentencing regime does not militate in favour of a finding that this Tribunal should regard the imposition of that second sentencing regime as indicative of a lesser or lower level of seriousness of the Applicant’s offending. To my mind, both the first and the second sentencing regimes speak loudly and clearly to the very serious nature of this Applicant’s conduct. Accordingly, this paragraph 8.1.1(1)(c) strongly militates in favour of a finding that the Applicant’s conduct has indeed been of a “very serious” nature.

   Paragraph 8.1.1(1)(d)

10. This paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. First, this Applicant has, on any reasonable view, committed three offences that were dealt with at one sentencing episode. As mentioned earlier, it would be patently unfair to the Applicant to say or find that he has been dealt with at two sentencing episodes. He was entitled to avail himself of whatever lawful mechanism was available to him to facilitate a favourable second re-sentencing. He did so and received a more favourable, but nevertheless serious and severe, second sentencing regime. Therefore, he has, at worst, been convicted of three separate offences at the singular sentencing episode. His offending cannot therefore be found to be “frequent”.

11. The second enquiry involves an assessment of whether the criminal history demonstrates a trend of increasing seriousness. At the risk of repeating myself, the Applicant has been convicted of three offences at the one sentencing episode. There is no comparative other sentencing episode for any other offending against which to counterpoint these three offences as a means of arriving at any safe finding of “a trend of increasing seriousness”. Accordingly, this paragraph 8.1.1(1)(d) should be neutral in the assessment of the nature and seriousness of this Applicants conduct.

    Paragraph 8.1.1(1)(e)

12. This paragraph compels an enquiry into the cumulative effect of the Applicant’s “repeated offending”. I agree with the submission appearing in the Applicant’s SFIC to the extent that “The Applicant’s offending is not repeated and is all based on one conviction…”[29] In closing oral submissions, the Respondent’s representative sought to suggest that the auspices of this paragraph 8.1.1(1)(e) are engaged because a “cumulative effect” of the Applicant’s repeated offending is to be found in the circumstances of the police raid on his home in 2013:

    “MS CAMPBELL: Secondly, the applicant conceded in his evidence last week that he was also involved in selling cocaine, and he admitted that the 18 bags of cocaine and the scales found at his residence by police when his home was searched back in May 2013 was for that purpose. He also conceded the large sum of cash police found at his home, which was $42,550, was in fact the proceeds of crime. So his involvement in drug trade activity prior to his incarceration isn’t limited to the importation offences. So the respondent contends that the cumulative effect and repeated nature of the applicant’s conduct is significant, and there is a trend of increasing seriousness given that it’s culminated in his involvement in what has been described as a very sophisticated and well-resourced criminal importation enterprise.”[30]

    [29] A2, p 10, para [48(1)(e)].

    [30] Transcript, p 186, lines 41-47; p 187, lines 1-4.

13. I make several observations about this submission. First, while the Applicant may have referred to being involved in the sale of cocaine and in the finding of cocaine product and scales at his residence, there is no charge or conviction in his history about any of this. This cannot be a “cumulative effect” of his offending. Second, the $42,550 referred to is part of the factual matrix giving rise to his conviction for “Dealing with proceeds of crime $10,000 or more”. His being found in possession of this sum also cannot be a cumulative effect of his offending because it was one of the three specific convictions on which he was simultaneously sentenced. Third, while the suggestion may be that “…his involvement with drug trade activity prior to his incarceration isn’t limited to the importation offences”, he was not charged or convicted for any other offences (apart from those dealt with in November 2020) and, accordingly, this additional activity cannot be safely found to be a “cumulative effect of his offending”.

14. There is a further point to be made: this paragraph 8.1.1(1)(e) looks for “repeated offending” as a basis on which to ascertain any “cumulative effect(s)” flowing from it. This Applicant is not a repeat offender and, as such, one cannot safely identify and utilise any “cumulative effect(s)” resulting from his conduct for the specific purposes of this paragraph. That said, nothing detracts from the dreadful reality that his conduct in the sophisticated criminal enterprise behind the importation of such a very significant level of unlawful border-controlled substance will have had, without question, a very adverse impact on the community’s respective healthcare, law enforcement and judicial sentencing apparatuses.

15. Therefore, given the language of this paragraph 8.1.1(1)(e), the safest approach is to set this paragraph to one side and render it neutral for the purposes of making any assessment of the Applicant’s repeated offending.

    Paragraph 8.1.1(1)(f)

16. This paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. As best I understood the movement records, there is some 27 “arrival/departure” events during the period between December 1982 and August 2012. There is only one reference in the material to an incoming passenger card and it dates from 4 November 1980 when the Applicant was approximately four years old. He could not possibly, have had an offending history at that stage of his life that he failed to disclose to the authorities.

17. The further point is a temporal one: the Applicant was raided by the police in or about 2013 and was first sentenced for his unlawful conduct involving border-controlled drugs in July 2016. The last of his “arrival/departure” events occurs with his arrival into Australia on 28 August 2012. This most recent incoming passenger card therefore pre-dates his sentencing and he would have had nothing to disclose to the authorities about any offending history up to the date of his most recent arrival. There is no other evidence of the Applicant providing false or misleading information “to the Department”. Therefore, this paragraph 8.1.1(1)(f) should be put to one side and rendered neutral for the purposes of assessing the nature and seriousness of his conduct.

    Paragraph 8.1.1(1)(g)

18. The enquiry compelled by this paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. To the best of my understanding of the material there is no reference to any such formal (or other) warning issued to this Applicant that may fall within the auspices of this paragraph 8.1.1(1)(g). It can be safely put to one side and rendered neutral for the purposes of assessing the nature and seriousness of his conduct.

    Conclusion about the nature and seriousness of the Applicant’s conduct

19. I have sought to apply each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which I have referred, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, “very serious”.

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

20. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being be repeated may be unacceptable. I have little difficulty in reaching precisely such a conclusion as a result of the nature of this Applicant’s very serious offending in the realm of the importation of very significant quantities of border-controlled drugs.

21. Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (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 the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

22. Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. There can be little or no question with a finding that were this Applicant to again involve himself in a criminal enterprise similar to or parallel with his past offending in the realm of conspiring to import illicit drugs into Australia, the nature of the harm that would be occasioned to the Australian community would inevitably be very significant. Not only would harm be occasioned to individual users of those drugs, there is also the very serious harm that is suffered by those family members and other loved ones who are indirectly impacted by one of their number having a serious addition to such substances.

23. There is the further issue of the very significant and harmful load that the drug trade visits upon the Australian community. The detection, prosecution and sentencing of the Applicant’s conduct was no mere administrative process conducted by, for example, one person in front of one computer filling out a form. Very significant policing resources would have been allocated to the detection of the Applicant’s unlawful conduct (including that of others drawn into the orbit of that conduct). Those policing/law enforcement resources would have then extended into the formulation and proffering of charges against the accused. The State Government prosecutorial authorities will have expended significant resources on the assembly and production of relevant evidence into a prosecution brief. The State judicial determination and sentencing processes will then have been caused to devote resources to the trial and sentencing of the Applicant. Finally, the State Government custodial system will have been caused to bare the cost of yet another inmate serving a criminal sentence.

1. Therefore, there can be safely found to be a duality in the nature of the harm that would be occasioned to both individuals and, more broadly, the Australian community. At an individual level, individual users/addicts will suffer harm as will those around them who directly or indirectly are affected by the user/addict’s behavioural difficulties resulting from the abuse of illicit drugs. At a more broadly-based level, the Australian taxpayer is forced to bare the cost of the very significant policing, prosecutorial, health care, judicial process and sentencing and custodial cost that the Applicant’s conduct has caused. Stated collectively, I am satisfied (and I find) that were this Applicant to re-offend, the nature of the harm to both individuals and the Australian community would be very serious and would quite conceivably involve physical, psychological and material harm to individuals and/or the community at large – even to a catastrophic level.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct

   (i)    Information and evidence on the risk of the Applicant reoffending

2. In his Personal Circumstances Form (“PCF”), the Applicant said the following about his recidivist risk in the event of a return to the Australian community:

   “My risk of re-offending is non-existent. I will never be put in this situation again. I will never put my family in this horrible situation again. My business is needy and waiting for me to start again when I come home. My goal is to expand my business/brand successfully and to continue with my educational studies, successfully complete my degree in business and apply what ive learnt to not only my life but also my families lives.”[31]

   [Errors in original]

   [31] R1, p179.

3. In a certain Revocation Submission[32] accompanying his PCF the Applicant told the Respondent Minister’s Department the following about his recidivist risk:

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

   31. When considering the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, decision- makers must have regard to the following factors cumulatively:

   32. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   33. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   34. Information and evidence from independent and authority’s sources on the likelihood of the noncitizen re-offending; and

   35. Evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since most recent offence (noting that decisions should not be delayed in order for rehabilitation courses to be undertaken); and

   36. The duration of the intended stay in Australia.”[33]

   [32] Note “This document was lodged on behalf of the applicant with reference to a decision made under the previous Ministerial Direction 79- The immediate precursor to the current Ministerial Direction 90.”

   [33] Ibid, pp187-189.

4. In his Statement made on 29 July 2022, the Applicant said the following about the level of recidivist risk he now represents:

   “12. I also need to repay the faith shown to me by my mates, many of whom haven’t abandoned me. But most important duty I will have is to reconnect with my wife and children to try and repair of the damage that I have caused through this painful experience.

   13. With so many positive possibilities awaiting me and the personal growth that I have made over this journey, if I am permitted to stay, there is no way I will re-offend. I am so far removed from that person who allowed himself to become involved in such stupid behaviour, the risk I pose to the community is non existent.”[34]

   [34] A3, Document 1.

5. In his Statement of Facts, Issues and Contentions, there are nine factors said to contribute in favour of the Applicant representing a low risk of reoffending. I reproduce the relevant portion of the Applicant’s SFIC, which reads thus:

   “66. We submit that the Applicant has rehabilitated and many contributive factors as per the case of Dickson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4961 placing him in a low-risk of reoffending. These factors include [1] the applicant’s personal reflection, [2] remorse [3] acceptance of responsibility, [4] his deep appreciation of his wrongdoing, [5] him not being a repeat offender, [6] his six children including his three minor daughters, [7] the stability he has with his wife, [8] sons and daughters as well as [9] his prospect of employment in re-running his personal training business upon his release.”[35]

   [The bracketed numbers in bold in this text are my additions]

   [35] A2, p14.

6. Also in his SFIC the Applicant sought to rely on the opinions and/or findings of others in relation to his recidivist risk. The first person referred to is Ms Alison Cullen who has prepared an expert psychological report about the Applicant’s recidivist risk. I will deal with Ms Cullen’s report and her oral evidence in greater detail later in these Reasons. The second person referred to in the Applicant’s SFIC is the learned sentencing judge who sentenced the Applicant at the second sentencing hearing on 13 November 2020. That submission is put thus in the SFIC:

   “  72. The Applicant’s positive prospects of rehabilitation was acknowledged by the sentencing judge, Judge Pickering SC on 13 November 2020:

   “There is no doubt that delay in his case has allowed him to demonstrate that he is well on the path of rehabilitation. I think Mr McGlone has very positive prospects of rehabilitation. He is someone who wants to work and otherwise is interested in earning money in a legitimate way.”

   …

   I think Mr McGlone is highly unlikely to offend again in the future. I do not think specific deterrence has a significant role in his sentence and he, …, must have been quite shocked when he was sentenced by King J to think he would spend so much of his life in custody and basically not even see his children until they were nearly into adult age”

   …

   76. The sentencing judge in November 2020 acknowledged that the Applicant demonstrated rehabilitation both in custody and out of custody acknowledging factors in his strong subjective case…”[36]

   [Internal references omitted; emphasis in original]

   [36] A2, pp15-16.

7. There are two other themes in the Applicant’s SFIC propounded in favour of him representing a low recidivist risk. First, it is said that “We submit that the Applicant has no incidents in jail… nor in detention but rather a helpful person training officer.”[37] Second, there is a contention that the Applicant spent a deal of time in the community following his arrest and did not reoffend. That contention is put thus:

   “75. We draw the Tribunal’s attention to the fact that the Applicant was in the Australian community for quite some time since 2013 and he has never reoffended. He did serve a total sentence of 4 years and 3 months (over various periods of time in the community on bail including in May 2019 and whilst awaiting a new trial) with his most recent time in custody being from November 2020 until October 2021 to serve the remainder of his sentence and he was transferred to detention since.”[38]

   [37] Ibid.

   [38] Ibid, p16.

8. In the Applicant’s evidence-in-chief, he was asked about the extent to which he had been abusing illicit substances in the past. It is clear that his difficulties with cocaine use had manifested as a result of the stress he was experiencing due to the failure of a bar-restaurant business that he started with his brother:

   “MS LEWIS: Were you taking drugs at any time of your life previously…?

   APPLICANT: Yes, I was.  Yes, I was.  There was a time in my life, especially revolving around the restaurant, the failed business, where, yes, there was - I was taking cocaine.  It started as something to do on the weekends and pretty fast it turned into something a lot more sinister.  And what I mean by that I mean that with the stressors placed on me from the failing business I started to - I started to increase my levels of cocaine use.  Just poor decisions using - you know, making up poor excuses to have that as outlets for, you know, I thought I was problem solving but I was just creating more problems.”[39]

   [39] Transcript, p12, lines 36-44.

9. He was then asked how he would deal with his past propensity to abuse illicit drugs, especially in circumstances where he was experiencing a stressful event in his life. He responded thus:

   “MS LEWIS: If you are given your visa back and you’re released into the community, how do you think you’ll be able to manage that issue that you had previously in the past?

   APPLICANT: Yes, great question.  Part of my conditions is to undertake any drug and alcohol, gambling, that parole deem fit for me to have to undertake, and I’m totally fine with anything that they choose for me to have to undertake.  I feel that being down that path and having a better mindset now, being better educated, being more confident and just seeing the mistakes that I made, I think I’m well equipped now to any of those kind of scenarios presented themselves, I don’t think - I have no chance of going down those paths again.

   MS LEWIS: And how confident are you; when you’re saying “I think”; like how confident are you…?

   APPLICANT I’m extremely confident.  I’m so confident that, you know, the lessons I’ve learnt and the pain and the heartache I’ve caused my wife and my children warrants me to, you know, really taking those lessons on and, yes.  I’m so far removed from that kind of mindset and way of thinking now.  Like I said, my goal now is to just try and help people who have been in similar situations to give them the advice I’ve received, and just to try and help people who find in positions that I found myself in.”[40]

   [40] Transcript, page 13, lines 9-27.

10. A recurring theme in the Applicant’s evidence around recidivist risk seemed to involve his evidence of an intention to immediately resume his business activity as a personal training instructor/consultant. As best as I understood this aspect of the evidence, the contention was that if returned to the community he will be too consumed and busy with re-establishing and operating his personal training business such as not to have time to even dabble, let alone become heavily involved in, the abuse of illicit drugs, especially cocaine:

    “MS LEWIS: So on that, if you were to be released, Mr McGlone, you mentioned your fitness, personal fitness training business?

    APPLICANT: Yes.

    MS LEWIS: Is that easy to get back on track easily?  I understand you were incarcerated, and then you left and you, sort of, restarted it and you had no issues, it picked up very quickly?

    APPLICANT: Correct.

    MS LEWIS: Is that something that will happen easily for you if you were to stay in Australia?

    APPLICANT: Yes.  Yes, it’s going to be ‑ it’s a matter of, you know, straight away, basically.  I already have clients ringing me.  They’re asking me how I’m doing out here, very supportive.  A lot of my clients ring me and ask how things are going.  Hopefully, I’m going to be released so they can start training with me again and lose all the weight they’ve put on.  You know, I have really good relationships with a lot of my clients, and I’m very confident that, if released, my business will be very, very successful.”[41]

    [41] Transcript, p19, lines 25-39.

11. The Applicant also gave evidence in cross-examination. The configuration of the cross-examination seemed to revolve around the Applicant being initially taken through the history of his establishment of the bar-restaurant business that ultimately failed. He spoke of the business giving rise to a debt exposure between $600-750,000.[42] The Applicant also spoke of being approached by certain individuals who were prepared to lend him money to assist him to trade his way through the financial difficulties of the business. These individuals agreed to lend him “…between $100,000 and $200,000.”[43] The Applicant agreed that the exact sum advanced to him by these individuals “…was $155,000 to be exact.”[44]

    [42] See generally, Transcript, p22, lines 25-27

    [43] Ibid, lines 6-7.

    [44] Ibid, line 40.

12. According to the Applicant’s evidence in cross-examination, he needed this advance of $155,000 to meet immediately due debts of the business which had actually failed to survive for barely two trading years. He said he committed the offending conduct in May 2013 which, peculiarly, he said was more than three years after the end of the business venture:

    “MS CAMPBELL: So can you explain to the tribunal how you were in a position to pay back between 600 and $750,000?

    APPLICANT: No, no, no, you’re misunderstanding what I’m saying.  The total debt of what I lost wasn’t 650,000.  What I owed them was between 100 and 200,000.  It was 155,000 to be exact.  So that money that I owed them was the agreement that if I introduce and become involved in the folly that it was, that the debt would be cleared, and then, like I said, it was for financial gain.  So it was to clear my debts.  So that’s the ‑ that’s what was involved.  So when it says that I had no debts, I didn’t have any debts, except for the legal fees.

    MS CAMPBELL: So at what point did they put this proposition forward?  That if you went ahead with this importation activity, that your debt of 155,000 would be waived?

    APPLICANT: Like is said to you, it was a couple of months after the restaurant failed.  So I’m not…

    MS CAMPBELL: Okay, so your evidence before was that the restaurant didn’t even last two years, is that right?

    APPLICANT: Correct, yes.

    MS CAMPBELL: So your offending behaviour occurred in May 2013…?

    APPLICANT: Yes.

    MS CAMPBELL: Which is more than three years after the end of the business venture?

    APPLICANT: Yes, so the business venture closed at the start of 2011.

    MS CAMPBELL: No, so your evidence before was that the business venture didn’t even last two years, and you said it started in 2008?

    APPLICANT: Yes, but like I said ‑ the business venture shut its doors with a little over two years.  I think it started in 2008, mid‑2008.  If I’m correct.  It was a while ago.  I think we opened our doors in March 2008, if I’m correct.  Like I said, it was a while ago and it was ‑ but in saying that, yes, so it took close to two years for the business to collapse, the doors to shut, and then, yes, they approached me, maybe ‑ I’m not too sure how long after it was that I got approached.

    MS CAMPBELL: Well, you said before that it was a couple of months after the business closed?

    APPLICANT: Yes, a couple of months.  Yes, a couple of months.  Contact was made, but the offer wasn’t made straight away.  So contact was made.  How are you doing?  How’s things?  This nature.  Getting a feel for me.

    MS CAMPBELL: So why is it that they’d approach you a couple of months after the business ‑ so say, 2010, early 2011 max?

    APPLICANT: Yes.

    MS CAMPBELL: Why is it that it took, then, two‑and‑a‑half years later for these offences to arise?  Is there activity in between that the tribunal’s not aware of?

    APPLICANT: There’s no activity.  What there was, leading up to the event, was ‑ I acted as a go‑between for them, so…”[45]

    [45] Transcript, p22, lines 37-45; p23, lines 1-34.

13. The cross-examination then evolved into questions about the lifestyle the Applicant and his family were enjoying in the circumstances of a failing or failed business. For example, he was taken to his income tax return for the 2014 year of income which disclosed the purchase of an Audi Q7 motor vehicle in 2010 for $57,000. As best as I understood his evidence in cross-examination, the Applicant sought to explain that purchase on the basis of it being part of his overall matrix of debt arising from and/or relating to the failed bar-restaurant business:

    “MS CAMPBELL:  Yes, so Mr McGlone, I’ll just as the question again.  So the question is, if you were in a position to purchase an Audi of 57,000, 2009/2010, around the time of the failed restaurant venture, why were you not in a position to repay your debt of $155,0000?

    APPLICANT: Why wasn’t I in a position?  I basically lost everything through the business.  So yes, the business was lost.  The leasing on the car was still there, which was obviously a lease through a business.  So that’s my answer, yes.”[46]

    [46] Transcript, p26, lines 35-40.

14. With further reference to this lifestyle theme, the Applicant was then asked about how, in the circumstances of a failed or failing business where he apparently lost everything, he was able to afford the rent in a suburb in Sydney’s eastern suburbs. This rental was at the rate of $1,700 a week or $6,800 per month. According to the Applicant this rental was being paid through income that he and his wife were deriving as personal trainers:

    “MS CAMPBELL Okay.  And at the time of the offences in 2013, the sentencing remarks say that you were living in a house in [address redacted], is that right?

    APPLICANT: That’s correct, yes.

    MS CAMPBELL: So looking this up, this house seems to be a few streets back from the beach in Bronte, is that right?

    APPLICANT: Yes, it’s about four streets back from the beach.  The lease was for, I think it was a 12 month lease.  Upon my incarceration, the lease was nearly finished.  I think the rent, at the time, was about $1700 or something around those ‑ along those lines.

    MS CAMPBELL: A week?

    APPLICANT: A week, yes, that’s correct.

    MS CAMPBELL: So…?

    APPLICANT: And it was getting ‑ sorry.

    MS CAMPBELL: So you would…?

    APPLICANT: That was getting paid through my partner and I.  She was very successful in her business, and I was personal training and ‑ and yes.

    MS CAMPBELL: Okay.  So what was your wife doing at the time?  What was her employment?

    APPLICANT: She was PT-ing as well.

    MS CAMPBELL: PT?

    APPLICANT: Yes.

    MS CAMPBELL: And was she working full‑time?

    APPLICANT: She was working full‑time, yes.

    MS CAMPBELL: Yes?

15. APPLICANT: At the time, she was committed to some training to do with Surf Lifesaving and along that nature, so she was supplementing her training with PT with the Surf Lifesaving.  So yes, she was pretty busy.”[47]The cross-examination of the Applicant then evolved into questions about his past difficulties with illicit drug abuse, particularly cocaine, together with his difficulties with significantly scaled gambling. First, with reference to his issues with illicit drugs, he was taken to Ms Cullen’s report where she noted that he started abusing illicit drugs between 2008 and 2010 when the business was failing. He gave evidence of his abuse of cocaine escalating in seriousness such that by 2013, he was spending in excess of $1,000 a week on illicit drugs (primarily cocaine). He agreed that his escalating cocaine habit was directly attributable to the financial pressure that he was experiencing as a result of the accumulated and accumulating business debt. He readily agreed that he turned to the abuse of illicit drugs as a coping mechanism to deal with that stress.[48]

    [47] Transcript, p27, lines 4-31.

    [48] See generally, Transcript, p27, lines 44-47; p28, lines 1-39.

16. He was specifically asked about why he would not revert back to using cocaine as a coping mechanism if returned to the community. He responded with a suggestion that if he wanted to return to abusing illicit drugs while in criminal custody or immigration detention, he could have easily done so. His rather simplistic response to this question was to suggest that ‘…I’ve managed to eliminate them [i.e drugs] from my life, and other than being here, my life is going pretty good at the moment, so. And that has a lot to do with it. Yes.’[49]

    [49] Transcript, p28, line 47; page 29, lines 1-2. See generally, Transcript, p28, lines 41-47; p29, lines 1-4.

17. The evidence of the Applicant about having ‘eliminate[d]’ the element of illicit drug abuse from his life did not sit squarely with what he had told a Corrective Service Officer in June 2021. The following transpired between him and the Applicant representative in cross-examination:

    “MS CAMPBELL:  Thank you.  So is that page 72?  I just can’t see the ‑ yes, a few pages on.  Yes, perfect.  That’s it, yes.

    So Mr McGlone, this is a case note report by Corrective Services dated 21 June 2021 based on a conversation that you had with one of the Corrective Services officers.  So I just want to read out a sentence contained within that text, and then, just ask you a couple of questions.  It’s a bit hard to point it out easily, but it appears in the middle of the first paragraph, and it starts with, “Richard advised on his release”.  So I probably can just read it out without you following along, because it is only one sentence?

    APPLICANT: Yes.

    MS CAMPBELL: Thank you very much?

    APPLICANT: Yes.

    MS CAMPBELL: ‘Richard advised, on his release, he needs support with his substance abuse, acknowledging even though he has been abstinent with drugs, his true test will be the return to his environment with the external influences present.’?

    APPLICANT: Yes.

    MS CAMPBELL: Do you agree with this?

    APPLICANT: Like I said, I’m ‑ I know I feel great.  I still know the challenges involved and I’m more than happy to ‑ yes, I do agree that I still have challenges ahead of me.  So I know it’s going to be a stressful environment if placed back into the community.  I understand these things are ‑ that’s why part of my parole is to undertake any counselling or courses that they deem fit for me to undertake.  I fully understand the seriousness of the issue, and that’ s why I’m fully prepared to deal with it in any way the Parole deem fit for me to deal with it.”[50]

    [My emphasis]

    [50] Transcript, p29, lines 38-47; page 30, lines 1-18.

1. Sub-paragraph 9.2(1)(b): the Applicant was born in New Zealand and, as mentioned, came to Australia as a six year old over some 40 years ago. On the one hand, he can validly say that he has lived his life predominantly in Australia with minimal life experience in New Zealand. On the other hand, his movement records indicate frequent trips to New Zealand. Be all of this as it may, it is difficult to accept that the Applicant will be confronted with any language or cultural barriers upon a return to New Zealand. As has been found by this Tribunal (differently constituted) in a previous case: “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…]”[149] I am therefore not of the view that the Applicant will face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand. This sub-paragraph 9.2(1)(b) weighs neutrally.

   [149] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), para [101].

2. Sub-paragraph 9.2(1)(c): to the extent that the Applicant may require social and/or economic support in New Zealand, he will have available to him precisely the same such support as is available to other citizens of New Zealand. It is a country with, broadly speaking, similar systems and institutions of social welfare, other government support and public health facilities as Australia. The Applicant is – at present, at least – in good physical health and while reasonably good mental health. Should he require publicly available medical support in that country, he will have access to both physical and psychological treatment facilities at or about the same extent to which he may have become accustomed in Australia. Once again, the above mentioned Tribunal decision of Tera Euna and Minister for Immigration and Border Protection[150] becomes relevant:

   “New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”[151]

   [150] Ibid.

   [151] Ibid, para [101].

3. The evidence also reveals that the Applicant’s parents have a significantly sized extended family in New Zealand. The Applicant has a nephew living in New Zealand with whom he has a close relationship. He also gave oral evidence about his sister in New Zealand from whom he is currently estranged but has not always been so estranged historically. The evidence suggests that the Applicant and his sister have, in the past, enjoyed a very close relationship with her providing support to the Applicant’s wife in caring for his children at certain stages during his incarceration. It can also be noted that the Applicant’s work in Australia – mainly in the area of self-employment in the personal training field – is work that can be readily transferred and performed in New Zealand. Accordingly, this sub-paragraph 9.2(1)(c) weighs only moderately and not determinatively in favour of the Applicant.

4. Having regard to my findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it – put at its highest – confers only a moderate, but not determinative, amount of weight in favour of revocation of the delegate’s decision under review.

   Other Consideration (c): Impact on victims

5. Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

6. In terms of utilisation of this particular Other Consideration (c) against the interests of the Applicant, it should be noted that the Respondent has not called any evidence about any impact which the Applicant’s continued presence in Australia would have on his victims. In the absence of such evidence, I will not enter the realm of conjecture and embark on a course of speculation about the extent of any impact this Applicant’s offending has had, or would have, on any of its victims.

7. The next question is whether this Other Consideration (c) can possibly be applied in the Applicant’s favour or, in the alternative, rendered neutral. The Applicant’s former de-facto spouse, Ms Paige Dowd, has provided both oral and written evidence to this proceeding. It will be recalled that Ms Dowd was the victim of the Applicant’s domestically violent conduct perpetrated in July 2006. The history of the Applicant’s relationship with Ms Dowd is neatly summarised in the first report of Ms Cullen which dates from 2 October 2020 and which was prepared for the Applicant’s second sentencing hearing on 13 November 2020. Ms Cullen recorded the following:

   1.2 Significant Relationships

   1.2.1 Ms Paiqe Dowd
   Mr McGlone reported that at age 19 years, he met Ms Dowd who was nine (9) years his senior. He advised that they commenced dating and shortly after conceived with their first son, Djanni (currently aged 23 years). During their seven (7) year union, Mr McGlone reported that they had two (2) further sons; Maia (currently aged 20 years) and Kahi (currently aged 18 years). Mr McGlone described their relationship as “volatile” and explained that he "was basically turning into my father. I didn’t want to be miserable and take it out on my kids”. He attributed much of their instability
   to her “baggage” from a prior relationship which resulted in suspicion and a lack of trust. Mr McGlone identified that, in light of his value of loyalty, such doubts really "hurt me”. Mr McGlone ascribed these various reasons to the dissolve [sic] of their relationship.

   Following their separation, Mr McGlone advised “it was pretty messy. I returned to live in my unit with my parents. We had shared care which was horrible for the boys, they were a bit unsettled”. He confirmed that this arrangement continued right up until his arrest in May 2013. Mr McGlone explained that his younger two (2) sons both attended "[school name redacted] school" after successfully obtaining “Indigenous Scholarships for Rugby". Mr McGlone confirmed that, during his incarceration (for the index offence) all three (3) of his sons visited him in gaol. He stated he made “a full disclosure to them so they knew everything. I realise it would've been hard” for them.” At the time of the current assessment, Mr McGlone confirmed that his eldest son “lives in [location redacted] with his girlfriend, Maia lives with me and Kahi lives with his mother". He described being "as tight as anything with my boys. I have daily contact with them." We are all very close and they love their sisters”.[152]

   [152] R1, p 277.

8. Ms Dowd’s written statement dates from 6 October 2016 and makes reference to the extent to which she has come to rely on the Applicant’s support in assisting her to care for the three sons they have together. It should be remembered that this statement predates Ms Cullen’s abovementioned report by some four years so in this statement Ms Dowd is referring to the three male children (i.e., the three biological sons she and the Applicant have had together) at an earlier stage of their life:

   “Richard takes the responsibility of his kids seriously. He always did his best to positively contribute to every aspects of his children’s lives. Even during the weeks that the kids were with me he would call them individually every day in order to speak to them. He also would take them out to eat and train. In this way he has instilled into his sons strong morals and family values such as sensitivity, thoughtfulness, generosity, trustworthiness and teaching them to live a positive healthy lifestyle.

   It has been very difficult to manage without Richard’s presence and support. I am struggling to care for my 3 teenage sons full-time and Richards [sic] absence from our family and his current wife’s family is making it very difficult for his children. It is a struggle every day for me to raise these kids without a father.”[153]

   [153] Exhibit A6.

9. During Ms Dowd’s oral evidence at the hearing, she spoke of the Applicant’s on-going support for the children they have together. During her evidence in chief, Ms Dowd spoke of having known the Applicant for more than 28 years. She also spoke of his qualities as a father and about his particular moral beliefs and family values:

   “MS DOWD: His - Rick’s character to me, and I still have that opinion of him is, you know, he’s well educated, he was a great sportsman when I met him, he is a loving person, he loves his children, he’s very kind and caring.  He is giving, he has supported me throughout the years, even when I haven’t been with him.  He has a gentle nature, he has got a lot of good qualities and he - to me, he’s a very positive person, considering everything, you know.  During that time, he - you know, he’s a very good father, he loves his kids, he’d do anything for his kids or his family.

   MS LEWIS: Yes, okay?
   MS DOWD: So he’s - he had strong cultural and family values.
   MS LEWIS: Yes?
   

   [154] Transcript, p 144, lines 45-47; p 145, lines 1-13.

   MS DOWD: He’s got very good moral beliefs around family and culture.  His family is important to him, family is his everything.  And that’s a very important issue coming from me because, you know, we’re both - well, Rick is of Maori decent [sic] and I am of Aboriginal decent [sic] and family is a very important part of our upbringing and our lives.”[154]

10. Ms Dowd also gave evidence about the functionality that continues to exist between her and the Applicant, not just in terms of their efforts to parent their now-adult three children, but also in terms of the extent to which the Applicant has included Ms Dowd as part of the blended family he now has with Ms McGlone:

    “MS DOWD: Yes, yes, we’re a close family, look, we might - I don’t know if that’s strange to you guys in there but, you know, we’re a very close knit functional blended family.  We’ve all worked very hard to keep that for our children.  You know, like he has three daughters with Jody and three sons with me, but we’re all one family, I am the ex, yes, Jody is his wife, yes, but we’re all mature about it, we’re grown, we’ve grown up, we’re mature about it, we’re doing the best thing possible for these children and for ourselves.  And they all know me, I all know them, we all together, we’re family.  That’s the way it is.”[155]

    [155] Transcript, p 149, lines 16-24.

11. There is authority for the proposition that the Tribunal can take into account evidence from a victim which speaks favourably about an applicant remaining in Australia. I am mindful of the comments of His Honour Justice Kerr in PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to this effect:[156]

    “[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.

    [58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.

    [59] Usually, but not always.”[157]

    [156] [2021] FCA 1235.

    [157] Ibid, paras [57]-[59].

12. I am of the view that it is safe to make reference to and place reliance upon the evidence of Ms Dowd – the Applicant’s former spouse, mother of his three adult sons and victim of his family violence conduct – wherein she positively implores the Tribunal not to remove the Applicant to New Zealand. I therefore accordingly allocate a moderate, but not determinative, amount of weight to this Other Consideration (c) in favour of revocation of the delegate’s decision under review.

    Other Consideration (d): Links to the Australian Community

13. Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.

14. There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.

    (1)     Strength, nature and duration of ties

15. With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.

    1. Impact of non-revocation on the Applicant’s immediate family

16. This first exercise requires identification of the Applicant’s immediate family in Australia. In his PCF, the Applicant identifies the following immediate family members in Australia:

    ·His mother and his father;

    ·His two sisters;

    ·His brother;

    ·His three adult sons; and

    ·His above-mentioned wife, Ms Jodie McGlone.

17. There can be little to cavil with the proposition (and finding) that the Applicant is the quintessential “family man”. The fact that he is responsible for very serious offending in Australia does not change that reality. He is loved and respected by not just his current wife, Ms McGlone, but his former partner (Ms Dowd) as well. Both mothers of his biological children speak very highly of his strong family ethic and of his devotion to the wellbeing of not just his current family with Ms McGlone, but of the family he had (and, of course, still has) with Ms Dowd. There is no need to repeat the evidence of Ms Dowd about the Applicant. It speaks for itself. There can be no challenge to either the written or oral evidence of Ms McGlone which, parallel to that of Ms Dowd, speaks very highly of the Applicant as a homemaker, parent and provider.

18. A similar finding can be made about the Applicant’s parents. This is what he said during his evidence-in-chief:

    “MS LEWIS: Okay.  And how about your own mum?  Will she be all right?

    THE APPLICANT: Yes, mum’s good.  Mum’s good. 

    MS LEWIS: She’s ‑ ‑ ‑(Indistinct) ‑ ‑ ‑?

    THE APPLICANT: She’s had to come back and help our my wife with the raising of your kids and the daughters ‑ and some of my sons, sorry.  They have a really close bond.  Yes, she’s very firm.  She’s got a lot of love to give as well, so.  And my wife and her ‑ I’m lucky that my mum and my wife get along really well.  They’re very close as well, so.  But my mum’s not well. So you know, she lives with me.  I’m stuck in here.  It’s hard for me to help her and take care of my mum.  The last thing I want to do is just be able to take care of my mum.  Yes, so these things weigh heavily on me.”[158]

    [158] Transcript, p 18, lines 37-47.

19. In her statement, the Applicant’s mother noted:

    “It would be devastating to separate this family; especially for his daughters who really need their Dad. Jodie needs her husband home with the family to protect, provide and support their children. I hope and pray the outcome will see this family remain together.”[159]

    [159] A3, document 8.

20. Each of the Applicant’s three adult sons have provided written statements and they appear in the material. The names of the sons are Djanni Dowd,[160] Kahi Dowd[161] and Maia Dowd.[162] Maia also provided oral evidence at the hearing. To my mind, the flavour and extent of the evidence provided by the Applicant’s three adult sons is captured by two paragraphs from the statement of Djanni. Those two paragraphs read thus:

    “[6] Over the years we have spent quality time with each other as have our sisters. Dad used to eat with us twice a day and we would always train together. Dads’ positive advice always lifted my spirits and gave me hope that one day I would make him proud and be the man he knew I could be. Dad has created many quality memories with all of us. He has taught me to be patient especially when things don’t go your way. Dad has taught me how to be a man and how to deal with issues when they arise. I have grown into the man I am today because of his guidance and to think that my brothers and my little sisters will have to miss out on the opportunity of having him around would be devastating. I love my dad and so do my brothers and my sisters; he is a good man with a good heart who made a mistake and has paid for it, and he has encouraged us not to do the same.

    [7] My father deserves another opportunity to be a more positive citizen. He desrves to be given an opportunity to be a great role model not only his children by for many other people in the community. Dad can be a law-abiding citizen and he has worked hard on himself so that he can be, Dad just needs to be given the opportunity to do so. Australia is my father’s home, and his life is here with his family and his children. Our families need to be together and happy again. We have all been through enough and we deserve our second chance. Life will never be the same if dad is not in our lives.”[163]

    [160] See Exhibit A3, document 5, Statutory Declaration made on 26 July 2022.

    [161] See Exhibit A3, document 6, Statutory Declaration made on 26 July 2022.

    [162] See Exhibit A3, document 7, Statutory Declaration made on 26 July 2022.

    [163] A3, document 5, pp 2-3.

21. The Applicant’s brother, Mr Morgan McGlone, has provided both written[164] and oral evidence for this hearing. Mr Morgan McGlone is the Applicant’s older brother and former business partner. He is aware of the Applicant’s offending which has led to his current situation. He and the Applicant were business partners but became estranged for many years. They have recently reconciled. During the times the Applicant was not incarcerated (but awaiting re-sentencing in November 2020) Mr Morgan McGlone says the Applicant got to know, and developed a strong connection with, his son. His written statement concludes with these words: “He will always be my brother and that’s something I’m very proud of saying, he will also always be a positive influence on my son and his immediate family.”[165]

    [164] A4, document 4.1.

    [165] Ibid.

22. This conciliatory tone is also apparent from Mr Morgan McGlone’s oral evidence which was to this effect:

    “MS CAMPBELL: Yes, so I guess, maybe, the focus more so on the personal differences?

    MR MORGAN McGLONE: Personal differences that we had a restaurant together, I was - we had a restaurant together, it failed, I blamed him, he blamed me, we had a bit of a, you know, an argument about it.  We’re both very stubborn.  So instead of trying to work it out, we just left - we let it go and then, next thing you know he’s incarcerated, and I didn’t know anything about that. So I wasn’t talking to my brother at that time, so when I find out through my mum, obviously, we have - we talk to our mum, but we would never see each other.  We both had our separate lives.  The difference is that I worked - I didn’t know what my brother was up to, I worked and that’s what I’ve always done. So the difference is that I have always just worked and, I guess, in a sense, I’ve done things honestly and, you know, we had an argument, we had a - and we’re both very stubborn, we just didn’t talk to each other for 10 years. But I think, you know, we both had some time to reconsider that, you know, it was probably kind of a stupid thing what we were fighting over and that, you know, it’s more important that we’re both brothers and I want to support my brother, I still love my brother and, you know, that’s what it comes down to, I guess.”[166]

    [166] Transcript, p 135, lines 46-47; p 136, lines 1-18.

1. Having regard to the state of the evidence around the Applicant’s immediate family in Australia, I am safely led to the view (and finding) that the strength, nature and duration of his ties to those particular immediate family members in Australia carries a heavy, but not determinative, level of weight in favour of revocation. I make this finding on the presumption that each of the abovementioned immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   2. Strength, nature, and duration of “other ties” – length of residence

2. There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia with his family some 42 years ago when he was aged four. I have earlier summarised his movements in and out of Australia during his time here. It is safe to find that he has spent the overwhelming period of his life in Australia.

3. The second inquiry involves an application of the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those sub-elements requires me to allocate less weight if the applicant began offending soon after he arrived here. This is clearly not the case and this first sub-element should be put to one side and rendered neutral. The second of the two tempering sub-elements requires an assessment of the Applicant’s positive contributions to the Australian community. I have already found that he has a solid history of employment in Australia and, as a result, can be safely found to have made his contribution to the Australian community via the taxation he would have paid on those earnings.

4. He has also made contributions to the community whether it be via his personal training business activities where he has acted not just as a trainer but also as a kind of life coach and support-person for people who often have a lifelong struggle with their weight and personal fitness issues. More broadly, he has made a contribution to the community by his involvement in Surf Lifesaving or via his coaching of rugby union teams. This second tempering sub-element can certainly be applied in favour of this Applicant. As mentioned, he has made positive contributions to the Australian community via taxation paid on his employment earnings and via his community-based activities and via the “life coach” role he has played for people who have consulted him about their personal fitness.

5. Thus, while the first tempering sub-element can be found to be neutral, the second one should be applied in his favour towards a finding that this Other Consideration (d) carries a heavy, but not determinative, level of weight in favour of the revocation of the mandatory cancellation decision under review.

   3. Strength, nature, and duration of “other ties” – family and other social links

6. In his PCF, the Applicant noted that in terms of “close family members including in-laws, cousins, grandparents and uncles/aunts”, the Applicant noted the following:

   ·His mother-in-law;

   ·His two brothers-in-law;

   ·His two nephews;

   ·His god daughter; and

   ·“20” cousins.[167]

   [167] R1, p 178.

7. There are a number of support letters in the material which are from people who fall within this particular category of “other ties” the Applicant has in Australia. They comprise:

   ·Ms Kerri Baker, who is the Applicant’s mother-in-law.[168] She speaks favourably of the Applicant’s qualities as a family man. She describes the Applicant’s family as “…an extremely close knit family network and it would be disastrous to Jodie [the Applicant’s wife] and the children’s mental health if this family was to be permanently separated.”

   [168] Her Statutory Declaration made on 26 July 2022 appears at A3, document 9 – all quotations in this sub-paragraph are from this document.

   ·Ms Leila Elali is a close friend and family friend of the Applicant who has known him and his six children for about eight years.[169] She notes that the Applicant’s family has struggled without him and that he has always had a “…hands-on close relationship with all his children.” She adds that “It would be devastating to separate this family; especially for his daughters who really need their Dad. Jodie needs her husband home with the family to protect, provide and support their children. ”;

   ·Cameron Airlie had known the Applicant (and his current wife) personally for 20 years.[170] He is a personal training customer who trained twice a week under the guidance of the Applicant and his current wife. He says they helped him stay in good physical shape “…but more importantly cleared my mind which it vital in a stressful high-pressure industry.” (Mr Airlie works in the real estate industry);

   ·Ms Georgie James is a Senior Social Worker who provided both written[171] and oral evidence for this hearing. She has been a personal training client and a close friend of the Applicant for 10 years. She is aware of the nature of his unlawful conduct and the impact it has had on his family. Her written and oral evidence reads very favourably towards the Applicant. She also speaks of their mutual families enjoying a social connection;

   ·Mr John Restuccia OAM is the Deputy president of Surf Lifesaving NSW.[172] He has provided two written statements, one dated 2 February 2021 and the other dated 29 July 2022. He regards the Applicant as “…the rock for the family…”. He also speaks of the Applicant as playing “…an integral role as the head of the house and a loving husband and father.”;

   ·Mr Heath James was introduced to the Applicant in 2019 for personal training and fitness purposes.[173] He was a professional sportsman playing in the AFL for seven years. During the course of their training sessions, Mr James says he and the Applicant “…discussed a range of topics that were profound, emotive and I feel cathartic not only for Mr McGlone, but also myself.” He notes that the Applicant’s personal training business “…had a very strong sense of community which he created, instigated, promoted and embodied.”;

   ·Mr Rhys Gordon has known the Applicant for many years and “…was shocked at his charges and incarceration.”[174] He believes the Applicant “…has more than learnt the lessons of previous actions and has a mission for his remaining time to be a positive role model not only for his family and friends but the community in general.”;

   ·Mr Amon Buchanan is a Senior Assistant Coach at the GWS Giants AFL football team. Mr Buchanan provided both oral and written[175] evidence for this proceeding. He has known the Applicant “…for many years…”. He is also a personal training client of the Applicant whom he notes “…teaches his clients with care and empathy and adds value to not only individuals but our community which is so vital, especially in these uncertain times.” He considers that the Applicant has – via the caring and holistic approach he takes towards his personal training work – had a “…really positive impact on the lives of others.”;

   ·Ms Maria Stathakis provided both oral and written[176] evidence for this proceeding and has known the Applicant for “…almost 20 years both professionally and personally, as my personal trainer and friend.” She is of the view that “…it would be the greatest loss to all of [the Applicant’s] family and friends to lose such a wonderful man. He has so much more to contribute to his community.”;

   ·Mr Pritchard Seau is a detainee at the Villawood Detention Centre. He met and became involved with the Applicant at Villawood via the Applicant’s training session activities with other detainees. He says “We have become close since meeting…” and that the Applicant “…is a good man and just wants to move on with his life and try to contribute positively to society.”[177]; and

   ·Mr Tariqul Islam is also a detainee at Villawood. He also met and became involved with the Applicant via the Applicant’s personal training activities at the Villawood facility. Mr Islam says the Applicant’s “…training is only a small part of what [the Applicant] has to offer. He is someone I believe is sincere when he asks you how you are feeling. …He only wants the best for the people he has become close to.”[178]

   [169] Her statement made on 23 July 2022 appears at A3, document 10 – all quotations in this sub-paragraph are from this document.

   [170] His statement made on 22 July 2022 appears at A3, document 11 – all quotations in this sub-paragraph are from this document.

   [171] Her statement made on 28 July 2022 appears at A3, document 12 – all quotations in this sub-paragraph are from this document.

   [172] His statement made on 29 July 2022 appears at A3, document 13 – all quotations in this sub-paragraph are from this document.

   [173] His statement made on 27 July 2022 appears at A4, document 4.2 – all quotations in this sub-paragraph are from this document.

   [174] His statement made on 15 August 2022 appears at A4, document 4.3 – all quotations in this sub-paragraph are from this document.

   [175] His statement made on 29 July 2022 appears at A4, document 4.4 – all quotations in this sub-paragraph are from this document.

   [176] Her statement made on 29 July 2022 appears at A4, document 4.5 – all quotations in this sub-paragraph are from this document.

   [177] His statement made on 16 August 2022 appears at A4, document 5.1 – all quotations in this sub-paragraph are from this document.

   [178] His statement made on 18 August 2022 appears at A4, document 5.2 – all quotations in this sub-paragraph are from this document.

8. I am of the view that it can be safely found that were the Applicant to be removed to New Zealand each of the abovementioned statement-makers comprising the Applicant’s remaining family and social links in Australia would be adversely impacted by the Applicant’s removal. This third component of Other Consideration (d) facilitates the allocation of a strong, but not determinative, level of weight towards revocation of the decision to mandatorily cancel his visa. I make this finding on the presumption that each of the abovementioned immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. [179]

   [179] With the exception of Mr Seau and Mr Islam.

   (2)     Impact on Australian business interests

9. I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.

   Weight allocable to Other Consideration (d): links to the Australian community

10. Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a heavy, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a heavy, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.

    Findings: Other Considerations

11. I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    (a)international non-refoulement obligations: not relevant;

    (b)extent of impediments if removed: carries a moderate, but not determinative, level of weight in favour of revocation;

    (c)impact on victims: carries a moderate, but not determinative, amount of weight in favour of revocation; and

    (d)links to the Australian community: carries a heavy, but not determinative, level of weight in favour of revocation.

    conclusion

    Is there another reason to revoke the cancellation of the Applicant’s visa

12. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

13. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: carries a very heavy level of weight against revocation;

    ·Primary Consideration 2: carries a heavy level of weight against revocation;

    ·Primary Consideration 3: carries a heavy, but not determinative, level of weight in favour of revocation;

    ·Primary Consideration 4: carries a very heavy level of weight against revocation;

    ·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 4 are sufficient to outweigh the combined weight I have allocated to Primary Consideration 3 and Other Considerations (b), (c) and (d);

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

14. Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

15. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 17 June 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

253.     

I certify that the preceding 252 (two hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

254.     

....................[SGD]....................................................

Associate

Dated: 30 September 2022

Date of hearing:	1, 2 & 7 September 2022
Solicitor for the Applicant:	Ms M Lewis (Principal Solicitor) Crossover Law Group
Solicitor for the Respondent	Ms C Campbell (Senior Associate) HWL Ebsworth Lawyers

Annexure A- Exhibit Register

EXHIBIT	PARTY	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	R	Section 501 G-Documents  (G1-G51, 421 pages)	Various	12 July 2022
R2	R	Respondent’s Statement of Facts Issues and Contentions (10 pages)	17 August 2022	17 August 2022
R3	R	Supplementary Section 501 G-Documents (SG1-SG4, 195 pages)	Various	17 August 2022
R4	R	Respondent Submissions (PC2) (6 pages)	7 September 2022	7 September 2022
A1	A	Applicant’s Material (Attachments A-AI, 285 pages)	Various	4 July 2022
A2	A	Applicant’s Statement of Facts, Issues and Contentions (25 pages)	29 July 2022	29 July 2022
A3	A	Applicant’s Supplementary Material (Attachments 1-22, 207 pages)	Various	29 July 2022
A4	A	Applicant’s Further Supplementary Material (Attachments 1-8.2, 58 pages)	Various	24 August 2022
A5	A	Applicant’s Statement of Facts, Issues and Contentions in Reply (8 pages)	24 August 2022	24 August 2022
A6	A	Applicant Additional Statement (2 pages) Letter of Support – Ms Paige O’Dowd (3 pages)	2 September 2022 6 October 2016	2 September 2022
A7	A	Applicant Submissions (PC2) (9 pages)	7 September 2022	7 September 2022

Annexure B – Procedural Directions made on 2 September 2022

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/5360
General Division	)

Re: Richard McGlone

Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs

Respondent

DIRECTION

TRIBUNAL:	Senior Member Theodore Tavoularis
DATE:	2 September 2022
PLACE:	Brisbane

The Tribunal DIRECTS that:

1. The hearing of this matter be adjourned to 7 September 2022 at 11:00am (Australian Eastern Standard Time);
2. On or before 10:00am on 7 September 2022, the parties must file and serve any written closing submissions on the specific issue of family violence with particular reference to paragraph 8.1.1(1)(a)(iii) and paragraph 8.2 of Ministerial Direction 90;[180]

[180] Direction No.90 – Migration Act 1958 (Cth) – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

3. Upon resumption of the hearing, on 7 September 2022, the Applicant be at liberty to:
1. call oral evidence from Mr Morgan McGlone; and
2. call oral evidence (if any) on the issue of family violence, provided the introduction of such evidence does not contravene the 2-day rule appearing in sections 500(6H) and/or 500(6J) of the Migration Act 1958 (Cth);
4. Following ventilation of the oral evidence contemplated by Direction 3, the Tribunal will then receive oral closing submissions from the parties.  Those oral submissions will be received in the following sequence:
1. Applicant’s oral closing submissions;
2. Respondent’s oral closing submissions;
3. Applicant’s oral closing submissions in reply (if any).

……………….… [SGD]……...…………..

Senior Member Theodore Tavoularis

Annexure C – Khalil decision made on 12 September 2022

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/5360
General Division	)

Re: Richard McGlone

Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs

Respondent

DECISION

TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   12 September 2022

PLACE:                    Brisbane

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act   1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 17 June 2022 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

..........................[SGD]...........................

Senior Member Theodore Tavoularis