McMahon and Minister for Home Affairs (Migration)

McMahon and Minister for Home Affairs (Migration) [2019] AATA 1532 (26 June 2019)
Division:GENERAL DIVISION
File Number: 2018/4119
Re:Gavin Vincent McMahon
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:26 June 2019
Place:Brisbane

The decision under review is affirmed.
...........................[SGD].............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – non-expedited matter – special category TY 444 visa – where visa was cancelled under s 501(3A) because Applicant had a substantial criminal record and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – risk of harm to Australian community – best interests of minor children – expectations of Australian community – decision under review affirmed
LEGISLATION
Criminal Code Act 1899 (Qld)
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Act 1958 (Cth)
Summary Offences Act 2005 (Qld)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166; 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Senior Member Theodore Tavoularis
26 June 2019
INTRODUCTION AND BACKGROUND

Mr Gavin Vincent McMahon (“the Applicant”) is a 25 year old New Zealand citizen. Movement records indicate that the Applicant was granted a Class TY, Subclass
444 Special Category (Temporary) visa (“the visa”) upon his arrival into Australia on
[1] Exhibit 6, s 501 G-Documents, G18, page 138.
13 December 2005.[1]
The Applicant has a criminal history in Australia which commenced in March 2011 and ran until November 2016.[2] His first sentencing episode came before the courts on 4 April 2011 while his final sentencing episode occurred on 20 June 2017. His offending was both multi-faceted in nature and consistently committed during its six-seven year duration. The offending culminated in him being sentenced to a term of five years’ imprisonment in December 2016. Further custodial terms were imposed on 20 June 2017.
[2] Ibid, G15, pages 122 – 127.
While serving a term of imprisonment, a delegate of the Minister, pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 26 June 2017 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[3]
[3] Ibid, G3, pages 12 – 71.
On 23 July 2017, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[4] The delegate of the Minister decided on
[4] Ibid G5, pages 75 – 79.
[5] Ibid G14, pages 104 – 121.
27 June 2018, pursuant to s 501CA(4) not to revoke the cancellation of the subject visa.[5]
The Applicant lodged an application with this Tribunal on 20 July 2018 seeking a review of the abovementioned decision dated 27 June 2018 not to revoke the cancellation of his visa.[6] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[6] Ibid G2, pages 3 – 11.
ISSUES
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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…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…”[8]
[7] [2018] FCAFC 151.
[8] 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).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9] I will address each of these grounds in turn.
[9] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
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 relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully either conceded or otherwise readily accepted that his offending was extensive and serious. I do not recall any significant objection from the Applicant to the Respondent’s contention that he did not pass the character test. For the purposes of the character test, there is no getting around the Applicant’s criminal history. More particularly, there is no getting around the respective custodial sentences of five years, three years and 12 months imposed by the Brisbane District Court on 12 December 2016. As mentioned earlier, further custodial terms were imposed on 20 June 2017.
The five year term was ordered to be suspended for an operative period of five years after the Applicant had served 18 months. The three year term was ordered to be suspended for an operative period of five years after the Applicant had served 18 months. The
[10] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
12 month term was ordered to be served concurrently with the earlier two multi-year sentences. It should be noted that although the five and three year terms were ordered to be suspended after 18 months, the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[10]
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
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 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[11] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[12]
[11] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision-makers, including this Tribunal, on and from 28 February 2019. The terms of respective Directions are largely identical. While the parties have made reference to the former Direction in their written material, the closely analogous nature between Direction 65 and 79 means that there is no material effect on those respective submissions.
[12] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[14]
[13] [2018] FCA 594.
[14] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens 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.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his National Police Certificate which appears in the material.[15] As mentioned earlier, it is an offending history that spans a six-seven year period.
[15] Exhibit 6, s 501 G-Documents, G15, pages 122-127.
The Nature and Seriousness of the Applicant’s Conduct to Date
I am of the view that the Applicant’s offending can be readily categorised as very serious. He is only 25 years of age, yet has compiled a lengthy criminal history in a relatively short (six-years) span of time. It is clear that his offending has come to dominate the better part of his adult life.
A careful examination of his criminal history demonstrates that with the passage of time, his offending has increased in seriousness. His early offending involved mainly property and dishonesty offences. It significantly escalated in severity into the very violent offending committed in the early part of 2016. This offending, inter alia, included an offence of grievous bodily harm. There can be no question that such offending falls within the ambit of paragraph 13.1.1(1) of the Direction as a crime of violence and is thus capable of being viewed very seriously.
The conduct giving rise to the grievous bodily harm involved the Applicant inflicting serious injury on the victim by repeatedly bashing him with a wooden baseball bat. The learned sentencing Judge, upon sentencing the Applicant:
·was moved to comment that the offending was “extraordinarily serious”[16];
·noted the victim required an operation to rectify the physical damage he sustained at the hands of the Applicant; and
·was reticent to view the photographs of the physical harm suffered by the victim as a result of the Applicant’s violence; so appalling were the victim’s injuries therein depicted.
[16] Ibid, G16, page 129, lines 4 – 6.
The Applicant’s violent offending is such as to attract the operation of this sub-paragraph (a) in favour of a finding that his offending is indeed very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1)), to the sentences imposed by the courts for a crime or crimes of a non-citizen/Applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant’s National Police Certificate demonstrates that his offending history has run from April 2011 until 20 June 2017. His offending across this approximately six year period has been such as to attract the imposition of custodial sentences in the cumulative sum of nine years upon his sentencing in December 2016 alone.
The imposition of the abovementioned custodial terms is sufficient to attract the application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts for the crimes of this Applicant are supportive of a finding that his offending to date is considered to be of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph

(e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I turn firstly to the frequency of the Applicant’s offending. His National Police Certificate demonstrates that the Applicant has found himself before lawful authority as a result of his offending on at approximately 18 occasions between April 2011 and June 2017. Approximately 38 offences were dealt with across the abovementioned approximately
18 sentencing episodes. There can be no finding other than that the Applicant’s conduct has clearly and obviously been of a frequent nature.
The next component of this sub-paragraph (e) involves ascertaining whether the offending involves a discernible increase in its seriousness. The usual trend seen in criminal histories coming before the Tribunal in matters such as these sees the offender committing mostly summary, regulatory and otherwise low-level offences in the first quarter or first third of the history, with a following increase in seriousness – most often involving the commission of indictable offences – from that point onwards.

The Applicant’s criminal history is not configured in this way. The very first offence he committed comprises the indictable offence “burglary and commit indictable offence” in the early part of 2011. The history does not materially “improve” for the remainder of its six-year span. It is thus very difficult to characterise the Applicant’s offending as in some way “graduating” in seriousness. It is consistently littered with convictions for indictable offences both against the person and the property of other persons, together with a number of offences relating to unlawful drugs and a refusal to either respect or comply with lawful authority.
Applied to this Applicant’s offending history, I am of the view that this sub-paragraph (e) of Paragraph 13.1.1(1) of the Direction is supportive of a finding that the frequency and severity of the offending – from its commencement – is such as to render it very serious indeed.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect or effects does or does not demonstrate the seriousness of the offending. One of the cumulative effects of the Applicant’s offending has been such as to place members of the Australian community directly into harm’s way. Those victims have suffered both actual and threatened harm. This aspect of the Applicant’s offending reached its crescendo on 5 January 2016, when the Applicant repeatedly struck his victim with a timber baseball bat and broke the victim’s elbow which required surgery to insert two plates, wires and pins. That sort of physical harm could well and truly have been catastrophic, involving loss of life.
Another cumulative effect of the Applicant’s offending involves a finding that he has failed to respect the lawful authority governing the Australian community into which he now seeks to be re-admitted. His National Police Certificate contains at least 10 instances of a refusal or failure to respect the lawful authority governing his conduct, be it in the form of: (1) a failure to meet the conditions of bail granted to him; (2) assaulting or obstructing a police officer in the course of their duty; (3) possessing a knife with a 10cm blade in a public place;[17] and (4) a relatively lengthy traffic history[18] containing numerous suspensions of his driving privileges and at least two instances of driving whilst unlicensed.
[17] Exhibit 5, Summonsed Material, Queensland Police Service, page 19.
[18] Ibid, pages 96-98.
A further cumulative effect of the Applicant’s offending involves an additional finding that he has failed to respect the property rights of others. His National Police Certificate contains at least 17 instances of a serious failure to respect the property rights of others, be it in the form of:
(a)“burglary and commit indictable offence”;[19]
[19] Pursuant to s 419(4) of the Criminal Code Act1899 (Qld), sentenced on 4 April 2011 and 20 June 2017.
(b)“trespass – entering or remaining in dwelling or yard”;[20]
(c)“wilful damage to property which is part of a school/education centre/college/university or other educational institution”;[21]
(d)“stealing”;[22]
(e)“attempted fraud – dishonest application of property of another”;[23]
(f)“fraud – dishonest application of property of another”;[24]
(g)“wilful damage”;[25]
(h)“enter dwelling with intent by break at night whilst armed in company”;[26]
(i)“enter dwelling with intent by break at night uses/threatens violence whilst armed in company damages property”;[27]
(j)“fraud – dishonestly obtains property from another”;[28] and
(k)“receiving tainted property”.[29]
[20] Pursuant to s 11(1) of the Summary Offences Act2005 (Qld), sentenced on 5 October 2011.
[21] Pursuant to s 469.10(1) of the Criminal Code Act1899 (Qld), sentenced on 14 August 2012.
[22] Pursuant to s 398 of the Criminal Code Act1899 (Qld), sentenced on 11 June 2015 and 25 May 2016.
[23] Pursuant to s 408C(1)(a)(i) and s 535 of the Criminal Code Act1899 (Qld), sentenced on 25 May 2016 and 20 June 2017.
[24] Pursuant to s 408C(1)(a)(i) of the Criminal Code Act1899 (Qld), sentenced on 25 May 2016.
[25] Pursuant to s 469 of the Criminal Code Act1899 (Qld), sentenced on 12 December 2016.
[26] Pursuant to ss 419(1),(2),(3)(a) & (3)(b)(ii) of the Criminal Code Act1899 (Qld), sentenced on 12 December 2016.
[27] Pursuant to ss 419(1),(2),(3)(a) & (3)(b)(i) of the Criminal Code Act1899 (Qld), sentenced on 12 December 2016.
[28] Pursuant to s 408C(1)(b) of the Criminal Code Act1899 (Qld), sentenced on 20 June 2017.
[29] Pursuant to s 433(1) of the Criminal Code Act1899 (Qld), sentenced on 20 June 2017.
The application of this sub-paragraph (f) to the present factual matrix that features:

(1) placement of members of the community in harm’s way; (2) the occasioning of actual and serious (and potentially catastrophic) harm to those community members; (3) a demonstrative failure to respect lawful authority; and (4) a failure to respect the personal and property rights of others, clearly militates in favour of a finding that the cumulative effect of the Applicant’s repeated offending is such as to render it very serious.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, can, to my mind, be properly informed by the nature of his offending apparent in his criminal history to date. I am mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Even a cursory view of his criminal history confirms the Applicant to be a serious repeat offender. His history of offending in this country spans virtually the entirety of his adult life prior to his incarceration in December 2016 and June 2017 and his return to New Zealand in mid-2018 after serving a custodial term of 18 months. I have earlier outlined the nature of his offending. Were he to re-offend, members of the Australian community could be realistically harmed as a result of the Applicant’s unresolved disposition towards crimes of violence, dishonesty, stealing, burglary, wilful destruction of property, together with his summary and traffic offending.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I accept the Respondent’s contention that the Applicant presents an unacceptable risk of re-offending. At the heart of this risk is the Applicant’s unresolved issues with alcohol. During the hearing, the Applicant helpfully accepted that: (1) he has “100% had an issue with alcohol”; and (2) he has been drinking significantly since the age of 16 and that he started consuming alcohol at the age of 13.
The principle difficulty with arriving at any other finding about the Applicant’s risk of recidivism other than it being “unacceptable” arises from the absence of any genuinely probative evidence of the Applicant undergoing any rehabilitation to address the issue. Thus, I agree with the Respondent’s following contention: while the quite incomplete and insufficient nature of the Applicant’s rehabilitation remains as it is, there is a greater than remote risk of him re-offending.
While the Applicant appears to have received some measure of rehabilitative treatment during his 18 month period in criminal custody from December 2016 onwards, that asserted rehabilitation has only been tested in the relatively closed circumstances of criminal custody. It is yet to be tested in the broader realm of the Australian community. Were the Applicant’s visa status to be restored to him and were he allowed to return to Australia, there is some measure of comfort that his time at large in the community would be conditioned by ongoing probation requirements. But those requirements, in and of themselves, are not determinative of any definitive finding about the Applicant’s risk of recidivism.
The evidence does disclose some limited attempts at rehabilitative treatment. In his letter of 21 October 2016, the General Practitioner, Dr David Blackburn, noted these things in a certain Medical Certificate:
“Medical Certificate
21/10/2016
THIS IS TO CERTIFY THAT
Mr Gavin McMahon is being treated for a medical condition related to mental health. He has been diagnosed with chronic PTSD with Major Depressive Disorder and substance abuse. He is currently being treated under a Mental Health Care Plan and will be attending psychological counselling at Head Space. He has previously sort [sic] help with psychologist Dr Andrea Boros-Lavack and was referred to the Nambour Hospital for inpatient assessment and treatment. He has attended counselling for EtOH abuse at UCC. He was commenced on psychotropic medication a few weeks ago and is currently functioning well…
Dr David Blackburn
MBBS…”[30]
[30] Exhibit 6, s501 G Documents, G31, page 185.
Further, the evidence discloses a certain formal assessment of the Applicant’s offending in the form of a Queensland Corrective Services (“QCS”) “Completion Report”.[31] This report talks about the Applicant’s completion of a Low Intensity Substance Intervention Program during the period 14 August 2017 to 26 September 2017. This report further noted that a Rehabilitation Need Assessment was carried out on 24 February 2017. This assessment identified substance abuse as a rehabilitation need because the Applicant’s “…substance abuse [was] considered to be proximate to his offending behaviours.” This assessment was updated and verified on 4 September 2017.
[31] Ibid, G32, page 186.
QCS then rated the Applicant’s “Risk of Re-offending (RoR) of 15” and thought he “…meets the agency criteria for the Pathways: High Intensity Substance Abuse Program.” The QCS then confirmed “Prisoner McMahon is currently wait-listed for Pathways: High Intensity Substance Abuse Program.” As noted by the Respondent, there is no evidence that the Applicant has completed that program.[32]
[32] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), para [37].
There also seems to be some evidence that since his return to New Zealand, there has been something of an effort at rehabilitation. His Probation Officer in New Zealand noted in her undated letter:[33]
[33] Exhibit 3, Letter (undated) from Jessica Goldsmith (Probation Officer) to the Applicant.
“To whom this may concern,
Mr Gavin Vincent McMahon is subject to a Returning Offenders Order which commenced 11^th June 2018 and expires on 10 June 2019.
Since the commencement of this order, he has complied and engaged satisfactorily with his sentence conditions outlined below;
1Reside at an address as directed by a Probation Officer, and not to move from that address without prior written approval of a Probation Officer.
2To attend and engage in a rehabilitative assessment, and any subsequent recommended treatment or programme, as directed by the probation officer and assessor/treatment provider.
3Not to posses [sic] or consume any controlled drugs or Psychoactive substances except those prescribed to him by a doctor.
…
…He has been referred to Emerge services by his Probation Officer which can provide Mr McMahon with mental health support; however he is yet to engage with this service as of 4^th October 2018.”
[My underlining]
There is a ready acknowledgement by the Respondent (with which I agree) that any assessment of an offender’s risk of re-offending is a somewhat arbitrary exercise performed without the benefit of a defined formula or scale for fixing a representative number from a continuum ranging, for example, from a low to a high risk of re-offending. In the present case, it is clear that QCS thought the Applicant’s risk of re-offending was sufficiently high for him to be transferred from the “Low Intensity Substance Intervention Program” to the “High Intensity Substance Abuse Program.” To my mind, an inference about the Applicant’s risk of re-offending can be reasonably drawn from the QCS’ decision to so transfer the Applicant from the former program to the latter.
Viewed in its totality, there is a dearth of independent and expert medical (or other) opinion to convince the Tribunal of the Applicant’s self-reported claims of now being
“a changed man” and that he has re-configured his life such that he no longer represents any risk to the Australian community. The state of the evidence is such that I have minimal confidence in this Applicant not further offending were he to be returned to the Australian community.
I am mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[34]
[34] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that: (1) the nature of the Applicant’s offending conduct to date is very serious; and
(2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community, especially were he to resume his abuse of alcohol.
Were he to re-offend, the potential harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The material discloses one minor child potentially affected by the cancellation decision, the Applicant’s two year old son born on 11 March 2017.[35] The child resides in Australia and is primarily cared for by his mother, who is the Applicant’s de-facto partner.
[35] Exhibit 6, s501 G Documents, G20, page 148.
There was no concession from the Respondent about this Primary Consideration B carrying any weight in favour of revocation of the mandatory cancellation decision. The Respondent contends this Primary Consideration B “…does not weigh in the applicant’s favour and is neutral.”[36]
[36] Exhibit 4, Respondent’s SFIC, page 12, paragraph [44].
In his Statement of Issues, Facts and Contentions,[37] the Applicant says:
“The decision [of the Delegate] has had a significant impact on Gavin’s child. His relationship with his son is now hindered due to the distance and financial strain this has had. His relationship with his family remains strong but they have also been heavily impacted.
…
While Gavin was incarcerated, [name of infant child redacted] was able to have regular visits, and this allowed him to physically interact with his father. The cancellation of Gavin’s visa and subsequent deportation has impacted [name of infant child redacted] as he now lacks that physical contact.”[38]
[37] Exhibit 1, Applicant’s Statement of Issues, Facts and Contentions (“SFIC”).
[38] Exhibit 6, s501 G Documents, G20, page 147.
In his Personal Circumstances Form, the Applicant responded as follows to the questions relating to his relationship with his child:
“Please describe your relationship with each child including when it began, how often you contact/see the child/ren and the role you play in their lives.
[Applicant’s response] My son was born 11 March 2017 while I was incarcerated. I speak to both [the Applicant’s partner] and [name of infant child redacted] my son every day by phone. I also write letters that [the Applicant’s partner] reads to [name of infant child redacted] and will keep for him as he gets older. [The Applicant’s partner] brings [name of infant child redacted] to visit and has done so since he was 6 weeks old and now has her drivers licence and will visit every fortnight. I love and cherish my son and want to be a valueble [sic] role model to him as he grows up. When I am release [sic] my responsibility will be to get a job and provide both financially and mentally to my family.
Please describe the impact the cancellation of your visa would have, or has had, on the child/ren listed.
[Applicant’s response] If my visa was cancelled, this would cause a lot of unrest and completely unsettle my son as I will be moved back to New Zealand so [the Applicant’s partner] and [name of infant child redacted] will join me. We have zero family in New Zealand an [sic] no support net work to help us. I worry that it will be hard to get work and housed, which means a number of concerns for my family & my son. I just want the best, supported life for [name of infant child redacted]. In Australia he has 2 Grandmothers, Aunties, Uncles and a huge support network to help us through especially while I look for work.”[39]
[Emphasis in original]
[39] Ibid, G20, page 149.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/ren. I do note and accept that the Applicant has spoken with his partner and the child “everyday by phone” and, further, that the Applicant writes letters to his infant son that his partner, in turn, reads to the child. The Applicant’s role in the life of his minor child in Australia has been significantly limited as a result of his 18 month term in criminal custody from December 2016 until mid-2018, followed by his immediate return to New Zealand.
It is not unreasonable to find that the Applicant has been either totally or substantially absent from the life of his two year old son during the period of his physical absence in either criminal custody or his subsequent relocation to New Zealand. Put simply: the child was born in March 2017; the Applicant was incarcerated for a non-parole period of

18 months in December 2016 and thus was not present for the birth; the Applicant completed his custodial term in June 2018; the Applicant then immediately relocated to New Zealand; the child has not been taken to New Zealand to spend any time with the Applicant.
Thus, the nature and duration of the relationship between the two year old child and the Applicant can only be described as very limited. There have clearly been long periods of absence with little or no meaningful contact. While the Applicant may speak (and understandably so) of wanting “…to be a valueble [sic] role model to him as he grows up…”[40], and commendable though this stated intention may be, there is minimal to nil evidence of any consistent parenting role he has played in the life of his two year old son thus far. Having regard to the reality of the long period of physical separation between the Applicant and the child, which indeed, has lasted for the entirety of the child’s life thus far, I am of the view that only a slight level of weight is attributable to this sub-paragraph (a) in support of a finding that the Applicant’s migration status to remain in this country should be restored to him.
[40] Ibid.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
As mentioned, the Applicant’s non-parole custodial term and his relocation to New Zealand has caused him to be physically absent for the entirety of the child’s life thus far. There is no evidence of any genuine parental involvement between the Applicant and his two year old child.
There is, nevertheless, a significant cumulative period of time until the two year old child attains the age of 18 years. On that basis, and on the basis of the Applicant’s stated intention of wanting to play a further role in his child’s life, a slight measure of weight can be attributed to this sub-paragraph (b) in favour of a finding that it would be in the best interests of his infant son that his visa were reinstated to him.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on his infant child in Australia. In terms of the future, the Applicant contends: “…if my visa was cancelled this would cause a lot of unrest and completely unsettle my son…”[41] While I do not readily accept this predictive type of non-expert evidence, there is a relative dearth of material[42] – either from a lay or expert witness, indicating any negative impact of the Applicant’s conduct and any likely future conduct, on his two year old child. While all of this may be academic given the child’s very young age, it is surely obvious that any permanent separation between the Applicant and his infant two year old child would not be beneficial for the child. Having regard to all of the evidence, the only reasonable finding is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of the Applicant’s migration status to remain in this country is in the best interests of his two year old son.
[41] Ibid.
[42] I note that in the Applicant’s SFIC, the Applicant describes that this would impact on the relationship with his child.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the infant two year old child from the Applicant would have on that child, taking into account the Applicant’s ability to maintain contact in other ways. This factor can be assessed on two grounds. First, I have earlier referred to the Applicant’s concerns about the adverse impact of any permanent separation between him and his infant son. In a similar vein, the Applicant’s partner (and mother of the child) says these things:
“…I have had to deal with Gavin being in jail for the birth of our son, having to be a single mum while watching our son grow up without a father, although [name of infant child redacted] knows who his father is it’s not the same as having him here with us.
While Gavin has been incarcerated he has stilled [sic] managed to help me through my hard times as being a new mum and helped me become a new person, the person and mother I am today. Gavin and I speak to each other every day a minimum of twice a day and maximum of 10 times a day and in those phone calls from Gavin he also speaks to [name of infant child redacted]. [Name of infant child redacted] and I also take a day trip to Gatton to have contact visits with Gavin every second weekend. We very much enjoy the time we get to spend with Gavin. [Name of infant child redacted] and Gavin have an amazing bond between each other it’s incredible which makes it a lot harder to think that we won’t ever be a family or that Gavin would lose that bond with his son if he were to be deported to New Zealand. Unfortunately, if Gavin were to be deported [name of infant child redacted] and I would not be able to go to New Zealand with Gavin. I am not in the financial state or have any support to move to New Zealand, all of mine and Gavin’s family live in Australia and this is where we would like our son to grow up.
…
Gavin is already a great father to [name of infant child redacted] even while being incarcerated. He wants to be the dad to [name of infant child redacted] that his father once was to him. I have all the faith in the world that Gavin will be a great role model, contribute to society and make a great future for himself and his family.”[43]
[43] Ibid, G36, pages 217-218.
Secondly, we live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least have some measure of contact with his two year old infant Australian son by SMS and/or social media platforms from New Zealand or elsewhere the capacity of the child to maintain electronic contact with the Applicant will grow as the child matures. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two year old child via Skype and other digital platforms.
Having particular regard to the combined evidence of both the Applicant and his partner, a slight level of weight can be attributed to this sub-paragraph (d) in assessing whether restoration of the Applicant’s migration status is in the best interests of his minor child in Australia.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the child. Clearly, there are. The subject child resides with his mother who has clearly fulfilled the sole parental role since the child’s birth. During the hearing, the Applicant gave evidence that his partner is

“a good mum” and that she adequately cares for their infant son. There was further evidence at the hearing that the subject child is also cared for by his maternal grandmother.
Having regard to the already implemented parenting arrangements relating to the subject child, this sub-paragraph (e) is – at best – only of slight weight in assessing whether restoration of the Applicant’s migration status is in the best interests of his minor child in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the child about his separation from the Applicant, having regard to his age and maturity. As already alluded to, there is no independent or expert evidence before the Tribunal that the child is exhibiting behaviours indicative of adverse views he may have regarding how the physical removal of his father from his life will negatively impact upon him.
It is thus difficult to allocate any appreciable measure of weight to this sub-paragraph (f) in circumstances where none of the views of the child are known and where there is nothing to suggest that the prolonged, physical absence of his father from his life thus far or in future will have any adverse impact on him. In the final analysis, it is reasonable to conclude that at two years of age, the child is barely capable of expressing those views.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent and expert evidence about any physical or emotional trauma suffered by the child as a result of the Applicant’s offending conduct (as opposed to the Applicant’s prolonged physical absence from his life) – is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the combined evidentiary weight of the Applicant and his partner indicating an intention to remain together to create the best possible parenting environment for their infant child;
(b)the physical absence of the Applicant from virtually the entirety of the child’s life thus far;
(c)the reality that other persons already fulfil a parental role for the child;
(d)the further reality of the Applicant’s evidence at the hearing to the effect that he is in the process of organising a passport for his infant son to facilitate the child’s travel to New Zealand to visit him;
(e)prison visits and telephone calls from prison aside, the Applicant has not played any meaningful parental role in the child’s life to date; and
(f)the slight level of weight I have attributed to factors (a), (b), (c), (d), and (e) of paragraph 13.2(4) of the Direction;
I am of the view that the best interests of the Applicant’s minor two year old child in Australia do weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that any weight I attribute to this Primary Consideration B is of moderate level and does not, in any way, outweigh the heavy weight I have attributed to Primary Consideration A.
Primary Consideration C – The Expectations of the Australian Community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[44] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction.[45] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
[44] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[45] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
For the purposes of considering the instant application, the essential question, to my mind, with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia,[46] notwithstanding the contributions of the Applicant (if any) to the Australian community, the amount of time he has lived in Australia,[47] and the impact of his removal upon his immediate family in Australia.[48] Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should (or should not) retain the privilege of remaining in Australia must be broken down into a series of components so that it can be properly understood and assessed.
[46] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).
[47] Ibid, paragraph 6.3(5).
[48] Ibid, paragraph 6.3(7).
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·he arrived in Australia in December 2005 aged 11 years, and has not departed Australia since that time[49];
[49] Save and except for, of course, the Applicant’s return to New Zealand in mid-2018 following completion of his serving the non-parole period of 18 months of his head sentence imposed in December 2016.
·his National Police Certificate discloses an offending history running from April 2011 until June 2017 – a period of approximately six years;
·his offending across this six year period has resulted in the imposition of the following custodial terms:
o12 December 2016 – a five year custodial term to be suspended for an operative period of five years after serving 18 months in actual custody for: “enter dwelling with intent by break at night uses/threatens violence whilst armed in company damages property”;
o12 December 2016 – a three year custodial term to be suspended for an operative period of five years after serving 18 months in actual custody for:
·         “enter dwelling with intent by break at night whilst armed in company”; and
·         “grievous bodily harm”;
o12 December 2016 – a 12 month custodial term to be served concurrently with the two abovementioned three and five year custodial terms for: “wilful damage”;
o20 June 2017 – a six month custodial term to be suspended for an operative period of three years after serving eight months in actual custody for: “Breach of a probation order imposed on 25/05/2016”[50]
[50]
o20 June 2017 – an 18 month custodial term to be suspended for an operative period of three years after serving eight months in actual custody for: “enter premises and commit indictable offence”;
o20 June 2017 – a two year custodial term to be suspended for an operative period of three years after serving eight months in actual custody for two counts of: “burglary and commit indictable offence”;
o20 June 2017 – a nine month custodial term to be suspended for an operative period of three years after serving eight months in actual custody for:
·         “attempted fraud – dishonest application of property of another”;
·         “fraud – dishonestly obtains property from another”;
·         Two counts of “receiving tainted property”;
·         “fraud – dishonestly obtains property from another”;
·sentencing regimes imposed by the courts have sought to address the commission of approximately 38 individual offences on at least 18 sentencing occasions;
·the virtual totality of his adult life in this country has undeniably involved a consistently serious level of offending, culminating in the imposition of quite significant custodial terms;
·the totality of custodial terms imposed in December 2016 and June 2017 exceeds 13 years and 9 months;
·I have found that his offending in this country can only be described as “very serious” and I have also found that there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community; and
·there is no definitive, independent or expert evidence before the Tribunal of: (1) any diagnosis of psychological or other factors predisposing the Applicant to offend; (2) that those factors have been identified and are now the subject of remedial therapy and management; (3) that the Applicant has demonstrated any convincing level of insight into his offending so that; and (4) this Tribunal can confidently find that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[51]
[51] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[52] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[52] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[53]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[53] [2017] FCA 1466 at [76]-[77].

The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[54] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[54] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant, with his personal circumstances and history in this country, has been adequately dealt with by the imposition of a very significant custodial term for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)the very serious nature of his offending to date;
(ii)his demonstrated lack of insight into the nature of his offending involving, as it does, a lack of respect for lawful authority and the personal and property rights of others in the Australian community;
(iii)my finding that such lack of insight about the severity of what he has done points to a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community;
(iv)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend; and
(v)the comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision-maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing and in his written material, the Applicant spoke of wanting to return to the Australian community to find work and financially provide for the family unit comprising himself, his partner and their two year old child. He spoke of wanting to re-define his life and to otherwise participate as a responsible and productive member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[55]
[55] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
I have had regard to the character references and letters of support appearing in the material. It is clear that his life thus far has not been an easy one. He was an adopted child who experienced bullying at school and, perhaps most significantly, also experienced the loss of his father to suicide as a result of the father’s unresolved issues with post-traumatic stress disorder and resulting depression.[56] While there is no definitive expert opinion to this effect, it seems clear that the Applicant’s loss of his father affected him in two primary ways: (1) from the age of 19, he has lacked a father figure to look up to as a role model; and (2) he has lacked a father figure to guide and assist him in terms of moderating his behaviour.
[56] Exhibit 6, s501 G Documents, G25, pages 175-176, see, for example, the character reference of the Applicant’s sister, first page, fourth and fifth paragraphs.
The Applicant has not been entirely dilatory during his time in this country. After leaving school in year 10, he initially decided to learn a trade and obtained a Certificate

3 qualification in Sheet Metal Fabrication.[57] In addition, the material discloses that he has:
[57] Ibid, page 175, third paragraph.
“…maintained employment over the years, including the following:
(a)2016: Labourer at Caloundra Concrete Pumping;
(b)2015-2016: Bricklayer in Caloundra;
(c)2012-2014: Labourer at NV Constructions and Maintenance;
(d)2011-2012: Work experience at Brisbane Stair Werx;
(e)2010: Labourer at J.L Block Laying;
(f)2010: Printer General Hand at Horton Media.”[58]
[58] Ibid, PG22, page 171, paragraph [41].
I have little or no doubt that a reasonably minded member of the Australian community would bear in mind that it can be fairly argued that any likelihood of the Applicant reoffending is yet to be tested in the community because: (1) he has been removed from that community on a continuous basis since December 2016; and (2) none of the psychological symptomatology predisposing him to offend has been addressed or dealt with by independent expertise.
Conclusion: Primary Consideration C
Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation. I consider that the expectations of the Australian community are such that, given the nature of the Applicant’s offending, including the very violent grievous bodily harm offence, he should not hold a visa to remain here.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant. This Other Consideration (a) is not relevant in this case.
(b) Strength, nature and duration of ties
There are readily made concessions by the Respondent that:
·the Applicant has resided in Australia for approximately 13 years;
·removal of the Applicant from Australia will involve a physical separation from his family; and
·the Applicant’s family in Australia comprises, in addition to his two year old infant child, the following: his partner, mother, brother, sister, step-brother, two aunts, five cousins and “1 (soon to be 2)” nieces/nephews.[59]
[59] Ibid, G20, page 150; see also Exhibit 4, Respondent’s SFIC, page 14, paragraphs [49] and [50].
It is clear that the strength, nature and duration of the Applicant’s ties to Australia are significant. Consistent with Paragraph 14.2(1)(b) of this Other Consideration, those ties, and thus this Other Consideration (b), favours the Applicant.
That observation must be tempered by the factors appearing at paragraph 14.2(1)(a) of the Direction. Although the Applicant first arrived here as a 11 year old, and did not begin offending until his mid-teens, his offending conduct spans virtually the entirety of his adult life. It culminates, as late as November 2016, in him committing very serious offences while subject to a probation order for other offences, which resulted in the imposition of a significant custodial term on 20 June 2017. The cumulative total of custodial terms imposed on 20 June 2017 amounted to four years and nine months. Comparatively, the cumulative total of custodial terms imposed on 12 December 2016 was nine years.
Thus, while it cannot be said that he commenced offending soon after arriving here, he has nevertheless consistently offended (and very seriously so) for virtually the entirety of his adult life in this country. Accordingly, any weight attributable to this Other Consideration (b) must be tempered by a finding (pursuant to sub-paragraph 14.2(1)(a)(ii) of the Direction) that any time he may be said to have spent contributing positively to the Australian community is significantly outweighed by his very serious criminal conduct during the corresponding period.
The ratio between the seriousness of the Applicant’s offending and the strength of any ties he may have to this country was not lost on the learned sentencing Judge, who imposed the cumulative nine years of custodial sentences on 12 December 2016:
“I take into account all the circumstances. I’ve considered the matter carefully. Ultimately it seems to me that there must be a very substantial penalty to reflect the very serious nature of your conduct…It’s likely that you’ll be deported by all of the information that I currently understand about how that’s going to happen. That’s going to be difficult because you’re going back to go to New Zealand, which is a country you don’t have any current ties to but that’s going to be one of the things in life that you’re just going to have to work out. [The Applicant’s partner] is making inquiries about how she might shift there and if that happens then that will indicate that despite everything she’s prepared to join her life with yours and that’s something that speaks well for her and, of course, speaks very well for you.”[60]
[60] Ibid, G16, page 130, lines 18-29.
While this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on any victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
The Respondent propounds an interesting contention in relation to this Other Consideration (e). According to the contention, this Other Consideration does not weigh in favour of the Applicant because it is drafted in predictive terms, that is, it relates to the extent of impediments “if removed”. The contention goes on to propound that this Other Consideration (e) is not relevant to the Applicant in circumstances where he has, in fact, returned to New Zealand. I have misgivings about literally adopting this contention and thus allocating no weight to this Other Consideration (e).
Moreover, some time has passed since the Applicant returned to New Zealand. He arrived in Australia as a 11 year old and has resided here on a constant basis since then, more particularly, until his incarceration in December 2016. He will inevitably experience some short-term hardship in re-establishing himself in New Zealand.
However, I do not consider that any of the factors appearing in Paragraph 14.5(1) of the Direction assist the Applicant. He would suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
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… [the Applicant lived in New Zealand for the first decade of his life]… 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.[61]
[61] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
As well, the Applicant is a relatively young man of 25 years who is in apparently good health and there is nothing in the material to indicate any adverse health or wellbeing outcomes were he to be relocated to New Zealand. He has demonstrated an ability to derive income such as to be able to maintain a basic standard of living in New Zealand.[62] For example, his Probation Officer has noted that “…Mr McMahon has secured employment and accommodation since his return back to New Zealand and presents to be reintegrating well.”[63] To his credit, the Applicant has obtained full-time employment in New Zealand with CW Roofing & Waterproofing Limited who, knowing the Applicant’s offending history, nevertheless say the following encouraging things about him:
“Gavin has moved forward remarkably, has learnt a lot about the business and works exceptionally hard. I’ve found him to be very trustworthy, and due to his outstanding performance, the company has sent him on a course,…The intention is to send him on further courses in the near future…whereby he can run his own team independently.
Gavin has so far proved himself to be responsible, trustworthy, hardworking and well-liked by the management and his peers, even though it’s early days we feel he has become an asset to the company and look forward to having him in our employ for many years to come.”[64]
[62] Exhibit 6, s 501G-Documents, G20, page 152
[63] Exhibit 3, Letter (undated) from Jessica Goldsmith (Applicant’s Probation Officer).
[64] Exhibit 2, Reference of John D McMaster, Director, CW Roofing & Waterproofing Limited.
Were the Applicant to be in need of state-based support he would be entitled to such social, medical and/or economic support to the same level as is generally available to other citizens of New Zealand.
I therefore respectfully disagree with the contention of the Minister regarding this Other Consideration that this Other Consideration (e) is of no weight in support of revocation of the decision to mandatorily cancel the Applicant’s visa. In my view, it does carry a moderate, but not decisive, measure of weight in favour of the Applicant.
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant
·Strength nature and duration of ties: is of limited weight for the Applicant
·Impact on Australian business interests: not relevant
·Impact on victims: not relevant
·Extent of impediments if removed: is of moderate weight for the Applicant.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke 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 I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
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 A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or Primary Consideration B, outweigh the very significant combined weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

................................[SGD]........................................
Associate
Dated: 26 June 2019

Date of hearing:
Applicant:

15 November 2018

Appeared by telephone

Advocate for the Applicant: Jacqueline Kennedy (Applicant’s sister)

Advocate for the Respondent: Jake Kyranis (Solicitor)

Solicitors for the Respondent: Sparke Helmore

Note: this sentence was ordered to be served concurrently with the other sentences also imposed on

20 June 2017.

[2019] AATA 1532

26 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Proportionality

Date of hearing: Applicant:	15 November 2018 Appeared by telephone
Advocate for the Applicant:	Jacqueline Kennedy (Applicant’s sister)
Advocate for the Respondent:	Jake Kyranis (Solicitor)
Solicitors for the Respondent:	Sparke Helmore