McMahon and Minister for Home Affairs (Migration)

This matter concerned an application by McMahon for the revocation of the mandatory cancellation of his visa, which had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record and his serving of a full-time term of imprisonment. The decision-maker, Theodore Tavoularis SM, was required to consider whether to exercise the discretion to revoke this mandatory cancellation.

The primary legal issues before the court were whether the discretion to revoke the mandatory visa cancellation should be exercised, and in doing so, what weight should be given to the considerations outlined in Direction No 79, specifically concerning the protection of the Australian community, the risk of re-offending, the risk of harm to the Australian community, and the best interests of minor children. The court was also required to consider the expectations of the Australian community.

In reaching its decision, the court applied the principles set out in Direction No 79, which emphasizes that remaining in Australia is a privilege for non-citizens and that they are expected to be law-abiding. The court found that the applicant's criminal history, spanning six to seven years and escalating in seriousness to include violent offending such as grievous bodily harm, demonstrated a very serious pattern of conduct. This offending was considered to be of a nature and seriousness that warranted significant weight being given to the primary consideration of protecting the Australian community from harm. The court noted that the applicant's offending had dominated a significant portion of his adult life and had increased in severity over time.

Consequently, the court determined that it could not exercise the discretion to revoke the cancellation of the applicant's visa. The decision under review, which affirmed the mandatory cancellation, was therefore affirmed.