Wilson v Assistant Minister for Immigration and Border Protection

B FACTUAL BACKGROUND & THE non-revocation DECISION 6 The applicant is a citizen of New Zealand who arrived in Australia in 1983 as a child and has lived here since. He was granted the visa the subject of the original decision in 2002. Unhappily, his wife suffers from muscular dystrophy, as a consequence of which she requires support from the applicant and their 12 year-old daughter. 7 In January 2015, the applicant was convicted of committing an act of indecency. The ignominious details of this incident are unnecessary to recount. Later that year, he was convicted of two counts of common assault and contravening an apprehended domestic violence order. These offences were all committed against his wife. He was sentenced for both sets of offences. In March 2016, he successfully appealed the sentence imposed and was re-sentenced to 16 months' imprisonment. 8 In April 2016, a delegate of the Minister notified the applicant of the original decision, made pursuant to s 501(3A) of the Act. The notification confirmed that the Minister was satisfied that the applicant did not pass the character test on the basis of his substantial criminal record, and that his visa had been cancelled. The notification went on to explain that the original decision could be revoked and invited the applicant to make representations. It continued: How to make representations about revocation of the decision to cancel your visa … Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in Part C of the Direction that is relevant to your circumstances. …If…the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa. (uncorrected, original bolding, underlining and italics) 9 Later that month, the applicant requested a revocation of the original decision. Between April 2016 and February 2017, the applicant made representations and representations were also made by others (including the applicant's wife, who described the difficulties that would be occasioned by the applicant's absence). 10 In order to obtain some appreciation of the structure and content of the Minister's reasons for the non-revocation decision, it is regrettably necessary to quote parts of those reasons at some length, starting with the discussion under the heading "Best interests of minor children": 13. In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any affected children under 18 in Australia as a primary consideration and have concluded that it is in the best interests of [the applicant's] daughter for the [original decision] to be revoked. … 15. [The applicant] states that he speaks with [his daughter] on a daily basis and that she visits him in detention at least twice a week. He submits that [his daughter] needs his support and that non-revocation of the [original decision] would burden her with the day to day care of her mother who suffers Muscular Dystrophy. 16. [The applicant's wife] states that [the applicant] is a good father. [His daughter] misses him and cries regularly. [The applicant's wife] submits that [the applicant's daughter] should be focussing on her education, enjoying time with her friends and playing sport instead of being weighed down with the caring responsibilities of her mother. 17. I acknowledge [the applicant's daughter's] young age. She is 12 years old and has recently started high school. I recognise that [the applicant's daughter] is under a significant amount of pressure having assumed the caring responsibilities for her mother. I note that [the applicant's wife] is under significant financial pressure to provide for [the applicant's daughter] and that [the applicant's daughter's] wellbeing is most likely impacted. I find that [the applicant's] presence would alleviate many of the physical and financial pressure on [the applicant's daughter] as he was the main provider for the family. 18. I have considered the comments of…[the applicant's] in-laws, that [the applicant's] presence in Australia will provide [his daughter] with the love and support she needs. 19. I accept that [the applicant's daughter] will be disadvantaged by a decision not to revoke the [original decision] and therefore will continue to bear a lot of the caring responsibilities for her mother. I also accept that [the applicant] maintains a close relationship with his daughter and that his presence is important for her development. However, I note with some concern that [the applicant's daughter] was exposed to his most recent, and most serious, offending. I have particular regard to the Magistrates (sic) remarks of 22 January 2015 that [the applicant's] actions would change [the applicant's daughter's] attitude towards her father for the worse, and that his role was to nurture and protect [his daughter] and provide her with stability given her mother's declining health. 20. I recognise that [the applicant's] capacity to be a positive influence on [his daughter] depends on his ability to manage his alcohol problems and avoid further incidents of domestic violence and acts of indecency. Although [the applicant's] actions exposed [his daughter] to events that will have a long lasting psychological and emotional impact on her, I nevertheless find that it is in [the applicant's daughter's] best interests for the [original decision] to be revoked. 11 Having found that if the original decision was not revoked, the applicant's wife and daughter may face emotional, physical and financial hardship; that other members of the applicant's family were likely to experience emotional hardship; and that impediments the applicant would face if removed were broadly neutral, the Minister's reasons continued: Protecting the Australian Community 34. In coming to my decision about whether or not there is another reason why the original decision should be revoked I have had regard to the consideration of the protection of the Australia community, noting in particular [the applicant's] claim that he is rehabilitated and will not reoffend. I considered the government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. Criminal conduct 35. In considering the nature and seriousness of [the applicant's] criminal offending I note that violent offences are very serious. 12 The Minister's reasons then turned to the applicant's offending in detail over several paragraphs, before continuing: 42. The seriousness of [the applicant's] offending has increased over the years, culminating with his most recent sentence of 16 months (sic) imprisonment. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed [the applicant's] most recent offending as serious. 43. Having regard to his offending history, and the remarks and dispositions of the court, I adopt the judicial observations of the court and form the view that overall, [the applicant's] offending is serious. Risk to the Australian community … 13 The Minister proceeded to consider mitigating circumstances and submissions in support of the applicant's claims of rehabilitation, before continuing: 49. In assessing the likelihood of [the applicant] reoffending, I have had particular regard to the persistent nature of his offending, particularly that involving domestic violence. [The applicant's] criminal history shows a propensity of breaching conditional release orders. I find that his actions demonstrate a lack of regard to judicial orders. I also recognise that apprehended violence orders, fines, community service orders and a suspended sentence failed to curb [the applicant's] offending and ultimately led to him being imprisoned. I consider this weighs toward a likelihood of him reoffending. 50. I have considered the comments of the court concerning the nature of the harm caused by [the applicant's] offending, in particular the long term impact his actions will have on [his daughter]. I find that there remains a likelihood that [the applicant's daughter] could be exposed to further offending by [the applicant]. Should [the applicant] reoffend in a similar manner, I find that there is a risk that he may cause further emotional and/or psychological harm to [his daughter]. 51. In light of [the applicant's] sustained criminal record, the trend toward more serious offending, and the untested nature of his rehabilitation, I find that there is an ongoing likelihood of him reoffending. Should [the applicant] re-offend in a similar manner in the future, I find that there is a risk that he could cause further physical and/or psychological harm to [his wife], [his daughter] or to members of the Australian community. CONCLUSION 52. I considered all relevant matters including (1) an assessment of whether the person has made representations…; (2) an assessment of whether I am satisfied that the person passes the character test…; (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked…; and (4) all evidence available to me, including evidence provided by, or on behalf of, [the applicant]. 53. I concluded [the applicant] has made representations… 54. I am not satisfied that [the applicant] passes the character test… 55. In considering, in light of [the applicant's] representations, whether I was satisfied that there is another reason why the [original decision] should be revoked, I gave primary consideration to the best interests of [the applicant's] daughter and other minor relatives and have found that their best interest would be served by the revocation of the [original decision]. 56. In addition, I have considered the length of time [the applicant] has made a positive contribution to the Australian community, some 33 years and the consequences of my decision for his other family members. 57. On the other hand, in considering whether I was satisfied that there is another reason why the [original decision] should be revoked, I gave significant weight to the serious nature of the crimes committed by [the applicant], in particular those relating to domestic violence and indecency, noting that the victim was his wife and vulnerable due to her disability. 58. Further, I find that the Australian community could be exposed to great harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. 59. I am aware that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the [original decision], even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia for most of his life and from a very young age. 60. In reaching my decision about whether I am satisfied that there is another reason why the [original decision] should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his daughter…as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment history, the hardship to his wife and other family and social networks will endure in the event the original decision is not revoked.

C.1 Primary consideration ground 14 The applicant's first contention is that the Minister's reasons treated the protection of the Australian community as the primary consideration to be displaced, or as "inherently more significant" than the best interests of the applicant's child, drawing on the discussion by Mortimer J in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 (Murad appeal) at [72]-[74]. In aid of this contention, the applicant points to the position of [59] immediately before the conclusion at [60], and the syntax of [59] as elevating the protection of the Australian community to sole importance. 15 Secondly, it was asserted the Minister's reasons merely cite competing considerations and do not include any form of assessment or weighing of the considerations as required by Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 at 142 [32] per Branson, North and Stone JJ. The applicant submitted that there was no explicit indication of the weight afforded to the considerations, except for the "significant weight" afforded to the serious nature of the offending (at [57] of the Minister's decision). It was said that the underlying logic of the non-revocation decision as demonstrated by the Minister's reasons was said to be a "triple hypothetical": …being a likely (not probable) risk that the applicant could reoffend, and, if he did, it could expose people to harm) outweighed multiple certain and definite considerations (including, that the best interests of the applicant's child was for the [original decision] to be revoked). (original underlining) 16 The applicant pointed to the absence in [55], [56] and [58] of the Minister's reasons of any description of the weight afforded the considerations there discussed. This was to be contrasted with the explicit description in [57] of the "significant weight" afforded to the serious nature of the applicant's offending (T 11-2). The argument was "that even though there has been an identification properly of the considerations and no failure caused by taking into account irrelevant considerations, there has been an insufficient demonstration that there has been a weighing process and an assessment process, both individually and cumulatively" (T 14). 17 In response, as to the first of these matters, the Minister contends the applicant's argument is misconceived, as [59] is simply a statement of policy; as to the second, contrary to the applicant's contention, the Minister engaged in a careful analysis of the applicant's daughter's best interests and identified that revocation of the original decision was in her best interests. It was further submitted that the Minister's reasoning was pellucid: he considered that the applicant posed a great risk to the community and this outweighed the other considerations he had earlier carefully analysed and identified. Overall, the Minister contends that the applicant's analysis divorces what was explained at [60] from the balance of the Minister's reasons read as a whole.

C.2 Irrelevant consideration ground 18 This contention has two aspects: the first is that the serious nature of the applicant's offending was a "stand-alone" or sole consideration, which was given "significant weight". This is evinced by the lengthy recitation of the applicant's offending, without identifying its relevance or link to protecting the Australian community or other permissible considerations. In oral submissions (T 73-4), it was submitted that a further revelation of the focus on the serious nature of the applicant's offending was a letter dated 17 February 2017 (Court book page 45), which invited comments regarding additional material received by the Department of Immigration and Border Protection. 19 The second aspect is that to treat the serious nature of the offending as a stand-alone consideration was necessarily an irrelevant consideration because the otherwise broad discretion must necessarily be confined to exclude considerations of a punitive character, a proposition flowing from the imperative that punishment of criminal guilt is reserved exclusively to courts exercising judicial power. 20 It follows from the first and second aspects of the argument that a stand-alone consideration of the seriousness of the offending would be an irrelevant consideration as it constitutes a decision not to revoke the original decision because an individual has committed serious offending. The stand-alone consideration of the seriousness of the offending without explanation of its relevance to other considerations was tantamount (so the argument went) to another sentencing. 21 In response, the Minister contends that his summation of the material was appropriate and that although significant weight was placed on the seriousness of the applicant's offending, this formed part of a rational process of reasoning which led to the evaluative conclusion that the applicant posed a risk of "great harm" to the Australian community and that this risk was "unacceptable". 22 Further, it is said that the applicant ignores the fact that the Minister's reasoning broadly follows the structure of Direction 65 (being a direction issued by the Minister in accordance with s 499(1) of the Act, which provides that the Minister "may give written directions to a person or body having functions or powers under this Act if the directions are about the performance of those functions or the exercise of those powers"). The preamble to Direction 65 relevantly provides: 6.2 General Guidance (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable. … 6.3 Principles … (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (5) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. 23 Relevantly, in respect of revocation requests, Part C of Direction 65 provides: 13. Primary considerations - revocation requests … (2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations: a) Protection of the Australian community from criminal and other serious conduct; b) The best interests of minor children in Australia; c) Expectations of the Australian community. 13.1 Protection of the Australian community (1) When considering protection of the Australian community, decision­makers should 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. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. (2) Decision-makers should also 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. 13.1.1 The nature and seriousness of the conduct (1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including: … 13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. (2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively: a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). 13.2 Best interests of minor children in Australia affected by the decision (1) Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child. … 13.3 Expectations of the Australian community (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect. 14. Other considerations - revocation requests (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): 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. … 24 As is evident from its terms, as the Minister submits, Direction 65 was not binding upon him (see Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [41] per Tracey J). Its present relevance is that the structure of the Minister's reasons reveals that he exercised his discretion broadly in accordance with Direction 65 (T 34-5, 44). In responding to the applicant's submission that the seriousness of the applicant's offending sits like an "oasis" in the Minister's reasons (T 43), the Minister's contention is that, consistently with the structure of Direction 65, he considered the question of "risk" with the question of "seriousness" of offending under the overall consideration of "protecting" the Australian community; that is, that he did not only consider the seriousness of the applicant's offending. 25 Finally, it is contended that the applicant's irrelevant consideration ground confuses an "impermissible purpose" in the exercise of power with an "impermissible consideration" taken into account when exercising that power.

D.1 Preliminary Matters and Context 26 At the outset it worth emphasising a well-established and important proposition: it is not the role of this Court to subject the Minister's reasons to a process of parsing akin to deconstructing a haiku. As was noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ: …a court should not be concerned with looseness in the language...nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (citations omitted) 27 These important observations have present force as I consider that the applicant's careful analysis of the Minister's reasons tended, at times, to invite minute construction with an eye attuned to error rather than a fair contextual reading. It is convenient to identify two of these contextual matters to be kept in mind before turning to the applicant's arguments in more detail. 28 The first is the broad nature of the discretion being exercised. Section 501CA of the Act provides relevantly: (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (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. 29 The second matter is the presently non-binding guide provided as to the exercise of the broad discretion, being Direction 65, which provides some additional context as to the structure apparently adopted in the Minister's reasons in discussion of the various considerations. 30 I now to turn to the disposition of the three grounds advanced at this initial hearing.

D.2 Primary consideration ground 31 This ground is not made out for a number of reasons. 32 First, the Minister expressly identified that he "treated the best interests of any affected children" as "a primary consideration" and in that context had concluded that "it is in the best interests of [the applicant's] daughter that for the [original decision] to be revoked" (see [13] of the Minister's reasons). The reasons identify only one consideration as "primary", namely the best interests of the applicant's daughter; none of the other considerations are designated as "primary". Although each case must turn on its own facts, I consider the present circumstances to be stronger than those considered in Murad v Assistant Minister for Immigration and Border Protection [2016] FCA 876. In Murad, the only consideration designated as "primary" was that of the applicant's children and the word "primary" was used only once in the relevant statement of reasons; importantly, the word "primary" was not used in the conclusion of the reasons. Despite the absence of further reference to the best interests of the children being "primary", Bromwich J did not accept that repetition was indispensable in the context of the reasons read as a whole (see [49]-[51]). Here, the Minister found unequivocally that it was in the best interests of the applicant's daughter to revoke the original decision (at [13] and [20]) and there is further textual indication in [55] and [60] of the treatment of the applicant's daughter's best interests as a "primary" consideration in the course of the conclusionary weighing exercise. In my opinion, this satisfies the requirement that the Minister first identify the best interests of the child before carrying out the weighing exercise: Wan at 140 [26] per Branson, North and Stone JJ. 33 Secondly, I do not consider that consideration of the protection of the Australian community distracted the Minister from giving primary consideration to the best interests of the applicant's daughter. True it is that considering [59] of the Minister's reasons in isolation could indicate that that consideration was identified as the consideration to be outweighed. I accept the submission of the Minister that the reasons, read as a whole, demonstrate that the considerations in the applicant's favour were considered first. Thus, the Minister concluded, as "a primary consideration", that revocation of the original decision was in the applicant's daughter's best interests. I pause to note that I did mention during the hearing the logical difficulty in using the word "primary" as encompassing the plural (as is suggested by the use of an indefinite rather than definite article), but this grammatical curiosity is well-established in this area of discourse: see United Nations Convention on the Rights of the Child, art 3; Wan at 142 per Branson, North and Stone JJ. 34 In any event, the Minister accepted that revocation was in the applicant's daughter's best interests and the likely hardship faced by the applicant's family, and considered the positive contribution of applicant's employment history. Thereafter, the Minister considered the issue of the nature and extent of any impediments if removed as, broadly, neutral, before considering the factors which ultimately weighed against the applicant, namely the protection of the Australian community, which itself was informed by the consideration of the serious nature of his offending and the risk to the Australian community. 35 In particular, the concluding paragraphs of the Minister's reasons fall against the applicant's contentions. It is significant to note the use of the word "assessment" in [52] in relation to the factors informing the "relevant matters" considered by the Minister. This "assessment" is illustrated in the following paragraphs where the "primary consideration" of the best interests of the applicant's child favouring revocation of the original decision ([55]), "in addition" to the positive contribution made to the Australian community and the consequences of the decision for his other family members ([56]) was weighed ("on the other hand" ([57])) against the significant weight afforded to the serious nature of the applicant's offending and the "further" finding ([58]) that the Australian community could be exposed to great harm. 36 While perhaps infelicitously positioned in the reasons, I accept the Minister's submission that [59] is consistent with, although as an amalgam of several aspects of, the principles expressed in Direction 65 (partly extracted at [22] above). 37 Provided that the Minister did give primary consideration to the best interests of the applicant's daughter, he was entitled to conclude, after a proper consideration of the material before him, that the strength of other considerations outweighed the first consideration: Wan 142 [32] per Branson, North and Stone JJ. I am not satisfied that [59] establishes that consideration of the protection of the Australian community overwhelmed the principled exercise of the Minister's discretion, including the necessity to give primary consideration to the best interests of the applicant's daughter. The words "I am aware" indicate a self-direction that following the "assessment" of the considerations, including the best interests of the child as "a" primary consideration, the strength of the other considerations may outweigh the best interests of the applicant's daughter understood as a primary consideration. My conclusion in that regard is bolstered in the use of the indefinite formulation which expressed that countervailing considerations "may be insufficient", rather than a more conclusionary formulation. Further, reading the Minister's reasons fairly and as a whole, I do not accept that the positioning of [59] immediately before the conclusion at [60] supports the applicant's contention (compare Murad appeal at [73]-[76] per Mortimer J). 38 Thirdly, on a fair reading, I do not accept that the Minister's reasons insufficiently demonstrate a weighing process. I have already expressed my view of the textual reading of the conclusionary paragraphs at [35]-[37] above. As noted above, the applicant contends that the presence of the words "significant weight" in [57], and their corresponding absence from [55], [56] and [58], necessarily indicates an absence of weighing. It is further contended that the word "further" in [58] cannot be read as linking "could not rule out the possibility of further offending" with "significant weight" (T 11-2). 39 With respect, this granular analysis descends to the level warned against in Wu Shan Liang. Moreover, it does not reflect the usual process of decision-making. As Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 63 [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. 40 It is significant that the Minister at [60] expressly states that the conclusion that the applicant represented an unacceptable risk to the Australian community "outweighed" the primary consideration (that is the finding expressed at [13], [20] and [55]) that a revocation of the original decision was in the applicant's daughter's best interests. Read in the context of an earlier reference to "significant weight", the Minister did weigh the considerations, albeit without expressly assigning weight to some of them. 41 Fourthly, given that I have concluded that the best interests of the applicant's child was a primary consideration in the non-revocation decision, the legitimate expectation aspect of the applicant's case must be rejected.

D.3 Irrelevant considerations ground 42 I do not consider that this ground is made out for at least four reasons. 43 First, insofar as it is said that the invitation to comment on the additional material received by the Department of Immigration and Border Protection (see [18] above) demonstrates a process whereby the decision-making focused on the serious nature of the offences (T 74), I disagree. That letter must be read in the context of calling for the applicant's comment on "information which has been received and may be taken into account" (Court book at page 45). There is no suggestion in the letter that the information was determinative. 44 Secondly, while it may be accepted that the consideration of the nature of the applicant's offending occupied a substantial proportion of the reasons, the Minister was entitled to form his own view about the seriousness of the offending based on the objective facts and it was entirely up to the Minister to decide what facts he considered relevant to that issue: see Te Puke v Minister for Immigration and Border Protection [2015] FCA 398; (2015) 230 FCR 499 at 520 [96] per Wigney J. 45 Thirdly, while it is the case that the nature of the applicant's offending is considered separately (under the heading "Criminal conduct") from the risk (under the heading "Risk to the Australian community"), both factors inform the overall consideration under the heading "Protecting the Australian Community". The finding at [60] of the "unacceptable risk of harm to the Australian community" cannot be divorced from that structure. Further, I accept the Minister's submission that the structure of the Minister's reasons follows the sequencing of Direction 65 and is consistent with the approach that was foreshadowed to the applicant in the letter partly extracted at [8] above. Accordingly, the serious nature of the applicant's offending was considered with, and linked to, the consideration of risk to the Australian community. 46 Fourthly, it is plain that the assessment at [58] that "I could not rule out the possibility of further offending" was made following a consideration of the serious nature of the offending and the finding that the Australian community could be exposed to great harm. Further, the conclusion at [60] of there being an unacceptable risk of harm to the Australian community was said to outweigh the other considerations. Again, the use of the word "outweighed" points to the fact that the seriousness of the offending was not considered in a hermetically sealed box. There is no textual or contextual indication in the Minister's reasons that the non-revocation decision was intended as being further punishment. It follows that the irrelevant considerations ground fails.

E CONCLUSION & ORDERS 47 I have not identified jurisdictional error in the non-revocation decision. Accordingly, grounds 1, 2 and 3 of the application must fail. In light of the outstanding issue regarding the Falzon ground, I propose to relist the matter for a further case management hearing at 9.30 am on 2 February 2018. 48 Finally, I wish to express my appreciation to Ms Hall who appeared for the applicant and Ms Francois (who led Mr A Edwards) who appeared for the Minister, for the considerable assistance provided by the written and oral presentations of their arguments.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.