Kennell and Minister for Immigration and Border Protection (Migration)

Kennell and Minister for Immigration and Border Protection (Migration) [2018] AATA 3368 (10 September 2018)
Division:GENERAL DIVISION
File Number: 2016/6333
Re:Charles Kennell
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:10 September 2018
Place:Brisbane

The decision under review is affirmed.
............................[sgd]............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory visa cancellation decision – non-expedited matter – where Applicant is a UK citizen – where Applicant’s visa cancelled under s 501(3A) because Applicant did not pass character test – whether there is a reason discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – risk of re-offending – risk of harm to Australian community – minor children – expectations of the Australian community – ties to Australia – extent of impediments if removed – decision under review affirmed
CASES
Allan and Minister for Immigration and Border Protection
[2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575

Waits and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 1336
LEGISLATION
Commonwealth Criminal Code, s 474.17
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth), s 2, Sch 1, Items 17, 22(5)
Queensland Criminal Code, s 359E
SECONDARY MATERIALS
Ministerial Direction No. 65
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 September 2018
INTRODUCTION

This matter relates to an application made by Mr Charles Kennell (“the Applicant”), for appeal of a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to revoke the cancellation of his visa.[1]
[1] I note that this Ministry has now changed to be the Minister for Home Affairs. I will, however, use the nomenclature that was current at the time of the decision under review for the purposes of this decision.
The Applicant is a UK citizen who arrived in Australia from the UK in 2007, and has lived, and worked in Australia since that time.[2] On 25 May 2016, the Applicant’s visa was cancelled by a delegate of the Minister.[3] The Applicant subsequently applied for this cancellation to be revoked. On 26 October 2016, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa.[4] Seeking to remain in Australia, the Applicant appealed this decision to the Tribunal on 23 November 2016.[5]
[2] Exhibit 5, T Documents, T 4, p 361.
[3] Ibid, T 2, p 272.
[4] Ibid, T 2, p 88.
[5] Ibid, T 1, p 3.
After a lengthy pre-hearing process – not helped by consistent requests by the Applicant to vacate various listings or otherwise delay this process – this matter came before me at a hearing on 13 and 14 March 2018. For the reasons below, I have found that the delegate’s decision was correct. The cancellation of the Applicant’s visa should not be revoked.
As a preliminary matter, I note that this application was lodged with the Tribunal before the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) (“the Amendment Act”) was granted assent on 22 February 2017, and came into force.[6] Before the passage of the Amendment Act, s 500(6L) of the Migration Act 1958 (Cth) (“the Act”) did not apply to Tribunal proceedings regarding the revocation under s 501CA(4) of the mandatory cancellation of a visa. Now, it does.[7] Under Item 22(5) of Schedule 1 to the Amendment Act, the changes to s 500(6L) only apply to decisions made after the commencement of Schedule 1, on 23 February 2017. As the decision the Applicant seeks to be reviewed was made on 25 May 2016, this matter is not expedited.
[6] See Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth), s 2.
[7] Ibid, Sch 1, Item 17.
ISSUES
The Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the grounds that he did not pass the character test as defined in s 501(6)(a). Under s 501CA(4), the Tribunal has a discretion to revoke the mandatory cancellation of a person’s visa where:
(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.
Thus, I must address three issues:
(a)Whether the Applicant passes the character test as defined in s 501 of the Act;
(b)Whether there is another reason for the cancellation of the Applicant’s visa to be revoked; and
(c)Whether the Tribunal’s discretion to revoke the mandatory cancellation of the Applicant’s visa should be exercised.
I will address each of these issues in turn.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The representative of the Minister contends that the Applicant does not pass the character test because he has a “substantial criminal record”, as defined in ss 501(6)(a) and 501(7)(c) of the Act.[8] The Applicant does not contest this, but it is nevertheless necessary to consider this issue.
[8] See Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [2(a)].
It is helpful to set the relevant provisions out.
501 Refusal or cancellation of visa on character grounds
…
6For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
7For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Thus, the Applicant will be taken to have a substantial criminal record if he has either been sentenced to a single term of imprisonment of 12 months or more, or if he has been sentenced to multiple terms of imprisonment where the sum of those terms is 12 months or more.
On 27 April 2016, the Applicant was sentenced to 18 months’ imprisonment for unlawful stalking.[9] He was also sentenced to 6 months’ imprisonment for using a carriage service to menace, harass or cause offence, 3 months’ imprisonment for wilful damage involving hospital property and 1 month for wilful damage involving police property.[10] These subsequent terms of imprisonment were to be served concurrently with the head sentence of 18 months. The parole date for the Applicant was given as being six months from when he was first held in pre-sentence custody.[11]
[9] Exhibit 5, T-Documents T 2, p 125.
[10] Ibid, pp 117-118.
[11] Ibid, p 125.
On the basis of the above, I am satisfied that the Applicant has a substantial criminal record for the purposes of s 501(7) of the Act, as he was sentenced to a term of imprisonment of more than 12 months. The time actually served by the Applicant is immaterial for present purposes. Consequently, pursuant to s 501(6) of the Act, the Applicant does not pass the character test. Thus, this ground cannot be used to enliven the Tribunal’s discretion to revoke the cancellation of the Applicant’s visa.
I will now turn to whether there is another reason to revoke this cancellation.
ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
Introduction: the legal framework
Section 501CA(4) of the Act provides for a discretion to revoke the mandatory cancellation of a visa. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Ministerial Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that a decision-maker:
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]
[12] Direction No 65, paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) 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(1) 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.
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 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;
(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.
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that 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.
I address each of these elements in turn.
The nature and seriousness of the Applicant’s conduct to date
The Minister contends that the Applicant’s offending conduct as itemised in the National Police Certificate,[13] is serious. Such a contention, to my mind, is well made out. To date, the Applicant has a history of criminal behaviour that has unquestionably escalated in severity and which betrays a lack of respect for the institution of law enforcement –particularly for law enforcement officers – in Australia.
[13] Exhibit 5, T-Documents, T 2, pp 117-120.
The Applicant has not denied the fact of his offending. Rather, he has tried to explain it away. In particular, he has placed emphasis on the diagnosis of his mental health issues. A report by International Health and Medication Services (“IHMS”) dated 15 December 2016 says the following:[14]
Mental health issues:
Personality Disorder: Mr Kennell has been followed up regularly by the IHMS GP and Mental Health Team for issues of insomnia and symptoms of depression. In Jun 2016, the detainee [i.e. the Applicant] was reviewed by an IHMS Psychiatrist who noted that Mr Kennell has a long history of impulsivity and sensation seeking which stems from childhood, and these traits are possibly compounded by his head injury which occurred as an adult. Furthermore, it was advised that he experiences anxiety symptoms occasionally when he gains awareness of his aggressive behaviour. As such, it was recommended that Mr Kennell continue to take regular prescribed mental health medications to assist with symptoms. Since this time Mr Kennell has continued to be followed up and it has been noted by the Psychiatrist that the detainee has a Personality Disorder characterised by impulsive behaviour, rage and lack of remorse.[15]
[14] Ibid, T 51, pp 685-687.
[15] Ibid, p 686.
Whilst this report may be informative about the symptomatology of the Applicant’s mental health at a given time, it says nothing about how those (or any other) symptoms have contributed to, or directly resulted in, the Applicant’s propensity to offend. Perhaps more significantly, there is no suggestion in the report (nor anywhere else in the evidence) that the treatment being received by the Applicant has helped him to manage those symptoms such that a decision-maker could glean even a modicum of confidence that those symptoms are unlikely to be causative factors behind any future offending.
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly includes the following:
(a) The principle that… violent and/or sexual crimes are viewed seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) The sentence imposed by the court for a crime or crimes;
(d) The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(e) The cumulative effect of repeated offending;
(f) …
(g) Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status…;
(h) Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention… is serious…
There can be no question that the Applicant has been a frequent offender during his time in Australia, committing some 21 offences over a period of six years. There also seems to be a trend of increasing seriousness in his offending, with his most recent offending involving the unlawful stalking of a police officer and using an electronic carriage service to harass or cause offence to another police officer. Notably, 15 of the 21 offences were committed between August 2013 and November 2015.
These are not offences of misguided, impetuous or miscreant youth. The Applicant was over 30 when he committed his most serious offences. As mentioned, these are not minor offences in the form of misdemeanours or minor regulatory breaches. These stalking offences involve the deliberate “planting” of material on a broadly accessible electronic platform designed to harm the very people charged with responsibility for upholding and enforcing the laws of this country. Specifically, the laws that the Applicant should have been faithfully observing as part of his making a contribution to the fabric of this country.
Nor can the balance of the Applicant’s serious offending simply be played down. Variously described, this additional offending involves stealing, the possession of a weapon and the mishandling of shop goods. Critically, there is also a charge of assaulting or obstructing a police officer. The Respondent contends, correctly in my view, that this offending, as well, should be regarded as serious.
Much can be gleaned from the learned Magistrate’s sentencing remarks in sentencing the Applicant for the stalking offending on 27 April 2016.[16] The Magistrate commenced with outlining the circumstances of the conduct giving rise to the unlawful stalking charges:
You’re also being dealt with in relation to a Commonwealth offence, an offence under the Commonwealth Criminal Code: of using a carriage service to menace or harass. The unlawful stalking offence carries a maximum punishment of five years’ imprisonment, the Commonwealth offence a maximum of three years’ imprisonment. You’ve pleaded guilty when called upon in respect of all of the charges today.
The circumstances of the offences are contained in a statement of agreed facts. The three less-serious state offences are relatively uncontroversial, but the stalking offence involves you in deliberate and, it appears, fairly premeditated conduct towards the complainant, a serving police officer, Constable Woodman.
On the agreed facts – and it was accepted, after an opportunity of obtaining some further instructions from you, by Mr Towne, who appears on your behalf – the [sic] Constable Woodman’s conduct towards you at all times could not be the subject of any criticism whatsoever. You were arrested by him. You were arrested by him without incident. Following that arrest, you took it upon yourself, it appears in an effort to cause difficulty, to unlawfully defame or to cause angst to him, to post allegations on the internet that were completely falsified, that were serious, involving allegations that Woodman had assaulted you, that Woodman had assaulted a disabled person. As a consequence of that, that conduct incited others to post comments on the internet that were similarly derogative – derogatory, threatening and defamatory of Woodman.
Not content with having done that, on the 31st of October, in 2015, after you were interviewed in respect of the offences, you again posted further comments in relation to Constable Woodman that were similarly as serious. They involved wholly falsified allegations in relation to his conduct both towards you, including photos that falsely purported to represent injuries you sustained as a consequence of an assault at his hands; again allegations that he’d assaulted a disabled person. Again, those posts were widely – that post was widely disseminated. There were a number of responses to it that similarly were no doubt extremely concerning to the complainant and his immediate family.[17]
[16] Ibid, pp 121-127.
[17] Ibid, p 122.
It is clear that the sentencing Magistrate was in no doubt about the seriousness of this conduct giving rise to the stalking charges. Later in the sentencing remarks, His Honour said:
In respect of the stalking offence, it in my view involved such serious allegations involving serving – a serving police officer, and reflective of what seems to be a continuing course of conduct, even over a fairly short period of time, that a period of imprisonment in the order of 18 months is appropriate. In respect of the stalking offence, you’re sentenced to 18 months imprisonment;[18]
[18] Ibid, p 125.
For the sake of completeness, it is worth recording the sentencing Magistrate’s comments regarding the balance of the offending that was dealt with on that day (27 April 2016):
…on the wilful damage involving police property, one month imprisonment; the wilful damage in respect of the hospital property, three months’ imprisonment. Those periods of imprisonment are to be served concurrent with the head sentence and concurrent with each other. In respect of the drug offence, you’re convicted and not further punished.[19]
[19] Ibid.

The sentencing Magistrate’s remarks about the stalking offending occurring “…over a fairly short period of time…” are apposite. The national police certificate indicates that the conduct giving rise to this offending occurred between 29 October 2015 and 27 November 2015 (for the stalking pursuant to s 359E(1) of the Queensland Criminal Code) and between 19 November 2015 and 22 November 2015 (for using a carriage service to menace, harass or cause offence pursuant to s 474.17(1) of the Commonwealth Criminal Code). Thus, this very serious stalking conduct, viewed in totality, cannot be regarded as isolated offending or something that occurred on a “one-off” basis. It does not have its origin in a specific adverse event that may have affected the Applicant’s conduct such as to cause him to have a momentary lapse of reason. As observed by the sentencing Magistrate, the conduct giving rise to the stalking charges reflected a continuing course of conduct wherein the Applicant knew exactly what he was doing and engineered his conduct to deliberately besmirch the reputation of Constable Woodman.
The circumstances of the Applicant’s conduct giving rise to the Commonwealth Criminal Code offence also involved him making threats to another police officer (Detective Sergeant McGleish). The learned sentencing Magistrate regarded this conduct as “…extremely concerning,” and it was a significant factor behind the imposition of a custodial term of six months for this offending.
I am of the view that the Applicant’s conduct is readily capable of characterisation as “serious”. That is the starting point, particularly when one has regard to the nature of the non-stalking offences involving, as they did, drug offending under the Drugs Misuse Act 1986 (Qld) and two offences of wilful damage with one of those offences involving police property.
This characterisation of the Applicant’s conduct as “serious” can be graduated to “very serious” when one has regard to the totality of his conduct giving rise to the stalking charges involving, as it did, serving police officers. I characterise this conduct as very serious on two grounds: (1) there can be no question that the Applicant knew precisely what he was doing and engineered his conduct in such a way as to cause maximum reputational harm to the reputation of Constable Woodman; and (2) such conduct was towards public officials charged with responsibility for upholding and enforcing the laws of this country, for the protection of the greater community, and so to my mind constitutes an open challenge to such lawful authority.
In the circumstances of such conduct, I find that the Applicant’s conduct to date is of a very serious nature.
There are a couple of other aspects to the Applicant’s conduct that also point to its seriousness. He has a history of domestic violence towards his former spouse and her 17 year old sister. A particularly concerning aspect of this domestic violence behaviour is that it occurred in the presence of his daughter, then aged 11 months. The description made by the police of the circumstances of the offending giving rise to the domestic violence issue makes for sombre reading:
When the aggrieved’s sister… attended the address she became involved in a physical altercation with the respondent where they both through [sic] punches at each other, neither party landed a punch on the other person. The sister has then picked up the aggrieved and respondents [sic] daughter to take her outside away from the fighting when the respondent has picked up a full orange juice bottle and threw it at her sister, narrowly missing the baby and hitting the sister in the hand…
Police believe that there is a strong likelihood that acts of Domestic Violence will continue. The aggrieved stated that the abuse is quite common, and has continued for the entirety of the relationship. Police have been called 3 times previously in the past. The aggrieved and the respondent have a child together and the aggrieved is also currently 7 months pregnant. Police believe that it is necessary to protect the aggrieved. The aggrieved has been subjected to years of verbal abuse but has never reported it in the past. The aggrieved has become more concerned with the level and consistency of the abuse and is feeling quite scared. The aggrieved stated that the respondent uses stand over tactics and tells her that she is a derelict, comes from a derelict family, no one likes her, no one want [sic] her and she should just go and kill herself. The level in which it has escalated, Police believe it is necessary to protect the aggrieved.[20]
[20] Ibid, T 2, p 254.
The Applicant cannot assert that his domestic violence offending is limited to this incident. The circumstances giving rise to this intervention by the police and the making of this order are serious, especially because they involve reckless and irresponsible conduct by a 30 year old person in front of his 11 month old daughter and heavily pregnant spouse. The conduct was dangerous. While the Applicant has not breached this domestic violence order, which does weigh in his favour, it is also clear that this is not an isolated incident. It is merely the most serious and most recent one. Further, the Applicant has had scant opportunity to breach this domestic violence order: it was issued in August 2015 and the Applicant has been incarcerated, in immigration detention or overseas since the start of December 2015.[21] Barely three and a half months elapsed between this domestic violence order and the Applicant’s being held on remand for his stalking charges. Of that time, there is evidence that the Applicant did not see his daughter for some eight weeks. That does not, to my mind, constitute sufficient time to show that the Applicant is unlikely to commit further domestic violence offences.
[21] Ibid, T 15, p 404.
The Applicant has shown a disregard for lawful authority (via the stalking charges) and a lack of respect for the personal rights of others (the domestic violence order). He displays a similar nonchalance towards specific correspondence alerting him to matters directly relating to his own interests. On 25 November 2015, the Respondent sent an email to the Applicant.[22] That correspondence comprised a notice of intention to consider cancelation of his visa. The department had been alerted about the Applicant’s history of offending and his then outstanding offences, but did not include any reference to the conduct amounting to unlawful stalking. This correspondence also made reference to the incidents giving rise to the abovementioned domestic violence order.
[22] Ibid, T 11, p 392.
The terms of this notification could not have been clearer:
Dear Mr Kennell,
An appointment has been made for you to attend the Dept of Immigration & Border Protection at Cairns Regional Office, Level 2, 85 Spence Street, Cairns, QLD 4870 on Monday 30 November 2015 at 0900hours.
The appointment is to discuss the issuing of a Notice of Intention to Consider Cancellation (Form 1099 attached consisting of five (5) pages) and to provide you an opportunity to respond to this notice.
Please find Direction 63 under Section 499, Migration Act 1958 which is also attached for your information.
Thank you.[23]
[23] Ibid, T 10, p 392.
Thus the Applicant was under no illusion that the conduct giving rise to his then offending history put him at risk of having his visa revoked. I repeat the date of this notice – 25 November 2015. This notice was received towards the end of the Applicant’s spree of stalking. However, it is also evidence that he continued his offending for another two days after receiving this notice, even though he had been warned of the possible consequences of his offending.
Taken in totality, I find that the nature and seriousness of this Applicant’s conduct to date is of a very serious nature.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The assessment of this risk requires me to consider two specific paragraphs of the direction:
(a)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the Applicant behave in further criminal or other serious conduct.
(b)Paragraph 13.1.2(2)(b) requires me to have regard to the likelihood of the Applicant engaging in further criminal conduct, including evidence of reoffending and rehabilitation.
The nature of the harm to individuals or the Australian community should the person engage in further criminal or serious conduct
The Applicant has committed a number of offences involving significant transgressions against the personal and property rights of others. This offending, taken in totality, can only be viewed as serious. His conduct giving rise to the stalking offences is indicative of several things: (1) his lack of insight into both the actual and potential catastrophic effect on another person’s good name and reputation as a result of his reckless indifference towards the consequences of what he published on the internet about other people; (2) his refusal to respect and defer to the lawful authority represented by the police officers towards whom his very serious conduct was directed; and (3) the deliberate engineering of his conduct in publishing patently false and manufactured material about and against Constable Woodman, which the Applicant knew would both besmirch Constable Woodman’s good name and reputation and would incite others to have similar views of him.
The circumstances giving rise to the domestic violence order are similarly very serious and disrespectful of the personal rights of others, in particular, women (his spouse – then 7 months pregnant – and her sister) and truly vulnerable members of our community (his then 11 month old daughter). One should perhaps never be ‘thankful’ for a person’s incarceration. However, it seems that the Applicant’s incarceration has, for present purposes, ruled out any possibility of further conduct giving rise to a breach of the abovementioned domestic violence order.
There seems to be a developing theme in the Applicant’s offending involving a refusal to respect and submit to lawful authority and to be respectful of the personal rights of others, especially those over whom the Applicant may consider he has some level of dominion, such as his ex-spouse and infant child. The Applicant’s criminal history is suggestive of an overall demeanour orienting him towards feeling he can automatically get his own way or that it is open to him to engineer circumstances with the effect of exposing others to serious risk to achieve such a self-interested objective.
He did receive a warning from the Department that his conduct – to that point – had caused his visa to be placed in jeopardy. The Applicant failed to respect that warning and his conduct continued unabated. Having regard to the nature of this past conduct, should he re-offend in a similar manner, I am of the view that he would pose a very significant risk to individuals in the Australian community. The risk of harm to police officers and other people in lawful authority, as well as to vulnerable members of the community as a result of the Applicant’s serious conduct – if repeated – could result in members of the Australian community suffering anything from financial or reputational loss to serious physical or psychological injuries. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is significant.
The likelihood of the person engaging in further criminal or other serious conduct
The Applicant says that he has learned his lesson, that he is genuinely remorseful and that he has a “newfound respect” for the law, arising from the impact he has felt on his relationship with his children.
Having listened to the Applicant at the hearing, I recognise that he does feel significant regret about his past pattern of behaviour, and acknowledges the impact his behaviour has had on those close to him.
Be that as it may, such apparent contrition alone cannot form the basis of any assessment of the risk to the Australian community were this Applicant to reoffend and engage in further serious conduct. The Respondent contends that there is a real risk of the Applicant re-offending in the future because – especially prior to the hearing – he expressed little remorse for his actions. He seems to have a limited insight into his offending, even prior to the conduct giving rise to the stalking offences, because he has characterised his pre-stalking conduct as merely “misdemeanours”. The Respondent’s contention is correct: this is a mischaracterisation of that pre-stalking offending in a vain attempt to ameliorate it.
Both during the hearing before me and during his sentencing hearing for, inter alia, the stalking charges, the Applicant sought to make something of a written apology he apparently provided to Detective Sergeant McGleish, one of the two victims of his stalking conduct. The veracity of any submission of remorse based upon that purported apology can be gleaned from the transcript containing the learned Magistrate’s sentencing remarks. His Honour begins with:
BENCH: …I was not addressed at all in the course of the submissions made on your behalf in relation to the issue of remorse. The pleas of guilty can, of course, constitute a recognition of remorse; by the same token, they can reflect an overwhelmingly strong Prosecution case. The fact that there was no submission made that you were remorseful in relation to your conduct, the fact that had there been, that’s not been manifested in any aspect of your conduct – that is, notwithstanding the mischief and difficulty you’ve caused two police officers, you’ve not seemed to make any apology at all – is reflective of the fact that little, in my view, weight should be placed upon that feature of mitigation on your behalf.
DEFENDANT: [indistinct] there was an apology sent to the Court, your Honour, in December. I sent [indistinct] ---
BENCH: If you wish to be – if you wish to address me further, sir, you can do so through your solicitor. You’re being represented today. He’s made submissions.
DEFENDANT: [indistinct] I sent it – it’s been authorised by the Clerk of the Court I sent an apology to [indistinct] McGleish.
MR TOWNE: It was before my involvement in the matter, your Honour. But I’ve made my submissions ---
BENCH: Yes
MR TOWNE: --- in respect of – well, the mitigation in terms of that. As I say ---
BENCH: Yes, and ---
MR TOWNE: --- it’s a plea of guilty [indistinct].[24]
[24] Ibid, T 2, pp 123-124.
With particular reference to his very serious conduct giving rise to the stalking charges, the Applicant has propounded an equally pointless position. He now purports to renounce his previous acceptance of the content of the statement of agreed facts particularising the relevant conduct. He now says that this statement of agreed facts is somehow “not correct” and that he only accepted its contents and pleaded guilty because he wanted to complete his sentence as soon as possible. This contention goes nowhere in circumstances where the Applicant was legally represented in April 2016 at the time of his sentencing for the stalking charges. The contention is also rendered pointless when one has regard to the comments of the learned sentencing Magistrate:
The circumstances of the offences are contained in a statement of agreed facts. …
On the agreed facts – it was accepted, after an opportunity of obtaining some further instructions from you by Mr Towne, who appears on your behalf…[25]
[my underlining]
[25] Ibid, T 2, page 122.
It is therefore clear that the Applicant was taken through the statement of agreed facts and instructed his representative to notify the sentencing court that he agreed with it. This agreement was not conditional and, even if it was, it is very unlikely the sentencing Magistrate would have based his sentence on any such conditional agreement. No submission was made on behalf of the Applicant that his plea of guilty was designed to dispose of the stalking charges quickly so that his custodial time could be lessened. Any submission now that the Applicant did not agree or accept the statement of agreed facts and that his plea was motivated by a desire to decrease the length of his time in actual custody, is, on a generous view, misconceived.
Further and in any event, I consider that the long-established rule that the Tribunal cannot go behind criminal convictions clearly applies here.[26] Particularly where (1) the Applicant pled guilty to the charges; and (2) the Applicant did not appeal either his sentence or conviction, it would be wrong to find anything other than that the Applicant committed the offences of which he was accused.
[26] See, e.g., Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135.
Similarly, I dismiss any suggestion by this Applicant that his conduct amounting to the unlawful stalking involved little more than him putting up a Facebook post. This is both a disingenuous and preposterous contention, because it pretends to ignore the very real impact of disseminating such false, misleading and, indeed, defamatory information via a medium accessible to the whole world. At the risk of repeating myself, when viewed in totality, this conduct was not “just a Facebook post” with no ramifications. What the Applicant caused to be disseminated about Constable Woodman was, as observed by the learned sentencing Magistrate, clearly engineered to besmirch the previously unblemished reputation of that police officer.
This conduct is augmented by the Applicant’s direct threats made towards Detective Sergeant McGleish’s family. The relevant conduct is recorded in the remarks of the sentencing Magistrate:
Not content with that,[27] Mr Kennell, after you were investigated in relation to that – those criminal offences by Detective Sergeant McGleish, he then became the focus of your unlawful and concerning conduct. The agreed facts indicate that you telephoned the Cairns CIB on a number of occasions and left message [sic] for McGleish which were clearly meant to threaten or harass him. Those threats, on the agreed facts included the following words:
McGleish is putting his family at risk by not giving me my phone and I will find out where McGleish lives and come to visit McGleish, and that could be very bad for McGleish’s family.
They were threats. You seemed, both in the context of the investigation of it and generally in relation to your conduct towards the police to have shown little or no remorse in relation to your conduct.[28]
[my underlining]
[27] That is, posting of deliberately false and damaging material on Facebook about Constable Woodman.
[28] Ibid, T 2, p 123.
The Applicant, at various stages of the proceeding, has claimed he was suffering from brain trauma as a result of an incident in his younger years. He has variously spoken of this asserted trauma, relative to his conduct giving rise to the stalking offending. In a statement dated 26 May 2016, the Applicant said:
…taking to social media was not an apropriate responce [sic] and there were in fact better systems in place for me to express my views, having just had a serious brain malfunction (Grand Mal Seizure) I was not in the best frame of mind to say the least.[29]
[29] Ibid, p 145.
In another statement dated 25 July 2016, the Applicant said:
At the time of making the status [i.e. publishing the false material about Constable Woodman on Facebook] I was not in a good frame of mind, I had suffered from a grand mal epilectic [sic] seizure the week before and I was having great marital issues with my wife, which had resulted in me not having seen my daughter in about 8 weeks. All of this has taken its toll on me mentally and I was subsequently in a very poor state of mind.[30]
[30] Ibid, pp 171-172.

In a further statement dated 11 August 2016, the Applicant said:
I felt extremely disgruntled about what the officer had done to me. I was still very out of sorts mentally and took to social media to express what happened. I wrote my account of what had happened, what I wrote in heinsight [sic] embellished exactly what happened and other people not known to me wrote derogitory [sic] comments and threats to the officer (I never once wrote any kind of threat) this made the officer feel intimidated and though I did not realise it, I had effectively stalked the officer and was punished.[31]
[31] Ibid, pp 224-225.
The asserted history of epileptic symptomatology is descriptive, but there is nothing more than assertions before me even remotely suggestive of these propounded symptoms being in any way causative of some or all of the Applicant’s conduct giving rise to his criminal history. I am also of the view that the Applicant has limited insight into his conduct towards the Police Officers, especially Constable Woodman.
While the Applicant speaks of “…talking to social media was not an appropriate responce [sic]” and of not being “…in a good state of mind…” and of “…being out of sorts mentally…” when he committed his offences, his words do not indicate he has achieved any genuine insight into his conduct and the criminality inherent in it.
The essence of what he has done lies in not simply resorting to the cowardly vestige of social media to ventilate his thoughts about something affecting his life. Social media is not a harmless community bulletin, as the Applicant perceives it. The Applicant has deliberately utilised this unregulated platform to engineer a pre-meditated attack on Constable Woodman – which, effectively launched an intentional smear campaign against that Police Officer. The Applicant has not understood or accepted that how he sought to besmirch Constable Woodman constitutes the truly serious basis of his stalking conduct for which he was duly charged and sentenced.
A further lack of insight can be found in the Applicant’s words “I felt extremely disgruntled about what the officer [Constable Woodman] had done to me.” The critical point – borne out by the basis on which the Applicant pleaded guilty to the stalking charge – is that Constable Woodman did not “do” anything to the Applicant other than properly discharge his important function as a law enforcement officer.
Noting the Applicant’s asserted condition of Grand Mal epilepsy, any connection between that condition and his conduct giving rise to that offending is, at best, tenuous, but more likely, non-existent. The sentencing Magistrate noted that the Applicant pleaded guilty to the stalking (and other) charges without any reliance upon medical evidence explaining how – if at all – the Grand Mal symptoms and/or associated “brain trauma” contributed to his propensity to commit the offences to which he pleaded guilty and for which he was duly sentenced.
BENCH: …I’m proceeding – I’m [indistinct] sentencing him. Take into account personal – matters personal to you. You were 30 at the time of the commission of the offence. You’re 30 now. There’s no material placed before me that indicates you have any medical condition or anything else which would – might – which might otherwise explain what is extremely concerning and serious conduct towards serving police officers.[32]
[my underlining]
[32] Ibid, T 2, page 124.
I am placed in a similar position. Although the Applicant and his mother have provided both written and oral statements about the Applicant’s epilepsy and its effects on him, these remain uncorroborated by medical evidence. Given they are a major excuse of the Applicant for his offending conduct, I cannot attribute much weight to them. Simply, these claims do not seem credible.
I note that while he spent a considerable amount of time in immigration detention, the Applicant ultimately took up an offer to depart Australia, primarily to (1) obtain some kind of medical evidence and treatment for his propounded condition; and (2) arrange for legal representation, even if his family had to engage private representation and to pay for it. In the end, no such medical reports or legal assistance were forthcoming and, without any qualifications, he represented himself by phone at the hearing.
In summary, I find that the Applicant’s inability or unwillingness to control his behaviour or comprehend its consequences means he is likely to engage in further serious conduct if he were to remain in Australia. The harm that would be occasioned were he to reoffend would be both substantial and serious, as indeed is the conduct the Applicant has already engaged in. In consideration of the above factors, I consider that Primary Consideration A weighs heavily in favour of the Applicant’s visa being refused.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels decision makers to make a determination about whether revocation is, or is not, 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 old 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 Applicant has two minor children with his former partner. The children are respectively a daughter aged three years and a son aged two years. Thus, the provisions of paragraphs 13.2(1)-(3) are activated such that I am required to make a determination about whether a refusal to revoke the mandatory cancelation of the Applicant’s visa, is or is not in the best interests of the two relevant infant children.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children for present purposes. Those factors comprise:
(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 con-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.
There is a ready acknowledgement of the reality that in a difficult and sad case such as this, there is a genuine possibility that those children will be impacted by this decision. However, that possibility must be tempered by the reality that the Applicant has had very little contact with the children during their lives and their interactions thus far.
The Applicant was taken into pre-sentence custody on 2 December 2015 for his criminal (and other) offences. A parole release date was fixed for 2 June 2016,[33] whereupon he was taken into immigration detention.[34] He remained in immigration detention until 18 December 2017, on which date he voluntarily departed Australia and returned to the United Kingdom, where he presently resides.
[33] Exhibit 5, T-Documents, T 15, p 404.
[34] Ibid, T 23, pp 525-532.
I turn now to an application of the factors appearing at paragraph 13.2(4) of the Direction.
With reference to factor (a), the Applicant was first jailed when his daughter was a little over 14 months old and his then-wife was about eight months pregnant with their son.[35] The Applicant has admitted that when he was arrested, he had not seen his daughter in eight weeks.[36] The net effect of this is that he has (1) only lived with his daughter for approximately 12 months; and (2) has never met his son. Put another way, the Applicant has, at best, lived with his now three year old daughter for a little over a quarter of her nearly four years. He has never met his son, who is now nearly three. Accordingly, I am not able to make any positive finding about the nature and duration of the relationship between the children and the Applicant such as to warrant setting aside the decision to revoke his visa. Simply, he has spent insufficient time with either of his children for this factor to attract much weight. That is not to say that he does not care about them – Exhibit 9 comprises a story he wrote his daughter. It is further evident from the Applicant’s evidence that he desperately wants to play a significant role in his children’s lives. That is to his credit. However, that does not mean that he has played such a role to date. It is abundantly clear he has not.
[35] Ibid, T 2, p 137.
[36] Ibid, p 172.
With reference to factor (b) of 13.2(4) of the Direction, I note the daughter is nearly aged four years and thus has 14 years until she turns 18. The son is aged two years and has a little over 15 years until he turns 18. Combined, there is something in the order of 31 years of parenting time between the two children until they attain the age of majority. Can it reasonably be expected that the Applicant will play a positive parental role in the future? It is difficult to positively answer this question in light of the Applicant’s domestic violence conduct both towards the children’s mother and in front of his daughter and given how little time he has actually spent with his children.
There seems little or no evidence of any sort of good relationship between the Applicant and the mother of his children. There are not, and never have been, any parenting orders for the children. It would seem any sort of workable parental collaboration would have to be forcibly imposed on the parents by one of them (most likely, the Applicant) obtaining a Court order for the parenting of the children. The evidence points to the mother (and her family) wanting nothing to do with him. Indeed, she has given a sworn statement saying she wanted to get full custody of her children.[37]
[37] Ibid, p 236.
The Applicant’s relationship with the mother of his children did not end well and shows no sign of improving. I have described the unsavoury and indeed dangerous circumstances leading to a police application for a Protection Order on behalf of the mother. She made her feelings clear in the sworn statement she provided in support of the application for the domestic violence order:
25. He keeps threatening me that if I don’t do what he says that he will send his “boys” over to sort it out and check up on me. By Boys he means people in prison.
26. I am no longer living at [the address where she lived with the Applicant]. I now live in Innisfail with my parents and two children. Charlie is not welcome at my parents’ house. I am in the process of getting another domestic violence order against him. My parents and I are scared when he gets out of prison he will come to my house and try and take my kids from me.
27. I am in the process of trying to get a divorce from Charlie. When me and Charlie were married he pushed me really hard to get married because he kept saying that it would be good for him to stay in Australia and he would be able to get the right visa. That was the reason he wanted to get married.
28. I will be going to the family law court to try and get full custody of my children.[38]
[38] Ibid.
Having regard to (1) the very limited, indeed marginal, involvement of the Applicant in the lives of the children to date; (2) the obviously hostile state of any relationship between the Applicant and their mother, marked as it is, with domestic violence; and (3) the absence of any court-ordered or consented scheme of ongoing parental care for the children that I am aware of, I do not find that factor (b) of paragraph 13.2(4) of the Direction lends any support to a contention that the best interests of the children are served by a revocation of the Minister’s decision cancelling the Applicant’s visa.
Factor (c) of paragraph 13.2(4) of the Direction requires me to consider the impact of the Applicant’s prior conduct, and whether any likely future conduct has, or will have, a negative impact on the children. I have earlier described the Applicant’s consistent history of offending, culminating in the serious offending for which he was sentenced in April 2016. He has limited insight into his serious offending in particular. The Applicant has not fully comprehended the harm, both in terms of reputation and stress, he caused to Constable Woodman. His manipulative conduct towards the mother of his children does not bode well when assessing whether any future offending will impact the children.
It is notable that the Applicant did not regard the presence of his daughter (who was standing next to her mother) and his then-unborn son as any impediment to committing the acts of domestic violence which culminated in the domestic violence protection order. The Tribunal cannot reasonably believe that returning to either live with his family unit – a prospect entirely excluded by the mother – or even residing in the same locality as the family unit would lessen his risk of re-offending.
I have earlier provided my views as to the likelihood of the Applicant committing further acts of domestic violence. In circumstances where his prior domestic conduct has been impactful on his daughter and her mother, it is not a long stretch to find that such conduct (1) would be likely to continue into the future; and (2) it would undoubtedly have a negative impact on either or both of his children. Accordingly, the best interests of the children will not be served if the Minister’s cancelation is revoked and the Applicant is allowed to return to Australia where his past conduct has directly impacted his daughter and any likely similar future conduct will be impactful on both children (and their mother).
Factor (d) of paragraph 13.2(4) of the Direction requires an assessment of the likely effect that any separation from the Applicant would have on the children, taking into account the Applicant’s ability to maintain contact in other ways. The children are both under four years of age. They have both been separated from their father for more than two and a half years – a huge portion of the daughter’s young life, and the entirety of the son’s.
The Applicant is obviously a keen social media user, even if he has used it to perpetrate his offending. There seems nothing to suggest the Applicant will experience any real difficulty in maintaining visual and real-time contact with the children via Skype and other digital platforms. The extent of such contact will most likely be conditioned by the terms of any Court orders governing parenting arrangements for the children, the existence of which I have not been informed about. In circumstances where (1) the children barely know the Applicant (one child does not know him at all); and (2) the Applicant’s likely capacity to maintain contact with his children in other ways, I do not consider that this factor (d) of paragraph 13.2(4) of the Direction favours the revocation of the decision to cancel the Applicant’s visa.
Factor (e) of paragraph 13.2(4) of the Direction asks the question of whether there are persons who already fulfil a parental role in relation to the children. Clearly, there are. Indeed, those “other persons” involved in the parenting process of the children are – with some justification it must be said – actively rallying against the idea of the Applicant playing any sort of parental role.[39]
[39] Ibid.
I have outlined the factual circumstances giving rise to the making of a domestic violence order against the Applicant. What is evident from this aspect of the material is that the Applicant has effectively secured his own preclusion from the parenting process. It is his actions that caused the domestic violence order to be made against him. The children’s mother clearly fulfils a parental role in relation to the children. She is in no way seeking any collaboration with the Applicant about parenting and was, as early as February 2016, going to “try and get full custody of my children”.[40]
[40] Ibid.
The Applicant’s children and their mother have moved to Innisfail with the two children to live with the mother’s parents. I am satisfied it is very probable that her parents would form part of the cohort of “other persons” who fulfil a parenting role in relation to the children. It is difficult to see how, if at all, the Applicant can consider himself part of the parenting process save and except for him obtaining appropriately worded Court orders facilitating this. We know the mother and, no doubt, her family, would oppose any application for such orders. There are clearly “other persons” to parent the children. I am accordingly satisfied that the best interests of the children are met where the Minister’s cancelation decision is not revoked.
Factor (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to the age and maturity of the children. There is nothing before the Tribunal from either a lay or expert witness detailing those views. Further, I am of the view that the children are of such a young age (both under four years of age) that any view they were to express now cannot be relied upon with any level of certainty.
Factor (g) of paragraph 13.2(4) of the Direction looks for evidence that the Applicant has abused or neglected the children in any way, including physical, sexual and/or mental abuse or neglect. There is no evidence of deliberate, intentional or wanton abuse of the child or children by the Applicant. This factor therefore has no weight.
Factor (h) of paragraph 13.2(4) of the Direction looks for evidence that the children have suffered or experienced any physical or emotional trauma arising the Applicant’s conduct. Reduced to its bare essentials, the Applicant’s conduct resulting in the domestic violence orders, luckily, saw the orange juice bottle only strike the hand of the mother’s sister while the sister was holding the daughter and not the daughter herself. Again, although it does not render this factor determinative for any finding about Primary Consideration B, I consider that the children’s best interests are served if the Minister’s revocation decision were not disturbed and that neither of the children were exposed to any such future conduct by the Applicant.
The Respondent asks the Tribunal to draw an adverse inference from the absence of any evidence from the mother of the Applicant’s children in support of his application for revocation. While an inference may arise from this reality, I think the mother of the Applicant’s children has made her position abundantly clear. She wants no part of any collaboration with the Applicant about parenting and considers both herself and her extended family well and truly estranged from him. This does not go so far as to lead to an adverse inference, but neither does it weigh in the Applicant’s favour.

Having regard to (1) the evidence as a whole; (2) my earlier findings as to the seriousness of the Applicant’s conduct and the resulting risk to the community were he to reoffend; and (3) an application of the factors at paragraph 13.2 (4) of the Direction, I am of the view that the best interests of the Applicant’s minor children in Australia does not weigh in favour of revocation of the decision to cancel the subject visa. Primary Consideration B is, at best, a neutral consideration.
Primary Consideration C: 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) 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. 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.
The essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending and his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. This broadly stated question must be broken down into a series of components so that it is properly understood and can be properly assessed.
The question 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 October 2007 aged 22 and began his offending conduct less than two years later in August 2009;
·He then committed further offences, which saw him before the courts or otherwise dealt with by lawful authority as a consequence of his behaviour on:
oMay 2010
oMarch and October 2011
oSeptember 2012
oTwice in January 2014
oApril and November 2014
oTwice in December 2014
oMay and June 2015
oApril 2016
·He was in custody on a continuous basis from 2 December 2015 until he voluntarily removed himself to the United Kingdom on 18 December 2017 ;
·Put another way, prior to returning to the UK in December 2017, the Applicant spent just over 10 years in this country. Two of those years were spent either in prison or immigration detention. His offending conduct saw him before the courts on 14 occasions in the remaining eight years;
·There is no reliable medical or other independent evidence either (1) providing a cogent or rational reason behind his demonstrated propensity to offend; or (2) giving this Tribunal any measure of confidence that the factors causing him to offend have been addressed or are otherwise under control.
I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to a given factual matrix. 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.”[41]
[41] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 (“ETWK”) at [102] and [103]:
102. …I considered this paragraph in some detail. I will not repeat my analysis but adopt its 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 noncitizens 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 the 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 made 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]
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a term of imprisonment of six months (i.e. December 2015 to June 2016) for his criminal and other offending 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 serious nature of his offending to date and its trend of increasing seriousness;
(ii)His refusal to accept and submit to lawful authority, crystalised, as it is, in the serious conduct against Constable Woodman and Detective Sergeant McGleish;
(iii)My assessment of a significant risk of substantial harm to the Australian community were this Applicant to re-offend;
(iv)An absence of independent medical or other evidence explaining the factors giving rise to the offending conduct and, in addition, demonstrating that those factors have now been ameliorated;
(v)the comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.
I am therefore of the view that the Australian community, especially with reference to this Applicant’s increasingly serious history of offending, including, as it did, domestic violence perpetrated against the mother of his children (and her sister) in front of his infant daughter, together with the undiagnosed and unresolved nature of any factors motivating that offending:
(i)would expect this Applicant to obey Australian laws while he is in Australia; and
(ii)would, in the circumstances of the Applicant’s very serious breaches of the trust behind that expectation, consider it appropriate that he does not continue to hold a visa.
At the hearing, the Applicant spoke of being given a second chance to resume his life in Australia. Does he deserve it? The answer to this question depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[42]
[42] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant arrived in Australia eleven years ago when he was 22 years of age. He committed the first offence less than two years after arriving here. It would be surprising for him not to be aware of consistent government and local community campaigning against domestic violence. The totality of his history reveals (1) a lack of insight into his offending as a whole; and (2) a trajectory of increasing seriousness and frequency of offending that could only concern members of the Australian public.
In the context of his life, he has only participated in the Australian community for a relatively short time – that is, less than one third of his life. Paragraph 6.3(5) of the Direction tells a decision maker that the Australian community has an understandably low tolerance for any criminal or other serious conduct by visa holders who have been here for a short period of time. I consider that the community has an expectation that the government should cancel a non-citizen’s visa if serious crimes have been committed in this country such as those particularly committed against Constable Woodman and Detective Sergeant McGleish. I also think the Australian community would have serious misgivings about and a low tolerance of this Applicant, given his history of domestic violence offending.
His offending in this country is clearly of a quite serious nature. Were he to re-offend, the risk of harm he would present to the Australian community would be quite significant. I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust of the Australian community it reposed in him when he first came here.
I therefore do not consider that the Australian community would be prepared to give this Applicant a second chance to return to Australia and resume his life here.
Having regard to this 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 visa cancellation. Accordingly, I find that this Primary Consideration C weighs heavily in favour of non-revocation.
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 is not relevant in this case.
(b) Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction stipulates two main factors to be considered in assessing the applicability of this other consideration. First, the length of a person’s residence in Australia must be examined, having particular regard to ancillary factors:
·if the person has commenced offending soon after arriving in Australia, less weight should be accorded to this other consideration;
·greater weight can be afforded to this consideration where the person has positively contributed to the Australian community.
Secondly, the strength, duration and nature of any family or social links the Applicant has with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia.
As outlined above, the Applicant arrived in Australia in October 2007 and found himself before the Courts in August 2009, less than two years after his arrival. There is a ready concession by the Respondent that the Applicant has demonstrated an involvement in the cultural life of his previous local community in Cairns.[43] This concession seems well-made in light of the Applicant’s involvement in organising various pop culture events in Cairns.[44] This weighs in favour of the non-revocation of the Applicant’s visa.
[43] Exhibit 3, Respondent’s SFIC, [69].
[44] Exhibit 5, T-Documents, T 2, pp 175-219.
The Applicant has family both in Australia and the United Kingdom. Here, his family primarily consists of his two infant children. He also has two aunts or uncles living in Australia. In the United Kingdom, the Applicant’s relatives comprise his mother, two siblings, his two grandparents, four nieces or nephews and eight cousins.[45]
[45] Ibid, 140
I have earlier outlined the quite limited parental role and involvement the Applicant has played in the life of his young daughter. He has never met his son. To my knowledge, there are no Court orders or other legally enforceable parenting plan between the Applicant and his former spouse in relation to the children. However, the children’s mother has stated a clear intention to obtain sole custodial rights in relation to the children. She evidently considers herself absolutely estranged from the Applicant and wants little or nothing to do with him. The same applies to her family. In these circumstances, it is difficult to form any concluded view as to the actual strength of the Applicant’s familial ties to Australia.
The Respondent accepts the Applicant has friends in Australia.[46] This is probably an opportune moment to talk about references provided on behalf of the Applicant. A character reference has previously been submitted by a friend of the Applicant, a Mr Jackson Bradshaw,[47] in support of the Applicant’s request for revocation by the delegate of the Minister. Strictly speaking, Mr Bradshaw’s reference was not provided for the purposes of this level of review. Be that as it may, it is worth pointing out that Mr Bradshaw refers to his personal friendship with the Applicant and that in all of his dealings with him, he has found the Applicant to be “…quite an upstanding gentleman in regards to his business deals, and in personal interactions [he] has been a supportive figure in my life during hard times…” Mr Bradshaw goes on to attribute the circumstances of the Applicant’s offending conduct to “…the major life stressors of starting a new family associated with immigration issues… not to mention the balancing act of running a small business in this crazy economy.”[48]
[46] Exhibit 3, Respondent’s SIFC, [73].
[47] Exhibit 5, T Documents, T 2, pp 227-228.
[48] Ibid, p 228.
Two references have been tendered in these proceedings. The first is from Bradley Ferrier, who is a friend of the Applicant.[49] Mr Ferrier states that he acted as a witness to the Applicant’s wedding. Mr Ferrier talks about the Applicant’s apparent turn to faith and says “Irrespective of any details, the reason he most cited for his faith was he was trying to improve his own character and Christianity was helping him grow as a person.” Mr Ferrier added, “In simple terms I would just say Charlie is a good man… I would have no hesitation in assisting with any situation.” Mr Ferrier concludes his statement by saying the Applicant has his “…full support.”
[49] Exhibit 6, Statutory declaration of Bradley Ferrier, made on 18 April 2017.
The second reference tendered in these proceedings is from Ms Sharon Clarkson and is dated 13 March 2018.[50] Ms Clarkson is the Applicant’s mother. She speaks of the motor vehicle collision resulting in the Applicant suffering a brain trauma. According to Ms Clarkson, following the motor vehicle collision, the Applicant was in intensive medical care for 14 days. She describes his epileptic seizures in some detail. Her evidence during the hearing was largely uncontroversial and consistent with her written statement.
[50] Exhibit 8, Statement of Sharon Clarkson, made on 13 March 2018.
Taken in totality, each of these three references is from a person who is either a personal friend of the Applicant or directly related to him. To my mind, these referees are too close to the Applicant to be considered sufficiently independent and objective such as to carry any significant amount of weight for present purposes. As noted and accepted by the Respondent,[51] it is clear the Applicant has friends in Australia and that he has maintained a close relationship with his mother during the time he has spent in this country. As best as I understood the evidence at the hearing, the Applicant’s “home base” in the United Kingdom is at his mother’s residence. Given she does not live in Australia, this reference of course cannot go towards the Applicant’s links to Australia. Ultimately though, I consider these references to be, at best, supportive of a finding that this Other Consideration weighs marginally, if at all, in favour of the Applicant.
[51] Exhibit3, Respondent’s SFIC, [73].
(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
There is no specific evidence about the impact on any victims of the Applicant’s offending. I am, however, mindful that the mother of the Applicant’s children, the children themselves and the family of the mother reside in Australia. There are no victim impact statements (or equivalent) from any of the parties affected by the Applicant’s domestic violence conduct. Suffice it to say that (1) the Applicant’s conduct giving rise to the domestic violence orders speaks for itself; and (2) things cannot be said – on any reasonable view – to be harmonious (or to have any prospect of becoming harmonious) between the Applicant and those aggrieved by his domestic violence conduct. Indeed, as outlined above, the mother intends to obtain a further domestic violence order against him and also intends to avail herself of court orders regarding full custodial rights for the children.
While there are no victim impact statements (or equivalent) for the police officers affected by the Applicant’s stalking and threatening conduct, one cannot imagine a situation where either or both of those police officers would be welcoming or receptive towards any return of the Applicant to the local community in which they both discharge their law enforcement functions. This cannot be given any weight, given the lack of evidence, however.
Consequently, this Other Consideration does not assist the Applicant. If anything, it weighs slightly against the revocation of the cancellation of the Applicant’s visa.
(e) Extent of impediments if removed
As mentioned earlier, the Applicant voluntarily departed Australia in December 2017. Any short-term hardship he may experience in re-establishing himself in the United Kingdom is, to my mind, tempered by the reality that he will suffer no language or other cultural barriers as a result of his return to the United Kingdom, and the fact that he appears to be staying with or near to his mother.
There is no doubt that the United Kingdom is culturally and linguistically similar to Australia. He cannot point to any significant difference in, for example, the standards of healthcare, social welfare and housing support, between the United Kingdom and Australia. He is, presumably, a citizen of the United Kingdom and will be able to have access to such services while residing there. Accordingly, this Other Consideration does not assist the Applicant.
The application of the Other Considerations in the present matter can be summarised as follows:
(a)International non-refoulement obligations: not relevant
(b)Strength nature and duration of ties: slightly, if at all, favours the Applicant
(c)Impact on Australian business interests: not relevant
(d)Impact on victims: slightly, if at all, weighs against the Applicant
(e)Extent of impediments if removed: does not favour the Applicant.
ISSUE 3: SHOULD THE DISCRETION TO REVOKE THE VISA CANCELLATION BE EXERCISED?
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.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
There can be no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then 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.
Primary Considerations A and C weigh heavily in favour of non-revocation. They both outweigh Primary Consideration B to which I have assigned neutral weight. I do not consider that any of the Other Considerations, alone or combined, assist the Applicant to any sufficient degree, certainly not to the extent that they would outweigh the Primary and Other Considerations which favour non-revocation.
DECISION

For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............................[sgd]...........................................
Associate
Dated: 10 September 2018

Dates of hearing: 13-14 March 2018

Applicant: By Telephone

Advocate for the Respondent: Mr Tal Aviram

Solicitors for the Respondent: Clayton Utz

[2018] AATA 3368

10 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Dates of hearing:	13-14 March 2018
Applicant:	By Telephone
Advocate for the Respondent:	Mr Tal Aviram
Solicitors for the Respondent:	Clayton Utz