Kennell and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by a UK citizen, Mr Kennell, to revoke a mandatory visa cancellation decision made under s 501(3A) of the *Migration Act 1958* (Cth). The applicant's visa had been cancelled because he did not pass the character test, stemming from serious criminal conduct. The applicant sought to argue that his previous acceptance of agreed facts relating to his conduct was not genuine, but this contention was dismissed by the Tribunal, which affirmed the long-standing rule that it could not go behind criminal convictions.

The legal issues before the Tribunal were whether there was a reason to exercise the discretion under s 501CA of the *Migration Act 1958* (Cth) to revoke the mandatory visa cancellation. This required the Tribunal to consider the principles set out in Direction No 65, which included the protection of the Australian community from criminal or other serious conduct, the risk of re-offending, the harm to the Australian community, the impact on minor children, community expectations, ties to Australia, and the extent of impediments if removed.

The Tribunal reasoned that the applicant's criminal conduct, particularly stalking, was serious and demonstrated a lack of respect for law enforcement. While the applicant raised mental health issues, the Tribunal found that these did not negate the seriousness of his conduct or the risk of future offending. The Tribunal considered the various primary and other considerations outlined in Direction No 65. It found that Primary Considerations A (protection of the Australian community) and C (ties to Australia and impediments to removal) weighed heavily in favour of non-revocation, outweighing Primary Consideration B (risk to the Australian community). The Tribunal concluded that none of the other considerations, individually or combined, were sufficient to outweigh those favouring non-revocation.

The Tribunal affirmed the decision under review, meaning the mandatory visa cancellation was not revoked.