BVLD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

BVLD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2582 (29 July 2020)
Division:GENERAL DIVISION
File Number: 2020/2819
Re:BVLD
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:29 July 2020
Place:Melbourne

The decision under review is affirmed.
...............................[sgd].........................................
R Cameron, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – applicant formerly held protection visa – applicant is a citizen of Sri Lanka – protection of Australian community – best interests of affected minor children – expectations of Australian community – non-refoulement – strength, nature and duration of ties to Australia – extent of impediments if removed – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Sentencing Act 1991(Vic)
Cases
Sulieman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCAFC 185
REASONS FOR DECISION
R Cameron, Senior Member
29 July 2020
INTRODUCTION

The Applicant, BVLD, seeks review of a decision of the Respondent dated 6 May 2020, made under section 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Protection (Class XA) (Subclass 866) visa (“the Visa”) (“the reviewable decision”).
BACKGROUND FACTS
There are several background facts that are not controversial.
The Applicant was born in Sri Lanka in 1984.
He was raised as and continues to be a Muslim. He is of Tamil ethnicity.
The Applicant arrived in Australia on 2005. At the time of his arrival he was the holder of a Vocational Education Sector (Class TU) (Subclass 572) Visa. His age at the time of arrival in Australia was 20 years.
Since his arrival in Australia he has lived here ever since.
He studied at TAFE during the years 2005-2006. Whilst undertaking his studies he met his ex-wife, a Sinhalese Buddhist also from Sri Lanka.
The Applicant and his ex-wife were married in 2007.
The Applicant and his ex-wife had a daughter in 2008.
In October 2012, the Applicant was granted the Visa.
The Applicant’s Visa was mandatorily cancelled by operation of section 501(3A) of the Act on 21 February 2017.
The Applicant made representations (“the representations”) to the Respondent under section 501CA(4) of the Act seeking revocation of the mandatory cancellation of the Visa.[1]
[1] This is conceded by the Respondent in paragraph 32 of his Statement of Facts, Issues and Contentions. It is also self-evident from the material before the Tribunal, in particular documents G 5 and G 9-G 26.
As noted earlier, on 6 May 2020 a delegate of the Respondent made the reviewable decision, not to revoke the mandatory cancellation of the Visa.
The mandatory cancellation of the Visa may be revoked by the Respondent (or the Tribunal as decision-maker standing in the place of the Respondent for the purposes of this application) following the making of the representations if the decision-maker is satisfied that:
(a)the Applicant passes the character test; or
(b)there is another reason why the original decision should be revoked.
It was readily conceded by the Applicant that he does not pass the character test by reason of the fact that he has “a substantial criminal record” within the meaning of sections 501(6)(a) and 501(7)(c) of the Act due to having been sentenced to a term of imprisonment of 12 months or more.[2] For the purposes of the character test under section 501 (7)(c) of the Act a person has a substantial criminal record if they had been sentenced to a term of imprisonment of 12 months or more. Given this concession the Tribunal finds that the Applicant does not pass the character test.
[2] This concession was made by the Applicant in his Statement of Facts, Issues and Contentions lodged with the Tribunal on 24 June 2020.
ISSUE TO BE DETERMINED BY THE TRIBUNAL
The issue to be determined by the Tribunal is whether it is satisfied under section 501CA(4)(b)(ii) of the Act that there is “another reason” why the mandatory cancellation should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
There was a significant volume of evidence before the Tribunal consisting of many pages. It was as follows:
(a)The G-documents;
(b)The Supplementary G-documents;
(c)The Applicant’s documents comprising two volumes; and
(d)The Applicant’s material in reply.
The documentary evidence tendered by both parties contained many individual documents including statements, correspondence, various applications, clinical notes and several documents subpoenaed from a variety of sources including the Magistrates’ Court of Victoria, the County Court of Victoria, Victoria Police and Corrections Victoria. Several of these documents will be referred to subsequently in these reasons.
Additionally, both the Applicant and the Respondent lodged Statements of Facts, Issues and Contentions. The Applicant lodged submissions in reply to the statement lodged by the Respondent.
The Applicant gave oral evidence. He was the only witness in the application.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 and section 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under section 501CA of the Act to not revoke a mandatory visa cancellation.
Section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly, for the purposes of the character test, section 501(7)(c) provides that a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with an invitation from the Minister, and the Minister is satisfied that:
(i)the person passes the character test; or
(ii)there is “another reason” why the original decision should be revoked.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“Direction 79”).
Direction No. 79
It is appropriate to set out several of the sections of Direction 79 that are applicable with respect to this application. Paragraph 6.2, “General Guidance”, relevantly provides:
(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.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2(3) of the Direction are provided in paragraph 6.3 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(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) 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) 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 should be allowed to come to, or remain permanently in, Australia.
(7) 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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction relevantly provides that, informed by the principles in paragraph 6.3, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation will be revoked.
Part C of the Direction
The Direction mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(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.
The Direction also requires that other relevant considerations be taken into account in deciding whether to revoke the mandatory cancellation, which 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; and
(e)Extent of impediments if removed.
Paragraph 8 of the Direction provides some guidance on taking the relevant considerations into account. This includes that information and evidence from independent and authoritative sources should be given appropriate weight, primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
It is now well established that the Tribunal in exercising its discretion may give appropriate weight to any of the considerations. As Colvin J observed in Sulieman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
...Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Paragraph 13.1(1) provides that when considering the protection of the Australian community, the Tribunal should acknowledge 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.
Paragraph 13.1(2) further states:
(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.
Nature and seriousness of the Applicant’s conduct
Paragraph 13.1.1 (1) of Direction 79 identifies a number of factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending, or other conduct to date. The range of factors enumerated in that paragraph is not exclusive.
In addressing this primary consideration under Direction 79, it is necessary to examine, as far as is possible from the material before the Tribunal, the circumstances of the Applicant’s offending.
To his credit, the Applicant did not dispute the details recorded in the National Criminal History Check that was in evidence before the Tribunal.[3] He readily conceded that the document contained an accurate summary of the criminal offences committed by him. Additionally, when questioned he did not challenge the details contained in the certificates subpoenaed from the Magistrates’ Court of Victoria concerning his convictions and sentences imposed by that Court.[4]
[3] Document G 3 of the G documents.
[4] The Documents from the Magistrates Court of Victoria containing the certificates of conviction are to be found in documents capital SG 2 and SG 3.
He was carefully probed by the lawyer appearing for the Respondent about the details contained in records subpoenaed from the Victoria Police. These records were derived from a database maintained by the Victoria Police. It appears that the investigating police officer populates the database with notice made on or about the time that an incident is reported, investigated or processed depending on the circumstances. The reports concerned were described as “Incident Summary Reports” with “Sub Incident Summary Reports”, “Family Violence Reports” and what is described as a “Case Progress Narrative”. In response the Applicant was asked if there was anything he disagreed with. He said no there was not. Although, he qualified this response by stating on several occasions during the course of his evidence that he was under the influence of alcohol at the time of his offending and drinking frequently.[5] He also stated when giving his evidence that during that time of his offending his level of alcohol consumption caused him to struggle to recall what happened on these occasions. The one qualification to his response concerning the entries in the police database was that he gave evidence that he had not been violent towards his wife and daughter before these events but there had been arguments.
[5] The relevant documents received from Victoria Police which were the subject of cross examination of the Applicant were "S 1" of the Supplementary G-documents.
Another important source of evidence as to the Applicant’s offending came from the “Reasons for Sentence” dated 11 February 2015.[6] On that day he was sentenced on one charge of negligently causing serious injury to which he pleaded guilty. More will be said about this later. However, the offending arose from a very serious motor vehicle accident that occurred on the Princes Highway in Dandenong on 18 August 2014 (“the accident”). Additionally, he was also sentenced by that sentencing judge for a summary charge of driving whilst disqualified. Specific paragraphs of the sentencing judge’s Reasons for Sentence were put to the Applicant and he agreed with them. Once again, he readily conceded that they were an accurate summary of his offending.
[6] Document G 4 of the G-documents.
It should be observed that the Applicant’s offending did not commence until over two and a half years after his arrival in Australia. The offending also did not commence until after his marriage. However, it continued after the birth of his daughter. Indeed, most of it took place after her birth. It does strike one as an aspect of his offending that causes concern. Had the offending occurred closer to his arrival when he was not a married man and parent, it may have, to some extent, been a product of a young man in a culturally different land, understandably experiencing difficulties in adapting (or even over-enjoying the comparative freedoms open to him in this nation compared to Sri Lanka and the family upbringing he had). However, when he had been here for several years, worked hard, married and become a father, his offending (particularly repeat offending) becomes more problematic, and difficult to comprehend on any objective level. By the time his offending had commenced, he had significant responsibilities. It is puzzling given those responsibilities that he commenced offending. He of course offers some explanation for his offending, or perhaps a context in which it occurred by reference to the undiagnosed and untreated mental health conditions that he contends he suffered from, including PTSD caused by his experiences in Sri Lanka, and alcohol abuse and dependency.
His offending largely fell into three categories. The first category can be described as summary motoring offences including drink driving. The second category arises from several incidents over a two-day period on 9 and 10 August 2013 which can be described as domestic violence offences. The third category and the reason for the mandatory cancellation of the Visa was an indictable motoring offence namely negligently causing serious injury.
Summary driving offences
The Applicant’s driving record, as evidenced by the number of convictions that he incurred over a relatively short time, was appalling. The Tribunal has had regard to the Court records and the police check report. However, it is worth referring to several matters that emerge from an examination of them. In the material before the Tribunal, it is apparent that he was convicted or found guilty of a large number of traffic offences between 2008 and 2014 prior to the accident[7]. There were several convictions for driving whilst suspended, careless driving and driving in breach of a permanent condition. Disturbingly there were several convictions for drink-driving or related offences including an offence committed on 23 April 2011 where the Applicant was driving a motor vehicle with a blood alcohol level of .151. This of course is a level three times the blood alcohol limit.
[7] These documents which record the Applicant’s motor traffic offending which came before the courts, are document S 2 and a certificate under section 84 (1) of the Road Safety Act 1986 (Vic) which forms part of document S capital three of the supplementary G documents, at pages 64-67.

Disturbingly, as early as his appearance at the Dandenong Magistrates’ Court in October 2010 for offences committed in the latter part of 2009, the sentencing Magistrate, with conviction, bound the Applicant to be of good behaviour for a period of 12 months. The bond was subject to several conditions including that he “complete an accredited drink-driving education program” and “attend and participate in a road trauma awareness seminar”. It appears that despite attending at the program and participating in the seminar, they failed to have any effect on his approach to obeying the rules of the road or show any real concern for other road users, and members of the public.
It should also be noted from the material that, by reason of his offending and in addition to other penalties imposed, on several occasions he had his licence to drive a car suspended and/or cancelled. On 8 December 2008, at the Ringwood Magistrates' Court, after being found guilty of 7 motoring offences, his licence was suspended for a term of six months. On 14 February 2012, a Dandenong Magistrate cancelled any licences that the Applicant held for two years. Subsequently, during a further appearance at the Dandenong Magistrates’ Court on 17 September 2013, any licences held by the Applicant were cancelled for four years from that date. The Applicant acknowledged these periods of cancellation in response to a question put to him in cross-examination. At the time of the very serious accident on 18 August 2014, he drove whilst disqualified. More will be said about that accident later.
The sustained pattern or even tendency towards profound disobedience of the road traffic laws of the State of Victoria is of much concern. It must weigh heavily against the Applicant.
Domestic violence offences
The domestic violence convictions were the two counts of intentionally causing injury, recklessly causing injury, and two counts of assault with a weapon. These convictions occurred as a result of a series of incidents that are detailed in the Victoria Police Family Violence Event Incident report. Once again whilst the content of that documentation speaks for itself (the contents of the entries in the police database were, save for a few exceptions and qualifications from the Applicant, largely accepted by the Applicant in cross examination, which is canvassed later in these reasons), some of the salient facts should be reproduced for the purposes of these reasons.
On 8 August 2013, at a time when it is common ground that the Applicant had been drinking heavily, he tightly held his daughter around both arms causing her to cry out in pain. He then bit his daughter on her right arm causing a red mark. His wife then intervened and took their daughter away from him.
The next day an argument developed between the Applicant and his wife. The report states that the Applicant verbally abused his wife. At that time their daughter asked her mother for a biscuit. This prompted a response from the Applicant in which he struck his daughter in the back causing her pain and to burst out crying. Again, his wife took the child away from her father.
Apparently, the increasingly violent behaviour of the Applicant prompted his wife to inform him on 10 August 2013 that their relationship was over and that she would be leaving the matrimonial home. The response of the Applicant was to take a chef's knife and commence sharpening it. Once he had completed sharpening the knife, he held the point of it to his throat in the presence of his wife and daughter. At the same time, he stated to them that he would kill himself. He then held the knife to his chest. After doing so he then attempted to hand the knife to his daughter yelling at her "kill me". His wife then immediately picked up her daughter and walked out of the home and sought refuge by locking herself in her car.
Once in her car she telephoned a female support service known as "1800 Respect". Soon after, the Applicant followed his wife and daughter to the car, took off his shirt wrapped it around his fist and attempted to smash the window of his wife's car, as the police described it, in order to get to her. Fortunately, he did not succeed in doing so.
The Applicant's wife was able to make her way to Dandenong police station with her daughter to make a report concerning these incidents. Her daughter was examined and spoken to by the police at the police station. The police notes recorded that she detailed the pain she felt on the occasion of the assault. The police applied for and obtained a Family Violence Safety Order. The Applicant was then arrested by the police and was interviewed. He made no admissions during that interview and was described by the police notes as not remorseful and not taking any notice of how serious the charges were. Following completion of the interview process, an out of sessions court hearing was conducted and the Applicant was remanded in custody. The fact that he was remanded in custody must demonstrate the seriousness with which the out of sessions bail justice, or Magistrate, viewed the evidence before them and the risks they considered that the Applicant necessarily posed to both his wife and daughter.
Eventually these matters were dealt with by the Dandenong Magistrates’ Court on 10 December 2013. The sentencing Magistrate imposed on the Applicant a Community Corrections Order for a period of 12 months. Relevantly to this application, there was a term of the Order "Treatment and Rehabilitation". It required the Applicant to undergo the following treatment and rehabilitation:
(a)assessment and treatment (including testing) for alcohol abuse or dependency as directed; and
(b)mental health assessment and treatment as directed.
Negligently causing serious injury
The indictable motoring offence, namely negligently causing serious injury, arose from the circumstances of the accident. The essential details of it have been helpfully summarised in the Reasons for Sentence. The accident occurred at approximately 10:55 PM on 18 August 2014 the Applicant was driving a vehicle at an estimated speed of 101 kilometres an hour in an 80 kilometre an hour speed zone. He applied the brakes of the vehicle suddenly causing it to skid for approximately 27 metres. Following his initial application of the brakes he removed his foot and then applied it again to the brake pedal causing the car to rotate clockwise, mount the centre median strip and crash into an electric light pole. The Applicant suffered one minor abrasion. A blood sample was taken from him which revealed a blood alcohol level of .188. As the learned Judge noted, with a reading of that level he would have been incapable of safely controlling the car.
Unfortunately, the passenger in the vehicle driven by the Applicant sustained horrendous injuries. In the police records that were tendered in evidence, the attending police member recorded that the steel traffic light pole entered the front passenger side of the vehicle. The impact caused significant intrusion of the light pole so that it reached the centre console of the vehicle. He described the front seat passenger as suffering life-threatening injuries. The Sentencing Remarks recorded that the victim was taken to Hospital and placed in an induced coma. From that time, he remained in the intensive care ward of the hospital until 29 August 2014.
The sentencing judge stated that the victim suffered the following injuries:
(a)Extensive in multiple areas of bleeding within the brain and brain injuries;
(b)A skull fracture;
(c)Multiple spinal neck bone injuries;
(d)Atlanto occipital dislocation with a soft tissue injury to the neck;
(e)An injured neck disc;
(f)Narrowing of the spinal canal;
(g)Injuries to the lungs;
(h)Multiple rib fractures;
(i)Fractured teeth; and
(j)Multiple complex fractures and dislocation to the lower leg, ankle and mid-foot.
Surgery undertaken on the victim was extensive and included an operation on his cervical spine on 22 August 2014. Subsequently, post-operation he wore a brace for three months and had to remain non-weight-bearing on his left leg.
On 8 September 2014, the victim was admitted to the High Dependency Unit of the Victorian Rehabilitation Centre. He remained an in-patient until 23 December 2014. The medical reports in evidence before the sentencing judge revealed that the victim suffered very serious injuries which were profoundly impacting on his quality of life. As noted earlier there were severe traumatic brain injuries. Amongst other treatment, the victim required the prescription of anti-depressants for mood and behavioural issues. He was assessed as being unable to return to driving due to severe cognitive impairment secondary to his traumatic brain injury.
When questioned by the police following the accident, the Applicant told them that he had been drinking Jack Daniels and Coke in the hour or two before driving. He stated that he decided to go for a drive, and he did not feel affected by alcohol. These statements to the police were palpably false. Anyone with a blood alcohol reading of that level would have consumed substantially more alcohol than the Applicant admitted to the police at that time and would have been demonstrably affected by the level of such consumption. It is notable that on this occasion, as with the incidents of domestic violence towards his wife and daughter, he did not completely cooperate with the police. Together with the several instances of driving whilst disqualified, without the relevant permit and in breach of the good behaviour bond that he had entered into, this shows, amongst other things, a tendency[8] or pattern of behaviour to disregard authority, not to mention the law. This assumes relevance given the contents of clause 6.3(1) of Direction 79 (“Principles”) which provides, amongst other things, that being able to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding and will respect important institutions such as Australia’s law enforcement framework. The Applicant’s behaviour in this context is inconsistent with that expectation contained in the “Principles” of Direction 79.
[8] Lest there be any doubt, this word is not used in the sense as contemplated by the rules of evidence.
As also noted by the sentencing judge, the accident is a serious example of this type of offence. He chose to drive the car after he had been drinking and drove at a speed far in excess of the limit. At the time of the accident he had been disqualified from driving. Additionally, in driving as he did, he breached the terms of a Community Corrections Order which had a condition requiring him to undergo assessment and treatment for alcohol abuse or dependency.
Findings concerning this primary consideration
Concerning the indictable motoring offence, the Applicant submitted with considerable force and effect that the Tribunal should note that the crime was not one of intention, recklessness, violence or of a sexual nature, but one of negligence. This submission was made in support of the contention that whilst the crime committed by the Applicant leads a person to be liable to have their visa cancelled under section 501(3A) because of its seriousness, there are nonetheless degrees of seriousness which must be distinguished. It was also contended by the Applicant that the penalties imposed on him for this offending were not at the higher end of the scale. In support of this contention it was argued that the sentence passed on the Applicant of three years and nine months is significantly less than the maximum prescribed by the applicable statute of 10 years. Further, in support of this contention it was pointed out that, following material provided by the Victorian Sentencing Advisory Council, the sentence was close to the median sentence commonly imposed by Victorian courts for this type of offending.
Accordingly, developing this contention, the Applicant’s past offending is not so serious that any risk of similar conduct in the future is unacceptable.
The Respondent, both in its Statement of Facts, Issues and Contentions and its submissions at the hearing, identified several reasons why the Applicant’s offending should be viewed as serious for the purpose of determining the application and applying the relevant provisions of Direction 79.[9]
[9] Pages 7 and 8 of the Respondent's Statement of Facts, Issues and Contentions are referred to. They need not be reproduced for purposes of these reasons.
The Tribunal accepts the contention of the Applicant that it is appropriate to distinguish between degrees of seriousness of a person’s offending when applying this part of Direction 79. It is quite correct to say that it was not an offence of recklessness, violence, intention or of a sexual nature but one of negligence.
The Tribunal concludes that, notwithstanding the merits in the Applicant’s submission and finding that the offending was of negligence in the criminal sense, to which the Applicant pleaded guilty, it is serious offending within the meaning of the applicable paragraph of Direction 79 namely 13.1.1. There are several grounds for reaching this conclusion.
The starting point of course must be the observations made by the sentencing judge. These have already been referred to. He described the applicant’s offending as a serious example of the type of offence and described the serious nature of the offence. It should be observed that the sentencing judge is in the best position to make this assessment. He had the benefit of a prosecution summary which is agreed to by a defendant during the course of a plea hearing.[10] Additionally, it should not be lost sight of that the Applicant, for the purposes of the plea and sentence hearing, had the benefit of representation by competent and experienced counsel and solicitors. There is no suggestion that they cavilled with the findings made by the trial judge about the seriousness of the Applicant’s offending nor the observations he made concerning the relevant facts, which it must be recalled were accepted by the Applicant in the course of his evidence in this hearing. There is no reason for and indeed the authorities do not permit, the Tribunal to go behind these findings. It was not suggested otherwise.
[10] The sentencing judge noted that the prosecution summary was before him in the proceeding as "Exhibit A".
Another reason for the Tribunal accepting the contention that this indictable motoring offence by the Applicant was serious, notwithstanding that it resulted from negligence, arises from the effect of the accident on the victim. The Tribunal accepts that the injuries were horrendous. The victim’s injuries were life altering. The sentencing judge recorded that the victim suffered from a severe traumatic brain injury (including severe cognitive impairment, secondary to such traumatic brain injury) as a result of the Applicant’s criminal behaviour.
Objectively, when considering the nature and seriousness of the Applicant’s conduct as required by paragraph 13.1.1(1)(d), this offending by the Applicant has to be at the higher end of the scale in terms of criminally negligent conduct. This is so whether or not the sentence imposed is a median one or significantly lower than the maximum sentence prescribed by Parliament. It is not uncommon for sentencing courts to impose much lower sentences than the maximum. It is invariably dependent on the individual facts of each case. In the State of Victoria, one should not forget that under the relevant provisions of the Sentencing Act 1991a party is entitled to a sentencing discount for a plea of guilty.
The role of alcohol and its contribution to this accident and the commission of the indictable motoring offence is also a significant factor. This arises in several ways. The starting point of course is the Applicant’s exceptionally high blood alcohol reading at the time of the accident.
Another feature of alcohol in the sense of this accident (which invites scrutiny under paragraph 13.1.1(1)(e) of Direction 79) is of course that it was the third occasion on which the Applicant had committed a drink-driving offence. It should be recalled that he had a previous conviction, approximately two and a half years earlier for driving a vehicle with a blood alcohol level of .151. He was also convicted of refusing a breath test approximately 11 months before the accident. On that occasion he was disqualified from driving for a period of four years. Also, as the sentencing judge noted, at the time of committing the indictable motoring offence the Applicant drove in contravention of a court order, far in excess of the speed limit and whilst under an exceptionally high level of intoxication.
Further exacerbating the Applicant’s offending with respect to the indictable motoring offence, was the fact that by the time he committed the offence he had been subject to several court orders requiring him to address both issues of alcohol abuse and dependency together with road trauma or road safety. The observations made earlier in these reasons about the terms of the Community Corrections Order made on 10 December 2013 are referred to. It should be repeated that it required the Applicant to undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed. This was after the terms of the undertaking he gave to the Magistrates’ Court in October 2010 that he “complete an accredited drink-driving education program” and “attend and participate in a road trauma awareness seminar”.
That he continued to drive with a high blood alcohol level more than three times over the legal limit, is an exceptionally poor reflection upon him. It indicates that he did not take the ample opportunities that were afforded to him by the system. He did not learn. This must also be compounded by the inevitable fact that during the frequent court appearances that he underwent he would have been well and truly warned by the sentencing Magistrates concerned of the consequences of future lawbreaking, not to mention the dangers of drink-driving.
Once again, this is conduct on the part of the Applicant that is inconsistent with the expectation articulated in paragraph 6.3 of the Principles in Direction 79 that non-citizens will be law-abiding, respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
The domestic violence offences committed by the Applicant are captured by several of the factors that a decision-maker applying clause 13.1.1 of Direction 79 is obliged to have regard to. Those factors are identified in clauses 13.1.1(I)(a), (b) and (c) of the Direction. The offences of domestic violence committed by the Applicant against his wife and daughter included assault with a weapon, intentionally causing injury and recklessly causing injury which are crimes of violence. Further, the crimes of violence he committed were against women and children, which under clause 13.1.1(1)(b) of Direction 79 and on any objective consideration are viewed very seriously regardless of the sentence imposed.
The crimes he committed against his daughter, including biting her, were reprehensible, appalling and intolerable. In addition to the physical harm that she obviously suffered there is also the possibility of psychological effects. These effects arise from the physical injuries that she suffered, the mental scarring that potentially would have occurred from being present in the family home observing the Applicant’s behaviour towards her mother, effectively seeing her abused, degraded and dehumanised. One cannot begin to imagine the harmful mental effects this would have on an impressionable four-year-old girl. No child should be subjected to such insensitive and inhumane treatment. There is also the potential side effect on her as she grows up that these memories may have upon her, and her feeling of self-worth and place in our society. It has an unfortunate potential that is often seen, to make her feel degraded and believe that her place in society is not what it might otherwise be. The potential for it to limit her capacity to achieve all that is potentially available to her is alive and real. These could be long-term, real, lasting effects of the Applicant’s terrible criminal behaviour.

There was then the indignity which the Applicant’s daughter had to face as an impressionable four-year-old when taken to the Dandenong police station. Any police station is a forbidding environment, few more so than Dandenong. That an impressionable four-year-old girl had to attend such a place with her mother after having been assaulted by her father and having witnessed her father assault her mother must have been a horrifying experience. As was apparent from the police notes, she then had to relive the experience telling the police officers of what had occurred to her. No child should be forced to confront this horrible experience. It was all caused by the Applicant’s violent offending.
Similarly, the assaults on his wife, recounted earlier in these reasons, were completely unjustifiable. It is disturbing that whether or not he was under the influence of alcohol, or that he was suffering from undiagnosed PTSD, he had resorted to using a large knife in the way that he did. For both his wife and daughter this must have been a frightening experience. There is also the potential that, in the inflamed situation caused solely by his actions, the outcome could have been even worse. Resort to knives in any shape or form cannot be condoned. It is fully understandable why his wife, having grabbed her daughter from the Applicant, was forced to resort to locking herself in her car. The fear that his wife and daughter must have experienced as he was trying to smash the car window to gain access to them would surely have been a most horrifying experience. It also was intolerable and an experience that no woman or child should have to endure. It is behaviour that Australia does not tolerate. It is unacceptable and it was very serious behaviour.
The seriousness of this behaviour towards his wife and daughter was also reflected in the sentence that was handed to the Applicant in the Magistrates’ Court for his offending. It was a substantial Community Corrections Order. Further, the Applicant’s offending against his wife and daughter triggers the expectations contained in paragraph 6.3(1) “Principles” of Direction 79, that a noncitizen who has committed a serious crime, including of a violent nature particularly against women or children, should generally expect to forfeit the privilege of staying in Australia.
The Applicant’s behaviour at the police station following his arrest for the acts of domestic violence has been referred to earlier in these reasons. He made no admissions, despite the gravity of what he had done. This also needs to be seen in light of the fact that he subsequently pleaded guilty to these serious offences before the Magistrates’ Court. The police records note that he did not appreciate or consider the seriousness of the predicament he was in. This attitude to authority is of concern. It is consistent with a pattern of offending which, as noted earlier in the consideration of his record of road traffic behaviour, consisted of a significant number of offences and demonstrated a tendency or pattern of behaviour to disregard authority, not to mention the law. The approach the Applicant demonstrated at the Dandenong police station following the domestic violence committed upon his wife and daughter, is also consistent with his subsequent behaviour when dealing with the police shortly after the accident. The implausible, if not false, story he gave to the police at that time reflects an appallingly bad attitude to authority in the laws of this nation. It is also, yet again, another example of behaviour by the Applicant that is inconsistent with the expectations referred to in clause 6.3(1) of the Principles contained in Direction 79.
For the reasons articulated above, taking into account the evidence before the Tribunal and applying the factors to which the Tribunal as decision-maker must have regard under clause 13.1.1 of Direction 79, it finds that the offending of the Applicant must be regarded as objectively very serious.
By reason of the foregoing matters the nature and seriousness of the Applicant’s criminal offending and other conduct weighs very heavily against revocation of the decision to cancel the Visa.
Risk to the Australian community should the Applicant reoffend
Paragraph 13.1.2 of the Direction relevantly provides:
(1)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).
When applying this primary consideration, the decision-maker should also have recourse to the provisions of clause 6.2 (1) “General Guidance” of Direction 79. This paragraph addresses the task of determining whether the risk of future harm from a non-citizen is unacceptable. It emphasises that the “Principles” in that section of Direction 79 are of critical importance in furthering the Australian Government’s objective of protecting its community from harm as a result of criminal activity or other serious conduct by non-citizens.
The parties agree that in undertaking the risk assessment under this consideration regard must be had to both the nature of the harm to individuals or the Australian community and the likelihood of the applicant engaging in such conduct, taking into account available information and evidence on the risk of reoffending.
The Applicant submits that his likelihood of reoffending or engaging in other serious conduct is low. He identifies several grounds in reliance upon this contention.
He is remorseful. The Tribunal accepts this. It is apparent from the reasons for sentence. The Applicant has also expressed remorse in his statement of 30 March 2020 and Statutory Declaration of 23 June 2020, not to mention his evidence from the witness box. There can be little doubt from observing the Applicant that the consequences of the accident had a significant effect on him.
There is also the context of the Applicant’s offending, which took place whilst he suffered from undiagnosed PTSD and alcohol dependency or abuse disorder. The Tribunal accepts this contention which is apparent from several of the documents before it. The sentencing judge in his Reasons for Sentence noted that alcohol has been a significant problem in the Applicant’s life. It is surprising to say the least, that there was no mention by the sentencing judge of the Applicant’s history in Sri Lanka, save and except for the issues with his family as a result of his marriage to someone from a different religion. This is particularly so given it appears that whatever the treatment was that he experienced in Sri Lanka, more which will be canvassed later in these reasons, it was a significant contributing factor to the PTSD condition from which he apparently suffers and his alcohol problems.
There is expert documentary evidence corroborating this contention that emerged from material subpoenaed from Corrections Victoria. There was a most helpful report prepared by a Senior Clinical Psychologist from the “Mobile Forensic Mental Health Service” (“Mobile FMHS”) on 13 November 2017[11] (“Mobile FMHS report”). The author of the Mobile FMHS report had the opportunity of seeing the Applicant for 25 individual treatment sessions whilst he was in custody at a prison known as “Karreenga”.
[11] Document S-4 pages 112-115.
Additionally, the Tribunal has the benefit of the Senior Clinical Psychologist’s extensive typewritten clinical notes, the entries of which were made at the time that she undertook many of those individual treatment sessions. Of all the material before the Tribunal concerning the Applicant’s mental health and alcohol issues, it is the most comprehensive and helpful. Under the heading “Psychiatric Diagnosis and History” it records that when he engaged with the Mobile FMHS the Applicant was diagnosed with PTSD.
As for alcohol dependency there is much documentary evidence in the material before the Tribunal evidencing treatment for his alcohol condition and abuse. It was certainly canvassed extensively in the Mobile FMHS report. There is a record on 9 October 2015 from the Facilitator of a “130 Hour Intensive Drug and Alcohol Treatment Program” at Marngoneet Correctional Centre confirming completion of the program between 9 June 2015 and 9 October 2015 dealing with the subject.
Also[12] between approximately April and June 2015 he completed a 44-hour Semi- Intensive Drug and Alcohol Treatment program. A three-page report prepared by a clinician following the Applicant’s successful completion of that course was in evidence[13]. It did reveal that the Applicant applied himself to that course in terms of attendance, punctuality, participation, commitment, communication and problem-solving skills, not to mention, comprehension of its content and completion of the group assignments. The subject report’s author described the Applicant’s engagement with the program as positive.
[12] See for instance, document G-19 at pages 199-200.
[13] The report of the clinician dated 5 June 2015 concerning the Applicant's attendance at the 44-hour Semi-intensive Drug and Alcohol Program is found at pages 205-208 of the G-documents.
It was recorded that the Applicant demonstrated insight into the link between his alcohol use and offending. Additionally, he was stated to have taken an attitude of responsibility towards his offending and reflected deeply upon it. It is apparent from the report that the risk of relapse was an important part of the course. The Applicant had expressed a desire to the course facilitators of achieving total abstinence from alcohol. He also stated that he recognised that one lapse into alcohol consumption would likely lead to further relapsing. He identified what were described as positive coping strategies which he could adopt to prevent the risk of relapsing.[14]
[14] Similar observations were made in two notes or reports that were referred to by the Applicant's counsel in paragraphs 30 4n 35 of his Statement of Issues, Facts and contentions which were in evidence before the Tribunal.
There was the Applicant’s own evidence on his drinking and mental health issues that was given in his statement, statutory declaration and from the witness box. He also identified in his statement, a range of courses and programs that he had undertaken. These courses and programs fell into two categories. The first category might be described as those that were designed to address his particular personal issues arising from his offending, his alcohol problems and mental health issues. It was a rational recognition of the significant personal and health issues he was facing, and his steps to deal with them. The second category would be best described as vocational tuition in a variety of practical courses that would more helpfully equip him to obtain gainful employment if he is released into the community. He described these courses and programs as assisting him to develop skills to prevent future offending.[15]
[15] The contents of paragraphs 21-22 of his Statement of 30 March 2020 and paragraph 3 of his Statutory Declaration are referred to.
Another ground relied upon by the Applicant in support of his contention that the likelihood of him engaging in further conduct within the meaning of this clause of Direction 79 is low is to be found in his witness statement and from the witness box. The Applicant expressed a commitment to participate in various treatment and rehabilitation programs for the purposes of addressing his mental health and alcohol issues so as to avoid the prospect of both those problems leading to any further offending. To this extent he produced further material from Holyoake Counselling, Refugee Health, the Monash Health Refugee Health and Well-being Service (psychiatric treatment). There is also support from the Victorian Tamil Association, Refugee Talent, Prison Fellowship Victoria, a community group established by the Islamic Council of Victoria known as “Muslim Connect”, and National Foundation.[16]
[16] This organisation is described as a foundation that works with Muslim Connect reconnecting members of the community who have been incarcerated, with support networks within the Victorian Moslem community. The Tourism distribution manager of that organisation in a written reference of 13 July 2020: stated that it would work with Muslim connect to support the Applicant with a bond, the first month’s rent assistance food vouchers and a crisis payment in the event that he is released into the community. This was also corroborated in a letter from the Islamic Council of Victoria of the same date which outlined a range of services which would be provided by it to the Applicant to assist with his successful reintegration into the community in the event that he would be released.
Two friends, the first the Tribunal will refer to as Mr K (who has known the Applicant in Australia since 2005 when they meet while students) and the second the Tribunal will refer to as Mr S (who has known him since 2013 when they met on a jobsite) have made statements in support of him which were in evidence. Amongst other things, these statements of support attest to his abiding qualities and the potential for his rehabilitation. Additionally, they have both expressed invitations to assist the Applicant’s reintegration into the community.
The Tribunal accepts that these people and support networks who have expressed their willingness to provide assistance to him are genuine and if the Applicant is released into the community they will do their level best to ensure that he is successfully reintegrated into society and is unlikely to engage in further conduct or offending in the relevant sense.
Emphasis was placed by the Applicant on the fact that his driver’s licence has been cancelled. He is not able to apply for a new licence until the period of disqualification has expired. Additionally, he is unable to reapply for a licence until such time as he is given approval from a Magistrate. A condition usually applied by a Magistrate to someone who regains their license is that they not drive any vehicle unless it is fitted with an alcohol interlock device. Indeed, the Applicant has in his statutory declaration undertaken that he would not drive a motor vehicle without one fitted.
It is also relevant to an assessment of this consideration that the Applicant has not consumed alcohol for a period of approximately five years.
Despite these grounds relied on by the Applicant which had been very well articulated, there are several matters that cause much concern to the Tribunal regarding the likelihood of him engaging in further criminal conduct or engaging other serious conduct.
The observations of the experienced sentencing judge of the County Court of Victoria who stated that he was guarded about the Applicant’s prospects of rehabilitation are a starting point. Whilst the learned judge’s reasons on this issue are comparatively scant, he reached this conclusion on several grounds. One of the reasons was that for three months following the Applicant being in custody from 4 September 2014, he was offered the support of Community Corrections to address his alcohol abuse. He did not avail himself of that opportunity. The sentencing judge was also concerned, quite rightly, with his history of offending and problem drinking which by then was unquestionably sustained and serious, particularly given the very high readings concerned, together with the element of disobedience by reason of his conviction for refusing to take a preliminary breath test.
The Applicant submitted, as was indeed the case, that these observations by the sentencing judge were made at a time when he had only been abstinent from alcohol for a few months and had not yet been diagnosed with PTSD.[17]
[17] See paragraph 33 of the Applicant's Statement of Facts, Issues and Contentions.
The assessment of the sentencing judge concerning the Applicant’s prospects of rehabilitation must be accorded considerable weight, if not primacy. It will be recalled that the Applicant, for the purposes of his plea and sentence hearing, was represented by highly competent solicitors and counsel. No doubt they would have ensured that all possible material, and submissions were placed before the court so that his prospects for rehabilitation were represented in the best possible light before the court. Presumably, detailed submissions were made on his behalf concerning prospects of rehabilitation as any competent counsel would inevitably do. That the sentencing judge was guarded about the Applicant’s prospects of rehabilitation must weigh against him.
Whilst the Applicant’s candour concerning the potential for relapse, recorded in the report of the clinician dated 5 June 2015 concerning his attendance at the 44-hour Semi-Intensive Drug and Alcohol Program, that one lapse into alcohol consumption would likely lead to further relapsing is commendable, it is nonetheless a stark reminder that the risk of the Applicant not offending must be very heavily reliant upon him not consuming any alcohol whatsoever. Given the Applicant's previous pattern of behaviour, both in terms of offending in its various forms, and in the domestic or social setting where he quickly succumbed to the temptations of alcohol as he has recounted in the course of his evidence, this must pose an exceptionally high risk in the event that he were to be released into the community. This is notwithstanding the commendable steps that he has taken to come to terms with his alcohol and mental health problems, together with the assistance he has sought for such problems as recounted earlier in these reasons. However, it should be noted that those steps he has taken whilst in custody were some years ago. More will be said about this issue shortly.
On this topic, which regrettably was not explored during the course of oral evidence in this application, in recent years Applicant does not appear to have sought further assistance by way of psychological intervention, counselling, alcohol and drug awareness programs or other options.
Indeed, the evidence is that he did not attend or take up several opportunities to go down this path. An entry in the clinical notes at the Hopkins Correctional Centre made by a registered psychiatric nurse on 15 May 2018 concerning "Ongoing treatment" of the Applicant recorded that he did not attend an appointment on that day.[18] Further, despite a call to his work area he still did not attend that appointment.
[18] Page 75 of the supplementary G-documents.
Similarly, on 1 June 2018 an entry recorded in the clinical notes by a registered psychiatric nurse concerning "Ongoing treatment" amongst other things noted that he had not attended any psychiatric nurse appointment (his choice), was not prescribed any medication and declined to be seen as he had no need. Whilst he may well have been in a good frame of mind after recently completing 25 sessions with the Senior Clinical Psychologist who prepared the Mobile FMHS report, the need for continuing support and consultation from these mental health professionals was essential. It seems inconceivable that it could not have been realised as such by him.
On 9 July 2018, there is an entry made by a registered nurse concerning "Ongoing treatment" in which she recorded that the Applicant did not attend an appointment with a psychiatric nurse from his self-referral.[19] The fact that there was a self-referral demonstrates that the Applicant was aware of the need of availing himself of these psychiatric services in the Hopkins Correctional facility. Particularly, as it approached the time when he was to be released from custody and into immigration detention, it seems surprising in the extreme that he did not attend after having the presence of mind to make the self-referral. It does not give the Tribunal confidence that if he is released into society that he would be able to adhere to an appropriate treatment and rehabilitation regime to avoid, to the maximum possible extent, the potential for a relapse.
[19] The entry in the clinical notes for 9 July 2018 is found at page 73 of the supplementary G-documents.

An entry in the clinical notes recorded by a psychiatric nurse on 18 July 2018 concerning "Ongoing treatment", recorded amongst other things that the Applicant, it appears, called in at the nurse's rooms but, refused to attend an appointment on that day of his own volition.[20] Apparently he stated to his "industries supervisor" "that he did not need to see psych". Once again, this attitude displayed by the Applicant is puzzling in several respects, particularly in light of the contents of the Mobile FMHS report prepared by the Senior Clinical Psychologist that recommended further treatment and recourse to various support services. Indeed, she recorded that the Applicant stated to her that he felt “satisfied” with the treatment gains made during his sessions with her and felt that he needed to be "re-waitlisted for further service with the Mobile FMHS”. Logically, this observation makes much sense. That the Applicant did not proceed to see the psychiatric nurse (even if he could not see the Mobile FMHS) when he had the opportunity is inconsistent with the view that he expressed to the Senior Clinical Psychologist. Once again, this attitude on behalf of the Applicant towards taking advantage of excellent services made available to him must shed significant doubt on his abilities to seek assistance to maintain a state of total abstinence from alcohol, and also, critically, assistance if he relapses into drinking. This behaviour on his part bears the indicia of someone for whom there must be a significant risk of relapse. This also weighs very much against the Applicant.
[20] The entry in the clinical notes for 18 July 2018 is also found at page 73 of the supplementary G-documents.
This does warrant further reference to the contents of the Mobile FMHS report. It was referred to by the Applicant in his “Reply” to the submissions made by the Respondent in his Statement of Facts, Issues and Contentions.[21] Its contents have been considered to some extent earlier in these reasons. It is apparent that the Applicant gained a great deal from the 25 individual treatment sessions he had with the Senior Clinical Psychologist. Quite rightly, as was contended by the Applicant’s counsel, the observations recorded under the section headed “Presentation and Completion (include mental state assessment, current risk assessment)” reveal much benefit to the Applicant from the 25 individual treatment sessions that he underwent. As was recorded, the Applicant appeared to have made improvements to his daily functioning and was better able to manage his symptoms of PTSD. Specific details of the improvements were articulated. Prevention and coping strategies that the Applicant had learned were acknowledged. She records what might be described as positive comments made by the Applicant about his plans to engage in therapy when he returned to the community. She also observed that he was aware that should his mental health deteriorate he could be referred to the Mobile FMHS again.
[21] Paragraph 6 of the Applicant’s reply is referred to.
Under the heading of “Recommendations” the author of the Mobile FMHS report cautions that whilst the Applicant made treatment gains in managing his PTSD symptoms this aspect of the treatment was primarily focused on the first phase, namely stabilisation of symptoms and a sense of safety. She suggested that the Applicant may choose to engage in further intervention. The final proviso in the last paragraph of that section reiterated that the Applicant when last in the community was consuming large amounts of alcohol on a daily basis as a means of managing his symptoms of trauma. She warned that there is a risk that he may return to this way of avoidant coping to manage his distress. She recommended that the Applicant consider engaging with a drug and alcohol support service to assist with managing his alcohol consumption. This noted caution must be of concern because it certainly sends a warning of the risk of relapse. After 25 individual treatment sessions the author of Mobile FMHS report, would surely be in a position to express a reasonably accurate expert opinion as to the risks of relapse. It seems to the Tribunal that to avoid the risk of relapse to the maximum extent possible, constant vigilance on the part of the Applicant is necessary. It appears in more recent times, since he went into immigration detention this has not occurred as much as one might have expected. This must weigh against the Applicant.
The last recorded attendance upon a psychiatric nurse disclosed in the Corrections Victoria clinical notes was on 7 December 2018.[22]
[22] The relevant entries in the clinical notes made by the psychiatric nurse are found at pages 69-70 of the supplementary G-documents.
There was some debate between the parties about whether or not the Applicant had reported and sought treatment for his mental health issues after he left the Victorian prison system and was taken into immigration detention. The Respondent contended that the Applicant had not requested treatment for PTSD or even stated that he suffered from since the transfer.[23]
[23] this contention is to be found in paragraph 47 of the Respondent's Statement of Facts, Issues and Contentions.
The Applicant points to several clinical records in evidence that establish the contrary.[24] The Tribunal accepts this contention. There was also evidence in some of the notes produced by the operator of the detention centre that the Applicant had sought to see a mental health nurse.[25] Unfortunately, there seems to be no note of any recorded attendance by him upon a mental health nurse. Presumably he did so. There was also a record of him informing staff members at the detention centre on at least one occasion that he was experiencing difficulty sleeping without medication "as his mind goes crazy thinking about things some days he feels quite depressed."[26] It is not completely apparent from the material what medication the Applicant was taking, presumably it was prescription medication. There seem to be some entries in the material suggesting at various stages he was prescribed both medication for the purposes of assisting with sleep and anti-depressants. Once again, presumably there was some attention paid to this question by way of an attendance upon a mental health nurse, doctor or other appropriate healthcare professional (there must have been an attendance on a doctor if he were prescribed medication). An entry on 23 October 2019 noted that the Applicant was having difficult thoughts about other detainees.[27] He was advised that he could request to see what was described as "mental health and get assistance to stop the thoughts going around and around". Apparently, he agreed, and it is recorded that he "filled in an IHMS request form".[28] He was also advised that he could ask to see a welfare officer during the day if he needed to and he could also talk to the "compound officer." The Tribunal infers that these steps were taken. Another note on 6 November 2019 recorded the Applicant having difficulties with another detainee which was causing him stress and making him feel depressed.[29] The officer who completed the note in the section commencing with the word "Action" recorded that the object was to maintain communication and encourage the Applicant to seek assistance when he was feeling depressed.
[24]Paragraph 6 of the Applicant’s Reply is referred to.
[25] For example, this fact is recorded in a note on page 244 of the supplementary G-documents.
[26] The note is found at page 255 of the supplementary G-documents.
[27] The entry is found at page 256 of the supplementary G-documents.
[28] In a note of 2 February 2020, at page 263 of the supplementary G documents, there is a reference to a member of the detention centre staff after speaking to the Applicant concerning his health advising him that it would be a good idea to follow-up with IHMS to see what was happening. The Applicant said he would. It is not completely apparent from the material whether, this occurred and if so, what the outcome or treatment may have been. A subsequent entry on 9 May 2020 (page 270 of the supplementary G documents) recorded that he informed a member of staff at the detention centre that he had stopped taking his medication and had sorted all his IHMS issues. (We do not know what those issues if any, may have been.)
[29] Page 257 of the supplementary G documents. It should be observed that in terms of the Applicant's health, there was much more attention devoted to the diagnosis and treatment of a recently acquired shoulder injury which he had brought to the attention of the centre operator. It appears from this note that it was his dominant medical concern.
However, from a further analysis of the notes contained in the documents subpoenaed from the detention centre operator, it is apparent on numerous times the Applicant was routinely questioned by detention centre staff about the state of his health. Frequently, his response was that he was in good health, or had no health concerns; on several other occasions his only health concern was his back or shoulder.[30]
[30] Examples of entries to this effect are found at pages 243, 245, 246 (where it is recorded that he said he was in good health with no medical conditions), 249, 250, 251 and 259 (the entry on that date concerning the subject "Health" stated that apart from his back pain he had no other health concerns, several subsequent entries were to the same effect where the Applicant only raised his back and/or shoulder conditions as health issues of concern to him, given what emerged from the Mobile FMHS report about his PTSD this is surprising indeed).
An entry made on 27 April 2020 contains the following: "He stated to me that he has stopped taking his anti-depressants saying they made him sick, he also told me he put a request into see the doctor but says that no appointment was ever made, he stated that he is ‘fed up with the medical system in here’ and has given up on it." Several things emerge from this entry. The reference to anti-depressants is confirmation that he was indeed prescribed such medication, and also that he must have seen a doctor concerning mental health issues. Regrettably, we do not have any clinical notes concerning that attendance or attendances. It is also of much concern that, presumably contrary to medical advice, he has chosen to stop taking anti-depressants which were prescribed to him as part of a process of treating his mental health issues.
Another matter that arises from the entry and remarks recorded which is of concern is that they reflect an intemperate nature and that he was not prepared to persevere with medical assistance that was open to him, particularly at a time when he was under some pressure. One can understand how he felt stressed being held in immigration detention relatively close to the time of the hearing of this application. However, it was in a controlled environment and one where he knew that he had ready access to such medical and other health care assistance that was ultimately in his best interest. Patients from time to time will not always see eye to eye with their doctors and others who treat them. That does not mean that they should give up. The fact that he decided to give up prescribed medication[31] must heighten the risk of him relapsing and engaging in behaviour of the type that has occurred in the past. It is also a concerning character trait that is relevant to the task which the Tribunal has to undertake in determining the likelihood of the Applicant engaging in further criminal or serious conduct as contemplated by Clause 13.1.2(1) of Direction 79.
[31] As noted earlier, a subsequent entry on 9 May 2020 (page 269 of the supplementary G-documents) recorded that he informed a member of staff at the detention centre that he had stopped taking his medication.
The Respondent also raised the Applicants history of offending and, as he put it, his poor record of compliance with requirements imposed upon him in relation to his offending. His prior history concerning this matter has been well explored earlier in these reasons. It need not be repeated. The Tribunal acknowledges this contention and it certainly does weigh against the Applicant when undertaking the task required by this primary consideration.
Something should briefly be said about the contentions made by the Applicant that his driver’s licence is presently cancelled, that he will need to apply to a Magistrates’ Court for its reinstatement and that such reinstatement would only be granted on a condition that he not drive a vehicle unless it has an interlock device attached. There is some force in those submissions. The relevant legislation, which need not be articulated in these reasons, prescribes that any person reapplying for their licence is subject to this process and its outcome. This is not in any way to downplay the process. It is to put it in its perspective and recognise that, in terms of weight that this Tribunal must attach to it, whilst it is significant, such weight will not be determinative. It should not be lost sight of that in the past when affected by alcohol, and a high blood alcohol reading, whilst not holding a licence the Applicant has chosen to drive. In the future, whilst he might well own a car with an interlock device fitted, one has to ask would he yield to the temptation of driving another vehicle with no such device fitted? His previous poor record of disobedience to road traffic laws, particularly when affected by alcohol, does not give the Tribunal confidence that he might not lapse into an error of judgement in the future. Whether or not he is affected by alcohol, it potentially could occur in a moment of intemperate behaviour when he is under stress.
Taking into account all the matters referred to above the Tribunal finds there is a likelihood of the Applicant engaging in further criminal or other serious conduct.
The Tribunal refers to the findings above concerning various aspects of the Applicant’s submission. It accepts that the Applicant is remorseful. Also accepted is the contention that his offending occurred in the context of his undiagnosed PTSD and alcohol issues. The support of friends and acquaintances together with the various networks, agencies and charities who have expressed their preparedness to support him and provide assistance for his reintegration into the community is acknowledged. His commitment to apply to the Magistrates Court and have an interlock device fitted on any vehicle he may subsequently own or drive is also acknowledged. The Tribunal also acknowledges that he has not consumed alcohol for over five years. These factors do weigh in his favour.
However, the Tribunal refers to the matters weighing against him that have been enumerated above in these reasons. His abstinence from alcohol also needs to be looked at in the light of it having occurred in the environment of either imprisonment or immigration detention. In an area where access to alcohol is controlled or prohibited, he is less likely to relapse and therefore less weight can be attached to it as proof of his rehabilitation and therefore, lower risk of future offending. There must be a serious question mark about his ability to avoid relapse if he is released into the community.
The risks identified in the Mobile FMHS report are of concern. The more recent conduct of the Applicant in firstly not seeing a psychiatric nurse in the later period of his time whilst in prison, his responses to the staff at the detention centre where he did not raise mental health issues and his unilateral decision to cease taking anti-depressants (on occasion when he considered himself stressed which the Tribunal acknowledges) rather than seeking further professional assistance after they had presumably been prescribed has also been touched on.
The Tribunal must have regard to the principal that the Australian community’s tolerance for risk of future harm becomes lower as the seriousness of the potential harm increases. In the event that the Applicant were to re-offend, the consequences for the community, not to mention his wife and daughter were he to have an interaction with them, would be unacceptable. His potential offending could endanger the lives of innocent road users or expose them to serious injury.
Appositely, the sentencing judge described driving whilst affected by alcohol as a significant social evil. The Tribunal agrees. Drinking impairs a driver’s capacity to properly manage and control a motor vehicle on the highway. It is the reason that a very strict blood alcohol limit is imposed by the applicable legislation. Alcohol affected motorists have the potential to, and indeed do, cause accidents leading to a variety of injuries and death. Regrettably, and all too frequently, innocent law-abiding motorists going about their business are the victims of this type of offending. There is the effect on the immediate victims, their families and those that are close to them. There is also the social impact where lives are cut short, or irretrievably altered, as was no doubt the case for the victim of this accident caused by the Applicant. There is also the effect on the instruments of government and the taxpayers. It requires a significant application of policing resources and invariably resort to state-sponsored compensation schemes.
Were he to re-offend in the way he did against his wife and daughter, it would be thoroughly unacceptable. Although his daughter has grown up somewhat since the incidents concerned, for her to be physically and emotionally affected in a serious way by a repeat of such conduct is a risk that the Tribunal cannot countenance. Similar considerations apply to his wife if there were to be a repeat of such conduct.
The risks are just too great. In the circumstances for the reasons outlined above the Tribunal finds that this consideration weighs heavily against revocation of the mandatory cancellation.
Best interests of minor children in Australia
Paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. Paragraph 13.2(4) contains eight factors that a decision-maker must consider where relevant in determining what are the best interests of the child concerned. They need not be repeated here.
As noted above, the Applicant has one minor child, a daughter, who is presently 11 years old. Since the separation of her parents she has continued to live with her mother who, according to evidence given by the Applicant, has since remarried.
The Applicant commences his approach to this primary consideration by reference to Article 3(1) of the Convention on the Rights of the Child. This article specifies that the best interests of the child is a primary consideration for all actions concerning children undertaken by administrative agencies. This is not inconsistent with the language of paragraph 13.2 of Direction 79.
He also contends that revocation would be in his daughter’s best interests given the child has a right to know and be cared for by her parents.
Clause 13.2(4)(a) addresses 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.
The evidence before the Tribunal indicates that there has been no contact between the Applicant and his daughter since approximately January 2016. The Applicant gave evidence to this effect whilst in the witness box. It was also apparent from some of the clinical notes that were produced to the Tribunal on subpoena from Corrections Victoria.[32] The evidence was that prior to this date the Applicant’s former wife and his daughter would visit him in prison relatively frequently. It was in evidence that his daughter wrote him cards and letters (several were produced). For some time, he wrote letters to her virtually every week. Unfortunately, this correspondence ultimately ceased. He has expressed in various statements and from the witness box his love for his daughter and how much she means to him. It should be acknowledged that he gave evidence that prior to his separation from his wife he was an active parent very much involved in his daughter’s upbringing and her life. The Tribunal accepts his evidence.
[32] See for instance the entry recorded by a registered nurse in the clinical notes of 19 May 2016. It is stated there that he was unable to communicate with his 7-year-old daughter since January 2016. It was also described as a stressor.

The version that he gave the Senior Clinical Psychologist was that there was an incident involving some people he knew in Sri Lanka. They entered his home as he slept at night and demanded money. He described it as being like a "hostage" situation. He reported that after he paid these people money, they attempted to come back to his home again on another occasion and demanded more money. From his accounts, he described moving to a different house and seeking refuge in hotels for his own safety. He reported that soon after these events occurred, he applied to a variety of countries including the United States of America, the United Kingdom, New Zealand and Australia for a visa for his own safety. There was no reference in this account which was given on several occasions to the Senior Clinical Psychologist of him being arrested by the police or Sri Lankan security authorities, held for approximately two days, and beaten twice.
The Applicant in his evidence said that this version given to the Senior Clinical Psychologist by him was made up. The reason he said it was made up was because other inmates in the prison had told him that he did not have to tell the Senior Clinical Psychologist everything. He said he feared that if he did tell the Senior Clinical Psychologist what actually happened it would be passed on to the Australian police who would then contact the Sri Lankan police and he would be handed over to them. He said he got scared this would happen, but nonetheless, wanted his problems addressed and that is why he made up "part of the story". A reason for giving the false version of the history to the psychologist was that he had difficulties opening up and speaking freely.[55] He said it was a "similar situation that occurred" and he didn’t want to engage with traumatic memories and he wanted the problems he was facing addressed so he could deal with them and move on.
[55] This was consistent with the observations made by the Senior Clinical Phycologist in the mobile FMHS report at page 113 of the supplementary G documents.
The Tribunal cannot accept this explanation. It acknowledges that in the mobile FMHS report the Senior Clinical Psychologist did explain to the Applicant that there were “limits of confidentiality and storage of case documents”. However, it hardly explains his evidence in the witness box. The Applicant gave his evidence on this topic almost with an air of flippancy. His demeanour whilst giving the evidence had an aura of complete unreality to it. The Tribunal considers after having heard the evidence that it is more likely than not that the Applicant told the truth about what really happened in Sri Lanka to the Senior Clinical Psychologist. It is apparent that the individual treatment sessions the Applicant had with her achieved much progress in identifying his problems both with alcohol and mental health. It is apparent from both the contents of the Mobile FMHS report and the clinical notes that the Applicant gained much confidence from his interactions with her in addressing his undoubted problems. They developed a close professional rapport. He clearly opened up to her in a way that he had not done in the past because he recognised the benefit of availing himself of the professional treatment opportunity that was open to him. In his evidence, he conceded that he gained a lot from the sessions. The Senior Clinical Psychologist took a detailed history from him. In the clinical notes that are in evidence, not to mention the Mobile FMHS report, it is apparent that the Applicant’s background and his experiences both in Australia and Sri Lanka were explored in depth.
On the preponderance of the evidence it appears to the Tribunal that the Applicant was more likely than not to have opened up and been candid with the Senior Clinical Psychologist. It finds the version that was given to her more likely than not to be the correct one. It cannot accept that the story given to her about being taken “hostage” or subjected to threats from these two acquaintances was made up as he asserted in the witness box. That being the case it cannot accept the version of events concerning his treatment at the hands of the Sri Lankan police and security authorities in August 2004 that he gave in his earlier statements, both for the purposes of this application, and for the purposes of this Protection Visa application in 2010.
As for his assertions that he was concerned Australian police would alert the Sri Lankan police, it seems to the Tribunal to have no weight whatsoever, and all the hallmarks of a recent invention to justify the predicament he confronted in the witness box. By the time of seeing the Senior Clinical Psychologist in 2017 he had resided in Australia for over 12 years. He had become acquainted with the Australian system and the integrity of its legal and law enforcement framework. During that time, he had regular exposure to police and regulatory agencies and must surely have appreciated that such a suggestion could not be correct.
It is well recognised that in migration cases applicants will from time to time not tell the truth. This is particularly so shortly after their arrival when one readily has to acknowledge that quite a degree of latitude will be extended. However, that time had long passed when he commenced the 25 treatment sessions with the Senior Clinical Psychologist in 2017.
His evidence on this topic also needs to be viewed with some degree of realism. He is clearly not an unintelligent individual. Having been granted a Protection Visa in 2012 on the grounds that there was a real chance that he faced the possibility of persecution should he return to Sri Lanka in the foreseeable future, and that such fear of persecution was well-founded, it borders on the absurd to suggest in the way he did in his evidence from the witness box in this application, that he would have expected the Australian police or other authorities to contact the Sri Lankan authorities, thereby exposing him to the very possibility of the persecution that he had been granted a protection visa to prevent occurring.
Even on his own evidence, it is of concern to the Tribunal that he would, as he readily admitted to doing, deliberately give a false patient history to the Senior Clinical Psychologist in the course of 25 individual treatment sessions. It reflects particularly poorly upon him. This poor conduct is also amplified by the fact that he acknowledged the progress that it made concerning his mental health and alcohol issues. If he is, as he says, prepared to deliberately mislead a healthcare professional to the extent that he did, how can one possibly be satisfied that if he is released into the community he will properly engage with professional help if he needs it, which invariably he will, in the future.
The Applicant’s evidence concerning what he says was the made-up story given to the Senior Clinical Psychologist is also an important factor that must weigh heavily against the Applicant in terms of the risk of him reoffending touched on in the analysis of the requirements of paragraph 13.1.2 of Direction 79 referred to above.
For these reasons the Tribunal cannot find the Applicant to be a generally credible witness as contended for him and referred to above. It cannot accept his evidence as to what happened in August 2004 at the hands of Sri Lankan police. It finds that the version of events given to the Senior Clinical Psychologist referred to above where he was subjected to some form of physical threat and extortion by two acquaintances, more probably than not, was the correct one and indeed what actually happened to him. For this reason, the Tribunal cannot accept that it is alleged treatment at the hands of police in August 2004 which provides a factual foundation for the risk that he asserts he is exposed to from the police and security agencies in Sri Lanka.
The language used in paragraph 14.1 of Direction 79 only requires identification of a risk of a specific type of harm. It does not qualify the word “risk” with such other words such as "serious", "high" or like terminology. From the material that is before the Tribunal in this application, doing the best it can, and in the circumstances cast upon it as noted earlier, it considers that there is some risk of harm to the Applicant. That harm being potential exposure to some level of arbitrary harassment, detention and potential violence from both civilians and the security agencies. On the available material as has been considered in this part of these reasons, that likelihood is not high (indeed it cannot be determined exactly) but nonetheless poses a risk to him. The Tribunal, as noted earlier, rejects his evidence concerning the events of August 2004. However, the DFAT report and the USD report, together with other evidence referred to above, must be taken into account, as it is. Therefore, because there is some level of risk of harm, as described, to the Applicant the Tribunal finds that a non-refoulement obligation arises. However, for the reasons referred to it only places limited weight upon it.
The Tribunal concludes that the finding that non-refoulment obligations arise in respect of the Applicant for the reasons articulated earlier, are of limited weight in favour of the Applicant.
Strength, nature and duration of ties
Paragraph 14.1 of the Direction addresses the matters to be taken into account for this consideration:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Much of the factual background concerning the strength, nature and duration of the Applicant’s ties to Australia has already been canvassed.
He arrived in Australia as a young adult, aged 20, in January 2005. His first motoring offences occurred just under three years after his arrival.[56]
[56] The first motoring offence committed by the Applicant was on 30 December 2007. See page 66 of the supplementary G documents.
As noted earlier he has a daughter born here who is an Australian citizen. He has not seen her for approximately four and a half years. He has no other family in Australia. The Tribunal accepts that he does have friends and, as described, some networks in Australia.
The Tribunal accepts, as was noted by the sentencing judge in the County Court, not to mention as emerges from the other material including witness statements, that he has generally worked. Whilst he was with his ex-wife, he appears to have had steady employment for most of that time and after the birth of their daughter until their separation he was the primary, if not sole, breadwinner of the family. There was some evidence from the police notes concerning the incidents in August 2013 that he was then unemployed. This was not explored in the course of the evidence during the hearing of the application. Additionally, during his time in Australia he also applied himself to undertaking several courses for the purposes of improving his employment prospects and his vocational career path.
Whilst it is fair to say that he has spent some time contributing positively to the Australian community, which is acknowledged, overall the effect of this other consideration which weighs marginally in his favour is eclipsed by his record of offending which has resulted in him being in custody for some time, together with the cost to the community caused by the damage and injury arising from the accident which were significant. Most likely, the cost of treatment and rehabilitation of the victim of the accident would have been born by the public health care system. It would have been immense. Also, it should not be lost sight of that there is a cost to the community caused by this accident. Important resources in the health care and emergency services sectors will almost invariably have been diverted from other activities. This diversion and cost is at the expense of the Australian community. The description of the victim’s injuries, their treatment and the lengthy rehabilitation process that was described in the Reasons for Sentence provide ample evidence to support this conclusion.
Overall, the Tribunal finds that this consideration weighs marginally in the Applicant’s favour but cannot accept that it in any way outweighs the primary considerations referred to above. Those primary considerations as observed earlier weigh heavily against revocation of the mandatory cancellation of his Visa.
Impact on Australian business interests
Neither party made any submissions addressing this other consideration. Accordingly, no weight can be attached either way to this consideration.
Impact on victims
Paragraph 14.4 of the Direction provides as follows in relation to impact on victims:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There was little material before the Tribunal concerning this consideration.
There was some evidence of a falling out between the victim and the Applicant. The Applicant in some of the material which was lodged with the Respondent stated that the victim had forgiven the Applicant him and at some stage they had reconciled.[57] There was no verification of this material from the victim. The Tribunal cannot reach a conclusion on this material other than to repeat earlier that the Applicant certainly appeared to be remorseful. Apparently, he has apologised for his offending to the victim. There is no evidence that enables the Tribunal to make a finding of any impact one way or another on the victim. It will not do so. Therefore, this consideration does not weigh either for or against revocation.
[57] Page 42 of the G documents.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in that country.
Under this consideration the Applicant repeats what he describes as a real chance of serious harm if he is forced to return to Sri Lanka. Naturally, he contends that he will experience hardship in re-establishing himself if he returns. He also says, as would be the case, that he will be separated from his daughter. He considers himself Australian and Australia as his home. Additionally, he contends that he would have limited prospects and social connections.
The most significant matter upon which he relies is what he says is a struggle he will face to access treatment for his mental health and alcohol issues. In reliance upon this he refers to the contents of the DFAT report.[58] The entire section of the DFAT report under the heading “Health” is referred to concerning this topic. Despite some improvements, mental health services, overall, are considered inadequate, particularly in former conflict areas, and there remain ongoing challenges in accessing mental health care.
[58] The Applicant referred to sections of the DFAT report concerning the provision of mental health services in Sri Lanka in his submission to the delicate. (See pages 140 and 146 of the G documents.)
The Respondent contends that little weight if any can be placed upon these considerations for several reasons.
Firstly, he is comparatively young and in good health.
He is familiar with the language and culture of Sri Lanka having lived there until the age of 20. He has no substantial language or cultural barriers which should prevent his reintegration into Sri Lankan society.
His parents continue to reside in Sri Lanka.
The DFAT report states that improving access to mental health services, including in a community level, is a government priority. As it puts it, as a part of such effort the Sri Lankan government has deployed cadres of mental health workers to the district level.[59] However, it notes that there remain ongoing challenges in accessing mental health care in Sri Lanka.
[59] See paragraph 2.28 of the DFAT report.
The report states that it assesses that, while there have been some improvements in the availability and quality of mental health services, they remain inadequate overall, particularly in war affected areas, where demand is greatest.
It should not be lost sight of, as is recorded in the DFAT report, that the Sri Lankan healthcare system has a long record of strong performance.[60]
[60] Paragraph 2.25 of the DFAT report.
On the material available to the Tribunal it accepts that the Applicant will more likely than not face some difficulty gaining access to appropriate treatment for mental health and alcohol issues. The extent of this difficulty will to some considerable extent depend upon where he resettles in Sri Lanka. Should he remain in a metropolitan area such as Columbo the prospects of access to these services at an appropriate level of care it appears would be reasonably good. However, if he returns to more rural or northern areas (particularly those that may have residual issues arising from the Civil War, or war affected areas,) the level of difficulty in obtaining such access unquestionably will be higher.
Having lived in Australia since 2005, a return to Sri Lanka will pose its challenges. It is understandable that the separation from his daughter will be personally confronting for him. He does have his parents and some other connections there. It is acknowledged that on the evidence before the Tribunal his parents claim to be in hiding. This naturally, would pose some level impediment, or perhaps more accurately add to the level of impediment that he may face on return if it leads to a prevention of him having regular interaction with them and being able to gain assistance from them in terms of his attempts to reintegrate with society there. He is familiar with the society. Whilst no doubt it will be an adjustment process if he returns there, it is by no means insurmountable. He is a comparatively young man in good health apart from his mental health and alcohol issues, who has otherwise shown himself to be adaptable to a challenge in life in the past.
Overall this consideration weighs marginally in favour of revoking the decision to cancel the Visa.
CONCLUSION
In determining whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked, the Tribunal, as articulated above, has found that the nature and seriousness of his conduct, the risk to the Australian community should he reoffend and the expectations of the Australian community weigh heavily against revocation. Again, it is acknowledged that on the scale of seriousness the Applicant’s offending was not the most serious. It was nonetheless serious both in terms of the frequency of his offending, which escalated into domestic violence with significant effects on his wife and daughter, and latterly the extremely serious injuries he caused the victim of the car accident. This is despite of course taking into account, his early guilty plea, his expressions of remorse and particularly, the fact that he had significant alcohol problems and undiagnosed mental health problems namely PTSD at the time of his offending.

There are considerations that weigh in favour of revocation of the mandatory cancellation of his Visa. The best interests of his daughter are served by having a father present here, even if his contact has been limited and of course no contact for the last four years. There are other findings about non-refoulement obligations owed to him. There is some risk of harm which has been canvassed in these reasons. There are the strengths, nature and duration of his ties in Australia which also must be acknowledged. The Tribunal is mindful of the impediments that he will face particularly concerning the access to treatment for his mental health and alcohol conditions in Sri Lanka.
However, the weight that the Tribunal attaches to these countervailing considerations which weigh in favour of the Applicant, when balanced against the primary considerations of the nature and seriousness of the Applicant’s conduct, the risk to the Australian community and the expectations of the Australian community together with the findings concerning the weight to be attached to them referred to above as required by Direction 79, is such that the findings on these primary considerations attract more weight and therefore must prevail.
In conclusion the Tribunal considers that the for the reasons outlined above the strong weight it attaches to the primary considerations of the nature and seriousness of the Applicant’s conduct, the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community outweigh all other considerations (including the best interests of his daughter) that the Tribunal as decision-maker is required to take into account.
By reason of the foregoing matters the reviewable decision is affirmed.

I certify that the preceding 236 (two hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Cameron

........................[sgd]....................................
Associate
Dated: 29 July 2020

Date of hearing: 20 July 2020

Solicitors for the Applicant: Refugee Legal

Counsel for the Applicant: Rowan Minson

Solicitors for the Respondent: HWL EBSWORTH LAWYERS

Advocate for the Respondent:
Michael Palfrey

[2020] AATA 2582

29 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	20 July 2020
Solicitors for the Applicant:	Refugee Legal
Counsel for the Applicant:	Rowan Minson
Solicitors for the Respondent:	HWL EBSWORTH LAWYERS
Advocate for the Respondent:	Michael Palfrey