Dayananda and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 1370

Dayananda and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1370 (19 May 2021)
Division:GENERAL DIVISION
File Number:2021/1276
Re:Priyantha Padmike Dayananda
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:19 May 2021
Place:Perth

The Tribunal affirms the Reviewable Decision of a delegate of the Respondent dated
22 February 2021 not to revoke the mandatory cancellation of the Applicant’s Visa.
........................[Sgd]................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Applicant is a doctor who was convicted of a sexual offence against a patient – sexual penetration without consent – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – the Tribunal did not find the Applicant to be an honest witness and the Tribunal has significant doubts as to his purported remorse and acceptance of responsibility – expectations of the Australian community – extent of impediments if removed – strength, nature and duration of ties to Australia – impact on Australian business interests – Applicant is a 51 year old man who arrived in Australia in 2013 – extent of impediments if returned to Sri Lanka – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(6B), 500(6L), 500(6J), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G, 501G(1)
Migration Regulations 1994 (Cth) – reg 2.55(5)
CASES
Dayananda v The State of Western Australia [2021] WASCA 11
JFSQ and Minister for Home Affairs [2019] AATA 616
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Subasinghe and Minister for Home Affairs [2019] AATA 751
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) – 4(1), 4(2), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.4, 8.4(1), 8.4(2), 8.4(2)(c), 8.4(3), 8.4(4), 9, 9.1, 9.2(1), 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.1(2)(a)(i), 9.4.2, 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
19 May 2021
BACKGROUND

The Applicant is a 51-year-old man who is a citizen of Sri Lanka (G8/69).
He first arrived in Australia on 17 November 2013 when he was 43 years of age (G57/223–4).
A jury found the Applicant guilty of the offence of “Sexual Penetration without Consent” (Sexual Penetration Offence) under s 325A of the Criminal Code 1913 (WA).

On 21 June 2019, the Applicant was sentenced in the Perth District Court of Western Australia to a total term of three years’ imprisonment to be served from 21 June 2019 (G4/51; G5/59).
On 9 January 2020, the Applicant’s Class SI Subclass 189 Skilled Independent visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) (G60/235) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
On 5 February 2020, the Applicant made representations in support of revocation of the Cancellation Decision (G7/62–82).
The Applicant was released on parole on 28 December 2020 (A1/474) and was immediately taken into immigration detention (G63/296).
On 9 November 2020, the Applicant filed an application to appeal against his Sexual Penetration Offence conviction. However, on 29 January 2021 the Court of Appeal of Western Australia refused the Applicant leave to appeal and dismissed his appeal (Dayananda v The State of Western Australia [2021] WASCA 11; G62/246).
After considering the Applicant’s representations, on 22 February 2021 a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/32). This is the Reviewable Decision currently before this Tribunal.
The Applicant was notified of the Reviewable Decision in a letter dated 23 February 2021 sent to the detention centre “by email for hand delivery” (G3/30). The Applicant was handed a copy of the Reviewable Decision on 24 February 2021 (G66/321). Therefore, the Applicant is taken to have received it when it was handed to him on 24 February 2021 (reg 2.55(5) of the Migration Regulations 1994 (Cth)).
On 4 March 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–9). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the

Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running from 24 February 2021, meaning that the Tribunal must hand down a decision with respect to this application on or before 19 May 2021.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 4 May 2021. The Applicant represented himself and appeared by videoconference from immigration detention.
The Respondent was represented by Mr P Knowles of counsel who also appeared by videoconference, instructed by Ms E Tattersall of Sparke Helmore Lawyers who was present in person.
The Applicant gave oral evidence at the hearing and was cross-examined. Clinical Psychologist, Dr Phil Watts, also gave evidence at the hearing by telephone and was cross-examined.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Evidence (paginated), comprising 652 pages (Exhibit A1);
(b)Section 501G Documents, numbered G1-G66 and comprising 321 pages (Exhibit R1); and
(c)Supplementary s 501G Documents, indexed 1 to 3 and comprising 140 pages (Exhibit R2).
After the hearing on 17 May 2021 at 7:34pm, the Applicant filed two items of additional evidence with the Tribunal. These items were an email confirming that the Applicant still has a place in a sex offender’s treatment program in the community despite the program having already started, and confirmation that he has applied to undertake a post graduate degree in medical research. The Tribunal is unable to consider this late evidence due to the operation of the two-day rule contained within in s 500(6J) of the Migration Act. This rule provides that the Tribunal must not have regard to any document submitted in support of a person’s case unless a copy of the document was given to the Minister at least two business days before the Tribunal holds a hearing.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister 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) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by

subsection (7)); or …
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or …
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” paragraph 4(1) of Direction No 90) must take into account the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in paragraph 9 where relevant (paragraph 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if he is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
Therefore, as a result of the Applicant’s conviction for the Sexual Penetration Offence, for which he was sentenced to a total term of three years imprisonment on 21 June 2019, the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Migration Act.
Accordingly, the Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paragraph 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Paragraph 8.1(2) of Direction No 90 then provides:
(1)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.
Paragraph 4(2) of the “[i]nterpretation” section of Direction No 90 provides the following definition:
(2)In this Direction, serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
(Original emphasis.)
Nature and seriousness of the conduct (paragraphs 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
As noted above, the Applicant was convicted by a jury of the Sexual Penetration Offence. He was sentenced in the District Court of Western Australia on 21 June 2019 to a total term of three years’ imprisonment, to be served from 21 June 2019. The facts upon which the Applicant was sentenced were described by the sentencing Judge. When sentencing the Applicant, her Honour Lonsdale DCJ described the offence and the circumstances surrounding the offending as follows (G5/54–5):
You’ve been found guilty by a jury of sexually penetrating the victim by penetrating her vagina with your finger without her consent. The maximum penalty for this offence is 14 years’ imprisonment.
The facts that I find for the purposes of sentencing are based on the evidence of the victim, whose evidence I accept.
They are that on 5 December 2017, you were a surgical registrar at the Bunbury Hospital. The victim had come to Western Australia in 2016 to escape domestic violence.
In 2017, she was assaulted by an ex-boyfriend. She presented to the Emergency Department of the Bunbury Hospital in September 2017 with stomach pains and had emergency surgery. She remained in Bunbury Hospital for two weeks because of an infection.
She said during the two weeks after her surgery, she was visited by a number of doctors. One of those doctors included a doctor whom she described as, ‘the sleazy one’, and which I find was you. She said that you would come into her room, stroke her hair, make comments about taking her out and showing her around Western Australia. You asked her personal questions. She told you that she was a Muslim and did not go out with men, and you said to her that she did not look like a practising Muslim.
After she was discharged, she kept on getting infections, and her wound became extremely painful. She was going back to the Bunbury Hospital on a regular basis to get the wound cleaned.
She said that on December 5, 2017, her pains became extremely bad. She said a nurse came in to see her, but she couldn’t remember the nurse’s name, and said the nurse was having trouble with the IV drip. She said the nurse was going to call someone else for help, and after the nurse left, you came towards her room.
And I find, consistent with her evidence, that you were not wearing a coat or scrubs at that time. She said that you came into the cubicle and pulled the curtain closed and examined her.
You put your hands lower down onto her underwear and then slid your hand under her underwear, putting your finger between the lips of her vagina and touching her clitoris. You touched her pubic hairs and said to her, “Don’t Muslim women keep themselves down there clean?” She put an end to what you were doing by saying that she needed to go to the toilet. She said that shortly after that she left the hospital and caught a taxi home but she did not tell any of the nurses or doctors she was leaving.
I find, consistent with her evidence, that three days after that you started contacting her using a second phone that you owned. She told you that she lived at a women’s refuge. I find that on 8 December 2017 you phoned her when she was with her friend [name of victim’s friend omitted] and said to her, ‘I’m the doctor from Bunbury Hospital’. She said she panicked and hung up and [the victim’s friend] recommended to her that she text you to try and get some evidence as to who you were. She said that she then sent you a text message to lure you so that she could identify you. The victim contacted Bunbury Hospital in early January 2018 and made a complaint and thereafter her complaint was reported to police.
Paragraph 8.1.1(1)(a)(i) of Direction No 90 provides that the Australian Government and the Australian community view sexual crimes very seriously. The serious nature of the Applicant’s offending was also noted by Lonsdale DCJ in sentencing. Her Honour explained that one of the aggravating factors was the breach of trust involved in the Sexual Penetration Offence (G5/56):
Your offending was a serious example of this kind of offence and there are a number of aggravating factors. Most obviously is the gross breach of trust that you perpetrated on the victim. When a patient seeks the sanctuary of a hospital or a doctor when they are feeling unwell and vulnerable they do not expect to be taken advantage of …
At the Tribunal hearing the Applicant submitted that the offending was less serious, relying on the following comments of the sentencing judge (G5/57):
… I accept that there are factors which place this offending towards the lower end of the scale. The touching on the day in question of her vagina, indeed the penetration of her vagina, was somewhat opportunistic and momentary in nature. The penetration was not of the vaginal canal and it is clearly not as serious as some examples of penetration that come before these courts.
However, the legal principles that apply to sentencing are different to those that apply under the Migration Act and Direction No 90. A factor that may be mitigating in sentencing is not necessarily so under Direction No 90, which provides that certain offences such as “violent and/or sexual crimes” are viewed very seriously. Thus, applying Direction No 90, the Tribunal finds that the Applicant’s Sexual Penetration Offence should be viewed “very seriously”, even if it was characterised by the sentencing Judge as not as serious as some other examples of similar offending that comes before the District Court.
Paragraph 8.1.1(1)(b) of Direction No 90 further prescribes that certain crimes or conduct are considered by the Australian Government and the Australian community to be serious. Relevantly to the Applicant’s situation, “crimes committed against vulnerable members of the community” are considered to be serious by the Australian Government and the Australian community (paragraph 8.1.1(1)(b)(ii) of Direction No 90). When sentencing the Applicant, Lonsdale DCJ commented on the vulnerability of the victim, which she found that the Applicant was aware of. Her Honour stated (G5/57):
The vulnerability of the victim in this case is a relevant consideration. She was particularly vulnerable because she herself had been the victim of domestic violence.
She was living in a refuge and by all accounts had fairly limited supports in the community. And what is worse is that you must have known all of these things because you had offered to show her around and it is difficult to resist the inference that you knew she was alone and living in a refuge and that you took advantage of her vulnerability.
I have read her victim impact statement and it is apparent that your offending has had a profound effect on her. She does speak of many unfortunate things that have happened to her, which of course have nothing to do with you, but that made her more vulnerable and the fact that you took advantage of her in those circumstances is an aggravating circumstance.
The Tribunal finds that the vulnerability of the victim is a further indication of the seriousness of the Applicant’s Sexual Penetration Offence.
Paragraph 8.1.1(1)(c) of Direction No 90 also requires the Tribunal to have regard to the sentences imposed by the courts for a crime or crimes. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162, with regard to a similar consideration under Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA, Senior Member Poljak stated at [22] that: “[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved”. As was noted above, the Applicant received a total term of three years’ imprisonment, with eligibility for parole. When sentencing the Applicant, Lonsdale DCJ noted that (G5/58), “[a]n element of punishment … is warranted to mark the seriousness of the offence and the effect that your offending has had on your victim”. Her Honour decided that it would not be appropriate to suspend the Applicant’s sentence, and stated that (G5/59), “… having regard to the seriousness of the offence, the lack of any real mitigation, and the lack of exceptional personal mitigation, this is a case where it is not appropriate to suspend the sentence, and I decline to do so”. Even though the maximum penalty for the Sexual Penetration Offence is 14 years’ imprisonment (G5/54), the Tribunal considers that the Applicant’s three-year custodial sentence of imprisonment is nevertheless significant and an indication of the serious nature of his offending.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 8.1.1(1)(d) of Direction No 90). The Applicant’s Sexual Penetration Offence is his only offence and he has no prior criminal history.
There is no cumulative effect of repeated offending (paragraph 8.1.1(1)(e) of Direction No 90) because the Applicant has only committed one offence and has only served one sentence of imprisonment.
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 8.1.1(1)(f) of Direction No 90). There is no evidence that the Applicant has provided false or misleading information to the Department, and so this consideration is not applicable.
The Applicant has only committed one offence and so the consideration in paragraph 8.1.1(1)(g) of Direction No 90, regarding whether he previously received any formal or other written warnings that further offending may affect his migration status, is not applicable.
Based on the analysis of each of the sub-paragraphs of paragraph 8.1.1(1) of Direction No 90 above, the Tribunal finds the nature and seriousness of the Applicant’s Sexual Penetration Offence to be very serious. Although the Applicant has only been convicted of one offence, it was a serious offence against a vulnerable victim, committed when the Applicant was in a position of trust and for which the Applicant was sentenced to a custodial term of imprisonment. The Tribunal finds that paragraph 8.1.1(1) of Direction No 90, being the nature and seriousness of the conduct, weighs very strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen 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:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Nature of the harm (paragraphs 8.1.2(1) and 8.1.2(2)(a) of Direction No 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (paragraph 8.1.2(2)(a) of Direction No 90).
Sexual offending can negatively impact victims physically, financially and emotionally. Victims of sexual offending may suffer psychological trauma which can be long lasting. Some of these harms were described in the victim impact statement dated 31 May 2019. The Applicant’s victim stated that the offending had impacted her “mind and body and soul” and had “taken away whatever hope and trust [she] had left in [her]”. She described having to see two psychologists to assist her with the trauma and anxiety she experiences as a result of the Sexual Penetration Offence. The victim detailed numerous other psychological impacts of the offending, including depression and night terrors, for which she has been prescribed medication. She further stated that she had previously been diagnosed with post-traumatic stress disorder, which had been “triggered more” by the Applicant’s offending. She described having low self esteem and feeling anxiety leaving the house, for which she had been prescribed medication. She described spending all her money on a new start in Western Australia after fleeing domestic violence in another state, but having to move interstate again after the Sexual Penetration Offence, which resulted in her no longer feeling safe and struggling financially. The victim also described “feeling unsafe towards any doctor”, which had led her to avoid seeking medical attention. As a result, the victim developed a serious infection, which led to peritonitis, requiring a hysterectomy (R2/96–7). Overall, the Tribunal finds that the nature of the harm that may be caused by sexual offending is very serious, to the extent that any risk that it may be repeated is unacceptable.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (paragraphs 8.1.2(1) and 8.1.2(2)(b) of Direction No 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since his offending (paragraph 8.1.2(2)(b)(i) and sub-paragraph (ii) of Direction No 90).
As noted above, the Applicant has only committed one offence, being the Sexual Penetration Offence. He does not have any prior history of offending. There is no evidence before the Tribunal that he has any issues with drugs or alcohol. At the time of the offending, he was 47 years of age. These factors suggest a lower likelihood of the Applicant reoffending.
At the time of sentencing, Lonsdale DCJ could not say whether the Applicant was at risk of reoffending, but was optimistic about the Applicant’s ability to contribute to society in the future (G5/58):
I’m unable to say whether you are a risk of reoffending, but you are clearly an intelligent man, and I would be very surprised if these events did not cause you to reflect on your conduct and make some changes in your life. It would be a shame that a doctor such as yourself, who clearly had a great deal of talent, was unable to make a contribution to society again one day.
On 7 July 2020, the Applicant was assessed by treatment assessors in prison as a low risk of reoffending, and so was not offered a place in any sex offending treatment programs (R2/73). The Treatment Assessment Report stated that (R2/80):
Based on the Static-99R and Stable-2007 combined, [the Applicant’s] composite assessment places him in Level II for supervision and intervention. Individuals placed in Level II are considered to be below average risk of sexual reoffending. [The Applicant’s] static factor was that the victim was unrelated. [The Applicant’s] dynamic factors include a lack of positive significant social influences and relationship stability, attitudes towards women, a lack of concern for others, poor problem solving and negative emotionality. These factors have been identified mainly due to [the Applicant’s] family supporting his denial, his poor attitude towards his offence and his unrealistic plan to obtain employment upon release into the community.

The Treatment Assessment Report concluded under the heading, “[s]ummary of evidence for program allocation” (R2/80):
Based on the current assessment [the Applicant] presents as below average risk on the Static-99R and Stable-2007 combined for future sexual reoffending and low risk on the LS/RNR for general offending. Whilst [the Applicant] has outstanding criminogenic needs, based on his risk assessment it is not recommended that [the Applicant] participate in any programmatic interventions through this Department.
The Applicant’s parole report notes good behaviour in prison. Specifically, the Applicant incurred no prison charges or incidents, was employed in prison and returned two negative urinalysis tests and 10 negative alcohol tests (R2/4). The Applicant’s evidence at the hearing was that he found prison to be a difficult experience, describing it as, “the worst place in the world that anyone can go” (transcript/29). Further, the Applicant stated, “I hate that place. It was very toxic. The worst place I’ve ever been in my life” (transcript/30). The Applicant also described the difficulties he was having in immigration detention, stating that “there's not much difference” from prison (transcript/61). The Tribunal appreciates that the experience of prison and the Applicant’s fear of returning to prison, as well as his time in immigration detention and the fear of deportation, are likely to deter him from reoffending.
The Applicant was granted parole on 14 December 2020, with a release date of

28 December 2020, but due to the cancellation of his Visa, he was released into immigration detention before he could benefit from a period of parole supervision in the community. The reasons for the Applicant’s release on parole were stated by the Prisoners Review Board (PRB) as follows (A1/474):
The Board decided that your release would present an acceptable risk to the safety of the community due to;
1.    You being assessed as a low risk of reoffending and therefore not meeting the criteria for inclusion in prison based treatment programs, however any treatment needs can be addressed in the community.
2.    The Board notes that your visa to remain in Australia has been cancelled. Nevertheless, if you are subsequently successful in the revocation of the cancellation of your visa, the Board determines that your release in Western Australia does not pose an unacceptable risk to the safety of the community.
3.    You having no prior criminal history.
4.    The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
5.    Your parole plan which includes confirmed suitable accommodation, an intention to find employment and support in the community.
6.    The fact the conditions of parole will further reduce the risk to the safety of the community.
As well as the standard obligations of the parole order and the requirements of the parole order, the PRB imposed the following additional requirements of the order (A1/475):
1.    To have no direct or indirect contact with the victim and to abide by the terms of the lifetime Violence Restraining Order in place.
2.    To attend programmes and counselling as directed.
3.    If released from immigration detention into the West Australian Community, to advise Adult Community Corrections of your residential address and not to change that address without the prior permission of the Community Corrections Officer.
A grant of parole is not made on the basis that there is no likelihood of the parolee reoffending. Rather, a grant of parole is made on the basis that any risk to the safety of the community can be managed through regular reporting and the imposition of specific conditions. This is coupled with the possibility of a return to custody to serve out the balance of the prison term in the event of breach of parole (see Deputy President Boyle in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256, [75]–[77]). As can be seen from the reasons for parole and the conditions that the PRB imposed with respect to the Applicant, the PRB regarded the Applicant as posing a low risk to the safety of the community but as still having treatment needs. The PRB was evidently of the view that this risk could be managed by supervision and monitoring in the community alongside conditions and treatment. If released into the Australian community, the Applicant would be subject to parole supervision and monitoring until 20 June 2022. This period of supervision would be likely to assist the Applicant’s reintegration into the community and its conditions, such as the requirement to attend programmes and counselling as directed, may further assist in his rehabilitation and in reducing the likelihood of any reoffending. In this regard, the Tribunal notes that the Applicant has been accepted into a sex offender treatment program commencing on 11 May 2021 which is run by a clinical psychologist who specialises in the treatment of sex offenders (A1/198).
A formal assessment of the risk of reoffending was made by Dr Phil Watts, a registered clinical psychologist and adjunct professor of clinical psychology. Dr Watts undertook a psychological assessment of the Applicant on 9 April 2021 following a zoom interview for approximately 90 minutes. Additionally, Dr Watts administered the Personality Assessment Inventory (PAI-Plus) (A1/165).
Dr Watts produced a report on the Applicant’s psychological assessment dated 12 April 2021 (A1/165–70) and gave evidence at the hearing (transcript/62–7). Dr Watts found “no evidence of a formal personality disorder or significant evidence of psychological dysfunction”. He did note, however, a “high elevation on the Positive Impression scale”.

In his report Dr Watts explained (A1/169):
The test data suggested he tended to present himself in a consistently favourable light and as being relatively free of common shortcomings to which most individuals will admit. He appears reluctant to acknowledge personal limitations and will tend to repress or deny distress or other internal consequences that may arise from such limitations.
Dr Watts was asked to further explain these findings during cross examination at the hearing. The following exchange is relevant (transcript/63–4):
MR KNOWLES:         And you report that - that the applicant, Dr Dayananda, is reluctant to acknowledge his personal limitations?
DR WATTS:That's what that scale says, so what happens is if it is elevated at mild degrees the person tends not to acknowledge their limitations, at high degrees then they can be sort of, if you like, blindly uncritical of their own function and then there is the second scale which is used to work out whether they were deliberately trying to distort the profile or whether it was more the sort of - a defensive, if you like, lack of insight into themselves to some degree. So there is no evidence of effortful distortion, so it wasn't that he was deliberately trying to look good, it's more that that is sort of his characteristic way of dealing with the world and it was the milder, not the higher end, of that section, but it's a positive gloss if you like, rather than a more direct acceptance.
MR KNOWLES:         And that lack of insight might be reflective of impaired empathy, do you agree with that?
DR WATTS:Well, what happens is the test has some adjustments you can make so there's a positive impression scale, and that's where paragraph 24 comes in, is that with that elevation you can still see to some degree what is underneath it, so that the lack of empathy was not - sorry - impaired empathy - was one of the elevations still present, so there is a degree of that, yes.
MR KNOWLES:         And would you agree that someone who had impaired empathy may not appreciate the consequences of offending in the same way that a person who has normal levels of empathy would be able to appreciate that?
DR WATTS:Correct. If someone has a complete lack of empathy they're at the psychopathic end of the spectrum - they don't care at all. People who have, you know, high levels of empathy would be very focussed. Someone who has a degree of impairment may not fully appreciate the full magnitude, so there is nothing to say that there was the sort of psychopathic lack of empathy, it was more, if you like, a degree of impairment, so he may not appreciate it is the same degree as other people.
(Emphasis added.)
In his report, Dr Watts referred to the Applicant “initially pleading not guilty but subsequently taking responsibility (to some degree)” (A1/170). In the following exchange during cross examination, Dr Watts stated that the Applicant has taken some responsibility for the offending, but that there was probably a further degree of responsibility that he could take (transcript 64–5):
MR KNOWLES:         Yes, and you report in the discussion section of your report that Dr Dayananda has taken responsibility to some degree in relation to his offending - that is my paraphrase of your paragraph 28?
DR WATTS:               Yes.
MR KNOWLES:         Do your recall that?
DR WATTS:Yes, that's - I mean, they are pretty well my words that, you know, that they are taking some responsibility, but there is a degree of - I mean it's probably a further degree of responsibility he could take but there is a recognition, I mean it's been quite clear in saying that the victim is telling the truth, that what she is saying has happened that, you know, it will have impacted her, so there is some taking of responsibility.
MR KNOWLES:         Well, if I told you that it was today the applicant disputed some aspects of the victim's evidence including what the victim said he said to her during the offending, would that suggest to you that he is not taking responsibility for the offending?
DR WATTS:Well it depends on the degree of it. So, if he is disputing everything she says then that would be a lack of responsibility if he is arguing around detail, that is not uncommon. So it's really a question of what level of detail is he disputing.
MR KNOWLES:         And I suppose the point of this, isn't it, that somebody who is accepting responsibility for their offending is less likely to offend in the future, aren't they?
DR WATTS:It's certainly one of the factor for, you know, remorse and accepting responsibility are certainly factors which will lower risk but as, you know, there are other factors such as the impact the offence has had on them, you know, that's why punishment is one aspect of prison as a deterrent. Being able to understand, you know, what the dynamics are is important. Again, what I got with my assessment was that there is some, you know, he is saying to me and again, I don't know what the evidence you got today was, that is that he is not disputing aspects of what the victim was saying, there's some aspects that he is saying - I will rephrase that. He was saying to me what she said happened it did happen that doesn't mean that he won't dispute some aspects of her story, so there is some accepting of responsibility. A complete lack of responsibility - nothing happened - it's all her fault, would be a higher concern than him saying, ‘Yes, I do, you know, she did say something happened and I agree that something happened’ so that's why I say there is some degree of taking responsibility so that offers some degree of protection.
(Emphasis added.)
As noted by Dr Watts, expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. The evidence of Dr Watts above describes a kind of spectrum of remorse and accepting responsibility. On the one end of the spectrum is a complete denial of remorse and accepting responsibility. On the other end of the spectrum, the Tribunal infers, is a full and complete acceptance of the offending and its consequences. Somewhere between these two ends of the spectrum, there is some degree of taking responsibility by, for example, accepting that the offence happened, but disputing parts of the victim’s story. The evidence before the Tribunal shows that the Applicant has made minimal progress with remorse and accepting responsibility since his sentencing and his appeal. This will now be discussed further below.
At the time of sentencing, the Applicant was not remorseful and refused to accept responsibility. The sentencing Judge unequivocally commented on the Applicant’s lack of remorse, the fact that he was found to have lied to the Court when giving evidence and the fact that he had opportunistically tried to blame another doctor for his own conduct. Specifically, her Honour Lonsdale DCJ stated (G5/55–7):
… I find that you are completely devoid of any remorse. You denied your offending to police and you continued to do so at trial. … I find that the evidence of you contacting the victim by telephone was overwhelming and I find that you lied in your evidence when you claimed that the phone was used to communicate with her was used by somebody else without your knowledge. …
Your denials to police about what had happened to your phone and your claims not to have known who sent those text messages to her or to know anything about the text messages sent to a number of prostitutes made uncomfortable listening.
You repeated your denials to police in your evidence at the trial and it was apparent to me and no doubt ultimately apparent to the jury that you were lying through your teeth about this. Your evidence was that somebody must have had access to your phone and sent text messages not only to the victim but to other people. You gave evidence that you did not know how your phone came to register usage in Griffith in New South Wales at a time when you were present. Your suggestion that Dr [name omitted] or someone unknown has used your phone without your knowledge was highly implausible. …
I also find that you blamed Dr [name omitted] and that although your blaming of him was somewhat opportunistic, you must have known that that was a ridiculous suggestion. The victim had initially identified him as the perpetrator and no doubt that’s why you seized on an opportunity to – why you seized on that as an opportunity to extricate yourself from the victim’s allegations. What you did may well have had the effect of sullying his reputation had the jury not ultimately seen through your lies.
The fact that you were prepared to drag your colleague through the mud, particularly in circumstances where both he and his wife had been very concerned for you and kind to you after they became aware of the allegations against you, reflects very poorly on your character. You also attempted to denigrate the victim, implying that she was flirting with you by attempting to touch you, and that you would not have done anything to her because she might have had a sexually transmitted infection. That suggestion I find to be hypocritical in all of the circumstances.
The Applicant also maintained this lack of remorse and did not accept responsibility at the time of his appeal against the conviction for the Sexual Penetration Offence. In appeal documents dated 21 May 2020, he claimed that the victim was an intravenous drug user who had “behavioural issues” and who had been “paranoid about men since 2016”. He also made other negative allegations about the victim (G17/117–18). In a sworn appeal document dated 21 May 2020, the Applicant stated that, “I have no involvement of phone ending with 897 number [being the phone registered in the name of the Applicant that was used to contact the victim]”. Further, the Applicant stated in this sworn document that “I never ever used such a phone and not recharged such mobile” (G31/168; see also G17/121). However, the Court of Appeal found that (G62/263):
The evidence at the trial established that the appellant purchased the 897 telephone; that the person who made the relevant calls from the 897 telephone to the complainant’s 360 telephone was a male person with an Indian accent; and that the 897 telephone was in Griffith at the same time as the appellant was in Griffith. The appellant’s suggestion that another person could have been using the 897 telephone to make the relevant calls and send the relevant text messages to the complainant’s 360 telephone is fanciful.
The Applicant sought to qualify the sworn statements he made in the Court of Appeal documents by claiming that even though he had bought the phone in his name and had recharged the telephone, these statements were not intended to be literal. The Applicant stated that what he meant was “I did not use this phone to call or text or anything, and I did not use - I never used this phone, and I did not continuously recharge this mobile to keep it active” (transcript/46).
At the hearing of the current application, the Applicant sought to avoid discussing his offending. He stated that he was remorseful, that he accepted what the complainant had said and that he accepted the conviction (transcript/40, 42, 47–8). However, these statements of acceptance appeared to the Tribunal to be part of an attempt to avoid discussing details of the offending. Indeed, the Tribunal found the Applicant to be evasive when answering questions about his offending. The following exchange illustrates the evasive nature of the Applicant’s evidence and demonstrates the Applicant attempting to characterise the offending as an accident rather than as deliberate (transcript/40).
MR KNOWLES:         You mentioned that the victim complains that you touched her vagina and her clitoris. The victim also - that wasn't an accident, was it, that you touched her vagina and her clitoris?
APPLICANT:              Well, that's actually up to the criminal court to decide, so that's why I said I will accept the conviction.
TRIBUNAL:Well, you are being asked about it, Mr Dayananda, so you need to answer the question. Did you want to ask again, Mr Knowles?
MR KNOWLES:         It wasn't an accident that you touched her vagina and her clitoris, was it?
APPLICANT:              Well, the - the incident was happen on 5 December 2017 and I was given the evidence on 2019, almost two years after. This moment during this - between that period I have seen many patients - the same kind of patient, same way examination, like - well, different kind of abdominal - abdominal complaints, so I can't remember exactly whether it accidentally happened or when I am examining something has happened or what - what I am trying to say is I deliberately didn't do whatever the complaint said but I respect what the criminal court decided.
(Emphasis added.)
As well as denying that he deliberately put his finger between the lips of the victim’s vagina and touched her clitoris, at the Tribunal hearing the Applicant disputed other facts described by the sentencing judge, such as:
(a)stroking the victim’s hair and making comments about taking the victim out and showing her around Western Australia (transcript/49);
(b)saying to the victim, “don’t Muslim women keep themselves down there clean?” (transcript/42, 49);
(c)that three days after the offence he attempted to contact the victim on a second phone by making telephone calls and sending text messages to her (transcript/43, 45–8);
(d)that he tried to blame another doctor at the hospital for the offending and for texting the victim. Instead, the Applicant claimed that he simply pointed out the doctor was “one of the suspects” (transcript/49).
The Applicant stated that he plans to find employment in medical research so that he is no longer treating patients. He has produced copies of letters confirming his suspension from medical practice (G19/132; G20/133–40) and has listed the medical research institutes that he plans to pursue employment with (A1/16). The Applicant relies upon Dr Watts’ conclusion with respect to the Applicant was that he “is a low risk of reoffending” and that Dr Watts “would consider him no risk outside of the medical situation” (A1/170). The Tribunal is uncertain as to how realistic the Applicant’s plans are to obtain employment in the medical research field, given that his registration as a medical practitioner has been suspended. However, simply removing the Applicant from caring for patients may not be protective enough. The Applicant’s offending was opportunistic and arose when he was in a position of trust and responsibility and he could similarly find himself in such a position as a medical researcher working at a research institution or university. Further, the Tribunal observes that under cross examination, Dr Watts clarified that his assessment of the Applicant being “no risk” was probably an overstatement (transcript/67):
MR KNOWLES: Well, by the same token, what I suggest is that paragraph 32 of your report probably overstates things by saying that there is no risk outside the medical situation because I suggest that wherever there are imbalances of power, there could arise an opportunity to offend and the risk would still - albeit low - be there?
DR WATTS:Yes, I am quite happy to stand corrected. To say that anyone is ever no risk is - yes, would be an overstatement. You can only ever say someone really is low risk - or negligible risk, you can never - no-one while they're breathing is no risk, you know, I accept that.

The Tribunal acknowledges Dr Watts’ expertise and accepts his assessment that the Applicant is a low risk of reoffending. The Tribunal nevertheless is concerned that the Applicant’s evidence at the Tribunal hearing indicates that there was less remorse and acceptance of responsibility than was apparent to Dr Watts at the time of his assessment. Indeed, the Tribunal did not find the Applicant to be a truthful witness. He was evasive, sought to minimise his offending and continued to deny almost all established facts of the offending. It therefore appears to the Tribunal that the Applicant may have less remorse, acceptance of responsibility and insight into his offending than Dr Watts was led to believe during his assessment of the Applicant.
The Applicant did, however, appreciate the impact of his offending on his wife and 20-year-old adult daughter, describing them as also being victims of his offending (transcript/42–3). The Applicant’s wife and daughter also provided letters of support for him (G24/150–1; G27/155–6). Appreciating the impact of his offending on his family, as well as having their continued support, is likely to be a protective factor for the Applicant. However, the Tribunal notes that the Applicant’s wife and daughter believe that he is innocent (G24/151; G27/156), so their support is likely to be less protective than if they were fully appraised of the offending. The Applicant’s fear of deportation and potential separation from his family are nevertheless likely to be protective factors, which if he is permitted to stay in the Australian community, may assist to motivate him not to reoffend.
Some of the Applicant’s friends, former colleagues and family members who appear to be generally aware of his offending have written letters of support and have offered him assistance, including social and financial assistance (G43, G44, G46/209-210, G47–G54). Having this support may assist the Applicant to reintegrate into the community and not to reoffend, although the Applicant apparently had this support at the time of the offending and nevertheless committed the Sexual Penetration Offence.
Although the Applicant was assessed as not requiring a sex offender treatment program, the Applicant has attempted to access programs and to undertake study to improve himself. The Applicant completed the Standing on Solid Ground program in prison, described on the completion certificate as “a 50 hour program about emotional intelligence” (A1/491), as well as undertaking courses relating to vocational skills, such as a Certificate II in General Education for Adults and a Certificate II in Horticulture (A1/492). He also stated that he has undertaken two online ethics courses, and that he has studied numerous reading materials published by the Australian Medical Council, universities and research institutes, citing a list of 14 publications that he has read (A1/20–1). These reading materials relate broadly to good medical practice and sex offender treatment services and programs. The Applicant also wrote that for the last three years he has been engaging in meditation through a Buddhist retreat and that he had been able to apply three fundamental theories (accept, apology and assure no repetition) to gain insight into his offending (A1/15). The Applicant also gave evidence at the hearing that he tried to undertake the sex offenders’ treatment program in prison but was not permitted to undertake it because he was assessed as not requiring programmes (transcript/58). There is, however, minimal evidence before the Tribunal as to whether and to what extent the Applicant has made any gains or insights as a result of these activities that may reduce his likelihood of reoffending.
Paragraph 8.1.2(2)(b)(ii) provides that the Tribunal is to consider any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since an applicant’s most recent offence. The Applicant referred to being on bail prior to and during the District Court hearing, where he was found guilty of the Sexual Penetration Offence and after the jury found him guilty until he was sentenced. Specifically, the Applicant stated that he had not breached his bail conditions during these periods, which amounted to a period of approximately two years in the community (A1/13). The Tribunal has taken this into account based on a literal reading of paragraph 8.1.2(2)(b)(ii). It is likely that the paragraph was intended to contemplate time spent in the community after a sentence was served, but the literal wording, “since their most recent offence” contemplates that time in the community after the actual date of the offence, for example, whilst on bail, can be considered. Thus, the Tribunal has considered the Applicant’s time in the community on bail, noting that this was a period of supervision and monitoring in the community, and therefore a more controlled environment than if he was in the community without any supervision.
After considering the evidence discussed above regarding the likelihood of the Applicant reoffending, the Tribunal is of the opinion that the Applicant’s likelihood of reoffending is in the “low” range. This evidence included:
(a)the fact that the Sexual Penetration Offence conviction was the Applicant’s first and only conviction;
(b)the salutary effect of the Applicant’s time in prison and detention;
(c)the Applicant’s appreciation of the effect of the offending on his family;
(d)the Applicant’s attempts at courses and study by way of rehabilitation;
(e)the Applicant’s intention not to work as a doctor or surgeon treating patients, but instead to work in the field of medical research;
(f)the acceptance of the Applicant into a sex offender treatment program in the community and his stated intention to undertake that program;
(g)the period he will spend in the community under parole supervision which may support his reintegration and rehabilitation into the community; and
(h)the various assessments that find the Applicant to be a low risk of reoffending, including the opinion of Dr Watts.
On the other hand, the Tribunal did not find the Applicant to be an honest witness and the Tribunal has significant doubts as to his purported remorse and acceptance of responsibility. At the Tribunal hearing, the Applicant was often evasive in his evidence, denied most of the facts surrounding the offending and attempted to minimise the offending as an accident. The Applicant’s lack of insight and acceptance, and the opportunistic nature of his offending when he was in a position of trust, confirms the Tribunal’s view that there remains some risk of the Applicant reoffending or committing serious conduct in the future should an opportunity arise again. The Tribunal also queries how protective the Applicant’s friends and family will be because he previously had their support, and yet he committed the Sexual Penetration Offence. This is particularly the case, given that the letter of support from the Applicant’s wife contained a strong assertion as to his innocence. Further, even if the Applicant’s risk of reoffending is “low”, the Tribunal considers that any likelihood of further sexual offending is unacceptable, given the serious nature of the harm caused to individual victims and to the community by such offending (see paragraph 8.1.2(1) of Direction No 90).
The Tribunal finds that, on balance, paragraph 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.
Summary on paragraph 8.1 of Direction No 90
The Tribunal has found that paragraph 8.1.1(1) of Direction No 90 weighs very strongly, and paragraph 8.1.2 weighs strongly against revocation of the Cancellation Decision. Thus, overall, the Tribunal finds that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paragraphs 8(2) and 8.2 of Direction No 90)
The commencement of Direction No 90 introduced a separate primary consideration for decision-makers to have regard to, being family violence committed by the non-citizen. This primary consideration is not applicable to this application because there are no allegations against the Applicant, nor are there any convictions for, family violence related offending against him.
The best interests of minor children (paragraphs 8(3) and 8.3 of Direction No 90)
There are no minor children identified either by the Applicant or in any of the materials before the Tribunal. Therefore, this consideration is not applicable to this application.
Expectations of the Australian community (paragraphs 8(4) and 8.4 of Direction No 90)
A decision-maker must take into account the expectations of the Australian community when making a decision under s 501 or s 501CA.
These expectations are set out in paragraph 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Thus, the Tribunal must give effect to the “norm” stipulated in paragraph 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
As is evident from the reference to the “norm” in paragraph 8.4(1) of Direction No 90, the decision-maker is being told unequivocally what the community’s expectations are. Further, paragraph 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them. In this regard, the Tribunal agrees with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114 which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis.)
Further detail about what the Australian community’s expectations are with respect to certain types of conduct is then given in paragraph 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f).
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
With respect to the Applicant, the expectation of the Australian community would be that his Visa should remain cancelled (paragraph 8.4(1) of Direction No 90). Further, the Australian community would expect that the Applicant’s Visa should remain cancelled because of the nature of the offence. That is, the Applicant committed a serious crime against a vulnerable woman, which was of a sexual nature, whilst he was in a position of trust (paragraph 8.4(2)(c) of Direction No 90). These expectations apply regardless of the Applicant being assessed by the Tribunal above to be a low risk of reoffending (paragraph 8.4(3) of Direction No 90). The Tribunal is further guided by the principle contained in paragraph 5.2(4) of Direction No 90 which provides that Australia has a low tolerance of non-citizens who have been participating in and contributing to the Australian community for a short period of time. This applies to the Applicant, who came to Australia as a 43-year-old man and offended after being in Australia for approximately four years. The Applicant is not a person to whom the community would afford a higher degree of tolerance because he has not lived in Australia for his whole life or from a young age. Accordingly, the Tribunal finds that paragraph 8.4 of Direction No 90, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Other considerations
Paragraph 9 of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before the Tribunal (paragraph 9.1 of Direction No 90).
In the Applicant’s circumstances, Australia’s non-refoulement obligations are not engaged and therefore this consideration is not relevant.
Extent of impediments if removed
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider 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.
The Applicant is currently 51 years of age. He does not have any psychological or psychiatric issues (R2/5; A1/167).
The Applicant stated that he is suffering from “major systemic diseases” (A1/95; G40/190–1). Specifically, the Applicant stated that he suffered a heart attack four months after the allegation of his offence was made and had surgery (in August 2018) to insert stents. The Tribunal notes a letter from Fiona Stanley Hospital dated 11 February 2021, noting that the Applicant “has had non-specific symptoms of fatigue and occasional palpitations” and a past “diagnosis of premature coronary artery disease by angiography in 2018” (A1/509). The Applicant stated that following the surgery, he has been experiencing mini-strokes and that he must take medication (anticoagulants) for the rest of his life (A1/95; transcript/53–4; G40/190).
The Applicant claimed that his cholesterol medication is not available in Sri Lanka (G41/194). However, it was put to him during cross-examination that the website of Sri Lanka’s State Pharmaceutical Corporation listed this medication as being available. The Applicant responded that he asked a family doctor in 2019 whether the medication was available and was told that it was not. He conceded that, “I don't know how it is now” (transcript/54). The Applicant also admitted that he would be able to manage his own physical health, for example diet, exercise and regular check-ups, because of his medical expertise (transcript/53).
The Applicant also stated that he was suffering from other medical conditions including a fatty liver, hypercholesterolemia and borderline diabetes mellitus (A1/38; G40/191). However, medical records dated 23 January 2021 state, “[n]egative screening for diabetes 31 December 2020” (A1/508). The Tribunal accepts that the Applicant suffers from some medical conditions that he requires medication for. However, there is no evidence that he would not be able to access medical treatment or medications to treat his conditions in Sri Lanka.

There are no apparent language or cultural barriers and the Tribunal notes that the Applicant came to Australia as a 43-year-old adult.
There is no evidence that the Applicant would not have the same access to government benefits as other citizens of Sri Lanka.
The Tribunal accepts that the Applicant is likely to face some emotional hardship if he is returned to Sri Lanka. It is unclear to the Tribunal as to whether the Applicant’s wife and

20-year-old adult daughter, who are Sri Lankan citizens, would relocate with him if he were removed to Sri Lanka. In his written submissions, he stated that he would be separated from his wife and daughter if he were returned to Sri Lanka (A1/37). However, at the hearing the Applicant stated that it had not been decided whether his wife and daughter would return to Sri Lanka with him. He did, however, state that it would have a negative impact on his daughter’s university education if she was to return to Sri Lanka (transcript/34). If the Applicant’s wife and daughter decide to remain in Australia, the Tribunal accepts that the Applicant will likely suffer some emotional hardship if he is returned to Sri Lanka and separated from them.
The Applicant also stated that he would face social isolation if returned to Sri Lanka because his offending has been well publicised in Sri Lanka and news articles about his offending are available on the internet (transcript/32). He said that his extended family in

Sri Lanka are aware of his offending and have rejected him because of his offending. The Tribunal accepts that the Applicant may face a degree of social isolation if he is returned to Sri Lanka. There is, however, no corroborating evidence that the Applicant’s family members in Sri Lanka have rejected him.
The Applicant’s brother, who lives in Australia, has confirmed that he will assist the Applicant “financially, medically and socially as long as he needs” (G46/209). Two friends of the Applicant’s in Australia also stated in reference letters that they would provide “financial and social help” to the Applicant (G47/213; G48/214). The Applicant has also stated that he will be able to temporarily stay with his cousin or a friend if he returns to Sri Lanka, but that he fears being homeless because he does not have a bank account or a house in Sri Lanka. The Applicant also stated that he is worried about being able to find employment in Sri Lanka because his medical registration has been suspended following his suspension in Australia and because Sri Lanka does not have as many medical research opportunities as Australia (A1/38). The Tribunal is, however, of the opinion that the Applicant is likely to face similar difficulties finding employment in Australia as he would have in Sri Lanka due his registration suspension in both jurisdictions. The Tribunal is also of the opinion that he may have difficulty obtaining employment in medical research or at a university teaching in either jurisdiction.
Overall, the Tribunal finds that the Applicant may encounter some difficulty and hardship establishing himself and maintaining a basic standard of living if he were to return to

Sri Lanka, but that these difficulties are not insurmountable. The Tribunal finds that paragraph 9.2 of Direction No 90, being extent of impediments if removed, weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community, the Applicant’s victim or any of her family members. Consequently, this consideration is not applicable.
Links to the Australian Community
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, 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.
As noted above at paragraph [104], it is unclear to the Tribunal whether the Applicant’s wife and adult daughter would relocate to Sri Lanka with him if he is returned there. The Applicant gave evidence that his wife and daughter only came to Australia permanently in 2016 from Canada, meaning that they have been in Australia for a relatively short period of time (transcript/33–4).
The Applicant’s wife wrote a letter dated 6 February 2020 in support of him. It is evident from the letter that she is missing her husband and finding it difficult without him, both emotionally and financially. Her letter states that she and her adult daughter are Canadian citizens because they lived in Canada prior to coming to Australia but that they have now applied for Australian citizenship. The Applicant’s wife referred to her initial plan to sell the family home and move interstate once the Applicant could secure employment upon his release from prison (G27/156). The letter does not discuss what her plans would be if the Applicant had to return to Sri Lanka. The Applicant stated that his wife has stayed in Western Australia to be near him, and that their plan was to travel interstate to reside with their daughter when he is released (G25/152). The Applicant further stated that his wife has experienced several serious health issues and that she now has difficulty undertaking day to day housework, which he fears will become worse if he is deported (G25/153).
The Applicant’s adult daughter also wrote a letter in support of him, dated 12 February 2020 (G24/150–1). She is studying an undergraduate degree interstate, and in the letter expresses her love and admiration for her father. She states that she cannot wait for her father to come home and for the family to be reunited, but however does not make any comment about what she would do if her father is returned to Sri Lanka. In a written statement, the Applicant stated that his daughter is experiencing difficulties with her studies without his guidance, and that she was feeling depressed and socially isolated without him. He stated that if he had to return to Sri Lanka it would “[r]uin her entire education and future” and that she would “[r]eturn to Sri Lanka with [him]” (G23/149).
The Applicant has been separated from his wife and adult daughter since his term of imprisonment commenced in June 2019. There is no independent medical evidence filed to support the Applicant’s contentions regarding his wife’s health issues, his daughter’s psychological health, or of there being any impact on his daughter’s studies if he is returned to Sri Lanka. Indeed, it appears from the evidence that the Applicant’s daughter has been independently studying interstate without both her parents. The Tribunal accepts, however, that the Applicant’s incarceration and detention has had a negative impact on the Applicant’s wife and daughter, both emotionally and financially, and that they will face some difficult decisions if the Applicant is returned to Sri Lanka.
The Applicant has numerous other family members in Australia including his brother, three cousins and two in-laws (G8/77). There is no evidence of any impact upon these family members if the Applicant is returned to Sri Lanka, but they are indicative of his ties to Australia.
As noted above, the Applicant came to Australia on 17 November 2013 when he was 43 years of age (G57/223-224). He has therefore been in Australia for a total of seven and a half years but has been in prison and immigration detention for approximately the last two years.
The Applicant committed the Sexual Penetration Offence on 5 December 2017 after he had been in Australia for approximately four years. The Tribunal considers that the Sexual Penetration Offence was committed a relatively short time after the Applicant arrived in Australia and accordingly less weight should be given to this part of the strength, nature and duration of ties to Australia consideration (paragraph 9.4.1(2)(a)(i) of Direction No 90).
The Applicant has worked as a surgeon, including in regional areas of Australia, has paid taxes, and has undertaken volunteer lecturing in 2015 at the University of Western Australia (G37/185–7). He also stated that he has made contributions to medical research, including by co-authoring three research papers (G32/170; G33), and that he was a volunteer doctor an event and a competition in 2018 (G37/187). The Tribunal gives some weight to these positive contributions. The Applicant owns a house and two cars in Western Australia which is also suggestive of ties to the Australian community (G38/188).
In summary, the Applicant has some close ties to the Australian community because his wife, adult daughter and other friends and family members reside in the Australian community. However, he has been in Australia for a relatively short period of time and offended four years after his arrival. He has made some positive contributions to the Australian community, primarily through his work as a surgeon, although it was whilst undertaking this work that he offended. Overall, the Tribunal finds that paragraph 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has said that if he is permitted to stay in Australia, he will be able to contribute to important medical research, such as in the area of immunization and that with his experience, knowledge and skills he could significantly contribute to the Australian health system (G9/85).
However, currently there is no “employment link” as contemplated by paragraph 9.4.2(3) because the Applicant does not currently have employment as a medical researcher. There is therefore no evidence that a decision under s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Therefore, the Tribunal is of the view that this consideration does not arise on the material before the Tribunal.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
In relation to the protection of the Australian community, the Tribunal has found that:
(a)the nature and seriousness of the Applicant’s offending conduct weighs very strongly against the revocation of the Cancellation Decision; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct weighs strongly against the revocation of the Cancellation Decision.
Overall, the Tribunal has concluded that the protection of the Australian community primary consideration weighs strongly against the revocation of the Cancellation Decision.
The Tribunal has found that the expectations of the Australian community would be that the Cancellation Decision should not be revoked, and that this primary consideration weighs strongly against the revocation of the Cancellation Decision.
The Tribunal further finds that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the other considerations that weigh in favour of revocation of the Cancellation Decision, including the extent of impediments if the Applicant is removed to Sri Lanka and the strength, nature and duration of the Applicant’s ties to Australia, which both weighed slightly in favour of revocation of the Cancellation Decision.
Having had regard to the relevant primary considerations and relevant other considerations in accordance with Direction No 90, the Tribunal is of the view that there is not another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Tribunal affirms the Reviewable Decision of a delegate of the Respondent dated 22 February 2021 not to revoke the mandatory cancellation of the Applicant’s Visa.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...[Sgd].....................................................................
Associate
Dated: 19 May 2021

Date of hearing: 4 May 2021

Representative for the Applicant: Self-represented

Representative for the Respondent:

Solicitors for the Respondent:

Mr P Knowles

Ms E Tattersall, Sparke Helmore Lawyers