De Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 605

De Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 605 (31 March 2022)
Division:GENERAL DIVISION
File Number: 2021/8193
Re:Shanaka Nirmal De Silva
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:31 March 2022
Place:Melbourne

The Tribunal affirms the decision under review.
........................[sgd]................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – visa refusal – citizen of Sri Lanka – Return (Residence) (Class BB) visa –family violence – rehabilitation and remorse – risk of engaging in criminal conduct in Australia – best interests of children – exercise of discretion – Ministerial Direction No. 90 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Crimes Act 1958 (Vic)
CASES
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
BTJ21 v Minister for Home Affairs (No 2) [2022] FCA 24
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4309 (19 November 2021)
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v R (1996) 184 CLR 501
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Citizenship v SZJSS [2010] 243 CLR 164
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
PQSM v Minister for Home Affairs [2019] FCA 1540
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
Vural v Minister for Home Affairs [2020] FCA 667
YNQY v Minister for immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Judicial College of Victoria, Victorian Criminal Charge Book (online at 7 March 2022) ‘7.4.3 Intentionally Causing Injury’
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
31 March 2022
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision on 6 October 2021, to refuse his application for a Return (Residence) (Class BB) visa (the visa).
The hearing was held on 15, 17 and 18 February 2022. The parties appeared by audio-visual link, in the Applicant’s case from Sri Lanka. The Applicant was represented by Mr Overend of Counsel, instructed by WLW Migration Lawyers. The Respondent was represented by Ms Hargrave, a solicitor with Clayton Utz.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 48-year-old citizen of Sri Lanka.[1] His immediate family continue to live there, except for a brother who lives and works in the United States.[2] The Applicant said he was educated to high school level[3] and then worked for a Sri Lankan bank, where he rose from banking assistant to ‘Executive’ over an eight-year period.[4] He claimed this was followed by five years of employment as an accountant with a nongovernmental organisation, before working for a jeweller.[5] The Applicant said his first marriage in Sri Lanka ended after approximately a year because of his wife’s infidelity.[6]
[1] Exhibit R1, 64; 83.
[2] Ibid 74.
[3] Ibid 376.
[4] Ibid 156 [5].
[5] Ibid [6]- [7]; 344 [19].
[6] Ibid 156 [5]; Exhibit A1, 1 [5].
The Applicant was introduced to an Australian woman by a mutual friend in May 2008.[7] The Tribunal will refer to her as Ms RX. Ms RX is an Australian citizen and the same age as the Applicant.[8] She has an undergraduate science qualification from the United States, was permanently employed, and owned a home when first introduced to the Applicant.[9] The Applicant said his relationship with Ms RX initially developed ‘over the internet’.[10] She travelled to Sri Lanka in October 2008 to meet him and they married later that month.[11] It was the second marriage for both, and neither of their first marriages resulted in children.
[7] Ibid 67-68.
[8] Ibid 84; 820.
[9] Ibid 157 [11]; 344 [16].
[10] Ibid 156 [7].
[11] Ibid 85.
The Applicant joined Ms RX in Australia on 29 April 2009 on a temporary Partner (sub-class 309) Visa.[12] He was 35 years of age and subsequently worked as a cleaner,[13] machine operator,[14] and undertook some vocational training.[15] During their relationship the Applicant and Ms RX had two children, who are currently seven and eleven years of age.[16]
[12] Ibid 40; 821; 824.
[13] Ibid 344 [20].
[14] Ibid 344 [20]; 376; 383.
[15] Ibid 87-88.
[16] Ibid 81-82; 820.
A summary of the Applicant’s history in Australia follows:
(a)10 May 2009: The Applicant assaulted Ms RX within a fortnight of arriving in Australia,[17] following which a Family Violence Intervention Order (FVIO) was taken out. He and Ms RX separated after this incident.
[17] Ibid 37.
(b)17 August 2009: The Applicant assaulted Ms RX in contravention of the FVIO.[18]
[18] Ibid 35.
(c)30 October 2009: The Applicant was found guilty at the Dandenong Magistrates’ Court of two charges of Unlawful assault and one charge of contravening a FVIO.[19] No conviction was recorded, and he was released upon entering an undertaking to be of good behaviour for 12 months.[20] He was also ordered to complete the ‘Positive Lifestyle Program - Emphasis on Anger Management’ and to provide the Court with proof of completion. The Applicant’s unchallenged oral evidence during the hearing was that he complied with this requirement.
[19] Ibid 31; 35-36.
[20] Ibid 35.
(d)November 2009: The Applicant said he and Ms RX reconciled approximately six months after the initial domestic violence incident.
(e)March 2010: The Applicant’s first child with Ms RX was born.[21]
[21] Ibid 82.
(f)8 March 2011: The Applicant was granted a Partner (subclass 100) Visa.[22]
[22] Ibid 40.
(g)10 December 2011: The Applicant departed for a month-long visit to Sri Lanka.[23]
[23] Ibid 821.
(h)March 2014: The Applicant’s second child with Ms RX was born.[24]
[24] Ibid 81.
(i)1 December 2014 – June 2016:
(i)Family violence, Separation, Supervised Visits. In December 2014 the Applicant committed more serious domestic violence against Ms RX.[25] He and Ms RX again separated after this incident.[26] The Applicant stated that for periods of time he was unable to see his children or was only allowed supervised visitation.[27]
[25] Ibid 32.
[26] Ibid 68; 75.
[27] Ibid 346 [30].
(ii)Convictions. On 3 June 2015 the Applicant pleaded guilty and was convicted of one charge of Recklessly cause injury. A 12-month Community Correction Order (CCO) was imposed, and he was ordered to perform 75 hours of community work and complete a Men’s Behaviour Change Program.[28] Two other charges were withdrawn.[29]
[28] Ibid 32.
[29] Ibid 33-34.
(j)January 2017: After two years apart, the Applicant and Ms RX again reconciled.[30]
[30] Ibid 75; Exhibit A1, 3 [16].
(k)30 March 2017: The Applicant changed his name in Sri Lanka.[31]
[31] Exhibit R1, 802-803.
(l)29 May 2018: The Applicant applied for Australian citizenship by conferral.[32]
[32] Ibid 40.
(m)14 December 2019: The Applicant applied for the visa refused in this matter.[33]
[33] Ibid 98.
(n)15 December 2019: The Applicant voluntarily left for Sri Lanka and has not returned.[34] His Partner (subclass 100) visa ceased on this date.[35] Ms RX and the children initially accompanied him to Sri Lanka.
[34] Ibid 56; 821.
[35] Ibid 56; 823.
(o)January-February 2020: The Applicant’s unchallenged oral evidence is that Ms RX returned to Australia in January 2020 for work commitments, while the children remained in Sri Lanka under his sole care for a month. He claimed Ms RX returned to Sri Lanka in February 2020 to collect the children and return to Australia ahead of the commencement of the school year.
(p)11 March 2020: The Applicant’s citizenship application was refused on character grounds.[36] The delegate noted the Applicant had not responded to letters in October and December 2019, and an email dated 15 January 2020, inviting him to respond to adverse information relating to his 2009 and 2015 court appearances.
[36] Ibid 40; 45.
(q)8 May 2020: The Respondent notified the Applicant of an intention to consider refusal of his visa application under s 501(1) of the Migration Act 1958 (the Act) on character grounds.[37] The Applicant responded in June 2020 to the effect that he and Ms RX had reconciled, and her health was suffering because of his continuing absence in Sri Lanka.[38]
[37] Ibid 57.
[38] Ibid 68-69; 71.
(r)20 August 2020: After considering the Applicant’s representations, including that he and Ms RX loved each other, were still in a relationship, and Ms RX and the children were struggling without him, the Respondent decided not to exercise the discretion to refuse the Applicant’s visa. A warning was issued, however, in the following terms:
On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse to grant your visa application under s501(1) of the Act.
Note: Your case can be considered again on character grounds under s501 of the Act.
Warning: The Australian Government considers domestic violence to be very serious, regardless of the sentence imposed by the Courts. This means that where a non-citizen engages in conduct which constitutes domestic violence, especially towards women or children, that person should ordinarily expect to forfeit their right to enter or remain in Australia.
If you engage in any further criminal or other serious conduct and your case is considered on character grounds in any future visa process, this warning may weigh heavily against you in considering whether to cancel a visa you hold, or whether to refuse to grant a visa application you make. A copy of s501 of the Act is attached for your information.[39]
(Emphasis in original).
(s)24 August 2020. Four days later, Ms RX wrote to the Respondent advising that notwithstanding her past support for the Applicant, she had ended their relationship during a telephone conversation on 20 August 2020. She alleged the Applicant engaged in ‘reckless, selfish, self-destructing behaviour’ in Sri Lanka, and accumulated a large credit card debt, which the bank was now seeking to recover from her through notices of demand.[40] She referred to the Applicant withdrawing over $8000 without consent from their accounts, including their home loan account.[41] Ms RX claimed he spent this on ‘alcohol and many other things’, ‘refused to communicate and be open and honest’, and had demanded she continue paying for his growing debts.[42] Ms RX said the Applicant responded to her ending their relationship with abuse and threats: ‘Unfortunately he did not take it very well. I received threats and verbal abuse, now I fear for my life and safety of my kids.’[43]
(t)8 October 2020: The Applicant was notified that refusal of his visa application was being considered under s 501(1) of the Act[44] (Notice). The Minister referred to further information provided to the Department, suggesting the Applicant did not pass the character test under s 501(6)(d) of the Act, because if he entered or remained in Australia, there is a risk he would engage in criminal conduct in Australia.[45]
(u)5 November 2020: The Applicant responded to the Notice through his legal representative.[46]
(v)6 - 12 October 2021: On 6 October the Respondent refused to grant the Applicant’s visa (visa refusal decision).[47] He was advised of this in a letter dated 12 October 2021.[48]
(w)4 November 2021: The Applicant asked the Tribunal to review the visa refusal decision.[49] He stated as the reason for his application: ‘Considerations weighed inappropriately’.
[39] Ibid 110.
[40] Ibid 50.
[41] Ibid 51-55.
[42] Ibid 48-49.
[43] Ibid 48.
[44] Ibid 57.
[45] Ibid.
[46] Ibid 116.
[47] Ibid 12.
[48] Ibid 10.
[49] Ibid 3.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions under s 501 of the Act.
Section 501(1) of the Act, read in conjunction with s 501(6)(d)(i), confers a discretionary power on the Minister to refuse to grant a visa if the visa applicant does not satisfy the Minister that they pass the character test. Section 501(6)(d)(i) states that a person does not pass the character test if ‘in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.’
If an applicant fails the character test, the Tribunal must make a subsequent determination as to whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.[50] This exercise is guided by Direction No 90-Migration Act 1958-Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
[50] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The Direction
Section 499 (1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Tribunal must comply with the Direction, which came into effect on 15 April 2021.[51]
[51] Section 499 (2A) of the Act.
The Direction provides guidance for decision-makers performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 5.1 sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 5.1(2) provides that where the discretion to refuse to grant a visa is enlivened, ‘the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.’
The following principles at cl 5.2 are a framework within which decision-makers should determine whether to refuse a non-citizen’s visa under s 501:
(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 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 risk of causing physical harm to the Australian community.
Annex A to the Direction provides both general and specific guidance to decision-makers in determining whether a person passes the character test. Section 1 of Annex A states:
(1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test ...

(2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
Clause 6 of the Direction requires decision-makers to have regard to the considerations identified in cls 8 and 9 of the Direction where relevant.
If a person does not pass the character test, the decision-maker must apply the following primary considerations at cl 8 of the Direction to the specific circumstances of their case:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9(1) of the Direction provides that the following non-exhaustive list of other considerations must be taken into account where relevant:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(iii)Strength, nature and duration of ties to Australia;
(iv)Impact on Australian business interests.
Clause 7(1) of the Direction provides that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 7(2) of the Direction states that primary considerations should generally be given greater weight than other considerations. However, in relation to a previous equivalent direction, the Federal Court in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 has held that:[52]
...Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[52] At [23].

The Full Court of the Federal Court (FCAFC) in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 held that:
[57] ... the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501...
...
[78] ... Ultimately...each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
Annex A, s 2 of the Direction is titled ‘Application of the character test.’ Clause 6 and 6.1 relevantly state:
6 Risk in regards to future conduct (section 501 (6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501 (6) (d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501 (6) (d) of the Act.
(3) It is not sufficient to find that the person engaged in conduct specified in paragraph 501 (6) (d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501 (6) (d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
ISSUES TO BE DETERMINED
The issues to be determined in this matter are:
(a)Whether the Applicant fails the character test under s 501(6)(d)(i) of the Act; and
(b)If so, whether the discretion should be exercised to refuse the visa, after applying the primary and other considerations in the Direction to the specific circumstances of his case.
EVIDENCE
The only two witnesses called during the hearing were the Applicant and consultant clinical and forensic psychologist, Mr Jeffrey Cummins. Mr Cummins’ evidence is based on a report he prepared dated 5 November 2020.[53]
[53] Ibid 342-348.
Documentary evidence
The Tribunal has considered the Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 30 December 2021, and the Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 13 January 2022. Appropriate adjustments have been made for concessions during the hearing and the emphases Mr Overend and Ms Hargrave placed in their closing submissions.
The following documents were tendered into evidence:
(a)Documents lodged by the Respondent numbering 843 pages;[54]
(b)Letter from the Respondent dated 8 March 2011 informing the Applicant that a Partner (Migrant) (Subclass 100) Visa was approved, and a screenshot of the Departmental record relating to the grant of this visa;[55]
(c)Eleven-page statement of the Applicant dated 30 December 2021;[56]
(d)Email from the Applicant’s lawyer dated 17 February 2022 at 9:03 am, attaching: an annual superannuation statement as of 30 June 2020 with a balance of $38,797.75; bank statement referring to transactions between 2 September 2020 and 3 March 2021, with a closing balance of $2503.68; screenshot of a closed telephone bank account, and a screenshot from a superannuation provider stating the Applicant does not have any open accounts;[57]
(e)Letter of instruction to Mr Jeffrey Cummins dated 30 October 2020 and a post-dated cover sheet from Mr Cummins dated 17 February 2022, which have been considered in conjunction with his report.
[54] Exhibit R1.
[55] Exhibit R2.
[56] Exhibit A1.
[57] Exhibit A2.
Applicant’s evidence
The Applicant adopted his statement as true and correct. He was 35 years old on arrival in Australia in 2009 and had only previously lived in Sri Lanka. He has remained in Sri Lanka since returning there in December 2019.
The Applicant recalled being introduced to Ms RX by mutual friends in 2008. Their initial interactions were online, and he was attracted by ‘how she spoke and stuff like that’. The Applicant said Ms RX travelled to Sri Lanka to meet him in person in October 2008 and they married before her return to Australia. She subsequently sponsored his visa application and travel to Australia. The Applicant said he paid for his own airline ticket to Australia but did not bring savings or other assets to the relationship. The Applicant said he moved into a home Ms RX owned and she financially supported him. He recalled she sold this house during their two-year separation and, after repaying a mortgage of approximately $150,000, banked the remainder.
The Applicant thought he and Ms RX would be ‘OK together’ but explained that ‘not knowing the other person 100%’ subsequently led to conflict between them. This was based in part on his expectation that Ms RX would be a ‘traditional Sri Lankan wife.’ He explained this was ‘somebody who does the housework, looks after the kids and something in that line’. In contrast to this expectation, he said Ms RX was ‘an educated, strong and Independent women’ (sic).[58] He found it difficult to adapt to sharing household chores like cleaning and washing.
[58] Exhibit A1, 3 [14]; Exhibit R1, 106.
The Applicant said Ms RX has a science qualification from an overseas university and has worked continuously except for periods of maternity leave. The Applicant said he was unable to find work for about six months after arriving in Australia and did intermittent work as a cleaner for a friend, before eventually finding casual work as a machine operator.[59] He initially stated the cleaning work was an ‘informal’ arrangement with a friend called ‘Reginald’, for which he ‘wasn’t paying tax’ because it was ‘more or less a cash in hand job’. During re-examination the Applicant changed his evidence to the effect that he did declare this cash income and paid tax on it.
[59] Exhibit R1, 94.
The Applicant said he completed vocational qualifications up to Certificate IV in Process Manufacturing, which formalised the skillset required for machine operators. He referred to work with one employer for about a decade, mostly as a casual, and then for another employer for about a year between September 2018 and his departure for Sri Lanka in December 2019. He said that he earned between $950 and $1400 a week (after tax) depending on penalties. He said all his salary went into a joint account operated with Ms RX, whereas only half her salary was deposited into this account. The Applicant said there has been no communication with his most recent employer since 2019 and he has no current offer of work in Australia.
The Applicant said his relationship with Ms RX was ‘very good in the beginning, but down the line [they] had some communications issues [which they] tried to sort out’. In previous written evidence he claimed there were challenges in their relationship after the ‘honeymoon period ended’.[60] When asked what period he was referring to as ‘very good’, the Applicant said it was when he first came to Australia in 2009. In response to further questions, the Applicant agreed his first act of violence against Ms RX was ten days after arriving in Australia. When asked what caused arguments between them, he said they were ‘all related to how we are going to do things in the future’. When asked to be more specific, he said it included arguments about who would stay home and look after sick children who could not attend school. The Applicant thought Ms RX should do this because she was a permanent employee and could take carer’s leave, whereas he was not paid when taking time off.
[60] Ibid 157 [14]
When asked if he and Ms RX argued about his alcohol consumption, the Applicant said it was only her opinion that he drank too much. He claimed to only drink alcohol when socialising with friends on Fridays and Saturdays, but never became intoxicated. When referred to the reference in Mr Cummins’ report to gambling, the Applicant said he is unaware what caused Ms RX to believe he was losing money gambling in Sri Lanka. He thought it may be because he refused to show her his private credit card statements and that she had inferred he was gambling ‘because there was lots of money spent’ in Sri Lanka. The Applicant agreed he went overboard when ‘partying’ with family and friends at ‘fancy restaurants’ in Sri Lanka and did not try to keep costs low. He explained that after eight years of absence, he felt obliged to pay for other attendees because of the cultural requirement in Sri Lanka that those issuing invitations pay the bill.
The Applicant claimed the only two occasions his arguments with Ms RX became physical were in May 2009 and December 2014. This was repeated in an unsigned letter under the Applicant’s name in or about December 2019, which he subsequently claimed was written by Ms RX, and which he did not see prior to it being sent to the Respondent.[61] When put to the Applicant that police records instead referred to three incidents of domestic violence: on 9-10 May 2009;[62] 17 August 2009;[63] and a third occasion on 1 December 2014;[64] he could not recall the August 2009 incident. He claimed the only violence he committed against Ms RX in 2009 was the May 2009 incident and asserted that no violence was involved in breaching the FVIO.
[61] Ibid 106.
[62] Ibid 37; 39; 831.
[63] Ibid 35-36; 829-830.
[64] Ibid 32; 38; 827-828.
When asked what occurred during the 2009 violence, the Applicant said Ms RX was sleeping on the couch and he ‘poured some water on her’ to wake her up. When asked if he also punched her to the head in accordance with a police report,[65] the Applicant responded: ‘Never have I punched her in the head’. He also denied the claim in the police report that he pulled Ms RX off the couch before pouring water on her. When asked if he did anything other than pour water on her, the Applicant said he took her phone and removed her sim card.
[65] Ibid 39.
When asked by Mr Overend to describe his approach to handling conflict in 2009, the Applicant responded: ‘In the early days I didn’t think very much, just reacted. I was very angry at the time and my reactions were spontaneous’. He said his anger was caused by things Ms RX said, did, or was related to ‘some sort of pressure with the household or something like that’. When asked why his responses as a 35-year-old, previously married, man tended towards anger and impulsiveness, the Applicant referred to the circumstances of his previous divorce as eliciting suspicions about Ms RX. He said his previous year-long marriage in Sri Lanka ended because of his ex-wife’s infidelity, and he was ‘more or less thinking along the same lines when [Ms RX] didn’t answer the phone.’ When asked if there had been any abuse, aggression, or violence in his first marriage, he responded: ‘No’.
The Applicant said at the time of his 2009 violence he did not realise his anger was inappropriate, but later learned this through court-ordered, offence-specific rehabilitation. He recalled separating from Ms RX for about six months following the 2009 assault but claimed he ‘wasn’t sentenced or anything on that one’. He agreed in response to further questions, however, that being ordered to enter a Good Behaviour Bond for 12 months and to complete court-ordered rehabilitation, after being found guilty of two charges of assault and one charge of contravening a FVIO, was a sentence, irrespective of convictions not being recorded. The Applicant said he completed a court-ordered Anger Management Program[66] delivered by the YMCA in 2009, which he thought was conducted over approximately eight weeks. He advised the Court he successfully completed this requirement as directed.[67] He said this course taught him to ‘control [his anger] and try not to be aggressive’. The Applicant agreed, however, that despite undertaking this course he committed more serious family violence against Ms RX five years later in 2014.
[66] Ibid 35.
[67] Ibid 36-37.
The Applicant agreed his relationship with Ms RX was ‘on again off again’. They separated for six months after his 2009 offending and then for two years after his 2014 offending. The Applicant said his 2014 conviction was followed by further court-ordered rehabilitation.[68] He commenced this course prior to the Court directing him to do it, because his lawyers thought it would be ‘a good idea’. The Applicant said this course taught him to ‘stop, think, go for a walk, or drive’, and only deal with conflict once his anger receded.
[68] Ibid 32; 80.
When asked what caused his December 2014 violence against Ms RX, the Applicant said he could not control his anger when he found orange peel in his lunch, which he suspected Ms RX had taken from the bin, but said this was not included in the police report. The Applicant said his mother was visiting from Sri Lanka at this time but was in another room with the eldest child when this incident occurred. The Applicant conceded their eldest child came in at some stage while he was still arguing with Ms RX and would have seen him ‘shouting at and pushing’ her. He said the younger child was sleeping. This evidence conflicted with the Applicant’s previous documentary evidence that his children were never exposed to his violence against Ms RX. The Applicant recalled this incident occurred around 6:30 or 7:00 pm. He never subsequently spoke with the older child about this incident and claimed she had not asked him about it. He is unsure if Ms RX discussed the incident with the children. The Applicant said he was sorry the older child was exposed to his violent conduct, stating he became ‘angry and lost control’. He claimed the child ‘wasn’t scared at the time’ but ‘deep down’ may have felt something. He agreed that his children had been adversely affected by his conduct.
The Applicant was asked about a letter under his name claiming he used force against Ms RX to stop her from attacking him.[69] He claimed that Ms RX wrote and submitted this letter to the Respondent before he saw it. He said the self-defence claim is inconsistent with his current recollection, but explained: ‘She wasn’t physically attacking me, but verbally and stuff like that’. When asked if he had any previous conversation with Ms RX about why she thought he needed to defend himself against her, the Applicant responded: ‘No’.
[69] Ibid 106.
The Applicant was asked about a police report relating to the December 2014 incident.[70] He disagreed that he dragged Ms RX through the house or that he punched her in the back of the head. He claimed he only punched her once to the back and not the head but did kick her four or five times. When asked if she had any visible injuries, the Applicant said she had a bruise on her back. When asked about the police report stating she had a lump on her head, the Applicant said he could not recall this. Later in his evidence, the Applicant was taken to a Statement of Alleged Facts referring to him grabbing Ms RX by the neck, dragging her towards their daughter’s bedroom, punching her in the back of the head causing a lump, and kicking her three or four times in the back causing bruising and pain.[71] The Applicant agreed he was legally represented at his court appearance and pleaded guilty to these facts. When asked why there was an inconsistency with his earlier evidence where he denied some of this conduct, the Applicant said he relied on his memory earlier, but accepted the Statement of Alleged Facts.
[70] Exhibit R1, 828.
[71] Ibid 38.
The Applicant was asked if Ms RX made any noise when he was assaulting her. He stated: ‘I guess it was “ouch” or something like that because the punch was hurting her’. In response to further questions, he agreed she also screamed and made other noises. The Applicant said he could only recall one occasion when Ms RX sought medical attention because of his violence, which was for a bruise on her back where he punched her.
The Applicant said he and Ms RX separated immediately after the December 2014 incident until January 2017. The Applicant said he received approximately $20,000 or $30,000 from an asset-splitting process with Ms RX in 2015. He also referred to a period where because of his violence, he was not allowed any contact with his children for about one-and-a-half-months, following which he was allowed supervised visitation for a longer period. There was no other corroboration provided about this. The Applicant said he was required by the Child Support Registrar to pay approximately $200 per fortnight for the children’s care. He undertook a Parenting After Separation (PAS) Program in 2015, which he said helped him become a better father.[72] When asked about any ‘learnings’ from this course, the Applicant said it was very important to maintain a ‘history of the kids’ medical issues and stuff like that so that the other person will know what’s going on’. He said messages at this time were being passed between him and Ms RX through their children and the PAS Program had taught him ‘kids are not messengers’.
[72] Ibid 90.
The Applicant referred to arrangements to see his children ‘every other weekend’ during 2015 and 2016. He rarely spoke with Ms RX after the 2014 offending and he said their interactions at handovers were cordial, perfunctory, and focussed on the children’s needs. He recalled the relationship with Ms RX was conducted almost exclusively by text message and emails because she ‘wanted everything recorded’.
The Applicant was asked about any marriage counselling he and Ms RX undertook but stated there was no counselling because she refused. When referred to a letter in his name stating: ‘we attended marriage counselling program run by relationship Australia’,[73] the Applicant initially said he recalled this letter, but not when he wrote it. Earlier in his evidence he claimed Ms RX wrote this letter and he did not see it prior to her sending it to the Respondent. He claimed to have given Ms RX ‘authority to do all communications’ regarding his visa application because he could not do this from Sri Lanka. When asked how often he talked to Ms RX about documents she prepared on his behalf, the Applicant responded: ‘not regularly’. When asked if he recalled writing any statements or letters himself regarding his visa application and the character consideration process, the Applicant responded: ‘One or two statements’. The Applicant agreed that he was personally responsible for letters submitted in his name.
[73] Ibid 107.
The Applicant said Ms RX purchased a block of land during their two-year separation, on which they subsequently built a house after reconciling in 2017. He said a mortgage of approximately $550,000 was in both their names. The Applicant said he and Ms RX reconciled because he genuinely thought they could ‘make things work’ for their children. He claimed to have applied the skills he learned from rehabilitation, which included telling Ms RX ‘I will deal with it later’, when arguments loomed. He would then go outside or watch television until he cooled down. He claimed Ms RX noticed these positive changes in him and ‘was very happy’ and appreciative. The Applicant said he and Ms RX spoke about his offending prior to reconciliation, where it was agreed how he should behave, but she never subsequently brought it up after they reconciled. When asked to elaborate on what Ms RX expected of him, the Applicant said she wanted him to control his anger and be a loving and caring husband. He agreed this was framed in the form of a ‘final chance’ ultimatum.[74] He said that he complied with this ultimatum and ‘learned how to control [his] anger’.
[74] Exhibit A1, 3 [18].

The Applicant said his children are currently seven and eleven years of age, and he has not seen them or Ms RX in person since February 2020. He referred to the prominent role he previously played in the children’s lives. This included school pickups, facilitating attendance at extracurricular activities, camping two or three times a year, and cooking when Ms RX did evening/night shifts and did not have time to prepare a meal. He stayed home at times when the children were sick, although this caused arguments with Ms RX. He explained that as a casual worker he was not paid if he missed a shift, and it would have been better if Ms RX did this as a fulltime employee. The Applicant said he commenced work at 6:00am each morning, so was unable to attend to the children’s morning routine. He estimated Ms RX did evening/night shifts ‘at least two nights’ each week. When she was at home in the evenings he looked after the children so she could cook dinner. He said it was Ms RX who supervised the children’s homework requirements. The Applicant said he attended parent-teacher meetings, school fundraisers, and assemblies.
When asked if the children experienced any challenges at school because of relationship issues between him and Ms RX, the Applicant responded: ‘No – not to my knowledge’. He claimed to speak with the children ‘daily’ on Ms RX’s mobile telephone. He said their eleven-year-old child got her own mobile telephone ‘a few months back’, on which they now communicate. He said that he loves and misses the children, the things they used to do together, and ‘that physical touch’. He referred to supervision he provides for them, such as helping the younger child build a Meccano structure during a video call. The Applicant considers it important he is physically present in the children’s lives and misses being able to guide them ‘in a proper manner to learn good from bad’.
The Applicant referred to being involved in community basketball events between 2009 and 2019, which included training on Sundays and games on weeknights. After his first child was born, he cut this down to Sunday training and one game during the week. He said that he was particularly close to one of his teammates who lived near the house he shared with Ms RX and they would enjoy lunches and dinners together. He and Ms RX also had friends from their schooldays in Sri Lanka, and the Applicant estimated their social network encompassed ten to fifteen families. No statement was available from the basketball teammate the Applicant said he was particularly close to.
The Applicant said he, Ms RX and the children went to Sri Lanka in December 2019 to see friends and family. He referred to his relationship with Ms RX at this time as a ‘normal, happy relationship’. He said Ms RX returned to Australia for work in January 2020. The children stayed with him in Sri Lanka and Ms RX reportedly returned a month later to collect them ahead of the Australian school year. He claimed Ms RX was dealing with his ‘visa matter’ at that time. The Applicant’s visa status at the time of departure for Sri Lanka in December 2019 was the subject of considerable discussion during the hearing.[75] The Tribunal noted he applied for the visa refused in this matter on 14 December 2019, which was the day prior to his departure. A record in evidence stated his Subclass BC 100 Partner Visa expired on 15 December 2019, which is the day he departed Australia. The Tribunal asked the Respondent to seek instructions about whether there were any other documents available relevant to the Applicant’s visa status. This was provided at the resumption of the hearing on 17 February 2022 and was taken into evidence without objection.[76] The letter had been sent to the Applicant on 8 March 2011 and he recalled receiving it. The letter stated:
[75] Ibid 822-823.
[76] Exhibit R2.
Dear Mr De Silva,
VISA GRANT NOTIFICATION – Subclass 100 Spouse (Migrant)
I refer to your application for a Partner (Migrant) (Subclass 100) Visa which was lodged on 3^rd December 2008. I am pleased to advise that the following applicants have been granted this visa.
1. [The Applicant];
This visa is evidence of the grant of permanent residence and is valid for return travel until 5 years have passed since the date of grant of permanent residence.
…
Once this five year visa expires and if you have not become an Australian citizen, you can apply for a Resident Return visa (RRV) if you wish to travel outside Australia.
An RRV allows Australian permanent residents to travel from, and return to Australia as often as they wish within the validity of the visa (most visas are valid for five years), whilst maintaining their status as permanent residents. Eligibility for an RRV is generally based on the amount of time spent in Australia as a permanent resident, although there are some concessions for people who cannot meet the residential requirements.
If a person leaves Australia without an RRV, or it expires while overseas and they are not eligible for another RRV, they will lose the right to return to Australia as a permanent resident. An eligible person can apply for an RRV by mail or in person at any office of the Department of Immigration and Citizenship (DIAC). In Australia it is also possible to apply online through the DIAC website at…
Despite the reference to his visa expiring after five years and if he departed Australia, the Applicant claimed that after checking online, he did not believe it had expired.
The Applicant claimed that from the time Ms RX returned to Australia in February 2020 until her letter to immigration authorities on 24 August 2020, he did not observe any deterioration in their relationship. When asked by Mr Overend if there was anything that might have caused Ms RX to communicate with the Respondent in this way, the Applicant said he refused to show her his personal credit card statements about what he was spending money on in Sri Lanka. He claimed it was because of this she exacted revenge by writing to the letter and had made this threat to him a few days prior to sending it.
The Applicant said he never abused or threatened Ms RX as claimed in her August 2020 letter. He also said he could not have financially abused her because they both had ‘equal authority’ to withdraw money out of their joint account and he only withdrew approximately $5000. He said this was subsequently repaid after he deposited a tax return of approximately the same amount into an account she exclusively controlled. This differs from his past evidence, where he claimed to have only withdrawn approximately $2500 from their joint account.[77] The Applicant said that since Ms RX’s August 2020 letter, she refused to communicate with him ‘except emails if it’s something to do with the kids’. He said their last communication was two or three days earlier when she forwarded him a photograph of a letter from his bank regarding an overdue credit card statement.
[77] Exhibit R1, 160-161 [34]; Exhibit A1, 6 [34]; ASFIC 15 [59].
The Applicant was taken through the financial arrangements in place between him and Ms RX. He claimed to have contributed to household expenses while living together, including loan repayments after they built a house in 2018 on land owned by Ms RX. He was unsure what the percentage of repayments coming out of their joint account was, but thought he contributed more to loan repayments as a percentage because all his salary went into the joint account. In contrast, he claimed Ms RX’s salary was paid into an account she controlled. The Applicant said they ‘could do anything’ and ‘had equal rights’ to these funds.
The Applicant claimed that after he returned to Sri Lanka, there was an agreement in place for Ms RX to transfer $400 to his personal account each month for ‘upkeep’ and his ‘family’s needs’. He said this was not for rent, which he did not pay, but for groceries and utilities payments at his aunt’s house, where he resides. The Applicant said any amounts over $400 were his responsibility and he used his private credit card, which he intended to repay after returning to Australia and finding work. The Applicant agreed that his expenditure during this time exceeded $1000 a month. He said that he did not intend his expenditure to burden Ms RX. He said that she earns ‘roughly $1200 per week’ in Australia, has a concession card reducing her utilities fees, is able to pay the children’s school fees at a ‘reduced rate’, and therefore providing him with $400 per month was a ‘fair amount’.
The Applicant said the amount he owes on his credit card is currently the subject of overdue repayment action by his bank. He also claimed that after Ms RX’s August 2020 letter she changed the way funds were paid into their respective accounts and made changes to their mortgage interest arrangements in around September 2020 that were contrary to his advice.
The Applicant was asked whether he still believed the claim made to Mr Cummins about regarding ‘himself as still happily married’ to Ms RX.[78] He responded: ‘Yes and No’. He stated that after Ms RX’s August 2020 letter, they continued to talk to and support each other. He claimed that just because they were not currently on talking terms, does not mean ‘the marriage is over’. When asked what made him think there were any prospects of reconciliation given the definitive nature of Ms RX’s August 2020 correspondence, the Applicant said she had not served him with divorce papers, which made him ‘assume she still wants a relationship’. He also inferred this from her purported periodic transfers of money, and overhearing things she said to their eldest child during his telephone conversations with the child.
[78] Ibid 346 [34].
The Applicant said that irrespective of the future of their relationship, returning to Australia would enable him to assist Ms RX financially and look after their children, while she dealt with a painful medical condition that his mother had told him about.[79] He relied on several medical records in evidence stating that Ms RX underwent a surgical procedure in mid-2019, was on an elective day-surgery waiting list as of 3 December 2019 as a ‘Non-Urgent’ patient, and had another day procedure on 18 March 2020, with a follow-up post-operative clinic appointment to be undertaken six weeks later.[80] The Applicant attempted to invoke claims made by Ms RX to his mother regarding her future medical and support needs. He claimed that his mother conveyed this information to him. The Tribunal curtailed discussion about Ms RX’s medical records given the hearsay nature of the Applicant’s evidence, no direct evidence from the Applicant’s mother about this issue, and no confirmation from Ms RX that she had approved her confidential medical information to be used in this way.
[79] Exhibit A1 [67].
[80] Ibid 95-97.
It was put directly to the Applicant that in the absence of any further information from Ms RX since her August 2020 correspondence, his assumptions and inferences about possible reconciliation appeared disconnected from the reality of their relationship. He disagreed and insisted that continuation of their marriage was reasonably in prospect. The Applicant was asked why he did not obtain a statement from Ms RX and call her to give evidence if this was the case. The Applicant agreed this would have been beneficial but said he had not asked Ms RX to do so because he ‘didn’t think it would be necessary’.
The Applicant said he is in good health and does not take any medication or receive any treatment. In terms of employment opportunities, he said there were many online advertisements for machine operators in Australia but agreed his previous job had lapsed and he has no current offer of work. The Applicant said he has not worked since returning to Sri Lanka, despite lodging approximately eight applications during the last two years in accounting, marketing, and sales positions. He explained it was hard to find work because of the COVID-19 Pandemic. When asked if he applied for any jobs as a machine operator, given this is his predominant skillset in Australia since 2009, the Applicant said he only applied for ‘jobs that pay well’. He explained that machine operator salaries in Sri Lanka were low and would not even cover his transport costs. When asked about his current financial situation, the Applicant said he does not have ‘any funds’ and relies on his parents and an aunt to financially support him. The Applicant’s parents and aunt were not called to give evidence at the hearing.
In response to a question from the Tribunal, the Applicant initially said he withdrew approximately $20,000 of his Australian superannuation savings under early release provisions and had already spent this to support himself. When asked when he received this money, he said it was in October 2020. When asked about his latest statement dated December 2021, in which he claimed to have requested his superannuation payment but made no reference to receiving it 16 months earlier,[81] the Applicant agreed this aspect of his statement was wrong. The Tribunal requested and was subsequently provided with details of the Applicant’s Australian superannuation the next hearing day. This disclosed a balance of $38,797.75 as of 30 June 2020. The Applicant said he had withdrawn the entire amount in September and November 2020 and spent it.[82] When asked why he withdrew approximately $17,350 from his account in eleven separate transactions within a two-week period from 15 November 2020 until 1 December 2020, the Applicant said it was to pay off his personal credit card. It remains unclear why paying off a credit card debt required eleven separate transactions in a fortnight. The Applicant said he still owes about $10,900 on his credit card, which his bank is seeking to recover.
[81] Exhibit A1 6 [38].
[82] Exhibit A2.
The Applicant said if allowed to return to Australia he wanted to ‘be with my family, stay with my kids, hold them, nurture them and stuff like that’. He still has doubts Ms RX wants a divorce but ‘if she wants it, she’ll have it’. He said they separated before and ‘can manage’ if it occurs again. In that event, he would live with a friend to get established and then rent a place close to his children’s school. When asked if he provided a letter or statement from this friend about an accommodation offer, the Applicant said he had not. When asked how he would share custody with the children, the Applicant replied: ‘it will most probably be the same’. When asked what he relied upon as support for that claim, the Applicant confirmed he had not discussed custody arrangements with Ms RX. When asked about his claim that he and Ms RX would again separate their finances, the Applicant said they did so previously ‘60% to 40%’ in favour of Ms RX, and ‘could do the same’.
The Applicant said if he remained in Sri Lanka, he would earn ‘considerably less’ than in Australia, which would limit his ability to support his children. There was no evidence before the Tribunal about comparative salaries for the type of work the Applicant is capable of performing and, on the Applicant’s own evidence, he has not worked since returning to Sri Lanka in December 2019.
Letters of Support
There is no correspondence in evidence from the two close friends in Australia the Applicant specifically referred to during the hearing. One of these is a teammate on the Applicant’s basketball team, who he said lived nearby and with whom he frequently socialised. The other is a friend who the Applicant said had offered him accommodation. The Tribunal has considered letters of support from friends and work colleagues of the Applicant in Australia, a priest, a Federal MP, and his aunt and parents in Sri Lanka.[83] Little weight is placed on these letters, which were not significantly advanced during the hearing. Most of the letters are somewhat dated, general in nature, have been overtaken by Ms RX’s August 2020 letter, are inconsistent in places with other evidence before the Tribunal, and there was no opportunity to resolve inconsistencies through cross-examination. By way of example:
[83] Ibid 91-93; 108; 169-174; 814.
(a)The Tribunal has considered very brief letters purporting to be from the Applicant’s parents and aunt dated October 2020 and May 2021.[84] They were not called to give oral evidence despite the Applicant living with his aunt and stating he remains very close to his parents. Several of the aunt’s claims do not appear to be in her personal knowledge. There is no reference in her letter, for example, to the Applicant’s past violence against Ms RX and she appears to have no knowledge of the breakdown in the Applicant’s relationship with Ms RX in August 2020. The aunt’s references to the Applicant’s financial contributions and circumstances are general. There is an inconsistency between the Applicant’s and aunt’s evidence about who is supporting who in Sri Lanka, which is later discussed;
[84] Ibid 168; 174; 548-549
(b)The letters from the Applicant’s parents are brief and state variously the Applicant has not resided with them and they do not need a financial contribution from him. The 2021 letter from his mother states the Applicant has asked her for support, whereas the Applicant’s oral evidence is he supported himself during the last two years with his own savings, funding from Ms RX, drawing on his private credit card to its maximum limit, and early superannuation release of approximately $30,000;
(c)A letter from a Federal MP states the MP has not met the Applicant.[85] It was clearly written during a time when Ms RX was supporting the Applicant’s visa application, which has been overtaken by events;
(d)A letter from a friend dated 1 June 2020 states he has known the Applicant and his family for three years and refers generally to ‘some mistakes in the past’.[86] It also refers to the possibility Ms RX and the children may live with the Applicant in Sri Lanka if his visa is refused, which has clearly been overtaken by events;
(e)A letter from a friend dated 4 November 2020[87] refers generally to ‘criminal charges,’ makes no reference to the Applicant’s residence in Sri Lanka since December 2019, refers to the Applicant’s continuing involvement in community activities, and erroneously states ‘there is no problem with this family.’ This suggests the author has no knowledge of Ms RX’s decision in August 2020 to end the relationship;
(f)Two letters from a work colleague of the Applicant dated 2 June 2015 and 2 November 2020 refer variously to the Applicant and Ms RX having ‘family problems,’ without reference to the Applicant’s criminal conduct in 2009 or 2014.[88] The former letter refers to an amicable separation in 2015 without the need for court involvement. The Applicant’s evidence during the hearing, however, was that there were post-separation arrangements in 2015, that he and Ms RX rarely spoke, and there were periods of separation or supervised visitation with his children, and marriage counselling did not proceed because Ms RX did not wish to do so. The 2 November 2020 letter from this friend again speaks generally about the Applicant’s work performance, circumstances, and generally states he ‘received criminal charges from the court’. The author claims to have observed the Applicant doing ‘the work needed to get back on track with his wife,’ without any reference to Ms RX having ended the relationship three months earlier;
(g)A letter from the Secretary of a community basketball team dated 3 June 2020 states the Applicant was an active member since 2012, and since his ‘past family violence offences… [had] changed himself to be a better husband’.[89] It makes no reference to the Applicant having resided overseas since December 2019 and the letter has been overtaken by Ms RX’s decision to end the relationship;
(h)A letter dated 4 November 2020 from a basketball teammate of the Applicant, makes no reference to Ms RX having ended her relationship with the Applicant over two months earlier;[90]
(i)A letter from a friend dated 18 December 2019 only refers to ‘issues’ in the Applicant’s marriage with Ms RX and claims the Applicant and Ms RX had addressed these and were ‘now living happily with their two children’.[91] This letter has been overtaken by events.
(j)The Tribunal places no weight on an unsigned letter written by Ms RX over two years ago, given her perspectives have clearly changed since August 2020.[92]
Expert evidence
[85] Ibid 108.
[86] Ibid 91-92.
[87] Ibid 169.
[88] Ibid 170-171.
[89] Ibid 172.
[90] Ibid 173.
[91] Ibid 814.
[92] Ibid 109.
Report of Jeffrey Cummins

Mr Cummins undertook a 90-minute video consultation with the Applicant on 2 November 2020. He assessed the Applicant’s recidivism risk utilising the Historical Clinical and Risk Management (HCR-20) actuarial instrument, which resulted in a ‘Low’ risk rating, where the available categories are ‘Low, Moderate and High’. In the opinion section of his report, however, Mr Cummins stated the Applicant’s risk of committing family violence or financial abuse ‘was negligible’.[93] Mr Cummins referred in his report to Ms RX’s allegation some two-and-a-half months earlier that the Applicant financially abused her. He made no reference, however, to her other claims about the Applicant’s verbal abuse and threats of harm when she ended their relationship. This issue was further explored in Mr Cummins’ oral evidence, a summary of which now follows.
[93] Ibid 348 [47].
Mr Cummins adopted his November 2020 report as true and correct. The letter of instruction commissioning his report dated 30 October 2020 and a post-dated cover page for his report dated 17 February 2022 were accepted into evidence and have been considered.
Mr Cummins said he preferred to undertake consultations for medico-legal reports in person but was satisfied he could accurately assess the Applicant through an audio-visual consultation. In reaching his conclusions, Mr Cummins applied his clinical knowledge, considered the documentary materials provided to him, and utilised the HCR-20. Mr Cummins explained the HCR-20 is a qualitative violence risk assessment tool across three scales and 25 factors, which are assessed as ‘Absent, Partially Present, or Wholly Present’. He agreed this involved more of his subjective, clinical judgement than a numerically based assessment methodology. A copy of the HCR-20 assessment tool completed in relation to the Applicant was not tendered into evidence as part of Mr Cummins’ report, but the Tribunal obtained one from open-source material, which Mr Cummins confirmed was the same instrument he applied.[94]
[94] Kevin S. Douglas, Stephen D. Hart, Christopher D. Webster and Henrik Belfrage, ‘Rating Sheet for Version 3 of the HCR-20’ Mental Health, Law and Policy Institute, Simon Fraser University (PDF Document, 16 October 2013).
Mr Cummins explained the ‘Historical Scale’ in the HCR-20 requires consideration of whether an applicant had historical problems with ten factors that included Violence, Violent Attitudes, Relationships, Substance Use, and Treatment or Supervision Response. The ‘Clinical Scale’ required consideration of whether an applicant had recent problems with five factors like Insight, Symptoms of Major Mental Disorder, and Instability. The ‘Risk Management Scale’ considered whether an applicant would have future problems across five factors that included Living Situation, Personal Support, Treatment or Supervision Response, and Stress and Coping. Mr Cummins said it was quite common for one actuarial test to be applied to support a clinical assessment and he considered that he had ‘sufficient information’ to make his assessment without applying any other actuarial assessment.
Mr Cummins said the Applicant ‘represents no tangible, ongoing risk to the community’, which was influenced by the Applicant’s reconciliation with Ms RX in January 2017 and no further violence committed against her since 2014. Mr Cummins said he regarded the ‘low’ risk rating in his assessment ‘as equivalent to a negligible and remote risk’, stating: ‘this man in my opinion is very, very unlikely to reoffend’.
Mr Cummins was asked why he questioned the Applicant about Ms RX’s financial abuse allegations but made no reference to her other allegations about the Applicant verbally abusing and threatening her after she ended the relationship, such that she feared for her life and the safety of their children. Mr Cummins said he failed to see these claims in her letter and therefore did not ask the Applicant about them. He agreed that he should have done so. In re-examination Mr Cummins said that while he did not ask the Applicant ‘specifically…about the issue of [Ms RX’s] threats’, it was noteworthy the Applicant had not reoffended against her since 2014.
Mr Overend asked Mr Cummins about a letter from Ms RX dated 27 December 2019[95] but Mr Cummins stated he was ‘confident [he] had not seen that letter before’. Mr Overend also asked Mr Cummins about a letter in the Applicant’s name, which he claimed in oral evidence was written by Ms RX.[96] Mr Overend asked that if it was accepted this letter was indeed written by Ms RX, could this support the Applicant’s claims about prospects of reconciliation. Mr Cummins said if the letter was written by Ms RX it would ‘lend support’ to the Applicant’s claims ‘that he was confused’ about the status of his relationship with Ms RX and reconciliation might be possible if he returned to Australia.
[95] Exhibit R1, 109.
[96] Ibid 106-107.
When put directly to Mr Cummins that the Applicant’s reconciliation claims with Ms RX appeared fanciful on the available facts, he said this may be the case, but he could only take that further by interviewing Ms RX. When asked how he reconciled the Applicant’s claims that he loves his wife, never made any threats to her, poses no risk to her, and has reasonable prospects of reconciling with her, compared to the contents of Ms RX’s August 2020 letter, Mr Cummins said there was no way of reconciling that conflict without interviewing Ms RX. Mr Cummins was asked whether the Applicant’s claims about continuing contact with Ms RX, her daily facilitation of contact with their children, and purported continuing financial support of him in Sri Lanka, may have caused him to seek Ms RX’s views about these issues. Mr Cummins said he was not asked to do this in his letter of instruction, and it was not acceptable to contact a partner ‘where there’s a conflict’.
Mr Cummins agreed that most of the Applicant’s claims, including about his background, Ms RX’s earnings, her purported continuing support of the Applicant, absence of issues with gambling and alcohol, moderate expenditure on ‘partying’ in Sri Lanka, sexual relations with Ms RX, her unwillingness to give him a divorce, and prosects of reconciliation, were based on the Applicant’s self-reported claims alone. Mr Cummins was asked about the Respondent’s contention that there is an over-reliance on the Applicant’s self-reported claims. He responded that sometimes this is the only information available. He said the Applicant presented as a ‘cooperative and motivated interviewee,’ although mildly anxious and depressed. He considered the Applicant gave a plausible account of his criminal history. Mr Cummins said the Applicant told him that if Ms RX still wanted to end their relationship on his return to Australia, he would accept that, albeit ‘reluctantly and with disappointment, hurt and grief’. Mr Cummins said there was nothing to indicate the Applicant would not comply with Ms RX’s wishes and his belief in the prospect of reconciliation did not ‘escalate his risk of reoffending’.
Mr Cummins said the Applicant only reported one violent incident against Ms RX in 2009. He had read a brief police summary dated May 2009 to the Applicant, who agreed he ‘may have pushed [Ms RX] to the head’, poured cold water on her while she slept to wake her up, and picked up her mobile phone. He said the Applicant told him he pleaded guilty to assault but was ‘unable to elaborate further on that incident’. Mr Cummins was asked to read several police records in evidence relating to two incidents of family violence in May and August 2009 and a third incident in December 2014, which had not been available to him in November 2020. Based on his familiarity with such reports, Mr Cummins accepted this indicated there had been three incidents of domestic violence: two in 2009 and a third in 2014.
Mr Cummins opined that at the time of the 2009 offending the Applicant ‘had a rather casual view of domestic violence’. He thought the experience of arrest had caused him to ‘learn more about domestic violence’. He said the Applicant acknowledged that he committed further domestic violence in 2014 and ‘appeared’ to take full responsibility for this. He said the Applicant ‘essentially agreed’ to the Statement of Facts Mr Cummins read out to him about the 2014 offending[97] but insisted ‘he never kicked [Ms RX]’.
[97] Ibid 38.
Mr Cummins said he was not satisfied, based on what the Applicant told him, that he attended an anger management course after the 2009 offending, because the only corroborating certificate in evidence related to a rehabilitative course after the 2014 offending. When put to Mr Cummins that the Applicant’s unchallenged oral evidence is he completed a rehabilitative course after the 2009 assaults, and informed the court of this in accordance with the Court Order,[98] he accepted this.
[98] Ibid 36-37.
Mr Cummins said his conclusion about the Applicant’s recidivism risk was only strengthened by an absence of reoffending in the 14 months since their consultation. Mr Cummins said the passage of five years since his last family violence is a ‘reasonable time period’. When asked about the five-year period between the Applicant’s initial violence against Ms RX in 2009 and his more serious violence against her in 2014, Mr Cummins said in his opinion this did not represent ‘an ongoing pattern of family violence offending’. When asked what would constitute a pattern, Mr Cummins said there was ‘no specific number’ but ‘it would have to be beyond two occasions’.
Mr Cummins said the Applicant ‘was quite adamant’ he had not engaged in financially abusive behaviours with Ms RX. He was unaware of any actuarial assessment relevant to assessing the Applicant’s risk of committing financial abuse. Mr Cummins said he was provided with ‘relatively little information’ about this and referred to two letters from Ms RX, which he had considered. At interview the Applicant told him Ms RX alleged he had overspent on ‘partying’ in Sri Lanka; and that after her August 2020 letter, she had ‘progressively excluded him from accessing their joint funds in Australia’.
Mr Cummins was asked about the reference in his report to the Applicant’s preference for single malt whiskey and Ms RX’s perception that he drank too much. Mr Cummins said he could not elicit anything further on this issue from the Applicant. When asked about the reference in his report to the Applicant’s purported gambling as a factor leading to conflict with Ms RX, Mr Cummins said the Applicant told him this was not true. Mr Cummins was asked about references in evidence to the Applicant’s controlling behaviour against Ms RX, including his oral evidence that he removed a sim card from her phone during a family violence incident. Mr Cummins agreed this made the Applicant’s overall conduct ‘somewhat more serious’.
Mr Cummins assessed the Applicant during their interview as suffering a Major Depressive Disorder, based on claims he was suffering low mood and loss of pleasure because of a continuing inability to obtain a visa and return to his family in Australia. Mr Cummins said he assessed the Applicant as meeting seven additional criteria relevant to this diagnosis. It was of concern to him the Applicant had not sought any follow up treatment. Based on what he had learned during the hearing, particularly having missed Ms RX’s August 2020 claims about the Applicant’s abuse and threats, Mr Cummins said he would need to put this to the Applicant in a subsequent consultation to assess whether he needed further treatment regarding anger management and controlling behaviour.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Applicant’s submissions
The Applicant invited the Tribunal to conclude he does not fail the character test because he presents no more than a minimal or remote chance of engaging in criminal conduct. Reliance was placed on several factors, including:[99]
(a)His criminal offending is limited to incidents between May 2009 and 1 December 2014, and are solely against Ms RX;
(b)The punishments awarded indicate his offending ‘was not at the upper most level of objective seriousness’;
(c)The Applicant is remorseful for his past offending, has undertaken offence-specific rehabilitation ordered by the court, and made commitments to himself and Ms RX to ‘improve and reform’;
(d)The Applicant’s efforts to ‘better control his anger’ are reflected in the assessment of forensic psychologist, Mr Cummins, who considers him to have a ‘negligible’ risk of reoffending;
(e)There are no further instances of criminal offending since 2014 and there is no evidence to support Ms RX’s allegations of financial abuse, which in any event is not criminal in nature, and has no bearing on the Applicant’s future recidivism risk; and
(f)Ms RX’s desire for a divorce does not negatively impact the Applicant’s recidivism risk, because he intends facilitating her wishes in an amicable way.
[99] ASFIC 5-10 [19]-[38].
Respondent’s submissions
The Respondent contends the Applicant fails the character test because:[100]
(a)He has demonstrated a disregard for Australian law by committing several violent offences against Ms RX, including while an FVIO was in place;
(b)Notwithstanding completion of his court-ordered rehabilitation in 2015, Ms RX has subsequently reported he has verbally abused and threatened her, placed her under financial and mental duress, and caused her to fear for her life;
(c)Mr Cummins’ report:
(i)was compiled after a relatively brief interaction with the Applicant;
(ii)relies heavily on the Applicant’s self-reported claims; and
(iii)only addresses the Applicant’s risk of committing a further act of physical violence through the HCR-20 actuarial instrument, rather than the broader question of whether he presents a minimal or remote chance of non-violent offending.
Tribunal consideration of evidence
[100] Respondent’s Statement of Facts, Issues, and Contentions dated 13 January 2022 (RSFIC), 6- [19]-[20]
Applicant’s evidence
Notwithstanding the Applicant’s ability to only recall two incidents of family violence against Ms RX in May 2009 and December 2014, the Tribunal is satisfied he committed family violence against her on three occasions, including an incident in August 2009. All his criminal conduct is in a family violence context and relates to his relationship with Ms RX. Convictions were not imposed following the 2009 offending, although the Applicant was subjected to conditional liberty provisions and ordered to undertake offence-specific rehabilitation. The Applicant denies Ms RX’s claims of financial abuse and submits that these ‘are not criminal in nature…[and]…have no bearing on an assessment of the risk of further criminal offending…’.[101] The Applicant denies Ms RX’s claim that he abused and made threats to her after she ended their relationship in August 2020, which caused her to fear for her life and the safety of their children.[102] He does not accept their relationship has ended and continues to rely on a prospect of reconciliation.
[101] Applicant’s Statement of Facts, Issues, And Contentions (ASFIC) dated 30 December 2021, 7 [26].
[102] Exhibit R1, 48.
Much of the evidence about the Applicant’s financial arrangements with Ms RX, including since their relationship ended in 2020, continuing prospects of reconciliation, and the extent of his contact with her and their children, is based on his self-reported claims alone. The latest evidence available from Ms RX is her correspondence dated 24 August 2020. Her claims arise in the context of the Applicant’s past violence against her, and repeat references in police reports about the Applicant’s ‘controlling and abusive’ behaviour since the 2009 FVIO expired.[103] On these issues the Tribunal places greater weight on the police reports than the Applicant’s oral evidence. There is no discernible motive in these contemporaneous reports for police to have recorded other than what they saw or was reported to them by the victim. Given the Applicant’s proven past violence against Ms RX on several occasions, the persistent theme of conduct attributed to him in the available material, and the definitive nature of her letter, the Tribunal is inclined to accept that Ms RX’s fear of the Applicant is genuine and cannot be discounted on his verbal claims alone. That is irrespective of the fact that she did not give oral evidence during the hearing. The Tribunal makes clear that Ms RX’s letter alone does not support a reliable finding that the Applicant has committed any criminal offence against her, but the Tribunal accepts it persuasively establishes she has definitively ended their relationship, continues to fear the Applicant, and there is no prospect of reconciliation. The Tribunal rejects Mr Cummins’ evidence, which he said is based on his interaction with other divorcing couples who frequently change their minds about relationships, that this is apposite to the present circumstances. There is no persuasive evidence to suggest Ms RX has wavered in her desire to end her relationship with the Applicant since August 2020, or that future reconciliation is realistically in prospect. The Tribunal considers the Applicant’s evidence about this is uncorroborated and speculative at best.
[103] Exhibit R1, 838-839.
The Applicant’s past claims that his children were never exposed or negatively impacted by violence in the home,[104] was overtaken by his concession at the present hearing that his eldest child heard and likely saw his violence against Ms RX in 2014. His past claims about this are considered self-serving and are not accepted.
[104] Ibid 128; ASFIC 22 [90].
It is of concern to the Tribunal that in an undated letter under the Applicant’s name,[105] Ms RX is presented as an aggressor in the 2014 incident, invoking the Applicant’s self-defence. The Applicant claimed in oral evidence, for the first time, that Ms RX authored this letter and he did not see it prior to it being sent to the Respondent. There is no evidence he has attempted to correct the record and the Applicant agreed during the hearing he is responsible for the content of letters and statements submitted under his name. If it is accepted the Applicant authored or endorsed the contents of this letter, then the self-defence claim is not accepted. That is because his plea of guilty constitutes acceptance of all elements of this offence.[106] The crime of Recklessly cause injury under s 18 of the Crimes Act 1958 (Vic) requires that the perpetrator has no lawful justification such as self-defence. It is not open to the Tribunal to consider claims conflicting with key facts determined by a court.[107] It is also not to the Applicant’s credit that five years after his last offending he still attempts to apportion blame on his victim, including by claiming he became angry and violent because of her verbal abuse and after she purportedly put orange peel in his lunch. This came across as a misguided attempt to diminish his own culpability, to transfer blame to Ms RX, and weighs against his claims about developed insight, remorse, and rehabilitation. Examples of other inconsistent or unsatisfactory aspects of the Applicant’s evidence follow:
[105] Exhibit R1, 106.
[106] Maxwell v R (1996) 184 CLR 501, at [19].
[107] BTJ21 v Minister for Home Affairs (No 2) [2022] FCA 24 [97] (Rangiah J); HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, 135-136 [63]-[68]; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 [244]–[245].
(a)The Applicant’s claim about his initial work in Australia was inconsistent. He initially stated his work as a cleaner was an ‘informal’ arrangement with a friend for which he did not pay tax because it was ‘more or less a cash in hand job’. Later in his evidence he claimed that he did declare this income and paid the required tax.
(b)The Applicant’s claim that his relationship with Ms RX was ‘very good in the beginning’ and that difficulties only arose after a honeymoon period common to other relationships, was exaggerated and self-serving. He first committed violence against Ms RX within a fortnight of arriving in Australia. The ‘very good’ beginning or any honeymoon period were brief at best, and the circumstances are not common to relationships as the Applicant suggests.
(c)The Applicant’s failure to recall family violence against Ms RX in August 2009 was inconsistent with police reports, which the Tribunal prefers. This is particularly so, given occasions in his evidence where he disputed violence attributed to him in police reports, only to later agree he pleaded guilty to a Statement of Alleged Facts that contained the violent conduct he denied. This includes changing his evidence that he ‘never’ punched Ms RX in the head.
(d)The Applicant’s claim that no violence was involved in his breach of the FVIO in 2009, and he ‘wasn’t sentenced or anything on that one’, is self-serving and not accepted. Breach of a FVIO is an offence of violence.[108] The court’s imposition of a good behaviour bond for 12 months and direction that he complete the ‘Positive Lifestyle Program - Emphasis on Anger Management’ constitutes a sentence following findings of guilt, irrespective of whether a conviction is recorded.
[108] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 [61]; [64].
(e)The Applicant’s claim that he acted ‘spontaneously’ when committing violence against Ms RX ‘because some sort of pressure with the household or something like that’, came across as overly general, self-serving, and unpersuasive. So did his claim that he did not realise his anger was inappropriate during the 2009 violence, and he only learned this through court-ordered rehabilitation. At the time of his 2009 family violence, he was a mature 35-year-old man, who had previously been married, and claimed to have worked in Sri Lanka in various ‘white collar’ roles as a bank executive and accountant for an NGO. Moreover, despite undergoing court-ordered, offence-specific rehabilitation after the 2009 offending, he committed even more serious violence against Ms RX five years later, at the age of 40.
(f)The Applicant’s claim that it was Ms RX and not he who authored a letter raising self-defence as a reason for his force against her in 2014,[109] was unpersuasive. He nevertheless continued to attribute conduct to Ms RX that provoked his angry and violent response: ‘She wasn’t physically attacking me, but verbally and stuff like that’. He also explained that he ‘was hungry’ and ‘what’s not there in the records is like I couldn’t have my lunch that day because [Ms RX] got orange peels which were in the bin and put in my lunch, that’s not stated anywhere in the report, because of that I couldn’t have lunch.’ This information is not in other evidence before the Tribunal and came across as the Applicant trying to deflect blame onto his victim.
[109] Exhibit R1, 106.
(g)The Applicant’s claim that he thought Ms RX made a noise like ‘ouch or something like that’ while he was assaulting her in 2014 and while their eldest child could hear and perhaps observe the assault, came across as a further attempt to minimise his culpability. Further questions were required to elicit a response that Ms RX also screamed and made other noises while he harmed her.
(h)In oral evidence the Applicant contradicted his written evidence that he and Ms RX attended marriage counselling together. He stated there was no marriage counselling because Ms RX refused. He initially claimed to recall this letter and the marriage counselling claim, but then said it was Ms RX who authored and despatched it without him first seeing it. If the Applicant’s evidence is to be believed, he wrote some letters in his name, but Ms RX wrote others. It is noteworthy in the Tribunal’s view that the Applicant invoked this explanation solely on occasions when there were inconsistencies between his oral and written evidence;
(i)The Applicant’s evidence that he made and relied on his own online enquiries about his visa status prior to departing Australia, rather than the clear terms of a letter from the Respondent about his visa status in March 2011, came across as unpersuasive. It is noteworthy the Applicant applied for the visa refused in this matter on 14 December 2019, and left Australia for Sri Lanka the next day, which is also when his Partner (subclass 100) visa expired.
(j)The Applicant’s claim about uncertainty regarding the status of his relationship with Ms RX, and realistic prospects of reconciliation, is disconnected from the available facts and is not accepted. The Applicant withdrew Ms RX as Authorised Recipient for his visa application after she wrote the August 2020 letter.[110] When regard is had for the large volume of telephone communications that the Applicant submitted, there is nothing in this material to persuasively support his reconciliation claim. For example, there is a lack of context about what the calls and unsuccessful calls were about, or whether they were consented to by Ms RX. Other factors the Applicant relies upon, such as purportedly overhearing Ms RX in the background during telephone conversations with their eldest child, or things Ms RX purportedly said to his mother, rely entirely on the Applicant’s assertions and carry little probative weight. The Applicant states he will respect whatever decision Ms RX makes about their relationship, inferring she is yet to make a definitive decision. Yet the most recent persuasive evidence before the Tribunal is her definitive letter in August 2020 that the relationship had ended, the Applicant did not take the news well, and abused and threatened her as a result.
(k)The Applicant’s reliance on Ms RX’s confidential medical information in claiming she needs his financial and practical support,[111] is absent any corroboration from Ms RX or evidence that she has consented to her confidential medical information being used in this way. It is not to the Applicant’s credit that he sought to update the status of Ms RX’s medical condition and support needs with reference to what she may have told his mother. There is no statement from the Applicant’s mother about this purported conversation. Given the hearsay nature of the Applicant’s claims, the negligible weight of these dated medical records, the absence of information from Ms RX about her medical needs, lack of consent for her confidential medical records to be used in this way, and absence of expert corroboration about what might be inferred from these records, the Tribunal places no weight on them.
(l)The Applicant’s claim that he has only applied for well-paying jobs in Sri Lanka rather than those correlating with his predominant skillset as a machine operator in Australia, is difficult to understand. His claim that work as a machine operator would not even cover his transport costs was absent any corroboration. The Applicant provided some screenshots of job opportunities he claimed to have explored on Australian websites but provided no evidence to corroborate his unsuccessful job applications in Sri Lanka.
(m)The Applicant’s submission about the protective effect of secure employment in Australia is uncorroborated.[112] His most recent work in Australia was casual, and there is no evidence of ‘strong prospects of reemployment’,[113] including because of his record of violent offending and lack of employment since December 2019. There is no job opportunity for him currently in prospect.
(n)The Applicant’s evidence about his superannuation was inconsistent. He initially claimed in his most recent 30 December 2021 statement and oral evidence to have only requested a superannuation payment, but in oral evidence incrementally disclosed he has already withdrawn around $30,000 from his superannuation 16 months ago and had already spent this. It remains unclear to the Tribunal, despite the Applicant’s explanations, why he withdrew approximately $17,350 from his account in 11 transactions during a two-week period from 15 November 2020 until 1 December 2020. If it was to repay a credit card debt as he claimed, the need for 11 transactions to do this remains unexplained.
(o)The Applicant’s claim about being close to a friend he played basketball with who lived near him, and with whom he frequently socialized, was not accompanied by any evidence from this person. The Applicant’s claim about living with another close friend in Australia while he re-establishes himself upon return, was similarly absent any evidence from this person.
(p)The Applicant’s claims often rested on bare assertion. An example was that co-parenting arrangements with Ms RX upon his return to Australia ‘will most probably be the same’. This was absent any corroboration from Ms RX and the Applicant confirmed he had not discussed this with her. His claims about financial separation arrangements with Ms RX, and comparative salaries between Sri Lanka and Australia, were similarly uncorroborated and unpersuasive.
[110] Ibid 389-390.
[111] Exhibit R1, 8 [48].
[112] ASFIC, 10 [39].
[113] Ibid 11 [42].
Mr Cummins’ evidence

The Tribunal accepts the Applicant was positively involved in the children’s lives since their birth and contributed to their care practically, emotionally, and financially. This included by collecting them from school and extracurricular activities like swimming. There have been lengthy periods of absence and limited meaningful contact with the children, however, including during a six-month separation from Ms RX in 2009, two-year separation between December 2014 and January 2017, during visitation restrictions arising from FVIOs, and since his return to Sri Lanka in late 2019. On his own evidence, this occurred because of his violent conduct against Ms RX who has played the primary parental role. The Tribunal considers there is the potential at least that the Applicant’s eldest child was adversely affected by hearing and possibly witnessing the Applicant’s violence against Ms RX in December 2014.
The Applicant’s claims about daily contact with the children, facilitated by Ms RX, is not persuasively corroborated by the telephone records he provided. That said, the Tribunal is satisfied he has done his best to maintain contact with them notwithstanding past and present constraints in his relationship with Ms RX. As the children get older, they may wish to have a closer relationship with the Applicant, which would be much more difficult from a distance and a poor replacement for the physical contact they could enjoy if the Applicant was permitted to return to Australia.
On balance, the Tribunal accepts the Applicant loves his children and has had continuing contact with them, notwithstanding Ms RX having ended their relationship 18 months ago. The extent to which he may be able to play a role in their lives appears dependant on either what Ms RX permits, or the access the Applicant can obtain from the Family Court. This rests on the unknown branches and sequels of future events.
The interests of the Applicant’s children cannot be distinguished on these facts, but on balance, it is in their best interests to exercise the discretion to grant the Applicant’s visa. This primary consideration does not weigh heavily, however, in favour of exercising the discretion to grant the visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 8.4(1) of the Direction states:
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.
Clause 8.4(2) of the Direction states that visa refusal may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the non-citizen should not be granted or continue to hold a visa.
Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision-makers to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations. This correlates with the reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), albeit under a different Direction. Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR reaffirmed the principle enunciated by Mortimer J in YNQY,[159] namely that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing an expectation that aligns with the Executive Government. It is not for the Tribunal to determine the expectations of the Australian community based on a non-citizen’s individual circumstances.[160] FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and generally afford them more weight than other non-primary considerations:[161] cl 7(2) of the Direction.
[159] YNQY v Minister for immigration and Border Protection [2017] FCA 1466 (Mortimer J).
[160] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
[161] Ibid [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[162] The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR.[163]
[162] Ibid at 473 [75]–[76] (Charlesworth J).
[163]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.
It is submitted by the Applicant that less weight should be ascribed to this primary consideration because he has acknowledged the seriousness of his conduct, has undertaken meaningful rehabilitation, has not re-offended since 2014, and is assessed by Mr Cummins as having a ‘negligible’ risk of recidivism.[164]
[164] ASFIC, 23-25 [93]-[102].
The Respondent submitted that the Australian community would expect the Applicant's visa application to be refused given the nature of his offending, which would be viewed very seriously, and even if he did not pose a measurable risk of causing physical harm to the Australian community.
The persuasive force of the Applicant’s submissions about the length of time that has elapsed since his last violence against Ms RX is diminished by his past conduct. He previously acknowledged the seriousness of his violence against Ms RX in 2009, undertook court-ordered and offence-specific rehabilitation, yet committed even more serious violence five years later. His repeated conduct raises serious character concerns within the meaning of cl 8.4(2)(a) and (c) of the Direction. On balance, and notwithstanding other positive features of his case, this primary consideration weighs moderately in favour of visa refusal.
OTHER CONSIDERATIONS
International non-refoulement obligations
Non-refoulement claims were not advanced by the Applicant and the Tribunal does not discern any from the available evidence. It follows that this consideration is not enlivened, and it carries neutral weight.
Extent of impediments if removed
Clause 9.2 (1) of the Direction 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.
This consideration requires an assessment of impediments the Applicant may suffer if repatriated. This is assessed in the context of maintaining basic living standards generally available to citizens of that country.
Age, language, culture
The Applicant is 48 years of age and lived in Sri Lanka for the first 35 years of his life. He returned to Sri Lanka voluntarily in December 2019. All his family live in Sri Lanka, except for a brother who lives in the United States.
Health
Notwithstanding Mr Cummins’ diagnosis that the Applicant is suffering Major Depressive Disorder, for which no follow-up treatment has been sought, the Applicant said he has no diagnosed medical or psychological conditions[165] and aspires to an immediate return to work.
[165] Ibid 76-77 [12]; 152 [Q12]; 345 [23]-[24].
Employment and daily needs
In written submissions dated 2020 the Applicant did not refer to any problems he would face in Sri Lanka.[166] He was educated there and claims to have worked as a bank executive, accountant, and for a jeweller. A resume detailing his skillset is in evidence.[167] He is close to his family members, particularly his parents and an aunt, who he relies upon for support. But the evidence about the Applicant’s sources of support in Sri Lanka is inconsistent. In a letter from his lawyer dated 21 May 2021 the Applicant claimed to be reliant on his aunt for financial support.[168] In his aunt’s written statement dated seven months earlier, on 22 October 2020, she claimed the Applicant was helping her financially because she is 72, unemployed, and his financial contributions have been ‘essential’ to cover the increased costs of him living with her.[169] This inconsistency was not persuasively reconciled by the Applicant’s explanations about his living situation in Sri Lanka.
[166] Ibid 153.
[167] Ibid 375-376.
[168] Ibid 546.
[169] Ibid 174.
The Applicant has considerable work experience in Australia and has undertaken some vocational education and training. There is no evidence he has any lesser entitlement to social, medical and/or economic support than other Sri Lankan citizens. The Applicant has submitted several undated online job advertisements from Australia,[170] but provided no evidence to corroborate the unsuccessful job applications he claims to have made in Sri Lanka, or in relation to his claim that there are limited job opportunities due to COVID-19, or about the comparative salary he could expect to earn in Sri Lanka.
[170] Ibid 377-382.
Ability to support Ms RX and their children
The Applicant stated he has been unemployed in Sri Lanka during the last two years and claimed to be unable to support Ms RX and their children in Australia because of reduced job opportunities and comparatively lesser income. He nevertheless claimed Ms RX and the children rely on his financial, practical, and emotional contribution. This is uncorroborated and the weight of evidence instead suggests it is Ms RX who has helped financially support him since his return to Sri Lanka.
Conclusion on extent of impediments
The Applicant lived in Sri Lanka until the age of 35 before first arriving in Australia and then voluntarily returned there over two years ago. The Tribunal does not accept he has ‘little left for him in Sri Lanka, 10 years after leaving for good’.[171] He spent the first 35 years of his life in Sri Lanka, which is the primary source of his education, friendship networks, predominant work experiences, and formative influences. Most of his family still live there and the Applicant referred to going out with many friends on return to Sri Lanka, including to ‘fancy restaurants’.[172]
[171] ASFIC, 27 [109].
[172] Exhibit A1, 6 [37].
There are no discernible language or cultural impediments. His employment and training experiences in Australia can only have added to his employment prospects. While the amount he can earn is likely to be below that which he can earn in Australia, the Direction does not require a comparative assessment of remuneration, living standards, or service availability.[173] There is no evidence to suggest the Applicant would be treated differently to other Sri Lankan citizens.
[173] Vural v Minister for Home Affairs [2020] FCA 667 [32] (Anderson J).
The Applicant’s evidence about being unable to provide for his needs in Sri Lanka is unpersuasive at best. In addition to drawing on what he claims are joint savings with Ms RX and Australia superannuation savings, the Applicant referred to continuing support from his parents and aunt.
The Direction does not require consideration of an applicant’s ability in their country of citizenship to support family members in Australia. That said, the Tribunal does not accept Ms RX or the children are reliant on the Applicant’s financial, practical, or emotional support as he claims. Nor does it appear on the present evidence that she would welcome his invitation to support her as she deals with purportedly debilitating medical issues. Her evidence about fearing him after three past incidents of family violence and his response to her ending their relationship in August 2020 weighs heavily against the Applicant’s claims about possible reconciliation or needing his support.
This consideration is not enlivened and carries neutral weight.
Impact on victims
Clause 9.3 (1) of the Direction states:
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.
The Applicant submitted that the key impact on Ms RX if he were to enter and remain in Australia is that ‘she will either be asked to partake in couple’s counselling or will be asked to participate in restructuring the family and finances to accommodate her desired separation from the Applicant’.[174] Other past submissions include that the impact on Ms RX is ‘likely to be annoyance only’[175] and the actual risk to her, given Mr Cummins’ risk assessment, is ‘negligible’.[176] The Tribunal does not accept this in circumstances where Mr Cummins stated he did not see Ms RX’s claims about the Applicant’s abuse and threats, and therefore did not put this to him. There is no subsequent evidence from Ms RX that her perspective may have changed during the intervening 18 months.
[174] ASFIC, 27 [111].
[175] Exhibit R1, 131.
[176] Ibid 130.
The Applicant was afforded procedural fairness during the hearing about Ms RX’s concerns and expressly denied that he abused or threatened to harm her.
Ms RX’s most recent correspondence was provided in the context of the Applicant’s visa consideration process and displaces any past support. Her very clear representation is that the Applicant abused and threatened her when she ended their relationship, and she now fears he might inflict further harm on her or their children. Given the history of the Applicant’s past abuse, violence, and controlling behaviour towards Ms RX, the Tribunal found her claims, albeit untested, more persuasive than the Applicant’s claim she has nothing to fear. It is noteworthy that at times during his oral evidence the Applicant first denied past conduct against Ms RX in police reports, before accepting he pleaded guilty to the denied conduct. The Tribunal considers that exercising the discretion in the Applicant’s favour would likely have a negative impact on Ms RX. It follows that this consideration weighs somewhat against his application.
Links to the Australian community
Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia,’ and cl 9.4.2 relating to ‘Impact on Australian business interests.’ In terms of the latter, the Tribunal has considered the Applicant’s claims about previous work in Australia as a cleaner and machine operator. There is no evidence, however, that a decision in this matter risks compromising the delivery of a major project or an important service in Australia, such as to displace the presumption in the Direction. The Tribunal finds that cl 9.4.2 of the Direction is not enlivened and carries neutral weight.
Strength, nature, and duration of ties
Clause 9.4.1 of the Direction provides:
(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.
(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 noncitizen 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.
The Applicant has lived predominantly in Australia for a decade between 2009 and 2019. He claims to play a ‘pivotal role…both financially and emotionally’ in supporting Ms RX and their children.[177] This claim is uncorroborated by Ms RX and stands in stark contrast to her 24 August 2020 claims about ending the relationship.
[177] ASFIC, 27 [108].
The Tribunal acknowledges the Applicant’s claims about work in Australia and the supporting evidence he has provided in this regard.[178] The Applicant also submits he has undertaken study in Australia, was a union member,[179] and was active in community events like sport, involvement with his ethnic community, and church attendance. It is further submitted he is held in high regard by those who have submitted supportive letters.[180]
[178] Exhibit R1, 94.
[179] Ibid 384.
[180] ASFIC, 26 [106].
The Tribunal finds that:
(a)The Applicant lived for most of his life in Sri Lanka and for a much shorter period in Australia. This is not a case where he would be afforded a higher level of tolerance by virtue of having lived in Australia for most of his life or from a very young age.
(b)The Applicant first assaulted Ms RX within a fortnight of arriving in Australia in 2009, before committing further violence against her in breach of an FVIO. Less weight is consequently placed on this consideration: cl 9.4.1(2)(a)(i) of the Direction.
(c)The Applicant’s ties to the Australian community are relatively limited when regard is had for the dated and general nature of supportive letters. The high regard some letter authors express appears to be made without apparent knowledge of all the Applicant’s offending or the status of his relationship with Ms RX.
(d)The Tribunal accepts the Applicant has established some relationships in Australia, through his past work, engagement in sport, with his ethnic community, church, and other pursuits. But the effect of visa refusal on those who have written supportive letters appears emotional at best.
The Tribunal has placed some weight on the Applicant’s positive contributions to the Australian community through work, paying taxes, and community involvement. The contention that he has ‘high prospects of finding further employment in Australia’[181] is absent any persuasive corroboration. His oral evidence during the hearing is that he has no current job offer in Australia.
[181] ASFIC 29 [115.e.].
The Tribunal does not accept that visa refusal will have a detrimental effect on Ms RX, given her very clear position that the relationship with the Applicant ended some 18 months ago. There is no evidence to corroborate the Applicant’s claims about continuing contact with Ms RX or her willingness to accept his support if he returned to Australia.
The Applicant’s ties to Australia are comparatively limited and there is no evidence his inability to return to Australia results in other than disappointment or sadness for those who support him. The Tribunal finds this consideration weighs slightly in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties; and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason on these facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.

The Applicant’s criminal offending and other conduct is very serious, consisting of actual violence against Ms RX in 2009, 2014, and encompassing a breach of court orders. This was despite the Applicant having an opportunity after the 2009 offending to complete court-ordered, offence specific rehabilitation. Having regard for the Applicant’s past conduct, concerns about the inconsistent nature of his evidence, and the fears Ms RX expresses as a victim of his past crimes, the Tribunal is not confident the Applicant’s risk of recidivism has been ameliorated to an acceptable level. The persistent themes of abuse, aggression, violence and controlling behaviour by the Applicant against Ms RX since 2009 are such that the Tribunal does not dismiss her fear of harm in the August 2020 letter. This is notwithstanding the Applicant’s express rejection of her allegations. Given the nature of the Applicant’s offending, which raises serious character concerns, the community would expect the discretion to be exercised to refuse his visa.
The Tribunal has some concerns about the Applicant’s changed evidence regarding the exposure of his children to the violence he committed against Ms RX in 2014. There have been periods where he has not had access to his children because of his violent conduct or was granted weekend access during a two-year separation from Ms RX in 2015–2016 or only had recourse to them via telephone and video calls since returning to Sri Lanka. These represent long periods of absence and limited meaningful contact, during which Ms RX has undertaken the primary parental role. On balance, however, the Tribunal accepts the Applicant loves his children, has had continuing contact with them within the limitations of his circumstances, and it is in their best interests for the discretion to be exercised in the Applicant’s favour.
Of the other considerations enlivened by this matter, exercising the discretion in the Applicant’s favour would likely have a negative impact on Ms RX. In terms of the extent of any impediments to the Applicant’s removal, he has lived in Sri Lanka since December 2019 and prior to that for the first 35 years of his life. There are no discernible impediments within the meaning of the Direction. The Tribunal does not accept the Applicant’s claims about continuing close ties with Ms RX, or that reconciliation between them is reasonably in prospect. His broader ties to the community within the meaning of cl 9.4.1 of the Direction are quite limited, and his strongest ties are to family and friends in Sri Lanka.
The Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse the Applicant’s visa. That is because the primary considerations Protection of the Australian community, Family violence committed by the non-citizen, Expectations of the Australian community, and the other consideration Impact on victims, weigh against exercising the discretion to approve the visa. These considerably outweigh the combined weight given to the primary consideration Best interests of minor children and the Strength, nature, and duration of ties to Australia.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 31 March 2022

Dates of hearing: 15, 17 and 18 February 2022

Advocate for the Applicant:
Mr Bryn Overend

Solicitors for the Applicant: WLW Migration Lawyers

Advocate for the Respondent: Ms Lauren Hargrave

Solicitors for the Respondent: Clayton Utz

Dates of hearing:	15, 17 and 18 February 2022
Advocate for the Applicant:	Mr Bryn Overend
Solicitors for the Applicant:	WLW Migration Lawyers
Advocate for the Respondent:	Ms Lauren Hargrave
Solicitors for the Respondent:	Clayton Utz