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

This matter concerned an application for review of a visa refusal decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant, a citizen of Sri Lanka, sought a Return (Residence) (Class BB) visa. The core of the dispute revolved around the applicant's character, specifically his history of family violence and the risk of engaging in criminal conduct in Australia, weighed against the best interests of his children and the exercise of ministerial discretion.

The Tribunal was required to determine whether the applicant passed the character test under section 501(6)(d) of the Migration Act 1958, which involves assessing the risk of engaging in criminal conduct in Australia. This determination necessitated a consideration of Ministerial Direction No. 90, which outlines the factors to be weighed in such cases, including the applicant's history of family violence, remorse, rehabilitation, the best interests of children, and any impediments to establishing a life in Sri Lanka. The Tribunal also had to consider the impact of its decision on victims of the applicant's criminal behaviour.

The Tribunal affirmed the decision to refuse the visa. It found that the applicant's history of family violence, including two convictions for unlawful assault and one for recklessly causing injury, demonstrated a pattern of serious misconduct. Despite undertaking rehabilitation programs, the applicant committed more serious violence five years after his initial offences, diminishing the persuasive force of his claims of rehabilitation and remorse. The Tribunal concluded that this repeated conduct raised significant character concerns, weighing moderately in favour of visa refusal. Furthermore, the Tribunal found the applicant's claims of being unable to establish himself in Sri Lanka to be unpersuasive, noting his long history and family ties there. The Tribunal also did not accept that the applicant's children were reliant on his support in Australia, particularly in light of his ex-partner's evidence of fearing him.