Goonewaradana and Minister for Immigration and Multicultural Affairs

CATCHWORDS – IMMIGRATION – visa – Resolution of Status – failure to pass character test due to substantial criminal history - exercise of discretion – past army service and criminal history involving violence – false information provided to obtain a visa – breach of immigration and social security laws – mitigating factors – time elapsed since most recent offence – recent good conduct and significant community service – care for seriously ill wife – unlikely to re-offend – stable family situation – refusal to grant visa unlikely to deter others – decision set aside

Social Security Act 1991 – s 1347
Migration Act 1958 – ss 20, 31, 198, 499, 501,
Migration Regulations – Schedules 2, 4

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Meng Kok Te v Minister for Immigration and Ethnic Affairs (unreported, Branson J, No. 1339/98, 16 October, 1998)
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Lachmaiya and Department of Immigration and Ethnic Affairs – (1994) 19 AAR 148
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (unreported, Deputy President McDonald, 7 November, 1994, Decision No. 9822)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, Deputy President Forrest, 27 September, 1994, Decision No. 9753)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 2 May, 1996, Decision No. 10910)

DECISION AND REASONS FOR DECISION [2001] AATA 762

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/245
GENERAL ADMINISTRATIVE DIVISION      )

ReGOWINDA WADUGE CHINTHAKA MAHINDA GOONEWARADANA

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Tribunal Miss S A Forgie (Deputy President)

Date 5 September, 2001

Place Adelaide

Decision The Tribunal:

1.sets aside the decision of a delegate of the Minister dated 2 July, 2001; and
2.substitutes a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501 of the Migration Act 1958 .

S A FORGIE
Deputy President

REASONS FOR DECISION

On 6 July, 2001, the applicant, Mr Gowinda Waduge Chinthaka Mahinda Goonewaradana, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("Minister"), dated 2 July, 2001. That decision was to refuse Mr Goonewaradana's application for a Resolution of Status visa (subclasses 850 and 851). The basis of the delegate's decision was that Mr Goonewaradana did not pass the character test set out in s. 501(6)(a) of the Migration Act 1958 ("the Act").

At the hearing, Mr Goonewaradana was represented by Mr Swan of counsel and the Minister by his counsel, Mr Leerdam. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with: extracts from the Court Administration Authority file relating to Mr Goonewaradana's convictions in the Magistrates Court and District Court, a decision of the Refugee Review Tribunal ("RRT") dated 2 December, 1996 and a decision of the Federal Court dated 24 July, 1998; a transcript of the proceedings in the RRT; a bundle of documents comprising a Community Service Order, a Magistrates Court complaint and a document from the Department for Correctional Services; and a letter from Mr Goonewaradana to Mrs Carseldine. Oral evidence was given by Mr Goonewaradana in support of his case together with his wife, Mrs Marguerita Goonewaradana, Ms Jennifer Ann Moore, Dr Guiseppe Neroni, Mr Frank Rana and Ms Deirdre Ann Richardson. No evidence was called in support of the Minister's case.

THE ISSUES

The first issue is whether Mr Goonewaradana passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.

BACKGROUND

Many of the background facts were not in dispute between the parties. In light of that and on the basis of the evidence, I have found the facts that I will set out in the following paragraphs.

Visa history

Mr Goonewaradana was born in Sri Lanka on or about 10 March, 1965. He unsuccessfully applied for a business visa on two occasions before being granted, on 11 May, 1990, a visa category V11 B2 for a single entry one month stay in Australia. On 9 June, 1990, Mr Goonewaradana arrived in Australia. Although he should have left Australia on the expiration of his visa on 9 July, 1990, Mr Goonewaradana did not do so. He was located on a field visit on 23 April, 1991 as a visitor overstayer.

On 2 May, 1991, Mr Goonewaradana lodged an application for determination of refugee status. That application was refused on 10 December, 1991 and was followed by Mr Goonewaradana's application for review on 6 January, 1992. While that application was being considered, Mr Goonewaradana was first detained in immigration custody and then released on a Temporary Entry Permit-Refugee on the basis that he reported to the Department of Immigration and Multicultural Affairs ("Department"). On 31 May, 1993, the Refugee Status Committee affirmed the earlier decision to refuse to grant him refugee status.

On 11 June, 1993, Mr Goonewaradana agreed to leave Australia on a voluntary basis but did not do so as he lacked a travel document. He then lodged an application for a Special Permanent Entry Permit Class 816 ("class 816 visa"). He did so on 28 July, 1994 and was granted an associated bridging visa on 31 August, 1994 followed by a Bridging E Visa on 1 September, 1994. His application for a class 816 visa was refused on 25 November, 1994.

Mr Goonewaradana was detained in immigration detention on 23 March, 1995 and lodged an application for a Bridging E Visa. He was refused that visa and then applied for review of that decision in the Immigration Review Tribunal ("IRT"). On 5 April, 1995, he withdrew his application for review and this was followed by his being the subject of a removal order pursuant to s. 198 of the Act. That was made on 19 April, 1995.

On the same day, Mr Goonewaradana applied for a further Protection Visa. He was refused an associated Bridging Visa but that decision was reversed by the IRT on 2 May, 1995. On 3 May, 1995, he was granted a Bridging E Visa associated with his application for a Protection Visa. He was released from immigration detention. His application for that Protection Visa was refused on 18 August, 1995 and between that time and 24 July, 1998, he sought review of that decision first in the RRT and then in the Federal Court. The RRT affirmed the decision and Mr Goonewaradana's appeal to the Federal Court was dismissed.

In the meantime, Mr Goonewaradana lodged on 8 November, 1995 an application for a Sri Lankan (temporary) Visa 435 and granted an associated Bridging Visa. He was granted the Sri Lankan (temporary) Visa TT-435 on 24 November, 1995 but that was cancelled on 28 November, 1995 when a delegate decided that Mr Goonewaradana did not meet the criteria and the visa had been granted in error. Mr Goonewaradana was again granted a Bridging E Visa with conditions. That visa was later replaced by a Bridging E Visa in relation to his appeal to the Federal Court.

On 6 December, 1996, Mr Goonewaradana married Ms Marguerita Migliarese. She has two surviving sons; one aged 22 years and the other 19 years. On 28 April, 1997, Mr Goonewaradana applied for a spouse visa. He was granted an associated Bridging E Visa but, on 4 July, 1997, the Department decided that his application was not validly made. Mr Goonewaradana then applied once more for a Sri Lankan (temporary) Visa TT-435. That was on 31 July, 1997 when he was granted an associated Bridging E Visa with conditions.

On 1 December, 1997, Mr Goonewaradana lodged an application for Resolution of Status. His application for a Sri Lankan (temporary) Visa TT-435 was granted on 2 December, 1997 and remained valid until 31 July, 1998. He was also granted a Bridging E Visa in relation to his application for Resolution of Status with conditions. That occurred on 18 February, 1998 and was followed by the grant of a further Bridging E Visa on 5 August, 1998. On 22 August, 1998, however, Mr Goonewaradana's application for a further Bridging E Visa with changed conditions was refused.

Convictions

On the dates indicated below, Mr Goonewaradana has been convicted of the following offences and sentenced:

Date (of sentencing) Court Offence(s) of which convicted         Sentence
21 July, 1992       District Court (Adelaide) Date of offences: 5 March, 1991         1.         unlawfully and maliciously wounded another person 2. assaulted another person thereby occasioning him actual bodily harm 2.         1.         6 months imprisonment 2.    111/2 months imprisonment (sentences served concurrently and deemed to have commenced on 17 April, 1991 when first taken into custody)
14 December, 1994 Magistrates Court (Ceduna)    Breach of domestic violence order      Bond to be of good behaviour for 1 year
21 February, 1995   District Court (Adelaide) Date of offence: 30 July, 1994 Common assault     6 months imprisonment but suspended on his entering good behaviour bond in the amount of $500 for 12 months and on the basis that he perform 120 hours of community service within that 12 months. (Time for completion of 69 hours of community service in original bond extended on 18 March, 1996 on Mr Goonewaradana's application dated 23 February, 1996. It was varied on the basis of his entering a further bond on his own recognisance for a period of 6 months.)
5 December, 1995   Magistrates Court (Port Augusta) Date of offences: Various dates between 26 July, 1992 and 21 October, 1994        1.           5 counts of making a false statement for a benefit or allowance 2.     43 counts of obtaining an instalment of a payment not payable           10 months imprisonment suspended upon his entering a good behaviour bond in the amount of $10 that he be of good behaviour for 2 years
27 December, 1997 Magistrates Court (Adelaide) 1.         False name and address 2.    Offensive language in a police station 3.           Resist arrest     Perform 80 hours of community service within 9 months

THE EVIDENCE

Entry to Australia and subsequent events

Mr Goonewaradana

Mr Goonewaradana agreed that he had written a letter dated 15 March, 1990 to the Australian High Commission in Colombo. That letter was written on letterhead of a company called "Paragon (PVT) Ltd". Mr Goonewaradana signed himself as the Managing-Director. He referred to requests for visas for himself and his personal assistant "to enter Australia to make this business venture a success" (Exhibit 5). Mr Goonewaradana referred in his letter to two previous unsuccessful applications for a visa. In cross-examination, Mr Goonewaradana said that someone else had supplied all of the details. He signed the paper but did not write anything. Other people wrote that he was a managing director. He told those other people that he had to get out of Sri Lanka and they did the paperwork. Mr Goonewaradana paid $5,000 for that paperwork. Although he did not have a boat building company, he read all of the catalogues and studied boats and the fishing industry.

In cross-examination, Mr Goonewaradana was asked why he was in a hurry to leave Sri Lanka. He replied that he had lost all of his family and had been in the Army. Those with whom he trained had mostly died. He wanted to survive and was not used to that life.

When he arrived in Australia, he said, he spoke very little English. He went first to Chinatown in Melbourne. He had wanted to travel in Australia but, after three weeks, he found that he did not have enough money to do that. Consequently, he found a job polishing floors. When asked in cross-examination if he knew that he could not work, he replied "not really". They did not say that he could not work. He had $5-10,000 and he spent it. All backpackers work and so he did.

He met a girl but, when they went to a pub where he withdrew cash from a machine, a man asked him why he was going with his woman. Mr Goonewaradana said that he knew nothing about that but he and another man then hit him and stole his wallet and his passport. The girl ran away. He took advice from people staying at the backpackers' hostel as to what he should do in view of his loss. The advice he received was to go somewhere else and so he went to Adelaide.

Refugee status

Mr Goonewaradana

Mr Goonewaradana said in giving oral evidence that he had worked with his parents in the family business in Sri Lanka. One day, he went to Colombo to purchase stock for the business. When he tried to return home, he was told that there was no bus travelling there and that there was a curfew. On enquiring at the police station as to what had happened, he was told that Tamil Tigers had killed all of the Singhalese, including his family, and destroyed all of the Singhalese businesses in his village. Mr Goonewaradana never went back to his village.

Mr Goonewaradana said that he "got mental" when he learned of the deaths of his parents and his sister. He did not know what to do and went to a refugee camp. That did not have any washing facilities and he left. Then he just walked. Finally, he worked in Colombo in a jeweller's shop. A family helped him.

Mr Goonewaradana said that he was then seized by Tamils and kept for two days. During that time, another person was killed and he was tortured. Three of his toe nails were taken out and they still do not grow properly. In addition, he was stabbed in the back. He still has the marks, he said. Mr Goonewaradana said that he escaped with the help of a woman. Other people treated him with natural medicine and he recovered to some extent but was still not right.

Ultimately, Mr Goonewaradana was able to get work accompanying tourists. He then answered an advertisement in the newspaper to join the government's Army. After training, he was placed in a group required to talk to people in the villages. He was also told to move people or to pick them up. Mr Goonewaradana said that he was told to do that because they were believed to be "Tamil Tigers or whatever".

When asked if he shot Tamil Tigers, Mr Goonewaradana said that he had to shoot them if they shot at him. He then said that he could not tell whether he had shot them or not. There was a lot happening. He had been issued with an AKA machine gun as had all of the others. There were bullets, noise and fear everywhere, he said, and "who knows" whether he shot at anybody.

In cross-examination, Mr Goonewaradana said that he was not sure if he first spoke of his experience as a Green Tiger at the RRT. He confirmed his statement to the RRT that he had been trained in the Anapora Jungle for six months but said that he had been trained to use an AK 47 and a pistol. This is what he had meant when he told the RRT that he had been trained "to kill" (Exhibit 3, page 12). He had undertaken three or four missions. Mr Goonewaradana agreed also that he had said that he had killed Tamil Tigers and confirmed also that this must be correct. Mr Goonewaradana said that he was told to take people out from villages and to put them on trucks. They were taken away. What happened to those people he did not know. Whether they were questioned or tortured he did not know. Some people were shot. It was not his business as he was just a soldier. He repeated his evidence to the RRT that he and the others had been given drugs. What happened was not real. He did not know what was going on. What he did, he had to do because he had to do what he was told. As a soldier, he could not question the orders he was given. When he realised what was going on, he had to get out. It was all being done for political gain and there was no protection for him. Those he trained with were being killed by other members of the group.

Mr Goonewaradana said that he did not know what a refugee was until he was held in custody by the Department after his release from gaol in July 1992.

Refugee Review Tribunal

On 2 December, 1996, the RRT decided that it was not satisfied that Mr Goonewaradana is a refugee and affirmed the Minister's decision not to grant a protection visa. In giving evidence to the Tribunal, it summarised the evidence that Mr Goonewaradana had given to it regarding the murder of his family in 1984 by the Liberation Tigers of Tamil Eelam ("LTTE"). It then continued:

"In May 1991 the applicant claimed that he was under surveillance by the Janatha Vimukthi P (JVP) and that he was in danger of being murdered by the Tamil Tigers or JVP as he was the only survivor of his village from the 1984 killings and that the Tamil Tigers have moved to Colombo making it a dangerous place to live.
In June 1991, through his legal adviser, the applicant claimed that in 1989 he was forcibly removed from a bus near Colombo and taken to an unknown house where he was tortured and interrogated by people whom he believed to be Tamil Tigers. He believed this happened because his family were Singhalese property and business owners in Jaffna.
In a further submission dated 3 October 1991 the applicant claimed that in 1988 the Tamil Tigers took him in Colombo, took off his toenails and put a bayonet through his leg. A medical report dated 4 September 1992 was prepared in connection with this claim. It states that: 'The applicant claims that he first experienced torture, from the Tamil Tigers in Sr (sic) Lanka in 1985/6. He claimed that he had had his toenails removed and claims to have been stabbed in the legs by a bayonet at the hands of his tormentors… (On examination) there were two 4cm long healed lacerations that were consistent with having been cut with a knife … The toenails were generally normal but the two smallest toe nails showed signs of having been significantly injured in the past and now do not have the same texture as the other toe nails. The left great toe was slightly more ingrown than the right … I conclude that (the applicant) appears to have stigmata consistent with his claimed history. I would point out that toe nails usually grow back normally after being removed, and only become subsequently deformed if the deeper nail bed is deformed by trauma or infection'.
In his second application the applicant reiterated the claims made previously. He also submitted character references and a number of media articles detailing the effects of the ethnic conflict in Sri lanka (sic).
Claims made at the Hearing with the Tribunal
At the hearing with the Tribunal the expanded on these claims and made a significant new claim. This claim raised the issue of effect of the Article 1F exclusion clause and the tribunal advised the applicant to consult his adviser before proceeding. The following claims were made by the applicant after he consulted his adviser.
The applicant claimed that after his family were killed by the Tamil Tigers he joined a special force in the Sri Lankan army known as the "Green Tigers". He underrwent six months training in 1985 and then took part in special missions on at least three occasions up to 1987. The special force wore different uniforms for their missions including JVP, Tamil Tiger and army uniforms. His commanding officer was a Christian Israeli whom the applicant first called Mohamad Rafil and later called Mohamed Akbar. However he also thought his name may have been Mohamed Saleem.
The first mission was to a tea plantation in Kandyy. The applicant first claimed that for this mission the special force wore JVP uniforms and later said they wore Tamil Tiger uniforms. They were given drugs to take which made them 'crazy' and they could not feel pain. He did not know the name of these drugs but the effect lasted for 6 hours. At the plantation the 10 Green Tigers shot anything that moved, They know the victims were Tamil Tigers because they found papers and ammunition there. They fired in self defence as the Tamil Tigers shot at them.

On the second mission in 1996, the special force again took drugs, before picking up about 20 JVP members from a village in Anuradhapura. They took them to the jungle where they were shot by others. The applicant first said they wore Tamil Tiger uniforms on this mission and later said he was not sure but thought they were JVP uniforms.
On the third mission in 1987 they went to Matara, picked up 10 JVP members and took them to the river where the commanding officer shot them, On this occasion they wore army uniforms, The special force froup was paid about 100,000R for each mission and he received a share of approximately 10,000R.
He claimed that because he was involved in this special force he is in danger from the Sri Lankan government who have already killed most of the members of the force and will kill him to prevent him from talking about the special force.
The applicant claimed that although the JVP have never questioned or detained him, they will target him because he was involved in killing their members when in the special force. His is not making any separate claims to fear the Communist Party; the JVP are the communists that he fears.
In relation to his fear of the LTTE the applicant said that he was kidnapped from a bus in Colombo and taken to a house by Tamil Tigers. He first said this incident occurred in 1987 and later said it was 1986 or 1987. He was in the house for about half an hour during which time he was tortured, They hit him, stabbed him with a bayonet and pulled out the nails on his two small toes and on the right great toe. They left him with a girl and he ran to the beach which is a 10 to 15 minutes walk away and from there went to a friend's house. He overheard the kidnappers conversation on a walkie-talkie and knew that they had left him to go and kill a Government Minister. He went to a doctor about three weeks after this incident when the wounds were getting worse. He did not report the incident to the police and does not know what information the Tigers wanted from him.
The applicant's adviser submitted that there have been reports of covert or clandestine military style operations in a number of countries, that the applicant's story fits the pattern and that he is largely illiterate in English he could not have concocted the story of the Green Tigers from reading these reports. He submitted that the commanding officer would use a code name to protect his identity. He also submitted that as it would not be in the interests of the Sri Lankan Government to let the applicant reveal details of the special force, he is at risk from government forces." (Exhibit 2, Refugee Review Tribunal, 2 December 1996, pp 3-5)

After reviewing the recent political and military history of Sri Lanka and Mr Goonewaradana's evidence, the RRT considered Mr Goonewaradana's claim to fear the Sri Lankan government because he was a member of the Green Tigers. It concluded that, as a young male Singhalese salesman living in Colombo for five years, there was no real chance that Mr Goonewaradana would have been targeted by security forces. His chances of being targeted in that manner would have been increased had he been a member of a special force out of favour with the government. Mr Goonewaradana, the RRT concluded, was not such a member. It took into account Mr Goonewaradana's not making his claim for refugee status until he had been in Australia for five years, his not having mentioned it in his earlier dealings with the Department of Immigration and Multicultural Affairs ("Department"), inconsistencies it identified in his evidence and what it found to be the "inherently implausible nature of his claims and the timing of them" (Exhibit 2, Refugee Review Tribunal, 2 December 1996, p 6).

In relation to his claim that he had been tortured by the LTTE, the RRT concluded that it did not believe that he had been kidnapped and tortured by the LTTE in the past. In view of that and in view of its not accepting that Mr Goonewaradana posed any threat to them, the RRT concluded that there was no real chance of his being tortured by that group in the future. It rejected his claim that he feared the JVP because of his activities against them while he was in a special force. The bases of the RRT's rejection was its earlier rejection of his claim that he was a member of a special force and his evidence that he had not had any difficulties with the JVP in the past. Furthermore, the JVP is no longer regarded as a terrorist organisation, has renounced violence and has been accepted by the Sri Lankan government as a legitimate participant in the political process. An appeal to the Federal Court against the RRT's decision was dismissed.

Convictions

Mr Goonewaradana

When he worked at Eagle on the Hill, Mr Goonewaradana said, he realised that his visa was going to run out. He talked to the chef about it and the chef talked to him and took him to the house of friends. The friends told him to return the next day and, when he did, told him that he had to pay $50 per week or they would tell the Department. Mr Goonewaradana said that he paid that money but then could no longer pay it when he had to find a new place to live and needed to pay a new bond. He told the friends that he could not pay the money and they told him that they would bash him. They took his pay packet and one came at him with a baseball bat. Mr Goonewaradana said that he became angry as he had helped them in the past. If they had not had a place to sleep, they had been welcome to stay at his and he would feed them. He hit them. Mr Goonewaradana denied that he had used a knife but said that, as he worked in BiLo, "they" would have known that he had a box knife.

Mr Goonewaradana said that he then went to work at BiLo. When he finished at noon, he saw police outside and was told that they were looking for him. He was fearful and he started to run. A friend took him to his place and he went to Mylor. Mr Goonewaradana had to go back to BiLo, however, to collect his pay packet and the manager telephoned the police. He was held in the Adelaide Remand Centre for 15 months on six charges. There were two hearings; one in the Magistrates Court and one in the District Court. He could not understand why he could not get bail as rapists and robbers get bail. Mr Goonewaradana did think that the convictions were a fair thing. After all, although he had to fight for himself, he did hit them.

After he was released by Judge Pirone, Mr Goonewaradana was detained in immigration detention. When released, he had to get a bus to travel to the house of a friend, Belinda. The Department, he said, had promised him the dole. When he went to Centrelink, he was told to go to the Job Centre. All that he wanted was $2.80 to pay for a bus fare. He asked a policeman and he told him to go to Social Security. Social Security told him to go to the Job Centre to release social security. Mr Goonewaradana said that he then filled in a piece of paper and took it to the Department where it was stamped. He then took it to Social Security where he was paid $280. Social Security, he said, told him that this was the way the system works.

While he was living with Belinda, he was sent a dole form, he said. Mr Goonewaradana said that he told Belinda that he needed to work. He was not used to doing nothing but she told him that he could not work. The Department had told him that he could study. Then the Job Centre said that he could go to TAFE to learn English although he had learnt to speak it while in prison. His girlfriend at the time, Bianca, helped him to fill in the forms as he could not read very much English. He then took the forms to the office each fortnight but was never once asked if he was a resident or an Australian citizen. Mr Goonewaradana said that he believed that as he could not work, was not studying and was not required to leave Australia, that must be "the way they want to do it". The payments ultimately continued for five years.

Shortly after his release from prison, Mr Goonewaradana had started a relationship with Bianca. He moved from Belinda's house to a unit that he shared with Bianca. Bianca was studying at the time but was then offered a job at Ceduna. She was afraid to go there as it was too racist and too violent. Mr Goonewaradana told her that he knew some people there as they had been in prison with him. They found a house through her employer and he told her not to worry. Together they moved to Ceduna in 1993.

Mr Goonewaradana said that he tried to find work in Ceduna. In the meantime, he stayed at home and did the cleaning and the washing as well as the cooking. Mr Goonewaradana needed $825 to lodge an application with the Department. Bianca found him a job with Mr Nick Karagiannis, who was a fisherman. Mr Goonewaradana told Nick that he did not mind how many days he worked or how long he worked each day provided he paid him $825. On the first day, Nick asked him to haul shark nets. He told him that they would fish for whiting the next day but they fished instead for abalone. Mr Goonewaradana stayed in the boat while Nick and another man dived for abalone. That night he went home and told Bianca that it was not right to fish for abalone.

Nick, he said, "go mad" and he was afraid that he would tell the authorities about his activities. Mr Goonewaradana told him that he would not tell but that he wanted his money. He saw Nick in his vehicle one day and asked for his money. Nick picked up a hammer and Nick's wife, who was driving, turned the vehicle and drove straight at him. The next morning, Nick's wife told Bianca "that your man do this". She was crying. Then Nick came with a knife and told Mr Goonewaradana that he would kill him. Mr Goonewaradana said that he had told him that he could do better. Nick's wife went to the police and Mr Goonewaradana was arrested. Mr Goonewaradana, in turn, reported Nick's activities to the fisheries' authorities and, after, three months, he was caught fishing illegally and prosecuted.

In cross-examination, Mr Goonewaradana said that he was told that, were he to plead guilty, he would be given community service. He did not face a trial. He told his lawyer that he did not hit Nick. Rather, Nick had hit him. Mr Goonewaradana said that he did not plead guilty but his lawyer must have. He denied that he was sentenced to six months imprisonment for assault and asserted that he was given a $500 bond and required to do 120 hours of community service. Later, Mr Goonewaradana said that he did not really think that he should have been convicted in relation to Nick. He had not hit him and Nick had hit him. The way he saw it was that he had "got put down" for a little one and Nick "got a bigger one".

Mr Goonewaradana undertook a hospitality course and graduated while he was in Ceduna. Mr Goonewaradana said that he wanted Bianca to attend his graduation and gave her three days notice of it. She told him that she would attend but she did not. Instead, she ate with some other friends. Mr Goonewaradana had invited his friends and all of the graduates to a barbecue at their home after the graduation. He and Bianca had an argument and he told her not to come home. The police were called to their home and asked him to leave. He persuaded them to let him leave the next morning.

Mr Goonewaradana found work at the Pine Grove Motel as the breakfast cook and as a cleaner. In the afternoons, he worked as a driveway attendant at a petrol station before working first as a kitchen hand and then as a barman in the evenings. He was then told that he was in breach of the domestic violence order. In cross-examination, Mr Goonewaradana said that he did not know about that.

In 1997, Mr Goonewaradana said, he was working 30 hours each week in a speakeasy. His hours were worked in the evening. At the time of the speakeasy's Christmas party, he was working full-time. He was charged, he said, but thought that all of the charges were dropped. When the police watched the video of the incident, they dropped the charges he said in cross-examination. He had gone to court but he had asked to see the video as he had been drunk and did not know what had happened. He did not agree with Mr Leerdam that he had been found guilty of three of the four charges. He did not think that he had been required to perform 80 hours of community service. Mr Goonewaradana said that he always did his community service and he did not think that he had been required to do any. A computer record of the Department of Correctional Service shows that Mr Goonewaradana completed his community service on 12 August, 1998 (Exhibit 4).

Sentencing remarks

In relation to the two offences committed on 5 March, 1991, Mr Goonewaradana was kept in custody from his committal in December, 1991 until Judge Pirone sentenced him on 21 July, 1992. Judge Pirone said the following in sentencing Mr Goonewaradana:

" Whilst you were employed as a kitchen hand at the Eagle on the Hill you met and became acquainted with a person called Simon D'Arcy. You say that you bought plants of marijuana from him – I am not quite sure how many, but at least one. You say that that plant was stolen from you and that it had been stolen the day or night immediately preceding the date of the alleged offence. It was your belief that it had been stolen by one of your two victims and perhaps others who were working in conjunction with one or both of them. You set after them to retrieve it. It was your intention to get it back. You thought it was very valuable to you and you wanted it at all costs.
You travelled in Simon D'Arcy's vehicle and whilst in his company you came across your victim Jason. You had a discussion with him. He denied any knowledge of the plants in question. You punched him in the mouth; he fell to the ground. You punched him six or seven more times in the mouth or in the region of his mouth and then grabbed him by his throat. As a result of your assault upon him he suffered a split lip and a sprained wrist. He of course knew nothing of the plant which you say you had and had been stolen from you. Simon suggested that perhaps Angus Sames might know something about it. You and he went to his place in Simon's car. Upon arrival you knocked on the door and he came to answer it. You saw him, grabbed him and pulled him out. He retaliated and pushed or punched you out of his way and away from him. A scuffle ensued. During that scuffle you produced what has now been described and accepted by the Crown as being a packing knife. In the course of that scuffle you threatened Angus with that knife in a stabbing motion. As a result of that assault he suffered two lacerations of the right upper arm. One of them was 70 millimetres long; he needed medical attention and received 7 stitches for it. The other was 15 millimetres long; no stitches were required.

There can be no doubt that your type of offending is serious and is so regarded by the law. The extent of that seriousness is reflected in the penalty which the law provides for it. That penalty is a period of imprisonment not exceeding five years in each instance. What you should realise, therefore, as I am sure you do by now, is that by offending as you have offended you have put yourself at risk of being in prison for quite a long period of time. The sentence which I must pass upon you of course must fit the crime and the circumstances in which it was committed. It must fit your personal circumstances. But I also have a duty to protect the community from the sort of behaviour in which you engaged.

You see, we in this country do not take the law into our own hands. When there is a grievance we go to the law and ask the law to rectify our grievances. We do not do it ourselves. Actions and conduct which involves any type of violence and especially conduct of the type involving the use of knives and other lethal weapons is particularly abhorrent to the Australian society and is regarded as very, very reprehensible indeed. It is for this reason that in my view what you have done is considered to be serious and must be treated accordingly. The deterrent element of the sentencing options that I have must indeed play a very important part in the sentence that I am about to impose upon you. Imprisonment, of course, must only be imposed as a last resort. A sentence of imprisonment can only be imposed after considering and eliminating all other possible available alternatives. Having done that in your case there is no doubt in my mind that your conduct deserves a period of imprisonment because in my view no other penalty would be appropriate to your particular circumstances.

It seems to me that the only question to be determined is just how long that period of imprisonment should be for. In fixing that period of imprisonment I bear a number of factors in mind. One of them is that when you were apprehended and questioned by the police you were frank with them. You made full and complete admissions. You didn't try to hide anything. You didn't deny your involvement. You of course have pleaded guilty and I am prepared to weigh in your favour that you have done so at the earliest possible opportunity. One of the fact (sic) which has weighed heavier in my mind is the factor that you have no record at all; your character is completely unblemished. There are no convictions of any description recorded against you. And you are of course a relatively young man. I also bear in mind that your offences are now quite old; they were committed some 16 months ago. I bear in mind that as your counsel has put to me you had been consuming alcoholic beverages before the alleged incident and that you might have been affected to some extent either by alcohol, as your counsel says, or even perhaps by drugs, as some of the witnesses appear to suggest.

There can be no doubt that the incident in question and particularly the one involving the use of the knife must have been terrifying to your victim but I bear in mind that it was short-lived. I bear in mind and hold in your favour that as your counsel has told me, your difficulties with each of them were patched up within a few hours of the incident occurring and that there have been no hard feelings between you and either of them.

The matter that has weighed heaviest of all in my mind is the fact that you, as I have been told, were apprehended and have been in custody since the 17th day of April, 1991. You have been in custody for a period now of just over 15 months. I do not understand why that has been so; No satisfactory explanation has been given to me. Your counsel is unable to explain it; the Crown hasn't told me anything about it. One thing I am sure of, though, and it is this: That for whatever reason and whoever is to be pointed the finger at for what has happened to you is at fault, something has gone wrong in the system and that an injustice has been done to you. A wrong has been committed in your favour, a wrong which in my view ought to be rectified and rectified forthwith. I shall do what I can to ensure that that is so.

It is with those considerations in mind, then, that in relation to the first count the sentence of the court is that you be imprisoned for a perm of 6 calendar months. In relation to the second count the sentence of the court is that you be imprisoned for a period of 11 and a half calendar months. I order and direct that the two sentences which I have passed upon you be served by you concurrently with one another and in the light of what has happened and accepting your counsel's submissions as I do, I further order and direct that each of those two sentences be deemed to have commenced on the 17th day of April 1991 when you were first taken into custody. I make all the appropriate orders with respect to statutory levies." (Exhibit 2, Judge Pirone's sentencing comments, pp 2-6)

In sentencing Mr Goonewaradana in relation to the offences which he committed on 30 July, 1994, Judge Hume said:

" I proceed on the basis that you were extremely upset and feeling under a great deal of financial pressure and that the man you subsequently struck at had, in your mind at least, avoided his promises to pay you for the work that you had done and that you acted wrongly, but out of anger, out of a sense of great frustration, and I proceed on the basis of facts which have been agreed between the prosecution and your counsel that you struck at Nick through the window of his vehicle, but didn't cut him and didn't use a knife in the incident.
I am concerned about the fact that you have a serious court appearance in 1992, a comparatively short time before this offence occurred, and while I don't know what the facts surrounding those convictions were, it would seem to me that even if, as Mr Duffy suggests on your instructions, the convictions arose out of some sort of incident in which there was an altercation between you and other people, it is quite clear that the judge, when you appeared in the Adelaide part of this court, took a very serious view of what had been done, because effectively he imposed a sentence of approximately one year's imprisonment and that indicates to me that he or she took a very serious view of what you had done and it indicates to me that you tend to resort to violence and that you did that on this occasion also.

In all the circumstances, because of your previous conviction arising out of a situation of violence, as I believe it must have done, and in view of your conduct on this behaviour, where, for perhaps reasons which you thought were good at the time, you lost control of yourself again.

I take into account in your favour that your expressed apologies to Nick after the assault occurred and I believe that you regret that you struck at him. Fortunately, on the facts which have been agreed, no great harm came to him from the blow which you struck.

I do take into account the fact that you have made a clean breast to the fishing authorities about what you observed Nick was doing illegally in poaching. I appreciate that you have made a clean breast of your own involvement in that. I don't think that I can give you as much of a discount on my penalty for that as I do for the fact that you have expressed regret for what you did in striking at Nick.

I have decided that the most appropriate course of action for me to take is to impose a sentence of imprisonment. I think that, in view of facts of the matter which have been agreed, an appropriate term of imprisonment is six months. I impose that length of imprisonment bearing in mind the previous convictions, in other words, you don't come before me as a man who has never used violence before. " (Exhibit 2, Judge Hume's sentencing comments, pp 1-3)

The role of Mr Goonewaradana in maintaining Mrs Goonewaradana's health

Mr Goonewaradana

Mr Goonewaradana said that his wife was sick before he married her. She just cried and cried and wanted to commit suicide. After he married her, she seemed to be getting better slowly. Every Sunday, he took her to the cemetery. For the first two years of their marriage, he was not able to work. He had to take her shopping and help her to learn how to control her spending and manage her bills. With regard to her medication, he supervised the tablets she took. When she was ill, she wanted the house cleaned all of the time. He did it because she would do it all the time if he did not.

In the month that he operated the shop, he took his wife. This was good for his wife as she becomes depressed on her own. She is also able to talk to other people as she has been through a lot and can help them.

Ms Moore said that Mr Goonewaradana had been angry and perplexed about the way in which matters were going with the Department. He had made no progress with it. She was aware that Mrs Goonewaradana had previously been in abusive relationships and she watched for a repetition of the pattern in so far as Mr Goonewaradana was concerned. She saw no evidence of a repetition at all. Ms Moore said that there was some mention that he had been in gaol but, at the time, she found his English very difficult to understand. His reaction to his difficulties with the Department were quite normal for a person who has been through all of that. He was always able to maintain a calmness about his situation.

Mr Goonewaradana said that he needed to drink a glass or two of alcohol each night in order to sleep. He works hard and drinks beer during the day and a little whisky. When he has a full-time job, he does not drink. After he left Ceduna he did not drink as he did not have any money. While he was in Ceduna he did drink as there was nothing else to do.

Mrs Goonewaradana

Mrs Goonewaradana said that her first marriage was a very abusive marriage. She said that her life and the lives of her three children were at risk in that marriage. Ultimately, she left it and went to a women's shelter. Mrs Goonewaradana then entered a relationship with another man but he was a paranoid schizophrenic and used to beat her all of the time. She left him too. She met Mr Goonewaradana when he placed a notice in the newspaper. She could not recall how long passed between her first meeting him and marrying him. As to when she found out about his migration status, she could not remember although she did not think that she knew straight away. She thought that she found out some time later but, when the priest who was to marry them, went to the Department and was told that it was all right for them to marry, she never thought that it would come to this. Mr Goonewaradana had not wanted to tell her about it as he had not wanted to give her a problem. She rejected Mr Leerdam's suggestion that she had always known that he only had a temporary visa. When the priest went to the Department, she repeated, she thought that everything was all right. Mr Goonewaradana did not tell her that there were any problems with his situation. She had thought that the priest went to the Department as the priest wanted Mr Goonewaradana's passport. He told her that he had to go to the Department to see all of the documents.

Mrs Goonewaradana said that she had "plenty of admissions" to various hospitals in Adelaide before she met her husband. She has not been admitted since she married him. Her mental health has been stable and, until her husband was placed in immigration detention, she has not been taking sleeping tablets at night. She is again taking them and has seen the doctor. Since her husband's detention, she has again had suicidal thoughts and has been planning how to do it. When she has such thoughts, she has to telephone Dr Neroni straight away. She said that she had not been having such thoughts when Mr Goonewaradana was with her.

Mr Goonewaradana would take her to the doctors and to do her shopping. She found shopping difficult as she would have panic attacks. Sometimes, he would have to do the shopping on her own. Her husband has generally been very supportive of her. She said that she still suffers from nightmares about her son and also wants to visit him at the cemetery all of the time. Mr Goonewaradana always takes her when she wants to go. Her sons live with her at the moment but both work and they have their own lives. It has been hard for her, she said.

Since Mr Goonewaradana has been in immigration detention, she has not been back to the shop that they started to sell second hand goods. She cannot seem to cope with it. When Mr Goonewaradana was with her, she would tidy up the shop and serve customers.

Mrs Goonewaradana said that she had suffered so much pain in her life. There have been two broken relationships. She had lost her son and part of her was lost then. She thought that this marriage was forever and does not need to lose her husband as well. They never argue. Whatever she wants, he does.

Medical evidence

Dr Guiseppe Neroni wrote in a report that Mrs Goonewaradana suffers from chronic depression and personality disorder with anxiety and insomnia, hypertension, hypercholesterolaemia, urinary incontinence, reflux oesophagitis and chronic lumbar pain. He went on to describe her condition both before and after her marriage to Mr Goonewaradana:

"She has been treated by specialists in the past and recently for her medical problems and requires regular medication for her medical problems. Mr Goonewaradana is responsible for supervising her medical conditions and administering her medications and in providing transport for her to her specialists and doctors. He assists her with her home duties and shopping and with caring for her family. Mr Goonewaradana provides his wife with emotional and physical support. Prior to their marriage Mrs Goonewaradana required frequent admissions to psychiatric hospitals for nervous breakdown and was unable to care for her children. Since her marriage her life has become more stable and she has required no hospital admissions. Mr Goonewaradana should remain in Australia because his care to his wife is beneficial for her medical, psychiatric and social problems. I strongly recommend that Mr Goonewaradana be granted permanent Australian residency so that he can remain with his wife in Australia." (T documents, pages 130-131)

In his oral evidence, Dr Neroni said that he treated both Mr and Mrs Goonewaradana and had been seeing Mr Goonewaradana since 7 January, 1999. In the past, Mrs Goonewaradana had suffered from suicidal thoughts. Since her marriage, she has become much more stable. Since Mr Goonewaradana was taken into immigration custody on 2 July, 2001, he has seen her on that day and five subsequent occasions to the date of the hearing. She has become very anxious. On the day that her husband was taken away, the ASIS team saw her at her home in order to offer her counselling. She has continued to be very anxious and has also suffered a viral gastric attack and had some neck, shoulder and hand problems. Her visits are much more frequent than they had been in recent times when she has seen him only once a month or even once every two or three months.

If Mr Goonewaradana were not able to return to her, Dr Neroni considered that Mrs Goonewaradana's condition might deteriorate and her depression become worse. She would then require hospitalisation and intense treatment and counselling.

On the last five occasions on which Dr Neroni has seen Mr Goonewaradana, he has found him to be very anxious about his situation and his visa problems. The first time that he mentioned problems with his visa was 10 November, 1999. Before that, he had seen him on only two occasions and his complaints concerned tennis elbow. He has had a high alcohol intake and has been smoking heavily. His alcohol intake, Dr Neroni believed, related to his medical condition. On 23 May, 2001, he noted that Mr Goonewaradana had been consuming two litres of sherry each day. His consumption had gradually increased to that point over a period of some three years before that date. On 10 April, 2000, Dr Neroni had noted that Mr Goonewaradana was consuming half a litre of sherry each day. A liver function test on 27 June, 2000 indicated inflammation of the liver. Other tests eliminating other causes of liver inflammation indicated that alcohol was the most likely reason for the inflammation. He told Mr Goonewaradana that he needed to reduce his intake of alcohol. The issue of the amount of alcohol he consumed arose when Mr Goonewaradana complained to him of vomiting and insomnia over a period of four days or so. He questioned both his smoking and his drinking habits. Mr Goonewaradana has never appeared to him to be intoxicated and he has never smelt alcohol on his breath.

Ms Jennifer Ann Moore is a clinical nurse with the Eastern Community Mental Health. Between February, 1995 and February, 1999, Ms Moore has been Mrs Goonewaradana's case manager. In that role, she has come to know Mr and Mrs Goonewaradana. She wrote that Mr Goonewaradana had supported his wife through some major crises in this time, including the death of her eldest son. His emotional and social support has been instrumental in his wife's discharge from case management two years ago as well as her continuing stability. Ms Moore said that this was so despite the ongoing stress she was experiencing as a result of her husband's status as a resident in Australia. She believed that, were Mr Goonewaradana required to leave, his wife's mental health may deteriorate.

In her oral evidence, Ms Moore said that Mrs Goonewaradana found it very difficult to be living alone and to make decisions. She needed support and assistance and to be taught problem solving skills. In earlier days, Mrs Goonewaradana had wanted to head off on a self-destructive bent. She wanted to take an overdose and wanted to go to hospital to get help. At the time, she was on a lot of medication for her mental and physical problems. At times, she took too much. Ms Moore had thought that it would be very difficult to discharge Mrs Goonewaradana from the service but, two or three years after she met Mr Goonewaradana, she was discharged. That occurred in 1999.

Were Mr Goonewaradana required to leave Australia, Ms Moore considered that Mrs Goonewaradana would have a crisis and need to be admitted.
The service has had telephone contact with Mrs Goonewaradana since Mr Goonewaradana was taken into immigration detention.

Family members

Mrs Baldo Mele is Mrs Goonewaradana's sister in law and supported Mr Goonewaradana's application to remain in Australia. Noting that she had known him for the past five years, Mrs Mele wrote:

"During the time I have know Kuma he has been very supportive of Margherita and her children showing genuine concern for her welfare and children's welfare. He has shown very good fatherly support disciplining the children when need be and provided normal fatherly assistance like driving them to different events and providing assistance in vehicle repair costs.
During this period his support to Margherita has resulted in her showing a vast improvement in her self-esteem resulting in Margherita not visiting the Doctor or Hospital for depression compared to the amount of times she previously visited the Doctor and Hospital." (T documents, page 138)

Mr Frank Rana is Mrs Goonewaradana's father. He is a retired cleaner who has five daughters and fourteen grandchildren. Over the years, his daughter, Mrs Goonewaradana, has spent a lot of time in hospital as she has "suffered a lot with nerves". When Mrs Goonewaradana's eldest son died very suddenly at the age of 20 from a collapsed heart muscle, that "really topped it up", Mr Rana said. He and his wife tried to "keep her together" and cared for her for four months. She would get up in the night calling for her son.

Since she has met Mr Goonewaradana, Mr Rana said, his daughter has been a different person in every way. She has not returned to the hospitals whereas she was always in and out of them before that. Mr Rana said that he was proud to call Mr Goonewaradana a son in law of his. He has looked after his daughter well and has never had a bad word for anyone. If he or his wife wanted anything done, Mr Goonewaradana would do it for them on the spot and would not want money. He is a good person and Mr Rana said that he could not speak highly enough of him.

Since Mr Goonewaradana has been in the remand centre, his daughter has stayed with Mr and Mrs Rana. She has been awake during the night and has been crying. If Mr Goonewaradana is not allowed to remain in Australia, she will not be able to stay with them. They have moved into a new courtyard house and there is insufficient room for her to remain on a full time basis.

Friends

Ms Deirdre Ann Richardson is a Senior Youth Worker. She has known Mrs Goonewaradana for the past thirteen or fourteen years and first met her when they lived opposite each other. In recent years, she has continued to see Mrs Goonewaradana at least twice a month or more often. They live only four streets away from each other. Ms Richardson has also known Mr Goonewaradana for approximately six years. She wrote in a letter that:

"… Before Kuma entered Margarita's life, Margarita struggled significantly to maintain a lifestyle outside of the Mental Health system where on numerous occasions on a yearly basis she required hospitalisation due to severe bouts of depression. However since her husband Kuma has taken on the responsibility of caring for his wife, such episodes have ceased and Margarita has not been hospitalised for several years with Kuma assisting her throughout her illness as the primary caregiver. This is despite the tragic loss of Margarita's oldest son Peter early on in their relationship and subsequent marriage. (T documents, page 118)

In giving oral evidence, Ms Richardson said that, before Mrs Goonewaradana met her husband, she struggled to maintain her every day life. There is now somebody with her to undertake the everyday tasks that used to "stress her out". In addition to taking on the role of Mrs Goonewaradana's husband, he has also taken on the role of being a step father to her sons, Frank and Anthony Migliarese. He assists his parents in law as well.

Community and work

Mr Goonewaradana

Two years after his marriage, Mr Goonewaradana said, he started his gardening round. At first, he did weeding as he could do that in his own time as well as look after his wife. He got to his jobs by bus and bought his tools one by one. He advertised in the local paper for customers and paid the advertising account from his earnings. By the end of 2000, he was able to buy a trailer for $500. If any other equipment was required, his customers hired it. He now has ten regular customers who have their lawns cut. Most of his customers cannot afford to pay him $30 per hour. Consequently, he charges them $10 or they give him old clothes and other goods they do not want. People gave him so much that he decided to open a shop. He was unable to pay for the lease of a shop but he found a shop whose owner agreed to let him have it rent free in exchange for his carrying out repairs. Those repairs took him eight months to complete and the shop was only open for a month before he was placed in immigration detention. Some days, he sold goods worth $10 and other days they were worth $30.

One day, Mr Goonewaradana said, he saw a Buddhist priest who appeared to be Sri Lankan. He approached him and asked him if he wanted a lift. This led to his cleaning the temple. When the priests built a new temple, he did the paving. Other people then started to ask him to help.

Ms Deirdre Ann Richardson

Ms Richardson said that her son suffers from a very rare form of epilepsy that causes him to have hundreds of small seizures each day. As a result of his condition, he is intellectually and physically disabled. Mr Goonewaradana has helped her with physical tasks such as lifting her son, who is heavy, and by giving his time and resources unstintingly. He has also helped her and her son by giving them his sincere friendship. The bond between Mr Goonewaradana and her son is like that of an uncle and nephew, she said. Ms Richardson said that her marriage broke down very early and that she grew up in an orphanage. She lost her brother and sister and her friends are her family. Her son's godfather lives in Mexico City. Without Mr Goonewaradana, her son has very few male role models and very little social interaction. Mr Goonewaradana has always accepted her son's disabilities and her son calls him "uncle". Mrs Goonewaradana's son, Frank, is also important in her son's life but he is more in the role of a brother than in the role of an older role of an uncle or father. If her son were to lose Mr Goonewaradana, she said, he would lose a significant part of his life.

Ms Richardson also wrote of the voluntary work that Mr Goonewaradana gives to other members of the community. She referred to his helping individuals and families who are less fortunate than others. Mr Goonewaradana, she said, is highly regarded in the Sri Lankan community in Adelaide. Ms Richardson concluded by saying that "… Kuma is a kind, honest and sincere man with a wonderful community spirit …" (T documents, page 118)

Mr Murray Young

Mr Young is retired but undertakes voluntary work in the community. Among others, he is the Treasurer of the Blind Welfare Travel Club, the Treasurer of the Christian Fellowship for the Blind and Secretary of the Polio Social Club of South Australia. He came to know Mr Goonewaradana through his youngest daughter. Mr Goonewaradana would assist Mr Young's late wife. She had suffered from poliomyelitis and Mr Goonewaradana would do jobs for her. Since her death, he extended his assistance to him and his family. In his letter dated 19 February, 2001, Mr Young commended Mr Goonewaradana's work with the Sri Lankan community, the church and the disabled. His knowledge of his work in the Sri Lankan community was dependent on what Mr Goonewaradana had told him.

Mr Young said that he helped him to establish a gardening round. He did so by lending Mr Goonewaradana tools and the use of his trailer with a cage. Mr Goonewaradana had flyers printed and distributed them all over the district. At first, Mr Young and he worked together but Mr Young gradually let Mr Goonewaradana take over his clients. At the same time, Mr Goonewaradana was working in a restaurant at night. In his view, Mr Goonewaradana is not a person "to sit back and be a dole bludger". He is the sort of person that Australia needs and is a responsible person.

Sri Lankan students

Three Sri Lankan doctors, Dr Kodifuwakku, Dr Lekamge and Dr Narangoda, wrote a letter of support dated 10 March, 1991:

"We are a group of medical doctors from Sri Lanka who have come to Adelaide to undergo further specialised training and postgraduate studies.
Mr Gowinda Goonewaradana is known to us since we arrived in Adelaide. He has helped us in many ways in settling down during the initial few weeks. We also have heard from our colleagues who were in Adelaide that Mr. Goonewaradana had been very helpful to them during their stay.
It is our pleasure to say that Mr. Goonewaradana is a valuable member of the Sri Lankan community in Adelaide and he lives in harmony with the others." (T documents, page 112)

This letter is representative of a number of letters of support for Mr Goonewaradana (T documents, pages 91-152).

CONSIDERATION

Framework of Act

Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for either a sub-class 850 or 851 Resolution of Status visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 as specified by cll. 850.222 and 851.223 of Schedule 2 of the Regulations. Schedule 4 sets out the public interest criteria.

At the time that the delegate's decision was made and of this review, criterion 4001 provided that:

"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or

(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."

Section 501(1) of the Act provides that:

"The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test."

The "character test" is set out in s. 501(6), which provides that:

"For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or

(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)having regard to either or both of the following:

(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;

the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test."

For the purposes of the character test, a person has a substantial criminal record if, among others:

"(c) the person as been sentenced to a term of imprisonment of 12 months or more;
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;" (s. 501(7))

The Direction

Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act. Those directions were in force at the time that the delegate made his decision in relation to Mr Goonewaradana. After the hearing, the Minister made further directions on 23 August, 2001; Direction – Visa Refusal and Cancellation under section 501 – No.21 ("the Direction").

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."

Does Mr Goonewaradana pass the character test?

I have considered first whether, within the meaning of s. 501(7)(d), Mr Goonewaradana has been sentenced to 2 or more terms of imprisonment where the total of those terms is 2 years or more. If he does, he must be regarded as a person who has a substantial criminal record and so a person who does not pass the character test by virtue of s. 501(6). Mr Goonewaradana has been sentenced to terms of imprisonment on more than one occasion but has served only two terms (albeit concurrently) totalling 171/2 months. Two further periods, one of 6 months and one of 10 months, were suspended. If those two further periods are to be taken into account, he has been sentenced to more than 2 years imprisonment.

Whether or not a suspended term of imprisonment is taken to come within the expression "terms of imprisonment" as used in s. 201(c) was considered by Branson J in Meng Kok Te v Minister for Immigration and Ethnic Affairs (unreported, No. 1339/98, 16 October, 1998). Section 201 is concerned with the deportation of non-citizens who are in Australia for fewer than ten years and are convicted of certain crimes. Mr Meng Kok Te had been sentenced to a term of 12 months' imprisonment, of which 3 months had been suspended. Referring to Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, Branson J said that the Court in that case:

"… gave consideration to the then s 12 of the Act, which authorised the making of a deportation Court gave consideration to the then s 12 of the Act, which authorised the making of a deportation order in respect of an alien convicted in Australia 'of any other offence for which he has been sentenced to imprisonment for one year or longer.' The majority of the Court, Bowen CJ and Deane J, held that a sentence of imprisonment with hard labour for 12 months, accompanied by a direction that the plaintiff be released after three months, after entering into a recognisance to be of good behaviour for two years, was a sentence to imprisonment for one year within the meaning of the section.
At 418 their Honours said:
"There is ... much to be said for the view that a finding that the plaintiff was, for the purposes of s 12 of the Migration Act 1991 , sentenced to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. The magistrate in fact imposed that sentence of imprisonment".

Nothing suggests that the construction of the words "sentenced for a period of not less than one year" in the context of s 201 of the Act requires a different approach from that adopted by the majority of the Full Court in Drake's case in respect of s 12 of the Act as it was then. The sentence imposed on the applicant by the Melbourne County Court, following the hearing of his appeal, was a sentence of twelve months' imprisonment, albeit that three months of the sentence was suspended for twelve months. That is, the County Court determined that the appropriate sentence to be imposed was a sentence of twelve months (s 27(3) Sentencing Act (Vic)).

I do not accept that the distinction contended for by the applicant between an order for early release, on the one hand, and a suspension of part of the sentence in circumstances in which the suspended portion of the sentence is not ordered to be served, on the other, is of any present relevance. The applicant argued that although an order for early release of the type considered in Drake's case does not effect the length of the sentence for the purpose of s 201 of the Act, the suspension of a portion of a sentence does effect the length of the sentence for the purpose of s 201 of the Act provided that the suspension is not later revoked. Acceptance of this argument would involve the conclusion that a sentence, a portion of which is suspended, is not a final sentence and that its true length may only be ascertained at the determination of the period of suspension. I do not accept that the sentence imposed by the County Court was not a final sentence. In my view, it was a final sentence in the same sense as the sentence considered in Drake's case was a final sentence. Its finality was not affected by the fact that later conduct by the applicant was capable of affecting the period of actual detention to be served by him."

There is no reason to apply any different reasoning in this case and, indeed, neither party sought to do so. I have concluded, therefore, that Mr Goonewaradana has been sentenced to two or more terms of imprisonment where the total of the terms is 2 years or more. It follows that he does not pass the character test. There is no need to consider whether he does not pass that test by reason of the application of any other provision of s. 501(6).

The discretion

Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:

"…have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." (Direction, paragraph 2.2)

The three primary considerations are:

"(a)the protection of the Australian community and members of the community;

(b) the expectations of the Australian community; and
(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children." (paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Goonewaradana's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Mr Goonewaradana's conduct, I must have regard to:

"(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
(d)…
(e)…
(f)murder, manslaughter, assault or any other form of violence against persons;
(g)terrorist activity;

…" (paragraph 2.6)

In considering past criminal conduct, the Direction sets out two matters that must be taken into account:

"It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:
(a)the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

(b)the repugnance of the crime:
.crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community." (paragraph 2.7)

In assessing such matters, regard must also be had to any relevant factors put forward by Mr Goonewaradana as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.

Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …" (paragraph 2.12)

As Mrs Goonewaradana's sons are adults, it is not relevant to consider the Minister's direction in relation to children.

Should the discretion be exercised in Mr Goonewaradana's case?

As Mr Leerdam submitted, this is not an easy case. It is a case of extremes. On the one hand is painted the picture of a person who is very kind, generous and warm-hearted not only to his family and his friends but to the wider community. On the other is a much murkier picture in which Mr Goonewaradana may be discerned as a person who may have been involved to some degree in violence and the mistreatment of others. Common to both pictures is a person whom I accept on the basis of his own evidence lost his parents and his sister in sudden, violent and tragic circumstances at the hands of others. He was unable to go to their assistance and unable to return to the family home.

As to his circumstances after that time, there is little evidence other than Mr Goonewaradana's own evidence. It is true that he did not raise his alleged abduction by the Tamil Tigers until 1991 but that does not necessarily mean that he concocted it. His evidence as to the injuries that he claims were inflicted on him is supported by the medical evidence referred to by the RRT (see paragraph 25 above). His not raising it at an earlier stage could also be commensurate with the trauma he experienced but, in the absence of medical evidence, I do not propose to do more than raise that. I do accept that he was, at best, lost and overwhelmed by his circumstances.

I am satisfied that his need for money and need for a "place" led him to join the Army or the Green Tigers as the case may be, rather than any need for gratuitous violence. The latter is not supported by his conduct while in Australia. Certainly, he has been violent before but only on two occasions. In the absence of any further details, I do not consider that a conviction for resisting arrest necessarily connotes any behaviour that need be categorised as violent. There is no information as to the manner in which Mr Goonewaradana was in breach of the domestic violence order and it cannot be presumed that violence was involved. In more recent years, Ms Moore has not seen any evidence of violence in his relationship with Mrs Goonewaradana and she has been looking for it in view of the pattern of Mrs Goonewaradana's past relationships. The convictions for offences in 1991 and 1994 certainly do have connotations of violence. In each instance, however, the sentencing Judge makes a point of saying that Mr Goonewaradana has either apologised, in the case of the assault on Mr Karagiannis, or that all parties have patched up their differences. There were no hard feelings in the case of the first episode of violence. Taking into account Mr Goonewaradana's more general conduct, I am satisfied that such apologies and reconciliations are likely to be sincere.

Although I am satisfied that he joined the Army on a benign basis, I am satisfied that his activities while in it are of grave concern. The evidence regarding the nature and activities of the Green Tigers is sketchy as is Mr Goonewaradana's activities with them. He was not particularly forthcoming about those activities but did admit that he had been trained to use weapons including an AK 47. He acknowledges that he had taken people away from their villages and was aware that some were shot by superior officers. He does not acknowledge shooting or torturing such people and there is no evidence that he did so. He was uncertain whether he killed anybody at all even when he was engaged in shooting at Tamil Tigers. He claims to have left the Green Tigers when he became aware that its members were engaged in their own political ends and his life was in danger.

The RRT did not accept that Mr Goonewaradana had been a member of the Green Tigers. While not questioning its conclusion in any way and while dealing with equally unsatisfactory and fragmented evidence, I am not convinced that Mr Goonewaradana was not engaged in some activities of violence. For the reasons I have given earlier, I find that he would not have engaged in such activities gratuitously and accept that he would have done so while acting under orders of superior officers. He was clearly not happy to be engaged in what he saw as a political activity. I base that finding not only on his statement but on his subsequent behaviour in assisting others once he arrived in Australia. His nature is to help others rather than to hurt them. His unhappiness, together with his own lack of safety, was the driving force in his leaving Sri Lanka.

That brings me to his entry into Australia. I find on the basis of his own evidence that he did not operate, or have anything to do with business in Sri Lanka. He gave false information to the Department to obtain a visa to enter Australia. Once here, he worked and remained in Australia beyond the three months permitted by his visa.

I am satisfied that Mr Goonewaradana knew that he was in breach of his visa and took active steps in the early days in Adelaide to avoid the Department. In later times and putting to one side one instance in which he states that his lawyer was supposed to notify the Department of his whereabouts, he has reported his whereabouts to the authorities.

In addition to being in breach of Australia's immigration laws, I find that Mr Goonewaradana has also been found to have been in breach of Australia's social security laws. He claims that he did not know that he was making a false claim. The charges, however, were that he obtained Job Search Allowance in various periods knowing that he was not entitled to it as he was not entitled to be in Australia. The offences were contrary to s. 1347(b) of the Social Security Act 1991, which provides that a "… person must not knowingly obtain … payment of an instalment of a social security payment under this Act" (s. 1347(b)). I cannot make a finding contrary to the Magistrates Court conviction and inherent in Mr Goonewaradana's being convicted is that he knowingly committed the offences. This follows from the views of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ) where it said (at 244-245):

"40 The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
41 There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
42 Counsel for the respondent submitted that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence. We reject the submission and, as explained later, we do not understand Davies J to have gone so far in Beckner [v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49].
43 Wood J found that it was the respondent who inflicted a stab wound to the heart that was a direct cause of the death of the Deceased. His Honour considered that the jury, having rejected the respondent's statement from the dock must, by their verdict, be taken to have accepted the evidence of two police officers. His Honour considered that the jury verdict in that regard was entirely understandable. He went on to say:
"To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence."

44 It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts. It may be that his Honour would still have sentenced the respondent to imprisonment for a period of not less than one year. Be that as it may, the basis upon which he imposed the sentence that satisfied the requirements of s 201(c) of the Act is impugned by the reasoning of the Tribunal.
45 To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
46 While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.

47 We do not accept the submission of counsel for the respondent that Beckner stands as authority to the contrary of the foregoing. In Beckner, Davies J was simply recognising that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing Judge will assume greater importance before the Tribunal, and that the Tribunal should allow further evidence to be given in relation to those matters to allow them to be considered more fully. His Honour did not say, nor do we take him to have meant, that the Tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.
48 In so far as the Tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under section 200, the Tribunal erred in law."

Mr Goonewaradana's conduct in relation to his entry and stay in Australia and his claiming social security payments in the early days reveals a disposition at that time to place his personal interests above his wider duty to the Australian community to abide by the law. In the context of the Act, this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met.

Mr Goonewaradana's early behaviour also showed a tendency towards solving his problems with some degree of force if not violence. This was apparent in relation to the 1991 offences. On his explanation of those offences, they were connected with his wishing to avoid coming to the notice of the Department. That explanation does not accord with the finding of historical facts upon which Judge Pirone based his sentence and by which we are bound. Whichever is the truth of the matter, both explanations reveal the same disposition. The 1994 offences are a little different. Again, there was a discrepancy between Mr Goonewaradana's explanation and the finding of historical facts upon which Judge Hume based his sentence. Again, I am bound by the facts as found by the court. Both explanations reveal a person who is prepared to resort to physical force in order to achieve what he thinks is the appropriate outcome rather than a person who is prepared to seek a non-violent means of resolving his problems.

The term of imprisonment imposed in relation to Mr Goonewaradana's first conviction was quite lengthy but must be considered against the facts as found by Judge Pirone. Important, but not alone, among those facts was Mr Goonewaradana's having been held in custody for the previous 111/2 months and there being no satisfactory explanation of his being detained. In view of that, a term of imprisonment of 111/2 months cannot be regarded as necessarily reflecting the seriousness of the offence so much as reflecting to some extent at least on the extended period in custody. That was a matter that clearly concerned Judge Pirone. Judge Hume, on the other hand, did not appear to have been made aware of the extended period of custody and regarded Mr Goonewaradana's term of his imprisonment for his first offences as indicating that they were serious. Even so, he did not see fit to impose a longer term of imprisonment than six months.

In view of the nature of all of his offences and the sentences that have been imposed for them, they cannot be treated as insignificant. They must, however, be seen in the light of his conduct since he married his wife. Since then, Mr Goonewaradana has committed only one set of offences and they were connected with his attendance at a Christmas party where he worked at the time. They were connected with alcohol. Mr Goonewaradana has not re-offended since December, 1997. That offence was some 31/2 years after his previous offence of common assault in 1994 and over six years after his first offences in 1991. The circumstances of the breach of domestic violence order are not known. Even taking that into account, there has been a pattern of widely spaced assaults. As I said earlier, each of the first two was attended either by an apology or by a settling of differences by non-violent means. There is no evidence that the third was attended by any aggression or fight as such. Taking all of Mr Goonewaradana's offences into account and the sentences for them, I am satisfied that he does not present with a pattern of a person who has a penchant for violence or who loses his self-control with ease. Indeed, the pattern suggests that he is maintaining his self-control better than he has in the past. This is supported by my finding that he has not displayed aggression to his wife. I find also that Mr Goonewaradana has continued to drink alcohol and that is apparent from the evidence of Dr Neroni. There is no evidence to suggest, however, that his behaviour is affected by it in recent times.

Mr Goonewaradana' past behaviour in relation to his breach of the migration laws, his offences of dishonesty in relation to the social security laws and his displays of violence in Australia and his involvement in the Army in Sri Lanka must also be seen in the wider context of his earlier life and of his life in Australia. His life in Sri Lanka became one of violence after violence was wrought upon his family. That does not excuse it but puts in context both his attempt to flee from it and the actions that he felt compelled to take to flee it. He has tempered his initial tendency to resolve matters through violence. Not only has he done that but he has become an invaluable member of the community. His value is reflected not only in his voluntary work for his friends, his friends' children and the wider community but to his wife and her family. His work is not addressed simply to meet physical needs of others but also their emotional needs. He has been unstinting in his time and the care and concern that he has shown to others. He is, as in the case of Ms Richardson's son, providing a good role model. I base that finding on the evidence of Ms Richardson, who not only holds a responsible position in the community as a Community Youth Worker but who also impressed me as a person who is a very sensible and down to earth person.

In no case is his nature apparent than in the case of his own wife. Based on the evidence of Ms Moore and of Dr Neroni, I find that she was not expected to be discharged from care at any time in the foreseeable future. Yet, the care and devotion that Mr Goonewaradana has shown her has led to her not only being discharged from care but starting to gain confidence. This is a contribution to her well-being and to the community which is concerned that its members are fit and well. In a more mercenary sense it is a great contribution to the community that does not have to fund the care it previously gave to Mrs Goonewaradana when she was hospitalised and in need of regular nursing services. If he were to be required to leave Australia, I am satisfied that Mrs Goonewaradana's health would deteriorate significantly to the extent that she would again require frequent medical treatment and regular hospitalisation. Not only would this be a tragedy for her, her medical treatment and hospitalisation would lead to significant and ongoing expenditure from the public purse. I make that finding on the basis of the evidence of Dr Neroni and Ms Moore and also on that given by her father as to the pattern of her past illness and her likely reaction to Mr Goonewaradana's not being able to live with her. It was not suggested by Mr Leerdam that Mrs Goonewaradana should go with Mr Goonewaradana to Sri Lanka and I am satisfied that it would not be a viable option in view of her condition. Her recovery has been dependent upon the presence of her husband in her life. His presence, however, has not effected a cure of her condition. It has brought her relief from her suffering while he is with her. In recent weeks, when he has not been with her but in Australia, she has again required medical treatment. The medical treatment is not as extensive as that she has previously required but on the basis of the medical evidence I am satisfied that it would become as extensive were Mr Goonewaradana to be removed from Australia.

This is a case in which the discretion should be exercised in favour of Mr Goonewaradana. He is a man who has been involved, perhaps at the periphery, in actions of which the Australian community would not approve. He has breached its laws in an effort to escape actions in his past of which he also did not approve. He has been involved in some violence but, given his past, his experiences in Australia and the circumstances of the offences, it was no more than might be expected of someone in his situation. Over time in Australia, he has grown or, perhaps, allowed his true nature to flourish. His incidents of violence are well spaced and he has shown no indication of being likely to engage in acts of further violence. He is in a stable family situation and has been for several years. He has shown a depth of compassion, understanding and caring to others in the community that is remarkable. Whatever his past in Sri Lanka, this is a person who has earned an opportunity to be accepted into the Australian community rather than a person from whom the Australian community should be protected. He is a person whose behaviour in recent years indicates that he will enrich it rather than take from it.

If it were not for his considerable contribution to the community, I might well have reached a different decision. As it is, I do not consider that refusing Mr Goonewaradana a visa on the basis of his not being of good character will have any deterrent effect upon others seeking to come.

For the reasons I have given, I

1.set aside the decision of a delegate of the Minister dated 2 July, 2001; and
2.substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501 of the Migration Act 1958.

I certify that the one hundred and eleven preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed:          ..............................……..
  Clancy Riddiford (Associate)
Date/s of Hearing  7 and 8 August, 2001
Date of Decision  5 September, 2001
Counsel for the Applicant            Mr N Swan
Solicitor for the Applicant           Denise Rieniets & Associates
Counsel for the Respondent        Mr L Leerdam
Solicitor for the Respondent        Sparke Helmore

[2001] AATA 762

5 September 2001