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

[2020] AATA 4670

Guruge and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4670 (23 November 2020)

Division:GENERAL DIVISION

File Number:          2020/5373

Re:Chan Guruge

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:23 November 2020

Place:Melbourne

The Tribunal decides to affirm the decision under review.

[sgd]........................................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – citizen of Sri Lanka – applicant held Class BC Subclass 100 Partner visa – visa mandatorily cancelled under s 501CA on basis applicant convicted of offence carrying sentence of 12 months imprisonment or more – applicant concedes unable to pass character test – consideration of whether another reason under Act to revoke mandatory cancellation of applicant’s visa – Ministerial Direction No. 79 – primary considerations – minor child in Australia but significant breaks in contact – other considerations – admissions of misleading statements to Department – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, s 33A
Migration Act 1958, ss 499, 501, 501CA

Cases
DPP v Guruge [2019] VCC 2015
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Maxwell v The Queen [1996] HCA 46; 184 CLR 501

Secondary Materials

Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

23 November 2020

1. The Applicant, Mr Chan Andrew Grero Guruge, is a 38-year-old man who is a citizen of the Democratic Socialist Republic of Sri Lanka.  He most recently arrived in Australia in August 2017 as the holder of a Class BC Subclass 100 Partner visa.  This is the visa which was cancelled by a delegate of the Respondent on 17 January 2020.  Mr Guruge was notified of the decision to cancel his visa on 17 January 2020 and invited to make representations as to why the mandatory cancellation of the visa should be revoked.  Mr Guruge made representations and on 31 August 2020 a delegate of the Respondent decided not to revoke the mandatory cancellation.  Mr Guruge was notified of that decision and acknowledged receipt of the decision on 1 September 2020.

2. Mr Guruge was advised that he could ask this Tribunal to review the decision not to revoke the mandatory cancellation of his visa. He availed himself of that entitlement on 2 September 2020. A hearing was held on 9 and 10 November 2020 by videoconference under section 33A of the Administrative Appeals Tribunal Act 1975, owing to the current public health emergency.  Mr Guruge represented himself, made submissions and answered questions asked of him by Ms Olivia Hicks, representing the Respondent, and asked of him by the Tribunal.  The Tribunal appreciates the assistance given by an interpreter in the Sinhalese language, although the Applicant spoke in English and on the second day of the hearing advised that he was content to continue without an interpreter.

3. The Tribunal took into evidence a bundle of documents given by the Applicant to the Respondent (Exhibit A1); a letter from the Applicant lodged on 8 October 2020 (A2); a statement of Asoka Neelamanie Hettiarachchi (A3); a statement of Guruge Anton Michael Grego (A4); a statement of Guruge Chamalie Anjaline Grero (A5); a prisoner education summary report (A6); a miscellaneous bundle of documents (A7); a document titled ‘Explanation for my Criminal Record’ (A8); a finalised written statement of the Applicant (A9); a Government of Sri Lanka dual citizenship for the Applicant’s son (A10); an inventory (A11); and an email and videos relating to the Applicant, his son and his wife (A12).

4. The Tribunal also took into evidence two volumes of documents lodged by the Respondent, labelled as ‘G’ documents and Supplementary G (‘SG’) documents.  The Tribunal also had regard to a Statement of Facts, Issues and Contentions lodged by the Respondent on 26 October 2020.  At the conclusion of the hearing, the Tribunal reserved its decision.

   LEGISLATIVE FRAMEWORK

5. Section 501(3A) of the Migration Act 1958 (the ‘Act’) is a mandatory cancellation power. It provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

6. A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act.

7. If the Tribunal finds that Mr Guruge does not pass the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel his visa should be revoked.  In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation.  If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, 345 [38]).

   Evidence in relation to the character test

8. Before the Tribunal (GD, p 14) was an Australian Criminal Intelligence Commission report stating that on 9 December 2019 Mr Guruge was convicted for the offence of Intent to expose emergency worker to risk by driving and a base prison sentence of 12 months was imposed.  On the same day, the Applicant was also convicted of the following offences: Theft of a motor vehicle (sentenced to 8 months’ imprisonment, aggregate of 3 months, served concurrently); Drive whilst disqualified (6 months’ imprisonment, aggregate of 2 months, served concurrently); Handling stolen goods (6 months’ imprisonment, aggregate of 2 months, served concurrently); Negligently deal with the proceeds of crime (3 months’ imprisonment, aggregate of 1 month, served concurrently); and Commit indictable offence while on bail (1 month imprisonment, served concurrently).  The aggregate sentence imposed by the Court was 20 months’ imprisonment with a non-parole period of 14 months.

   Finding in relation to character test

9. On the evidence before me, the Tribunal finds that Mr Guruge does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections 501(6)(a) and (7)(c), because I am satisfied that he has been sentenced to a term of full-time imprisonment for a period of 12 months or more. I note that both parties conceded that the Applicant did not pass the character test set out in the Act.

10. The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of Mr Guruge’s visa should be revoked.

    Direction under s 499 of Act – Direction No. 79

11. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.

12. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

13. The Direction includes the following principles at paragraph 6.3:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

14. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’  Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’

15. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

    IMMIGRATION AND VISA HISTORY

16. Mr Guruge first arrived in Australia in June 2008 on a student visa.  He was married at that time to a Sri Lankan citizen and had one child born in 2007.  A second child was born in 2008, and Mr Guruge returned to Sri Lanka for the birth.  His wife joined him in Australia with their two children in 2009.  However, that marriage broke down and she returned to Sri Lanka with their children in 2010 and obtained an ex parte divorce (A3).  Mr Guruge in evidence stated that his first wife subsequently remarried and emigrated to the United States of America where she lives with the two children, and he has no contact with them.

17. In 2012 the Applicant was advised that his student visa was shortly to expire.  He had befriended an Australian citizen in Melbourne and the friend’s sister (‘LW’) offered to marry him with a view to him obtaining a spousal visa.  Mr Guruge was frank in his evidence that this marriage to LW was a contrivance.  The Applicant subsequently commenced a relationship with LW’s half-sister, ‘EW’, who was then aged 15 (SGD, p 666).  EW became pregnant to Mr Guruge and gave birth to their son, ‘KS’, in September 2012.  KS is now 8 years of age.

18. In August 2012 the Applicant appeared in court on two occasions and was convicted of certain offences.  On the second appearance he was placed on a 12-month Community Correction Order.  By this time his student visa had expired, and he was issued with a Criminal Justice Stay visa and placed in immigration detention by the Department responsible for Immigration (the Department).

19. In July 2013 Mr Guruge was voluntarily removed from Australia.  He had applied for a partner visa and associated bridging visa, which was refused in September 2012.  The (then) Migration Review Tribunal affirmed the refusal of the bridging visa.  In October 2012 Mr Guruge also applied for a protection visa and associated bridging visa.  The bridging visa was refused on 30 October 2012 and the protection visa was refused on

    
    

    7 December 2012.  In March 2013 the (then) Refugee Review Tribunal affirmed the decision of the Minister’s delegate to refuse the protection visa.

20. In September 2013 EW and KS joined the Applicant in Sri Lanka and lived with him there for almost two years.  In January 2015 Mr Guruge and EW married there.  EW and KS returned to Australia in August 2015 (SGD, p 666).  In March 2015 the Applicant applied for a provisional partner visa offshore, which was granted in August 2017.  Later in August 2017, Mr Guruge re-entered Australia.  On arrival he said he discovered that EW had commenced a new relationship with another man.  Mr Guruge said that he initially stayed with both his friend, EW’s brother, very briefly with EW, and with his mother-in-law, until he was arrested and taken into custody.

    CRIMINAL HISTORY

21. Apart from the convictions in December 2019 by the County Court, Mr Guruge has an extensive criminal history in Australia.  His first appearance before the Courts was at Sunshine Magistrates’ Court in August 2012.  He was convicted of the following offences: Attempt to commit indictable offence; Dishonestly assist in the retention of stolen goods; and Use a false document to prejudice another.  He was fined, with conviction, a total of $1,000.

22. Mr Guruge was back before the same Court later in August 2012 and convicted of the following offences: Use unregistered motor vehicle on a highway; Fail to answer bail; Drive whilst authorisation suspended; Careless driving of a motor vehicle; Theft of a motor vehicle; Drive in a manner dangerous; Possess dangerous article in a public place; and Possess any thing without authorisation in police gaol.  For this group of offences, he was placed on a Community Correction Order for 12 months and required to perform 75 hours of community work.

23. In January 2013 Mr Guruge again was before the same Court and was convicted of the offence of Dishonestly undertake in retention of stolen goods.  He was fined $2,000.

24. On 9 February 2018, the Applicant was before the Melbourne Magistrates’ Court. He was convicted of the offences of Possess suspected stolen goods; Posses methylamphetamine (two charges); Unlicensed driving; Use unregistered motor vehicle on a highway; Use vehicle over 14.5 GVM tonnes not compliant with regulations; Possess cannabis; Dishonestly undertake in retention of stolen goods (two charges); Negligently deal with proceeds of crime (two charges); Commit indictable offence whilst on bail (two charges); and Handle/receive/retention of stolen goods (three charges).  He was placed on a further Community Corrections Order for 12 months and required to perform 125 hours of community service.

25. On 8 May 2018, Mr Guruge appeared before the Melbourne Magistrates’ Court and was convicted of the following offences: Burglary; Theft of a motor vehicle; Theft of a bicycle; Theft (two charges), Careless driving of a motor vehicle; Dishonestly undertake in the retention of stolen goods; Commit indictable offence whilst on bail; Theft from a motor vehicle; and Negligently deal with proceeds of crime (two charges).  He was further convicted of the offences of Possess methylamphetamine; Go equipped to steal/cheat (two charges); Possess controlled weapon without excuse; Dishonestly undertake in the realisation of stolen goods; and Handle/receive/retention of stolen goods.  For this group of offences Mr Guruge was sentenced to an aggregate of 51 days’ imprisonment and a Community Service Order of 12 months was imposed.

26. On 15 February 2019, before Broadmeadows Magistrates’ Court, the charge of Contravene Community Correction Order was found proven, as was a breach of a Community Correction Order earlier imposed, and the Applicant was sentenced to seven days’ imprisonment.  He was further convicted on that date of the following offences: Possess suspected stolen goods; Posses methylamphetamine (two charges); Unlicensed driving; Possess cannabis; Dishonestly undertake in the retention of stolen goods (two charges); Negligently deal with the proceeds of crime (two charges); Commit indictable offence whilst on bail (two charges); Handle/receive/retention of stolen goods (three charges); Use unregistered motor vehicle on a highway; Use vehicle over 14.5 tonnes not compliant with regulations; Possess methylamphetamine; Possess ecstasy (MDMA/MDA/MDEA/MDA); Possess drug of dependence (not named); Traffic methylamphetamine; Have article of disguise with unlawful intent; Go equipped to steal/cheat; Deal in property suspected proceeds of crime (four charges); Possess prohibited weapon without exemption or approval; Handle/receive/retention stolen goods; Retention of stolen goods (three charges); Possess housebreaking implements (two charges); Contravene Family Violence Interim Intervention Order; Commit indictable offence whilst on bail; Theft from shop (Shopsteal); Dishonestly undertake in the retention of stolen goods; Enter a private place without authorisation or excuse; and Theft of a motor vehicle (two charges).  For this group of offences Mr Guruge was sentenced to an aggregate of 175 days’ imprisonment. 

27. On the same date the same Court convicted the Applicant of the offences of: Contravene Community Correction Order; Burglary; Theft of a motor vehicle; Theft (2 charges); Possess methylamphetamine; Dishonestly undertake in the retention of stolen goods; Go equipped to steal/cheat (two charges); Commit indictable offence whilst on bail; Theft from motor vehicle; Dishonestly undertake in the realisation of stolen goods; Negligently deal in the proceeds of crime (two charges); Possess controlled weapon without excuse; and Handle/receive/retention of stolen goods.  For this group of offences, he was sentenced to an aggregate of 51 days’ imprisonment.

1. On 9 December 2019, the Applicant was before the County Court in Melbourne and convicted of the offences set out earlier in these reasons (at paragraph 8).  On 16 January 2020, at Broadmeadows Magistrates’ Court, he was convicted of further offences: Go equipped to steal/cheat; Possess methylamphetamine; Theft of a motor vehicle; Handle/receive/retention of stolen goods (four charges); Deal in property suspected the proceeds of crime (eight charges); and Handle/receive/dispose of stolen goods (three charges).  He was sentenced to an aggregate of 3 months’ imprisonment.  On 8 May 2020, Mr Guruge appeared at the Moorabbin Magistrates’ Court and was convicted of the office of Theft, and sentenced to 3 days’ imprisonment, to pay $100 compensation.

   Evidence of the Applicant

2. Mr Guruge said that his parents and sister live in Sri Lanka and that he had a supportive family.  He spoke about his first marriage and his two children from that marriage, now aged 13 and 14, and that he had had no contact with them since 2010.

3. In terms of EW, Mr Guruge confirmed they were still married but separated, and his wife has a new boyfriend.  He said that he was trying to rekindle their relationship in the best interests of their son, KS, but EW had obtained a Family Violence Intervention Order which stipulated no contact between him and EW or KS.  The Applicant said he had that Order amended so that he could have at least telephone or video contact with KS but had so far been unsuccessful in contacting his estranged wife.

4. Mr Guruge was taken through his immigration history.  He said he and his first wife (‘TW’) had problems in their relationship before their second child was born in 2008.  Mr Guruge said he left Australia to be with TW when the child was born. He said that TW then came to Australia with the children without him knowing she planned to, and that he ‘didn’t mean for her to come’ to Australia.  He said that he had rented a room at that time and had no accommodation for TW or the children; his wife stayed with her sister who had already settled in this country.  TW later returned to Sri Lanka and divorced the Applicant.

5. Mr Guruge agreed that when his student visa expired in March 2012, he became an unlawful non-citizen.  He said he went into immigration detention.

6. In terms of his first appearance before the Courts, Mr Guruge said his brother-in-law had found a wallet and they both went to a telephone shop to buy a phone. They produced a driver licence and other identity documents from this wallet to obtain a phone. The Applicant said the police arrived and ‘I put my hand up’ when it was his brother-in-law who had found the wallet and presented the documents.  He said his brother-in-law was too young, which is why he took responsibility for the offending.

7. Mr Guruge said that in August 2012 when he first appeared in Court ‘things started to go down hill’.  He said he was in a car as a passenger when police came and checked the registration of the car.  It was a stolen car and a baseball bat was in the car.  Mr Guruge said he did not know the car was stolen and ‘I took responsibility because I already had a criminal record’, and his lawyer told him to plead guilty so that he would be released from custody.

8. In terms of the 2013 convictions for stolen goods, Mr Guruge said he was in immigration detention and was charged because a stolen boat was in the driveway of a house he had been occupying.  He said other people lived there.  When asked directly by the Tribunal why he pleaded guilty, the Applicant said his lawyer told him ‘there is no way you can say it [the boat] wasn’t yours’.  Mr Guruge said he was ready to return to Sri Lanka so pleaded guilty and was fined.

9. Mr Guruge said that when LW offered to marry him so he could get a spouse visa, he was already in a relationship with her half-sister, EW.  He said that LW then told the Immigration department officers it was not a fake marriage because they really got married.  Mr Guruge then varied his evidence to say that, not long after this marriage, his relationship with EW then started.  He agreed with the Respondent’s lawyer that he never was in a genuine relationship with LW.

10. Mr Guruge said that he believed EW was aged 16 when he commenced a sexual relationship with her, but he accepted she could have been aged 15.  He told the Tribunal that her parents told him she was 18.  He said that he attended an 18^th birthday party on the day when she was really turning 16.  Mr Guruge agreed that EW was aged 15 years and nine months when she gave birth to KS.

11. During the period when he applied for a protection visa, which was rejected and he then appealed to the Refugee Review Tribunal, the Applicant said that EW brought KS to the detention centre each day.  He said she eventually encouraged him to agree to a voluntary departure so that he would be released from detention, and that she would then follow him to Sri Lanka.

12. Mr Guruge agreed that he married EW at the beginning of 2015 when she had attained the age of 18.  When asked directly by the Tribunal when he divorced LW, the Applicant said that he did not recall, and he did not remember getting divorce documents from the Family Court of Australia in relation to dissolving his marriage to LW.  When asked whether he could still be married to LW, Mr Guruge responded “I’m not sure, to be honest.”  On the second day of the hearing Mr Guruge said he now remembered his mother-in-law bringing divorce papers to the detention centre which he signed and had witnessed, but he did not know whether they were ever lodged.

13. Mr Guruge lived with EW and KS in Sri Lanka for almost two years.  During that time the Applicant said he did not take any illicit drugs and they visited tourist sites, including holidaying in Singapore.  Mr Guruge was referred toa copy of a Department letter to him (GD, p 72) which warned him that future criminal offending may jeopardise any visa he may hold.  Although the copy before the Tribunal had a blank signing sheet for the recipient, Mr Guruge said he remembered signing it, but he did not particularly remember the contents because ‘we applied for a few visas to get back to Australia’. EW returned to Australia with KS partly because she had experienced medical problems and had been admitted to hospital for a period, and it was thought she would get better medical care in Australia.  In addition, Mr Guruge said she had trouble with the food in Sri Lanka.

14. Mr Guruge agreed that he returned to Australia in August 2017 but did not know that EW had embarked on a new romantic relationship because, if so, ‘there would be no reason to come back’.  When pressed whether, if he knew EW had re-partnered, would he have come back, Mr Guruge said the main motivation was his son, and that telephone records he had provided showed he was talking to them every day and that he and his parents had also been sending EW money to support her and their son.

15. When asked why he did not inform the Department he was no longer in a spousal relationship with EW, Mr Guruge said that his partner visa was a permanent visa and that he was still trying to work things out with his wife.  He said he did live with her for a few days, under a week, and she told him he had to move out.

16. In terms of his drug habit, Mr Guruge said he first started using methylamphetamine in 2012.  He had been using cannabis but stopped using that when he moved on to using ‘ice’.  The Applicant confirmed that he was spending around $600 to $700 a week on drugs (SGD, p 564) and that he also had a gambling problem.  He openly admitted he stole items, including motor vehicles, in order to get money for drugs.

17. Asked why he started using methylamphetamine in 2012, Mr Guruge said he was stressed by the expiry of his visa and LW telling the Department that their marriage was fake.  He knew he was likely to be deported.  He said that he did not take any drugs other than alcohol when he returned to Sri Lanka.

18. When asked about several breaches of Community Correction Orders, Mr Guruge said he could not recall all the details because he was highly affected by ‘ice’ and had moved out of accommodation with his mother- and brother-in-law and was ‘couch surfing’.  In respect of the trafficking charge, Mr Guruge said it had been said that he had four bags of ‘ice’ when arrested but it was actually a mixture and not ‘ice’ and that because of the number it elevated the offence to one of trafficking.  He then admitted that he did ‘occasionally sell’ but ‘mostly’ the drugs were for his own use.

19. Asked about a conviction when he stole a refrigerated vehicle that the owner had left idling outside a shop whilst he made a delivery, Mr Guruge said he was desperate at the time.

20. In terms of breaching a Family Violence Intervention Order (the Order), Mr Guruge said his parents had sent out some gifts for KS and he got someone to deliver it to EW.  He waited outside and afterwards sent a text to EW to ask if she had received the parcel.  He said he knew he breached the conditions of the Order but was only trying to provide a gift to his son.

21. Asked about an accusation by EW (SGD, p 206) that he had been ‘abusive towards me’ and ‘my son’, Mr Guruge said that he had not been abusive and that EW’s new partner had told her to take out the Order and she had stated this in order to obtain the Order.  He admitted that he had told EW “you are not taking my son out of my life.”

22. In terms of the most serious offence of which he has been convicted, Mr Guruge agreed that he had driven a van towards a police officer.  He said he was highly affected by drugs at the time and was driving the van in a large car park.  He said the police officer was walking towards the car park while he was exiting and agreed the officer asked him to stop.  He said, ‘I can’t remember anyone jumping out of the way.’

23. Asked why he had pleaded guilty, Mr Guruge said his lawyer advised him to plead guilty to the offence or otherwise other charges with more serious penalties may be put.  Mr Guruge said there were times when he had driven knowing his licence was suspended, but, on this occasion, he had been bailed from the police station earlier and as they saw him driving, he thought it was ok for him to drive.

24. Mr Guruge was asked about various courses he has undertaken in prison and why he had not completed a drug and alcohol course offered.  The Applicant said that, because of the length of time he had to serve, he could not do the more major course, but he had done the shorter courses.  Asked about a shiv found in his mattress in his prison cell, Mr Guruge said it was not his, but he was told if he accepted responsibility he would be fined, which is what occurred.  He said he shared the cell with another inmate who was about to go to court or be deported.

25. Mr Guruge said that on one occasion he had been admitted to the Northern Hospital psychiatric unit for a period of 17 days and had been told he had Post-Traumatic Stress Disorder (PTSD) and a drug-induced psychosis, but that he had been released into the community after that stay.

26. Mr Guruge said he knows how to stay away from drugs now.  He intended, if allowed to stay in Australia, to get money from his parents and get a house here and would obtain a job.  He said, having completed a relevant course while in prison, he had looked into obtaining a job in traffic management in the mining industry, and wanted to go into this sector because there was constant random drug testing, whereas there is not routine drug testing in the hospitality industry, where he previously had briefly worked in Australia.  He said he would return to Sri Lanka and sell some land owned by his parents and then have those proceeds.  He thought this would take some weeks but not much longer and then he would return and try and resume contact with KS.

    CONSIDERATION OF THE DIRECTION

27. The Tribunal now turns to apply the provisions of Part C of the Direction.

    Primary consideration: Protection of the Australian community (paragraph 13.1)

28. The Direction states that when considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community.  Mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    The nature and seriousness of the conduct (paragraph 13.1.1)

29. This part of Part C of the Direction requires the Tribunal to have regard to certain factors.  They will each be listed and considered with reference to Mr Guruge’s criminal offending.

30. (Paragraph 13.1.1 (a))The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously:  There was no evidence before the Tribunal that Mr Guruge has been convicted of any sexual crime.  The offences contained in the Australian Criminal Intelligence Commission report ranged across driving offences, drug offences, including trafficking offences, many property offences and a significant number of offences where the Applicant had not complied with orders made by the Courts.

31. (Paragraph 13.1.1 (b)) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed:  The list of offences includes breaches of court-imposed orders designed to protect, in this case, the Applicant’s estranged wife and son by prohibiting, and later limiting, the ability of Mr Guruge to have contact with them.  Although EW stated that the Applicant had been abusive towards her, Mr Guruge’s evidence was that she said this so that the Court would make a Family Violence Intervention order.  There is insufficient evidence before the Tribunal to say whether Mr Guruge has ever been violent towards EW or KS.

32. (Paragraph 13.1.1 (c)) The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious:  There is no evidence before the Tribunal of any specific offences against elderly or disabled persons.  The most serious offence of which Mr Guruge has been convicted relates to his driving a motor vehicle at a police officer on duty who was signalling for him to stop.  That comes into the category of a crime against a government official in the performance of their duties.  In her sentencing remarks in relation to that offence (for which Mr Guruge pleaded guilty), on

    
    

    9 December 2019 Her Honour Judge Hogan said (GD, p 19-20):

    The circumstances of your offending are contained in the summary of prosecution opening (Exhibit “A”).  On 9 March 2019, a security guard at ALT Towers in Travancore observed you sitting in a white Kia van with Queensland registration plates, 204XXA.  Those registration plates belonged to a different vehicle owned by one [person’s name redacted].  This vehicle had been left parked in a car park for approximately 10 weeks and, on 9 March 2019, the owner had reported that his registration plates were missing.  The registration plates are the subject of Charge 1, handling stolen goods.

    The security guard at ALT Towers had noticed you lurking around the car park in the van at 9.30 pm and, when you had not left by 10.30 pm, he asked you to leave and took a photograph of you.  At 12.40 am he again observed you in the car park and called “000”.  At 1.40 am on 10 March 2019 two police officers, Constable Williams and Constable Thompson, arrived at the car park dressed in police uniform and wearing high visibility vests.  The security officer directed them to the car park.  As the police officers arrived at the entrance to the car park, they noticed you driving the Kia van in their direction at low speed.  Constable Williams directed you to stop.  He was standing on the front passenger side of the vehicle you were driving and told you “Police. Stop vehicle now.”  Constable Thompson was standing in the middle of the car park driveway approximately 15 metres from the front of the vehicle you were driving.  He instructed you to stop by holding his right arm in the air.  You then accelerated towards Constable Thompson who was obliged to take evasive action by jumping quickly out of the path of the vehicle in order to avoid being struck.  You made no attempt to stop and accelerated out of the car park.  This is the conduct comprising Charge 2, intentionally exposing emergency worker to risk by driving.  Police attempted to pursue you and located you approximately five minutes later. They activated their lights and sirens but you, again, accelerated away and they lost sight of you.

    On 13 March 2019, workers at the Melbourne Market, Epping, telephoned police as they were concerned that you were drug-affected.  When police arrived they found you asleep in a white Mazda utility, registration 1HN-6RY.  The previous day the owner of the Mazda utility had reported it stolen.  The owner had been completing a delivery in the city and, whilst doing so, had left his car unlocked with the key in the ignition.  He returned to find his vehicle missing.  These facts comprise the basis for Charge 3, theft of a motor vehicle.

    When police searched the Mazda utility, they located a 130W Rotary tool kit, and an AEG power drill.  These items did not belong to the owner of the utility.  They are the basis for Charge 4, negligently dealing with the proceeds of crime.

33. Her Honour went on to say that Mr Guruge had appeared before the Broadmeadows Magistrates’ Court in February 2019 and his driver licence had been cancelled and he had been disqualified from driving for three months, so that when police observed him in the car park on 10 March 2019, he was driving during a period of disqualification.

34. The Applicant’s most serious offence therefore falls squarely into the category of offending which decision-makers are to regard as serious, set out in this part of the Direction.  In his evidence, the Tribunal was troubled that while on the one hand he said he was heavily affected by drugs at the time of the offence and did not remember all the details, Mr Guruge, while agreeing the police officer had signalled to him to stop the vehicle, then sought to suggest that he was not necessarily driving at the officer, that the driveway was wide and that he could not remember anyone jumping out of the way.  This is at odds with Mr Guruge’s plea of guilt for this offence, which, as has been made clear by the High Court in (Maxwell v The Queen [1996] HCA 46; 184 CLR 501) means that the person making the plea admits all the elements of the crime. It seems to the Tribunal that this was some attempt to minimise, or at least try and put a better gloss on the facts of the offence. What the Judge said in sentencing (GD, p 29) was:

    The gravity of this offence is reflected by the maximum penalty of 20 years’ imprisonment assigned to it.  Police have a difficult enough job without being attacked in the course of their duty.  To drive a motor vehicle, which can be a powerful weapon, in the direction of a stationary human being who is trying to do his duty is obnoxious behaviour.  You particularly put Constable Thompson’s safety at risk.  In his statement made on 19 June 2019 he states that he was approximately 15 metres in front of your vehicle and you approached him at a speed of approximately 20 kilometres per hour notwithstanding that he was clearly signalling you to stop.  You put him in fear of being struck by your vehicle such that he needed to take evasive action by jumping approximately 2 metres to his right to get out of the way.  He landed on his feet and narrowly avoided being hit by your vehicle.  In your endeavour to escape detection you have intentionally exposed the police officers to risk, although I accept that the other police officer, First Constable Williams, was not exposed to the same level of risk as Constable Thompson.

1. The Judge accepted that Mr Guruge’s primary objective was to escape police, but he did so in such a manner that, but for the quick reaction of the police officer, nasty injuries may have been caused to the officer.

2. The Tribunal accepts that drugs may well have played a part in Mr Guruge’s conduct that day, but this was a most serious offence, as is clear from the maximum penalty provided by the Victorian Parliament for it.

3. (Paragraph 13.1.1 (d)) The sentence imposed by the courts for a crime or crimes. (Paragraph 13.1.1 (e)); The frequency of the Applicant’s offending and whether there is any trend of increased seriousness (Paragraph 13.1.1 (f)); The cumulative effect of repeated offending:  The Judge stated (GD, p 29) that while there may be more serious examples of the particular offence relating to intentionally exposing an emergency worker (i.e. a police officer in this case) to risk, general deterrence and protection of emergency workers required the imposition of a prison term.  It is also relevant that, at the time, Mr Guruge was in a vehicle fitted with false number plates and, days later, was found in a different stolen vehicle with stolen goods inside it.

4. It is clear to the Tribunal from the record of offences (GD, pp 14–17), which are summarised earlier in these reasons, that Mr Guruge was initially treated leniently by the Courts, which used other penalties such as fines and community-based orders as incentives for him not to re-offend, before resorting to terms of imprisonment, when other non-custodial penalties did not change his conduct.  It is also clear that, in the two separate periods of offending, when the Applicant was in Australia in 2012 and when he returned, in the period from early 2018 to May 2020, Mr Guruge has had many appearances before the Courts, charged with some ninety offences.  He candidly admitted in his evidence that he had a history of offending.  It is also clear, while much of it has revolved around thieving and stealing motor cars to fund his drug addiction, he did admit to trafficking in drugs, and there has been some trend of increased seriousness.

5. (Paragraph 13.1.1 (g)) Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending: Mr Guruge acknowledged that he had married LW without the intention that the marriage be genuine, in order to enable him to be granted a spouse visa, and that he knew she had provided a statement to the Department declaring that their marriage was genuine.  The Tribunal concludes that this evidence was frank admission that he was prepared to engage, with another, in misleading conduct in order to secure a beneficial migration outcome.  In addition, having found that EW had ended their relationship, although he was on a spouse visa, the Applicant did not inform the Department of the change in his personal circumstances.

6. (Paragraph 13.1.1 (h)) Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour):  Mr Guruge was taken to a letter from the Department dated 15 May 2017 (GD, p 72) which warned him that future offending may jeopardise his migration status in Australia.  Although the copy before the Tribunal had an acknowledgement slip that was blank, the Applicant said that he generally remembered receiving the letter and thought he had signed an acknowledgement slip; he added that he received a large amount of correspondence from the Department.  He did not cavil with the suggestion that he was generally aware that he should not re-offend in Australia, because it could have consequences for keeping his visa, and the Tribunal is satisfied that this general awareness was through written warnings he had received from the Department.

7. (Paragraph 13.1.1 (i)) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act: While there was evidence of various disciplinary penalties in prison, Mr Guruge was transferred to immigration detention in early November 2020 and there is no evidence of any misconduct there.

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)

8. The Tribunal considers that there is a real risk that Mr Guruge would re-offend if he remains in Australia.  He stated that he would like, if permitted to remain, to obtain a job in traffic management in the mining sector.  In his evidence at the hearing, the Applicant said that the main reason he had decided on the mining sector rather than to resume work in the hospitality industry, where he formerly worked for short periods, is that the mining sector ‘has drug testing’.  It would seem to me that Mr Guruge does not have much confidence in his own ability to remain drug-free.  He said that the main reason he took up drug use again after returning from Sri Lanka in 2017 was because he found that his wife EW had taken up with another man, she had taken out an intervention order and he was unable to see their son.  As this issue remains unresolved, the Tribunal is not convinced that the same set of circumstances might not lead, again, to Mr Guruge falling back into his former conduct.

9. In addition, a recurrent theme in Mr Guruge’s evidence is that he pleaded guilty ‘because my lawyers told me to’ or to avoid potentially other more serious penalties.  His evidence about KW having an 18^th birthday when she was in fact turning 16 is not accepted by the Tribunal and is also at odds with what he told Department officers in interviews for his protection visa application.  His evidence about whether he divorced LW and therefore whether his subsequent marriage to KW is valid, was also unclear.  There is a theme running through his conduct that he is reckless about abiding by the law, as well as quite prepared to engage in misleading conduct in order to secure an immigration outcome for himself.

10. Taking into account the cumulative history of offending, the serious nature of the principal offence, and that the risk of re-offending is a real risk, and not one that in the Tribunal’s view is remote or fanciful given the Applicant’s circumstances, the Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, and relatively heavily so.

    Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)

11. The Direction requires the Tribunal to make a determination about whether the revocation of the visa is in the best interests of any relevant minor child.  The only relevant child of which the Tribunal is aware is the Applicant’s son, KS.

12. The Tribunal has considered written and oral evidence that, although the Applicant was in prison when KS was born, EW took the infant to see his father on regular occasions.  It is also not disputed that EW travelled to Sri Lanka with KS and lived there, apparently harmoniously, with Mr Guruge, for a period approaching two years, before she returned to Australia for medical and other reasons.

13. The Tribunal has seen a large number of photographs and some videos showing Mr Guruge with KS.  This evidence appears to show a regular, loving, parental relationship between father and son.  The Tribunal has also considered the written statements of the Applicant’s mother (A3) and sister (A5) both of which record the closeness between KS and his father and KS’s own involvement in their lives, as his grandmother and aunt, especially during the time KS lived in Sri Lanka.  In particular, the Tribunal was provided with screenshots of text messages between the Applicant’s sister and EW inquiring about her welfare and that of KS.  It was clear to me that Mr Guruge’s parents and sister took a significant interest in supporting EW in bringing up KS, especially while the Applicant was incarcerated.

14. The Direction requires me to consider whether there have been long periods of absence or limited meaningful contact, including whether an existing Court order restricts contact (paragraph 13.2 (4)(a)).  That is the case here.  KS was born at the end of September 2012.  The Applicant remained in detention until he was deported around February 2014.  It was the following year that KS was brought by his mother to Sri Lanka.  As Judge Hogan remarked (GD, p 27), at no stage has Mr Guruge, after returning to Australia in August 2017, lived for any significant length of time in the same household as KS and EW.

15. The Direction requires the Tribunal to consider whether the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the minor child turns 18 and any Court orders relating to access arrangements.  Without denying Mr Guruge’s assertions to the Tribunal that he loves his son, the fact of having KS did not prevent him from resuming his drug-habits, including some trafficking.  It also did not prevent him committing many other offences, which he knew had the potential to jeopardise his visa and, therefore, a continued chance of rebuilding some relationship with KS.

16. Mr Guruge conceded in the hearing that EW plays the main parental role in relation to KS.  It is notable that in her statement to the police, EW stated that the Applicant “had been abuse towards me in the past” but gave no particulars of whether it was verbal or physical abuse or when it occurred.  The Tribunal accepts that this statement was a factor in the Court deciding that a ‘no contact’ order should (initially) be made.

17. The Tribunal has examined the circumstances when the Applicant was found by the Court to have breached the Family Violence Intervention Order.  Without for a moment going behind the finding of the Court, the Tribunal may examine the context surrounding offending.  It would seem to me in this particular instance that the Applicant was seeking to deliver a parcel of gifts from himself and his parents, KS’s paternal grandparents, to KS and his breach centred around sending a text message to EW to ensure it had been received and to inquire whether KS liked the gifts.  This does not seem to the Tribunal to be the most egregious of breaches, in the circumstances, although Mr Guruge knew he should not have made the contact.  It is notable that the order has since been varied by the Court to permit facetime and telephone contact between KS and his father, which would logically be through EW, given KS’s young age.  It is also notable that there was ample evidence before the Tribunal of significant bank transfers from both the Applicant and his parents to EW to help her financially and to help with KS’s day to day expenses.

18. After careful consideration the Tribunal makes a determination that this consideration weighs in favour of revoking the mandatory cancellation of the visa.  This is because of the evidence that, in spite of much of his criminal conduct in Australia being when KS was an infant and then a young boy, Mr Guruge has more recently made endeavours to support his son and re-establish some form of contact, both when he was in Sri Lanka and after he returned to Australia  However, that weight is tempered significantly by the long periods when the Applicant has not played a role in the life of his son, and the fact that future contact remains unresolved; Mr Guruge told the Tribunal he did not currently have a telephone number for EW, in spite of trying to make contact.

    Primary consideration: Expectations of the Australian community (paragraph 13.3)

19. The first part of this part of the Direction states:

    The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable 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 not to revoke the mandatory visa cancellation of such a person.  Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.  Decision-makers should have due regard to the Government’s views in this respect.

20. The Full Federal Court considered this part of an earlier version of the Direction in FYBR v Minister for Home Affairs [2019] FCAFC 185. The wording in the earlier version of the Direction is essentially the same. In that matter, two of the three judges (Charlesworth and Stewart JJ) held, in separate judgements, that this part of the Direction expresses a ‘norm.’

21. The Court decided that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be.  In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not presumptions or assessments that a decision-maker may derive by some other evaluative process. 

22. Stewart J stated, at [100]-[101]:

    To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

    (1)non-citizens will obey Australian laws when in Australia;

    (2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;

    (iii)in a particular case, the refusal of the visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.

    Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”

    (Emphasis added.)

23. His Honour said (at [102]) that ‘the character assessment, even through the prism of community expectations, may not be decisively against the applicant’, which is why the decision-maker must assess what is ‘appropriate’ in the circumstances.

24. In her judgment, Charlesworth J set out Her Honour’s reasoning at [68]-[74]:

    The content of the expectation

    It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case.  In the particular case, the Australian community will either expect the visa to be refused, or it will not.  In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be.  The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.

    The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:

    The Australian community expects non-citizens to obey Australian laws while in Australia.

    This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.

    The second expectation is more difficult to interpret.  It is expressed in the second and third sentences of the clause as follows:

    Where a non-citizen has breached, or where there is an unacceptable 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 of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.

    This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.

    Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do.  The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction.  The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

    I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese.  In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4).  The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion.  To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires.  The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable.

25. On 24 April 2020 the High Court of Australia refused special leave to appeal the Full Court decision in FYBR. 

26. Mr Guruge has accumulated some 90 offences in two relatively short, and broken, periods of living in Australia, including many robbery offences, some drug trafficking offences and a significant offence relating to endangering a police officer on duty.  The Tribunal’s view is that, with the knowledge of this criminal record, the Australian community, in the context of that term in this part of the Direction, would not expect him to hold a visa to remain in Australia.  Even considering that drug use drove some of the offending, especially the property offences, there has been a significant level of criminality and despite sanctions imposed by the Courts, the offending did not appreciably abate. 

27. The finding of the Tribunal is that Mr Guruge fails to meet the expectation that he obeys the laws of Australia, an expectation that applies to all visa holders and, for that matter, all other members of the community.  The Tribunal finds that this consideration weighs heavily against revoking the mandatory cancellation of the visa.

    Other considerations

    International non-refoulement obligations (paragraph 14.1)

1. This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case.

2. In his evidence, Mr Guruge said that, if his visa is restored, he would return to Sri Lanka for ‘a few weeks’ to sell some land in order to obtain some cash to buy a house in Australia.  He expressed no concerns about his personal safety in Sri Lanka.  The Applicant made some indistinct submissions about once helping a friend who worked for a government minister in that minister’s election campaign, but at the hearing did not articulate any particular concerns about his personal safety or harm that might be visited upon him in Sri Lanka.  It is noted that the Applicant has previously applied for a protection visa in 2012 and the Department found he was not a person to whom Australia owed non-refoulement obligations.  That decision was affirmed by the Refugee Review Tribunal and Mr Guruge confirmed in answer to a direct question from the Respondent’s lawyer that he did not seek a review of the Tribunal’s decision.  Relevantly, after he voluntarily returned to Sri Lanka, Mr Guruge arranged for his wife and young son to come to Sri Lanka, and evidently did not have concerns for their safety in so doing.  In his evidence he agreed that he did not think he was endangering their lives by encouraging them to come to Sri Lanka.

3. It is also noted that the Respondent’s delegate, when refusing to grant Mr Guruge a bridging visa associated with his protection visa application, stated that during an interview with the Department on 22 October 2012, the Applicant said (SGD, p 157):

   I’ll be totally honest with you, I’m applying for this visa because I’m waiting for my girlfriend to be sixteen.

4. It is noted that Judge Hogan considered submissions made in Court on behalf stating he had been taken captive by Tamil Tigers.  Her Honour said (GD, p 23):

   Your counsel stated that, at one stage in Sri Lanka, you had been taken captive by Tamil Tigers who believed that you were a spy for the Sri Lankan government and you were interrogated and exposed to extreme violence for several days. He submitted that this and other violence to which you have been subject whilst homeless on the streets of Melbourne had led to a Post-Traumatic Stress Disorder. He urged the Court to also note that Ms Cidoni had diagnosed you as suffering an Adjustment Disorder which, along with your drug use, would have most likely produced a psychosis and impaired your judgment and clear thinking. For these reasons, he relied on limbs five and six of the principles in R v Verdins.  

   I have read carefully the reports of Ms Cidoni following her assessments on 12 April 2018 and 1 November 2019 respectively. I note that, notwithstanding that she records a history of you being exposed to civil unrest and witnessing death and destruction of villages during the civil war in Sri Lanka, she makes no mention of you having been captured and tortured by Tamil Tigers.

5. Equally, no such claims were made before this hearing.  The Applicant did assert, in his bundle of evidence:

   I came to Australia because of the situation prevailed at that time in Sri Lanka and I submitted my visa application along with the documents to show what will happen to me if I live in Sri Lanka.  Now the situation is worse than ever.  I fear of my life in a case if I have to go back to my country.  You may have heard about the Muslim-Sinhalese conflict resulting Easter Sunday Attack which resulted a major drawback to Sri Lankan Economy.  Therefore I do not think Sri Lanka will protect me and my life.  Hence I cannot go back to Sri Lanka.

6. Mr Guruge did not expand on these assertions at the hearing.  He reiterated it was his intention to return to Sri Lanka if his visa was restored, at least for a temporary period.  He agreed that he would not expect to be exposed to harm; he said that his parents had told him to mention the current political situation because of his former involvement helping a government minister to campaign.  He said they ‘told me to mention it’, but he agreed that he did not feel that his life would be threatened if he returned to Sri Lanka and that he would not have let his wife and son travel to, and live there, if that was the case. 

7. The Tribunal does not consider that the Applicant has made out any logical case that non-refoulement obligations may be enlivened, nor has he raised anything significant in regard to whether complementary protection considerations may be relevant in terms of there being ‘another reason’ to revoke the mandatory cancellation.  Mr Guruge told the Tribunal he was not sure of the year the Easter Sunday event occurred because he was in Australia when it happened. The Respondent noted that the Sri Lankan Country Information Report prepared by the Department of Foreign Affairs and Trade in November 2019 refers to the Easter Sunday crisis earlier that year, and records that the Government of Sri Lanka exercises effective control over all of the country (SGD, p 611).

8. The Tribunal considers, based on the information before it and the oral evidence of the Applicant, that this consideration is not engaged and weighs neutrally in this assessment.

   Strength, nature and duration of ties (to Australia) (paragraph 14.2)

9. The Direction exhorts decision-makers to have regard to how long a person has resided in Australia, noting that less weight should be given when the non-citizen began offending soon after arrival in Australia and, on the other hand, more weight should be given to time the person has spent contributing positively to the community.  The Tribunal must also consider the nature of any family or social links with Australian citizens or permanent residents, including the effect of non-revocation on them.

10. Mr Guruge did begin offending relatively soon after he arrived in Australia on the second occasion, in November 2008.  He was before the Court in August 2012.  He gave evidence of some sporadic employment in Australia and of various trade courses he has done whilst in prison, which is to his credit.  However, it would be fair to say that his contribution to the Australian community has been negligible.  The Applicant does, however, have some ties with Australia, through his estranged wife and son.  Mr Guruge said that they had not visited him in his most recent time in prison, but the Tribunal accepts that there are some social links, particularly with his best friend in this country, the brother of EW, and with another friend who has kept in contact with him while in prison.  The Tribunal also notes that EW’s father travelled with her and KS to Sri Lanka when she went there to join the Applicant in 2013 and stayed with Mr Guruge’s parents in their home for around three months.  The Tribunal accepts that the Applicant has links with EW’s parents and siblings and their families and may have links with members of the family of his first wife, TW, who live in Australia.

11. Mainly because there is some evidence of attempts by the Applicant to attempt to re-establish contact with EW and their son, the Tribunal finds that this consideration weighs very slightly in favour of revoking the mandatory cancellation of Mr Guruge’s visa.  That weight is however lessened because he began offending relatively soon after arriving in this country and because of the paucity of an employment record in this country, and his own evidence that contact with his wife has ceased.

    Impact on Australian business interests (paragraph 14.3)

12. The Direction provides that the Tribunal should consider any impact on Australian business interests if a non-citizen’s visa is not revoked, noting that an employment link would generally only be given weight where not restoring the person’s visa would significantly compromise the delivery of a major project or important service in Australia.

13. Mr Guruge said that he had worked intermittently in the hospitality sector, for around four months, in his time in Australia.  He also studied two semesters at a higher education institution but ceased this study before qualifying for any award.  The Tribunal finds that this consideration is not relevant and weighs it neutrally in this assessment.

    Impact on victims (paragraph 14.4)

14. The Direction provides for the Tribunal to take into account any information available where a victim of a person’s offending may be aware of the immigration status of the person.  As there is no such information before me, this consideration weighs neutrally.

    Extent of impediments if removed (paragraph 14.5)

15. Mr Guruge told the Tribunal that he is generally healthy, although he is awaiting some exploratory surgery to investigate an intestinal complaint.  He stated that he is not currently taking any medication.  In terms of any language or cultural barriers, the Applicant confirmed to the Tribunal that he speaks Sinhalese.  It is also clear to the Tribunal from his oral evidence, and from the written statements of his parents and sister, that his immediate family in Sri Lanka remain supportive, even strongly so. His parents have offered some financial support, including some land his parents intended to give him, which he could sell and use the proceeds therefrom.  Mr Guruge did not come to Australia until June 2008, when he was aged 26.  It is clear from Mr Guruge’s immigration history that he has freely travelled back to Sri Lanka, first in October 2008 for around three weeks, then between July 2013, when he was voluntarily repatriated, until August 2017.

16. There was some history of mental health issues, including diagnoses referred to by the sentencing Judge.  Mr Guruge told the Tribunal that he was admitted to a psychiatric unit for a period of over a week and he said he was diagnosed with PTSD and a depressive disorder, but that he had been released into the community at the end of the stay and not placed on any medication.  Accepting he may have been admitted, there were no other details before the Tribunal relating to this hospital stay.  The Applicant said he had remained drug free in prison, and the Tribunal notes the urinalysis results (SGD, p 574) which were all ‘negative’, which is to Mr Guruge’s credit.  The Tribunal also notes that he has undertaken bodybuilding in prison and, as mentioned above, successfully completed several skills courses, which again is all to the Applicant’s credit, and will better equip him in terms of future employment.

17. However, in terms of the extent any impediments as specified in the Direction, the Tribunal finds that in this case no such are identified.  Consequently, this consideration weighs neutrally in this assessment.

    CONCLUSION

18. The Tribunal has weighed all the relevant considerations in the Direction.  Two of the three primary considerations weigh against the Applicant, one heavily and one relatively heavily.  The other primary consideration weighs in favour of the Applicant.  This is the one relating to the best interests of his son.  The Tribunal has found that primary consideration weighs in favour of restoring the visa, but for the reasons set out in detail above, not heavily, and finds that this consideration does not weigh determinatively.  It is particularly relevant that the contact that Mr Guruge is currently permitted by the Court to have with KS, namely through telephone and electronic means, is also available to him from Sri Lanka, albeit accepting his genuine desire to re-establish physical contact. 

19. In respect of the other considerations, one weighs slightly in favour of the Applicant, the strength, nature and duration of his ties to Australia. Of the other considerations, they weigh neutrally. The Tribunal is not limited only to the considerations set out in the Direction in deciding whether there is ‘another reason’ in the terms of section 501CA(4)(ii) of the Act to revoke the mandatory cancellation of the visa. But the Tribunal finds there is no other factor before it that should be taken into account in considering the exercise of the statutory discretion which would affect the outcome of this merits-review.

20. The long list of offending, in only a relatively short time that the Applicant has resided in Australia, makes melancholy reading, and this, combined with the frank admission of the Applicant that he intentionally provided false information to the Department in order to secure, or continue to hold, visas in the past, combine to a conclusion by the Tribunal that the decision not to revoke the mandatory cancellation of Mr Guruge’s visa was the correct decision and should be affirmed.

    DECISION

21. The Tribunal decides to affirm the decision under review.

I certify that the preceding  109 (one hundred and nine) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris
[sgd]…………………………………………… Associate Dated: 23 November 2020
Dates of hearing:		9 and 10 November 2020
The Applicant:		Self-represented
110.    Advocate for the Respondent:		Ms Olivia Hicks
111.    Solicitors for the Respondent:		The Australian Government Solicitor