Hettiarachchi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 270

Hettiarachchi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 270 (24 February 2023)

Division:GENERAL DIVISION

File Number(s):      2022/1895

Re:Rienzy Ruwan Hettiarachchi

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member K Raif

Date:24 February 2023

Place:Sydney

The Tribunal sets aside the decision under review and in substitution decides that the discretion to refuse the application for a Skilled – Regional Sponsored (Provisional) (Class SP) visa under section 501 of the Migration Act 1958 (Cth) is not exercised.

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

Senior Member K Raif

Catchwords

MIGRATION – discretionary visa refusal – heard upon remittal – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – impediments to removal – links to the Australian community – where refusal would impact applicant’s partner – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth)

Cases

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

Secondary Materials

Ministerial Direction No. 90 – Visa Refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member K Raif

24 February 2023

BACKGROUND

1. This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 7 February 2022 to refuse to grant a Skilled – Regional Sponsored (Provisional) (Class SP) visa to the Applicant.

2. The Applicant is a national of Sri Lanka, born in March 1983. The Applicant and his wife first entered Australia in 2007 holding Student visas and which were twice renewed. In 2014 the Applicant and his partner were granted the Class VC Subclass 485 visas. On each occasion the Applicant was granted the visa as a spouse and a member of the family unit of his wife who was the primary applicant.

3. In June 2017 the Applicant’s partner made the application for a Skilled – Regional Sponsored (Provisional) (Class SP) visa and the Applicant was included in that application as a member of the family unit. On 19 July 2019 the Applicant was issued with a Notice of Intention to Consider Refusal (NOICR) of that visa under section 501 of the Migration Act 1958 (Cth) (the Act) because he had been convicted of a number of offences (outlined below) and the delegate formed the view that there was a risk that the Applicant may engage in criminal conduct in Australia. Additional NOICRs were issued in 2019 and 2020. The Applicant provided his responses to the respective NOICRs and in February 2022 the delegate decided to refuse to grant the visa under subsection 501(1) of the Act The delegate found that the applicant did not pass the character test and exercised their discretion to refuse to grant the visa to the applicant.

4. The Tribunal (differently constituted) previously made the decision to affirm the decision under review. The Applicant sought judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal for reconsideration according to law. 

5. The issues before the Tribunal are:

   (a)whether the Applicant passes the character test as required by section 501 of the Act and, if not;

   (b)whether the Tribunal should exercise its discretion to refuse to grant the Applicant the visa.

   RELEVANT LEGISLATION AND POLICY

6. Pursuant to subsection 501(1) of the Act, the Tribunal acting as the decision-maker may affirm a decision to refuse the grant of a visa if it is satisfied that the Applicant does not pass the character test.

7. The character test is set out at subsection 501(6) of the Act. Relevantly paragraph 501(6)(d) of the Act provides that a person does not pass a character test if:

   in the event the person would be allowed to enter or to remain in Australia, there is a risk that the person would

   (i) engage in criminal conduct in Australia…

8. Subparagraph 501(6)(d)(i) of the Act requires the making of an assessment about whether there is a ‘risk’ that the applicant ‘would engage in criminal conduct in Australia’. That assessment involves a consideration of past conduct, usually previous criminal offending, as well as conduct after any such offending, which will often involve issues around remorse and rehabilitation for past offending. This is the nature of the ‘probabilistic assessment’ to which Perry J referred in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [182].

9. In BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 the Court held paragraph 501(6)(d) has been cast by the legislature in wide terms, with low thresholds; that a person does not pass the character test if found to meet a threshold as low as ‘a risk’ of representing a ‘danger to the Australian community’; and that paragraph 501(6)(d) of the Act does not refer to any particular level of risk, be it high, low, remote or negligible, rather it is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be: per Bromwich J (White J agreeing) at [324], [325], [337]-[338].

10. Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened. The exercise of the discretion is governed by the considerations set out in Ministerial Direction No. 90 – Visa Refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA (Direction No. 90). Direction No. 90 is binding on decision-makers, including this Tribunal, in performing its functions, or exercising powers under section 501 of the Act.

11. Direction No. 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at clause 5.2(2) of Direction No. 90 states that:

    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

12. The primary considerations set out in clause 8 of Part 2 of Direction No. 90 are:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the best interests of minor children in Australia; and

    (d)expectations of the Australian community.

13. The other considerations set out in clause 9(1) of Direction No. 90 are:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

14. Decision-makers should ‘generally’ give greater weight to the primary considerations than the other considerations. Further, one primary consideration may outweigh other primary considerations: clause 7(2) and (3) of Direction No. 90.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

    Past offending

15. The applicant’s criminal history is not in dispute and is referred to in various documents and submissions that have been provided to the Tribunal. It can be summarised as follows.

Date	Offence	Result
24/05/11	Assault occasioning actual bodily harm	section 9 bond – 24 months and $1000 fine and court costs
26/05/11	·      Drive vehicle recklessly/furiously or speed/manner dangerous ·      Class A vehicle exceed speed > 45 km/h	Disqualification 2 years and 3 months
14/04/15	Drive with low range PCA – 1st offence	$300 fine
16.     26/08/19	Not give particulars to others driver	$300 fine
	Drive with middle range PCA – 2nd offence	Community corrections order 12 months, participation in alcohol interlock program 24 months; alcohol disqualification 9 months
	Resist officer in execution of duty	Community corrections order 12 months
	Proceed through red traffic light	$300 fine

1. The Applicant has also been given several infringement notices in relation to driving offences. His evidence to the Tribunal is that since 2019 he only received a parking fine and there had been no other offending or traffic infringements.

2. The Applicant gave evidence outlining the circumstances of his offending and the Tribunal has also had regard to the information in the Police Facts Sheets.

3. In relation to the assault offence in 2011 the Applicant refers to having lost his job and experiencing financial strain, which he claims affected him emotionally. The Applicant states that he was sharing a house with a number of people who kept it untidy, causing him additional stress. The Applicant states that he was ostracised by others in the household and relationships were not good. Referring to an incident when he had an argument with the flat-mate about the mess that was not cleaned up, the Applicant states that he had confronted that person, the person grabbed him causing scratches, and he punched that person, causing some bleeding. The police were called and the others gave evidence against him, so he was convicted.

4. According to the NSW Police Facts Sheet, it is recorded that the Applicant was upset about the untidy kitchen and threatened the victim. He is recorded to have approached the victim in the driveway as the victim was about to leave the house, grabbed the victim and punched him several times with a closed fist.

5. With respect to the 2011 driving offences, the Applicant explains in his declaration that he was driving home with his wife and stopped at an intersection. In a car that was stationed next to him, two ‘boys’ started laughing at him and using abusive language and one of them tapped the window of the Applicant’s car. He felt the boys were following him and he felt insecure and concerned about the boys’ behaviour. He decided to drive fast to overtake them and was then stopped by the police and charged. His license was suspended. The Applicant states that he regrets how he reacted but that it was for his security.

6. The Police Facts Sheet states, in relation to the 2011 driving offences, that the Applicant’s car was observed to accelerate harshly to a speed well in excess of the posted speed limit and it is stated that at the speed of not less than 130 km/h the applicant’s vehicle proceeded across a continuous white line and overtook two vehicles while travelling on the incorrect side of the road through the intersection and continued on the incorrect side of the roadway. Notably, the Police Facts Sheet indicates that when questioned by the police, the Applicant is reported to have stated that he was driving fast because his wife told him to as she had to go to the toilet. No mention was made of the ‘boys’ harassing or threatening the Applicant and his wife.

7. In relation to the 2015 offending, the Applicant states in his declaration that he had a few drinks with his friends and stopped drinking two hours before he decided to drive home but his wife was unwell and he had to take her home. He had no alternative but to drive her home as his wife was too sick to stay. He did not feel he was drunk, as he had not drunk for about two hours, and his friends also thought he was okay to drive.

8. The Police Facts Sheet states, in relation to that incident, that the Applicant‘s car was observed driving at about 70 km/h towards the RBT site. When stopped, the applicant was unable to produce his license (claiming he had misplaced his Sri Lankan license) and his roadside breath test proved positive.

9. In his 2019 declaration the Applicant provides the following description of the 2019 offending. The Applicant states that he was experiencing emotional stress due to the separation from his wife, who was living in Tasmania, and due to being unable to travel overseas following the death of his grandmother and his mother’s deteriorating health. The Applicant states that he felt extremely depressed and distressed due to the misunderstanding with his family. The Applicant states that he does not normally drink. When he attended the New Year Festival near his home, he met some of his friends who offered him a drink and the Applicant states he ‘gave in’ as he was sad. He had a couple of drinks and did not want to drive home and stayed near the festival. The Applicant states that he then received a call from his father and thought there was an emergency, so he decided to drive home. The Applicant states that the accident happened near his home and he ran home to get help from a friend and then returned to the car. The Applicant states that he could not complete the breathalyser test and he was not familiar with it so the police arrested him. Whilst being handcuffed, he pulled his hands away as the handcuffs were causing him pain and also because he felt the police were ‘unkind’ to him. The applicant states that the charges against him were not completely correct but he pleaded guilty regardless.

10. In relation to the 2019 offending, the NSW Police Facts Sheet states that at the time the Applicant was aggressive and argumentative with police and disobeyed directions. It is stated that the Applicant went through a red light and collided with the victim’s car, causing it to spin around. The Applicant was then observed running from the scene with a female passenger. He returned later, stating that he was elsewhere and that his car was stolen. (In oral evidence to the Tribunal the Applicant stated that he ran away from the scene of the incident because he was scared and he admits to having lied to the police.) It is stated that the victim called the police and the Applicant had left the scene. He then returned to the scene wearing different clothes claiming his car was stolen. It is stated that the Applicant was given the breathalyser test which returned a positive result. It is noted that the Applicant sucked on the tube instead of blowing, despite having ‘a history of previous low-range breath analysis’, demonstrating his ability to take the test. It is stated that the police arrested the Applicant who resisted arrest.

11. The Applicant also described in his evidence another incident when he smashed a window of another person’s car in drunken rage. That appears to have been an unprovoked attack caused either by alcohol or the applicant’s inability to control his anger, or a combination of the two. The Tribunal acknowledges that this conduct did not result in a conviction.

12. The Applicant claims that he is remorseful for his conduct but the Tribunal is not satisfied that this is so because the Tribunal has formed the view that the Applicant has tried to minimise the seriousness of his conduct. For example, in his 2019 declaration (which is referred to in his more recent SOFIC) the Applicant states, in relation to the assault conviction, that he was upset about the mess, confronted his flatmate who scratched him, and the Applicant states he punched the flatmate in response. However, the Police Facts Sheet suggests that the Applicant had repeatedly punched the other person as he was trying to leave. That suggests a more serious offending than a punch in response to the flatmate’s scratching, to which the Applicant refers in his own explanation. The Applicant also states in his 2019 declaration (repeated in the SOFIC) that others tried to aggravate the situation by going to the police and lodging a complaint against him. The Applicant repeatedly stated that his friend feels guilty about what he has done and about ruining the Applicant’s future in Australia and in oral evidence the applicant told the Tribunal he is no longer angry at the victim. The Applicant seems to suggest that the fault lies with the victim who complained to the police and with the others who ‘aggravated’ the situation by referring the matter to the police. It is not apparent that the Applicant has any insight into his own conduct and his own culpability in engaging in violent conduct.

13. The 2019 Police Facts Sheet indicates that the Applicant sought to mislead the police by claiming he was not involved in the accident and that his car was stolen. That was not a truthful representation of events. The Applicant also claims in his declaration that he did not know how to take a breathalyser test, which led to the police being unable to take the reading but the police note that the Applicant had previously been subjected to the breathalyser test and would have had some familiarity with it. Again, the Tribunal is of the view that the Applicant had deliberately tried to minimise his culpability for his conduct.

14. In relation to the 2011 driving offences, the Applicant claims he was trying to avoid the ‘boys’, apparently blaming others for his decision to drive dangerously (as noted above, he failed to mention the boys when questioned by the police at the time) and, in relation to the 2015 offences, the Applicant also suggests that his offending was due to the fact that his wife became unwell and had to be driven home (rather than his decision to drink, knowing that he was the only driver in the family). The Applicant explained that he smashed the windows of a car because he thought its owner was flirting with his wife, again seemingly blaming the owner of the car for his conduct or seeking to justify his conduct. The Applicant’s evidence indicates that he blames others for his own decisions and conduct and the Tribunal is not satisfied the Applicant has insight into his behaviour.

15. Evidence before the Tribunal also indicates that on three occasions the Applicant failed to declare his convictions on the Incoming Passenger Cards (IPC). The Applicant told the Tribunal he either did not understand the question on the IPC, since he had not spent time in jail, or that he was in a rush and did not read the form carefully. The Tribunal is mindful that the question on the form refers to convictions and not to imprisonment and the Tribunal does not accept the applicant did not understand the question. As for not reading the questions carefully, the Tribunal is of the view that the Applicant’s failure to refer to his convictions on three occasions when completing the IPCs shows his general disregard for the law and supports the Tribunal’s view that the Applicant is not always a credible person.

16. The Tribunal has also had regard to the evidence before the previous Tribunal. The previous Tribunal found that the Applicant had provided false statements, for example when he claimed in his declaration that he had stopped drinking alcohol. The previous Tribunal referred to an incident in February 2022 - when the applicant was observed by the police to be intoxicated and swearing in public - which appeared to contradict his claim that he stopped drinking alcohol. The Applicant offered an explanation that he meant ‘hard liquor’ rather than alcohol when he referred in his declaration to having stopped drinking (and the same explanation was offered by his wife about the information in her declaration) but no such distinction had been made in the declaration. The words ‘stopped drinking’ do not suggest any distinction between alcohol and hard liquor and the Tribunal finds that distinction to be dishonest. The Tribunal has formed the view that the Applicant had been deliberately untruthful in the information he gave in his statutory declaration in an attempt to evidence his rehabilitation and obtain the visa.

1. The Tribunal has formed the view that the Applicant is not a witness of truth. His willingness to be untruthful brings into question the applicant’s claims that he is now rehabilitated and a ‘different person’ and that he will not engage in similar conduct or other criminal conduct in the future.

   Evidence of Rehabilitation

2. In his submission to the delegate the Applicant stated that he has learned from his mistakes, which caused enormous distress and pain to his wife. The Applicant states that he is determined to be reformed to live as a law-abiding person in Australia. The Applicant’s evidence to the Tribunal is that he only drinks occasionally on social occasions and that he now tries to be a healthy person and he rarely attends parties (which is also the evidence of his sister in law).

3. In his evidence to the Tribunal the Applicant states that he has not been charged with any offences since August 2019 and since that time he has ‘mostly’ abstained from drinking and no longer associates with friends who use alcohol. The applicant states that he does not go to parties or clubs and has undertaken not to do the ‘stupid thing’ again. In his more recent written evidence to the Tribunal, as well as oral evidence, the Applicant claims that as he got older, he became more interested in a healthier lifestyle, he socialises less and spends more time training. His wife’s evidence to the Tribunal is that the Applicant is a ‘changed man’ and that is also consistent with the evidence of the Applicant’s sister in law who claims he is now a different person.

4. The Applicant provided evidence of having engaged in a number of programs and activities as evidence of his rehabilitation. He notes that he had pleaded guilty to the offences and had made an undertaking to his partner not to use alcohol. He no longer associates with friends who use alcohol and has not consumed any. The Applicant notes that he had complied with the community corrections order and completed other programs. The Tribunal accepts that the Applicant did plead guilty, although he also claims in his 2019 declaration that at least some of the information in the Police Facts Sheets was incorrect and that he pleaded guilty despite it. The Applicant claims that he regrets his conduct and is ashamed of it, stating that he has learned from his conduct.

5. As noted above, the Tribunal does not consider the Applicant to be a truthful witness. The Tribunal is of the view that the Applicant would be prepared to make any claims that he believes would be beneficial to him and assist him with the visa process. The Tribunal is of the view that the Applicant’s claimed rehabilitation and undertaking to be a different person in the future are unreliable.

6. The Applicant provided evidence of having engaged in the Traffic Offenders Intervention Program in 2019 and the Drug and Alcohol Awareness Program. The Tribunal accepts that evidence.

7. The Tribunal has had regard to the reports prepared by Dr Mark Milic. Dr Milic outlined the nature of the treatment and has expressed the view that there was no evidence from the Applicant’s responses to a questionnaire that he was at risk of offending, there were no addictions, anger management issues or anti-social attitudes. Dr Milic notes that the applicant has capacity for self-improvement, has supportive family, stable lifestyle and employment and that the risk of reoffending is low. In the report prepared by November 2022 Dr Milic also refers to the low risk of reoffending, noting that the Applicant has demonstrated capacity for self-improvement, has maintained a stable lifestyle and is motivated to maintain a positive direction in life. In his January 2023 report Dr Milic also refers to the low risk of reoffending.

8. The Tribunal acknowledges the professional opinion expressed by Dr Milic in his reports, although the Tribunal is mindful that it appears the Applicant has not been entirely truthful in his dealings with Dr Milic (for example when he claimed that he had stopped using alcohol some two years previously but in February 2022 he was observed as being affected by alcohol during the Cricket ground incident). It is possible, therefore, that at least some of the conclusions reached by Dr Milic were based on incorrect information. In his most recent supplementary report of 15 January 2023 Dr Milic notes that such ‘discrepancies’ are not uncommon and he reiterates his view that there is a low risk of reoffending.

9. In oral evidence Dr Milic discussed the Applicant’s profile as determined through testing, noting that his profile may cause the Applicant to be ‘hot-headed’ when his self-esteem is perceived as being threatened. Dr Milic confirmed that the applicant had attended several therapy sessions and these aspects of his personality had been addressed in these sessions. Dr Milic expressed the view that this could be a risk factor and a protective factor as such people are concerned about their image but also have a motivation to reform in order to maintain good relationships. Mr Milic confirmed that if the Applicant is granted the visa, it may be that one of the stressors would be removed and he may ‘let his guard down’ and that is something they intend to discuss in their future therapy session. The Tribunal has given considerable weight to Dr Milic’s evidence. It is notable, in the Tribunal’s view, that Dr Milic acknowledges that the Applicant’s personality may pose a risk factor, as well as a protective factor, and that he has formed the view that there is a low risk of reoffending (as opposed to no risk).

10. The Applicant presented many letters from his work colleagues and members of the community who refer to his good character. In his evidence to the Tribunal the Applicant also presented additional character evidence and the Tribunal acknowledges that those who provided statements believe the Applicant to be of good character, state that his offending was out of character and that he would not reoffend. The Tribunal has given their evidence some weight.

    Assessment of future risk

11. As noted above, the courts have found that the legislation imposes a low threshold when assessing the risk and a risk that is low or negligible can still amount to a risk.

12. In this case, the Tribunal accepts that the Applicant has not been convicted of any offences since 2019. The Applicant submits that his convictions and traffic offending occurred frequently in the past and not since 2019, showing that he has reformed. However, the Tribunal is mindful that the past convictions occurred over significant intervals, with about four years between the 2011, 2015 and 2019 convictions. (The Tribunal acknowledges that there had been multiple traffic offences in addition to these convictions and these had not been repeated). The Tribunal is also mindful of the more recent incident where the Applicant refers to smashing the windows of a car, which had not led to a charge or conviction. Thus, the fact that three and a half years past since the most recent conviction is not an indication, in the Tribunal’s view, that the Applicant will not engage in criminal conduct in the future.

13. The Applicant submits that he has now changed, is able to control his conduct and engages in practices such as meditation. The applicant refers to his oral evidence in the past proceedings where he had undertaken not to engage in similar conduct and notes that there had been no offending since 2019. The Tribunal acknowledges that evidence but is of the view that the Applicant’s undertaking not to engage in similar behaviour in similar circumstances is of little value if it is determined that the Applicant has limited ability to control his anger or manage difficult situations. It is the Applicant’s ability to practically manage such situations, rather than his stated desire to act differently (even if accepted as genuine), that is at issue.

14. The Applicant states that he no longer consumes alcohol and he no longer associates with friends who do. That also appears to be the evidence of those around him. The Tribunal has been provided with a report by Dr Tran which indicates that the applicant has normal liver function which may indicate that he is not consuming alcohol ’in a problematic manner’ and, aside from Dr Tran’s report, there are generalised articles about liver function testing. The Tribunal acknowledges that evidence but accepts the Respondent’s submission that evidence indicating the Applicant has no addiction to alcohol does not equate to evidence that he would not reoffend, given that the past offending occurred when the Applicant had consumed alcohol sporadically and on social occasions (on his own evidence) rather than due to alcohol addiction and noting the applicant’s present evidence that he continues to drink on special occasions. The Tribunal accepts the Respondent’s submission that the Applicant has never had an alcohol dependence disorder and drank sporadically, which he continues to do, so any test showing normal liver function and general abstinence from alcohol is not an indication that the Applicant will never drink again and will not find himself in the same situation as he did in the past.

15. The Applicant’s sister in law, Ms Wendakoon gave oral evidence to the Tribunal in which she conceded that in the past, the Applicant’s driving endangered her sister’s life but she expressed the view that his present attitude is different, stating that he no longer drives too fast and that he no longer drinks. Ms Wendakoon confirmed, however, that she has had very limited personal contact with the Applicant in recent years. She has expressed the view that the Applicant’s past conduct was affected by external circumstances (for example, not thinking straight in an emergency when drink driving).  The Applicant’s wife, who gave evidence to both Tribunals, also expressed the view that the Applicant has changed. The Tribunal also acknowledges the evidence from the uncle of the Applicant’s spouse, given to the first Tribunal, where he expressed the view that the Applicant has changed and is now more responsible and will not reoffend. As noted above, there are several written statements before the Tribunal from relatives, friends, work colleagues and members of the community who have all expressed the view that the Applicant is of good character and will not reoffend.

16. The Tribunal has been provided with the Applicant’s Online Driving Record. It indicates that in January 2021 there was a suspension of the Applicant’s license due to the non-payment of a fine but otherwise his driving record seems to be without any issues since 2019 and his current drivers license record shows no demerits.

17. The Applicant repeatedly told the Tribunal that he no longer consumes alcohol or not as much as he did previously, stating that he now strives for a healthy lifestyle. The Tribunal accepts that the claimed abstinence from alcohol (if true) may assist the Applicant in avoiding some of the conduct he had engaged in before but in the Tribunal’s view, that is not a certainty. Firstly, this is because the Applicant claims that in the past he had turned to alcohol when he was feeling upset or when facing difficult situations and the Tribunal is concerned that should the Applicant again face difficult situations in the future that he may be unable to cope with, or if he is subjected to other stressors, he may again decide to turn to alcohol. Secondly, the Tribunal is mindful that some of the offending did not relate to alcohol, such as the assault, reckless driving and speeding. Thus, even if it was accepted that the Applicant will never use alcohol again, that does not necessarily mean that the Applicant will not engage in criminal conduct.

18. The Applicant’s evidence indicates that it is very important to him to obtain the Australian visa. He and his wife had endured substantial costs, separation from family and other hardships to be able to remain in Australia. Both the Applicant and the Respondent in their post-hearing submissions agree that any future reoffending could give rise to the application of section 501 of the Act and a finding in the future that the applicant does not pass the character test, resulting in him being unable to obtain the permanent visa. The Tribunal is of the view that the prospect of not being able to obtain the permanent Australian visa would act as a very significant deterrent for the Applicant not to engage in criminal conduct in the future.

19. In the Tribunal’s view, the risk of the applicant engaging in criminal conduct in the future has been reduced and is not a significant risk. Nevertheless, the Tribunal has formed the view that the real risk remains. This is because, as noted above, the Tribunal has formed the view that the applicant does not have insight into his conduct and personality that affects his decision-making and actions and is seeking to minimise his culpability for past offending.

20. The Tribunal has also formed the view that the Applicant is not a person of credibility. He sought to mislead the police on several occasions. He admits to having lied to the police by denying he was the driver of the vehicle involved in the 2019 accident. He admits to having lied to the police that he was speeding on another occasion because his wife wanted to go to the toilet. He continued to mislead by stating he did not know how to take the breathalyser test despite having done it before. His written evidence to the previous Tribunal in the declaration sworn in April 2022 is that he stopped drinking alcohol but there was evidence that he did continue to drink and had appeared affected by alcohol in a public place and was cautioned by the police. He provided untruthful answers on his IPCs on multiple occasions. To date, he continues to minimise the extent of his involvement in the commission of offences and his culpability for these, blaming the circumstances, such as his wife becoming sick or receiving a call from his father that necessitated his driving while under the influence. The Tribunal is of the view that the Applicant’s conduct and representations indicate his lack of credibility and willingness to mislead when dealing with the authorities if he determines it would be of benefit to him. The Tribunal has formed the view that the Applicant does not fully appreciate his culpability for the conduct he had engaged in that led to his convictions. The Tribunal does not accept that the Applicant is fully rehabilitated.

21. Having regard to all the circumstances, the Tribunal has formed the view that there is a low risk of the Applicant engaging in criminal conduct in the future, however that risk remains and is a real risk. That assessment is not inconsistent with the assessment of Dr Milic, who consistently refers to ‘low risk of reoffending’ and Mr Milic confirmed in his oral evidence that the risk remains, given the Applicant’s particular personal characteristics. Notably, Dr Milic has expressed the view that once a deterrent of being refused a visa is removed, there is a possibility that the applicant would become complacent and could reoffend.

22. In reaching the conclusion that there is a real (albeit low) risk of reoffending, the Tribunal has also had regard to the fact that the past offending involved multiple offences over a lengthy period and, in relation to the driving offences, involved repeated offending. The Tribunal has formed the view that even to date, the Applicant lacks insight into his behaviour and personality traits that may have led to past offending and he seeks to minimise his culpability and blame others for his conduct. The Tribunal has formed the view that the Applicant is not a person of credibility and that he has a general disregard for the law and his obligations under the law. These factors suggest that the risk of reoffending remains.

23. However, the Tribunal is also of the view that there are strong protective factors, including the Applicant’s stable employment, family support, ongoing support from health professionals and, highly significantly, his desire to remain in Australia, which would be jeopardised if future offending prevents the Applicant from being able to obtain a permanent visa. Thus, while the Tribunal is of the view that the risk of reoffending remains, the Tribunal has formed the view that the risk is low.

24. In reaching this conclusion, the Tribunal acknowledges the submission of the parties as to whether its consideration should be limited to the duration of the visa sought (up to 4 years). It is not necessary for the Tribunal to make that determination because, for the reasons set out above, the Tribunal has formed the view that the risk of reoffending remains and that the reoffending can occur during the period of the visa sought and at a later period. That is, whatever interpretation is applied, the Tribunal finds that there is a risk that the Applicant will reoffend.

25. The Tribunal finds that if the Applicant would be allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia. The Tribunal finds that the Applicant does not pass the character test. The discretion to refuse to grant him the visa is thus enlivened.

    EXERCISE OF DISCRETION

26. The Applicant submits, essentially, that his conduct was due to alcohol use and that he no longer consumes alcohol. The applicant states that he is remorseful for his conduct and is rehabilitated, has not committed any offences since 2019 and will not reoffend in the future.

27. The Respondent submits that there remains a real risk of the Applicant reoffending and that the expectation of the community is not to enable the applicant to remain in Australia, given the risk he poses to others.

28. The Tribunal’s reasons with regard to the considerations in Direction No. 90 are set out below.

    Primary considerations

    Protection of the Australian community

29. Sub-clause 8.1 of Direction No. 90 provides as follows:

    Protection of the Australian community

    1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….

    2Decision-makers should also give consideration to:

    (a)the nature and seriousness of the non-citizen's conduct to date; and

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

30. The Tribunal has considered the nature and seriousness of the Applicant’s conduct.

31. The 2011 conviction involved an assault against another person. The Direction states that violent crimes are viewed as serious. The Tribunal finds that that offending was of a serious nature.

32. The other offending involved traffic offences such as speeding and drink-driving and there were other violations of road rules. The Tribunal notes the repeated nature of the offending and the potentially serious or even lethal harm to other road-users that could be caused by such serious disregard of the road rules. The Tribunal considers these offences to be serious.

33. The Tribunal’s assessment of the risk, should the Applicant commit further offences or engage in other serious conduct, is already set out above. 

34. Given the serious and repeated nature of the offences, the Tribunal finds that this consideration weighs against the Applicant. However, given the Applicant’s low risk of reoffending, it only weighs marginally against him.

    Best interests of minor children

35. There are no minor children who would be affected by the cancellation of the applicant’s visa. This consideration is neutrally weighted.

    Whether the conduct engaged in constituted family violence

36. There is no evidence before the Tribunal that the applicant had engaged in family violence. The Tribunal finds that this consideration is neutrally weighted.

    Expectations of the Australian community

37. Clause 8.4 of Direction No. 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:

    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

1. In considering the expectations of the Australian community, the Tribunal has considered the nature of the offence. The Applicant had committed multiple driving offences, including speeding and driving while under the influence. These types of offences have the potential to cause significant harm, or even death, to other road users. The repeated nature of the offending suggests that the applicant has little regard for the Australian law. The Applicant was also convicted of assault, an incident which involved violence towards another person and in oral evidence he referred to another incident when he smashed the windows of a car which belonged to another person.

2. In the Tribunal’s view, the community would find repeated offending and offending involving violence against another person and damage to another person’s property to be serious.

3. The Tribunal has formed the view that the community would expect that the Applicant’s conduct would result in him losing the opportunity to remain in Australia. The expectation of the community weighs in favour of exercising discretion to refuse to grant the visa to the Applicant.

   Other Considerations

   International non-refoulement obligations

4. There is no evidence, and the Applicant does not claim, that Australia’s non-refoulement obligations arise in this case. This consideration is neutrally weighted.

   Extent of impediments if removed

5. In his submission to the delegate the Applicant states that he has not been diagnosed with medical or psychological conditions (he provided to the delegate medical reports and discharge summary in relation to a past operation which was said to be uneventful and he presented to the Tribunal liver function tests which also show normal functions suggesting no use of alcohol) but he also states that if he is to return to his home country, it would have an adverse impact on his mental health. The Applicant refers to his absence from Sri Lanka for many years and states that it would be difficult for him to adjust and find suitable employment. In oral evidence the Applicant also referred to the poor economic situation in Sri Lanka and the effect of COVID-19 on employment opportunities, stating that he could not find a job in his home country.

6. The Applicant has not presented any evidence of having sought employment and of having been unable to find employment in Sri Lanka. The Tribunal considers the Applicant’s unsubstantiated evidence to be unhelpful, noting in particular his oral evidence that after coming to Australia he has been able to adjust easily, learn the language and find suitable employment. The Tribunal acknowledges that the situation in Sri Lanka may be different to Australia and generally the Tribunal acknowledges that the Applicant has been living outside of Sri Lanka for approximately 15 years, that he has no recent work experience there and may not have the knowledge of the local employment needs. The Tribunal accepts that these matters may cause some impediment to the Applicant if he is removed but the Tribunal does not accept the claim that, in the long term, the Applicant would be unable to find gainful employment and support himself in Sri Lanka.

7. The Applicant also states that his parents depend on him and his return to Sri Lanka would severely affect them. There is little evidence before the Tribunal about the financial support the Applicant provides to his parents and any need for such support.

8. With respect to accommodation, the Applicant told the Tribunal that his parents remain in Sri Lanka but cannot offer him accommodation because they decided to give the family home to his younger brother (who presently does not live in Sri Lanka) and his nephew also lives in that house. The Tribunal is mindful that in his evidence to the first Tribunal the Applicant stated that he could live at his parents’ house if he was to return to Sri Lanka. His evidence to the present Tribunal is that he cannot live at his parents’ home. The Applicant sought to explain that discrepancy by stating that his 17 year old nephew now lives there (but he conceded that the nephew has been living there for a year and at the time he last gave evidence to the first Tribunal) and the Applicant also stated that his brother with his family intend to return to Sri Lanka. No documentary evidence of any arrangement to pass the house to the Applicant’s brother has been provided to support his claims. The Tribunal has formed the view that the Applicant has not been entirely truthful in his evidence when claiming he would be unable to live in the family home in Sri Lanka.

9. Despite the Tribunal’s reservations about the truthfulness of the Applicant’s claims, the Tribunal accepts that it is possible that the family decided to leave the family home to the Applicant’s brother who is expected to return to Sri Lanka, while there may have been an expectation that the Applicant would settle in Australia and would not return to Sri Lanka. Thus, the Tribunal is prepared to accept that living at the family home may not be a long-term solution for the Applicant and his partner.

10. The Applicant’s wife also gave oral evidence to the Tribunal that it may be possible to live with her parents if they are to return to Sri Lanka, although she states that her parents’ accommodation is not convenient. The Tribunal is of the view that if the Applicant is to return to Sri Lanka, he and his partner may be able to live with relatives, at least initially but, as noted above, the Tribunal accepts that these arrangements may not work for a longer term and therefore, that a certain degree of hardship would be caused to the Applicant and his partner if they are to return to Sri Lanka. This is particularly so, given the length of their absence from Sri Lanka, their settlement in Australia and the expectation that they would be able to live in Australia permanently.

11. The Applicant states in his evidence to the Tribunal that the current situation in Sri Lanka is unstable and the economy is in the worst shape it has been for many years, particularly with large scale civil unrest.

12. The Tribunal also received evidence from the Applicant’s partner Ms Wendakoon, who told the Tribunal that she no longer practices as an accountant but prefers to work as a social worker and she would be unable to maintain that employment in Sri Lanka. The Tribunal accepts that the refusal to grant the visa to the applicant on character grounds is likely to mean that his wife’s visa application is also refused and it would adversely impact her employment options.

13. The Tribunal accepts that there would be significant impediment to the Applicant and his partner if their visas are not granted. The Tribunal finds that this consideration weighs heavily in favour of the visa grant.

    Impact on victims

14. In his 2019 declaration the Applicant states that the assault offence occurred against his friend, who regrets what he has done. The Applicant states that they talked to each other and his friend did not expect the complaint would go this far. The Applicant presented a declaration from that friend. There is little other evidence before the Tribunal about the impact on victims of the Applicant’s conduct. This consideration is neutral.

    Links to the Australian community including the strength, nature and duration of ties to Australia and impact on Australian business interests

15. The Applicant’s partner lives in Australia but does not have a substantive visa. His parents and brother remain overseas. The Applicant’s wife has other relatives in Australia.

16. The Applicant presented several character witness statements and the Tribunal accepts that he is well regarded in the community and has formed strong community ties to Australia. The Applicant also refers to voluntary and other community activities. The Tribunal acknowledges that the Applicant has been living in Australia for about 15 years and accepts that in that period he has formed strong community and employment ties in Australia.

17. The Applicant provided evidence of his employment and a statement from his employer confirming the contribution he has made. In his submission to the delegate the Applicant states that his current employer would suffer loss of his services, on which he relies to a great extent. The Tribunal acknowledges that if the applicant is to leave Australia as a result of not being granted the Australian visa, he would no longer be able to continue with his employment in Australia. However, the Applicant has not established that his employer would not be able to find other employees who could perform the same role and the Applicant has not established that the withdrawal of his services would adversely affect the interests of his employer. The Tribunal is not satisfied that Australian business interests would be adversely affected if the Applicant is not granted the visa.

18. The Applicant’s partner had provided a statement in which she states that her aunt and uncle live in Australia and had supported her throughout her studies in Australia and she now has an obligation to support them. She states that if the Applicant is not granted the visa, her own visa application would also be refused and that would affect her family. The Tribunal has had regard to the statements provided by these relatives and acknowledges their view that the Applicant would not reoffend. The Tribunal also accepts their evidence that the family in Australia have a close relationship with the Applicant and his wife and that they would be adversely affected by their departure from Australia.

19. The uncle of the Applicant’s wife gave oral evidence to the first Tribunal, stating that he believes the applicant to have changed and to be a better person and also outlining the hardship that he himself would experience if the Applicant was required to leave Australia. The Tribunal also acknowledges the evidence of Mr Harrison, who refers to the Applicant’s wife as his ‘best friend’ and who states that he would be devastated if she is to leave Australia.

20. The Tribunal accepts that the Applicant has been living in Australia for approximately 15 years and has strong social, employment and community ties. The Tribunal finds that these factors weigh in favour of not exercising the discretion to refuse the visa.

    Further other considerations

21. The list of considerations set out in Direction No. 90 is not exhaustive, and the Tribunal has had regard to other factors set out below.

22. The Tribunal gives some weight to the fact that the Applicant’s spouse is the primary Applicant for the visa and that her application is likely to be refused if the Applicant does not meet the character criteria. There is no suggestion of any wrong-doing by the Applicant’s spouse and she has not been convicted of any offences, yet the repercussions of the refusal to grant her the visa would be significant, particularly in light of the significant contributions in terms of time, money and effort that the family had made in order to be able to remain in Australia. The Tribunal considers that the adverse impact that the decision to refuse to grant the visa to the Applicant would have on his wife is a factor that weighs against the exercise of discretion to refuse to grant the visa.

    CONCLUSION

23. The Tribunal has found that the Applicant does not pass the character test and that the discretion to refuse the visa is enlivened. In considering how to exercise the discretion, the Tribunal has considered the totality of the Applicant’s circumstances, noting that the considerations set out in Direction No. 90 are not exhaustive.

24. The Tribunal finds that the offences committed by the Applicant were serious and there is a significant risk to the community, should he reoffend. The Tribunal has formed the view that there remains a risk of the applicant reoffending, but that risk is a low risk. The Tribunal has found that the protection of the Australian community and the expectations of the community weigh in favour of the discretion to refuse to grant the visa.

25. However, in the circumstances of this case, the Tribunal has decided to give greater weight to the impediment to the Applicant if he is removed from Australia, the links that the Applicant and his partner have formed during their lengthy stay in Australia and also the hardship that would be caused to his partner and family members if the visas are not granted. The Tribunal places particular weight of the fact that the Applicant and his partner have been living in this country for about 15 years, have formed significant ties and had made many sacrifices to be able to remain in Australia. The Applicant’s partner had not engaged in any criminal or anti-social conduct and if the discretion is exercised to refuse to grant the visa to the applicant, she would also have her visa refused. As long as the Applicant and his partner continue to be spouses, there is little prospect of his wife being able to obtain a long term or permanent substantive visa in Australia.

26. Having regard to all the relevant circumstances, the Tribunal finds that the discretion to refuse the application under section 501 of the Act should not be exercised.

    DECISION

27. The Tribunal sets aside the decision under review and in substitution decides that the discretion to refuse the application for a Skilled – Regional Sponsored (Provisional) (Class SP) visa under section 501 of the Act is not exercised.

I certify that the preceding 96 (ninety- six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

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

Associate

Dated: 24 February 2023

Date(s) of hearing:	17 and 18 January 2023
Date final submissions received:	2 February 2023
Solicitors for the Applicant:	Mr B Goh, Dobson Mitchell Allport