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

Hettiarachchi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1354 (24 May 2022)
Division:GENERAL DIVISION
File Number: 2022/1895
Re:RIENZY RUWAN HETTIARACHCHI
APPLICANT

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

DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:24 May 2022
Date of written reasons: 26 May 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate, dated 7 February 2022 that refused to grant a Skilled – Regional Sponsored (Provisional) (Class SP) Visa to the Applicant is affirmed.
....................................[sgd]....................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – Visa renewal refused – whether the Applicant fails to pass the character test – whether the discretion to refuse to grant the Applicant a Skilled Regional visa should be exercised – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Bartlett and Minister of Immigration and Border Protection (Migration) [2017] AATA 1561
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
26 May 2022

The Applicant seeks review of a decision of a delegate of the Respondent (‘the Minister’) made on 7 February 2022 (‘the decision under review’) to refuse to grant a Skilled – Regional Sponsored (Provisional) (Class SP) Visa to the Applicant.
A delegate of the Minister was satisfied that the Applicant did not pass the character test. The character test in this case is found in sub-s 501(6)(d): namely that in the event the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia (sub-s 501(6)(i)).
On 8 March 2022, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 9 and 10 May 2022 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501 of the Migration Act 1958 (Cth) (‘the Act’) applies if the Minister is not satisfied that a person passes the character test: s 501(1). The Minister may cancel a visa that has been granted if the Minister reasonably suspects that the person does not pass the character test: s 501(2). Further, under sub-s 501(3A) to cancel a visa that has been granted to a person.
Sub-s 501(3A) of the Act states that the Minister 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 due to the operation of sub-ss 501(6) and 501(7).
Sub-s 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Sub-s 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more. Further, a person does not pass the character test under s 501(6) if, relevantly:
(c) having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia …
The Minister may revoke the original cancellation decision pursuant to sub-s 501CA(4) of the Act which provides that:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Sub-s 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under sub-s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under sub-s 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’ or ‘Direction 90’).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1.     Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2.     Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3.     The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4.     Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5.     Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration A’);
(b)whether the conduct engaged in constituted family violence (‘Primary Consideration B’);
(c)best interests of minor children in Australia (‘Primary Consideration C’); and
(d)expectations of the Australian community (‘Primary Consideration D’).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
FACTS
The Applicant, who is 39 years of age, was born in Sri Lanka. The Applicant is a citizen of Sri Lanka who first arrived in Australia on 26 December 2007, then aged 24 years.
EVIDENCE
Statements
The Tribunal has had regard to the following:

Applicant

(a) Statutory Declarations of the Applicant subscribed on 21 June 2021 and 11 April 2022.
(b) Statement of the Applicant dated 4 May 2022 in response to the event report submitted by NSW police.

Applicant’s wife

Statutory Declarations of Sumedha Sithumini Wendakoon Mudhiyanselage subscribed on 15 August 2019; 21 June 2021; 28 March 2022; 11 April 2022.

Statements of other witnesses

a)    Statement of Isuri Indeluka Wendakoon (Applicant’s sister-in-law) dated 4 April 2022.
b)    Statement of Adam James Levido (Applicant’s work manager) dated 10 April 2022.
c)    Statement of Chandra Fonseka (aunt of Applicant’s wife) dated 9 April 2022.
d)    Statement of Dr Cicil Fonseka (uncle of Applicant’s wife) dated 9 April 2022.
e)    Statement of Dumindu Thiyambarawatte dated 9 April 2022.
f)     Certificate of Dr Harin Perera dated 27 March 2022 relating to Applicant’s mother.

The Tribunal has also had regard to a letter described as ‘apology letter’ from the Applicant addressed to the presiding Magistrate Burwood local Court dated 17 August 2019; in addition to a character reference provided to the Presiding Magistrate, Burwood local Court dated 22 August 2019 provided by Sumedha Wendakoon.
The Tribunal has also had regard to letters of support for the Applicant from the following persons:
a.Jacqueline Macdonald dated 7 August 2019;
b.Lochana Jayasinghe dated 14 August 2019;
c.Anil Saujiv Thalpadi dated 24 August 2019;
d.David Harrison dated 1 August 2019 and 7 April 2022;
e.Stephen Treacey dated 13 August 2019;
f.Sumal De Silva dated 12 August 2019.
The Tribunal also received a reference from St Helens Private Hospital, Tasmania dated 7 August 2019 in respect of the Applicant’s wife.
Oral evidence
The Tribunal heard oral evidence from the Applicant and from the Applicant’s wife; Applicant’s sister-in-law; Dr and Mrs Fonseka; David Harrison; Adam J Levido and Dr Mark Milic.
Medical evidence
A psychologist report of Dr Mark Milic, Clinical & Forensic Psychologist dated 8 April 2022 has been provided.
APPLICANT’S CRIMINAL HISTORY
Listed hereunder are matters which, although not criminal convictions, comprise conduct which has brought the Applicant to the attention of the NSW Police:

Date	Details	Outcome	Reference
28 May 2009	Nil	Traffic infringement notice	R29, 117
16 July 2009	Nil	Traffic infringement notice	R29, 117
4 August 2009	“Bald front offside and nearside tyres – broken brake light and nil spare tyre”	Vehicle defect notice	R29, 116-117
9 October 2009	· Traffic collision involving three vehicles · Police considered the Applicant was not driving at a safe distance from the vehicle in front of him	Infringement notice – negligent driving	R29, 116
16 November 2009	· Police identified the following defects in the Applicant’s vehicle: o Major oil spill on engine (Oil sump) o Battery not secure o Bear [sic] wires under bonnet pose as fire hazard o Smoke from engine bay o Burning plastic from engine bay o No oil present in oil container/holder o Front tyres defective o Leak oil onto road from engine bay	Vehicle defect notice Red label placed on driver’s side window	R29, 116
12 April 2010	Drive vehicle not in Safe-T-Cam zone on/over solid edge	Traffic infringement notice	R29, 115
23 July 2010	Not stop before lights at red light	Traffic infringement notice	R29, 115
7 August 2010	· Make U-turn at intersection with traffic lights · Use vehicle not comply with standard: other · Use vehicle not comply with standard: brake lights · Use vehicle not comply with standard: other · Use vehicle not comply with standard: seating · Not ensure modified etc vehicle complies with standards	Traffic infringement notice	R29, 115
7 August 2010	Use vehicle not comply with standard: other	Traffic infringement notice	R29, 115
30 December 2010	Make U-turn at intersection with traffic lights	Traffic infringement notice	R29, 114
25 January 2011	· Drive vehicle recklessly/furiously or speed/manner dangerous Class A m/v exceed speed > 45 km/h	Convicted at Burwood Local Court on 15 February 2011	R29, 113- 114 G2; 25
21 December 2013	· “Major traffic crash” Police attended scene and were unable to determine who was at fault	Nil	R29; 111
17 February 2014	Class A m/v exceed speed <= 10 km/h – Estimated	Traffic infringement notice	R29; 111
14 May 2014	· Exempt visiting driver not produce licence	Traffic infringement notice	R29; 111
8 March 2015	· Drive with low range PCA – 1^st off	Convicted at Burwood Local Court on 14 April 2015	R29, 110 G2; 25
20 September 2016	· Drive across dividing lines to do U-turn	Traffic infringement notice	R29; 110
17 February 2017	· Drive across dividing lines to do U-turn	Traffic infringement notice	R29; 109- 110
8 November 2017	· Pedestrian not cross road/part of road at crossing	Traffic infringement notice	R29; 109
16 December 2018	· Class A motor vehicle exceed speed limit – over 20 km/h - Lidar	Traffic infringement notice	R29; 109
13 April 2019	· Not give particulars to other driver · Drive with middle range PCA - 2nd+off · Resist officer in execution of duty-T2 · Proceed through red traffic light (not toll booth)	Convicted at Burwood Local Court on 26 August 2019	R29, 106- 108 G2; 24-25

Sentencing observations

There are no sentencing observations provided to the Tribunal for any of the offences for which the Applicant was convicted.
ISSUES FOR DETERMINATION
The Tribunal must decide the following issues:
(a)does the Applicant pass the character test as defined by sub-ss 501(6) and 501(7)(c) of the Act: s 501CA(4)(b)(i);
(b)if the Tribunal finds that the Applicant does not pass the character test, should the discretion to refuse to grant the Applicant a Skilled Regional (Subclass 489) Visa be exercised or is there another reason why the original decision should be revoked: sub-s 501CA(4)(b)(ii).
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, 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. Decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The history of the offending of the Applicant demonstrates a repetitive and long-standing disregard for the Australian law which has resulted in either convictions; in the issue of traffic infringement notices for breach of road rule; or, on one occasion and the most recent occasion, a warning issued to the Applicant concerning his inebriated conduct in a public place namely at the Sydney Cricket Ground on 13 February 2022.
Chronology of offending
Listed hereunder are the matters which the Tribunal considers is indicative of the Applicant’s attitude to the Australian laws. Other incidents involving the Applicant have occurred but they do not necessarily reflect adversely upon him:
(a)traffic infringement notices issued as detailed above;
(b)23 August 2010 the Applicant, while in a drunken rage and believing that another person was showing undue attention to his wife, smashed at least one window of the third parties’ motorcar with a crowbar. The police report states that ‘every window’ of the car was smashed but this is denied by the Applicant and his wife on the basis that the other windows were smashed in a recent motor vehicle accident;
(c)speeding offence on 26 January 2011: the police reported that the Applicant’s vehicle travelled at a speed of up to 152 km an hour in a 60 km/h zone; overtook two vehicles whilst travelling on the incorrect side of the roadway and through an intersection and continued on the incorrect side of the road before crossing a continuous white centreline returning to its correct side. As it appears later, the Applicant gave the police a false explanation claiming that he was speeding because his wife needed to go to the toilet;
(d)the assault occasioning actual bodily harm for which the Applicant was convicted on 24 May 2011 was explained on the basis that the Applicant had become exasperated with the conduct of an occupant of the same house. At that time the Applicant and his wife were residing in a shared house at Lidcombe. In addition to the Applicant and his wife, there were six other persons living in the house. According to the records, the Applicant claimed that the victim was perpetually leaving the kitchen in an untidy state which resulted in the altercation. A two year good behaviour bond was imposed. At the Tribunal hearing the Applicant claimed that he struck the victim on one occasion only. The police report records:
The accused grabbed the victim by his collar with his left hand and commenced to punch the victim on the left side of his face with his close fist. The victim felt immediate pain and tried to protect himself by raising both his hands. The accused continued to punch the victim several times.
Despite the police account, the Applicant repeatedly told the Tribunal that he only punched the victim once. Irrespective, the victim, according to the police report required seven stitches in a cut which was approximately 2 to 3 inches in length;
(e)on 8 March 2015 the Applicant was found to be driving a motor vehicle using his Sri Lankan driving licence when his blood alcohol recorder rating of 0.076 g of alcohol in 210 litres of breath. For this offence he was convicted of low range PCA and it was noted that he appeared slightly affected by intoxicating liquor;
(f)further traffic infringements were issued on 20 September 2016 and 27 February 2017;
(g)on 29 December 2017 police attended a group of men including the Applicant who were intoxicated in a park and playing loud music at 4AM on 29 December 2017. There was no infringement notice issued but the fact that the Applicant was included in the group apparently intoxicated is significant;
(h)a further traffic infringement was issued for speeding in excess of 20kph on 17 December 2018;
(i)the most serious offence took place on 13 April 2019 as a result of which the Applicant was convicted for offences on 26 August 2019. The facts from the NSW police sheet are as follows:
(a)At around 11:45PM, the Applicant was driving with a female passenger when he proceeded through a red traffic light and collided with a vehicle travelling in a different direction and containing a single occupant.
(b)The Applicant and his female passenger were seen running away from the scene but returned a short while later to speak with the victim. The Applicant told the victim that the Applicant’s car had been stolen and that the Applicant was accordingly not driving at the time of the collision. The victim phoned the police and the Applicant and his passenger left the scene again.
(c)When the police arrived, the Applicant and the passenger returned to the scene wearing different clothing, which the victim immediately identified to police.
(d)The Applicant told the police that he was not driving at the time of the collision and that his car had been stolen. The Applicant gave police conflicting accounts of his activities that evening. The Applicant gave a statement concerning the alleged theft, but later refused to sign it.
(e)Despite his claims not to have been driving, the Applicant produced car keys from his pocket when a tow-truck driver arrived. Inspection of the vehicle’s ignition by the police revealed no damage.
(f)Having formed a view that the Applicant was driving and was responsible for the collision, the police administered a passive breath test which returned a positive reading.
(g)The Applicant was uncooperative with the police, was aggressive, frequently screaming, and resisted arrest. He refused to comply with instructions when the police attempted to administer a direct breath test, sucking instead of blowing on the testing device.
(h)At about 1.10AM on 14 April 2019, the police obtained a breath sample from the Applicant at Auburn Police Station, which returned a reading of 0.125 grams per 210 litres (more than double the legal limit of 0.05).
(i)The Applicant refused to provide any identification details to the police, including when he returned to Auburn Police Station on 19 April 2019 and was issued with a form of demand. The police described that Applicant on that occasion speaking over police officers in a loud voice.

For present purposes, the significance of this incident lies in the fact that the Applicant ran away from the scene of the accident which he caused; then returned to the scene claiming that his vehicle had been stolen and that he was not the driver; that he did not cooperate with the police and instead repeatedly inhaled rather than breathing into the breathalyser unit; and resisted arrest. Even if such conduct could be attributed to alcohol (the alcohol reading .125 which is more than double the legal limit), there is another fact which demonstrates a clear act of dishonesty by the Applicant.
The Applicant attended a police station on 19 April 2021 in response to a demand issued to him under section 177 of the Road Transport Act 2013 (NSW) by which a statutory demand is made upon the registered owner of a motor vehicle to supply an authorised officer with a name and place of abode of the driver of that vehicle. Having provided his name and details of the vehicle, the following question and answer is stated:
I must warn you that failure to comply with this request or giving false or misleading information is an offence.
A. I am not the driver
The most recent incident involving the police and the Applicant took place on 13 February 2022 at the Sydney Cricket ground. Although no police action was taken, the police report records:
Police drawn to POI [Applicant] as could hear a loud voice swearing a number of times. POI was walking about 2 metres adjacent to a child whilst swearing and saying, “fuck …” Police activated BWV and approached POI. POI appeared moderately affected by alcohol due to mannerisms, swaying and had stated [he] had consumed beers earlier.
This incident is significant in relation to the Applicant’s use of alcohol which is referred to hereunder.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the Applicant has been convicted of a charge of assault;
(b)the Applicant has been convicted of three driving offences, two of which relate to driving with having in his blood the prescribed concentration of alcohol;
(c)the Applicant has been convicted of resisting an officer in the execution of his duty.
The seriousness of the Applicant’s conduct arises from the fact that the Applicant engaged in not only criminal, but dishonest conduct in attempting to deceive the police officers on repeated occasions as follows:
(a)the reason for his speeding up to 150kph in an area which was limited to 60kph on 26 January 2011 when he claimed his wife needed to go to the toilet. Before the Tribunal he claimed that he was evading a group of middle eastern men who had engaged in threatening conduct towards him. No such excuse was provided to the police;
(b)that he was not the driver involved in the serious accident on 13 April 2019 and stated in a letter to the Presiding Magistrate, Burwood Local Court that he only had ‘a couple of drinks’. He told the Tribunal that the drinks comprised two large glasses of Scotch.
(c)the Applicant’s false statements above are compounded by his contriving a false scenario that his vehicle had been stolen prior to the accident;
(d)on 19 April 2019 he made a false declaration to the NSW Police that he was not the driver of his vehicle when the accident occurred.
(e)the Applicant stated that he left the function on 13 April 2019 and was rushing home to call his father as he had received word that his mother was ill. He stated that such call was received at approximately 8PM, but that he did not leave the function until after 10PM. He said that he was concerned about his mother’s condition. The Applicant’s wife testified that he did not receive the call until about 9PM and that the battery on his telephone expired and he needed to get home to make a phone call. The Tribunal does not accept that there was such urgency which provided an excuse for the Applicant’s driving at an excessive speed nor driving whilst he was under the influence of intoxicating liquor.
(f)the Applicant’s wife gave evidence that they considered sleeping in the car because the Applicant was affected by alcohol and that they had on four or five previous occasions waited in the car until the alcohol had passed off. Irrespective of the truth of such statement, the fact is that there is no evidence that the Applicant and his wife waited in the car for any length of time.
(g)the Applicant gave different versions of the reasons for his leaving the scene of the accident on 13 April 2019. The Applicant said he had broken glass fragments in his pullover from the shattered windscreen of the car and needed to change his clothing. The Applicant’s wife said she had been hot and sweaty but also added there were glass fragments in her clothing also from the shattered windscreen. However, Dr Cicil Fonseka was told by either the Applicant or by the Applicant’s wife that the Applicant’s wife had been ill and needed to change.
False Statements on Arrival Cards
The Tribunal is entitled to take into consideration other conduct, even though that conduct may not have resulted in a conviction. The Applicant has provided false declarations when entered Australia having returned from Sri Lanka on 24 July 2014, 6 March 2015 and 7 December 2015. In answer to the question:
Do you have any criminal conviction/s?
The Applicant responded:
No
Such answers were false and by providing the answer the Applicant provided a false declaration.
The Applicant claimed that he understood that the word ‘convictions’ only applied to offences where a gaol term was imposed. The Tribunal is unable to accept that such a distinction is plausible.
False Statements to Tribunal
The Applicant claims:
(a)that he ceased drinking alcohol following the fitting of an interlock device to his motor vehicle on about 20 May 2020; in his statutory declarations inscribed on 11 April 2022 he stated:
‘I have stopped drinking alcohol since the interlock device was fitted to my car’.
(b)when the incident at the Sydney Cricket Ground in February 2022 was drawn to his attention, the Applicant then claimed that there was a distinction between ‘alcohol’ and ‘hard liquor’; and that the statutory declarations should be read as ‘hard liquor’ instead of ‘alcohol’. The Tribunal finds this distinction to be disingenuous.
(c)the Sentencing Assessment Report dated 26 August 2019 contained the following:
Factors relating to offending
Mr Hettiarachchi has completed the Traffic Offender Intervention Program (T0 IP) and indicated he no longer uses alcohol since he was arrested.
Mr Hettiarachchi reportedly uses public transport and his vehicle is no longer operational.
Assessment and recommendations
Based on the information currently available, Mr Hettiarachchi risk of reoffending appears to be low. If the court makes a supervised daughter, Community Corrections will be likely to suspend Mr Hettiarachchi supervision in accordance with clause 189l of the Crimes (Administration of Sentences) Regulation 2014.
Community Corrections has assessed Mr Hettiarachchi as suitable to undertake community service work. Community Corrections can provide the equivalent of a 21 hours of work per month.
(d)the Applicant was awarded community service work in accordance with the recommendation. However, such recommendation was predicated upon his statement that he ‘no longer uses alcohol since he was arrested’.
(e)the Applicant told the psychologist, Dr Mark Milic on 27 March 2022 that he has stopped drinking. Dr Milic’s report dated 8 April 2022 states:
‘He said he stopped drinking two years ago’
(f)There was no qualification by the Applicant that such statement was intended to mean that he had stopped drinking ‘hard liquor’.
Applicant’s wife
The Applicant’s wife has given evidence very supportive of the Applicant’s statements.
(a)In respect of the speeding on 26 January 2011 the Applicant’s wife asserts that boys of middle eastern background tapped the side of the car with a bottle and that this was the reason the Applicant sped away. No such explanation was given to the NSW Police;
(b)in respect of the low range drink-driving conviction in 2015, the Applicant’s wife stated that it was the intention to stay at the friend’s house overnight and that the Applicant had ceased drinking two hours before he was apprehended;
(c)in respect of the serious incident in April 2019 the Applicant’s wife refers to a different scenario in her statutory declarations dated 11 April 2022. She says, relevantly:
When the festival finished, Ruwan, and I sat in the car. We decided to stay in the car and go home in the morning. While we were sitting there, Ruwan’s dad rang from Sri Lanka. Ruwan’s phone died … Because dad doesn’t usually ring at that time, Ruwan wanted to go home and make a phone call to his dad.
Such account is inconsistent with the Applicant’s evidence that his father telephoned him at approximately 8PM and that the festival finished at 10PM;
(d)the Applicant’s wife also included in her declaration subscribed on 11 April 2022 in relation to the car crash in April 2019:
‘I believe that Ruwan has learned from his behaviour that night. I can see has changed significantly. He did not use alcohol after that night …’
Such statement is inconsistent with the Fact Sheet of the NSW Police referring to the incident at the Sydney Cricket Ground in February 2022.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. Three of the offences for which the Applicant was convicted. The most recent offences of 26 August 2019 are the most serious and suggest an increasing seriousness. However, those offences resulted from consumption of alcohol. The Applicant has stated that he has ceased consuming alcohol.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-para 8.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-para 8.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-para 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-para 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-para 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-para 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-para 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-para 8.2(3)(d)).
The conduct of the Applicant constituted violence. However, the Tribunal is not able to find that conduct directed to a non-family member satisfies the definition of ‘family violence’ as defined in clause 4(1) of Direction 90.
Finding on Primary Consideration B
The Tribunal finds that this consideration is neutral.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-para 8.3(4)(a));
b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub-para 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-para 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-para 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-para 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-para 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-para 8.3(4)(h)).
The Applicant has no children and is not in loco parentis to any child.
Finding on Primary Consideration C
This consideration is neutral.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)   acts of family violence; or
(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)    worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-para 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is ‘in substance … adverse to any Applicant’: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Finding on Primary Consideration D
In this case, the Tribunal accepts that the Australian community’s expectations would prima facie weigh against the Applicant because of his criminal convictions.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter.
Extent of impediments to the Applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·      the non-citizen's age and health;
·      whether there are substantial language or cultural barriers; and
·      any social, medical and/or economic support available to them in that country.
The Applicant is 39 years of age and there is no evidence of any ill health. The Tribunal notes that he has undergone a surgical procedure for an inguinal hernia. There is no evidence of any ongoing illness.

There are no substantial language or cultural barriers if the Applicant were returned to Sri Lanka.
The social conditions prevailing in Sri Lanka suggest that there is currently political turmoil in that country, as reported in articles provided by the Applicant to the Tribunal. CNN information provided to the Tribunal suggests that Sri Lanka is facing an economic and political crisis. It is not possible to discern whether the medical and economic support available in the country would be equivalent to those currently available in Australia.
There is no evidence that the Applicant’s mother or father each of whom reside in Sri Lanka, nor the Applicant’s mother who also resides in Sri Lanka are being adversely impacted by any of the upheaval taking place currently in that nation. Whilst newspaper reports make reference to shortages of food and medicine, and other supplies, there is no evidence to suggest that the Applicant would be adversely impacted if he returned to that country.
The Tribunal finds that this consideration is of neutral weight in the exercise of the Tribunal’s discretion.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
This consideration weighs slightly against revocation: the victim of the assault for which the Applicant was convicted was required to be transported by ambulance having sustained a two to three inch laceration which required seven stitches. However, the Tribunal notes that this was the only assault and that it occurred more than a decade ago.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

Applicant’s Background

The Applicant has resided in Australia for 24 years. He came to Australia as a family member of his wife who was studying in Australia. The Applicant has been in constant employment since he came to Australia, undertaking a variety of occupations.
From March 2008 to February 2011, the Applicant was employed as a store person in a catering company. From March 2011 to November 2013, he was employed as a steward at a metropolitan Sydney hotel. From November 2013 to 2022 he was employed with Woolworths, initially at Bondi Junction and then at Alexandria from 2019. From July 2008 into 2020 he worked as a car park attendant at a city hotel. He joined his current employer in August 2020.
The Applicant is a valued employee, as is evident from the reference of Adam James Levido who states that the Applicant joined Coles in August 2020 before relocating to another Coles store in February 2021.

Applicant’s wife

The Applicant and his wife have been married for 15 years. At the time of their marriage, the Applicant was 24 years of age and the wife was 23 years of age. The Applicant’s wife has been diligent in pursuing her studies in Australia. The Applicant’s wife was issued with a subclass 572 Visa which was valid from 24 July 2007 to 15 March 2010 to enable her to study an Advanced Diploma of Accounting and a subclass 573 Visa from October 2010 to enable her to study a Bachelor of Business (accounting) at Charles Sturt University. Such visa has been renewed twice. She completed her degree and applied for a Subclass 485 Graduate Visa on 15 September 2014 to 15 March 2016. The Applicant was granted visas on each such occasion as her spouse. In March 2016, the Applicant’s wife applied for a subclass 457 Visa but this was later withdrawn.
She completed an Advanced Diploma of Accounting at TAFE NSW and the degree of Bachelor In Business (Accounting) from Charles Sturt University. After completing her studies, she applied for State nomination from Tasmania and was approved and applied for her Skilled Regional (Provisional (subclass 489) on 30 June 2017. The visa has not yet been granted.
The Applicant’s wife moved to Tasmania in May 2017 to satisfy the requirements for the grant of a 489 Visa. The Applicant’s wife has been working in Hobart Tasmania for five years at a private hospital. She states that the parties have been separated because of the necessity for the Applicant to maintain employment to meet their living costs.
The Applicant’s wife states that her father passed away when she was 12 years of age and since 1996 her mother raised her as a single mother and spent all her savings on her Australian education. Her mother remains in Sri Lanka.
It is the wife’s expressed intention to make a permanent home in Australia with her husband. The Applicant’s wife states that it is her desire that she and the Applicant should be able to live together and have a family. However, the Tribunal observes that the Applicant’s wife moved to Tasmania five years ago. There is no apparent reason why the Applicant could not have obtained employment in Tasmania so they could live together. The Applicant’s wife asserts that she visits the Applicant on her visits to Sydney. There is little evidence of the duration of such visits nor of their actual frequency, although the Applicant’s wife indicated the visits were monthly.
The Applicant’s wife states that the Applicant is not a violent person nor is he a habitual consumer of alcohol. She states that he occasionally consumed alcohol at parties. He is described by her as a very caring and generous person and that the assault that took place in February 2011 was a one-off event that he would never repeat.
The Applicant’s wife states that visa refusal for the Applicant will have a significant impact on her. She will no longer qualify for a subclass 489 Visa if the Applicant is refusal is confirmed since sub-regulation 489.211 (6) cannot be met because the Applicant will not meet PIC 4001. The Applicant’s wife states she will not remain in Australia without the Applicant.
The presence of the wife in Australia is a factor which weighs in favour of revocation of the decision under review.
Applicant’s extended family
The Applicant’s mother and father reside in Sri Lanka and his brother resides in Dubai. The Applicant’s wife’s aunt and uncle are Australian citizens who are in their 60s.
Isuri Induleka Wendakoon: this witness is the Applicant’s sister-in-law and she states that she and her husband have been residing in Australia for six years, having moved to Tasmania in 2019. She is awaiting a section 491 Visa. She states that she has known the Applicant since approximately 1996 when she was only six years of age and her father passed away. She states that the Applicant ‘filled the gap of our father since my sister introduced him to our family’. She states that he took care of the family; that she has known him for more than 20 years; that his drink driving and assault is not his true character. She provided both written and oral evidence.
Adam James Levido: this witness is the Applicant’s current manager at a Coles store. He states that the Applicant is a promising employee, that he is very hard-working and a peaceful person; that the Applicant ‘has never been the type to resolve conflict through violence’ and that the Applicant regrets his offending. He provided written and oral evidence.
Chandra Fonseka: this witness is the aunt of the Applicant’s wife who has resided in Australia for 36 years. She provided both written and oral evidence. She states that she knows that both the Applicant and his wife are hoping to make Australia their permanent home; and that they are very close to her. She states that the Applicant is genuinely ‘a person with a good character who treats everyone kindly. He truly regrates (sic) his mistakes and he would not want to repeat his mistakes in the future and lose his opportunity to live in Australia’. She states that the Applicant has not been ‘drinking’ for the past two years, and does not like to ‘drink anymore’ and that the Applicant ‘does not drink now’.
Dr Cicil Fonseka: this witness holds a doctorate in computer science and is the husband of Chandra. He testifies that he is aware of the Applicant’s offences and is ‘quite confident that the Applicant is extremely unlikely to reoffend’. He states that the offending behaviour is not in the Applicant’s character and that the Applicant regrets his mistake and wishes to make Australia his permanent home. In his oral evidence he stated that he was not happy with the conduct of the Applicant; he stated that the Applicant should never have left the scene of the accident on April 2019; that he was informed that the Applicant and his wife changed their clothing after the accident because the wife had been ill. He explained the close family relationship between himself and his niece who is the Applicant’s wife. It is especially strong because at least one of their two children resides overseas.
David Harrison: this witness is a close friend of the Applicant and his wife. Mr Harrison provided both written and oral evidence. He considers that the Applicant is ‘a very nice young man of high moral and ethical character, and someone I know I could trust with my life’. Mr Harrison referred to the Applicant’s hard work during the course of his occupation and of the diligence of the Applicant’s wife. He is most supportive of the Applicant in his application and it is apparent from his evidence that the Applicant’s wife has been of great support to him. He considers that if the Applicant is removed, it would have an adverse impact on Australian business, namely Coles. He considered the impediments to the Applicant returning to Sri Lanka outweighed the impediments to the Australian community, and that it would be ‘extremely cruel’ to do so.
Dumindu Thiyambarawatte: this witness shared a room at the shared house occupied by herself, the Applicant and his wife at Lidcombe. She states there was a total of six boys and two girls living in the house. She recalled that there was one incident with one of the boys who lived in the house when the Applicant lost his temper and resulted in the police action. She states:
Despite the assault and the court charges, we remain lived as friends with Ruwan and his wife Sumedha at the same house until December 2011 without any further troubles. At the time, none of us knew that the consequences of calling the police regarding above incident would result in Ruwan losing his visa and future in Australia.
Dr Harin Perera: this witness has provided a medical certificate referring to certain medical conditions relating to the Applicant’s mother.
Other referees
Other referees have provided references. Those referees are itemised at the outset of this decision and a summary of their references follows.
a.Jacqueline MacDonald: she has known the Applicant as a co-worker/friend for four years and found him to be extremely kind, dependable and well regarded among his peers. She states that he is known for his kind and helpful attitude towards his customers and co-workers, is dependable and conscientious.
b.Lochana Jayasinghe: this witness is a chartered accountant and senior finance manager. She has known the Applicant for more than 24 years and their relationship dates back to their school days in Sri Lanka. The witness migrated to Australia in 1996. The witness states that the Applicant is:
incredibly loyal, trustworthy and dependable friend who is always willing to go beyond what is necessary and expected… These qualities of trusting, being compassionate, kind and generous towards others first before getting to know them has often landed him into trouble …
Rienzy will be the first to put his hand up to help a stranger, welcome then (sic – them) into his house and give them food and a place to live until they find their feet again. Rienzy is also one of the most hard-working people I have met.
c.Anil Sanjiv Thalpadit: manager of produce department at Woolworths, Bondi Junction where the Applicant worked for six years prior to 10 August 2019. The witness states that the Applicant was:
‘reliable, honest, responsible and helpful person. He always showed genuine concern and commitment to his work and satisfaction of the customers …’
He states that he had left the department in charge of the Applicant as a supervisor on Thursdays and Fridays when he had his time off and was confident that the Applicant would do his job appropriately. He states that the Applicant is a very peaceful person and that the incident of the assault was out of character.
d.Stephen Treacey: this witness is the manager of a car park where the Applicant worked. The witness states that he knew the Applicant for one year that he was always friendly, courteous and of good character and that he has a high regard to the Applicant.
e.Sumal De Silva: this witness has been the Applicant’s direct manager at the car park at the city hotel where the Applicant worked in 2018 as a car park attendant. He states that the Applicant demonstrated kindness, patience and determination and that he was able to deal with difficult moments with aggressive customers in a calming manner.
f.Judy Dew this witness is the general manager of the hospital at which the Applicant’s wife is engaged. She states that the Applicant’s wife is always polite friendly and professional and works very hard and is an asset to their team.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter. However, the Tribunal notes that the Applicant has always been in regular employment since his arrival in Australia and in this respect has served the Australian business interests. In addition to his employer, he has undertaken tasks for Airtasker, a casual labour facility. Numerous references praising the work of the Applicant have been provided to the Tribunal.
The critical issues for the Tribunal to determine are:
(a)does the Applicant pass the character test as contained in s 501(6) of the Act. This requires a consideration of s 501(d) of the Act which relevantly for these proceedings requires a consideration of the following namely:
In the event the person were allowed to enter or to remain in Australia, is there is a risk that the person would:
(i)engage in criminal conduct in Australia; or
(b)alternatively, can the Tribunal find that, as defined in s 501(6)(c) the following is established, having regard to either or both of the following:
(ii)the person’s past and present criminal conduct;
(iii)the person’s past and present general conduct;
the person is not of good character.
Applicant submissions
The Tribunal notes the numerous references which are supportive of the Applicant and which testify as to his good character. The Applicant’s counsel submits that the failings of the Applicant which have resulted in criminal convictions and coming to the notice of the NSW police have resulted from ‘lapses’. In particular, it is said that the references from all employers state that the Applicant is of good character, and that accordingly there are ‘isolated lapses’ which have resulted in the convictions. References made to the fact that the assault took place more than 10 years ago, as did the traffic infringement notices issued in respect of his high-speed offences.
The Applicant’s counsel makes a submission that the risk of reoffending is low and the expectations of the Australian community would weigh in favour of revocation of the decision under review, especially the fact that the assault took place more than 10 years ago; and the most serious offence, namely the 2019 traffic offence is the last offence with which the Applicant has been charged.
The second principal consideration, namely the risks to the Australian community is low. Further, the impediments if removed are substantial. The Applicant’s wife would have no employment despite her valuable education in Australia and the Applicant will be returning to a country which is in turmoil. The Applicant’s counsel refers to the strong links made in the Australian community as evidenced by the statements of Mr David Harrison.
Respondent’s submissions
The respondent submits that the credibility of the Applicant is the critical issue before the Tribunal. The respondent submits that the evidence of the Applicant was evasive, unconvincing and confusing. The Applicant frequently cavilled at the record of the police, suggesting exculpatory facts which were inconsistent with the police records. However, the Applicant had agreed that he had lied to the police concerning the need of his wife to use the toilet in the 2011 dangerous speeding charge.
With respect to the 2011 assault, despite pleading guilty, the Applicant asserted that he was in effect the victim, and suggested the victim was engaged in a conspiracy against him, thereby demonstrating a lack of contrition.
With respect to the 2019 car crash, it is submitted that the Applicant first suggested that he needed to change his clothing after the accident because of the presence of broken glass in his clothing; his explanations lacked candour and were virtually farcical.
The Applicant submits that both he and his wife lied in respect to their claim that the Applicant had stopped drinking alcohol and that the apology provided to the Magistrate at Burwood Court that the Applicant had ‘great respect to the Australian police’ was inconsistent with this conduct towards the police.
The respondent submits that the Applicant’s conduct reflects bad character and that the Applicant fails the test for both sub-ss 501(6)(c) and 501(6)(d).
The Respondent submits that the expectation of the Australian community would be strongly against the Applicant remaining. For the reasons above, the Tribunal finds that the expectation of the Australian community will be strongly against the decision under review being revoked.
Finding
The Tribunal was unimpressed by the character of the Applicant. The Applicant demonstrated that he was prepared to mislead the Tribunal. But for the February 2022 police report, he would have led the Tribunal to believe that he had ceased drinking alcohol. He was not prepared to accept the facts surrounding his excessive speeding offence and disagreed that he was hostile to the police in respect of the April 2019 accident. He claimed that he had difficulty blowing into the breathalyser. The police report shows that he was given three opportunities before he was arrested. Irrespective of the Applicant’s attempt to minimise his offending, the Tribunal has no power to revisit the facts of the offending.

The Applicant had already misled the police and the courts by claiming to have ceased consuming alcohol, and his false statement that he had ceased drinking alcohol was the basis for him being granted a community service order. Him and his wife’s attempt to define ‘alcohol’ as only meaning ‘hard liquor’ is no more than an attempt to overcome the fact that the Applicant was found affected by alcohol in February 2022.
The Tribunal notes that the offending engaged in by the Applicant has been sporadic and has taken place over more than 10 years. The Tribunal accepts the submissions of counsel for the Applicant that the offending does not show a continuous pattern. However, whether the offences can be described as ‘lapses’ raises a different issue. Further, the Tribunal concurs with the observations stated in Bartlett and Minister of Immigration and Border Protection (Migration) [2017] AATA 1561 at 45:
The applicant’s previous driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road uses “go to the essential safety of the community”: see Apire and Minister of Immigration and Border Protection [2014] AATA 193 at [16]. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
Whilst the offending may not have been continuous, it shows a pattern of disregard for the Australian law, and for the safety of members of the Australian community.
Further, the applicant has shown himself to be untrustworthy when dealing with the Australian law enforcement officers, sentencing officials, his psychologist, and this Tribunal.
The Applicant’s dishonesty has proved to be repetitive. He lied to the police when exceeding the speed limit at 152 km an hour in relation to his claimed need for his wife to visit the toilet; he lied to the police in connection with the April 2019 offence at the scene of the accident; several days later he completed the false declaration. He misled the justice department when he said he had given up alcohol and he falsely told the psychologist, Dr Milic in April 2022 that he had ceased drinking two years prior. The Applicant also provided false declarations in his arrival card on 3 occasions. The Applicant was prepared to mislead the Tribunal. The Tribunal would have been misled were it not for the police record of his latest involvement with alcohol at the Sydney Cricket ground.
The Tribunal finds that the Applicant is not of good character as defined in sub-s 501(6). Further, with the Applicant’s repeated driving offences, and his repeated consumption of alcohol, the Tribunal is satisfied that he places the Australian community at risk of danger.
The Tribunal has considered whether there is another reason why the Applicant should be granted a visa. It is not satisfied that the relationship between the Applicant and his wife is as close as claimed, bearing in mind that they have been living apart for five years and there is no reason why the Applicant could not have sought employment in Tasmania. It infers that the links between the husband and wife are not strong as portrayed during the Tribunal hearing.
There is no evidence that the Applicant has contributed to Australia. There is some vague evidence that he has assisted in the Sri Lankan community but no references from any association representing that community has been tendered in support.
In summary, the Tribunal considers that there is no other reason to exercise the discretion of the Tribunal in favour of the Applicant.
CONCLUSION
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that the primary considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of refusal and that the Other Considerations weigh at best minimally against refusal. Therefore, the Tribunal considers that the reviewable decision made by the delegate on 7 February 2022 that refused to grant a Skilled – Regional Sponsored (Provisional) (Class SP) Visa to the Applicant be affirmed.
DECISION
The decision under review is affirmed.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

.....................................[sgd]...................................
Associate
Dated: 26 May 2022

Dates of hearing: 9 & 10 May 2022

Counsel for the Applicant: Mr David Godwin

Advocate for the Applicant: C & CT Migration Consultants

Solicitor for the Respondent: Mr Edwin Taylor, Mills Oakley Lawyers

[2022] AATA 1354

24 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Dates of hearing:	9 & 10 May 2022
Counsel for the Applicant:	Mr David Godwin
Advocate for the Applicant:	C & CT Migration Consultants
Solicitor for the Respondent:	Mr Edwin Taylor, Mills Oakley Lawyers