Kekulandala and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5075 (2 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4883
Re:Indika Lasantha Liyanage Kekulandala
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries AO
Date of Decision: 2 November 2020
Date of
Written Reasons: 16 December 2020
Place:Canberra
The Tribunal remits the decision dated 27 July 2020 of the Respondent’s delegate to the delegate with the direction that Mr Kekulandala passes the character test under section 501(6)(d)(i) of the Migration Act 1958.
........................................................................
Deputy President Gary Humphries AO
Catchwords
MIGRATION – decision of the delegate to refuse to grant the applicant a visa pursuant to subsection 501(1) of the Migration Act 1958 – whether the applicant passes the character test – where there is a risk that the applicant will engage in criminal conduct in Australia pursuant to subsection 501(6)(d)(i) of the Migration Act 1958 – applicant does pass the character test – in the alternative, whether the discretion to refuse to grant the visa should be exercised – application of Direction 79 – protection of the Australian community – expectations of the Australian community – international non-refoulment obligations – impact on family members – impact on victims – extent of impediments if removed – strength, nature and duration of ties – discretion should be exercised – decision under review remitted with directions
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Applicant S270/2019 and Minister for Immigration and Border Protection [2020] HCA 32
Bulivesi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3
DGPZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 115
DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1569
Divane and Minister for Immigration and Border Protection [2016] AATA 728
FYBR v Minister for Home Affairs [2019] FCAFC 185
Henin v Minister for Immigration and Border Protection [2017] AATA 2095
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161
QKVH v Minister for Home Affairs [2018] AATA 1855
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YTZR v Minister for Home Affairs [2018] AATA 3924Secondary Materials
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Australian Law Dictionary (2013) Oxford University Press.
Department of Foreign Affairs, DFAT Country Information Report – Sri Lanka, 4 November 2019REASONS FOR DECISION
Deputy President Gary Humphries AO
16 December 2020
On 27 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) refused to grant Mr Kekulandala a Partner (Temporary) (Class UK) visa under s 501(1) of the Migration Act 1958 (the Act). The delegate’s decision was based on the assessment that there was a risk, pursuant to s 501(6)(d)(i) of the Act, that Mr Kekulandala would engage in criminal conduct if allowed to remain in Australia. Mr Kekulandala sought merits review by the Tribunal of that decision.
On 2 November 2020, following a hearing in these proceedings, the Tribunal remitted the reviewable decision of 27 July 2020 to the delegate with the direction that Mr Kekulandala passes the character test pursuant to s 501(6)(d)(i).
What follows are the reasons for that decision.
BACKGROUND
Mr Kekulandala was born in July 1982 in Sri Lanka, and is still a citizen of that country.[1] He first arrived in Australia on 19 April 2005 to study. Except for two return visits to Sri Lanka in 2006/2007, Mr Kekulandala has resided in Australia since that date. While residing here, he has accrued a criminal record characterised by domestic violence.
[1] The applicant’s family name is Liyanage Kekulandala. For ease of reference, and with his permission, the Tribunal uses only his second family name in this decision.
The student visa on which he first arrived in Australia expired in about August 2011. He applied for a further student visa but it was refused. For part of this period he remained in Australia unlawfully. On 12 April 2016, Mr Kekulandala applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. More than four years later, on 27 July 2020, a delegate of the Minister decided to refuse to grant either visa under s 501(1) of the Act. The delegate was satisfied there was a risk that Mr Kekulandala would engage in criminal activity in Australia. Accordingly, the delegate found that Mr Kekulandala did not pass the character test pursuant to s 501(6)(d)(i) and was not satisfied that there were sufficient countervailing considerations to warrant the Australian community accepting any level of risk. He made this decision having regard to the considerations in Direction 79, entitled Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79 or the Direction).
Mr Kekulandala's criminal history includes domestic violence offences involving his former partner, current partner and step-daughter. The Minister submits that the Australian community should not have to bear the risk of Mr Kekulandala engaging in similar conduct and, when regard is had to the relevant considerations, the decision under review should be affirmed. Mr Kekulandala contends that there is no, or no more than a minimal, chance that he would engage in criminal conduct in Australia. He says that there is nothing else in the material before the Tribunal to indicate that he would engage in criminal conduct in the future, beyond his past criminal history, nor is it the case that he has engaged in a pattern of ongoing behaviour with an increasing trend of seriousness.
Mr Kekulandala was not placed in immigration detention following the refusal of his partner visa application. He remains in the community as an unlawful non-citizen pending the outcome of these proceedings.
RELEVANT EVIDENCE
Mr Kekulandala first arrived in Australia on 19 April 2005, aged 22, as the holder of a Student (Class TU) (subclass 573) visa to study. His movement records indicate that he has resided in Australia since that date, returning to Sri Lanka on two occasions.
Mr Kekulandala told the Tribunal he had a relationship in Sri Lanka with a woman called Thakshila, but it broke down. In 2009, while living in Victoria, he formed a relationship with Naomi Rajakaruna, who was also from Sri Lanka. He said that at this time he was failing his cookery and hospitality course at TAFE, was struggling financially and his father had been made redundant at home in Sri Lanka. His mental health was not so good.[2] No mental health support was available to him from the TAFE college.
[2] In this decision italics generally indicates a direct quotation.
He was involved in an incident with Ms Rajakaruna on Boxing Day 2010 at the Chadstone shopping centre in Victoria. In relation to this incident a report by Victoria Police stated:
OFFENDER INDIKA KEKULANDALA (20/07/82) HAS ATTENDED CHADSTONE AT 1730 HOURS ON 26/12/2010 IN THE HOPE THAT HE WOULD SEE HIS EX GIRLFRIEND NOAMI RAJAKARUNA AT SAME. VENUE AS THEY HAD BEEN THERE THE YEAR BEFORE. HAS WAITED AT CHADSTONE FOR APPROX 2 HOURS BEFORE DECIDING TO LEAVE. ON THE WAY OUT HAS PURCHASED A COKE IN A GLASS BOTTLE. ACCUSED WAS AT HIS CAR IN THE JR HI-FI CARPARK HAVING A SMOKE WHEN HE HAS SEEN VICTIM RAJAKARUNA WITH 2 CHILDREN AND ANOTHER MALE KNOWN TO HIM AS KIRAN. ACC. HAS APPROACHED VICTIM AND PARTY WITH BOTTLE STILL IN HAND AND ARGUMENT HAS ENSUED BETWEEN ACC. AND VICTIM. VICTIM HAS ATTEMPTED TO WALK AWAY WHEN ACC. HAS STRUCK VICTIM TO THE LEFT SIDE OF HER HEAD WITH GLASS BOTTLE. FIGHT HAS THEN ENSUED BETWEEN KIRAN AND ACC. UNTIL IT WAS BROKEN UP BY BYSTANDERS.
Mr Kekulandala gave this account of the incident: his relationship with Ms Rajakaruna had broken up, and she was by then in another relationship. He went to the shopping centre and waited for her, expecting her to come there. He saw her arrive with her two children and her new partner, Kiran Panchal, a former work colleague of his. He told the Tribunal Mr Panchal had earlier denied to him being in a relationship with Ms Rajakaruna. When Mr Kekulandala saw her with him he confronted him, and an argument, followed by pushing, between the two men broke out. Mr Kekulandala was carrying a glass bottle in his hand, and swung it at Mr Panchal, but it landed on Ms Rajakaruna’s head.
He told the Tribunal he was subsequently convicted in July 2011 in the Ringwood Magistrates Court of recklessly cause injury. He described the incident as one of the biggest mistake [sic] I have done in my life. He added:
…I was deeply sorry and regret. I am really shameful till today what happened from my hand on that day. [sic]
A family violence intervention order was granted against him in January 2011.
On 5 July 2011 there was a further incident. The Victoria Police incident report in relation to the incident records the following:
… VICTIM HAS AN ACTIVE INTERVENTION ORDER AGAINST THE OFFENDER, ONE OF THE CLAUSES INCLUDES FOR THE OFFENDER NOT TO BE WITHIN 200M OF ANY PLACE WHERE THE VICTIM RESIDES. AT APPROXIMATELY 12AM ON TUESDAY THE 5TH OF JULY, 2011, THE VICTIM RECEIVED A PHONE CALL FROM THE OFFENDER, THE OFFENDER HAS STATED THAT HE WAS GOING TO ATTEND THE ADDRESS AND DAMAGE HIS VEHICLE. AT APPROXIMATELY 1230AM THE OFFENDER HAS ATTENDED THE RESIDENTIAL ADDRESS OF THE VICTIM AND SMASHED THE FRONT WINDSCREEN OF WELLER'S VEHICLE WITH A GLASS BOTTLE AND DECAMPED FROM THE SCENE. THE OFFENDER HAS LATER CALLED THE VICTIM AND ADMITTED TO THE DAMAGE TO THE VEHICLE WHICH WAS HEARD BY POLICE.
Mr Kekulandala told the Tribunal that he had had a confrontation with Michael Weller, a later boyfriend of Ms Rajakaruna, on 5 July 2011 at a Woolworths store where they were both employees. A statement of Mr Kekulandala dated 21 September 2020 was tendered, in which he said that Mr Weller had confronted him, telling him to leave her [Ms Rajakaruna] alone. As a result, he lodged a complaint against Mr Weller with the store’s HR department. That night, Mr Kekulandala had a couple of drinks at home and then received a phone call from Ms Rajakaruna in which she remonstrated with him for lodging the complaint. He said that she told him, Oh, you’re making more problems for me. Why don’t [you] leave me alone? He then went to her house to talk to her, saw Mr Weller’s car parked in her driveway, used a bottle from which he had been drinking to strike the front and rear windscreens of the car and then returned home. After arriving at home, he received a further call from Ms Rajakaruna in which they spoke in Sinhalese. During the call, she asked him, Can you speak in English and tell to the kids you’re not going to be [harmful to] them – do anything like that? He then addressed the children, who he understood were listening to the call, saying:
Look, I’m really sorry. I didn’t mean to do anything like this to harm you guys at all, and it’s never ever ever going to happen from my hand again.
Under cross-examination Mr Kekulandala maintained that, notwithstanding the police summary, Ms Rajakaruna had called him that night, and not the other way around. He said she had changed her number and he didn’t have her current number.
He apologised to Ms Rajakaruna during this phone call. He said to the Tribunal I’m really remorseful of what happened [sic]. He was charged and convicted of two counts of contravening the family violence intervention order then in place and one count of criminal damage. These charges were dealt with in the Ringwood Magistrates Court on the same day as the offence committed at Chadstone was dealt with. In relation to the recklessly cause injury charge, he was sentenced to 3 months’ imprisonment, but the sentence was wholly suspended. He was also placed on a good behaviour order, requiring 30 hours of unpaid community work and an assessment for alcohol and drug addiction. The order was to run for 12 months. He carried out unpaid community work at the Salvation Army store at Oakley. He performed that community work for two to three days maximum, amounting to possibly as little as four hours of community work, he said.
Also on 7 July 2011 he was convicted of fail to answer bail. Of this he said I was scared what will happen and now it’s a mistake I have done.
Mr Kekulandala was asked about interactions between himself and Ms Rajakaruna in the period between December 2010 and July 2011. Several charges against him arising from that period, relating to contravene family violence intervention order and stalk another person were withdrawn in the Dandenong Magistrates’ Court in March 2020. Under cross-examination, he was taken to a police report in which it was recorded that Ms Rajakaruna had heard someone at her front door in the early hours of the morning on 12 June 2011. The report says that she saw Mr Kekulandala leave her property. He was asked whether he was at her property that night. He told the Tribunal he had no recollection of the incident. He was asked whether he had ever gone to Ms Rajakaruna’s house at night after his relationship with her had ended in December 2010. He denied this.
His student visa expired at the end of August 2011. Before that point he worked variously as a cleaner, a kitchen hand, a waiter, a supermarket shelf restocker and a car detailer. He relocated to Canberra in December 2011 to obtain work. He was then financially distressed and needed to borrow money to buy the train ticket. When he moved to Canberra he had not completed the 30 hours of unpaid community work as part of the order made in the Ringwood Magistrates Court. In January 2012 he was charged with failing to comply with the order. He told the Tribunal he had not appreciated the need to tell Corrections of his intention to relocate interstate. He will go to Victoria to sort out this matter when travel there is permitted.
He met his future wife Enriqueta (also known as Kitty) Waddell in Canberra in July 2013, and married her in December 2013. Mrs Kekulandala has a daughter, Ms Alley Waddell, born in May 1999, who is Mr Kekulandala's stepdaughter. Ms Waddell is the youngest of Mrs Kekulandala’s four children, and was 14 years old at the time her mother met and married Mr Kekulandala. He said to the Tribunal that he was worried during this period because he had used his parents’ money to study in Australia but hadn’t gained any qualifications. He didn’t make them proud. No counselling or psychological support was available to him.
Between 2016 and 2020 he was placed on a bridging visa while his substantive visa applications were considered. He worked in the construction industry during that time, using his income to support his household. In addition, he sought to provide a better life for Kitty, including by ensuring she was eating well. He gave details to the Tribunal of which medicines she was taking and her daily dosages. He also drove her to medical appointments in Wollongong on occasions. He said of her, I am always there for you, I will look after you, I love you rest of my life.
Mr Kekulandala said he was presently working as a cleaner. He agreed under cross-examination that he held no visa at this time and could not legally work, but said I have my wife to support, pay the rent and pay for her medication with other bills because I can’t leave her homeless if I won’t work. He agreed he had been in employment on a fairly regular basis. At one stage he had borrowed money from friends to cover living expenses.
On 5 February 2014, Mrs Kekulandala and Alley were having an argument. Mr Kekulandala said this was about an older man that Alley was seeing. He said Alley told him and his wife that she wanted to leave the home and go to a refuge. His wife had a back issue at the time, and Alley pushed her. Mr Kekulandala gave an open hand slap to the right side of his stepdaughter’s face. Alley went to a neighbour’s house where she rang the police. Mr Kekulandala was taken to the watch house where he spent the night. He was granted bail the next day. Later he pled guilty to a charge of common assault and was ordered to enter into a good behaviour bond for 12 months. He said there were no conditions attached to the order other than not to reoffend.
He said of the incident it’s totally my fault… I deeply regret I slapped on her [sic]… I apologised to her later on and to… Kitty.
On the evening of 2 April 2015, Mr Kekulandala, his wife and Alley had seen a movie. He was driving home with his wife in the passenger seat and Alley in the rear seat of the car. He told the Tribunal that an argument developed between him and his wife about what he would be doing the following day, Good Friday. He wanted to see some of his friends at a friend’s house, but she wanted him to be at home as she is a Catholic and the day is significant to her. His account is that he shifted the car’s gears from automatic to manual. He said that Alley got scared…was thinking I’m driving really high speed. However, he told the Tribunal it’s the rev-ness of the engine you can hear, they was thinking I’m driving fast [sic]. When he stopped the car at an intersection before turning right Alley got out of the car, followed by his wife. Once around the corner, Mr Kekulandala stopped the vehicle beside the road and waited for them, but they did not appear. He then drove home, and his wife and Alley arrived 10 minutes later. In the meantime, Alley had called the police.
In his statement of 21 September 2020 Mr Kekulandala gave the following description of that incident and its aftermath:
I also did not swear at Kitty or Alley saying ‘you’re a fucking bitch do you want to go to the cemetery’. I was frustrated and we were both yelling at each other, which probably scared Alley. Alley called the police when we returned home and she may have told them I said this to Kitty. Kitty did send a statement to them about what actually happened in the car and that she wanted the charges to be withdrawn.
When this matter was heard at the ACT Magistrates Court, Kitty denied that some of these things happened this way. She had sent them a handwritten statement of what happened in the car, but they apparently did not receive it.
When Kitty said this at the Court, the prosecutor threatened to charge her for not telling the truth and later said they never received the statement she sent them wanting to withdraw the charges. I plead guilty because we did not want Kitty to be charged.
A police summary of the incident was tendered. Unfortunately, the document had been redacted by the police before being submitted to the Minister’s department; in particular the names of Mrs Kekulandala and her daughter were redacted. These redactions necessitated extensive cross-examination of Mr and Mrs Kekulandala as to what names might have appeared before the redactions. It was not always clear to the Tribunal in the course of that cross-examination as to whether the witnesses were describing what they understood the document to have said before the reactions or were describing their recollection of the incident it described. Accordingly, in referring to the police summary, the Tribunal will assume that the names redacted are the names which best reflect the evidence of both Mr and Mrs Kekulandala as to what was said or done by whom in the course of this incident.
The police summary states that Mr Kekulandala said to his wife while they were in the car: You’re a fucking bitch, do you want to go to the cemetery? At the hearing he denied using those words, but said he made reference to the cemetery in the context of remonstrating with them for arguing while he was driving, distracting him and putting them at risk of life-threatening injuries. He agreed with his counsel that this was best characterised as a warning, not a threat. He also accepted in cross-examination that he had not provided this characterisation of the words he used in the car in either a statutory declaration he had sworn on 14 January 2017 nor in his statement of 21 September 2020, despite requests from the Minister’s department for him to provide further material in relation to the offences of April 2015.
The summary then says that Mr Kekulandala sped up, and one of the passengers:
…estimated the vehicle was travelling about 100 kilometres per hour...The posted speed limit on this area of road is 70 K/P/H.
He thought it was Alley who had made this estimation. He denied travelling at that speed. He said I was under my speed limit.
The police summary then records:
[Redacted] was crying and continued screaming at the Defendant. She tried to open the door as she feared for her life. She was unable to open the door as it had been locked.
Mr Kekulandala told the Tribunal that the redacted name was likely to be Alley’s.
His statutory declaration of 14 January 2017 was put to him. In this he stated:
As a result of this argument I was upset. Therefore, I was not aware that I was driving a little bit over the speed limit on the way home.
In the witness box he maintained nonetheless that he did not drive over the speed limit at that time.
He told the Tribunal in relation to this incident that he was not proud of what happened... I should take more consideration of how to behave and how to react in situations.
He was charged and convicted of two counts of common assault. One related to Mrs Kekulandala and one to Alley. At the time of the hearing of the charges on 12 August 2015 he was without legal representation. He could not recall if he was given a copy of the summary of facts on which the police were relying at the hearing. He told the Tribunal Alley was put in the witness box in a different room and gave evidence. However, his wife did not wish to give evidence against him. She answered maybe two or three questions before refusing to answer any more. He said that the DPP then proposed to charge his wife in relation to her refusal to give evidence. He told the Tribunal:
… I try to do is plead guilty and protect her getting charged from the court system. That’s what - even though the judge did at that time, then I said to the honourable judge [Kitty’s] had mental health issues and stuff like that, I explained to [the judge] in the court room and that’s why I took the plea of guilty and take that charge and walk away from there.
The following exchange occurred between counsel for the Minister and Mr Kekulandala:
…what I understand about your position is that you were saying that you accept that you’re guilty of [the offences he pled guilty to], but you don’t accept the facts, which are set out in…the police summary of facts?---That’s correct.
He was placed on a good behaviour bond for 12 months, but this did not include a requirement to attend counselling or other programs. The supervision element of the bond was terminated early, in October 2015. He told the Tribunal this was because his community corrections officer advised him that he presented a low risk of reoffending.
Asked about his relationship with his wife since that incident, he said:
…Kitty have a broad knowledge of domestic violence and women incarcerations with the computer work she has done, so she help me a lot to educate me how to – what is – what I should necessarily do not to get in trouble anymore in the community for any kind of wrong-doing or breaching any kind of law in the – in Australia. We talk about the situations in the newspapers or in the news in the TV, or either she’s reading so much magazines on those ones. Could be locally in Australia, could be internationally. I also talk about that situations happen in Sri Lanka with her and we discuss all those matters and we – she help me a lot to be the person to be I am.
He told the Tribunal he has been diagnosed with depression, stress and anxiety. In 2017/2018 he had eight or nine counselling sessions through CatholicCare, and from the beginning of 2020 with psychologist David Kendall. He is taking Seroquel and Escitalopram (formerly known as Lexapro) for his mental health conditions. He has found this regime of counselling and medication really helpful, permitting him to reduce the frequency of the counselling sessions. He feels his condition has improved since 2015. However, he said that the period it had taken for his visa applications to be considered (2016 to 2020) had put a lot of pressure on him and affected him really, really hard. Illnesses with which his wife had recently been diagnosed (lupus and fibromyalgia) had also added to the stress he experienced, as had the death of his mother-in-law.
He said there had been no further incidents of family violence in his home after the incident in April 2015. Asked how, following his counselling, he would deal today with a situation like the one at Chadstone, he said:
…I just really walk away from the situation, I won’t even talk about it at all. I’ll be a mature person, I’ll said “Okay, that’s fine” it’s - the relationship is end. It take my part away from there and we go from the situation and go home…
Similarly, he said he would walk away from a situation like the one with Michael Weller’s car if it happened again today, and in relation to the incident in February 2014, were it to recur, he said:
I will left Kitty to talk to Alley - and when things are calmed down only, I go and talk to Alley. I’m not getting involved with her to be - try to be parenting when she is refusing to give the advice from me, only the time I will appear to her to talk to her regarding any sort of issue when she is - when the time is right to talk to her and really calmly manage.
If a situation like the one in the car in April 2015 happened again, he said:
I will keep concentrating on driving and until we reach home without any issues and then make a cup of tea for Kitty and sit down with her and talk about how we are going to associate our friends, how I expect to have more time with her and what she is saying I always there for her to love her, look after her and be with her for the rest of her life.
He said mental health treatment in Sri Lanka is really poor.
Mr Kekulandala said that his wife receives the disability support pension and is a participant in the National Disability Insurance Scheme (NDIS). The latter furnished some gardening and cleaning support at home and some counselling, but provided no income directly to her.
His stepdaughter Alley lived with them until she was 19 years old, apart from two periods when she moved out following tensions within the household. She now lives by herself in Canberra. He said his relationship with her now was not a really close one, but it’s not really far away one.
Mr Kekulandala said that he had several friendships through a local cricket club. He and his friends socialise outside cricket matches and training. His wife sometimes participated in those social events.
Under cross-examination, he was taken to the visa application documents he had lodged on 7 October 2016. His attention was drawn to a part of one form where he had ticked a box recording that he had been convicted of an offence, but where he had failed to provide relevant details of any of those offences in the box provided in the form. It was put to him that he failed to include those details because it would paint him in a worse light, for the purposes of his application, if he did. He denied this, saying that he had provided all relevant information to his migration agent, but she had failed to include it in the documents she prepared and submitted to the Department. He also said that he didn’t have an AFP police check with him when he filled in the application. However, he accepted responsibility for the contents of the document the migration agent lodged bearing his signature.
In re-examination, Mr Kekulandala’s attention was drawn to a visa application form completed on his behalf and dated 12 April 2016, in which he was asked if he had been charged with any offence that is currently awaiting legal action? The response provided reads:
I have been charged once with common assault and twice under family violence released on good behaviour bond, community work and meeting with correction officer by the court. Last offence good behaviour bond to expire in 2016. Evidence and update AFP will be submitted
He told the Tribunal that he provided information about those matters to his migration agent. He said that the matters referred to were the matters dealt with in the ACT. He said he did not receive his AFP police check until after that form had been lodged with the Department.
Mrs Kekulandala
Mr Kekulandala's wife, Enriqueta, known as Kitty, gave evidence. Her statement dated 20 September 2020 was also attended. In it, she said, inter alia:
We began our romantic relationship in or around August 2013, after meeting in July. I have known all about his offending in Victoria since the beginning. In 2017, I have seen all the documents sent by the Department regarding these offences which have matched everything that he told me at the start of our relationship.
I fully support my husband. He volunteered the information about his offences with his ex-girlfriend and also his visa status, he has never tried to keep me in the dark about anything and I have never pressed him for information because he has always been honest with me.
…
My own background is in domestic violence. I was the Women’s AVO Court Support Officer at Wollongong Women Information Service for ten years, where I saw these types of cases all the time. When I came to Canberra after my divorce, I worked for Beryl Women Inc for more than two years and then the Canberra Rape Crisis Centre.
I know intimately that this type of violence is not acceptable or to be tolerated and I don’t tolerate it myself. However, I do not judge his circumstances at all. He had some impulse control issues at the time which I think he has grown from and he is not like that anymore. Indika’s ability to handle stress has definitely gotten better. There are a number of stressors in our life at the moment, including my health and our worries that we will be separated, but he does not lash out and he is not violent. We have stresses in our lives, particularly this year given my health issues, including my admission to the stroke unit of the hospital.
COVID19 Pandemic, the loss of my mother and his visa uncertainty, he has not been violent nor shows any sign of this being a concern. He also is much more aware of needing to seek assistance when required, and has been seeking the assistance of David Kendall, a psychologist.
…
I have been diagnosed with Borderline Personality Disorder, Bipolar Type II and Post-Traumatic Stress Disorder. I have Fibromyalgia and also Lupus, which is currently in remission.
…
On 10 August 2020, I had to go to the hospital because half my face as drooping down. The doctors thought it was a stroke at first but I was later diagnosed with Bell’s Palsy.
…
Indika supports me throughout all of the pain.
…
Indika does the cooking and grocery shopping to make sure I am eating correctly.
…
I do not walk with a cane or need someone to help me bathe or get out of bed, however my health issues will get me to a point where I will need someone to help me with these things. Knowing that this is what will happen to me in the future does depress me greatly and I will need someone to be there for me, not just physically but also emotionally. I want and need that person to be my husband.
…
All I have is Indika and Alley, but Alley cannot care for me. She had a tough time in her childhood. She is currently receiving Centrelink and could not support me financially or physically.
Mrs Kekulandala told the Tribunal what had happened on 5 February 2014. She said she and her husband had been discussing some medical reports about a condition in her back, when an argument broke out with Alley. Alley told them that she wanted to move out of the home to live with an older man. Mrs Kekulandala then said:
And so that argument proceeded to – to her room. I followed her to her room because she went to pack up her things and she kept saying that she wanted to move out. And I said, 'Where are you going to go?' I said, 'This is your home.' And she said, 'I prefer just to go to a refuge.' And then Indika got in front of me and then she started yelling at Indika, saying things like, 'You're not my father. I don't have to listen to you.' And then somehow Indika did slap her, but it was a slap, it wasn't a punch. And straight away I did say to Indika that that wasn't, you know, tolerated. That I, you know, I did not tolerate that. And Ally started crying, then she ran from the house. I didn't know at the time but she ran to a neighbour's house and that's where she called the police…
He was apologetic straight away. Yes. He said, 'Look, I shouldn't have done that', you know, 'I shouldn't have got involved in your argument between you and your daughter.'
She told the Tribunal she thought her daughter was justified in ringing the police, as her husband had crossed a boundary.
Mrs Kekulandala also gave evidence about the incident in April 2015. She said:
So we were arguing all the way to – back home because we were all living at Harrison, and on Flemington, beginning of Flemington Road we were having an argument and I perceived that he was going fast, you know, faster than the 70 kilometres. That's what I perceived at that point in time. Ally started crying because she was in the back and then I do remember him saying to me something about, 'Do you want me to end up in the cemetery?' or, 'Do you want all of us to end up in the cemetery?', something like that. So that really scared Ally and that did scare me as well. Indika already, by this time, Flemington Road's a very long road, so at the intersection of turning right into where we lived in Mapleton Avenue, going to the intersection there's traffic lights and he already had stopped the car where Ally jumped out, so by that time that we got home, Ally had rung the police…
She said under cross-examination that she felt her husband was driving more than the speed limit… the car was moving fast, though she could not say whether it was travelling at about 100 kph. She said I must have been feeling that day that I thought he was going to crash the car… I must have been worried about my safety at that time. She confirmed that, to the best of her recollection, Alley was crying and screaming at Mr Kekulandala, and tried to open the car door. She agreed that her husband did say You’re a fucking bitch, do you want to go to the cemetery?
She said later her husband was very apologetic when we spoke about it, because he knew that Ally and I got scared because we both felt that the car was travelling more than the speed limit.. he said that he shouldn’t have acted or reacted to our disagreement in the car – the argument – in that manner. There were stresses in the family unit at the time around Mr Kekulandala not having employment. She said that there had been big differences since then in that he had undertaken counselling to learn conflict resolution techniques. Under cross-examination, she said she did not think Alley had been justified in calling the police without first discussing the issue with her.
Mrs Kekulandala told the Tribunal that she later asked the ACT Director of Public Prosecutions if she could withdraw the charges against her husband, but was told this was highly unlikely because Alley was under 18 at the time of the offences. She wanted the charges withdrawn because we were married and I didn't want any other, I guess – how can I say? – influences or anything like that to – to go against our marriage. She was advised to write a letter setting out her viewpoint, which she did, though she thought that the prosecutor’s office had not received it at the time of the hearing. On the day of the hearing:
…I was really upset and I didn’t want to give evidence, and I said that to – I think I might have said it to the magistrate that was residing that day, and the police prosecutor made it quite clear that I had to give evidence. But I said it really quite firmly that I didn’t want to give evidence against my husband Indika on that day.
So then what happened after that?---I got – like I said, I was really upset. I was really in my emotional mind, and so I actually left the courtroom, and I think I went back to my car…
And are you aware that Indika ended up pleading guilty to the charges?---I only found out when he came to the car, because we travelled in the same car. That’s when I learnt that he pleaded guilty.
Mrs Kekulandala said that her work in various domestic violence services had given her knowledge and experience of the domestic violence cycle …and how that changes throughout the relationship. And I know about the red flags of domestic violence. She had discussed those issues with her husband, and given him advice on ways to observe the red flags. He had been Really receptive to that advice. There had been no further incidents of domestic violence between them since the April 2015 incident.
She described stresses in the family brought about by challenges to her health, the death of her mother, periods of unemployment for her husband and uncertainty about his visa status. Mr Kekulandala had supported her during that time. He was coping with the stresses in a positive manner, thanks largely to the counselling he has received. She receives the Disability Support Pension, though Mr Kekulandala had been supporting the family financially in recent times.
Mrs Kekulandala described the range of health issues she is experiencing, including Bell’s Palsy, a stomach condition, fibromyalgia and lupus. She said her husband drives her to medical appointments in Wollongong, supervises her medication regime and prepares food for her. He also supports her on days when she is mentally unwell. Her mental health conditions had been factors in three occasions when she had overdosed and been taken to hospital. Her husband had called the ambulance on those occasions. He was also integrated into her suicide prevention plan; if she is feeling unwell, Indika's my first point of call.
She told the Tribunal there was no one else in Canberra who could look after her if her husband returned to Sri Lanka. Alley no longer lives with them and has her own life and her own issues. She also described is as not realistic for her to join her husband in Sri Lanka if he lived there. She did not believe her physical and mental health issues could be accommodated there. Travel there by plane would be difficult on account of the effects of her fibromyalgia. In addition, there were culture and language barriers and the heat there would be deleterious to her lupus condition.
Mrs Kekulandala said that she would be devastated if her husband were returned to Sri Lanka. She added:
Because also part of my mental health, sometimes I have issues with abandonment, so that would trigger my mental health in a big way. It would trigger my feelings of abandonment, and that would - you know, not that I want to go there, but that would cause me to self-harm or self-suicide ideation, so ideas around about suicide as well, so yes, it could possibly go that way.
Ms Lisa Jackson
Ms Lisa Jackson is a Victorian psychologist specialising in forensic assessments and victims of crime assessments. She gave evidence by video conferencing.
She assessed Mr Kekulandala on two occasions in September 2020. On the second of those occasions Mrs Kekulandala was also included in the assessment. These assessments resulted in a report dated 15 September 2020. The report read, in part:
To assist the tribunal in identifying Mr Kekulandala’s risk ratings for future family violence, the SARA (Spousal Assault Risk Assessment Guide) was administered. The SARA is a clinical checklist of risk factors for spousal assault. It comprises 120 individual items that include spousal assault history, alleged/most recent offence, criminal history and psychological adjustment.
…
The summary Risk Rating was determined as a low risk of violence towards his partner and a low risk of violence towards others based on the results of the screen which showed raw scores well below the descriptive cut off of 20 for Total Score (the total sum of the screen) and 8 for Number of Factors Present (identification of factors in his history). Mr Kekulandala’s raw score was 9 for Total Score and 4 for Number of Factors present. His history suggests also that the absence of any further offending in 5 years, the insight Mr Kekulandala has shown in regard to his offending and the absence of any psychosocial problems (relationship and employment problems, substance abuse problems, suicidal or homicidal ideation, psychosis and personality disorders) coupled with the protective factors evidence in his life which include, relationship stability, housing, the support that has been shown by his friends and associates, his involvement in a local cricket team and employment stability are all strong factors that reflect reduced offending risks.
She told the Tribunal, as a result of her assessments, I formed the opinion that he had a very low risk of reoffending. With respect to his level of insight regarding his previous offending, she said:
My view was that he did have some insight into the triggers and the factors that resulted in his offending. He was able to talk about the stressors in his life at particular times of those offences. He was able to tell me about his inability to properly manage his emotions at the time. He talked about work stressors. He talked about the stressor of maintaining his visa status. He talked about his inability to be able to cope with rejection in relationships. He talked about his, what I’d (indistinct) with guided direction in assisting his wife with his daughter, who was the subject of an assault. So, I felt he had a pretty good - not perfect - but a pretty good insight into the factors at the time that resulted in his offending.
Ms Jackson opined that Mr Kekulandala’s mental health would most probably deteriorate if he were separated from his wife by being repatriated to Sri Lanka.
Under cross-examination, she conceded that it might have been helpful to interview Alley as a victim of Mr Kekulandala’s offending. She later added:
…in the ideal world it would be great to interview all parties involved in any past offending in this, but sometimes it's just not practical, and the fact that I took time out to talk to Kitty and ask her about those relationships between himself and their daughter satisfied me.
Mr David Jebarajah
Mr Kekulandala also called several other witnesses to give what might best be described as character evidence. The first of these was Mr David Jebarajah, whose statement of 16 September 2020 in relation to Mr Kekulandala was tendered. He said he had been a friend of the latter since January 2006. He now lives in Adelaide, but said he stays in touch with Mr Kekulandala by telephone at least once a month, and has visited him and Kitty in Canberra in 2014. On that occasion he observed Mr Kekulandala assist his wife in taking her medication and keeping the house clean.
Mr Jebarajah gave some details to the Tribunal of the offending in both Victoria and the ACT, which he said had been conveyed to him by Mr Kekulandala. He did not refer however to the incident in the car at Easter 2015. In relation to all of his offending, he said that Mr Kekulandala had told him he regretted his actions.
Dr Daminda Solangaarachchi
Dr Daminda Solangaarachchi gave evidence. Statements of his dated 28 November 2019 and 17 September 2020 were tendered. He met Mr Kekulandala in 2015 through their mutual involvement in the Lanka Lions Cricket Club and through the Sri Lankan community in Canberra. In recent years he said we sort of shared our thoughts on personal matters.
He said he had spoken to Mr Kekulandala about his offending, as detailed in an AFP certificate he had seen. He reported that Mr Kekulandala felt bad about those things and then he always like he shouldn't have done that kind of [thing]. He also said that Kitty remains Mr Kekulandala’s main concern; he said that when they first discussed Mr Kekulandala joining the cricket club, he had said he couldn’t commit to playing because he may need to look after his wife. He formed the impression that the priority was not cricket, the priority was Kitty. He said he had seen Mr Kekulandala with Kitty when they were shopping and when she came to the cricket field a couple of times.
Dr Solangaarachchi said that before he had met Mr Kekulandala he had been told he was a difficult character… a person who [argues] about things, but as a player he observed that he had remained calm: no arguments with opponents, no argument with other players. He said that, as other team members got to know him bit by bit, they were keen to support him.
Mr Dilshan Rodrigo
The Tribunal took evidence from Mr Dilshan Rodrigo from Melbourne. His statement of 17 September 2020 was also tendered. Mr Rodrigo said he had been one of Mr Kekulandala’s closest friends in Australia for 12 years. He was aware of Mr Kekulandala’s offending; of this he said, in his statement, he always regrets his actions about those incidents and he take fully responsibility of his behaviour [sic].
Mr Rodrigo said that he had not seen Mr Kekulandala in person since 2012, but spoke to him on the telephone. He had visited him in Canberra in 2012 but had never met Kitty. He said that Mr Kekulandala often spoke, during their telephone calls, about what Kitty was doing.
Under cross-examination, he recalled details of the offending in Victoria and the ACT which Mr Kekulandala had related to him.
Mr Mewan Lakshan Weerawardene Silva
Mr Mewan Lakshan Weerawardene Silva gave evidence by telephone. Two statements by Mr Silva were tendered, dated 29 November 2019 and 21 September 2020. He has known Mr Kekulandala since meeting him in Canberra about six years ago. He said he was aware of the incidents surrounding his offending from 2011 to 2015. Of these he said Mr Kekulandala always regrets his actions about the incidents [that] occurred and he has determined not to repeat these again. He came to this view by talking to Mr Kekulandala.
He said he had visited Mr Kekulandala’s home on numerous occasions. He considered that he was a caring husband for Kitty and had been worried about her health condition when she was admitted to hospital two months previously with a suspected stroke.
Under cross-examination, he said that Mr Kekulandala had told him about the incidents leading to his convictions, though he said he didn’t seek details because they were too personal. He recalled a few details from those conversations; for example, the Chadstone incident had happened in a car park and had involved Mr Kekulandala’s ex-girlfriend and her new partner.
Mr Silva spoke about Mr Kekulandala’s activities in the Sri Lankan community of Canberra. He and Mr Kekulandala had recently arranged to send some aged care electric beds to Sri Lanka; Mr Kekulandala had been helpful in fundraising and in transporting the beds. In addition, they had socialised at both his place and Mr Kekulandala’s home.
LEGISLATION AND POLICY
The Act
The delegate’s reviewable decision of 27 July 2020 was made pursuant to s 501 of the Act. Relevantly, the section provides:
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
…
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(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; or …
Otherwise, the person passes the character test.
The Direction
Section 499 of the Act provides that a decisionmaker, including the Tribunal, must comply with a direction made thereunder by the Minister. The Minister has made Direction 79, Part B of which sets out three primary considerations which a decision maker must take into account in determining whether to grant a visa to a non-citizen:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Part B also sets out four other considerations to which a decisionmaker must have regard:
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.
These considerations are not, however, an exhaustive recital of the matters which the Tribunal may consider.
Two further provisions of the Direction are relevant to these proceedings. Section 2 of Annex A provides the following guidance with respect to the question of risk as referred to in s 501(6)(d) of the Act:
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
More specifically, paragraph 6.1 of Section 2 provides, for the purposes of subparagraph 501(6)(d)(i):
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
ISSUES
Section 501(1) confers a discretion on the Minister to refuse a visa. The discretion is conditional, however; if the Minister is satisfied that the visa applicant passes the character test, he or she must grant the visa. The discretion arises only where the Minister is not satisfied that the applicant passes the character test. The Minister’s delegate, in this case, considered that Mr Kekulandala did not pass the character test because there is a risk that he would engage in criminal conduct if allowed to remain in Australia (s 501(6)(d)(i)).
The Tribunal’s primary task is, therefore, to determine whether that risk exists. If it considers that the risk does not exist, the discretion is not enlivened and it must set aside the delegate’s decision and grant the visa. If, however, it considers that the risk does exist, it must, as a secondary task, consider whether the discretion should nonetheless be exercised to grant the visa.
For the reasons which follow, the Tribunal does not consider that the risk referred to in s 501(6)(d)(i) exists. Even if, contrary to that finding, the risk does exist, the Tribunal would consider that the discretion should be exercised in favour of granting the visa.
CONSIDERATION
As indicated above, there are two questions before the Tribunal. The evidence which is relevant to the first question is also, by and large, relevant to the second question, and so the Tribunal’s findings with respect to the evidence overall assist it in answering both questions. Accordingly, some of the factors discussed and assessed by the Tribunal in relation to the second question may also be relevant to the first question, although, as a matter of convenience, they are not necessarily discussed in that section of these reasons.
Does Mr Kekulandala pass the character test under s 501(6)?
Mr Kekulandala contended that there is no, or no more than a minimal, chance that he would engage in criminal conduct in Australia for the following reasons:
(a)The context in which his earlier offending arose was in the particular circumstances of his being in Australia without any family support;
(b)The offending in 2014 and 2015, which impacted his wife and stepdaughter has not recurred and was early in their relationship. He is extremely remorseful and sorry for his actions;
(c)He has no other record of offending, either in Australia, or overseas;
(d)The last instance of criminal offending occurred in 2015 and he has not committed any further criminal offences since that date;
(e)He is now residing in Australia and is supporting his wife and has the ongoing support of the community in Canberra. He plays cricket locally, has generally been able to maintain employment, has taken significant steps to be engaged with ongoing mental health treatment and fully appreciates the significance of his visa being refused, as it greatly impacts his Australian citizen wife for whom he is the main carer.
Mr Kekulandala further contends that there is nothing else in the material before the Tribunal to indicate that he would engage in criminal conduct in the future, beyond his past criminal history, nor has he engaged in a pattern of ongoing behaviour with an increasing trend of seriousness which would be of concern, noting his last instance of offending was in 2015. In this context, it is unrealistic to think that he presents as a person who “would” commit crimes in the future. Accordingly, the Tribunal should find that he passes the character test.
On the other hand, the Minister submitted that the Tribunal must ask itself whether there is a risk that Mr Kekulandala would engage in criminal conduct. As noted in QKVH v Minister for Home Affairs [2018] AATA 1855 at [13], the word risk is not qualified by any adjective such as “significant”, “substantial” or “real”. In considering this question, regard should be had to his offending together with such other factors which are relevant to assessing whether he would engage in criminal conduct in the future. That offending includes common assault on his current spouse and stepdaughter, recklessly causing injury to his former partner, contravention of a family violence order and criminal damage. As a result of those offences, Mr Kekulandala has been found to have engaged in criminal conduct on four occasions.
His conduct demonstrates disregard for Australian laws. The Minister contended that he has not shown a sufficient level of insight into his offending or acknowledgement of responsibility for his offending to suggest that the risk of him behaving in that manner again is so low that the Tribunal could be satisfied that he won't engage in criminal conduct again. On the contrary, Mr Kekulandala has displayed a disregard of judicial orders, and has demonstrated a pattern of behaviour in assaulting his partners. Therefore, there is a risk that he will engage in criminal conduct if allowed to remain in Australia.
An examination of Mr Kekulandala’s criminal record is the appropriate starting point of the Tribunal’s task. The record which the Minister asserts creates the risk that Mr Kekulandala would engage in criminal conduct in Australia consists entirely of offences associated with domestic violence, or offences associated with them, such as the failure to answer bail in 2011. There is little to suggest that Mr Kekulandala presents a risk, in the sense used in s 501, of any other kind of criminal behaviour.
That domestic violence criminal record itself consists essentially of four offences committed between 2010 and 2015: two in Victoria (the reckless injury of Ms Rajakaruna in 2010 and the criminal damage to Mr Weller’s car in 2011) and two in the ACT (the slap to Alley in 2014 and the “assault” of Alley and his wife in 2015).[3]
[3] The Tribunal's use of inverted commas here is explained below.
Several preliminary observations can be made about this criminal record. The first is that the most recent offence is more than five years old, with the evidence of both Mr Kekulandala and his wife being that, not only have there been no further charges in the intervening period, there have been no further incidents. The second is that the offences show a trend of decreasing seriousness. Only the first of his offences, a decade ago in 2010, attracted a sentence of imprisonment (wholly suspended), and the most recent offences in 2015 attracted a no more serious penalty than a good behaviour bond, and even then the supervision element of the bond was terminated within two months, on the basis, it seems, that he presented a low risk of reoffending.
The third observation is that the record as a whole, though concerning, falls very much at the milder end of the domestic violence spectrum, by reference at least to other visa refusal or revocation decisions based on domestic violence that have been before the Tribunal in recent years. Of course, the offences – other, perhaps, than the offence against Mr Weller’s car – must be viewed as being very serious. Paragraph 11.1.1(1)(b) of the Direction provides that a decisionmaker must have regard to:
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed…
Notwithstanding that prism through which crimes of violence against women or children must be viewed, the Tribunal is entitled to consider where, on the spectrum of very serious offences, these particular offences fall. In this respect, the evidence shows that there are mitigating factors in relation to all these offences which, in my opinion, place them at the milder end of that spectrum, for the following reasons.
In many respects the most serious of the four offences is the earliest, the offence of recklessly cause injury to Ms Rajakaruna in 2010. In waiting for his former partner for several hours at a shopping centre at night it might be inferred that Mr Kekulandala anticipated some kind of confrontation with her, even a physical one. The fact that this ensued – and that he resorted to violence, using an object readily to hand, a glass drink bottle – reflects poorly on his judgement and self-control. He received a three-month suspended prison sentence and was ordered to do 30 hours of unpaid community work.
Certain mitigating factors should be taken into account. The most important of these is that it is tolerably clear he did not intend to strike Ms Rajakaruna. His evidence – that he intended to strike Mr Panchal, but hit her instead – must be accepted, given that the charge proffered to the court was not of assault but of recklessly cause injury. Of course, having the intention to strike Mr Panchal is inexcusable, but is slightly less reprehensible than intending to strike a woman. Other factors include his present attitude towards this offending, his acceptance of personal responsibility for it and his steps to address other relevant issues, in particular his mental health, in the intervening period. These factors are discussed below.
The second offence is again a serious one. The physical damage to Mr Weller’s car windscreens could be viewed as an outburst of anger, vengeance, intimidation or jealousy, or perhaps all four. That he travelled to Ms Rajakaruna’s home before committing this offence should have given him the opportunity to reflect on the infelicity of the journey, but he failed to do so, again reflecting impulsive behaviour and poor judgement on his part. It also suggests a contempt for the law, given the family violence order then in place preventing him approaching her.
Moderating these judgements, if only slightly, was the fact that Mr Kekulandala testified that he admitted to the offences and expressed remorse personally to Ms Rajakaruna that same evening, and gave assurances over the telephone to her children that he would never harm them and would never act again as he had done that night. These acts give some support to the insights he expressed before the Tribunal about the inappropriateness of his conduct and his subsequent efforts to prevent such behaviour recurring.
The Tribunal now turns to the assault of his teenage stepdaughter, Alley, in 2014. On this occasion Mr Kekulandala intentionally struck her in the face in what must be assumed to have been a moment of anger. Alley was a child of 14 at the time. Such conduct is completely unacceptable and must be viewed, consistently with the Direction, as very serious.
Again, there were other factors to consider. The slap occurred in the context of an argument between Mrs Kekulandala and her daughter. According to Mr Kekulandala, he slapped Alley after she had pushed her mother, who was experiencing a problem with her back. This account, together with that of Mrs Kekulandala of the same incident, suggests that he was motivated to protect either the person or the authority of his wife in the face of her daughter’s actions. This context does not excuse Mr Kekulandala’s use of violence against a vulnerable person, but does suggest a very different motivation to the previous offences of which he was convicted. He was convicted of common assault but no financial or community service penalty was recorded, implying that the court also considered that there were mitigating factors. He was required to enter into a bond to be of good behaviour for 12 months.
Mr Kekulandala expressed remorse for his actions, not only in the face of the Tribunal but – significantly – in the immediate aftermath of the incident, according to his own evidence and that of his wife. The Tribunal also notes that this is the only occasion on which Mr Kekulandala has deliberately used force against a member of his family circle.
The fourth and last incident of offending requires some analysis. Between the evidence of Mr and Mrs Kekulandala and the (unhelpfully) redacted police incident report, a reasonably consistent account of the incident at Easter 2015 can be discerned. The family was travelling home by car after a movie when an argument broke out between Mr and Mrs Kekulandala about the former’s movements the following day. Mr Kekulandala made a remark regarding a cemetery; his version is that this was a warning not to distract him while he was driving, whereas his wife’s (and presumably her daughter’s) was that the comment was more abusive in the language used (fucking bitch) and carried the tone of a threat. Mrs Kekulandala and her daughter held the belief that the car had accelerated above the speed limit; Mr Kekulandala insisted that it had not, but admitted that he “revved” the engine so they may have perceived that he was speeding.
Alley was crying and screaming at Mr Kekulandala. She attempted to open the car door but it was locked. When the car stopped at an intersection, first Alley and then Mrs Kekulandala exited the vehicle and walked home. Alley rang the police who attended their home and later arrested Mr Kekulandala.
He was charged with two counts of common assault, one in relation to his wife and the other in relation to his stepdaughter. The Tribunal was initially puzzled as to how the incident in the car, involving no contact between any of the passengers in the vehicle, could constitute an assault. Counsel for the Minister explained that the charge should be understood as relating to the common law notion of assault, meaning:
…the making of an unlawful and intentional (or possibly only reckless) threat to inflict imminent force against the person where the victim was aware of the threat…[4]
As the Australian Law Dictionary explains:
A distinction was maintained at common law between common assault and battery. Increasing codification of criminal law has resulted in abandonment of this distinction and in Australia ‘assault’ now commonly refers both to common assault and actual infliction of force.[5]
[4] Australian Law Dictionary, 2nd edition, OUP, 2013, p 54.
[5] Ibid.
Evidently, the offence was constituted by the two passengers fearing for their safety. The mechanism by which this occurred is not entirely clear; it may have been by reason of the way Mr Kekulandala was driving, by what he said to them or how he said it, by the belief by Alley that he had locked the car doors, or by some combination of these factors. However, there is no evidence that he inflicted any physical violence (battery) on either of his passengers. In this sense it is quite different from the assault (at common law, the assault and battery) of Alley which occurred in February 2014, despite the fact both offences were labelled as common assault. He pleaded guilty to two counts of common assault in August 2015 in the ACT Magistrates Court.
As convictions for common law assault against his wife and stepdaughter, these offences fall within the ambit of paragraph 11.1.1(1)(b) of the Direction, namely crimes of a violent nature against women or children, and they must therefore be viewed very seriously, as the paragraph directs. Nonetheless, it is plain that offences committed in these circumstances, entailing no physical harm to the victims, fall at the milder end of the spectrum of crimes of a violent nature. Although very serious, the Tribunal also regards them as the least serious of the offences making up Mr Kekulandala’s domestic violence record.
Mr Kekulandala went to court in August 2015 ready to dispute the assertion that he had been speeding. Although the record of precisely what occurred that day at the court is unclear, it should be accepted that he entered a plea of guilty, and forwent the opportunity to prove his version of the incident, in order to spare his wife being charged for refusing to testify against him. This decision, in the Tribunal’s assessment, stands to his credit.
Overall, this record of offending, though unacceptable and at odds with the values of Australian society, does not create the impression of a man prone to random acts of violence or one indifferent to the rights and dignity of the women in his life. While his temperament has undoubtedly played a role in that record, so too has mental illness and significant external stresses. And while these factors, if left unaddressed, would justify concern about a possible resort to domestic violence in the future, in reality Mr Kekulandala has confronted those factors and has, in the Tribunal’s assessment, made significant strides in overcoming them. Against this background, the Minister’s claim – that Mr Kekulandala has demonstrated a pattern of behaviour in assaulting his partners – tends towards exaggeration, even hyperbole. In fact, the evidence does not show that Mr Kekulandala has ever assaulted (by which I mean intentionally struck or otherwise physically harmed) any of his partners. The claim appears to be a singularly tenuous basis on which to refuse a visa to a man who is happily married to, and supported by, an Australian citizen.
Against his record must be placed the steps Mr Kekulandala has taken in the five years since the last offending occurred to accept ownership of his crimes and to remediate the elements in his life which contributed to their occurrence. Following a diagnosis of depression, stress and anxiety he has received counselling sessions through CatholicCare in 2017/18 and support from a psychologist throughout 2020. He is on a medication regime and reports that this, together with the counselling, have allowed him to reduce the frequency of visits to the psychologist. In the opinion of Ms Jackson, a psychologist specialising in forensic assessments, Mr Kekulandala had gained through those interventions a pretty good insight [though not perfect] into the factors…that resulted in his offending.
In addition, he gave extensive evidence about his attitude towards his past offending and what tools he had adopted to prevent the recurrence of such behaviour. He expressed sorrow and regret for his actions in relation to all the offences, and he described the different approaches to those incidents he would adopt today in the similar circumstances. The incident at Chadstone was one of the biggest mistake[s] I have done in my life. He said he was really remorseful for what occurred at Ms Rajakaruna’s home in July 2011, remorse which he told the Tribunal he expressed that same night on the telephone to Ms Rajakaruna and to her children. He has learned, he said, that the appropriate response to such circumstances is to walk away.
Similarly, his evidence and that of his wife in relation to the slapping incident in February 2014 was that he took responsibility for his actions, expressed regret for them and apologised to his wife and stepdaughter soon after the incident occurred. His present attitude towards the incident in the car in April 2015 is slightly less clear, given that he disputes certain details of what occurred, but what is apparent is that he takes responsibility for the feelings the incident generated in his wife and Alley; he was not proud of what happened and conceded that he should take more consideration of how to behave and how to react in [similar] situations. This evidence is reflective of Mrs Kekulandala’s testimony that her husband was:
…very apologetic when we spoke about it, because he knew that Ally and I got scared because we both felt that the car was travelling more than the speed limit.. he said that he shouldn’t have acted or reacted to our disagreement in the car – the argument – in that manner.
If such an argument arose again, he told the Tribunal he would keep concentrating on driving … until we reach home without any issues and then make a cup of tea for Kitty and sit down with her and talk.
It was the Minister’s submission in his Statement of Facts, Issues and Contentions that claims of contrition and fresh insight into Mr Kekulandala’s offending was unsubstantiated, although this assertion was not re-offered during closing submissions. To the extent that the assertion remains on foot, The Tribunal rejects it for the following reasons:
(a)Mr Kekulandala gave the Tribunal the impression of a man genuinely remorseful for his past actions. Even under skilful cross examination, he insisted that he had made errors of judgement and was determined to avoid repeating them. These sentiments did not appear rehearsed or formulaic, but rather supported the view that he has achieved a genuine insight into the inappropriateness of his past behaviour.
(b)The evidence of Mrs Kekulandala was particularly persuasive. The Minister’s representative described her as a very impressive witness. She presented as a truthful witness with clear insights into her relationship with her husband. She was forthright about what she saw as past failings by him, and spoke extensively about the discussions they had had about his past behaviour and the methods she expected him to use to avoid their repetition. Given her own significant background working in domestic violence services, she had a particularly clear view about the boundaries of such behaviour, and spoke of her capacity both to recognise for herself the red flags of domestic violence but also to guide her husband to do the same thing. She said that her husband had been receptive to her advice and that there had been no incidents of domestic violence since the April 2015 incident.
She was frank about the stresses on her husband brought about by unemployment, uncertainties surrounding the visa application process and her own health challenges, but said she discerned that he was able to deal with them in a positive manner. She spoke of the distress which the separation from her husband, which would necessarily follow his repatriation to Sri Lanka, would cause her, but her advocacy for him did not appear to be self-serving for the purpose of avoiding that outcome. The effect of her evidence was that it appears he is better equipped to deal with domestic violence triggers then was the case five years ago, and that that evidence is compelling in that it carried the weight of a dual understanding of the nature of those triggers and of her husband’s present state of mind.
(c)The evidence of Mr Kekulandala’s friends was consistent with the view that he has expressed genuine remorse and contrition. He had discussed his offending with each of them (although sometimes, apparently, in only sketchy detail), in some cases several years before he sought statements from them to assist in these proceedings. Each witness reported that Mr Kekulandala had expressed regret for his actions. In none of this evidence was there any suggestion that Mr Kekulandala had spoken of exculpatory or mitigating circumstances for his offending, or of qualifications to his remorse, so as to intimate that his expressions of regret may have been half-hearted, contrived or insincere.
Paragraph 6(2) of Annex A to Direction 79 guides a decisionmaker as to what level of risk must be found before it can be said that there is a risk that an applicant would engage in criminal conduct, pursuant to s 501(6)(d)(i). It might be assumed that a person who has previously broken the law, no matter how long ago or how different the circumstances, carries some risk, however minute, of doing so again. However, the paragraph provides that the risk referred to in the Act is a risk that is more than a minimal or remote chance that the person will reoffend. The fact that a person has engaged in offending conduct in the past is not a sufficient test of whether they meet this threshold (paragraph 6(3)).
The Minister referred to the report of Ms Jackson of 15 September 2020, to the effect that Mr Kekulandala presented a low risk of violence towards his partner or others in the future. As I understand the submission, it is that, if Ms Jackson considers that he presents a low risk of offending, and the Tribunal accepts this evidence, then it cannot find that there is no risk he will engage in criminal conduct in the future, per s 501(6)(d)(i). I do not accept that submission. It cannot be assumed that Ms Jackson, in speaking of low risk, was engaging with the degree of risk postulated by a combined reading of s 501(6)(d)(i) and Paragraph 6(2). In her oral testimony she said he had a very low risk of reoffending. In my view, her evidence is consistent with the view that he presents a minimal or remote chance of reoffending. Even if it is not, this evaluation is ultimately for the Tribunal to make, not Ms Jackson.
In YTZR v Minister for Home Affairs [2018] AATA 3924 the Tribunal considered how the risk referred to s 501(6)(d)(i) should be weighed. Member West helpfully summarised the relevant considerations as follows:
34.As the Tribunal has previously noted, the word ‘risk’ is not qualified by any adjective such as ’significant’, ‘substantial’ or ‘real’, but clearly s.501(6)(d) of the Migration Act does not require the Tribunal to be satisfied that there is no risk that the Applicant would engage in criminal conduct if allowed to remain in the Australian community. It would be impossible to administer a test which required the elimination of all risk given human fallibility. The correct test is set out in s.6(2) of Section 2 of Annex A to Direction 65, which states that there must be ’more than a minimal or remote chance’ that the Applicant will engage in ’criminal conduct’.
35.Applying a literal meaning to the words ‘minimal or remote’ it includes ‘negligible’ or ‘unlikely to occur’ but it is not a concept which requires a mathematical assessment of probability. The nature of the risk must be assessed having regard to the objective of the character test in s.501(6) of the Migration Act which reflects the principle stated in s.6.2(1) of Direction 65 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.
36.It is also important to note in this case that the risk at issue is a risk of the Applicant engaging in criminal activity. Section 6.1(2) of Section 2 of Annex A to Direction 65 makes it clear that this refers to conduct for which a criminal conviction could be recorded. [References omitted.]
Although the Tribunal there referred to Direction 65, that direction is not relevantly different to Direction 79.
In assessing the risk that Mr Kekulandala may offend again, the Tribunal takes into account the weight and gravity of his offending record, the fact that this record suggests a trend of decreasing – rather than increasing – seriousness, the steps he has taken to address the causes of his offending and the insightful testimony of his wife, the person who would presumably be most at risk should he commit further domestic violence offences. It further takes into account the elapse of five years since his last offending, his happy and mutually-supportive marriage to an Australian citizen, his attentive engagement with her as she confronts serious health challenges and his integration into the community of Canberra through cricket and charitable activities. Finally, it notes that he has not been placed in immigration detention but has been free in the community while his application has been assessed, a measure of officialdom’s view as to the level of risk he represents to that community. In light of those factors, the Tribunal considers that there is, at best, but a minimal or remote chance that he will offend again, and thus he does not present a risk that he would engage in criminal conduct. Accordingly, Mr Kekulandala passes the character test in s 501(6).
Should the discretion in s 501(1) be exercised in Mr Kekulandala’s favour?
In the event that I am mistaken as to whether Mr Kekulandala passes the character test in s 501(6), I will consider the question of whether the discretion referred to in s 501(1) should nonetheless be exercised to grant him a visa. This requires weighing of the considerations set out in Part B of the Direction.
Primary Consideration 1: protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision makers should also give consideration to:
(a)The nature and seriousness of the non-citizens conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal must consider the nature and seriousness of Mr Kekulandala's conduct, and the risk to the Australian community should he commit further offences or engage in other serious conduct. Paragraph 11.1.1(1) sets out certain principles which a decisionmaker must have regard to when assessing the nature and seriousness of a non-citizen’s conduct. The Minister maintained that the following were relevant to Mr Kekulandala:
(a) The principle that, without limiting the range of offences that may be considered to be serious, violent and/or sexual crimes are viewed seriously;
(b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c) The principle that crimes committed against vulnerable members of the community (such as elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
…
(e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
…
(g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
…
(i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
Mr Kekulandala submitted that, notwithstanding the seriousness of his offending, the primary consideration of the protection of the Australian community does not weigh against him. This, he said, has been implicitly conceded by the Minister, as he continues to reside in the community following the decision to refuse the Partner visa on the basis of risk. Mr Kekulandala did not deny the seriousness with which crimes against women and children must be viewed, but argued that the Tribunal should take into account his (then) immaturity and inability to manage personal relationships during times of significant stress. Those stressors included his own mental health, which was then substantially untreated, and various health conditions of his wife.
The Tribunal accepts the Minister’s submission that the unavailability of adequate treatment options for mental illness falls short of the description of significant harm in paragraph (e). The concept of degrading treatment or punishment connotes some deliberate act by an agency of government or (possibly) some other action by bodies or individuals within a society directed at a person. The unavailability of a service, particularly where that unavailability affects most people in that society, does not meet that definition.
In DGPZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 115 Senior Member Nicolik AM CSC considered the question of whether an applicant was owed non-refoulement obligations because, if he was returned to Turkey, he would suffer serious harm in the form of withholding basic services including psychiatric treatment which will threaten his capacity to subsist, as well as psychological harm, physical assault, torture and death by reason of his mental illness. At [110] the Tribunal came to this conclusion in relation to that claim:
The Tribunal is not satisfied on the available evidence that DGPZ has a well-founded fear of being persecuted because of factors like race, religion, nationality, membership of a particular social group, or political opinion. Nor does the evidence reliably support the existence of a ‘real risk’ he would be subjected to significant harm within the meaning of s 36(2A) of the Act if repatriated, due to things like denial of treatment, or discrimination because of any medical condition, or past drug addiction, or convictions in Australia, or because of language or cultural impediments causing his circumstances to be misunderstood. That is not to say that some people in Turkey won’t have a negative perception or lack of understanding about DGPZ’s circumstances should he choose to reveal them, or who may make insensitive comments. That would not rise to a level of discriminatory or degrading treatment or punishment or extreme humiliation such as to constitute significant harm.
The Tribunal’s decision in DGPZ was upheld by the Federal Court (DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1569), Moshinsky J specifically quoting paragraph [110] in rejecting the appellant’s claim that the Tribunal had not considered his submission on the question of serious harm.
This consideration weighs neutrally in the task before the Tribunal.
Other consideration 2: Impact on family members
Mr Kekulandala submitted that a refusal to grant a visa would have a devastating effect on his wife, Kitty. Her complex health conditions make her reliant upon him, and that reliance has been growing with the diagnosis of new conditions, a suspected stroke in August and the recent death of her mother. Mr Kekulandala often drives her to medical appointments in Wollongong. Her reliance is both financial and in terms of day-to-day support and care. An illustration of the importance to her of that reliance was his assistance in dealing with her episodes of self-harm, whether it be integrating him into her suicide prevention plan or calling an ambulance after a suicide attempt. It was contended that her participation in the NDIS provides only limited support, and is unlikely to offset the loss of her husband. Nor could it be assumed that her daughter or her cousin would be able or willing to take the necessary steps to offset that loss. It was submitted that Mrs Kekulandala could not realistically move to Sri Lanka by reason of her health, and so a decision to refuse a visa would inevitably lead to a permanent separation between them.
Mr Kekulandala submitted that he has developed close ties to the community of Canberra, socially and through sport, and has made a contribution to the economy as an employee in the construction and other industries, albeit with some gaps in employment and albeit often illegally, on the basis that his employment was not permitted by a visa.
The Minister submitted that Mrs Kekulandala would continue to receive support in the form of the Disability Support Pension and the NDIS even if her husband was repatriated. Support from the latter may even increase to account for the loss of support from her husband. There was some possibility, it was contended, that she may be able to engage in at least part-time work in the future. With respect to transport, the Minister noted that she had benefited from her husband driving her to medical appointments in Wollongong, but she had also undertaken that trip by herself on several occasions, and so was not dependent on him for that service. Finally, it was noted that her daughter Alley and her cousin both live not far away and might be able to assist her.
It is the Tribunal’s view that this consideration weighs heavily in favour of setting aside the delegate’s decision. I accept the evidence that it is not feasible for her to relocate to Sri Lanka to be with him, and so to affirm the reviewable decision would inevitably mean the permanent separation of Mr and Mrs Kekulandala. It is plain that Mrs Kekulandala has multiple vulnerabilities and would be severely disadvantaged by the loss of her husband. The risk to her based on previous attempts at self-harm alone constitutes a powerful reason to give her the benefit of her husband’s ongoing support.
The Tribunal considers that their relationship is not merely one of dependency for financial and health reasons. I am satisfied that they are in a loving relationship, and that to cause their separation would not only occasion grief to Mrs Kekulandala but would also pose a serious risk to her mental health. The effect of such a decision on her was described as devastating in submissions, and that assessment can only be upheld on any evaluation of the evidence.
I do not accept that there are suitable alternatives for her welfare. There can be no assurance that the NDIS would be able to replicate the support presently given by Mr Kekulandala, and it is no more than speculation that either Mrs Kekulandala’s daughter or cousin would be prepared to make the significant life decision to become her carer. Indeed, Mrs Kekulandala’s evidence was that her daughter cannot care for me.
Other consideration 3: Impact on victims
Counsel for Mr Kekulandala pointed out that this other consideration overlaps with the previous one, in that a family member may also be a victim. In this context, it was submitted that a decision to grant him a partner visa would have a positive impact on Mrs Kekulandala in that she would be able to continue to derive emotional, financial and physical support from him. The inference can also be drawn that Alley would also partially benefit from the grant of the partner visa, as she would not be burdened with the responsibility of caring for her mother. It was submitted that, given the long period without contact between Mr Kekulandala and Ms Rajakaruna, there would be little to no impact on her.
Alternatively, the Minister argued that, against any positive impact that Mr Kekulandala's continued presence in Australia might have on his victims, the Tribunal should also take into account that because of their proximity to him, those victims are at potential risk of future harm from him. He has demonstrated violent tendencies, which indicates a risk that other members of the Australian community would also be at risk of being assaulted. If he were to re-engage in this type of conduct, his previous victims could be at risk of harm. The Minister submitted that this consideration does not weigh in his favour.
While it is true that a person may fall into the category of being both a family member and a victim, the Tribunal considers that it is unhelpful to divide consideration of their interests depending on which label they might wear. Accordingly, the impact of the delegate’s decision on Mrs Kekulandala has been adequately considered in the preceding category, and further consideration is not required here. In addition, having considered in that category that it is not possible to say whether Alley would be prepared to step into the role of her mother’s carer should the delegate’s decision be affirmed, I cannot now logically find that she would benefit from the grant of the visa. Finally, given the effluxion of time since Mr Kekulandala had any contact with Ms Rajakaruna, it is not possible to say with any certainty if there is any impact on her in the circumstances.
I agree with the Minister that this consideration weighs neutrally in the Tribunal’s task.
Other consideration 4: Impact on Australian business interests
Neither party submitted that this consideration had any relevance in these proceedings.
Other considerations?
Mr Kekulandala also made claims in relation to the impediments he would suffer on returning to Sri Lanka and to the strength, nature and duration of his ties with Australia. Although these considerations are not factors listed in Part B of the Direction for visa applicants, it was submitted that it is appropriate to take these matters into account in Mr Kekulandala’s case. Paragraph 12(1) states that other considerations are not limited to the four specifically listed. This approach is reinforced in the principles contained in paragraph 6.3(7), which states:
The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Minister argued that consideration of the impediments to Mr Kekulandala returning to Sri Lanka and of his ties to Australia should be given less weight than the other considerations specified at paragraph 12 (which themselves should generally be given less weight than the primary considerations: see paragraph 8(4)). In any event, he contended that none of the other considerations outweigh consideration of the protection of the community and the expectations of the community.
The Tribunal accepts the argument that other considerations not listed in paragraph 12 should be given less weight than those which are listed there.
Other consideration: Extent of impediments if removed
It was argued that Mr Kekulandala will suffer more than “hardship” upon any return to Sri Lanka on account of his limited access to appropriate psychological services and the loss of “protective” factors including his companionship with his spouse in Australia and established network of friends in Canberra which puts him at risk of harm. Ms Jackson’s evidence supported that such harm would likely occur. These are impediments to his return.
However, the Minister pointed to DFAT Report 2019, which indicates that the Sri Lankan government is devoting greater attention and resources to mental illness and improving access to mental health services. The report states that:
2.27 The government is devoting progressively greater attention and resources to mental illness. A National Mental Health Policy, adopted in 2005 and subsequently renewed in 2015, sits alongside a National Mental Health Action Plan.
2.28 Improving access to mental health services, including at the community level, is a government priority. As part of this effort, the government has deployed cadres of mental health workers to the district level and rolled-out a Training of Trainers in Mental Health and Psycho-Social Wellbeing Programme in the Northern Province. District-level hospitals have mental health facilities and some non-government organisations (NGOs) (e.g. Women In Need and Women's Action Network) provide psychosocial support services, including in Tamil-populated areas…
Accordingly, said the Minister, it is unlikely that Mr Kekulandala would experience any significant “hardship” (or “more than hardship”) in re-establishing himself in Sri Lanka, or would struggle to obtain health care for his mental health issues. He conceded, however, that mental health services there are not as good as services available in Australia.
Further, Mr Kekulandala was born and resided in Sri Lanka from birth (1982) to 2005 – over 20 years. It is therefore unlikely that he will face substantial language or cultural barriers. Additionally, given his work experience while in Australia, it is unlikely that he will have difficult re-establishing himself and maintaining basic living standards. The evidence suggests that he would return to live with his parents if required to leave Australia, and that activity such as cricket would help him reintegrate into Sri Lankan society and manage his mental illness. Therefore, this consideration also does not outweigh the considerations in support of the refusal of the visa, the Minister argued.
The extent of impediments consideration referred to in Parts A and C of Direction 79 require a decisionmaker to consider what impediments a non-citizen may face in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country). It seems appropriate to view Mr Kekulandala’s claims of impediments through the same lens.
Overall, it must be accepted that he would not face any significant language or cultural barriers on returning to Sri Lanka. It does seem likely that he would receive support and perhaps a place to live from his family, and he is fit enough to have the same prospects as other Sri Lankans of obtaining employment.
I accept, however, that his mental illness will put him at a disadvantage vis-à-vis mentally well citizens of that country. I take into account the evidence from DFAT Report 2019 that the government of Sri Lanka is prioritising access to mental health services at the community level, but I also take into account the information in the same report that while there has been some improvement in the availability and quality of mental health services, they remain inadequate overall... DFAT further assesses that traditional attitudes toward mental illness act as a significant barrier to treatment. In the context of an impediment which a non-citizen might face on return, it is more probative to consider the state of services as they actually are, not as a government might aspire for them to be.
On this basis, the Tribunal concludes that Mr Kekulandala, who suffers from mental illness, would be disadvantaged, relative to healthy Sri Lankans, by virtue of his illness. Accordingly, this consideration weighs slightly in his favour.
Other consideration: Strength, duration and nature of ties
It was put to the Tribunal that Mr Kekulandala has strong, close ties to the Australian community. He came to Australia fifteen years ago to study, he has worked, gotten married and has formed close and enduring friendships in the Canberra community. He has made a positive contribution by working to provide for Mrs Kekulandala and also in providing care for her, which her other family members are either unwilling or unable to perform.
The Minister argued that Mr Kekulandala's family ties in Australia consist of his wife and her daughter. However, he does not claim to have a close relationship with his stepdaughter. Further, his criminal behaviour was committed against his wife and stepdaughter. While his wife has provided statements in support of granting his visa, his stepdaughter has made no statement. The Minister said that, while Mr Kekulandala does have some ties to the Australian community, they are not sufficient to outweigh the other considerations.
To some extent this consideration overlaps with the other consideration dealing with impact on family members. To the extent that his ties with his wife have been considered under that heading, they should not be further considered under this heading. The ties with his stepdaughter do not appear strong enough to be given any weight in this reckoning. There is evidence of some connection with the community in which he lives, through his participation in cricket, the Sri Lankan community of Canberra and charitable fundraising. He has also made a contribution to the Australian economy as a worker (albeit intermittently and sometimes illegally).
This consideration weighs slightly in his favour.
RESOLUTION
The two primary considerations in play here weigh in favour of upholding the delegate’s decision, although one – protection of the Australian community – only slightly. All the other considerations which speak to this issue sound in the opposite direction. In particular, the consideration of impact on family members counts heavily in favour of setting the delegate’s decision aside.
The Direction does not require that primary considerations automatically outweigh other considerations. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] Colvin J observed that the Direction:
… makes clear that an evaluation is required in each case as to the weight to be given to the “other considerations” … It requires both primary and other considerations to be given “appropriate weight”. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains “generally” they are to be greater weight.
There is no relevant difference here between Direction 65 and Direction 79.
At the forefront of the Tribunal’s mind is the juxtaposition between the very low level of risk Mr Kekulandala represents to the community by remaining here and the very high level of risk to which Mrs Kekulandala is exposed by him leaving. While the Australian community might well expect, conceptually, that a non-resident behaving violently should be expelled, one would expect that verdict to be moderated somewhat by the circumstances presently confronting the Tribunal, and in particular by knowledge of the harm that such a decision would likely bring down on a vulnerable Australian citizen.
The balancing of these factors leads to the conclusion that, if Mr Kekulandala (contrary to my finding) does not pass the character test, the discretion referred to in s 501(1) should nonetheless be exercised in his favour. However, as indicated above, the Tribunal finds that he does pass the character test, and for this reason it has remitted the reviewable decision of 27 July 2020 to the delegate with the direction that Mr Kekulandala passes the character test pursuant to s 501(6)(d)(i).
REQUEST FOR CONFIDENTIALITY ORDER
During the proceedings, Mr Kekulandala sought an order under s 35 of the Administrative Appeals Tribunal Act 1975 suppressing identifying details of his stepdaughter, on the basis that she was a child during the incidents in 2014 and 2015 described in these reasons.
It is the usual practice of the Tribunal to make an order of the kind requested where reasons discuss the condition or circumstances of a person who is then a child. It is less common for such an order to be made in relation to an adult. Section 35(5) makes reference to the principle that it is desirable that evidence given before the Tribunal… should be made available to the public. The advantages of transparency are self-evident, and the Tribunal will give effect to those advantages unless good reason is presented to do otherwise.
No reasons have been advanced in the present proceedings to displace what I would call the default position. Mr Kekulandala’s stepdaughter is no longer a child, and it is not apparent what disadvantage she would suffer by virtue of these reasons discussing certain events that occurred while she was a child being made available to the public.
The Tribunal declines to make the order sought.
222.
223. I certify that the preceding 221 (two hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.
........................................................................
Associate
Dated: 16 December 2020
| Date(s) of hearing: | 16, 19 and 26 October 2020 |
| Solicitors for Mr Kekulandala: | Carina Ford Lawyers |
| Counsel for Mr Kekulandala | T Skvotsova |
| Solicitors for the Minister: | HWL Ebsworth |
- AGLC
- Kekulandala and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5075
- Case
- [2020] AATA 5075
- Decision Date
CaseChat Overview and Summary
The AAT was required to determine two primary legal issues. Firstly, whether Mr. Kekulandala passed the character test, specifically whether there was a risk he would engage in criminal conduct in Australia. Secondly, in the alternative, if he did not pass the character test, whether the discretion to refuse the visa should be exercised in his favour, considering the factors outlined in Direction 79, including the protection of the Australian community, community expectations, international non-refoulement obligations, the impact on family members and victims, the extent of impediments if removed, and the strength, nature, and duration of his ties to Australia.
The Tribunal reasoned that Mr. Kekulandala did not pass the character test as defined by subsection 501(6)(d)(i) of the *Migration Act 1958*. However, it found that even if a risk of future criminal conduct existed, the discretion to refuse the visa should be exercised in his favour. This conclusion was reached after considering various factors, including Mr. Kekulandala's remorse, the context of his past offending, the absence of further criminal conduct since 2015, his engagement with mental health treatment, and the significant impact a refusal would have on his Australian citizen wife, for whom he is the primary carer. The Tribunal noted that the word "risk" in the relevant section is not qualified by adjectives such as "significant" or "substantial."
The Tribunal remitted the decision under review with directions, indicating that the visa should be granted.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
For the reasons which follow, the Tribunal does not consider that the risk referred to in s 501(6)(d)(i) exists. Even if, contrary to that finding, the risk does exist, the Tribunal would consider that the discretion should be exercised in favour of granting the visa.CONSIDERATION As indicated above, there are two questions before the Tribunal. The evidence which is relevant to the first question is also, by and large, relevant to the second question, and so the Tribunal’s findings with respect to the evidence overall assist it in answering both questions. Accordingly, some of the factors discussed and assessed by the Tribunal in relation to the second question may also be relevant to the first question, although, as a matter of convenience, they are not necessarily discussed in that section of these reasons.Does Mr Kekulandala pass the character test under s 501(6)? Mr Kekulandala contended that there is no, or no more than a minimal, chance that he would engage in criminal conduct in Australia for the following reasons:(a)The context in which his earlier offending arose was in the particular circumstances of his being in Australia without any family support;(b)The offending in 2014 and 2015, which impacted his wife and stepdaughter has not recurred and was early in their relationship. He is extremely remorseful and sorry for his actions;(c)He has no other record of offending, either in Australia, or overseas;(d)The last instance of criminal offending occurred in 2015 and he has not committed any further criminal offences since that date;(e)He is now residing in Australia and is supporting his wife and has the ongoing support of the community in Canberra. He plays cricket locally, has generally been able to maintain employment, has taken significant steps to be engaged with ongoing mental health treatment and fully appreciates the significance of his visa being refused, as it greatly impacts his Australian citizen wife for whom he is the main carer. Mr Kekulandala further contends that there is nothing else in the material before the Tribunal to indicate that he would engage in criminal conduct in the future, beyond his past criminal history, nor has he engaged in a pattern of ongoing behaviour with an increasing trend of seriousness which would be of concern, noting his last instance of offending was in 2015. In this context, it is unrealistic to think that he presents as a person who “would” commit crimes in the future. Accordingly, the Tribunal should find that he passes the character test. On the other hand, the Minister submitted that the Tribunal must ask itself whether there is a risk that Mr Kekulandala would engage in criminal conduct. As noted in QKVH v Minister for Home Affairs [2018] AATA 1855 at [13], the word risk is not qualified by any adjective such as “significant”, “substantial” or “real”. In considering this question, regard should be had to his offending together with such other factors which are relevant to assessing whether he would engage in criminal conduct in the future. That offending includes common assault on his current spouse and stepdaughter, recklessly causing injury to his former partner, contravention of a family violence order and criminal damage. As a result of those offences, Mr Kekulandala has been found to have engaged in criminal conduct on four occasions.