Liyanage and Minister for Home Affairs (Migration)

Liyanage and Minister for Home Affairs (Migration) [2018] AATA 1375 (28 May 2018)
Division:GENERAL DIVISION
File Number: 2018/1374
Re:Sanjeewa Subash Ranna Pathiran Liyanage
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:28 May 2018
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 March 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
........[sgd]................................................................
Senior Member Dr M Evans
CATCHWORDS
Migration – decision not to revoke mandatory cancellation of visa – two-day rule - character test – substantial criminal record – criminal history spanning over 17 years – Ministerial Direction no. 65 – primary and other considerations - protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending - risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – extent of impediments if returned to Sri Lanka – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – s 499, s 499(1), s 499(2A), s 500(6B), s 500(6J), s 500(1)(ba), s 501(1), s 501G(1), s 500(1)(ba), s 501(6), s 501(7), s 501(7A), s 501(3A), s 501CA, s 501CA(3), s 501CA(4), s 501CA(7)
CASES
Do and Minister for Immigration and Border Protection [2016] AATA 390
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras: - 6.1, 6.2, 6.3, 7, 8, 13, 14, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
28 May 2018
BACKGROUND

The Applicant is a 45 year old man who is a citizen of Sri Lanka. He arrived in Australia on 13 January 1999 as a 26 year old student (G13, page 94) under a student visa. Whilst he was a university student in Australia, he met his future wife whom he married in 2002. Their marriage broke down by 2006, however there are two children of the marriage, aged 13 and 15.
The Applicant first offended in 2000. His first offences were traffic offences, “excess 0.08%” and “no motor drivers licence”, committed on 26 August 2000. On 30 August 2000, he was convicted of these offences by the Perth Court of Petty Sessions for which he received fines and driving disqualifications (Exhibit R3, page 23).
The Applicant next offended on 7 November 2002 with “unlicensed vehicle” and “no motor drivers licence”, of which he was convicted by the Rockingham Court of Petty Sessions on 13 January 2003. There was a break in his offending until 20 April 2006, when he committed the offences of “possess a prohibited drug (cannabis)” and “breach of violence restraining order”. He was convicted of these offences on 15 May 2006. The Tribunal notes that this was around the time that the Applicant’s marriage broke down, however, from that point in time onwards, the Applicant’s offending became more frequent, and the offences more serious, including further breaches of violence restraining orders and other court imposed orders, drug possession, burglary, and obstructing police officers, to name a few.
In a letter dated 17 April 2013 from the Department of Immigration and Citizenship (G15, page 98), the Applicant was advised that:
…a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act. However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you.
By the time the Applicant received this warning letter, he had been convicted of a total of 95 offences (committed between 26 August 2000 and 29 May 2012) including drug offences, driving offences, property offences, assault, stealing, and breaches of court imposed orders (Exhibit R3, page 11 – 23).
The Applicant signed the following acknowledgment of receipt of the decision of 17 April 2013 on 21 August 2013 (PG15, page 100) which stated:
I…acknowledge that I have received the Notice of decision not to refuse the grant of a visa under subsection 501(1) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be taken into account. (bold in original)
On 2 February 2015, the Applicant’s Class WA Subclass 010 Bridging visa A was cancelled on the basis that he did not pass the character test under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). He was invited to make representations, and as a consequence, a delegate of the Respondent decided to revoke the cancellation decision of 2 February 2015. This was advised to the Applicant in a letter from the Department of Immigration and Border Protection dated 12 April 2016 (PG14, page 96), which stated, in part:
Please note: the decision to revoke the original decision does not mean that you cannot be considered for cancellation on character grounds in the future in the event of further criminal offending by you.
(bold in original)
The Applicant signed the following acknowledgment of receipt of this decision on 12 April 2016 (PG14, page 97) which stated:
I…acknowledge that I have received the Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958. I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens my past conduct and previous relevant information can also be reconsidered.
(bold in original)
By 12 April 2016, the Applicant had committed a further 17 offences including stealing, drug possession, property damage, possessing stolen property, and breaches of court orders.
He was granted a Class BS Subclass 801 (Spouse) visa on 4 July 2016 (“Spouse Visa”) (G28, page 124). By the time he was granted his Spouse Visa, the Applicant had committed a total of 112 offences (Exhibit R3, pages 9 – 23).
In a letter dated 5 October 2017 from the Department of Immigration and Border Protection (G28, page 124), the Applicant was advised that there had been a mandatory cancellation of his Spouse Visa under s 501(3A) of the Migration Act, because a delegate of the Minister was satisfied that he did not pass the character test due to his substantial criminal record within the meaning of s 501(6)(a) and s 501(7)(c) of the Migration Act. Section 501(7)(c) of the Migration Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant was sentenced in the District Court of Western Australia to 18 months suspended imprisonment on 18 December 2008 for the criminal offence of “attempted to pervert justice” (PG28, page 125; Exhibit R3, page 19).
The letter of 5 October 2017 noted that the Applicant was currently serving a full-time custodial sentence of 8 months for numerous offences including “threats to injure, endanger or harm any person”, “carried (possessed) an article with intent to cause fear that someone will be injured or disabled”, “criminal damage or destruction of property”, “fear that someone will be injured or disabled” and “criminal damage or destruction of property”. This sentence was comprised of both cumulative and concurrent terms, which amounted to 18 months in total. (PG28, page 125; see also Exhibit R3).
After the Applicant served this term of imprisonment in full, he was taken into immigration detention at the Christmas Island Immigration Detention Centre.
The letter of 5 October 2017 invited the Applicant to make representations about the revocation of the mandatory visa, which he did in a “Request for Revocation of a Mandatory Visa Cancellation under s 501(3A)”, signed on 19 October 2017 (G30, page 131-141). By this time the Applicant had been convicted of some 138 offences (Exhibit R3).
In a letter dated 8 March 2018 from the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (G4, page 30), a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the decision of 5 October 2017 (“Reviewable Decision”).
The Reviewable Decision was hand delivered to the Applicant in immigration detention on 12 March 2018, when he signed to acknowledge receipt (G37).
On 20 March 2018 the Applicant lodged an application for review of the Reviewable Decision in this Tribunal (G2).
ISSUE
The issues for determination by this Tribunal are whether the:
(a)Applicant passes the character test, as defined by s 501(6) of the Migration Act?; and
(b)if the Applicant does not pass the character test, whether there is another reason why the cancellation decision should be revoked (s 501CA(4) of the Migration Act)?
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent not to revoke a decision to cancel a visa.
The Reviewable Decision of 8 March 2018 was communicated to the Applicant on 12 March 2018 (G37), and as noted above, he lodged his application for review on 20 March 2018. The Applicant is in detention at Christmas Island, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.
The Tribunal is therefore satisfied that the application was lodged within time, and that it has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 16 May 2018. The Applicant appeared by television link from the Christmas Island Detention Centre. He was self-represented. The Applicant spoke excellent English and did not require an interpreter. The Respondent was represented by Mr Ashley Burgess from Sparke Helmore Lawyers who appeared in person. The Applicant gave evidence and was cross-examined. No other witnesses were called.
The Tribunal had the following documents before it:
(a)copies of five payslips of the Applicant for the period 17 May 2014 to 20 June 2014 (Exhibit A1);
(b)the s 501 documents (G documents) from G1 to G37 (Exhibit R1);
(c)Statement of Facts, Issues and Contentions of the Respondent dated 20 April 2018 (Exhibit R2); and
(d)summonsed documents from Western Australian Police (Exhibit R3).
Directions were made by the Tribunal on 6 April 2018, which included a direction that the Applicant file a Statement of Facts, Issues and Contentions and any further evidence on which he proposes to rely at the hearing, and serve a copy on the Respondent by 4 May 2018. No Statement of Facts, Issues and Contentions was submitted by the Applicant. The only evidence received from the Applicant was the copies of payslips admitted into evidence as Exhibit A1.
The Applicant asked at the Tribunal hearing if the Tribunal had received copies of photos he had emailed to the Tribunal on approximately 4 May 2018 (Additional Material). Neither the Tribunal, nor the Respondent’s legal representative had received them. The Respondent’s legal representative submitted in response that they would oppose the tendering of any additional evidence under s 500(6J) of the Migration Act because it had not been provided to the Minister at least two business days before the hearing. This is known as the “two-day rule”.
The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [25]. The Full Court explained:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
On this basis, the Tribunal deemed it appropriate in the circumstances to proceed with the hearing, as contemplated above by the Full Court.
It is noted that in applying the two-day rule, the Tribunal must, however, be mindful not to fall into jurisdictional error by failing to consider a primary consideration. Further, the two- day rule does not prevent the matter from being adjourned to ensure that the Tribunal’s “review is conducted thoroughly and fairly” (Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 223 (“Uelese”)). Further, information which is elicited under cross-examination which may support an Applicant’s case is not excluded (Uelese).
After the Tribunal hearing the Applicant emailed this Additional Material to the Tribunal, which comprised of:
(a)a typed but unsigned letter to the Tribunal from the Applicant dated 29 April 2018 making submissions about the cancellation of his visa. These submissions did not add anything additional to those made by the Applicant to the Tribunal in his evidence, and to previous submissions regarding the cancellation of his visa (G3). There is also a recent similar submission dated 23 February 2018 in the G documents (G33);
(b)three photos of the Applicant with his children when they were babies; one photo of the Applicant with his daughters which appears to be more recent; and a photo of the Applicant and his wife from their wedding in 2002 with persons who appear to be his wife’s parents. There is already material contained in the G documents (Exhibit R1) in which the Applicant makes submissions about his children, as well as letters from the children (G35), and a letter from the Applicant’s former wife dated 20 February 2016 which states he is a “dedicated father” (G19);
(c)a photo of a Notification of Cancellation of a Restraining Order dated 8 February 2018 by the Magistrates Court, Rockingham. This document is already contained in Exhibit R1 (G34, page 151); and
(d)a copy of the Applicant’s marriage certificate from 2002. The fact of the Applicant’s marriage is already evident from information in the G documents (Exhibit R1).
The Tribunal forwarded these to the Respondent’s legal representative for comment on 16 May 2018, who advised, in an email dated 18 May 2018, that they maintained their objection to the admission of this evidence under s 500(6J) of the Migration Act.
The Tribunal agrees that the s 500(6J) of the Migration Act prevents it from taking this evidence into account, and has consequently drawn no inference from it. However, as noted above, there is other similar material already before the Tribunal, for example in the G documents (Exhibit R1). As a consequence, it is the Tribunal’s opinion that the review was able to be “conducted thoroughly and fairly” (Uelese).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7))…
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
Section 501(7A) of the Migration Act provides clarification when a person is sentenced to concurrent sentences of imprisonment:
(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Section 501CA of the Migration Act further provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
MINISTERIAL DIRECTION 65

Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that, “A person or body must comply with a direction under subsection (1).”
On 22 December 2014, the Minister for Immigration and Border Protection made a direction under s 499 of the Migration Act, named “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”). Paragraph 6.1 of Direction no. 65 sets out the Objectives of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision which is currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) of Direction no. 65 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
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.
Paragraph 14 of Part C of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no.65 can be found in paragraph 8 of Direction no. 65 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant was convicted in the District Court of Western Australia of “attempt to pervert justice” for which he received a term of 18 months suspended imprisonment. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test of they have a “substantial criminal record”. Section 501(7)(c) of the Migration Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
Further, the Tribunal notes that, as discussed in paragraph 12 above, on 8 September 2017, the Applicant was sentenced to a further term of imprisonment of eight months duration. This sentence, being comprised of 10 concurrent terms of one month each, a further concurrent term of six months, and two cumulative terms of one month, would constitute a “substantial criminal record” under s 501(7)(d) of the Migration Act because the total is more than 12 months. According to s 501(7A) of the Migration Act, each term is to be counted in working out the total, which would amount to 18 months.
Consequently, the Applicant does not pass the character test.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian Community (13.1)
Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:
… 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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Decision-makers should also give consideration to the following (paragraph 13.1(2) of Direction no. 65):
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen's conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (13.1.1(1))
Section 13.1.1(1) of Direction no. 65 further provides:
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
To date, the Applicant has a Court Outcomes History in Western Australia (in Exhibit R3) which is approximately 18 pages in length. This history shows that the Applicant was convicted of 138 offences between 30 August 2000 and 8 September 2017.
These offences include:
(a)16 convictions for possessing prohibited drugs, and a further conviction for possessing drug paraphernalia containing prohibited drug/plant;
(b)35 breaches of court imposed orders including 16 breaches of bail and bail undertakings; three breaches of protective bail; six breaches of violence restraining orders; four breaches of community based orders; four breaches of suspended imprisonment orders; three breaches of intensive supervision orders;
(c)seven convictions for carrying an article or weapon with intent to cause fear that someone will be injured or disabled;
(d)four convictions for assault, one of which was assaulting a public officer;
(e)three convictions for threats to injure, endanger or harm;
(f)15 convictions for stealing, possessing stolen property and burglary;
(g)25 convictions for disorderly behaviour in public, in a police station, street drinking, or otherwise being a public nuisance;
(h)10 convictions for trespass or criminal damage or destruction of property;
(i)10 convictions relating to obstructing public officers, failing to obey orders of public officers or failing to comply with requests for personal details, including a conviction for attempting to pervert justice; and
(j)numerous others, including motor vehicle, driving and public transport offences.
The nature of the Applicant’s offending was summarised by the Respondent in its Statement of Facts, Issues and Contentions (starting at paragraph 26 of Exhibit R2) as follows:
a. The applicant was most recently convicted of a range of offences on 8 September 2017 including possessing prohibited drugs, disorderly behaviour, trespass, destruction of property, breach of bail, street drinking, threats to injure, endanger or harm and carrying an article with intent to cause fear. In relation to the threat to injure charge, the applicant left a voicemail on his ex-wife’s mobile phone in which he stated, amongst other things, “OK, if I come there you will be fucked, I’ll shoot the fucking cop station bitch. I’ll blast the cop station. Don’t fuck with me bitch, you’re gonna get fucked”. The sentencing judge described the threat as a “serious offence” (G7/66).
b. The attempt to pervert justice offence for which the applicant was convicted on 18 December 2008 and received an 18 months suspended sentence related to the applicant concealing his true identity (by giving his brother’s name) when arrested in 2000 for the offence of driving a motor vehicle with a blood alcohol level exceeding 0.08 and driving without being the holder of a valid motor driver’s licence (G6/61). The sentencing judge described this incident as a “serious attempt”.
c. The assault public officer, threats to injure and carried an article with intent to cause fear offences for which the applicant was convicted on 10 October 2012 relate to an incident in which the applicant was asleep on a train. The applicant was approached by a customer service officer checking on his welfare and awoke and said “Fuck off, I have a knife”. When the customer service officer attempted to explain she had been trying to assist him, the applicant produced a bottle opener with a small knife attached and lunged towards her (G32/145).
d. The applicant was convicted of common assault in circumstances of aggravation or racial aggravation on 4 April 2017. In relation to this charge, the applicant grabbed the victim’s hair and lifted her off a bed in an attempt to wake her up, verbally abused her, slapped her on the right side of the head with an open hand whilst yelling at her and slapped her a further time. When the victim got out of the bed to get away from him, the applicant grabbed her arm and twisted it and with his other hand grabbed the victim by the throat.
e. The applicant pointed a five inch knife blade at bar staff after being asked to leave the premises of The Brass Monkey Pub & Brasserie on 16 July 2014.
f. The applicant walked up to (sic) doorman at the Newport Hotel in Fremantle on 28 May 2011, yelled at him and attempted to punch him in the chest. After the victim deflected the blow, the applicant turned around to face the victim, raised his fists into a fighting stance and began sparring and verbally abusing the victim.
g. On 5 February 2007, the applicant refused to comply with instructions issued by a female staff member at Hakea prison. The applicant “deliberately assaulted the officer with his elbow, stating no woman touches him or tells him what to do”. Whilst being escorted in the prison following the assault the applicant stated “I want to chop women’s heads off” (G32/146).
h. The applicant has a history of committing disorderly behaviour in public. This behaviour includes shouting “fuck off me you cunts” and “fuck off me you queers” whilst being searched by police, swearing at police saying “go fuck yourself bitch, you are going to die” and “go fuck yourself cunt, you fat cunt”, shouting at police “lick your mother’s clit” and “the only thing you could use your hands for is wanking you useless white bastard”, again shouting at police “fuck you you white cunt, why don’t you go and watch your mother lick her pussy” and “go and suck your own cock you poofter”, exposing his penis and urinating whilst in a holding cell in police custody, again urinating in a cell after being instructed to use the toilet behind him, threatening a shop assistant by saying “I am going to come back with a gun and kill you”, threatening an officer at an employment services office by saying “I am going to get my brothers and fuck you up” and exposing his penis to passing motorists and shouting at them.
(footnotes in original omitted).
In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s convictions for violence including assault, and weapons offences (13.1.1(1)(a) of Direction no. 65), as well as threatened violence, and multiple breaches of violence restraining orders. The Tribunal further notes:
(a)the Applicant’s 10 offences against police (obstructing public officers, failing to obey orders of public officers and failing to comply with requests for personal details) when they have been performing their public duties (13.1.1(1)(b));
(b)the imposition of numerous terms of imprisonment by the courts (13.1.1(1)(c)), including:
(i)four suspended imprisonment orders of six months and one day to be served concurrently for four breaches of violence restraining orders imposed by the Rockingham Magistrate’s Court on 13 March 2007. Three of these suspended imprisonment orders were breached, and on 31 May 2007 the Fremantle Magistrate’s Court imposed a further six month suspended imprisonment order consecutively for each order breached;
(ii)on 14 June 2012 the Applicant was sentenced to two further suspended imprisonment orders for nine months (burglary) and two months (common assault) to be served concurrently;
(iii)on 10 October 2012, the Applicant was sentenced to a six months and one day concurrent term of imprisonment for “assault public officer”, a nine month term of imprisonment for a breach of suspended imprisonment order, a further two month concurrent sentence for the same, and a further three month term of imprisonment to be served concurrently for “carried (possessed an article with intent to cause fear…”;
(iv)on 3 September 2014, the Perth Magistrate’s Court sentenced the Applicant to two concurrent terms of six months and one day imprisonment for two breaches of bail undertaking, a three month concurrent term of imprisonment for “carried (possessed an article with intent to cause fear…”, and a six months and one day concurrent term of imprisonment for “Damaging property”.;
(v)on 4 November 2014, the Applicant received a term of imprisonment of three months concurrent for “being armed or pretending to be armed in a way that may cause fear”;
(vi)as noted above, on 8 September 2017, the Applicant was sentenced to concurrent and cumulative terms of imprisonment for 13 offences, totalling 18 months for offences including breach of bail, criminal damage, carrying an article with intent to cause fear, threats to injure and trespass.
(c)the frequency, and cumulative effect of the Applicant’s repeated offending over a 17 year period comprising a Court Outcomes History of approximately 18 pages, which commenced within the first two years of him arriving in Australia (in 2000) when he was aged 27, with his offences increasing in frequency and seriousness – starting with driving offences, and escalating, for example, to more serious offending including assault, threats to injure and drug offences (13.1.1(1)(d) and (e) of Direction no. 65);
(d)the numerous further offences committed by the Applicant after receiving warnings in letters dated 17 April 2013 (G15) and 12 April 2016 (PG14) to the effect that further offending may negatively impact on his visa status, as detailed above (13.1.1(1)(g) of Direction no. 65). In the Tribunal’s opinion, continuing to offend after receiving these warnings demonstrates a lack of insight into his offending.

Weighing up the above considerations, the Tribunal finds that the Applicant’s offending should be viewed as serious and weighs against the revocation of the cancellation of his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 65 as follows:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 13.1.2(2) of Direction no. 65 further provides:
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Applying paragraph 13.1.2(2)(a) of Direction no. 65, the Applicant has a history of offending over a 17 year period, with offences including violence (assault), threats of violence and offences against public officers. There is a real risk that should he commit similar offences in the future, that a member of the Australian community may be seriously injured. As outlined earlier in this decision, the Applicant has also committed a broad range of other offences including, but not limited to, stealing, burglary, property damage and drug offences. The Tribunal agrees with the Respondent’s submission in paragraph 34 of its Statement of Facts, Issues and Contentions (Exhibit R2) that, “Given the broad range of the applicant’s offences, the nature of the harm to victims if the applicant were to reoffend in the future is serious, and could involve significant physical, financial, and psychological harm to members of the Australian community, law enforcement and public officials”.
Applying paragraph 13.1.2(2)(b) of Direction no. 65, the Tribunal considers that there is a real and unacceptable risk that the Applicant will reoffend. This is suggested by his history of continued offending, which has been undeterred by the imposition of fines, suspended sentences and custodial sentences of imprisonment. It demonstrates a continued disregard for the law, and a likelihood of him re-offending, should he be given a further chance to be released back into the Australian community, is a real possibility.
The Applicant’s unacceptable risk of reoffending is also suggested by the opportunities for rehabilitation he has had, which have not deterred him from re-offending. Whilst serving a term of imprisonment he undertook the Pathways Program from January to March 2013. This program was a 100 hour program held over 8 weeks, for prisoners who have a history of substance abuse which contributes to their offending (G21). Prior to undertaking the Pathways Program, the Applicant also attended a 16 hour course at Hakea Prison called “The Drug and Alcohol Programme” (G22). He was, however, unable to implement any treatment gains he may have achieved in these programs, as demonstrated by his having continued to offend (including drug-related offending) after the completion of these programs and his release from prison.
In 2005, a psychiatrist diagnosed the Applicant with “psychosis with a clear affective component, significantly related to substance abuse” which was contributed to by his “prolonged history of significant marijuana use (over about 20 years)” (G25, page 120) resulting in five admissions to hospital between 2004 and 2005. The psychiatrist further stated that the Applicant, “…has a recurrent psychotic condition, that responds to antipsychotic medication and cessation of marijuana use. As Mr Liyanage refuses to cease his use of marijuana, he is being prescribed depot medication to protect him from further relapses” (G25, page 120). There is no evidence before the Tribunal that the Applicant’s condition has been appropriately treated and stabilised, nor is there any evidence that he will cease marijuana use which contributes to his mental health issues and is linked to his offending behaviour. Indeed, the Applicant’s criminal history (Exhibit R3) shows consistent drug-related offending up until 2017.
Additionally, when sentencing the Applicant on 8 September 2017 to a further custodial term of imprisonment, Magistrate Lawrence made the following comments in determining that the Applicant should serve his full term of imprisonment and that he should not be eligible for parole (G7, pages 67-68). These comments are relevant to the assessment of the Applicant’s risk of re-offending:
Certainly, the threat was a serious offence, but also there is a significant criminal record, and there are other reasons that I consider relevant, and they were made even more clear by the verbal pre-sentence report. Mr Liyanage proceeds through life with a feeling that he is the victim, rather than the person who should be punished. He has a grievance, in effect, and believes that he has suffered much injustice. While that may be the case in some respects, I cannot determine any injustice in these proceedings or in the charges that were laid, and he has pleaded guilty to those. But I have recognised that he has had, for many years now, a life on the streets.
So there is a significant record, and as I’ve said earlier, just a looping of coming back to the court on very similar charges over and over again. The Court is imposing fines and then having to go to imprisonment, and then after imprisonment, fines again, and so on and so forth. And today, unfortunately for him, he has found that he’s going to be sentenced to further imprisonment.
In relation to the other reasons, I want to say this: he has been given the opportunity, over his history, of a community based order: breached that. Intensive supervision order: breached that. Suspended sentences: breached those. Parole: breached that. He has poor prospects – I don’t like saying this, because I like to think that the court can, in many cases, provide rehabilitation, but he has very poor prospects of rehabilitation because of his mindset at the moment. So there will be no parole, so he will serve the full eight months…
At the hearing, the Applicant expressed remorse for his offending and explained that the breakdown of his marriage, substance abuse and homelessness had contributed to his offending. On several occasions during the hearing, the Applicant asked for the “chance” to prove himself in the community. For example, under cross-examination, the Applicant stated (Transcript, page 33):
… please give me a chance to correct myself and to be a good person and completely make a change of myself, but whatever I say to you is maybe unbelievable, but I have to prove myself. For that, I need a chance to prove myself. Without a chance, I can’t improve myself. I had chances in the past, but I was in the same situation and once I had been in the detention centre and the jail for the last month - nearly more than a year, and I had so much time to think of myself and so many chances to correct myself, and I have to be very silly if the Administrative Appeals Tribunal overturned the decision and let me go, and I can be the worst person then to be in the same path and continue on the same path.
The Applicant also made representations that he would not offend in the future. For example (Transcript, page 33):
I can promise you at this time that I am not getting into trouble and I am not going to continue the same path, but I have to prove that in actions by doing that, and I haven’t had the chance.
And further (Transcript, page 36):
I am not a person who wants to make promises and break them, and I am determined to take myself and not to be in trouble…
Whilst the Applicant may have genuinely stated an intention at the hearing to live in the community as a law abiding citizen, he has made similar promises in the past, for example when faced with the refusal of his visa application in 2013 (G20, page 110), and following the cancellation of his bridging visa in 2015 (PG16, page 105). He was unable to keep these promises to remain law-abiding, and indeed, he committed numerous offences after providing assurances that he was rehabilitated and would not offend in the future. This was despite having received warnings that further offending may jeopardise his immigration status in the future.
In all the circumstances, the Tribunal is satisfied that there is a significant risk that the Applicant would commit further offences if he were to be given a further opportunity in the community. This weighs against the revocation of the cancellation of his visa. The Tribunal can give little weight to the intentions of the Applicant, because he has made similar promises in the past which he has not been able to follow through with.
Second primary consideration: The best interests of minor children in Australia (13.2)
Paragraph 13.2 of Direction no. 65 provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
As noted above, the Applicant has two children, aged 13 and 15, who reside with their mother, the Applicant’s former wife (paragraphs 13.2(2) and 13.2(4)(e) of Direction no. 65). There is no information before the Tribunal that their interests differ, so the Tribunal will proceed to consider the interests of both children together (paragraph 13.2(3) of Direction no. 65).
Paragraph 13.2(4) of Direction no. 65 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Applying paragraph 13.2(4)(a) of Direction no. 65, the Applicant is the biological father of the two children who are aged 13 and 15. The Applicant stated in his evidence that he last saw the children in October 2016, before serving his latest period of imprisonment, and being removed into immigration detention. There have been periods of separation from his children when the Applicant has been serving sentences of imprisonment, and due to the operation of restraining orders. The Applicant gave the following evidence at the hearing (Transcript, pages 20-21):
And until 2016, until that day this incident happened, I had verbal agreements with my ex-wife to see my children and take them out and she trusted me having the children on the weekends and having children in my house. When I was had them when I was living in accommodation, I had my children on weekends, but until that day we didn’t have any arguments or any kind of incident previously, your Honour, except the restraining order I’ve had. Breaching the restraining order six times, one restraining order I have breached six times by going to see my children to the house. But she hasn’t put six restraining orders against me. She has had a restraining order, as I remember, I would say 2006.
Then she had another restraining order in 2017 and I have appealed against that in the court because my children’s names were included in there. And that time I wanted to appeal so I appeal for that so the hearing date was on 2018, February 9. On that day I was in detention centre in Christmas Island and she has actually gone into the court and revoked that restraining order.
The Applicant made many submissions about his children to the Tribunal, and appears to love his children very much. The Applicant stated (Transcript, page 15):
And I will see my children every week, most every week and I found jobs many times and I have paid child support, I have paid money to my children on the weekends and my children are very close to me. And one thing, I can’t leave them and being selfish, because I have committed offences. I have committed offences as a person, but I have never been a bad father for my children. I have always looked after - since their birth, even when they had a birth, I never left them, I was there. But unfortunately, my life has taken a different path. I couldn’t use my diploma or my qualifications to have good life because for every problem the Immigration comes first.
When asked by the Tribunal to describe his current relationship with his children, the Applicant responded (Transcript, page 19):
My children are close to me and I’ve been close to them all the time from their birth and I have seen them weekly and they explain their problems and they just ask my advice sometimes. I call them mostly on Facebook on Messenger and at least once a week my daughters talk to me and say about their problems and ask me what I’m doing and if I’m coming to see them. And I have already told them that I can’t be positive myself in this situation because it’s uncertain and I have apologised to my children saying sorry that I became to this position and I have committed offence by threatening their mum and it has taken me to this part to be in detention centre and to maybe to be deported.
They’re not very happy about that. They said to me that - my children are saying to me:
But Dad if you’re sorry, you care and you were smart, why you doing this? Why can’t you get a good job and be a respectable person in the community?
But for their age, my children are very understanding, but my children not understanding what I been through and where I been and why I have been into this situation. But I have very close relationship with my children and they are expecting me to come and see them and to take them out like I was being before. But I can’t leave expectations to my children because I actually very uncertain, your Honour.
This evidence, and indeed common sense, suggests that the children are likely to have experienced worry and stress due to their father’s criminal conduct (paragraph 13.2(4)(c) of Direction no. 65).
Applying paragraph 13.2(4)(b) of Direction no. 65, the Tribunal notes that the children are in their teenage years, which is a difficult time in an adolescent’s development, and that they may benefit from having a relationship with both their mother and father, up until they attain the age of 18 years and beyond. However, despite the stated intentions of the Applicant to reform so he can have a relationship with his children, the Tribunal is not satisfied that the Applicant will be able to carry out these intentions in order to play a positive parental role in the future, given his extensive criminal history and previous promises to reform. If he continues to offend as he has over the last 17 years, he will not be a positive role model for the children.
Similar considerations apply when considering paragraph 13.2(4)(c) of Direction no. 65. The Applicant has a long history of offending, including breaching restraining orders taken out by the Applicant’s former wife, who is the mother of the children. If this conduct continues, it will most likely have a negative impact on the children.
Applying paragraph 13.2(4)(d) of Direction no. 65, a permanent separation from their father is likely to have an impact on the teenage children. The Tribunal does, however note, that there is little contemporary evidence before it on this point, with the exception of the evidence the Applicant gave at the hearing. The evidence discussed below from the children, and the Applicant’s former wife, are from approximately 2-3 years ago.
In a letter written by Applicant’s former wife dated 20 February 2016, addressed to the Department of Immigration and Border Protection (G19), she stated:
Sanjee has always been a dedicated father and although he has had many struggles over the years, he still managed to maintain regular contact with his daughters. Sanjee has an incredibly (sic) strong bond with …[the children] and this has helped them to deal with his physical absence whilst he has been in the detention centre…
Although I am no longer in a partnership with Sanjee, I support him staying in Australia to continue to build a loving relationship with our children. If he was forced to leave this would absolutely devastate my girls and have a detrimental effect on their wellbeing.
The Applicant made submissions at the hearing about his ability to maintain contact with the children if he were removed from Australia (Transcript, page 15):
I don’t know whether I can be with them or not. Making a phone call from Sri Lanka just to say “hello” and “goodbye”, it doesn’t mean anything as a parent. Anybody can make a phone call and say “hello” and “goodbye”, but I haven’t been present when they needed me. And when I can’t do that, that’s going to be affect for their life because they have - if the law it says, if there’s a person act as a mother or father, that means if someone’s taking the parental role instead of me, but they haven’t got anyone to take parental role other than their mum. They have expectations, they are already teenagers and they’re going to pay for my mistake for their life by not having me around.
The Applicant further submitted (Transcript, pages 15-16):
And I’m from Sri Lanka, my ex-wife is from Australia and we have two cultures, but my ex-wife side, they got granddad, grandma as a family. But from father’s side for my children, they have no one from my family in Australia, only me. And I’m not sure how they going to face through their life in the future because one day they will have families, they will become an individual and I cannot be present myself if I was deported from this country. And I’m willing to, I’m determined to change myself and have - to be a different person, to be a changed person and I have blown up many chances, but I have situation doing myself to being that way.

The Tribunal acknowledges that although telephone contact with a parent is not the same as in person contact, the Applicant would be able to maintain contact with his children in this manner. As mentioned above, the children have had periods of absence from their father on previous occasions due to imprisonment and the operation of restraining orders. The children may also be able to visit him in Sri Lanka.
The Tribunal also notes that the children’s mother fulfils a parenting role in relation to the children, who reside with her (13.2(4)(e) of Direction no. 65).
Exhibit R1 contains a handwritten letter from each child (G35). The children express love for their father and ask that he can stay in Australia. The letters are undated but appear to be 3 years old because in the letter from the youngest child, the child states “I’m 10 years old”. Although the current wishes of the children are unclear, the children would have been 10 and 12 years of age when they wrote these letters, and therefore had the maturity to express their views, so the Tribunal has given these wishes some weight.
There is no evidence that the Applicant has abused or neglected the children (paragraph 13.2(4)(g) of Direction no. 65). There is also no evidence before the Tribunal that the children have experienced any physical or emotional trauma from the Applicant’s conduct (paragraph 13.2(4)(h) of Direction no. 65).
Taking into consideration the above discussion of the factors in paragraph 13.2(4) of Direction no. 65, and notwithstanding some of the Tribunal’s reservations expressed in this discussion, on balance, the best interests of the children are likely to be served by the revocation of the cancellation of the Applicant’s visa.
Third primary consideration: Expectations of the Australian Community (13.3)
Paragraph 13.3(1) of Direction no. 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] Deputy President Block explained:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
Further, in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [22]-[23], Deputy President McCabe stated:
22. The Direction says the Australian community expects non-citizens to obey the law. It goes on to say the nature of the offending behaviour might be such that the community would not expect the decision-maker to revoke the cancellation.
23. A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
The Tribunal notes the number and nature of the offences committed by the Applicant over a period of approximately 17 years. Further, his offending commenced within two years of his arrival in Australia, has escalated in seriousness and frequency from traffic/motor vehicle offences to assault, threats of violence, criminal damage, stealing, offences against public officers, breaches of court imposed orders and drug offences, to name a few. The Applicant has served numerous sentences of imprisonment during his time in Australia. He has continued to offend after receiving fines, serving terms of imprisonment, completing two drug and alcohol programs in prison, and undergoing court ordered supervision in the community, including a period of parole supervision. He also continued to offend after receiving and acknowledging two warnings that his visa may be revoked if he continued to do so. Although the Australian community is reasonable, and would not approve of a punitive application of the Migration Law, the Tribunal finds that, in the Applicant’s circumstances, the Australian community would not expect the decision-maker to revoke the cancellation of the Applicant’s visa, particularly after the Applicant has been given a second and third chance to remain in Australia.
OTHER CONSIDERATIONS
Paragraph 14 of Direction no. 65:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Non-refoulement obligations
No issues or concerns were identified by the Applicant which would give rise to non-refoulement obligations (paragraph 14.1, Direction no. 65).
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 65 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As noted earlier in these reasons, the Applicant arrived in Australia as a student in 1999, and has resided in Australia for approximately 18 years (paragraph 14.2(1)(a) of Direction no. 65). As has also been noted above, he first offended in 2000, within approximately 18 months of arriving in Australia (paragraph 14.2(1)(a)(i) of Direction no. 65). There is no evidence before the Tribunal of any community involvement by the Applicant, or that he has otherwise made any positive contribution to the Australian community. Indeed, his offending has been consistent over the years he has resided in Australia, interspersed with periods of imprisonment (paragraph 14.2(1)(a)(ii) of Direction no. 65).
The Applicant’s mother, two sisters, brother and nine nieces and nephews reside in Sri Lanka. He does not have any family living in Australia, with the exception of his former wife and two children. There is no evidence before the Tribunal that the Applicant has friends or social ties (paragraph 14.2(1)(b) of Direction no. 65).
Impact on Australian business interests
The Tribunal is satisfied that a decision not to revoke the cancellation of the Applicant’s visa will not have a relevant impact on Australian business interests (paragraph 14.3(1), Direction no. 65).
Impact on victims
The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his criminal behaviour, or the family members of the victims (paragraph 14.4(1) of Direction no. 65), but there is likely to be little, if any, impact.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 65 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen's age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant has lived in Australia since 1999, arriving when he was 26 years of age. After living for such a long time in Australia, he would undoubtedly face some difficulty in re-establishing himself in Sri-Lanka, but any difficulty would not be insurmountable. As noted above, his mother, two sisters, brother and nine nieces and nephews reside in Sri Lanka, and may be able to offer him social and economic support. At the hearing, the Applicant stated, “My father was a solicitor and I’ve grown up in a decent family. I was brought up to be a decent person in the community…” (Transcript, page 18).
The Applicant was able to gain a Master Class II Diploma in 2002 in Australia which he needed to work as a Safety and Navigation Officer. However, he stated that he required further study to update the qualification because he had not used it (PG32, page 146). At the hearing, under cross-examination, the Applicant was asked about his qualifications (Transcript, pages 26-27):
I am an educated person, I have done my master’s class, did my diploma in Applied Science to do a respectable job and to be in a good position, and my immigration status has affected me for simple things like to continue my career, and I was not able to mentally - I was depressed, emotional, and I didn’t know which way to go, and I have committed offences
Yes. Mr Liyanage, when you say you were not on the streets before that, do you mean in Sri Lanka you weren’t homeless, or you had a house in Sri Lanka? You weren’t homeless or you had a house in Sri Lanka, or somewhere to live in Sri Lanka?   Never. Never, sir. I was brought up in the family until 18 and I joined Marine Academy when I was 18 and I did three years training in (indistinct) Marine Academy in Sri Lanka, I have completed my sea time working 36 months on board, and academic time by studying in the academy, then after (indistinct) Sri Lanka I came to Australia to get my competence certificate as a second officer to be a second officer in Merchant Navy.
And did you get that certificate?   And then I - year 2000, from TAFE college.
So, you got that certificate and that would allow you to work in the Merchant Navy?   That would allow me to be a second officer in Merchant Navy, then in 2000 to 2002 I was married and I wanted to continue my career, but in Australian standards I had to be a permanent resident to continue my career as a second officer in a company.
Yes, so now that you have?   Other than that
Now that you have done that TAFE course, you are more qualified than you were when you were working for the Merchant Navy in Sri Lanka?   I am more qualified, but because I haven’t got experience for the last five years, in my field, I have to refresh that…
The Applicant is consequently more qualified than when he previously lived in Sri Lanka. He also gained experience in Australia working as a landscape labourer for two years, a metal fabricator for one year, a plasma-cutting machine operator for two years and a part-time maths tutor (PG32, page 147). The Applicant therefore has qualifications and work experience which may assist him to find employment in Sri Lanka.
The Applicant is now 45 years of age. He appears to be in good health and has not declared that he has any health concerns. As he lived in Sri Lanka until the age of 26 years when he came to Australia as a student, there would be minimal, if any language and cultural barriers for him to overcome. He is also a citizen of Sri Lanka, and as such there is no evidence to suggest that he would not have the same access to social, economic and medical support as other Sri Lankan citizens.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the Protection of the Australian Community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65), and the Expectations of the Australian Community (paragraph 13.3 of Direction no. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of his visa (that is, affirming the Reviewable Decision).
With respect to the primary consideration regarding the best interests of the children (13.2 of Direction no. 65), although the Tribunal has found, with some reservations, and based on the limited information before it, that the best interests of the children may, on balance, be better served by their father (the Applicant) being permitted to stay in Australia, it is outweighed by the other two primary considerations.
In relation to the other considerations (paragraph 14 of Direction no. 65), some are not relevant to the Applicant’s situation (paragraphs 14.1, 14.3 and 14.4 of Direction no. 65), and the others do not weigh in favour of the Applicant. That is, with the exception of his former wife and children, he does not have any family in Australia, nor, on the evidence does he have social or other ties to the Australian community. Further, the Applicant is relatively young, apparently healthy, and would be able to re-establish himself in Sri Lanka, where he has his mother, siblings and nieces and nephews, without cultural or language impediments.
In these circumstances, it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 8 March 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

....[sgd]....................................................................
Associate
Dated: 28 May 2018

Date of hearing: 16 May 2018

Applicant: Self-represented

Representative for the Respondent: Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 1375

28 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	16 May 2018
Applicant:	Self-represented
Representative for the Respondent:	Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers