Re Hapugoda and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 330
•9 May 2002
CATCHWORDS – IMMIGRATION – visa – character test – association with group or organisation involved in or having suspected involvement in criminal conduct – mitigating factors – past and present conduct – unlikely to re-offend – refusal to grant visa unlikely to deter others – exercise of discretion – grounds of review not confined - decision set aside.
Migration Act 1958 ss. 5, 20, 31, 499, 500 and 501
Migration Regulations 1994 s. 31, Schedules 2 and 4
Administrative Appeals Tribunal Act 1975 s. 25
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT Decision 9822, 7 November, 1994)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 10910, 2 May, 1996)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463
DECISION AND REASONS FOR DECISION [2002] AATA 330
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/233
GENERAL ADMINISTRATIVE DIVISION )
ReCHANAKA HAPUGODA
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 9 May, 2002
Place: Melbourne
Decision:The Tribunal:
sets aside the decision of a delegate of the Minister dated 24 January, 2002; and
2.substitutes a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501 of the Migration Act 1958 .
S A FORGIE
Deputy President
REASONS FOR DECISION
On 8 March, 2002, the applicant, Mr Chanaka Hapugoda, applied for review of a decision of a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs ("the Minister") dated 24 January, 2002 and given notice of the decision on 4 March, 2002. The decision was to cancel Mr Hapugoda's visa pursuant to s. 501(2) of the Migration Act 1958 ("the Act") on the bases that the Minister reasonably suspected that he did not pass the character test and that Mr Hapugoda did not satisfy the Minister that he passed the character test. As he was a "person in the migration zone" within the meaning of the s. 5 of the Act when he was given notice of the decision, his application is subject to the time limits set out in s. 500(6A)-(6L). Mr Hapugoda met the relevant time limits in lodging his application.
At the hearing, Mr Hapugoda was represented by Mr Niall of counsel and the Minister by his solicitor, Mr Fell. The documents lodged pursuant to s. 500(6C) of the Act ("G documents") were admitted in evidence together with statements of Mr Hapugoda, Mr Neil Protheroe, Mr Udaka Wijesinghe, Ms Jeevani Hapugoda and Mr Saddhamangala Dissanayake, a letter from Mr Mahesa Abeynayake, a bundle of documents relating to the political situation in Sri Lanka and a statutory declaration made by Mr Hapugoda on 1 June, 2000.
THE ISSUES
The first issue is whether Mr Hapugoda passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(2) should be exercised to refuse to grant him the visa.
BACKGROUND
There were many factual issues that were not in issue between the parties. In light of that and on the basis of the written and oral evidence of Mr Hapugoda and of other evidence to which I will refer, I have made the findings of fact set out in the following paragraphs.
The early years
Mr Hapugoda and his twin sister, Jeevani Hapugoda, were born in Madampe in Sri Lanka on 3 August, 1970 and are Singhalese. Their father, who was employed as a Valuation Officer in the Department of Valuation, was an active member of the Sri Lankan Freedom Party and a Party Organiser. Their mother, who was a full-time carer of the family, supported their father in his political activities.
In 1977, the Sri Lankan Freedom Party was defeated at the General Elections and the United National Party was elected to govern. Mr Hapugoda's father was then taken into police custody for questioning. While he was detained for the following four weeks, he was tortured. His wife and children had a very difficult time. Their house was attacked and there were days when they went without food. Finally, after their mother had sold her jewellery to fund work aimed at obtaining her husband's release and after the intervention of senior officials in the Sri Lankan Freedom Party, he was released. The family could no longer live in their home and moved to a remote village to live with another family member. They remained in that village for some two years. The children were unable to attend school during that time. Finally, the family was able to return home and Mr Hapugoda's father regained his position.
On their return home, the children were able to resume their education. Mr Hapugoda successfully completed the General Certificate of Education Examination Ordinary Level (i.e. Year 11) in 1986. He then undertook the advanced level examination with the intention that he would ultimately attend a Special School. Mr Hapugoda undertook his studies with the unceasing support of his friend and neighbour, Mahesh. Mahesh was studying engineering at the Special School at the time.
The JVP
The Janatha Vimukthi Peramuna ("JVP"), or People's Liberation Front, has a long and troubled past. The following is not intended to be a comprehensive survey of that past but a simple recital of some significant events drawn from the documents admitted in evidence (Exhibit H).
The JVP had its roots in the move of the Lanka Sama Samaja Party away from its traditional support base (the working class, small farmers and the poor in rural areas) when it joined the Sri Lanka Freedom Party. In doing so, it abandoned its socialist values for capitalist ideals. That occurred in 1964 and it was in the 1960s that the JVP was able to gain support among rural youth. It was based on a mixture of Singhalese nationalism, Maoism and Castroism. It was an extreme group that undertook armed insurrections against the Sri Lankan government in the 1970s. In April, 1971, it launched an uprising against the Bandaranaike government assuming that the Army would defect and join it. The Army remained loyal to the government. Government troops killed an estimated 17,000 youth and arrested another 20,000.
The JVP was legalised in 1978 and used by the government of President J.R. Jayawardene in 1980 to break the general strike in Sri Lanka. It turned to the right and joined with the United National Party ("UNP") in attacking the Tamils in 1984. President J.R. Jayawardene faced a deteriorating political, economic and military situation in the north with the Tamils. In view of that and the unrest among the working class in the south, he signed an accord with the Indian government to gain military assistance to suppress the Tamil minority in Sri Lanka's north and east. He did so with the support of the major political parties but the JVP saw it as an act of betrayal. Consequently, it launched a campaign of terror in 1987 to force workers to strike. It worked with elements in both the police and the army and together they murdered large numbers of members and officials of trade unions and left wing parties.
President Premadasa, who was elected in 1988, made overtures to the JVP to grant it official recognition. Rather than doing so, the army captured and killed the JVP's leader and his two deputies in 1989 and killed approximately 60,000 rural youth in the period 1988-1990. Many JVP members and sympathisers were shot or burnt alive on roadside pyres made of tyres by either police, the army or groups aligned with and supported by the police or the army. The JVP were similarly violent and killed politicians (particularly in the ruling UNP), bureaucrats and army personnel and their family. Sri Lanka was virtually crippled, senior officials fled from the country and commercial operations were stalled.
The JVP is now operating in Sri Lanka as a non-violent political party. At national elections held in October, 2001, it won 10 seats in Parliament or 6% of the vote. It has retained an image that is a mix of Marxism and Sinhala Buddhist nationalism and its strength in the electorate is again with the rural poor and with the youth. Earlier, in 1999, the JVP had gained 10% of the vote in provincial elections.
Mr Hapugoda's joining the JVP
When he was at school, Mr Hapugoda believed that the government in Sri Lanka was a very bad regime. He believed that there was no place for an educated person and people with money had all of the influence. Poverty was increasing and there was no salvation for the poor. Rich people exploited the poor by paying them minimum wages and obtaining maximum benefits. The police and members of the army tortured people who spoke the truth, particularly university and secondary school students, and those people were killed. Students were taken from their homes and a few days later their bodies would be found in a river near a temple or, in later times, on the roads. The police, who were heavily armed, were corrupt and violent.
Mr Hapugoda joined the JVP in 1987 while he was still at secondary school. He learned about the JVP from newspaper reports and from JVP members who went to the school and addressed the students. In this regard, Mr Hapugoda's evidence is supported by Mr Abeynayake. Talks by JVP members, I find, were common in schools in the more remote areas of Sri Lanka. They were very powerful and persuasive motivational speakers who spoke to the students of the wrongs being done to the community and how the JVP would right those wrongs. As it had not been able to change the wrongs by democratic means, the speakers told the students that it had to proceed by sabotage.
Mr Hapugoda's work with the JVP
At the beginning, Mr Hapugoda helped Mahesh in his work as an organiser for the JVP. He gradually became involved in his work and supported him wholeheartedly. At the time, Mr Hapugoda was a student leader at school and a member of the Student Council. Mahesh then entrusted Mr Hapugoda with the organisation of certain activities on behalf of the JVP. On 30 and 31 January, 1989, Mr Hapugoda organised a strike of students at his school. At the request of the school's principal, the police were called to end the strike. They did after students threw rocks and stones and the police retaliated. As the chief organiser of the strike, Mr Hapugoda was detained in custody. He was bashed before being released on 3 February, 1989. His injuries required his hospitalisation for almost two weeks.
The principal suspended Mr Hapugoda from attending school from 4 February, 1989 to 4 March, 1989. During his period of suspension, Mr Hapugoda continued his activities by communicating, often clandestinely, with students outside school hours. On his return to school, Mahesh charged him with the duties of distributing leaflets and pasting posters describing the corrupt activities of the government and describing how the educated and the poor were not given a chance. He also gave him responsibility for writing revolutionary slogans on the roads.
Mr Hapugoda carried out his duties successfully and was promoted to the position of a leader of his group comprising approximately 20 youths. As well as carrying out his responsibilities as leader of the group, Mr Hapugoda completed his secondary school studies. One of his responsibilities was to go from door to door in his village and to collect electric torches and identity cards. The JVP was pleased with his performance and promoted him to the position of Chief Organiser of the area. The JVP provided arms and, for some of the group, military training.
The activities that Mr Hapugoda then undertook were described in the following passage from his statement to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") dated 7 February, 1994:
"One day the organisation directed me to organise an attach (sic) on official police vehicle and even supplied me with arms and ammunition I despatched a group of five persons to carry out this task. Three of them and three police officers were killed during the combat between the police and my friends who attacked the police vehicle. The other two were taken into police custody. Two days later their bodies were seen burning on a pile of tyres in the town of Madampe. At this point I felt terribly angry with the police and the government. Later on my suggestion 10 of my friends were sent for a training in arms at our organisations armed troops training centre. These trained soldiers of mine returned after three weeks after a successful training. While they were away I was planning and organising matters to stage an attack on an official police vehicle. This was carried out quite successfully but at the cost of five of my youth being killed. These bodies were set ablaze in the area itself. Meanwhile the organisation appointed me as the leader of the armed troops. This made me more involved in the organisational work. At night we used to go about destroying and damaging government property. Then on a day we had disconnected electricity and was setting ablaze a government owned bus – we were quite unexpectedly confronted by a battalion of police officers and had to fight them to face to face. My security officer, Sunil was killed in the process along with 10 others. Three others who sustained minor injuries were taken into custody by the police. The bodies of these three people were seen ablaze next afternoon opposite the temple at Madampe." (G documents, page 20)
Mr Hapugoda then heard that Mahesh had been taken into custody by a group of unidentified people. On 21 July, 1989, Mahesh's body was found by the side of the road. He had been shot and killed. Mr Hapugoda then attacked a police station at Madampe. This operation resulted in three of his group and three police officers being killed. Another five of his group were taken into custody and Mr Hapugoda has no knowledge of the fate of those five.
On 2 September, 1989, Mr Hapugoda had discussions with the commanding officer of the JVP's main armed troops division in the district. Consequently, he was not at home when police sought him one night. He was also absent when they sought him on a second occasion. His mother was told by the police on that occasion that he had been responsible for attacks in the area and for the destruction of government property. If he did not report to the police within the following two days, he would be killed on sight. Mr Hapugoda felt that he was losing the ground that he had gained in the area. As a result, he left home. His father was then taken into custody and the police advised Mr Hapugoda's mother that his father would remain in custody until he gave himself up. His parents dissuaded him from doing that on the basis that his father would be released but that he, Mr Hapugoda, would surely be killed. Mr Hapugoda left the village and travelled to Colombo where he stayed with a friend. His father was released but the police told his parents to tell him to give himself up.
For a while, Mr Hapugoda stopped his activities with the JVP but did continue to discuss organisational matters with its leaders in the area. After a few days, the leaders asked him to take over the organisational work in the area. He declined the request not only because he would cause trouble for himself but also for his parents. The leaders threatened to shoot and kill him if he did not undertake the work. He had 7 days in which to take on the work or a death sentence would be passed on him by the JVP. Mr Hapugoda was very worried and anxious about the situation. He was even more worried when the parents of his fallen or missing comrades went to his parents' home and told them that they would kill him if he were to return to the village. They blamed Mr Hapugoda for the loss of their children. As a result, Mr Hapugoda left the area in which he was living in September, 1990 for another area.
Prior to his leaving, Mr Hapugoda had been charged with the following offences and they remained unresolved:
"(1) contrary to the law distribute notices to close shops and plan to destroy government property.
(2)flout emergency laws by unlawful actions such as planning the attack on the police station Madampe …," (G documents, page 25)
Mr Hapugoda's leaving Sri Lanka and life in Australia
Mr Hapugoda's parents insisted that he travel overseas. He obtained a Subclass 561 Student Visa from Australia and was able to leave Sri Lanka after his father bribed officials at the airport. He arrived in Australia on 11 May, 1991. Both the police and officials of the JVP advised his parents after his departure that he would be apprehended were he to return to Sri Lanka. In the case of the JVP, the officials told his mother that he had brought disrepute upon the organisation and had not completed his duties for them.
Since his arrival in Australia, Mr Hapugoda has returned to Sri Lanka on three occasions. The first was in April, 2000 when he visited his parent. On his second visit between 28 October and 18 November, 2000, he met Ms Shamila Perera who was to become his fianceé on his third visit. His last visit took place for some 4 weeks in October and November, 2001. They plan to marry in September, 2002 and to live in Australia.
Mr Hapugoda has worked in the cleaning industry. For the past two years, he has been a sub-contractor to Baylis Cleaning Consultancy Services Pty Ltd ("Baylis Cleaning") which is a cleaning contractor with approximately 22 employees and a further 20 or so sub-contractors. Baylis Cleaning provides employees and sub-contractors with chemicals and cleaning. It requires them to be trustworthy, reliable and hardworking for otherwise its contracts, worth millions of dollars are in jeopardy. Mr Hapugoda's sub-contracts require him to clean premises for firms such as Amcor, Foxtel, John Danks and the State Chemical Laboratories. He is trusted with the keys and security codes to those premises. Mr Hapugoda cleans himself and regularly employs between 10 and 15 people. Each week, he works between 50 and 60 hours. For the past six years, he has owned his own home unit. For the first two years, he shared with a friend who is also a cleaning contractor.
Family ties in Australia
Based on their evidence and that of Ms Hapugoda's husband, Mr Dissanayake, I find that Mr Hapugoda and his sister are very close. They are so close that, when Mr Dissanayake had obtained a visa to permit him and his family to migrate to either the United States of America or to Australia, his wife insisted that they come to Australia. That was largely on the basis that her brother was here.
In the years after Mr Hapugoda had left Sri Lanka, there were frequent telephone calls between the two of them. This continued after she married in 1996 and after she had moved from Sri Lanka to Singapore. Since she and her family moved to Sydney in 1999, Mr Hapugoda bought her a mobile telephone. They speak to each other each evening when there is no charge. He is close to his niece and attended her birthday party last year. Every three months, he travels to Sydney to see his sister. She and her family come to Melbourne twice a year and spent Christmas in Melbourne last year.
Mr Hapugoda's migration status since his arrival
Mr Hapugoda first arrived on a Student Visa but, on 11 November, 1993, applied for refugee status in Australia. His application was refused on 17 July, 1995 and that refusal was affirmed by the Tribunal on 1 April, 1997. On 25 March, 1998, he lodged a Combined Class UH/Subclass 850/Class BL/Subclass 851 Resolution of Status Visa. At the request of the Department, he signed a statutory declaration on 1 June, 2000 stating that:
" I have never been convicted of a crime or any offence in any country;
·I have not been charged with any offence that is incomplete or awaiting legal action, nor am I aware of any investigation into my affairs which has the potential to lead to such charges;
·I have not been acquitted of an offence on the grounds of unsoundness of mind or insanity;
·I do not have any spent convictions under any spent convictions legislation in any country or any convictions on my police record;
·I have not been involved in war crimes or crimes against humanity;
·I have never been associated with anyone else who has been or could reasonably be suspected to have been, or is, involved in any activities referred to above; and
·to the best of my knowledge I do not have any matters which are either unresolved or in which I have been, or am involved, that would bring into question whether or not I pass the character test as defined at Section 501 of the Migration Act 1958." (Exhibit 2)
He was granted a Bridging Visa Class WB subclass 020 on 4 September, 2001 pending the resolution of his application for a Resolution of Status Visa.
On 3 October, 2001, the Department wrote to Mr Hapugoda advising him that his visa might be liable to cancellation under s. 501. He was advised that the relevant grounds were ss. 501(6)(b) and (c)(ii). He was asked for any comment he wished to make. In a further letter dated 23 October, 2001, he was advised of additional information that would be taken into account and was again advised that cancellation of his visa was being considered under s. 501 on the grounds to which I have already referred. A submission was presented to the Department on Mr Hapugoda's behalf. Mr Hapugoda was interviewed by an officer of the Department on 7 December, 2001. This was followed by the decision under review.
LEGISLATIVE BACKGROUND
Framework of Act
Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 ("the Regulations") (ss. 31(2) and (3)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for any bridging visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion. Schedule 4 sets out the public interest criteria.
At the time that the delegate's decision was made and of this review, criterion 4001 provided that:
"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."
Section 501(2) of the Act provides that:
"The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test."
The "character test" is set out in s. 501(6), which, in so far as it is relevant, provides that:
"For the purposes of this section, a person does not pass the character test if:
(a)…;
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or in involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character; or
(d)…
Otherwise, the person passes the character test."
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No.21 ("the Direction").
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community."
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Considering first s. 501(6)(b), the Minister stated that:
"1.5 The meaning of 'association' for the purposes of the Character Test encompasses a very wide range of relationships including having an 'alliance' or a 'link' or 'connection' with a person, a group or an organised body that is involved in criminal activities. 'Association' does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:
(a)the degree and frequency of association the non-citizen had or has with the individual, group or organisation;
(b)the duration of the association; and
(c)the nature of the association.
1.6 In some cases the information concerning association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other person at risk."
In introducing directions regarding s. 501(6)(c), the Minister stated in the Direction:
"1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct."
In considering whether a person is not of good character when measured against s. 501(6)(c)(i), the Minister directs decision-makers to take the following into consideration:
"(a) the nature, severity and frequency of the offence/s;
(b)how long ago the offence/s were committed;
(c)the non-citizen's record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt for the law; and
(d) any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents." (paragraph 1.8)
With regard to s. 501(6)(c)(ii), the Minister directed, in so far as it is relevant to the circumstances of Mr Hapugoda's case:
"1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
·whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
·the seriousness of the offence which the applicant has been charged; or
(b) resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)."
In this case, the focus is upon any criminal conduct in which Mr Hapugoda may have engaged as set out in s. 501(6)(c)(i) and upon his past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression "good character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
"`Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)
After considering that structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
"These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT Decision 9822, 7 November, 1994) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 10910, 2 May, 1996). In Prasad, Deputy President McDonald added:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (paragraph 7)
What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:
"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
"… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is 'not of good character' within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the Tribunal's decision on this ground, so it is unnecessary to pursue this question." (paragraphs 8 and 24)
CONSIDERATION
The scope of the review
In reviewing the Minister's decision, Mr Niall submitted, I am confined to a consideration of the ground in s. 501(6)(b) and could not consider also the ground set out in s. 501(6)(c)(ii). That follows, he said, from the fact that the Minister relied on the former ground in his decision and not upon the latter.
A consideration of the scope of the review begins with a consideration of the precise decision that is under review. That begins with a consideration of the decision that the Tribunal may review. Section 25(1) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") provides that:
"An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment."
Section 25(4) provides the necessary corollary to this sub-section when it provides that the "... Tribunal has power to review any decision in respect of which application is made to it under any enactment." The general powers of the Tribunal are found in other provisions of the AAT Act. The remaining ten sub-sections of s. 25 go on to refine the general proposition made in s. 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. The effect of s. 25 is that regard must be had to the terms of the enactment to decide whether or not the Tribunal has been given jurisdiction.
In this case, regard must be had to s. 500(1) of the Act, which provides, in part, that:
"(1) Applications may be made to the Administrative Appeals Tribunal for review of:
(a)…
(b)decisions of a delegate of the Minister under section 501; or
(c)…
…"
I have set out the relevant provisions of s. 501 above (see paragraphs 32 and 33).
The precise terms of the delegate's decision were:
"I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) the Minister's Direction under s499 of that Act and Mr Hapugoda's comments, and have decided that:
…(d)I reasonably suspect that Mr Hapugoda does not pass the character test and Mr Hapugoda has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa." (G documents, page 10)
It seems to me that the decision under review in this case is the decision to cancel Mr Hapugoda's visa on the grounds set out in s. 501(2) i.e. that the Minister reasonably suspects that Mr Hapugoda does not pass the character test and that Mr Hapugoda does not satisfy him that he does pass it. The specific grounds upon which the Minister suspects that Mr Hapugoda does or does not pass it or on which Mr Hapugoda fails to satisfy him are not part of the decision provided that there is one ground specified in s. 501(6). It follows that, in my view, the Minister is not confined on the review of the decision to the ground relied upon in the original decision.
There are, however, principles of procedural fairness or natural justice that require proper notice to be given to Mr Hapugoda of any additional ground or change in grounds to enable him to address that ground. Such notice is at the heart of the Tribunal's General Practice Direction and of the specific direction given to the Minister on 2 April, 2002 to file and serve his Statement of Facts and Contentions on or before 24 April, 2002. While the Minister complied with those directions in accordance with the extended timetable agreed to by the parties, notice of the Minister's wish to rely on s. 501(6)(c)(ii) in addition to s. 501(6)(b) was not given to Mr Hapugoda's legal representatives until after business hours on Friday, 26 April, 2002. The hearing was held on Monday, 28 April, 2002. In the circumstances and particularly in the case of a matter in which there is little opportunity to remedy problems of lack of notice with an adjournment of the proceedings, procedural fairness would suggest that informal notice should have been given at an earlier stage. In view of the decision that I have reached, I do not consider that Mr Hapugoda has been prejudiced on this occasion and I will consider both grounds.
Does Mr Hapugoda pass the character test?
Turning first to s. 501(6)(b), it requires a consideration of whether Mr Hapugoda had (or has) an association with another person, group or organisation. The second is whether that person, group or organisation has been (or is) involved in criminal conduct.
It is accepted by both parties, and I find, that Mr Hapugoda had an association with the JVP from 1987 until 1990. The JVP is a group or organisation. Regardless of how broadly or narrowly the word "association" may be interpreted (and it is not relevant to attempt to do so in this case), I am satisfied that he has not maintained an association with it since that time. Quite apart from its precise meaning, Mr Niall submitted that there needs to be a quality of currency about Mr Hapugoda's association with the JVP before it can be said that there is an association of the sort referred to in that section. He relied on the decision of the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 (Burchett, Branson and Tamberlin JJ).
In Baker, the Full Court considered s. 501(2)(a) as previously enacted. In that form, it empowered the Minister to refuse or cancel a visa if, having regard to that person's past criminal conduct or general conduct, he or she were satisfied that the person was not of good character. Their Honours said:
"… the proposition that a finding on the question whether a person is not of good character 'will be anchored on one of the matters mentioned in subparas (i) and (ii)' cannot be so easily accepted. It is convenient to consider it in conjunction with the view, elsewhere stated by his Honour, that 'the person's general conduct' in subs 2(a)(ii) refers to "a person's prevalent or usual conduct". We think the key to the understanding of subs (2)(a) is to be found in its object – satisfaction on the issue whether a person is not of good character. In deciding whether he is so satisfied, the minister is required, by the phrase 'having regard to', to look at the conduct of the person the subject of the inquiry. Of course, an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters. It is not conceivable that parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of 'general conduct'. So the words 'having regard to' and the disjunctive 'or' must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation." (page 469)
The principles in this passage remain relevant to a consideration of s. 501(6)(c), which is a reflection of the previous s. 501(2)(a). It is not, however, relevant in a consideration of s. 501(6)(b). In s. 501(6)(b) Parliament has chosen to provide that a person does not pass the character test based solely on an association a person "has had" with a person whom the Minister reasonably suspects "has been … involved in criminal conduct". That is so without regard to the currency of the person's present association or the person's conduct generally.
The second question to consider is whether the JVP has been or is involved in criminal conduct. In the context of this case, there is no need to explore the meaning of that expression. On the basis of Mr Hapugoda's evidence and that of Mr Abeynayake as well as the documentary evidence (Exhibit H) on which I have made a number of findings of fact (see paragraphs 8 - 12 above), I am satisfied that among its activities have been unlawful killing and the destruction of property from time to time. There was no disagreement between the parties that such must be regarded as contrary to the criminal law of Sri Lanka. On that basis, I am satisfied that the JVP has been involved in criminal conduct. Therefore, in the words of s. 501(6)(b), I "suspect [the JVP] has been involved … in criminal conduct". The section requires that I "reasonably suspect" but it seems to me that the reasonableness of my suspicion must be judged by others on the basis of my reasons for forming that suspicion and not on the basis of any assertion I make that I "reasonably suspect" the JVP's involvement in criminal conduct.
The result is that Mr Hapugoda does not pass the character test for he fails it if he fails any one of the grounds set out in s. 501(6) of the Act. There is no need to consider whether he also fails it under s. 501(6)(c)(ii). The authorities to which I have referred above in relation to that provision remain relevant, though, for their focus on the balance that must be struck in assessing whether a person is, or is not, of good character is relevant in balancing whether or not the discretion to cancel Mr Hapugoda's visa should be exercised.
The discretion
Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed that they:
"… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." (Direction, paragraph 2.2)
The three primary considerations are:
"(a)the protection of the Australian community and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children." (Direction, paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Hapugoda's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of Mr Hapugoda's conduct, I must have regard to:
"(f)murder, manslaughter, assault or any other form of violence against persons;"
"(g) terrorist activity;"
"(k) arson;"
"(n) any other crimes involving violence or the threat of violence;"
"(o) ancillary offences in respect to any of the above offence, including:
·convictions for attempting to commit any of the above offences;
·convictions for conspiracy to commit any of the above offences; and
·convictions for being an accessory before or after the fact in any of the above offences;" (Direction, paragraph 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Hapugoda as mitigating factors (Direction, paragraph 2.8(a)). Provided it is realised that a pardon may only have the status of spent convictions legislation in Australia, regard may be had to the fact that a person has been pardoned (Direction, paragraph 2.8(d)).Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Hapugoda's case, it is relevant to have regard to:
"the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make." (Direction, paragraph 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …" (Direction, paragraph 2.12)
The third primary consideration relates to the best interests of a child. The matters to which the Minister has directed a decision-maker's attention in considering the best interests of the child are:
"(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c) the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen's prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances." (Direction, paragraph 2.16)
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568, 18 May, 2001 (unreported, Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
"32 An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan's children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan's children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations."
Before turning to the other considerations to which I am required by the Direction to have regard, I will consider first the primary consideration relating to the protection of the Australian community. That is concerned with the protection of the Australian community. There is no question in my mind that, in the years between 1987 and 1990, Mr Hapugoda was engaged, either in the role of organiser at the instigation of others or as perpetrator of many acts of violence and destruction. Those acts resulted in death for a not inconsiderable number of police and colleagues. Civilians were also caught up in the violence when, for example, they were used as human shields. Mr Hapugoda's responsibility for these acts is no less for the fact that he was, for most part, the organiser and not the perpetrator or for the fact that he was acting on orders from above.
Such acts of violence and destruction are serious. They are not tolerated in the Australian community. The Minister's Direction specifically recognises that. The Australian community's intolerance of the acts does not mean that it is necessarily intolerant of those who have engaged in them. As the Direction states, I must look too at the likelihood of repetition of the conduct and general deterrence as well as at the seriousness of the conduct. This must be done against the overall tenet that the protection of the Australian community is a primary consideration.
In looking to those factors, it is imperative that Mr Hapugoda's conduct be seen in the context of events in Sri Lanka at the time and also in the context of Mr Hapugoda's life and maturity at the time. I have already set out a very brief history of the evolution of JVP and events in Sri Lanka in the relevant years. I have also had regard to the evidence of Mr Abeynayake, who was in Sri Lanka at the relevant times and who was aware of events although not engaged in them. Mr Abeynayake is the IT Manager for a software technology firm in Melbourne and has lived in Australia as a permanent resident since 1992. He is an Australian citizen.
Mr Hapugoda's evidence is to the effect that he felt sorry for the poor in Sri Lanka in 1987, concerned about the inability of the educated to obtain jobs and worried about corruption in the government. At the time he was only 16 or 17 years of age. That is an impressionable age and I accept the evidence of Mr Abeynayake that the JVP gave hope to the young and naïve. I also find that the JVP's leaders were excellent motivational speakers and were so very convincing in their presentations. On the basis of his evidence, I find that those speakers were permitted to talk to students in rural areas of Sri Lanka although not at a private school in the city of the sort attended by Mr Abeynayake. At the same time, the government used its own groups including the Black Cats to eliminate people involved with the JVP, their brothers, sisters and mothers, as did the police and the army. The members of the JVP responded in turn with further violence. In essence, I find that it was a time of social upheaval in Sri Lanka of a type not known or even contemplated in Australia. It was a time when ideology begat violence and violence begat further violence so that violence became a seamless part of the fabric of society that had no beginning and no ending. Atrocities were committed by those loyal to the JVP and by those loyal to the government.
I find that Mr Hapugoda fully acknowledges his past actions with the JVP. He brought them to the attention of the Department in 1994, over eight years ago. He fully acknowledged them at the previous hearing in the Tribunal when it reviewed the Minister's decision of 17 July, 1995 to refuse him refugee status and that refusal was affirmed by the Tribunal on 1 April, 1997. In the four years that he has been in Australia since the Tribunal's decision and in the six years before, he has, apart from one conviction for drink driving leading to his being disqualified from holding a driver's licence for 16 months, he has led an exemplary life. He has also led an industrious life while settling into the community.
I find that he did not make a false statement to the Department in the statutory declaration he made on 1 June, 2000. I am satisfied that he has never been convicted of a crime in Sri Lanka or, at that time, in Australia. On the basis of the police clearance from the Sri Lankan Police and the evidence of Mr Hapugoda that an amnesty was granted, I find that he has not been "…charged with any offence that is incomplete or awaiting legal action…". Whatever the seventh dot point in the statutory declaration may mean (and it was drafted by the Department and not by Mr Hapugoda), there is no evidence that he associated with anyone who could reasonably be suspected to have been convicted of crimes or charged with offences that were incomplete. It may be that he associated with people whom it might have been reasonable to suspect had engaged in criminal conduct or had committed criminal offences but the statutory declaration is framed in terms of convictions and of charges for offences that are unresolved. There would be evidence of that for he associated with members of the JVP and there is evidence of their activities.
He has worked hard in the cleaning industry and, in the past two years, has employed between 10 and 15 people to work along side him when he has sub-contracted from Baylis Cleaning. On the basis of the evidence of Mr Protheroe, who has been employed by Baylis Cleaning as a Cleaning Manager for the past 15 months, I find that Mr Hapugoda is a most trusted sub-contractor. He is trusted with the keys and security codes of major clients of Baylis Cleaning. The contracts with those clients are worth a considerable amount of money to Baylis Cleaning and a breach of security by Mr Hapugoda would place those contracts in jeopardy. The fact that he has those keys and codes is a measure of the trust placed in him.
Since arriving in Australia, Mr Hapugoda has also made a number of friends. He does not regard himself as socialising in the Sri Lankan community in Australia but I find that he has made friends with both Sri Lankans who have moved here (such as Mr Wijesinghe, who works in the cleaning industry, and Mr Abeynayake) and those who were born here such as Mr Protheroe. Each knows about his past and each enjoys his company socially. They find him a very friendly and quiet person who is interested in sport as well as joining in activities such as having dinner together. They also comment on his honesty and reliability as well as his trustworthiness.
Having regard to all of these matters, I am satisfied that the boy that Mr Hapugoda was is not the man that he has become. His life of industry and, with one exception, his law abiding life for the past 11 years are far removed from his three years of violence in Sri Lanka. The one exception, that of drink driving, is not related to violence in the sense in which he previously engaged in violent activity. The past 11 years have shown that he is able to maintain a life of industry without resorting to violence or exhorting others to engage in such behaviour in Australia. Indeed, I am satisfied that he had stopped his previous life in 1990 before he left Sri Lanka. The risk to the Australian community that he will again resort to it is so minimal as to be virtually non-existent. He no longer has any interest in politics be they Sri Lankan or Australian. I am satisfied that, even if political and social life in Australia were to be thrown into some form of turmoil, he will maintain his wish to remain removed from any form of politics. He has caused harm and he has suffered harm and I am satisfied that he wishes neither in the future.
I am not satisfied that cancellation of Mr Hapugoda's visa on the basis of the good character test would have any effect at all on whether another person would commit offences such as those he has committed. A person who is young and naïve and who is caught up in the raw emotion of social upheaval is not going to stop and think about the offence he or she is about to commit on the basis of the effect that the offence may have on the likelihood of his or her obtaining an Australian visa at some future time.
Turning to the second primary consideration, that of the expectations of the Australian community, I find that there is no significant risk that Mr Hapugoda will breach Australia's laws in the future. The acts in which he engaged at the time are reprehensible when viewed in isolation. They must not, however, be viewed in isolation but against the background against which they were committed. It is interesting to note that an article appearing on 12 October, 2000 in The Hindu by Nirupama Subramanian entitled "JVP rises from the ashes" set out the past history of the JVP, reported its electoral win in 2000, noted its attraction to the rural poor and to the youth and concluded:
"Its re-emergence among the same people who were affected most by the cataclysmic events of those years could mean that the memories of the JVP's violent methods are not an issue today."
I find that memories of the JVP's actions are not an issue for members of the Australian community, such as Mr Abeynayake and Mr Wijesinghe, who also have links with Sri Lankan and, in the case of Mr Abeynayake, a clear memory of the times and the events. In view of all of these issues, I have come to the view that, if fully informed of all of the events and the circumstances, the Australian community would not judge Mr Hapugoda adversely. It would not expect that he should be removed when he has proved his worth to it by being one of its hard-working, trustworthy members who, through his own efforts, is providing employment for others and living a quiet life.
That brings me to the third primary consideration. That is the interests of the child. There is only one child and that is Mr Hapugoda's niece. She lives in Sydney with her parents and, although I find on the basis of her parents' evidence and on the basis of her clear affection for him at the hearing, that she is close to Mr Hapugoda, I have concluded that her best interests would not be directly affected adversely by Mr Hapugoda's departure from Australia. I do find, though, that her best interests would be affected adversely in an indirect fashion were he to go. That effect would follow from the adverse emotional effect that Mr Hapugoda's departure would have on her mother and I will return to that shortly.
Before returning to that, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
"(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b) …
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)…" (Direction, paragraph, 2.17)
I am satisfied that Mr Hapugoda's departure from Australia would have an indirect adverse effect on his niece and that would follow from the adverse effect that his departure would have on her mother. On the basis of the evidence particularly of Ms Hapugoda's husband, Mr Dissanayake, I find that the bond between sister and brother is particularly close and stronger than might otherwise be expected between brother and sister. It is so close that it determined the country in which Mr Dissanayake would continue his career and bring his family. The closeness is not a matter of recent invention or convenience but has continued through out Ms Hapugoda's married life and before. Although Mr Hapugoda lives in Melbourne and his sister in Sydney, they see each other frequently and their access to mobile telephones means that they can cheaply maintain what I have found to be their emotional interdependence. Were they to be separated on different continents, I am satisfied that there would be a significant emotional impact on Ms Hapugoda and that would have adverse effect upon her husband and daughter.
I have not had any regard to the difficulties that Mr Hapugoda would face were he to return to Sri Lanka. His parents still live in Sri Lanka but there is no evidence of the effect on them of his returning to Sri Lanka or of his staying in Australia. Taking into account the contribution that Mr Hapugoda has made to Australia as a member of the community for the past 11 years, the minimal, if any, risk that he would pose to the Australian community, the expectations of the community as I have found them to be and the effect that his removal would have on his family in Australia, I consider that the discretion to cancel his visa should not be exercised.
For the reasons I have given, I:
1.sets aside the decision of a delegate of the Minister dated 24 January, 2002; and
substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501.
I certify that the eighty-one preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: …………………………………..
Paul Paczkowski AssociateDates of Hearing 29 April, 2002
Date of Decision 9 May, 2002
Counsel for the Applicant Mr Niall
Solicitor for the Applicant Wimal & Associates
Counsel for the Respondent Mr Fell
Solicitor for the Respondent Australian Government Solicitor
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