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

Samaranayake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1096 (16 May 2024)
Division:GENERAL DIVISION
File Number(s):2024/1207
Re:Sampath Sandaruwan Samaranayake
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date of decision: 16 May 2024
Place:Canberra

The decision under review is affirmed.
…............................[SGD].........................................
Senior Member O'Donovan
Catchwords
MIGRATION – mandatory cancellation of the applicant’s Class Five Year Resident Return visa – applicant is a citizen of Sri Lanka – sexual offences including against a child – minor child living in Sri Lanka with his mother – allegations of family violence – failure to pass character test – whether there is another reason to revoke the cancellation – Direction No 99 – protection of the Australian Community – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – health system in Sri Lanka – threats by ex-wife’s new partner - decision under review affirmed
Legislation
Migration Act 1958 (Cth), ss 501, 501(3A), 501CA
Secondary Materials
Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member O'Donovan
16 May 2024
INTRODUCTION

The applicant is a citizen of Sri Lanka. He arrived in Australia in June 2008 accompanying his wife who was studying in Australia.
Soon after his arrival in Australia the applicant obtained work as a delivery driver. The following year he was convicted of a number of offences including an indecent act with a child after masturbating in front of a 15 year old girl in his delivery van. Following his conviction, he was placed on the sex offenders register and supervised for the next 8 years. In 2018, a few months after the supervision period ended the applicant, in the space of two weeks was involved in five separate incidents which led to multiple convictions including 9 counts of sexual assault. The applicant's modus operandi was to drive around the Fortitude Valley night club district in Brisbane in the early hours of the morning and pose as an Uber driver. He would pick up young women and in the course of the journey expose himself, masturbate or compel them to masturbate him. On a number of occasions he assaulted them. He was arrested and charged soon after the fifth incident.
In early 2021 the applicant was convicted following a trial and sentenced to three years in prison. On 8 April 2021 his Five Year Resident Return visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 13 April 2021 he sought review of that decision and on 26 February 2024 a delegate of the Minister decided not to revoke the cancellation under section 501CA(4). The delegate of the Minister decided that the applicant did not pass the character test, and that there was not another reason to revoke the cancellation. The applicant applied to this Tribunal for review of that decision.
It is not in dispute that the applicant fails the character test. The only issue to be determined is whether there is another reason to revoke the cancellation. For the reasons which follow I am not satisfied that there is another reason to revoke the visa cancellation.
In considering whether there is another reason why the cancellation decision should be revoked, the Tribunal must have regard to the matters contained in a ministerial direction issued under section 499 of the Act. The relevant direction is Direction No. 99, which was executed on 23 January 2023 and commenced on 3 March 2023 ('the Direction'). Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9 when I am determining whether there is another reason why the cancellation should be revoked.
The Direction is divided into 'Primary' and 'Other' considerations. Primary considerations should generally be given greater weight than the other considerations (but there is scope to weight 'Other' considerations more highly in appropriate circumstances).
The primary considerations are:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) Whether the conduct engaged in constitutes family violence;
(c) The strength, nature and duration of ties to Australia;
(d) The best interests of minor children in Australia;
(e) Expectations of the Australian community.
The other considerations are:
(a) The legal consequences of the decision;
(b) The extent of impediments to the applicant establishing and maintaining basic living standards if removed;
(c) The impact on victims;
(d) The impact on Australian business interests.
I am also required give consideration to any other matters advanced by the applicant.
Having considered each of the considerations and weighed them appropriately, I am not satisfied that there is another reason why the cancellation decision should be revoked. Consequently, the visa cancellation decision stands.
Evidence
The evidence before me consists of the following documents:
(a)G-Documents filed with the Tribunal on 12 March 2024 (G-Documents);
(b)Statement of the Applicant, written in rehab, dated 24 April 2024 (Exhibit A1);
(c)Psychologist Report of Dr Emily Kwok dated 17 April 2024 (Exhibit A2);
(d)Attachments to the Applicant’s submission considered collectively (Exhibit A3), including:
(i)Mental health assessment of the applicant dated 19 April 2024;
(ii)Photograph of applicant prior to surgery;
(iii)Extracts from applicant’s online rehabilitation courses on topics including anger management tips, tips to relieve stress, healthy relationships, and addiction;
(iv)SMART Recovery Australia – Attendance and Participation Form dated 17 November 2023;
(v)SMART Recovery Australia – Change Plan Worksheet dated 17 November 2023;
(vi)Certificate of Course Completion – Anger Management Techniques dated 26 December 2023;
(vii)Certificate of Course Completion – Stress Management dated 16 January 2024;
(viii)Certificate of Course Completion – Healthy Relationships dated 20 January 2024;
(ix)Certificate of Course Completion – Building Self-Esteem dated 31 January 2024;
(x)Certificate of Course Completion – Problem Solving Strategies dated 11 February 2024;
(xi)Certificate of Course Completion – Confidence Building dated 1 March 2024;
(xii)Certificate of Course Completion – Assertiveness Training dated 19 April 2024;
(xiii)Certificate of Course Completion – Understanding Addictions dated 22 April 2024;
(e)Letter of Sumudu Silva dated 17 April 2024 (Exhibit A4);
(f)Letter of Chanaka Abeysinghe dated 20 April 2024 (Exhibit A5);
(g)Letter of Kalpa Gamage Don dated 19 December 2023 (Exhibit A6);
(h)Letter of Basnayaka Sam Samarakoon dated 2 September 2022 (Exhibit A7);
(i)Letter of Shehan Wuewardena dated 18 September 2023 (Exhibit A8);
(j)Email correspondence of Kanthi Wijesoma dated 14 December 2023 (Exhibit A9);
(k)Email correspondence of Meril Silva dated 18 December 2023 (Exhibit A10);
(l)Letter of Parole Board Queensland dated 22 August 2023 (Exhibit A11);
(m)Discharge/Release Notice from the Queensland Corrective Services dated 18 September 2023 (Exhibit A12);
(n)Text messages from Savinu Samaranayake (applicant’s son) (Exhibit A13);
(o)Applicant’s Personal Statement to Australian Government and Community dated 20 April 2024 (Exhibit A14);
(p)Links in email correspondence from applicant dated 24 April 2024 at 10:03pm (Exhibit A15, replicated at Exhibit A23);
(q)Applicant’s New Future Plan dated 25 March 2024 (Exhibit A16);
(r)Applicant’s document summarising the impact of LLTE attacks on the applicant and links in email correspondence from applicant dated 30 April 2024 at 11:53am (Exhibit A17);
(s)Letter from Liverpool Hospital dated 27 April 2024 (Exhibit A18);
(t)ED Discharge Referral from Liverpool Hospital dated 27 April 2024 (Exhibit A19);
(u)Link to statista.com – “Net overseas migration from Sri Lanka to Australia” (Exhibit A20);
(v)Human Rights Watch webpage – “Sri Lanka – Events of 2023” (Exhibit A21);
(w)Letter from Naushad Usoof to the Administrative Appeals Tribunal dated 18 April 2024 (Exhibit A22)
(x)Links in email correspondence from applicant dated 24 April 2024 at 10:03pm (Exhibit A23, replicated at Exhibit A15);
(y)Letter from Sam Samarakoon to the Administrative Appeals Tribunal dated 20 April 2024 (Exhibit A24)
(z)Letter of Roshan Pathirana dated 18 April 2024 (Exhibit A25).
(aa)Respondent’s Tender Bundle filed with the Tribunal on 12 April 2024 (Exhibit R1);
(bb)Technical Report – Sri Lanka Health System Review dated September 2021 (Exhibit R2);
(cc)Department of Foreign Affairs and Trade Country Report on Sri Lanka (Exhibit R3);
(dd)Additional material tendered by the respondent on 7 May 2024 (Exhibit R4), including:
(i)Transcript of police record of interview dated 21 September 2018
(ii)Crown Prosecutor’s letter dated 19 September 2019
(iii)Applicant’s plea instructions dated 31 October 2019;
(iv)Queensland Police Service documents;
(v)Applicant’s responses to complainants’ statements.
In addition to the exhibits, the following witnesses formally adopted their earlier statements and gave some additional evidence and were subjected to cross examination.
(a)Naushad Usoof;
(b)Dr Emily Kwok;
(c)Sam Samarakoon;
(d)Roshan Pathirana;
(e)Kalpa Gamage Don;
(f)Sujeewa Meehitiya;
General comments on the reliability of evidence
A common concern arose in relation to the evidence of the following witnesses:
(a)Naushad Usoof;
(b)Roshan Pathirana;
(c)Sujeewa Meehitiya;
(d)Sam Samarakoon;
(e)Sumudu Silva;
(f)Chanaka Abeysinghe.
Each witness’ statement contained the following exact words ‘I am happy to support him [the applicant] emotionally, mentally financially all the time when he needed’. Each of the witnesses who included this statement and were cross examined claimed that the phrase was their own words. That could not have been true for all of the witnesses and may not have been true for any of them. The respondent submits that as a consequence of this dishonesty the whole of the statements and each of the witnesses’ other evidence should not be accepted uncritically.
I accept that each witness’s refusal to concede that their statement included words which were not their own raises doubts about the seriousness with which they were taking their oath or affirmation. It also provides a basis for discounting the sincerity of the sentiments which were common to all the statements. I have discounted their statements as to the support they are likely to give the applicant if he remains in the community on that basis. I have also given little weight to each witnesses assessment of the extent to which the applicant has been rehabilitated. None of the witnesses are experts in assessing such matters and, due to the applicant’s incarceration have had limited exposure to him. However, to the extent that each witness gave credible evidence about other matters I have accepted that evidence.
The credibility of the applicant was also difficult to assess. He had a good command of English but he had not fully mastered its grammar.
At times when he was challenged on certain aspects of his evidence and in particular the threatening conduct of his wife’s new partner and what may occur if he is returned to Sri Lanka, he was unable to provide coherent detail about what he was expecting would happen. It is possible that this was the result of difficulties with English but it seemed more likely to me that the applicant was making things up as he went along when speaking on this topic. I had sufficient doubts about this aspect of his evidence that I was not prepared to accept it unless corroborated by other material. There were other points in his evidence that I gained a similar impression. I have however not dismissed his evidence in its entirety.
I had specific concerns about his evidence:
(a)when it related to whether he was told the age of the victim of his first crime prior to committing the offence; and
(b)when it related to the extent to which he now accepted that none of his victims had consented to the conduct that constituted the offending.
It is important whether the applicant knew when he committed his first offence that the applicant was 15 years old. The applicant has repeatedly stated since the offence that he did not know that she was 15 years old. The victim has always said that she told the applicant that she was 15. The applicant’s evidence before the Tribunal ultimately was that she may have told him prior to the crime, but if she did he forgot it at the time. I am prepared to accept that evidence. Given all of the other circumstances of his offending, it still remains a very serious offence.
The second matter is important when considering the extent to which I can accept that the applicant is rehabilitated. The applicant claims that he has made significant progress. His friends support this conclusion (albeit in a very formulaic manner). However, whenever the applicant talks about his offending, which in all cases was non-consensual, he frequently states or suggests that the victims consented to his acts of indecency. The applicant now says in his evidence that he understands that they did not consent. He suggests that to the extent he may not have expressed that in the past it is because it is very difficult to be frank about offending in the prison environment.
I do not accept that explanation. When the applicant met with his psychologist Dr Kwok on 29 January 2024, in a private consultation, he repeated his claim that the victim he was prepared to talk about did consent to his act of indecency. I am not satisfied that the applicant understands that the victims did not consent to his conduct. Nor am I satisfied that any of the programs he has undertaken or psychological techniques which he has used have dislodged the false perception that they did consent. Even while in prison the applicant told people that the indecent conduct in which he engaged was with the willing participation of his victims.
In light of this longstanding pattern of insistence that the victims did consent to his indecent conduct and the fact that as recently as January this year the applicant repeated the claim, I do not accept that the applicant understands that he did not have the consent of his victims to engage in the acts of indecency in which he engaged. I do not accept his evidence that he knows and understands that they did not. This is significant when considering the likelihood that the applicant will re-offend.
Findings of Fact
The following represent my findings of fact. To the extent that any are controversial I have referenced the evidence on which they are based.
The applicant was born in Sri Lanka on 21 December 1976. He received a reasonably good education and graduated from High School.
Growing up the applicant was exposed to a number of traumatic events. He was sexually abused at age 8 by his English tutor who asked him to do sexual acts in front of him during private classes. He was also exposed to violent incidents as a result of the civil war in Sri Lanka. He saw a man burned alive in a stack of tyres, and he had three near misses when places he was near were the subject of suicide bombings.
He worked in the private sector in Sri Lanka and moved to Bangladesh to work. By the time the applicant left Bangladesh he occupied a senior position in the fashion clothing company Ralph Lauren.
The applicant’s relationship history is somewhat obscure with different versions being given in different contexts. For example, Dr Kwok records that he met his wife when he was 26 in Bangladesh. However, when the applicant was attending the Medium Intensity Sex Offenders Program (MISOP) in prison, he is recorded as reporting that he met his wife when he was 16 and married her soon after. There is also a divergence in the account the applicant gives about his earlier sexual relationships.
What can be said with confidence is that the applicant and his wife were married by 2004. Their first son was born in November of that year.
As a result of the applicant's wife wishing to study in Australia the applicant and his family moved to Australia. They arrived in June 2008. The applicant commenced work as a parcel courier soon after.
On 18 May 2009 the applicant committed his first crime in Australia. The circumstances were these. The applicant was driving a van delivering parcels in the Melbourne suburb of Northcote. He stopped and asked a teenager for directions. As he was having trouble following her directions, he asked her to join him in the van and guide him to his destination. The teenager did that and then assisted him to find the remainder of the delivery points on his schedule. After that he bought some McDonalds and drove to a side street to eat it. By this time the applicant had been told by the girl that she was 15 years old and in Year 10 at school and that she lived with her family. Whether he consciously registered the fact that he was dealing with a person who is classified as a child under Australian law is uncertain, but there cannot be any doubt that he knew he was dealing with a young person who was not very worldly. Despite this knowledge he deliberately sought to sexualise the encounter. He asked if she watched pornography or had had sex. His victim answered no to both of those questions.
After eating takeaway for lunch in the van the following took place. This account is taken from the victim’s first report to police which I am satisfied is the most accurate description of the encounter which is available:
…Then he said that, going to Australia, he was hoping he could get himself fixed or something. Like, ‘cause he had a small penis and he wanted to get, like, he wanted to somehow get it, get it fixed or something. He showed me what the doctor had given him. It was a pink phial and he asked could he use it now and I didn’t understand what that would actually mean he had to do it in front of me. Like, he had to pull down his pants and do it. I thought it was just something, like, around, a spray you spray somewhere else. I didn’t think that he had to spray down there. Then he pulled down his pants and did it. But before he actually sprayed himself, he was explaining that he had a small penis. By that he didn’t, he said that I didn’t believe him, which I did. To show that he was telling the truth, he pulled down his pants without questioning me if I would like to see or not. Yeah, that’s, and then he put it back up and then said, started explaining how sad it was for him because he’s 24 and he doesn’t have a girlfriend, he doesn’t have any relationships in Australia, no friends and how hard it felt for him to live in here. He described how he had a girlfriend in India but he doesn’t know if he’s, if she is cheating on him or not or, like, he felt insecure in Australia. I explained to, like, I replied to him it should be O.K. for him ‘cause it’s only been two months and that, if he wants friends, he could go on the Internet and then just join some website. Then, and then, yeah, he did get phial out and he sprayed himself and said, Oh, it really hurts. Then he started masturbating in front of me. He said that nothing was happening, so he stopped and he asked me, Could I hold your hand? I said, No, you can’t, and he said, I’ll just hold a bit, a little bit. He asked if I wanted to touch it and then I said no and then he asked, Can I hold just, I’ll just hold it a little bit. I didn’t say no to that, I didn’t say anything, he just held my hand…
Then he ejaculated in front of me and he, cleaned himself with a tissue from, a tissue from McDonald’s and then after that he pulled up his pants and started driving me home. Yeah, and on the way home I was, I was not as talkative as I was at the beginning.

In response to further questioning by police the victim described the following:
O.K. Then you said you weren’t as talkative on the way…Back home…back home. Why is that?
I felt disturbed. Like, I felt then alerted that I was in the wrong place and that I needed to get home.
O.K. So when you say you felt disturbed, where, when he was spraying his penis and he started masturbating, how did that make you feel when he was doing that?
I felt in the wrong place. Like, I was still feeling disturbed. Like, I didn’t understand why he was doing it…
OK. All right. You said that he’d asked you were you scared after he masturbated himself. Because he knows I, I was no longer talking along or showing any expression, besides looking outside.
O.K., and you said, I’m fine.
O.K. How did you feel?
Not fine.
…
…you said you weren’t as talkative because you felt a bit disturbed, so after that did, why did you stay in the vehicle with him then?
I didn’t feel like I could say I wanted to go out, get out. I don’t know, I just didn’t feel like I could say it…And felt, ‘cause during then he was, he, I was still believing him and I didn’t want him to be sad that I wanted to get out of the vehicle….I still believed him and didn’t want him to feel sad.
The applicant pleaded guilty to a charge of an indecent act with a child under 16 and the conviction was entered on 13 July 2010. The applicant was sentenced to a Community Based Order for 12 months: 50 hours of unpaid community work over 12 months.
Because the applicant had been sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004 (Vic) he was required to report to Victoria Police for a period of 8 years.
Between the offence and conviction the applicant’s second son was born on 22 September 2009.
Period between conviction and further offending
On 8 January 2011 police were called to a domestic incident in the applicant’s home. According to the applicant he believed that his wife was texting a person she was having an affair with and went to grab her phone. In doing so he pushed her shoulder. His wife called triple zero and the police attended. The applicant was issued with a safety notice and he left the home and stayed elsewhere for a period.
Following his first conviction the applicant was generally compliant with his reporting obligations but was convicted and fined for five charges of failing to comply with obligations between 2013 and 2016.
During this period the applicant’s weight increased dramatically. His weight peaked at 200kg. To deal with this problem the applicant underwent bariatric bypass surgery, an operation which is colloquially known as stomach stapling. As a result of the surgery the applicant lost around 80kg in weight. As a result of this dramatic weight loss the applicant was left with over 25kgs of excess skin on his legs and abdomen. The skin can be removed surgically but to date the applicant has not had that operation.
On 13 July 2018 the applicant’s reporting obligations in relation to his 2009 offence expired. At the time his relationship with his wife was under considerable strain. According to the applicant she was disgusted by his obesity and they had not been intimate since the birth of their second child. He was thoroughly dissatisfied with his life and felt he was working all the time or attending to his children’s activities. In this period the applicant utilised sex hotlines and attended strip clubs and massage parlours.
He began offending again on 2 September 2018 and his last offence was committed on 16 September 2018. In broad terms the applicant lured young women into his vehicle by posing as an Uber driver and while they were confined in his locked vehicle engaged in various acts constituting sexual assaults or acts of indecency. The specifics of the offending are as follows.
On 2 September 2018 AW was in Fortitude Valley at around 2.45am. The applicant pulled up and asked her if she was ordering an Uber and indicated he was willing to take cash. During the journey the applicant began talking about his weight loss and excess skin and then the conversation turned sexual.
The applicant stopped the car about 2 houses away from his victim’s home. She tried to open her door but it was locked. The applicant told her not to answer her phone and kept talking about his penis and how he had difficulty using it due to his size. He grabbed the victim’s hand by the wrist and moved it over, placing it on his penis on the outside of his pants. The victim stated he kept telling her to look, but she was looking away, and he was saying things to her like ‘look’ and ‘see it’s hard’.
The victim pulled her hand away and again tried to open the door, but it was still locked. The applicant was angry and was saying ‘don’t get out, don’t leave me’. The applicant reached over and put his hand down her dress top onto her bra. The victim could feel the driver trying to force his hand under her bra onto her left breast, and he asked the victim if she could take it off. The defendant moved her body away so that he couldn’t do that anymore. He then tried to hug the applicant and began kissing her on the neck. At this point the victim was able to unlock the door, escape from the vehicle. She immediately called her boyfriend in hysterics.
On 8 September 2018 ML was in Fortitude Valley. At around 2am the applicant stopped near her and said he was an Uber driver. ML got into the rear of the vehicle and agreed to pay cash for the trip. They stopped for McDonalds and the applicant encouraged ML to buy instore rather than at the drive-thru. When she returned the applicant opened the front door for her so she ended up in the front passenger seat. When he drove off the applicant began making comments about the victim saying she had a nice body and asking if she was a dancer. The applicant then began talking about his weight loss and excess skin. The applicant then lifted his shirt showing his excess skin and revealing that his pants were pulled down and his penis was exposed. He asked ML if she wanted to touch it, she said no. The applicant then stopped at the victim’s house and again lifted his shirt exposing his penis. He asked the victim to pleasure him and asked if he could come up to her unit. She yelled ‘no’. The applicant also reached across and stroked her body in line with her chest. ML got out of the car yelled at the driver and warned him not to do this again with anyone else. She told him she was going to call the police.
On 8 September 2018 the applicant offended against MH. MH was in Fortitude Valley at 3.40am. The applicant pulled up in his car and told her he was an Uber driver. She got in believing it was an Uber but then realised the ride was not being processed by the app. The applicant and the victim agreed she would pay cash and the applicant visited an ATM to get out money. The applicant initiated a discussion about his weight loss and excess skin. The applicant stopped the vehicle outside an apartment complex near to where she lived. At this point he lifted up his shirt to show the victim his excess skin. When MH looked she observed that the applicant’s pants were down partially exposing his penis which was partially erect. At this stage MH told the applicant that she was very uncomfortable and tried to open her door to leave the car, but it was locked. The applicant got upset and grabbed control of MH’s hand. He pushed her right hand onto his exposed penis and forcibly made her move it up and down. MH tried to pull her hand away more than once, but the applicant’s grip was very strong. After some time the applicant ejaculated on MH’s hand. This made her feel physically sick. The applicant gave his victim a bottle of water and tried to hug and kiss her repeatedly on the head thanking her. He then unlocked the door and let her out. She then ran to her apartment and cried hysterically.
On 16 September 2018 at around 4am the applicant picked up JS and her friend. He convinced JS that he was an Uber driver which another friend had ordered. He dropped off JS’s friend at her destination and continued the journey with JS having encouraged her to move into the front seat. During the course of the journey the applicant started making sexual comments and then reached across and grabbed the victim’s right breast under her bra. She froze. After the applicant withdrew his hand, he began talking about the size of his penis and the loose skin on his stomach. At one point he grabbed the victim’s right hand and pulled it across, placing it on top of his pants where his penis was. As soon as the applicant let go of her hand she ripped it away. The applicant then parked the car not far from the victim’s house. He then pulled down his pants exposing his penis to the victim. She then tried to open the door but the applicant said ‘no, no’ and held her by the right arm. The applicant then grabbed both the victim’s hands and put them on the excess skin on his stomach. He then let go of her right hand, but held her left tightly, trapping her right hand against him. With his free hand, he began masturbating. After a few seconds the victim managed to pull both her hands away and made to open the door but the applicant began driving the car around the corner to her house. When the car stopped she gave the applicant $30, got out of the car and then went inside her house and broke down in tears.
The applicant was arrested and interviewed by police on 21 September 2018. He denied any wrongdoing.
The applicant was ultimately charged with nine counts of sexual assault, four counts of deprivation of liberty, three counts of common assault and two counts of indecent acts with intent to insult or offend. After eighteen days in custody he was released on bail.
In October 2019 the applicant decided to plead guilty and instructed his lawyers to do so. However, following further advice from an immigration lawyer the applicant decided to plead not guilty and contest the charges. At trial the applicant was found guilty on all counts. The applicant was sentenced on 11 March 2021. The sentencing judge made the following remarks.
The facts of this very serious offending in summary are that on five separate occasions between the 2^nd and 16^th of September 2018, the defendant engaged in a course of conduct where he did a sexual act to the women who got into his vehicle. The defendant posed as an Uber driver. By a false representation, he enticed each of the women into his vehicle at night-time in Fortitude Valley. Four of the five women could not get out of that vehicle when they wanted to.
His Honour then recited the key facts of each offence before following with:
The defendant has not shown any remorse or insight in the serious antisocial nature of his behaviour or offending. This would have been a terrifying experience for each of the complainants. The victims, I find, have suffered harm and have been adversely affected as a result of the offending. They have had to endure the additional trauma of having to give evidence of it…I have read and taken in to account the statements of three of the complainants, setting out the substantial and devastating effect the offending had and continues to have on them.
A sentence of three years was imposed.
By that stage the applicant’s wife had left him. She has since divorced him and moved back to Sri Lanka with the applicant’s two children. She has now remarried and had another child.
The applicant’s behaviour in prison was generally good with no conduct breaches.
While in prison he undertook the Getting Started: Preparatory Program for Sexual Offending (GS:PP) Completion Report and the Medium Intensity Sex Offenders Program.
He completed the GS:PP on 4 November 2021. The completion report in relation to the program was mixed. It stated:
[the applicant] demonstrated limited insight into his sexual offending behaviour and accepted limited responsibility for his sexual offending behaviour in regard to his first episode of offending, however accepted no responsibility for his current index offences. In addition, he was able to demonstrate empathy for his victim, as well as general empathy towards others. Throughout prisoner Samaranayake’s participation on the GS:PP, he demonstrated a commitment to change and willingness to participate in future sexual offending programs.
The version of the applicant’s offending given to the people conducting the program was littered with false statements. In relation to his first offence he is recorded as saying the following:
He stated the child victim had been seeking paid employment and he offered to pay her to physically deliver the parcels…the victim shared intimate details of her sex life, he became aroused and perceived this to be permission for him to touch her inappropriately.
In relation to his 2018 offending he said:
…the number of victims were reduced from five to one upon appeal.
This is not true. In relation to the victim which he claimed was the only victim whose conviction survived appeal he said:
…
During the drive to the victim’s home, the conversation became personal…[after] sharing her own personal issues…she became emotional and he attempted to console her with a hug.
…the victim had requested him to lift his shirt to examine the excess skin of his stomach area and then proceeding to touch his body in multiple places, this resulting in him becoming sexually aroused…the victim “offering to masturbate him” and then telling him to “take care of himself” afterwards.
Not surprisingly the report states that the applicant romanticised his offending and ‘was unable to identify any victim resistance as he believes the offending was consensual. Across both episodes, the prisoner’s perception of consent appears to be based on whether a female will engage in a conversation with him about sex.
It was recommended that he be assessed for further participation in programs.
On 6 October 2022 to 13 April 2023 the applicant participated in the Medium Intensity Sex Offenders Program (MISO Program).
In relation to the 2018 offending it is reported that the applicant accepted partial responsibility for offending against one victim but considered that the other four victims had consented thus absolving him of responsibility. He maintained this stance throughout his time in treatment.
Not surprisingly the conclusion was that the applicant ‘presented with an attitude of perceived injustice as he considered his offending was consensual, therefore limited his ability to take accountability for most of the offending for the duration of the program’.
When the applicant was released on parole he was taken into immigration detention. His parole period expired on 20February 2024.
In preparing for the hearing of this application the applicant saw psychologist Dr Kwok. Dr Kwok was extensively briefed. The documents included accounts from the victims of the applicant’s various crimes. Dr Kwok also took a history from the applicant about his offending. The history which she received departed significantly from the versions given by the applicant’s victims and always in a direction which minimised his culpability for the offending.
In relation to his first offence Dr Kwok summarised the applicant’s account in the following terms:
…she wanted to see his body. He reportedly showed her his body including his penis. He claimed she “encouraged me to masturbate…He pleaded guilty as soon as he learnt that the victim was under 16 years old.
In relation to the 2018 offending Dr Kwok reports the following description of one of the applicant’s crimes:
Mr Samaranayake said he drove another female home in exchange for money. He said they arrived at the front of her house at around 2am and she “didn’t want to disturb people in the house.” He said she stayed in his car and they talked about “private things.” He said, “she talked about her difficulties, we have a good discussion…We stayed in the car for fifteen to twenty minutes…When I was talking to her, we hugged, I was so happy, I told her I was getting motivated [and] she offered me masturbation.” Mr Samaranayake reported that he received $20.
In his evidence before the Tribunal the applicant says that he now understands that his victims did not consent to his behaviour, but he did not understand that at the time. He says that having been taught psychological techniques, such as cognitive behavioural therapy, he is now gaining insight into his behaviour. He understands that just because a woman is kind to him, that does not mean that she consents to the kind of conduct which he engaged in. He now understands that women are not sex objects. For the reasons explained at paragraph [22] above I do not accept that evidence.
Family situation
As noted above, following his criminal conviction the applicant’s wife divorced him, moved with his two sons back to Sri Lanka and has now re-married and has recently had a child with her new husband. The applicant is in regular text contact with his older son but has no contact with his youngest son.
The contact between the applicant and his older son SS is not approved of by SS’s mother. It is done surreptitiously. SS lived in Australia for a few months in 2023 but returned to Sri Lanka and lives with his mother at the present time.
The applicant’s younger son lives in Sri Lanka with his mother. The applicant is concerned that his son is not attending school and is to a large degree being ignored and emotionally neglected by his mother and her new husband. The applicant reported that his wife’s social media accounts now do not include any photos which include her sons from her marriage to the applicant - only images of her new husband and daughter.
The applicant’s hope is that if he is released into the Australian community he will be able to arrange for his sons, who are both Australian citizens, to return to Australia and live with him.
The applicant claims that he has no other relatives who he is close to who live permanently in Sri Lanka. His only sister lives in the United States with her husband and his parents live with her. I am satisfied this is the case for a significant part of the year but I am also satisfied that the applicant’s parents regularly visit Sri Lanka for several months each year. The applicant gave evidence that his ex-wife had taken out an apprehended violence order against his parents in Sri Lanka. That evidence had the quality of recent invention about it. I am not prepared to accept it is the case.
In documents which the applicant has prepared and submitted to the Tribunal, he describes his sister and brother in law as his main source of advice and support, including financial support when needed and medical advice.[1]
[1] A16 ‘My support people’
Friends
The applicant has a network of friends in Australia. He had a number of friends give evidence who were prepared to offer him a place to stay if he was released into the community. Some of his friends have the capacity to offer him work or arrange work for him.
Vocational history and living arrangements prior to entering prison
The applicant’s vocational history prior to entering prison is as follows. Before moving to Australia, the applicant held managerial positions in merchandising across factories in the clothing industry in both Sri Lanka and Bangladesh. Upon moving to Australia, the applicant worked as a courier for about three years in Melbourne, delivering parcels. Later, he was employed as a chef at several restaurants across Melbourne, Sydney and Brisbane. He has a Diploma in hospitality, a certificate 4 in Commercial Cookery as well as other qualifications related to logistics and food safety.
The applicant lived with his ex-wife and two children when he was living in Melbourne, Sydney and Brisbane. She returned to Sri Lanka in 2020 with the two children. Immediately prior to his conviction in 2021 the applicant was living at premises in Woollonggabba where he was setting up a restaurant.
The applicant’s health
In relation to the applicant’s mental health Dr Kwok reported that Mr Samaranayake does not currently suffer from a mental disorder. She notes however, that when faced with challenges, he ‘experiences emotional distress that approaches the clinical range…Mr Samaranayake does not suffer from posttraumatic stress disorder. However, his experiences of childhood sexual assault, war and civil unrest [have] made him vulnerable to psychopathology. He likely lacks coping strategies to manage stressful situations. At the time of offending, he was likely suffering from Major Depressive Disorder.’

The applicant may also have a heart condition. On 27 April 2024 he presented to Liverpool Hospital and was diagnosed with angina (a chest pain caused by reduced blood flow to the heart). He was discharged for follow up at the Rapid Assessment Chest Pain Clinic. He was to undergo further tests the day following the hearing.
He also has untreated sleep apnoea.
Situation in Sri Lanka
The applicant is very concerned about the decline in civil order in Sri Lanka and the impact that will have on both his capacity to find work and his capacity to get appropriate medical care for both his heart condition and to remove the loose skin which remains an issue following his weight loss. I am satisfied of the following. Sri Lanka has until the last five years been able to achieve a relatively high level of health services while still being a low-middle-income country. It has a proven record of satisfactory performance in this area and has gained international recognition as a successful model of “good health at low-cost”.
However, Sri Lanka has declined significantly since late 2019.
In 2020 the World Bank classified Sri Lanka as a lower middle-income country, downgrading it from upper middle income status. Amid the COVID-19 pandemic its gross domestic product declined. While government health measures helped contain the impact of the pandemic, these measures negatively affected sectors like tourism, construction and transport. Similarly, collapsing global demand for Sri Lanka manufacturing output, especially textiles, caused further harm to the manufacturing and services sectors which account for nearly 80% of GDP. In 2021 Sri Lanka’s economy was further troubled by the country's low foreign exchange reserves and high and rising government debt. Over 70% of government revenue was being spent on interest payments. Since March 2020, the government has imposed severe import restrictions to reduce use of foreign reserves, creating further issues, including soaring prices for basic foodstuffs. Furthermore, in April 2021, President Rajapaksa announced that Sri Lanka would immediately replace all chemical fertilisers with organic substitutes. This was implemented without an adequate transition period, adequate supply of organic alternatives or supporting education. The move lowered agricultural sector productivity negatively impacting local food production and key exports. Following extensive protests against the policy, the government announced on 25 November 2021 that it would partially lift the ban and allow private enterprises to import chemical fertilisers, weedicides and pesticides and sell them in the local market.
Following these crises, the Sri Lankan government defaulted on debt repayments. There is no doubt that the health system has been very adversely affected and has been described by some commentators as having ‘come to a standstill’. The worst however may be behind Sri Lanka. The applicant’s friend Mr Pathirana gave evidence that he had visited Sri Lanka last year and it was slowly coming back to normal. There are however ongoing reports of severe economic difficulties in the country.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
In considering the protection of the Australian community I am required to keep in mind that the Government is committed to protecting the Australian community from harm from criminal activity or other serious conduct by non-citizens. I am required to have particular regard to the principle that remaining in Australia (for a non-citizen) is a privilege which is conferred on the basis that they will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I also need to have regard to:
(a)The nature and seriousness of the applicant’s conduct to date; and
(b)The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h).
When these factors are applied to the applicant’s circumstances, the result is that I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian community. His crimes are sexual crimes. I must also consider that in relation to his most recent offending a custodial sentence was imposed, and the sentence imposed was for 3 years. The applicant’s recent offending involved multiple offences in a short space of time and the more recent offending was, in terms of the conduct engaged in, more overtly coercive than his offending in 2009. In that sense it is more serious.
I have also given attention to the cumulative effect of the applicant’s offending. Multiple women across a nine year period have been affected by the applicant’s conduct.
Further, the applicant failed to disclose his criminal offending on an incoming passenger card in 2015. I do not accept the applicant’s evidence that he did not understand the question and thought that because he had not been to prison the correct answer to the question ‘do you have any criminal convictions’ was ‘no’. The applicant was regularly reporting to police at that point in time as a result of him being on the sex offenders register. I am satisfied that he was aware that he had been convicted of a criminal offence and I am satisfied that the applicant deliberately provided false information to the Department by not disclosing prior criminal offending.
The applicant’s offending is very serious.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must have regard to the Government’s view 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 resulting harm caused is so serious that any risk that it may be repeated may be unacceptable. The applicant’s criminality is not conduct of that kind, but the risks posed if the applicant’s conduct is repeated are serious.
Nature of the harm
The applicant’s offending is of a particular type. He persuades females to join him in a vehicle voluntarily and using various levels of coercion engages in sexual conduct which includes assault and acts of indecency.
It is clear from the reactions of his victims that these events are traumatic for the women involved.
If the applicant were to engage in the same conduct in the future, female victims would be traumatised in a similar way.
Likelihood of the applicant engaging in further criminal conduct
The applicant has been assessed using the forensic psychological tool Static-99R by both the Queensland Corrective Service and his own psychologist. Both tools identified him as having at least a moderate risk of being charged or convicted of another sexual offence when regard is had to static (unchangeable) factors.
Dr Kwok identified dynamic factors which in the applicant’s case lowered his risk. I do not accept that they lower it much. Dr Kwok says that at her assessment the applicant ‘accepted his offending behaviours and expressed remorse for the impact of his behaviours on the victims’. That overstates what occurred. In relation to his 2009 offending the applicant told Dr Kwok that ‘the female told him she wanted to see his body’. This is untrue and minimises the applicant’s culpability in relation to the offence. In relation to his 2018 offending the applicant described only one incident and did so in the following terms:
When I was talking to her, we hugged, I was so happy, I told her I was getting motivated [and] she offered me masturbation
This does not suggest that the applicant ‘accepted his offending behaviours’ which in all cases involved non-consensual conduct by the applicant. For that reason I do not accept Dr Kwok’s assessment that all of the dynamic factors lower the applicant’s risk of re-offending to the degree claimed. I am not prepared to accept that the applicant’s risk of re-offending could be assessed as less than moderate at present. By the time Dr Kwok completed her evidence that did not appear to be an assessment which she strongly disagreed with.
While there are steps that might be taken to reduce the applicant’s risk and he has undertaken courses and learned techniques to do so, in my assessment he has limited insight into his offending. He is able to admit only in the most general terms that his victims did not consent to the conduct in which he engaged. Whenever he describes the offending, he is unable to describe the offending as involving a lack of consent on the part of the victim.
The applicant contends that I should treat him as not posing a risk of re-offending. He contends that the steps he is taking, outlined in his ‘New Future Plan’ minimise enormously his risk of re-offending. This plan should also be read in light of his statements that he now understands that his victims did not consent to his conduct, and his only very recent willingness to discuss his own experience of child sexual abuse.
In light of the professional assessments that have been made concerning the applicant, I am not prepared to accept his own self assessment.
There is at least a moderate risk that the applicant will re-offend if released into the community and the impact on victims will be significant.
The Protection of the Australian Community consideration weighs strongly against revocation of the applicant’s visa cancellation.
Family Violence
The applicant was involved in an incident in 2011 where the applicant’s wife called the police and the applicant was given a safety notice.
The respondent contends that this should be treated as an incident of family violence. The applicant says that the incident arose when he believed that his wife was texting another man who she was having an affair with and when he went to grab the phone he pushed her shoulder. She then rang 000. The implication was that the contact was accidental and the involvement of the police by his wife was disingenuous rather than arising from any genuine concern about her safety.
The definition of family violence in the Direction specifies a number of thresholds for a finding of family violence. The lowest relevant threshold in this case is ‘other behaviour by a person that…causes [a] family member to be fearful’.
No evidence was led by the respondent from the victim as to her state of mind. I was effectively invited to infer from the calling of the police and the issuing of a safety notice that the applicant’s wife was fearful. Given the very serious adverse impact on the applicant of a finding of family violence, I am not prepared to make such a finding when other inferences are open. I will proceed on the basis that no incident of family violence has been made out against the applicant. Consequently this consideration is neutral.
Strength Nature and Duration of Ties
The applicant has been in Australia since 2008.
He has no immediate family in Australia. His two children and his ex-wife live in Sri Lanka. His parents live between the United States and Sri Lanka.
He does however have many friends in Australia who have been willing to give statements and offer support to him. He has links to the Sri Lankan community and has undertaken charity work in the community including during the COVID lockdowns. He has been gainfully employed throughout his time in Australia with the exception of the time he has been incarcerated. He has worked as a chef and a courier.
However, he was not resident in Australia during his formative years. He was in Australia for only a short period of time before his offending began.
This factor weighs in the applicant’s favour but only moderately.
Best interests of minor children in Australia affected by the decision
The applicant has not identified any minor children in Australia affected by the decision.
His only minor child lives with his mother in Sri Lanka.
This factor is neutral.
Expectations of the Australian community
As the Direction makes clear, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. Visa cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Australian community expects that the Australian Government should cancel a person’s visa if serious character concerns are raised through:
(a)acts of family violence;
(b)commission of serious crimes of a violent or sexual nature against women; and
(c)commission of crimes against government officials in the performance of their duties.
This expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
Relevant to this consideration, the applicant has engaged in crimes of a sexual nature against women and children. This consideration weighs heavily against revoking the cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
Legal consequences of the decision
The applicant is, if the cancellation of his visa stands, liable to removal from Australia as soon as reasonably practicable and in the meantime he will be held in immigration detention.
It is unclear whether the applicant is claiming that Australia has non-refoulement obligations in relation to him. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia’s non-refoulement obligations arise under various conventions identified in paragraph 9.1 of the Direction.
Non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
In this case the applicant has raised concerns about how he will be treated if he is returned to Sri Lanka – in particular by his ex-wife’s new husband. While there was no express framing of the claim as a non-refoulement claim I will treat it as such.
The claim made was that the applicant’s ex-wife’s husband (the husband) occupies a senior position within the government of Sri Lanka. The applicant claims that this individual has made threats against him in the past. The allegation is that at the husband’s direction there will be surveillance of the airport and the husband will be alerted when the applicant returns to Sri Lanka. The implication seemed to be that some harm may befall the applicant following his arrival in Sri Lanka. The applicant, when asked to explain why this would be the case was unable to identify any specific threat made against him or any credible reason for the husband harming him. I got the distinct impression that the applicant was making it up as he went along in this part of his evidence.
If there is a genuine threat about which the applicant is concerned I do not have sufficient evidence before me to make any finding in relation to it.
Similarly, the applicant’s concern about his medical needs does not appear to be sufficient to give rise to a non-refoulement obligation.
If there is better evidence to support such claims, it is open to the applicant to apply for a protection visa if he has concerns. Having heard what he has had to say on these issues I am content to proceed on the basis that if there is probably no substance to them, but if I am wrong about that, they can be assessed in the context of any protection visa application he may make.
Consequently, I give this consideration neutral weight.
Impediments to maintaining basic living standards
The applicant claims that there are impediments that he will face if removed from Australia to Sri Lanka in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)       the applicant’s age and health;
(b)       whether there are substantial language or cultural barriers; and
(c)       any social, medical and/or economic support available to him in that country.
The applicant enjoys reasonably good mental health. He is not currently undergoing any psychological treatment and he is not on medication.
He has however been experiencing heart issues recently and, in particular, angina. How serious it is and what treatment is needed in relation to the issue is the subject of ongoing testing. It seems likely that the applicant will need some form of medical treatment. Whether that treatment will include simple therapies such as the taking of blood thinners or more invasive therapies like the insertion of a stent or bypass surgery is not yet known.
I will proceed on the basis that the applicant may require significant invasive treatment at some point over the next few years.
There is a significant dispute about whether the applicant will be able to access the health care that he needs if returned to Sri Lanka. It is clear that the treatment he will receive there will not be as good as the treatment that he will receive in Australia, but the respondent contends that it will be adequate. The respondent points out that there is a universal public health system in Sri Lanka.
I note however that the Sri Lankan health system has been placed under considerable strain in recent years as a result of the economic and social decline experienced by Sri Lanka generally.
The precipitous decline observed since 2019 does however seem to have been arrested and the situation in Sri Lanka is broadly speaking at least not getting any worse. There are however significant ongoing issues in relation to the supply of medicine and the overall performance of the health system.
Despite these issues, given the presence of a universal health system and a slowly stabilising political situation, there is at least some prospect that the applicant will get access to the essential care necessary to minimise his risk of a fatal cardiac event and any side effects of his heart condition which would prevent him from maintaining basic living standards in Sri Lanka. This finding carries with it acceptance that there is also a very significant risk he may not. I also accept that the treatment he is likely to receive is far below what is necessary to completely ameliorate the ill effects of his heart condition.
However, in the event that the Sri Lankan health system is unable to meet the most basic standard of health care required by the applicant, I have material before me which suggests that the applicant’s sister and brother-in-law may assist the applicant (financially and medically) to address any serious gaps in the system which may affect him.
Apart from his heart condition I am satisfied that the applicant for the most part enjoys reasonable physical and mental health. He remains significantly overweight and has a non-life threatening excess skin issue. If the excess skin issue were dealt with, it would make him more comfortable and alleviate back pain he suffers from, but at no stage has this condition prevented him from working. It is not a barrier to him establishing basic living standards in Sri Lanka. Similarly the applicant has sleep apnoea. That condition has not been treated while the applicant has been in Australia and I am satisfied that there is no urgent need for it to be treated in Sri Lanka in order for him to maintain basic living standards.
The applicant has a range of skills which mean he is employable although it may be difficult for him to find work given the economic situation in Sri Lanka. He also has an ongoing relationship with his parents and sister who may provide support if it became necessary. Those relationships should overcome difficulties which may arise from the applicant not having a bank account in Sri Lanka.

The applicant grew up in Sri Lanka so he knows the culture and the language very well.
The general problems in Sri Lanka coupled with the applicant’s need for treatment in relation to his heart condition mean that there are impediments to him maintaining basic living standards. There is some prospect that these will turn out to be manageable.
Consequently this consideration weighs in favour of revocation.
Impact on the victim
There is no information available about the impact on victims and their family of revocation. This consideration is neutral.
Impact on Australian business interests
There is no identifiable impact on Australian business interests. This consideration is neutral.
Other Matters
The applicant is clearly apprehensive about returning to Sri Lanka. It is a place where he was exposed to childhood trauma and civil society has deteriorated significantly since he left. I have taken that into account in my consideration of the matter. The applicant has also submitted that cancelling his visa will frustrate his plans to bring his sons to Australia. At present, there is no reason to think that such a plan is realistic. His older son came to Australia and returned to Sri Lanka. He has had no contact with his youngest son. There are reasonable prospects that if the applicant is returned to Sri Lanka some contact with his children will resume.
CONCLUSION
The applicant’s offending must be treated as very serious. The protection of the Australian community consideration weighs very strongly in favour of not revoking the visa cancelation as does the expectations of the Australian community consideration.
The considerations placed on the other side of the ledger are not so strong. The applicant’s ties to Australia are quite weak, consisting of friends and business associates.
At this point the applicant has not raised any credible non-refoulement claims. I have some doubts about whether if the applicant is returned to Sri Lanka he will be able to maintain basic living standards, but he has a supportive immediate family who may provide adequate support.
In these circumstances in the interests of protecting the Australian community from the risk of further offending I am satisfied that the cancellation of the applicant’s visa should not be revoked. The decision under review is affirmed.

I certify that the preceding 146 (one hundred and forty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

..............................[SGD]..........................................
Associate
Dated: 16 May 2024

Date(s) of hearing: 6, 7 May 2024

Applicant: In person

Counsel for the Respondent: N A Wootton

Solicitors for the Respondent: M Teo, Australian Government Solicitor

[2024] AATA 1096

16 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	6, 7 May 2024
Applicant:	In person
Counsel for the Respondent:	N A Wootton
Solicitors for the Respondent:	M Teo, Australian Government Solicitor