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

This matter concerned an appeal by the applicant, a citizen of Sri Lanka, against the mandatory cancellation of his Class Five Year Resident Return visa. The cancellation was based on the applicant failing to pass the character test due to convictions for sexual offences, including against a child. The applicant sought to have the cancellation revoked, arguing there was another reason to do so, and presented evidence of his rehabilitation efforts, his ties to Australia, and concerns about his safety if returned to Sri Lanka.

The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the visa cancellation, considering the principles outlined in Direction No 99. This involved weighing various factors, including the protection of the Australian community, the strength and nature of the applicant's ties to Australia, the extent of impediments to his removal, and the best interests of any minor children affected by the decision. The Tribunal also had to consider the expectations of the Australian community regarding non-citizens who commit serious offences.

In its reasoning, the Tribunal found that the applicant's conduct, involving multiple sexual offences over a nine-year period, including against a child and family violence, was viewed very seriously by the Australian Government and community. The Tribunal noted the applicant's custodial sentence for his most recent offending and his deliberate failure to disclose prior criminal convictions. While acknowledging the applicant's rehabilitation efforts and completion of various courses, the Tribunal found these factors weighed only moderately in his favour. The Tribunal also found that the applicant had not identified any minor children in Australia affected by the decision, and his concerns about potential harm in Sri Lanka from his ex-wife's new partner, who allegedly held a senior government position, were unsubstantiated and lacked credibility. The Tribunal concluded that the expectations of the Australian community, particularly concerning serious sexual offences and family violence, weighed heavily against revoking the cancellation.

Consequently, the Tribunal was not satisfied that there was another reason to revoke the cancellation decision. The mandatory cancellation of the applicant's visa was affirmed, meaning the decision to cancel his visa stood.