Welanda Hettiarachchi (Migration)

This matter concerned an appeal by Welanda Hettiarachchi against the cancellation of his Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, by the Department of Home Affairs. The cancellation was based on criminal convictions, a community corrections order, and a fine imposed on Mr. Hettiarachchi. The Administrative Appeals Tribunal (AAT) was required to determine whether the discretion to cancel the visa should be exercised in his favour, considering the circumstances of his offending, his personal circumstances, and the potential consequences of cancellation.

The primary legal issue before the Tribunal was whether, having found that a ground for cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) existed, it should exercise its discretion to cancel Mr. Hettiarachchi's visa. This involved weighing various factors, including the applicant's submissions regarding his relationship with his wife, his efforts at rehabilitation, the potential hardship to his employer, the economic and social conditions in his home country, and the legal consequences of cancellation. The Tribunal also considered the Department's Procedures Advice Manual regarding general visa cancellation powers.

The Tribunal acknowledged that the ground for cancellation was established but that cancellation was not mandatory. In exercising its discretion, the Tribunal considered Mr. Hettiarachchi's stated intention to reconcile with his wife, his claims of rehabilitation and cessation of alcohol use, and his wife's expressed support and willingness to give him a second chance. However, the Tribunal was not persuaded that remaining in Australia was essential for him to prove his reformation or for their reconciliation, noting that communication could continue. The Tribunal also considered the hardship to his employer and the potential separation from his wife and family if he were forced to return to Sri Lanka. Ultimately, after considering all the circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr. Hettiarachchi's Subclass 485 (Temporary Graduate) visa.