Wickramakarulu Arachchi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Wickramakarulu Arachchi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 998 (28 April 2023)
Division:GENERAL DIVISION
File Number(s): 2021/3870
Re:Kasun Gayathra Wickrama Karulu Arachchi
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:28 April 2023
Place:Melbourne

The Tribunal sets aside the decision of 9 June 2021 to not revoke the mandatory cancellation decision of 12 August 2020 and, in substitution, decides to revoke the cancellation decision.
.......................[sgd].................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether there is ‘another reason’ to revoke mandatory cancellation decision – applicant has strong links to the Australian community – primary considerations of strength, nature and duration of ties to Australia, the best interests of minor children and other considerations extent of impediments if removed and impact on Australian business interests outweigh the countervailing considerations – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), 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
Deputy President Britten-Jones
28 April 2023
INTRODUCTION

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Partner visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 12 August 2020 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 4 September 2020 the applicant sought revocation of the cancellation decision and made representations in support of revocation.
On 9 June 2021 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 14 June 2021, the applicant applied to the Tribunal for review of the non-revocation decision. The Tribunal affirmed the non-revocation decision, but the Federal Court set aside the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration.
The Tribunal re-heard the matter on 12 and 13 April 2023.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)(is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Minister for Immigration, Citizenship and Multicultural Affairs (Cth), 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) (Direction 99).
Direction 99
The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[5]
[5] Direction 99 [7].
BACKGROUND
The applicant was born in Sri Lanka in 1988. He is 34 years old. He came to Australia in 2009 at the age of 20. He was educated at boarding schools in Sri Lanka where he described being sexually and physically abused as a child. His father was an alcoholic who physically and mentally abused his mother. He felt unloved by his family and angry because of his father’s conduct and because of the limited time he spent with them. These unfortunate life events were the foundation for a later diagnosis of complex post traumatic stress disorder (PTSD) of mild severity. [6] His parents have separated. He is estranged from his father but has a good relationship with his mother who remains in Sri Lanka. He also has two younger sisters who live with their mother.
[6] Exhibit 9, IHMS report 11 November 2022
He came to Australia to study accounting in Perth. Whilst studying he was engaged in part time work. He likes business and being financially secure. He has never had a problem finding employment. He was employed as a production manager for five years in a pizza shop. He then started up his own pizza business with a business partner from April 2019.
The applicant has two children from his ex defacto partner. They were born in Australia in 2015 and 2017. It would appear that his life took a turn for the worse after he broke up with his partner in late 2017. At first, he had an amicable arrangement which allowed him to spend a lot of time with his children but the relationship with his partner deteriorated and the applicant became depressed. He started to self-medicate with drugs and alcohol and to associate with negative peers. This led to a period of criminal activity from February 2019 which lasted until he was incarcerated in December 2019. The applicant engaged in no criminal activity prior to 2019.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99
The applicant’s official criminal record[7] shows that the applicant has been convicted of numerous offences in the Perth Magistrates Court (22 August 2019 and 3 August 2020) and one offence in the Perth District Court (28 July 2020). The applicant pleaded guilty to the charges for which he was convicted.
[7] Exhibit 1, G4
The offences dealt with in the Perth Magistrates Court on 22 August 2019 were less serious and resulted in three separate fines of $1,000 each for a breach of bail, criminal damage or destruction of property and being armed in public. The applicant caused damage to a car with a knife outside of a hotel during the early hours of 22 February 2019.
The most serious offending occurred on 5 December 2019. The applicant was charged with, and pleaded guilty to, demanding property by oral threats. As noted by the sentencing judge, this was a very serious offence which involved threatening behaviour with a gun and a silencer. The applicant was under the influence of cocaine and LSD at the time. The sentencing judge said that the applicant was experiencing considerable financial stress and was engaged in drug use and supply, and that his conduct was influenced by his peers. He was sentenced to a term of imprisonment of two years and two months and was eligible for parole after 13 months.
The applicant also pleaded guilty to eight charges in the Perth Magistrates Court on 3 August 2020. This offending related to the possession of drugs and firearms. He was sentenced to a period of imprisonment of six months for three of the more serious offences. The other offences were dealt with by way of a fine. The sentencing magistrate noted that the applicant had been in custody since 6 December 2019 and that a further term of imprisonment was appropriate.
Leaving aside the breach of bail, the offending was confined to events on 22 February 2019 and 5 and 6 December 2019. The applicant’s conduct at that time was influenced by alcohol and drugs but his possession of a firearm and drugs indicates there was some planning associated with his offending. The offending included violence which is viewed very seriously by the Australian Government and community. The criminal behaviour was limited to a period of about 10 months in 2019. His offending became more serious when he became involved with the supply of drugs and possession of a firearm.
In summary, the applicant’s offending was very serious and is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I 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 harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[8] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[8] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[9] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[9] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because it involved damage to property and violence, as well as drugs and firearms. The impact on his victims was clearly very significant. In particular, the threatening use of a firearm and pointing it in the face of both the victim and his father would have been terrifying and no doubt resulted in significant psychological harm.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant contends that there is a low risk of re-offending because most of his life has been crime free, because he has engaged in very substantial programs of rehabilitation and because of certain protective factors considered below. This low risk of re-offending is also the opinion of Dr Yoxall, a clinical psychologist who prepared a written report and gave oral evidence.

In the report of Dr Yoxall dated 26 March 2023 she provided a very detailed analysis of the applicant’s risk to the community:
On 3 August 2020 in the Perth Magistrates Court, Mr Arachchi was sentenced to 6 months imprisonment concurrent (from 3 August 2020) for the offences of having ready access to both weapons and illegal drugs, possession of firearm with circumstances of aggravation, possession of prohibited drugs with intent to sell or supply (cannabis), possess a prohibited plant (cannabis), possess a prohibited drug (cannabis & LSD) and unlicensed person possessing firearm or ammunition, possession of contrivance known as silencer, and driving without authority. His visa was cancelled on 12 August 2020. He was released on parole on 4 January 2021 and taken into immigration detention where he remains.
Mr Arachchi sought a revocation of this decision, which was denied on 9 June 2021. He sought a review of the decision not to revoke the cancellation of his visa. On 2 September 2021 this was denied.
Mr Arachchi sought a psychological assessment of risk to community.
In Mr Arachchi’s case, he has several static risk factors. He has a childhood history of exposure to family violence and sexual abuse. He effectively grew up away from his family given that he was at boarding school from a very young age. He did however reach tertiary education and has a stable history of employment, although no formal qualifications. Prior to the offending in 2019 (when he was 29 years old and then 30 years old) he had never been in trouble with the law, either in Australia or elsewhere.
For most of his life, since a young age, Mr Arachchi has ‘fended for himself’. Mr Arachchi was successful in establishing a stable life in Australia after he moved here in 2009 to study. He formed a relationship and had a family and he had stable employment. The breakdown of his relationship and fracturing of the family that he had established proved difficult to adjust to. Mr Arachchi then left stable employment to take up a business opportunity, and he used increasing amounts of alcohol and then drugs to self- medicate against what in retrospect, appears to have been undiagnosed and untreated depression. Mr Arachchi continued to spiral downwards when he chose to become involved in the selling of cannabis to overcome his financial problems. He was associating with others who were involved in drug use and crime. He obtained a gun, silencer and ammunition for protection – although he states that the silencer was ‘part of the deal’ and not an item he specifically sought out.
At the time of the offending, Mr Arachchi was impacted by alcohol and drug intoxication (cocaine and LSD), undiagnosed depression relating to the fracturing of his family, and stress relating to his business and his illegal dealings in cannabis. All these factors impacted negatively on his judgment and his behaviour and should be considered as dynamic risk factors. Ultimately Mr Arachchi’s offending in December 2019 was very serious and involved repeated threats to shoot the victim, along with the action of attaching a silencer and pointing the gun at the victim so as to cause substantial fear to the victim – and it would seem that he did. The consequences to this offending were swift and substantial. He was taken into custody in December 2019 and has been in a controlled environment ever since.
The experience of being charged, convicted, being in prison, having his visa cancelled and then going to immigration detention has led to substantial self-reflection and maturation. Mr Arachchi has had 3.5 years to reflect on his past decisions and behaviours and to engaged in opportunities available to him for rehabilitation and personal growth. He has disconnected from antisocial friends and is now focused on building relationships with prosocial people who motivate each other to build and lead a stable and prosocial life. Mr Arachchi has completed various programs in prison and in immigration detention and he is able to articulate the impact of this new learning and the application of new ways of thinking and new strategies to his daily life (albeit in a controlled environment). Mr Arachchi’s rehabilitation to date has not been the result of a coordinated program of rehabilitation to target criminogenic factors and needs.[10]
[10] Exhibit 20, pp.39-40.
Dr Yoxall gave evidence during the hearing that her opinion would be further strengthened by the evidence of the extent of the applicant’s relationship with Wendy Anderson, a close friend. Ms Anderson described the applicant as a brother and gave evidence that she was willing to provide him with support in the community. There is also the genuine support offered by another close friend, Joel Buckenara, who gave oral evidence and said the applicant was like a brother to him. The applicant’s business partner, Niroshan Don, did not give oral evidence but provided written statements in support of the applicant saying that they will continue their business relationship running pizza shops if he is released. In addition, there are numerous letters from good friends who have indicated that they would support the applicant if he were returned to the community. Despite not having his parents or siblings in Australia, I consider that the applicant has a network of friends who will provide the sort of support that one might expect from family members. This support will provide a stable environment for him to live and work which significantly improves the chances that he will not relapse into drug and alcohol abuse and not re-offend.
I also take into account that the sentencing judge as at 28 July 2020 considered that the applicant demonstrated insight and remorse for his offending. His Honour said that the applicant had good prospects of rehabilitation and a low risk of re-offending. He was satisfied that the applicant had genuine remorse. Almost three years after these comments, the applicant has proved the sentencing judge right because he has exhibited exemplary behaviour and engaged in significant rehabilitation.
The applicant has made the most of his time in prison and in detention to engage in appropriate rehabilitation. The rehabilitative programs he has engaged in include drug and alcohol abuse, anger management, parenting skills, emotional intelligence and decision making. In addition, he engaged in accounting and workplace health and safety programs. He even engaged in a domestic violence course because he had been exposed to domestic violence as a child and wanted to understand more about it. The applicant should be commended for his dedication to self-improvement through all these programs. The applicant has demonstrated to me that he is adequately rehabilitated for the purposes of re-entry into the community.
The applicant has also taken steps to address his mental health by engaging in many regular counselling sessions with a psychiatrist and psychologist in detention. These sessions included torture and trauma counselling.
I was very impressed with the applicant as a witness who indicated to me through his evidence and past conduct that he was genuinely remorseful and sorry for the pain he had inflicted due to his criminal behaviour. The applicant also expressed genuine love and affection for his young daughters. He is committed to being a good father for them if released into the community. This provides a major motivation for the applicant to not re-offend and to abstain from drugs and alcohol. The applicant is motivated to continue his rehabilitative processes to give him the best chance of successfully reintegrating into the community.
I was also very impressed with Darrylin Brain from the Linkt Therapeutic Recovery Centre. The program, that the applicant has agreed to attend, will provide the best possible chance of a successful reintegration into the community by the applicant. I am confident that the applicant will make the most of this program and that it will provide a further foundation for the applicant achieving a successful and fruitful life with his children in the community.
In conclusion, I find that the applicant has a low risk of further offending and that he does not present an appreciable risk to the Australian community.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[11] The applicant has committed serious crimes, but he has engaged in significant rehabilitation by addressing his trauma, alcohol and drug abuse, and behavioural issues. He has demonstrated his rehabilitation by his good behaviour in prison and detention. He will be in a very supportive and stable environment if he is released. Once reunited with his children, I believe he will do everything to support them and be a good father. He is a low risk of re-offending. There remains a slight risk of re-offending and therefore, the protection of the Australian community is a factor that weighs against the applicant, but I would not give it significant weight.
[11] Direction 99 at 8.1(1).
Family Violence – 8.2 of Direction 99
The applicant has not engaged in family violence so this factor is neutral in my determination as to whether there is another reason to set aside the non-revocation decision.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
The immediate family members of the applicant are his two daughters whose interests I will consider below. However, I do consider the close relationship between the applicant and his daughters represents a very significant tie to Australia. Whilst the applicant’s former partner did not give any evidence, I take into account the fact that the applicant had a relationship with her and that together they brought up their children for a time until they separated. Even after separation, the applicant continued to provide financial support to his former partner by making weekly payments of $700 for the benefit of the children. I am confident that this financial support would resume if the applicant were released and therefore a decision affirming the non-revocation decision would also have a negative impact on the applicant’s former partner who would, I infer, appreciate a resumption of financial support.
The applicant also has an extremely close relationship with his friends, Wendy Anderson and Joel Buckenara (who gave oral evidence), and their children. In addition, the applicant has developed very close ties to many other friends and persons in the community who wrote very positive letters of support.
The applicant has developed a close tie to Australia by studying here and then working over a 10-year period before his offending. The applicant started up his own pizza shop business with his business partner, Niroshan Don, and they engaged employees in that business. He misses the applicant’s support and managerial skills in the pizza shop. The applicant is a good friend of Niroshan Don, his wife and children, one of whom is the applicant’s godson.
Based on the above, I believe the applicant has made a very significant contribution to the Australian community to which I give significant weight. The applicant’s strength, nature and duration of ties to Australia are a very significant positive factor in favour of revoking the cancellation decision.
Best interests of minor children – 8.4 of Direction 99
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child affected by the decision. The following factors that I must consider where relevant to this application include:[12]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[12] Direction 99 at 8.4(4).
The applicant has two daughters who are 7 and 5 years old born in 2015 and 2017. He is very sad that he has not been able to speak to them since May 2022 because their mother has refused to engage with him. Prior to his incarceration in December 2019 the applicant spent time with his children and was a good father to them. He supported his former partner financially to raise his daughters by paying approximately $700 per week. This allowed his former partner to spend more time with the children which was to their benefit and would be to their benefit if it could continue in the future. The applicant spoke to his children every day when he was in prison and once or twice a week whilst in detention up until May 2022 when his partner stopped responding to his calls. The applicant’s friends gave evidence about what a good father he was and how his children love him. I have no doubt that they do love him and that, despite their time apart, their relationship is strong and will only get stronger if he is released into the community to be with them. He would play a positive parental role in the future with his children and his proposed financial support would assist in their upbringing. If returned to Sri Lanka, he would likely not be able to have any contact with his children because of the attitude of his former partner which is currently to not facilitate any contact at all. There is no evidence to suggest that attitude would change if he were removed from detention and returned to Sri Lanka. The applicant is likely to also find it difficult in Sri Lanka to provide the level of financial support that he would provide if he were in Australia. There would be a dreadful effect on the children if the cancellation decision were not revoked. Dr Yoxall gave evidence that permanent separation from their father would have lifelong consequences for the children. It is in the best interests of his children for the applicant to be reunited with them.
The applicant is godfather to the son of his business partner. This boy is seven years old and it would be in his best interests if his godfather were released, but I give it less weight because it is a non-parental relationship with less meaningful contact in the past.
The applicant also has a relationship with the children of his two friends who gave evidence that their children see him as an uncle. These children are 5 and 6 years old and it would be in their best interests if the non-revocation decision was revoked, but I give it less weight because it is a non-parental relationship with less meaningful contact in the past.
I conclude that the best interests of minor children is a factor that weighs very heavily in favour of revoking the cancellation decision.
Expectations of the Australian community – 8.5 of Direction 99
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, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[13] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious but, for the reasons set out earlier in these reasons, I do not consider that there is an unacceptable risk of further re-offending by the applicant. None of his offending is of the kind set out in paragraph 8.5(2) of Direction 99. I conclude that the expectations of the Australian community is a factor that weighs against the applicant, but I give it low to moderate weight in all the circumstances.
[13] Direction 99 at 8.5(1).
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[14] I must consider and understand the representations received from the applicant.[15]
[14] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[15] See above at [11].
Legal Consequences of Decision – 9.1 of Direction 99
The applicant accepts that he is not a non-citizen covered by a protection finding for the purposes of paragraph 9.1.1 of Direction 99. He does not raise any claims which may give rise to non-refoulement obligations for the purposes of paragraph 9.1.2 of Direction 99. The parties agree that this consideration is not relevant to my decision. I give it neutral weight.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may 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 is in relatively good physical health, but he has been diagnosed with complex post-traumatic stress disorder, treatment for which, if needed, may be problematic given that Sri Lanka has limited mental health facilities. Dr Yoxall stated that removal to Sri Lanka would have a substantial impact on his mental health.
The applicant has lived in Australia for 14 years so there would be a period of readjustment if he were required to return there. I find that the applicant would face some impediments if removed to Sri Lanka but he would have the benefit of being with his mother and two sisters who live together in Sri Lanka. He is young and would have no problems with language if returned. He may have some difficulty at first establishing himself, but I consider he would be able to maintain basic living standards.
This is a factor that weighs in favour of revocation of the cancellation decision but I do not give it significant weight.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
Paragraph 9.4 of Direction 99 provides as follows:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Consequently, I am required to consider any impact on Australian business interests if the applicant is not allowed to remain in Australia. The business interest referred to is not limited to one which delivers a major project or an important service.[16]
[16] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [68] and [71]
In a ‘Personal Circumstances Form’ provided by the applicant to the Minister in support of his representations for revocation of the cancellation decision, the applicant listed his occupation as co-owner of a pizza business. In response to a question about hardship to members of the Australian community if he were removed from Australia, the applicant stated that his business partner may suffer loss of employment. The applicant also stated that his partner may struggle to continue running the business without the applicant. The applicant’s business partner provided a letter dated 25 August 2020[17] referring to the pizza shop they ran together in Riverton and how he missed his experience and that it was hard to continue the business by himself. He also provided a statutory declaration on 3 March 2023 in which he said:
Kasun’s incarceration and prolonged immigration detention has costed me and my family a great deal. I miss his support with the pizza shop and I miss his exceptional management skills. If he were to be removed from Australia I would not be able to manage the pizza shop for any longer which will effectively close my business. We have long dreamed about building an empire together in the pizza industry and I will be really grateful if Kasun is granted another chance to remain in Australia where he will once again be involved with me and my family, and our business dream.
[17] Exhibit 1, G9 at p 106
The business partner gave oral evidence and was cross examined at the previous Tribunal hearing on 20 August 2021. He said nothing inconsistent with his letter or his statutory declaration of 3 March 2023. He was not available for cross examination before me because of difficulties getting away from work but I am prepared to give some weight to his evidence because it has been consistent from 2020 to 2023. His evidence is that he has struggled with the business in the absence of the applicant and that if the applicant does not return to the pizza shop then he may not be able to continue the business. I find that there would therefore be a detrimental impact on an Australian business interest, namely the pizza shop.
Paragraph 9.4 says that the employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The pizza shop business would not be considered a major project or an important service in Australia but the use of the word ‘generally’ suggests that I am not precluded from giving some weight to it. In the circumstances I do not give it significant weight but it is a factor that weighs in favour of revoking the cancellation decision.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision, but in my view they are outweighed significantly by the countervailing considerations, namely, the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children, together with the other considerations of the extent of impediments if removed and the impact on Australian business interests. The applicant has used his time outside of the community to adequately rehabilitate himself such that he is a low risk of reoffending. His offending, whilst serious, was confined to a relatively short period of his life and his time in Australia. He contributed to the Australian community by studying and working for a period of 10 years before he fell into a life of crime for a period of less than one year.
The applicant has the benefit of the many strong relationships that he has built over the years he has been in Australia. These friends have offered to provide him with the support he needs to stay drug and alcohol free and to not re-offend. The applicant has a clear focus for his life that he hopes to lead if released from detention. First, he will continue with his rehabilitation, including counselling which will help with his mental health. Second, he is genuinely committed to returning to his pizza business and to providing support and love to his two daughters. The applicant was a good father before his incarceration, and I have no doubt he will be a good father upon his release. I place very considerable weight on the interests of the applicant’s two daughters which favour him being reunited with them. They are only 5 and 7 years old and would suffer significantly if their father was not returned to them. Conversely, they will benefit significantly if their father is able to resume his role as a parent and help with their upbringing.
I am satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to set aside the decision under review and substitute a decision that the cancellation decision is revoked.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..........................[sgd]..............................................
Associate
Dated: 28 April 2023

Date(s) of hearing: 12 and 13 April 2023

Date final submissions received: 3 April 2023

Advocate for the Applicant: Marial Lewis

Solicitors for the Applicant: Crossover Law Group

Advocate for the Respondent: Elle Tattersall

Solicitors for the Respondent: Sparke Helmore Lawyers

[2023] AATA 998

28 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Date(s) of hearing:	12 and 13 April 2023
Date final submissions received:	3 April 2023
Advocate for the Applicant:	Marial Lewis
Solicitors for the Applicant:	Crossover Law Group
Advocate for the Respondent:	Elle Tattersall
Solicitors for the Respondent:	Sparke Helmore Lawyers