XBYC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 4426

XBYC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4426 (7 October 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2020/4365
GENERAL DIVISION  )

Re: XBYC
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:   Senior Member Manetta

DATE OF CORRIGENDUM: 9 November 2020

PLACE:                    Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. In paragraph [2], line [1], “XBYC” is to replace “XYBC”.

2. In paragraph [72], line [6], delete the words “to the possibility”.

........................[sgnd].........................................

Senior Member Manetta

Division:GENERAL DIVISION

File Number(s):      2020/4365

Re:XBYC

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:7 October 2020

Date of written reasons:        4 November 2020

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

.............[sgnd]...........................................................

Senior Member Dr N A Manetta

Catchwords

Migration – mandatory visa cancellation – protection visa – whether cancellation should be revoked – serious criminal offence – aggravated sexual assault – primary considerations – protection of Australian community – nature and seriousness of conduct – community expectations – other considerations - international non-refoulement obligations -  decision under review set aside and new decision substituted.

Legislation

Migration Act, 1958

Cases

FYBR v. Minister for Home Affairs [2019] FCAFC 185
FAK19 v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCA 1124 
LJTZ v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3356
QDWQ v Minister for Home Affairs [2019] AATA 4622

Secondary Materials

Direction issued under s 499 of the Migration Act, 1958: “Direction no 79- Visa Refusal and cancellation under s501 and revocation of a mandatory cancellation under s501CA.”

REASONS FOR DECISION

Senior Member Dr N A Manetta

4 November 2020

1. After I delivered my decision, a request was made for written reasons, which I now publish.

2. XBYC, the applicant is these proceedings, has applied to the Tribunal seeking a review of a decision of the respondent’s delegate dated 15 July 2020.[1] The delegate decided not to revoke the cancellation of the applicant’s protection visa, which had taken place on 6 April 2017.[2]  The cancellation had been imposed mandatorily under section 501 of the Migration Act, 1958 (“the Act”).  The cancellation was required because the applicant had been convicted of a serious criminal offence and sentenced to a term of imprisonment exceeding 12 months, part of which he was required to serve on a full-time basis in jail. At the hearing before me, Mr Nikjoo appeared for the applicant; Ms Watson, for the respondent.

   [1] Ex R1, pp14ff.

   [2] Ibid, p 194.

   STATEMENT OF TRIBUNAL’S TASK AND CONCLUSION

3. Hearing the matter afresh on the evidence adduced before me, I must decide whether to affirm or set aside the delegate’s decision not to revoke the cancellation of the applicant’s visa. The proceedings before me constitute a de novo hearing on the merits. That is to say, I may affirm the decision under review notwithstanding the presence of error in the delegate’s decision if that is the correct or preferable decision to reach on the evidence before me; equally, I may set aside the decision under review if that is the correct or preferable decision to reach, notwithstanding the absence of any error in the reasoning of the delegate.

4. I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

5. The applicant was born in Sri Lanka and is of Tamil ethnicity.  He was born in 1979 and was 41 years of age at the time of the hearing before me.  I understand that he spent the first part of his life in a Sri Lankan fishing village with his family. He came to Australia by boat in 2010.  He arrived here without a visa and, therefore, as an “unauthorised arrival”.  He claimed he was fleeing persecution in Sri Lanka.  This claim was eventually accepted, and the applicant was granted a protection visa in March 2013.  He has resided and worked in Australia since that time. He was at one point married, but is now separated from his wife.

   Criminal Offending

6. I turn now to consider the criminal offending of which the applicant has been found guilty in Australia. The first offence involved a minor assault, although it was, no doubt, confronting for the victim.  In August 2013, the applicant approached a stranger on a train and touched her lips.  Nothing further happened. I would note that the applicant was placed on a six- month good-behaviour bond, and no conviction was recorded against his name in respect of this offence.[3] 

7. The applicant was on bail awaiting trial for this offence when he committed further offences in November 2013.   These were very serious, and they led to the cancellation of his protection visa. 

8. I need to describe the offending in some detail, and I base myself on the sentencing Court’s remarks.[4] The applicant was travelling in a train carriage in greater Sydney with a young 19 year-old woman who had an intellectual disability (arising from Downs Syndrome). Her disability was obvious to the applicant (as the sentencing Court explicitly observed[5]).  The applicant approached the young woman.  He sat next to her. He put his arm around her, unbuttoned her shirt, and touched her breasts from outside her shirt.  These events constituted one indecent assault.  He then undid her pants and placed his hand on her genitalia and rubbed hard. All the while, he was kissing her and trying to force his tongue into her mouth.  This offending comprised the second assault.  Even though she got up and left him, he pursued her and began to kiss her again, forcing his tongue into her mouth. The applicant took hold of the victim’s purse, obtained her phone number, and stole $2.50 from her.

9. The victim had been travelling to her place of work at a Kmart store in or near Blacktown.  She was observed by staff to have a facial rash (which was consistent with her face having come into contact with a man’s beard or stubble). She said that she now had a “boyfriend” since she had been kissed for the first time. This alerted her employer to the possibility of an assault. 

   [3] Ibid, p 40, lines 3-4.

   [4] Ibid, pp 35ff.

   [5] Ibid, p 41.

10.  The applicant sought on several occasions to phone the victim with the intention, no doubt, of seeking to persuade her to meet him so that he could take further advantage of her. In one such call, taken by the victim’s mother, he was persuaded to attend a McDonald’s restaurant in Richmond, where he was identified by the victim.  He was arrested in due course.

11.  The applicant eventually pleaded guilty to two offences involving aggravated indecent  assault. The offences were the subject of sentencing remarks in the Penrith District Court on 9 June 2016.  As I have said, they were very serious.

12.  The offences were the subject of a statement tendered by the applicant to the Tribunal.[6] In this statement and in his oral evidence before me in support of the statement, the applicant actively denied his guilt.  He said he had been forced to plead guilty by his lawyers. They had said to him that if he did not plead guilty he would receive a sentence of 30 years.

[6] Ex A5.

13.  Following his conviction, the applicant filed grounds of appeal with the Court of Criminal Appeal. These grounds mirrored the evidence the applicant gave before me.  The Court refused the applicant an extension of time within which to file his appeal. It may be said fairly that the Court, having had the benefit of reading various affidavits, did not entertain any doubt that the applicant knew full well what his plea of guilty meant, that he had been fully advised, and that his lawyers had not intimidated him.[7]

[7] The Court of Criminal Appeal’s decision is reproduced in Ex R1, at pp 253ff.

14.  Mr Nikjoo submitted that I ought to have regard to the applicant’s protestations of innocence as a matter that was relevant to the exercise of my discretion under Direction 79, to which I shall come. He conceded that I was bound to accept the District Court’s finding of guilt, but he submitted that I was nevertheless at liberty to accept the applicant’s version of events as true in weighing my discretion.

15.  I do not believe I should approach the matter in this way.  I accept Ms Watson’s submission to me that it would be inappropriate to go behind the Court’s finding of guilt, but I wish to add expressly that there is nothing that the applicant has said that casts any doubt upon the Court’s finding.

16.  The applicant claimed before me that the victim of his offending had in fact sought to contact him first on his mobile phone because she was infatuated with him. When he was asked for an explanation as to how a perfect stranger, with an intellectual disability, would come to have his phone number, he suggested that he had been napping in the train (after he had been approached several times by the victim) and that either she or her boyfriend – but she had no boyfriend – had taken his phone and obtained his number from it. He believed this was the case because he found his phone on the floor of the train when he woke up.  He also insisted to me that his lawyers had, indeed, prevailed upon him with the completely false suggestion that without a plea of guilty he would face 30 years in jail for his offending if found guilty after a trial. 

17.  Nothing the applicant said in this regard was at all persuasive. To the contrary, his evidence was highly implausible.  Ms Watson made the powerful point that a police investigation would have readily established that the applicant’s phone had been first used to make calls to the victim’s phone and not vice versa.  I regard the applicant’s evidence as an attempt to dissuade me from accepting the proper finding of guilt made by the Court. 

18.  In the event, the Court imposed two sentences of six months and three years respectively, to be served concurrently. A non-parole period of 18 months was set.

19.  As I have noted, one sentence was of three years’ duration. As this sentence was required to be served in part on a full-time basis in a jail, it led inevitably to the cancellation of the applicant’s visa under s 501 of the Act.  It is clear that the applicant’s protection visa was appropriately cancelled, and Mr Nikjoo did not contend to the contrary.

RE-EXERCISING THE DISCRETION UNDER DIRECTION 79

20.  The delegate who considered the question of whether the cancellation decision should be revoked was required to apply Direction 79,[8] which was made under section 499 of the Act.  I am also required to apply this Direction.

[8] “Direction no 79- Visa Refusal and cancellation under s501 and revocation of a mandatory cancellation under s501CA.”

21. In other cases, I have considered the Direction and its requirements. I quote now what I have put in an earlier case[9] in respect of the Direction:

“[24]… The Direction consists of a preamble and Parts A, B, C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision-maker must consider the specific circumstances of the case.

[25] The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by ‘non-citizens’. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk ‘non-citizens’ pose is unacceptable.

[26] The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non-citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances even other strong countervailing considerations may be insufficient to justify not cancelling the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.

[27] In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight.  Primary considerations should generally be given greater weight than other considerations.”

[9] LJTZ v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3356.

22.  I must have regard to the protection of the Australian community from criminal or other serious conduct. This is the first “primary” consideration to which I must have regard. I am required under paragraph 13.1(1) to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious misconduct by non-citizens. I accept that statement and apply it in its entirety although I have not quoted it fully.

23.  I must evaluate the nature and seriousness of the offending and the risk to the Australian community should the applicant commit further offences or engage in other serious misconduct.[10]

[10] Para 13.1(2).

24.  I am required to take into account a number of factors in evaluating the nature and seriousness of the applicant’s criminal offending.[11]  I must apply the principle that sexual crimes are viewed very seriously. I must also have regard to the principle that crimes of a violent nature against women are viewed very seriously regardless of the sentence imposed.  In this case, some force was used.  I must also have regard to the principle that crimes committed against vulnerable members of the community, including the intellectually disabled, are serious.  I take all these matters into account.

[11] Para 13.1.1(1).

25.  The first offending that involved the touching of a passenger’s lips was offensive and no doubt confronting, but it did not apparently lead to injury. There was, no doubt, a sexual element to the offending, even if that element only appeared fully in retrospect given the later offending.[12]

[12] Ex R1, at p 40.

26.  Clearly, however, it is the second series of offences that is of particular concern. These offences were committed whilst the applicant was on bail awaiting trial for the first offence involving the lip-touching.  It is clear that the charge of assault the applicant was facing did not deter him from this much more serious misconduct.

27.  The assaults against the victim who had Downs Syndrome had a marked element of depravity. The victim was at a considerable disadvantage and was not able to summon help in the circumstances.  Her overall mental functioning was so limited, in fact, that she was placed in the bottom one-tenth of one percent of the general population.[13]

[13] Ibid, p 34.

28.  There is no doubt that the applicant chose to assault this victim because of her intellectual disability. He ignored her requests to stop.  He forced himself upon her. As the sentencing judge found, the victim’s intellectual disability was quite apparent.  The judge also found that the offending had stopped just short of penetration, which, if it had occurred, would have made the offending even more serious.[14] As it was, the offending was described by the Court as approaching the worst example of an aggravated assault of the type charged.[15]

[14] Ibid, p 42.

[15] Ibid.

29.  The offending left the victim in physical pain as she was unable to urinate comfortably for some time. The offence had an effect upon her psychological health. She became fearful of travelling alone. She could not continue with her work, and she began to fear people who had the same skin tone as the applicant’s.  These are serious and ongoing consequences for the victim, whose confidence to use public spaces and participate in community life has been severely damaged.  The offending has substantially affected this young person’s life in circumstances where she already had the disadvantage of an intellectual disability with which to cope.  

30.  I must have regard to the sentence imposed by the courts for the crime (except that crimes of a violent nature against women are regarded very seriously regardless of the sentence imposed). The sentence of three years for the second assault was a long one. I note the Court’s observation that the offending was approaching the worst type for that sort of offence.

31.  I must have regard to the frequency of the applicant’s offending and whether there is any trend of increasing seriousness. I repeat here that the applicant had already been charged and placed on bail when he committed the second series of offences. The second series of offences was far more serious than the first. Moreover, the second series of offences comprised two distinct assaults.  I must also have regard to the cumulative effect of repeated offending and I do so.

32.  In estimating the risk to the Australian community should the non-citizen commit further offences I must have regard “cumulatively” to the nature of the harm to individuals or the Australian community should the applicant engage in further misconduct and to the likelihood of his engaging in that misconduct taking into account available information and evidence on the risk of his reoffending.[16]

[16] Para 13.1.2.

33.  So far as the first of these factors is concerned, I regard the nature of the harm to individuals should the applicant engage in further sexual assaults of this type as very serious indeed. The applicant chose a victim who was especially vulnerable.  It is well known that those who suffer from an intellectual disability face special challenges when participating in the life of the wider community.  An assault of this type is likely, in my opinion, to affect an intellectually disabled person substantially and for a very long time, perhaps permanently.

34.  I must have regard to the likelihood of the non-citizen engaging in further criminal or other serious misconduct. I note the sentencing Court decided that the applicant’s traumatic experiences in Sri Lanka caused him to develop a psychiatric condition. That condition was not the direct cause of his offending but the judge concluded that it was fair to assume that the applicant’s general “capacity for quiet and sober reflection and judgment” and “to resist impulses was prejudiced” by his mental health problems.[17]

[17] Ex R1, p 40.

35.  Dr Furst, a psychiatrist, examined the applicant for the purposes of sentencing. He noted that there was no indication of substance abuse or intellectual disability in the applicant’s case.[18] The applicant did not appear to have a disorder of sexual deviance notwithstanding the nature of the offences in question.[19] The psychiatrist said that the applicant’s depressed mood and post-traumatic stress disorder probably contributed to his poor decision-making and apparent impulsivity at the time in question; but they did not prevent him from knowing that what he was doing was wrong.[20]

[18] Ibid, p 58.

[19] Ibid.

[20] Ibid.

36.  Dr Furst indicated that the applicant required ongoing counselling and treatment over the longer term.[21]  The conclusion reached by the psychiatrist was cast as follows:

“The absence of previous sexual offences, the apparent lack of any sexual deviance, being involved in a marital relationship, and the absence of any substance abuse, acceptance of treatment, and his current age (not young) are positive prognostic factors.”[22]

[21] Ibid, p 60.

[22] Ibid.

37.  On the other hand, Dr Furst noted that the victim was a stranger with a disability, and he noted also the opportunistic nature of the offending, which was a concern when this factor was coupled with the lack of any clear explanation for the behaviour. He estimated the risk of reoffending as probably in the low-to-moderate range.[23]

[23] Ibid.

38.  I take that assessment into account, although I accept the submission made by Ms Watson that the stabilising influence of the marital relationship to which Dr Furst referred is no longer relevant as the applicant and his wife are now separated.

39.   I note expressly that I am unable to form a view that the applicant has genuine remorse, in the sense of a moral appreciation of the wrongness of his conduct. I am unable to form that view because the applicant chose to persist in a false version of events before me.

40.  I appreciate the pressure that many applicants feel before the Tribunal when they face the risk of removal. That pressure is heightened when an applicant faces removal to a country where he or she has been persecuted in the past. A wrong choice to minimise personal responsibility is often made by applicants in these circumstances.  However that may be, I am unable to assume in this applicant’s favour any genuine remorse in the sense of a moral appreciation of the wrongfulness of conduct as he so actively denied any wrongdoing. 

41.  That said, I am required by the Direction to have regard not to remorse as such, but to the likelihood of further offending. Whilst I cannot conclude that the applicant is deterred from reoffending by a sense of remorse for what he has done, the risk of his reoffending is nevertheless low in my opinion. Dr Furst’s assessment was undertaken before the applicant was sent to jail.  The applicant had to serve 18 months in jail, which would have been a confronting experience as it was his first experience of punitive incarceration.

42.  More importantly, he has now had his visa revoked and is in detention. It is clear to me that this applicant fears greatly the prospect of being removed to Sri Lanka.  I believe that the applicant fully understands that were he to engage in any further offending in Australia of the type in which he has engaged, he would face the strong prospect of being removed irrespective of any dangers he faced in Sri Lanka. That much would be made clear to him by his own legal representative as a result of any decision in his favour.[24]

[24] This was also made clear to the applicant by me when my oral decision was delivered.

43.  In the case of this particular applicant, I regard the deterrent effect of further jail, and particularly of deportation, as very strong indeed. The applicant was taken into custody on 5 April 2016.  At the time of my decision, he had been either in jail or in immigration detention for a total of some four and a half years. Indeed, I understand that when he was released from jail on 8 October 2017, he was transported immediately into immigration detention, which is some three years ago.

44.  Four and a half years is a lengthy time to have spent in one form of detention or another, and this is true even when the serious nature of this applicant’s offending is taken fully into account. There is no doubt in my mind that the applicant will view these four and a half years as a severe punishment for his offending.  He also clearly understands that on any future occasion he would face an increased sentence in jail and, as I have said, he also appreciates that deportation would be a likely consequence.

45.  Accordingly, I do regard the risk of the applicant’s reoffending as low, and I arrive at this conclusion notwithstanding the fact that the offending occurred while the applicant was on bail awaiting trial in respect of the earlier assault and notwithstanding his lack of remorse and untruthful evidence before me.

46.  So far as the next primary consideration is concerned, there are no interests of minors that I need to take into account.

47.  In respect of the third primary consideration, I note that the Federal Court’s decision in FYBRv. Minister for Home Affairs[25] makes it clear that I am not to estimate community expectations for myself; but I am, instead, to assume that the expectations in question are embedded within the Direction itself. I accept that these expectations weigh strongly against the applicant in this case. The applicant had been in Australia only a relatively short time when he began to offend. The criminal offending of which he has been found guilty in the second series of offences is, as I have said, very serious indeed.

[25] [2019] FCAFC 185.

48.  I must also apply the other considerations that are listed in Part C. There is a list of five such considerations, but I note the list is not exhaustive. There is no impact on Australian business interests that I need to consider. I do not believe that there are any significant factors concerning the applicant’s strength, nature and duration of ties that I need to address. In this regard, I note the applicant’s marriage has broken down.  I attach some, but little, weight to the applicant’s contribution to Australian life through his employment.

49.   There are no particular impediments that this applicant would face on removal to Sri Lanka (apart from those I shall consider in the category of international non-refoulement obligations). I accept that the applicant would face a lower standard of living in Sri Lanka than he would enjoy in Australia, but the Direction is clear that I am not to have regard to Australian living standards. Accordingly, I do not think this factor has any particular role to play. The applicant has family in Sri Lanka, and he is completely familiar with life there. In these circumstances, I would not conclude there are any particular impediments that the applicant faces (apart from those that arise from possible persecution, which I shall address in the context of Australia’s non-refoulement obligations).

50.  I did not have before me any statement in respect of the impact on the victims of a decision to allow the applicant to remain. I leave to one side the victim of the lip-touching assault.  The sentencing Court noted that the victim who had an intellectual disability continues to fear men who have a darker skin tone. It is not clear to me that this victim would be told, and if told would understand, the effect of a decision to remove the applicant from Australia. I do take into account, however, that this victim could not be truthfully told that the applicant poses no future threat to her because he no longer lives in Australia if I were to revoke the visa cancellation. 

Non-refoulement obligations

51.  One important factor that I must consider is the obligation not to send back, or “refoule”, the applicant in this case.  The applicant was the holder of a protection visa. It has been cancelled and he is ineligible, therefore, to apply for another protection visa. In these circumstances, I must have regard to Australia’s non-refoulement obligations. The Direction requires me to address these.[26]  The Direction does permit a decision-maker to defer consideration of these obligations if the applicant can make a valid claim for another visa;[27] but, as that is not the case here, I must address them.

[26] Para 14(1)(a).

[27] Para 14.1(4).

52.  The applicant is of Tamil ethnicity and would be returned to Sri Lanka if removed from Australia. It was not disputed before me that in the past Tamils suffered grievously at the hands of the Government forces in Sri Lanka. The applicant’s visa was granted to him on the basis of a reasonable apprehension by him of persecution in Sri Lanka given the persecution that his own family suffered there.  In my opinion, Australia would have a non-refoulement obligation arising in international law not to remove the applicant to Sri Lanka, if he were to face an appreciable risk of persecution there.[28]

[28] I refer to my summary of non-refoulement obligations in QDWQ v Minister for Home Affairs [2019] AATA 4622 at [215]ff.

53.  I would note that decision-makers, when dealing with the revocation of the cancellation of a protection visa, are expressly required by the Direction to seek an assessment of Australia’s international treaty obligations.[29] This assessment was not complete at the time of the delegate’s decision on 20 July 2020 even though the applicant had been in detention for some considerable time at that stage.  

[29] Para 14.1(6).

54.  Moreover, no such assessment was provided to me.  There has been no adequate explanation for that failure.

55.  The absence of this assessment has made my task especially difficult. The delegate and the Tribunal would have been greatly assisted by an assessment of Australia’s international treaty obligations. The Direction specifically provides that any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending.[30]

[30] Ibid.

56.  I note that the Direction appears to be in error in assuming that if a person’s protection visa remains cancelled, he or she would face the prospect of prolonged immigration detention rather than removal to a country where he or she would face persecution in breach of Australia’s non-refoulement obligations.[31] It is clear that ss 197C and 198 of the Act will require the removal of the applicant in this case, irrespective of Australia’s non-refoulement obligations, if the cancellation of his visa is not revoked.  This consequence was mentioned recently in a Federal Court authority for example.[32]  I proceed, therefore, on the basis that if the applicant’s visa is not reinstated, he must be sent back to Sri Lanka as soon as practicable, irrespective of non-refoulement obligations, as expressly provided for in the Act.

[31] Paragraph 14.1(6).

[32] See FAK19 v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCA 1124 at [13], [17].

57.  Whilst I commend Ms Watson on her balanced approach to the presentation of the respondent’s case before me, I must say that I remain perplexed by the submissions she was instructed to put.  I now explain why.

58. In respect of the applicant’s claims that he faced a risk of persecution in Sri Lanka, the

delegate decided as follows:

“In this regard, I am mindful that if [the applicant] is removed there is a risk that he would suffer the types of harm described in his protection claims, including

·He is a Tamil from Sri Lanka

·He will be killed by the Sri Lankan army if he returns

·He states that he and his brother killed a man and were unaware that he was a soldier, thinking that he was about to rob them. Both he and his brother were arrested by the police and tortured

·He was previously subjected to torture and threats from the Sri Lankan army and is at risk for (sic) further human rights abuses

·He was beaten on the head with rods and suffered a head injury, permanent scarring and stammer in his speech since that time

·Two of his brothers were shot and killed by the army and his father was abducted and injured by the army

·The army continues to visit his family home and have threatened (sic) his sister into revealing his whereabouts. They told his sister in 2017 that if he returned, he would be killed

·The authorities have published his name and photo in newspapers and at the airport is ‘a wanted person’ and he fears that he will be put against a pole and shot

·He has been named and identified as ‘a Sri Lankan Tamil refugee’ on the news website in Sri Lanka as a result of an article published by the Daily Telegraph in Australia. This will place him at further risk of harm and will make him more likely to be detained for a prolonged period of time upon return.

I give considerable weight to this risk in making my decision.”[33]

[33] Ex R1, pp 26-27.

59.  The delegate’s clear finding is that there is a risk that the applicant would suffer the types of harm described in his protection claims, including those described in the passage quoted above, if he were removed to Sri Lanka. It is not clear from the reasons what information was before the delegate that led him or her to accept the applicant’s claims. Nevertheless, on a plain reading of the delegate’s reasons, he or she accepted that the applicant would face a risk of harm as described above. This risk was given “considerable weight” by the delegate in his or her decision.

60.  At the hearing before me, the gravamen of the case Ms Watson presented on behalf of the respondent was to deny the risk of serious harm that was accepted by the delegate. The respondent asked me to act on the basis of a DFAT[34] report concerning Sri Lanka dated 4 November 2019.[35]  I accept that this report suggests that, as at 4 November 2019, the applicant, as a Tamil retuning to Sri Lanka, would not face the risk that was identified and accepted by the delegate.  But the respondent’s submissions did not extend to explaining why the delegate reached the contrary decision he or she did in July 2020.

[34] “Department of Foreign Affairs and Trade”.

[35] Ex R2, p 286.

61.  To make matters more complicated, it was clear that as part of his submissions to the delegate, the applicant plainly disputed the current relevance of the DFAT report of 4 November 2019, and submitted that it could not be taken as a reliable reflection of the situation in 2020.  This submission appears in a letter to the Department of Home Affairs dated 24 April 2020 from Refugee Legal.[36]

[36] Ex R2, p 257.

62.  The letter made an explicit submission that the situation in Sri Lanka had changed following an election held on 16 November 2019 in which the Rajapaksa brothers were elected.  This submission clearly called for an investigation and considered response. As I have said, the delegate’s reasons suggest that the delegate, for whatever reason, accepted that the applicant would face a risk of serious harm on removal to Sri Lanka. But before me the respondent has, in one sense, disowned the delegate’s conclusion, and asked me to proceed on the basis that the applicant does not face a risk of serious harm. In this regard, unfortunately, the only report to which I was referred by the respondent was the DFAT report of 4 November 2019.

63.  I must say that I was left in a somewhat unsatisfactory position, because the respondent sought to contradict the conclusion of the delegate by reference to a document which the applicant maintained was out of date and no longer truly reflective of the situation in Sri Lanka, and in circumstances where I did not have the benefit of a treaty assessment as required by the Direction. I wish to point out this difficult situation expressly in the hope that it may be avoided in the future.

64.  For his part, the applicant adduced evidence from Dr Jegasothy.[37]  Dr Jegasothy provided a character reference for the applicant and also expressed his fears for the applicant’s safety (were he to be removed to Sri Lanka).  Dr Jegasothy is a minister in the Uniting Church in Australia. He is also a past human-rights activist with direct knowledge of the situation in Sri Lanka as it was some years ago.  He said in his evidence, which I accept, that he has maintained contact with people in Sri Lanka who have been reporting to him on the situation there today.

[37] Ex A3 and oral evidence.

65.  Dr Jegasothy has a very strong belief in the applicant’s innocence and believes the applicant’s version of events.  He believes a gross miscarriage of justice has occurred because the police failed to take the elementary step of inspecting CCTV footage (which the applicant said would have exonerated him).  As I have already indicated, I have rejected completely the applicant’s version of events.

66.  Notwithstanding what I must conclude was his somewhat naïve trust in the applicant’s truthfulness, Dr Jegasothy was able, in my opinion, to provide an honest, balanced and reliable view in respect of the present situation in Sri Lanka.  I accept, however, that it is one person’s view only of the situation there, even if the view is informed by a number of sources.  Dr Jegasothy indicated quite clearly that the present situation in Sri Lanka is deteriorating now that the Rajapaksa brothers are president and prime minister respectively.

67.  Dr Jegasothy asserted the present President was responsible for the final elimination of the Tamil Tigers.[38] Many thousands of Tamils are still missing, although my own research has indicated that the President has now admitted these people are dead and that he proposes to issue death certificates as an administrative measure.[39]

[38] Ex A3.

[39] See statement adverted to at and at As I have said, the situation in Sri Lanka was the subject of the 4 November 2019 DFAT report tendered by the respondent. I have considered that report. I have had regard to its conclusions, and, in particular, I note that at paragraph [3.77], DFAT concludes that whilst they may be monitored, Tamils with links to the LTTE[40] are generally able to lead their lives without concern for their security as a result of their past association with the LTTE. Dr Jegasothy, however, expressly rejected this conclusion in his cross-examination.

[40] Liberation Tigers of Tamil Eelam.

69.  Given the delegate’s conclusion in favour of the applicant in this regard, given the applicant’s challenge to the reliability of the November 2019 DFAT report as no longer representative of the situation in Sri Lanka, given Dr Jegasothy’s evidence, and given the lack of any up-to-date treaty assessment as required by the Direction,  I was left, as I have said, in a very difficult position by the respondent’s stance.   In the very short time available to me,[41] I undertook some research into the matter.

[41] As my decision was required soon after the hearing given the statutory requirement of finalising a decision within 84 days of lodgement of the application.

70. My own research, which, as I have said, I have felt obliged to undertake in the absence of appropriate up-to-date material from the respondent’s department,[42] indicates that there is an increasing danger in Sri Lanka’s Government becoming more autocratic. It also provides confirmation of the delegate’s finding and of Dr Jegasothy’s evidence.  I note in particular the recent statement of the United Nations High Commissioner for Human Rights to the 45^th session of the Human Rights Council. She commented adversely on the situation in Sri Lanka on 14 September 2020.  She said as follows:

“In Sri Lanka, I am troubled that the new Government is swiftly reneging on its commitments to the Human Rights Council since it withdrew its support for resolution 30/1.[43] Among other developments, the proposed 20th amendment to the Constitution may negatively impact on the independence of key institutions, including the National Human Rights Commission.[44] The pardon given in March to a former Army sergeant convicted of participating in unlawful killings; appointments to key civilian roles of senior military officials allegedly involved in war crimes and crimes against humanity; and moves within the police and judiciary to thwart the investigation of such crimes, set a very negative trend. The surveillance and intimidation of victims, their families, human rights defenders, journalists and lawyers should cease immediately. I encourage the Council to give renewed attention to Sri Lanka, in view of the need to prevent threats to peace, reconciliation and sustainable development.”[45]

[42] And which I could not in the available time-frame refer to the respondent for a response.

[43] This was Sri Lanka’s formal commitment to the UN Human Rights Council to investigate past atrocities though an independent judicial commission.

[44] This is a reference to the president and prime minister, who are promoting an amendment to the Constitution which, if passed, is feared by some to diminish checks and balances and accountability in Sri Lankan public administration. I understand, for example, that the Sri Lankan Bar Association has expressed some concern to the so-called amendment 20 to the Constitution: see

[45] Reported at All in all, my understanding is that at the present time, the situation in Sri Lanka is deteriorating so far as democracy and respect for fundamental human rights are concerned.  Although the DFAT report suggests that, as of 4 November 2019, returning Tamils did not face persecution, it seems clear that the new Government, which was elected after 4 November 2019, is becoming more autocratic and less accountable. The Human Rights  Commissioner’s statement refers clearly, for example, to “surveillance and intimidation of victims, their families, human rights defenders, journalists and lawyers”.

72.  On the evidence before me, I conclude that the applicant holds a legitimate fear of returning to Sri Lanka.  I agree with the delegate’s conclusion in this case.  It would be clear to the authorities on his return to Sri Lanka that the applicant had been away for some years.  I accept that they might well guess that the applicant, as a Tamil, must have benefited from some sort of protection visa to have remained out of the country for such a long time. They might conclude, rightly or wrongly, that the applicant may be hostile to the present regime. The applicant would face in the current circumstances an appreciable risk of persecution in my opinion. I do not say that it is necessarily the case that the applicant would suffer such persecution, but there would be an appreciable risk of such persecution at the present time.  As I have said, in this regard, my conclusion matches those of the delegate and Dr Jegasothy.

73.  I find that the non-refoulement obligations owed By Australia to the applicant and to the international community (as a matter of international law) do weigh very strongly in favour of revoking the visa cancellation.

WEIGHING OF THE DISCRETION

74.  The weighing of the discretion in this case has not been easy. I must take into account, and do take into account, as a primary consideration the seriousness of the applicant’s criminal offending.  I also take into account that the risk of the applicant reoffending has been found by me to be low but it is not non-existent. The offending was, as I have said, marked by depravity.  It is unacceptable for visa-holders to attack vulnerable Australians in this way. The Australian-community-expectations consideration also weighs heavily against the applicant.

75.  On the other hand, I must evaluate the “other” considerations, and whilst the primary considerations are generally to be given more weight, this does not mean in law that the other considerations may not in an appropriate case predominate.

76.  I am particularly concerned in this case by the risk of persecution that the applicant would face returning to Sri Lanka.  I  must weigh up carefully Australia’s non-refoulement obligations as required by the Direction.  I have concluded that there is a risk that the applicant would face serious persecution on his return to Sri Lanka.   In this regard, my decision is consistent with the delegate’s finding, although inconsistent with the respondent’s submission to me at the hearing.

77.  In all the circumstances of this case, I have decided that the risk of persecution the applicant would face in an uncertain and deteriorating situation in Sri Lanka does outweigh the primary considerations of risk to the Australian community and community expectations. I accept that community protection is important, and that the government is committed to protecting the community.  Remaining in Australia is described in the Direction as a privilege that Australia confers in an expectation that visa-holders will respect the law and will not cause or threaten harm to individuals or the Australian community. Nevertheless, I also give due weight to the risk of persecution that the applicant in this case would face in the current circumstances in Sri Lanka and to Australia’s non-refoulement obligations. 

78.  As I have indicated earlier in these reasons, the Act makes it clear that the statutory duty of the Minister is to remove non-citizens in the applicant’s position as soon as is practicable and irrespective of non-refoulement obligations. I may not assume that the applicant would spend time in immigration detention waiting for the situation to improve; nor have I been informed that there is any third country to which the applicant might be removed.

79.  Finally, I note that the Respondent’s Statement of Facts Issues and Contentions made reference to certain matters which were not in the event pursued.[46]   

[46] Cf paras [38] and [39].

FORMAL DECISION

80.  The decision of the Tribunal is to set aside the decision under review and to substitute a decision that the visa cancellation be revoked.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

……………[sgnd]……………………

Administrative Assistant Legal

Dated: 4 November 2020

Dates of hearing:   22 September 2020 and 23 September 2020 Applicant’s representative:           Mr F Nikjoo of Nikjoo Lawyers  

Respondent’s representative:            Ms D Watson of Australian Government Solicitor