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

YFTQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1792 (17 June 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1904
Re:YFTQ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Reitano
Date:17 June 2021
Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa.
.........................[sgd]...............................................
Member Reitano

CATCHWORDS
VISA CANCELLATION – mandatory visa cancellation under s 501(3A) – substantial criminal record – best interests of minor children – impact on victims – international non-refoulement obligations – extent of impediments if removed – whether there is another consideration – where, on appeal, the sentence was changed – decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth), s 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Reitano
17 June 2021

The Applicant was the holder of a Class XB Subclass 200 Refugee visa (visa) which was the basis upon which the Applicant remained lawfully in Australia. On 24 July 2020, that changed when a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was required by the Migration Act 1958 (Cth) (Act) to cancel the visa because on 7 July 2020 the Applicant had been sentenced to a period of imprisonment of more than 12 months and, at the time of the cancellation, the Applicant was in a custodial institution full time serving his sentence.
The Applicant, taking up the Minister’s invitation to do so, made representations to the Minister about why the decision cancelling the visa should be revoked. He did that consistent with the terms of the invitation and the relevant regulatory requirements under s.501(3)(b) of the Act. A delegate of the Minister decided to reject the Applicant’s request to revoke the cancellation. The Applicant asks the Tribunal to review that decision so it is set aside and, in its place, a decision be made that revoking the cancellation of the visa so that the visa is restored, and he can remain in Australia.
The familiar issue is whether the Tribunal standing in the Minister’s shoes is satisfied that there is another reason to revoke the mandatory cancellation of the visa. I am satisfied that there is another reason to revoke the mandatory cancellation of the visa and so I have decided to set aside the delegates decision and instead decide to revoke the cancellation of the visa. It is necessary to explain why I have made that decision.
I should indicate that before the commencement of the hearing I made an order by consent that the publication or other disclosure of the name, address or any other information tending to reveal the identity of the Applicant or the Applicant’s family is prohibited and that the Applicant be known in these proceedings by the pseudonym YFTQ.
I was satisfied that I should make that order because I did not consider that it was appropriate to publish details about the Applicant’s minor children and also because I was concerned that information concerning the Applicant’s protection claims should remain confidential. A consequence of that order is that I refer to the Applicant as ‘the Applicant’, his wife as ‘the Applicant’s wife’ and his children, from oldest to youngest as ‘first child’, ‘second child’ ‘third child’ and ‘fourth child’ in these reasons. No disrespect is intended.
BACKGROUND
The Applicant was born in Jaffna, in the Democratic Socialist Republic of Sri Lanka (Sri Lanka) in September 1977. He was the eldest of six children with four younger sisters and a younger brother. His father died of cancer in 2001.
The Applicant is a Tamil who, when he was about 15 years of age was forcibly recruited to join a movement known as the Liberation Tigers of Tamil Eelam (LTTE) which is also sometimes commonly known as the ‘Tamil Tigers’. He was a member of the LTTE for about four years. None of the facts concerning the Applicant’s recruitment by, or involvement in, the LTTE are in dispute.
The LTTE is a separatist movement which sought by militant means the establishment of the independent state of Tamil Eelam. The LTTE was hostile to the Sri Lankan government for very many years. The LTTE played a significant part in the bloody civil war that beset Sri Lanka from July 1983 until May 2009.
The Applicant was trained by the LTTE over a period of months and was, at least initially, part of a medical team who attended to wounded soldiers during various battles. He later was involved as an actual combatant. He was involved in five battles or combat operations.
The details of the Applicant’s involvement with the LTTE are recorded in the United Nations Human Rights Commission Resettlement Registration Form dated 22 August 2011 (UNHRC Form). It is not necessary to repeat all those details here other than to record that no one has suggested the details in the UNHRC Form are anything but accurate. The United Nations Human Rights Commission (UNHRC) considered the Applicant’s claims to be credible. I do too, especially given the fact that there was no contrary evidence before me and no suggestion at all that the Applicant was not telling the truth about those things.
In 1997 the Applicant asked to be released from the LTTE and after a little time during which he was required to perform menial tasks for the LTTE, he was discharged.
Later the same year he married his wife. The two had known each other since they were young. After he married, he lived with his wife in Vanni. The first and second child were born in late 1998 and mid-2001 respectively. In 2001, together with his wife and children, he moved to Jaffna.
By 2005 people who had been in the LTTE were being arrested and abducted and killed because of their association with the LTTE. The Applicant’s wife witnessed a man she knew to be of Tamil origin and who had been in the LTTE with her husband shot and killed.
In 2005 the Applicant was arrested and taken to an army camp. He was interrogated, pushed against a wall, and slapped. He was eventually released but a requirement was imposed upon him that he was to report once a week on a Monday.
After he failed to attend one Monday, he was again taken to an army camp and questioned. He was told that he would be killed if he did not provide information. He was eventually released after his wife and children pleaded for his release. He was told again that he would need to report every week. It was at about this time that he, and his wife, decided that his life was at risk and so it was arranged that he would run away to Malaysia.
In March 2006, the Applicant left for Malaysia. His wife was then nine months pregnant with the third child who was born just after he departed. After he arrived in Malaysia the Applicant registered with the UNHRC.
In October 2008, he returned to Sri Lanka from Malaysia and went to Colombo to participate in an arrangement by which his wife’s uncle had planned the Applicant’s flight to France. The arrangement did not come to pass, so instead he met with his wife and children in Columbo and remained in Sri Lanka, at least for a short time anyway.
By February 2009 he was, again, arrested and, again, his LTTE participation was at the forefront of the reasons given that the questioning he was subjected to was all about that topic. He was eventually released and moved with his wife and children to Trincomalee in Sri Lanka’s east. He continued to be subject to questioning by the Sri Lankan Army because of the ongoing suspicion that was cast over him. By June 2009, in the wake of the end of the civil war, he could take it no longer and fled a second time to Malaysia. The fourth child was born in October 2009 after his departure.
Whilst in Malaysia the Applicant heard about a boat that was leaving for Australia. He joined the boat with about 250 other Tamil refugees and asylum seekers. The boat was stopped by Indonesian authorities and docked in Merak, a port in the northwest of Java, but those on board refused to get off. Instead, they stayed on board attracting much international attention. At the same time some men visited the Applicant’s home in Sri Lanka enquiring about his whereabouts. After he left the boat, the Applicant again registered with the UNHRC. He was assessed to have refugee status.
The UNHRC Form identified that there was a reasonable likelihood that should the Applicant be returned to Sri Lanka ‘he would be detained, physically or otherwise ill-treated, and even killed…’. This followed from the fact that he would be likely to be scrutinised upon arrival in Sri Lanka ‘because he is a Tamil from the North East of Sri Lanka’ and additionally because of ‘the highly publicised and politicised negotiations between the Governments of Indonesia and Australia’ that accompanied the prolonged refusal of those on the boat at Merak to disembark. It was concluded that at that time, in August 2011, the Applicant had a well-founded fear of serious harm if he were returned to Sri Lanka related to his ‘ethnicity/race as Tamil whereby political opinion that he is a supporter of the LTTE has been imputed on him and his suspected links with the LTTE…’ It was determined that his ’fear of serious harm by the Sri Lankan government authorities’ was ‘well founded’ and that ‘in light of the foregoing, persons suspected of having links with the LTTE may be at risk on the ground of membership of a particular social group’. He was assessed to be a refugee.
On 5 September 2014, the Applicant was granted the visa and about a month later, on 16 October 2014, he arrived in Australia. He secured employment a few months after his arrival. He has worked doing factory or cleaning work since his arrival in Australia. Two years later his wife and four children came to Australia. The family were re-united. The fourth child met his father for the first time when he came to Australia. His wife and children later became permanent residents of Australia.
Not much happened during the families first three years together in Australia, but it was apparent that the Applicant had a drinking problem. His drinking problem was something he first developed whilst in Indonesia. There is no evidence, and in fact there is evidence to the contrary, that he had such a problem while in Sri Lanka.
On 13 October 2019, the Applicant had been drinking. The third child took the bottle from which he was drinking and tried to hide it presumably so he could drink no more. The Applicant, no doubt affected by alcohol, yelled, and screamed at the child and hit her on the head with a broomstick. His wife got involved. They argued. He punched his wife to the head and the forehead. He picked up a coffee table and smashed it. There is no evidence that either his wife or the third child suffered any injuries, apart from the pain they experienced when struck. The police officers who attended did not see any physical injuries. No-one needed medical or other attention.
On 30 October 2019, the Applicant appeared at Fairfield Local Court pleading guilty to two charges of common assault and one of damaging property. He represented himself with the assistance of an interpreter.
The Magistrate spoke in fairly stern terms when sentencing the Applicant, which is not all that surprising given the nature of the offending. The Magistrate, amongst other things, told the Applicant that he was a ‘whisker away from full time gaol’ and that ‘if you re-offend, especially by way of domestic violence, you are in breach and you should expect a full time gaol term’. It is difficult to conceive how the Magistrate could have been clearer.
The Applicant was convicted and placed on a community corrections order for 18 months which contained a condition, amongst others, that he be of good behaviour whilst the order was in place. An apprehended violence order was also made that included a condition that the Applicant not go near his wife or children within 12 hours of drinking.
There was a sentencing assessment report prepared that day which contains some information that is relevant. That report identified that the Applicant had ‘admitted to having struggled with alcohol abuse for approximately five years.’ It also said that the Applicant appeared to have minimised his offending by suggesting that he had been provoked by the victims. The report identified the Applicant’s risk of reoffending was considered to be low.
In March 2020, the first child, a daughter, left the family home to live with a man who the Applicant did not approve of. He and the family have not had much to do with her since. There was a suggestion that the Applicant’s drinking around that time may have had something to do with the upset that his daughter leaving had caused him. There was also evidence that, apart from the one incident I shall turn in a moment, the Applicant had stayed away from his home when he had been drinking since he was sentenced by the Magistrate.
On 17 April 2020, the Applicant had been drinking again. His wife confronted him. He began to yell and swear. His wife tried to leave the apartment but as she grabbed the doorknob, he grabbed her hair and ‘yanked it back with force’. She was in pain. During the struggle that followed she struck her thigh against a television unit. She was in pain. He continued to push and hold her against a wall. The third child tried to intervene. The Applicant grabbed her by the hair with one hand and pushed her shoulder with the other. She stumbled backwards and fell onto a coffee table in the middle of the room. The police were called.
When the police arrived, the Applicant was asleep. The police formed the view that he was well affected by alcohol because of the strong smell of alcohol and the fact that he could not complete simple tasks. He was taken back to the police station, left to sleep it off and charged with two counts of common assault and one count of contravening a prohibition or restriction in an apprehended violence order.
On 7 July 2020 the Applicant, having entered pleas of guilty some weeks earlier and having been bailed, was sentenced for the offences he committed on 17 April 2020 and re-sentenced, the consequence of him having contravened the condition to be of good behaviour in the community corrections order, in respect of the offences on 13 October 2019. He was again not represented. The same Magistrate who had dealt with him on the previous occasion heard his matter. He was sentenced to an aggregate term of imprisonment of 12 months with a non-parole period of 6 months.
When he was sentenced, the Court was given a sentence assessment report that was prepared the day before. That report attributed to the Applicant statements that he had apportioned blame for his offending to the victims, that he expressed views that demonstrated a lack of respect for women and that he had tried to ‘normalise’ his offending by reference to a cultural norm that ‘women should not question a man’s actions’. The report indicated that the Applicant whilst regretting his actions had minimised his responsibility. The report identified that alcohol had been the ‘catalyst’ for his offending. That report assessed his risk of reoffending as ‘medium to low’ risk based on the level of service inventory, which is used as a means by measuring the likelihood of re-offending based on a system of allocating scores to historical facts.
In his evidence in the Tribunal, the Applicant rejected the correctness of the comments that were attributed to him about the victims of the offences, cultural norms and the general statement about his lack of respect for women. He said that when the report was prepared, he did not consider that the interpreter and he understood each other properly and some statements were not interpreted properly. In particular, he denied saying what was attributed to him about cultural norms concerning women or that women should not question their husbands. He admitted to saying that things would have ‘gone differently’ if his wife and daughter had not argued with him. He understands now that saying that was wrong.
On balance much of what the Applicant says has a ring of believability about it, especially in the context of all the things that might go wrong when things are interpreted, particularly over the phone. It is not necessary to make any affirmative finding about these statements because overall I have accept that the Applicant now understands, even if there was some misunderstanding before, his wrongdoing and that he has a sound well placed respect for women including his wife.
On 24 July 2020, as I have already noted, the Minister was required to cancel the visa because the Applicant failed the character test because he had a substantial criminal record because of his sentence to 12 months imprisonment and because he was then in a custodial institution serving his sentence on a full time basis.
On 30 September 2020, the Applicant’s appeal against his sentence was dealt with by a Judge in the District Court of New South Wales. The appeal was against the sentence the Magistrate imposed on 7 July 2020. The Applicant was represented by counsel.
The Judge identified the offences as serious, aggravated by the fact that they involved violence in the home, a place where people should feel safe, a breach of trust that was owed to the third child by their parent, and that they occurred while children were present. The Judge referred to the Applicant’s previous good character and his plea of guilty the day after he was charged.
The Judge in dealing with the Applicant’s remorse had regard to a letter that the Applicant had provided to the Court, which in turn referred to the sentencing report observations that I discussed earlier. In relation to the sentencing report before the Magistrate, the Judge said ‘I hope his most recent letter is a demonstration that he has reassessed those values and beliefs and is genuine in his current statement to the Court about being remorseful’. The Judge also referred to the fact that the Applicant’s poor English may have impacted what he communicated to the report’s authors and may explain some but not all of the comments attributed to him that might have undermined the genuineness of his remorse.
The Judge identified the Applicant’s positive prospects for rehabilitation, despite the concern about his ‘underlying attitude towards women and his belief at least expressed to some extent in the Sentence Assessment Reports that he was basically entitled to do what he did’. The Judge expressed the hope ‘that his time in custody has brought home to him that those values and attitudes are not shared or condoned by our community of which he is now a part’. The Judge also expressed the view that he was satisfied ‘that his time in custody will have a salient impact upon his motivation to remain crime free’.
The Judge concluded by dismissing the appeal and varying the aggregate term of imprisonment to 15 months, which would conclude on 29 December 2021, to be served in the community by way of an intensive corrections order. In simple terms, that meant that the Applicant would serve his term of imprisonment in the community, and not in a custodial institution, subject to the condition that if he reoffended, he would be returned to a custodial institution to serve the remainder of his sentence.

The Applicant was then detained at Villawood Immigration Detention Centre. This was the consequence of his visa cancellation. His time at Villawood was relatively unremarkable. He engaged in some drug and alcohol counselling whilst at Villawood. The overall content of the records of that counselling demonstrates that the Applicant constructively engaged in the process. Those records also demonstrate that the Applicant obtained some insight into his need to address his alcohol abuse and accepted that his time in prison and in detention was because of what he had done and was not to be blamed on others. He explained in his evidence some of the strategies for dealing with his alcohol problem and associated issues that he had discussed with the counsellor.
In early 2021, the Applicant was moved to Yongah Hill Immigration Detention Centre where he described the counselling as ‘not like Villawood’ but nonetheless he was happy to have someone to speak to and attended ‘a group course about alcohol’ where he had been to four classes that went for about an hour. I accept the Applicant’s evidence that he ‘now understands the implications of what will happen if I drink. I risk getting angry and making problems in my family.’ I accept his evidence that he intends not to drink again.
I will refer below to some other facts that are specific to the issues I am required to address, but for now, the background I have recited hopefully informs the context against which I am required to consider the Applicant’s request that I revoke the cancellation of the visa.
IS THERE ANOTHER REASON TO REVOKE THE VISA CANCELLATION?
There is no question that the Applicant fails the character test as he has a substantial criminal record as referred to in s.501(3A) and s.501(6) of the Act.
The only basis upon which the decision to cancel the Applicant’s visa can be revoked is if he satisfies the Tribunal ‘that there is another reason why the original decision should be revoked.’ I am required to make an evaluative judgment about the existence of some other reason for revocation of the cancellation. The existence of another reason requires identification of a rational basis or justification for undoing the visa cancellation.
DIRECTION NO. 90
Section 499(2A) of the Act requires the Tribunal to comply with Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction). The Direction provides guidance to decision-makers in performing functions and exercising the power under s 501CA of the Act.
The Direction identifies principles which provide a framework to decide whether a decision to revoke a mandatory cancellation should be made, and considerations that the decision-maker must take into account where they are relevant to the decision. The principles inform the considerations to be taken into account. I will refer to the principles where it is necessary but do not set them out here.
The Direction provides that ‘primary considerations should generally be given greater weight than the other considerations.’ The use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is: ‘…whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[1] The Direction contemplates that ‘one or more primary consideration may outweigh other primary considerations.’
[1] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
The ‘primary considerations’ are:
·the protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.
The ‘other considerations’ include:
·international non-refoulement obligations;
·the extent of impediments if a non-citizen is removed from Australia;
·the impact on victims;
·links to the Australian community including the strength, nature and duration of ties to Australia; and impact on Australian business interests.
The class of other considerations is not closed so that other matters may be taken into account as ‘other considerations.’
The Direction is not a direction to exercise the discretion so as to come to any particular decision in a given case, but rather as it says, it provides a framework of matters that must be considered where they are relevant. The obligation ‘to consider’ carries recognition of the fact that there must be ‘a real consideration of the circumstances of the people affected’ and by ‘confronting what is being done to people.’[2] The obligation to consider requires the decision maker to think about and engage with the matters to which the Direction refers, and importantly, to do so keeping in mind what the real consequences of any such decision might be. As Allsop CJ put it ‘[g]enuine consideration of the human consequences demands honest confrontation of what is being done to people.’[3]
[2] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
[3] supra
It is necessary to consider each consideration informed by the principles. It is convenient to record, consider and deal with each of the primary and other considerations.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires that I keep in mind that the Australian Government is committed to protecting the Australian community from criminal activity or other serious offences conduct by non-citizens. In that regard, I am required to have regard to the fact that remaining in Australia is a privilege that confers the expectation that non-citizens will obey and respect Australian law and institutions and will not harm the community.
There are two aspects to this consideration: the nature and seriousness of the non-citizen’s conduct to date and the risk to the community should the non-citizen reoffend.
Nature and seriousness of offending
The Applicant’s criminal offending is to be viewed as very serious for many reasons. First, it involved violence against a woman and a child which in the circumstances constituted family violence. The offences were committed in the victims’ home. Second, the offences were committed in the presence of children. Third, the sentence imposed, albeit ultimately a sentence that was to be served in the community, was 15 months imprisonment which is a significant sentence so far as criminal sentencing goes. The sentence serves if nothing else to underscore community attitudes and expectations to offences of the kind. Fourth, the fact that the same kind of offending was repeated within six months and involved the defiance of a protective court order (an apprehended violence order) makes the offending even more serious than it might otherwise be. Fifth, the second set of offending occurred in circumstances where the Applicant had been ‘read the riot act’ and told he was ‘within a whisker of going to gaol’ when sentenced the first time. Sixth, having been given a chance by way of a community corrections order, the Applicant offended again. The nature and seriousness of the offending is objectively to be regarded as very serious.
Risk to the community
Next, I am required to consider the risk to the community should there be further offending. There is no doubt that the Applicant’s offending involves harm to members of the community, albeit that it is limited to members of his family. The consequences of the offences so far as injuries were concerned were not significant, but it is possible they may be worse if the offending is repeated. The violence involved does not on its face appear to have been high level violence such that it would cause significant or lasting injuries. That is not to minimise it but rather to identify that its consequences were not likely to involve serious injury. Nonetheless, that the victims involved in the offending were not injured may well have been more good fortune than anything else.
It is the second aspect of this factor that is more determinative of the issue associated with the risk of harm to the community, most notably, that I do not consider the prospects of the Applicant reoffending to be great at all.
A convenient starting point are the observations of the Judge about the Applicant’s good prospects of rehabilitation and not reoffending, with which I agree. The Judge’s reasons are as persuasive now as they were in September 2020, especially because they take into account many of the factors that are still relevant: the Applicant’s prior good character, his immediate pleas of guilty, his remorse, albeit tainted as it may have been by some of his comments to the sentence assessor, his history as a ‘warm loving father and partner’ when not under the influence of alcohol, the fact that he has accommodation available to him with his family, the likelihood of his future employment and, of course, his experience in custody over the period that he was imprisoned. It is, I think, telling the Judge did not express any concern at all about the Applicant posing a risk to the community’s safety, which is the paramount consideration in making an intensive corrections order so that he would serve his sentence in the community rather than in an institution.
Since he was sentenced, the factors relevant to the Applicant’s low likelihood of reoffending have been strengthened by his positive engagement in alcohol counselling whilst in detention (which was something the Judge suggested he do when released) and his continued expressions of remorse and acceptance of responsibility which are evident from what he said to counsellors whilst in detention and in his evidence before me. I consider that his expressions of regret and remorse to be genuine particularly because they are accompanied by an understanding of the suffering he has caused his family.
There is also in evidence the report of Mr Watson-Munro, a clinical psychologist who was asked to express an opinion about the Applicant’s likelihood of reoffending. I am satisfied that Mr Watson-Munro is qualified to express opinions about the likelihood of criminal reoffending because of his expertise. Mr Watson-Munro was not challenged about any aspect of his evidence which was given by way of a written report. Mr Watson-Munro identified what he termed ‘protective features’ which he considered reduced the risk of re-offending which went ‘beyond the insights he has developed’ and included the fact that the Applicant had ceased drinking and ‘enjoys the love and support of his family.’ He referred to the Applicant’s remorse, desire for treatment, solid work history and his prior good character.
Mr Watson-Munro expressed the opinion that the Applicant should undertake some particular therapy, but his ultimate opinion was that the Applicant’s likelihood of reoffending, taking all factors into account, was low. Mr Watson-Munro referred to the fact that the Applicant had not been in a position to consume alcohol for something like a year and although that was a positive sign, it is unlikely to be the end of the road so far as remaining alcohol free. This was because generally speaking, whilst the longer a person with an alcohol problem remains abstinent the better the prospects of completely abstaining, there was something like a two-year period that was regarded as a threshold to permanent abstinence. He considered that the Applicant’s abstinence whilst incarcerated and in detention as a positive factor but that the Applicant was not out of the woods.
To the matters identified by Mr Watson-Munro, I would add the fact that he has been in detention for nearly a year and has faced the stark reality of being on the precipice of returning to Sri Lanka as well as the experience of separation from his family which he says ‘has been very painful’ and who he misses ‘so much’. Those things are likely to be a lasting reminder to the Applicant about the consequences that will beset him should he re-offend.
I am satisfied that the likelihood of the Applicant reoffending is very low and that there is no significant risk that the Applicant will reoffend and therefore there is no significant risk to the community, should he be permitted to remain in Australia. This consideration weighs only slightly against non-revocation of the mandatory cancellation of the visa, largely because the likelihood of reoffending is so low.
FAMILY VIOLENCE
This consideration directs attention to the Australian Government’s concerns about permitting non-citizens who engage in family violence to remain in Australia, although those concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
All of the Applicant’s criminal offending has involved family violence. There was some suggestion that there was one other incident involving family violence which relied upon evidence about an argument with one of the children. I do not think that argument involved any violence at all. It appears to have been no more than an argument which happened on an occasion when the Applicant was intoxicated. The evidence does not permit me to find that there was any actual violence as a result of that argument.
I have dealt with the frequency of the offences earlier, having happened on two separate occasions in a period of about six months. Their cumulative effect was to subject his wife and child to physical pain but, significantly, it only occurred on two occasions while he had been living with them for over three years as a family, and had lived with his wife before that for some years in Sri Lanka. His wife’s evidence was that these were the only occasions when he had engaged in physical violence towards her. I accept her evidence because she appeared to be a very frank and honest person who gave her evidence in a forthright way. The extent of the violence, as I have said, appears not to have been high level given the lack of any injuries.
I have also already dealt with some of the aspects of the Applicant’s rehabilitation. In particular, whilst I accept that initially he may have not accepted full responsibility for his offending, he does now. He clearly understands the impact of his behaviour, identifying in his evidence the hurt he has caused those involved and, in particular, that his children would have been frightened and affected by what he did. It is also very clear, having regard to what I have said earlier about the cause of the Applicant’s offending being intimately connected with his alcohol abuse, that he has taken real steps to deal with his problem. I accept, again, that although his abstinence from alcohol is untested in the community, his positive engagement in counselling whilst in detention suggests that he has made significant efforts, especially given the limits placed on him given where he finds himself, to deal with his alcoholism.
I must also consider that the Applicant was formally warned before his second set of offences. I have recorded the observation of the Magistrate when he was granted a community corrections order and do not need to repeat those things again. This aspect of this weighs against him (like it does so far as the seriousness of his criminal offending is concerned) but not significantly so, given the observations I have made about his rehabilitation steps, his understanding now about his wrong doing and the efforts he has made to address the underlying cause of his behaviour.
I regard this aspect of the matters that I must consider as something that weighs slightly against non-revocation.
BEST INTERESTS OF MINOR CHILDREN
I am required to determine whether non-revocation is or is not in the best interests of children under the age of 18 years. I am required to consider them separately to the extent that their interests might be different.
There are two minor children: the third child who is 15 years of age and the fourth child who is 11 years of age. Their relationship with their father is parental. There is an existing relationship. Although he was physically present in the third child’s life for about a year when she was 3 or so years of age, he did not see her in person for about seven years after he left Sri Lanka in 2009. He had not met the fourth child until the child arrived in Australia in 2016 when he was about seven years of age. Nonetheless, he did maintain something of a relationship, as unsatisfactory as it might have been, with them by talking to them on Skype during his time in Indonesia and Malaysia.
Since his children arrived in Australia in 2016, he has had on all accounts, despite his problems with drinking, a caring and loving relationship with them. He detailed in his statement that before he went to gaol his usual day consisted of rising at 5.00am to go to work for a 7.00am start and returning home to play with the children at the park, to have dinner as a family and spending time with his wife and children watching television and playing cards after his children did their homework. They went to the temple on Fridays as a family. At times when he was not going to work, he would take the children to school. On all accounts he had close involvement with the lives of his children.
The extent that the Applicant would be a positive influence on the children’s lives is, like with the other matters I have referred to, much dependent upon his capacity to deal with his drinking problem. There cannot be much doubt that when he is not affected by alcohol that his love for his children, the time he spends with them and his work ethic are very likely to be positive influences for them. Again, I consider that the very likely scenario is that he will do so effectively and lastingly.
There is no evidence that his past conduct has had any lasting or ongoing adverse impact on either child, but common sense suggests it cannot have been good for them at the time. The third child was involved in both sets of offences and, although suffering pain, emerged relatively unscathed. As I have been at pains to point out, I think it is unlikely that anything similar will happen again. The third child said in her evidence that her father apologised to her the day after the first incident and ‘apologises to me most times we talk on the phone, saying he is really sorry for what he did’. That kind of conduct not only speaks of remorse, but also suggest that the Applicant will be a good influence on his children in the future. Both children have expressed a desire to remain with their father in Australia.
There was some evidence that both children have been affected adversely by their father’s incarceration and detention with both having been referred to counselling. Again, common sense would tend to suggest that in the context of a close parental relationship, children of their age would be suffering as a result of the absence of their father. He has spoken to them every day while in detention.
The evidence was that if the visa is not restored the Applicant, his wife and his two minor children are all likely to return to Sri Lanka. It is not clear about what the first and second child might do although there is some prospect of the second child returning to Sri Lanka too if the visa cancellation stands. The first child being estranged from her father makes it unlikely she will go back to Sri Lanka. The two minor children are likely to be separated from their oldest sibling if the visa remains cancelled.
The prospect of a return to Sri Lanka in itself raises a consideration about the best interests of the children given the upheaval that was caused to their lives when their father left in 2009, accepting of course that the fourth child was yet to be born, when they left Sri Lanka in 2016 to be reunited with him in Australia and more than a year ago when he was separated from them as a result of his incarceration and detention. If they follow their father back to Sri Lanka their lives will be significantly disrupted yet again.

Aside from all the usual things that go with all of that, there will be the question that arises about the plight of their father if he is returned to Sri Lanka to which I will say some more later and the impact of that upon them. None of that will, in the view I take, be good for them at all because it carries with it the real prospect that their father will be taken from them once more and put in detention once again even if only for a year. They have been through enough and to further subject them to separation from their father, possibly their older brother and most likely their older sister cannot be in their best interests. And even if the worst does not happen there will be all the difficulties that I have identified later generally associated with their father and them building their lives once again in Sri Lanka.
This consideration weighs firmly in favour of revocation, given the likely impact upon the children of having to leave Australia and return to Sri Lanka and their close relationship with their father.
EXPECTATIONS OF THE AUTRALIAN COMMUNITY
This consideration imputes to the Australian community the expectations that those who have permission to remain in Australia will obey Australian laws and that ‘[w]here 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 enter or remain in Australia.’
Further, this consideration means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.’ Specifically, the expectation is that the Australian Government should cancel a visa if character concerns are raised through conduct in Australia or elsewhere involving acts of family violence, commission of serious crimes against women or children, or commission of crimes against government representatives.
In addressing this consideration, my task is to determine whether more or less weight is to be given to the deemed community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[4] The weight to be accorded to the consideration is for me to evaluate.
[4] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
Thus the risk of reoffending, like the seriousness of the offences, does not at all displace the expectations that are normatively expressed, but it may be a factor that is relevant to weight. In cases such as this one, where the non-citizen has made efforts towards rehabilitation, has accepted responsibility for his offending, has expressed remorse for his offending and is unlikely to reoffend - those matters are properly viewed as countervailing considerations that mitigate the weight that should be accorded to this consideration. In my assessment the community is more tolerant, where the risk of reoffending is not high and where the risk is not an unacceptable one.
For these reasons I consider less weight should be accorded to this consideration. There are also other factors that weigh against giving this consideration too much weight. In particular, the best interests of the minor children to which I have already referred to and the Applicant’s plight if he is returned to Sri Lanka to which I will turn to in a moment. The community would also be more tolerant because of those things.
This consideration weighs against non-revocation but I will moderate its weight significantly because of the strong countervailing considerations that are present.
AUSTRALIA INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
I am required to consider Australia’s international non-refoulement obligations, which is a duty not to forcibly return, deport or expel a person to a place where the person will be at risk of harm. The obligation is found in Article 33 of the United Nations Convention Relating to the Status of Refugees as modified by the Protocol (Convention):
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
There are two aspects to consider. The first is Australia’s reputation in the international community and the damage to that reputation that may result from a departure from the obligation in the Convention. The second is the likely harm that would be caused to the Applicant in the event that the Convention is not adhered to.
I am required to give weight to this consideration by, like with the others, engaging with the circumstances confronting the Applicant and what is really being done to him.
I am required to consider two important things when weighing this consideration: first, whether the non-refoulement obligation is invoked; and second, what the practical and legal consequences of any finding I might make about it will be.
Is the non-refoulement obligation invoked?
The Applicant said in his evidence that he fears ‘being killed, imprisoned or disappeared’ if returned to Sri Lanka. He believes on his return he will ‘definitely be arrested and interrogated’. He fears he will be ‘targeted’ and ‘persecuted’ because he is a Sri Lankan who is being returned from abroad. He believes ex-LTTE members living in foreign countries are of more concern to the Sri Lankan authorities than those living in Sri Lanka. He says that this would be because the Sri Lankan government ‘would know that I was in the LTTE’ and ‘would know that I was on the Merak boat’. He says that the Merak boat and its circumstances, which included a protest, is well known in Sri Lanka.
The Applicant claims a well-founded fear of persecution in Sri Lanka on grounds of his race or ethnicity as a Tamil whereby a political opinion that he is a supporter of the LTTE has been imputed to him, and because of his membership of a particular social group of ‘persons suspected of having links to the LTTE’. This is the basis upon which he was given refugee status by the UNHRC in August 2011.
The Applicant says that his refugee status which he was assessed to have in August 2011 has not ceased, because the circumstances for which he was recognised to have the status have not ceased to exist within the meaning of Article 1C of the Convention. This is foremostly because persecution of ‘persons suspected of having links with the LTTE may be at risk on the ground of membership of a particular social group’ continue to prevail in Sri Lanka today.
The evidence strongly suggests that despite the end of the civil war more than a decade ago the circumstances that led to the Applicant being considered a refugee persist today: those circumstances concern the continued persecution of Tamil people who are suspected of having or having had LTTE links.
The Department of Foreign Affairs and Trade published on 4 November 2019 a report titled ‘Country Information Report Sri Lanka’ (DFAT Information). The DFAT Information was prepared for ‘protection status determination purposes only’, but there is no reason to believe that it is anything but accurate because it was prepared for some different or other purpose. Given the sources from whom information is collected are identified within the DFAT Information, and where they are not identified there is reference to their likely credibility, the DFAT Information is likely to be both credible and reliable.
The DFAT Information contains some significant information about prevailing circumstances in Sri Lanka. All of the information so far as it concerns former LTTE members like the Applicant demonstrates fairly clearly that the circumstances that led to him obtaining refugee status remain today. It is convenient to simply recite in turn the most relevant parts of the DFAT Information.
First, in dealing with the current position of the LTTE the DFAT Information records that:
While the LTTE was comprehensively defeated, Sri Lankan authorities remain sensitive to its potential re-emergence. According to expert testimony provided to a 2013 hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported in June 2017 that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored. (The underlining is added)
The continued interest of the Sri Lankan authorities in former LTTE members is significant, because those were the circumstances that led to the Applicant leaving Sri Lanka in the first place and ultimately seeking refugee status. Although there is nothing to suggest that that the Applicant would specifically be on any ‘stop’ or ‘watch’ list, the fact remains that the environment to which he would be returned is one in which there remains ‘sensitivity’ to the re-emergence of the LTTE and ‘sophisticated intelligence on former LTTE members’ which evidences a continued interest in former LTTE members. Further, the existence of that intelligence gives rise to a reasonable likelihood that the Applicant would more probably than not come to the attention of the authorities on his return.
Second, the DFAT Information refers to the existence of ‘rehabilitation centres’, which are centres to which former LTTE members were and are sent for at least a year, and perhaps two years depending upon the ‘level of radicalization’ of the person. In those rehabilitation centres former LTTE members are detained against their will, so it would seem, because they are former LTTE members. The DFAT Information records:
Since the end of the war, the Sri Lankan Government has managed a large-scale rehabilitation process for former LTTE members. The government established 24 rehabilitation centres in the Northern, Eastern and Western provinces for former LTTE members who surrendered in the final stages of the war. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage arrested LTTE members: (1) those to be investigated and prosecuted under normal court of law; (2) those to be rehabilitated; and (3) those to be released upon confirmation by intelligence agencies of their peripheral involvement in the war. Sources told DFAT that those targeted for rehabilitation included not just former combatants, but also those who performed non-combat functions for the LTTE as part of its civilian administration in Tamil-populated areas. (The underlining is added)
The Applicant is a former combatant and so was someone who would have been liable to be ‘rehabilitated’ which involves his arbitrary detention against his will. Again, it is the circumstance that he is a Tamil to whom the political opinion that he is a supporter of the LTTE has been imputed and his suspected links to the LTTE put him within the ground of membership of a particular social group. In passing, it is also important to keep in mind that this process of ‘rehabilitation’ has been, according to DFAT ‘large scale’, and had continued ‘since the end of the war’ which was, at the time of preparation of the DFAT Information, more than 10 years before. But it should not be thought, as the DFAT Information makes clear here and later, that the process of rehabilitation involving mandatory detention was or is over. The continuation of that circumstance itself demonstrates that so far as former LTTE members are concerned not much has changed in Sri Lanka since the end of the war.
Third, according to the DFAT Information the number of ‘non-rehabilitated’ former LTTE members in Sri Lanka is low. They, former LTTE members, are said to be ‘reluctant to identify for fear of rehabilitation or prosecution’. The distinction between ‘rehabilitation’ on the one hand and ‘persecution’ on the other, at least on its face suggests there is more than the persecution that is presented by rehabilitation to be feared even though the source or cause of such persecution is not identified. The ‘reluctance’ and ‘fear’ given what is said in the DFAT Information appears to have some objective basis.
Further, even though ‘one source claimed the authorities were not actively looking for non-rehabilitated former LTTE members’ and that ‘[a]t the time of publication, DFAT was not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia’ DFAT nonetheless assessed ‘that a non-rehabilitated returnee with links to the LTTE, particularly high-level links, could be subjected to a rehabilitation process should they return to Sri Lanka’. I consider that assessment a powerful indication that upon the Applicant’s return to Sri Lanka there is a likelihood, a real chance, that he will be subjected to rehabilitation. In some respects, it is not necessary to go further, but for completeness and because it is compelling confirmation of what I have concluded I will.
Fourth, specifically dealing with those in the position of the Applicant, namely low-profile former LTTE combatants, the DFAT Information said:
…that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities, particularly if suspected of having a combat function during the war, would likely be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted. (The underlining is added)
The Applicant is a former LTTE member who had a combat function. He would likely be detained and may be sent to a rehabilitation camp. The difference between being detained and being sent to a rehabilitation centre is a little unclear but it lays most probably in the fact that the initial detention would be to sort out his status and if sent to a rehabilitation camp his detention would be for the year or so that is involved in being in such a centre. I have referred to below to what the DFAT Information says about mistreatment, torture, being possible whilst being detained.
The issue is whether or not he would come to the attention of the authorities. Given the Sri Lankan authorities’ sensitivity to the re-emergence of the LTTE and their ongoing interest in former LTTE members to which I have already referred, the fact that the Applicant would be returning from Australia, a place where former LTTE were known to have sought refuge, and given the Applicant’s time of departure and his Tamil ethnicity, I consider that there is a real likelihood that the Applicant would upon his return to Sri Lanka come to the attention of the Sri Lankan authorities as a former LTTE member. I very much doubt that his involvement on the Merak boat given that that all happened long ago would be likely to be a factor that would bring him to attention.
The reference to the ‘remaining rehabilitation centre’ in the passage I have referred to is important. The DFAT Information records that although there had been at one stage as many as 24 rehabilitation centres, at the time the information was published there remained one such centre, the Poonthottam Rehabilitation Centre, which housed only one former LTTE member. That, naturally enough, follows from the fact that most former LTTE members have been rehabilitated given that the war ended in 2009 and that the usual period of rehabilitation is one, perhaps two years. The DFAT Information reported that the Poonthottam Rehabilitation Centre was to remain open for the ‘foreseeable future and be used on a needs basis, including to rehabilitate drug addicts and non-rehabilitated former LTTE members that come to the attention of the authorities.’ It was envisaged that there might be a need, at some time in the foreseeable future, to house non-rehabilitated former LTTE members. That is, referral to the one remaining rehabilitation centre remains very much on the cards for former LTTE low level combatants of which the Applicant was one.
Finally, the DFAT Information referred to the July 2018 report of the UN Working Group on Arbitrary Detention which assessed there were ‘systemic problems with deprivation of liberty’ in connection with the Poonthottam Rehabilitation Centre and described the detention of former LTTE members for the purposes of rehabilitation therein as ‘arbitrary’. The UN Working Group, aside from identifying that there was no legal basis for the deprivation of liberty at the one remaining rehabilitation centre, also referred to ongoing harassment and surveillance of individuals and their families who had been subject to detention. Arbitrary detention involves deprivation of liberty and constitutes persecution for the purpose of the Convention. Arbitrary detention for a period of one year, and possibly two, is a significant form of persecution and a significant infraction upon a basic human right.
The fact of arbitrary detention involving removing someone’s liberty for a year, and in some cases two years, is sufficient to dispel any suggestion that it does not constitute serious harm or persecution for the purpose of the Convention. It is beside the point that whilst having their liberty taken away a detainee is trained in life skills, might visit their families, or receive them as visitors and that conditions in detention are ‘considerably more humane than in prison’. The fact that liberty is removed over a long period is sufficient for rehabilitation to constitute persecution. The DFAT Information also identified that those who were detained faced a ‘moderate risk of mistreatment’ which ‘where it occurs may amount to torture’. On any account there is a real chance that the Applicant will suffer serious harm on return to Sri Lanka.
The most recent information available provides a firm basis for the conclusion that the circumstances in 2011 that gave rise to the Applicant’s refugee status are substantially the same today such that he continues to be a person who faces a real prospect of persecution involving deprivation of his liberty by being placed in detention for up to a year upon his return to Sri Lanka and potentially torture. The end of the civil war, despite some attempts by Sri Lankan governments since then to change things, has not changed the basis for the Applicant’s fear of persecution.
I am satisfied that that the Applicant has a well-founded fear of persecution in Sri Lanka based on his imputed political opinion as a supporter of the LTTE and the membership of the social group identified as people who are suspected of having links to the LTTE.
The consequences of the non-refoulement obligation
The Direction says that the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of the visa because the decision not to revoke the mandatory cancellation will ‘not necessarily result in the removal of the non-citizen to the country in respect to which the non-refoulement obligation exists’.
This is because consideration may be given to removing a non-citizen to somewhere other than their country of origin, or the Minister might consider personally intervening and grant a visa under s.195A of the Act, or consideration might be given to making a residence determination allowing the non-citizen to reside in the community subject to conditions and, of course, because there is the prospect of an application for a protection visa. Although these are given as examples of means by which a non-citizen to whom non-refoulement obligations is owed might not be refouled there do not appear to be any other means by which that consequence would be avoided. None were suggested in argument.

I accept that each of those avenues are legally available and that consideration of them might take place in the Applicant’s circumstances. I also accept that the Applicant will be able to apply for a protection visa. The question remains though what is the practical or real likelihood that will result from any consideration of those legally available possibilities in the circumstances having regard to the fact that I must consider.
The Minister’s position in this application is the cancellation of the visa should not be revoked principally because, so it would seem, the Applicant poses an unacceptable risk to the Australian community. It is the position taken by the Minister that makes the likelihood of favourable consideration of any of the options referred to that all involve the Applicant remaining in Australia unlikely. In MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [55] Wigney J said:
Having regard to those provisions of the Act and Regulations, had the Tribunal given consideration to whether there was a realistic possibility that the appellant would be granted a protection visa, it would no doubt have been noted that it would be rather incongruous, if not somewhat bizarre, to think that there was a realistic possibility that the Minister would, on the one hand, vigorously oppose the revocation of the cancellation of the appellants visa on character grounds, as he did before the Tribunal, and yet on the other, decide not to exercise the discretion to refuse to grant the appellant another visa, either under s 501 or in the context of PIC 4001.
Kenny and Mortimer JJ expressed the position slightly differently although with similar effect in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124] where their Honours said:
However, as Rares J’s reasons in FRH18 made clear, it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community, and in situations such as AQM18 and FRH18, where it has been determined to be against the “national interest”.
I should, because of the Direction, act on the possibility that the Applicant will not necessarily be removed because the Minister might consider and grant to the Applicant another visa, but I would only do so by considering the prospects of that happening as very unlikely as I have said because of the Minister’s position in this application.
Further, the possibility that the Applicant might apply for and be granted a protection visa, needs to account for the fact that that application would be based upon satisfaction of the criteria in s.36 of the Act and not upon the wider discretionary or evaluative considerations raised by s.501CA(4)(b)(ii). In particular, that application need not deal with the Australia’s departure from the Convention obligations or the consequences of non-compliance with those obligations. Again, and in any event, the prospect of the Applicant being granted a protection visa is unlikely having regard to the Minister’s opposition to this application because of the character concerns he has about the Applicant.
The other possibilities raised in the Direction are resettlement to another country other than Sri Lanka or the making of a residence determination with conditions that allow the Applicant to remain in Australia on condition. There was nothing that would suggest that either prospect was being considered or, more relevantly, is like to be what will happen, in the circumstances of the Applicant. I have no evidence or information about the likelihood that those things are likely be considered and far less are likely to eventuate. I do not know what would inform that happening or how it might be implemented and what any conditions might be. In circumstances where the consequences are so grave, both for the Applicant and for Australia’s international reputation I should not speculate about them. In the absence of evidence or information about them I do not regard them as realistic possibilities.
It follows, that there are really or practically only two alternative consequences of non-revocation of the mandatory cancellation of the Applicant’s visa. The first is that the Applicant will be refouled contrary to the obligation in the Convention with the likelihood of serious harm to him in Sri Lanka and damage to Australia’s international reputation.
The second is that if the Applicant is not refouled he will be indefinitely detained in Australia because he will lack any lawful permission to be in Australia. The latter consequence is the likely result because of the recent amendment to s.197C of the Act which precludes the removal of a non-citizen where a ‘protection finding’ has been made. This is the probable result of any application the Applicant will make for a protection visa which as I have observed is unlikely to be granted to him because of the Minister’s character concerns.
I should take the prospect of indefinite detention into account because ‘liberty is one of the most basic human rights and fundamental freedoms known to the common law’ to borrow the words of Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [123] and the Applicant would be deprived of it which, of course, is one of the likely consequences of returning the Applicant to Sri Lanka as well.
The two possible consequences of non-revocation of the mandatory cancellation of the visa are both weighty considerations that weigh in favour of revocation.
Finally, it is also important to observe that the Direction specifically contemplates that:
A decision maker, making a decision under section 501/501CA, is not required in every case to make a positive finding whether the claimed harm will occur, but in an appropriate case may assume in the non-citizens favour that claimed harm will occur and make a decision on that basis.
I consider this is an appropriate case where I should weigh this factor in favour of the Applicant especially because I am satisfied the claimed harm is likely to occur, but also because of the very moderate weight I have given to the need to protect the community, questions of family violence and the expectation of the community for the reasons I have already expressed.
I consider that this consideration weighs firmly in favour of revocation of the cancellation of the visa.
EXTENT OF IMPEDIMENTS IF REMOVED
I am required to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard for themselves in their home country. The basic living standard referred to in the Direction is by reference to that which is available to other citizens of that country. I am required to consider age, health, language and cultural barriers, and social, medical and economic support that may be available.
It is not necessary to repeat what I have already said about what life may look like for the Applicant upon his return to Sri Lanka, which I consider will pose significant impediments to him in establishing himself and maintaining his lifestyle there. I will consider here only those matters that are additional to those things. The Applicant is a relatively young man. He knows Sri Lanka because he lived there for about the first 30 years of his life. He speaks Tamil and would understand the culture and social features of life there. His health was, before his incarceration and subsequent detention, afflicted by alcohol abuse but I have found not much prospect that this will afflict him in future. There was some evidence that he may have suffered from post-traumatic stress disorder which may have some effect on him upon return but generally on psychological assessment he was found to be in good condition. He has his mother and sisters and brother in Sri Lanka who are likely to assist his and his family’s re-settlement.
The DFAT Information provides some evidence as to the particular challenges that the Applicant would confront upon his return as a returned refugee. It recorded that refugees returning to Sri Lanka have some difficulty securing employment and reliable housing. It referred to, so far as returned former LTTE members, the prospect of ongoing monitoring. It referred to the prospect of ‘social stigma’ on return as result of benefiting from integration assistance (which itself was subject to strict conditions) and the prospect of ‘mistrust’ of returnees emanating from ongoing surveillance.
I consider that this consideration weighs in favour of revocation of the mandatory cancellation of the visa. If I were to have regard to the matters thatI have referred to so far as non-refoulement obligations are considered, I would give this consideration significantly greater weight, but as I have considered these matters already I will, of course, not count them twice. This consideration weighs moderately in favour of revoking the mandatory cancellation of the visa.
STRENGTH NATURE AND DURATION OF TIES
The Direction requires that attention be paid to links to the Australian community which are broken into two categories, first the strength, nature and duration of ties in Australia, and second, the impact on Australian business interests. The latter consideration has no relevance here.
So far as the strength, nature and duration of the Applicant’s ties to the community are concerned I must consider how long the Applicant has lived in Australia but giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.
The Applicant has been in Australia for about seven years. He has been employed for all of that whilst he was in the community, that is for nearly six of those years. His family members, his wife and children are all permanent residents of Australia and as such are entitled to remain here. The fact that his wife and two of his children are likely to return does not mean they will not be impacted, the impact on them will be that they too leave Australia where they have over the last five years established their lives. That is an impact I should consider.
His ties to them, with the exception of his first child, appear to be close. He has two adult children who will be impacted by any decision that involves his return to Sri Lanka. Although he is presently estranged from the first child, there is the prospect that sometime in the future he will be able to restore that relationship. One imagines that will be difficult, perhaps impossible, if they live in different parts of the world.
The Applicant has some other friends, including his work friend who provided evidence about her relationship with the Applicant and his wife, who he has known for about three years or so. She is close to the Applicant and his family. She will be adversely affected by any decision should the Applicant be removed.
The Applicant has not been in Australia for a long time and his offending started after he had been here for something like five years. The ties he has to the community are limited so far as the evidence is concerned, but they are strong given that they are to his immediate family and the description he and they give to their relationship.
I consider that this consideration weighs slightly in favour of revocation of the mandatory cancellation of the visa in particular, having regard to the strong family ties that the Applicant has and the fact that he has contributed to the community by engaging in paid employment for the whole time before he was incarcerated and detained.
IMPACT ON VICTIMS
This consideration requires attention being given to the ‘impact of a decision not to revoke on members of the Australia community, including victims of non-citizen’s criminal behaviour, and the family members of the victim or victims where the information is available and the non-citizen being considered for revocation has been afforded procedural fairness.’
The Applicant’s wife will be impacted by the decision that is made here. In this case, I do not need to consider the question of her and her children being left behind in Australia if the Applicant is returned to Sri Lanka, because she has firmly indicated that if the decision to cancel the visa is not revoked she and her minor children will return to Sri Lanka with her husband and their father. The issue is, rather, how I should weigh the impact on her of having to return to Sri Lanka as result of the decision to cancel her husband’s visa.
The starting point is to acknowledge that this issue is a complex one. This is because the Applicant’s wife was herself the victim of the Applicant’s criminal offending, yet it is she herself who will be adversely affected by a decision not to revoke the mandatory cancellation because she has indicated that she will return to Sri Lanka with the Applicant. She is likely to be impacted a second time because her husband will be returned to Sri Lanka, and she will follow him. She will be made to suffer again.
The kind of issue involved here is like that which arose in a slightly different context in Viane v Minister for Immigration and Border Protection.[5] In that case Rangiah J observed that the ‘complexities of relationships involving domestic violence are not well understood’. The position is a difficult one because it involves a complex discernment of the victim’s motivations for their expressed desire to remain related to the perpetrator of violence against them. The very issue, the partner becoming a victim for a second time, was part of the complexity that arose in that case also arises here.
[5] [2018] FCAFC 116
The Applicant’s wife grew up in the midst of war-torn Sri Lanka, seeing one of her sisters killed and her brother injured during a shell attack on the family home. Two of her cousins were also killed. As an adult she witnessed an LTTE friend of her husband murdered. After she married, she lived with her husband in a tent. When he left for Malaysia the first time she lived with her mother. Her life was hard, bringing up her children including two of them as babies for various periods with only the support of her family and without the Applicant.
Upon her arrival in Australia, she and her children were reunited with the Applicant after many years of separation. They all learned English although perhaps the children better than she and her husband, and she made friends especially it seems amongst the Tamil parents of other children at school. She has her whole life here and, but for the Applicant being sent back to Sri Lanka, she would remain here.
The Applicant’s wife says that her life has been difficult whilst her husband has been in prison and in detention. She looks after the children herself although she has help from her close friend who I referred to earlier. She has been to counselling and has suffered suicidal ideation. She feels the loss associated with her estranged eldest daughter. She found work a little over a month ago in a chicken factory, although has since ceased working there.
The Applicant’s wife fairly shares the concerns the Applicant has for his safety in Sri Lanka. And naturally enough there will be the other impediments to which I have referred to earlier and the need for her to relocate her whole life, once again, like she did only about five years ago because she found it too difficult to look after the children and work at the same time.
I did not gain any impression that the Applicant’s wife was not genuine about her desire to remain with her husband: the fact that she would follow him back to Sri Lanka given the fact that she followed him here in 2016 gives me confidence that she is genuine. Although the impact on her is not as significant as it might be if the consequence was breaking up an entire family, it is clear that leaving Australia where she and her children and her husband have set up their lives together at last will have a significant impact upon her. Also, it should not be forgotten that the prospect of her reuniting with her estranged daughter is likely to be lost should she return to Sri Lanka.
The human consequence to the Applicant’s wife of non-revocation of the mandatory cancellation is reasonably significant. I should treat this consideration as weighing firmly in favour of revocation.
ANOTHER ‘OTHER CONSIDERATION’?
The Direction recognises that the categories of ‘other considerations’ are not closed. A curiosity in this case is that had the Applicant been sentenced by the Judge in the first place, rather than following an appeal, he would not have been serving a full time sentence in a custodial institution so that his visa would not have been required to be cancelled under s.501(3A) because one of the two conditions giving rise to mandatory cancellation would not have existed. The Applicant says another reason why the mandatory cancellation should be revoked is because the visa would not have been cancelled in the first place had he received the sentence he received on appeal when he was first sentenced.
Section 501(3A) provides so far as is relevant for present purposes:
(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:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)     …; 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 underlining is added)
There is no doubt that the Applicant failed the character test to which reference is made in s 501(3A)(a) which is the first condition for mandatory cancellation. There is also no doubt that, as matter of fact, at the time the Applicant’s visa was cancelled he was serving a period of full-time imprisonment in a custodial institution as referred to in s 501(3A)(b).
When the Applicant was re-sentenced, I add some months later, he was sentenced to a period of 15 months imprisonment which was to be served under an intensive corrections order so that the period of imprisonment was conditionally to be served in the community and not in a custodial institution. If that had been the sentence in the first place his visa would not have been mandatorily cancelled under s.501(3A).
The decision to revoke a mandatory cancellation of a visa can be brought about on one of two grounds: the fact that an applicant passes the character test or, the one which is under consideration here, that there is ‘another reason’ that the cancellation of the visa should be revoked. If upon appeal the Judge had changed the Applicant’s sentence so that it was less than 12 months imprisonment, he would have been able to contend that he did not, at the time his representations to the Minister were considered or at the time his review was being dealt with in the Tribunal, fail the character test under s.501(6)(a), and his application would have been successful on that front.
Does the subsequent absence of the other condition, being in full time imprisonment at the time of mandatory cancellation, have the same effect by relying upon it as ‘another reason’ for revocation? Superficially there does not seem to be a material difference between subsequently not serving, at least in some fictional way, a period in a custodial institution, and subsequently not passing the character test under s.501(6), but in substance there is a real, even significant, difference.

The first thing to observe is that both conditions are in a sense ‘jurisdictional facts’ that must exist at the time of mandatory cancellation; without either of them present at that time the Minister is not required to cancel visa. The second thing is at the time of revocation of mandatory cancellation, one of two conditions must be satisfied for revocation: passing the character test or the existence of ‘another reason’.
It is the state of things at the two different relevant times that is important. In other words, the mere circumstance that some antecedent fact no longer exists, or even should not have existed, does not of itself, or on its own, provide a reason, or in other words, rationally justify revocation. The fact that a person fails the character test at some past time is not removed by the fact that at some future time they do pass it, any more than the fact of being in a custodial institution can be undone at some later time.
So, on the example given above where the sentence is, after cancellation of the visa but before an application to revoke is determined, reduced to something under 12 months imprisonment, it matters not that an applicant failed the character test at the time of mandatory cancellation it is only whether the applicant passes the test at the time of revocation. Likewise, it matters not that at the time of considering revocation the applicant is or is not in a custodial institution or was in a custodial institution at some other earlier time. The question is at the time of considering revocation is whether there is at that time another reason to revoke the mandatory cancellation.
The same result is achieved by referring to the purpose of s.501(3A)(b). The purpose of cancelling a visa whilst a person is full time in a custodial institution is that, because of their serious criminal offending which has been informed in part by their sentence and in part by their having been placed in custody, they are not to be released into the community as that would potentially endanger the community. Mandatory cancellation avoids release of a serious criminal offender into the community by ensuring that the person is detained once released from a custodial institution. That is the product of their not holding a visa whilst their visa status is reviewed if they make an application.
When an application is made it does not follow that simply because an applicant should not have been serving a sentence full time in a custodial institution that that fact, of itself, serves as a justification or a rational basis for revoking the cancellation of the visa. In other words, the fact that the person satisfied both conditions that gave rise to mandatory cancellation in the first place, that is they failed the character test because of their offending, and they were in a custodial institution, is what gives rise to the need to consider the circumstance of their holding a visa in the future.
So here, the Magistrate at the time he sentenced the Applicant thought it necessary to sentence him to a period of imprisonment in a custodial institution. The Judge found that there was no concern for the safety of the community and instead made an intensive corrections order that did not require institutionalization. The Minister, or his delegate, and on review the Tribunal, are required to determine for themselves whether there is ‘another reason’ for revoking the mandatory cancellation and whether at that time the protection of the community, and other things, mean that the Applicant should or should not have his visa back. The Judge’s view about the protection of the community is acutely relevant to that, but the anodyne lonely fact that he would not have put the Applicant in a custodial institution at all had he sentenced him in the first place is beside the point and does not on its own justify revocation of the mandatory cancellation of a visa
I am not satisfied that this is a reason that I should consider in deciding whether there is another reason revoke the mandatory cancellation of the visa.
CONCLUSION
I have found that the protection of the Australian community and consideration of family violence weighs slightly in favour of non-revocation of the cancellation of the visa having regard especially to the Applicant’s low risk of reoffending, his rehabilitation efforts and prospects, as well as his understanding of his wrongdoing and the efforts he has made to redress his alcohol problem. I have also found that the expectation of the Australian community favours non-revocation of the cancellation albeit the weight to be accorded to those expectations are very much moderated by the countervailing considerations that I have identified. I have found that the best interests of the Applicant’s children firmly weigh in favour of revocation. The primary considerations are, having regard to the weight I have given them, fairly described as finely balanced.
So far as the other considerations are concerned, I have found Australia’s non-refoulement obligations weigh firmly in favour of revocation, that the impediments to the Applicant if he returned to Sri Lanka weigh in favour of revocation and that the strength, nature and duration of his ties to Australia weigh moderately in favour of revocation as does the impact upon the Applicant’s wife as a victim of the Applicant’s offending.
It follows from my findings and the weight I have ascribed to the primary considerations and the other considerations, that I am satisfied there is another reason why the mandatory cancellation of the visa should be revoked. This is because whilst the primary considerations are, when weighed together, fairly neutral in their outcome, the other considerations when considered with them strongly weighs things in favour of revocation.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa.

I certify that the preceding 163 (one hundred and sixty three) paragraphs are a true copy of the reasons for the decision herein of Member Reitano.

.........................[sgd]...............................................
Associate
Dated: 17 June 2021

Date(s) of hearing: 2 June 2021

Solicitors for the Applicant: Kate Bones (Legal Aid NSW)

Counsel for the Respondent: Tim Reilly

Solicitors for the Respondent: Jennifer Strugnell (Minter Ellison)

[2021] AATA 1792

17 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Appeal

Date(s) of hearing:	2 June 2021
Solicitors for the Applicant:	Kate Bones (Legal Aid NSW)
Counsel for the Respondent:	Tim Reilly
Solicitors for the Respondent:	Jennifer Strugnell (Minter Ellison)