1. The Applicant was born in Sri Lanka on 4 March 1983.[6] He is 42 years old. He is a citizen of Sri Lanka.
2. On 20 December 1984, Ms DG was born in Sri Lanka.[7]
3. In about 2008, the Applicant moved to Dubai. He was living there when he applied for the Visa.
4. In about December 2010, the Applicant met Ms DG through a "marriage broker".[8]
5. On 17 November 2011, the Applicant married Ms DG in Sri Lanka.[9]
6. The Applicant and his wife came to Australia on 30 August 2012.[10]He has now been here for just over 13 years.
7. In July 2013, the Applicant's daughter, Child A, was born.[11]
8. A police incident summary dated 22 October 2014 states:

"THE RESP AND AFM ARE A DEFACTO COUPLE WHO HAVE ONE DAUGHTER TOGETHER. ON 22ND OCTOBER 2014 AT APPROXMATELY 9: 0OPM THE RESP AND AFM BEGAN ARGUING OVER THE HOME PHONE BILL. THE RESP STATED THAT THERE WERE NUMEROUS PHONE CALLS MADE BY THE AFM WHILST THE RESP WAS AWAY IN MELBOURNE AND HAS BECOME JEALOUS . A HEATED ARGUMENT CONTINUED SURROUNDING THIS RESULTING IN THE AFM BECOMING UPSET, LEAVING THE HOUSE AND ATTENDING HER NEXT DOOR NEIGHBOURS ADDRESS. THE AFM HAS ASKED THE NEIGHBOUR TO CONTACT POLICE. UPON POLICE ARRIVAL THE AFM HAS DISCUSSED THE ARGUMENT WITH POLICE AND STATED THERE HAS BEEN NUMEROUS RELATIONSHIP ISSUES OVER THE PAST TWO YEARS. THE AFM STATED THAT APPROXIMATELY 2 WEEKS AGO THEY HAD HAD ANOTHER ARGUMENT WHERE THE RESP HAD STRUCK HER ONCE WITH AN OPEN HAND TO THE FACE. NIL INJURIES OF THIS WERE OBSERVED. THE AFM DECLINED TO MAKE ANY STATEMENT AND STATED SHE DID NOT WANT TO LEAVE THE RESP AND WANTED TO CONTINUE THEIR RELATIONSHIP WITH HIM. THE RESP ADMITTED TO THE VERBAL ARGUMENT THIS EVENING BUT DENIED ALLEGATIONS OF ASSAULT. THE RESP WAS ARRESTED UNDER FVPA AND TRANSPORTED TO MILDORA POLICE FOR Fl\MILY VIOLENCE SAFETY NOTICE. A WRITTEN INTERVIEW WAS CONDUCTED OF THE RESP REGARDING UNLAWFUL ASSAULT ALLEGATIONS AND FURTHER FOLLOW UP BY FAMILY VIOLENCE UNIT TO BE CONDUCTED WITH AFM TOMORROW. POLICE BELIEVE THE PROTECTION OF AN FVSN IS REQUIRED FOR THE PROTECTION OF THE AFM TO ALLEVIATE ANY FURTHER ARGUMENTS FROM ESCALATING. A CLAUSE 1 & 2 ONLY ORDER IS SOUGHT DUE THE AFM AND RESP INTENTIONS TO CONTINUE THEIR RELATIONSHIP..."[12]

1. I note that this first family violence report occurred a little over 2 years after the Applicant arrived in Australia. There were many more to follow, as set out below.
2. The Applicant told the Tribunal that he could not recall this incident.
3. A police incident summary dated 4 September 2015 states:

"THE AFM AND RESP HAVE BEEN MARRIED FOR ABOUT 3 YEARS. THEY HAVE A 2 YEAR OLD DAUGHTER (PRESENT DURING INCIDENT) AND THE AFM IS PREGNANT. AN ARGUMENT OCCURED ON 04/09/15 WHICH CENTRED AROUND DIFFERING VIEWS ON FINANCES AND WHETHER THE COUPLE SHOULD STAY IN MILDURA AND BUY A HOUSE. THE AFM RECEIVES CENTRELINK PAYMENTS AND THE RESP WORKS. THE AFM IS UPSET THAT THE RESP WANTS HER TO ALSO WORK, WHEN SHE CAN'T DUE TO CHILDCARE. THE AFM REPORTS THAT SHE DID NOT LIKE THE RESP RAISING HIS VOICE WITH THEIR CHILD PRESENT. THE RESP WAS NOT VERBALLY ABUSIVE, NOR WERE THERE THREATS OR VIOLENCE. THE AFM HAS REQUESTED THAT POLICE ASK THE RESP NOT TO ARGUE LOUDLY. THE RESP AGREES THAT THEY ARGUED & STATES THAT HE THINKS THE AFM MAY BE SUFFERING SOME POST NATAL DEPRESSION AND IS TRYING TO GET HER TO A DR. WHILST THE AFM HAS NO LOCAL FAMILY, SHE HAS SUPPORT FROM SMECC AND HAS MADE FRIENDS IN THEIR MOTHERS GROUP. FROM WHAT BOTH PARTIES ARE TELLING US, THE BASIC IVO IN PLACE HAS NOT BEEN BREACHED BY THIS ARGUMENT. NIL CONCERNS FOR THE WELFARE OF EITHER PARTY. NOTED SGT FVTU. THESE PARTIES HAVE HAD 3 INCIDENTS IN AS MANY DAYS WITHT HE AFM AND RESP CHANGING AT EACH INCIDENT. TO BE DISCUSSED AT TARGET MEETING 7/9/15 RE RECIDIVIST TARGETTING."[13]

1. The Applicant told the Tribunal that he could not recall this incident. He did recall having arguments about building a house in Mildura. He did not recall an IVO being in place at this time.
2. On 6 September 2015, the Applicant assaulted his wife, who was 5 months pregnant at the time. A police brief states:

"2. On Sunday the 6/9/2015 the accused was driving in an in an Easterly direction along Ninth Street, Mildura while arguing over on going financial and family issues with the victim. The accused's 2 year old child was also present in the vehicle.

3. The accused was in the drivers seat and the victim was in the rear left hand side passenger seat, the victim was distraught and was trying to get out of the vehicle while it was moving. The accused stopped the vehicle on Ninth Street between Pearl Avenue and Douglass Avenue, he has turned around to where the victim was sitting in the rear left passenger seat and punched the victim to the face with a closed fist.

4. The assault caused redness, swelling and bruising to the underneath of the victim's left eye and to the bridge of the victims nose. (refer Charges 1-2, photograph 1)

5. The assault was witnessed by [redacted], [redacted] and [redacted who all supplied statements in relation to the incident.

6. There was a full and current final Family Violence Intervention order in place between the parties with the following conditions:

• Not to commit family violence against the protected person; and

• Not to intentionally damage property of the protected person.

7. The accused was arrested for Assault and Breach of Intervention Order and conveyed to the Mildura Police Station For interview.

8. The victim refused to have any medical treatment in relation to her injuries, also refusing to make a statement in relation to the matter."[14]

1. I note that notwithstanding the victim's refusal to make a statement, there was objective, independent evidence of this event.
2. The Applicant was asked about this incident. He said that he remembered this incident. He has been arguing with his wife. He thought that he should leave the house. He went to the police to seek assistance. His wife followed him there in a taxi. The police told him that they could not assist him. His wife got into the back of his car as he was leaving. They went home. She was arguing with him about having been to the police. She was concerned that he had said bad things about her, to them. A struggle broke out over access to his phone. She grabbed his hair and neck and he tried to push her away. Somebody then called the police He denied punching her. He was aware that there was an IVO in place. He could not recall whether she had an injury.
3. A police incident summary dated 10 September 2015 states:

"THE RESP (GAMAGE) AND AFM ARE HUSBAND AND WIFE WHO MOVED TO AUS FROM SRI LANKA APPROX 2 YRS AGO. POLICE HAVE S/T BOTH PARTIES RE THIS INCIDENT. THERE IS A CURRENT INTERIM IVO IN PLACE WITH CLAUSE 1 AND 2. THE RESP IS ON BAIL RE A PREVIOUS ASSAULT ON THE AFM . HIS BAIL IS NOT TO ATTEND WITHIN 50 METRES [REDACTED] A CONDITION OF ON THIS OCCASION POLICE ATT THE ABOVE ADDRESS FOR A FOLLOW UP VISIT WITH THE AFM TO SEE IF SHE WAS ENGAGING WITH THE SERVICES PROVIDED, AND IF FURTHER ASSISTANCE WAS NEEDED . A NEIGHBOUR STATED SHE SAW THE RESP ENTER THE HOUSE APPROX 15 MINS BEFRE POLICE ARRIVAL. WHEN POLICE S/T THE AFM SHE INITIALLY STATED THE RESP WAS NOT PRESENT, BUT ALLOWED POLICE TO ENTER TO LOOK FOR THE RESP. THE RESP WAS LOCATED IN THE TOILET OF THE UNIT AND ARRESTED FOR BREACHING HIS BAIL. THE AFM WAS UPSET .AND CRYING WHEN THE RESP WAS REMOVED FROM THE ADDRESS , AND WAS OF THE UNDERSTANDING THAT HE WAS ALLOWED TO RETURN BECAUSE SHE WANTED HIM BACK. POLICE EXPLAINED TO BOTH PARTIES THAT THE RESP BAIL WAS STILL ACTIVE, AND HE WAS NOT ALLOWED AT THE ADDRESS UNTIL BAIL WAS ALTERED. NIL THREATS/ ASSAULTS/ BREACHES OR VERBAL ARGOHENTS ON THIS OCCASION. THE ACCUSED WAS I SSUED WITH AN INFRINGEMENT NOTICE AND ALTERNAATE ACCOM PROVIDED."[15]

1. There is no doubt that the Applicant breached his bail conditions on this occasion.
2. On 4 January 2016, the Applicant's son, Child B, was born.[16]
3. On 29 March 2016, the Applicant appeared in the Mildura Magistrates' Court charged with unlawful assault and contravening a family violence intervention order. No conviction was entered but he was fined $750 plus costs.[17]
4. On 30 October 2017, the Applicant's father died in Sri Lanka.[18]
5. On 31 October 2017, the Applicant departed Australia. He returned on 27 November 2017.[19]
6. On 18 December 2017, police records state that the Applicant hit his wife twice in the face causing swelling and bleeding.[20] He was charged with this offence on 17 February 2019.[21]
7. He appears to have made concessions to police at the time. He accepted that he pushed her and she had "lumps on her face".[22]
8. The Applicant told the Tribunal that he could not recall this incident.
9. On 9 January 2018, police records state that the Applicant hit his wife on the lip causing swelling and pain.[23] The Applicant told police that he did not remember this but conceded that he may have smashed the phone.[24]
10. The Applicant told the Tribunal that he could not recall this incident.
11. On 10 June 2018, police records state that the Applicant hit his wife twice in the face causing swelling and bleeding.[25] The Applicant told police that he did not remember this.[26]
12. The Applicant told the Tribunal that he could not recall this incident. He said that he did not think it happened.
13. On 7 October 2018, police records state:

"On the 7th of October 2018 at approximately 10:30AM the accused and victim were arguing when the victim became scared and entered the bathroom, closing the door behind her to get away from him. The accused kicked the door causing a hole to be put in it. The victim then opened the door to stop the accused hitting it, and the accused then hit the victim multiple times in the nose and left eye. This caused the victims nose to bleed and impaired her vision in a way that caused her to only see the colour white for a few minutes. The victim had to see a doctor on this occasion due to the pain and severity of the injuries she sustained."[27]

"When asked about the damage caused to the door on 7th of October 2018 the accused said "I kicked the door." When asked about the assault the accused said "I think when I tried to open the door she was there. I shake the door and yeah.""[28]

1. The Applicant told the Tribunal that he could not recall this incident.
2. On 4 January 2019, a police incident summary states that the Applicant punched his wife "in the chest with a closed fist which required her to go to hospital".[29]
3. Police records state:

"On the 4th of January 2019 at approximately 11:50AM the victim was in bed. The accused has entered the bedroom, grabbed the victim by her hair and dragged her out of bed onto the floor. The accused kicked the victim multiple times all over her body. The accused then punched the victim 3 times into her chest causing her breathing to be affected. The victim believed the accused was going to kill her. The victim had to attend the hospital in relation to the injuries she sustained as she was having difficulty breathing for the days after the incident. At the time of these allegations the accused was believed to be living in his car in an unknown location. A "Person Whereabouts" and "Vehicle Whereabouts" were issued for the accused and his car. The accused attended the Mildura Police Station on Saturday the 16th of February 2019 and was arrested at 10:55PM under section 459 of the Crimes Act. The accused was interviewed in relation to the matter. The accused was released from custody on the 17th of February 2019 and bailed to appear at the Mildura Magistrates Court on the 20th of February 2019."[30]

1. The Applicant told police that he did not remember this incident.[31]
2. The Applicant told the Tribunal that he could not recall this incident. The Applicant conceded that he was upset at the time. He said that he was being unfairly accused of having a relationship with another woman. He was under financial pressure supporting his family both in Australia and in Sri Lanka.
3. On 13 February 2019, the Applicant's wife attended the police and made a series of complaints against the Applicant, going back as far as 18 December 2017. She provided photographic evidence.[32]
4. On 13 February 2019, a police incident summary states:

"THE RESP THARANGA EHALAPE-GAMAGE AND AFM [REDACTED] HAVE BEEN MARRIED FOR 7 YEARS AND RESIDE TOGETHER AT [REDACTED] WITH THEIR TWO CHILDREN [REDACTED] AND [REDACTED] ON WEDNESDAY THE 13TH OF FEBRUARY 2019 AT APPROX. 12:30AM THE AFM AND RESP WERE HAVING A VERBAL ARGOMENT AT THEIR HOME ADDRESS. THE ARGUMENT ESCALATED AND THE RESP HIT THE AFM ON THE FACE WITH AN OPEN PALM. THE AFM ATTEMPTED TO LEAVE THE HOUSE AND THE RESP PUNCHED MULTIPLE LARGE HOLES IN THE WALL AS SHE LEFT. THIS LEFT SIGNIFICANT DAMAGE TO THE WALL. THE AFM FLED TO A NEARBY NEIGHBOURS HOOSE AND HER NEIGHBOURS CALLED FOR POLICE TO ATTEND. THE AFM BAD NIL VISIBLE INJURIES FROM THE ASSAULT HOWEVER IS VERY FEARFUL OF THE RESP. POLICE BELIEVE A FAMILY VIOLENCE SAFETY NOTICE IS REQUIRED TO ENSURE THE SAFETY OF THE AFM AND THE CHILDREN AND TO PRESERVE ANY PROPERTY OF THE AFM."[33]

"I can't remember, I was so angry... I throw the mobile yes."[34]

1. The Applicant told the Tribunal that he got home at around midnight and his wife was asking why he was late, stating "Are you going to that lady?". He said was really stressed and tired. He said "she accused me of lying. I got angry and I threw away her phone. She got really angry. She tried to get the phone. It was broken. I got angry. We had a fight. I hit her in the face. I hit the wall. I said I was going to divorce her. She then left and went to the neighbours." He said that he would be more communicative in the future.
2. On 15 February 2019, the Applicant's wife gave a detailed statement to police.[35] At around this time, the Applicant and his wife separated.[36] Child B was 3 years old at the time. This was the last time that Child B was living with the Applicant in a family setting.
3. The Applicant's wife's statements were supported by statements from witnesses, attending police and a photographic log.[37]
4. On 18 February 2019 an Interim Intervention Order was made. This stated:

1. Commit family violence against the protected person(s).

Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.

2. Intentionally damage any property of the protected person(s) or threaten to do so.

3. Attempt to locate, follow the protected person(s) or keep them under surveillance.

4. Publish on the internet, by email or other electronic communication any material about the protected person(s).

5. Contact or communicate with a protected person by any means.

6. Approach or remain within 5 metres of a protected person.

7. Go to or remain within 50 metres of [redacted address] or any other place where a protected person lives, works or attends school/ childcare.

8. Get another person to do anything the respondent must not do under this order.

(a) do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or

(b) negotiate child arrangements by letter, email or text message; or

(c) communicate with a protected person through a lawyer or mediator; or

(d) arrange and/ or participate in counselling or mediation; or

(e) go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property.

BUT ONLY IF the respondent does not commit family violence while doing so."[38]

1. He recalled this order. He said that they made arrangements for access to his son.
2. On 7 April 2019, the Applicant was driving a motor vehicle near Robinvale, Victoria. His vehicle strayed on to the wrong side of the road. A collision occurred with an oncoming vehicle.[39] Child A was killed. The Applicant's mother, who was 70 at the time, and visiting from Sri Lanka, was also killed. The driver of the other vehicle involved, was seriously injured. The Applicant was also seriously injured.[40] He has required ongoing treatment for his various injuries.
3. There is no suggestion that he was speeding or under the influence of drugs or alcohol. Records of conversations with the Applicant, kept by a psychologist, do not suggest that the cause of the accident was an identifiable lapse of attention on the Applicant's part.[41]
4. A 2-year IVO was granted on 23 April 2019.[42]
5. On 15 June 2019, Ms Donna Robertson, Psychologist, prepared a report.[43] She thought that the Applicant had PTSD.
6. A report from the Sunraysia Community Health Services dated 15 July 2019, confirms the Applicant's attendance at "Men's Behaviour Change Programs" group sessions.[44]
7. On 16 July 2019, the Applicant appeared in the Mildura Magistrates' Court charged with unlawful assault (4 charges), intentionally cause injury (2 charges) and wilfully damaging property (3 charges). He was convicted and the matter was adjourned.[45] These are the Applicant's only convictions for family violence. This offending, although very serious, was not such as to trigger a mandatory cancellation of the Visa. No other steps appear to have been subsequently taken to cancel the Visa on these character grounds.
8. An Intervention Order was made. This stated:

1. Commit family violence against the protected person(s).

Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.

2. Intentionally damage any property of the protected person(s) or threaten to do so.

3. Attempt to locate, follow the protected person(s) or keep them under surveillance.

4. Publish on the internet, by email or other electronic communication any material about the protected person(s).

5. Approach or remain within 5 metres of a protected person except when in company of a third party agreed to by the Protected Person.

6. Go to or remain within 50 metres of [redacted address] or any other place where a protected person lives, works or attends school/childcare except when in company of a third party agreed to by the Protected Person.

7. Get another person to do anything the respondent must not do under this order.

(a) do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or

(b) negotiate child arrangements by letter, email or text message; or

(c) communicate with a protected person through a lawyer or mediator; or

(d) arrange and/ or participate in counselling or mediation; or

(e) go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property.

BUT ONLY IF the respondent does not commit family violence while doing so."[46]

1. He told the Tribunal that he remembered this.
2. On 8 August 2019, there was a mediation with the Applicant's wife.[47] This concerned access arrangements.
3. On 12 September 2019, the mediation notes were amended.[48]
4. On 17 September 2019, Ms DG became an Australian citizen.[49]
5. At around the same time, the Applicant said that they began to resume contact with the assistance of a mediator.
6. In May 2020, the Applicant was charged with serious driving offences.[50]
7. On 16 July 2020, consent orders were made by the Family Court. This included detailed orders regarding shared parental responsibility and a parenting plan for Child B.[51]
8. In October 2020, the Applicant and Ms DG divorced, on his application.
9. On 9 December 2021, a jury found the Applicant guilty of 2 charges of dangerous driving causing death and 1 charge of dangerous driving causing serious injury (the principal offence) .[52]
10. A police incident summary dated 15 December 2021 states:

"CURRENT ORDERS; NIL CURRENT ORDERS, PREVIOUS ORDER BETWEEN PARTIES HOWEVER EXPIRED JULY 2021.

AFM AND RESP SEPARATED IN FEB 2019 . PARTIES HAVE 2 CHILDREN TOGETHER 1 X SON (6 YRS) AND A DAUGHTER WHO IS DECEASED FOLLOWING A CAR ACCIDENT WHERE THE RESP WAS THE DRIVER. PRIOR TO SEPARATION IN FEB 2019, POLICE APPLIED FOR FVIVO ON 13/02/2019 TO PROTECT AFM AND CHILDREN FOLLOWING INCIDENTS WHERE THE RESP PHYSICALLY ASSAULTED THE AFH HOWEVER IVO HAS SINCE EXPIRED l\ND THERE ARE NO CURRENT ORDERS IN PIACE BETWEEN PARTIES.

FOLLOWING VEHILCE ACCIDENT IN APRIL 2019, AFM HAS REMAINED SUPPORTIVE OF RESP THROUGHOUT CRIMINAL PROCEDURES FOR DANGEROUS DRIVING. AFM HAS MADE EFFORT TO REMAIN IN CONTACT WITH RESP FOLLOWING EXPIRY OF IVO'S FOR THE BENEFIT OF THE 6YR OLD SON'S WELFARE. ON 9/12/21, RESP WAS FOUND GUILTY OF ALL CHARGES RELATING TO DANGEROUS DRIVING WHERE AFM DAUGHTER AND THE RESP MOTHER WAS KILLED AS A RESULT OF THE RESP DRIVING. THE FOLLOWING SUNDAY, 12/12/21, THE RESP CONTACTED THE AFM VIA MOBILE PHONE CALL WHERE HE BEGAN YELLING AT THE AFM AND BLAMING THE AFM FOR THEIR DAUGHTER'S DEATH. THE RESP TOLD THE AFM THAT IT WAS HER FAULT FOR REPORTING THE PREVIOUS FAMILY VIOLENCE THAT CAUSED HIM TO CRASH THE CAR AND BLAMED THE AFM OF PLANNING THE ACCIDENT. THE RESP THEN TOLD THE AFM HE HOPES THAT THE AFM GETS INTO A CAR ACCIDENT WHICH HAS CAUSED THE AFM SIGNIFICANT DISTRESS. AFM STATED SHE IS IN SIGNIFICANT FEAR FOR SAFETY AS SHE BELIEVES THE RESP MAY PHYSICALLY HARM HER OR THEIR REMAINING SON. POLICE HOLD CONCERNS FOR AFM SAFETY AS RESP APPEARS TO HOLD NO ACCOUNTABILITY FOR HIS OWN ACTIONS AND IS AGGRESSIVE TOWARDS THE AFM AND AFM IS IN SIGNIFICANT FEAR. RESP IS ALSO IRRATIONAL AND AGGRESSIVE AND HAS HISTORY OF VIOLENCE TOWARDS AFM. AFM IS SUPPORTIVE OF IVO WITH FULL CONDITIONS."[53]

1. The Applicant said that he remembered this argument. He remembered saying to his wife that "God will punish you ", because she was blaming him for the accident. He was asking her how she would feel if it was her. He could not explain why he was blaming his wife. He accepted that this would make her angry. An Interim Intervention Order followed this. He blocked her on his phone.
2. Ms DG told the Tribunal that she remembered this and she said that they blamed each other. If a problem arose now, things would be different because they now communicate. "He is a changed person".
3. On 15 March 2022, the Applicant was assessed by the Mental Health Advice and Response Service (MHARS) as suffering from PTSD, depression and anxiety.[54]
4. On 29 April 2022, the Applicant was sentenced to 3 years imprisonment with a non-parole period of 18 months.[55] The sentencing remarks state:

1. On 9 December 2021 a jury found you guilty of two charges of dangerous driving death and one charge of dangerous driving causing serious injury.
2. These offences occurred on 7 April 2019 when you were driving home to Mildura, from Swan Hill. You, your wife, your mother, and your two children had attended a festival in Swan Hill the day before. You had stayed the night in Swan Hill, and the material before me indicated that you were sufficiently rested.
3. You left Swan Hill in the early afternoon with the plan to get the children back to their mother by 6 pm. You mother was sitting in the front seat, your three-year-old son was sitting in a booster seat behind you, and your five-year-old daughter, [Child A], was also in a booster seat, sitting behind your mother.
4. Approximately 30-40 minutes into the drive, your son began to vomit, so you pulled over, cleaned him up, and changed his clothes. When you got back into the car you made sure the seatbelts on each child were properly closed and in place. Each child also had a strap across the forehead to hold their head up if they fell asleep.
5. Your recollection of the drive effectively ceases from that point.
6. As you were approaching Robinvale another car was travelling behind you driven by [Mr M]. He thought you were driving at a reasonable pace, so he drove behind you at a distance of around 50 metres, travelling just below the posted speed limit of 100 kph. He said that as far as he observed you were driving normally.
7. Approaching Robinvale on the Murray Valley Highway there are a series of crests. Due to these crests, visibility ahead can be blocked by the rises and dips in the road. As you drove down the incline of one of these crests your vehicle moved wholly onto the wrong side of the road. It is unclear why this happened. [Mr M]'s evidence was that he did not see your car move onto the wrong side of the road, although you were driving closer to the centre line than he was. In view of the distance that he was behind your vehicle, and the similar rate of travel, the period of time during which your car was out of his view was only a few seconds.
8. [Ms W] was driving in the opposite direction to you. She was driving at the speed limit. She was very familiar with that portion of the highway. As she drove over one of the crests she saw your car in her lane, very close to hers. She reacted by starting to steer to her right and then the impact between your vehicles happened. Both cars reacted to the impact with [Ms W]'s car coming to rest across the middle of the road close to the impact site and yours close by, partially off the left of the road.
9. One of the issues in the trial was why your vehicle was on the wrong side of the road. The prosecution case was that for unknown reasons your car was on the wrong side of the road, and that whilst [Ms W]'s car was slightly over the centre line at the point of impact, this was because she was trying to avoid your car. The physical evidence placed your vehicle wholly in the wrong lane at least 14.8 metres before the point of impact, and with the left front of your car impacting the right front of [Ms W]'s car just into what ought to have been your lane of travel.

1. The impact caused fatal injuries to your daughter and to your mother. Your son was conveyed to hospital but did not suffer serious physical injury.
2. [Ms W] was transported to Mildura Hospital and then to the Alfred Hospital in Melbourne. She suffered spinal injuries and damage to her ribs, with consequential injury to her lungs, requiring them to be re-inflated. She also had broken bones in her hand and heel. She was in intensive care for a week and then spent another 10 days in the trauma unit before being moved onto rehabilitation, where she spent 6 weeks. At the time of the trial she had continuous pain, due to the orthopaedic repair hardware in her spine. Being able to walk again without support took many months, and she continues to take part in exercise classes and physiotherapy to aid her recovery.
3. You were also injured in the collision. You required surgical reconstruction of your right knee and ankle, part of your bowel had to be removed and even at the time of your plea hearing you still had in place a colostomy bag. The hospital records state there was a blow to your head, but no loss of consciousness.
4. The jury were entitled to accept and act upon [Ms W]'s evidence, and to reject the scenarios raised by [Dr R], and your counsel. Their verdicts indicates that they rejected as a reasonable possibility that you had moved onto the wrong side of the road to avoid [Ms W]'s car.

1. The evidence shows that in the space of the 2 or so seconds between [Mr M] losing sight of your car, and the collision, your car moved wholly into the wrong lane of the two-lane highway. [Ms W] saw your car did not have time to move her car out of her lane to avoid you. The tyre marks left by your car show that the driver's side wheels of your car were on the outer line of the right-hand side of the road, from the perspective of your direction of travel. They then curved to the left, showing some steering input towards the centre line with the impact shortly after.
2. There is no evidence that you were fatigued. You did not have any alcohol or drugs in your system. [Mr M] thought you were driving normally for the period he was following you, and you were not exceeding the speed limit.
3. There is no known explanation for why you were on the wrong side of the road. I can make no finding as to whether you were distracted by something, or merely inattentive. Whatever the reason, for the period of time it took your vehicle to move wholly onto the wrong side of the road, until just before the collision with [Ms W]'s car, you were driving in a dangerous manner.
4. You were driving on a two-lane road, near the speed limit of 100 kph, with three passengers. There is always a need to take care when driving, and the speed at which you were travelling on a highway meant that the risk of harm to others was all the greater if there was some fault in your driving. Taking into account the circumstances of the driving, I consider that your culpability in failing to stay on the correct side of the road was above the lowest level of culpability for this offence. At the same time, the absence of aggravating factors means that your culpability was not in the mid or high range.
5. The consequences of the collision were significant and tragic. Your mother, [Ms KG], and your daughter [Child A] lost their lives unexpectedly. Each has had cut short the opportunity to live, to enjoy the varied emotions and experiences of life, to learn, and to enrich their own lives and the lives of others.
6. You and your wife have lost your daughter, who was just starting her life. [Child A] was a bright, joyous girl, beloved by her family.
7. [Ms W] has suffered serious injuries to multiple parts of her body which have required significant treatment. Even with her recovery proceeding well she still suffers constant pain and discomfort.
8. [Ms W] provided a victim impact statement. The physical injuries she has have a significant impact on her life. She is not able to care for her grandchildren as planned, is less social, and is upset that her scars frighten her grandson. She is fearful and wary when driving, with her anxiety escalating when she has passengers in her vehicle. She has struggled psychologically from the trauma, from the impact of the physical injuries on her quality of life, and with being a survivor when others died.
9. Your son, who is now 6 years old, is sad that his sister died, and feels very sad when he thinks about her. He also misses his grandma. He remembers the event and that he could hear you screaming for someone to help your daughter. He could not breath. He drew a picture of himself and his sister as happy and colourful when together, and one of himself as sad and colourless without her.

1. You are now divorced and whilst you are permitted have contact with your son pursuant to Family Court orders, you have not had contact with him for some time due to an intervention order being in place.
2. You have a good work history, and but for the injuries you suffered in the collision you would, I expect, still be working. It is to be hoped that once these legal proceedings have concluded, and your physical recovery has progressed, that you can return to work. Being out of work has had a significant impact on your financial position. You are still suffering from the injuries you received, with ongoing pain, a colostomy bag, and the need for regular physiotherapy.
3. At the time of the collision, and now, you live with friends in Mildura. You made friends in Mildura and the surrounding area, and were involved in the local Sri Lankan community events.

1. I accept that you greatly regret having caused the deaths of your mother and child, and the injuries to [Ms W]. Whilst you ran a trial, this does not detract from the sorrow you feel for the consequences of your driving. In circumstances where you do not recall the collision, and where you received legal advice about your prospects of being found not guilty, I do not treat the running of a trial as detracting from your remorse. [Dr S] said:

'Mr Gamage appears devastated by the death of his daughter and his mother and is tormented daily by this. His regret for the other driver's injuries appears genuine. I note that his distress is exacerbated by difficulties in contact with his son related to marital disputation.'"[56]

1. The Applicant was imprisoned. After this time the Applicant did not see his son, Child B, who was 5, for some time.[57]
2. On 27 May 2022, the Applicant filed a notice of appeal against conviction.[58]
3. On 14 June 2022, an intervention order was made against the Applicant.[59]
4. Between 24 August 2022 and 9 May 2023, the Applicant engaged in 12 telephone trauma counselling sessions with the "Blue Knot Foundation".[60]
5. On 9 March 2023, the Respondent gave the Applicant notice of cancellation of the Visa.[61]
6. On 22 April 2023, the Applicant produced a petition signed by 80 people seeking a revocation of the Visa cancellation.[62]
7. The Applicant provided various other character references in support of his revocation request.[63]
8. On 8 June 2023, the Court of Appeal refused the application for leave to appeal.[64]
9. In about September 2024, Ms DG resumed communication with the Applicant.[65]
10. On 24 September 2024, a report was prepared by a neuropsychologist, Bronwyn Hall. This found no evidence of acquired brain injury.[66]
11. On 24 February 2025, a psychologist, Ms Donna Robertson, produced a report regarding Ms DG. This states:

"Deporting Mr. Gamage would significantly disrupt this reintegration process, introducing additional psychological stressors for [Ms DG] and increasing the risk of emotional instability for [Child B]. The severance of a developing familial structure may exacerbate existing psychological distress, reinforcing patterns of emotional insecurity and maladaptive coping mechanisms in both mother and child. Furthermore, the added burden of single parenthood would likely compromise [Ms DG]'s long-term mental health, impairing her capacity to sustain a stable caregiving environment.

Given the substantial psychological and developmental implications outlined above, it is my professional recommendation that [Ms DG] be afforded the opportunity to continue rebuilding her family unit with the support of Mr. Gamage. The preservation of a structured coparenting arrangement presents a clinically justified and evidence-based pathway toward fostering emotional recovery, psychological stability, and long-term resilience for both [Ms DG] and her son."[67]

1. On 4 March 2025, Ms DG wrote a letter of support for the Applicant. In this, she stated that she was intending to seek an order revoking the intervention order.[68] She attached a letter from Child B.[69]
2. On 10 March 2025, the Applicant wrote to the Respondent in the following terms:

"I am writing to respectfully request that the Department of Home Affairs consider the significant impact my deportation would have on my nine-year old son and my family. I hope to provide context about my personal circumstances and the profound emotional, physical, and mental consequences my deportation would have on my son, [Child B]], and his mother [Ms DG].

Unfortunately, on April 7, 2019, I was involved in a motor vehicle accident near Robinvale, Victoria. This accident resulted in the fatalities of my daughter, [Child A] and my mother, [Ms KG]. I sustained serious injuries and, I currently undergoing treatment for both the physical and psychological trauma that resulted from this accident.

In April 2022, while recovering from injuries and awaiting for my colostomy reversal operation, I received a three-year prison sentence with an eighteen-month non parole period. My release is nearing, with projected date of March 23, 2025. Unfortunately, my visa cancellation has prevented me from receiving parole.

I underwent a complex surgical procedure involving a sigmoid colectomy, the creation of a colostomy and repair of a right patella fracture, a comminute lateral talus fracture and other injuries resulting in pain in my neck, shoulder, lower back, knee, and ankle. My first attempt at colostomy reversal operation in 2023 was unsuccessful, requiring over a month's stay in St. Vincent Hospital. My final colostomy reversal operation was completed in May 2014, after living with a colostomy bad for five years. However, I experienced further complications afterwards, including bleeding after bowel movements, bladder pain and stomach pain. Currently, I am waiting for colonoscopy with colorectal team and urology at St. Vincent Hospital regarding these complications.

My imprisonment caused a significant decline in my mental health. Treatment delays, coupled with the stress of visa cancellation in March 2023, left me feeling overwhelmed, stress and struggling to cope. The grief over the loss of my loved ones was compounded by a severe decline in my mental health during my imprisonment. However regular Buddhist chaplain counselling sessions and mediation sessions helped me to stay stronger for thinking about my son's future.

I am currently undergoing treatment for PTSD, including flashbacks, and nightmares from the accident. I also experience occasional memory loss. However, my treatment has been somewhat delayed in prison. I actively participate in and lead several rehabilitative and educational programs within the prison system, such as counselling sessions, psychological appointments, life skills programs, healthy relationship programs, The smart move program, parenting programs, and cultural events. As an induction billet, I assist with the induction and orientation of new inmates, and I also participate with YMCA weekly sports events.

After enrolled in full time education at Ravenhall Correctional Centre in May 2022, I completed, Certificate2 in Engineering, Certificate 2 in Kitchen Operations, Certificate 3 in baking, Certificate 2 in Hospitality, Certificate 2 in Supply Chain, General English and mathematics courses through Kangan Institute. I began mediation sessions with [Ms DG] through the sunshine Family relationship centre in Melbourne in August 2024. Over four mediation sessions, we discussed and developed new parenting agreements, to ensure that our son [Child B] has the love and support of both parents. We signed the new agreement, and now I speak with [Child B] and [Ms DG] daily. [Child B] is very happy and eagerly awaits my phone calls each day. [Ms DG] and I talk every day now, and we have both gained a clear understanding of what went wrong in our relationship. I have learned many valuable lessons from the programs I completed over last three-years while at Ravenhall Correctional Centre. [Ms DG] and I are working towards reconciliation, believing it is best for our son [Child B].

My time in the correctional centre, showed me the devastating impact of absent fathers and substance abuse amongst other inmates. Many inmates grew up without fathers, turned to alcohol and drugs, and ending up in jail. I am terrified that deportation will have similar negative effect on [Child B], and I desperately want to avoid that for him maintaining a close relationship with him and guiding him on the right path is priority.

Before mediation with [Ms DG] I aimed to get medical treatment, further my education, and work with Tesla in Melbourne, maintaining regular video calls with [Child B], until we could implement other parenting arrangement. However, my priorities have shifted after mediation session with [Ms DG]. Now I want to move to Adelaide and continue my treatment, education, work and dedicate time to my son [Child B] and [Ms DG].

[Ms DG] has struggled to manage everything alone. I realized how difficult it has been for [Ms DG] to juggle a full-time job and [Child B]'s needs. Most of the time, she askes her friend help with [Child B]'s care. This saddens me, and I am eager to assist both [Ms DG] and our son [Child B].

My son has been counting the days until I can return to his life. At the moment, he thinks I am in the hospital, receiving treatment for my injuries, and will be come back home in March 2025. [Ms DG] told me that [Child B] keep telling his friends that his dad will soon be dropping him off to school and picking him up. She also told me that [Child B] often talks about the activities we did together, such as helping him with homework, playing cricket, cycling, camping, gardening, and cooking. He looks at photos of us every night before bed, which shows how much he values our bond.

I am committed to being a responsible and supportive to contribute positively to my son's life in society.

I sincerely request that you review my case with compassion and consider granting me the opportunity to remain in Australia for the sake of my son and family. I am willing to provide any additional documents or information that may assist in this process. Thank you for your time and consideration."[70]

1. On 14 March 2025, the Applicant's wife sought a revocation of the Intervention Order. She stated:

"WE STARTED MEDIATION IN AUGUST 2024 AIMING FOR A POSITIVE OUTCOME. NO WE WORK TOWARDS RECONCILIATION AND IT IS BEST FOR OUR SON. THE RESPONDENT HAS POSITIVE CHANGES AND HE HAD COUNSELLING AND EXPRESSED REMORSE FOR PAST ACTIONS"[71]

1. A psychological report dated 20 March 2025 states:

"Initial sessions revealed signs of distress, which posed some challenges to engagement; however, he responded positively to a single session of EMDR, and appeared less distressed in the sessions that followed. He reported feeling anxious and depressed, supported by observed affect that was mostly anxious, and he was tearful at times. His thought content was centred around his perception of an 'an unjust legal system' and feelings of being unfairly incarcerated. He claimed he never experienced guilt from the accident, but recently he began to contemplate whether he had done something "wrong", given he was now in prison. He continued to deny responsibility and acknowledgement of driving dangerously."[72]

1. The Applicant told the Tribunal that he now accepts that he was driving dangerously, although he has no memory of the accident.
2. On 7 April 2025, an intervention order was made varying the order made on 7 April 2022. This order was made for the protection of Ms DG and Child B.[73]
3. On 10 May 2025, the Applicant's mother-in-law wrote a letter of support.[74]
4. On 7 July 2025, Ms DG wrote to the Respondent requesting that the Applicant be moved to Adelaide to be closer to Child B. In this letter she refers to the Applicant as "my husband".[75]
5. In July 2025, the Applicant was transferred from Melbourne Detention Centre to Adelaide Immigration Detention Centre to be closer to Ms DG and Child B.[76]
6. On 16 September 2025, Ms DG wrote another letter of support. In this letter she said that she was planning to remarry the Applicant on 17 November 2025.[77] This has not yet happened. There have been discussions between them regarding a Binding Financial Agreement, which may have a bearing on this.
7. On 28 September 2025, the Applicant again wrote to the Respondent.[78] In this letter he did not mention any plans to remarry Ms DG.
8. On 30 September 2025, Ms DG again wrote to the Respondent. In this letter she again says that she has decided to remarry the Applicant.[79]
9. The Applicant has completed various rehabilitation programmes.[80] These have not included specific courses for Family Violence.
10. On 4 December 2025, the Applicant's brother prepared a statement in support of the Applicant.[81]
11. On 4 December 2025, the Applicant prepared another statement.[82]
12. On 5 December 2025, Ms. DG prepared another statement in support of the Applicant.[83]
13. If the Applicant were to be released into the community, he plans to live in Adelaide with Ms DG and Child B. He plans to look for work, but in the meantime, to help Ms DG with the house and her son. If he can't get work here, he may try to set up his own business or move back to Victoria with his family. Ms DG confirmed that she was content with these proposed arrangements.
14. Aside from Child B and his former wife, the Applicant has no relatives in Australia. His named relatives all live in Sri Lanka.[84] On 6 January 2026, the Applicant filed a document pursuant to the pre-hearing directions. This document sets out in detail his submissions in relation to Primary Considerations 3 and 4. I refer to this document in its totality without repeating it.[85]
15. The Applicant's criminal history is annexed hereto and marked "B".

1. The Applicant was sentenced by the Melbourne County Court to a term of imprisonment of 3 years imprisonment on 29 April 2022.[86]
2. The Tribunal finds that the Applicant has a "substantial criminal record" and, therefore, he does not pass the character test. This is not disputed by the Applicant.
3. The Tribunal must now consider whether "there is another reason why the original decision should be revoked".

Is there another reason why the original decision should be revoked under section 501CA (4)?

1. In considering whether the original decision should be revoked, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("the Direction") has application.[87]
2. For the purposes of deciding whether to refuse or cancel a non-citizen's visa or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker's application of the considerations identified in Part 2 where relevant to the decision.
3. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

1. Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
2. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

(1) protection of the Australian community from criminal or other serious conduct; > > (2) whether the conduct engaged in constituted family violence; > > (3) the strength, nature and duration of ties to Australia: > > (4) the best interests of minor children in Australia; and > > (5) expectations of the Australian community.

3. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) Legal consequence of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests

4. I note the importance of the Other Considerations being "other" considerations, as opposed to "secondary" considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[88]

"...Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to 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."[89]

1. The Applicant's criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
2. It is discussed in detail above.

Primary Consideration 1 - Protection of The Australian Community

1. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
2. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

a) The nature and seriousness of the non-citizen's conduct to date; and > > b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The Nature and Seriousness of the Applicant's Conduct to Date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Applicant has been involved in repeated acts of family violence as set out above. He has been the subject of intervention orders. He has breached bail conditions. This is very serious.
4. The Applicant has caused the deaths of his mother and Child A, and he has caused serious injuries to another road user (the "principal offending").
5. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

6. The Applicant does not pass the character test.
7. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant's offending.
8. The seriousness of the Applicant's principal offending is discussed in the sentencing remarks set out above. The period of 3 years imprisonment is indicative of the gravity of his offending.
9. On 16 July 2019, the Applicant was convicted of family violence offences as set out above. It is unclear what, if any, penalty was imposed.[90]
10. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
11. The Applicant's principal offending has caused the death of his mother and Child A. It has caused serious injury and ongoing suffering to an innocent road user.
12. The Applicant's family violence conduct has caused significant distress to Ms DG and to Child B. Ms DG has feared for her safety and has often sought the assistance of police. She has required protection by intervention orders.
13. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
14. The Applicant's principal offending is an isolated incident.
15. His family violence offending/conduct commenced soon after his arrival in Australia. It was repeated and serious enough to give rise to intervention orders being made. He breached bail conditions.
16. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant's repeated offending.
17. The cumulative effect of the Applicant's principal offending has been very serious as set out above.
18. The Applicant's family violence conduct and offending was very serious and required several Intervention Orders to be issued.
19. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
20. There is no evidence of this.
21. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status ( noting that the absence of a warning should not be considered to be in the non-citizen's favour).
22. There is no evidence of this.
23. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
24. This is not relevant.
25. I do not consider factors (g), (h) and (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant's offending or circumstances.
26. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; > > b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > > (i) information and evidence on the risk of the non-citizen re-offending; and > > > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and > > > > 1. where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Nature of harm should the Applicant engage in further criminal or other serious conduct

1. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community's tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
2. The harm that may result if the Applicant were to repeat his principal offending would be catastrophic. Even a small discernible risk, above and beyond that attaching to any other member of the community, may be unacceptable.
3. The harm that may occur if the Applicant were to repeat his family violence behaviour would also be very serious.
4. The community has very little tolerance of family violence. This is particularly the case when it has been repeated over a period of time, as in this case.

Likelihood of engaging in further criminal or other serious conduct

1. The task of assessing the risk of repeating the principal offence is complicated because there is no obvious cause. This cuts both ways.
2. The evidence identifies no obvious risk factors, such as a history of dangerous driving, or drug or alcohol abuse. The mystery of the circumstances giving rise to the accident however, remains.
3. The fact that the principal offending has occurred once before, may tend to suggest that the risk of reoccurrence is greater than would be the case for the average road user, but, in the absence of evidence about risk factors, this is really just speculation.
4. Based on the available evidence, I am satisfied that the risk of the Applicant repeating his principal offending is minimal.
5. The risk of the Applicant repeating family violence behaviour is a more difficult matter to assess.
6. His family violence behaviour began soon after his arrival in Australia. It continued in the face of intervention orders and even bail conditions. It only stopped with the Applicant's separation and divorce from his wife. This separation was maintained by intervention orders.
7. The Applicant has done some courses to rehabilitate himself. He has not, however, been tested in the context of an ongoing relationship since he separated from Ms DG in February 2019.
8. Ms DG has, according to even her own evidence, contributed to their history of argumentation. The Applicant and Ms DG say that they plan to resume their relationship. This would put their relationship to the test. They have not co-habited since February 2019.
9. I accept that the Applicant has good intentions and that he is remorseful for his past family violence conduct. The question is whether in the dynamic circumstances of co-habitation, involving as it necessarily does daily stresses and challenges, the Applicant will revert to his past behaviour.
10. I am satisfied that there is a moderate risk of the Applicant committing further acts of family violence, especially as he intends to resume cohabitation with Ms DG.

1. Primary Consideration 1 weighs heavily against revocation of the Applicant's Visa cancellation.

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2) This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;

b) the cumulative effect of repeated acts of family violence;

c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:

1. the extent to which the person accepts responsibility for their family violence related conduct;

2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

3. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non- citizen's migration status, should the non-citizen engage in further acts of family violence.

1. The Applicant's history of family violence is set out above. He has engaged in repeated acts of family violence; he has breached protection orders and bail conditions. He has family violence convictions.[91]
2. His violence has included physical assaults that have required medical intervention and damage to property. He has acted out in front of his infant child.
3. He has undertaken some courses to address his behaviour. He told the Tribunal that he has not had specific family violence counselling.
4. He says that he now knows how to manage conflict and how to communicate.
5. Ms DG says that she has accepted his apology, given in September 2024, and she believes that he has changed.
6. Her opinion is, however, only that. There may be many considerations, including significant emotional, practical and financial ones, consciously or otherwise influencing her view.
7. As previously observed, whether he is now a reformed man is a moot point. The reality of his assurances, remains to be tested.
8. The Applicant now says that he accepts responsibility for his actions.

1. This Primary Consideration 2 weighs against revocation of the cancellation of the Applicant's Visa.

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Applicant has been in Australia since 2012.
2. The Applicant's formative years were spent in Sri Lanka.
3. The Applicant first committed acts of family violence a little over 2 years after he arrived. This conduct continued and became more serious. He breached protection orders and bail conditions.
4. His principal offending is extremely serious.
5. The Applicant has been employed and he has been involved in community groups.
6. The Applicant's son, Child B, would be impacted by an affirmation of the Respondent's decision. This is discussed in more detail in the context of Primary Consideration 4. I refer to that discussion.
7. Ms DG is the Applicant's former wife. She says that she needs his help to bring up their son. She wants to repair their relationship. The evidence given by Ms Robinson supports a finding that it is very much in Ms DG's interests, and that of Child B, for the Applicant to remain here.
8. The Applicant has no other immediate family in Australia.
9. The Applicant has other social ties in Australia. Many representations have been made on his behalf as set out above.[92]
10. In this context, I also refer to Exhibit 2.
11. The Applicant separated from his former wife and son in February 2019. His subsequent imprisonment and detention since then, has meant that has had limited interactions with them for most of the last decade.
12. This means that his ties are weaker than they might otherwise have been. The same can be said, to some degree, about his other community connections.

1. This Primary Consideration 3 weighs in favour of revocation of the cancellation of the Applicant's Visa.

Primary Consideration 4: The best interests of minor children in Australia

1. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
2. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); > > b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; > > c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; > > d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; > > e) whether there are other persons who already fulfil a parental role in relation to the child; > > f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); > > g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; > > h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

3. Child B is the Applicant's son. He is 10 years old.
4. The Applicant had a close parental relationship with Child B until he was about 3. Since then, the contact has been limited. It has been managed in the context of intervention orders, Family Court processes, mediation and the Applicant living elsewhere. He has spent time in prison since April 2022 and in detention since March 2025. It is only comparatively recently that regular face to face contact has been resumed.
5. If the Applicant were to return to Sri Lanka he could maintain contact with Child B electronically. From Child B's perspective, this would not be a dramatic departure from the contact that Child B has had with the Applicant for much of the last 7 years. They have not been living totally shared lives for the last 7 years, since February 2019.
6. If the Applicant got work in Sri Lanka, he could send money to support Child B.
7. Child B could visit him there.
8. The Applicant hopes to resume cohabitation with Child B if he is returned to the community.
9. I accept that if this were to occur, and if the Applicant did not engage in further acts of family violence, it would be in Child B's interests for the Applicant to return to the community.
10. In this context, I refer to the reports, statements and evidence of Ms Robinson, the Applicant and Ms DG.
11. I also refer to Exhibit 2.
12. The Applicant does not rely upon his relationship with any other child.

1. Having regard to all of the above, Primary Consideration 4 weighs in favour of revocation of the Applicant's Visa cancellation

Primary Consideration 5 - The Expectations of The Australian Community

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
2. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or

(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f) worker exploitation.

1. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

3. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.[93]

1. Paragraph 8.5 contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

Analysis - Allocation of Weight to Primary Consideration 5

1. Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
   1. the Applicant's criminal record as set out in Annexure B; and
   2. the other matters set out above.

1. Primary Consideration 5 weighs against revocation of the cancellation of the Applicant's Visa.

1. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

1. No protection finding has been made in this matter. No application is pending.
2. I accept that if the Applicant is not successful in these proceedings, he will be liable for detention and removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings.
3. Overall, this Other Consideration (a) is neutral

1. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a) the non-citizen's age and health; > > (b) whether there are any substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to that non-citizen in that country.

2. The Applicant is aged 42. He has a number of physical health issues arising from the motor vehicle accident in 2019. These include long standing shoulder pain, knee pain and back pain.[94] The Applicant sustained a traumatic abdominal injury and required a colostomy.[95] An attempted reversal in March 2023 was unsuccessful. The procedure was attempted again on 24 May 2024. This was successful.[96]
3. He also suffers from psychological issues such as PTSD.
4. I accept that the Applicant may have some difficulties in accessing suitable ongoing medical treatment in Sri Lanka. This would be especially so if he were to return to the village from which he came.
5. There are not any major language or cultural barriers to prevent the Applicant returning to Sri Lanka.
6. The Applicant has access to the same social, medical and/or economic support available to any other citizen of Sri Lanka.
7. The Applicant has some family support in Sri Lanka.
8. He has a brother in Sri Lanka, but his brother is hoping to move to the UK later this year. The Applicant's parents are dead. The Applicant has some cousins there, but he has lost contact with them. His former wife's parents are there but they are old and could not support him.
9. The Applicant has work skills that may be useful in Sri Lanka, but I accept that it may take him some time to find suitable work and accommodation.

1. I accept that the Applicant would experience a difficult period of readjustment in returning to life in Sri Lanka.
2. This Other Consideration (b) weighs in favour of revocation.

1. Paragraph 9.3 of the Direction directs a decision-maker to take into account the following:

Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. The Applicant's counsel submitted that this Other Consideration (c) was engaged because the Applicant has a skill (motor mechanic) that Australia requires.
2. If that submission were to be accepted, it would be difficult to imagine any person, other than a totally unskilled labourer, who would not be able to engage this Other Consideration. The words of the Direction do not support such an expansive interpretation.
3. I am satisfied that this Other Consideration is not engaged.
4. This Other Consideration (c) is neutral.

1. It is necessary to weigh up all the primary and other considerations. In doing so, I have had regard to all the evidence before the Tribunal. I refer also to the detailed history and discussion set out above.

Primary Consideration 1 weighs heavily against revocation.

Primary Consideration 3 weighs in favour of revocation.

Primary Consideration 4 weighs in favour of revocation.

Other Consideration (b) weighs in favour of revocation.

1. I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
2. Primary Considerations 1, 2 and 5 strongly favour affirming the decision under review. The details are set out the discussion above.
3. The principal offending, although very serious, and the trigger for the mandatory visa cancellation is unlikely to happen again. The possibility cannot be excluded of course, but the risk may be little different to any other, randomly selected driver.
4. The Family violence conduct and offending, although not the trigger for the mandatory cancellation, is far more problematic. The Applicant has a significant history of family violence and intervention orders. This is very serious.
5. If the Applicant were likely to continue to engage in family violence, this would strongly favour affirmation of the Respondent's decision.
6. There are factors that favour revocation as set out above. However, his ties to Australia are not as strong as may have been the case, if his relationship with Ms DG and Child B had not broken down in February 2019.
7. Likewise, the Applicant's connection to Child B is not as strong as it might have been, due to his history of Intervention Orders, plus time spent away in prison and detention.
8. There is no doubt that the Applicant would face significant hardships if he returned to Sri Lanka.
9. In summary, I have come to the view that the decision in this case is ultimately tied to the question of the likelihood of the Applicant engaging in more family violence, as discussed above.
10. I am satisfied that despite his assurances and the support of Ms DG, there is a moderate risk that the Applicant will continue to engage in family violence.
11. That said, I accept that the Applicant now has some insight into his past behaviour and its consequences. I accept that he wants to behave in a more constructive way with Ms DG and Child B. I accept that his connection to Child B is a strong motivating consideration.
12. The balance in this matter is unusually fine.
13. The Tribunal cannot grant a conditional visa or impose parole-like conditions. The Tribunal does not have a crystal ball.
14. The Applicant either has the Visa restored or he does not.
15. After careful consideration, I have come to the view that it is marginally more likely that the Applicant will not commit further acts of family violence. In coming to this view, I am taking him at his word.
16. Accordingly, I find that there is "another reason" pursuant to section 501CA(4)(b)(ii) to revoke the original decision.
17. The Applicant should be very clear, however, that should he reoffend, and the Visa be cancelled again, he should have no expectation that a future Tribunal would revoke that cancellation. He would be most unwise to assume that he may be given yet another second chance.

1. The decision under review is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked.

I certify that the preceding 251 (two hundred and fifty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

...........................[SGND].........................

Submissions in regard to Direction 110 - Primary Consideration 3 and 4

[38] Exhibit 3: Interim Intervention Order.

[40] HB 145, 204-205, 230-232, 234, 237-501.

[47] Exhibit 6: Family Dispute Resolution dated 8 August 2019.

[48] Exhibit 7: Family Dispute Resolution dated 12 August 2019.

[63] E.g. see HB 655-673, 701-705, 1212-1213, 1216-1222.

[85] Exhibit 2: Applicant's Submission in regard to Direction 110 - Primary Consideration 3 and 4.

[87] On 21 June 2024, the former applicable direction, Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, was revoked and was replaced by Direction 110.

[88] [2018] FCA 594.

[92] See also Exhibit 2: Applicant's Submissions in regard to Direction 110 - Primary Consideration 3 and 4.

[93] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.