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

1. the words "that the Applicant passes the character test" on the first page in the section titled 'Decision', and in paragraph 111 of the reasons for the decision, are replaced with "that the Applicant fails the character test, but the discretion in section 501(1) should not be exercised to refuse to grant the visa."

...............................[SGD]....................................

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

Tribunal: Emeritus Professor P A Fairall, Senior Member

The Tribunal sets aside the decision of the Minister's delegate dated 7 July 2021 to refuse the Applicant's Bridging E (Class WE) visa, and remits the matter to the Minister with a finding that the Applicant passes the character test.

..................................[SGD]......................................

MIGRATION - decision of delegate of Minister to refuse Bridging E (Class WE) visa - character test - substantial criminal record - sentence of 12 months or greater - Direction 90 - primary and other considerations - protection of the Australian community - nature and seriousness of criminal offending - risk to the Australian Community - strength, nature and duration of ties to Australia - best interests of minor children - expectations of the Australian community - Australia's non-refoulement obligations - where Applicant has spent a significant amount of his life in Australia - extent of impediments if returned to Sri Lanka - reviewable decision set aside and remitted.

Crimes Act 1900 (NSW) - s61L

Crimes (Sentencing Procedure) Act 1999 (NSW) - s9(1)

Migration Act 1958 (Cth) - ss 499, 501(1), 501(6), 501(7)(c), 501CA

AKA v Commission for Children and Young People [2013] NSWADT 131

AZY v Children's Guardian [2013] NSWADT 301

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

Fitzgerald v Kennard (1995) 38 NSWLR 184; (1995) 84 A Crim R 333

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gow and Minister for Immigration and Citizenship [2013] AATA 662

Jung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 256

KK and Secretary of State for the Home Department Unreported, Upper Tribunal (Immigration and Asylum Chamber) 27 May 2021

Minister for Home Affairs v Omar [2019] FCAFC 188.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166.

Parish v DPP [2007] VSC 494

Direction 90 - Direction under section 499 Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Department of Foreign Affairs and Trade, Country Information Report, Sri Lanka, at [2.72] (4 November 2019)

1. On 14 August 2019, the applicant applied for a Bridging E (Class WE) visa ('the visa').[1]

2. On 7 July 2021, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ('the Minister') refused the application for the visa on the ground that the applicant failed the character test because of his criminal record.[2] The record in question related to an offence of dishonesty committed in 2008 in Victoria, for which he was sentenced on 17 August 2011 to 12 month's imprisonment, suspended for a period of two years.[3]

3. Paragraph 501(6) of the Migration Act 1958 (Cth) (the Act) provides that a person fails the character test if they have a substantial criminal record, and paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. 'Sentence' includes any form of determination of the punishment for an offence. It therefore includes a sentence that is wholly suspended.

4. Subsection 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Having found that the applicant failed the character test, the delegate decided on 7 July 2021 to refuse to grant the visa.

5. On 20 July 2021, the applicant applied to the Administrative Appeals Tribunal ('the Tribunal') for review of the decision of 7 July 2021, giving the following reason for his application:

The criminal history of the applicant was not serious enough to warrant the refusal of the visa application on character grounds.[4]

6. The Tribunal was provided with the materials listed in Appendix A. The matter was heard on 14 and 15 September 2021. Both parties were represented. The applicant and his Australian wife Mrs Udayakumar gave evidence to the Tribunal.

7. The applicant did not dispute that he had a 'substantial criminal record' by reason of his conviction in 2011 in Victoria, and therefore failed the character test as a matter of law. I therefore find that the applicant fails the character test.

8. The question for the Tribunal in these proceedings is whether I should exercise the discretion to refuse the visa application.

9. The applicant arrived in this country from Sri Lanka in 1999 when he was 21 years of age and has lived here continuously since his arrival. He is now 44 years of age. He has held 32 short term bridging visas during this period.[5]

10. Following his marriage in 2006 to Mrs Udayakumar, the applicant applied for a partner visa. A delegate of the Minister refused his application of 5 July 2019. The applicant applied to the Tribunal for review of that decision, but the Migration and Refugee Division of the Tribunal found that he had failed to comply with the 21 day timeline governing such applications, and held that it had no jurisdiction to hear the application.[6] I was informed by the applicant's representative that an appeal against the Tribunal decision was lodged with the Federal Circuit Court and is currently pending.

11. At the outset, the Respondent indicated that the applicant was in the community although he did not hold a valid visa. Her initial instructions were that there were no plans for his removal to immigration detention. On the second day of the hearing, she clarified her instructions to the effect that, should the Tribunal affirm the decision to refuse his visa application he would be "on a pathway to removal". How this would impact on his present Federal Court litigation was not clear to the Tribunal.[7]

12. In considering whether to exercise the discretion in subsection 501(1), the Tribunal is required to consider the various matters referred to in Direction 90 - Direction under section 499 Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction').[8]

13. The Direction is designed to guide decision-makers in performing functions and exercising powers under subsection 501 and 501CA, but it does not dictate or prescribe any particular outcome. Evaluation of the weight of the various factors referred to in the Direction is entirely a matter of judgment for the Tribunal.

14. Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:

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

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

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

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.

(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

15. Part 2 of the Direction is entitled 'Exercising the Discretion'.

16. Under paragraph 6 of the Direction, four primary considerations (para 8) and four 'other' considerations (para 9), must be taken into account 'where relevant to the decision'.

17. Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, 'other considerations' include (but are not limited to) the implications of Australia's non-refoulement obligations, the extent of impediments if removed, and the strength of ties to Australia.

18. The Direction contains principles and rules relating to the weighting of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances a non-primary consideration may be dominant in the case.[9]

19. The Direction also refers to a myriad of subsidiary issues relevant to each of the specified considerations. I have regard to each of these factors referred to in the Direction.

20. The first primary consideration is the protection of the Australian community.

21. I note paragraph 8.1(1), which provides that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers upon non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.

22. I also note paragraph 8.1(2) which provides that decision-makers should also 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.

23. With these directions in mind, I propose to consider the Applicant's offending in greater detail.

The nature and seriousness of the non-citizen's conduct to date

24. There are two entries in the applicant's criminal history record:

(a) On 17 August 2011, the applicant was convicted on a plea of guilty of conspiracy to defraud. He was sentenced to 12 months imprisonment which was wholly suspended for a period of 24 months.[10] The offending occurred between June and September 2008, some 13 years and 3 months ago.[11]

(b) On 15 February 2017, the applicant was convicted of assault with an act of indecency and sentenced to a fine of one thousand dollars ($1,000.00) and a 12 month good behaviour bond. The incident took place on 2 March 2016.

25. There is no evidence of other criminal conduct or misconduct in the materials before the Tribunal.

26. The applicant described the circumstances of his offending as follows. The applicant was desperate for work because he was unemployed and had limited work rights under his visa. He moved from Sydney to Melbourne at the invitation of a man by the name of Nada, who offered him a job.

27. When he arrived in Melbourne, he stayed initially with Mr Nada, who lent him some money. Mr Nada gave him a credit card and the associated PIN number and asked him to withdraw money from an ATM. He did so and gave Mr Nada the money, whereupon Mr Nada gave him $100 from the withdrawn cash. This was repeated a number of times over the following days. He said that, at first, he thought that the card belonged to Mr Nada and that it was a legitimate request, but he became more suspicious and asked Mr Nada whether it was his card.[12]

He gave me the card and a PIN number, and I went and withdrew the money and gave him the money, and at that time he gave me $100. And I told him, "Why are you giving me this money to me, because isn't this your card? This is your money, right." And he told me, "That's okay, you can keep this." Then on the following day also we went to the market, he had this particular shop for - a bag shop in that particular market - and on that particular day also he gave me a card and asked me to withdraw some money, and I withdrew some money and gave that money to him. And at that time he gave me about $200 or $300. So I was a bit suspicious, so I asked him, "It is your card, right? And why are you giving me this money?" And he told me, "No, that's okay. You can keep that money. You can keep it."

29. I refer to the sentencing remarks by Judge Punshon in the County Court of Victoria.[13]

50 Mr Vivekanandan, [your solicitor] emphasised the limited role you played in the conspiracy and limited knowledge on your part of the size of the overall conspiracy.

51 Clearly, I need to concentrate only on the conspiracy to which you were a party.

52 You are 33. You ... were born in Sri Lanka. [Your solicitor] outlined your background. I was told you were imprisoned without justification and tortured as a young man. Rebel forces sought to recruit you and targeted your family who resisted. This led you to flee to Australia where you arrived in 1999. You settled in Sydney, but came to Melbourne for about 4 years returning to Sydney in 2004. Your refugee status claim has had an uncertain and protracted path.

53 You married in 2006 and applied for a spouse visa. The application has been suspended pending the current proceedings. You wife is under great pressure because of your current position.

54 Your work history has been sporadic. At times, depending on your status as a resident, you have been entitled to work, but any work you have been able to get has been low paid and unskilled. You are currently working and are well regarded by your employers.

55 About 3 months before the offending you were laid off. After being laid off your work permit expired and you were financially desperate. Your wife was studying and you had to rely on the generosity of others in your community.

You came to Melbourne seeking work and stayed with Mr Nada who loaned you money. It was in this context that you joined the conspiracy.

56 After your arrest you returned to Sydney to be with your wife and other family members. You are being assisted by your community. You are trying to start a family.

57 You pleaded guilty at the committal on the basis that the judge hearing the plea would determine the disputed issue concerning 1 September. You made an offer to plead earlier on a basis limited to your involvement as I have found it to be. Accordingly, you must benefit from an early indication to plead guilty. You have no priors matters and nothing pending.

58 You have had the case hanging over your head for just under 3 years. This is simply too long, particularly in your case where there was little controversy about your role. In any event, even had controversy about role been responsible for the delay you have had the issues concerning your role resolved in your favour. The determination of your immigration status has been suspended whilst the case has been pending.

59 I accept that you are remorseful, have learned a salutary lesson and are unlikely to re-offend.

60 The prosecution submitted that a sentence of between 12 and 18 months should be imposed in your case and that you should be required to serve some of this in immediate custody. Your counsel submitted that I should wholly suspend the sentence emphasising that despite the serious nature of your offending and the clear need to impose a sentence reflecting the need for general deterrence, a wholly suspended sentence can achieve that end.

60. The prosecution submitted that a sentence of between 12 and 18 months should be imposed in your case and that you should be required to serve some of this in immediate custody. Your counsel submitted that I should wholly suspend the sentence emphasising that despite the serious nature of your offending and the clear need to impose a sentence reflecting the need for general deterrence, a wholly suspended sentence can achieve that end.

85. Mr Vivekanandan, you will be convicted and sentenced to 12 months imprisonment. I think your case is very finely balanced. If I fix a non-parole period it is required to be for no more than 6 months. As I understand the prosecution submission you should serve some period, unspecified, in actual custody. Paying particular regard to the limited role you played, your personal circumstances, the delay, your remorse and rehabilitation prospects I consider that I should extend mercy to you, despite the seriousness of your offending, and wholly suspend this sentence. The period of suspension will be for 2 years. If you commit another offence in the next 2 years punishable by imprisonment you will be likely to have to serve the sentence I have imposed in prison.

86 Had you not pleaded guilty I expect I would have imposed, at least, 16 months imprisonment and fixed a non-parole period of about 8 months imprisonment.[14]

30. I am satisfied that the applicant knew from the first that the request by Mr Nada was to obtain money dishonestly. If he did not he was wilfully blind. He told the Tribunal that after discussing the matter with his wife, they decided that it was wrong, and he decided to quit the operation and return to Sydney. He was arrested on the trip back to Sydney.

31. The applicant told the Tribunal that what he did was wrong. He said that he and his wife had suffered a lot. His wife had a miscarriage because of the worry. His application for a partner visa had been held up, and his life in Australia was on hold.

32. The second incident occurred some five and a half years ago. On 2 March 2016, transport police became aware of a complaint of indecent assault said to have occurred on a suburban Sydney train just before midday somewhere between Central and Wynyard. A police investigation followed, based on CCTV footage, Opal card records, and human surveillance at a suburban train station. There was no CCTV footage of the alleged incident. Opal card records indicate that the applicant's card was used to exit Wynyard station at 11.41 a.m.,[15] and a person of the applicant's general appearance is captured in a CCTV still image at that time.[16] As a result of these investigations, the applicant was approached (in the company of his wife) and invited to participate in a photo line-up. This was on the basis that he of was of similar appearance to the assailant.

33. The applicant declined to participate in a photo line-up but agreed to be photographed. His photograph was uploaded to the data base and a photographic line-up was compiled consisting of photographs of him and 19 other individuals who closely matched his physical appearance.[17] The line-up consisted of persons of Indian appearance.[18] It appears that the complainant did not identify the applicant from the photo line-up.[19]

34. The incident was said to involve touching the complainant's body, including on the breast. When first asked about that by the police, he said, "I would never".[20] At the police station, his legal aid solicitor indicated that he would not participate in a formal interview.

35. Some days later, the applicant was arrested and charged under section 61L of the Crimes Act 1900 (NSW) with indecent assault.[21]

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

36. He subsequently pleaded guilty of the offence of assault with act of indecency. He was convicted and directed to enter into a good behaviour bond for 12 months pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) commencing on 15 February 2017. He was required to be of good behaviour and appear before the court during the bond term if required.[22]

37. The Respondent notes that the Court "only published an order and did not make any findings of facts in relation to the incident". The Respondent contends that weight should be placed on the Police Facts where there is no clear evidence to dispute it.[23]

38. Such statements are regularly tendered as part of the G documents, and appear to be generally admitted in proceedings of this nature, at the very least as a basis for cross-examination. Neither the author thereof, nor the complainant, was made available to give evidence to the Tribunal.

About 10:30am on Wednesday the 2nd of March 2016 the Victim boarded train that was travelling from Penrith to Macquarie University. About 10.58am that same day the Accused boarded a train at Westmead Railway Station.

The Accused stayed on this train until 11.18am when it arrived at Strathfield Railway Station on platform 4. The Accused exited the train at Strathfield. Upon exiting the Accused waited on the station for boarding a train on the same platform at 11.21am. The train he boarded has no on board footage.

He walked to where the Victim was still seated and sat next to her. The Victim thought this was odd as there were a number of empty seats in the carriage.

A few minutes later the Victim felt the carriage start to rock. The Accused has bumped into her a number of times with his elbow. The Victim moved herself away from the Accused leaving enough space so he would not touch her.

As the train arrived at Central Railway Station the Accused asked the Victim, 'is this Wynyard', the Victim replied 'no it's Central'.

The Accused again began to nudge the Victim with his elbow, this time he began to nudge her right breast. The Victim attempted to move further away from the Accused however had no room to move. This continued with the Accused nudging the Victim around 15 to 20 times. The Victim moved her bag and held it against her chest crossing her arms. The Accused moved his body away from the Victim for a short time while using his mobile phone. After a few minutes he shifted closer to her again. At this point the Victim could feel the Accused's hand begin to stroke her right arm. He continued to stroke the Victims arm before moving his hand between the Victims back and arm. The Victim believed he was attempting to touch her breast.

At this point the Victim has forced her elbow into the Accused's hand. He immediately stood up and left the carriage as the train was pulling into Wynyard Railway Station.

The Accused exiting the train at Wynyard Railway Station was captured on Closed Circuit Television Footage, he is the only person to exit the train matching the description of the Accused.

The Victim attended the Penrith Police Station where she provided a statement to police, and later participated in a photo identification line up.[24]

40. The statement does not mention that the complainant failed to identify the applicant from the photo line-up. But there is no doubt that the applicant was the right person - the person sought by the police in relation to this incident. The applicant was apprehended as a result of some very effective policing, for which the various agencies should be commended.

41. The Statement does not describe the degree of crowding in the carriage, and provides no sense of the degree of social interaction between the complainant and the applicant, although I note the reference to the applicant asking the complainant whether the train was at Wynyard, to which she responded that it was at Central Station. This suggests that the offending behaviour occurred somewhere between Central and Wynyard Station, a travel time of between six or seven minutes.

42. As to the nature of the assault, there is a reference to him 'nudging' her right breast, but thereafter it is stated somewhat tentatively that "The Victim believed he was attempting to touch her breast." He was asked whether he remembered nudging the complainant's breast and agreed that his arm would have touched her. It was put to him that the complainant attempted to move away but had no way of moving, and that the applicant had nudged her multiple times. He said that he did not know how many times but agreed to what the police said and pleaded guilty. He said that he would like to apologise.

43. At the hearing, the applicant did not dispute that he was the person who committed the offence. He said,

Yes, and at the Court it was decided that my hand touched her and better it was done with my knowledge or without my knowledge. I feel very ashamed of that and I would like to apologise. I would like to apologise to that. At the Court it was decided that I was guilty. At that particular time, I didn't know what happened. That is because I had a lot of thoughts in my mind and I was thinking about various things. Therefore, I want to apologise. [25]

44. A plea of guilty is regarded as an admission of all the essential elements that make up the offence, including the necessary mental element. A lack of consent is one of the factual elements of the offence of assault. The mental element of indecent assault is the same as that of common assault, and consists of knowledge by the party engaged in the assault that the victim is not consenting, or might not be consenting, to the contact.[26]

45. No indecent assault should ever be regarded as trivial, because of the potential for very significant harm, not only to the victim but also to the perpetrator, in the form of violent retaliation, which sometimes occurs. It was sleazy and lamentable behaviour, of a kind endured in misery by a host of women. It was an affront to society as a whole, not least of all, to his wife.

46. Section 61L embraces a wide range of conduct, as reflected in the maximum penalty of five years imprisonment. I note that was an isolated incident and involved a very low level violence - in the form of 'nudging'. The sentence imposed on the applicant suggests that it falls very much towards the lower end of the scale.[27]

47. Paragraph 8.1.1 of the Direction outlines the various factors to which a decision-maker should have regard.

48. I note that under paragraph 8.1.1(1)(a) violent and/or sexual crimes are viewed very seriously by the Australian Government and crimes of a violent nature against women are so viewed regardless of the sentence imposed. An indecent assault may be regarded as a sexual crime, and may, depending on circumstances, also be regarded as a crime of a violent nature.

49. Under the circumstances of the present case, I find that the applicant's behaviour in 'nudging' the victim does not amount to a crime of a violent nature against woman. The crime of indecent assault is however properly regarded as a sexual crime and viewed as serious by the Australian Government.

50. I also note paragraph 8.1.1(1)(b)(iii), which refers to 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)). The Australian Government considers such conduct to be serious. In the present case, the Applicant does not pass the character test by reason of the fact that he was convicted and sentenced to imprisonment for 12 months or more: subsection 501(7).

51. I note that the offending associated with the first offence ended in September 2008 and the second offence was committed in March 2016; in other words, almost seven years and six months later. There is no basis for a finding of 'regular' offending. Nor is there any basis for determining the cumulative effect of the offending, because of its irregularity and diverse nature.

52. I turn to consider paragraph 8.1.2 which directs the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

8.1.2. The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

(1) In considering the need to protect the 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) In assessing the risk that may be posed 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; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the noncitizen re-offending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

53. Specifically, I note the Government's view articulated in paragraph 8.1.2(1) concerning the inverse relationship between the community's tolerance for any risk of future harm and the seriousness of the potential harm.

54. The Tribunal is directed to consider explicitly both the nature of the harm (8.1.2(2)(a)) and the risk of that harm occurring (8.1.2(2)(b)). In assessing the risk relevant information and evidence regarding risk should be considered.

55. The nature of the harm is that the community may be exposed to dishonest or fraudulent behaviour relating to the use of ATM machines and unlawful withdrawals. Such behaviour has the potential to cause significant loss to members of the community.

56. The other harm relates to the possibility of future acts of harassment or indecency perpetrated on public transport or elsewhere against women.

57. The applicant was cross-examined at length about both incidents. With regard to both offences, the applicant did not deny his wrongdoing and said that he had apologised for it many times.

58. The assessment of the risk of future offending is closely related to the issue of remorse and rehabilitation. The presence of genuine remorse is likely to significantly increase the prospect of meaningful rehabilitation.

59. With respect to his conviction for conspiracy to commit fraud, he said that he and wife have experienced serious financial pressure, and that this was a factor that led to his offending when he could not get legitimate work. As noted above, he has held 32 short stay visas, and at various times he was not permitted to work. It appears that most of the short-term bridging visas he has held in recent years have permitted some employment, although the Tribunal has not been provided with precise information about the employment conditions attaching to any of the past visas.

60. The sentencing judge in the Victorian Country Court was satisfied that the applicant was genuinely remorseful. His Honour said, at [59]: "I accept that you are remorseful, have learned a salutary lesson and are unlikely to re-offend". [28]

61. The Respondent suggested that the sentencing judge's optimistic assessment should be discounted, in view of the applicant's later offending.

62. I note that the later offence was committed in March 2016, some seven years and seven months after the first offence. It was of a completely different nature, and was comparatively minor, to the point of being dealt with by way of fine and a good behaviour bond.

63. The applicant did not think that it was fair that the indecent assault should be raked up again and again. He said that he had apologised to his wife and that they had both suffered. He said that had almost destroyed his marriage, and their future cohabitation had been jeopardised. [29]

64. It is perhaps not surprising that he became somewhat ruffled when this matter was traversed in detail. It is obviously an uncomfortable topic, and the implications of being without a visa are very troubling. I do not think his defensiveness should be seen as inconsistent with genuine remorse. I am satisfied that the applicant is very remorseful, and that he is unlikely to engage in similar conduct in the future.

65. I note that the offence of conspiracy was committed more than 13 years ago, while the indecent assault was committed some five and a half years ago. The applicant has been in a stable relationship since 2006.

66. There is no evidence of any other misconduct or offending in the applicant's record. I assess the likelihood of the applicant engaging in further criminal or other serious conduct as being very low.

67. I note that the respondent accepted that this was not the worst kind of case, and contended that this consideration weighed at most moderately against the applicant.

68. Taking into account both the nature of the harm and the risk of such harm occurring, I find that PC1 weighs moderately in favour of exercising the discretion to refuse to grant the visa.

Family Violence committed by the non-citizen: PC2

Best interests of minor children in Australia affected by the decision: PC3

70. The applicant's wife has two brothers and each has a young daughter. They are under two years of age. The applicant said that his contact with them had been stymied by the present pandemic travel restrictions. His wife said that one of the children had showed a special affection for the applicant.

71. The Respondent conceded that this consideration pointed slightly in the applicant's favour, but only slightly.

72. Given the tender age of the children and the lack of opportunity to develop a relationship, the Tribunal is unable to attach any weight to this consideration.

The expectations of the Australian community: PC4

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2) In addition, 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 is 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:

d) 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' includes 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 exploitations or neglect; or

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4) 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.

74. A literal reading of paragraph 8.4 of the Direction suggests that if the offending falls into one of the categories and is therefore taken to raise 'serious character concerns through conduct', then the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.

75. The Respondent contends, consistently with the paragraph 8.4(2)(c), that in view of the nature of the applicant's offending, it is appropriate to refuse the visa application simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

76. In relation to this primary consideration, it is well established that it cannot weigh in favour of any applicant; the degree to which it weighs against an applicant in any particular case is a matter of discretion.[30] The classification of a particular category of offence as serious or very serious does not absolve the Tribunal from the responsibility to determine for itself the weight to be assigned in the specific circumstances of the case.

77. As with PC1, the respondent conceded that this consideration weighed moderately against the applicant.

78. I agree, and find that in the particular circumstances of this case, PC4 weighs moderately in favour of exercising the discretion to refuse to grant the visa.

79. Paragraph 9.1(1) provides that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under various international conventions.[31] Decision-makers are required to follow the tests enunciated under the Act in considering non-refoulement claims.

80. The applicant told the Tribunal that he had fears for his safety if returned to Sri-Lanka. When asked to clarify what he meant, he referred to the possibility that he might be abducted. I note the following exchanges.

MR NGUYEN: Certainly, Senior Member. Mr Vivekanandan, has anything happened to you or your family in Sri Lanka that gives you a fear for your safety?

INTERPRETER: What I have heard is that recently not the government but the other groups have been extorting money from people and when they disagree to give their money, they are being abducted. Two of my uncles are still missing and nobody knows what has happened to them. There are many boys who have studied with me are still missing. Even know their parents don't know about their whereabouts, so - where they are now. [32]

MS HARGRAVE: Is it correct that since the end of the war your fear is no longer in relation to being persecuted but it is a fear of being abducted?

MS HARGRAVE: When you say "maybe", can you just expand on what you mean, please.

INTERPRETER: When I came here there were problems in my country and I also had problems. Now I have lived in this country for 22 years and I have got married and the reason for me to still fight with these fears is because I want to live here and otherwise I wouldn't be worrying about all these too much.

MS HARGRAVE: So is it that you have a fear of harm if you return to Sri Lanka or is it primarily that you consider your life is here in Australia?

INTERPRETER: I'm sorry - this is coming from the interpreter - would you be able to repeat that, please?

MS HARGRAVE: Yes, certainly. I think I might slightly rephrase it in hindsight. When I asked you to expand on in relation to your claims of - sorry, when I asked you to explain your claims of harm, you stated that it was because you wanted to live here. Can you please confirm whether you have any claims of prosecution or abduction if you are returned to Sri Lanka?

INTERPRETER: It is difficult for me to say what would happen because only if I go back I would know. I haven't gone back to my country for 22 years. I haven't seen my parents, I haven't seen my siblings for 22 years. If I go back and if something happens, who would take responsibility for my wife? What sort of response they could give to my wife. If I go back and if something happens, who is going to take responsibility for that?[33]

82. The Respondent contends that there is insufficient evidence before the Tribunal to be satisfied that non-refoulement obligations are engaged with respect to the Applicant.

83. The Respondent contends that the Applicant's claim is not supported by the in-country information prepared by the Department of Foreign Affairs and Trade (the DFAT Report) relating to Sri Lanka. The DFAT Report states:

According to local sources, while some Tamils, particularly those with past links to the LTTE, continue to fear the TMVP [Tamil Makkal Viduthalai Pulikal] and the EPDP [Eelam People's Democratic Party], these groups no longer pose a major concern. Sources told DFAT that the TMVP had no formal presence in the north. DFAT assesses that, under the current government, the TMVP and the EPDP present a low threat of violence and intimidation to members of the Tamil community. [34]

84. The DFAT Report has been considered recently in the United Kingdom in KK and Secretary of State for the Home Department. [35] The Tribunal noted:

302. In addition to taking account of open source materials such as the US Department of State human rights reports, DFAT is based on "on-the-ground knowledge and discussions with a range of sources in Sri Lanka." However, none of the sources are identified, there is no explanation as to how the information from these sources was obtained, and there is no annex containing, for example, records of any interviews (unlike the FFM). Indeed, it is unclear whether any formal interviews took place. The report does not provide direct quotes from any source. In light of these matters, it is difficult to gauge the reliability of the sources which have informed the "judgement and assessment" applied to them by the authors of the report. On a broader point, the report is focused primarily on the situation within Sri Lanka and there is little on the question of sur place activities and the attitude of the authorities to these.

303. Notwithstanding these matters, the report does provide some useful background on issues such as monitoring within the country, the relevance of past LTTE links, and, to a more limited extent, the basis upon which the authorities may take an interest in particular returnees. We are also cognisant of the fact that two of the experts refer to the report in their own evidence and that the DFAT relies on evidence provided by Dr Smith in GJ.

304. DFAT was published on 4 November 2019, just before the presidential elections. As with the FFM, the benefit of hindsight might suggest that the publication could have been delayed, but this point does not materially feature in our considerations.

305. With the above observations in mind, we have placed appropriate weight on DFAT when evaluating the country information as a whole.

85. The Tribunal is required under the Direction to give genuine consideration to any claim made by the applicant that might provide a factual basis for a non-refoulement claim, regardless of whether it is designated by the applicant as such: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, and Minister for Home Affairs v Omar [2019] FCAFC 188.

86. The Respondent also notes the Full Federal Court decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166, at [39]:

the Tribunal's task is necessarily to consider such a claim in a manner that actually weighs it against the other facts in the analysis and ascribe to it some value beyond what the claim expresses in and of itself.

87. I note that the applicant's initial application for a Protection (Class XA) visa was refused on 26 May 2000,[36] and the refusal was upheld by the Refugee Review Tribunal (RRT) on 31 October 2005.[37] The decision was set aside and remitted by the Federal Circuit Court on 4 July 2006, and on 10 May 2007 the application was again refused by a differently constituted Tribunal.[38]

88. The applicant lodged a further protection visa application in 2008, which was also refused.[39] The refusal decision was affirmed by the RRT on 17 December 2008.[40] I note that he applied for a partner visa in 2006, while his second application for a protection visa was on foot.[41]

89. It would not be appropriate to dismiss his concerns about potential harm because of the refusal of his previous protection claims.

90. I note that paragraph 9.1(6) of the Direction states that it may not be possible at the section 501 stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The Process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act.

91. The Direction states that a decision-maker... is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

92. On the basis of the DFAT Report, the information before the Tribunal relating to his previous protection visa claims, and the assumption referred to in the previous paragraph, I find that this consideration weighs at best slightly against exercising the discretion to refuse to grant the visa.

93. Under the circumstances of this case, I consider that it is not necessary to make a positive finding that harm will occur, given the weight that I assign to other considerations.

94. The applicant has not lived in Sri Lanka since 1999.

95. His parents and three siblings are in Sri Lanka, but there is no evidence before the Tribunal as to the extent of any assistance he may receive from them in resettling in his home country.

96. I note that the applicant is 44 years of age and suffers from diabetes. There is no evidence before the Tribunal as to the availability of medical support for returnees in the position of the applicant.

97. He is an unskilled worker and there is no evidence before the Tribunal as to his employability in Sri Lanka.

98. While there is no substantial language or cultural barrier it is hard to overlook the cultural and political differences that led to his departure from Sri Lanka in the first place. It was a country riven by civil war and ethnic conflict. Again, there is no evidence before the Tribunal as to the extent to which such differences may provide adjustment difficulties for the applicant in the process of establishing himself and maintaining basic living standards.

100. There is no evidence before the Tribunal as to any impact on victims.

(i) The strength, nature and duration of ties to Australia

101. The applicant has lived in this country since he was 21 and his now 44 years old. He has been married to an Australian citizen since 2006. They want to have children and have been undergoing IVF, although that is presently on hold due to the anxiety caused by his present immigration difficulties. His visa uncertainty is a source of great anguish to both of them. Despite a serious lapse by the applicant in 2016, they have a strong and committed relationship.

102. The practical effect of denying the applicant a bridging visa is that he is liable to be removed to immigration detention and separated from his wife. According to the respondent, he would be on the "pathway to removal", depending on the outcome of present proceedings in the Federal Circuit Court.

103. His wife is devastated by the prospect of his removal, and given that she is not a citizen of Sri Lanka, there is no guarantee that she will be able to accompany him or reside there permanently with him. She has close family members in Australia, including two siblings with small children. For her to leave Australia would be to separate from these family members.

104. I find that OC4(i) weighs heavily against exercising the discretion to refuse to grant the visa.

105. This consideration has no relevance in this case.

106. In the present case, the Respondent states that one of the primary consideration (PC3) and one of the other considerations (OC4) weigh slightly in his favour, but that two of the primary considerations (PC1 and PC4) weigh against him, although not heavily. Nevertheless, the Respondent contends that overall the Tribunal should exercise its discretion to refuse to grant the visa.

107. Given the weight I have assigned to the various considerations, I am satisfied that the applicant's link to the Australian community (OC4) is the dominant consideration in this case. The applicant has been in a stable marriage since 2006 and his wife is heavily dependent on him. I agree with the applicant's representative that there are strong and compassionate reasons for granting a short stay visa.[42]

108. The Tribunal did not consider that it was necessary to embark on an extensive inquiry regarding non-refoulement. It would make no difference to the final result. At best this consideration points slightly in his favour.

109. Overall, the Tribunal finds that his criminal history is not sufficiently serious to warrant the refusal of the visa application on character grounds, given the length of his residence in Australia and the strength of his relationship with his Australian wife.[43]

110. I am satisfied that the correct and preferable decision is not to exercise the discretion to refuse the visa, and the reviewable decision is therefore set aside.

111. The Tribunal sets aside the decision of the Minister's delegate dated 7 July 2021 to refuse the Applicant's Bridging E (Class WE) visa, and remits the matter to the Minister with a finding that the Applicant passes the character test.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

........................................................................

[5] Visa History, filed 15 September 2021.

[7] Transcript, 15 September 2021, at 89.

[9] FYBR v Minister for Home Affairs [2019] FCAFC 185.

[23] Respondent's Statement of Facts Issues and Contention, para [25].

[25] Transcript, 14 September 2021, p 32.

[26] Parish v DPP [2007] VSC 494; Fitzgerald v Kennard (1995) 38 NSWLR 184; (1995) 84 A Crim R 333

[27] G2/32; see Jung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 256 (multiple offences involving imprisonment); Gow and Minister for Immigration and Citizenship [2013] AATA 662; AZY v Children's Guardian [2013] NSWADT 301 good behaviour bond for pinching buttock of female police woman (not a disqualification for obtaining a Working with Children Clearance); AKA v Commission for Children and Young People [2013] NSWADT 131, intoxicated and lying naked on an unconscious woman (held, not a risk to the safety of children).

[29] Transcript, 14 September 2021, 35-36.

[30] FYBR v Minister for Home Affairs [2019] FCAFC 185.

[31] The 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

[33] Transcript, 14 September 2021, 39-40.

[34] RSFIC, Annexure A: Department of Foreign Affairs and Trade, Country Information Report, Sri Lanka, at [2.72] (4 November 2019).

https://www.dfat.gov.au/sites/default/files/country-information-report-sri-lanka.pdf

[35] Unreported, Upper Tribunal (Immigration and Asylum Chamber) 27 May 2021. Per Upper Tribunal Judge Blum; Upper Tribunal Judge Rimington; Upper Tribunal Judge Norton-Taylor

[42] See Direction, paragraph 8.12(2)(c).