Azizi and Minister for Immigration and Border Protection (Migration)
[2018] AATA 669
•20 February 2018
Azizi and Minister for Immigration and Border Protection (Migration) [2018] AATA 669 (20 February 2018)
Division:GENERAL DIVISION
File Number: 2017/7306
Re:Nima Azizi
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:20 February 2018
Date of written reasons: 23 March 2018
Place:Sydney
The Tribunal sets aside the reviewable decision of the Minister of Immigration and Border Protection dated 11 October 2017 and remits the matter for reconsideration upon the basis that the Applicant passes the character test in s 501 of the Migration Act 1958 (Cth).
...................................[sgd]..................................
Senior Member M J McGrowdie
CATCHWORDS
MIGRATION – visa refusal – whether applicant passes the character test – whether Tribunal should exercise discretion to affirm decision – drug addiction – consideration of past and present general conduct – applicant passes character test – decision set aside and remitted.
LEGISLATION
Migration Act 1958 (Cth), s 501(1)
CASES
Godley v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
SECONDARY MATERIALS
Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member M J McGrowdie
23 March 2018
Mr Nima Azizi, who is now aged 36 years and was born in Iran, has made an application following a decision by the respondent, to refuse his application for a Skilled – Independent (Permanent) (Class SI) visa (‘the visa’) on character grounds as referred to in section 501(1) of the Migration Act 1958 (Cth) (‘the Act’).
The applicant graduated from Tehran University as a medical doctor in April 2006 and worked as a doctor in the hospital system in Iran. He first came to Australia in late 2008 to sit Stage 1 of his medical entry examinations for practice in Australia. He has held two Business (Short Stay) (Class UC) visas since that time and has been employed at various hospitals during the period from July 2009 to February 2014.
Mr Azizi commenced work at Mt Druitt and Blacktown Hospitals in January 2011. From March 2013, he commenced to self-medicate on OxyContin which he falsely prescribed. His addiction to OxyContin continued until late 2013 and after a short period of being on a Methadone program, he went "cold turkey" and has not reverted to the addiction.
As a result of addiction and consequent attempt to cover up, by making false statements, he lost his employment, and his medical registration was cancelled by the New South Wales Civil and Administrative Tribunal, otherwise known as NCAT, on 20 July 2016 with a restriction of not being able to be re-registered for a period of three years. He cannot apply for registration until about 20 July 2019.
The NCAT decision followed a complaint having been lodged by the Health Care Complaints Commission. By that time, the applicant was registered to practice with restrictions which included passing urine tests and not prescribing a class of drugs which included OxyContin.
The applicant lodged an application for a skilled visa and because of his previously outlined conduct that application was refused on character grounds.
BACKGROUND
The applicant was a bright school student. He was a pupil of a selective school for his high school years. After completing high school and in the university entry scores, he was ranked second place in the whole of Iran. He received much publicity and made his family proud. His brother is a doctor in Iran. His father, now deceased, was an electrical engineer. His mother lives in Iran.
The applicant has been in a partner relationship with an Australian citizen, Fiona Hunt. They have been living together since October 2014 after about two years of knowing each other. She is a clerical worker and a published author. She gave sincere and heartfelt evidence. Ms Hunt is a devout Christian and the applicant has converted from Islam to Christianity and has also become a follower within his church.
EVIDENCE
Evidence was going to be led from Reverend Lawrence, Senior Pastor of The Centre of New Life, Sydney, however, as he was interstate, his statement dated 7 July of 2017 was relied upon. There is also a reference from Mr Chris Lovall, head of Biblical Studies at the Kings School on the Kings School letterhead. Mr Lovell is also involved in The Centre of New Life, Sydney.
There were other persons who provided reference which are contained in the G-documents. Also, there were a number of these persons who gave oral evidence. A number of these persons were former patients of the applicant.
After losing his employment at the hospital, the applicant obtained employment as a general practitioner in a medical practice at Mt Kurringai headed by a colleague of the applicant, namely Dr Samari. Dr Samari and the applicant had worked together at one of the hospitals when the applicant was doing hospital work. This was a newly established medical centre and Dr Samari, knowing the details of the applicant's history including his addiction, was quite willing to take the applicant on and to give him another chance.
The applicant commenced work at the centre from some time in 2015 or 2016. The applicant was "clean", so to speak, when he commenced work at that practice. The applicant had been undergoing some treatment and counselling, and was having regular urine tests which were clear. The applicant proved to be quite a success in the practice and his services became highly sought after. Dr Samari was most pleased with the applicant's efforts, and the care and responsibility exercised by the applicant in managing new patients to the new practice, and he applauded Dr Azizi's considerable success.
The applicant continued working successfully at the centre and remained "clean" until his medical registration was cancelled by NCAT on 20 July 2016.
David Hammersley gave evidence as a former patient. He was most impressed by the applicant. They became friendly. Mr Hammersley was an accomplished artist and was a recipient of the Bradfield Award. He was a patient of Dr Azizi for about 12 months and found Dr Azizi to be competent and dedicated to his work.
When it was put to Mr Hammersley, who knew of the applicant's history when he saw press about it following Dr Azizi's deregistration about how he felt knowing that his doctor had been addicted to OxyContin, Mr Hammersley stated that Dr Azizi was a man who needed help and that he does believe that Dr Azizi is a man of good character who sought and has gone through rehabilitation.
Cynthia Whalley also gave evidence. She and her husband, Ken, were patients of the practice. Her husband's health was going downhill. Dr Azizi did a lot of tests, looked into matters deeply and made Ken's life, which ceased last year, easier. Dr Azizi was also a great support to Ms Whalley.
Ms Whalley had been a nurse for 40 years. She has worked in acute care and when the history, which she had become aware of, was put to her, she responded by saying "We all make mistakes". She had also read the NCAT decision online. She said she could only go on how she found him, which was entirely satisfactory. She had, in the course of her career as a nurse, experienced many different situations involving doctors, including doctors who had some type of problems as well. She was also very familiar with that sort of problem with patients attending hospital.
Mr Phil Williams gave evidence. He and his wife were patients of Dr Azizi at the Mt Kurringai Medical Centre. He had also, for some time, become aware of Dr Azizi's former problem. Mr Williams is currently working for the Bunnings organisation and was well aware of some tradespersons attending Bunnings who were obviously affected by drugs. Mr Williams, as I understand it, was an ex-communications manager both at Du Pont and at Amex. He learned of Dr Azizi's addiction when he first saw publicity about it in the newspaper.
He mentioned in his evidence that his wife had attended in the newly opened practice with a script she had obtained from another doctor for a narcotic analgesic and Dr Azizi pleaded with her not to use the script of drugs because he had said, "You don't know how addictive they can be." His wife continued to see Dr Azizi and both of them well respected and regarded Dr Azizi notwithstanding what happened. He indicated that his wife had changed doctors so that she could continue to see Dr Azizi.
Dr Mehdi Samari who was the owner of the Mt Kurringai Medical Centre also gave oral evidence. He explained how he was fully aware of the problem Dr Azizi had suffered and was prepared to give him a chance. In monitoring the situation, Dr Samari regularly sought feedback from patients and staff. He was very impressed and considered Dr Azizi to be one of the most successful general practitioners he had encountered. He indicated that the services with Dr Azizi were well sought after and he was always fully booked. He said he would be happy to take him back as soon as Mr Azizi obtained re-registration as a doctor. He regarded him as a genuine, caring person and that perhaps what had happened to Mr Azizi had now made him a better person, or at least he seemed to have come through it as a better person.
Dr Samari was impressed with how Mr Azizi worked extra hours to follow up on patients. He was kind, caring, and likeable, and went above and beyond. He considered that perhaps Mr Azizi has been dealt with harshly in the past.
The Tribunal notes that the applicant, whilst he was at the Mt Kurringai Medical Practice, continued to undergo regular urine tests, all with negative results.
Ms Dianna Freeman, a pharmacist from the chemist next door to the Mt Kurringai Medical Practice also gave evidence. She found the applicant straightforward and approachable. Ms Freeman gave evidence that the applicant was likeable, was interested in people and was generous in his time. She stated that he followed up on patients and checked on their medication. She has been a chemist for 30 years and previously worked in a hospital or hospitals. She was a researcher for the CSIRO for 10 years. She does regard Schedule 8 drugs, of which OxyContin is one, as highly addictive. She learned of the publicity when matters were previously disclosed in the press.
There are numerous other character references contained in the G-documents which the Tribunal will not go to specifically but, suffice to say, there is very much support provided to the applicant from those whose opinions have been sought or who have come forward.
The Drug Addiction
By way of background, the applicant's evidence was that, in 2009, he suffered a slip and fall at a hospital he was working at and injured his left shoulder. It appears there was a fracture of the upper arm and surgical treatment was required, necessitating fixation with rods and screws. At the same time, there was some dislocation to the applicant's left shoulder. The applicant having suffered episodes of dislocation of the left shoulder in the past.
He was treated in Iran for an earlier problem with his left shoulder and at the time was prescribed a drug, not called OxyContin, but an equivalent in Iran.
Following his shoulder injury at the hospital in 2009, he was prescribed OxyContin for extreme pain suffered as a result of the fall and the surgery during the healing process and that continued over a period of about three months. The problem largely settled but by this time, Mr Azizi had developed a positive response and attitude towards the positive effects of the drug and found that he managed reasonably well when he was on it.
In 2013 and in the period leading up to it, he was working at another hospital and working hard. His left shoulder pain and problems recurred to some degree. Also, he was working extremely long hours and under a lot of pressure. He started to manufacture scripts for the supply of OxyContin because it enabled him to continue, under these very stressful conditions, being able to, in his description, sleep well and arrive feeling refreshed for his shifts. He had other issues going on in his life at the time including the ending of a courtship with a lady who was living in Iran. He was not sleeping and was very much sleep deprived.
He was sitting for further medical examinations and because of the pressures in his life, was not doing well with those. He resorted therefore, to using OxyContin. Once in the grip of this drug, he continued to manufacture scripts, either in false names or in the names of people he knew or treated. All in all, he wrote 51 separate scripts which supplied in excess of 2400 tablets over a period of about seven months.
He has indicated that over a period of time he used only a fraction of those. He tried to quit on a number of occasions, flushed tablets down the toilet or put them in the bin but that did not really account for such a quantity of tablets.
When the matter came before NCAT that appears to have been a suggestion of Dr Azizi obtaining the medication in trafficable quantities and possibly disposing of the excess on the black market. Mr Azizi was never charged with any criminal offence nor does he have any criminal record either in Australia or in Iran.
Despite the diligent efforts of the complainant in the NCAT proceedings, the members determined that "The tribunal does not believe the explanation of the respondent as to what happened to the tablets that he did not use for himself" but the evidence falls short of establishing that he sold those tablets.
As the Tribunal has indicated, the only explanation that seems to have been proffered by Mr Azizi to the Tribunal was that he flushed some down the toilet or disposed of them in a garbage bin. Nonetheless, despite diligent enquiries and the examination of the facts before the Tribunal, the Tribunal was unable to conclude that Mr Azizi had engaged in trafficking any of the prescription tablets. Mr Azizi denies it.
Whilst there may exist an innuendo, it is certainly no greater than that. It fell well short of being proved and no criminal investigation was undertaken, to my knowledge, nor were any charges brought. I do not think that Mr Azizi can be damned on the basis of a speculative matter unproven.
The fact is, however, that Mr Azizi, on his own admission forged scripts, lied to investigators and his employer to cover up or minimise and did take OxyContin whilst he was working for the hospital from about March 2013 until almost the end of that year. Mr Azizi said he never consumed a tablet whilst he was on shift and not immediately before starting a shift.
I gather that he found taking them at night was of assistance to him in terms of his sleeping and feeling refreshed the following day. I do not really know what sort of shifts Mr Azizi was doing whilst he was working at the hospital. It was the scripts that came to the attention of regulatory bodies and triggered investigations by the pharmaceutical body and the medical registration board and finally involved the Health Care Complaints Commission.
As a matter of requirement, I believe of the medical board that Mr Azizi had to attend appointments with Dr Robert Fisher, a psychiatrist, for monitoring and reporting. This was at the same time that Mr Azizi was undergoing regular urine tests. Amongst other things, Dr Fisher suggested that the applicant attend group meetings of an organisation for Doctors in Recovery. The applicant says he did start attending those group meetings and at the time of the NCAT proceedings, he had been three times.
He has continued to go to the Doctors in Recovery group who meet every Monday night. He does not manage to get to all of them but he goes to three out of every four. He has made good friends and they also use the support.
Dr Fisher also gave evidence in NCAT and considered that whilst there could be no guarantees, he was satisfied that Mr Azizi's addiction to OxyContin was in remission.
The applicant also went to see Dr Usman Malek, a psychiatrist. Dr Malek has provided a brief report dated 3 August 2017 addressed to "The Minister". He has treated the applicant and indicated his belief that the applicant has shown his intention to remain drug free and to continue with urine drug screening even on the voluntary basis and that his narcotic dependence remains in prolonged remission. He has been drug free since late 2013, so far as the doctor understands it.
The applicant's evidence was that he, the applicant, at the suggestion of Dr Malek, attended Dr Florida who has provided a report of 3 August 2017 in which he says she has been the applicant's treating psychiatrist since October 2016. She outlines briefly the history. She says that, in regards to his character, she has always found the applicant honest and open, that the applicant attends appointments and is both punctual and polite. She believes his behaviour to have been aberrant and the result of developing an opiate addiction with other stressors playing a part. Mr Azizi continues to see Dr Florida from time to time.
Dr Florida was going to be called to give evidence, however, it was indicated that Dr Florida considered herself to be more of a treating doctor rather than a medical expert in terms of giving evidence, and did not wish to give oral evidence but was content that her report be admitted into evidence.
Previously, when Mr Azizi was trying to deal with his addiction and field the various enquiries that had been lodged, he went to see Dr Lucy Balham. His previous attempts to stop had been unsuccessful and Dr Balham, in late 2013, put the applicant on a methadone program. Shortly after, however, the applicant, either as a result of taking too much methadone or taking it in conjunction with, or alternatively, the effects of an antihistamine drug, called an ambulance and the applicant was taken to hospital as a "drug overdose patient".
This event occurred, as I understand it, in late 2013. The applicant finished up discharging himself from hospital and was not a particularly cooperative patient. Following his discharge, the applicant considered that the methadone was not doing him any good either in terms of getting his life together and all of what had happened to him, including going to hospital, appeared to have been salutary in their effect because the applicant then decided, and it would seem successfully, to go “cold turkey”.
Accordingly, since early 2014, now a period of nearly four years, the applicant has, it would appear, remained drug free. It is a great shame that a man of the applicant's obvious talents has found himself in the position he was in. I believe it is also a great shame to the applicant himself, and he feels that it brings considerable shame on his family. The facts appear to indicate that the applicant was very good at his job as a doctor, and in fact, only the day before he went into immigration detention, he got the results of his first stage American medical examinations and came in the first percentile, which appears to be a considerable achievement.
His evidence was that he would be interested in doing some residency in the United States, at least for a short period, to enhance his qualifications and experience. Concurrently, with this application for a visa, the applicant has also applied for a permanent partner visa, but as I understand from what was briefly said about it, that was initially refused and is currently under review. I do not know the details of it and comment no further, other than a comment that the satisfaction of the partner element was something that remained an issue.
From the applicant's evidence and the evidence of Miss Hunt, I consider that there certainly is a very close warm and loving relationship between them. Whether that relationship is a partnership of the sort which qualifies otherwise for a partner visa is not something that is for the Tribunal to determine.
Since the NCAT decision, the applicant has continued his engagement in study for the American medical examination requirements and Mr Azizi indicated that were he not in detention where access to computers is difficult, he would be doing CLE activities and engaging in further study for medical entry examinations. As I have indicated, Mr Azizi would become eligible to apply for re-registration in Australia as early as July next year.
ISSUES
The Tribunal will now address the issue of character, which is essentially the issue that needs to be determined in respect of this application. The respondent has argued that the applicant's credibility was clearly called into question in the NCAT proceedings. I do think that that clearly is the case, but I am also mindful of the fact that whilst NCAT found and determined that the applicant's conduct fell well short of the required standard of a doctor, there were no conclusive findings of the applicant having engaged in the trafficking or sale of the restricted drugs. It is clear, and the applicant admits, that he did also attempt to minimise and be untruthful in respect of matters with investigators. The applicant now says that all of this behaviour can largely be seen as being part of the whole addictive process and its sequelae playing out up to and until the conclusion of the NCAT proceedings and the de-registration, making him ineligible to apply for re-registration for a period of three years.
I can well imagine the salutary effect of the NCAT decision. I am also mindful of the fact that there has been no evidence of any actual harm being caused to any member of the community or any patients of Mr Azizi. Whilst there was the potential for harm in terms of the effects of the medication on clear thinking and the like, there certainly is no evidence that there was a demonstration of any harm having occurred as a result of Mr Azizi's independence on OxyContin. It was submitted by the respondent that, in terms of character, one of the matters that the Tribunal should take into account is the risk to the community in particular, and in a semi-fiduciary sense, to a possibly vulnerable group of the community, namely medical patients, which might result from unclear thinking whilst taking such medication should Dr Azizi relapse or repeat taking such medications.
However, in terms of prognosis, it is notable that the NCAT decision was handed down in July 2016, and whilst two years have not lapsed, it is not very far off it. I am also mindful of the fact that there is no evidence other than that the applicant's addiction to OxyContin has ceased in late 2013, more than four years ago, and even having regular urine tests to check, as required, with no positive results, he then continued to undergo urine analysis on a voluntary basis so he would be in a position to demonstrate to authorities that he was not using the drug. Mr Azizi impresses me with his intent to remain drug free, and that is of no surprise having considered what the results and consequences have been to him.
There are a number of unresolved issues that arose in the proceedings. As previously mentioned, there was a question of the quantity of tablets which Mr Azizi obtained and what happened to them precisely. There was also a question that arose in the NCAT proceedings of a loan made by the applicant to a friend of his of some $20,000, which the applicant said in NCAT he loaned temporarily to the friend to assist him with the cost of his friend's son's wedding, which despite attempts by the applicant, was not repaid and any debt denied by the friend. This was at a time when the applicant had considerable credit card debt and a personal loan. Nonetheless, those moneys seem to have come from the applicant's bank account, and I am uncertain as to what the forensics of it were, but it certainly did raise some questions in the minds of the members of NCAT.
No findings were ultimately made about these matters by NCAT, and I will refer again to the excerpt passage contained in the NCAT decision. In other words, that the evidence fell short of establishing anything other than that there were credit issues raised and in terms of the applicant’s dealings and information provided by him to authorities when his conduct was called into question in terms of his use of OxyContin and the scripts.
LEGISLATION
The relevant legislation is the Migration Act 1958 (Cth) (‘the Migration Act’). Section 501 deals with the refusal of an application for a visa on character grounds. Subsection (1) 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.
There is a notation that:
Character test is defined in subsection (6).
Subsection (6)(c) provides that:
For the purposes of this section, a person does not pass the character test if:
…
Having regard to the person’s past and present criminal conduct and/or where the person’s past and present general conduct.
It was, more particularly, with regard to the applicant’s past conduct that the delegate of the Minister was not satisfied that the applicant passed the character test. There was some argument, which arose in relation to the timing of correspondence and referencing to the Act, of notifications to the applicant in terms of an intention to refuse his visa application and to the actual refusal, with the argument from the applicant’s representative being that possible irregularities in the procedure negated the decision to refuse the applicant’s application and to have wrongfully, therefore, taken into detention. The effect of the refusal being a cancellation of any visa that he presently had.
I do not think anything really turns on this because I am not sitting on an appeal of the decision made by the delegate but rather I am in the position of examining the matter afresh and providing the correct and preferable decision.
There was also some argument in the course of the proceeding about the directions made earlier by the Tribunal and compliance in respect of those directions, and I made rulings at the time and abide by those rulings.
If having regard to the applicant’s past and present criminal conduct, and/or the person’s past and present general conduct, a conclusion is reached that person is not of good character, then the application for the visa is refused. As previously stated, the applicant has no criminal convictions, either in this country or abroad.
Ministerial Direction 65
Direction 65 elaborates on and clarifies what is involved in terms of character; that is contained in section 2 of Annexure A to Direction 65, which is a direction made pursuant to the provisions of section 499 of the Migration Act. Section 2 is headed ‘Application of the character test’. The direction is to provide guidance to decision-makers when examining the question of character. The particular reference is paragraph 5 of section 2, which is headed ‘Not of good character on account of past and present criminal or general conduct’. Subparagraph (3) of paragraph 5 states that:
In considering whether a person is not of good character, all of the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.
There is reference to the decision of Godley v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 where Lee J said at [34] where the words of ‘good character’ means:
Enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character
Subparagraph (4) of paragraph (5) states that:
In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction or have been involved in recent general conduct which would indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a length of enduring moral quality that outweighs any consideration on more recent good character.
There are further passages quoted in the Direction from the decision of Lee J in Godley. In Godley, there is reference to the necessity to pay due regard to recent good conduct. Paragraph 5.2 deals specifically with past and present general conduct. This is explained in subparagraph (1) as the past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence. Subparagraph (1) of paragraph 5.2 states:
The relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
Subparagraph (2) indicates that:
There are factors to be considered in determining whether a person is not of good conduct.
The factors deal with particular matters which would apply in different situations. There is reference in subparagraph (6) to the risk in regards to future conduct. In subparagraph (1), it is stated that:
A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia there is the risk the person would engage in any of the conduct specified in section 501(6)(d).
Section 501(6)(d) has no particular application in the current matter. Subparagraph 6.1(i) indicates that:
A person does not pass the character test if, in the event that the person were allowed to remain in Australia, there is a risk that the person would engage in criminal conduct, that is, in contact in respect of which a criminal conviction could be recorded.
There are various other paragraphs which deal with specific matters such as sexual abuse of children, crimes under humanitarian law, national security risk and matters with regard to certain Interpol notices. Generally, one needs to fall back on the well-established and general consideration of the matrix of an applicant’s past and present general conduct to determine whether or not they are a person that does not pass the character test. Reference is made in Discretion 65 which draws on what was said in the case of Godley. It was submitted by the applicant that in order to fail the character test an applicant would have to offend both in respect of past conduct and present conduct so that if the person’s conduct was reasonably good, then past conduct alone would not be sufficient. I consider, however, that it is a matter of balancing past and present conduct in an overall assessment to determine if the person fails the character test.
As stated by Lee J in Godley at [61]:
The question the Minister had to determine was whether the applicant was at the time of the decision, a person not of good character. In making that determination the Minister had to have regard to not only past conduct, general or criminal, but present or recent conduct, whether general or criminal, and to circumstances relevant to the ascertainment of qualities of character to determine whether the applicant lacked such moral qualities so that it could be found as a fact that he was a person of not good character.
At [68], Lee J goes on to state:
Other matters identified under the heading “Character Test” in the recollected reasons that may be said to be elements of past and present general conduct, were matters that may have provided some information as to the existence of enduring moral qualities but a determination that the applicant was a person not of good character required more than mere reference to those events. The Minister had to look at the totality of the applicant’s circumstances and assess whether the events relating to visa applications he had made, illuminated the true character of the applicant.
CONSIDERATION
In reviewing the entirety of the evidence in this case, and the applicant’s conduct, the following matters are relevant. Firstly, the applicant is now 36 years of age. In terms of matters in respect of which he has fallen short in those 36 years, is the period from March 2013 to the end of the year 2013. Balanced against that period of indiscretion are these matters. He was an extremely high achiever at school. He has demonstrated a clear ability to work in busy hospitals and to conduct himself most successfully as a caring and warm, as well as competent, general practitioner. His abilities have also recently been demonstrated by the achievement he attained in the medical entry examinations for the United States of America.
The evidence of the practice manager of Mt Kuring-Gai Medical Centre, together with evidence of some patients, as well as the evidence of the pharmacist from the chemist shop adjoining the practice, attests to his ability and character overall. It cannot be denied that his character slipped in 2013 to a very significant degree. To my mind, it was not so much his addiction to OxyContin but the fact that that escalated and developed him into being untruthful with authorities who were carrying out their functions of investigation. It reflects very poorly in terms of the applicant’s past character performance. Also, there existed the suspicions that I have referred to that arose out of the investigation matters which were never completely resolved but, on the other hand, were not proven in terms of definitive wrongdoing.
Against this background of his current age, he is very impressive, not only his career but for the period of his addiction and the matters arising out of the investigations relating to this addiction. He appears to be a most commendable person, that is, he has demonstrated himself to be, in my view, a person of good character, both in the past and in the present if one excises the matters relating to the addiction. Both before and after, I believe he has demonstrated good character. The question then arises as to what effect that period of aberration has on the assessment as to his character because it is, without doubt, that during that period, the applicant could not be described as being a person of good character.
However, the character test in relation to a person’s past and present general conduct is to be balanced and for all matters to be taken into consideration. The reference in s 501(6) refers to:
Regard being had to the person’s past and present general conduct.
It does not say having regard to the person’s past bad conduct and then present general conduct. It is, rather, a reference to the entirety of the applicant’s past; that is, the applicant’s past is not just isolated to that period of inappropriate conduct in 2013 but is to be viewed in terms of his entire past, including his application to his school studies, his work in hospitals in Australia, his general reputation and the regard in which he appears to have been held. His past also includes the period of the inappropriate conduct.
In terms of present conduct, I would regard that as being applicable, particularly to the applicant’s conduct since the events of the offending conduct. In this case, it is to be noted that, firstly, the applicant appears to have overcome his addiction and that appears to have been achieved by force of will and the situation in which he found himself, as much as anything else.
Whilst his involvement in rehabilitation has not been extensive, he has come under the watchful eye of specialist doctors and he has, the Tribunal would accept, involved himself in the program for doctors in recovery. He has demonstrated his considerable abilities and acceptance as a general practitioner in the Mt Kuring-Gai Medical Centre. His extensive urine testing has indicated no relapse. The Tribunal would consider that his prognosis, not from a medical view but from a general perspective, is rather good. There is no guarantee that a community could be satisfied that there is not a possibility of relapse but that just does not seem to be a strong possibility at this point.
He is in a, what would seem to be, a stable relationship. He has not just thrown in the towel, as he indicated. He has been studying for the American Medical examinations. He has been engaged in some rehabilitation. He continued with urine testing and intends to apply to get his medical registration back, even subject to conditions that he continue with urine testing and be prohibited from prescribing drugs of a class which would include something like OxyContin. It is comforting to know that the applicant’s practice, should he be permitted to do so as a doctor, will be monitored by the medical body, or bodies, and that his conduct will be subject to scrutiny and satisfaction. He has, as the Tribunal has indicated, become involved in Christian activities and been involved in Centre of New Life, Sydney.
To the extent that the applicant did not demonstrate the elements of good character during that period in 2013, he appears to have made real efforts with reform and to put his life back on track.
Weighing considerations with regard to all of his past and his present general conduct, the Tribunal concludes that the applicant does pass the character test and should not be regarded as a person not of good character. Accordingly, the decision of the Tribunal is that the applicant does not fail the character test as outlined in s 501(1) of the Migration Act.
In conclusion, were the Tribunal to have been of the opinion that the applicant did not pass the character test, then there would be a discretion in Direction 65, to be exercised, not to refuse a visa, even though the applicant did not meet the requirement of the character test, part B of Direction 65, which contains both primary and other considerations, would have been applicable had the applicant been regarded as a person not of good character. The matters referred to in part B relate in terms of primary considerations to the protection of the Australian community, the best interests of minor children in Australia, in which there are none in this case, and expectations of the Australian community. With regard to the protection of the Australian community, the nature and seriousness of conduct to date is relevant, as is the risk, should the non-citizen commit further offences or engage in other serious conduct. As the Tribunal has indicated, risk to the Australian community, and the community’s tolerance to that risk, are matters which are relevant under Part B. These do not apply to this case.
Were that to apply, I am mindful of the fact that there has not been any evidence that there was any actual harm caused to patients, or others, by Mr Azizi’s conduct but the Tribunal does consider that there had been the potential for that during that period in 2013. Given the period of time that has now lapsed, I would not conclude that there is any significant risk posed at the present time of harm being caused by Mr Azizi. Direction 65 contains general principles, which are set in the preamble, which would be applicable.
The matter of approval, or otherwise, of a visa sought by the applicant is a matter for the respondent, however, as I have determined, it should not be the case that the applicant be regarded as a person not of good character.
DECISION
The Tribunal sets aside the reviewable decision of the Minister for Immigration and Border Protection dated 11 October 2017 and remits the matter for reconsideration upon the basis that the Applicant passes the character test in s 501 of the Migration Act 1958 (Cth).
I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
.................................[sgd]...................................
Associate
Dated: 23 March 2018
Dates of hearing: 12-14 February 2018 Solicitor for the Applicant: Mr L Jacob, Sydney Immigration Law Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers
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