Iordanishvili and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1339
•9 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1339
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/1106
GENERAL ADMINISTRATIVE DIVISION ) Re ZURAB IORDANISHVILI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date9 December 2004
PlaceMelbourne
Decision The decision under review is affirmed.
[The Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration - visa cancellation - conviction for intentionally causing serious injury - knife attack upon wife - applicant suffering mental illness - risk of recidivism - hardship to applicant - decision under review affirmed.
Migration Act 1958 - ss499, 500, 501
Aksu and Minister for Immigration and Multicultural Affairs (2001) FCA 514
Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 201 Chappell in Serevi and Minister for Immigration and Multicultural Affairs (1999) AATA 884
R v Tsiaras (1996) 1VR 398
Jupp and Minister for Immigration, Multicultural and Indigenous Affairs (2002) AATA 458
REASONS FOR DECISION
9 December 2004 The Hon C R Wright QC., (Deputy President) A. Background
1. This is an application under s500 (1)(b) of the Migration Act 1958 (“the Act”) to review a decision of the Minister’s delegate cancelling the applicant’s Sub-class 801 (Spouse) Visa issued to him on 30 April 2001, pursuant to s501(2) of the Act.
2. The applicant is currently serving a term of imprisonment at the Port Phillip Prison in Victoria and consequently his application requires a decision by the Tribunal within a period of 84 days after the day on which the applicant was notified of the decision as prescribed by s500 (6L) of the Act. The 84 day period expires on 10 December 2004.
3. The applicant, a citizen of Georgia, was born on 23 September 1970. He arrived in Australia on 20 October 1996. Prior to this he had spent 3 years in Greece where he coached participants in the sport of fencing. He was a well known and skilful fencer in his native country and came to Australia with the primary purpose of honing his skills sufficiently to gain selection in the Australian Olympic fencing team and to continue fencing coaching as a full-time occupation in Australia.
4. To this end he made application for a Sports visa with the assistance of Ms Sofia Kalogeropoulos, a solicitor specialising in immigration law. In January 1998 the applicant and Ms Kalogeropoulos commence a relationship and a year later on 23 January 1999 they were married. In September 2000 they jointly purchased a house in Coburg.
5. Between January and May 2001, the marriage had begun to deteriorate and the couple had several heated arguments about financial and other matters. The applicant expressed a wish to return home to Georgia and in April 2001 purchased a one-way air ticket to Tbilisi. However, at the last moment, when he was waiting to board the flight in Sydney his wife spoke to him by phone and persuaded him not to leave. He returned home to Coburg, but the relationship with his wife did not improve and, indeed, continued to deteriorate.
6. Eventually it was agreed between them that the applicant should return to Georgia and a ticket was purchased for his departure on 4 June 2001.
7. On 19 May 2001 an argument developed during which the applicant seized a kitchen knife and stabbed Ms Kalogeropoulos 9 times causing her very severe injuries to the upper body necessitating urgent medical attention and surgical intervention. Her injuries were life-threatening.
8. The applicant was arrested and charged with attempted murder and intentionally causing serious injury. The attempted murder charge was subsequently abandoned and, on 26 March 2002 he pleaded guilty to the crime of intentionally causing serious injury. He was sentenced by Justice Coldrey in the Supreme Court of Victoria to a term of 7 years imprisonment with a non-parole period of 3 years, 6 months.
9. He is still serving that sentence and could now be considered for parole. He has requested postponement of that process until the present review has been conducted.
B. Legislation and Ministerial Direction
10. Section 501(2) provides that the Minister may cancel a visa granted to any person if he reasonably suspects that that person does not pass the “character test” (defined in subsection 6) and that person does not satisfy the Minister that he does pass the test. A person does not pass the character test if (inter alia) the person has a “substantial criminal record”. A person has such a record if he has been sentenced to a term if imprisonment of 12 months or more.
11. Plainly the applicant in the present case does not pass the character test and his visa may be cancelled. However this is not an obligatory outcome. There is a residual discretion residing with the Minister as to whether or not the relevant visa should be cancelled. The question whether or not that discretion should be exercised favourably to the applicant is the central issue in this review.
12. On 23 August 2001 the Minister issued Direction No. 21 under the provisions of s499 of the Act. This direction requires decision-makers acting under s501 and considering whether or not to exercise the discretion favourably to an applicant to have regard to a number of “primary” and other factors in that process. Subject thereto, as explained in Aksu and Minister for Immigration and Multicultural Affairs (2001) FCA 514 and subsequent decisions of the Federal Court, the relevant discretion is unfettered.
13. The applicable “primary” considerations are (a) the protection of the Australian community and (b) the expectations of the Australian community.
Other considerations include:
(a)the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
(b)genuine marriage or de facto relationship to an Australian citizen;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(d)family composition of the non-citizen’s family;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)…
(g)…
(h)any evidence of rehabilitation and any recent good conduct.
(i)whether the application is for a temporary or permanent visa;
(j)the purpose and intended duration of the entry or stay, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past about conduct that brought him or her within the provisions of the Act permitting deportation or visa cancellation or refusal.
C. The Primary Considerations
Part I:
14. In considering the protection of the Australian community it is obvious that one must take account of the seriousness of the applicant’s conduct, the likelihood of its repetition and the prospect that visa cancellation may deter similar criminal violence by other visa holders and visa applicants.
15. The seriousness of the conduct requires consideration not only of the gravity and status of the conduct in the hierarchy of violent crime from an objective standpoint, but also the circumstances surrounding the commission of the offence, including the mental competence of the applicant. In accordance with Direction 21, paragraph 2.6(f) the criminal violence now in question would be viewed by the Minister as “very serious” and; having regard to the effects, both immediate and long term upon Ms Kalogeropoulos’ health, both physical and mental, there can be little doubt that this is a fair and appropriate prima facie characterisation of the applicant’s conduct.
16. In sentencing the applicant Coldrey J said:
“On Ms Kalogeropoulos’s account, you were subsequently walking down the hallway towards the back of the house towards where your car was packed and she was following you. When You reached the kitchen area you turned around, grabbed her hair and starting punching her in the head and face. On your wife’s account, she said or did nothing to cause you to explode into violence. She describes you as, in effect, raining blows upon her as if you were in a frenzy. When she tried to protect her face with her hands, you pulled them away. The blows were painful and she became dizzy. Her efforts to escape were frustrated by your holding on to her jumper. You dragged your wife towards the kitchen sick, stating that you would kill her. In the ensuing struggle her jumper and T-shirt came off and the kitchen table and chairs wee displaced. At the sink area you retrieved a black handled steak knife with a 10 centimetre serrated edge blade. Your wife described herself as screaming hysterically and pleading with you to let her go. You lunged at her with the knife, stabbing her in the region of the right breast. You stated, “I am going to kill you. We’re both going to die. That’s it”.
By this stage you had released your grip and your wife describes you as walking around her methodically poking the knife into her body. She received nine stab wounds and she estimates this portion of the incident to have lasted about two minutes.
The medical evidence from various sources, including ambulance officers, Dr Alastair Meyer, the Deputy Director of Emergency Medicine at the Royal Melbourne Hospital where your wife was admitted, and Dr Sean Clark, the Forensic Medical Registrar at the Victorian Institute of Forensic Medicine, who examined your wife on 23 May 2001, reveals numerous bruises to Ms Kalogeropoulos’ chest, back, upper limbs, head, neck and face. Additionally there were multiple stab wounds. In summary, there were three stab wounds to the apex of the left shoulder and one adjacent to the neck, occasioning damage to the cervical and thoracic nerves penetrating the top of the left lung causing a pneumothorax (i.e. air in the pleural cavity). Those wounds also caused damage to the left brachial nerve system, (i.e. the nerve system serving the left arm). Another stab wound was to the regional of the right breast which also penetrated the apex of the right lung causing a pneumothorax. Additionally, there was a stab wound to the back of the left shoulder, two stab wounds to the lower left back and one to the lower right back. According to Dr Clark, the injuries to the left neck and right chest were life-threatening.
The multiple wounds caused considerable blood loss but your wife, nonetheless, attempted to leave the house. You barred her way and, feeling very weak, she lay down on the kitchen floor. She asked you to call an ambulance but you refused. You told her, among other things, that she was going to die there. Your wife describes you as pacing up and down. You washed the knife and placed it on the kitchen table. At about this time your wife started to scream to attract attention. You became agitated, put your hand over her mouth, and told her not to do so.
It is clear that you made no further attempt to attack her. Your wife asked for a drink of cordial which you made for her and assisted her to drink. Later you brought her water, the cordial having run out. You complied with her request to get her a pillow as well as a towel to stop the bleeding.
Eventually you agreed to call an ambulance, but only after your wife told you that she would say that her injuries were the result of an accidental fall in the bathroom. This was the account you peddled to the Emergency Services operator, although you cannot have had any real expectation that this version of events could be sustained. You told the operator that your wife was bleeding from the chest and to come quickly. You gave the correct address. When the Emergency Services rang back wanting to speak to your wife, you obtained her mobile phone for her so as to enable that conversation to occur. Thereafter, you waited in the house for police and ambulance to arrive. The police evidence was that you were in a very emotional state and crying. You repeatedly requested to see your wife, expressing concern about her wellbeing and regret at having hurt her.
There could be no doubt that Ms Kalogeropoulos underwent a terrifying ordeal, stemming not only from the attack itself, but also from her fear that it may resume at any time and her anguish that she may die from the wounds already inflicted.
Your own behaviour at the scene appears to have been contradictory and irrational. Having savagely attacked your wife, you ultimately provided personal assistance and sought outside help for her. This conduct may be regarded as some evidence of contrition.
It is important to indicate the ongoing effects of this offence upon the life of Sofia Kalogeropolous. In a Victim Impact Statement, Ms Kalogeropolous, who is now 30 years old, eloquently sets these out.
On the purely physical level, Ms Kalogeropooulos underwent emergency surgery and was hospitalised for 12 days, including 4 days in the Intensive Care Unit. Treatment of the injury to the left brachial plexus nerves involved the surgical breaking of the clavicle. There were complications in the healing process and three further operations, including bone and skin grafts and the insertion of a new – but temporary – metal rod occurred in October 2001. A legacy of this injury is significant weakness and loss of sensation and function in the left shoulder, arm and hand, as well as pain and discomfort. The impact of this injury upon Ms Kalogeropoulos is greater because she is left-handed.
Further, the scarring occasioned to Ms Kalogeropolous. Not only makes her feel unattractive and self-conscious, but constitutes a constant reminder of this attack.
Apart from the financial impact of this offence, such as sole responsibility for mortgage payments, the requirement to take unpaid leave for medical purposes, the psychological effect has been most traumatic. For example, Ms Kalogeropolous’ interaction with males and friends generally has been adversely affected, she feels hesitant about the prospect of living alone and frustration and anger at the pain and physical limitations she experiences in her left arm. Moreover, in a report by Dr Des Mouratides, a psychiatrist who has been treating Ms Kalogeropolous, he expresses the opinion that she is currently suffering from a post-traumatic stress reaction as well as major affective and panic disorders.
This was a serious offence. It was perpetrated by you in what should have been the sanctuary of the victim’s home and it was terrifying in its nature and scope.”
Whilst his Honour did not specifically find that the applicant’s wife had been truthful and accurate in her account, both of the attack upon her and its consequences for her health, it is apparent that he accepted her account, and sentenced the applicant accordingly. It was submitted that I need not necessarily accept all of the sentencing judge’s findings when passing sentence and, whilst there may be some substance to this proposition, I have no hesitation in accepting what His Honour said in the passage reproduced above as the appropriate and proper findings to making in this matter.
17. I heard evidence from both the applicant and Ms Kalogeropolous during the Tribunal hearing on 24 November 2004. She is still emotionally distressed and physically handicapped as a direct result of the applicant’s attack upon her. The applicant and his wife have not spoken since the attack and are now divorced. She believes she will not be safe from him once he leaves prison, if he is allowed to remain in Australia. She points out that although he may presently intend to leave Melbourne and live with relatives in Sydney this would constitute no real impediment to him if he sought to pursue and harm her again. She was clearly distressed in the witness box. Her statements (Exhibit R2 and R3) are consistent with her evidence as to the extent of her injuries and the magnitude of her psychological trauma. I have considered the evidence given by the applicant contained in his statement (Exhibit A7), the Interview Record (Exhibit A8) and his oral testimony with care. He was criticised for causing for causing his solicitors to write and (inter alia) asking her to adopt a balanced and moderate tone with her claims and allegations to the migration authorities. Ms Kalogeropolous saw this as some kind implied threat, but in light of the applicant’s explanation I cannot regard it as such. Nor do I see any reason for being critical of the applicant in writing to his former wife on other occasions. The applicant speaks English fluently now and is plainly intelligent. I agree with Dr Senadipathy’s assessment that he has insight into his condition. It is not surprising that he and Ms Kalogeropolous would give somewhat divergent accounts of their relationship. I accept that their marriage was genuine. For reasons given hereafter I do not accept that the applicant would have major difficulties in resettling in Georgia.
18. Against these considerations the applicant asks me to bear in mind his mental state, both at the time of the offence and also at the present time. Reference was made to passages in the judgment of Finkelstein J in Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR @ 201 and the decision of Deputy President Chappell in Serevi and Minister for Immigration and Multicultural Affairs (1999) AATA 884 @ paragraphs 90 and 94, to reinforce this argument. On the basis of these authorities as well as general principles it is plain that an offender’s mental state must be carefully considered and taken into account in assessing (inter alia) the nature and gravity of the criminal conduct.
19. The report of Dr Barry-Walsh dated 3 February 2001 (Exhibit A14) states:
“There is good evidence that this man had a mental illness at the time of the offending. There is further reason to believe on the basis of witness statements and his history that at that time he may have been delusional.
What is clear is his description of disturbance of mood, associated with feelings of homesickness and unhappiness in his marital relationship. This in itself has general conflict, which exacerbated his unhappiness. At some point he has developed a suspicious and persecutory thinking. His description of his experiences and the manner in which he justifies those hints at the development of delusional thought. However it may represent a combination of post hoc rationalisation and the kind of suspicious and highly self-referential thinking that may be generated by depressed mood, particularly in someone with a personality predisposed to thinking in such a fashion. This notion is supported by the history given by staff at Port Phillip where he was diagnosed with depression but without obvious psychotic features.
..
However this man had a mental illness and there is some nexus between the illness and the offending. He was depressed and developed markedly suspicious and persecutory beliefs that may have been delusional and certainly influenced his behaviour rendering him more irritable and prone to anger. This combination of depressed mood and distorted thinking thus was a significant contributing factor in the subsequent offending.
Currently he is not undergoing any psychiatric treatment and he would prefer to keep things this way. Therefore at this time there is no requirement for ongoing psychiatric treatment. However, given the history of mental disorder around the time of the offending, there remains distinct possibility that this man could relapse. At such a time he would require further psychiatric treatment.”
20. Dr Senadipathy, the consultant prison psychiatrist at Port Phillip Prison who also gave evidence by telephone during the hearing, said this in his report of 23 October 2004 at page 3 (Exhibit A19):
“Mr Iordanishvili had suffered from depression and paranoid disorder triggered by accumulated stress in his personal live described in the body of the report. He has improved significantly and is functioning at a very high level. Further imprisonment including that in a detention centre would not be of any help to his wellbeing.
He is not at risk of re-offending. His aggression took place under extreme conditions while he suffered from undiagnosed mental illness that was triggered by multiple psychosocial factors arising from his domestic situation and social isolation.
He is compliant with medication and would continue to improve when he is free to work towards normalisation of his life. He has a very good prognosis. However, it is important that he remains on medication and his mental health monitored by a psychiatrist after release from prison. I am not confident that this could be achieved successfully if he returned to Georgia.”
21. It is clear that the applicant was depressed at the time of the offence and there is reason to think that he was probably paranoid and possibly delusional as well. These conclusions are supported by Ms Kalogeropolous’ own observations of the applicant’s conduct before the attack. Consequently it would be correct to say that the applicant’s moral culpability was somewhat diminished at the relevant time. However, he was not insane in the McNaghten sense and he was adjudged fit to plead, and did plead guilty to the crime charged. His claim to police that he had not intended to harm his wife cannot be accepted and is contrary to his plea of guilty.
22. Of more concern in the context of the exercise of the discretion is the question of his present mental health and, even more importantly, the prospects of his redeveloping mental problems which could predispose him to the commission of further violent crime against either his wife, or other persons whom he may regard as plotting against him or causing him disadvantage. This is the second issue which calls for assessment under the first primary consideration.
23. The applicant submits that the Tribunal should conclude that he is not at risk of re-offending and relies heavily upon the opinion of Dr Senadipathy t sustain this view. Dr Senadipathy agreed that this assessment is based upon his acceptance of the applicant’s statement that he is contrite and remorseful and has no animosity towards his former wife. Dr Senadipathy first met the applicant when he was on remand in 2001 and has seen him on a number of subsequent occasions. Dr Senadipathy expressed the opinion that at the time of the commission of the offence, the applicant was in a dissociated state, but this view seems to be at odds with the opinion of Dr Barry-Walsh in Exhibit A14. Dr Senadipathy also stated that after the commission of the offence the applicant showed “immediate remorse”, but this is an assessment which is inconsistent with the evidence of Ms Kalegeropolous and the implicit findings of the sentencing judge. The remorse shown by the applicant seems to have become evident only after the police had become involved.
24. Dr Senadipathy also gave evidence that the applicant had spent most of his time in the St Paul’s unit being treated for depression while in Port Phillip Prison on remand. St Paul’s is the psychiatric treatment centre attached to the prison. After sentencing he was transferred back into the general prison environment. Later (exactly when is not clear), he was transferred to Fulham Correctional Centre “where he became paranoid about the intention of other prisoners and his mental condition deteriorated”. He was then transferred to Melbourne Assessment Prison followed by the Thomas Embling Hospital on 21 May 2004. On 14 July 2004 he was sent back to the St Paul’s unit.
25. In is oral evidence Dr Senadipathy said that the applicant had “valid reasons to become paranoid” at Fulham. I understand him to be referring to the behaviour of other prisoners towards the applicant as constituting these “valid reasons”. Dr Senadipathy was of the opinion that having genuine cause for apprehension or suspicion about the conduct of others could properly be termed “paranoia”. Dr Senadipathy said:
“At time of his relapse it is mostly, to a certain amount of what we call the prisons paranoia, because a lot of – he – inside the prison system they have all the valid reasons to become paranoid about each other for petty incidents that happen, and he did feel a couple of times paranoid and got withdrawn into depression. But he was – never exhibited any anger, hostility or violence towards other people. He has always spoken about it to us, that is nurses and the doctors, about it, and we have managed that anxiety at that time.”
26. Be that as it may Dr Senadipathy’s view was that the applicant had redeveloped paranoia and required treatment including long term medication to manage his condition. At the time of his redeveloping paranoia in May he had ceased taking the medication originally prescribed for him on remand.
27. As Dr Senadipathy said in his report of 23 October 2004 (see paragraph 20), the applicant needs to remain on such medication (twice daily) to have his mental health regularly monitored by a psychiatrist once he leaves prison.
28. Dr Senadipathy in responding to questions asked of him while giving oral evidence said that the applicant’s current symptoms free status was a product of both his medication and his environment. He agreed that the applicant was not cured of his mental illness although the symptoms were no longer manifest. He said the applicant had skills and insight now which enabled him to understand his emotional state and circumstances. Dr Senadipathy was asked how the symptoms of the onset of paranoia would become manifest to an untrained observer so that a friend or relative may be able to recognize the commencement of a relapse and ensure that the applicant received professional help before the condition became too florid. Dr Senadipathy said that the detection of such symptoms may be difficult for someone without experience.
29. He was also asked whether patients who are developing paranoia willingly accept medical intervention or do they tend to see this prospect as part of the “plotting” against them. Dr Senadipathy said that in the early stages of paranoia, patients who have insight into their condition are usually not resistant to such help, but if the illness has progressed they may well decline necessary assistance.
30. Dr Senadipathy was also asked what circumstances are likely to reawaken symptoms of paranoia psychosis in a person with that propensity. He was asked if a highly emotional confrontation with an aggressive or assertive spouse may have that effect and he agreed that it could happen in an “extreme” situation, but he prefaced this opinion with the comment that “It is difficult to me to predict that sort of hypothetical situation”. This to my mind indicates the problem with his earlier assessment that the applicant posed “zero” or “nil” risk to his former wife. With all respect to Dr Senadipathy, I feel that, having heard the evidence in this case, I too am in a position to assess “risk” in the current circumstances, and my view is that the applicant may well pose a significant risk to the safety of others when released. Undoubtedly, the mechanisms suggested and the medication planned and the applicant’s apparent progress whilst in custody tend to moderate the risk, but nonetheless the risk problem endures and, in my view cannot be dismissed as “zero” or “nil” or non existent. It should be remembered in this context that, although the applicant and Ms Kalegeropolous have divorced, he could well remarry or form a new relationship within Australia if permitted to remain in this country. In such circumstances the potential for stress and conflict is obvious.
31. Dr Senadipathy claimed that he had read the comments or findings of Justice Coldrey upon passing sentence, but it was apparent to me that his principal source of information as to the applicant’s demeanour and behaviour before, during and immediately after the attack was the applicant and this version was more favourable to the applicant than it would have been upon a more objective view of the circumstances. This is a matter of some significance because it is clear from Dr Senadipathy report that his assessment that the applicant presents “no risk” of re-offending is based in part upon his appraisal of the applicant’s behavioural and personality traits before the attack.
32. it is apparent to me that if the applicant were to miss, forget or abandon his medication he would present a significant risk of re-offending. Similarly if confronted with highly emotional circumstances of confrontation or perceived threat he could respond again with violence. Certainly these risks will be modified and controlled by assiduous adherence to the medication regime and his avoidance of confrontational events. I have no reason to doubt that he intends to keep taking his medication and it is apparent that his completion of an anger management and other courses in prison may help him to avoid risky confrontational experiences, but marriage is a long term intimate relationship and, as his experience with Ms Kalegeropolous illustrates (at least on his version of events) even reasonable behaviour and passivity on his part does not necessarily mean that explosive and acrimonious arguments may not develop. As they say, “it takes two to tango”. The matters identified in paragraph 2.9 of the Minister’s Direction No 21 are clearly relevant to these issues.
33. The applicant is currently living in a controlled, albeit unpleasant environment. He has had the assistance of spiritual counselling from Mary O’Shaunessy and Father Igor Filiavorosky, both of whom provided statements (Exhibits A6 and A4 respectively) and also gave oral evidence. Although Father Filiavorsky had psychology training when studying for the priesthood, I do not regard him as an expert witness. I regard the opinion he has expressed in paragraph 8 of Exhibit A4 as being of little weight. I regard the views expressed in paragraph 7 of Neville Knell’s statement (Exhibit A2) with similar circumspection. Opinions expressed as to the applicant’s likelihood of re-offending (admitted without objection) in statements by relatives of the applicant fall into the same category. It is understandable that all these people should seek to support and assist the applicant in his endeavours to stay in Australia and I have no reason to doubt the bona fides of any of them. His Sydney relatives offer a good support base for him if he should choose to avail himself of their proffered help, as he says he would.
34. In the final analysis however I entertain considerable misgivings about the applicant’s long term viability as a risk free member of the Australian community. Dr Senadipathy expressed the opinion that the applicant is not at risk of re-offending, without objection, but that is a value judgment based upon a synthesis of assumed facts and is as much within the province of the Tribunal as the doctor. It may indeed be argued that it is not the proper realm for expert opinion at all, as it is part of the cluster of ultimate facts which it is for the Tribunal to determine, but this issue was not debated and I have no concluded view on the matter. At all events I am of the opinion that there is a risk to the safety of members of the Australian community, including Ms Kalegeropolous if the applicant remains here.
35. I turn now to the question of deterrence as a component of the protection of the Australian community. In my opinion I should not take any account of the potential deterrent value to other would be violent offenders if the applicant’s visa were to be refused. It is a recognised principle of law that when sentencing a mentally disturbed offender for criminal violence, the prospective value of a sentence tailored to act as a deterrent to the public in general has no place in the sentencing process. The same principle is obviously applicable in criminal deportation proceedings. (See R v Tsiaras (1996) 1VR 398 @ 400).
Part II
The second primary consideration concerns the expectations of the Australian community. In Jupp and Minister for Immigration, Multicultural and Indigenous Affairs (2002) AATA 458, it was pointed out that the “community” envisaged by this consideration is that constituted by “middle of the road reasonable members …. who do not hold extreme views one way or the other”. More importantly perhaps Jupp also emphasised that such persons must be assumed to have knowledge of the evidence (I would prefer “facts”) “before” the Tribunal. This is never an easy test to apply. A “humane” approach to the applicant’s position is required. Obviously the two primary considerations are closely and inextricably interrelated. Before expressing a concluded view on this primary consideration I think it necessary to evaluate the other considerations relevant to this case, otherwise the required balance in assessing community expectations cannot be achieved.
36. I will deal with each consideration as listed in the applicant’s Statement of Facts and Contentions and mentioned in paragraph 13 above.
(a)I am unable to see that there will be any relevant disruption of the kind specified except to the extent that deportation would prevent the applicant furthering his sporting career as a fencing instructor in Australia. Having regard to his fame and prowess in Georgia before migrating to Australia, it is difficult to see why he would not have comparable prospects in Georgia if he returns to that country.
(b)This would be relevant if deportation would effectively break up a relationship with a wife or de facto partner. However the applicant’s marriage was in the throes of destruction when he committed the assault on his wife and it has since ended in divorce. He has made overtures to her to re-establish their relationship, but these have been emphatically rejected. As already stated she lives in fear of his release.
(c)There were no children of the marriage. The wife’s situation has been described already. If deported he will lose the prospect of close contact with his Sydney relatives but will still be able to write to or phone them. Whether they have the capacity for e-mail contact is unclear. The applicant’s mother with whom he has a close continuing relationship is alive and lives in Georgia. She is aged 70 years.
(d)See paragraphs (b) and (c) above.
(e)Not relevant.
(h)There is clear evidence that the applicant has behaved well in prison and has undertaken several courses of instruction which have enhanced his skills and perhaps, his employability. Those who have known him are virtually unanimous in saying he has a kind and gentle character at the present time. Those who knew him before the attack on his wife say he was always like this (e.g. Vladimir Mikhaildi – Statement (Exhibit A13 paragraphs 2 and 3; Vlad Sher statement Exhibit A1 paragraph 3; Nadia Bondarevsky Statement Exhibit A3, paragraph 5). Reflection upon these assessments does not necessarily favour the applicant – it may be suggested that notwithstanding his apparently calm, respectful and gentle persona he was still capable of the extreme violence which landed him in prison. An opposing argument may be that the assault was very much out of character and must have been the consequence of severe stress or provocation.
(i)This is not directly relevant. The applicant has not applied for a visa. He has held a visa as Ms Kalegeropolous’ spouse. In terms it is temporary. Had the marriage survived it could have become permanent. If it were not to be cancelled on character grounds, resulting in deportation, a fresh visa may have been applied for. This issue was not canvassed in detail at the hearing and I do not see this consideration as having any weight.
(j)See (i)
(k)Inapplicable. There was no occasion for prior warning.
37. Documentary material was provided to the Tribunal prior to the hearing relating to the political situation in Georgia. Both counsel were familiar with it. This material was not tendered in evidence, but nonetheless I have considered it with a view to assessing potential hardship to the applicant if he were to be deported and returned to his homeland. However I find nothing in that material to persuade me that such problems relating to language, ethnicity, police brutality and corruption as have been referred to therein and in the applicant’s statement (Exhibit A7) and his oral evidence at the hearing would create or undue hardship if he were to return to Georgia. It should be noted that he lived in Greece for 3 years between 1993 and 1996. His mother is of Greek origin and he speaks “some” Greek. He has no Greek relatives, but residency in Greece with or without his mother may be available to him as an alternative to Georgia. His conviction in Australia may well preclude that option, but I have no evidence as to that.
E. Conclusion
38. Taking account all the matters discussed in these reasons, I have concluded that the Australian community would expect that the applicant’s right to live in Australia should be terminated.
39. In exercising my own discretion I have taken account of all matters discussed in the foregoing sections of this determination and I have reviewed the documentary evidence and the oral evidence given at the hearing. In my opinion my discretion should not be exercised in favour of the applicant. Consequently the decision of Minister’s delegate now under review is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 24 November 2004
Date of Decision 9 December 2004
Counsel for the Applicant Ms Georgina Costello
Solicitor for the Applicant Victoria Legal Aid
Counsel for the Respondent Ms Gretchan Bennett
Solicitor for the Respondent Clayton Utz
0
3
0