Labi and Minister for Immigration and Border Protection (Migration)
[2016] AATA 316
•17 May 2016
Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316 (17 May 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1073
Re
Peter Labi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Bernard McCabe
Date 17 May 2016 Place Brisbane The decision under review is set aside. In substitution, the Tribunal is satisfied the discretion in s 501(1) of the Migration Act 1958 (Cth) to refuse the applicant's visa on character grounds should not be exercised.
............................[Sgd]............................................
Deputy President Bernard McCabe
Catchwords
MIGRATION – partner visa application – refused on character grounds – s 501 character test – where applicant sent threatening text messages – breach of protection order – otherwise unblemished criminal record – whether applicant likely to engage in criminal conduct – whether there is a risk the applicant will harass or intimidate another person – low risk of engaging in criminal conduct – no application for applicant to appear by video-link – expectation that applicants and witnesses appear in person unless leave is granted – decision under review set aside
Legislation
Migration Act 1958 (Cth) ss 500(6H), 501(1), 501(6), 501(7)
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 33A, 39(1), 43
Cases
Kirby v Centro Properties Limited [2012] FCA 60; (2012) 288 ALR 601
Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152
Secondary Materials
Administrative Appeals Tribunal General Practice Direction cl. 4.54, 4.56
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancelation of a visa under s 501CA cl. 6, 8, 11, 12
REASONS FOR DECISION
Deputy President Bernard McCabe
17 May 2016
Peter Labi is a citizen of Papuan New Guinea (PNG). He was living in Australia with his partner and their young son until the relationship broke down and the partner moved out. She took out a domestic and family violence protection order against the applicant. Their son was also named in the final order. The order included a condition that the applicant “be of good behaviour towards the Aggrieved”. There is no evidence that the applicant was ever violent towards either his former partner or their child, but he was arrested on 21 April 2015 after he left a threatening message on her voice mail and sent a series of objectionable text messages. He pleaded guilty to a charge of contravening the conditions of the domestic violence order. The Magistrate imposed a fine of $750 and did not record a conviction. But that was not the end of the matter: the applicant was immediately placed in immigration detention. He has been there ever since.
The applicant was on a bridging visa at the time all this occurred. He was waiting for his Partner (Temporary) (Class UK) Visa application to be finalised. The application was lodged in 2013 but it was rejected by a delegate on 23 February 2016. The delegate found the applicant did not satisfy the character test in s 501(6) of the Migration Act 1958 (Cth) (the Act) – specifically, s 501(6)(d)(i) and (ii) - because there was a risk Mr Labi would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia
Mr Labi has asked the Tribunal to revisit the whole issue.
Getting Mr Labi to the hearing
Final hearings in the General and Other Division of the Tribunal are typically conducted in person. The parties and witnesses are expected to turn up and discuss their case with the member. But the Tribunal has the power in s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to give the parties and witnesses leave to appear by remote means – most obviously by phone or dedicated videolink, or by using conferencing software.[1] Where appropriate, the Tribunal may require that the person appear remotely rather than in person.[2] This power is an incident of the Tribunal’s general power to control its own proceedings (s 33) and is necessarily subject to the general obligation in s 39(1)[3] to:
…ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
The power is exercised having regard to the circumstances of each case, but in light of the Tribunal’s statutory objective in s 2A.
[1] The Tribunal may also dispense with a hearing all together and hear the matter on the papers if both parties agree: s 34J of the Administrative Appeals Tribunal Act 1975.
[2] Special arrangements apply in the Security Division.
[3] Special arrangements apply in the Security Division and the Social Services and Child Support Division: s 39(2).
The expectations with respect to telephone or video evidence are clearly explained in the Tribunal’s General Practice Direction, which says:
Telephone or video evidence
4.54 If you or the decision-maker would like a witness to give evidence at a hearing by telephone or video, a request must be made to the presiding member. Unless we allow otherwise, the request must be made in writing and must:
(a) set out the reasons for the request; and
(b) state whether the other party agrees to the request.
The member may decide to hold a directions hearing before deciding whether the request will be granted.
That procedure was not followed in this case. Mr Labi is being detained at a facility in Darwin. The Tribunal convened a directions hearing not long before the date of the hearing when it became apparent the respondent did not propose bringing Mr Labi to Brisbane. At that directions hearing, the respondent’s representative said it would be impossible for the applicant to be transported from Darwin to Brisbane for the purposes of the hearing. I was told it takes 3-5 weeks to arrange transport for a detainee. Those arrangements were not made, but it may be they were never contemplated. The representative explained the respondent had a policy of housing detainees in s 501 cases in Darwin (or on Christmas Island, which is even more remote) because these individuals had to be segregated from other detainees who had not been accused of a crime. I was also told the Darwin detention centre was the closest centre to the applicant’s home in Cairns.
I do not question or criticise the arrangements the respondent makes to house detainees. That is an operational matter for him. If the respondent says he will encounter unreasonable expense or logistical difficulty if required to bring an applicant before the Tribunal, the respondent is free to make a request for the applicant to appear remotely – although the cost and inconvenience ought to be described, rather than merely asserted. If there are security reasons which suggest a remote hearing is preferable, let that be said. But it should be said early on, preferably at the case management directions hearing which is ordinarily conducted soon after an application for review is filed. When making the request, the respondent should clearly identify what measures will be taken at the detention centre or other remote location to ensure the person will be able to fully participate in the hearing. The applicant must also have an opportunity to explain why the hearing should proceed in person, assuming that is what he or she prefers. The Tribunal will then undertake a balancing exercise and decide “what will best serve the administration of justice consistently with maintaining justice between the parties”: Kirby v Centro Properties Limited [2012] FCA 60 at [11] per Gordon J; see also Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544 at [11] per Flick J. In the absence of a direction under s 33A, the parties should expect the hearing will proceed in person. In that event, the respondent must make arrangements to convey the applicant to that hearing if he or she is being detained elsewhere.
A number of court cases have discussed the advantages of requiring a witness to appear in person for the purposes of cross-examination. In many of those cases, the witness has been reluctant to attend, most obviously because he or she was overseas. Not all of those considerations are relevant here. But the cases still offer important guidance. For example, Buchanan J explained in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 (at [78]) that seeing a witness in person:
…provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness.
Gordon J in Kirby (at [10]) cautioned that the circumstances of each application must be considered on their merits (and not, I would interpolate, on the basis of a fixed predisposition for or against taking evidence by video or other remote means). Amongst other things, her Honour suggested the court would typically consider:
·whether the credibility of the witness is in issue;
·whether the witness’ evidence will be “centrally important” to the case;
·whether the use of a video link may frustrate or delay the management of documents in cross examination.
All of those factors would have been relevant in this case. If I had the opportunity, I would have taken them into account when considering whether the applicant should appear by video-link.
The Tribunal’s procedures are generally more flexible than that of the court, and s 2A of the AAT Act requires that our mechanism of review be “accessible” and “fair, just, economic, informal and quick”. Those factors might be thought to count in favour of greater use of video technology in particular, and they do. But s 2A(c) also requires that the review be “proportionate to the importance and complexity of the matter”, while s 2A(d) requires that our review promote “public trust and confidence in the decision-making of the Tribunal”. Those matters might suggest a more cautious approach to the question in cases like this one. I will explain why.
The Tribunal is not a court, but its decision in a case like this is at least as significant as most court proceedings. I am required to make a decision as to whether the applicant must leave the country. To that end, I must make delicate assessments about his character and his propensity for further offending. Making judgments about what someone has done, and what they might do, can be challenging. That is as it should be: the applicant’s fate lies in the balance. Whatever I decide will change the whole course of his life, and perhaps that of his family. That family includes at least one Australian citizen. But depending on what I decide, the fate of other members of the community might also be affected. It would be a terrible thing if I were to decide the applicant should stay and he subsequently hurt a member of the Australian community. The public has every right to expect the power to cancel or refuse visas will be exercised deliberately and rigorously given what is at stake. I am not just concerned about being fair to the applicant, although that is obviously of critical importance. I need to give myself the best opportunity to see the applicant clearly so I can make the correct and preferable decision. That is an awesome responsibility.
It must also be recalled we are not dealing with a mere witness. We are talking about the applicant himself. If an applicant is represented, and his representative is unable to be with him at the remote location, he will have more difficulty giving instructions. If he is unrepresented, it may be more difficult for him to understand and engage with the process or question witnesses or read documents that he may not have in front of him. That is a particularly serious risk if he has a poor command of English. (It is important to understand the Tribunal does not have access to sophisticated, broadcast-standard technology. The video quality is not especially good. The applicant is unable to see the whole of the hearing room: he can only see who or what the camera is focused on at a particular point. At a minimum, that makes it difficult to follow an exchange between a legal representative or witness and the presiding member.) In this case, the applicant was able to retain a solicitor who appeared at the hearing. Mr Hadley, the solicitor, had planned to fly to Darwin to be with his client when it became clear the respondent had not arranged to bring Mr Labi to Brisbane. Unfortunately, given the short notice, Mr Hadley was unable to make what would otherwise have been a very expensive journey. He did his best to represent his client without the opportunity to obtain instructions during the course of the hearing.
The quality of “electronic communications equipment” is improving all the time. The Tribunal may become more inclined to permit a witness or party to participate remotely as the technology improves. There may be considerable cost savings in that event, although for now videoconferencing arrangements are not necessarily free. As the General Practice Direction points out at [4.56], “the costs of taking evidence by videoconference must be paid by the party who made the request”. The Tribunal must also take account of technical limits and reliability issues. The risk of technical problems is particularly worrying where hearings are scheduled (as this one necessarily was) just days before the statutory deadline for delivering a decision. In such a case, it may be difficult to make other arrangements if there is a technical problem that prevented an applicant from fully participating in a hearing from a remote location.
The risk and inconvenience associated with technical problems was amply demonstrated at the hearing. The start of the proceedings was delayed for an hour while the video-link was established. The link gave out unexpectedly part way through the hearing, which necessitated a further adjournment.
While I might have taken account of all these matters when deciding whether to give leave, I was not afforded the opportunity to do so. My hands were tied. I was able to adjourn the matter for a few days to give the applicant’s lawyer the chance to fly to Darwin, but I had no choice but to press ahead with a hearing by video-link because the statutory deadline was looming. The Tribunal should not have been left in that position. Given the time constraints, the request for the applicant to appear by video-link should have been made at the first directions hearing after the application for review was filed.
What happened?
Mr Labi first came to Australia in 2006. He was around 14 years of age at the time. He was a promising athlete; he was recruited by the Australian Football League and given a scholarship which he took up when he was around 16. He lived in Melbourne for two years and played for one of the football clubs there. He moved to Brisbane in due course where he met his former partner. They lived at her family’s home. Mr Labi said in his evidence that he was not comfortable with his partner’s family; he did not have a job during that period. He and his partner decided to move together to Cairns where he obtained work as a baggage handler at the airport. They had a child in late 2012.
Mr Labi was present in Australia on a number of different visas over time. In 2013, he applied for the partner visa. He remained in this country on a bridging visa while the application was processed. But the relationship with his partner began to deteriorate. They argued more frequently although there was no evidence of physical violence. His partner moved out with their son towards the end of 2014.
The applicant said he continued to see his son on a daily basis for several weeks after his partner moved out. But at some point in December 2014 there was conflict over the access arrangements for their son. Mr Labi said his partner was being difficult and insisted he call in advance. He said he was becoming frustrated and made repeated calls to her mobile number. He believes his partner then used the record of repeated calls as the justification for a temporary domestic violence order: exhibit one at p 142. The order was made permanent in January 2015. His son was also named in that order.
Mr Labi recalled his partner told him the order meant he was not allowed to approach her or go to her son’s school to see their son: exhibit one at p 143. He said he had to call her in advance to make an appointment, although he said she would deliver the boy into Mr Labi’s care when she wanted to go out. (At the hearing, Mr Labi said he felt he had no alternative but to comply because his former partner used his immigration status as leverage.) He recalled one incident in particular where she asked the applicant to look after their son. Mr Labi said he told her he needed to start a work shift in the early hours of the following morning. He recalled his boss had already cautioned him about changing shifts after he had tried to fit in with his former partner’s baby-sitting requirements. Mr Labi said he asked his former partner to be sure she returned in time for him to leave for work. She did not turn up until the following evening. He was irate, and he called her and texted her. It seems at least one of those communications was shown to the police, and may have prompted the police to visit him at his workplace on 21 April. He was thereafter taken into custody.
The Queensland Police court brief (exhibit 2) says the applicant sent his former partner a number of messages and left voicemail communications between around 29 January and 13 April. The brief recorded that police officers had inspected the former partner’s phone and saw messages “indicating that [Mr Labi] will hurt whoever she is with and threats regarding taking their son…out of this world with him.” A selection of the communications was set out in the brief. The applicant agreed he had said:
·On 5 April: “I will drive around Cairns and find you, and I will brutally beat whoever you are seeing or with.” (The applicant said in his oral evidence that he did not mean this literally: to begin with, he did not have a working vehicle, so he was incapable of carrying out the threat.)
·On 13 April at 9.45pm: “Just letting you know I have sleep or cheat on you course I still want you and my son back and HOPE your not cheating on me or sleeping around…love you two and have a good day tomorrow.”
·On 13 April at 10.27pm – after the former partner had messaged to say “We are not together…” - the applicant replied: “I will smash and destroy his face course I’m trying my best to see help and fix everything here.”
·On 13 April at 10.54pm, the applicant messaged: “I will take him and me away of this world.”
·On 13 April at 10.56pm, the applicant messaged: “I will go to the extreme to have my son with me when am gone in this world”.
The police brief noted the former partner was stressed by the messages and added “she fears that the deft intends to kill himself and his child”. A police officer notified the respondent of the charges. In his email, the constable told the liaison officer Mr Labi had sent messages “stating that he was going to kill their child and then himself”: email dated 22 April 2015 reproduced at exhibit 2. In a subsequent email that day, the police officer explained he had spoken with the former partner and said:
She advised that [Mr Labi] in (sic) likely to attempt to use the child as leverage to attempt to remain here. She has alluded to this in her provided statement how he has nothing to do with the child.
She also advised that prior to myself and my partner investigating this matter, she had attended the police station twice in the past few weeks, and had been turned away by officers who advised there was nothing they could do. This is not just an isolated incident, she has been quite consistent in attempting to report this matter for the safety of herself and her son.
Some of this evidence is puzzling. To begin with, the applicant has given uncontradicted evidence that he was living with his former partner and son up until the point she moved out. He also gave uncontradicted evidence that he had looked after the child on many occasions thereafter. That evidence is difficult to reconcile with the assertion that “[h]e has had nothing to do with the child” and would attempt to use the child to remain in Australia. I am also perplexed by the uncritical report of a claim that a woman with a domestic violence order would be turned away from a police station on several occasions when she tried to report threats. If that were true, it would suggest a scandalous failure on the part of police. That seems unlikely.
The applicant does not deny he sent the messages. He admitted as much to the police and pleaded guilty when the matter came to court. He notes in his statement (exhibit one at p 145) that he never had a genuine intention to hurt anybody, and he expressly denied the messages could be read as a threat to kill himself or harm his child. The messages I have quoted also do not directly threaten his ex-partner: the threats are directed at anyone she might be seeing. He said in his oral evidence that the reference to being “gone from this world” was a reference to the applicant taking his son back to PNG. That is troubling, but I heard the applicant in the witness box. While he speaks English, his command of the language and its idiom was inconsistent. His individual texts should be read in that light. In the circumstances, I do not accept he was threatening harm to his son; I accept his explanation that he was planning on taking his son back to PNG. While threatening to remove the child from this country is also problematic, I accept that threat was made in a context where the applicant believed his former partner was threatening to deprive him of access. That is altogether different to threatening harm to the child. I note he has consistently offered this explanation in his dealings with the police and the respondent. Yet this qualification escaped the notice of the respondent’s delegate who proceeded on the basis the applicant admitted “to the threats relating to your ex-partner and your son…”: exhibit one at p 155.
Mr Hadley, who also acted for Mr Labi in connection with those proceedings, provided evidence of his pre-hearing discussions with the police prosecutor in Cairns. That evidence is found in his letter responding to the notice of intention to cancel the visa: exhibit one at pp 164ff. It is difficult to reconcile that evidence with the alarming remarks in the email conversation between the police officer and the respondent’s liaison officer. Mr Hadley said his discussions with prosecutors “confirmed that the allegations concerning the threat to kill himself and his child were not substantiated and these allegations were not pressed by the Police in their prosecution of the matter”. He also said the Magistrate commented in court “that the breach actions were inconsistent with Mr Labi’s otherwise good character and accepted the submissions that there was no threat made to Mr Labi’s son”: at p 168. I have no reason to doubt Mr Hadley’s evidence. While it was unsworn, Mr Hadley confirmed the accuracy of the recollection at the hearing in these proceedings. He also tendered a letter to his client (exhibit MFI3) that was written on 15 May 2015 - shortly after the case conference and the hearing at Cairns Magistrates Court. The letter recorded the advice from the prosecutor. (Mr Dube, for the respondent, queried whether that letter was properly received into evidence in light of the restriction in s 500(6H). The letter was not provided to the respondent in advance of the hearing. I am satisfied I can have regard to the letter because the information within it had already been communicated in the earlier letter which is reproduced at exhibit one at p 168.)
The applicant was released from police custody on 22 April 2015 after a night in the watch-house. He was taken into immigration detention shortly thereafter, and he has been detained ever since. His bridging visa was cancelled on 24 April 2015.
The earlier proceedings before the Tribunal in relation to the bridging visa
Mr Labi applied for a bridging visa that would permit his release into the community while the application for the partner visa was processed. That application was refused. The refusal decision was affirmed by the Migration and Refugee Division of this Tribunal on 24 November 2015. The member of the Tribunal referred to the messages I have already recounted, together with other matters. She concluded she was not satisfied the applicant would abide by a condition that he not engage in criminal conduct if the visa were granted. The member did not have access to some of the material that was belatedly made available to the Tribunal in these proceedings. (I will have more to say of that material below.)
In any event, that decision did not affect Mr Labi’s application for the partner visa. The decision to refuse that application on character grounds is the subject of the proceedings before me.
The decision to refuse the applicant’s Partner visa on character grounds
The Minister or his delegate has the power under s 501(1) to refuse to issue a visa – in this case, a partner visa – because the applicant is unable to satisfy the Minister that the applicant is able to pass the character test.
The character test is discussed in s 501(6). Most of the cases that make it to the Tribunal for review involve persons who have a substantial criminal record within the meaning of s 501(7). A person with a substantial criminal record is automatically deemed not to satisfy the character test: s 501(6)(a). There is no suggestion the applicant has a substantial criminal record; indeed, apart from the incident referred to earlier which resulted in a fine and an unrecorded conviction, the records confirm he does not have a criminal record at all. The delegate has relied instead on the grounds referred to in s 501(6)(d)(i) and (ii). The relevant part of that sub-section says :
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia…
Of course, there is always at least some risk that any visa holder might do any of the things referred to in s 501(6)(d). I accept there is a higher risk that the applicant might engage in criminal conduct or intimidate or stalk another person in Australia if he remained here if only because he specifically threatened to track down anyone his former partner was seeing with a view to administering a beating. While it will become apparent I have doubts as to the magnitude of the risk involved, I accept the discretion to refuse is enlivened because the decision-maker cannot be satisfied the applicant passes the character test.
How should the discretion in s 501(1) be exercised in this case? The starting point for my analysis is the ministerial direction issued pursuant to s 499 of the Act. Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of mandatory cancelation of a visa under s 501CA (the Direction) is the most recent iteration of the ministerial policy that provides binding guidance to decision-makers on the exercise of the discretion. The Preamble includes a discussion of the objectives of the process, and notes (in clause [6.2(1)]):
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
With that passage in mind, the Direction goes on to set out a series of Principles at [6.3]. I will not repeat them here, but they must inform the exercise of the discretion.
The Direction is then divided into Parts A, B and C. Part A deals with decisions to cancel the visa of an existing visa-holder, while Part C deals with a decision to revoke a mandatory cancellation. The relevant part of the Direction for the purposes of this case is Part B, which deals with decisions to refuse a non-citizen’s visa. Clause [8(1)] of the Direction explains it is appropriate to distinguish between non-citizens who already hold a substantive visa that may be cancelled and a visa applicant because:
non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of the visa, whereas a visa applicant should have no expectation that a visa application will be approved.
The applicant does not hold a substantive visa within the meaning of the direction, although he has been in Australia for a long time.[4] He held a bridging visa while he waited a decision on the Partner visa.
[4] See Annexure B.
I turn then to Part B. Clause [11(1)] says I must have regard to three primary considerations. I will address them in turn.
Protection of the Australian community from criminal or other serious conduct
Clause [11.1] repeats the principle that decision-makers should protect the community from harm as a result of criminal activity or other serious conduct of non-citizens. The clause adds: “There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct”. It then instructs the decision-maker to have regard 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.
Mr Labi did not have a criminal record in Australia or PNG before the incident in question. While he agreed in his evidence that he quarrelled with his former partner during the course of the relationship, there is no evidence of any violent confrontation or police intervention following a disturbance in the Labi household. When confronted by the police, he made admissions and pleaded guilty. The Magistrate in Cairns reportedly observed the incident was not at the serious end of the spectrum and was in any event out of character. Those observations are reflected in the fact the court did not record a conviction and imposed a relatively small fine. I agree with the Magistrate’s characterisation.
It seems the only blemish on the applicant’s character is the incident in question. There is no question this sort of conduct is of real concern: parliament regarded conduct of this nature as serious enough to warrant its own separate mention in the Act. It is also true the messages that comprised what I refer to as “the incident” were actually sent or left on several occasions over the space of a week in the course of an extended argumentative exchange, with most messages being sent on one evening, as I have explained above. But there is no pattern of increasing seriousness and the timing of the messages must be seen in the context of a low-point in a relationship breakdown where the applicant says his former partner was refusing to provide him with access to their child and – he says – holding the threat of his visa status over his head.
I note there is no evidence that the applicant has sent any further objectionable messages to his former partner even though he has had access to a mobile phone while held in detention. There is also some evidence that the two have had contact without incident since he has been detained.[5] He has said he wants to deal with his former partner through his lawyer who will make an application for access to the child of the relationship.
[5] See consultation notes of Dr Kipling Walker dated 22 April 2016.
None of the other factors referred to in clause [11.1.1] are relevant here.
I turn next to the question of risk. Clause [11.1.2(1)] points out the community’s tolerance of risk is likely to diminish as the seriousness of the potential harm increases. Clause [11.1.2(2)] adds that Australia has a low tolerance for anyone who commits offences or engages in other serious conduct while present in this country on a limited stay visa.
The nature of the harm should Mr Labi engage in further criminal or other serious conduct is unclear. So far, he has demonstrated that he could, when under severe emotional stress, send intimidating text messages to a former partner in contravention of a domestic violence order. If he were to repeat that conduct, it would be unsettling for the recipient. But is difficult to say anything more than that.
The real issue here is not whether the applicant would resort to intimidating text messages if he were allowed to stay. (I interpolate that the applicant could do that in any event from PNG.) The real question is whether the applicant might actually do any of the things he mentioned in the text messages.
Clause [11.1.2(3)(b)] refers to the sort of matters that should be considered before reaching a view on the likelihood of the applicant engaging in further behaviour. The clause mentions in particular the need to have regard to “information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending”. The delegate did not do that, and I was not provided with information or evidence of that kind in these proceedings. That is unsatisfactory.
I was provided with two letters of reference from individuals connected with the Australian Football League who have known Mr Labi for some time. (Recall that Mr Labi first came to Australia on a football scholarship.) Mr Tom De Bolfo, of the Carlton Football Club, said he had “no hesitation in vouching for Peter’s friendly nature and good character”. Mr De Bolfo spoke of Mr Labi’s determination and his admirable work with children’s clinics while he was a player at the club: exhibit one at p 173. Mr Andrew Cadzow, a consultant who helped recruit Mr Labi and who knew his family, opined Mr Labi “is honest, works hard and [is] a strong and respectful community member” (exhibit one at p 174).
Those opinions provide some assistance but it would be preferable to have advice from ‘independent and authoritative sources’ with expertise in assessing the likelihood of re-offending. Some of that material could have been provided by the applicant, of course. He has been seeing a psychiatrist while in detention because he has been suffering from an adjustment disorder. I was told he was unable to arrange the delivery of a report because of logistical difficulties. The respondent did not submit the failure to produce a report should lead to an adverse inference.
While Mr Labi was being questioned about interactions with his own psychiatrist, he mentioned he had seen Dr Kipling Walker, a forensic psychologist or a psychiatrist employed by International Health and Medical Services (IHMS). IHMS is a contractor engaged by the respondent. Mr Labi said he discussed his health and the events that led to his detention and clearly recollected Dr Walker saying the offending conduct seemed out of character. Dr Walker allegedly told Mr Labi he posed a low risk. Mr Labi recalled Dr Walker said he could not give a report to that effect because he was engaged by the respondent but apparently indicated the information would be passed on.
Section 500(6H) creates some obstacles to receiving oral evidence of this kind. That provision is intended to prevent the respondent from being taken by surprise. Mr Dube, who appeared for the respondent at the hearing, was unaware of the interaction with Dr Walker. I asked Mr Dube to make enquiries of his client to determine if a report had been written or if notes were generated. It seemed to me the evidence was clearly relevant and, depending on when it came into the respondent’s possession, might raise questions about the respondent’s conduct as a model litigant.
Two days after the hearing, the respondent provided the notes of Dr Walker’s consultation. It turns out the consultation in question occurred on 22 April 2016. The consultation notes conclude: “With current info (that does not include Police Facts, Court Transcript), he appears to be of low risk of further offending.” I note Dr Walker was aware of the substance of the messages that were sent: he quotes two of them in his notes.
I do not assume the respondent’s officers withheld Dr Walker’s notes from the Tribunal. They were generated after the date of the decision, and they were held by a contractor. I am troubled the notes were not communicated to the respondent after they were made, and thereafter to the Tribunal. If there was a process to promote that sort of communication – and one hopes there was – it failed. But the problem here is more than a failure to manage late-breaking but obviously relevant news. The requirement in the Direction that the decision-maker have regard to “information and evidence from independent and authoritative sources” applies to the delegate when making the primary decision, not just to the Tribunal upon review. The delegate should have sought information of this kind from IHMS or another specialist before making the primary decision.
Clause [11.1.2(3)] also requires that I have regard to any evidence of rehabilitation. I begin with the fact the applicant promptly admitted his error and is genuinely remorseful. But the applicant has been in immigration detention since the day after the offence. He has had few opportunities to demonstrate rehabilitation; I am not aware of any courses or other activities that were available to him while he has been detained. (If he had been sentenced to gaol, he might have had opportunities of this nature.) There is no evidence he behaved badly during that time. He had access to a mobile phone the whole time and there is no evidence of him repeating the bad behaviour even though he apparently had some contact with his former partner. Mr Labi also spoke in his evidence about his quick-thinking when he came across another detainee who had attempted suicide. His prompt assistance apparently saved the man’s life.
The duration of the applicant’s intended stay in Australia is also a relevant consideration. The applicant intends remaining in this country indefinitely, not least because he says he wants to re-establish the relationship with his son. That means he is likely to have further contact with his former partner over an extended period, which may increase the risk of further problems. But not necessarily: the original problem seems to have arisen because the applicant and his former partner were dealing directly with each other over access to their son. If Mr Labi conducts his negotiations in future through a lawyer as he intends, the dispute is much less likely to descend into the bad behaviour that occurred last year, and which has not been repeated. (This is also a relevant consideration under clause [11.1.2(4).].)
I am not persuaded this primary consideration weighs heavily in favour of refusal. While anything that might be characterised as domestic violence or abuse is a matter of real concern, the conduct which constituted the contravention was on the less serious end of the spectrum of offending. There is no history of violence, and the applicant has an otherwise unblemished record. I am satisfied there is a low risk of the applicant re-offending, and an even lower risk of him escalating the behaviour in light of the remarks of Dr Walker. While I would have preferred to receive a more extensive report from Dr Walker, I am satisfied from his notes he was aware of the issues and appeared to take a comprehensive history.[6] There is no reason to question his conclusion.
[6] Dr Walker did refer in his notes to the possibility of consulting the court transcript or the police brief. There is no transcript available of the court remarks.
Best interests of minor children in Australia affected by the decision
I have already noted the applicant and his former partner have one child. The boy was born in 2012 when the applicant was still living with the child’s mother. There is no reason to doubt Mr Labi’s evidence that he established a relationship with the child prior to his mother’s decision to leave the family home at the end of 2014. There is also no reason to doubt the applicant maintained a relationship with the child after that point notwithstanding the protection order which was extended to the child in January 2015.
The relationship came to an end after the applicant was arrested, charged and taken into migration detention in Darwin. His detention in a remote location has made it physically impossible for him to maintain a relationship with the child. He gave evidence that there was no point pursuing his former partner in relation to access arrangements through the Family Court unless and until he is released from detention. He says it will be practically impossible for him to maintain a relationship with the child if he is removed from the country.
The Direction requires that I consider a number of matters set out in clause [11.2(4)]. I note the applicant was in a parental relationship with the child until the mother left the family home. There has not been any contact for a year while the applicant has been detained. There are no court orders in relation to access (apart from the domestic violence protection order) but the applicant has a good explanation for his inaction to date. The prior conduct is likely to make the applicant’s relationship with his former partner difficult, which will impact negatively on the child – but that effect should not be overstated. Acrimonious breakdowns are regrettable, but they are not uncommon or unmanageable. The child would also be negatively impacted by the absence of a parent from his life where that parent has an unblemished record (apart from the incident in question) and the ability to develop a rapport with young people: see the evidence of Mr De Bolfo at exhibit one at p 173. It is unclear whether a child of that age has a practical ability to maintain contact with Mr Labi if they are not in the same country. While older children might rely on the telephone or use Skype or even visit Mr Labi in PNG, that is not feasible for a younger child. The views of such a young child are also not a relevant consideration. It is most unlikely the child has experienced any trauma as a direct result of the applicant’s conduct.
The child’s mother is presumably able to play a parental role in relation to the child. But there is no evidence of the applicant abusing or neglecting the child while the child was in his care.
There is no reason to doubt the child would benefit from being able to resume the relationship with his father. That could be done if the applicant and the child’s mother resolved their differences and established regular and stable access arrangements through the Family Court. But that will not occur if the applicant is required to leave the country. I am satisfied the interests of the applicant’s child weigh against refusing the visa.
Expectations of the Australian Community
The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
Australians are rightly concerned about domestic violence, although it is important to note the applicant has not been accused of violent behaviour. Indeed, until he engaged in this behaviour, he had an unblemished record. He has lived in this country for the better part of 10 years, albeit on a series of different visas. He had a job. The applicant has now spent over a year in detention after committing a crime that a magistrate said did not warrant recording a conviction, and which resulted in a fine of $750. Mr Labi has had a year to contemplate being cut off from his son. (Dr Walker’s notes confirm the applicant’s anguish in this regard.) I have no doubt the applicant has developed a keen sense of the need to control himself.
I am satisfied the Australian community would not expect that Mr Labi would be refused a visa on character grounds.
Other considerations
The Direction says I may also have regard to other relevant considerations, albeit they carry less weight than the primary considerations.
I would say at once there are no international non-refoulement obligations here, and no impact on Australian business interests: clauses [12.1] and [12.4]. Clause [12.2] requires that I consider the interests of other family members who might be adversely affected if the applicant were required to leave. I have already referred to the negative impact on the applicant’s child if the visa were refused. That consideration weighs against refusal. I was also told the applicant’s brother’s family lived in Cairns, and that he had a close relationship with them. I was not provided with any other evidence about the relationship so it is difficult to assign a great deal of weight to that claim.
Clause [12.3] requires that I consider the impact on victims. It is difficult to gauge what impact there might be on the applicant’s former partner if the applicant were granted a visa. She did not provide any evidence, and there is at least some evidence that she and the applicant have had amicable contact while the applicant has been in detention. I am not satisfied this factor weighs against the applicant.
Conclusion
The first of the three primary considerations weighs against the applicant, but not heavily. The second primary consideration weighs in the applicant’s favour, while the third primary consideration does not weigh against him. The other considerations are of little weight in the circumstances. I am satisfied that, on balance, the discretion to refuse the visa on character grounds should not be exercised.
I should note that at the hearing – before the notes from Dr Walker came to light – I suggested an independent assessment of the applicant might be so important in the circumstances that I would consider setting aside the decision and remitting it for reconsideration under s 43(1)(c)(ii) of the AAT Act with a direction that the respondent reconsider its decision having regard to an assessment. But the respondent subsequently provided the records of Dr Walker’s interview. I am satisfied those records provide sufficient basis for my finding that the applicant poses a low risk of offending. While ideally a more extensive report would be provided, the Direction points out (at clause [6.2(2)] that decisions should be made in a timely manner – out of fairness to the non-citizen, but also to maintain integrity and public confidence in the decision-making process. This process has gone on long enough: the applicant has been in detention for over a year, and the stress of his ordeal is leading to psychiatric symptoms. In the circumstances, I am not persuaded it would be appropriate to remit the matter under s 43 of the AAT Act.
There may be an argument I should not have relied on the information from Dr Walker in circumstances where the respondent has not had the opportunity to test the evidence through cross-examination. But that seems unavoidable where the information was provided after the hearing. The time limits inherent in the process mean it would be practically impossible to resume the hearing, and the respondent did not ask for an opportunity to call Dr Walker (which could presumably be done if the matter were remitted under s 43(1)(c)(ii)). On balance, I am satisfied the best course was to make a final decision.
69. I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.
.......................[Sgd].............................
Associate
Dated 17 May 2016
Date of hearing
10 May 2016
Solicitor for the Applicant
Mr D Hadley, Oz Legal Migration Pty Ltd
Solicitor for the Respondent
Mr B Dube, Sparke Helmore
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