Osborne and Minister for Immigration and Border Protection (Migration)
[2017] AATA 896
•13 February 2017
Osborne and Minister for Immigration and Border Protection (Migration) [2017] AATA 896 (13 February 2017)
Division:
GENERAL DIVISION
File Number:
2016/4323
Re:
Trevor Osborne
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Professor Robert Deutsch, Deputy President
Date:13 February 2017
Place:Sydney
The decision of the delegate of the Minister for Immigration and Border Protection not to revoke the applicant’s mandatory visa cancellation is affirmed
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Professor Robert Deutsch, Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – mandatory visa cancellation – applicant does not pass the character test – applicant committed offence of grievous bodily harm at hotel while under the influence of alcohol – admissibility of expert evidence in relation to risk of reoffending – whether there is another reason why the cancellation should be revoked – whether the Australian community would expect revocation – strength and duration of ties to Australia – decision affirmed
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth), s 501(3A), 501CA
CASES
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Professor Robert Deutsch, Deputy President
13 February 2017
BACKGROUND FACTS
The applicant is a 37-year-old citizen of the United Kingdom who first arrived in Australia in January 2006. At the time of his arrival he held a subclass 417 (Working Holiday) visa.
He subsequently became a permanent resident of Australia and lived here for more than 10 years.
On the evening of Saturday, 13 April 2013 the applicant attended the Clovelly Hotel and was drinking with friends upstairs in a bar adjacent to the dance floor. At around 9 o’clock that evening the applicant went to the bar to buy a round of drinks. While doing so, there was a conversation between the applicant and a number of other people including a particular person by the name of Jai Hitchcox.
Exactly what followed is not entirely clear but the end result was that the applicant took two schooner glasses of beer, one in each hand, raised both hands and smashed the glasses into either side of the face of Mr Hitchcox. Both glasses smashed on impact into either side of the victim’s face.
The applicant then fled into an exit and down a flight of stairs out of the hotel. He was vigorously pursued by security guards and apprehended a short distance away on Clovelly Road.
Back in the bar area, the hotel patrons provided some assistance and the victim was taken to hospital. He sustained several substantial lacerations to both sides of the face and neck and fragments of glass were embedded in his face.
When asked by police to explain the attack upon Mr Hitchcox, the applicant provided a variety of responses including that:
·he had recently separated from his partner who had returned to Canada and he was lonely;
·he was tired after a difficult week;
·he was upset about a recent soccer injury;
·he blamed Mr Hitchcox for provoking him by his quite “unnecessary conduct” which he described as “bolshie” and “intimidating”; and
·he indicated that Mr Hitchcox had pushed and prodded him.
Both the applicant and the victim had been drinking. According to the police, the victim was quite heavily affected by alcohol at the time and the applicant was moderately so affected.
The applicant was charged with the offence of reckless wounding in respect of which he was convicted in May 2014. There is a maximum sentence of seven years imprisonment with a standard non-parole period of three years specified under the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”).
The sentencing judge imposed a sentence of three years from 18 May 2014 expiring on 17 May 2017 with a non-parole period of two years being specified. The earliest release date was to be 17 May 2016. In sentencing his Honour made a finding of special circumstances in the applicant’s favour pursuant to section 44(2) of the CSP Act.
On 30 March 2016, the applicant’s subclass 856 (employer nomination scheme) visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
The applicant applied to have the cancellation revoked under section 501CA(4)(a) of the Act.
On 8 August 2016, the delegate decided not to exercise the power under section 501CA to revoke the cancellation.
The applicant has applied to this Tribunal for review of that decision.
THE RESPONDENT’S POSITION
The respondent was not satisfied that the applicant passed the character test and as a result section 501CA(4)(b)(i) of the Act did not apply as a basis for the revocation of the cancellation decision.
The respondent considered whether there was another reason why the cancellation decision should be revoked: section 501CA(4)(b)(ii).
The respondent recognised that in doing so he must have regard to the relevant considerations under Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“Direction 65”).
The following matters were noted by the delegate in relation to the relevant considerations:
(a)in regard to the protection of the Australian community he acknowledged that the applicant “has no other criminal history but [that] this single offence must still be considered very serious, especially in view of the impact on the victim”;
(b)further in regard to the protection of the Australian community he found that if the applicant were to reoffend in a similar way “it may result in physical harm to members of the Australian community” and that:
“While I accept that the likelihood of Mr Osborne reoffending violently appears to be low, I cannot rule out the possibility that if he were in similar circumstances of emotional disturbance and intoxication he could again become violent. If so, the potential consequences would be very serious, resulting in physical harm to members of the Australian community. Accordingly, the risk he represents must still be considered serious.
(c)in regard to the interests of any minor children in Australia, the delegate identified that there was one child, namely his godson, whose interests would be affected by a decision to not revoke the cancellation of the applicant’s visa. In this context the delegate noted that the parents of the child had indicated that the applicant:
“has shown a close interest in the welfare of their son since his birth, which was premature and required him to remain in hospital for some time, and that they value his involvement in their family as they do not have close relatives living in Australia”.
However, the delegate then went on to conclude that:
I find that the best interests of Mr Osborne’s godson would be affected by the mandatory visa cancellation, in that he would be deprived of the involvement of Mr Osborne in his life as a minor. However, I consider that any harm would be limited given that Mr Osborne is not responsible for the daily care and control of the child, who has parents available to him and is still an infant, so is too young for Mr Osborne to have played a long term important role in his life to date.
(d)in regard to the expectations of the Australian community, the delegate found that the applicant had breached the trust of the community in expecting that normal citizens will comply with Australian laws while in Australia. He added that given the serious violent nature of the offence in question, the Australian community would expect that the applicant would not hold a visa;
(e)in relation to the strength, nature and duration of the applicant’s ties to Australia:
· the applicant had been living in Australia for more than 10 years;
· has strong social ties in Australia;
· has friends who would experience emotional hardship if he was not able to remain in Australia;
· most significantly, has a strong relationship with his de facto partner who could not leave Australia with him for family reasons and the non-revocation of the cancellation would cause her serious emotional hardship; and
· has also contributed to the community by way of employment for the 10 years he has been living in Australia;
(f)in relation to whether there are any impediments to removal to his home country, it was noted that the applicant had been living in the United Kingdom since he departed Australia on 17 May 2016 and that he has immediate family there. He also has skills as an arborist which would suggest that he would have no difficulty in finding employment in the United Kingdom.
THE APPLICANT’S POSITION
The applicant at various times has advanced a number of reasons in support of the revocation the cancellation.
Most notably, this includes the following matters:
·he is deeply remorseful in respect of his conduct at the Clovelly Pub on the night in question and the Australian public should be assured that he will not reoffend;
·he has a close relationship as a godfather to his Australian citizen godchild, who is aged two and is the child of his very close friends;
·he has a good work history and employment ties with Australia;
·he has emotional ties with Australia in particular in the sense that he has an Australian citizen partner who could not relocate to the United Kingdom.
In relation to the question of the likelihood of reoffending substantial reliance was placed by the applicant upon a report prepared by Dr Simona Chereji. That report and its contents are critical to the applicant’s case and accordingly I will deal with that report in detail.
The Report of the Clinical Psychologist, Dr Chereji
A report prepared by Dr Simona Chereji, Clinical Psychologist dated 23 September 2016 being Exhibit A3 (“the Report”) was sought to be tendered in evidence by the applicant and this was objected to by the respondent on two grounds.
First, the respondent contends that the document was not prepared in accordance with this Tribunal’s Guideline for “Persons Giving Expert and Opinion Evidence” being a document dated 30 June 2015 (Exhibit R4).
Secondly, the respondent contends that the critical component of the Report was Part 9 headed “Clinical impression and recommendations” dealing in part with the risk of the applicant reoffending and the respondent asserts that this is a matter in respect of which the author of the Report did not have the requisite qualifications to comment upon. This was based on the view that Dr Chereji was registered with the Health and Care Professions Council (HCPC) in the United Kingdom to practice using the titles “Counselling Psychologist Clinical Psychologist” (Exhibit R7). She was not registered in such a manner as to allow her to use the title “Forensic Psychologist”.
In putting this argument the respondent drew my attention to the “HCPC Standards of proficiency for Practitioner psychologists” (Exhibit R5) which as one might expect sets out the standards of proficiency required for each type of psychologist title. The respondent then noted that the standards required of Counselling Psychologists and Clinical Psychologists do not refer to the application of psychology in the legal system and questions of assessment of the possibility of reoffending by criminals. This is only covered by the standards of proficiency for Forensic Psychologists and in particular by the following:
Registrant practitioner psychologists must:
…
Forensic psychologists only
13.39 understand the application of psychology in the legal system
…
13.43 understand effective assessment approaches with service users presenting with individually or socially damaging behaviour
13.44 understand the development of criminal and antisocial behaviour
13.45 understand the psychological interventions related to different service user groups including victims of offences, offenders, litigants, appellants and individuals seeking arbitration and mediation
Thus, according to the respondent, Dr Chereji did not have a title designation which included a requirement to satisfy a standard of proficiency in relation to matters such as prospects of reoffending by criminals.
After some exchange between counsel, I decided to admit the report but noting the concerns of the respondent and with an indication that the matters raised by the respondent will be relevant to the weight that I might attach to the Report.
Towards the end of the two-day hearing the respondent raised a further issue in relation to the manner in which this Report was prepared. This concerned the email which accompanied the request for the report which is Exhibit R8. The relevant content of that covering email is along the following lines:
“Simona
As you are probably aware, I am the lawyer representing Trevor Osborne in proceedings relating to the cancellation of his Australian Visa.
Our argument is that, notwithstanding the serious nature of conduct which led to his incarceration, his risk of recidivism very (acceptably) low and I would be obliged if your report could focus on this point.
I enclose submissions which we have made which may be of assistance to you.
Please contact me if you have any queries in this matter.
Yours truly,
Turner Coulson Immigration Lawyers
Ray Turner
Principal Solicitor”
The respondent objected in particular to the second paragraph primarily on the ground that it very strongly hints at a conclusion which is being suggested to Dr Chereji and which by implication is inviting her to reach a particular conclusion.
I find this ground of objection to this document and the Report that followed from it, to be more troubling than either of the two matters raised as part of the formal objection process.
A covering letter or email which seeks an expert opinion in relation to a matter should be drafted in neutral terms and should not be suggestive of any particular conclusion that is desired by the party seeking the expert opinion. A simple reference to the fact that the report requires, in particular, an assessment of the likelihood of recidivism without emphasising the conclusion that is being sought is not only desirable but, in my view, far more preferable.
Finally on this point, the Tribunal also notes that the Report does not provide a clear acknowledgement that the expert is acting independently and that her obligation is to the Tribunal and not to the engaging party.
Such a failure has been held by no less than the Supreme Court of New South Wales to be a possible basis for the opinion given being rendered inadmissible: Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980.
The Tribunal has not excluded the Report on that basis but the fact that the opinion was given on this basis also bears on the weight that can be attached to the Report.
Having regard to the following factors, the weight that the Tribunal can attach to the Report is minimal:
·the proper guideline to be used in relation to expert opinions sought for use in this Tribunal were not presented to Dr Chereji;
·the covering email was very strongly suggestive of a desired outcome;
·the independence declaration was not provided.
I accept that Dr Chereji’s title does not include “Forensic Psychologist” but I am nonetheless of the view that as a Counselling Psychologist/Clinical Psychologist she does have qualifications which enable her to comment on the prospects of recidivism even if they are not as useful to this Tribunal as they would be if she was also designated with the title “Forensic Psychologist”.
In any event the comment made by Dr Chereji is to the following effect:
“Based on the information Mr Osborne has provided about his past and current living, there is no indication of risk to others. Mr Osborne has accepted his conviction as a natural consequence for his offending behaviour; he tried to learn from it, and as a consequence changed his view on life in general. In my opinion, this could be an indication that Mr Osborne presents a low risk to others and a low, or absent, risk to re-offend.
Even having regard to all my reservations about the weight that should be attached to this opinion I do not find Dr Chereji’s conclusion that: “[i]n my opinion this could be an indication that Mr Osborne presents a low risk to others…” to be at all convincing. The use of the word “could” in this context is quite revealing and I remain unconvinced that Dr Chereji was at all definitive in reaching any conclusion regarding the prospects of reoffending.
THE OFFENCE
It is difficult to conceive of a case where the nature of the offence that has been committed could be more important than it is in this case.
There are a number of aspects to the applicant’s behaviour at the time of the offence which are important and these include the following:
·the offence involved an applicant who was affected by alcohol;
·the offence was committed in circumstances where the applicant struck the victim seemingly without warning;
·there is no evidence to suggest that the applicant himself had been threatened with physical harm by the victim prior to the assault taking place;
·from what could be seen on the video footage of the event it appears to be the case that the applicant had initially turned away from the victim before turning back to commit the offence;
·the applicant deliberately struck the victim in the head holding two full glasses of beer, clearly suggesting that the applicant was reckless as to whether he would or would not cause grievous harm victim;
·having committed the offence the applicant fled, seemingly with the intention of escaping.
Looking at the video footage of the offence which was presented at the hearing, it would seem reasonable to conclude that the applicant had ample opportunity to walk away from the situation and thereby avoid any further altercation with the victim. Rather, he proactively decided to attack the victim using the two glasses of beer which he held at the time as his weapons.
In focusing with such precision on the nature of the offence, the Tribunal is not seeking to test whether the cancellation of the Applicant’s visa should be tested solely by reference to this issue. That approach would be contrary to the need to take into account the whole of Direction 65.
However, it is important to note that Direction 65 makes it clear that the community’s tolerance for any risk of harm becomes lower “as the seriousness of the potential harm increases” (paragraph 13.1.2(1)) and non-revocation may be appropriate “simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa”. (paragraph 13.3(1)).
THE TRIBUNAL’S CONSIDERATION
The primary considerations which this Tribunal is required to have regard to are:
·the nature and seriousness of the applicant’s conduct and the risks to the Australian community should the non-citizen commit further offences or engage in other serious conduct;
·whether the best interests of any minor children will be affected by the decision, and if so, how those interests will be affected;
·what the expectations of the Australian community would be in relation to the possible revocation of the applicant’s visa.
In relation to the first matter, the Tribunal has already indicated that the applicant’s conduct on the night in question raised substantial risks for the Australian community having regard to the very serious nature of the offence which he committed. The applicant was fortunate in that he did not cause even more damage to the victim as striking such a serious blow to the head of the victim would in many cases lead to more substantial injury and possible death.
I accept that there is some evidence to suggest that the prospects of reoffending here are low.
However, the offence in question took place under the influence of alcohol. There is little if any evidence as to how much the applicant is currently drinking and whether his drinking is a problem. Further, it is not at all clear, that the prospects of the applicant not reoffending when under the influence of alcohol are low.
The only minor child who would be affected by a decision adverse to the applicant is the applicant’s godson but on the evidence which is available I do not believe that the best interests of the applicant’s godson weigh heavily in favour of revocation of the mandatory cancellation.
In the view of this Tribunal the Australian community could be exposed to further harm from the applicant as there is some reasonable chance that under the influence of alcohol he could reoffend in a similar manner. In these circumstances the Australian community would expect the applicant’s visa to be cancelled.
The Tribunal is also required to consider certain secondary considerations and in that context the Tribunal notes that the applicant:
·has had a substantial period of uninterrupted presence in Australia;
·has contributed to the community through his employment over that period;
·has a de facto partner who lives in Australia and she apparently has no desire or capacity to relocate to the United Kingdom.
In relation to the applicant’s partner, she gave evidence at the hearing regarding the depth of her relationship and her situation and I found her to be a credible witness who spoke highly of the applicant and sought to characterise his behaviour on the night in question as out-of-character and very unlikely to be repeated.
On the other hand, if the applicant were to be removed from Australia, there are no direct impediments such as his age, health, language or cultural barriers, in establishing himself in the United Kingdom and maintaining basic living standards there.
Overall, these other considerations, especially his strong relationship with his de facto partner, do support revocation of the cancellation.
Nonetheless, the primary considerations are generally given greater weight and the primary considerations here all point in the same direction – namely cancellation. Of most importance here is the protection of the Australian community in circumstances where the applicant has committed, and could again commit, a particularly vicious seemingly unprovoked attack on another member of the community especially while under the influence of alcohol.
The Tribunal has carefully considered all the various factors which it must consider as a result of Direction 65 and the balance in this case clearly favours non-revocation of the visa cancellation.
DECISION
The decision under review is affirmed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Professor Robert Deutsch, Deputy President
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Associate
Dated: 13 February 2017
Dates of hearing: 25 and 26 October 2016 Date final submissions received: 6 December 2016 Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent: Mr W Sharpe, Minter Ellison
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