Richards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1351
•18 May 2020
Richards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1351 (18 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1102
Re:Mr Stephen Richards
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Date of hearing: 7 May 2020
Place:Brisbane
Date of written reasons: 18 May 2020
DECISION
The Tribunal sets aside the decision made by the delegate of the Respondent dated 18 February 2020 and in substitution decides:
(a)Not to refuse to grant the Applicant an Employer Nomination (Permanent) (Class EN) (subclass 186) visa in accordance with s501(1) of the Migration Act 1958 (Cth).
...........................[SGD].............................................
Senior Member B Pola
Catchwords
MIGRATION – refusal of application for Employer Nomination (Permanent) (Class EN) (subclass 186) visa – applicant failed to pass the character test under section 501(6)(d)(i) – whether the discretion in section 501(1) should be exercised – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380
Minister for Immigration and Border Protection v Sabjarwal [2018] FCAF 160
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B Pola
18 May 2020
INTRODUCTION
This is an application for review of the decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (or the ‘Respondent’) to refuse Mr Stephen Richards (the ‘Applicant’) an Employer Nomination (Permanent) (Class EN) (subclass 186) visa pursuant to s501(1) of the Migration Act 1958 (Cth) (the ‘Migration Act’).
The application was heard in Brisbane on 7 May 2020 with the Applicant, Applicant’s Counsel Mr Peter Lyons, and the Respondent represented by Mr Ben Cuthbert of Clayton Utz, all appearing by video link.
The Tribunal heard oral submissions made by and on behalf of the Applicant, the Applicant’s witnesses, and on behalf of the Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register in Annexure 1 of these reasons.
JURISDICTION
Section 500(1)(b) of the Migration Act provides:
500 Review of decision
(1) Applications may be made to the Administrative Appeals Tribunal for review of:
…
(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A))[1]; or
…
[1] Section 500(1)(4A) is not relevant to this application.
In accordance with s500(1)(b) of the Migration Act, the Administrative Appeals Tribunal (the ‘Tribunal’) has jurisdiction to review the decision made by the Respondent’s delegate.
BACKGROUND
The Applicant is currently 35 years of age, and arrived in Australia from the United Kingdom on a subclass 417 Working Holiday Visa on 5 March 2010 at 25 years of age. Passenger Movement Records submitted to the Tribunal indicate the Applicant has predominantly remained in Australia since his first arrival on 5 March 2010[2].
[2] Exhibit G1, G2, pages 40 and 41.
On 9 April 2015, the Applicant appeared before the Waverly Local Court, New South Wales (‘NSW’), where an Apprehended Violence Order (Domestic) (‘AVO’) was imposed on him for a period of 12 months[3].
[3] Exhibit G1, G2, page 245.
On 26 February 2016, the Applicant appeared before the Waverley Local Court, NSW and was found guilty of contravening the AVO which had been imposed on him, and received a good behaviour bond for a term of nine months[4].
[4] Exhibit G1, G2, page 22.
There is no further evidence of any criminal offending by the Applicant before the Tribunal, after 26 February 2016.
On 8 December 2016, the Applicant applied for an Employer Nomination (Permanent) (Class EN) (subclass 186) visa[5].
[5] Exhibit G1, G2, page 151.
A delegate of the Respondent notified the Applicant on 19 September 2019 that they were considering refusing the application for the Employer Nomination (Permanent) (Class EN) (subclass 186) visa, and a notice of this intention was issued[6]. The Applicant made submissions in response to the delegate’s intentions on 24 September 2019[7].
[6] Exhibit G1, G11, pages 339 and 340.
[7] Exhibit G1, G12, pages 354 to 358.
On 18 February 2020, a delegate of the Respondent refused the Applicant’s visa application for an Employer Nomination (Permanent) (Class EN) (subclass 186) visa[8], with the Applicant notified of this decision on 25 February 2020[9].
[8] Exhibit G1, G2, page 14.
[9] Exhibit G1, G2, pages 11 to 13.
On 27 February 2020, the Applicant applied to the Tribunal to review the decision of the Respondent’s delegate to refuse the Applicant’s visa application for an Employer Nomination (Permanent) (Class EN) (subclass 186) visa[10].
[10] Exhibit G1, G1, pages 1 to 10.
ISSUES
The decision to refuse the Applicant’s visa application was done so on the basis that the Respondent’s delegate was not satisfied that the Applicant passed the character test, with reference to s501(6)(d)(i) of the Migration Act.[11]
[11] Exhibit G1, G2, pages 17 to 21.
After considering the information relating to the Applicant’s visa application, the Respondent’s delegate decided to exercise the discretion in s501(1) of the Act to refuse to grant the Employer Nomination (Permanent) (Class EN) (subclass 186) visa.
The issues for the Tribunal to consider in relation to this application are therefore:
(a)whether the Applicant passes the character test as defined in s501(6) of the Act; and
(b)if the Applicant does not pass the character test, whether the discretion in s501(1) of the Act should be exercised to refuse to grant the Applicant an Employer Nomination (Permanent) (Class EN) (subclass 186) visa.
(A) DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) of the Migration Act sets out the character test, relevantly s501(6)(d)(i), which the delegate of the Minister relied upon when refusing to grant the visa, provides:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(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
…
The Minister’s delegate considered there to be a risk that the Applicant would reoffend and engage in criminal conduct, having regard to the Applicant’s criminal history.
In relation to evaluating the present application as to s501(6)(d)(i) of the Migration Act, the Tribunal refers to their Honours, Perram, Murphy and Lee JJ, in Minister for Immigration and Border Protection v Sabharwal [2018] FCAF 160, at paragraph 2:
… The section requires an evaluative judgement by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.
It is noted that His Honor Kerr J in the earlier decision in Sabharwal, stated in paragraphs 79 to 84[12]:
[12] Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10.
79.Section 501(6)(d)(i) relevantly provides that the Applicant fails the character test if there is “a risk that [he] would engage in criminal conduct in Australia”.
80.The text of s 501 read in its statutory context, properly construed, defines the boundary of the power lawfully available to the Minister. The Minister, having regard to the known circumstances, must evaluate the risk of a person engaging in the future in criminal conduct in Australia.
81.In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows (at 574-575):
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
82.Their Honours’ observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.
83.Counsel for the Minister properly acknowledged that the terms of the Explanatory Memorandum (the EM) for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which amended s 501(6)(d)(i) must be relevant to the task of construction. Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
84.Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms.
Thus, the Tribunal in making an assessment of the Applicant’s potential future behaviour and possibility of any further criminal offending need only find that it is ‘likely’ to occur, in order to make a finding that the Applicant fails the character test.
It is not sufficient for the Tribunal to establish that the Applicant has engaged in criminal conduct in the past. Rather, what needs to be established is that there is an ongoing risk of the Applicant engaging in such conduct in the future that is more than minimal or remote.
Section 499(1) of the Migration Act provides:
499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A)A person or body must comply with a direction under subsection (1).
…
The Tribunal is bound to follow Ministerial Directions issued by the Minister, and on 20 December 2018 the Minister issued Ministerial Direction no.79 (or ‘Ministerial Direction’) s499 of the Migration Act, which came into force on 28 February 2019.
Ministerial Direction
Relevant to the application before the Tribunal, Annex A to the Ministerial Direction provides the following in relation to the application of the character test[13]:
6 Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
[13] Ministerial Direction, pages 28 and 29.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
In the present application, the Respondent has contended that there is more than a minimal or remote chance that the Applicant, if allowed to remain in Australia, would engage in criminal conduct for which a conviction could be recorded[14].
[14] Exhibit R1, page 6, paragraph 18.
The Tribunal will now provide an overview of the Applicant’s criminal history, which largely centres around four incidents, two of which occurred in the United Kingdom in 2008 and 2009 prior to the Applicant arriving in Australia. With the remaining two incidents occurring in 2015 and 2016 when the Applicant resided in Australia.
Criminal history of the Applicant
Cautions – United Kingdom (2008 and 2009)
Evidence submitted to the Tribunal regarding the Applicant’s criminal history in the United Kingdom prior to arriving in Australia on 5 March 2010 shows that the Applicant was conditionally cautioned on 2 April 2008 for an offence relating to “DESTROY OR DAMAGE PROPERTY [VALUE OF DAMAGE OF PROPERTY £5,000 OR LESS]”[15], when the Applicant was 23 years of age.
[15] Exhibit G1, G2, pages 24 and 25.
The Tribunal heard evidence that the Applicant had been drinking with friends and was seeking to enter a university hall, where he broke a glass panel of a door when gaining entry (due to having locked himself out)[16]. The Applicant gave oral evidence that this door was commonly used by individuals who had locked themselves out, and the Applicant admitted to causing the damage and paid costs of repair, after the building manager reported the damage to the Police. The Applicant was given “SENTENCE DEFERRED 91 DAYS 02/04/2008 CONDITIONAL CAUTION” or a ‘conditional caution’ over the incident[17].
[16] Transcript, page 17, lines 42 to 47; and page 18, lines 1 to 35.
[17] Exhibit G1, G2, pages 24 and 25.
The second incident occurred on 28 March 2009, for an offence relating to, “BEING DRUNK AND DISORDERLY ON 26 MARCH 2009”, with the Applicant being 24 years of age at the time[18]. The Tribunal heard evidence from the Applicant that this caution related to an incident where he had been drinking with friends after a soccer match and fell asleep in the street when intoxicated. The Applicant gave oral evidence that the Police took the Applicant to a cell to sober up and drove him home the next day[19]. The Applicant was given a “CAUTION” as a result of this incident[20].
[18] Exhibit G1, G2, pages 24 and 25.
[19] Transcript, page 18, lines 37 to 46; and page 19, line 1.
[20] Exhibit G1, G2, page 25.
The Tribunal observes that the consumption of alcohol (on the Applicant’s own admission) was a factor behind the issuing of both cautions for the incidents in 2008 and 2009.
In response to the recording of the cautions which were issued to the Applicant, the Applicant’s representation made the following submissions to glean further context as to why these remain on the Applicant’s criminal history in the United Kingdom[21]:
Important to note that both cautions are not regarded as criminal conviction under UK legislation. Both are regarded as spent convictions after three months. It is noted both cautions will still appear on the criminal record of the person.
Conditional police cautions were introduced by the Criminal Justice Act 2003. A conditional caution can be authorised by a police officer or the Crown Prosecution Service. If the conditions that are attached to the caution are not complied with, without reasonable excuse, criminal proceedings may be commenced and the conditional caution will be set aside.
An adult conditional caution can only be given to offenders 18 or over. The requirements of a conditional caution are similar to those of a simple caution. There must be an admission from the suspect, the effect of the caution must be explained – including an explanation of the consequences of failing to comply with the conditions – and the suspect must give their fully informed consent by signing a caution form admitting the [offence] and which must include all the conditions attached to the caution. [sic]
[21] Exhibit A1, page 4, paragraphs 23 to 25.
The Respondent has contended that the Applicant’s offending in the United Kingdom would likely amount to ‘nuisance’ offences under the criminal law of Queensland (with reference to s230 of the Criminal Code Act 1899 (Qld))[22].
[22] Exhibit R1, page 10, paragraph 30.
The only evidence before the Tribunal from which an opinion can be drawn is from the submission of the NPCC Police Certificate[23] which states that the ‘conditional cautions’ were issued in 2008 and 2009, in addition to the oral submissions made by the Applicant at the hearing, which have been summarised by the Tribunal in the earlier reasons of this decision.
[23] Exhibit G1, G2, pages 24 and 25.
In respect of the evidence submitted, the Tribunal is of the view that the ‘conditional cautions’ are a result of foolish behaviour on the part of the Applicant, not that of an individual wantonly seeking to cause damage to the lives, safety, or health, of the public. The Tribunal makes no equivalent findings amounting to ‘nuisance’ offences as contended by the Respondent, based on the evidence presented to the Tribunal.
9 April 2015 – Apprehended Violence Order
Evidence before the Tribunal confirms the Applicant (aged 30 at the time) was issued with an AVO on 9 April 2015, by Magistrate Farnan at the Waverley Local Court[24].
[24] Exhibit G1, G2, pages 244 to 246.
The Tribunal heard oral submissions from the Applicant that he was involved in a relationship with Ms X[25] from 2014, with Ms X having two children from a previous relationship aged seven and five at the time they met[26]. The Applicant submitted that he and Ms X were romantically involved two months after having met, and that they spent a lot of time with each other but the Applicant kept his own premises[27]. The Applicant submitted that both he and Ms X drank socially together, and at no time was he violent and “never argued or fought” with Ms X[28].
[25] The Tribunal has replaced the name of the Applicant’s former partner with the pseudonym ‘Ms X’.
[26] Transcript, page 48, lines 1 to 5; and page 48, lines 38 and 39.
[27] Transcript, page 48, lines 22 to 35.
[28] Transcript page 49, lines 24 to 34.
The Applicant submitted to the Tribunal in oral[29] and written[30] evidence that he and Ms X suffered an ectopic pregnancy, the aftermath of which contributed towards their relationship breakdown.
[29] Transcript, page 49, lines 4 to 47; and page 52, lines 5 to 17.
[30] Exhibit G1, G1, page 6.
The application for the AVO further detailed events leading to the issuance of an AVO against the Applicant[31]:
[31] Exhibit G1, G2, pages 26 to 30.
The defendant and the PINOP [Person In Need of Protection] began an intimate relationship in September 2013 and the relationship ended in mid January 2015 by mutual consent in the middle of January 2015, however there is a suggestion that a casual sexual relationship continued until early February 2015. Neither party has access to firearms.
The PINOP states that there was no physical violence in the relationship. The PINOP states that there was verbal abuse in the relationship on three or four occasions however the PINOP cannot provide when or where the verbal violence occurred. The PINOP had no independent record of the verbal abuse and stated that the verbal abuse was typically “fuck off”, “You fucking idiot” (many times over), “I hate you”, “bitch”.
….
There is not previous recorded history of violence between the two parties.
…
MOST RECENT INCIDENT
About 10.45am, Sunday the 8th March 2015 the PINOP sent a face book private message to the defendant face book account.
The PINOP said, “I asked you to stop contacting me!!”
The defendant replied, “Ok sorry, If that’s what you want I will respect it.”
The PINOP said, “You always say that but you never respect it, EVER!!”
The defendant said, “Why did you ignore me? Did I do something wrong?”
The PINOP said, “You used me and disrespected me all the way, you hurt me the way you treated me and I don’t want anything to do with you.”
The PINOP said, “And finally after 1 year and 6 months I have realised it and I see it clearly.”
The defendant replied, “Ok.”
The PINOP said, “Do not call or text me ever again do not speak to me when you see me on the street or anywhere else pretend you don’t me and please stop texting me at night too I met someone else and I don’t need this!! Thanks.”
The defendant did not reply to this final message and did not attempt to call or text message the PINOP.
About 8.37am, Sunday the 29th March 2015 the PINOP began to receive face book private messages and text messages which continued until 1.09pm. During this period the PINOP received seven face book messages and a further eight text messages. This messages were short in nature and did not contain any threats. Those messages could be categorised as messages seeking to speak to the PINOP.
Around this time the PINOP also received seven missed phone calls from the defendants personal mobile phone. The timings of these calls were 8.44am, 8.49am, 9.06am, 9.41am, 9.51am, 12.56pm, and 1.22pm.
At 12.06pm, the PINOP sent a text message to the defendant “I have already told you many times to stop texting and calling me, step back from my life.” The defendant did not reply to this message.
About 2.30pm, Monday the 30th March 2015 the PINOP attended Bondi Station and made a report of the conduct of the defendant and stated that she was fearful of her safety and was fearful that the defendant would continue to contact her. She stated that she feels the defendant will continue to contact her regardless of her wishes. The PINOP stated as a result of the conduct of the defendant she feels stressed and depressed.
The PINOP also advised police that a friend had provided information to her that the defendant was seen to be near her house between 8.00am and 9.00am on Sunday the 29th March 2015. The PINOP stated that this caused her to fear for her personal safety and that of her children.
About 1.30pm, Tuesday the 31st March 2015, the defendant attended Waverley Police Station and participated in a ERISP [Electronically Recorded Interview of a Suspected Person] interview with police. The defendant was not under arrest and was explained his rights under the Law Enforcement (Powers and Responsibilities) Act by the custody manager as a suspect not under arrest.
The defendant admitted to sending the messages as complained by the PINOP and also to the seven missed phone calls. The defendant stated that the messages were short and contained no threats which is consistent to the version of the PINOP. The defendant stated that he only wanted to clear the air with the PINOP as he moved on with a new relationship and did not wish their (sic) to be a feeling of awkwardness between the parties. The defendant stated that he did not intend to harass or intimidate the PINOP.
The defendant also confirmed that he attended the PINOP address in the morning of the 29th March 2015, but could not give a time frame to when this occurred. He stated that he had been drinking alcohol the previous evening and was ‘hungover’ but only wanted to clear the air with the PINOP.
…
EVIDENCE AND THE EFFECTS OF ALCOHOL & DRUGS: The PINOP states that the defendant has an issue with alcohol. The defendant was consuming alcohol when the PINOP was contacted.
…
FEARS HELD BY VICTIM: That the defendant will continue to contact her via social media, text messages and phone calls.
FEARS HELD BY POLICE: Police believe that a non-urgent application ADVO is necessary to prevent the defendant from contacting the PINOP.
[Tribunal insertions for clarity]
The Applicant consented to the AVO for a period of 12 months without admission in the Local Court in Waverly, NSW to Magistrate Farnan on 9 April 2015. The following transcript exchange was submitted to the Tribunal[32]:
HER HONOUR: … THE ORDER IS THAT YOU NOT ASSAULT, MOLEST, HARASS, THREATEN OR OTHERWISE INTERFERE WITH THE PROTECTED PERSON, THAT YOU NOT ENGAGE IN ANY OTHER CONDUCT THAT INTIMIDATES HER, THAT YOU NOT STALK HER AND THOSE ORDERS APPLY TO ANYONE WITH WHOM SHE HAS A DOMESTIC RELATIONSHIP, IN ADDITION YOU ARE NOT TO GO WITHIN A HUNDRED METRES OF PREMISES AT WHICH SHE FROM TIME TO TIME LIVES OR WORKS…AND YOU ARE NOT TO APPROACH OR CONTACT HER BY ANY MEANS WHATSOEVER EXCEPT THROUGH A LEGAL REPRESENTATIVE.
DEFENDANT: Yeah.
HER HONOUR: Do you understand those orders?
DEFENDANT: Yes.
HER HONOUR: And you understand that any breach of those orders is a serious criminal offence.
DEFENDANT: Yeah.
[32] Exhibit G1, G2, page 245.
The Tribunal observes that alcohol was a contributing factor in the behaviour of the Applicant as outlined in the application for the AVO, including on the Applicant’s own admission.
The Applicant’s oral submissions regarding the events which lead to the AVO were generally in accord with what was reported in the application for the AVO[33], albeit with differing accounts regarding dates as to the formation of the relationship between the Applicant and Ms X.
[33] Exhibit G1, G2, pages 26 to 30.
In cross-examination, the Applicant’s evidence was that he and Ms X were in a sexual relationship up until the time the text messages were sent to her[34]:
Mr Cuthbert: So I wanted to ask, is it the case that in early 2015, did Ms X ask you to stop contacting her?
Applicant: Not until that text messages. Like, like we were still in a sexual relationship until - until these text messages started.
[34] Transcript, page 53, line 46; and page 54, lines 1 and 2.
When the Applicant was asked in cross-examination by the Respondent as to whether he thought that Ms X might not like receiving the communication from the Applicant, the Applicant gave the following evidence[35]:
Mr Cuthbert: Did you think at any point, as best as you can remember, did you think Ms X might not like these missed calls, and text messages, and Facebook messages, or did you just not really think about it?
Applicant: Like, given the relationship she did a lot of the same thing too. She used to turn up at my house and she used to call me a lot too. And she used to turn up at my work and it was - it was kind of normal at the time. I didn’t see - I didn’t see it as a problem. She did a lot worse than what I did, put it that way, and that’s the truth.
[35] Transcript, page 55, lines 31 to 38.
The Respondent has contended, “that through his oral evidence, the Applicant continues to downplay his responsibility for his actions. The Applicant stated that his former partner did ‘worse’ things to him than he did to her”[36]. The Tribunal refers to the full exchange at the hearing where the Applicant ultimately did take ownership for his actions in the exchange[37]:
Mr Cuthbert: Well, just on that subject, it seems as though you might be trying to transfer responsibility onto Ms X saying that she did worse things that you do, is that a fair characterisation?
Applicant: No, I take full responsibility in all of my actions, like at this moment in time, I take full responsibilities of everything I’ve done. And I say, I’m working with Dr Cameron now and I’m trying to fix them. I’m not perfect, but I’m not a bad person.
[36] Exhibit R3, page 2, paragraph 4.
[37] Transcript, page 55, lines 40 to 45.
The Tribunal accepts that NSW Police felt it necessary to proceed with a non-urgent application for an AVO to prevent the Applicant from contacting Ms X[38].
[38] Exhibit G1, G2, page 29.
The Tribunal is mindful that it does not have the views of Ms X to corroborate the submissions as put by the Applicant in relation to the nature of their relationship, events leading to the breakdown of that relationship, or their version of events leading to the issuance of the AVO.
In the absence of such corroboration, the Tribunal does have before it, submissions from the Applicant’s current treating Clinical Psychologist, Dr Diane Cameron (evidence from whom is dealt with more fulsomely in the latter part of these reasons).
Dr Cameron provided an opinion on the Applicant’s subjective account of events in his relationship with Ms X, which is encapsulated in the following transcript exchange[39]:
Mr Cuthbert: The first line of that paragraph says, “It is worthy to note” and then the bit that I wanted you to comment on is, “[The Applicant’s] account above is subjective”. Would you say that some of your conclusions are based on [the Applicant’s] subjective account?
Dr Cameron: No. I mean, we are dealing with patients who are giving a subjective account and we don’t work on the principle that everything they say is correct. For them it may be real but it’s not the full picture. I take that on board and I’ve said that while it’s subjective, he is discussing with me the relationship where he thought there was a future suddenly nosedived, where his partner - he perceived - rejected him and “Seems to not like me any more” I think were his words. “She just didn’t like me. I couldn’t understand why”. That sort of fits with research into what can happen for couples when there’s an early termination of pregnancy and that - the research that points to. It’s not only just the woman who can suffer depression or traumatic features but it’s also - it can also affect the partner. And so the account that [the Applicant] gives me is supported from - by my knowledge of research and my experience of couples who have had a miscarriage.
[39] Transcript, page, 33, lines 46 and 47; and page 34, lines 1 to 16.
Additionally, Dr Cameron provided the following statements in her submitted report[40]:
It is worthy to note, that while [the Applicant’s] account (above) is subjective, his account fits with the research finding. For example, in a study into psychological impact of early pregnancy loss, evidence was found for depression, anxiety, and post-traumatic stress disorder (PTSD) following a miscarriage or an ectopic pregnancy in women and/or their partners (Farren et al. 2018). Suffice to say, [the Applicant] struggled with the way the relationship ended, his feelings of rejection, and he was depressed and drinking to excess.
[40] Exhibit A2, page 4, paragraph 3.
The Tribunal observes that statements provided to the police from Ms X confirmed that “there was no physical violence in the relationship”. Although Ms X, claimed the Applicant committed “verbal abuse in the relationship on three or four occasions”, the NSW Police in the AVO application stated, “the PINOP cannot provide when or where the verbal violence occurred. The PINOP had no independent record of the verbal abuse…”[41].
[41] Exhibit G1, G2, page 27. [PINOP, Person In Need of Protection].
26 February 2016 – Breach of Apprehended Violence Order
On 26 February 2016, just over 10 months into the 12 month AVO order against the Applicant, the Applicant was arrested and cautioned for breaching the enforceable AVO[42].
[42] Exhibit G1, G2, pages 34 to 39.
NSW Police Fact Sheet and Advice of court documents submitted to the Tribunal dated 26 February 2016 provides further detail as to the events leading to the breach of the AVO by the Applicant[43]:
[43] Exhibit G1, G2, pages 34 to 39.
About 4.46am on Thursday 25th February 2016 the victim received three text messages from the accused in which he stated the following:
Message 1: “Hey Ms X, I really do hope all is good. I felt bad the other day when you walked past, I wasn’t being ignorant just felt a bit awkward with everything going on, I hope you and the girls are good and we are all fine now.”
Message 2: “Steve. Xx”
Message 3: “Really hope you and the girls are good”.
The victim was worried about the accused persons behaviour as there is an enforceable Apprehended Violence Order in place.
The victim attended Bondi Police station and reported the matter to the police.
At no time did the victim give permission to the accused to send her the text message. The victim is fearful for her safety as she does not know what the accused is capable of especially when he is intoxicated.
Due to the communications with the victim via text messages, the accused is in clear breach of the enforceable Apprehended Violence Order.
About 7am on Friday 26 February 2016 the accused presented himself to the Waverley Police Station where he was placed under arrest and cautioned.
The accused was taken to Waverly Custody where he was introduced to the custody manager, Sgt McGUIRE and read his rights in accordance with part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002.
The accused was offered an electronic interview to which he agreed to participate in.
At 7.27am police commenced the electronic interview with the accused. During the interview the accused made admissions stating “yes, I sent the messages” and “it was just a silly drunken mistake”. He stated that he sent the messages as had seen the victim and her daughters several days earlier and had ignored them, as a result of this he felt like he was being rude and wanted to make amends.
The accused stated that he was aware that he had an enforceable Apprehended Violence Order served on him in April 2015 and that it was enforceable for a year. He explained that he was aware and understood the conditions, and that he was unable to contact the victim.
The accused was shown a photo depicting the text messages he sent to the victim. The accused agreed that there were three text messages and that he sent them knowingly to the victim. The accused also confirmed that his phone number was the same as the one the victim received the text messages from.
The accused is now charged with the matter before the courts.
Following the incident, the Applicant appeared in the Local Court in Waverly, NSW, before Magistrate Huber on 26 February 2016, with the following transcript exchange submitted to the Tribunal[44]:
HER HONOUR: [Applicant], on one view can be seen that you thought you were being rude, on the other hand of course the view is you were complying with your apprehended domestic violence order because the condition includes not to approach or contact and if you see her in the street again or the children you do exactly what you did initially, don’t approach or contact.
ACCUSED: I won’t.
HER HONOUR: I note that this order has been in place since 9 April 2015, it is now almost 12 months, there has been no suggestion of any non-compliance in the past. I have regard to your record, again there’s no suggested any criminal nature on your record. I note the relatively innocuous messages that you left, there was certainly nothing by way of threats and nothing by way of an overture to have more contact but it was in fact that you wrote to her saying you felt bad that you walked past and that you felt awkward and you hope that she and the girls are okay and fine, that’s where you leave it.
You then sent two further messages and I note also with some concern that one of the principal concerns that the person in need of protection has is what you do when you are intoxicated. I note the hour that you sent the messages, 4 in the morning. I also note of course what you told the police that it was a drunken mistake so again alcohol is involved. If you and alcohol have a problem and it seems that you do because that’s what brings you to court you should address your alcohol issues.
I AM PREPARED IN THE CIRCUMSTANCES NOT TO RECORD A CONVICTION, YOU ARE HOWEVER ON A GOOD BEHAVIOUR BOND UNDER S10(1)(b) FOR A PERIOD OF NINE MONTHS TO BE OFF GOOD BEHAVIOUR, TO NOTIFY THIS COURT OF ANY CHANGE OF ADDRESS. If you commit any offence in the next nine months this matter is back before the Court.
ACCUSED: Okay.
HER HONOUR: And no doubt you will be convicted and if that affects your visa well its your fault.
ACCUSED: Yeah.
[44] Exhibit G1, G2, pages 247 to 249.
The evidence before the Tribunal is that the Applicant breached the AVO order, 10 months into the 12 month period it was in force, by sending three text messages which sought to check on the welfare of Ms X’s child, after crossing the street to avoid her when seeing her in public.
The Tribunal notes the Applicant admitted he had been consuming alcohol which lead to him sending the text messages to Ms X.
Magistrate Huber’s own description of the Applicant’s text messages sent to Ms X was that they were “relatively innocuous messages”. Nevertheless, the AVO order was breached through the Applicant’s attempts to communicate with Ms X. The Tribunal notes that Magistrate Huber warned the Applicant that if he breached the terms of the good behaviour bond he was granted, that it would affect the Applicant’s visa, which the Applicant acknowledged.
The Tribunal was not presented with any further evidence of criminal conduct by the Applicant, since the sentencing episode by Magistrate Huber on 26 February 2016, now over four years ago.
In closing submissions, the Applicant’s Counsel submitted[45]:
“The Applicant contends, however, that the conduct alleged against the Applicant with regard to the breach of the Apprehended violence order, and which was observed by Magistrate Huber on 26 February as “relatively innocuous messages that you left, there was certainly nothing by way of threats and nothing by way of an overture to have more contact but is was the fact that you wrote to her saying you felt bad that you walked past and that you felt awkward and hope she and the girls were okay, that where you leave it” was conduct that was not consistent with “an ongoing pattern of behaviour aimed at controlling a partner through fear” or that the Applicant’s conduct could be regarded as an example of “Controlling behaviour”.” [sic]
[45] Exhibit A5, page 17, paragraph 54.
To which the Respondent in their closing submissions has contended[46]:
“… the Applicant’s conduct which led to the making of an Apprehended Violence Order (AVO), and the conduct that gave rise to his breach of that order, is evidence of a disregard for Australian laws…. This submission is misconceived and seeks to diminish the significance of the Applicant’s conduct…”.
[46] Exhibit R3, page 1, paragraph 3.
The Tribunal, in reasons already detailed, has been mindful not to diminish the seriousness of the offences of the Applicant against Ms X, in circumstances where these offences were committed more than four years ago and there is no corroboration from the victim of the Applicant’s offending.
Domestic violence of any kind is not tolerated, and abhorred by the Australian community. The Tribunal acknowledges that domestic violence can result in significant psychological and or physical harm to victims from perpetrators.
The Tribunal does not accept the Applicant’s closing submission, that his offending did not amount to “controlling behaviour”, in the context of the description offered in the National Plan to reduce violence against women and their children[47]. The Tribunal notes that at the time of the offending of the Applicant in 2015, the NSW Police felt it necessary to proceed with a non-urgent application for an AVO against the Applicant.
[47] Exhibit G1, G2, pages 49 to 109 (with reference to page 53).
The Tribunal does, however, accept that in the period of time which has followed the Applicant’s offending the Applicant has taken reasonable steps to address his actions, which are further outlined in his submissions in the reasons that follow.
Medical treatment
In deciding whether there is more than a minimal or remote chance the Applicant, if allowed to remain in Australia, would engage in criminal conduct for which a conviction could be recorded, the Tribunal has had regard to the evidence of the Applicant’s current treating Clinical Psychologist, Dr Diane Cameron, in addition to other submitted materials outlining the Applicant’s medical history over the past year and a half.
Outline of previous medical treatment
Prior to treatment with Dr Cameron, medical reports submitted by the Applicant confirm that when he was residing in Sydney, he was seeking treatment through his General Practitioner (or ‘GP’), Dr Najiba Arian[48]. A GP Mental Health Care Plan, dated 30 November 2018 from Dr Arian, diagnosed the Applicant with “Anxiety and depression”, and “binge drinker”, prescribing the Applicant with “Diazepam 2mg Tablet”, and also stating the Applicant had a family history with “Father – Alcohol addiction”[49].
[48] Exhibit A4.
[49] Exhibit A4, page 1.
A progress medical report dated 13 January 2019 was also submitted from the Applicant’s then treating Psychologist, Ms Alexandra Irving, stating that “[The Applicant] has attended treatment for anxiety and addiction to alcohol. A further 5 session under the mental health care plan is recommended to assist with reducing anxiety and alcohol use… [The Applicant] is receptive to therapy and is engaging throughout each session… [The Applicant] advised that he requires another 5 sessions to achieve desired treatment outcomes”[50].
[50] Exhibit A4, page 6.
A letter submitted to the Tribunal of 6 February 2019, by Dr Carl Wong (filling in for the Applicant’s usual GP at the time, Dr Arian), thanked Ms Irving for her letter of 13 January 2019, and further stated the Applicant, “reports doing well under your care and of an improvement of his depression and anxiety symptoms also with the assistance of recent pharmacotherapy introduction, in the context of the continued uncertainty of his immigration work visa. He reports still excessive alcohol intake which I have provided counselling and education for; He denies any self harm or suicidal ideations. I think he would benefit from a further 6+4 sessions under the Mental Health Care Plan review for this calendar year, noting that he started his plan last year. His next Medicare plan review would be in 3 months time”[51].
[51] Exhibit A4, page 4.
Further to the Applicant’s prior medical history, the Applicant submitted through a letter to the AAT that, “I attended 6 Alcohol Anonymous meetings” during the time he had sought treatment with Ms Irvine[52]. Whilst there are no records of the Applicant’s attendance of those meetings, the Tribunal notes the following exchange in cross-examination from the Respondent[53]:
Mr Cuthbert: Just while that’s happening, [Applicant], have you been to any sessions of alcoholics anonymous?
Applicant: I did, yes, in Lane Cove.
Mr Cuthbert: … I don’t think that any documents that your representative submitted were from AA, is that because you don’t have any receipts or anything that shows that you attended?
Applicant: It was - like when I was in Lane Cove it was kind of part of my - when I saw Alexandra, it was - it was kind of - she didn’t make me go, it was kind of advice from her so I went on my own behalf and - yeah, it was very - it was - it was eye opening, it was pretty good, I really - I got a lot from it.
Mr Cuthbert: Do you remember when you attended Alcoholics Anonymous?
Applicant: Yeah, it was probably two weeks after I first started seeing Alexandra, so towards the end of 2018 I think. And again, that’s a ballpark figure, I’m just thinking because it was a while ago.
[52] Exhibit G1, G1, page 9.
[53] Transcript, page 58, lines 19 to 33.
Evidence of Dr Cameron
The Tribunal heard extensive evidence from Dr Cameron over the course of approximately two hours, covering a range of issues regarding the Applicant. In addition to providing evidence at the hearing, the Applicant submitted a report from Dr Cameron dated 9 April 2020, outlining her views in relation to specific questions regarding the Applicant, such as her diagnosis of his psychological condition, her professional opinion regarding his past issues, and her view as to the likelihood of his reoffending[54]. The Applicant was referred to Dr Cameron in February 2020 by his GP.
[54] Exhibit A2, pages 1 to 8.
The Respondent has made the following contention in relation to Dr Cameron’s oral submissions made to the Tribunal in their closing written submissions[55]:
… the Respondent submits that Dr Cameron’s oral evidence confirms that the Tribunal should accord her opinion little weight. Dr Cameron readily acknowledged the ‘unusual’ circumstances in which she was asked to provide an opinion, namely the Applicant initially approached her directly rather than through his legal representatives, and that she was not provided with a formal briefing letter. Dr Cameron also readily acknowledged that she was not provided with the Tribunal’s Guideline on Persons Giving Expert Opinion and Evidence and that her report was not prepared in accordance with it (for example, she did not provide any signed declaration of her ‘overriding duty to provide impartial assistance to the Tribunal’ as required by the Guideline). At the hearing, Dr Cameron sought to re-cast her opinion as being that the Applicant is ‘minimal’ or ‘very low’, as opposed to ‘low’. However, she conceded that she used these words having read the Respondent’s SFIC after preparing her report.
[55] Exhibit R3, pages 2 and 3, paragraph 6. SFIC, Statement of Facts, Issues and Contentions, as per Exhibit R1.
The Tribunal rejects the Respondent’s contention in relation to Dr Cameron’s submissions, and relies on the comments of Lord Denning MR in Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384:
There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him.
At the commencement of her evidence Dr Cameron provided her qualifications for the record at the hearing, which the Tribunal has included below[56]:
… PhD in Clinical Psychology. The doctorate I received in 2002. Prior to that I studied and qualified in psychoanalytic psychotherapy at the Tavistock Clinic in London. Prior to that I qualified in group psych - as a group psychotherapist with the London Institute of Group Analysis. Prior to that I have a Masters Degree in Clinical Psychology from the University of Melbourne that was two years and I acquired that in 1989. That was within the separate schools of cognitive behavioural therapy, psychoanalytic psychotherapy and neuro-psychological assessment, which I did in the medical school at the University of Melbourne. Prior to that I had a Bachelor of Arts degree with an honours in psychology and that was at the University of Melbourne. That was in 1987. Prior to that I had a Bachelor of Arts degree in psychology and philosophy at Melbourne - the University of Melbourne and that was three years. That was in 1985. Prior to that I trained as a - I was a trained registered nurse. I trained at what was called then the Royal Brisbane Hospital and I worked as a registered nurse. That included work in a psychiatric facility, Wilson Park, on the hospital grounds. After that subsequent to that I trained and qualified further in accident emergency medicine and that was at the PANCCH Hospital in Melbourne. That hospital doesn’t exist anymore. It stands for Preston and North Coast Community Hospital. That specialised in accident emergency services. Those are my formal qualifications.”
[56] Transcript, page 21, lines 27 to 45.
Dr Cameron diagnosed the Applicant with “Anxiety and Depression which is a Reactive Type, and triggered by recent stressful events”[57].
[57] Exhibit A2, page 2 paragraph 1.3.
Alcohol consumption - Applicant
The Tribunal has observed, in reasons previously outlined, the consumption of alcohol as a factor in the Applicant’s prior offences, which have also been detailed in these reasons.
Counsel for the Applicant has contended that since the last episode of offending on 26 February 2016, the medical and psychological evidence of the Applicant has established that the Applicant has “taken active and positive stops to address his alcohol consumption and that he is currently seeking on-going psychological treatment in regard to a diagnosed condition of anxiety and depression” [sic][58].
[58] Exhibit A5, page 11, paragraph 35.
The Respondent has contended that the Applicant has sought to misrepresent his current pattern of alcohol use, and (amongst other contentions), the Applicant has only taken partial steps to rehabilitate himself[59].
[59] Exhibit R3, page 2, paragraph 5.
Regarding the Applicant’s alcohol consumption, the Applicant in a letter to the Tribunal submitted, “I have addressed my alcohol with a psychologist… because even though it NEVER MADE ME VIOLENT, it did however make me very immature and affected my judgement. I NO LONGER DRINK ALCOHOL”[60].
[60] Exhibit G1, G1, page 7.
The Tribunal heard evidence from the Applicant, that his original statement was no longer correct, with the following exchanges under cross-examination between the Respondent and the Applicant encapsulating the Applicant’s changed response in relation to his original statement that he no longer drinks alcohol[61]:
Mr Cuthbert: On the third paragraph down on page 7 says: ‘I no longer drink alcohol’. And that was when you made your tribunal application on 27 February, did you intend in February 2020 to give up drinking altogether?
Applicant: Well, put it this way, Christmas I spent - like, I spent my Christmas, I had my mother in a stroke ward and I had my nephew in a cancer ward, so I actually spent - I had to go back to the UK to (indistinct) and I spent Christmas in a hospital with my mother and nephew looking after them, before I flew back to Australia on New Year’s Day. It wasn’t a decision, it was just a wakeup call for me, there was a lot going on and I just thought that alcohol wasn’t the right way to deal with this. So I just - like I do everyday, I get up at 5.30 every morning, I exercise with my girlfriend and her family, and that - that’s what we do. I’m not perfect but - yeah, I just - it’s what I do. It was - I didn’t drink alcohol between 1 January until I wrote that. It’s never my intention to drink alcohol, but again, I don’t see alcohol as a big problem. It’s a problem with this and again I hold my hands up and take full responsibility for all of my actions.
Mr Cuthbert: Applicant, just to clarify something you just said, you say just then that you never intend to drink alcohol, do you mean to say by that that sometimes you just inadvertently start drinking or it just happens?
Applicant: Never, absolutely never, it never happens, it’s always planned for - for an occasion or something to celebrate.
[61] Transcript, page 60, lines 6 to 29.
The Applicant’s evidence is that from 1 January 2020, to the time he wrote and submitted the letter containing his statement, he no longer drank alcohol, and that his original statement to the Tribunal was correct up until the time of submission of the letter[62]. The Applicant has submitted that he has engaged in consuming alcohol on social occasions, and described in oral submissions what he views to be excessive consumption[63]:
[62] Exhibit G1, G1, page 7.
[63] Transcript, page 59, lines 20 to 43.
Mr Cuthbert: And my question is whether in February 2019 did you feel as though you were drinking too much at that time?
Applicant: Again, once - once a week, six to eight beers maximum, but at the time it was too much. Like, excessive to me is eight beers, so the word ‘excessive’ sounds a lot, but - yeah, I didn’t want to be drinking at the time, but - yeah, I had six to eight beers.
Mr Cuthbert: Then I think you say elsewhere in your documents attached to the tribunal application that you are currently not drinking alcohol, is that correct?
Applicant: So when I first started seeing Dr Cameron I didn’t and then I - I had a few beers with mother came out of hospital back in the UK, which was a few weeks ago, and then last weekend we celebrated my girlfriend’s parents anniversary and we had some - we had some wine with that, but other than that, no.
Mr Cuthbert: So it’s not correct to say that you fully abstained from alcohol, but you say that you don’t consume alcohol to excess, is that a fair description of the current situation?
Applicant: Yeah, that’s correct, yes.
Mr Cuthbert: When you talk about ‘excessive consumption’ for you that’s approximately eight beers or more, is that right?
Applicant: Ten maximum, yes.
Mr Cuthbert: Can you remember when would be the last time you had say eight beers, can you remember that?
Applicant: Yeah, yeah, the night I discussed with Dr Cameron the night when my mother came out of hospital I had - I had six to eight beers then.
The Applicant’s current partner, Ms Caitlin Zerafa, provided a written submission to the Tribunal and appeared as a witness by videolink. Evidence from Ms Zerafa was that she had witnessed the Applicant ‘self-medicate’ with alcohol, but that “not once has he been threatening or violent towards himself, myself or anyone else. As a couple we have acknowledged, discussed and resolved this and I believe it not to be a problem now or into the future”[64].
[64] Exhibit A3, page 2, paragraph 15.
Under cross-examination, Dr Cameron provided her opinion in relation to the Applicant’s consumption of alcohol[65]:
Mr Cuthbert: I think you said earlier this morning, in response to a question about [the Applicant’s] consumption of alcohol and his current use of alcohol, you said, “I am taking [the Applicant] on the face of it”. When you said that did you mean that your conclusion is based on what he has told you about how much he is currently drinking?
Dr Cameron: Well, that of course is considered. I do have independent assessments. I’ve got - I’ve already mentioned, well, you know, I don’t take everyone at face value, you know, most people with drinking problems underestimate what they drink and minimise it. I mean, that’s commonly known. But I believe him. As I said, he’s on anti-depressant medication and people I just know - patients who drink on their anti‑depressant medication, they get intoxicated at a rapid rate, you know, multiplied by three times quicker and I have patients who don’t always know - or haven’t been informed maybe, or didn’t take notice of their GP when they said, “Don’t take alcohol on this”. But suffice to say, I would have noticed it. And as I said, I’ve seen [the Applicant] regularly so I have a before and after assessment. Now, can I also say - and it’s only two times - that I’ve invested more providence in believing him with what we have discussed. Now, I think we are going back about three weeks ago now, two or three weeks ago. He did, and he told me, he initiated this and he said, ‘Look I haven’t had a drink since December 2019.’ It might have been New Year’s Eve I think, but he said, ‘I must confess that I have to stay out waiting to do a phone call to my mother until - in the morning and I had some drinks, but that’s the only time that I’ve done that’, and I believed him and he initiated that, and I’ve said to him all along, you know, ‘The only way we’re going to get forward is that you’re honest and upfront. I’m not going to judge you. I’m - you know, here to help and to identify where there’s areas you could improve, you know, to be happier.’ So I think we’re sort of working on the same page so to speak.
…
Mr Cuthbert: You said before that people who are addicted to alcohol generally downplay or underestimate how much they’re drinking. Do you think [the Applicant] downplays or underestimates how much he drinks?
Dr Cameron: There’s always that possibility, but as I said I don’t see evidence of it, and if he were drinking a lot on top of the antidepressant medication I would see it, you know, and he presents as very, very fit, as I said punctual, alert - you know, so - and he certainly - he certainly has reduced his reliance on alcohol.
Mr Cuthbert: Dr Cameron, just on that particular issue of whether you would notice, if you see [the Applicant] once a week you wouldn’t necessarily notice if he was binge drinking say once a fortnight, would you; you might notice if he drank the night before seeing you?
Dr Cameron: There’s that possibility, but I - the way our working relationship is, and I’m just a therapist, you know, I’m just a therapist, and you get best results with a working relationship. I believe him when he tells me. His girlfriend doesn’t drink very much. They’re very much into exercise. As I said he gets up early, 5.30, he does - and particularly with his unemployment he’s been very much to a routine, and I think that he would feel confident - you know, he said to me, ‘Look, I did have a bit of that relapse, but it just reminded me I don’t really want it or need it.’ He sounds plausible.
[65] Transcript, page 35, lines 9 to 36; and page 36, lines 11 to 31.
Evidence before the Tribunal indicates that the Applicant has taken significant steps to curb a potential trigger for his offending behaviour, the consumption of alcohol. The evidence of the Applicant’s treating Clinical Psychologist, Dr Cameron, is that he has taken steps to address his issues with alcohol and his underlying psychological conditions, with good outcomes[66].
[66] Exhibit A2, page 2, paragraph 1.3.
The Tribunal observes that there is no further evidence before the Tribunal regarding any further offending behaviour since the Applicant’s last episode in February 2016.
Likelihood of reoffending
Dr Cameron’s report provided the following opinion in relation to the risk of the Applicant committing any further acts of domestic violence against his current partner (Ms Zerafa)[67]:
I am of the opinion, that there is a low risk of domestic violence reoccurring in [the Applicant’s] current relationship. He has since sought psychological treatment targeting the issues driving his past behaviour. He has developed better coping skills, has since matured, and learnt from the consequences of his making poor judgements. He is in a better and mentally healthier place now and has significantly reduced his alcohol intake. Poignantly, he demonstrates a capacity to reflect on his actions and behaviour, and shows a capacity for empathy, remorse and reparation – and thought fundamental propensities for sustaining a healthy relationship.
[67] Exhibit A2, page 7 and 8, paragraph 4.6.
In oral submissions before the Tribunal, under cross-examination Dr Cameron further sought to clarify her opinion of the Applicant’s “low risk of domestic violence reoccurring” as “minimal” or “very low”, the Tribunal refers to the following exchange[68]:
Mr Cuthbert: Dr Cameron, just to clarify and reiterate that question. You used the words ‘low risk’ in your report, but this morning you said minimal risk. Do you think there is a difference between low and minimal risk of reoffending?
Dr Cameron: Not in my mind, and the way I intended my term, and there’s good reason why I say that, why I think there is a minimum - or, you know, in my words low. Look, I beg your pardon if I was misleading or seeming to mislead, but I meant minimal. I don’t believe he is a risk.
[68] Transcript, page 39, lines 24 to 31; page 41, lines 31 to 47; and page 42, lines 1 to 11.
In further cross-examination, when Dr Cameron was pressed as to why she sought to change her opinion from a “low” to “minimal” or “very low” risk, the Tribunal refers to the following exchanges[69]:
Mr Cuthbert: Is that partly what caused you to select the word ‘minimal risk’?
Dr Cameron: Well, I’m trying to use - and again really I’ve just glanced over this document. I guess out of interest with the patient how is he - how is he going to respond to this. I’m trying to manage him. So would I have used the word? I think the document informed me, look, clarify what you mean by ‘low’, and I’m saying low in terms of low, moderate, significant. So if the word ‘minimum’ more accurately reflects my meaning, well so be it, they are on a par. We can have different language, and I really just want to convey my opinion in a way that’s understood by you and how it was intended. So I guess just noting that, low, and just noting the argument that low is still something and it’s not good enough. It was put in a much more sophisticated way, but anyway - so I really wanted to convey, look in my knowledge of this man, and I’ve worked with him over some time, I’ve got, I think three months, so in my knowledge of him - and, you know, I work closely with people, in my knowledge I would say there’s a very minimal or low risk of him reoffending. I certainly think that he’s a low risk to society overall. He’s just not that kind of person, and I think that driving factors of his alcohol, depression and conflict, you know, conflict over his past relationship where he didn’t get closure.
…
Mr Cuthbert: I don’t think there is any suggestion that [the Applicant] has been physically violent in the past. Are you able to comment on in your opinion the risk of him engaging in other offending like harassing or unwanted communications as opposed to physical violence?
Dr Cameron: Certainly. It’s a good point, and certainly recognising that it’s not just physical violence but psychological or mental violence certainly needs consideration of, but I am of the opinion it’s most unlikely because he’s learnt better coping skills. I mentioned previously about the communication skills, that I purposely asked him and Caitlin to practice - fill out my worksheet that I - it’s about four pages. I can forward that if that’s useful. You know, to fill that out and so it just helps them to communicate better in events that there was conflict, and I think he actually is - you know, he takes on board his training and he’s showing and making use of it. I’ve seen many, many people over my 30 something years of practice and, you know, you get a working knowledge of them. This person, and I say with great sense of confidence, and I can never say never, but he is not - I think he’s learnt from his mistakes. He’s not likely to do it again, and he’s really not a badly aggressive person, and there’s certainly in the many times that I’ve seen him there’s many times it could be played out by being late, forgetting appointments, mixing them up, controlling me in the interview. I mean my eyes are wide open when I do my assessments, you know. I may be a bit long in the tooth, but I have acquired knowledge, and I really think he’s a very low risk, and again, and forgive me for repeating myself, but the driving forces, the conflicts, mental conflicts, depression and the alcohol have all been lifted. He’s responded well to treatment, and there’s all indication of that and coping well with these stressful circumstances. He just doesn’t fit the profile of a mentally manipulative, controlling, harassing, highly dependent individual. He doesn’t fit that profile.
[69] Transcript, page 39, lines 36 to 47; page 40, lines 1 to 7; page 41, lines 31 to 47; and page 42, lines 1 to 11.
The Tribunal found Dr Cameron’s evidence to be extremely credible (particularly in regards to Dr Cameron’s qualifications) and persuasive. The Tribunal accepts Dr Cameron’s assessment that the Applicant’s risk of further reoffending is “minimal” or “very low risk”.
CONCLUSION – DOES THE APPLICANT PASS THE CHARACTER TEST?
Having considered all of the evidence before the Tribunal, the Tribunal is satisfied that the Applicant has:
(a)accepted responsibility for his actions which lead to the offending and offences undertaken by him in 2015 and 2016;
(b)taken reasonable steps to address his underlying psychological conditions with appropriate pharmacotherapy and psychological counselling;
(c)taken responsibility for his consumption of alcohol by undertaking psychological counselling, and subjected himself to independent psychological assessments; and
(d)demonstrated that he has understood the gravity and benefit of the non-custodial sentence granted to him on 26 February 2016 through a good behaviour bond, evidenced by the fact that no further offending behaviour has occurred since this time.
The Tribunal is satisfied the Applicant has demonstrated a genuine understanding of his offending, the seriousness of it, and that he accepts full responsibility for it.
The Tribunal accepts the Applicant’s evidence regarding his characterisation of the events in his relationship with his former partner, ultimately leading to the Applicant’s offending in 2015 and 2016. Albeit, this is without corroborating statements from the Applicant’s former partner, but the Tribunal does refer to the psychological report from Dr Cameron which confirms the Applicant’s psychological condition is consistent with the events as described by the Applicant.
In just over four years since the Applicant’s last recorded offence in 2016, the Applicant has:
(a)held down gainful employment (albeit currently stood down during the Covid-19 pandemic, but with a job to return to when restrictions are lifted[70]);
(b)a functioning relationship with his current partner Ms Zerafa; and
(c)a support network of friends including the family of his current partner Ms Zerafa to support him.
[70] Transcript, page 10, lines 14 to 26.
The Tribunal further notes that amongst evidence submitted from the Applicant are character references in support of the Applicant from 14 individuals known to the Applicant[71].
[71] Exhibit G1, G2, pages 215 to 241. The Tribunal notes that none of the individuals who supplied character references were cross-examined at the hearing.
In the course of the evidence under cross-examination, the Applicant shared his hope to have a future in Australia with his current partner[72]:
Mr Cuthbert: Ms Zerafa says in the next paragraph, paragraph 16: ‘I see my future with [the Applicant] as lifelong, short-term we looking to move in together, long-term we have discussed marriage.’’ Are you looking to move in with Ms Zerafa?
Applicant: As soon as - as soon as my visa situation is sorted we will move in together and start a family, that’s what we’re waiting for.
Mr Cuthbert: Is that because you’re waiting to see whether you can stay in Australia before you make that decision?
Mr Applicant: She’s the - honestly she’s the love of my life - like, I’ve never been so happy, so whatever happens she’ll come - if she has to, if she has to leave she will leave and come with me, but I’ve got such a good relationship with her and her family, like, I’m part of the family, like her mum and dad are my mum and dad right, given my mum’s current situation. Her mum and dad, her sisters are my sisters, the thought of leaving upsets me but it’s my family, it’s my family here and it’s - I’m doing everything I can to - I’m very lucky to have them and - yeah, I’m just - they’re my family, they’re my family, I don’t know what I’m going to do without them but - yeah, they’ll always have my back no matter what. But the thought of losing them really upsets me.
[72] Transcript, page 61, lines 37 to 47; and page 62, lines 1 to 10.
Having regard to the totality of evidence before the Tribunal, the Tribunal is satisfied that the risk of the Applicant reoffending or otherwise engaging in future criminal conduct is a minimal risk.
Accordingly, the Applicant does not fail the character test on the basis of s501(6)(d)(i) of the Migration Act.
Further, the Tribunal is satisfied, based on the evidence before it, that there is no other basis for concluding that the Applicant fails the character test in s501(6) of the Migration Act.
Accordingly, the Tribunal decides not to refuse to grant the Applicant an Employer Nomination (Permanent) (Class EN) (subclass 186) visa under s501(1) of the Migration Act.
As the Tribunal has found the Applicant does pass the character test in s501(6) of the Migration Act, it is unnecessary for the Tribunal to give consideration to the secondary question regarding the exercise of the discretion in s501(1) of the Migration Act.
DECISION
The Tribunal sets aside the decision made by the delegate of the Respondent dated 18 February 2020[73], and in substitution, the Tribunal decides:
[73] Exhibit G1, G2, pages 17 to 21.
(a)Not to refuse to grant the Applicant an Employer Nomination (Permanent) (Class EN) (subclass 186) visa under s501(1) of the Migration Act 1958 (Cth).
I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola
……………[SGD]………………
Associate
18 May 2020
Date of hearing: 7 May 2020
Applicant: Mr Stephen Richards
Counsel for Applicant: Mr Peter Lyons, FC Lawyers
Solicitors for Respondent: Mr Neil Cuthbert, Clayton Utz
‘Annexure 1 – Exhibit Register’
Exhibit
Number
Description
G1 Section 501 G-Documents, pages 1 to 411, received 19 March 2020. R1 Respondent’s Statement of Facts, Issues and Contentions, pages 1 to 15, received 24 April 2020. R2 Applicant’s Landing Cards, pages 1 to 4, received 24 April 2020. R3 Respondent’s Closing Submissions, pages 1 to 4, received 12 May 2020. A1 Applicant’s Statement of Facts Issues and Contentions, pages 1 to 7, received 14 April 2020. A2 Report of Dr Diana Cameron, Clinical Psychologist, pages 1 to 8, received 14 April 2020. A3 Affidavit of Ms Caitlin Zerafa, pages 1 to 2, received 14 April 2020. A4 GP Mental Health Plan, pages 1 to 6, received 27 April 2020. A5 Applicant’s Closing Submissions, pages 1 to 25, received 8 May 2020.
Key Legal Topics
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