Sabharwal and Minister for Immigration and Border Protection (Migration)

[2016] AATA 940

Sabharwal and Minister for Immigration and Border Protection (Migration) [2016] AATA 940 (25 November 2016)

Division	GENERAL DIVISION
File Number(s)	2016/4696
Re	Sahil Sabharwal
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President Bernard J McCabe
Date	25 November 2016
Place	Sydney

The decision under review is set aside. The matter is remitted to the respondent with a recommendation that expert evidence be sought in relation to the applicant’s alcohol misuse, and mental health issues.

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Deputy President Bernard J McCabe

CATCHWORDS

MIGRATION – visa refusal – whether discretion to refuse visa enlivened – risk of engaging in criminal conduct if allowed to remain in Australia – where applicant found guilty of alcohol related offences – where insufficient evidence to determine future risk of reoffending – decision under review set aside – decision in substitution that the matter be remitted to the respondent for reconsideration with further evidence.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Migration Act 1958 (Cth) s 500, 501

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 entitled ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’, 22 December 2014

REASONS FOR DECISION

Deputy President Bernard J McCabe

25 November 2016

1. Sahil Sabharwal becomes obnoxious when he drinks to excess. He has made a pest of himself to the police on a number of occasions when he was drunk. He has also been convicted of drink-driving. That behaviour has landed him in trouble with the immigration authorities. On 15 August 2016, a delegate of the Minister for Immigration and Border Protection relied on s 501(1) of the Migration Act 1958 to refuse Mr Sabharwal’s application for a new visa that would permit him to remain in this country. The delegate concluded the discretion to refuse the visa was enlivened because the applicant failed the ‘character test’ as defined in s 501(6) of the Act as ‘there is a risk that the person would…engage in criminal conduct in Australia’: s 501(6)(d)(i). Mr Sabharwal has asked the Tribunal to review that decision.

2. The applicant says he no longer drinks to excess. On that basis, he says I should not be satisfied ‘there is a risk he would…engage in criminal conduct’. If the applicant is right about that, the discretion to refuse the visa under s 501(1) is not enlivened. The applicant argues that the discretion to cancel should not be exercised against him even if it is enlivened.

3. I will begin by explaining what the applicant has done that has raised questions over his character. I will point to gaps in the evidence before considering what I should do.

   WHAT HAPPENED?

4. The applicant came to Australia on a student visa in April 2007. A student visa is a temporary visa. He successfully applied for new student visas before he applied most recently for a Skilled (Residence)(Class VB) visa that would effectively confer permanent resident status. That application was unsuccessful and prompted these proceedings.

   The applicant’s offending

5. Mr Sabharwal was detained after he was found driving with a high range concentration of alcohol late in the early hours of 20 June 2012. In his oral evidence, he explained he had consumed a few beers – but the blood alcohol reading recorded in the Court Attendance Notice shows the applicant must have been drinking considerably more than that. The applicant was convicted on 5 July 2012 and his licence was suspended for 12 months.

6. The second set of charges arose out of an incident at the Westfield Shopping Centre in Hornsby. The facts are set out in the police facts sheet in exhibit two. Police were called to assist security officers in the centre on 7 August 2015 after the applicant was seen swearing and abusing customers in the food court. Two female police officers approached the applicant. He was verbally aggressive towards them. The applicant was arrested at 8.45am for assaulting one of the police officers while she questioned him about using offensive language in a public place. The applicant kept up a stream of venomous and derogatory comments addressed towards both officers. The abusive language continued after he was taken to the police station. He was also charged with resisting arrest, using offensive language and a second count of assaulting police.

7. The applicant was clearly drunk early in the morning. He was disturbing the peace, although he was not charged with an offence of that nature. He was verbally aggressive but – while a handful – he was not violent. (His resistance involved going limp and being uncooperative; the assaults appeared to occur when the applicant bumped against the police officers. He did not strike the officers although it appears he did try and spit at one of them.) The applicant was allowed to sober up somewhat before he was released on bail.

8. The details of this tawdry interaction are, for the most part, unremarkable. But the respondent says the offensive language merits closer attention. The fact sheet does not make clear which of the applicant’s utterances was the subject of the offensive language charge. The fact sheet records the applicant using a number of expletives but that is not necessarily enough to ground a charge. I was told the real problem for present purposes was the applicant’s shouted description of the arresting officers as “whores” and “fucking sluts” after they had effected the arrest and put him in the back of the police vehicle.

9. The police records provided at the hearing show the applicant rang Hornsby station on several occasions in the days that followed his arrest and release. On 3 September 2015, he called repeatedly to ask for a variation of his bail conditions so he could attend a church event at the Westfield centre where he was arrested. Police declined his request. Later that evening, he rang the station several times and asked for the phone number of an officer so he could send a ‘selfie’. He turned up at the station early the following morning and was disruptive before he was asked to leave. He described the officer who had arrested him earlier as a “slut”. He was obviously affected by alcohol and returned on several occasions to the police station to make a pest of himself throughout the day: exhibit two at p 10-11.

10. Mr Sabharwal had another run in with police on 21 October 2015. Officers were called to the applicant’s flat to assist sheriff’s officers who were in the process of evicting the applicant. He appeared drunk when the officers arrived. He declined to leave and the police officers removed him from the premises. He became uncooperative and he was placed in handcuffs. At that point, the applicant turned his ire on the real estate agent who had sought the eviction. He is recorded (exhibit two at p 18) as addressing the agent as follows:

    Steven, I will fuck you up. This is your fault. I am going to rape your mother. I will stick my dick deep inside her.

11. The applicant was subsequently charged with stalking or intimidating with the intent of causing fear of physical harm. But he was not done yet. As the applicant was bundled into the police vehicle, he recognized the police officer who had arrested him on the previous occasion. He addressed her by name from the inside of the vehicle, shouting:

    Laura is a slut. Laura you are a slut, your mother’s a slut. I will rape you Laura. I will rape your children. I hope your children are born with disabilities. Laura you are a slut. Your grandmother is a slut. I fucking hate you Laura.

12. The applicant was charged with intimidating a police officer in execution of her duty. There was more to come. After he was transported to the station and placed in the dock, he urinated on the back wall of the dock and the seat. The dock had to be forensically cleaned at a cost of $450. The applicant was charged with damaging property.

13. The fact sheet notes the applicant contacted the station by phone on a number of occasions in the days that followed. He asked to speak with the female officer whom he had insulted. He also attended the station and behaved erratically.

14. The applicant initially disputed aspects of the accounts provided by police. In a statement provided to the Minister’s department, he denied he had misbehaved to the extent described in the fact sheets: exhibit one at p 79. When he gave oral evidence at the hearing, he acknowledged the accounts provided by police were accurate although he said he did not have a clear recollection of what occurred. I have no reason to doubt the accounts in the fact sheets, and I accept them. But I was left with the impression that the applicant’s acknowledgement of the police accounts was a tactical concession rather than a demonstration of insight and contrition.

15. Mr Sabharwal was dealt with in respect of all the charges arising out of the events of 7 August and 21 October 2015 at Hornsby Local Court on 28 October 2015. He pleaded guilty. The record of the convictions is reproduced in exhibit one at pp 76-77. He received small fines for the offensive language and resisting police. He was required to do 150 hours of community service in respect of the stalking/intimidation of an individual charge and 75 hours of community service for each of the charges of assaulting police. The court imposed bonds in respect of the destruction of property charge and intimidation of a police officer charge. The terms of the bond required that the applicant attend counselling with respect to his alcohol use.

16. The evidence about the applicant’s counselling is worth noting. The applicant volunteered in his statement (exhibit one at p 79) that he “decided to take a few counselling sessions just to make sure it never happens again”. That statement misrepresents what occurred: Mr Sabharwal was required to attend the counselling sessions as a condition of his bond. He had no choice in the matter.

17. Mr Sabharwal attended seven drug and alcohol counselling sessions at the Hornsby Drug and Alcohol service between October and December 2015. A community corrections officer confirmed on 21 June 2016 that Mr Sabharwal was “making efforts towards behavioural change” and “appears to be making efforts towards a law abiding lifestyle”. On that basis, the supervision component of the applicant’s bond – the requirement to continue with counselling sessions – was terminated early: exhibit one at p 85.

    Evidence of the applicant’s rehabilitation

18. The applicant said in his statement (exhibit one at p 83) that he began drinking heavily in 2015 after he moved out of his brother’s home. He had been living in the house with his brother and sister-in-law and their daughter. The applicant’s brother, Rahul Sabharwal, said he and his wife wanted their privacy. It became apparent during Rahul’s cross-examination that there was tension in the household over the applicant’s behaviour: it seems he was not pulling his weight around the home. The applicant said in his statement that he realized it was a mistake to move into an apartment by himself rather than sharing with friends. He referred to being depressed and anxious and said he started to rely on alcohol. That is how he got himself into trouble, he explained in his statement.

19. Mr Sabharwal said he realized the error of his ways after the incidents with the police. In his statement (exhibit one at p 83), he explained:

    After the counselling sessions I stopped drinking and in the New Year I made a firm decision that I will never get in trouble again and I will turn my life around and since then I have put in a lot of work in myself to become a better person than I was last year and have succeeded in overcoming the hardships I was facing. I feel like a complete new personal (sic) now and I’m embracing all the changes I’ve made in my life and will keep trying harder to become even a better person.

20. The applicant said he moved into shared accommodation, reconnected with his brother and started attending church while he was still in the community: exhibit one at p 83. (Rahul and his family have subsequently moved from Sydney to Melbourne but he indicated in cross-examination that the applicant could move to Melbourne with the family if he is allowed to stay in Australia.)

21. This essentially positive message was undermined somewhat when the applicant acknowledged in cross-examination that he continued to drink. When questioned about the claims in his statement suggesting he became abstinent, the applicant said he meant he had stopped drinking to excess. His brother agreed the applicant continued to drink while he was in the community in the first half of the year; although Rahul was reluctant to admit the applicant drank to excess, Rahul agreed he would prefer if his brother gave up drinking altogether. The applicant conceded that would be a good idea but said his counsellor had told him he should reduce his alcohol intake gradually.

22. All of the applicant’s relatively low-level offending appears to be connected to alcohol misuse. When he does not drink to excess, the evidence suggests he is able to live within the law: see, for example, the evidence of the community corrections officer at exhibit one, p 85. It follows the risk of Mr Sabharwal re-offending is dependent on whether he can successfully manage his alcohol intake.

23. It is entirely possible the applicant’s excessive consumption of alcohol was a response to the sense of crisis he felt after he was effectively forced to move out of his brother’s home to live alone in a flat he could not afford. (He insisted he was employed throughout the time he was in the community in a variety of hospitality roles but his answers in cross-examination suggest he was almost certainly under-employed.) If he has not developed an alcohol habit, the prospects of him controlling his behaviour in the future are good. But is that the case?

24. The reference to depression and anxiety in the applicant’s statement (exhibit one at p 83) is troubling. I asked the parties at the outset of the hearing if one of them proposed to lead medical or other specialist evidence that discussed whether the applicant experienced clinical depression or anxiety that might prompt him to self-medicate with alcohol. I was also interested to know whether the applicant could be diagnosed with an alcohol misuse disorder. (I note the applicant was convicted of drink-driving in 2012. He had a high blood-alcohol reading on that occasion. That offence may be an isolated incident, or it might suggest an ongoing problem with alcohol.) If he did experience any of these psychiatric conditions and they were not effectively treated, the risk of further offending is much greater.

25. The Minister’s delegate had not asked for any evidence of this nature in the course of making the reviewable decision. The applicant’s representative said evidence had not been obtained for these proceedings. That created a problem: s 500(6H) and (6I) prohibited the introduction of evidence at the hearing that had not been previously disclosed to the Minister.

26. During cross-examination, the applicant disclosed he is now being treated with anti-depressant medications. The hearing was adjourned so that evidence could be obtained about this from his treating general practitioner. Clinical notes were tendered at the resumed hearing. They revealed the doctor prescribed Lexapro for depression on 15 June 2016. The doctor also provided a referral to a psychologist for treatment. The applicant told the immigration authorities about his condition and the medication he was prescribed when he was taken into detention: exhibit two at p 25. The applicant said one of the doctors engaged by the Minister subsequently adjusted that medication.

27. The applicant’s general practitioner was not called to give evidence. I accept that was difficult to arrange at short notice. I was asked to make what I could of the general practitioner’s clinical notes. Mr Sharpe, who represented the Minister, questioned the applicant about records of his admission to Hornsby hospital in January 2015 that were attached to the clinical notes. Those records say the applicant presented seeking ‘alcohol withdrawal’. The discharge referral form from the hospital said the applicant had experienced issues with alcohol and aggressive behaviour. He was prescribed anti-abuse medications and advised to see his general practitioner for a follow up. The applicant said he stopped taking the medications a short time later because he experienced side effects. He did not see his general practitioner in the weeks following his discharge. In cross-examination, he dismissed the admission to hospital as the product of excess at Christmas time rather than an indication of a deeper problem.

28. I am reluctant to draw my own untutored inferences about the applicant’s health from the general practitioner’s clinical notes. These matters are properly the subject of expert evidence which I can then use in my assessment of the risk of the applicant engaging in further criminal conduct. The applicant did not provide evidence of that nature to the delegate or to the Tribunal, but the delegate did not ask for it either – even though the delegate was aware of the same material (most obviously the statement in exhibit one at p 83 and the drink-driving conviction in 2012) indicating a connection between alcohol misuse and mental health issues that prompted me to ask about the state of the medical evidence at the commencement of the hearing.

    Assessing risk

29. The delegate assumed the applicant’s criminal history of itself provided a basis for finding there was a risk of him engaging in criminal conduct. That is a contestable assumption. In a case like this, one would have thought the delegate should refer to the obvious risk factors when assessing the risk of further offending. I note clause [6] of annex A to the Ministerial Direction No 65 entitled Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – which discusses the operation of the character test – certainly assumes the decision-maker will go further. Clause [6(3)] says:

    It is not sufficient to find that the person has engaged in conduct specified 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.

30. But even if I assume the applicant does not pass the character test because there was a risk of him engaging in criminal conduct, I am still required to have regard to the considerations in the body of the Direction. Part B of the Direction refers to three primary considerations which I must take into account when considering the exercise of the discretion to cancel. The first of these is the need for Protection of the Australian Community. To that end, the Direction says (at clause [11.1]) I must have regard to the nature and seriousness of the non-citizen’s conduct to date. But it also says I must have regard to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Clause [11.1.2(3)(b)(i)] points out that I should place particular value on “information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending”.

31. The absence of expert evidence addressing the applicant’s mental health issues makes it difficult to complete the risk assessment contemplated in clause [11.1] of the Direction.

32. I told the parties during the hearing that I was considering remitting the matter to the Minister pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 with a view to having the applicant seen by appropriate experts who could prepare a report on whether he has an alcohol misuse condition or other mental health issues that might raise the risk of him misusing alcohol and engaging in further offending. Mr Sharpe, for the Minister, urged me not to adopt that course. While he conceded the power to remit was available in appropriate cases, he pointed out it should be read subject to the legislative intention that reviews of this nature be concluded within a fixed time frame.

1. There is some force in Mr Sharpe’s point, but I am satisfied it is appropriate to remit for further consideration in this case. The need for speed in these cases does not trump the obligation to reach the correct or preferable decision. If the material before the Tribunal includes obvious gaps that are capable of being addressed, the correct or preferable decision may be to remit the matter for further consideration. In this case, the parties appeared not to appreciate there was an obvious gap in the evidence until I raised the issue at the commencement of the hearing. (In most other hearings in the General division of the Tribunal, the gap would almost certainly have been identified during the course of the conferencing process. A failure to produce relevant evidence after that prompt might not be viewed in the same way.) There is no suggestion the applicant approached the hearing with a view to putting off the day of reckoning, and I am conscious of the need to avoid rewarding an applicant who has not prepared properly for a hearing although – in fairness – I should acknowledge the applicant‘s preparation was almost certainly complicated by the fact he was being held at a remote location.

   CONCLUSION

2. The decision under review is set aside. I decide that the matter should be remitted to the respondent for reconsideration with a recommendation that the decision-maker obtain independent expert evidence in relation to the extent and effect of the applicant’s alcohol misuse and any other mental health conditions that might trigger alcohol misuse.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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Associate

Dated 25 November 2016

Date(s) of hearing	7-8 and 11 November 2016
Counsel for the Applicant	Mr J Young
Solicitors for the Applicant	Shamser Thapa and Associates
Advocate for the Respondent	Mr William Sharpe
Solicitors for the Respondent	Minter Ellison