Ormsby and Minister for Immigration and Citizenship [2010] AATA 949 (26 November 2010)

Last Updated: 26 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 949

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4059

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LEIGHTON ORMSBY

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 26 November 2010

Place Brisbane (heard in Townsville)

Decision

The decision under review is set aside and, in substitution for that decision, a decision is made that the applicant’s visa not be cancelled.

.............Signed.................
Deputy President

CATCHWORDS

CITIZENSHIP & MIGRATION – cancellation of visa – “substantial criminal record” – protection of the Australian community paramount consideration – whether risk of re-offending – decision under review set aside – visa not cancelled

Migration Act 1958 (Cth) s 501(2)

REASONS FOR DECISION

26 November 2010

Deputy President P E Hack SC

INTRODUCTION

1. The applicant, Mr Leighton Ormsby, was born in New Zealand in 1980. As a New Zealand citizen at the time of his arrival into Australia in May 2006 Mr Ormsby was granted a class TY subclass 444 special category (temporary) visa.
2. In January 2009 Mr Ormsby pleaded guilty in the District Court at Brisbane to the offence of rape (committed in January 2008). On 9 September 2010, and as a consequence of that conviction, Mr Ormsby’s visa was cancelled by a delegate of the respondent, the Minister for Immigration and Citizenship, pursuant to s 501(2) of the Migration Act 1958 (Cth).
3. Mr Ormsby seeks a review of that decision.

LEGISLATION

4. By virtue of s 501(2) of the Migration Act, the Minister (or delegate) may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person “does not pass the character test” and the person does not satisfy the Minister that the person passes the character test.
5. A person does not pass the character test if the person “has a substantial criminal record”[1] as that term is defined in s 501(7) of the Migration Act. A person has a substantial criminal record if, inter alia, “the person has been sentenced to a term of imprisonment of 12 months or more”. By virtue of s 499 of the Migration Act the Minister may give written directions about the performance of functions or the exercise of powers under the Act to persons or bodies having functions or powers under the Act. Those directions are binding on primary decision-makers and upon the Tribunal.
6. Written directions – Direction [41] – were made by the Minister on 3 June 2009 and apply to the exercise of the power under s 501 of the Migration Act to cancel the visa of a person who does not satisfy the Minister that the person passes the character test. The Direction, under the heading “Objectives”, recites the desire of the Government “to protect the Australian community from unacceptable risks of harm as a result of criminal activity ... by non-citizens”. The Direction, in clause 5.2(2) requires a decision-maker, in reaching a decision on whether to refuse or cancel a visa, to consider:

“(a) the nature of any harm that the person concerned may cause to the Australian community; and

(b) the risk of that harm occurring.”

7. Part A of the Direction deals with the character test, Part B deals with the exercise of the discretion. Part B specifies “primary considerations” which must be taken into account and “other considerations” that should be taken into account where relevant. The primary considerations are:

“(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations ...”.

The other considerations need only be considered where relevant. I will defer setting out the other considerations that are relevant to the discussion of the application of the Direction.

FACTUAL BACKGROUND

8. Mr Ormsby was born in New Zealand and lived in that country until May 2006 when he came to Australia at the age of 26 years. In New Zealand he had been trained and worked in the forestry harvesting industry however his employer went into liquidation. A relative of his suggested that he come to Australia for the greater employment opportunities. He was in consistent employment during his time in Australia prior to his imprisonment.
9. The offence that Mr Ormsby committed arose following drinking sessions at nightclubs in Brisbane. Mr Ormsby struck up a friendship with a group of people and ended up going back to the residence of some, at least, of the group to continue drinking. At a time when he was affected by alcohol he went to a bedroom in the residence and commenced having intercourse with a female member of the household who appears to have been asleep. He desisted immediately when the female awoke and pushed him away. He left the house and was arrested later the same day. He pleaded guilty, and was sentenced, on the basis that he had been “under an honest belief that [the complainant] was consenting, but that belief was objectively unreasonable in the circumstances”[2]. Mr Ormsby was sentenced to five years imprisonment with eligibility for parole after 21 months.
10. Mr Ormsby has undertaken a deal of education in prison and has successfully undertaken the Preparatory Sex Offender’s Program. He is presently undertaking the “New Directions: Medium Intensity Sexual Offending Program” (MISOP) and is expected to complete that course in early 2011. Mr Ormsby voluntarily agreed to a transfer to the Townsville Correctional Centre to be able to undertake these programs earlier than he would have been able had he remained in a correctional facility in South East Queensland.
11. Mr Ormsby has no relevant criminal history. He was convicted of an offence of driving with a blood alcohol level in excess of 0.05% in New Zealand in May 2005 for which he was fined $575 and, in March 2008, he committed what appears to have been a trifling breach of the Bail Act (Qld) by failing to report to police, as required by his bail conditions, on Good Friday. Mr Ormsby says, and I accept, that he had thought that he would not be required to report on that day.
12. There is no doubt that the abuse of alcohol has played a significant part in Mr Ormsby’s adult life. In the course of his participation in the “Getting Started” program he identified that he had used alcohol and illicit substances as a coping mechanism. He has acknowledged that he has, in the past, engaged in binge drinking. The offence of rape was committed whilst he was significantly under the influence of alcohol. But importantly, Mr Ormsby has said that he has completely abstained from alcohol since the commission of the offence. That evidence was not challenged and I accept it. Mr Ormsby is part way through the “Getting Smart” alcohol and drug program conducted at the Townsville Correctional Centre.

APPLICATION OF THE DIRECTION

13. There can be no doubt that Mr Ormsby does not pass the character test; he has been sentenced to a term of imprisonment of 12 months or more and thus has a “substantial criminal record”. It is necessary then to consider the primary and the other considerations.
14. Clause 10.1(2) of the Direction describes the factors relevant to the assessment of the level of risk of harm to the community as including:

“(a) the seriousness and nature of the relevant conduct; and

(b) the risk that the conduct may be repeated.”

The offence of rape is one listed as an offence considered serious although that hardly seems necessary. That said, the head sentence imposed, and the circumstances outlined in the sentencing remarks, suggest that this offence was at the lower end of the scale of seriousness for offences of this type. It was a single offence committed when Mr Ormsby was under the influence of alcohol. There was no physical violence involved and Mr Ormsby desisted when the complainant awoke.

15. There is, regrettably, little by way of evidence from which the risk of a repeat of the conduct may be assessed. The report from his Getting Started Program described Mr Ormsby as “motivated to change his lifestyle” and a person who “was able to demonstrate an understanding of general empathy”. The report, dated 3 November 2009, summarised Mr Ormsby’s participation in this way:

“Mr Ormsby presented as motivated and willing to gain a greater understanding of his offending behaviour and to learn strategies to assist him in the future. Mr Ormsby had attended group prepared and was determined to ensure that he be considered for an intensive intervention program. He provided presentations to a sound level, participated in group discussions, assisted new participants, provided adequate feedback to other group members and completed all written requirements of the program including maintaining a journal.

Mr Ormsby appeared to develop an understanding and a level of insight into a number of areas including his offence and victim empathy. He was also able to start to identify themes and patterns throughout his life and was encouraged to further explore these areas.

Throughout the program, Mr Ormsby spoke appropriately to facilitators and group participants and was not observed using derogative [sic] language. Mr Ormsby was provided with a number of areas to further explore whilst he is waiting for the opportunity to complete an intensive program.

It would be recommended that Mr Ormsby be placed on the waitlist to complete an intensive intervention program, namely New Directions – Medium Intensity Sexual Offending Program.”

Mr Ormsby was halfway through the MISOP at the time of the hearing.

16. Ms Linacre, the solicitor for the Minister, submitted that I ought to conclude that there was a risk of recidivism from Mr Ormsby’s long history of alcohol abuse and the fact that he was under the influence at the time of the offence. It was not possible to be confident, it was said, that Mr Ormsby might not be put in a similar situation and react similarly. And, it was submitted, I needed to be certain that Mr Ormsby would not re-offend. I should say immediately that I do regard that as the correct test.
17. The Direction requires that I consider the risk that the offending conduct may be repeated. The Direction identifies three factors which,

“are to be considered as particularly relevant to this assessment:

(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”

18. Contrary to the Minister’s written submissions I do not accept that Mr Ormsby’s criminal history “may indicate a level of escalating criminal behaviour and risk taking when under the influence of alcohol.” There are, in reality, two offences, one of driving with an excessive blood alcohol concentration and the other, the offence of rape. I would not regard the driving offence as having any particular relevance to the present proceedings. Mr Ormsby does not present as a sexual predator; the serious offence of rape that was committed was opportunistic rather than premeditated.
19. To the extent that there is authoritative material available it favours Mr Ormsby. His re-offending risk level was shown as “moderate-low” in the “Static – 99” risk assessment recorded on the Preparatory Program Completion Report. The Report refers favourably to his participation in the program and his motivation to change his lifestyle. And Ms Linacre very properly conceded that the breach of bail conditions was, in the circumstances, explicable. It does not demonstrate any disregard for judicial or other authoritative orders. There is, as well, objective evidence of Mr Ormsby’s desire to change his life by his participation in various courses designed to improve his education standards. These matters suggest that Mr Ormsby has undertaken real progress in his rehabilitation and is in the course of taking further steps towards rehabilitation by undertaking the MISOP and Getting Smart programs. And, to the extent that these matters may be gauged accurately from impressions gained in the course of the hearing, Mr Ormsby struck me as genuine in his remorse and his desire to change his life.
20. All of these factors satisfy me that there is a low risk of Mr Ormsby repeating the conduct or re-offending in general, notwithstanding that the original offence was serious.
21. The next primary consideration does not arise – Mr Ormsby was an adult aged 26 years, when he arrived in Australia.
22. The Direction requires consideration to be given to the length of the period of residence prior to engaging in criminal activity. That reflects the fact that the longer the period of residence in Australia the greater the likelihood of significant ties to the Australian community.
23. Mr Ormsby arrived in Australia in May 2006. He had earlier visited briefly on a holiday as a young child. The rape was committed some 19 months after his arrival in this country.
24. There are no relevant international obligations that need to be considered in Mr Ormsby’s case.
    25. The Direction provides a non-exhaustive list of “other considerations” that need to be considered where relevant however generally such considerations “should be given less weight than that given to primary considerations”.
    26. The first listed consideration is “family ties, the nature and extent of any relationships”. Mr Ormsby’s immediate family comprising his mother, two sisters and a step-brother all reside in New Zealand. He has two close relatives in Australia, a grand-uncle who lives in Brisbane and an aunt located in Sydney. The material suggests that Mr Ormsby has developed reasonably close ties with these relatives but has not had much contact from his closer family in New Zealand. Removal to New Zealand would disrupt personal contact with these relatives in Australia but undoubtedly contact could be maintained if desired. I cannot see how Mr Ormsby’s removal would cause any hardship to his Australian relatives albeit I accept that it would be inconvenient to them. Mr Ormsby does not suggest that he has developed any business or other ties to the Australian community, beyond an affection for living in Australia, that would be disrupted by his removal.
    27. Mr Ormsby has a diabetic condition however it can be controlled without medication, wherever he were to reside, by appropriate diet and exercise.
    28. Mr Ormsby’s significant family ties to New Zealand need to be considered. His family, by all accounts, is not a close one however there is no reason to suppose that his family would not offer him support were he to be removed from Australia. He has spent the major part of his life in New Zealand.
    29. Finally, I note that Mr Ormsby has undertaken various educational courses that seem likely to make him more readily employable and thus able to increase his capacity to positively contribute to the Australian community through employment. It is relevant, I think, that Mr Ormsby was in stable and regular employment in the period that he lived in Australia before his imprisonment.

CONCLUSION

30. The matter is finely balanced. But where the discretion is a discretion to cancel and where I am obliged to consider the nature of any harm that Mr Ormsby might cause to the Australian community as well as the risk of that harm occurring, I am left in a position where I am not satisfied that Mr Ormsby’s visa ought to be cancelled. As I have said, I regard him as presenting a low risk of re-offending. Thus, in my view, protection of the Australian community does not warrant cancellation. The other primary considerations do not really arise. The other relevant considerations favour non-cancellation slightly.
31. Mr Ormsby ought not, however, be under any illusion about the future were he to re-offend. The discretion to cancel can be re-considered if his future conduct were to demonstrate that my assessment of risk to the Australian community was erroneous.
32. The decision under review will be set aside and, in place of that decision, a decision made not to cancel Mr Ormsby’s visa.
    

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ...........Signed............................................................

Associate

Date of Hearing 16 November 2010

Date of Decision 26 November 2010

Applicant Self-represented

Solicitors for the Respondent Clayton Utz

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[1] See s 501(6)(a), Migration Act.

[2] Sentencing remarks of Samios DCJ in Exhibit 1 at page 111.