Aybek and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1186
•2 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1186
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/864
ADMINISTRATIVE APPEALS DIVISION
Re: ABDULLAH AYBEK
Applicant
And:MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND
INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: The Hon Howard Olney AM QC, Deputy President
Date:2 December 2005
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) H.W. Olney
Deputy President
MIGRATION - Sub‑class 155 (Resident Return) visa - cancellation of visa - character test – criminal convictions and imprisonment in Australia – warning issued – seriousness of offences - expectation of Australian community – protection of Australian community – interests of family
Migration Act 1958 ss 499, 501
REASONS FOR DECISION
2 December 2005 The Hon Howard Olney AM QC, Deputy President
1. This is an application by Abdullah Aybek (the applicant) to review a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) to cancel the applicant's Sub‑class 155 (Resident Return) visa (the visa).
2. The visa was cancelled on 21 September 2005 pursuant to s 501(2) of the Migration Act 1958 (the Act) on the ground that the applicant does not pass the character test.
3. For the purposes of s 501 a person does not pass the character test if the person has "a substantial criminal record", a term which is defined in s 501(7) to include a sentence of a term of imprisonment of 12 months or more or 2 or more sentences of imprisonment where the total of those terms is 2 years or more.
4. The applicant concedes that he does not pass the character test but nevertheless submits that the Tribunal should exercise its discretion not to cancel the visa.
5. In the performance of its functions and the exercise of its powers under s 501 the Tribunal must comply with any direction given by the Minister under s 499(1) of the Act. The relevant direction is that given by the then Minister on 23 August 2001 which is cited as "Direction – Visa Refusal and Cancellation under Section 501 – No. 21" (Direction 21).
THE MINISTERIAL DIRECTION
6. Part 2 of Direction 21 deals with the considerations to which the Tribunal is required to have regard when exercising the discretion to decide whether or not a non‑citizen should be permitted to remain in Australia. The Direction identifies three primary considerations and a number of other considerations to which regard must be had.
7. The three primary considerations to which the Tribunal must have regard are:
· The protection of the Australian community, and members of the community;
· The expectations of the Australian community; and
· In all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
8. The other considerations referred to in Direction 21 include:
· the extent of disruption to the non‑citizen's family, business or other ties to the Australian community;
· the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
· the composition of the non‑citizen's family;
· the likelihood of the non‑citizen seeking to evade any outstanding legal matter or on‑going liability;
· any evidence of rehabilitation and any recent good conduct.
9. Direction 21 further provides that where relevant the Tribunal is required to consider the international obligations contained in the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention and Protocol Relating to the Status of Refugees.
THE EVIDENCE
10. At the hearing of the application the parties tendered without objection a number of documents, notably:
· Statement of agreed facts dated 15 November 2005;
· The documents referred to in s 501G(2) of the Act (the G documents);
· Statement of the applicant dated 17 November 2205;
· Letter of Hita Mistry dated 17 November 2005;
· Statement of Mecbure Alaca (the applicant's mother) dated 21 November 2005;
· Letter from Dr Kuen Chan dated 17 November 2005P
In addition oral evidence was given by the applicant, his mother and Ms Gulbahar Erbasi (a relative of the applicant), each of whom was cross‑examined by the respondent's solicitor.
THE FACTS
11. The applicant was born in Ankara, Turkey on 5 June 1974. He had little or no contact with his father and was brought up by his mother. His elder sister Figen came to Australia in 1986 after her marriage to an Australian citizen and in 1989 she sponsored her mother and the applicant who arrived in the country on 24 October 1989. Initially the applicant and his mother resided with Figen and her husband, but later moved to Department of Housing accommodation in Brunswick and then Carlton. In 1998 the applicant and his mother travelled to Turkey for a period of six months during which time the applicant married a Turkish woman, who later came to Australia. The applicant and his wife separated in October 2001 and are now divorced. The applicant's mother and sister (together with her four children) now live at Shepparton. The applicant is at present in immigration detention at Maribyrnong. .
12. Prior to his visit to Turkey in 1998, the applicant had been convicted of a number of relatively minor offences including theft, use of a drug of dependence, handling/receiving stolen goods, possession of heroin and attempting to obtain property by deception. For these offences, he was variously fined or given suspended sentences. In December 1998, having breached the terms of the suspended sentences, he was imprisoned for 1 month. In November 1999 he was convicted of trafficking in heroin and sentenced to 36 months imprisonment with a non‑parole period of 21 months. He was released from prison in December 2000 and moved to Shepparton with his wife. In October/November 2001 the applicant committed a series of offences whilst on parole in relation to which he was, in April 2002, convicted and sentenced to a total of 5 years and 6 months imprisonment. The latter offences included 8 counts of armed robbery and 1 each of attempted armed robbery, robbery and obtaining property by deception.
13. In December 1999, following the applicant's conviction and imprisonment in November of that year, the Department of Immigration and Multicultural Affairs notified him that his visa may be liable for cancellation under s 501 of the Act on character grounds. After considering responses received, a decision was made not to cancel the visa but the applicant was warned that the visa may be cancelled in the event of him incurring a liability for cancellation on new or different grounds. In August 2004 the Department advised the applicant that his visa had been cancelled but later, by letter dated 19 June 2005, informed him that the purported cancellation was invalid. However, further action was immediately taken to cancel the visa on character grounds which resulted in the decision presently subject to review.
PROTECTION OF THE AUSTRALIAN COMMUNITY
14. It is government policy that reasonable steps be taken to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community (Direction 21, par. 2.4). In this context a number of factors relevant to an assessment of the level of risk to the community are identified, particularly the seriousness and nature of the conduct, the likelihood that the conduct may be repeated and whether visa cancellation may prevent or discourage similar conduct (Direction 21, par. 2.5). Offences involving illicit drugs of dependence or addiction, such as heroin, are of particular concern to the government and the community (Direction 21, par. 2.6(a)) and the government views armed robbery, assault or any other form of violence against persons and other crimes involving violence or the threat of violence to be very serious (Direction 21, pars. 2.6(e), (f) and (n)).
15. The eight counts of armed robbery for which the applicant was sentenced on 19 April 2002 each involved a similar modus operandi. The applicant would approach a person targeted as likely to have money and/or a mobile phone, threaten the person with a knife and obtain whatever spoils could be secured. In one case a credit card with details of the victim's PIN was obtained that enabled applicant to extract $800 from a bank account. These offences were committed in a public street during daylight hours.
16. Although none of the applicant's victims suffered any physical injury, the use of a weapon such as a knife accompanied by the applicant's demands cannot be regarded as other than a serious breach of the law from which the community is entitled to be protected. The fact (as asserted by the applicant) that he sought only to obtain money for the purpose of satisfying an addiction to heroin tends to aggravate rather than to mitigate the seriousness of the offences and to heighten the need to protect vulnerable members of the community.
17. The applicant's case is based primarily on the claim that he is now drug free and has been for several years and he seeks to explain, if not to justify, his relapse into drug use after release from prison by relating it to the breakdown of his marriage. It so happens that his recent drug free period coincides with his period in prison and immigration detention and whilst he appears to have taken some steps towards reform by undertaking a variety of courses whilst in custody and also going onto a methadone program, his previous history of re‑offending whilst on parole leaves little basis to conclude that absent the constraints of compulsory detention, he would not revert to his earlier pattern of conduct, particularly if faced with a personal crisis.
18. The question of whether visa cancellation may discourage similar conduct is a matter that is open to debate. It is suggested on the one hand that whether or not a visa is cancelled is unlikely to become so notorious as to deter other would be offenders from offending, but this is not necessarily the case. It is obvious that the applicant's immediate circle of friends and acquaintances would become well aware of his visa cancellation and the reasons for it and one could reasonably anticipate that those who may be potential offenders would take into account the likely consequences.
19. The Australian community is entitled to be protected from the risk of further unlawful conduct that the applicant's continued presence in Australia would pose.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
20. It is reasonable to assert as a general proposition that the Australian community expects non‑citizens to obey Australian laws while in Australia and where this trust has been breached, it may be appropriate to cancel a visa held by such a person (Direction 21, par. 2.12).
21. The applicant has never sought to obtain Australian citizenship. He has chosen to remain in the country as a non‑citizen. He has on numerous occasions committed serious breaches of Australian laws. He has ignored a previous warning that continued unlawful conduct may lead to the cancellation of his visa.
22. Given the circumstances of the case, it is not an unreasonable expectation that the privilege conferred by his visa should be terminated.
THE BEST INTERESTS OF A CHILD OR CHILDREN
23. The applicant has no children. He says however that the interests of the children of his sister would not be served if he were to be forced to leave Australia.
24. Although in his written statement the applicant portrays his sister as a single parent responsible for her four children, it was elicited in the oral evidence of Mrs Erbasi (whose husband and the children's father are cousins) that the children's father also lives in Shepparton and has contact with the children despite no longer being married to their mother. There is no suggestion that the children are, or would ever be, in any way dependent upon the applicant for financial support.
25. The youngest of the applicant's sister's children is now aged 5 and was born while the applicant was in prison. The three elder children are boys aged 12, 16 and 17. It is now over 4 years since the applicant has had any normal contact with these boys. It is difficult to contemplate any basis upon which it could be said that the applicant's removal from Australia would be detrimental to the best interests of his sister's children.
OTHER CONSIDERATIONS
26. It is said that the applicant's mother is, or would be, in some way dependent upon the applicant. The evidence does not support this proposition. She lives in Shepparton close to her daughter and grandchildren in State Housing accommodation. She has had no financial or other support from the applicant for at least the last four years and, given his previous history of drug addiction, it is reasonable to assume that in the past the measure of his support, if any, was not great.
27. The applicant's mother is elderly and is not in good health. She does not know the year she was born but it is said to be in about 1930. She appears to be illiterate and does not speak English. Her complaint is that if the applicant is forced to leave Australia, she will never be able to see him again due to her inability to travel to Turkey. However, it does appear that three years ago she managed to travel to Switzerland to visit children of a previous marriage. It is not possible from the evidence to reach any firm conclusion as to her capacity to travel overseas, although it must be conceded that her advanced age and state of health would tend to render such travel difficult.
28. It is not feasible to make any meaningful assessment of the applicant's recent good conduct or his rehabilitation. There is no suggestion that his conduct while in custody has been other than good and it must be accepted that he has undertaken, while in custody, various activities that are designed to facilitate his rehabilitation.
29. It cannot be overlooked that the applicant has not lived in Turkey since he was 15 years of age, apart from the visit he made in 1998. There is some suggestion that he would have difficulty with the language after such a long period in Australia but it seems he has no difficulty in communicating with his mother who does not speak English. He says he has no extended family there, although his mother does have an elderly half‑brother in Turkey, but says she has no contact with him or his family. The applicant's main concern about returning to Turkey is that he will be required, on arrival, to undertake compulsory military service. He says that as a Kurd, he is likely to be the subject of racial discrimination if he is required to serve in the army.
30. The Turkish law relating to compulsory military service is one of general application and does not discriminate against Kurds or other groups on the basis of their ethnic origins. No evidence has been presented to support the applicant's expressed concerns in relation to his likely treatment as a Kurd undertaking military service. Material supplied by the Department in relation to the matter (G18, G22) concludes that the concerns expressed by the applicant about returning to Turkey are not matters that would engage Australia's international treaty obligations. It is said that "thousands of military officers are of Kurdish origin and thousands of other Kurds complete their military service routinely. In addition, the overall share of Kurds in all army ranks should reflect that of the population, which is approximately one‑fifth".
CONCLUSIONS
31. On the basis of the evidence adduced, the Tribunal finds that the applicant does not pass the character test, and having regard to the primary and other considerations referred to in the foregoing reasons, the Tribunal concludes that it should exercise the discretion to cancel the applicant's visa.
32. The Tribunal affirms the decision under review.
I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision herein of
The Hon Howard Olney AM QC, Deputy President
(sgd) Catherine Thomas
Clerk
Date of Hearing: 22 November 2005
Date of Decision: 2 December 2005
Solicitor for the applicant: Mr C. Powles, Refugee and Immigration Legal CentreSolicitor for the respondent: Mr M. Brereton, Australian Government Solicitor
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