Burak Guden and Minister for Immigration and Citizenship

[2013] AATA 380

[2013] AATA 380

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1430
Re	Burak Guden
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	6 June 2013
Place	Melbourne

The decision under review made 14 March 2013, being the decision of the Minister for Immigration and Citizenship to refuse the application of Burak Guden for a Special Eligibility (Residence) (Class AO) visa, is affirmed.

.....[sgd J W Constance]....................

Deputy President J W Constance

CATCHWORDS

CITIZENSHIP AND IMMIGRATION – application for Special Eligibility (Residence) (Class AO) visa – visa refusal under s 501 Migration Act 1958 (Cth) – character test – Direction [no. 55] – substantial criminal record – intentionally cause serious injury – protection of Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should the conduct be repeated – strength, duration and nature of ties to Australia – best interests of minors in Australia – impact on immediate family members in Australia – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 499(1), 499(2A), 500, 501(1), 501(6), 501(7)

SECONDARY MATERIALS

Direction no. 55 – Visa refusal and cancellation under s501

REASONS FOR DECISION

INTRODUCTION 

1. Mr Guden entered Australia with his parents in 1997, when he was 10 years old.  Since his arrival he has resided continuously in this country under various visas.

2. In 2005 Mr Guden applied for a Special Eligibility (Residence) (Class AO) visa.

3. In 2008, when he was 21 years old, Mr Guden was convicted of several offences, including two counts of intentionally causing serious injury.  He was sentenced to a total effective sentence of eight years imprisonment, with a non-parole period of six years.

4. On 4 March 2013 the Minister refused Mr Guden’s application for a Special Eligibility (Residence) (Class AO) visa as Mr Guden did not satisfy him that Mr Guden passed the character test set out in section 501 of the Migration Act 1958 (Cth).

5. Mr Guden has applied to the Tribunal to review the Minister’s decision.

6. For the reasons which follow the decision of the Minister will be affirmed.

   FACTUAL BACKGROUND

7. Unless otherwise stated the following findings of fact are based on the evidence of Mr Guden.

8. Mr Guden was born in Turkey in 1986.  He is a citizen of Turkey.

9. Mr Guden migrated to Australia with his parents in 1997 and has resided in Australia since that time.

10. On 19 March 2004 Mr Guden appeared before the Dandenong Children’s Court and pleaded guilty to two charges of recklessly causing serious injury.  He was not convicted of these offences but he was placed on a bond to be of good behaviour until 5 November 2004.  The incident giving rise to these charges occurred when Mr Guden was in Year 10 at High School.  There was a fight between two groups of students during which Mr Guden stabbed another student with a knife.[1]

    [1] Exhibit A1 p.66.

11. On 9 June 2007 Mr Guden, in company with Mr Musa, attacked and seriously wounded two brothers, Mr John Doukis and Mr Peter Doukis.  The attack followed some minor contact between Ms Hanna (the driver of a Celica sedan in which Mr Guden was a passenger) and Mr John Doukis, a passenger in a Honda sedan.  Mr Peter Doukis was driving a Camry sedan in the immediate vicinity of the vehicle in which Mr John Doukis was a passenger.  When sentencing Mr Guden in respect of these crimes, Barnett J described the unprovoked attack as follows:

    14.  Guden, when you were interviewed you indicated to the police that you had blacked out. Apparently that night you injected testosterone into your shoulders with the view of building up bulk in the muscles of your shoulders but had significantly overdosed. You were also taking Panadeine Forte and cold and flu tablets as you were suffering from a cold and you consumed alcohol.

    …

    19.  At about Poath Road and in Dandenong Road the lights turned red and all cars stopped. John Doukis and Raman tried to turn in their seats to see what was happening with the Celica. John Doukis could not see clearly and opened his door to put one foot out. At that time you, Guden, came increasingly angry and yelled: “Let me out, let me out,” pushing against Hanna’s seat. Hanna opened the driver’s door and her seat released. That allowed you, Guden, to exit the Celica, carrying with you a black handled machete.

    20.  You crossed in front of the Celica and ran to the left towards the open driver’s door window of Peter Doukis’s Camry. You yelled: “I’m going to cut your throat” and then swung the machete, using both hands through the open window towards Peter Doukis. Peter Doukis raised his arm and received a machete cut to the right forearm causing a deep incision. He screamed in pain.

    21.  During this John Doukis left the Civic and ran across to where his brother’s Camry was. As he neared the Camry, you, Musa, had left the Celica by that stage and ran to John Doukis. You kicked John Doukis from behind and sent him colliding against the boot of the Camry. Doukis then fell to the ground. As he hit the ground you, Musa, began to punch and kick him. About this time Peter Doukis drove his Camry forward to escape Guden.

    22.  Guden, you then turned your attention to John Doukis, swinging the machete down at him. John Doukis raised his arm to protect himself and received a severe cut to the left forearm which cut through to the bone. As this was happening you, Musa, continually kicked John Doukis. John Doukis grabbed hold of his injured forearm and you Guden raised the machete and swung it down towards his head. John Doukis ducked his head to try and avoid the blow. He then stood up and ran in a zigzag fashion, trying to escape from both you Musa and Guden. As he did so he screamed: “You’ve broken my arm, what are you trying to do, kill me? Stop it, stop it. If you keep going you’ll kill me.”

    23.  As he ran he was continually punched and kicked from behind by both of you. In fact you endeavoured to kick his legs to try and make him trip over again. As he neared the grass median strip between the inbound and outbound lanes of Dandenong Road you, Guden, swung the machete down on the rear of Doukis’s head. The blow was delivered with such force it caused large lacerations to the rear of Doukis’s head and fractured his skull. The force was also sufficient enough for a small fragment of the machete to become embedded in his skull.

    24.  Witnesses who observed the incident from the intersection of Chadstone Road and Dandenong Road described the attack as a frenzied attack and were highly disturbed by the objective features of what they saw. John Doukis was able to get to his feet again and kept running across the inbound lane towards the serve lane. He was bleeding heavily, leaving a blood trail on the road. He was again kicked and punched by you, Musa, and you, Guden, swung the machete at him again, causing a deep laceration across his back.

    25.  At one stage it seems that you, Guden, swang the machete at Doukis as Musa or Doukis grabbed you, causing a cut to Musa’s right hand requiring stitches to be inserted at the Dandenong Hospital. Raman, believing the only way to stop Doukis from being killed was to run down both, that is you Guden and Musa, with the car he was driving. He drove through the traffic lights, made a u-turn, crossing inbound lanes so that he could drive the car into the vicinity of where you, Guden and Musa were standing.

    26.  He then attempted to drive the car at both of you but overshot the point where you were standing and came to a stop. Peter Doukis tried to do the same thing. He slipped you, Guden, and then hit you Musa, causing you to roll across the Camry’s bonnet. The break allowed John Doukis to escape towards Raman’s Civic. Raman screamed for John Doukis to get into the car. You, Guden, still armed with the machete ran after John Doukis. You swung the machete at John Doukis but hit the car. Raman was able to drive away from the scene and leave with John Doukis and travel to the Monash Medical Centre.

    27.  Peter Doukis at this stage was in severe pain and feeling the effects of blood loss. The passenger in the car took over driving and drove him also to the Monash Medical Centre where police were called. You, Musa and Guden then returned to Hanna’s pink Celica. She drove you towards Dandenong. Musa, you indicated that your hand was cut and you wanted to go to the Dandenong Hospital. Hanna, you pulled into a side street where you allowed Guden to get out of the car and put the machetes in a storm water drain. You then drove Musa to the Dandenong Hospital.

    …

    32.  John Doukis received an eight centimetre horizontal wound over the octuple skull fracture, a deep wound to the middle forearm, severing muscles of the ulnar nerve and artery and a superficial wound to the right posterior chest wall. Peter Doukis suffered a six centimetre incise wound to the middle of the forearm. In addition to those injuries of course there are a number of superficial bruises and abrasions caused by the attack on both men.[2]

    [2] Exhibit A1 pp.56-61.

    Conviction and Judge’s Sentencing Remarks

12. Barnett J referred to the severe injuries suffered by the Doukis brothers and the continuing severe effects of these injuries.  Other witnesses to the attacks were also affected by what they witnessed.

13. His Honour made the following remarks concerning Mr Guden:

    56.  Clearly you were the instigator of the offence, you were the one who was armed with the machete. You were the one who inflicted the severe wound to Peter Doukis’s arm and the multiple wounds to John Doukis. You were the principal assailant that has altered John Doukis’s life quite considerably as a result of the injuries that you inflicted upon him. As I have already said in relation to your co-accused Musa an appropriate sentence must strongly reflect the need of the community to denounce in no uncertain terms your conduct as totally unacceptable and of course to strongly reflect considerations of general and specific deterrence.

    57.  In your case I do give weight to your youth. I suspect in many ways given more maturity and your ability to control your inclination to become intoxicated your chances of reoffending are perhaps limited. Nevertheless, even giving weight to those considerations there is a need in my mind to pass a significant sentence of imprisonment.[3]

    [3] Exhibit A1 pp.88-89.

14. Mr Guden was sentenced as follows:

    ·on Count 1, threat to kill, imprisonment for one year;

    ·on count 2, intentionally cause serious injury, imprisonment for four years;

    ·on count 3, intentionally cause serious injury, imprisonment for six years;

    ·on count 4, affray, imprisonment for two years;

    ·on count 7, theft, imprisonment for one month;

    ·on count 8, possess a drug of dependence, imprisonment for one month

    ·summary charge of possessing a prohibited weapon, imprisonment for one month;

    ·summary charge of possessing a controlled weapon, imprisonment for one month.

15. I will refer to further findings of fact in considering particular issues in these reasons.

    THE RELEVANT LEGISLATION

16. Subsection 501(1) of the Migration Act 1958 (Cth) provides:

    (1)     The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

17. Subsection 501(6) paragraph (a) provides:

    (6)     For the purposes of this section, a person does not pass the character test if:

    (a)     the person has a substantial criminal record (as defined by subsection (7));

18. Subsection 501(7) paragraph (c) provides:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more;

19. The power of the Tribunal to review the decision to refuse to grant a visa to Mr Guden is provided by Section 500. Under subsection 499(1) the Minister has given written directions (Direction [55] which commenced on 1 September 2012) as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with.

    THE CHARACTER TEST

20. As Mr Guden was sentenced to detention for eight years he has a “substantial criminal record” in accordance with subsection 501(7) of the Act.  In accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to grant him the visa he seeks. 

    DIRECTION [55]

21. Under the heading General Guidance, Direction [55] provides in part:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

22. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached.  The principles are:

    (1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)   A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)   In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (4)   Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (5)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (6)   The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

23. The Direction requires the decision-maker (in this case the Tribunal) to take into account the primary and other considerations relevant to the individual case.[4]  Primary considerations should generally be given greater weight than the other considerations.[5]

    [4] Direction 55, paragraphs 6.2(3) and 8(1).

    [5] Direction 55, paragraph 8(4).

24. Paragraph 11(1) provides:

    In deciding whether to cancel a person’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Whether Australia has international non-refoulement obligations to the person.

    REASONING

    Primary consideration (a) – protection of the Australian community from criminal or other serious conduct

25. I note that I must have regard to relevant matters set out in paragraph 11.1 being:

    ·“the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”;

    ·“there is a low tolerance for applicants who have previously engaged in criminal or other serious conduct”;

    ·the nature and seriousness of the person’s conduct to date;

    ·the risk to the Australian community should the person commit further offences or engage in other serious conduct[6].

    [6] ‘Serious conduct’ is defined to include conduct which may not constitute a criminal offence (Appendix B – Interpretation).

    The nature and seriousness of Mr Guden’s conduct to date

26. In accordance with paragraph 11.1.1 of the Direction I must have regard to a number of factors set out in that paragraph.  The relevant factors in this application are:

    ·violent crimes are viewed seriously (sub-paragraph a));

    ·conduct that forms a basis for a finding that a person is not of good character under sub-section 501(6) of the Act is considered to be serious (sub‑paragraph d))[7];

    ·the sentence imposed by the courts for the crimes (sub-paragraph e));

    ·the frequency of the person’s offending and whether there is any trend of increasing seriousness (sub-paragraph f)).

    [7] Sub-section 501(6)(c) provides ‘having regard to either or both of the following:

    (i) the person’s past and present criminal conduct;

    (ii) the person’s past and present general conduct;

    the person is not of good character …

27. There can be no doubt that Mr Guden’s conduct to date is extremely serious. The offences for which he was imprisoned were committed within four years of his first offences and were more serious than the first.  On both occasions Mr Guden attacked his victims with a weapon intending to do serious harm to them.  I do not know the seriousness of the injuries which he inflicted with the knife, however the injuries inflicted with the machete were extremely serious and in the case of Mr John Doukis, life threatening.  Mr Guden himself described the attack on the Doukis brothers as “unprovoked and frenzied”.[8] Barnett J described his conduct as “very serious examples of intentionally causing serious injury”[9]and was of the view that there was a need to pass a “significant sentence of imprisonment.” [10]   

    [8] Transcript 27.05.13.

    [9] Exhibit A1 p.62.

    [10] Exhibit A1 p.68.

28. In my view the conduct of Mr Guden formed the basis of a finding that he was not of good character under subsection 501(6)(c) apart from the finding under subsection 501(6)(a).

29. In his Reasons for Sentence[11] Barnett J referred to the ongoing impact of Mr Guden’s conduct on several victims, including those who witnessed the attack. Both Mr John Doukis and Mr Peter Doukis suffered severe psychological scarring as a result of the attack as well as their physical injuries.  Mr John Doukis spent five days in Intensive Care and underwent ten hours of surgery.  His studies and leisure activities were disrupted.  He has permanent damage to his left arm and hand.

    The risk to the Australian community should Mr Guden commit further offences or engage in other serious conduct

    [11] Exhibit A1pp.82-83.

30. In accordance with sub-paragraph 11.1.2 of the Direction I should have regard to the following:

    ·the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases;

    ·some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable;

    ·Sub-paragraph 11.1.2(2) provides:

    11.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct

    …

    (2) Decision-makers should also consider whether the purpose of the intended stay reflects strong or compassionate reasons for granting a short-stay visa. In making the risk assessment, decision-makers must have regard to, cumulatively:

    a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

    b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

    i. information and evidence from independent and authoritative sources on the likelihood of the person re-offending; and

    ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

    iii. the duration of the intended stay in Australia.

1. Should Mr Guden commit further offences by way of physical attacks similar to those in which he has engaged in in the past, the harm to individuals and to the Australian community would be extreme.  The victim or victims of such attacks would suffer severe injuries which could be fatal.  Many members of the community would be affected by the trauma associated with such attacks and would feel less secure as a result.

2. In considering the likelihood that Mr Guden will engage in further criminal or other serious conduct I take into account that he is seeking a visa which would allow him to remain in Australia for an extended period.  This requires a close examination of the evidence as to the likelihood of his re-offending.

3. Ms Stevens, Provisional Psychologist at the Offender Development Department at the Fulham Correctional Centre gave evidence.  She prepared a Specialist Assessment and Management Plan[12] in relation to Mr Guden.

   [12] Exhibit A2 pp.7-15.

4. On 27 April 2013 Ms Stevens interviewed Mr Guden and assessed the risk that he will engage in further violent conduct.  In her opinion the risk is low.  She formed this opinion based on her clinical assessment and on the basis of the result from the application of the Violence Risk Scale.  The Violence Risk Scale is “an actuarial instrument that measures both static (historical) and dynamic (changeable) risk factors that underpin violent offending.  The VRS is designed to estimate the probability of violent recidivism among adult offenders.”[13]  It is based on the presence of various risk factors identified in research literature.

   [13] Exhibit A2 pp.13-14.

5. Apart from the results of the Violence Risk Scale, Ms Stevens formed her opinion based on her impression that Mr Guden was remorseful, had empathy with his victims and had matured.  She considered also that the attack on the Doukis brothers was carried out under the effects of substance abuse and at a time when Mr Guden was suffering from emotional instability.

6. In considering the weight I should give to the opinion of Ms Stevens and the content of her report I have taken into account a number of considerations.

7. Ms Stevens obtained from Mr Guden a statement of the circumstances which gave rise to the attack in 2007.  He stated that his vehicle was “surrounded by a number of cars containing 6-8 male passengers.”[14]He told Ms Stevens that he got out of his car to defend himself as he thought he was in danger.  He said that he believed Mr Doukis was carrying a weapon so he grabbed a machete which was in the car.  He said that he had no prior knowledge that the weapon was in the car.  Ms Stevens stated that when she challenged Mr Guden as to this account he maintained its accuracy.  She could not recall the answers he gave in response to her challenge.  The version of events given to Ms Stevens varies significantly from that put to the County Court and in evidence before me.  I am satisfied that when Mr Guden was being assessed by Ms Stevens in April 2013 Mr Guden did not tell her the truth in relation to the incident.  I am satisfied further that notwithstanding his having served a lengthy period of imprisonment and having received some counselling he did not accept full responsibility for his conduct and endeavoured to minimize its seriousness.  My conclusion is consistent with the view of Ms Stevens expressed in her report.[15]

   [14] Exhibit A2 p.8.

   [15] Exhibit A2 p.8.

8. Mr Guden informed Ms Stevens that his childhood in Turkey was difficult as he witnessed many atrocities of war and was scared a lot of the time.  In the opinion of Ms Stevens it is likely that Mr Guden has been traumatised by his early experiences of war, which may have affected his cognitive and emotional development.[16]  Ms Stevens did not ask Mr Guden for further information as to his childhood experiences.  She was unaware that his experience of the atrocities was limited to what he viewed on television.

   [16] Exhibit A2 p.10.

9. At the direction of Ms Steven’s Manager the report was prepared immediately prior to Mr Guden’s release from prison.  When she gave evidence, Ms Schluter a Clinical Psychologist who approved the report, described this as “an unusual request.”  She said that because of the imminence of Mr Guden’s release there was no opportunity for a Violence Intervention Treatment Program to be carried out.

10. The report was prepared in circumstances which suggest that when Ms Stevens assessed Mr Guden she did not have available to her totally accurate information and the report was prepared in greater haste than one would expect to have been the case.  I place less weight on the opinion of Ms Stevens than I would have done had the report been prepared in different circumstances.

11. There are other aspects of Ms Stevens’ report which give me concern in assessing the likelihood that Mr Guden will re-offend.  Ms Stevens reported as followed in relation to Mr Guden’s offence-related treatment needs:

    According to the Judge’s Sentencing Comments, Mr Guden was diagnosed with adjustment disorder in the context of ongoing immigration difficulties, his parent’s divorce and the subsequent return of his mother to Turkey, as well as factors limiting his ability to study and obtain work. In addition, he does not appear to have had the opportunity to address early trauma experiences or resolve emotion regulation difficulties. Thus, in order to assist Mr. Guden to manage these issues, assistance to access individual counselling services is recommended.[17]

    [17] Exhibit A2 p.14.

12. Ms Stevens also recommended a number of management strategies for Mr Guden.  These included:

    ·individual counselling;

    ·reducing access to weapons;

    ·monitoring of alcohol and other substance abuse;

    ·education regarding high risk situations and behaviours;

    ·appropriate employment, leisure and lifestyle /networking;

    ·social support.

13. On the evidence before me I am not satisfied that Mr Guden will have the necessary support to implement these strategies should he be released into the Australian community, or that he has given due consideration to implementing such strategies.  I do note however that Ms Stevens reported that Mr Guden “demonstrated a good attitude towards work and desire to resume employment once released from prison.” [18]

    [18] Exhibit A2 p.11.

14. Unfortunately during his incarceration Mr Guden received only limited assistance to manage the problems which have been identified and which may contribute to the risk of his re-offending. While in prison he did complete several short treatment programs including introduction to problem solving, conflict management, anger management and art therapy. He completed the 40 hour Alcohol & Other Drugs program to address substance use issues.  In relation to these programs Ms Stevens reported :

    Despite reports indicating that Mr. Guden has developed ‘very good’ insight into factors associated with his alcohol use (i.e. socializing and peer group pressure), he revealed during the interview that he does not consider his alcohol use to be problematic, indicating little insight into the relationship between his alcohol use and violent offending.[19]

    [19] Exhibit A2 p.13.

15. In conducting the assessment of Mr Guden for the Violence Risk Scale, Ms Stevens scored him at the highest risk level in relation to his emotional control, the risks associated with weapon use, the possibility of release to high risk situations and cognitive distortion.[20]  She also recorded  his state of change, assessed in accordance with the following milestones:

    ·precontemplation/contemplation;

    ·preparation;

    ·action;

    ·maintenance.

    In relation to emotional control Mr Guden was assessed as being at the preparation for change stage; for the remaining factors he was assessed at the precontemplation stage.  Bearing in mind that this assessment was conducted in late April 2013, it indicates that Mr Guden needs to address the need for change and that he is in need of considerable assistance to bring about change.

    [20] Exhibit A3 p.42.

16. The application of the Scale indicated that Mr Guden scored 34.  The range of scores is as follows:

    ·0-35     low risk

    ·36-50              moderate risk

    ·51-78              high risk.

    The scoring is based on a continuum, which places Mr Guden within 2 points of the moderate risk category.

17. Mr Guden’s attitude to his offending, as indicated to Ms Stevens only six weeks ago, is consistent with assessments made during his imprisonment.  In August 2009 a report prepared by Corrections Victoria[21] stated:

    During the interview with the writer Mr Guden failed to express any empathy for his victim and stated that he acted in self defence.

    Mr Guden stated that as a result of him attacking the victim the victim he [sic] received “cuts to his arm and back”.

    …

    In relation to himself Mr Guden presented himself as the victim stating that his sentence was “too harsh” and that his father has cancer.  Mr Guden also stated that as a result of his imprisonment he had lost his job and had also lost his dignity.

    The risk of Mr Guden re-offending at that time was assessed as moderate.  It was recommended that Mr Guden be assessed for his suitability for inclusion in the Violence Intervention Treatment Program.[22]

    [21] Exhibit A2 p.68.

    [22] Exhibit A2 p.73.

18. As part of the assessment carried out in August 2009, it was recorded that Mr Guden’s score in relation to violence was ten.  It is noted in the Summary of Assessment[23] that if the score is one or more the offender must be referred to the Violence Intervention Program.  Despite Mr Guden’s score of ten, this did not happen.

    [23] Exhibit A2 p.75.

19. On 10 May 2010 a further clinical assessment of Mr Guden was prepared.[24]  The purpose of the report was stated to be:

    This report is a summary of a clinical assessment conducted by the staff of Corrections Victoria, Clinical Services. The assessment assists in the determination of pathway interventions designed to assist in a reduction of re-offending. This report reflects clinical opinion and recommendations based on information available at the date of writing.

    [24] Exhibit A3 p.1-7.

20. Under the heading MOTIVATION/INSIGHT  it was reported:

    Insight: little

    No remorse, still maintains “self defence” and that the judge was wrong (“he wasn’t there, so couldn’t know the facts”) Sentence too high.

    Again, Violence Risk Assessment and the Violence Intervention Program were recommended.[25]

    [25] Exhibit A3 p.6.

21. One of the programs undertaken by Mr Guden and upon which he relied as evidence of a reduced risk of re-offending, is the Anger Management Program conducted by Corrections Victoria.  In the circumstances of the offences committed by Mr Guden such participation would normally be regarded as an indication that the risk of his re-offending has been reduced.  Unfortunately that is not the case.  Mr Guden participated in part of the 12 hour program in January 2008.  The Facilitator made the following comments on Mr Guden’s participation:

    Mr Guden missed the last hour of the first session and the last two hours of the second session due to visits. When present, Mr Guden’s contributions were minimal. He appeared more motivated to entertain the group than learn from the group experience.

    Mr Guden was easily distracted at times, indicated by him looking out of the window and dismantling his chair. In addition, he engaged in a lot of distracting behaviour with one of the other group participants.[26]

    The Facilitator recommended that Mr Guden’s motivation be re-assessed prior to considering him for programs in future.

    [26] Exhibit A3 p.11.

22. The various matters to which I have referred cause me to have considerable concern as to the risk of Mr Guden re-offending, notwithstanding the opinion expressed in the report by Ms Stevens and Ms Schluter that Mr Guden is of low risk.

23. I have taken into account several statements which support the contention that it is unlikely that Mr Guden will re-offend.

24. Mr Guden gave evidence that he will not re-offend.  He says he has gained maturity and now has a greater understanding of the effect of his crimes upon the victims.  Whether or not Mr Guden believes that he will not re-offend, I am not satisfied that he fully accepts responsibility for his conduct or the seriousness of it.  Mr Guden would need substantial support if he was living in the Australian community and I am not satisfied that he will receive it. 

25. Mr Mehmet Guden, Mr Guden’s father, provided a written statement to the Tribunal.[27]  Mr Mehmet Guden states that he knows that his son regrets the incident in 2007, that he has grown up and wishes to settle down and work hard.  Mr Mehmet Guden is sure that Mr Guden would not engage in similar conduct again.

    [27] Exhibit A3 pp.77-78.

26. Mr Eliadis and Ms Eliadis, friends of Mr Guden, also provided statements[28].  They offer emotional support for Mr Guden and employment in their business should he be released from detention.

    [28] Exhibit A3 pp.79 and 80 respectively.

27. On the basis of the evidence of Mr Mehmet Guden, Mr Eliadis and Ms Eliadis I am satisfied that should he remain in Australia Mr Guden will have support and assistance from his family and friends and would be able to gain employment.

28. In summary, the extremely serious nature of Mr Guden’s conduct and the seriousness of the risk to the Australian community should he re-offend causes me to conclude that the need to protect the Australian community from criminal or other serious conduct weighs very heavily in favour of refusing Mr Guden’s application for a visa.  The contrary factors have minimal weight in these circumstances.

    Primary consideration (b) – the best interests of minor children in Australia affected by the decision

29. The relevant factors set out in paragraph 11.2(4) are:

    (a)the nature and duration of the relationship between the child and the applicant;

    (b)the extent to which the applicant is likely to play a positive parental role in the future;

    (c)the impact of the applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

    (d)the likely effect that any separation from the person would have on the child;

    (e)whether there are other persons who already fulfil a parental role in relation to the child;

    (f)any known views of the child.

30. On the basis of the evidence of Mr Mehmet Guden I am satisfied that there are two minor children who may be affected by a decision to refuse Mr Guden’s application.  However there is very limited evidence as to the relationship of the children and Mr Guden.

31. Mr Guden’s parents divorced sometime during or shortly after 2002.  In 2004 Mr Mehmet Guden remarried.  He and his wife, Mrs Vildan Guden, have two children aged four years and approximately nine months.  On some occasions, prior to Mr Guden completing his term of imprisonment, Mr Guden would visit his family at home whilst on short term release.  Mr Mehmet Guden states that he has seen Mr Guden playing with his siblings and speaking to Mrs Guden. In his opinion the children and Mrs Guden have become close to Mr Guden and love him.[29]

    [29] Exhibit A3 p.77.

32. Mr Mehmet Guden is terminally ill.  If he is able to do so Mr Guden wishes to live with his father and help care for him.  Mr Mehmet Guden wishes that Mr Guden be able to care for Mrs Guden and the children in the event of his death.[30]

    [30] Exhibit A3 pp.77-78.

33. Mr Guden also has a step-brother who is 13 years old.[31]  There is no evidence which enables me to make a finding as to the nature of this relationship.

    [31]  Exhibit A2 p.5

34. On the evidence available I am not satisfied that Mr Guden has established a close relationship with any of the children or that he has played a parental role in relation to them.  Even taking into account the poor state of his father’s health I am not satisfied that Mr Guden is likely to play a positive parental role in relation to his siblings.  I have taken into account that there is no reason to expect that Mrs Guden will not continue to care for her children.  I am not satisfied that the separation of Mr Guden from any of the children will have a significant impact on any of them.

35. The interests of the children do not have significant weight in assessing the several considerations.

    Primary consideration (c) – whether Australia has international non-refoulement obligations to Mr Guden

36. This consideration is not relevant in this application.

    Other considerations

37. Paragraph 12 of the Direction provides:

    12. Other considerations -visa applicants

    (1) In deciding whether to refuse to grant a visa, other considerations must be taken into account where relevant. These considerations include but are not limited to:

    a) Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

    b) Impact of a decision to grant a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the person being considered for visa refusal;

    c) Impact on Australian business interests if the person's visa application is refused.

    Impact on immediate family members in Australia

38. I have already referred to the possible impact on Mr Guden’s minor step-siblings and his half-brother and I have concluded that the impact on them would not be significant.

39. On the basis of the evidence of Mr Mehmet Guden I am satisfied that the refusal of his son’s application would have a significant impact on him.  I accept that he is suffering a terminal illness and that he has a very limited life expectancy.  I accept also that Mr Mehmet Guden would find comfort in knowing that his son would be able to care for him and for his wife and very young family.

    Impact of a decision to grant a visa on members of the Australian community

40. I have no doubt that a decision to grant Mr Guden a visa and thereby permit him to remain indefinitely in this country would have a negative impact on some members of the Australian community, including the victims of his attacks and their family members.  On the other hand there is no doubt that a significant number of community members would consider that Mr Guden should be given a second chance to remain in Australia.  However I do not have any information which would allow me to make any more detailed findings in relation to this consideration and I do not give it any weight.

    Impact on Australian business interests if Mr Guden’s visa application is refused

41. Should Mr Guden’s application be granted he will have employment available to him in the business operated by Mr and Ms Eliadis.  However there is no evidence that this, or any other, Australian business will be affected by a decision to refuse his application.

    Any other considerations

42. I have taken into account the effect on Mr Guden of refusing his application for a visa and thereby requiring him to return to Turkey against his wishes.

43. I accept that it is Mr Guden’s very strong desire to live permanently in Australia.  He came to this country as a ten year old child and now regards himself as an Australian.  Most of his life has been spent in Australia, albeit that most of his adult life has been spent in prison.  I accept that he genuinely wishes to remain in Australia and care for his father during the remainder of his life and to assist in the care of his immediate family.

44. Taking into account Mr Guden’s family history and the fact that he last lived in Turkey 16 years ago, it is likely that Mr Guden will have some difficulty in assimilating into the Turkish community.  However he does have some command of the Turkish language.  Further, his mother and sister both live in Turkey and I am satisfied that he will be able to contact them if he chooses to do so.  Mr Guden said that his mother tried to contact him while he was in prison and that her telephone number was on his prison file.  In the report by Corrections Victoria made in August 2009 it was noted that “[d]uring interview with the writer Mr Guden reported that he has a very good relationship with his parents.  He reported that he lives with his father in Dandenong and that his mother and his sister are currently living overseas.”[32]

    [32] Exhibit A2 p.71.

1. I have taken into account that in Turkey Mr Guden may not have available to him the support which he would have if he remains in Australia.

   Balancing all of the relevant considerations

2. Having taken into account all of the relevant considerations and all of the information before me I have come to the conclusion that the need to protect the Australian community significantly outweighs all other considerations.  Even when balanced against all other relevant considerations, the risk to the Australian community if Mr Guden’s application for a visa was granted, is unacceptable.

   CONCLUSION

3. The decision under review made 14 March 2013, being the decision of the Minister for Immigration and Citizenship to refuse the application of Burak Guden for a Special Eligibility (Residence) (Class AO) visa, will be affirmed.

I certify that the preceding 77 (seventy‑seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

....[sgd].....................................................

Associate

Dated 6 June 2013

Date of hearing	27 May 2013
Advocate for the Applicant	Mr J Townsend
Solicitors for the Applicant	Victoria Legal Aid
Advocate for the Respondent	Mr D Brown
Solicitors for the Respondent	Australian Government Solicitor