Buyukcorduk and Minister for Immigration, Multicultural and Indig Enous Affairs

[2003] AATA 1351

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1351

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/552

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KISMET BUYUKCORDUK

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date23 December 2003

PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds.

[Sgd SP Estcourt QC.,]

Deputy President

CATCHWORDS

Immigration – spouse visa – character test- false and misleading information – exercise of discretion – decision under review set aside.

Migration Act 1958 – s501

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

23 December 2003 Mr S P Estcourt QC., (Deputy President)          

1. In this case, Kismet Buyukcorduk has made application for a review of the decision of the respondent made on 11 April 2003 refusing the grant of a spouse visa to her husband, Senol Buyukcorduk on the grounds that he had not satisfied the respondent that he passed the “character test” within the meaning of s501 of the Migration Act 1958 (“the Act”).

2.      The visa applicant is a citizen of Turkey in which country he has (or had) the following criminal convictions:

§26 May 1989 – starting a fire intentionally, 1 year 5 months and 15 days imprisonment;

§8 October 1992 – carrying an unlicensed firearm, 11 months imprisonment and fine;

§9 September 1997 – aggressive drunkenness and carrying a lawful firearm in public, which had frightened people, sentenced to 1 month imprisonment converted to a postponed fine.

3.      Between 23 December 1997 and 2 August 2002, the visa applicant lodged four visa applications, including an application for the spouse visa currently under review.  In none of those applications, did the visa applicant disclose to Australian immigration authorities that he had the criminal convictions enumerated above.

4. It is contended on behalf of the respondent that the visa applicant fails to pass the character test posed by s501 of the Act because firstly he has a substantial criminal record as defined by s501(7) of the Act and secondly because of his past and present general conduct, namely his immigration misconduct in providing false and misleading statements to immigration authorities in respect of the existence of his criminal record.

5.      On behalf of the review applicant and the visa applicant, Mr Hughan of counsel, conceded that the visa applicant does not pass the character test because of his quite substantial criminal record as defined.

6.      It is necessary however for me to determine the second basis upon which Ms Arduca, counsel for the respondent relies, namely the visa applicant’s false and misleading conduct in respect of his failure to declare his criminal record in each of the four visa applications made by him. 

7.      The visa applicant claims that his failure to admit to the existence of his criminal record in the various applications he made to come to this country is because in Turkey, convictions are annulled after a period of years pursuant to legislation where they are not of the most serious kind.   Evidence before the Tribunal in the form of a previous Convictions Records Investigation from the Ministry of Justice of the Republic of Turkey in fact discloses that the visa applicant does not have any record of convictions. 

8.      In his evidence before the Tribunal, the visa applicant said that he did not answer “yes” to the relevant questions in the visa application forms because of his understanding that his convictions were removed from official records after 5 years. 

9.      I do not accept the visa applicant’s explanation for two reasons.

10.     First, whilst the first visa application completed by the visa applicant on 23 December 1997 posed the question “have you, or any children included in this application been convicted of a crime or any offence in any country”, the three remaining applications posed the question in an entirely different way, namely:

“Have you, or any other person included in this application, ever:

·     been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” (emphasis added)

11.     I do not accept that the visa applicant’s understanding could have caused him to answer the latter question in the negative on three separate occasions. 

12.     More importantly however, the applicant’s own evidence before the Tribunal was that convictions are only annulled after 5 years yet his last conviction of September 1997 was only 3 months prior to his December 1997 visa application, 6 months prior to his March 1998 application and only 14 months prior to his November 1998 application.  Even as at 2 August 2002, the date of his latest visa application, the last of his convictions would not have been annulled. 

13.     It follows that on both the conceded ground and the contended ground, the visa applicant does not pass the “character test”. 

14.     I next turn to a consideration of the residual discretion to nonetheless authorise the grant of a visa to the visa applicant, the exercise of which involves a consideration of Ministerial Direction No. 21, issued for the guidance of decision makers and which binds the Tribunal. 

15.     I readily accept that the first of the primary considerations under Ministerial Direction No. 21, namely the protection of the Australian community, weighs heavily in this matter given the seriousness and nature of the defendant’s criminal offences, and his false and misleading conduct in relation to his visa applications.

16.     In considering the risk of recidivism, I note however that the visa applicant’s offending seems to have ceased, and given that his application for a spouse visa will entitle him to permanent residence in Australia, there would be little likelihood of his repeating offences against Australia’s immigration laws. 

17.     On the question of general deterrence, it is trite to say that the refusal of a visa to the applicant in this case would send a message to others who were minded to mislead immigration authorities. 

18.     The third of the primary considerations however, weighs very heavily.  The visa applicant and the review applicant have a son, Ozcan who was born on 10 October 2001 and who is an Australian citizen.  The couple married in early 2000. 

19.     In respect of this primary consideration under Ministerial Direction No. 21, I direct myself in accordance with comments in the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568. In my judgment the best interests of Ozcan lie in his remaining in Australia to enjoy the benefits of his Australian citizenship in the company of both his parents living together. In my judgment, the force of no other consideration or combination of considerations in this case outweighs the best interests of Ozcan. Neither he, nor, as I will explain in a moment, his mother, as citizens of Australia should be deprived of the country of their citizenship “and of its protection and support, socially, culturally and medically and in the many other ways evoked by, but not confined to the broad concept of lifestyle” [Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614].

20.     My reasons are as follows.  When the review applicant and her husband applied for their spouse visa, the review applicant thought that it would probably take a short time to process and on that basis it was decided that she and her son would travel to Turkey to await the decision.  In the events that happened, they stayed in Turkey on that occasion for about 3 months, until Ozcan became ill and it was decided that it was better to return to Australia for medical treatment, than to remain in Turkey. 

21.     The review applicant and her son again attempted a stay in Turkey last year, however once again, they were only there for some 2½ months when Ozcan again became ill.

22.     The review applicant gave the following evidence which was unchallenged and uncontradicted, and which I find to be persuasive on this question.  She said that she had taken her son to doctors both in Australia and in Turkey and that from what she has seen in Turkey, Australia’s medical treatment is far superior.  She related having taken her son to the doctor where he was examined by torchlight because the surgery couldn’t afford electricity.  She said that the equipment was old and that on one occasion, the examination couch at a clinic was covered with dirty sheets so that she did not want to place her child on them and that the floors were dirty as well. Moreover, medical treatment was not free as it is in Australia in the circumstances in which the review applicant finds herself and medicine was expensive.

23.     The review applicant also described the inadequate housing in which she had stayed with a lack of furniture and other things to which she was accustomed, including a lack of baths, the inadequacy of showers and toilets, the lack of clean drinking water and the lack of cooking facilities. 

24.     The review applicant said that for her son’s future, she wants him to grow up in Australia and that she couldn’t live in Turkey because of what she has seen on her previous two visits. 

25.     In these circumstances, it is not difficult to conclude that the best interests of the child Ozcan lie in his remaining in Australia and in this case there is nothing to displace the general assumption that a child’s best interests will be served if the child remains with its parents. 

26.     Further, whilst it is a consideration to which generally speaking less weight is normally accorded under Ministerial Direction No. 21, in this case the genuine marriage of the review applicant, as an Australian citizen, to the visa applicant, her compassionate claims in that regard and the hardship she would suffer if she were unable to live with her husband in Australia, must also be taken into account. 

27.     As to this, the review applicant gave evidence that she could not live in Turkey, because her Turkish was not very good, because Australia was her home, because her whole family are in Melbourne and because her husband’s whole family, apart from one brother who lives in Turkey are also in Melbourne.  She said, in what I judged to be a most genuine fashion, that she could not see herself living in Turkey for the rest of her life, that she just cannot get used to “Turkish talking, the way the people talk, the way they live and the way they do the things they do.” 

28.     At the hearing of this matter, the review applicant was accompanied by 15 members of her and her husband’s family.  That is to say, the entire families of both the review applicant and the visa applicant with the exception of two of the review applicant’s older sisters who were unable to be at the hearing as a result of family problems and the visa applicant’s older brother who lives in Turkey. 

29.     It is clear that humanity and compassion would dictate that the review applicant, the visa applicant and their son Ozcan, should be able to live within this large close family, all of whom are Australian citizens.

30.     There are two other specific matters going to the question of the hardship of the Australian citizens in the applicants’ immediate families.    They are that the visa applicant’s mother has a psychiatric condition which is exacerbated by the absence of her son, and the review applicant herself is suffering from depression and requires medication to help her sleep and to control constant headaches from which she is suffering. 

31.     Before the Tribunal was a report from psychiatrist, William H. Orchard who certified that Mrs Ayse Buyukcorduk was suffering from chronic manic depressive or bipolar illness which was made worse when her youngest son Senol was required to return to Turkey, that she is currently taking sodium valproate and cypranil and that her health would improve considerably if her son were granted a visa to return to Australia.

32.     Evidence was also given by Fran Smullen, an accredited counsellor and social worker, noting the review applicant’s depression in her contacts with her and concluding after reviewing the family background that “the negative and detrimental emotional and psychological effects of the possible rejection of Senol’s application for a spousal visa of Kismet, Ozcan and Senol’s mother outlined in this report indicate that acceptance of Senol’s visa application is pivotal to the emotional well-being of each of these individuals.”

33.     In all of these circumstances, I conclude that the best interests of the child Ozcan lie in his remaining in Australia to enjoy his Australian citizenship and at the same time remaining with both his parents and that no other consideration in this case outweighs that “primary consideration”..  I am reinforced in that conclusion by the weight of the “other considerations” in this case, namely the genuine marriage of the review applicant as an Australian citizen to the visa applicant, her compassionate claims and the hardship would be caused to her and the members of her large and close family, as well as to the family of the visa applicant, in particular his mother. 

34. I have rarely seen a clearer case for the exercise of the residual discretion pursuant to s501 in favour of the visa applicant authorising the grant of a visa notwithstanding his failure to pass the character test.

35.     The decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with the direction that the visa not be refused on character grounds.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)     

Date/s of Hearing  4 December 2003
Date of Decision  23 December 2003
Counsel for the Applicant         Mr G Hughan
Solicitor for the Applicant           Merushe Asim
Counsel for the Respondent     Ms Elena Arduca
Solicitor for the Respondent     Australian Government Solicitors