Can and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Migration)
[2020] AATA 37
•20 January 2020
Can and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Migration) [2020] AATA 37 (20 January 2020)
Division:GENERAL DIVISION
File Number: 2019/7110
Re:Gokhan Can
APPLICANT
AndMinister for Immigration, Citizenship, Migration Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:20 January 2020
Place:Melbourne
The Tribunal affirms the decision under review.
........................[sgd]................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of Turkey – Class AH Subclass 101 (Child) visa – multiple convictions – intentionally cause serious injury – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
Legislation
Migration Act 1958 (Cth)
Serious Offenders Act 2018 (Vic)
Cases
Ayache and Minister for Immigration and Border Protection [2018] AATA 210 at 66
Bulivesi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3
FYBR v Minister for Home Affairs [2019] FCFCA 185
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458NDFN and Minister for Immigration and Border Protection [2017] AATA 892
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
BACKGROUND
Mr Can applied on 1 November 2019 for review of a decision of a delegate of the Minister dated 24 October 2019 refusing to revoke the mandatory cancellation of his Class AH Subclass 101 (Child) visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
Mr Can’s visa was cancelled by a delegate of the Minister of 2 February 2017 under s 501(3A) of the Act. Representations were made on his behalf dated 22 February 2017 seeking revocation of that decision.
Currently aged 29, Mr Can was born in Turkey on 17 May 1990 and arrived in Australia on 2 August 2003 aged 13. He has travelled back to Turkey once only, spending six months there on a visit commencing just under a year after arriving in Australia. Mr Can has three half-brothers: ‘O’, an adult at the time of the hearing; and, twins ‘A’ and ‘D’, aged ten. Mr Can is the father of a young child, aged eight.
At the time of the hearing on 7 and 8 January 2020 Mr Can was in immigration detention. Prior to this he had completed a term of imprisonment of five years following his conviction on 15 February 2015 on a charge of intentionally causing serious injury. This conviction led to the mandatory cancellation of his visa.
The Respondent lodged both G documents and Supplementary G documents, and both parties lodged Statements of Facts, Issues and Contentions (SFICs). A number of witness statements were admitted into evidence at the hearing, as was a report by a Forensic Psychologist engaged by Mr Can’s legal representative.
Medical reports relating to A were also admitted. A has high developmental and medical needs arising from Down Syndrome, intellectual disability, incontinence, and a heart condition. These conditions are considered lifelong and he requires support for daily living and medication for anxiety.
LEGISLATION
Under s 501(3A) of the Act the Minister must cancel a visa granted to a person if the person does not pass the character test because they have a substantial criminal record and are serving a sentence of imprisonment. A person does not pass the character test under ss 501(6) on the basis of a substantial criminal record, which is defined in ss 501(7) to include where the person has been sentenced to a term of imprisonment of 12 months or more.
A mandatory cancellation decision under s 501(3A) may be revoked under s 501CA(4) if the Minister is satisfied that either the person passes the character test or there is another reason why the decision should be revoked.
Section 499(1) of the Act permits the Minister to give written directions about the performance of functions or the exercise of powers under the Act. Direction No. 79 (the Direction) dated 20 December 2018 was issued pursuant to s 499(1) and under ss 499(2A) decision makers must comply with the Direction. The Direction sets out Objectives, General Guidance, Principles and considerations that are to be applied, including in relation to decisions under s 501CA not to revoke the mandatory cancellation of a visa (paragraph 6.1(4)).
Section 2 of the Direction establishes how the legislative discretion is to be exercised and that a decision-maker determining whether a mandatory cancellation will be revoked must take into account the considerations set out in Part C. Considerations are categorised as ‘primary’ and ‘other’ and both types may weigh either in favour of or against whether or not to revoke a mandatory cancellation (paragraph 8(3)). Primary considerations should generally be given greater weight than other considerations (paragraph 8(4)). One or more primary considerations may outweigh other primary considerations (paragraph 8(5)).
The application of the considerations in Part C is to be informed by the principles set out in paragraph 6.3:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)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.
(5)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.
(6)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.
(7)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.
EVIDENCE
Applicant’s offending
Mr Can’s criminal history is set out in a National Police Certificate dated 21 June 2018 and convictions span the years 2008-2015 (G2, Attachment A, pp 25-33). His offending commenced in 2007 when he was a minor and a series of charges were found with no conviction recorded. The offence for which he was sentenced to imprisonment, leading to the mandatory cancellation of his visa, occurred in 2012 (the principal offence).
Vehicle offences
Between 2011 and 2014 Mr Can appeared in both the Magistrates Court on five occasions and the County Court on two occasions on approximately 80 road and vehicle related offences. The outcomes of these charges include a fine of $500, community work of 21 and 200 hours duration, driving suspension for periods of three months and two years, and imprisonment for 30 days.
Dishonesty offences
Between 2009 and 2013 Mr Can appeared in the Magistrates Court on three occasions and the County Court on two occasions on approximately 10 charges, most relating to vehicle theft. The outcomes of these charges included: a fine of $100, with eight hours community work in default; a further community based order of 200 hours (see Vehicle offences); and, imprisonment for terms between three and eight months.
Offences involving violence, weapons and drugs
Between 2011 and 2014 Mr Can appeared in the Magistrates Court on five occasions and the County Court on two occasions on approximately 10 charges. The outcomes of these charges include: fines of $250 and $4,000; a term of one month imprisonment suspended, and imprisonment for terms of five days, one month, and three months.
Police records indicate that two of the weapons offences related to small knives. In cross-examination Mr Can stated that he did not know what he described as a fruit knife was in a vehicle when searched by police, and that just prior to this he had bought the car off a friend. He denied admitting that the weapon was for self-defence, as stated in the police record (SG8, p 605). The other instance related to carrying a small multi-tool pocket knife when searched at a railway station (SG8, p 595).
Mr Can pleaded guilty in 2014 to charges arising from possession of a sawn-off shotgun, ammunition and a handgun (SG8, p 575). In cross examination, and following questions from myself, Mr Can denied knowledge of the shotgun. He stated that he could not recall why he had pleaded guilty to this offence, and stated that he should not have done so.
Offences involving family violence
A police database report dated 14 September 2009 (SG8, pp 639-670) indicates that a report was made that Mr Can had assaulted his half-brother O. O gave evidence at the hearing and denied the assault stating that the report was made at the instigation of his father.
On 23 July 2012 at Melbourne County Court Mr Can was sentenced to a term of imprisonment of eight months, four suspended for contravention of a family violence order. The outcome was aggregated with that for other offences noted above.
At the hearing Mr Can was cross-examined about offences and intervention orders relating to his former partner. I also put questions to Mr Can. This arose from police records that indicate Mr Can used violence against his partner, including while pregnant and that their child was injured in once incident (SG8, pp 598-599 and 634). Mr Can stated that he had slapped his partner on one occasion but denied punching her repeatedly as stated in police records. Mr Can stated that he did not know the baby was injured.
A police record dated 15 November 2016 (SG8, pp 630-632) states that an intervention order was sought by Mr Can’s former partner and describes this as the fifth reported family violence incident between the parties. It states Mr Can was served with a summons in relation to this report on 2 December 2016. It is said to relate to an alleged written threat issued by him while in custody. In cross examination Mr Can denied knowing anything about such a letter and stated he did not give such a letter to her. He said that he only wrote to her to take care of their child.
A separate police record dated 9 February 2017 (SG8, p 641) describes the result of this report was an intervention order and it appears to have effect between 9 February 2017 and 9 February 2022. The complainants include Mr Can’s child.
Breach offences
Between 2009 and 2013 Mr Can appeared in the Magistrates Court on four occasions and the Country Court on one occasion on a number of charges including breaches following the imposition of a suspended sentence, fail to answer Bail Granted, and breaches of community based orders. The outcomes included: fines of $100, $4,000 aggregate with offences noted above, and $4,500 aggregate with vehicle offences noted above; and, 3 months’ imprisonment with one month suspended, and a further sentence of four months imprisonment reinstated for breach of family violence order conviction.
Principal offence
Mr Can was convicted in the Melbourne County Court on 19 February 2015 after pleading guilty to a charge of intentionally cause serious injury. He was sentenced to five years imprisonment with a minimum term of two and a half years. The sentencing judge observed that had Mr Can not pleaded guilty, the term would have been six years with a minimum of four years, stating that the offence amounted to ‘extremely serious offending’. The sentence was described as being ‘a fair distance between the maximum and minimum terms’, which I take as describing it as a mid-range sentence.
The following summary of the offence is drawn from the sentencing remarks of Her Honour Judge Gaynor (G2, Attachment B, pp 34-47):
(a)On 2 October 2012, just before midnight, Mr Can stabbed the victim in the company of another man after luring the victim to the meeting. The co-offender did not know that the victim had been stabbed and was unaware that Mr Can had a knife or intended to stab the victim;
(b)The victim was a friend of Mr Can’s former partner, and mother of his child. Mr Can sent a message to the victim using his former partner’s Facebook profile providing a number for the victim to text. Text messages sent by Mr Can show that he posed as his former partner and proposed a romantic encounter. Mr Can was motivated by jealousy at his former partner’s other relationships;
(c)Shortly after setting up the meeting Mr Can then sent a text to another person saying: “Call me asap ‘cause I need to speak to you asap, I’m about to bash this cunt and take his Harley. Call me”;
(d)The victim’s injuries were a collapsed lung, two stab wounds to the front of his chest, two stab wounds to the back of his chest, a stab wound to the abdomen penetrating at least four centimetres, laceration to his liver and an abrasion to his cheek:
A chest drain had to be inserted under anaesthetic and the injuries were assessed as life-threatening. [The victim] remained in hospital until 6 October and multiple medical specialists were required to keep him alive and stable following the injuries he sustained at your hands.
…
All in all, Mr Can, you are extremely lucky you are before a court only on a charge of intentionally causing serious injury rather than one of murder.
Your plea for this matter was entered at an early stage once you were confronted with the statement made by [the co-offender] implicating you in this offending …
(e)Mr Can’s early years in Turkey were difficult. His father was a violent man, gambler and drinker. His father assaulted Mr Can and his mother who fled to live with other family, leaving Mr Can with his father. He was regularly mistreated for four years and on one occasion his father attempted to sell him in a marketplace. At the age of seven, with the help of relatives, Mr Can’s mother rescued him and he has not had contact with his father since;
(f)Mr Can and his mother immigrated to Australia with a man to whom she had a second son. The relationship broke down particularly over the new partner’s attitude to Mr Can. Mr Can experienced difficulty with education and learning English and began self-harming. Language difficulties prevented completion of a trade qualification he commenced at the age of 15;
(g)Mr Can left home after his mother remarried a man he did not like, and following a period living with an older woman he began what ultimately became a period of 18 months living on the streets at around the age of 16 and this is when his criminal history began;
(h)In 2009 Mr Can was twice assaulted and stabbed. On the first occasion he was hospitalised for about three months and his spleen and pancreas were removed. Mr Can was also hospitalised after the second stabbing, with a punctured lung. During this time Mr Can was not living at home and his mother did not want him to return;
(i)Mr Can developed an undesirable peer group and was introduced to marijuana which:
… became a daily habit for many years, and alcohol, which you drank to excess for some time. It would appear that much of the offending you have engaged in over the years was carried out whilst you were under the influence of either illicit substances or alcohol
(j)Mr Can began a tumultuous relationship with his former partner and they had a son together. At one point she informed him he was not the biological father. She also took out an intervention order which Mr Can breached;
(k)Mr Can then began reassociating with a criminal peer group he had met in jail.
About eight months before committing these offences, you began, for the first time, using methamphetamine and GHB. It appears that you were using this on a daily basis.
(l)Indications of a previous diagnosis of psychiatric symptoms led to a forensic report which did not find that at the time of the offences Mr Can was suffering a psychiatric illness or psychotic symptoms.
What was said to be more likely … is that because of the very difficult experiences of your childhood and adolescence, you have problems with interpersonal connections in the community. What that means is it was felt that you found it particularly difficult to deal with the break-up with [former partner] and you responded to it in a violent manner.
Certainly I note that your offending history, although long and including offending such as an armed robbery, various thefts, a large number of driving offences, contravention of family violence order and possession of prohibited weapons, does not contain examples of the sort of violent offending you engaged in on this occasion. It is quite clear, in my view, this offending marks a particular escalation in the way you have offended.
When giving evidence I asked Mr Can about the length of time served for this offence. He stated that he had applied for parole. However he ‘couldn’t talk’ to the parole officer, by which I understood from his evidence that he felt they did not get on well during their first video link. Mr Can stated that he requested the parole officer be changed. On a second video link Mr Can saw that the parole officer was not changed as requested and walked out of the meeting. I asked him whether he withdrew his application for parole and he answered ‘yes’.
The Applicant
In his written statement (Exhibit A1) Mr Can states that he was kicked out of home a few times by his stepfather and had unhappy teenage years. In evidence Mr Can confirmed that he has a half-brother O who is ten years younger than himself, and two other half-brothers who were born in Australia.
Mr Can left school at 15 to attend TAFE and completed three years of a mechanical engineering qualification. In his statement he refers to work at the age of 16 as a labourer. He stated that he had difficulty at school due to problems learning to speak English.
Mr Can stated that he had been stabbed on two occasions for which he was hospitalised. The second incident occurred in temporary accommodation secured with the assistance of a DHS worker he had meet during a period of foster care. Mr Can stated this attack occurred less than a month after he left hospital following the first incident.
At the Hearing, Mr Can confirmed he had been dealt with in the Children’s Court in 2008 and confirmed his offending history in the National Police Certificate.
When asked how he now looked back on the principal offence Mr Can stated that his intention that night was only to talk to the victim. He went to the co-offender’s house and ‘we started drinking, then the drugs came out’.
When asked further about his relationship with his former partner Mr Can stated that they had barely lived under the same roof for one week. His partner became pregnant one to two months after they met. She then ran away, wanting to have the baby and they tried to work things out. Mr Can stated that he has now developed a better understanding of relationships and that she was not the ‘right girl’ for him: ‘lots of people separate; I’d go about things differently now’.
I asked Mr Can to clarify whether he and his partner had married and he stated that they underwent a ‘religious marriage’ because otherwise it would be ‘haram’ for him to associate with his child.
Mr Can stated that his former partner had visited him in prison but after she informed him that she was remarrying he asked her to stop and had not seen her since. Mr Can stated that he would engage a family lawyer to make arrangements for formal care of his child in the future. Prior to his time in custody Mr Can claimed he had cared for his child every day or every second day.
While in custody Mr Can stated that he tried to help someone and as a result was stabbed 13 times by nine assailants and claimed to have suffered nerve damage in this incident. As a result of the attack he was placed in protective custody for 18 months.
At the time he was remanded Mr Can stated that his twin half-brothers were aged three or four years. Previously he would visit his mother’s house every day or second day for dinner. He stated his half-brother A is ‘special to me’ as helping him makes him feel better. Mr Can had watched a documentary about children with special needs and he thought that A is getting hurt at the special school he attends.
Mr Can has completed a number of courses while in prison including on drug and alcohol issues, making changes, and a violence intervention program; claiming the latter had made the most impact on him. He stated that he has learned about feelings and emotions and understands anxiety and can now deal with it.
Mr Can attended a consultation in 2019 with Bea Raymond, Consultant Forensic Psychologist. He understood it was for the purposes of a Detention and Supervision Order Assessment Report (G2, Attachment F, pp 97-135).[1] He stated that he understood this was something like parole and would involve conditions relating to accommodation, and treatment and rehabilitation programs. He said the consequences of breach of such an order would be jail time and deportation from Australia.
[1] Under the Serious Offenders Act 2018 (Vic).
If permitted to remain in Australia Mr Can stated that he wished to live with his mother and help her in the house and with the care of his half-brothers. He wanted to commence with a part time job and slowly get into work, and eventually open a business with his mother.
Mr Can stated he had a formal diagnosis of depression and anxiety and is on regular treatment. He uses the following medications: Insulin three times/day; Lyrica three times/day; tablets for diabetes; and one or two other medications for anxiety and sleep. Lyrica is a medication to assist with nerve damage.
Mr Can said he had ‘no idea’ about life in Turkey today. He also stated that due to the requirement for military service in Turkey he would be detained on arrival and ‘forced to join the Army’. He stated that he has had a lot of violence in his life and plans to stay away from violence.
In his written statement Mr Can observes that he is ‘not sure’ if he would be medically exempt from military service due to his injuries. He states that he is not ‘comfortable’ with military service and ‘would refuse’ as it is ‘the last thing I would want to do’. He states this refusal would cause him serious problems.
When asked in cross-examination about the possibility of military service in Turkey Mr Can stated it would be up to the military to decide if he was able to serve. His medical conditions include losing his spleen and part of his pancreas, nerve damage, diabetes and high cholesterol. He did not think these conditions prevented him working if he commenced with part time work. He acknowledged the observation in his written statement that he would refuse military service. Asked to elaborate on his objection he said he was ‘against it’. Asked if it was on moral grounds he responded ‘I guess’. He did not have particular views about the use of military force between states, but said that service in the military is wrong.
Mr Can stated that it was a misunderstanding with the judge to say he was jealous, in fact he was trying to leave the relationship. He did not remember sending a text message to another person saying he intended to bash the victim, stating that ‘everything changed when I took drugs’.
Mr Can stated that was the first night he had taken ice. Referred to his written statement in which he says he first used ice in 2009, Mr Can re-confirmed that he first used ice before the offence in 2012. He had used it a couple of times at parties, and had taken an ‘e’ tablet once. He confirmed this position in re-examination saying ‘they gave me some I never knew what it was’. He developed an addiction after the offending in 2012.
Mr Can confirmed that, as recorded in Ms Raymond’s report, the co-offender gave him the knife which he used to stab the victim (G2, Attachment F, p 104). The co-offender told him ‘this is personal’ and gave him the knife, later taking it from him and disposing of it.
Mr Can reiterated that he made a full admission to the principal offence – ‘I done it’. He acknowledged prior offences of violence and breach offences saying that he was lost at that time in his life and wasn’t thinking about what he was doing.
Mr Can acknowledged the offences involving his former partner and that intervention orders had been made. He thought that there had been one or two such orders stating: ‘she claimed them but she was sleeping in my bed that night, you know’. He acknowledged a breach offence in one of these cases. In response to a question from myself Mr Can acknowledged he had been served with an intervention order while in custody, but was not sure if it was in place or if it included reference to his son.
He acknowledged testing positive to Buprenorphine [an opiate], noted in a sentence management panel report dated 10 July 2019 (SG7, p 375). He stated that other positive results arose from refusals to provide urine samples due to anxiety, later receiving a medical certificate. Mr Can acknowledged that he had used another person’s drugs (the Buprenorphine) to treat his nerve damage, after a request to be provided that drug by his doctor was refused.
Mr Can was directed to a statement in Ms Raymond’s report suggesting that he had not been able to articulate strategies to ensure stability, and address his hostile and aggressive behaviour (G2, Attachment F, p 116). He responded that he knew to observe what was going on in his body, and to remove himself from confrontations and reiterated this awareness in re-examination.
Mr Can stated he thought his last contact with his son was in 2013. He understands his former partner is in contact with his mother and that his son spends time with his half-brothers every week. As to future arrangements Mr Can stated that his former partner ‘won’t have anything to do with me being the father’ and Mr Can stated that he did not want to fall back into any ‘old traps’ arising from that relationship.
Mr Can confirmed he had lived briefly in the same house as the twins. He stated that he had bathed A once and changed him a ‘couple of times’. He was aware that care was in place under the National Disability Insurance Scheme (NDIS).
In re-examination Mr Can accepted his long history of offending and stated that he has learned a big lesson. This lifestyle is not something he wants to pursue in the future and he is scared that he is going to lose his mother and brothers, who he would like to make proud. His goal now is to be a good person.
Mother’s friend S
S gave evidence that she and her husband manage a business producing ‘spec’ homes. Some 70 tradesmen supply services in different trades to this business and she stated that she could obtain work for Mr Can ‘overnight’. In her written statement (Exhibit A2) she states Mr Can worked for her as a labourer when a teenager.
S stated that she had spoken to Mr Can on the phone about employment options and considers being an electrician or plumber the best option, given his nerve damage. I asked her to confirm what work options she herself could offer should a trade position not be available. She stated site cleaning or supervising, in which a qualification could be obtained.
S stated that she was aware of his criminal offending. When asked about Mr Can’s history of drug use S stated she would not allow that and they had spoken about how he might remain drug free.
Mr Can’s mother B
B stated that she has four sons: Mr Can, born in Turkey; O, who turned 18 in September 2019, was born in Australia; and, twins A and D, turning 11 next month who were also born in Australia.
B stated that A has autism and Down Syndrome and functions at the level of a one or two year old. He continues to wear a nappy, and is non-verbal. B described her daily routine as involving rising early to change wash and feed A, and engaging in a range of household chores.
B stated that A attends a special school and that a carer funded through NDIS takes over from her in the morning, and then takes A to school. He is also very strong and while aged nearly 11 looks 15. Caring for him is increasingly difficult and her son gets frustrated and may take his clothes off, including in public.
In relation to her own health B stated that she takes pain killers for headaches and has stress and depression, in addition to a back problem. B stated she needs a back operation and a hysterectomy but due to her care responsibilities is unable to take the time for these procedures.
B sees Mr Can in the future as being another adult in the house and a ‘father figure’. I asked her about other family in Australia and B stated she has had no communication with her family for five years and no idea where they live.
In her written statement (Exhibit A3) B states that if Mr Can were to return to Turkey she may never see him again. This is because she once travelled there with her twin sons but it was difficult to manage with A and he has only become more difficult to deal with, and she cannot leave him.
Mr Can’s son, her grandson, stays with her over the school holidays and has been there since 30 December. His mother drops him off and has done so for the last two years. She stated that Mr Can misses his son, but that they do not talk about his father in front of him. This arrangement was agreed with his mother and the twins know not to talk about Mr Can.
In cross-examination B stated that A was two years old when her son went to prison. Before this he fed him with a bottle ‘every day’ – the twins, she said, ‘grew up with him’. She confirmed NDIS support is now in its second year and the level of assistance is ‘higher this year’. B has help at home five days a week including four hours after school and A has speech pathology and occupational therapy at home ‘almost every week’.
A and D’s father does provide care, but contact has been less lately as he went overseas for six weeks without telling B. Her relationship with Mr Can’s former partner is friendly and she confirmed her grandson does not know Mr Can is his father. She is aware that an intervention order was in place in relation to the child.
B agreed her parents are still alive and live in Turkey. Her father is 74 years and her mother 70. She has three sisters in Turkey and is in contact with them, each sister has three children. The nieces and nephews are aged between three and 25 years. In answer to a question from myself B stated that her relatives in Turkey do not know about ‘what’s been going on’ with Mr Can’s life.
In re-examination B stated that Mr Can was unhappy about the prospect of military service but stated that he had said: ‘it’s not my choice, I have to do it’.
Pamela Matthews
Ms Mathews, a forensic psychologist, interviewed Mr Can at the request of his representatives on 16 December 2019 and confirmed the contents of a written report dated 30 December 2019 (Exhibit A4).
Ms Mathews explained that the probability of stated levels of risk in Ms Raymond’s report being accurate was 0.77. This means the probability of re-offending to the extent predicted is 77%. Ms Mathews accepted that the risk of Mr Can reoffending was high, including the risk of further serious violent offences.
Ms Matthews stated that further offending was unlikely to occur if treatment programs could be implemented and she considered these would be in place under a supervision order. In response to a question from myself Ms Mathews agreed such programs and their coordinated delivery would be hard to replicate outside this regime.
Ms Mathews was asked about Mr Can’s stated plans and her opinion was that living with his mother ‘would set him up to fail’ and that she had ‘great reservations about this’. Mr Can wanted to be part of the family and wants his mother’s love, but that arrangement ‘is not what is best for him going forward’, given that his attachment needs were difficult to deal with.
In her opinion Mr Can did not have a significant history of substance abuse; his drug use was related to emotional needs not addiction.
In cross-examination Ms Mathews stated that the violence intervention program completed by Mr Can addresses identification of triggers and emotional regulation strategies. As a result of completing this program twice he appreciated that not talking about problems had been an issue for him and he has learned from that.
In response to a question from myself, Ms Mathews stated Mr Can had accepted the effects of the serious injury offence on the person he stabbed. I asked further about Mr Can’s capacity to comply with direction. Ms Mathews stated that Mr Can has issues with authority arising from past relationships with aggressive men in his life.
Half-brother O
O amended his written statement dated 16 December 2019, advising that he uses his father’s family name (Exhibit A5).
He stated that he expects to undertake a heavy vehicle maintenance apprenticeship having completed Year 12. O does not live at home with his mother and half-brothers and has been staying with his girlfriend. This has helped him to undertake his studies and he will continue this in the future.
O affirmed the difficulties experienced at home with A including his behavioural problems and the need to change his bed and clothing due to toileting issues. Living on a main road also caused further problems due to his unpredictable behaviour. He confirmed that Mr Can’s son had been staying with his mother recently, clarifying after a question from myself that ‘recently’ meant the past two weeks.
In cross-examination O stated he did not really remember any violence from Mr Can. He stated that the police report of an assault against him by Mr Can included details that his father had added. He denied that Mr Can had struck him and said ‘he’s not like that’. Asked whether he knew if an intervention order was put in place he responded ‘my father handled that’.
Dr Susie Gibb
Dr Gibb confirmed that she provided a letter dated 3 December 2019 describing A’s medical conditions (Exhibit A6). She stated that she has been treating A at the Royal Children’s Hospital over the past eight years. His congenital heart disease is now stable.
She understood that NDIS support was in place and otherwise A is in the care of his mother. She stated that it is preferable that there be consistency in his care arrangements, and family is almost always best. Family are also able to provide emotional support to one another, something not provided by outside care arrangements.
In her opinion there is a strong risk that family carers cannot sustain long term care for a child with disabilities. She did not believe it would take long to skill-up an adult not previously involved in providing care. In cross-examination Dr Gibb stated that she did not know Mr Can.
A’s Carer
The carer’s written statement dated 16 December 2019 was tendered without objection as the evidence of a carer employed to help with A on weekday mornings (Exhibit A7).
In her statement, A’s carer describes A’s conditions and her involvement in his care as well as her view of B’s circumstances.
CONSIDERATIONS
Mr Can’s offending led to a sentence of imprisonment of five years. I therefore find that he does not pass the character test because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act.
As Mr Can does not pass the character test it is necessary to address the considerations set out in Part C of the Direction to determine whether the mandatory cancellation should be revoked for another reason.
Primary considerations
Protection of the Australian community
Under this primary consideration I should give consideration to the nature and seriousness of Mr Can’s conduct to date (paragraph 13.1(1)) and the risk to the Australian community should he commit further offences, or engage in other serious conduct (paragraph 13.1(2)).
In considering Mr Can’s criminal record to date I must have regard to certain factors at paragraph 13.1(1) of the Direction. Relevantly, these include the principles that: violent crimes are viewed very seriously; crimes of a violent nature against women or children are viewed very seriously, regardless of sentence; (notwithstanding the previous principle) the sentence imposed for a crime or crimes; the frequency of offending and any trend of increasing seriousness; and, the cumulative effect of repeated offending.
The remarks of the sentencing judge make clear that the principal offence was a very serious and violent crime. Although inflicted in what appears to have been a relatively brief attack, the nature and extent of the injuries were life threatening. Mr Can was sentenced to a quite substantial term of imprisonment for this offence. It was not his first custodial sentence.
Mr Can’s offending was of increasing seriousness over time. I note that his offending commenced as a minor, and that his convictions persisted into adulthood, occurring between 2009 and 2015. There are a large number of driving offences across Mr Can’s record. However his offending also includes a range of weapons offences which in themselves are also of increasing severity. This includes possession of small knives but culminates with a serious charge of possessing a firearm and ammunition, to which Mr Can pleaded guilty. His offences, taken cumulatively, demonstrate that Mr Can has a poor record of behaviour demonstrating persistent disregard for property, people and the law.
The nature and frequency of Mr Can’s history of violence arising from his relationship with his former partner is less clear. He admitted in evidence to having slapped his former partner on one occasion, possibly while she was pregnant. He denied the more serious allegations, and was not aware if his son had been injured in during one particular incident. Nonetheless, Mr Can and other witnesses were aware that intervention orders had been in place, and at least one such order was stated to be for the protection of his child. I accept the better view of the evidence to be that Mr Can has a poor record of behaviour in his relationship with his former partner and that he has failed to observe orders arising from his offending against her.
Mr Can has been assessed on two occasions by forensic psychologists. Ms Raymond expressed the opinion that historical factors in Mr Can’s youth reflect his antisocial behaviour and attitudes present since he was a teenager. Mr Can was exposed to violent behaviour and became ‘disenfranchised’, which was exacerbated by his relationships with other disenfranchised youth. She concludes (G2, Attachment F, p 131):
His development of attitudes supportive of the use of violence has continued and participation in treatment has had some impact, however he continues to use violence and respond violently as outlined in the body of this report. It is the author’s clinical opinion that Mr Can represents a High Risk of violent offending.
I note the finding of Ms Raymond that while the risk of violent re-offending by Mr Can is high, it is not imminent. The most likely scenario would be ‘to inflict serious harm to victims known to him and reflect a reactive response to perceived injustice’. Mr Can is however more likely to use physical harm that is not serious such as ‘causing injury recklessly or intentionally’. She also expressed the view that Mr Can has ‘superficial plans for the future and limited insight into the issues that he may face upon his release’ (G2, Attachment F, pp 134-135).
Ms Mathews agreed with Ms Raymond’s assessment that Mr Can is at a high risk of re-offending, and in her report accepted the specific descriptions of risk cited above. Ms Mathews however considers that this risk is likely to be ‘minimal; unlikely to re-occur’ if Mr Can is able to undertake all the treatment recommendations made in both her report and the report of Ms Raymond, available under a supervision order (Exhibit A4, p15). In her evidence Ms Mathews acknowledged this support would be unable to be replicated elsewhere.
Ms Mathews recommends provision of mental health support given a diagnosis of Complex Post-traumatic Stress Disorder. Ms Raymond recommends: offence specific interventions as recommended by treatment facilitators; drug and alcohol programs; accommodation support; self-development programs; counselling to manage anger hostility and aggression (G2, Attachment F, p 132).
Evidence suggests that Mr Can has prospects of employment with or through a friend of the family if he was to remain in Australia. He also articulated plans with regard to gaining and saving income and eventually starting a business. I understand this evidence as going at least in part to the question of Mr Can’s general prospects for rehabilitation, and therefore avoiding the risk of falling back into former patterns of behaviour and relationships from his past. Depending on the role, employment is likely to be dependent on the completion of a course, particularly in the case of commencing in a new trade.
Mr Can has a history of drug taking, but this was assessed by Ms Mathews not to be driven principally by addiction. Drug taking clearly played a role in the principal offending, and Mr Can has used an opiate while in custody without prescription.
It was submitted on behalf of Mr Can that he accepted responsibility for his offences and did not seek to minimise them. Contrary to the opinion of Ms Raymond, it was submitted that the evidence supported a view that Mr Can had strategies to deal with his behaviour, and that this was the result of a program or programs he undertook in custody. He gave evidence that he would not associate with former peers and that he understood the serious consequences for him of further offending. It was also submitted on Mr Can’s behalf that steps had been taken toward the imposition of a supervision order under the Serious Offenders Act 2018 (Vic) (the SO Act), and that the Tribunal could not rule out the possibility that such an order may have been sought.
It was submitted on behalf of the Minister that Mr Can repeatedly sought to minimise his offending or qualify other aspects of the offending including the fact that he has made guilty pleas. In short, it was put that he appears not to have taken full responsibility for his criminal history. Further, the Minister’s representative submitted that drug usage is a relevant risk consideration including that the chance of relapse in the case of methamphetamine use is high. In relation to the supervision order, it was submitted that it is not clear as a matter of law whether the circumstances for the making of such an order exist. It was further submitted by the Minster’s representative that there are real difficulties arising from the reliance placed on the potential for such an order.
Counsel for Mr Can provided a copy of the SO Act and the Explanatory Memorandum (the EM). The EM states that the legislation establishes a ‘civil, protective scheme’ under which offenders who have served a custodial sentence for certain serious violence offences ‘and who present an unacceptable risk of harm to the community can be made subject to ongoing detention or supervision’. A supervision order under the SO Act may only be made in relation to an ‘eligible offender,’ being a person who ‘is serving’ a custodial sentence (s 8). The Secretary to the Victorian Department of Justice and Regulation must decide whether or not to make an application for a supervision order (s 9). Any such application must be referred to the Victorian Director of Public Prosecutions (s 10). An eligible offender must be notified of an application ‘as soon as practicable’ after being made to a court (s 13). A court ‘may’ make an order if satisfied on various grounds as to there being an ‘unacceptable risk’ of re-offending and that an order would be the only option (ss 63 and 64).
In essence the issue arising from the submissions made in relation to a supervision order is that in the absence of such an order, the risk of Mr Can re-offending remains high. I accept that the risk of Mr Can re-offending might reduce to minimal under such an order. However there is no evidence before me that an order has been served on Mr Can, or that an application has indeed been made. In any event, an order can only be made after the positive exercise of a discretion resting in several independent decision makers. I am not persuaded that the prospects of a supervision order being made rise any higher than speculation. The level of speculation only increases when considering the range of conditions that might be applied in any order, and the prospects of compliance or success with any programs or treatment required.
In addition to the professional opinions set out above in relation to the risk of Mr Can reoffending, I accept the submissions of the Respondent with regard to Mr Can’s approach to his criminal record, and to the principal offence. Despite his guilty plea for that offence and a weapons offence, and his acknowledgment of his offending record, I consider that Mr Can’s evidence revealed a tendency to minimise his responsibility for serious offending, specifically the role of drug taking and the role of his co-offender. This approach was also seen in his responses to questions about family violence. Ms Mathews stated that he has issues with authority and I also note his evidence that he appears to have chosen not to undertake parole due to what I understand to be an issue he had with the proposed parole officer.
Evidence arose in cross-examination about Mr Can’s conduct while in custody, including drug use and involvement in alleged assaults, in addition to an assault made upon him. This was based on material contained in prison records found in subpoena material included in the Supplementary G documents lodged with the Tribunal on 9 December 2019. Counsel for Mr Can objected to reliance on this material on the grounds of procedural fairness, it being material to which Mr Can had not previously had access or input. I consider this material would have been available to Mr Can and his legal representatives prior to the hearing. I note that Ms Raymond’s assessment reflects also her consideration of this same material, which speaks in some degree favourably as to its relevance. I also note Ms Raymond assessed risk using a clinical risk management tool that contains three domains, only one of which addresses history of violence. Therefore I accept that she has taken other factors into account in reaching her conclusions.
Overall, I consider that Mr Can’s history of offending is very serious, and the likelihood of him engaging in further criminal or other serious conduct is unacceptably high. This primary consideration weighs strongly against the revocation of his visa cancellation.
Best interests of minor children in Australia affected by the decision
A decision as to revocation must take into account whether it is in the best interests of a minor child, and where there are two or more relevant children, each should be considered individually to the extent their interests may differ (paragraph 13.2(1) and (2)). The following factors must be taken into account where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’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 for the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
I consider there are three minor children affected by the decision, being Mr Can’s son, and his twin half-brothers A and D. I will address each minor child separately and provide a consolidated assessment of weighting for this other consideration.
Mr Can’s son
Mr Can’s principal offending arose out of a question as to parentage of this. Nevertheless, no fundamental contention was raised at the hearing, or on the material lodged with the Tribunal, against the presumption of parentage. Mr Can stated in evidence he was present at the child’s birth and his former partner has made efforts to maintain contact with Mr Can’s family, despite the existence of an intervention order, or orders. I accept for the purposes of this consideration that I should treat Mr Can as the biological father of this child.
I consider on the weight of evidence that it is highly likely that a court order currently prevents direct contact between Mr Can’s and his son. In addition, the practical reality is that he has had no contact with him since being in custody. Efforts have also been made, including by his own family, to deny knowledge of his existence to his son. The evidence therefore suggests that any future absence of direct contact will not change the current situation for this child.
I consider on the evidence provided the question whether Mr Can injured his child remains unresolved. Given the child’s age when Mr Can was offending, and the length of time that has since elapsed, on balance, a future relationship may not be influenced by any prior offending. However I take into account the possibility that his son was a victim of Mr Can’s offending, and that there is a risk of future violent offending to people known to him.
It was submitted on Mr Can’s behalf that this consideration weighs strongly in favour of revocation. Even were it the case that an intervention order is in place this would not, it was submitted, mean Mr Can would be denied access. His son has a right to access to his father and Mr Can gave evidence he intended to pursue his rights at family law.
It was submitted on behalf of the Minister that there was no meaningful relationship in place and no evidence it would be facilitated by the mother. This is reinforced by the fact that she has cooperated with Mr Can’s family to conceal his father’s identity. Evidence indicates that the parental role was being fulfilled by his mother and stepfather. It was also submitted a relationship could be maintained in other ways if Mr Can was returned to Turkey and Mr Can acknowledged he could communicate electronically with his son.
I do not consider the existing relationship between Mr Can and his son to be strong, and the prospects of a future physical or direct relationship between remains somewhat speculative. However, I also consider that it is in the best interests of Mr Can’s young child to have, if possible, a meaningful relationship with the man considered to be his biological father.
Minor child A
The evidence indicates there has been some close and direct personal contact between A and Mr Can, albeit limited in scope and infrequent. Mr Can certainly has not been a regular presence in A’s life due to his time in custody and on the evidence of Ms Mathews it is highly undesirable for Mr Can to take up residence in his mother’s home. Mr Can’s place of residence does not determine his capacity to care for A, but in general there is a degree of speculation about what level of support Mr Can might be able to provide.
It was nonetheless submitted that Mr Can plans to be involved in the provision of tangible assistance to A and his mother. Evidence from A’s doctor showed that there may be a role for Mr Can, given that NDIS care is not available at all times. For the Minister, it was submitted that instances of care in the past have been limited and provision of future care is uncertain.
This is a non-parental relationship and therefore less weight should generally be given to it, although a relationship with a mature half-brother may in some way benefit A. It should be noted of course that there is another adult half-brother, O, in the family. Given A’s particular care needs and developmental state he is unlikely to be affected negatively if Mr Can continued to be absent from his life in the way he has been while in custody. His mother provides primary care, and a range of other professional care supports are in place. Mr Can’s continued presence in Australia might relieve some of the burden from his mother, and this would potentially have an indirect benefit for A.
Minor child D
The bulk of the evidence in relation to Mr Can’s twin half-brothers addressed A’s disability and his high level care needs. There was further evidence given by Mr Can’s mother and O that D’s life was affected by the amount of time family members can pay attention to his needs. It was submitted that D’s needs often come second and the he needed mentoring and risked becoming isolated.
I accept as a general proposition that D may well benefit from having an older brother in his life, noting once again that he has another adult half-brother in his life already. In fact, it might be said that O might make a better role model than Mr Can. This is a non-parental relationship but, overall, I consider that there may be some benefit for D in having Mr Can play a role in his life, were he to remain in Australia.
Summary conclusion
Having considered the individual needs of each minor child who may be affected by the decision, I consider that overall this other consideration weighs slightly in favour of revocation.
Expectations of the Australian community
Briefly stated, this consideration states that the community expects non-citizens to obey the law, and that it may be appropriate not to revoke mandatory cancellation where there has been a breach, or there is an unacceptable risk they will breach, this trust. The nature of the character concerns or offences alone may be sufficient such that the expectation would be that the person should not hold a visa (paragraph 13.3(1)).
It was submitted on behalf of Mr Can that the correct approach to take in relation to this consideration was ‘holistic’, including having regard to the whole of the circumstances of the case. Several decisions of the Tribunal were cited in support of these propositions (Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at 7; Ayache and Minister for Immigration and Border Protection [2018] AATA 210 at 66; and, NDFN and Minister for Immigration and Border Protection [2017] AATA 892, at 70).
It was submitted on behalf of the Minister that the majority judgements in the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCFCA 185 (FYBR) provides appropriate guidance on the application of this consideration. Mr Can’s representative noted that FYBR had been considered and applied by the Tribunal citing Bulivesi and Minister for Immigration, Citizenship, Migrant Services and Multicultrual Affairs [2020] AATA 3.
I note that FYBR deals with a decision under the predecessor to the Direction, being Direction No. 65, to refuse a visa, and the application of considerations in Part B of the Direction. The wording of the consideration relating to expectations of the Australian community is substantially the same in this context.
In FYBR Justice Charlesworth expressed the nature or status of the expectation in this way: ‘I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter’ (FYBR at 67). Her Honour stated further that as the paragraph was a ‘deemed expectation’ and because of the character test will arise in most, if not all cases, having regard to the nature and seriousness of the non-citizen’s conduct (when considering the protection of the Australian community) (FYBR at 75).
Justice Stewart, similarly, held that it is ‘not for the decision-maker to undertake an assessment of what the community expectations are in each case dependent on the circumstances of the case’ (FYBR at 93). The expectation can be expressed, informally, as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive” (FYBR at 101). Further, His Honour observed that: ‘It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa’ (FYBR at 102).
Finally, Justice Stewart found that the community’s expectations ‘speak normatively’ – the expectations are to be applied in every case, but are not expressed in relation to any particular case (FYBR at 103). That is, consistent with the manner in which the discretion should be exercised under the Direction, and particularly with regard to the principles set out in the Direction, ‘it is a question of weight, not prescription as to outcome’ (FYBR at 105).
Mr Can’s principal offending was of a very serious kind. It was conducted in company, and was planned. Mr Can sought to diminish his responsibility by emphasising the role both that drug taking and the role of a co-offender (contrary to the remarks of the sentencing judge) played in the commission of this offence. Indeed, he changed his evidence about his history of drug use at the hearing. As noted by the sentencing judge the principal offence marked an increase in the severity of his offending, which spanned over six years (across conviction dates).
I have also considered the issue of risk of re-offending above. This too forms part of the consideration of expectations under this paragraph of the Direction. Mr Can’s risk of re-offending, including the commission of offences of violence, has been assessed as high.
Accordingly, I consider that the expectations of the Australian community weigh strongly against revoking the mandatory cancellation of Mr Can’s visa.
Other considerations
The Direction establishes that certain ‘other considerations’ must be taken into account where relevant, but these are not exhaustive of the possible further relevant considerations (paragraph 14(1)).
International non-refoulement obligations
A written submission was made in April 2019 on Mr Can’s behalf in support of his request for revocation of the cancellation decision (G2, Attachment E1, pp 65-88). It was submitted in this document that a non-refoulement obligation is owed to Mr Can on the basis of his membership of a group, being ‘conscientious objectors to military service/conscripts’. I note that paragraph 14.1(2) of the Direction states that the existence of a non-refoulement obligation does not preclude non-revocation of mandatory cancellation.
The submission states, in summary, that there is a real chance he would suffer harm on return to Turkey because of his particular profile, that he is politically opposed to military service and would refuse to undertake it, and this refusal would likely result in imprisonment.
I sought confirmation from counsel for Mr Can as to whether it was being submitted that evidence in relation to military service raised non-refoulement obligations, to which the response was in the negative. This was also the interpretation of the Minister’s representative. I note that in the SFIC’s of both parties military service is treated under ‘Extent of impediments if removed’ and the April 2019 submission also repeats the submission in relation to military service under this other consideration. I will therefore address military service further when dealing with this other consideration.
While I do not consider it necessary to consider this issue at length, for the reasons given below I do not consider there is a strong likelihood that Mr Can would be subject to the kinds of danger or arbitrary treatment foreshadowed in the written submission. I also consider that military service is a scheme of general application, and implemented according to relevant law including as to eligibility.
Strength, nature and duration of ties
Reflecting the principles expressed at paragraph 6.3 of the Direction under paragraph 14.2(1) I am required to have regard to factors including how long Mr Can has resided in Australia and whether he arrived as a young child. I should give less weight to this consideration where offending began soon after arrival, and more weight to time given contributing positively to the Australian community. I am also required to consider the strength, duration and nature of family or social links to those with an indefinite right to remain in Australia (paragraph 14.2(2)).
Mr Can commenced offending five years after arriving in Australia while still a minor. In total he has been in Australia for appreciably more than half his lifetime (sixteen and a half years). However, of this time approximately seven years have been spent in custody or immigration detention, and a further three months in youth detention.
Mr Can has had only a brief period of gainful employment and failed to complete a trade qualification. He has made a small contribution to his family from the brief periods spent with his half-brothers including some care for A.
I have no evidence before me of the residency or visa status of Mr Can’s immediate family including whether his son has citizenship. I note that the effect on minor children of a decision not to revoke the mandatory visa cancellation forms part of the primary considerations above. On the assumption that members of Mr Can’s family may meet the residency test in this consideration, I accept that revocation would have an impact on his family, but equally Mr Can was absent from the family home for much of his youth and his years in custody.
While this consideration does weigh in Mr Can’s favour, on balance I consider that it only weighs moderately in favour of revocation.
Impact on Australian business interests
There is no evidence before me of any adverse impact on any Australian business interests if the Applicant were not allowed to remain in Australia. I do not consider this other consideration is engaged in this case.
Impact on victims
I have no evidence before me of the impact a decision on the victim or his family and accordingly this other consideration weighs neutrally.
Extent of impediments if removed
The impediments if removed to be considered under paragraph 14.5(1) include the non-citizen’s age and health, whether substantial language or cultural barriers exist, and any social, medical and/or economic support would be available. I note this other consideration incorporates benchmarks which are for the non-citizen to ‘establish themselves’ and maintain ‘basic living standards’ (in the context of what is generally available to other citizens of that country).
Mr Can has only travelled once to Turkey after arriving in Australia. However he was born and raised with the help of family members in that country and had to learn English on arrival in Australia. His mother maintains contact with his maternal grandparents, who assisted in his early years, and with several siblings. I accept Mr Can’s evidence that he possesses little contemporary knowledge of many aspects of life operate in Turkey. I accept also that he has a relatively low level of education, work experience and qualifications which may restrict his employment opportunities.
I accept that Mr Can has a range of medical and health concerns. The DFAT Country Information Report for Turkey (Exhibit R1) states that there is some dissatisfaction among the public with access to health services, and out-of-pocket payments may inhibit access by the poor. However there is no evidence before me that Mr Can would be unable to access healthcare for his conditions. I note the further submission that no evidence was given that his conditions prevent employment, indeed the evidence is to the contrary with Mr Can submitting he would actively seek employment in the future.
As noted above it was submitted that the requirement for military service in Turkey was a consideration in favour of revoking Mr Can’s mandatory visa cancellation. Mr Can himself had some difficulty expressing his objection to military service, and it appeared to fall well short of a form of conscientious objection. I accept his personal view that he wishes to avoid violence. However his evidence and that given by his mother tended to the position that he accepted that military service was a possible consequence of his return.
Ms Mathews in her report considers that military service may have a negative impact on Mr Can’s mental health, and it might well also have an impact on his physical condition. There is, I consider, some possibility that Mr Can’s medical conditions may lead to an exemption, although I accept his evidence that he has not pursued inquiries about this.
I note the evidence of Mr Can’s mother that she considers travel to Turkey to be impossible given the situation with her son A. In her view this means that she is unlikely to ever see Mr Can again. While I accept that her capacity to find time to visit Mr Can in person may possibly be very limited, I do not consider her assessment to be definitive of this issue and she retains the chance at some point in the future making such a trip.
In summary, I consider Mr Can to be a relatively young man who has fundamental skills and knowledge that will assist him to re-establish himself in Turkey, notwithstanding some impediments, and that this will come with challenges after living in Australia for over sixteen years. There is also uncertainty about the likelihood and impact of any military service Accordingly, overall, I consider this other consideration to weigh moderately in favour of revocation.
CONCLUSION
There is ample evidence that Mr Can had a particularly difficult upbringing and a troubled youth. His start in life in Turkey was poor and he fared little better in Australia. However he has admitted to more than one instance of what can be considered to be serious offending. His offending is extensive and includes acts of violence, including violence against women, weapons offences and a history of breach offences.
I do not consider, in the context of the Direction, that Mr Can’s background can be relied upon to explain or mitigate his behaviour. His risk of future offending is high based on the opinion of two forensic psychologists, and I accept their evidence. The possibility of a legally-mandated supervision order that might mitigate this risk is speculative at best.
Having considered the primary and other consideration, I am not satisfied that there is another reason why the mandatory cancellation of Mr Can’s visa should be revoked. The primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh strongly against revocation. I consider that these considerations are not outweighed by the ‘Bests interests of minor children in Australia affected by the decision’, which only weigh slightly in favour of revocation. Of the other considerations, I consider only moderate weight should be given to ‘Strength, nature and duration of ties’ to Australia and ‘Extent of impediments if removed’ with the other considerations weighing neutrally or not being engaged.
Taken together, the other considerations and the best interests of minor children consideration do not outweigh the protection and expectations of the Australian community considerations.
DECISION
For the reasons I have given the decision of the Minister is affirmed.
I certify that the preceding 151 (one hundred and fifty-one) paragraphs are a true copy of the written reasons for the decision herein of Dr Stewart Fenwick, Senior Member
......................[sgd]..................................................
Associate
Dated: 20 January 2020
Date of hearing: 7 and 8 January 2020 Counsel for the Applicant:
Solicitors for the Applicant:
Tanya Skvortsova
Carina Ford Immigration Lawyers
Advocate for the Respondent: Ned Rogers
Solicitors for the Respondent: Australian Government Solicitor
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