Candemir and Minister for Immigration and Border Protection (Migration)

Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 (21 April 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4358
Re:Ahmet Candemir
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:21 April 2017
Place:Sydney

The decision under review is set aside and in substitution, the Tribunal decides the cancellation of Ahmet Candemir’s visa is revoked under section 501CA(4) of the Migration Act 1958 (Cth).
.....................................[sgd]...................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – visa – cancellation – character test – substantial criminal record – drug offences – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength nature and duration of ties to Australia – long residency – extent of impediments if removed from Australia – medical conditions – dependent family – disabled son – decision under review set aside and decision made in substitution
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
Do and Minister for Immigration and Border Protection [2016] AATA 390
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
21 April 2017
INTRODUCTION

The applicant, Mr Ahmet Candemir, is 49 years old. He first arrived in Australia on 12 September 1969 and is a citizen of Turkey.
On 8 March 2016, the applicant’s class BB subclass 155 five year resident return (permanent) visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) after he was sentenced to a term of imprisonment of 12 months or more on 6 November 2015.
The applicant made representations seeking revocation of the mandatory visa cancellation decision on 29 March 2016.
On 11 August 2016, the Minister’s delegate decided not to revoke the cancellation decision. The applicant subsequently lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.
The matter was heard in Sydney on 27 and 28 February 2017. The applicant attended the hearing in person and had legal representation.
BACKGROUND
The applicant was born in Turkey in January 1968 and came to Australia with his family when he was one year and eight months old. He has lived in Australia since 1969, except for periods when he travelled to Turkey in 1988, 1991 and 1998.
The applicant’s father is aged 87 years and his mother is 83 years old. His parents and his four older siblings currently live in Australia and are Australian citizens. The applicant also had a younger brother who died at the age of 23 years from a heart attack related to drug use.
In a written statement dated 22 December 2016 (signed 20 February 2017), the applicant said his parents worked long hours and he grew up without a lot of parental supervision or guidance. When the applicant was 16 years old, his father suffered a work injury followed by a stroke. The applicant subsequently left school to get a job and financially assist his parents. He was employed in store and manufacturing jobs for several years, but has had ‘intermittent employment since that time arising from prior custodial sentences, drug use and a diminished capacity to effectively cope with his environment and life’.[1]
[1] Exhibit A4, p 5.
The applicant travelled to Turkey in 1988; he met and married his wife and she migrated to Australia to live with him. They have two children together, a daughter born in 1989 and a son born in 1998.
The applicant’s son has Joubert Syndrome, a genetic disorder that causes physical and intellectual impairment. Although his son is currently aged 19 years, the applicant stated that his son’s disability means that he ‘thinks and behaves like a young child, and he will always need full-time care and supervision’.[2]
[2] Exhibit A1, para 78.
The applicant also has two grandchildren who were born in 2006 and 2013.
The applicant’s wife, children and grandchildren are Australian citizens and live in Sydney. The applicant has never applied for Australian citizenship.
Drug use / rehabilitation
The applicant started using marijuana when he was 15 years old. In his statement dated 22 December 2016 (signed 20 February 2017), the applicant observed that ‘dabbling in marijuana became part of [his] social life’.[3]
[3] Exhibit A1, para 52.
The applicant tried heroin when he was 16 years old and subsequently became addicted. He then began to get into trouble with the police and acknowledged that most of his offences relate to his use of heroin and other drugs.
The applicant’s evidence is that he has had limited opportunities for drug rehabilitation. He stated:
In about 1986, it was not easy to get help for drug addiction. There was a huge waiting list to get on methadone and the only clinic was in Ashfield. It was much harder to get help with addiction than it is now.[4]
[4] Exhibit A1, para 54.
In 2007, the applicant was provided with the opportunity to participate in the Drug Court Program. However, due to his poor performance including ‘ongoing drug use and more particularly, persistent dishonesty including suspected urine tampering’, the Drug Court terminated the applicant’s participation in the Program.[5]
[5] Exhibit R5-25.
The applicant told the Tribunal he is not currently using heroin and has not done so since he was arrested in October 2012. He is now on methadone treatment (100 milligrams), ‘which has stabilised him’.[6]
[6] Exhibit A4, p 7.
Criminal record
The applicant has an extensive criminal record dating from 1985 to 2015. The criminal offences described in his National Police Certificate dated 23 March 2016 and New South Wales Department of Corrective Services Conviction, Sentences and Appeals report dated 5 February 2016 include:
·12 June 1987: applicant convicted in Newtown Local Court of supplying a prohibited drug (heroin), possessing a prohibited drug (heroin) and administering a prohibited drug (heroin). Sentence – 2 years imprisonment with non-parole period of 12 months.
·10 November 1992: applicant convicted in Sydney District Court of supplying a prohibited drug (heroin). Sentence – 2 years and 6 months imprisonment with an additional term of 10 months.
·28 June 1993: applicant convicted in Junee Local Court of stealing. Sentence – 3 months imprisonment.
·23 August 1995 to 19 June 1997: applicant in custody for armed robbery charges for which he was subsequently acquitted and compensated.
·14 December 2005: applicant appeared in New South Wales District Court on charges from August 2004 for supplying prohibited drugs (methamphetamine). Sentence – 2 years and 6 months imprisonment with a non-parole period of 15 months.
·5 September 2007: applicant appeared in Parramatta Drug Court on offences of aiding and abetting or counselling to pervert the course of justice, doing an act with intent to pervert the course of justice, resisting or hindering a police officer in the execution of duty, possessing prohibited drug (amphetamine), goods and personal custody suspected of being stolen, dealing with property suspected proceeds of crime, and driving a vehicle recklessly or in a dangerous manner. Sentence – 2 years and 8 months imprisonment wholly suspended under the Drug Court Act 1998 (NSW) (Drug Court Act).
·29 October 2007: applicant’s Drug Court Program terminated.
·17 January 2008: applicant appeared in Parramatta Drug Court and was resentenced under section 12 of the Drug Court Act 1998 (NSW) to 2 years imprisonment with a non-parole period of 15 months for 2007 offences.
·29 October 2012: applicant and his wife arrested with various marketable quantities of cannabis leaf, heroin, methamphetamine (ice) and methylenedioxymethamphetamine (ecstasy). Applicant charged with supplying a commercial quantity of prohibited drugs x 2 (methamphetamine and heroin), supplying a prohibited drug for financial or material reward x 3, supplying heroin (3 grams), supplying cannabis leaf (1.13 grams), supplying heroin (15.5 grams), supplying methamphetamine (18.68 grams), supplying methylenedioxymethamphetamine (0.52 grams).
·16 November 2015: applicant sentenced in the New South Wales District Court for supplying prohibited drugs on an ongoing basis for financial reward x 3, knowingly dealing with proceeds of crime x 2 and supplying prohibited drugs. Sentence – imprisonment with non-parole period of 3 years and 1 month.[7]
[7] Exhibits G1-G9 and G1-G10.
The applicant also has a record of traffic offences including driving an unregistered and uninsured motor vehicle, driving without a licence, driving while under the influence of alcohol or other drugs, driving while disqualified, and driving recklessly.
RELEVANT LEGISLATION AND ISSUES
The power to revoke a visa cancellation
Pursuant to section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in subsections 501(6)(a) and (7) of the Act.
Under section 501CA(4) of the Act, the Minister (and therefore the Administrative Appeals Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.
The applicant has a ‘substantial criminal record’ and so he does not pass the character test. The applicant does not dispute this.
I must therefore consider whether there is another reason to revoke the original cancellation decision.
When considering whether to revoke the cancellation decision, I am required under section 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Principles set out in clause 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:
(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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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 consideration 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.
Informed by the Principles, I must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under section 501CA of the Act. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:
(a)international non-refoulement obligations;
(b)the strength, nature and duration of the applicant’s ties to Australia; and
(c)the extent of impediments if the applicant is removed from Australia.
Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.
Protection of the Australian community
Clause 13.1 of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
I will first consider the nature and seriousness of the applicant’s conduct to date.
The applicant’s criminal record, which is set out in his National Police Certificate dated 23 March 2016, shows he has appeared before the New South Wales’ Courts between 1985 and 2015 on 33 occasions in relation to 88 offences.[8] As a result, the applicant has spent a cumulative total in excess of 11 years in jail.[9]
[8] Exhibit G1-G9.
[9] Exhibit A4, p 7.
At the Tribunal hearing, the applicant did not dispute the seriousness of his criminal record and contended that his criminal offending related to his drug addiction. He acknowledged that supplying drugs both enabled him to fund his own drug use as well as to financially support his family, although strongly refuted the assertion by the Minister’s counsel that he maintained a well-off lifestyle.
The evidence before the Tribunal indicates that the applicant has been involved in ‘street-level’ supply of drugs since 1987. In his written statement dated 22 December 2016 (signed 20 February 2017), the applicant remarked:
Throughout the late 1990s and early 2000s I was using heroin most of the time. I did not know how to make money or to deal with all of the stress of what was happening to [my son], and with my job and money problems. I was badly affected by the death of my brother as well… I made bad decisions and committed crimes which reflect my poor judgement at the time. Some of those crimes were to help sustain my heroin habit. I regret that at some point I foolishly started to sell drugs to make money as well.[10]
[10] Exhibit A1, para 84.
In sentencing remarks in the Drug Court of New South Wales on 17 January 2008, Senior Judge Dive observed the applicant’s:
…offending shows planning and ingenuity, and is neither spontaneous nor clumsy. However I do accept that drug addicted offenders lead chaotic and complicated lives and make poor decisions, such as driving when disqualified and fleeing from trouble when pursuing their addictions.[11]
[11] Exhibit R4-49, pp 300-301.
In October 2012, both the applicant and his wife were arrested with marketable amounts of cannabis leaf, heroin, ice and ecstasy.
Related to these offences, the sentencing remarks by Judge Lakatos SC in the New South Wales District Court on 6 November 2015 observed the applicant reported:
…a chronic history of illicit drug use. The offender first used heroin at age 17, he has had periods of abstinence and has been involved in various drug rehabilitation programs with limited success.
…
The offender said he began selling drugs to support his habit following his relapse to drug use in 2003. He stopped using drugs when he was in custody and recommenced use and selling a year after his release from custody in about 2011.[12]
[12] Exhibit G1-G11, p 101-102.
His Honour also noted in relation to the remorse shown by the applicant and his wife:
I accept that both offenders are remorseful, although… the focus of remorse is centrally upon the detrimental effects to their family. I have no doubt that those expressions are genuine but there is little otherwise recognition of the wider social harm which has been occasioned by their drug supply activities. … [T]heir [sic] appears to be some impetus for both offenders to stop any further criminal offending. How successful those intentions are is hard to gauge given their chronic drug use issues and negative peer associations.[13]
[13] Exhibit G1-G11, p 110.
Despite the connection between the applicant’s drug use and his criminal offending, he appears to have undertaken limited opportunities to address his drug addiction.
The applicant breached the Drug Court Program in 2007 and according to Judge Lakatos SC, he ‘was reported to have demonstrated little insight into his drug use, had an entrenched victim mentality and seemed unwilling to accept responsibility for his behaviour.’[14] His Honour also noted that after the applicant was released from custody in September 2009, he attended Clinic 36 Pharmacotherapy Centre and was placed on a drug substitute program.
[14] Exhibit G1-G11, pp 101-102.
In a psychological assessment of the applicant dated 5 December 2016, Mr Tim Watson-Munro (Consultant Forensic Psychologist) observed the applicant had:
a complex clinical history characterised by long-standing depression, anxiety and drug use, which in turn has resulted in criminal activity and ultimately incarceration. … [T]here has been a strong nexus between his drug addiction and his criminal history. It is clear that if this is appropriately addressed then the likelihood of him reoffending will diminish.[15]
[15] Exhibit A4, p 15.
Mr Watson-Munro noted that, apart from methadone treatment, the applicant appeared to have had ‘no psychotherapy to deal with the underlying issues which have caused him to use drugs over the years’.[16]
[16] Exhibit A4, p 15.
On 22 August 2006, the (then named) Department of Immigration and Multicultural Affairs (the Department) wrote to the applicant issuing a warning ‘that conviction for ANY further offences’ could result in the cancellation of his visa under section 501(6) of the Act [emphasis in original].[17]
[17] Exhibit G1-G13.
The applicant told the Tribunal that, while he recalled receiving this letter, he did not understand that his permanent residency could be cancelled until he was detained in Villawood Detention Centre in March 2016. In his written statement dated 22 December 2016 (signed 20 February 2017), the applicant said:
[The] warning did not have the effect it should have, because at the time I did not fully comprehend the seriousness of my situation or the possible consequences of my actions.[18]
[18] Exhibit A1, para 116.

Considering the relevant factors set out in clause 13.1.1 of the Direction, I am satisfied that:
·The applicant’s criminal offending relates largely to the supply of prohibited drugs. He has committed very few violent offences and not committed any sexual crimes.
·There is no evidence before the Tribunal that the applicant has committed crimes against vulnerable members of the community; that is, people who are minors, elderly or disabled. However, the applicant has caused substantial harm to the general community through the supply of prohibited drugs. His offending behaviour has also expended the resources of law enforcement agencies.
·The applicant’s criminal offending reflects a pattern of repeat offending over 30 years. Despite the strong connection between the applicant’s drug addiction and his criminal history, he has taken very few steps to address his addiction.
·The applicant continued to commit criminal offences after he was warned by the Department in 2006 that conviction for any further offences may result in the cancellation of his visa.
·There is no evidence before the Tribunal that the applicant has committed any offences since his visa cancellation or has ever provided false or misleading information to the Department.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of very serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
I must also consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The psychological report by Mr Watson-Munro observed that the likelihood of the applicant reoffending will diminish if his drug addiction is addressed.[19] Mr Watson-Munro noted the applicant:
…is clearly committed to not using drugs and indeed entirely avoiding the criminal milieu.… Given his age and his improved judgement, I believe that his motivation for treatment is genuine. He clearly understands the consequences if he were to relapse if he is given the opportunity to remain in Australia. The applicant expressed a strong desire to continue seeing me should he be released to the community. I would be happy to take on this role, in addition to facilitating involvement with appropriate drug and alcohol workers.[20]
[19] Exhibit A4, p 15.
[20] Exhibit A4, p 18.
At the Tribunal hearing, Mr Watson-Munro said that the applicant required intensive treatment to prevent a relapse when he is released into the community. He explained that intensive treatment for drug addiction involves a structured program of visiting a therapist several times a week, undertaking regular urine screens, maintaining methadone treatment and having job opportunities.
While the applicant has maintained his methadone treatment since being imprisoned in 2012 and has an offer for paid employment after his release from detention,[21] there is minimal evidence before the Tribunal to support the applicant’s claim that he will commit to drug rehabilitation treatment.
[21] Exhibit G1-G16, p 161.
I accept that the applicant’s current motivation is genuine; however, it is difficult to gauge the extent to which he is likely to engage with an intensive drug treatment program given his minimal engagement with drug treatment programs in the past. I therefore rely on the evidence of Mr Watson-Munro and in particular, his opinion that the applicant understands the consequences if he were to relapse and is motivated to access treatment for drug addiction if he is released into the Australian community.
Considering the nature of the harm and potential risk to the Australian community if the applicant was to reoffend in the future and the seriousness of the applicant’s past criminal offences, I find that the protection of the Australian community weighs against revoking the cancellation decision.
The best interests of minor children in Australia affected by the decision
Clause 13.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this matter are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
The applicant has two children who are currently aged 28 years old and 19 years old. As they are both over 18 years old, they are not minor children for the consideration of clause 13.2 of the Direction.
The applicant’s daughter has two children aged 11 years and three years old.
Mr Watson-Munro interviewed the applicant’s older grandchild and reported that he:
…described a positive and loving relationship with his grandfather. He is aware of the current situation, which is clearly impacting upon his mood state. He conceded that he has difficulty at times concentrating at school because he is worried about him and the family. He stated that he is very sad on occasions…[22]
[22] Exhibit A4, p 14.
Mr Watson-Munro opined in his report that the older grandchild ‘would be adversely affected should he lose physical contact with his grandparents [and] [t]he loss would be equivalent to him experiencing death at a psychological level’.[23] In his oral evidence to the Tribunal, however, Mr Watson-Munro agreed it would be possible for the applicant to maintain contact with his grandchildren via telephone and Skype, and that his description of the experience as equivalent to death was an exaggeration.
[23] Exhibit A4, p 18.
I accept that the applicant has a positive relationship with his older grandchild, despite his periods of incarceration and detention. However, the evidence before the Tribunal is that this child currently lives in a positive family environment with his mother and her partner, and maintains a regular relationship with his biological father.
While I am satisfied the second primary consideration counts for revoking the mandatory cancellation under section 501CA of the Act, I place minimal weight on this consideration because the minor children affected by the cancellation decision are not solely reliant on the applicant and their ability to live in a positive family environment is not contingent on the revocation of applicant’s visa cancellation.
The expectations of the Australian community
The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (clause 13.3(1)).
The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note the decision by the Tribunal in Do and Minister for Immigration and Border Protection, which states:
A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done [emphasis added].[24]
[24] [2016] AATA 390, [23].
I consider the deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk’ and that ‘the expectation must be considered contextually, relative to factors arising in relation to other principles’ set out in the Direction.[25]
[25] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
Relevant to this matter, I have particular regard to clause 6.3(5) of the Direction that states in part, ‘…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.’ In view of this principle and the applicant’s Australian residency since 1969, the Australian community would anticipate a nuanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not an Australian citizen. It would expect that the applicant’s adverse and antisocial behaviour would be carefully weighed against any positive contributions to society, such as employment and/or family relationships.
There is little information before the Tribunal about the applicant’s employment history. The applicant has struggled to gain and maintain employment due to his criminal record and need to care for a disabled child. I note, however, that he has an offer of employment if he is released from detention.[26]
[26] Exhibit G1-G16, p 161.
The applicant has lived in Australia since 1969. He attended school in Sydney until year 9, and his familial and social relationships are founded in Australia. In 1988, the applicant travelled to Turkey where he met his wife and they returned together to Australia to raise their family. The applicant’s only other travel to Turkey was in 1991 for a period of 11 months and in 1998 for four months.
The applicant’s criminal record has been extensively described in my consideration of protection of the Australian community. There is no question that the Australian community would have limited patience given the applicant has supplied prohibited drugs and was warned by the Department in 2006 that further criminal offending could lead to his visa being cancelled.
At the Tribunal hearing, the applicant articulated remorse for his behaviour. The Tribunal heard the circumstances of the applicant’s life contributed to his stress and anxiety, and his subsequent drug addiction. These circumstances included his childhood, his feeling responsible for his family’s financial situation following his father’s stroke, the death of his brother at a young age, and dealing with his son’s disability and health problems.
Mr Watson-Munro reported the applicant’s case is complex and involves not only the psychological and physical welfare of the applicant but also his broader family including his wife, daughter, son and grandchildren.[27]
[27] Exhibit A4, p 2.
I have particular regard to the applicant’s son. Although the applicant’s son is currently 19 years old, the effect of his diagnosis of Joubert Syndrome means his adaptive behaviours are characteristic of a much younger child. In a report dated 15 July 2013 from the Child Development Unit at the Children’s Hospital at Westmead, the applicant’s son was described as having:
…moderate to severe intellectual impairment and mild bilateral conductive hearing loss. His level of ataxia and associated difficulties with balance and co-ordination make physical acts including walking down stairs and balancing himself to toilet effectively challenging… His Speech and Language Impairment and feeding difficulties require ongoing support and intervention… Despite his difficulties, [he] is a pleasant and placid young man.[28]
[28] Exhibit G1-G16, p 181.
The applicant and his family gave comprehensive evidence about the applicant’s son and his care requirements. When the applicant and his wife were imprisoned in 2012, their son was placed in foster care until the applicant’s daughter was appointed as her brother’s carer by the Children’s Court.[29]
[29] Exhibits R1, R2 and R3.
I found the evidence by the applicant’s daughter compelling at the Tribunal hearing. She has raised her disabled teenage brother since 2013 and is therefore in a knowledgeable position to both identify her brother’s physical and emotional needs, and his relationship with their father. She explained that, despite her father’s absence in jail and detention, her father is the person to calm her brother down when he gets upset. She bluntly noted that neither her father nor mother nor brother will cope if her father is deported to Turkey. She also stated that she ‘could not cope with being [her brother’s] carer on a permanent basis and also continue to care for my sons and contribute financially to the household by working.’[30]
[30] Exhibit A3, para 54.
In her statement dated 22 December 2016 (signed 20 February 2017), the applicant’s daughter opined:
I believe that if Dad has to go to Turkey Mum will go with him, and they will take [my brother] too. Mum and Dad have been married for 28 years, since Mum was 16 years of age... Mum…is very dependent on my Dad.
Mum and Dad have always been the ones who look after [my brother], except when I did it or my grandparents helped and when he was briefly with a foster carer. They would not leave him behind, even though we are all extremely concerned about how [he] will cope if he has to move to Turkey, and whether he will be able to access any medical or disability services that he needs.[31]
[31] Exhibit A3, paras 90-91.
The applicant’s son had a plan for assistance approved under the National Disability Insurance Scheme (NDIS) on 31 October 2016.[32] This plan includes support for assistive technology, improved daily living, finding and keeping a job, improved relationships, increased social and community participation, transport and core supports. The NDIS is consistent with the Australian Government’s ratification of the Convention on the Rights of Persons with Disabilities; it is arguable whether the applicant’s son would be able to access this level of support and assistance if he were to go to Turkey with his parents.
[32] Exhibit A2, annexure F.
The expectations of the Australian community would take account of the applicant’s unique family situation, particularly the dependency of the applicant’s wife and son on him. It would also expect the applicant’s son, an Australian citizen and a person with a significant disability, to have access to the emotional care of his parents and appropriate assistance and support through the NDIS.
On balance, I am satisfied the third primary consideration counts for revoking the mandatory cancellation under section 501CA of the Act.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at clause 14 that other considerations must be taken into account where relevant.
I was not provided with any evidence about the impact of the applicant’s removal on any Australian business interests. There is no evidence of any impact on victims from the applicant’s criminal behaviour.
The relevant other considerations I must take into account are
(a)international non-refoulement obligations;
(b)the strength, nature and duration of the applicant’s ties to Australia; and
(c)the extent of impediments if the applicant is removed from Australia.
I first consider international non-refoulement obligations. The applicant made the following relevant submission in a form completed on 15 March 2016:
due to being classed as an Australian bombs have been discharged in my home town in Adura, from isis, ppk, i fear i will be targeted in that country for being an Australian. last time I went back 18 years ago they classed me as an Australian, i feel I will be taken as a spy there, because ive been in Australia my whole life why would i be sent back as i have no relatives there. [reproduced as in original][33]
[33] Exhibit G1-G14, p 150.
At the Tribunal hearing, the applicant outlined general concerns if he is deported to Turkey. These concerns included that he would be known as the ‘Aussie bloke’ and would possibly be required to undertake military service. He was also unsure whether he remained a Turkish citizen as he does not have a Turkish passport. The applicant acknowledged that he had never received any personal threats.
On the basis of the evidence currently before the Tribunal, I am satisfied there are no international non-refoulement obligations for the applicant. I also note that it is open to the applicant to apply for a protection visa if these circumstances change.
I now consider the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to Turkey.
The applicant has resided in Australia since he was one year and eight months old. His removal from Australia would result in the separation from his family, including his parents, siblings, wife, children and grandchildren.
The applicant’s parents are elderly. A statement written by the applicant’s mother noted her son ‘was always the most caring and helpful’ and he ‘was our main help when he was home, he visited several times weekly…’.[34] The applicant told the Tribunal his parents are currently being looked after by his sister.
[34] Exhibit G1-G16, pp 169-170.
The people most affected by the applicant’s potential removal from Australia are his wife, daughter, son and grandchildren.
The report by Mr Watson-Munro opined that if the applicant is deported to Turkey, it ‘will be a cataclysmic event for all parties’. In particular, he stated:
[The applicant] would have a very poor capacity to adapt to life in Turkey after living in Australia since he was 18 months of age. Although he speaks Turkish he has no culturalisation in his country of origin…
[The applicant’s wife] would … be forced to decide between remaining in Australia without her husband or any alternative, leaving Australia with him, resulting in her daughter staying in Australia, as her son…would need to travel to Turkey as well. She impresses as a psychologically frail and vulnerable woman…
[The needs of the applicant’s son] are best served him living with both parents apart from his sister in the Australian community…
[The daughter of the applicant, who is unmarried and has two children] would have great difficulty in visiting Turkey because of cultural and conservative mores… [35]
[35] Exhibit A4, pp 16-17.
In a written statement dated 22 December 2016 (signed 20 February 2017), the applicant’s wife concluded:
I know that Ahmet and I did the wrong thing when we used and sold drugs. We cannot change the past, and we have accepted our punishment. I regret my actions deeply, and especially the impact it has had on our children and grandchildren.
I also know that Ahmet has a long criminal record will need a lot of help to avoid using drugs again or falling back into old habits. But he is also my husband who I love and who I have stood by for 28 years because I see the good in him. I believe that he is capable of living a good, drug-free, normal life if he has help and support.
In spite of our faults, we are a close family and my husband and I are devoted to each other and to our children and grandchildren.
We want to be a part of our children’s and grandchildren’s life. We want to ensure that our son…is looked after and has good medical care and a safe future…[36]
[36] Exhibit A2, paras 76-79.
I find that the consideration of the applicant’s ties to Australia weighs heavily in his favour.
The impediments to removing the applicant from Australia rely on his medical conditions and his removal from family.
The applicant has detailed his medical conditions as ‘heart problems, blood pressure, fractures – lower back, several more, hepatitis C, methadone maintenance program’.[37] In a written statement dated 22 March 2016, the applicant noted:
I have been on the methadone program for 3.5 years in jail and have been clean from day 1 in here, I have done a EQUIPS addiction course…that will help me from relapsing. I know I have to stay on methadone to keep myself off drugs, I have also been told this won’t be available to me in turkey [sic]. I have received intervention through the methadone maintenance program and have been stable with a very clear mind. If given the chance I will continue to seek help as an outpatient with councilors [sic].[38]
[37] Exhibit G1-G14, p 148.
[38] Exhibit G1-G15, p 153.

The Tribunal has been provided no evidence about whether the applicant would have any problems with his other medical conditions being treated in Turkey.
The parents of the applicant’s wife still live in Turkey. However, both the applicant and his wife said her parents were elderly and poor, and it would be difficult to live with them and to find employment. The applicant and his wife also expressed concern about how they would be treated in Turkey, particularly because the applicant and his wife have spent time in jail.
As set out extensively above, the evidence before the Tribunal is that if the applicant is deported to Turkey, his wife would return to Turkey as she is heavily dependent on him. Their son would also go to Turkey with his parents because of his disability, his emotional attachment to his parents and the care he requires.
While these are choices to be made by the applicant and his family, I accept that the highly dependent relationship between the applicant, his wife and their son significantly affects their choices in these particular circumstances.
I am satisfied there are impediments that would prevent the applicant commencing a life in Turkey.
CONCLUSION
I have already indicated the first primary consideration weighs against the applicant and I place minimal weight on the second primary consideration. The third primary consideration weighs for the applicant.
In regard to the other considerations, the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to Turkey weighs heavily for him. On balance, I find that these other considerations, together with the second and third primary considerations, outweigh the first primary consideration.
It is therefore appropriate for me to revoke the refusal of visa decision.
DECISION
The decision under review is set aside and in substitution, the Tribunal decides that the cancellation of the applicant’s visa is revoked under section 501CA(4) of the Act.

I certify that the preceding 99 (ninety -nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.....................................[sgd]...................................
Associate
Dated: 21 April 2017

Date(s) of hearing: 27 & 28 February 2017

Date final submissions received: 13 March 2017

Counsel for the Applicant: N Poynder

Solicitors for the Applicant: A Saunders, Kinslor Prince Lawyers

Counsel for the Respondent: R Graycar

Solicitors for the Respondent: W Sharpe, Minter Ellison

[2017] AATA 531

21 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	27 & 28 February 2017
Date final submissions received:	13 March 2017
Counsel for the Applicant:	N Poynder
Solicitors for the Applicant:	A Saunders, Kinslor Prince Lawyers
Counsel for the Respondent:	R Graycar
Solicitors for the Respondent:	W Sharpe, Minter Ellison