Cetin Mirik and Minister for Immigration and Citizenship
[2012] AATA 835
•26 November 2012
[2012] AATA 835
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3983
Re
Cetin Mirik
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 26 November 2012 Place Melbourne The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 29 August 2012 to cancel the Class BF Transitional (Permanent) visa issued to Cetin Mirik, is affirmed.
............[sgd].....................................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – cancellation of a Class BF Transitional (Permanent) visa – Direction [no. 55] – Visa refusal and cancellation under s 501 Migration Act 1958 (Cth) – character test – substantial criminal record – primary considerations – protecting the Australian community from harm – the seriousness and nature of the conduct – the risk that the conduct may be repeated – strength, duration and nature of ties to Australia – Australia’s non-refoulement obligations – other considerations – effect on members of family – extent of any impediments if removed from Australia – compensation to be paid to victim – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500, 501(2), 501(6) and 501(7)
CASES
Appellant S395/2002 and Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Deputy President J W Constance
26 November 2012
INTRODUCTION
Mr Mirik migrated to Australia with his family when he was 15 years old. Apart from a period of about two years from 1979 to 1981 he has lived here ever since. He has resided in Australia as the holder of a permanent visa.
Mr Mirik is serving a term of imprisonment as a result of crimes he committed in 2005. He is to be released in 2013.
In August 2012 the Minister cancelled Mr Mirik’s visa in exercise of a discretion given by the Migration Act 1958 (Cth). Mr Mirik has applied to the Tribunal to review the Minister’s decision.
For the reasons which follow the decision under review will be affirmed.
FACTUAL BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of Mr Mirik. I will refer to further findings of fact in considering particular issues later in these reasons.
Mr Mirik was born in Turkey in 1954. He is now 58 years old.
Mr Mirik has three brothers, one of whom is his twin. From a very young age Mr Mirik was cared for by his grandparents and at times by some of his uncles. He lived separately from his parents and siblings, only visiting them during school holidays.
As a child Mr Mirik was subject to strict discipline and on occasions was assaulted by the uncles caring for him. At times he ran away from the homes of his grandparents and uncles returning to his parents’ home. When he did this he was sent back to either his grandparents or his uncles. He felt lonely and unwanted by his immediate family. His education was adversely affected.
Mr Mirik’s mother, Mrs Emine Mirik, gave evidence and provided a statement.[1] She said that Mr Mirik was cared for by his grandparents as she was unable to care for both twins when they were very young. When Mr Mirik was older members of her family resisted Mr Mirik returning to the care of his father and herself until she and her husband and children migrated to Australia. I accept this evidence.
[1] Exhibit A5.
Mr Mirik migrated to Australia with his family in 1969 when he was 15 years old. He travelled to Turkey in 1979 where he served as a conscript. He returned to Australia in 1981. Apart from this period Mr Mirik has lived in Australia since his arrival in 1969 and regards himself as an Australian. His parents and brothers have resided in Australia since 1969 and presently live in Melbourne. They are Australian citizens.
Mr Mirik married in about 1980. He has a son of this marriage who is now aged about 30. Mr Mirik separated from his wife in about 1985. He has not had contact with his son during the past 10 years.
After separating from his wife Mr Mirik commenced a relationship with a male transvestite. This relationship continued for about 10 years. His family members in Australia were aware of this relationship and disapproved of it.
Mr Mirik’s criminal record[2]
[2] Exhibit R1 pp.13-16.
Since his arrival in Australia Mr Mirik has been dealt with for a number of criminal offences. Details of these offences and the penalties imposed are as follows:
COURT DATE
DEGREE & CHARGE
COUNT RESULT
MELBOURNE 06/08/07
SUPREMEAPPEAL re 22/02/07
RAPECROWN APPEAL ALLOWED, ORDER OF SUPREME COURT SET ASIDE.
8 YEARSINTENTIONALLY CAUSE SERIOUS INJURY
CROWN APPEAL ALLOWED, ORDER OF SUPREME COURT SET ASIDE.
7 YEARS. 4 YEARS OF SENTENCE CONCURRENT. TOTAL 11 YEARS. NON-PAROLE PERIOD OF 8 YEARS. (DECLARE A PERIOD OF 845 DAYS HAVE ALREADY BEEN SERVED BY WAY OF PRE-SENTENCE DETENTION.)
as MIRIK, CETINMELBOURNE 21/02/07
SUPREMEINTENTIONALLY CAUSE SERIOUS INJURY
RAPE+ AGGREGATE 9 YEARS. NON-PAROLE PERIOD OF 5 YEARS, 6 MONTHS. (DECLARE A PERIOD OF 679 DAYS HAVE ALREADY BEEN SERVED BY WAY OF PRE-SENTENCE DETENTION.)
as MIRIK, CETINFRANKSTON 21/02/02
MAGISTRATESBREACH INTERVENTION ORDER
Convicted and discharged,
as MIRIK, CETINHEIDELBERG 03/08/00
MAGISTRATESTHEFT-FROM SHOP (SHOPSTEAL)
With conviction, fined $200.00
MELBOURNE 09/05/00
MAGISTRATESBREACH INTERVENTION ORDER
With conviction, fined $200.00
FRANKSTON 11/09/98
MAGISTRATESDRUNK IN A PUBLIC PLACE
BREACH INTERVENTION ORDERWith conviction, fined an aggregate of $600.00
BROADMEADOWS 18/08/99
MAGISTRATESPOSSESS CANNABIS
WITHOUT CONVICTION FINED $150 DRUGS FORFEITED.
FRANKSTON 03/05/96
MAGISTRATESASSAULT BY KICKING
ASSAULT WITH WEAPON
MAKE THREAT TO KILL
THREAT TO DESTROY/DAMAGE PROPERTY
UNLAWFUL ASSAULT
DISCHARGE MISSILE/STONE TO INJURE/DANGER4 MONTHS ON EACH CHARGE
2 CONCURRENT
2
2 MONTH CONCURRENT,
as MIRIK, CETINFRANKSTON 24/09/91
MAGISTRATESCULTIVATE NARCOTIC PLANT-CANNABIS
POSSESS CANNABIS
USE CANNABISFINED $500.FINE $250.
FINED 200.
DRUGS FORFEITED,
as MIRIK CENTIN [sic]HEIDELBERG 19/07/90
MAGISTRATESINTENTIONALLY CAUSE INJURY
CRIMINAL DAMAGE (INTENT DAMAGE/DESTROY)
UNLAWFUL ASSAULT
BREACH re 21/04/89
ASSAULT WITH WEAPON
ASSAULT WITH WEAPON
ASSAULT WITH WEAPON3 MONTHS.
4 + 1 MONTH ON EACH CHARGE
2 CONCURRENT AND CONCURRENT.
BREACH OF SUSPENDED SENTENCE.
SENTENCE RE-INSTATED.
1 MONTH
BREACH OF SUSPENDED SENTENCE.
SENTENCE RE-INSTATED.
14 DAYS CONCURRENT.
BREACH OF SUSPENDED SENTENCE.
SENTENCE RE-INSTATED.
7 DAYS CONCURRENT,
as MIRIK, CETINMELBOURNE 21/04/89
MAGISTRATESASSAULT WITH WEAPON
ASSAULT WITH WEAPON
ASSAULT WITH WEAPON
BEHAVE IN OFFENSIVE MANNER PUBLIC PLACE FOUND ARMED WITH OFFENSIVE WEAPON/INSTRU
THEFT
POSSESS PISTOL OR IMITATION W/O LICENCE1 MONTH. SENTENCE SUSPENDED FOR 12 MONTHS UNDER SECTION 21 OF PENALTIES AND SENTENCES ACT.
14 DAYS CONCURRENT. SENTENCE SUSPENDED FOR 12 MONTHS UNDER SECTION 21 OF PENALTIES AND SENTENCES ACT.
7 DAYS CONCURRENT. SENTENCE SUSPNDED FOR 12 MONTHS UNDER SECTION 21 OF PENALTIES AND SENTENCES ACT.
+ FINED $200 ON EACH CHARGE.
FINED $100.
FINED $50.
IMMITATION PISTOL FORFEITED.
TO PAY $10 COSTS, as MIRIK, CETINMELBOURNE 27/08/86
MAGISTRATESINTENTIONALLY CAUSE INJURY
COMMUNITY BASED ORDER FOR 12 MONTHS. TO PERFORM 150 HOURS UNPAID COMMUNITY WORK
MELBOURNE 22/04/86
MAGISTRATESPOSSESS DRUG OF DEPENDENCE (NOT NAMED)
FINED $50,
as MIRIK, CETINPRESTON 24/03/82
MAGISTRATESASSAULT BY KICKING
UNLAWFUL ASSAULT
WILFULLY DAMAGE PROPERTYFINED $200 DEFAULT 8 DAYS.
FINED $150 DEFAULT 6 DAYS.
FINED $100 DEFAULT 4 DAYS ON EACH CHARGE,
as MIRIK, CETINST KILDA 04/11/77
MAGISTRATESSELL INDIAN HEMP
POSSESS INDIAN HEMP+ FINED $100 DEFAULT TO 10 DAYS ON EACH CHARGE.
COLLINGWOOD 02/05/74
MAGISTRATESBEHAVE IN OFFENSIVE MANNER PUBLIC PLACE
FINED $20 DEFAULT 2 DAYS.
MELBOURNE 10/04/70
CHILDRENSINDECENT ASSAULT ON A FEMALE
PROBATION FOR 25 WEEKS.
Mr Mirik was unable to recall the details of some of these offences.
The Sentencing Remarks of the Supreme Court of Victoria in relation to offences committed by Mr Mirik on 13 April 2005
In 2007 Mr Mirik pleaded guilty to charges of causing serious injury without lawful excuse and of rape. His twin brother, Mr Metin Mirik pleaded guilty to a charge of causing serious injury without lawful excuse arising from the same circumstances.
His Honour Judge Bell made the following remarks (in part) when sentencing Mr Mirik and his brother:
5. These are the circumstances in which the offences were committed.
6. On the morning of 12 April 2005, you, Metin Mirik, met with [the victim] at a mutual friend’s house in Broadmeadows. You began drinking alcohol and continued to do so throughout the day. At about 7.30pm, you and [the victim] travelled to a flat in Coburg to visit another mutual friend. According to that friend, you both “looked really drunk” but “seemed happy and were having a good time”. You stayed at the flat for about 40 minutes.
7. You and [the victim] then travelled to North Fitzroy where you met up with your twin brother, Cetin Mirik, at his flat. Apart from a trip to a nearby hotel for about two hours, the three of you spent the rest of the evening at the flat drinking alcohol. [The victim] has no real memory of the events that occurred after he arrived at the flat.
8. At about 7.30am the next morning, neighbours heard shouting and banging noises coming from the flat. It appeared an argument had commenced which had developed into a physical attack. At some point, the three of you moved outside where parts of the attack were witnessed by neighbours.
9. They observed [the victim] lying naked on the concrete in the courtyard. He was barely moving while you both were attacking him. He was not fighting back. Metin Mirik, you repeatedly struck [the victim] with a brick to his head and his body. Cetin Mirik, you struck [the victim] with a bicycle frame. At some stage, you both rolled [the victim] over onto his stomach and continued to hit him. Cetin Mirik, you dropped the bicycle frame at this point and began to strike [the victim] repeatedly with a brick. You were both observed to stomp on [the victim] several times.
10. When you had both finished attacking [the victim], you unsuccessfully attempted to conceal him from view by pushing his body underneath the verandah of the flats. You both then went to a nearby outside laundry and washed yourselves before returning to the flat.
11. During the attack, neighbours called the police. When they arrived, they found [the victim] in an unconscious state in the courtyard. He had six branches from a nearby tree protruding him his anus. The branches were inserted into his anus by you Cetin Mirik. Metin Mirik, you were not directly involved in this part of the assault upon [the victim].
12. [The victim] was taken to hospital. You were both arrested shortly thereafter.
13. The injuries that [the victim] suffered as a result of the attack were extremely severe. He had massive amounts of bruising and swelling over his head and body. He was treated for a subdural haematoma and multiple facial factures [sic]. He also suffered multiple perforations to the rectum and required immediate surgery for his abdominal injuries. After six days connected to a ventilator and further surgery, he was discharged from hospital on 6 May 2005, some 23 days after the attack.
14. It is difficult to understand why you attacked [the victim]. You have both known him for some 30 years.
15. Cetin Mirik, you have little memory of the incident. You told your forensic psychologist, Pamela Matthews, that your behaviour was impulsive and “it just happened”. You admitted assaulting [the victim] to the police. You said you did it because he hit your brother a long time ago. You said your actions were wrong.
…
18. [The victim] supplied a victim impact statement in which he described the devastating impacts of the crime upon him. He explained how he will need to carry a colostomy bag for the rest of his life. He feels weak and needs assistance with everyday living tasks and with managing his epilepsy. He has on-going medical costs which impact considerably on the financial welfare of his family. He is physically unable to work and relies on a disability support pension. [The victim] will never be able to return to his previous employment as a storeman due to his physical injuries.
19. On an emotional level, [the victim] explained he has not been the same since the attack and has been “emotionally wrecked”. A psychologist diagnosed him as suffering from chronic post-traumatic stress disorder and major depressive disorder. He has difficulty sleeping and concentrating. He has low energy, has less interest in almost all activities and has lost his appetite. The crime has also had an impact on the health of [the victim]’s family who are scared for their safety. Their lives have never been the same since the attack.
THE RELEVANT LEGISLATION
Subsection 501(2) of the Migration Act 1958 (Cth) provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test: and
(b)the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) paragraph (a) provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
Subsection 501(7) paragraph (c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
The power of the Tribunal to review the decision to cancel Mr Mirik’s visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions (Direction [55] which commenced on 1 September 2012) as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with.
THE CHARACTER TEST
As Mr Mirik has been sentenced to a term of imprisonment of 11 years he has a substantial criminal record in accordance with subsection 501(7) of the Act. As a result, in accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to cancel his visa.
DIRECTION [55]
Under the heading General Guidance, Direction [55] paragraph 6.2 provides in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached. The principles include the following:
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.
The Direction requires the decision-maker (in this case the Tribunal) to take into account the primary and other considerations relevant to the individual case.[3] Primary considerations should generally be given greater weight than the other considerations.[4]
[3] Direction 55, paragraphs 6.2(3) and 8(1).
[4] Direction 55, paragraph 8(4).
Paragraph 9(1) provides:
In deciding whether to cancel a person’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The strength, duration and nature of the person’s ties to Australia;
c)The best interests of minor children in Australia;
d)Whether Australia has international non-refoulement obligations to the person.
REASONING
Primary consideration (a) – protection of the Australian community from criminal or other serious conduct
I note that I must have regard to matters set out in paragraph 9.1 being:
·the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
·the nature and seriousness of the person’s conduct to date;
·the risk to the Australian community should the person commit further offences or engages in other serious conduct[5]
[5] ‘Serious conduct’ is defined to include conduct which may not constitute a criminal offence.
The nature and seriousness of Mr Mirik’s conduct to date
Paragraph 9.1.1 of Direction [55] sets out factors which the decision-maker must take into account in considering the nature and seriousness of the conduct. It is not an exclusive list.
The relevant factors in this application are:
·violent and/or sexual crimes are viewed very seriously;
·the sentences imposed for the crimes;
·the frequency of offending and any trend of increasing seriousness;
·the cumulative effect of repeated offending.
Mr Mirik has a very substantial criminal record commencing in 1970, less than a year after his arrival in Australia. Thirteen of the convictions are for violent offences against the person. The earliest and the latest convictions are for crimes of a sexual nature.
The sentences imposed are of increasing severity culminating in a period of imprisonment of 11 years with a non-parole period of eight years. Mr Mirik is serving this sentence at present. This is his third period of imprisonment, having served 25 days in 1982 and 4 months in 1996.
The nature and seriousness of the conduct which caused Mr Mirik to be imprisoned on the last occasion have been referred to earlier in these reasons. There can be no doubt that this particular conduct was extremely serious. It was cruel and abhorrent, leaving the victim with extremely serious injuries from which he will never fully recover. In addition, the state in which Mr Mirik left his victim after the assault showed a complete disregard for his chances of survival from the life-threatening injuries inflicted on him. The act of raping the victim was carried out with such force as to perforate the rectal mucosa and lodge the sticks in several internal organs and spaces.[6] The Court of Appeal described Mr Mirik’s conduct in committing the rape as “utterly cruel, vicious and disgusting.”[7]
[6] Exhibit A11 p.10 of the Court of Appeal decision.
[7] Exhibit A11 p10 of the Court of Appeal decision.
Mr Mirik gave evidence that immediately prior to the rape the victim taunted him as to his sexuality and bared his buttocks towards him. Apparently this evidence was not given to the Supreme Court. However, even if it is true I do not consider that it reduces the seriousness of the offences of which Mr Mirik has been convicted.
Having considered all of the factors relating to Mr Mirik’s criminal history, and in particular the offences for which he is now imprisoned, I have reached the conclusion that his conduct was abhorrent by nature and extremely serious.
The risk to the Australian community should Mr Mirik commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) of the Direction states that a decision-maker “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.” It also sets out factors to which regard must be had cumulatively. These considerations are:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
It follows from my findings as to the nature and seriousness of Mr Mirik’s conduct in committing the most recent offences that the harm to individuals and to the community should he engage in further criminal conduct could be extremely serious and could result in further serious injury and death. Mr Mirik’s propensity to commit crimes of physical violence adds to this concern.
The likelihood of Mr Mirik engaging in further criminal or other serious conduct
It was argued on behalf of Mr Mirik that the likelihood of his engaging in any further criminal conduct is low and that he is not at risk of committing any further offence of a sexual nature.
Mr Mirik relies upon his having undertaken several self-development courses in prison, including:
·Sexual offenders’ program with monthly follow-up sessions;
·Workplace training programs in cleaning and hospitality;
·QUIT program, although this has been unsuccessful;
·two Drug & Alcohol programs;
·English as a Second Language;
·Parenting program;
·Anger management.
It was argued that this education, in conjunction with the experience of long-term imprisonment, has enabled Mr Mirik to understand the role of drugs and alcohol in his offending and to understand the effects his criminal conduct has had on himself and others, including his immediate family and on his victims. Mr Mirik gave evidence that he had reached these understandings and that he would not re-offend in any manner.
Mr Mirik’s parents, Mr Cevat Mirik and Mrs Emine Mirik, provided statements and gave evidence.[8] Mr Mirik has told them many times that he is very sorry for what he has done. In their opinion their son had learned from the experience of imprisonment and would not re-offend. They are agreeable to provide a home for Mr Mirik on his release, but would not allow Mr Mirik to bring alcohol or illegal drugs into their home.
[8] The statements of Mr Mirik Snr and Mrs Mirik are exhibits A4 and A5 respectively.
Mr Ozcan Mirik provided a statement [9] and gave evidence. He is the youngest brother of Mr Mirik. Mr Ozcan Mirik said that Mr Mirik repeatedly expresses his remorse for the crimes he has committed. Mr Ozcan Mirik is of the opinion that his brother will not re-offend and that he will not consume alcohol and/or drugs again. He said that he and his family are willing to provide emotional support and accommodation for his brother on his release. He is unaware of the nature of the offences committed by his brother.
[9] Exhibit A6.
Mr Hussain is the Chaplain at the centre in which Mr Mirik is imprisoned. He provided a statement[10] and gave evidence. Mr Hussain has known Mr Mirik for about two years as a result of his conducting religious sessions at the prison. These sessions are conducted monthly. In addition he has had discussions with Mr Mirik every couple of months. These discussions are usually less than an hour.
[10] Exhibit A1.
Mr Hussain believes that Mr Mirik will stay out of trouble and will live a peaceful life should he be able to remain in Australia after his release. He bases this belief on the fact that Mr Mirik has tried to improve by undertaking courses, by practising his religion and by reason of his increased maturity. Mr Hussain is unaware of the nature of the offences committed by Mr Mirik.
Ms Matthews, Forensic Psychologist, assessed Mr Mirik in October 2006 for the purpose of providing a report in relation to the proceedings in the Supreme Court.
On 13 October 2006 Ms Matthews reported in part:
50.Mr Mirik is a cognitively low functioning 55 year old man of Turkish decent, with a possible childhood history of sexual abuse but more importantly: (a) an ambivalent relationship with his twin brother Metin by whom he has always felt bullied and (b) a childhood and adult history of being bullied, manipulated or denigrated by peers.
51.There are three aspects to that history:
52.Firstly resolving symptoms of Borderline Personality disorder, reflected in: unstable interpersonal relationships; impaired sense of self; impulsivity in substance use and behaviour; chronic feelings of loneliness and boredom; inappropriate intense anger.
53.Secondly a post-traumatic emotional trigger or psychological and physiological responsiveness to being bullied.
54.Thirdly, a highly ambivalent relationship with his twin brother, in which he will act to placate or please his brother but also resent doing so.
55.It is the writer’s view on the day of the offences against [the victim], those three emotional aspects have coalesced, in combination with low cognitive functioning and disinhibition associated with alcohol abuse and possibly the effect of other substances. In the background is also a history of past resentments and negativity associated with [the victim].
56.It is the writer’s view the rape has been an extension of the violence rather than being sexually motivated and that the offending has been impulsive rather than planned.[11]
[11] Exhibit A8.
Ms Matthews also reported that psychometric testing placed Mr Mirik’s functioning in the moderate level of intellectual disability.[12]
[12] Exhibit A8 para. 39.
After assessing Mr Mirik by means of various instruments available, Ms Matthews concluded that the instruments suggested that Mr Mirik has a low risk of sexual offending and moderate risk of violent offending. She identified his risk issues at the time were “substance use, and exposure to psychosocial stress in the form of being bullied or manipulated by others.”[13]
[13] Exhibit A8 para.49.
Following Mr Mirik’s participation in the Sex Offender Program, a report dated 5 July 2011[14] was prepared by Ms James, Psychologist and Acting Senior Clinician in the Treatment Team for the Program.
[14] Exhibit R1 pp. 1-12
As part of the Program Mr Mirik was assessed in accordance with the Static-99 Coding Rules. These Rules provide an actuarial assessment of long-term potential risk for sexual offence recidivism in adult male sexual offenders. The results are derived from figures relating to groups of individuals and do not correspond to the risk of recidivism of Mr Mirik. Dynamic risk factors relating to the individual must also be considered.
According to the Static-99 score Mr Mirik is in the high-risk category relative to other male sexual offenders.
In considering the dynamic risk factors Ms James reported in part:
When in the community, prior to his offence, Mr Mirik had support from his twin brother, younger brother and his elderly parents. Furthermore, he reported an approximate 10‑year relationship with his then sexual partner who is a transvestite. Apart from these associations, Mr Mirik reported a lack of social support and reported experiencing a long-standing sense of social rejection and loneliness. Mr Mirik first experienced such rejection and abandonment as a young child when he and his twin brother were ‘split’ with Mr Mirik living with his grandparents whilst his brother lived with their parents. As an adult, Mr Mirik’s family denounced his sexual relationship and ridiculed him regarding this association. Although Mr Mirik will continue to have the support from his parents upon release and indeed plans to live with them, he acknowledges that they are elderly and from his self-report in the past have not been supportive of his intimate relationships. Furthermore, Mr Mirik’s relationship with his brother was characterised by criminal activity and bullying and therefore this relationship is understood to not be protective. Lastly, Mr Mirik’s sexual relationship with his previous partner was, by his own report, characterised by aggression and instability. Mr Mirik’s insight into the lack of intimacy and protectiveness within these relationships was low. However, he did highlight that he wished to make new friendships upon his release. If Mr Mirik was to continue to engage primarily in relationships which are characterised by manipulation, ridicule and aggression then he will likely continue to have unmet needs and be placing himself in situations which present as a risk for re-offending.
According to his self-report, and as evidenced by his criminal history, Mr Mirik’s general self-regulation is poor. Specifically, he exhibited poor cognitive problem solving, impulsivity and poor emotional awareness and coping. These deficits were evidenced in his history of violent and drug related offending, his volatile intimate relationships, and his substance use when in the community and gambling within prison. His capacity for increasing his ability for adaptive general self-regulation is likely impacted by his overall low cognitive functioning and memory deficits. Whilst Mr Mirik’s demonstrated insight into the gravity of such issues was low he did highlight a few factors which he recognised needed intervention. Namely, he identified his substance use (including selling drugs) and his use of violence (physical fighting) as requiring change.
… Mr Mirik’s ability to abstain from substance use when associating with his brother or coping with a significant life stressor remains unknown. At the conclusion of his SOP treatment, Mr Mirik enrolled in a drug and alcohol program. In order to effectively manage his general risk of re-offending, including his risk of sexual re-offending, Mr Mirik would need to continue to abstain from substance use and increase his alternative emotional coping skills.
In relation to his emotional management, Mr Mirik initially displayed poor emotional awareness including poor emotional identification and coping. … Over the course of treatment, Mr Mirk [sic] attempted behavioural changes to his emotional management. He decreased and attempted to quit smoking and he highlighted cooking, reading and walking as ‘time-out’ and relaxation strategies. Furthermore, his increased ability for assertiveness was also seen as a preventative strategy in that it would likely decrease his tendency to feel pressured and used.
… By the conclusion of treatment, although he stated that he accepted full responsibility he continued to justify his offence behaviour by first explaining that he was highly intoxicated and that the victim had placed tablets in his drink. Mr Mirik’s continued effort to externalise some responsibility was understood to be a function of the shame he experienced for his behaviour. Despite this, Mr Mirik did increase his understanding of his offence process and was able to identify a range of risks and strategies to mitigate these. Furthermore, Mr Mirik’s experience of shame was indicative of his remorse and acceptance of the wrongfulness of his offence behaviour.[15]
[15] Exhibit R1 pp. 1-12.
Ms James’ conclusion as to the assessment of Mr Mirik’s risk manageability is as follows:
Based on the above information regarding treatment, it is the author’s opinion that Mr Mirik has some risk manageability strategies in place (although such change is yet to be tested in the community).[16]
[16] Exhibit R1 p.12.
On 4 October 2012 Mr Mirik was assessed by Mr Huson, Registered Psychologist, for the purposes of these proceedings. Mr Huson provided a report dated 16 October 2012.[17] It was intended that Mr Huson give evidence on behalf of Mr Mirik but he was unable to attend the Tribunal prior to the date on which the Tribunal is required by the Act to give its decision. The Minister consented to the report being taken into evidence, however I have considered the report on the basis that the views of Mr Huson have not been tested by cross-examination.
[17] Exhibit A2.
Mr Huson is of the opinion that Mr Mirik is not likely to be a risk to the Australian community should he remain in Australia after his release. He reported:
To his credit, Cetin is extremely remorseful regarding his offending, what he has done and the various impacts these have had. He pleaded guilty to the charges and will have served, I am not sure, 8 or 9 years in jail as a punitive consequence. He has undertaken personal development while incarcerated, particularly the Sexual Offenders Program and the follow ups that were designed to reduce recidivist risks. Cetin is in poor health. He has two offers of part-time employment when released and hopes to live with and help care for his elderly parents. He has no financial security and has been free of drugs and alcohol for the period he has been incarcerated and is personally sworn off marijuana and alcohol. I do not see Cetin as a further risk to the Australian community. Although not a citizen, he is in all other respects Australian. ….[18]
[18] Exhibit A2 p.9.
Having considered all of the evidence I have concluded that there is a reasonable likelihood that Mr Mirik will engage in further criminal or other serious conduct.
I accept that Mr and Mrs Mirik Snr and Mr Ozcan Mirik honestly believe that Mr Mirik will not re-offend. It is understandable that, as members of his immediate family, they are of this view. However their evidence was based on statements of Mr Mirik and the fact that he is serving a substantial period of imprisonment. They do not have the information, nor are they in a position, to evaluate the risk factors involved in Mr Mirik’s release into the community. Mr Ozcan Mirik was unaware of the details of the offences committed by Mr Mirik.
I have accorded only little weight to the opinion of Mr Hussain. He has had limited contact with Mr Mirik and is unaware of the nature and seriousness of the offences committed by him. Mr Hussain did not indicate that he had the knowledge or the qualifications to make the assessment he did. He had deliberately not enquired as to the nature of the offences which led to Mr Mirik’s imprisonment.
I have taken into account that in 2007 Ms Matthews was of the view that Mr Mirik was of moderate risk of violent offending. Although she assessed him as being of low risk of sexual offending, I note the views expressed by the experts that the offence of rape was an act of violence which was not sexually motivated. I take into account also that Mr Mirik has a history of offences of violence. Mr Mirik said that some of those offences arose from his domestic relationship; in my view this does not reduce the seriousness of the offences.
The report by Mr Huson is of limited value in assessing the likelihood of Mr Mirik’s re-offending. He appears to have relied heavily on the information provided to him in the reports of others and conducted limited, if any, testing of his own. The Tier One report by Corrections Victoria to which he referred was a report in relation to Mr Mirik’s brother, not Mr Mirik. That report noted the general risk of re-offending as “low”; the Tier One report in relation to Mr Mirik[19] does not contain such a reference.
[19] Exhibit A9.
The evidence of experts is important in an application of this nature. The report which is of most assistance is that prepared by Ms James at the conclusion of Mr Mirik’s participation in the Sex Offenders’ Program.
On the basis of this report and the evidence of Mr Mirik I am satisfied that the courses undertaken by Mr Mirik in prison have assisted his understanding of the factors leading to his offending and have provided him with some strategies to help him avoid further offending. However his rehabilitation has necessarily been limited. Although Ms James has identified several strategies to avoid re-offending of which Mr Mirik is now aware, she has identified a number of factors which are “high risk” for Mr Mirik:
·drinking alcohol;
·smoking cannabis;
·fighting (physical fights)
·selling drugs;
·contact with the victim;
·anti-social behaviour with his twin brother;
·entering pubs or other licensed venues;
·contact with anti-social peers (i.e. drug dealers, binge drinkers etc)
·feeling used/bullied/taken advantage of.[20]
[20] Exhibit R1 p.11.
On the evidence before me I am satisfied that the rehabilitation which Mr Mirik has undergone so far has not substantially reduced the risk that Mr Mirik will again engage in some or all of the high risk conduct (except contact with the victim) should he return to the Australian community outside prison. His brother, Mr Ozcan Mirik, has indicated he will support Mr Mirik on his release and I accept this evidence. However it is of concern that Mr Ozcan Mirik is presently undergoing treatment for alcohol abuse.
Mr and Mrs Mirik Snr gave evidence that they would not tolerate Mr Mirik bringing alcohol and/or illicit drugs into their home. In view of their age and past relationship with Mr Mirik I am not satisfied that they will be able to enforce this.
Although Mr Mirik has undergone some training in anger management, the extent of this is not known. I am not satisfied that Mr Mirik’s difficulty in controlling his anger has been sufficiently addressed.
The concerns which I have expressed are confirmed by the views of Ms James. In her report she stated, in part:
At the time of the offence, Mr Mirik was feeling isolated, lonely and used. He was heavily intoxicated on alcohol and possibly affected by the other substances. Furthermore, he experienced bullying by the victim in regards to his sexuality. This teasing, whilst in a disinhibited state, acted as a significant trigger for his offence behaviour. His disinhibition, likely compounded his tendency for problem solving, impulsiveness and aggressiveness on this occasion. Whilst Mr Mirik’s understanding of his motivation for the specific behavioural act of inserting branches into the victim’s anus remains limited, it was understood to be an extension of his violence and an act driven by revenge and anger trigged by his experienced humiliation.
Overall, Mr Mirik increased in his capacity for general emotional understanding and specific identification of his emotions as related to his offending. However, Mr Mirik continued to experience difficulty in general emotional awareness and his healthy emotional coping remained limited and untested with significant life stressors. Furthermore, whilst Mr Mirik accepted responsibility for his offending, he did continue to attribute some blame to his level of intoxication and to the victim and his brother. Mr Mirik experienced significant shame regarding his offending. He demonstrated ability to identify the negative impact of the offence on the victim. Mr Mirik’s experienced shame may act protectively as a barrier to committing further offences however may also serve to feed his negative self-worth. He would be well served to continue to build his healthy sense of self worth. .[21]
[21] Exhibit R1 pp.10-11.
Further, in 2006 Ms Matthews reported, in part:
57.… From a rehabilitative and risk perspective, it would be more beneficial to concentrate treatment on the violent aspects of his offending rather than sexual aspects implied by the use of the term rape. Given his low level of cognitive functioning, his rehabilitative needs would be best addressed in programs specifically targeted at low functioning offenders. Mr Mirik will be vulnerable to being intimidated and manipulated whilst in custody; it is important this this aspect is taken into account by the correctional authorities.
58.Mr Mirik will require a parole plan that ensures: stability of accommodation, psychosocial supports and monitoring of substance use.[22]
[22] Exhibit A8.
Unfortunately for Mr Mirik he has been unable to undertake all of the rehabilitation support which he requires and I am not satisfied that it will be available to him on his release from prison. The ongoing risk factors which have been identified and the lack of detailed evidence as to the treatment Mr Mirik has received, together with the lack of evidence as to the professional support which would be available on his release, cause me to conclude that there is a significant likelihood that Mr Mirik will engage in further criminal or other serious conduct.
Assessing the need to protect the Australian community
In considering all of the evidence and having due regard to the principles that the Government is committed to protecting the community from harm as a result of criminal activity, that remaining in Australia is a privilege and that the community’s tolerance for any risk becomes lower as the seriousness of the potential harm increases, I conclude that the need to protect the Australian community weighs very heavily in favour of the cancellation of Mr Mirik’s visa.
Primary consideration (b) – the strength, duration and nature of Mr Mirik’s ties to Australia
In accordance with paragraph 9.2 of the Direction I must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
With the exception of just under three years when Mr Mirik returned to Turkey to undertake national service, he has lived in Australia since he arrived as a 15 year-old in 1969. Residency in Australia for this length of time is a factor in Mr Mirik’s favour, however it is lessened by the fact that he was convicted of a sexual offence in April 1970, within seven months of his arrival. When he gave evidence Mr Mirik denied having assaulted the female involved, however the Tribunal cannot disregard the criminal record.[23]
[23] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385.
I take into account that Mr Mirik has worked at various jobs since shortly after his arrival in Australia and in this way has contributed positively to the Australian community.
I am satisfied that Mr Mirik has family ties in Australia as his son, his parents, three brothers and their families permanently reside in Australia and are Australian citizens. I accept the evidence of Mr and Mrs Mirik Snr that they will assist Mr Mirik if he is released into the community by providing him with a home. I accept also that his brother, Mr Ozcan Mirik will offer him social support to the extent that he is able, subject to the reservations I have already expressed.
The report of Ms James states that Mr Mirik reported “a highly ambivalent relationship with his twin brother, which was characterised by Mr Mirik being bullied to the extent that this had caused a post-traumatic response.”[24] The report also notes that in the past Mr Mirik’s family has denounced his long-term sexual relationship with the transvestite and ridiculed him regarding this association.[25]
[24] Exhibit R1 p.4.
[25] Exhibit R1 p.7.
Although Mr Mirik’s son lives in Australia there has been no contact between them for the past 10 years.[26] Mr Mirik hopes to rebuild his relationship with his son but there is no meaningful relationship for consideration at present.
[26] Exhibit A2 p.5.
Mr Mirik has two offers of employment upon his release.[27]
[27] Exhibit A12 and evidence of Mr Mirik.
Having considered all of these factors I conclude that Mr Mirik’s ties to Australia are strong and certainly stronger than they are to Turkey, particularly taking into account the length of his residence in Australia and the presence of all his immediate family members in this country. I regard this consideration as weighing in favour of his being permitted to continue to reside in Australia after his release.
Primary consideration (c) – the best interests of minor children in Australia
This consideration is not relevant in this application.
Primary consideration (d) – whether Australia has international non-refoulement obligations to Mr Mirik
Paragraph 9.4(3) of the Direction relevantly provides:
Specifically, Australia has non-refoulement obligations:
…
b)where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country there is a real risk that the person will suffer significant harm. A person will suffer significant harm if:
- the person will be arbitrarily deprived of his or her life; or
- the death penalty will be carried out on the person; or
- the person will be subjected to torture, or
- the person will be subjected to cruel or inhuman treatment or punishment; or
- the person will be subjected to degrading treatment or punishment.
The above test is contained in subsections 36(2)(aa) and 36(2A) of the Migration Act…
It is argued on behalf of Mr Mirik that Australia does have non-refoulement obligations to him arising from his long-term relationship with a male transvestite. It is put that on the basis of the evidence of intolerance of homosexuality in Turkey, Mr Mirik will be subjected to degrading treatment or punishment should he be returned to that country. Homosexuality is not illegal in Turkey.
Mr Mirik specifically denied being homosexual. However it was argued that in his circumstances this evidence does not exclude the obligation arising. Counsel referred me to the judgement of the High Court in Appellant S395/2002 and Minister for Immigration and Multicultural Affairs[28].
[28] (2003) 216 CLR 473.
In Appellant S395/2002 the appellants, citizens of Bangladesh, applied for protection visas under the Migration Act 1958 (Cth) claiming they had a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The High Court held that the Tribunal was in error because, amongst other considerations, “it did not consider whether the choice of the appellants to live discretely was a voluntary choice uninfluenced by the fear of harm if they did not live discretely.”[29] I do not consider that this issue arises in this application. There was no evidence led which suggested that Mr Mirik would involuntarily live discretely as a homosexual should he return to Turkey. He denied being homosexual so the issue does not arise.
[29] Per McHugh and Kirby JJ at p.487.
On the evidence before me Australia does not have any non-refoulement obligations to Mr Mirik. Even had such obligations arisen, this consideration would not have altered the decision I have reached.
Other considerations as set out in the Direction
Paragraph 10 of the Direction sets out other considerations which must be taken into account where relevant. The list is not exhaustive. These considerations are generally to be given lesser weight than the relevant primary considerations.
The relevant other considerations listed in paragraph 10 are:
a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
…
d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i.The person’s age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.
On the basis of the evidence of Mr and Mrs Mirik Snr I am satisfied that they will suffer considerable emotional distress should Mr Mirik be required to return to Turkey. I accept their evidence that they are not in good health and that they hope that Mr Mirik will live with them after his release and will be able to assist in their care. They are 84 and 80 years of age respectively. However I also take into account that Mr and Mrs Mirik have three other sons who live in Melbourne and that in the past at least two of them have assisted in caring for their parents. Further Mr Mirik has been unable to assist his parents for the past seven years.
I accept also the evidence of Mr Ozcan Mirik that he will suffer distress should his brother not be able to remain in Australia with other family members. I am not satisfied that he or any of the other siblings will suffer any substantial hardship.
The interests of Mr Mirik’s parents give this consideration some weight in favour of Mr Mirik being permitted to remain in Australia.
There are a number of factors to be taken into account relating to the impediments Mr Mirik may face in re-establishing himself in Turkey. His only relative living in Turkey is an uncle with whom he has had limited contact since originally leaving Turkey and from whom his mother is estranged. I am satisfied that it is unlikely that the uncle will provide any support to Mr Mirik and that, in any event, it is unlikely that Mr Mirik will take any steps to contact him.
I accept the evidence that Mr Mirik is not in good health and would be likely to continue to receive social security benefits if he remains in Australia. He is 58 years old. He has no assets in Turkey and does not have any significant assets in Australia to take with him. He will need to re-establish himself in a country in which he has not lived since 1981. It was argued on his behalf that he will be without family or other social support, that it will be difficult for him to obtain employment, that he will not be protected from alcohol abuse and that he will not have access to the high level of medical support which he needs.
Counsel for the Commission referred me to journal articles which refer to significant improvement to universal health care in Turkey and recent strong economic growth.[30]
[30] Exhibit R1 pp.88-96.
There is no evidence that there will be any substantial language or cultural barriers to Mr Mirik establishing himself in Turkey.
Taking into account the difficulties of re-establishing himself in another country with limited family support and Mr Mirik’s special needs, the considerations set out in paragraph 10 do weigh significantly in favour of not cancelling Mr Mirik’s visa.
Other considerations not referred to in the Direction
Mr Mirik has been ordered to pay compensation to his victim. It is argued that cancellation of Mr Mirik’s visa and his forced relocation to Turkey will lessen the likelihood that Mr Mirik will be able to earn sufficient income to meet this obligation. While this a consideration the evidence before me does not enable me to find that there is a real likelihood that the compensation will be paid even if Mr Mirik remains in Australia or that the likelihood will be less if Mr Mirik is living in Turkey. This is a consideration of little weight in Mr Mirik’s circumstances.
Balancing all of the considerations
The General Guidance provisions of the Direction indicate that the Government is committed to protecting the Australian community from harm as a result of criminal activity and that the principles which I have considered above are of critical importance in furthering that objective. Further, these principles “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”[31]
[31] Para. 6.2.
In balancing the considerations relevant to Mr Mirik’s application I must take into account the Principles set out in Paragraph 6.3 of the Direction. In summary the principles relevant in this matter are:
(a)being able to remain in Australia is a privilege conferred on non-citizens;
(b)a non-citizen who commits a serious crime should generally expect to forfeit the privilege;
(c)the harm which may be caused if criminal offending is repeated may be so serious that the risk of future similar conduct may be unacceptable, even when there are strong countervailing circumstances;
(d)Australia may afford a higher level of tolerance to a non-citizen who has lived in Australia for most of his or her life;
(e)considerations include the length of time a person has been making a positive contribution to the Australian community and the consequences of visa cancellation for immediate family members in Australia.
In this application the primary consideration of protection of the Australian community weighs very heavily towards requiring the cancellation of Mr Mirik’s visa. The harm which he has caused to the Australian community and to individuals has been great over many years. The harm caused to the victim of his most recent offending was extremely serious and could have cost the victim his life. The victim must live with the consequences of the attack for the rest of his life.
In these circumstances I have concluded that the risk of future harm to individuals and to the Australian community is unacceptable, even though there are the countervailing factors to which I have referred earlier in these reasons. Those countervailing factors are not sufficient to entitle Mr Mirik to retain the privilege of continuing to live in Australia following his release from prison. In reaching this decision I have taken into account that Mr Mirik has no dependants in Australia. While Mr Mirik’s parents will be deeply affected by this decision their interests do not outweigh the need for protection of the community.
CONCLUSION
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 29 August 2012 to cancel the Class BF Transitional (Permanent) visa issued to Cetin Mirik, will be affirmed.
I certify that the preceding 95 (ninety five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
............[sgd]................................................
Associate
Dated 26 November 2012
Dates of hearing 19 and 20 November 2012 Counsel for the Applicant Ms J Taylor Advocate for the Applicant Mr A Mete Solicitors for the Applicant BMA Lawyers Advocate for the Respondent Mr D Brown Solicitors for the Respondent Australian Government Solicitor
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