Curoglu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3600
•11 October 2024
Curoglu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3600 (11 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8107
Re:Tuncay Curoglu
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:11 October 2024
Place:Sydney
The Tribunal sets aside the decision dated 25 August 2023 and substitutes a decision that the decision cancelling the Applicant’s visa is revoked.
........................[SGD]................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa – where the Applicant does not pass the character test- whether there is another reason to revoke the mandatory cancellation - applicant has strong ties to Australia because he arrived when eighteen months old and has lived the majority of his life in Australia – decision under review is set aside
Legislation
Migration Act 1958 (Cth)
Cases
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
REASONS FOR DECISION
Deputy President Britten-Jones
11 October 2024
Mr Curoglu (the Applicant) seeks a review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent).
On 27 March 2020, the Applicant’s Class BF Transitional (Permanent) visa (the visa) was mandatorily cancelled under s s 501(3A) of the Migration Act 1958[1] (the cancellation decision) because he had a ‘substantial criminal record’ and was serving a sentence of imprisonment.
[1] All references to legislation are to the Migration Act unless otherwise specified
On 25 August 2023, a delegate of the Minister decided under s 501CA(4) to not revoke the cancellation decision. The Applicant sought review in the Tribunal and the cancellation decision was affirmed, but the Tribunal’s decision was then set aside on judicial review in the Federal Court. The matter was remitted to the Tribunal and there was a further hearing on 10 and 11 October 2024.
Background Facts
The Applicant is 51 years old and a citizen of Turkey. He came to Australia with his parents in 1974 as an 18-month-old infant. The Applicant has a long history of drug addiction and associated criminal behaviour since 1992. He is still dealing with his addiction and is undertaking a methadone program at Villawood. He has three children with his ex-partner and two stepdaughters.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked the right to have that decision reviewed by the Tribunal is enlivened.
The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
The other considerations are:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[2]
CONSIDERATION
[2] Direction 110 at 7(2)
Protection of the Australian community – 8.1 of the Direction
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of the Direction, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of the Direction
The Applicant’s criminal record is set out in the report from the Australian Criminal Intelligence Commission.[3] The offending spans 1992 to 2020. Most of the offending is property related involving theft, dishonesty, and damage but there are also drug offences and some violence including domestic violence. Over this lengthy period, the offending was frequent with a most significant cumulative effect. He has been in and out of prison for over 20 years.
[3] Remittal Bundle pages 34 to 61
In 2002 the Applicant was convicted of armed robbery with an offensive weapon and sentenced to 4 years imprisonment. He approached a woman who had a one-year-old child in a pram with her after going to an automatic teller machine. He pointed a knife at her before grabbing her bag. Soon after he was found with the cash that he had stolen together with some other items. The sentencing judge described it as a serious offence and referred to the considerable length of his court record and the fact that he was serving a sentence of 20 months periodic detention. The presentence report noted that the Applicant was remorseful and cooperative and had significant support from his partner and his parents. Further, it noted the need to resolve his drug abuse and that any prognosis as to reoffending depended upon the Applicant’s cooperation following through with drug rehabilitation programs.
In 2004 the Applicant was convicted of assault occasioning actual bodily harm and sentenced to 2 years imprisonment. The sentencing judge referred to it as:
a serious assault upon a female which was unprovoked whereby the offender grabbed the victim’s hair, pushed her through the front door, pushed her head into a railing post on a veranda and pushed her down steps, smashed her head on the concrete and came down the steps and punched the victim to the face.
In 2012, the Applicant was convicted of ‘break and enter house’ and sentenced to 12 months imprisonment. The Applicant had little recollection of the offence because he had taken drugs. By committing the offence, the Applicant was in breach of five good behaviour bonds. The sentencing judge said that it was a matter which the community expects will be taken very seriously but it was noted that the Applicant’s drug use led to the commission of this offence and other offences of a very similar nature that appeared on his lengthy criminal history.
On 5 December 2013, the Applicant received a term of imprisonment for a number of offences which was suspended so as to allow him the opportunity to undertake a drug court program. The completion of this program was described as a great success and his term of imprisonment was set aside and replaced by a good behaviour bond on 20 April 2015.
On 22 May 2014, the Applicant was convicted of two counts of contravening an apprehended violence order for which he received a sentence of two years imprisonment. The facts of this matter are that the Applicant’s behaviour was causing his parents some concern and they became frightened and called the police. The police were called but the Applicant returned later that night and made a number of threats through the front window of the home including that he was going to burn down the house while they were sleeping. There was a separate offence for breaching an apprehended violence order relating to his former partner. The Applicant was affected by drugs during this offending.
He was convicted for numerous offences on 26 May 2017 including assaulting and resisting a police officer in the execution of duty. A suspended sentence of 12 months imprisonment was imposed.
The most recent offence was possession of a prohibited drug and contravention of another apprehended violence order for which he was sentenced to 8 months imprisonment.
The Applicant was given formal warnings of an intention to consider cancelling his visa in March 2010 and July 2012. He also received numerous warnings when being sentenced for his offending. The Applicant has continued to take drugs and has continued offending despite many opportunities for him to cease doing so. He has participated in numerous drug rehabilitation programs including methadone programs but despite some limited successes along the way he is still treating his drug addiction with a methadone program today. The seriousness of his offending is reflected in the numerous custodial sentences he has received. The acts of violence against women and police officers on duty are very serious.
I conclude as to the nature and seriousness of the Applicant’s conduct that it was lengthy, persistent and serious but almost all of the offending was directly related to his drug addiction which he is addressing. Further, he was given numerous warnings which he failed to heed. The nature and seriousness of the Applicant’s conduct is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of the Direction
In considering the need to protect the Australian community from harm, I have had regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[4] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non citizen 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).
[4] Direction 110 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[5] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of the Direction
[5] (2014) 225 FCR 424; [2014] FCA 673.
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be serious particularly because of the volume of offending over such a long period of time. Much of the offending seen on its own was not the most serious - for example, larceny – but there was some violence including domestic violence.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of the Direction
The Applicant has expressed remorse for his offending and says he is motivated to not reoffend because of his children. Many times before today, the Applicant has expressed similar remorse and made promises to avoid drugs and to not reoffend. It is hard to see what is different this time. He has always had the support of his parents. He has had the benefit of support from his ex-partner for many years and he has had children for many years and yet he has continued to take drugs and offend.
Nevertheless, I was impressed by the Applicant’s candour in the witness box and he seemed to express a genuine desire to stop the pattern of drugs and offending. He was forthright about his addiction, and he expressed an understanding that he must treat his addiction so as to avoid further offending. He is complying with a methadone program which he says he will continue if released. His ex-partner gave evidence that they are still best friends and that she will support him if released. His sister explained that there is a job waiting for him at her partner’s joinery business where she works too. He has indicated a desire to work and help support financially and otherwise his ex-partner and his children.
The most significant difference about the Applicant’s circumstances is that he has spent the last four years in detention and I believe that he finally understands the significance of being removed from the country if he does not change his behaviour. Whilst in detention he has engaged in the Smart Recovery program. His behaviour in detention has been free of any significant incidents. He admitted to smoking marijuana in detention and he disclosed this to the medical officers. He has a drug relapse plan which includes engaging with Odyssey House and his general practitioner if released.
It is clear from how emotional he became in the witness box when giving evidence that understands how he has failed his children and family in the past and how important it is for him to avoid drugs and offending in the future. He knows that he will be deported to Turkey if he reoffends and that is a very significant motivation for him. In 2020 the Applicant was assessed as a medium to high risk of reoffending[6] but his more recent behaviour and his evidence to the Tribunal indicates an improved risk. For that reason, I conclude that the likelihood of further criminal conduct is moderate which I do not consider to be an unacceptable risk to the Australian community given that much of his past offending has not been the most serious.
[6] Presentence report 14 February 2020 at p 342 of exhibit 3
Family Violence – 8.2 of the Direction
The Applicant has engaged in family violence which caused fear to his sister and ex-partner. In considering the seriousness of the family violence engaged in by the Applicant, the following factors in paragraph 8.2(3) are relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
In August 2013, the Applicant was the subject of an apprehended violence order which named his ex-partner and four children as persons in need of protection. Further, on 10 August 2013, the police applied for, and were granted, an urgent order on behalf of the Applicant’s sister. On 22 May 2014, the Applicant was convicted of breaching these apprehended violence orders and sentenced to imprisonment for two years. With respect to the sister, in August 2013, the Applicant was at his home with her and started yelling at her accusing her of putting something in the water and poisoning him. The sister initially contacted police because she was concerned for his welfare, but he began to scream at her. His behaviour was drug induced. With respect to the ex-partner and his children, on 18 August 2013, the Applicant attended at the prohibited premises asking to be let in because he was hungry. He shouted obscenities and was clearly intoxicated.
On 26 February 2020, the Applicant was sentenced to an aggregate term of imprisonment of 12 months which, on appeal, was varied to 9 months. The sentencing judge noted that the Applicant had deliberately ignored his ex-partner’s’s statements made several times that he was not welcome at her home and that she had reasonable grounds to fear a domestic violence offence and intimidation and stalking.
On 15 December 2020, the Applicant was convicted for contravening an apprehended violence order and sentenced to 8 months imprisonment. The offending occurred on 3 June 2020 when the Applicant attended the home of his ex-partner and demanded entry so as to retrieve his personal properties. When he was denied entry, the Applicant removed the back door from its hinges and entered the home and engaged in a vocal argument and made threats to the family.
The Applicant concedes that there have been acts of family violence and that he has been formally warned about the consequences of further offending. He has expressed appropriate remorse, and explained that his behaviour was influenced by drugs at the time. I note that the family violence is limited to episodes in August 2013 and in 2020 and it was not frequent. He accepts responsibility for his conduct and understands its impact on his family. The ex-partner and the sister of the applicant have both provided supporting written statements and both gave oral evidence at the hearing in support of the Applicant. The effect of their evidence is that his past conduct was drug induced but they maintain a strong relationship with him and support his release because he is addressing his drug addiction.
The Applicant contends, which I accept, that the conduct was not at the higher end of seriousness and did not involve any physicality. Nevertheless, the Applicant caused fear to the very people that he says he loves whilst they were in their home. The Australian government views this conduct very seriously. This factor weighs heavily against the Applicant but if he remains drug free it is very unlikely that he would commit further domestic violence. With the support of his ex-partner, his sister and parents plus the benefit of completing the methadone program, it is likely that he will not reoffend.
Strength, Nature and Duration of Ties to Australia – 8.3 of the Direction
This primary consideration provides at paragraph 8.3 of the Direction:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived in Australia since he was 18 months old. He has lived here for over 50 years. He has three children and two stepchildren for whom he assumes a parental role. The Applicant’s ex-partner, sister and father gave oral evidence that they maintain a close relationship with the Applicant and that they would support him upon his release. His mother also supports him and has suffered due to his drug addiction and consequent behaviour. They will be devastated if he is removed to Turkey. The ex-partner said that he is her best friend and that she wants him released so that he can be with her to help with the children.
Each of his adult children has written a letter of support describing their father as loving and caring and referring to the problems he has had with drug addiction. They want him to be part of their lives and will be devastated if he is removed to Turkey.
The Applicant has held various jobs over the years but his drug taking has severely affected his employment.
In conclusion with respect to ties to Australia, I place significant weight on the fact that the Applicant’s family is in Australia and that he has effectively spent his whole life in Australia having arrived as an infant aged 18 months. I conclude that the applicant’s ties to Australia is a factor that weighs heavily in favour of the Applicant.
Best interests of minor children – 8.4 of the Direction
I must determine whether non-revocation of the cancellation of the Applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[7]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[7] Direction 110 at 8.4(4).
The Applicant has two children below the age of 18. They are eight years old and 16 years old. The younger one is his stepdaughter, but she has never had a relationship with her biological father. She treats the Applicant as her father, calls him ‘dad’. The ex-partner of the Applicant gave evidence that the daughter idolises the Applicant and that he is a good father to these two children. She is on a sole parent pension looking after five children and is struggling without him. This impacts on the children. The 16 year old son wrote a letter of support saying how much he misses his father and is scared that if he goes to Turkey then he will never see him again.
I note that as a show of support, the four younger children attended the hearing with their mother.
I find that it would be in the best interests of the Applicant’s son and stepdaughter if he were released so that he could provide financial and emotional support to them. I have no doubt that he loves his children and that if he remains drug free, he will be a very good father to them. It would be very difficult for his children to maintain a meaningful relationship with their father if he were removed to Turkey. This is a very significant factor in favour of the Applicant, but its weight must be reduced because of his past conduct which has affected his children and resulted in significant periods of absence from them and because there remains a risk, albeit very low, of further domestic violence if the Applicant does not resolve his drug problem.
Expectations of the Australian community – 8.5 of the Direction
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[8] The Applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious but much of it was at the lower end of the spectrum and I do not consider that there is an unacceptable risk of further re-offending. I take into account that the Australian community may afford a higher level of tolerance of the Applicant’s criminal past because he has lived in Australia for most of his life and from a very young age.[9]
[8] Direction 110 at 8.5(1).
[9] Direction 110 at 5.2(6).
I conclude that the Australian community expects that the Australian government should not revoke the cancellation decision. This is a factor that weighs in favour of non-revocation of the cancellation decision but only moderately so.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, but these are not exhaustive.[10]
[10] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of the Direction
The Applicant makes no claim in relation to Australia’s non-refoulement obligations, so this consideration is neutral.[11]
[11] Applicant’s statement of facts, issues and contentions at [31]
Extent of impediments if removed – 9.2 of the Direction
The Direction requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The Applicant is 51 years old and in relatively good physical and mental health.
There would be some language and cultural barriers in Turkey because he has never lived there except for two relatively short periods in 1985 and 1989. He has difficulty reading and writing Turkish and his language is not fluent. He has limited family in Turkey. He has had some contact with one cousin but he is not even sure of his whereabouts and knows that he travel abroad regularly.
Whilst country information suggests that Turkey offers opioid substitution programs, mental health services are inadequately funded and therefore the Applicant may not be able to access the necessary counselling to assist his drug rehabilitation.
Gaining employment may also be problematic because of his age, his drug addiction and his limited language skills.
Adjusting to life in Turkey would be very difficult but in terms of establishing himself and maintaining basic living standards, these problems would not be insurmountable. Nevertheless, this is a factor that weighs in favour of the Applicant.
Impact on Australian business interests – 9.3 of the Direction
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community and family violence weigh against the applicant but I consider they are outweighed by the Applicant’s ties to Australia and the best interests of children.
The Applicant has committed crimes for the best part of three decades and the Australian community would expect that his visa remains cancelled. However, I place significant weight on the fact that he has lived in Australia for over 50 years from the age of 18 months and has established a family of five children who love and support him. I consider that this is a case where the Applicant’s significant ties to Australia and the interests of his children outweigh the countervailing factors. He has taken steps to rehabilitate himself and he has a drug relapse plan and strong family support. This will help him to remain drug and crime free in the future. Whilst I recognise that the safety of the Australian community is the highest priority of the Australian government, it is unlikely that the community’s safety will be endangered because of the Applicant’s drug rehabilitation.
The decision of the Tribunal is to set aside the non-revocation decision and to instead revoke the decision to cancel the visa.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
.............................[SGD]...........................................
Associate
Dated: 11 October 2024
Date(s) of hearing: 10 & 11 October 2024 Solicitors for the Applicant: Ms M Mamarot, South West Migration and Legal Services Solicitors for the Respondent: Ms A Wilford, Sparke Helmore Lawyers
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