Curoglu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 54
•18 January 2024
Curoglu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 54 (18 January 2024)
Division:GENERAL DIVISION
File Number: 2023/8107
Re:Tuncay Curoglu
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date of decision: 18 January 2024
Date of written reasons: 23 January 2024
Place:Sydney
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirmed the reviewable decision.
......................[SGN]..................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is a citizen of the Republic of Türkiye – applicant held Class BF Transitional (Permanent) visa – visa mandatorily cancelled on basis of substantial criminal record and serving sentence of full-time imprisonment – applicant’s sentence reduced – applicant sought revocation of visa cancellation – representations out of time – applicant then renotified of cancellation of visa – applicant invited to make representations and did – delegate of Minister decided not to revoke mandatory cancellation – applicant lodged application with Tribunal for review of decision not to revoke – ministerial direction – Direction No. 99 – primary considerations – protection of the Australian community – family violence conduct – ties with Australia – best interests of minor children in Australia – expectations of the community – other considerations – applicant considered for visa cancellation on two previous occasions – applicant received two written warnings about future conduct potentially jeopardising visa – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FYBR v Minister for Home Affairs (2019) 272 FCR 454Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Secondary Materials
International Society of Substance Use Professionals – Turkey country profile ( – accessed 19 January 2024
Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)
REASONS FOR DECISION
Senior Member D. J. Morris
23 January 2024
The Applicant was born in Turkey (now Türkiye) in 1973. In company with his parents, he migrated to Australia in 1974 as a dependent infant on the visas of his parents. In 1989 he was granted a Class BF Transitional (Permanent) visa (‘the visa’) by operation of law.
On 26 February 2020, the Applicant was convicted in the Local Court of New South Wales of the following offences: Dishonestly obtain property by deception (11 counts); Larceny to value less than $2,000; Possess prohibited drug; Rider not wearing approved bicycle helmet/fitted/fastened; and Enter inclosed land nor prescribed premises without lawful excuse. For these convictions he was sentenced to an aggregate term of 12 months imprisonment and fined $100.
On 27 March 2020, the Department of Home Affairs (‘the Department’) notified the Applicant that his visa had been mandatorily cancelled under s 501(3A) of the Migration Act 1958 (‘the Act’). A delegate of the Respondent Minister had found that Mr Curoglu had a ‘substantial criminal record’ as defined under s 501(7)(c) of the Act and was serving a sentence of full-time imprisonment and so he did not pass the character test (s. 501(6)(a)).
In August 2020, the District Court of New South Wales varied the sentence imposed on the Applicant which triggered the cancellation of his visa from 12 months to an aggregate term of imprisonment of nine months. Shortly thereafter, Mr Curoglu was convicted of the offence of Contravene prohibitions/restrictions in AVO (Domestic), and sentenced to a term of imprisonment of eight months.
In May 2021, the Applicant sought revocation of his visa cancellation, but the Department notified him that the representations were not made within time and his request for revocation was deemed invalid.
However, on 22 December 2021 following the decision of the Full Court of the Federal Court of Australia in EPL20 v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2021] FCAFC 174, which determined that certain notifications were invalid, the Department renotified Mr Curoglu of the mandatory cancellation of his visa and invited him to make representations. He did so on 27 December 2021.
On 25 May 2023, the Department invited the Applicant to comment on information, including two prior warnings given to him by the Department about the effect of his future conduct on his immigration status. The Department also invited the Applicant to comment on the information that he had a ‘substantial criminal record’ within the terms of the Act and that, as a result, he did not pass the character test.
On 25 August 2023, a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the mandatory cancellation of Mr Curoglu’s visa. He was notified of that decision on 26 October 2023, and lodged an application for review with the Tribunal.
The matter was reconstituted to me in December 2023 for hearing scheduled on 11 January 2023 but, owing to illness of a legal representative, the hearing was postponed and was held on 16 and 17 January 2023. Because of the date the Applicant was notified of the reviewable decision, the 84th day in terms of s 500(6L) of the Act in which the Tribunal must make a decision, or else the reviewable decision is taken to have been automatically affirmed by the Tribunal, was 18 January 2023. The unfortunate consequence necessitated that the Tribunal issue a decision on 18 January 2023 to the parties, with written reasons to follow as soon as practicable.
The decision of the Tribunal was to affirm the reviewable decision. That means that the mandatory cancellation of the visa is not revoked. The reasons for that decision follow.
HEARING
The Applicant was represented by Mr Peter Berg of counsel, instructed by Ms Wendy Milojkovic of South-West Migration & Legal Services. The Applicant gave evidence and was cross-examined by Mr Matthew Burnham of Sparke Helmore Lawyers, representing the Respondent. Four members of the Applicant’s family also gave evidence, as did his former domestic partner. For one of the witnesses the Tribunal appreciates the assistance provided by an interpreter of the Turkish language.
The Tribunal admitted the following documents into evidence:
(a)A volume of ‘G’ documents submitted by the Respondent (Exhibit R1);
(b)A volume of Supplementary ‘SG’ documents (Exhibit R2);
(c)Respondent’s Tender Bundle (RTB) (Exhibit R3); and
(d)Applicant’s Tender Bundle (ATB) (Exhibit A1);
The Tribunal had regard for a Statement of Facts, Issues and Conventions lodged by the Applicant (‘ASFIC’) and a Statement of Facts, Issues and Contentions lodged by the Respondent (‘RSFIC’).
QUESTIONS BEFORE THE TRIBUNAL
Does the Applicant fail the character test?
At the start of the hearing, Mr Berg submitted that it was conceded by the Applicant that he does not pass the character test because he has acquired a ‘substantial criminal record’ by being sentenced to a term of imprisonment of 12 months or more, and that he was serving a full-time sentence at the date his visa was cancelled.
Section 501(7) of the Act provides relevantly as follows:
For the purposes of the character test, a person has a substantial criminal record if:
…
(d) The person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or...
Section 5AB of the Act provides that, in calculating whether a person has been sentenced to 12 months or more imprisonment, whether a single sentence is imposed for more than one offence does not affect the calculation, in other words where a court imposes an aggregated sentence (as the Court did in the case of the Applicant), it can be counted towards deciding whether a total gaol sentence is 12 months or more.
Before the Tribunal (GD, pp 34-61) was an Australian Criminal Intelligence Commission nationally coordinated criminal history check (‘ACIC report’) dated 16 March 2022. It records Mr Curoglu being sentenced at Newtown Local Court on 15 December 2020 to eight months’ imprisonment for a domestic violence offence, and on 7 August 2020 (as varied on appeal by the District Court) to an aggregate term of imprisonment of nine months for several offences referred to above.
On the basis of these two sentences, the Tribunal finds that the Applicant has a ‘substantial criminal record’ in terms of s 501(7)(d) of the Act. The Tribunal also finds that he was serving a sentence of full-time imprisonment on 27 March 2020, which was the date a delegate of the Respondent cancelled his visa. Therefore, Mr Curoglu’s visa was cancelled by operation of law. Because of this he cannot rely on s 501CA(4)(b)(i) of the Act, as a person who passes the character test.
The discretionary power – is there ‘another reason’ to revoke the mandatory cancellation of the visa?
Having made the finding that the Applicant does not pass the character test, and being satisfied that Mr Curoglu was invited under s 501CA(3) of the Act to make representations about the revocation of the decision to cancel his visa, the power was enlivened for the Minister or his delegate (or the Tribunal now standing in the Minister’s shoes) to potentially revoke the cancellation decision if satisfied, under s 501CA(4)(b)(ii) of the Act that there is ‘another reason why the original decision should be revoked’. This is the question both parties agreed was before the Tribunal.
In considering this question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. On 23 January 2023, the Minister made a direction, which took effect on 3 March 2023. This is Direction No. 99 (‘the Direction’). Decision-makers, including this Tribunal, must, under s 499(2) of the Act, comply with the Direction.
THE APPLICANT’S OFFENDING HISTORY
The ACIC report contains Court appearances by the Applicant in relation to what was conceded by his counsel is a very lengthy criminal history. The Tribunal notes that Mr Curoglu was first before the Children’s Court in August 1988 when he was aged 15 in relation to taking and driving a conveyance, attempting to steal a motor vehicle and possessing implements to enter a motor vehicle. The Tribunal makes clear that it places little weight on juvenile offending, even when there has been a pattern of subsequent offending. In these matters he was given minor fines totalling $30 and released on his own recognisance.
However, the next Court appearance the Applicant had was before the Local Court (i.e. the Magistracy) in April 1992. This was for drink driving, driving dangerously, being an unlicensed driver, and illegally using a conveyance. Again he was dealt with leniently by way of fines and conditional release.
Two weeks later he was in Court charged with resisting police, assaulting police, taking a conveyance without consent, and two counts of being a disqualified driver. He was fined and given a Community Service Order. The next month he was in Court charged with larceny.
In January 1993 Mr Curoglu was in Court and convicted of stealing. He received his first custodial sentence of four months’ periodic detention (confirmed on appeal). Thereafter the ACIC report makes melancholy reading. The Applicant was in Court three more times in 1993 on driving and larceny offences and for breaching his recognisance. In 1994 he was in Court twice, charged with several offences including possession of prohibited drugs (heroin, cannabis and amphetamine), larceny, stealing from a dwelling, and self-administering a prohibited drug. This is the first evidence of drug-related offending which has dogged the Applicant ever since.
In 1994 he was convicted in Court on two occasions of several offences. There was a hiatus until 1998 when he was in Court three times, including being convicted of receiving, stealing and failing to appear in response to a warrant. In 1999 he was in Court twice and convicted of a stealing offence and driving whilst his licence was cancelled. In 2000 Mr Curoglu was in Court on five occasions. In March 2001, a periodic detention order was cancelled and replaced with home detention for one month and 28 days.
In October 2002 Mr Curoglu was convicted at the District Court in Sydney of the offence of Robbery armed with an offensive weapon and a four-year gaol term was imposed with a non-parole period of two years. In September 2004 he was before Parramatta Local Court and convicted of the offence of Assault occasioning actual bodily harm. For this offence he received a prison term of two years with a non-parole period of 18 months. He lodged an appeal. The conviction was confirmed but the sentence varied to two years’ imprisonment with a non-parole period of 12 months with certain conditions, including treatment for substance abuse.
In 2006 he was convicted of three counts of breaking and entering and stealing, and one count of larceny. He was sentenced to 18 months’ imprisonment with a non-parole period of 12 months and ordered to undertake drug and alcohol counselling.
In 2008 he was in Court on four occasions and convicted of several offences. In 2009 he was in Court on one occasion and convicted of several offences. In 2020 he was in Court on one occasion and convicted of five offences relating to larceny and breaking and entering. There are no Court appearances recorded in 2011. In 2012 Mr Curoglu was before the Court in February, convicted of breaking and entering a house and two counts of stealing.
In December 2013, the Applicant was convicted of nine property offences and entering inclosed land without excuse. In 2014 he was convicted of fifteen offences after several Court appearances. In 2015 he was convicted of eleven offences, most of them property-related but also offences relating to stalking and contravening Apprehended Violence Orders on two occasions.
In 2016 he was convicted of one count of assaulting an officer in the execution of duty and another of resisting an officer in the execution of duty. In 2017 Mr Curoglu was convicted of 14 counts of dishonestly obtaining financial advantage by deception, one count of Receiving property – serious indictable offence, other property offences and four counts of either resisting or assaulting officers in the execution of their duty.
In 2017 Mr Curoglu was convicted of assaulting an officer and 17 dishonesty offences. In 2020 he was convicted of entering inclosed land without lawful excuse and 34 other offences. These ranged across property and receiving offences, possessing housebreaking implements, one drug possession offence and a range of dishonesty offences. He was sentenced to 12 months’ imprisonment, suspended on entering into a bond and agreeing to a supervision order.
In 2018 the Applicant was convicted of two offences of assaulting an officer, one of resisting an officer, one of offensive language and 17 property offences. He was given an intensive corrections order for 12 months.
In February 2020 as referred to above, Mr Curoglu was convicted at Local Court of entering inclosed land without lawful excuse and fined $100. He was also convicted of possessing a prohibited drug; dishonestly obtaining property by deception (11 counts); Larceny to a value less than $2,000; and received an aggregate sentence which was reduced on appeal to 10 months. He was also convicted of being a rider not wearing an approved bicycle helmet, but no additional penalty was imposed in relation to this last offence.
In December 2020, the Applicant was convicted before the Local Court of Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced to eight months’ imprisonment with a non-parole period of four months.
THE MINISTERIAL DIRECTION
In forming a view on whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of Mr Curoglu’s visa, the Tribunal must have regard to the relevant contents of the Direction made by the Respondent Minister.
The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (para 8.1.1)
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
It was conceded by Mr Berg that the Applicant’s past criminal conduct may be classified as ‘very serious.’ He has not committed any sexual crimes, but he has committed a crime of violence against a woman who had a very small child with her: he watched the woman withdraw cash from an automatic teller, followed her to a car park and then brandished a knife to threaten her, uttering menacing words, as he stole her bag. It was also conceded that the Applicant has committed acts of family violence against his former domestic partner, Ms RB, and – by extension – his children with her who were present, by going uninvited to her house when he was under Court orders not to. There was also a record of an incident in April 2004 (GD, p 150) where Judge Ellis of the NSW District Court summarised the actions by Mr Curoglu:
The facts show 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, smashing her head on the concrete and came down the steps and punched the victim to the face.
Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. Of these categories, the several offences by the Applicant of resisting arrest and assaulting police were conceded by his counsel as relevant. Mr Berg suggested that women might fall into the category of being vulnerable members of the community, but the Tribunal does not accept that as a broad proposition. The context of an offence would inform an assessment as to whether a victim was particularly vulnerable.
Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. The Tribunal notes the Courts were initially very patient with the Applicant, reflecting his relative youth and the opportunities for rehabilitation. He was given various non-custodial sanctions including fines, period detention, Community Service Orders and then, home detention. He breached several of these measures before he received his first prison sentenced. He subsequently received several prison sentences over the last thirty or so years.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. Mr Berg submitted that there has not been an escalation in the Applicant’s offending and that the serious offence relating to robbing the woman with a young child at knifepoint, and the nasty assault on another woman detailed above, were around 20 years ago. The Tribunal accepts that submission, but notes that the Applicant’s offending has been frequent, and somewhat relentless, except for periods when Mr Curoglu was incarcerated.
Paragraph 8.1.1(1)(e) requires the Tribunal to consider the cumulative effect of repeat offending. There has been a cumulative effect of relatively regular offending through a very large number of property and dishonesty offences.
Paragraph 8.1.1(1)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. The Applicant made a false claim in an August 2023 letter to the Department that he has not taken illicit drugs whilst in immigration detention, which was misleading information.
Paragraph 8.1.1(1)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status.
On 23 March 2010, an officer of the (then) Department wrote to Mr Curoglu and notified him that consideration was being given to cancelling his visa under s 501(2) of the Act. He was invited to make representations (GD, p 266). The Applicant acknowledged the notice in writing on 27 April 2010 (GD, p 272). On 8 June 2010, an officer of the Department wrote to Mr Curoglu advising that a delegate of the Minister had decided not to cancel the visa on character grounds. The letter included the following text:
However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Underlining and bold type in the original)
On 16 May 2012, an officer of the (then) Department wrote to Mr Curoglu while he was serving a sentence in HMP Goulburn and notified him that his visa may be liable for cancellation under character grounds (GD, p 257). The Applicant acknowledged the notice in writing on 1 July 2012 (GD, p 263). On 27 July 2012, the Department wrote to the Applicant to advise that a delegate had decided not to cancel the visa (GD, p 264). The letter included a written warning in identical terms to the June 2010 letter.
The Applicant also previously was held in immigration detention which is an obvious and sobering warning to a non-citizen of the possible consequences of removal from Australia if conduct inimical to holding a visa continued.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
The Direction states that decision-makers should have 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. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct. The nature of harm to the community if the Applicant continued to offend would, because of the trajectory of his offending, be more likely to involve a threat to property than to the person. It would seem to me that a large driver of Mr Curoglu’s offending has been theft of cash and other items to liquidate, in order to buy drugs.
Mr Burnham cited in his closing submissions a NSW Department of Justice document titled ‘Sentencing Assessment Report.’ This document is dated 14 February 2020 and appears to be a document prepared for the information of the Newtown Local Court. The writer interviewed the Applicant and spoke to his sister and employer. The writer noted:
Mr Curoglu has been assessed at a T2/Medium-High risk of reoffending according to the Level of Service Inventory-Revised (LSI-R).
The writer noted the Applicant was residing at that time with his parents and sister and reported that his family were supportive of him. He reported that he had a ‘turbulent’ relationship with his ex-partner (Ms RB) who is the mother of his three children. The report states, “He has minimal contact with his children, due to current Apprehended Domestic Violence Order, in place for the protection of his ex-partner” (RTB, p 13).
The writer noted Mr Curoglu accepted responsibility for his actions but attributed his behaviour to his ongoing substance abuse. She recorded that he “understood if he does not address these risk factors, he will continue to come to the attention of law enforcement.” She further recorded, based on her interview with the Applicant:
Mr Curoglu’s substance abuse commenced when he was in his early twenties with cannabis and further escalated to include opiate, methamphetamines, and illicit benzodiazepines. Mr Curoglu reported that at the time of his subject offences he was using ice daily. He acknowledged that his addiction to ice had consumed his life at the time and his offending was motivated by funding his drug use.
The Applicant also acknowledged he had a history of mental health issues for which he was being medicated but the author was unclear about the extent to which his mental health affected his offending behaviour.
Under a heading ‘Responsivity,’ the report states:
Insight into impact of offending
Mr Curoglu appeared to externalise blame for his offences as he was adversely affected by illicit drugs. He appeared to have limited insight into the impact of his offending behaviour and did not verbalise appropriate victim empathy.
The Tribunal expresses some caution about the LSI-R assessment tool. The Tribunal’s understanding is this tool is designed as an internal aid to corrective service authorities to assess the level of service likely to be required by an individual prisoner or offender who is gaoled or granted parole or other supervisory order. The LSI-R is not a comprehensive criminogenic assessment measure, but it nonetheless carries some weight, given that it was applied objectively to inform the Court.
The Tribunal is inclined to the view, and finds, that Mr Curoglu is a medium risk of reoffending, based principally on the persistent nature of his offending history. This risk would, the Tribunal finds, rise to a higher level if the Applicant relapsed to taking illicit drugs, mainly because his past conduct has shown it impairs his judgment and also puts him back into a spiral of offending to get money to then buy drugs to fuel his addiction.
Mr Berg emphasised in his submissions that the Applicant has been on a methadone programme in detention since around 2021 and there was no evidence that he has reverted to illicit drug-taking. The Tribunal accepts that, but also notes the Applicant’s own evidence that he has been on methadone programmes in the past, the first time he said in 1996 as part of an order of the Drug Court, but has always relapsed. When asked why the Tribunal should have confidence he would not relapse now, Mr Curoglu said he was ‘older, smarter, wisher, and have more to lose.’
The Applicant was taken to a letter from the Registrar of the Drug Court of NSW (ATB, p 202) providing details of his programme with that Court. The letter recorded that he commenced the programme in December 2013, progressed to phase 2 in May 2014 and phase 3 in August 2014. The urinalysis showed there was no drug use between April 2014 and April 2015. However, Mr Curoglu agreed that he subsequently relapsed.
During cross-examination, the following exchange between the Respondent’s lawyer and the Applicant occurred:
Mr Burnham: You are 51 years old now?
Applicant: Yes.
Mr Burnham: You’ve had approximately three decades of drug use?
Applicant: Yes.
Mr Burnham: When was the last time?
Applicant: Eighteen months ago, thereabouts.
Mr Burnham: Mid-2022?
Applicant: Yes.
Mr Burnham: You used drugs in immigration detention?
Applicant: Yes.
Mr Burnham: How long did you use drugs in detention?
Applicant: Six to eight months. Suboxone and one use of ice.
Mr Burnham: Suboxone prescribed or outside a prescription?
Applicant: Outside.
Mr Curoglu was then taken to a handwritten letter of the Applicant dated 11 August 2023 to the Department in which he wrote (GD, p 234):
…if it wasn’t for my drug use I wouldn’t of [sic] done the crimes that I did to support my addition. But I can honestly say the [w]hole time I’ve been in Villawood detention I have been drug free this is the longest time in my life that I haven’t use[d] any drugs but I think it is because I’ve been on the methadone program daily 65mil and at night I’m taking Zyprexa and Avanza to help me sleep. Besides that I’ve been illegal drug free I [felt] so good about my self been drug free that long.
Mr Curoglu agreed that it was not true that he had been drug-free the whole time he has been in Villawood IDC. When Mr Burnham asked him why he wrote that, he responded, “I don’t know why.” He agreed that he had not been honest to the Department. He agreed that he has been in detention for three years and has been on a methadone programme for about two years.
While the Applicant might be justly proud that he is currently off illicit drugs while on methadone in detention, the evidence supports the context that he did obtain and use illicit drugs in detention when he first went there, and then he did present a false statement to the Department in August about how drug-free he had been in the preceding three or so years.
The Direction requires the Tribunal to have regard to evidence of rehabilitation achieved by the time of the decision. While incarcerated, the Applicant said he had undertaken a ‘smart recovery’ programme, and occupational health and safety courses. In respect of the smart recovery course, he told the Tribunal that it involved sessions every two weeks. He also referred to the Drug Court programme in 2013-2015 and that he had remained drug-free for the duration of that course, while relapsing later because, he said, he “ran into old associates”.
In his statement (ATB, p 4) the Applicant said he has a plan to stay drug-free which includes continuing with methadone and engaging with drug and alcohol services either through long-term rehabilitation at Odyssey House or ‘online services’. He also said he intends to visit the family general practitioner to engage with a Medicare Mental Health Plan. Mr Curoglu said he had spoken to an intake officer at Odyssey House. In the papers was an email from Odyssey House to the Applicant dated 27 December 2023 from a ‘no reply’ email address at Odyssey House which appears to be an acknowledgement that Mr Curoglu had signed up to receive newsletters from that institution. In any event, the Tribunal has general awareness that Odyssey House does not consider applicants for accommodation unless the person is in the community, or about to be released from prison or other detention.
The Tribunal accepts that Mr Curoglu has turned his mind to what he needs to do if released into the community but that his plans, at this stage, are embryonic. There was no corroborative information before the Tribunal from either Odyssey House or the family’s general practitioner.
The Tribunal finds that this primary consideration weighs very heavily against revoking the visa cancellation. The Applicant has an exceptionally long and serious criminal history. His criminal conduct has been largely unaffected by the range of tools deployed by judicial officers to moderate it. He has consistently breached court orders. The Tribunal considers that the Department of Justice officer’s views on Mr Curoglu’s lack of insight was largely reflected in his evidence. He tended to revert to blaming all of his criminal behaviour on illicit drug use and had to be coaxed to expressing views about the effect on victims, including members of his own family, on some of his conduct which adversely affected them. This contributes to my assessment that he is at least a moderate risk of reoffending.
The Tribunal finds that this primary consideration weighs strongly against revoking the mandatory cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
It was conceded by the Applicant’s counsel that this primary consideration is relevant to Mr Curoglu’s offending history. The Tribunal has referred above to offences for breaching an AVO taken out to protect his then partner, Ms RB. He agreed that four children were present during an argument outside her house and that he removed a door from hinges after she had asked him to leave, and entered the house uninvited. He agreed that, when Ms RB called the police, he said to her words along the lines of “You’ll regret doing this.” He accepted that would have made Ms RB and the children present scared.
Separately, there is evidence of the Applicant undertaking threatening behaviour in relation to his own parents, which he said he was ashamed about. The Applicant’s father, who gave oral evidence, was asked generally about what the Applicant had done. He responded, “He damaged us a bit, but damaged himself much more.” The Applicant’s sister, who gave oral evidence, agreed that in the past an AVO has been made for her protection against her brother.
In respect of the February 2020 conviction for Enter inclosed land not prescribed premises without lawful excuse, the sentencing Magistrate at the Local Court of NSW made the following comments when issuing an AVO against Mr Curoglu for 12 months (GD, p 74):
I have carefully considered the evidence and submissions. The facts in the inclosed lands matter shows that the offender deliberately ignored the victim’s statements made several times that he was not welcome in her home. This was not just a unilateral trespass with no input from the householder, here the victim had repeatedly said the victim was not welcome, but he ignored all that. She is entitled to her home, that place as a sanctuary and a place of security and protection. That was violated. She has reasonable grounds to fear a domestic violence offence and intimidation and, particularly, stalking, and so I conclude that the facts justify imposing condition 9, which I do.
It is clear from the papers (GD, pp 163-164) that the victim the Magistrate is referring to is Ms RB and condition 9, which the Applicant did not want the Court to impose, was a ban on Mr Curoglu coming within 100 metres of her, her residence or her workplace.
When Ms RB gave oral evidence, she agreed under cross-examination that AVOs had been taken out against the Applicant. She said she had not been scared, but did not want Mr Curoglu near the children when he was affected by drugs. She agreed with Mr Burnham’s proposition that she shielded the children from his drug use.
In response to direct questions from the Tribunal, Ms RB said she did not have any fear of physical violence from the Applicant and that he had never been a physically violent person. When asked if she was aware of an incident with a young woman, she said she was not. She said that the interactions between the Applicant and her had involved only verbal arguments, but she agreed he removed a door at her residence from its hinges. She agreed that the main reason she wanted him to leave the house that day was because he was affected by illicit drugs.
The Applicant’s family violence conduct has not been at the higher end and did not on the evidence involve any physicality. It did however involve threatening behaviour. It was also not one isolated incidence, but several. It would appear that the various AVOs which were taken out by members of his family, which include his then intimate partner Ms RB, his parents and his sister, were protective in the sense of not wanting him at their residences when he was drug-affected. Nonetheless it is conduct that falls squarely into this part of the Direction and the Tribunal finds this primary consideration weighs against revoking the visa cancellation, to a moderate extent.
Primary consideration: the strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. The most recent Direction has elevated this consideration to the status of a primary consideration.
The Applicant came to Australia in 1974 when he was an infant. He has grown up here and went to school here. He has worked in this country and been employed in various jobs here. He has three Australian citizen children, and two stepchildren where he fulfils a role as a father-figure.
The Applicant’s elderly parents emigrated to Australia some fifty years ago and have made a life here. They have contributed to Australia’s society and his only sibling was born here. The Applicant’s father said he took him back to Turkey in 1989. In response to direct questions from the Tribunal, the Applicant’s father said he had done this because “I couldn’t control him here. I had to bring him back, because they couldn’t, either.” Mr Curoglu stayed in Turkey with his grandparents and was enrolled in a local school, but his father said he “kept running away.” He said he was there for about eighteen months.
The movement record before the Tribunal records two absences by Mr Curoglu since he first arrived in Australia in 1974. The first was from November 1985 to August 1987, an absence of almost two years. The second was from December 1989 to November 1991, an absence of one month short of two years. It is not clear from the evidence where the Applicant was during the first absence, perhaps Turkey. However, he was in Turkey staying with family of his parents and enrolled in a local school during the second absence.
The Applicant told the Tribunal about various employment positions he had, both on a farm and at a graphic art business. He worked for a while as a mail boy for a large international company, as a fabric layer and as a supervisor in a plastic products firm. He agreed that his drug-taking affected his employment.
Before the Tribunal were character testimonials (GD, pp 230 and 232) from friends who had known the Applicant for many years and attested to his good qualities, while acknowledging his offending history. Apart from the oral evidence from two of the Applicant’s older sons, his sister, his father and his former partner, there were extensive written statements from family members (GD, pp 243-244, 245-246, 248, 252 and 256) which included statements from Mr Curoglu’s mother and an adult daughter who did not give oral evidence. All the sentiments consistently asked for the visa to be restored and made a common point that the Applicant’s children would be unlikely to have the financial means to visit their father if he was repatriated.
The Tribunal accepts, and notes that the Respondent concedes, that the Applicant has strong ties to Australia. Especially because the Applicant is now aged 51 and came here when around 18 months of age, in line with paragraph 8.3(4) of the Direction, the Tribunal finds that this primary consideration weighs in favour of revoking the visa cancellation. The weight is considerable.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Applicant has three biological sons with Ms RB, and two stepdaughters where Ms RB is the mother, but he is effectively the father figure. Two biological sons and one stepdaughter are adults and are not encompassed by this primary consideration. One biological son, DB, is aged 15 and the Applicant has a stepdaughter, MB, who is aged 8. It was not in contest that they view Mr Curoglu as their father.
The Direction requires the Tribunal to make separate determinations if it decides that the best interests of particular minor children may differ. In this matter the Tribunal is satisfied that a single determination may be made.
The consistent oral evidence from witnesses is that both DB and MB would be greatly affected if the Applicant’s visa were not restored. The word used by more than one witness was that they would be ‘devastated.’ The Tribunal notes an email from DB (ATB, p 197) in which he wrote:
My dad is Tuncay Curoglu it has been very hard not having my dad around, I miss him very much and I’m very scared that if he has to go to Turkey I’ll never see him again. My mum cannot afford to go to Turkey, I need my father in my life here in Australia I miss doing activities with him like we use[d] to..
The Tribunal accepts that the Applicant has had long periods of absence from the lives of DB and MB because of his custodial sentences and because of AVOs taken out, it is accepted, to protect them when he is affected by illicit drugs. Nonetheless, the weight of the evidence before me, especially from Ms RB, supports that when Mr Curoglu is out of prison and not taking drugs, he has been a supportive and positive figure in the lives of these two minor children.
The Tribunal makes a determination, not without reservation, that it would be in the best interests of DB and MB for the Applicant’s visa to be restored. The Tribunal finds that this primary consideration weighs relatively heavily in favour of revoking the cancellation of the visa.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(1) 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 enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.
The Australian community’s expectation is taken to be a ‘norm.’ The word ‘norm’ means of a ‘standard’ or ‘pattern or type.’ A superseded version of the Direction contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed.’ In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by another evaluative process.
Direction No. 99 imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case. This was also the submission of both parties.
The Tribunal finds that the weight of the deemed expectations of the community would be against restoration of the visa. The main reason for this is the persistent nature of the Applicant’s criminal offending, spanning more than 30 years and involving Court appearances and convictions almost every year within that span, except for periods when the Applicant was in custody. While the level of seriousness has not generally risen over this period, there has been a regularity in the offending, despite sanctions by the Courts and immigration warnings.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Other consideration: Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In this case, the parties have made no submissions that this other consideration is relevant, except to the extent that Mr Berg noted that the consequences of affirming the reviewable decision would make Mr Curoglu liable for removal from Australia as soon as was practicable. The Tribunal agrees with that, as a matter of fact. The country of reference in this case is the Republic of Türkiye, and there is no submission by the parties that there would be some barrier preventing removal to that country.
The Tribunal finds that this other consideration therefore weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to Türkiye in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in the country of reference.
In terms of his age and health, the Applicant’s response to direct questions from the Tribunal about his Hepatitis C condition is that it has responded to treatment. The papers reveal that he is prescribed Zyprexa (Olanzapine) 15mg nocte for psychosis, and that he has been a tobacco smoker since the age of 14.
The immigration detention health records show a diagnosis of Non-alcoholic fatty liver disorder and Opioid dependence disorder. A clinical health note dated 20 October 2023 recorded:
Comorbidity: liver disease and history of Hep C (no blood could be collected after 3 m of treatment to confirm)
At mod risk of serious illness
Another clinical health record made by Dr Emma Tay, drug and alcohol doctor, on 16 October 2023 stated (ATB, p 24):
OTP…methadone 65mg/d
Looks well
Clarified OTP hx
– reports been on methadone for 2 years now
– states was commenced for indication of methamphetamine use (& was not using opioids)(?)
Wants to remain same on current regimen
– no plans to reduce or cease at this stage; may consider this in community(OTP = Opioid Treatment Program. Hx = history.)
Dr Tay observed that a September 2023 urinalysis detected methadone and no opiates, amphetamines, cocaine or benzodiazepines. She noted the Applicant has between 15 and 20 cigarettes per day. The clinical note is in medical shorthand, but it would appear Dr Tay recorded her view that Mr Curoglu did not think that cessation/reduction in methadone would be ‘problematic and pre-contemplative.’ She goes on to record that the Applicant reported no further issues with psychosis and no hallucinations or paranoia. The report concluded no change to the current 65mg per day dosage of methadone.
The Applicant in response to questioning from the Tribunal confirmed the prescribed medications he was taking, that he has been prescribed spectacles and agreed that his health was generally good except for his mental health conditions.
Mr Curoglu, as a citizen of Türkiye, would have access to the public health and welfare services provided by that country’s government. The Respondent tendered the DFAT Country Information Report Turkey – September 2020 (RTB, p 163)(‘CIR’). The CIR relevantly records (paras 2.23-2.25):
Turkey adopted a National Mental Health Policy in 2006, followed by a National Mental Health Action Plan in 2011, to cover the period through to 2023. These arrangements shifted mental health services to a community-based system and integrated them into general health services. As of October 2015 (most recent available figures), 86 community mental health centres (CMHC) operated nationwide. Observers claim the CMHCs are inadequately funded, and the number of psychiatrists and other mental health professionals per capita is well below European Union averages. Local groups report a lack of coordination between the government and the NGOs working in the area, particularly in relation to reducing discrimination and stigma. Other complaints include that CMHC staff are often poorly trained and paid, leading to high turnover and poor service, and patients must pay directly for their treatment, leading to a two-tier system.
In 2019 broad draft mental health legislation addressing education, information and service access was put before parliament but never voted on. There is tension between mental health professionals and officers of the Moral Support Service Unit operated by the Directorate of Religious Affairs (Diyanet) who work across the health system…
There is little available data on the use of illicit drugs in Turkey. One study conducted in 2017 reported usage of illicit substances in Turkey was low, with 1.8 per cent of young adults (aged 15 to 34 years) reporting cannabis use and 0.2 per cent reporting MDMA use in the previous 12 months. Turkey serves as a critical transit country between the Middle East and key demand markets in Europe, and authorities have been proactive in combatting smuggling, particularly as the drug trade has been a key source of revenue for the PKK [i.e. Kurdistan Workers’ Party].
Pursuant to the powers under s 33(1)(c) of the AAT Act, the Tribunal has informed itself on the availability of opioid substitution treatment available in the country of reference. The International Society of Substance Use Professionals (ISSP) maintains a website with country profiles. In respect of Türkiye, the ISSP reports:
Opioid substitution treatment (OST) using buprenorphine-based medication has been available since 2010. Methadone and levacetylmethadol (LAAM) are also available.
All treatment centres licensed by the Ministry of Health can administer OST.
The majority of the cost of OST medication is covered by general health insurance. Clients contribute the difference, which is usually around 20%.
The Tribunal accepts that the Applicant might not have the same access to health and, in particular, mental health services as he currently has, if he were repatriated. But that is not the yardstick the Tribunal is required by the Direction to apply. I must examine what access Mr Curoglu would have in common with other citizens of Türkiye. I conclude he would have access to mental health services and to opioid substitution treatment programmes in that country.
That finding is not to ignore that there would be obstacles Mr Curoglu would have to overcome in establishing himself and maintaining basic living standards in the context of what is generally available to other Turkish citizens. Mr Burnham made submissions that the Applicant’s father and sister may be able to offer him financial help. I am unconvinced that will be possible because the Applicant’s father made the point that he and his wife are on the aged pension, and the Applicant’s sister, while helping care for their parents, also works with her own partner in small kitchen refurbishment business. While the constant tenor of the evidence of family members was of general support for Mr Curoglu, there was no evidence before me of an ability to provide other than modest assistance to him if he was in Türkiye.
The Applicant has some relatives in the country of reference and said in evidence that he has conversational, if not fluent, ability in the Turkish language – he said he spoke to his parents in Turkish with an intermingling of English words. He would be familiar with the cultural mores of the country, having lived there for an extended period, albeit as a teenager. The Applicant has some history of being able to hold down a job, when he can keep himself away from illicit drugs, and has developed some employable skills, including in supervisory capacities.
Overall, the Tribunal finds that this other consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.
There was no evidence before the Tribunal from victims of the Applicant’s property and dishonesty offences. His father and his former partner, Ms RB, can be classified as victims of his domestic violence conduct and they gave written statements and oral evidence in support of the visa being restored. But the Tribunal is mindful to avoid ‘double counting’ where their best interests have already been considered, favourably to the Applicant, in regard to a primary consideration.
However, overall the Tribunal finds that this other consideration, in line with submissions from both parties, weighs neutrally.
Other consideration: Impact on Australian business interests (para 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. As held by Rangiah J in Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, at [68]) decision-makers must consider any impact on Australia’s business interests be considered, not just business interests of a particular scale or importance.
As referred to above, Mr Curoglu has worked in several industries and notably held down a job at a chicken farm for around three years. He thus has illustrated that he is able to work consistently when he avoids drugs. However, the Tribunal does not consider that his work history rises to a level which would merit a weight being attached in this consideration in the Direction.
This other consideration therefore weighs neutrally.
SUMMATION
In relation to the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs heavily against revoking the mandatory cancellation of the Applicant’s visa. There has been a long and sustained record of criminal offending and the risk of reoffending has been found to be, at least, moderate, rising to a higher risk if Mr Curoglu relapses into using illicit drugs as he has on a number of occasions.
The primary consideration relating to family violence has been found to weigh against revocation, but not determinatively. The primary consideration relating to the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of Mr Curoglu, in large part because he came to Australia when very young and has lived here for the lion’s share of his life to date. The primary consideration relating to the best interests of minor children in Australia weighs relatively heavily in favour of the Applicant, but not in an undiluted way, because what positive contribution the Applicant can make to the two minor children relevant in this assessment pivots on his ability to stay away from drug-taking. The primary consideration relating to the expectations of the Australian community weighs against the Applicant.
In terms of the other considerations, those relating to the legal consequences of the decision, the impact on victims and impact on Australian business interests all weigh neutrally in this assessment. The other consideration relating to the extent of impediments if removed weighs somewhat in his favour.
In weighing all the applicable considerations individually and cumulatively, the Tribunal finds, in this case, that the weight of the two primary considerations relating to the protection of the Australian community and the expectations of that community are determinative. In particular, the Applicant has had extensive engagement with the Department, including two previous occasions where his visa was flagged for cancellation. He made representations and promises to reform his conduct. In both cases the cancellation was not proceeded with, but he was formally warned about future conduct jeopardizing his migration status. In spite of these warnings and assurances, he went on to offend on many occasions.
The Tribunal is not satisfied that there is another reason under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa. Therefore the reviewable decision was correct in law and, where a discretion was available to be exercised, the decision not to exercise it was the preferable decision.
121.
122. I certify that the preceding 120 (One-hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
123.
................................. [SGD].......................................
Associate
Dated: 23 January 2023
Date of hearing:
16 and 17 January 2023
Applicant:
Tuncay Curoglu
Counsel for the Applicant
Solicitors for the Applicant
Mr Peter Berg
South West Migration & Legal Services
Advocate for the Respondent:
Mr Matthew Burnham
Solicitors for the Respondent:
Sparke Helmore
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