DGPZ and Minister for Home Affairs (Migration)
[2018] AATA 469
•13 March 2018
DGPZ and Minister for Home Affairs (Migration) [2018] AATA 469 (13 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/7545
Re:DGPZ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member Mr A. Maryniak, QC
Date:13 March 2018
Place:Melbourne
The Tribunal affirms the decision under review.
.....[sgd]...................................................................
Member Mr A. Maryniak, QC
MIGRATION – request for revocation of mandatory cancellation of Applicant’s visa – Applicant has substantial criminal record and does not pass character test – discretion to revoke mandatory cancellation – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of Australian community – other considerations – decision under review affirmed
Legislation
Migration Act 1958: ss 5, 29, 30, 31, 36, 45, 45AA, 46, 47, 65, 84, 86, 499, 501CA
Migration Regulations 1994: reg 2.52
Cases
Alexandra Private GeriatricHospital Pty Ltd v Blewett(1984) 2 FCR 368; 56 ALR 265
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [28]
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337
Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
Re Smith and Minister for Immigration and Border Protection [2013] AATA 687Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
Secondary Materials
Ministerial Direction No.65
REASONS FOR DECISION
Member Mr A. Maryniak, QC
13 March 2018
On 3 February 2017, a delegate of the then Minister for Immigration and Border Protection (Minister) cancelled DGPZ’s Class BB Subclass 155 Five Year Resident Return Visa under s. 501(3A) of the Migration Act 1958 (the Act).
On 14 December 2017, a delegate of the Minister decided pursuant to s 501CA(4) of the Act not to revoke the cancellation decision. DGPZ was notified of the decision by the Department of Immigration and Border Protection (Department) on or about 18 December 2017. On 19 December 2017 DGPZ applied for review of the 14 December Minister’s decision. There is no dispute between the parties that DGPZ had not passed the character test because he had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c) of the Act, due to him having been sentenced to a term of imprisonment of 12 months or more and I find accordingly.
DGPZ was born in Samsun, Turkey on 15 July 1965 and is a Turkish citizen. He first arrived in Australia in 1969 when he was around 4 years old and obtained permanent residence. He has applied for and been refused Australian citizenship on three occasions.
In summary, I find that the risk of DGPZ re-offending, and so the risk of further harm to the Australian community by his re-offending, is moderate and unacceptable, and that the Australian community would expect his visa cancellation not to be revoked. This is due to his extensive criminal history since 1980, despite the use of illicit drugs being associated with a significant part of his criminal behaviour. Most notably DGPZ was convicted of intentionally causing injury in 2015 to his then partner, an intellectually disabled woman, inflicting some 100 injuries over a period of 5 hours.
LEGISLATIVE BACKGROUND
Visas
Subject to the terms of the Act, the Minister may grant a non-citizen[1] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[2] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[3] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Act. Regulations may specify the criteria that must be met for a visa of a specified class[4] as do specific provisions of the Act.[5]
[1] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[2] Migration Act; ss 5 and 29(1).
[3] Migration Act; s 30.
[4] Migration Act; s 31(3).
[5] See, for example, s 36 of the Act in relation to protection visas.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of the visa if an applicant made representations within the relevant time period provided for in the Migration Regulations 1994 (28 days in accordance with reg 2.52) and the decision-maker determines that the applicant passes the “character test”, or, as provided for under subsection 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked.
Section 501(6)(a) of the Act states that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more. DGPZ has been sentenced to a term of imprisonment totalling more than 12 months for the offence of use of false document to prejudice other.
Section 501CA then relevant provides that:
“(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.”
The sole question before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked. Relevantly, North ACJ stated in Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337 at 345:
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…”
Discretionary decision
Section 501CA(4) is drafted in discretionary terms in that the Minister “may” revoke the original decision. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made, as well as from its object and underlying policy.[6]
[6]Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed.
In the case of a discretionary decision of the sort provided for in s 501CA(4), s 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[7] Those directions must not be inconsistent with the Act or the Regulations made under it.[8] The person or body to whom the directions are given must comply with them.[9] The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA(4). It is known as “Direction No. 65”.
[7] Migration Act; s 499(1).
[8] Migration Act; s 499(2).
[9] Migration Act; s 499(2A).
Direction No. 65: general principles
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[10]
[10] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Differing considerations are prescribed in each Part. Regardless of those differences, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker when considering whether to cancel a visa, refuse an application for a visa or when considering whether the mandatory cancellation of a visa will be revoked. Decision-makers must take into account the primary and other considerations relevant to the individual case.[11] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[11] Direction No. 65, subparagraph 8(1).
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[12] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against refusal…or whether or not to revoke a mandatory cancellation of a visa…”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[13]
[12] Direction No. 65, subparagraph 8(2).
[13] Direction No. 65 at subparagraphs 8(4) and 8(5).
Paragraph 7 of Direction No. 65 does not formulate a question. Instead, the question is formulated by the relevant provision of the Act. In the case of a visa refusal or cancellation under s 501, it is whether the visa should be refused or cancelled or, as the question is framed in paragraph 7(a), “… whether a non-citizen should forfeit the privilege of being granted, or of continuing to hold, a visa”. Where a visa has been the subject of mandatory cancellation under s 501(3A), the question is determined by s 501CA, i.e. should the decision to cancel the visa be revoked?
In answering these questions, regard must be had to the considerations set in Part A, B or C as relevant. Those considerations that are determined to be primary considerations are identified. Other considerations must also be taken into account. Although other considerations are listed in paragraphs 10, 12 and 14 in relation to Part A, B or C as appropriate, each of those paragraphs makes it clear that a decision-maker is not limited to those other considerations and may consider any that are relevant. Determining other considerations that are relevant brings one back to the subject matter of the Act, its object and underlying policy.
Direction No. 65: Part C and revocation requests
Part C of Direction No. 65 applies to a decision whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa. I will expand on these later in these reasons but, in summary, the primary considerations are threefold:
“a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.”[14]
The secondary criteria:
“… include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on victims;
d)Extent of impediments if removed.”[15]
[14] Direction No. 65, subparagraph 13.1(2).
[15] Direction No. 65, paragraph 14.
Direction No. 65 expands upon each of these criteria and I will return to it later in these reasons.
BACKGROUND
I set out below the facts that are either not in dispute or that I have found after hearing DGPZ’s oral evidence and that of his sister, brother in law, daughter and Scott Nelson, mental health support worker and Dr Tran Nguyen, psychiatrist; together with regard to all the written evidence, comprising the G and Supplementary G Documents and tendered exhibits.
Life in Australia and Turkey
DGPZ was born in Turkey, to Turkish parents and arrived in Australia in 1969, aged around 4 years old. Once in Australia DGPZ and his parents were allocated government housing in Fitzroy.
DGPZ had a difficult childhood due to a violent and abusive father. He attended Collingwood High School until Year 9. About this time DGPZ started experimenting and then using illicit drugs at various times, including chroming, cannabis, heroin and methamphetamine.
From about 1982 to 1984 DGPZ lived in Turkey and then returned to Australia. In May 1989 DGPZ returned to Turkey, at his father’s insistence, and completed compulsory National Service with the military. DGPZ was sexually abused by a soldier during this time, he then ran away but was captured. He was subjected to a psychological assessment which resulted in a finding that he was competent to complete his service.[16]
[16] Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 12 February 2018, [15]
After completing his military service and spending further years in Turkey, DGPZ married a Turkish citizen on 4 February 1994 in Turkey. That marriage was arranged by DGPZ’s parents who were in Turkey at that time.
On 7 April 1994 DGPZ returned to Australia and his wife followed. Their daughter was born on 1 August 1994 and their son was born on 28 August 1995. DGPZ appears to have been on a disability support pension since at least the date of his son’s birth[17] and subsequently on a carer’s pension. He has had some intermittent work over the years, employed in factory work, cleaning, fruit picking and more recently fork lift driving. His evidence was that prior to serving his most recent prison sentence in 2016/17 he was working full time hours (as a casual employee) yet still in receipt of a partial (at least) pension.
[17] Exhibit A1, document 4, p 2; Exhibit A1, document 9, p 4.
DGPZ’s life has included some history of mental illness. He had a psychiatric admission to Mildura Hospital in 1999 and a further involuntary psychiatric admission to St Vincent’s Hospital in 2002. He also appeared to have memory problems whilst giving evidence during this hearing. However, he has stabilised mentally for a significant period recently due to a disciplined approach to taking his medication. Whilst I accept that such medical treatment is not necessarily “set and forget”, it is apparent that DGPZ is mentally fit on his current medication regime and has been so for over a year.
Convictions in Australia
Since 1980 when DGPZ was aged 15, he has been charged and convicted of a high number of offences. He has had 18 terms of imprisonment.[18] I set out the offences below together with details of his return visits to Turkey. I note he does not appear to have committed any offences during his three return visits to Turkey.
[18] Supplementary G Documents, p. 81.
Date
15 June 1965
The Applicant was born in Samsun, Turkey. He is now 52 years old.
September 1969
The Applicant arrived in Australia, aged 4 (G2, 247).
23 July 1980
The Applicant was convicted of:
· Burglary; and
· Theft
He was released on probation for 52 weeks (SG4, 237-238).
15 September 1980
The Applicant was convicted of:
· Burglary; and
· Theft
He was released on probation for 52 weeks (SG4, 239-240)
27 May 1982
The Applicant was found to have committed:
· Assault by kicking; and
· Unlawful assault
He was fined a total of $150 without conviction (G2, 38).
20 July 1982
The Applicant was found to have committed Theft of a motor vehicle.
Without conviction, he was fined $150 (G2, 38).
27 October 1982
The Applicant departs Australia to Turkey (G2, 244).
22 August 1984
The Applicant returns to Australia from Turkey (G2, 243).
13 May 1985
The Applicant was found to have committed:
· Burglary;
· Theft; and
· 2 charges of Theft from a motor vehicle.
He was released on probation for 2 years (G2, 38).
9 October 1985
The Applicant was found to have committed:
· Theft of motor car;
· Handling of stolen goods;
· State false name; and
· Drive in breach of permit condition.
Following an appeal, he was sentenced to a total fine of $400 and his licences cancelled and disqualified for 12 months (G9, 411-412).
29 January 1986
The Applicant was found to have committed:
· 2 charges of Burglary;
· Possess drug of dependence (not named);
· Drive in breach of permit condition; and
· Failing to display L Plates.
For each charge of Burglary he was sentenced to 3 months of youth training centre. For the possession offence he was fined $100 (G2, 37).
For the other offences he was fined $80 in total and his permits cancelled and disqualified for 3 months (G9, 410-411).
26 March 1986
The Applicant was convicted of:
· Theft of a motor vehicle;
· 2 charges of Handle/receive/retention stolen goods; and
· State false name and address.
For the first offence he was sentenced to 6 months’ imprisonment and was disqualified from obtaining a licence for 12 months. For the offences involving stolen goods he was sentenced to 3 months’ imprisonment and 1 month’ imprisonment. For the last offence he was sentenced to 7 days’ imprisonment (G2, 37).
17 April 1986
The Applicant was convicted of:
· 3 charges of Attempt theft;
· 2 charges of Theft; and
· Unlicensed driving.
He was sentenced to 6 months’ imprisonment on each theft related charge to be served concurrently. For the last charge he was sentenced to 7 days’ imprisonment, to be served concurrently (G2, 37).
22 May 1986
The Applicant was convicted of:
· 6 charges of Theft from motor vehicle; and
· Drive while disqualified.
He was sentenced to 1 month’ imprisonment on each charge (3 to be served concurrently with the sentence he was already serving, 3 additional months to be served concurrently). For the last charge he was sentenced to 14 days’ imprisonment, to be served concurrently (G2, 37).
23 June 1986
The Applicant was convicted for Loiter with intent and was sentenced to 1 month’ imprisonment (G2, 37).
30 July 1986
The Applicant was found to have committed:
· Use Indian hemp;
· Drive in breach of permit condition;
· Failing to display L Plates; and
· Undue noise.
For the first offence he was fined $100 (G2, 37). For the other offences he was fined a total of $350 (G9, 410).
26 November 1986
The Applicant was convicted for:
· Use amphetamine; and
· Drive whilst disqualified.
For the first offence he was sentenced to 14 days’ imprisonment and for the second offence he was sentenced to 7 days’ imprisonment (G2, 37).
4 March 1988
The Applicant was convicted of:
· 3 charges of Theft of a motor vehicle;
· 2 charges of Burglary;
· Attempted burglary;
· Theft;
· Use other drug of dependence;
· 3 charges of Interfere with motor vehicle;
· Loiter with intent;
· Unlicensed driving;
· Unlawful possession; and
· Loiter with intent.
For the first 6 charges he was sentenced to 6 months’ imprisonment on each charge to be served concurrently.
For the next 6 charges he was sentenced to 14 days’ imprisonment on each charge to be served concurrently.
For the last 2 charges he was sentenced to 1 month’ imprisonment to be served concurrently (G2, 36-37).
21 September 1988
The Applicant was convicted of:
· Criminal damage (intent damage/destroy)
· 2 charges of Burglary;
· Burglary;
· Theft;
· 2 charges of Handle/receive/retention stolen goods;
· Go equipped to steal/cheat
· 2 charges of Fail to answer bail granted;
· Theft from motor vehicle;
· Attempted theft from motor vehicle;
· Attempted burglary;
· Theft of a motor vehicle;
· Unlawful assault;
· Unlicensed driving;
· Theft;
· 2 charges of Possess drug of dependence (not named);
· 2 charges of Use other drug of dependence; and
· Go equipped to steal/cheat
For the first 3 charges he was sentenced to 6 months’ imprisonment on each charge to be served concurrently.
For the next 11 charges he was sentenced to 3 months’ imprisonment on each charge to be served concurrently.
For the next 7 charges he was sentenced to 1 month’ imprisonment on each charge to be served concurrently.
For the last offence a conviction was recorded and he was discharged (G2, 36).
24 May 1989
The Applicant departs Australia to Turkey (G2, 242).
4 February 1994
The Applicant marries Ms Selda Sarioglu in Samsun, Turkey (see birth certificates filed by Applicant).
7 April 1994
The Applicant returns to Australia from Turkey (G2, 241).
24 June 1994
The Applicant was convicted of:
· 2 charges of Fail to answer bail granted;
· Go equipped to steal/cheat;
· Obtain property by deception;
· Burglary; and
· Theft.
For the first 3 charges he was sentenced to 1 month’ imprisonment on each charge, to be served concurrently.
For the last 3 charges he was sentenced to 6 months’ imprisonment on each charge, to be served concurrently.
The sentences were suspended for 24 months (G2, 35-36).
30 July 1996
The Applicant was convicted of:
· Unlicensed driving;
· Fail to stop/assist/give name & address; and
· Theft.
For the first offence he was sentenced to 6 weeks’ imprisonment.
For the second offence he was sentenced to 7 days’ imprisonment, to be served concurrently.
For the last offence he was fined $500 (G2, 35).
20 December 1996
The Applicant was convicted of:
· Robbery/assault with intent to rob;
· Possess prescribed weapon; and
· Breaches of his 24 June 1994 suspended sentence;
For the first offence he was sentenced to 7 months’ imprisonment. For the second offence he was sentenced to 7 days’ imprisonment, to be served concurrently.
For the breaches of his 24 June 1994 suspended sentence, his 1994 sentence was reinstated (G2, 35).
24 December 1999
The Applicant was found to have committed Exceeding the speed limit by 45KM/H or more but less than 50KM/H.
He was fined $300, his car license was suspended for 4 months and he was disqualified from obtaining a cycle licence for 4 months (G9, 408).
19 June 2000
The Applicant was found to have committed:
· Driving whilst disqualified;
· Driving unregistered motor car; and
· Driving at a speed exceeding the speed limit.
He was fined an aggregate fine of $1000 and was disqualified from obtaining a car or cycle licence for a total of 12 months (G9, 407-408).
3 August 2000
The Applicant was found to have committed:
· Driving unregistered motor car; and
· Driving while authorization is suspended.
He was fined an aggregate fine of $1200 and his car and cycle licences were cancelled and disqualified for 3 months (G9, 407).
12 September 2000
The Applicant was found to have committed Driving while authorization is suspended.
He was fined $500 and his licence was cancelled and disqualified for 6 months (G9, 407).
9 January 2001
The Applicant was found to have committed:
· 2 charges of Driving while authorization is suspended;
· 2 charges of Driving unregistered motor car;
· Fraudulently use reg label/plate; and
· Fraudulently use number plate.
He was fined an aggregate fine of $1200 and his car and cycle licences were cancelled and disqualified for 24 months (G9, 406-407).
4 July 2001
The Applicant was found to have committed:
· Possess controlled weapon without excuse;
· Driving in a dangerous manner;
· 2 charges of Leaving the scene of an accident;
· Drive without L Plates displayed; and
· Learner drive without exp driver.
For the first offence he was fined $300 with conviction (G2, 35). For the other offences he was fined an aggregate fine of $1200 (G9, 405-406).
27 September 2001
The Applicant was convicted of:
· Theft from motor vehicle;
· 4 charges of Attempted theft from motor vehicle;
· Theft of bicycle;
· 2 charges of unlawful assault;
· Possess property being proceeds of crime;
· Theft from shop (shopsteal);
· Possess property being proceeds of crime;
· 3 charges of Go equipped to steal/cheat;
· Possess controlled weapon without excuse;
· Aggravated burglary - person present.
For the first six offences he was sentenced to 5 months’ imprisonment to be served by way of an intensive correction order.
For the seventh offence he was sentenced to 5 months’ imprisonment to be served concurrently by way of an intensive correction order.
He was sentenced to 5 months’ imprisonment to be served concurrently by way of an intensive correction order on each of the last 5 charges (G2, 34-34).
4 September 2002
The Applicant was convicted of:
· 4 charges of Possess controlled weapon without excuse;
· Theft; and
· Go equipped to steal/cheat.
For the first offence he was sentenced to an aggregate of 1 month’ imprisonment.
For the other offences he was sentenced to an aggregate of 21 days’ imprisonment, to be served concurrently (G2, 34).
8 November 2002
It appears that the County Court upheld the Applicant's convictions and sentences from 4 September 2002.
In addition, he was convicted of Breach of the intensive correction order of 27 September 2001.
The Court cancelled the intensive correction order and ordered the Applicant to serve 145 days of imprisonment concurrently (G2, 34).
7 July 2004
The Applicant was convicted of Burglary.
He was sentenced to 5 months’ imprisonment to be served concurrently by way of an intensive correction order.
7 October 2004
The Applicant was found to have committed Careless driving. He was fined $100 and his car and bike licences were suspended for 7 days (G9, 405).
4 November 2004
The Applicant gave an undertaking to the court to be of good behaviour for 6 months and a number of traffic offences were adjourned without conviction (G9, 403-404).
12 July 2006
The Applicant was found to have committed 2 charges of Drive whilst authorisation suspended.
He was sentenced to an aggregate of 1 month’ imprisonment to be served concurrently by way of an intensive correction order.
20 September 2006
The Applicant was convicted of Drive whilst authorisation suspended.
He was sentenced to 2 months’ imprisonment, with the sentence suspended for 12 months. He was also suspended from driving for 12 months.
24 November 2006
The Applicant was convicted of Drive whilst authorisation suspended.
He was sentenced to 2 months’ imprisonment, with the sentence suspended for 12 months. His licence was cancelled and disqualified for 12 months.
6 June 2007 –
12 August 2007
The Applicant spends time in Turkey (G2, 241).
12 September 2007
The Applicant was convicted of:
· Drive whilst disqualified; and
· Breach of the 24 November 2016 suspended sentence.
For the first offence he was sentenced to 1 month’ imprisonment to be served concurrently.
The Suspended sentence was wholly restored, and he was ordered to serve 2 months’ imprisonment.
6 December 2007
The Applicant was convicted of Driving whilst disqualified. He was sentenced to imprisonment for 1 month and his licence was cancelled and disqualified for 12 months (G9, 401).
17 July 2008
The Applicant was convicted of:
· Use threatening words in public place; and
· Possess controlled weapon without excuse.
A conviction was recorded for both offences and the matter was adjourned to 12 February 2009.
15 August 2008
The Applicant was convicted of Drive whilst disqualified.
He was sentenced to 1 month’ imprisonment, with the sentence suspended for 12 months. His licence was cancelled and disqualified for 12 months.
16 September 2008
The Applicant was convicted of Theft from shop (shopsteal).
A conviction was recorded and the matter was adjourned to 13 November 2008.
25 June 2009
The Applicant was convicted of:
· Theft from motor vehicle;
· Possess controlled weapon without excuse; and
· Possess dangerous article in public place.
He was sentenced to imprisonment for 7 days with the sentence suspended with an operational period of 3 months.
20 January 2010
The Applicant was convicted of:
· Theft from motor vehicle;
· 2 charges of Attempted theft from motor vehicle;
· Go equipped to steal/cheat;
· Possess dangerous article in public place;
· Possess controlled weapon without excuse;
· Drive whilst authorisation suspended; and
· Breaches of the 25 June 2009 sentence.
For each of the first 5 charges he was sentenced to 35 days’ imprisonment, to be served concurrently. For the possession of controlled weapon offence he was sentenced to a further 35 days’ imprisonment to be served cumulatively.
For the driving offence he was sentenced for 30 days’ imprisonment to be served concurrently, and his licence was cancelled and disqualified for 6 months.
For the breaches of the 2009 sentence, the sentence was restored and he was ordered to serve 7 days’ imprisonment.
16 March 2010
The Applicant was convicted of Use a false document to prejudice other.
He was sentenced to 16 months’ imprisonment, to be served concurrently with his existing sentence.
1 April 2010
The Applicant was convicted of:
· Possess open liquor container - rail vehicle;
· Fail produce valid ticket - passenger vehicle;
· False name/address - transport act;
· Refuse/fail to comply with request;
· Drink liquor in rail vehicle;
· Behave in obscene matter on rail vehicle;
· Deposit litter on rail premises;
· 2 charges of Use offensive language on rail premises; and
· Act in way likely interfere comfort other.
He was fined an aggregate of $500.
11 May 2012
The Applicant committed the offence Unlicensed driving.
The finding was made on 26 August 2016 (SG6, 469).
25 May 2012
The Applicant committed the offence Unlicensed driving.
The finding was made on 26 August 2016 (SG6, 475).
4 July 2012
The Applicant committed the offence Possess prohibited weapon without exemption/approval.
The conviction was made on 17 September 2012 (SG6, 578).
26 August 2012
Police records indicate police called in relation to incident between the Applicant and his mother (SG5, 314).
27 August 2012
The Applicant committed the offence Unlawful assault.
The conviction was made on 14 January 2013 (SG6, 579).
23 November 2012
The Applicant committed the offence Handle/receive/retention stolen goods.
The conviction was made on 18 December 2013 (SG8, 616).
20 March 2013
The Applicant committed the offence Contravene family violence final intervention order.
The conviction was made on 18 December 2013 (SG8, 618).
20-21 March 2013
Police records indicate police called in relation to incident between the Applicant and his mother (SG5, 308-309).
26 March 2013
The Applicant committed the offence Fail to obey traffic lights.
The conviction was made on 26 August 2016 (SG6, 473).
23 May 2013
The Applicant committed:
· two charges of Attempted burglary; and
· Go equipped to steal/cheat.
The convictions were made on 17 April 2014 (SG8, 620-622).
20 September 2013
The Applicant committed:
· Theft;
· Go equipped to steal/cheat; and
· Unlawful assault.
The convictions were made on 17 April 2014 (SG8, 623-625).
16 April 2014
The Applicant committed the offence Carry dangerous article in public place.
The conviction was made on 17 September 2014 (SG6, 586).
12 May 2014
The Applicant committed the offence Fail to obey traffic lights.
The finding was made on 26 August 2016 (SG6, 483).
5 August 2014
The Applicant committed the offence Possess weapon without excuse.
The finding was made on 26 August 2016 (SG6, 482).
4 July 2015
The Applicant commits the assault on Ms Spano (he was convicted for Intentionally cause injury on 12 July 2016 (G2, 47)).
He was sentenced on 12 July 2016 to 8 months imprisonment and a community corrections order for 15 months upon release (G2, 56 [44]).
3 September 2015
The Applicant committed:
· Contravene a conduct condition of bail; and
· Contravene family violence intervention order - intention harm/fear.
The convictions were made on 5 November 2015 (SG6, 591-594).
21 October 2015
The Applicant committed:
· Contravene a conduct condition of bail; and
· Contravene family violence intervention order.
The convictions were made on 5 November 2015, and he was sentenced to a 12 month community corrections order (SG6, 587-590).
9 November 2015
The Applicant committed:
· Contravene a conduct condition of bail; and
· Contravene family violence intervention order.
The convictions were made on 22 February 2016 (SG6, 458-459).
13 December 2015
The Applicant committed:
· Contravene a conduct condition of bail; and
· Contravene family violence intervention order.
The convictions were made on 22 February 2016 (SG6, 460-461).
8 February 2016
The Applicant committed:
· Community Corrections Order breach/contravention on original charge; and
· Contravene Community Correction Order.
The findings were made on 22 February 2016. In respect of the Community Corrections Order breach/contravention on original charge, the original order was confirmed, and in respect of the Contravene Community Correction Order, the matter was proven without penalty (SG6, 595-597).
Sentencing remarks of Judge Howie re false document offence
DGPZ’s longest sentence was for 16 months imprisonment for committing the offence of “use a false document to prejudice other” in the context of providing a false report to a Magistrates’ Court sentencing hearing.
On 16 March 2010, in sentencing DGPZ for this offence in the County Court Judge Howie said of DGP at [4]:
“[4] This was foolish and dishonest conduct which deceived the court by a person with convictions for dishonesty over more than 20 years. It was conduct that strikes at the heart of the administration of justice. Courts depend upon the integrity of the information placed before them. It makes this a particularly serious offence and denunciation and general deterrence are important purposes in determining an appropriate sentence as well as just punishment.”
Judge Howie added:
“[7] Dr Walton considered you to be of normal intelligence with no significant cognitive deficit. Despite his uncertainty as to the reliability of the medical history that you provided, Dr Walton considered it likely that you had a drug-induced psychosis which was chronic because of your on-going drug and alcohol abuse. He thought that your behaviour “might be seen as a product of a rather drug-addled and psychiatrically disturbed state of mind.”
[8]Your explanation for your behaviour was that on 11 September 2007 you consumed half a gram of amphetamine and half a gram of heroin and three of four cans of alcohol in the form of a mixed Bourbon drink. In the evening you met Daniel Taylor, and he suggested that he would provide a report to assist you to obtain a more lenient sentence. You agreed and the following morning he provided the false report.
[9]There is no evidence that at the time of the offending, on 12 September 2007, your mental functioning was impaired. There is no basis for considering your moral culpability for the offending to be reduced. Although for some years you have a drug-induced psychotic condition, you were receiving treatment for that condition from Dr Bond with fortnightly injections of anti-psychotic medication.
[10]There is no evidence of the nature and severity of the symptoms of your condition at the time of the offence, or the effect of your condition on your mental capacity. In those circumstances, moderation of general deterrence cannot sensibly be more than of a minor nature.
[11]You are 44 years of age, your date of birth being 15 July 1965. You are the second of three children of Turkish immigrants who came to Australia when you were three and a half. Your parents were factory workers. You grew up in Fitzroy and attended Collingwood High School until part-way through year 9. I am told that your father was abusive and violent.
[12]The abuse of drugs has had a destructive impact on you. It began with smoking marijuana at the age of 15 and moved then to amphetamine and heroin to which you became addicted. You have a substantial history of criminal offending, including numerous convictions for dishonesty offences with 20 court appears between April 1985 when you were 19 years of age, and November 2006.
[13]The pattern of drug abuse and criminal offending has continued throughout your adult life. In your 20s you had some employment in a factory. In your late 20s you travelled to Turkey and married. There are two children of the marriage, a daughter aged 15 and a son aged 14. You and your wife are separated.
[14]You have family support. Your sister, [REDACTED] gave evidence that when you returned to Turkey you were a changed man, but you reverted to your old ways when you returned to Australia. She said that it is your wish and intention to return to Turkey with your son. Unless you do that it seems that your prospects of rehabilitation are not good. However, having regard to your history, it is not a proper basis to accede to Mr Ginsbourg’s plea for a partially suspended sentence.”
It is apparent that at least at March 2010 it was DGPZ’s “wish and intention to return to Turkey” and that DGPZ’s two month visit to Turkey in 2007 had been beneficial as he had returned a “changed man”.
Since 1980 to 2015, of the approximate 28 years DGPZ had lived in Australia (save for the approximate seven years living in Turkey), DGPZ has committed over 150 offences in Australia.
In 2015 DGPZ committed his most violent offence to date, unlawful assault. In sentencing in the County Court on 12 July 2016 Judge Hicks stated:
“[4] During the incident you, at stages, repeatedly struck your victim to her feet and lower legs with a three-pronged handheld garden fork and you demanded information about the victims [sic] relationship with the neighbour. You [sic] actions caused a series of shallow puncture wounds to your victim.
[5]In a second bedroom, your assault continued using a large yellow-handled screwdriver to strike your victim and puncture her skin. You stopped your attack but then continued it, straddling your victim and putting your hands around her throat and shaking her. You also use a pillow to attempt to suffocate her and at one stage you used a large kitchen knife to threaten her.
…
[8]I accept, during your interview with police, you did make some admissions to having assaulted your victim. On other occasions, you said to police you could not remember how you caused some of her injuries. As a result of her injuries, your victim as [sic] conveyed by ambulance to the Royal Melbourne Hospital. She was treated in the emergency department. On 5 July 2015, she underwent surgery at the hospital, that included surgical debridement and closure stab sounds, arthroscopic washout of both knees, arthrotomy - that is the surgical opening of the joint to the right mid-foot and left (indistinct).
[9]Suffering, her injuries were assessed by a forensic medical officer at the hospital and your victim was found to have over 100 separate injuries. Many injuries had the characteristics of being puncture wounds caused by a long thin implement. The injuries included the potential to be life-threatening although, of course, it must always be borne in mind that the charge before me is one of intentionally causing injury only. Your victim’s injuries require extensive hospital treatment including surgery and your victim as [sic] discharged from hospital on 14 July 2015.
…
[13]A large number of reports were tendered before me on your behalf detailing long-term mental health issues together with long-term drug issues. I note, in his report dated 27 August 2015, Mr Matthew Kakamoso [sic], of the Neighbourhood Justice Centre, details some of your long-term drug use.
[14]At 15 years of age, you started to use inhalants. You had inhaled glue and aerosol cans almost daily. You last reported using inhalants some ten to 15 years ago. As to cannabis, you commenced abusing cannabis from the age of 16 and reported that for the next 20 or 30 years you would smoke almost daily, up to several grams per day. You reported last smoking cannabis some six years ago. As to heroin, you commenced using heroin at 18 years of age and reported you were using it on and off until the age of approximately 40. During this period of time, you stated you withdraw from heroin over a dozen times but then got back onto it.
[15]You were involved in criminal activities to support your ongoing drug addiction. You reported last using heroin approximately seven years ago. As to ice, as to crystal methylamphetamine, ice, you commenced that when you were 40 years of age and had been using it on and off up until the period of this offence.
[16]As a result, no doubt, of your drug use, you have had a long-term involvement with the state’s mental health facilities. Whilst living in Mildura, you were admitted as inpatient on some two occasions to hospital and on some three occasions at St Vincent’s Mental Health Service in Melbourne. You have been admitted as an inpatient at St Vincent’s Hospital psychiatric unit and had experienced feelings of paranoia. You have a history of severe depressive episodes with negative symptoms and at times have had a history of self-harm.
[17]I accept that your early childhood life was not easy for you and you have experienced family violence at the hands of your father. What is remarkable, in my opinion, and accepted on the material is the significant efforts and success of efforts that you have now undertaken to improve your stability and mental health issues since this offence.
[18]Subsequent to the matters before me, you had another mental health relapse and were admitted to St Vincent’s Mental Health Service on 22 February 2016. During your admission, you were given the diagnosis of schizoaffective disorder. You are then put on several programs. I note in the report from St Vincent’s Hospital dated 2 July 2016 that now have started to fully engage in several programs such as prevention and recovery programs to help you and have you develop strategies to manage and deescalate your anxiety. The report notes that you have developed independent living skills and you contributed to attending counselling and providing thrice, weekly, your own drug screens.
…
[25]Overall, I am prepared to say that despite your lengthy criminal history and long-standing drug abuse, there does seem, since this event involving your partner, that you are making real changes to your life.
[26]Four, your prospects of rehabilitation. In my opinion, your prospects of rehabilitation though, must be guarded. Dealing anyone with such a long-standing abuse and mental health issues is a difficult task to assess as to what the future holds for you. I also note that subsequent to the matter before me, on 5 November 2015, that the Collingwood Neighbourhood Justice Centre Magistrates’ Court, you were convicted of contravening bail conditions and contravening an intervention order taken out by police on behalf of the victim.”
CONSIDERATION
Primary considerations
Part C begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 13 of Direction No. 65.
A. Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“1. When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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 of the Australian community...
2.Decision-makers should also give consideration 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.”[19]
[19] Direction No. 65: paragraph 13.1.
A.1 The nature and seriousness of DGPZ’s conduct to date
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a)The principle that without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);…”
In respect of many of the offences DGPZ was convicted of, he was fined rather than sentenced to a term of imprisonment. The fines might appear relatively low by today’s values but were not so insignificant when viewed in the context of wages and standards at the time.[20] What is of concern is the frequency of his convictions. I accept that he had illicit drug addiction and alcohol problems, and the evidence supports this.
[20]Taking as an example the monetary value of the $100 fine imposed in 1979 which would have been $455.80 in 2016 according to the Inflation Calculator prepared by the Reserve Bank of Australia: >
However the sheer number of convictions and frequency of them, together with the variety of convictions suggests that DGPZ appears to have thought himself above the law, and to have had little regard for the law in Australia.
Several of DGPZ’s offences have involved violence and such violent offences increased in frequency during 2013 to 2015, being:
(a)assault by kicking and unlawful assault in 1982;
(b)unlawful assault in 1988;
(c)robbery/assault with intent to rob in 1996;
(d)two charges of unlawful assault in 2001;
(e)unlawful assault in 2013;
(f)unlawful assault in 2014; and
(g)intentionally cause injury in 2015 (convicted 2016).
Further offences have involved an aspect of violence including possession of weapons, aggravated burglary, numerous contraventions of family violence orders. I also note the August 2012 incident involving DGPZ and his elderly mother where a pot of water was thrown at his mother (or in mid-air as he claimed in his oral evidence) which caused DGPZ’s mother to flee him and her home in fear of her safety.[21] There is a further incident where DGPZ pulled his elderly mother’s hair multiple times.[22]
[21] Supplementary G Documents, SG5, p 308.
[22] Supplementary G Documents, SG5, p 314.
In the premises I find that DGPZ’s criminal offending to date is serious, involves violence and must be viewed very seriously, and in one instance has involved a violent crime against a vulnerable member of the community, his intellectually disabled partner.
I further find that DGPZ has provided false or misleading information to the Department including in representations dated 27 February 2017 stating he had not been back to Turkey since 1969[23] and, in his third and most recent application for Australian citizenship, in a statutory declaration sworn 4 October 2006.[24]
[23] Exhibit R3.
[24] G Documents, G2, p 156 at 160.
I am satisfied that DGPZ’s conduct whilst in Australia must be regarded as serious and as indicative of his becoming engaged in more serious offending as the years have gone by.
A.2Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must 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 the further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
DGPZ’s Counsel, Mr Guo, put respectable arguments in support of his submissions that DGPZ would no longer be a risk to the Australian community, once released back into it.
Mr Guo submitted in summary:
(a)DGPZ has been ‘clean’ from illicit drugs since around the start of his Community Corrections Order on 5 November 2015, during his time in prison, and then in detention, continuing to date.
(b)DGPZ has shown himself to be more disciplined during this recent period with his approach to rehabilitation, treatments and medication regimes and such discipline will continue with the continuation of his Community Correction Order, once released back into the community;
(c)DGPZ is highly motivated and has built up strong relationships with those assisting him;
(d)DGPZ will be offered employment of 15 hours per week at the company where his brother-in-law works;
(e)If intensive mental support services including the MIND program are put in place and the 24/7 family monitoring proffered occurs, such support will prevent DGPZ from re-offending;
(f)DGPZ, since injuring his ex-partner and the death of his mother, is genuinely motivated not to return to illicit drug use or to re-offend.
I have carefully considered all of Mr Guo’s submissions. However, I find that the evidence before the Tribunal does not mean the risk of re-offending is any less than moderate. The difficulty is that the submission as to low risk is dependent upon:
(a)DGPZ being accepted into programs such as MIND, which is now accessed through the NDIS; and
(b)DGPZ being constantly monitored by his sister, brother-in-law and their three children.
It is proposed that DGPZ reside in the second lounge room, separated by a curtain or a makeshift wall, of his sister’s family home. It is then proposed that DGPZ be constantly monitored by his sister and her family in circumstances where that younger sister (referred to by DGPZ as “Big Sis” – because she has always been the more responsible sibling) is now looking to lean on DGPZ as an older brother. In evidence, DGPZ’s sister indicated that since the death of her mother she is weaker and “doesn’t want to be the Big Sis anymore”.
Whilst the proposed efforts to assist DGPZ proffered by his sister and her family are truly admirable in the extreme, particularly in light of his criminal offending and conduct in Australia to date, I find on the evidence that such a proposal is unrealistic and would not sufficiently diminish further risk to the Australian community.
Equally, the fact that the MIND program is now only accessible through the NDIS further points to the real difficulty DGPZ will face in gaining access to such a program, said to be important for his further rehabilitation.
In summary, I am satisfied that the risk of DGPZ committing further serious offences of the sort he has committed in the past is moderate and therefore unacceptable.
B. Best interests of minor children in Australia affected by the decision
There are no minor children in Australia whose interests are relevant in this case.
C. Expectations of the Australian community
Paragraph 13.3(1) of the Direction states that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
In light of the evidence and parties’ submissions before the Tribunal, the number and frequency of DGPZ’s offences, the various ‘second chances’ Australia has extended to DGPZ throughout his life, including receipt and signed acknowledgement by him of a formal warning from the Department in 2011,[25] I find that the Australian community would expect that DGPZ should not continue to hold a Visa. This is in spite of his unfortunate childhood and problems with mental health and illicit drug and alcohol abuse, which I accept.
[25] G documents, pp 76-79.
Secondary considerations
Paragraph 14 of Direction No 65 requires me to take into account other relevant considerations. Those considerations include, but are not limited to, international non-refoulement obligations, the strength, nature and duration of ties and the extent of impediments if removed.
A. Strength, nature and duration of ties
Paragraph 14.2(1) sets out the two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia. DGPZ began committing offences at 15, around 11 years after arriving in Australia.
Whilst he did care for his elderly mother during a period prior to his 2016 imprisonment there is little other evidence of him making any positive contribution to the Australian community. He appears to have squandered the various opportunities he has had over the years to redeem himself and only now, at the risk of deportation, appears to be making a concerted effort to rehabilitate.
I accept that deportation back to Turkey will have a negative effect upon his sister, who has tried over many years to help him, and on his nephews, his niece, his daughter and his brother-in-law. There is no evidence before the Tribunal that DGPZ’s son will be affected by the deportation as the son has not participated in any way in the hearing.
However, this secondary consideration cannot outweigh my findings with respect to the primary considerations in this proceeding and I so find. Nor does it do so in combination with the other secondary considerations.
B. International non-refoulement obligations
Mr Guo submitted in a thorough fashion the difficulties DGPZ will face if he has to return to and live in Turkey. I accept that DGPZ’s life will be more difficult in Turkey than if he is permitted to remain in Australia.
However, I do not accept that his life will necessarily spiral out of control in Turkey. DGPZ has lived there before, without incident on several occasions. Also, although the number of psychiatrists per head of population in Turkey may be lower, it should be possible for him to gain access to his current medications in Turkey.
I note the Tribunal is not required to conduct an extensive assessment of DGPZ’s claims to fear harm in Turkey,[26] especially some hypothetical fears.
[26] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [28].
There is no evidence of risk of persecution on the basis of his race, religion, nationality, membership of a particular social group or political opinion. Whilst I accept that his Turkish language skills may be a bit more basic at present, no doubt such skills will improve once he is back in Turkey and again conversing daily in Turkish.
Further, the evidence does not suggest a real risk that DGPZ would suffer ‘significant harm’ if he returns to Turkey: see s 36(2A) of the Act.
In any event, and with regard to all the submissions put on behalf of DGPZ I find on the evidence in this proceeding and given the conviction history of DGPZ, the primary considerations outweigh the secondary consideration of any claims concerning non-refoulement obligations owed or in combination with the other secondary considerations.
C. Impact on victims
There is little evidence regarding the impact on the victim of DGPZ’s unlawful assault in 2015 (save for positive remarks re DGPZ by Judge Hicks) or other victims, such that this secondary consideration does not displace my findings on the primary considerations, or in combination with the other secondary considerations.
D. Extent of impediments if removed
I accept that DGPZ will have some difficulties in re-engaging with life in Turkey and have carefully considered Mr Guo’s submissions in this regard. I find that DGPZ will face challenges in re-integrating with Turkish society, but these challenges are not insurmountable. DGPZ has shown increased resilience since the 2015 injury offence. Even if I am incorrect in this view, the extent of impediments are not sufficient to outweigh my findings on the primary considerations. Thus, the secondary considerations do not displace the primary considerations in this case.
CONCLUSION
In conclusion, Mr Guo put a compelling set of submissions in support of DGPZ and it is clear that the penny may have finally dropped so far as DGPZ is concerned, with respect to the privileges associated with living in Australia.
However, after considering all the submissions of the parties and the evidence I find that DGPZ’s efforts are ‘too little too late’. Such belated efforts are outweighed by the findings I have made regarding the protection of the Australian community and the expectations of the Australian community.
Whilst I have no power to direct it, I would ask that the Department consider, out of compassion, enabling DGPZ to visit his mother’s grave site, prior to any deportation from Australia.
The correct or preferable decision is to refuse to revoke the mandatory cancellation of DGPZ’s visa.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 71 (seventy one) paragraphs are a true copy of the reasons for the decision herein of Member Mr A. Maryniak, QC
.....[sgd]...................................................................
Associate
Dated: 13 March 2018
Date(s) of hearing: 1, 2, and 5 March 2018 Counsel for the Applicant: Mr M. Guo Solicitors for the Applicant: Refugee and Immigration Legal Centre Solicitor for the Respondent: Mr T. Aviram, Clayton Utz
1
3
0