DGPZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 115

DGPZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 115 (3 February 2020)
Division:GENERAL DIVISION
File Number: 2017/7545
Re:DGPZ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:3 February 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.....................[sgd]..............................................
Senior Member A. Nikolic AM CSC
MIGRATION – Federal Court remittal – mandatory visa cancellation – citizen of Turkey – Class BB Subclass 155 (Five Year Resident Return) visa – failure to pass good character test – multiple convictions between 1980 and 2016 – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Regulations 1994 (Cth)
Mental Health Act 1986 (Vic)
Sentencing Act 1991 (Vic)
CASES
AXT19 v Minister for Home Affairs [2019] FCA 1423
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DFW18 v Minister for Home Affairs [2019] FCA 599
DGI19 v Minister for Home Affairs [2019] FCA 1867
DGPZ v Minister for Home Affairs [2018] AATA 469
DKXY v Minister for Home Affairs [2019] FCA 495
DOB18 v Minister for Home Affairs [2018] FCA 1523
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Roach v Electoral Commissioner (2007) 239 ALR 1
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 February 2020
INTRODUCTION

The Applicant seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class BB Subclass 155 (Five Year Resident Return) visa.
APPLICANT’S IDENTITY
The applicant has previously sought an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to prohibit the publication of any information of a personal nature relating to him or members of his family. The respondent did not oppose the confidentiality request and the anonym “DGPZ” was subsequently applied. The Tribunal will continue to refer to the applicant by the anonym DGPZ. Certain details will be redacted, including the identity of witnesses and the names and information of other persons who might identify DGPZ.
The hearing was held in Melbourne from 13 to 15 November 2019. The Applicant was represented by Mr Krohn of counsel instructed by Refugee Legal. The Minister was represented by Mr Aviram, a solicitor from Clayton Utz. The Tribunal expresses its thanks to Mr Krohn for representing the applicant on a pro bono basis.
For the reasons that follow the Tribunal affirms the decision under review.
BACKGROUND
The background to this application is as follows:
(a)DGPZ is a 54-year old citizen of Turkey who first arrived in Australia at the age of four. He returned to Turkey on a number of occasions and lived there for a cumulative period of approximately seven and a half years between 1982 and 2007.[1] While living in Turkey for a continuous five year period between 1989 and 1994, he undertook compulsory military service and married a Turkish citizen;
[1] Exhibit A1, 3-4; Exhibit R1, B241.
(b)DGPZ returned to Australia in 1994 and his wife followed some time later. They had two children in Australia who are now in their mid-20s. The marriage ended in divorce in 2013 and DGPZ commenced a relationship with a woman who is intellectually disabled;[2]
[2] Exhibit R1, C4 [2].
(c)DGPZ has an extensive criminal record. Between 1980 and 2015 he committed over 150 offences and served approximately 18 terms of imprisonment;[3]
(d)DGPZ has made three previous applications for citizenship by conferral, most recently in 2006, all of which were refused;[4]
(e)In 2007 immigration authorities sent DGPZ two counselling letters. These contained warnings that any further criminal convictions, or any other conduct coming within the scope of s 501(6) of the Act, could result in DGPZ’s visa being cancelled.[5] These letters were returned marked ‘return to sender’ and there is no evidence they were ever received by DGPZ. No weight is placed on this material;
(f)DGPZ committed multiple criminal offences between 2007 and 2010. On 1 February 2011 DGPZ was served with a Notice of Intention to Consider Cancellation (“NOICC”) of his visa.[6] On 10 February 2011 DGPZ lodged written submissions in response. He was interviewed by immigration authorities on 25 February 2011[7] and had written representations made by his lawyer.[8] After considering these responses, a delegate of the Minister decided not to cancel DGPZ’s visa. He was warned, however, that ‘visa cancellation may be reconsidered’ if he committed further offences or otherwise breached the character test.[9] DGPZ acknowledged receipt of that correspondence on 7 July 2011;[10]
(g)DGPZ committed further criminal offences between 2012 and 2016. His visa was mandatorily cancelled on 3 February 2017 by a delegate of the then Minister for Immigration and Border Protection,[11] at which time DGPZ was serving a full-time sentence of imprisonment. After completing his custodial sentence in early 2017, DGPZ was taken into immigration detention where he has since remained;
(h)DGPZ was invited to make representations to have the cancellation decision revoked, and did so within the period and in the manner specified under the Act.[12] In late 2017 further submissions were made by his lawyer;[13]
(i)On 14 December 2017 another delegate of the Minister decided not to revoke the visa cancellation decision;[14]
(j)On 19 December 2017 DGPZ asked the Tribunal to review the delegate’s non-revocation decision.[15]
(k)On 13 March 2018 the Tribunal, differently constituted, affirmed the cancellation decision;[16]
(l)DGPZ sought judicial review of the Tribunal’s decision in the Federal Court of Australia (“the Federal Court”). On 2 May 2019 the Federal Court set aside the Tribunal’s decision,[17] giving rise to these proceedings.
[3] Ibid [4]; DFW18 v Minister for Home Affairs [2019] FCA 599 at [4].
[4] Ibid, A146-201.
[5] Ibid, B66-75.
[6] Ibid, B360.
[7] Ibid, B80-86.
[8] Ibid, B89-150.
[9] Ibid, B76-77.
[10] Ibid, B79.
[11] Ibid, B248-251.
[12] Ibid, B151-165.
[13] Ibid, B166-203.
[14] Ibid, B10-12; 14-29.
[15] Ibid, B7.
[16] DGPZ v Minister for Home Affairs [2018] AATA 469.
[17] DFW18 v Minister for Home Affairs [2010] FCA 599.
LEGISLATIVE FRAMEWORK
A person who is not an Australian citizen, and is in the migration zone while holding a visa that is in effect, is a ‘lawful non-citizen’ (s 13(1) of the Act). Any other non-citizen in the migration zone is an ‘unlawful non-citizen’ (s 14(1) of the Act).
Section 189(1) of the Act requires that an ‘officer,’ as defined in s 5(1), ‘must’ detain a person the officer knows or reasonably suspects is an unlawful non-citizen.
Except in some circumstances, like when the Minister personally makes a decision under s 501 of the Act,[18] an officer must ensure that a detained person is made aware of the provisions of ss 195 and 196 of the Act as soon as reasonably practicable (s 194(a)). Section 195 enables a detainee to apply for a visa within a short period of time. If they do not do so within that time, they may only apply for a bridging visa or a protection visa. A detained person may also be granted a visa of a particular class if the Minister considers it is in the public interest to do so. For example, s 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person has applied for the visa. The power must be exercised by the Minister personally (s 195A(5)). The Minister is not obliged to consider whether to exercise the power (s 195A(4)). Section 197AB allows the Minister, if the Minister thinks it is in the public interest to do so, to make a residence determination to the effect that a person reside at a specified place instead of being held in immigration detention. Again, the Minister is under no duty to make such a determination (s 197AE), and is obliged to exercise the power personally (s 197AF).
[18] Migration Act, s 193(1)(a)(iv).
Section 196(1) of the Act provides for the duration of detention, mandating that an unlawful non-citizen detained under s 189 must be kept in immigration detention until removed, deported or granted a visa. Section 196(4) provides, subject to s 196(1)(a), (b) and (c), that if a person is detained as a result of the cancellation of their visa under s 501, the detention is to continue unless a court determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. Section 196(5) provides that s 196(4) applies whether or not there is a real likelihood of the person detained being removed under s 198 or s 199 in the reasonably foreseeable future and whether or not a visa decision relating to the detained person is, or may be, unlawful.
Section 198(2B) was inserted into the Act by Item 11 of Schedule 1 to the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) and provides that:
‘An officer must remove as soon as reasonably practicable an unlawful non-citizen
if:
(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section
501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.’
Section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. Section 197C(2) provides that:
‘An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.’
The purpose of introducing s 197C into the Act is contained in the Explanatory Memorandum (“EM”) to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Clauses 1132 to 1146 of the EM relate to the application of s 197C to Australia’s non-refoulement obligations:
‘1132. The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.
1133. In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia’s protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of presumed legislative intention for the Migration Act as a whole to facilitate Australia’s compliance with its obligations under the Refugees Convention.
…
… These decisions have had significant impact on the Government’s ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.
1136. Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia’s international obligations…. This was because it was understood that Australia’s international obligations had already been considered during separate processes prior to removal, for example when considering the person’s application for a protection visa or when the Minister was considering the use of his or her personal powers.
1137. In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.
…
1140. The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances set out in section 198 of the Migration Act.
1141. This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.
1142. Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.
…
1146. The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.’
Section 25(1)(a) of the AAT Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court of Australia stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test by virtue of having a substantial criminal record and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character-related matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
‘(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…’
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[19]
[19] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.

The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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 women or children or vulnerable members of the community such as 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.
Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction must be applied to determine whether to revoke a mandatory visa cancellation:
a.    Protection of the Australian community from criminal or other serious     conduct;
b.    The best interests of minor children in Australia; and
c.    Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations must be taken into account, which include but are not limited to:
a.    International non-refoulement obligations;
b.    Strength, nature and duration of ties;
c.    Impact on Australian business interests;
d.    Impact on victims;
e.    Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES DGPZ PASS THE CHARACTER TEST?
DGPZ has been sentenced to multiple periods of imprisonment, including a 16-month sentence of imprisonment by the County Court of Victoria in 2017 for Use a false document to prejudice others.[20] Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, DGPZ does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the mandatory cancellation of his visa.
[20] Exhibit R1, B32.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of DGPZ’s visa should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia (“Full Court”) in Viane:[21]
‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’
[21] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
EVIDENCE BEFORE THE TRIBUNAL
The following materials were taken into evidence:
(a)Documents lodged by the Respondent numbering 1695 pages[22] (“G-Documents”);
[22] Exhibit R1, comprising A1-A353; B1-B1294; and C1-C48.
(b)Supplementary G-Documents lodged by the Respondent numbering 135 pages;[23]
(c)Applicant’s documents numbering 318 pages;[24]
(d)An extract of the transcript of proceedings from Day 2 of the previous hearing before this Tribunal;[25]
(e)A newspaper article relating to an extradition request by Turkey that was considered by Britain’s High Court;[26]
(f)Turkey Country Drug Report 2019;[27]
(g)Article relating to provision of Opioid Maintenance Treatment in Turkey;[28]
(h)Letter from a friend of DGPZ’s family regarding potential employment opportunities.[29]
(i)Letter dated 22 November 2019 with further details regarding work opportunities available to DGPZ;[30]
(j)Outgoing and incoming passenger travel cards;[31] and
(k)Letters from the Neighbourhood Justice Centre (“NJC”) dated 16 December 2019, 18 December 2019, and 23 December 2019, at the Tribunal’s request, relating to DGPZ’s engagement with various services,[32] read in conjunction with the applicant’s and respondent’s submissions about these letters dated 17 January 2020.
[23] Exhibit R2;
[24] Exhibit A1.
[25] Exhibit T1, Friday 2 March 2018, pp. 128-182.
[26] Owen Bowcott, ‘UK high court refuses Turkey extradition due to overcrowded prisons’, The Guardian (London) 16 February 2018 (Exhibit T2).
[27] European Monitoring Centre for Drugs and Drug Addiction, ‘Turkey Country Drug Report 2019’ 2019, < > (Exhibit T3).
[28] Evren Cüneyt, ‘Current Status of Buprenorphine/Naloxone Maintenance Treatment in Istanbul Turkey,’ (Autumn 2015) 1(2) Addicta: The Turkish Journal on Addictions 48-63, (Exhibit T4).
[29] Exhibit A2.
[30] Exhibit T5.
[31] Exhibit T6.
[32] Exhibit T7.
The following witnesses gave oral evidence at the hearing:
(a)DGPZ;
(b)DGPZ’s sister;
(c)A Mental Health Outreach Support Worker;
(d)A close friend of DGPZ’s sister; and
(e)Consultant psychiatrist Dr Tram Nguyen, Director of Specialist Mental Health Service, Cabrini Asylum Seeker and Refugee Health Hub.
Convictions
DGPZ does not dispute the information in his National Police Certificate,[33] which the Tribunal accepts is an accurate record of his offending.
[33] Exhibit R1, B30-38.
Sentencing Remarks
The Tribunal has considered the 2010 sentencing remarks from the County Court of Victoria (“2010 sentencing remarks”),[34] and the 2016 sentencing remarks from the County Court of Victoria (“2016 sentencing remarks”),[35] which are discussed later in these reasons.
[34] Ibid, B39-45.
[35] Ibid, B46-56.
Medical Evidence
The following expert reports are in evidence:
(a)Reports by consultant psychiatrist Dr Tram Nguyen dated 8 November 2019,[36] 29 September 2019,[37] and 25 February 2018;[38]
(b)Report by consultant psychiatrist Dr Lester Walton dated 6 November 2009;[39]
(c)Records relating to DGPZ’s mental health while in immigration detention;[40]
(d)Letters by general practitioner Dr Alan Bond dated 11 September 2007 and          11 September 2008;[41]
(e)Report by clinical neuropsychologist Ms Melissa Duncombe dated   21 March 2011;[42]
(f)Report by psychologist Ms Alina Jones dated 4 April 2011[43] and 27 April 2011;[44]
(g)Medical records from St Vincent’s Hospital regarding DGPZ’s admissions in 2013[45] and 2016;[46]
(h)Report by Alcohol and Other Drug Clinician, Mr Mathew Cocomazzo dated           27 August 2015, following a self-referral by DGPZ;[47]
(i)A letter from a registered nurse addressed to ‘Whom it May Concern’ dated            2 July 2016.[48]
[36] Exhibit A1, 293-301.
[37] Ibid, 303-306.
[38] Ibid, 308-318.
[39] Exhibit R1, B576-B579.
[40] Exhibit A1, 79-139.
[41] Exhibit R1, B121-B124.
[42] Ibid, B125-131.
[43] Ibid, B91.
[44] Ibid, B132
[45] Exhibit R2, 20-30; Exhibit R1, B625-626.
[46] Ibid, B215-B219; B228.
[47] Ibid, 13-18.
[48] Ibid, B226-227.
Dr Nguyen’s evidence
Dr Nguyen’s reports provide the most recent expert assessment of DGPZ’s mental health. She gave oral evidence at the hearing and was cross-examined. A summary of                Dr Nguyen’s evidence follows:
(a)Dr Nguyen adopted her reports as true and correct. She confirmed her diagnosis that DGPZ had Schizoaffective Disorder and Substance Abuse Disorder, which was currently in sustained remission (greater than 12 months).[49] She said this was a ‘longitudinal diagnosis’ encompassing psychotic and ‘significant mood symptoms,’ which could manifest in either a depressive or manic state. In DGPZ’s case ‘it’s more a depressive state’;
[49] Exhibit A1, 314.
(b)Dr Nguyen recalled her first meeting with DGPZ in early 2018. He had experienced episodes of acute mental ill health since 1996, including inpatient admission with psychotic symptoms in 2013. Dr Nguyen attributed DGPZ’s offending as more related to his substance abuse and considered it was ‘unlikely to be related to his mental ill health.’ She described DGPZ’s criminal history as largely linked to ‘getting money to provide addictive substances;’
(c)Dr Nguyen stated that DGPZ’s mental state at the time of their first consultation was stable, but deteriorated quickly after the 2018 decision affirming the mandatory cancellation of his visa. Dr Nguyen recalled it was a very quick deterioration with features of catatonia. Electroconvulsive Therapy (“ECT”) was required to stabilise DGPZ before he could be returned to immigration detention. Dr Nguyen said that ECT is ‘not treatment that’s taken lightly’ and because of DGPZ’s inability to provide informed consent, he was admitted and treated as an involuntary patient under the Mental Health Act 1986 (Vic);
(d)DGPZ had a further involuntary admission in late September 2018 after detention staff noted he was confused and disorientated. Substance abuse was suspected, which turned out not to be the case, and DGPZ received further ECT during this admission. Dr Nguyen stated that his deterioration occurred despite abstinence from illicit drugs, describing his presentation as unlike ‘food and thought refusal’ she had ‘previously seen with people in offshore detention,’ but was more a ‘lack of volition or ability;’
(e)Dr Nguyen stated that the main side-effect of ECT is memory impairment, usually encompassing periods of time ‘immediately around’ treatment, but could also result in ‘retrograde amnesia’ sometimes encompassing weeks and months prior to the ECT and ‘occasionally years, which was less common.’ She stated that ‘over time memory will slowly come back.’ When asked by Mr Aviram whether ECT treatment would explain DGPZ’s inability to recall his criminal offending dating back to the 1980’s, Dr Nguyen stated this was less likely and memory issues of that duration were more likely related to his prolonged drug abuse and ‘chroming,’ which affected cognitive ability;
(f)Although DGPZ did not currently meet the diagnostic criteria for Post Traumatic Stress Disorder (“PTSD”), Dr Nguyen said these symptoms were nevertheless part of his presentation.[50] When asked about the basis of her claim that DGPZ had previously met the ‘full criteria for PTSD,’ Dr Nguyen said this had been sourced from a 2011 report.[51] When referred to the last page of that report, which stated ‘review and treatment’ was required for a ‘possible diagnosis’ of PTSD (emphasis added), Dr Nguyen agreed this was not a definitive diagnosis and opined that the report authors were ‘hedging their bets;’
[50] Exhibit R2, 131.
[51] Exhibit R1, B130.
(g)When asked about the reference in her November 2019 report to the ‘possibility’ that DGPZ may have an acquired brain injury,[52] Dr Nguyen agreed this was also not a confirmed diagnosis and DGPZ had not undergone neuropsychological testing since 2011.[53] She said his medical history nevertheless caused her to ‘lean’ to such a diagnosis, but stated ‘we don’t know’ if there is an acquired brain injury. Dr Nguyen agreed that as a result of a Mini-State Mental Examination and frontal lobe testing, she had previously noted in her report that DGPZ’s presentation suggested ‘no significant enduring cognitive impairment,’ and the aetiology of his memory issues may be related to substance abuse.[54] Dr Nguyen explained this was because DGPZ had previously experienced drug overdoses requiring resuscitation. Blood and oxygen may have been denied to the brain, which could also cause memory difficulties;
[52] Exhibit A1, 296.
[53] Exhibit R1, B125-B131.
[54] Exhibit R2, 131.
(h)When asked for a prognosis about DGPZ’s mental health, Dr Nguyen considered his health was ‘brittle’ and subject to rapid deterioration. She thought DGPZ was likely to have similar episodes to those in 2018 if there was an adverse decision about his visa status, or due to prolonged confinement, or if he suffered psychosocial stress, or was non-compliant with his medication. She said that another negative visa decision could also ‘trigger relapse to (illicit) substance use;’
(i)When asked by Mr Krohn about the implications for DGPZ’s health if he was not given a visa, but was also not returned to Turkey and remained in detention for a ‘prolonged period,’ Dr Nguyen responded: ‘the idea of indefinite detention or confinement is damaging to the human condition.’ She said the potential end to DGPZ’s detention had been a motivating factor for him, but prolonged detention was likely to cause another rapid deterioration in his mental health due to ‘psychosocial stress.’ When asked during cross-examination if factors like ineligibility for the National Disability Insurance Scheme (“NDIS”) or other negative administrative decisions could similarly trigger such rapid deteriorations, Dr Nguyen said DGPZ was vulnerable to a broad range of psychosocial stressors;
(j)Mr Krohn asked Dr Nguyen whether in the absence of ‘close friends or associates or support’ in Turkey, and if DGPZ were to become depressed, or homeless,         or had another ‘catatonic episode,’ would he be able to access treatment?            Dr Nguyen thought he could not, because in such circumstances DGPZ may lose ‘functional capacity in terms of volition.’ If, on the other hand, DGPZ was released to live with his sister and had others willing to help him ‘engage with services,’ then he was ‘at a much higher likelihood’ of being compliant with those services ‘than he has been prior in his life.’ She considered DGPZ’s ‘therapeutic engagement with his family’ was a key component of his recovery;
(k)When asked by Mr Krohn if DGPZ were to have ‘some major episode and did not take steps about it,’ what would be the ‘range of outcomes,’ Dr Nguyen said at the ‘severe end,’ DGPZ could ‘pass…given his inability to do anything in that state,’ particularly if there ‘were no other people around to take notice.’ When asked about the potential of suicidal ideation, Dr Nguyen noted this had previously occurred while DGPZ was suffering drug-induced psychosis and was                 non-compliant with anti-psychotic medication, rather than as the result of a depressive episode. Dr Nguyen described the former as a ‘more agitated presentation.’ She opined that suicidal ideation was ‘not off the agenda’ either in Australia or Turkey, but considered this less likely unless DGPZ relapsed into substance abuse or was non-compliant with medication, which could cause a return of previous psychotic symptoms like ‘monstrous hallucinations or voices telling him to harm himself;’
(l)Dr Nguyen agreed there had not been a period in the last 20 years where DGPZ was in the community and chose of his own volition to attend drug-related treatment or counselling in the absence of a preceding arrest or legal obligation to do so. She said this had affected her perspective on risk. When it was put to          Dr Nguyen that DGPZ had previously failed to cease criminal offending despite the 2011 visa cancellation process, the consistent support from his mother and sister, and court-ordered treatment, she responded: ‘I don’t think I’ve said that I don’t think he’ll relapse again...there’s no guarantee that he will never relapse.’
(m)When asked if she had seen a letter from a consultant psychiatrist at St Vincent’s Hospital dated 7 October 2013,[55] referring to DGPZ’s undertaking to remain abstinent from drugs and wanting his ‘future to be different,’ Dr Nguyen said she had not. But she highlighted points of significance relating to DGPZ’s abstinence from illicit drugs since being arrested in 2015. She said incarceration and immigration detention had allowed DGPZ’s mental health to be assessed in the absence of illicit drug use, which had been a persistent feature of his life since his early teens. In relation to abstinence from methylamphetamine, Dr Nguyen said it took over a year for dopamine receptors in the brain to recover, which reduced the risk of relapse. When asked if she thought DGPZ was likely to remain abstinent from drugs, Dr Nguyen stated: ‘Never say anything’s 100%,’ but referred to the encouraging length of time DGPZ had been abstinent on this occasion, the support offered by his sister and others, remorse about injuring his former partner, advancing years, and claimed desire for a ‘more meaningful’ future, as factors supporting his continued recovery. She said the current period of abstinence since 2015 led her to believe DGPZ was in a ‘different frame of mind.’ Although the prospect of DGPZ being employed was also a potential protective factor, Dr Nguyen agreed DGPZ’s work history was ‘intermittent at best’ and had not been present in any meaningful sense in the past;
[55] Exhibit R1, B625-B626.
(n)When asked about DGPZ’s risk of relapse into drug abuse and recidivism,            Dr Nguyen differentiated between the risk if he remained in Australia, which she assessed as ‘somewhere between low and moderate,’ rising to ‘moderate to high’ in Turkey. When asked if DGPZ was at heightened risk of relapse outside of structured, custodial environments, Dr Nguyen responded: ‘yes he is.’ She explained this was because of the relatively reduced lack of access to illicit substances in custodial environments and the ‘constant supervision’. When asked if DGPZ was at a higher risk of relapse and recidivism if released without being under a court order, Dr Nguyen said there was a higher risk in those circumstances, because court-ordered compliance was a ‘motivating factor.’ Dr Nguyen said her opinion had taken account of DGPZ’s previous non-compliance with court orders, patchy or non-compliant engagement with counseling, and non-compliance with medications, reflecting ‘an increased risk’ of recidivism;
(o)Dr Nguyen said DGPZ’s lack of educational attainment, low IQ, cognitive impairment and ‘speaking a language he does not commonly use in Australia’ were factors that may impair his ability to undertake tasks in Turkey like finding accommodation and seeking work without support. When asked if she was aware DGPZ had previously lived in Turkey, including between the ages of 24 and 29,    Dr Nguyen said she was not. When asked about the potential for DGPZ’s sister to assist DGPZ’s resettlement in Turkey and whether that changed her views,           Dr Nguyen’s stated: ‘only if she were to stay with him long term.’ When asked if she still considered DGPZ had limited ability to speak Turkish as noted in her report, Dr Nguyen stated:
‘So from what you’ve just told me, some of which I didn’t know, I wouldn’t use the wording limited…I would probably…describe it more that English is his preferred language.’
(p)Dr Nguyen stated that DGPZ was likely to require maintenance ECT in the future, which she claimed ‘isn’t always readily available’ in Turkey. When asked about the source of that claim, Dr Nguyen referred to a footnote in her September 2019 report, based on a journal article dated December 2017.[56] She stated that the lesser availability of such services in Turkey was ‘lower than expected according to world average standards’ and ‘in comparison to European standards.’ In response to a question from Mr Krohn, Dr Nguyen confirmed it was also still her opinion that:
‘Turkey has a much lower resourcing of mental health staff overall, with only 2.13 psychiatrists per 100,000. There is only a single 10-bed community residential mental health facility for the nation. Of particular significance, there is absolutely no provision for the prescription of opioid substitution therapy (methadone or buprenorphine) in prisons, which [DGPZ] has required to achieve abstinence from heroin. Outside of prisons, there is only limited provision of OST at specialist centres…’[57]
(q)When asked about the reference in her 8 November 2019 report that ECT                ‘is unlikely to be available in Turkey,’[58] compared to a more recent reference discussed at the hearing, Dr Nguyen said: ‘So I think it’s available, but it’s about how accessible it is.’ She had not been able to find ‘any articles from Turkey mentioning maintenance ECT.’ When asked by the Tribunal whether she was submitting that maintenance ECT is not available in Turkey, Dr Nguyen responded: ‘I don’t necessarily say that, but…like I couldn’t find papers to mention maintenance ECT, in English, in Turkey;’
(r)When asked by Mr Krohn about a United Nations Special Rapporteur report[59] and whether she thought DGPZ could cope if he found himself in a ‘prison setting,’ Dr Nguyen said DGPZ would need someone ‘actively observing him’ to detect any deterioration. In response to subsequent questions, however, it became clear that Dr Nguyen’s opinion was informed by the erroneous belief that DGPZ may be ‘returned to a Turkish prison’ upon repatriation;
(s)When asked about any special knowledge or experience she has in relation to prison overcrowding or the availability of mental health services in Turkey,            Dr Nguyen confirmed she had none. When asked about the evidence she relied upon for the submission that there were 2.13 psychiatrists in Turkey per 100,000 people, and how that differed with Australia, Dr Nguyen responded: ‘I don’t know what it is here.’ When asked about her reliance on a nine-year old World Health Organisation (“WHO”) reference for the 2.13 / 100,000 ratio, and what the more recent figure was for psychiatrists per head of population in Turkey, Dr Nguyen said she was not aware of anything ‘more up-to-date.’ When asked about her reference to there only being a ‘single 10-bed community residential mental health facility for the nation in Turkey,’[60] Dr Nguyen said this was based on the 2011 WHO ‘Mental Health Atlas.’ She was not aware of the location of that facility and agreed she had no knowledge about the current provision of community residential mental health facilities in Turkey. When provided with publicly-available articles dated 2019[61] and 2015[62] contradicting her evidence about the availability of mental health services in Turkey, Dr Nguyen agreed that things had changed since the 2011 article she relied upon;
(t)When asked about the source of the United Kingdom High Court decision she referred to in her February 2018 report about prison overcrowding, Dr Nguyen confirmed it was a newspaper article from the Guardian Online dated   16 February 2018.[63] She agreed the circumstances in that matter related to an extradition request made by the Turkish Prime Minister to the then British Prime Minister relating to ‘fugitive businessmen and activists’ living in Britain, who were allegedly involved in the failed 2016 Turkish military coup. When asked about the relevance of the article to DGPZ’s circumstances, Dr Nguyen agreed that DGPZ’s circumstances were distinguished from those in the Guardian article, and the concerns about prison overcrowding only arose if DGPZ were to be imprisoned;
(u)Dr Nguyen was asked about her reference to the limited provision of Opioid Substitution Therapy (OST) in Turkey compared to Australia, which was based on a 2017 report by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA).[64] The Tribunal referred Dr Nguyen to a more recent (2019) report by the same organisation.[65] She agreed that ‘things have moved on’ in Turkey in relation to OST, but contended it was nevertheless ‘a bit more restricted than its availability in Australia.’ Dr Nguyen said her claim about ‘no provision’ of OST was based on an article she could not recall, but related to the availability of OST in Turkish prisons rather than the general community. Dr Nguyen said the issue of OST was now less relevant to DGPZ because he had ceased being a participant in the OST program in 2016. Dr Nguyen accepted that if DGPZ was not imprisoned in Turkey, then OST would be available to him in the broader community. She was unsure, however, about what treatment might be available if he relapsed into methamphetamine use; and
(v)Dr Nguyen said she was willing to be the initial point of contact for DGPZ’s psychological monitoring until other referrals were in place. She would also refer DGPZ to a general practitioner and a public mental health service. Dr Nguyen said she would not be DGPZ’s treating psychiatrist forever, but would assist him in engaging in the public health system and with the sort of services offered by NJC within DGPZ’s catchment area. She agreed that DGPZ’s attendance and engagement with these services would be voluntary.
[56] Exhibit A1, 306 [footnote 1].
[57] Ibid, 317.
[58] Exhibit A1, 301.
[59] Ibid, 271-291.
[60] Exhibit R2, 134.
[61] Exhibit T3.
[62] Exhibit T4.
[63] Exhibit T2.
[64] Exhibit A1, 317.
[65] Exhibit T3.
DGPZ’s evidence

DGPZ adopted four statements dated between 9 February 2018 and 8 November 2019, two of which were unsigned.[66] A summary of DGPZ’s oral evidence follows:
[66] Exhibit A1, 35-38; 39-50; 51; 269.
(a)In terms of family relationships, DGPZ said he had a very close relationship with his mother who passed away in July 2017. He previously lived with his mother, cared for her, and said she loved and understood him. DGPZ also referred to a continuing close relationship with his sister, who provided him with consistent practical and emotional support. He talked to his sister by frequently by telephone and she had last visited him in detention a few months ago. DGPZ said he also had a very close relationship with his daughter who currently lived in Germany. When asked about any recent contact with his daughter, DGPZ said she had a new telephone number he did not have access to and they had last spoken about six months ago. Mr Krohn explained there were residual difficulties regarding contact between DGPZ and his daughter, because a 2009 intervention order (“IVO”) had been made ‘until further order.’ He submitted that DGPZ’s daughter had sought to vary the IVO around the time of the previous Tribunal hearing;
(b)DGPZ said his son lived in Australia and characterised their relationship as ‘good.’ He did not have his son’s current phone number and they had last spoken ‘about a year ago.’ He had not asked his son to provide a statement for the hearing and was unsure if he was aware of DGPZ’s current circumstances;
(c)DGPZ submitted that the last time he took drugs was in 2015. He had since spent time ‘thinking and searching to be a better person.’ He intended to remain abstinent and law-abiding with support from his sister, the NJC,[67] and Dr Nguyen would also help him ‘stay on the right track.’ When asked what it was about these supports that would work on this occasion, DGPZ responded: ‘I’m not sure, I just know it works.’ He claimed to have lacked commitment in the past, but was now confident he could ‘do it long term.’ At the age of 54, he wanted to be with his family and ‘step up’ for them. He would also ‘try and get a part time job if well enough’ and explore his entitlement to a Disability Support Pension (“DSP”), which he had previously received;
[67] Ibid, 233-236.
(d)During cross-examination DGPZ was asked about his criminal offending, much of which he was unable to recall. He frequently responded ‘No’ or ‘I don’t remember.’ He explained this was due to ‘trouble remembering things,’ but was unsure what affected his memory. He could not recall a conviction for ‘Use a false document to prejudice other,’ for which he was sentenced to 16 months imprisonment. He could not recall the sentencing remarks, or that his sister’s evidence to the court was that DGPZ was a ‘changed man’ following his return to Turkey, but had reverted to ‘old ways’ on return to Australia, and intended to ‘return to Turkey with [his] son;[68]
[68] Exhibit R1, B42 [14].
(e)Questioning during cross-examination focussed particularly on DGPZ’s convictions for violent offences against his former wife, mother and former partner. A summary of this component of his evidence follows:
(i)DGPZ was referred to a report dated April 2008 in which it stated an IVO was taken out against him by his ex-wife. The report stated he ‘periodically engaged in verbally and physically aggressive behaviour’ against his wife, and was in ‘intermittent contact with his son (12 years of age) and phone contact with his daughter (14 years of age) who currently resides in Turkey.’[69] DGPZ could not remember ever being verbally or physically abusive against his ex-wife. When referred to a Victoria Police report dated March 2008 stating that DGPZ breached an IVO to protect his wife,[70] DGPZ responded ‘No, I can’t remember;’
[69] Ibid, B568.
[70] Ibid, B781.
(ii)When asked about a Victoria Police report dated February 2009, in which DGPZ had reportedly ‘pushed and kicked’ his former partner after she refused to ‘supply him her prescription medication of valium and zannex (sic),’ [71] DGPZ claimed he could not recall the incident;
[71] Ibid, B780.
(iii)DGPZ claimed during cross-examination that he had had never assaulted his mother. When reminded by the Tribunal this was inconsistent with the evidence he gave during evidence in chief, DGPZ agreed he had assaulted his mother by throwing water at her. When asked about other details of the assault, DGPZ stated: ‘I don’t remember all of it. I think I was still on drugs…I’m regretful and remorseful for what I did to her…we were really close.’ When taken to a Victoria Police report stating that DGPZ regularly filled a pot with cold water and threatened his mother if she ‘steps out of line,’[72] DGPZ responded ‘that’s not true.’ When asked if he remembered his mother fearing for her safety, fleeing her home and running to her daughter’s home nearby, DGPZ claimed he could not recall. DGPZ said he could not recall a family violence IVO being taken out to protect his mother in 2013, or an incident when he breached the order, grabbed his mother by the hair, pulling at it multiple times and causing her pain, returning to his mother’s property at 5:30 am or 6:00 am without prior consent and banging on the windows and doors, causing his mother to call police.[73] DGPZ claimed he could not recall police seeking to vary the IVO because his mother feared DGPZ ‘may hurt or kill her if she keeps letting him inside the premises;’[74] and
[72] Ibid, B726.
[73] Ibid, B720.
[74] Ibid.
(iv)When asked about intentionally causing injury to his former partner in     July 2015, DGPZ could recall this incident and stated: ‘this will never happen again.’ He accepted this was his most serious violent offence, committed at the age of 50. When it was put to him that he had attacked his former partner for approximately five hours with a garden fork and screwdriver, inflicting ‘over 100 separate injuries,’[75] DGPZ said he was unable to remember.
[75] Ibid, B48.
(f)DGPZ did recall being told by immigration authorities in 2011 that cancellation of his visa was being considered because of his criminal offending. He did not recall attending a Departmental interview on 25 February 2011[76] or telling the interviewer that the visa cancellation process had been a ‘wake-up call’ and that he ‘was a changed person’ who would not reoffend. DGPZ could not recall stating that he had strategies in place to prevent his recidivism, including ‘post-release counselling,’ living with his mother, or assistance from his sister, or ‘employment skills in a factory environment and machine operating’ to help him find work, or that he was ‘closer to God.’ DGPZ claimed he could not recall the decision allowing him to retain his visa, even though he agreed the signature acknowledging that advice on 7 July 2011 was his;[77]
[76] Ibid, B80-85.
[77] Ibid, B79.
(g)When asked about any incidents of misconduct during imprisonment in 2016-2017, DGPZ responded: ‘There were none.’ When asked if he remembered ever pleading guilty to assaulting and abusing prison staff, DGPZ responded ‘No.’    When referred to incident reports in evidence dated September and November 2016, where DGPZ had reportedly been disruptive by repeatedly banging and kicking at his cell door, abusing and threatening staff, spitting in their direction, and being angry after being accused of diverting his medication[78] DGPZ stated he could not recall these incidents;
[78] Ibid, B525; B526; B532.
(h)When asked about a previous statement he had submitted to immigration authorities in which it was falsely claimed DGPZ had ‘never returned to Turkey since 1969…[and]…doesn’t even speak his native language.’[79] DGPZ said another prisoner wrote the statement and erroneously made these claims without his knowledge.[80] He claimed not to have read the statement before signing and submitting it. When asked who the other prisoner was, DGPZ could not recall;
[79] Ibid, B160 [15]; B165 [43] and [46].
[80] Exhibit A1, 51.
(i)DGPZ said he did not like being in immigration detention and his mental and physical health had worsened, particularly after the Tribunal’s earlier decision. When asked about any previous incidents of self harm, he recalled one incident from his past that had occurred because he ‘wasn’t in the right mind;’
(j)When asked by Mr Krohn if religious life was important to him, DGPZ responded: ‘I don’t practice as much as I’d like to. I pray on Fridays some time. If released, I’d love to attend mosque every Friday.’ If allowed to remain in Australia DGPZ said he would live with his sister and her three adult children. He wanted to help his sister around the house, undertake part time work ‘if well enough,’ and utilise the services of the NJC and Dr Nguyen. DGPZ said he had previously worked as a cleaner and forklift driver and liked ‘the challenge of learning in different jobs.’      He claimed that his sister and a close friend could assist him in finding part-time work commensurate with his health limitations;
(k)DGPZ confirmed he spoke English and Turkish, but that his Turkish was ‘not as good as [his] English.’ He agreed that he had lived in Turkey for two years between the ages of 17 and 19, but could not recall what he did during that time. DGPZ did recall that while staying with his uncle (father’s brother), the uncle assaulted him, causing DGPZ to move to his maternal uncle’s home before returning to Australia in 1984;
(l)DGPZ initially claimed he could not remember returning to Turkey in 1989 at 24 years of age, but did subsequently recall aspects of his military service for approximately two of those years, including being assaulted. When asked what language he spoke during national service, he responded: ‘Turkish.’ He claimed that he was forced to do military service by his father. DGPZ was referred to an interview in June 1998 regarding his application for Australian citizenship, which records him as stating that he had:
‘volunteered…for…National Service between 1990 and 1992. He said that this helped him to sort his life out. In 1993 he married and worked as a translator/interpreter on a casual basis in Turkey.’[81]
(m)When asked about this record, DGPZ responded ‘I don’t remember,’ and that he was not a volunteer for military service. When asked if he undertook work as a translator / interpreter while living in Turkey, he responded: ‘I don’t remember.’ DGPZ did recall being sexually assaulted on one occasion during military service, causing him to run away. He said he was captured and, after psychological testing, was found competent to complete his national service obligation. When asked if he had worked while living in Turkey, DGPZ stated: ‘I think I did, but I’m not sure.’ When asked if he remembered speaking Turkish while living in Turkey, DGPZ responded ‘a little bit.’ When asked if he held a Turkish driver’s licence and drove vehicles in Turkey, DGPZ responded ‘no.’ When referred to a record in evidence where he was recorded as telling authorities that all he needed to drive in Victoria was his Turkish licence, DGPZ responded ‘I don’t remember;’
(n)DGPZ agreed he spent five years in Turkey until 1994 before marrying a Turkish citizen who did not speak English. He returned to Australia after the wedding and his new wife followed later. When referred to a Victoria Police report dated August 2001 relating to a domestic dispute with his wife, which stated the couple ‘have been married for 7 years but separated for the last 4 or 5 years,’ DGPZ responded: ‘I can’t remember.’ DGPZ could not recall if his wife ever returned to Turkey to live with their children. When referred to a Victorian Department of Justice Report dated March 2010, in which it states DGPZ was then ‘estranged from his wife who divorced him 5 years ago,…however, did not disclose that his children live in Turkey with their mother,’[82] DGPZ responded: ‘I don’t remember.’
(o)DGPZ claimed he could not recall a two-month visit to Turkey in 2007, details of which were contained in the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”);[83]
(p)When asked by Mr Krohn about possible repatriation to Turkey, DGPZ stated:        ‘I really don’t have anyone there…I don’t think there’s any employment…I’d end up on the streets and probably go back to drugs.’ When asked if his sister could support him in Turkey, he stated: ‘I don’t think she could.’ DGPZ said if he remained in Australia, his sister would support him until he got part time work or an NDIS package, or re-qualified for the DSP. DGPZ said his sister would also help him access treatment and medications, but he ‘didn’t expect her to do it long term.’ When asked about any specific concerns about returning to Turkey, DGPZ’s responses related to practical impediments. He said there would be nothing for him to do, no-one to support him, and he feared being homeless and relapsing into drug abuse. When asked by Mr Krohn if he would be able to get help for his mental health issues in Turkey, DGPZ stated: ‘No I don’t think I could.’
(q)DGPZ said his father lived in Turkey but he did not know where. He claimed his father was frequently drunk and violent before deserting the family 20 years ago. DGPZ claimed he had no contact with other relatives or friends in Turkey. During cross-examination DGPZ was referred to a Victorian Department of Justice report dated 2014, in which the author noted DGPZ’s claim that his mother ‘holds grudges against him as he has forgiven his father and now has good relationships with him.’[84] DGPZ said he did not remember saying that and insisted he did not have a good relationship with his father.
[81] Exhibit R1, A162.
[82] Ibid, B458.
[83] Exhibit A1, 4 [27].
[84] Exhibit R1, B609.
Evidence of NJC support worker
The witness adopted his letters dated February 2018 and October 2019 as true and correct.[85] The Tribunal also had regard for this witness’s oral evidence during the previous hearing in March 2018,[86] including that DGPZ ‘appeared motivated to engage with support…,’[87] and had asked to continue voluntary screening for illicit substances.
[85] Ibid, A79; Exhibit A1, 233.
[86] Exhibit T1, 128-145.
[87] Ibid, 132 [13]; [41].
The witness said his tertiary qualification was as a paramedic and in relation to his NJC role, he held a Certificate IV in Community Mental Health. He discussed the organisational objectives of the NJC and confirmed that he provided services to DGPZ for about an 11-month period from August 2015 until DGPZ was imprisoned. When asked about DGPZ’s engagement with NJC services, the witness responded: ‘typically relatively well, fairly well engaged in support.’ The witness said he had access to NJC records relating to DGPZ’s use of other NJC services since 2011, which the Tribunal requested be provided, focussed on DGPZ’s attendance. That material is discussed later in these reasons.
The witness recalled DGPZ had a number of stressors in his life during their consultations, including ‘fear of deportation,’ locating stable accommodation, difficult interpersonal relationships with his mother, and an ‘on-again-off-again’ relationship with his then partner. The witness recalled that during one home visit DGPZ had a high level of anxiety and expressed ‘paranoid’ concerns. This prompted the witness to refer DGPZ for ‘psychological triage.’ He also assisted DGPZ with issues like accessing dental services and a hearing aid.
The witness said the supports DGPZ required in Australia included a general practitioner for supervision of physical health, prescriptions, and referrals. He would also require services for clinical case management, depending on what area he lived in. The witness was aware that DGPZ intended to live with his sister if released, which was outside of the NJC ‘catchment area’, but interim support arrangements could be provided for about three months until a more permanent solution was found. The witness agreed it was up to DGPZ if he attended the NJC or not. The witness said DGPZ’s entitlement to a support package under the NDIS could be tested and if found ineligible, the NJC could still provide him with outreach support. The witness was also aware DGPZ had previously received the DSP and thought he could reapply.
Evidence of DGPZ’s sister
DGPZ’s sister adopted an unsigned statutory declaration dated 1 October 2019,[88] a signed statement dated 5 February 2019,[89] a signed statutory declaration dated 9 February 2018,[90] a signed statement dated 7 November 2017,[91] and a signed statutory declaration dated 6 May 2011,[92] as true and correct. The Tribunal has noted her oral evidence during the previous hearing in March 2018.[93] The witness said she had recently returned from a three-month holiday to Turkey and felt ‘stronger’ and ‘energised’ to support her brother’s application to remain in Australia.
[88] Exhibit A1 53-58.
[89] Ibid, 239-240.
[90] Ibid, 61-63.
[91] Ibid, 65-69.
[92] Ibid, 70-74.
[93] Exhibit T1, 155-182.
The witness said that while her mother was alive, DGPZ assisted with things like medical appointments, cooking, cleaning and medication, which enabled her to go to work. When asked about DGPZ’s assault of their mother, the witness claimed DGPZ ‘raised his voice,’ their mother ‘got a little bit scared’ and DGPZ’s conduct was ‘out of character.’ When referred to relevant police records,[94] the witness agreed there was more to it than that. She was aware of the IVO in place to protect her mother and agreed the police records correlated with what her mother had told her. She agreed her mother expressed fears DGPZ may hurt or kill her. She attributed DGPZ’s problems to ‘falling into the wrong crowd,’ causing him to use drugs like heroin and ice. She stated DGPZ was now abstinent from drugs and the last time he had used was prior to the 2015 assault against his former partner. DGPZ’s violent conduct on that occasion had shocked her: ‘that’s not him…it’s out of character and not something he’s done on a regular basis. I don’t believe he did so knowingly.’ She said DGPZ was so affected by his violent conduct that he had unsuccessfully tried to commit suicide. She had no concerns that DGPZ would ever repeat such behaviour if he lived with her and her adult children.
[94] Exhibit R1, B720; B726.
The witness said she spoke to DGPZ by telephone about three times a week. She and her children visited DGPZ in detention where they engaged in activities like table tennis and chess. The witness said all members of her household worked and had licences, so they could assist DGPZ with attendance at appointments, and in maintaining his current stability and positive outlook. The witness said she would also support DGPZ financially ‘until he gets back on his feet,’ help him apply for the NDIS or DSP, engage with services like Centrelink, and look for a job. She had a friend who was an accountant with lots of Turkish business connections who could also assist DGPZ in finding work. Despite not attending a mosque, the witness said she was ‘wanting and planning’ to re-engage in religious observance with DGPZ upon his release. When asked about her previous undertakings to help DGPZ find work and reconnect with their religion, the witness said she was confident her brother would do so on this occasion because he was remorseful and committed to enduring change. If DGPZ started having problems, she would consult his counsellor and doctors. The witness stated: ‘You can’t watch him 100%, but with our support we think he’ll commit and follow through.’
If DGPZ returned to Turkey, the witness said she could not provide him with ‘permanent income’ and would be ‘torn’ between returning to Turkey to assist him and being with her adult children in Australia. The witness submitted that DGPZ’s language skills were ‘basic’ and: ‘I don’t think he’d be able to communicate.’ When asked about the availability of mental health services in Turkey, the witness responded: ‘I won’t say there’s none, but they are limited.’ In response to questions, the witness agreed she had no personal knowledge about the availability of mental health services or income support in Turkey, but opined that such support was below that available in Australia. Having returned from a three-month visit to Turkey between July and September 2019, the witness said accommodation and work there were ‘really limited.’ She considered DGPZ did not have the ‘mechanisms to cope in Turkey,’ would become homeless, mix with the ‘wrong crowd,’ start taking drugs again, and end up in a Turkish prison. She said DGPZ was the only ‘blood relative’ she had in Australia except for her children. She was concerned if DGPZ returned to Turkey, he could not visit their mother’s grave in Australia. In such circumstances she could not cope and may need counselling herself.

Notwithstanding the presence of some relatives in Turkey,[220] it is accepted there is no reliable evidence to conclude that DGPZ can rely on any practical or emotional support from persons living in Turkey. He would therefore be confronted with considerable challenges in re-establishing himself, including finding stable accommodation and employment. That being said, the Tribunal does not accept the submission that DGPZ would have ‘very limited if any access to welfare in order to subsist.’ The extent to which he may be entitled to welfare payments in Turkey is speculative and uncorroborated. There is no evidence that his access to income support or other services would be any less than that available to other Turkish citizens. It is also speculative to submit he will have no income from employment, in circumstances where: there is evidence he previously undertook some work while living in Turkey; has not yet applied for work in Turkey; has vocational skills and work experience in Australia that may assist him in finding work in Turkey; and expresses a desire to return to remunerative work.
[220] Ibid, 57 [22]-[23].
Removal from Australia would nevertheless separate DGPZ from his sister, nephews and niece in Australia, who remain his strongest sources of practical and emotional support. The Tribunal does not accept, however, that DGPZ ‘will have no financial resources to draw on’[221] or that he is impecunious. There is no corroborating evidence for the latter claim. Moreover, his sister’s oral evidence is that she and her adult children, who all work, are willing to financially support DGPZ until he is able to ‘get on his feet’ in Australia. The logical extension of that submission is that the same financial resources could be applied to assist his resettlement in Turkey. It is accepted this would not be a permanent arrangement, but at the very least constitutes some financial support as DGPZ explores entitlements under Turkish law, perhaps seeks to reconnect with relatives and friends from his previous residence in Turkey,[222] and applies for work. The Tribunal also notes the evidence of DGPZ’s sister that she is ‘torn’ between being with DGPZ in Turkey and staying with her children in Australia. That is of course a matter for her and the Tribunal accepts she currently has no intention of permanently resettling in Turkey. Her evidence is that she has previously visited Turkey for extended periods, most recently from July to September 2019. There is no evidence that she or her employed adult children would be unable to visit DGPZ, or support him from Australia, or maintain telephone or other contact as has previously been the case when DGPZ has been imprisoned or in immigration detention.
[221] Ibid, 22 [134].
[222] Ibid, 57 [22]-[23]; 68 [27].
DGPZ would also be confronted with the challenge of accessing healthcare and sourcing prescribed medications in Turkey, a country he last visited 12 years ago. That would be undertaken without the same support framework currently available to him in Australia. In such circumstances, there is a prospect of him experiencing a further relapse in his mental health, including the sort of serious episodes he had in 2018. The Tribunal also acknowledges Dr Nguyen’s evidence that she could not discount further suicidal ideation or self harm if DGPZ was to have a psychotic episode following a relapse into drug abuse. That being said, DGPZ’s mental health over the last year or so is assessed as ‘stable’[223] and he claims a three-year abstinence from illicit drugs that he wants to build on by returning to remunerative work and living a law-abiding life.
[223] Ibid, 295; 296; 306; 313; 314.
The Tribunal considers the submission that DGPZ ‘will not be able to access assistance for his complex health and other needs in Turkey,’[224] to be speculative and uncorroborated. The Tribunal also finds the ‘possibility’ raised by Dr Nguyen that DGPZ may have an acquired brain injury to be unpersuasive.[225] Dr Nguyen agreed during her oral evidence that DGPZ has not had neuropsychological testing since 2011 and this diagnosis is unconfirmed. A report by a clinical neuropsychologist in March 2011 concluded:
‘The absence of any lengthy trauma or loss of consciousness or post-traumatic amnesia classify…the trauma associated with these assaults as ‘mild.’ Although he attested that he was treated at the Alfred and St Vincent’s Hospital for these assaults, neither hospital holds records of any admission…for an assault.
St Vincent’s Hospital Emergency Department Triage comments and a CT Brain Scan Report (both dated 03/10/08) report an admission for a head injury with a brief 10-second loss of consciousness following a fall down a flight of steps onto his head while intoxicated with alcohol, heroin and Xanax. The CT scan reports a normal brain on imaging with no evidence of abnormality…
...
[DGPZ] was dropped off at the assessment session by his referrer…He was well mannered and socially appropriate…Though he appeared to have slight difficulty finding words to express himself, speech and language were otherwise normal, and there was no evidence of any abnormalities of thought or perception…
…
Given the absence of any clinical significant decrement in working memory and speed of information processing – domains sensitive to the effects of neurological insult – there is no strong evidence for any acquired brain injury resulting from [DGPZ’s] reported assaults. This is consistent with both the classification of these incidents as ‘mild’ traumatic head injuries, and the absence of any abnormality on the later brain CT scan in 2008… ’[226]
[224] Ibid, 33 [172].
[225] Ibid, 296.
[226] Exhibit R1, B126-B127.
The Tribunal accepts the general reference in the DFAT Report that Turkey spends less than other OECD members on public health care, and access to healthcare for the poor in Turkey is ‘inhibited.’ There is no evidence, however, that DGPZ’s access would be any less than that available to other Turkish citizens. The submission that if DGPZ again found himself in custody, ‘the onset of a severe episode is unlikely to be responded to with necessary speed’ and ‘treatment available in Turkey…will not be adequate,’[227] is speculative. The Tribunal notes DGPZ was admitted as an adult inpatient in Turkey while living there and there is no evidence any care he received was deficient.[228]
[227] Exhibit A1, 33 [173].
[228] Exhibit R1, A85; A316; R2, 15.
While the Tribunal accepts Dr Nguyen’s evidence as it relates to her qualifications as a psychiatrist, she has no special knowledge or experience about the provision of mental health services in Turkey. Moreover, it emerged during cross-examination that Dr Nguyen was unaware DGPZ had previously lived in Turkey for approximately seven and a half years, giving rise to concerns about her assessment regarding DGPZ’s ability to cope if repatriated. Other aspects of Dr Nguyen’s evidence worthy of note are:
(a)The Guardian newspaper article she refers to is not apposite to DGPZ’s circumstances. The brief reference to overcrowding in Turkish prisons is nearly two years old, relates to an attempted coup in 2016, and the Turkish Government’s attempts to extradite a non-Turkish citizen from Britain who was suspected of drug trafficking. There is no evidence that DGPZ would be imprisoned in Turkey if returned. Dr Nguyen’s opinion was based on the misapprehension that DGPZ may be immediately imprisoned in Turkey upon return. The submission by DGPZ’s legal representatives that given DGPZ’s ‘long term drug use,’ there is a ‘high chance’ of him ‘ending up in a Turkish prison or in police custody,’ is speculative. That prospect is at odds with DGPZ’s current stable psychological, presentation, submissions about wanting to maintain his abstinence from illicit drugs, desire to return to remunerative work, and intention to live a law-abiding life;
(b)The Tribunal does not accept Dr Nguyen’s claim that there is ‘only a single 10-bed community residential mental health facility for the nation.’ That submission is based on a report nearly a decade old, which is directly contradicted by more recent documents.[229] Moreover, the DFAT Country Report for Turkey refers to 86 community mental health centres operating nation-wide, albeit with notable shortcomings in relation to quality. The Tribunal prefers the more recent sources to the decade-old reference relied upon by Dr Nguyen;
(c)The Tribunal does not accept Dr Nguyen’s claim that ‘there is absolutely no provision for the prescription of opioid substitution therapy…in prisons, which [DGPZ] has required to achieve abstinence from heroin.’ That submission is contradicted by more recent documents[230] and there is no evidence DGPZ will be imprisoned on return to Turkey. The evidence is that DGPZ has not been reliant on OST since 2016. The inference in Dr Nguyen’s submission, that DGPZ may require OST if he relapses into drug abuse, is speculative. Even if he did require it, the 2019 report by the EMCDDA estimates there are currently 12,500 clients in Turkey receiving OST,[231] which conflicts with Dr Nguyen’s written submission, and on which she changed her evidence during the hearing. The Tribunal prefers the 2019 EMCDDA report to Dr Nguyen’s claim. The Tribunal does not accept the submission that little weight should be placed on this report because it ‘does not constitute independent country information.’ The proposition that the Tribunal should accept Dr Nguyen’s submissions based on a 2017 EMCDDA report, but place ‘little weight’ on a 2019 report by the same organisation, is questionable logic at best. The Tribunal does not accept the submission by DGPZ’s legal representatives that Exhibits T3 and T4 are ‘not relevant.’ Moreover, the reliance on general and at times dated information regarding to what DGPZ’s rights and access to healthcare under Turkish law and policy might be, without corroborating expert evidence, came across as unpersuasive. As the Federal Court has previously held:
‘… It is axiomatic that “foreign law is a question of fact to be proved by expert evidence” (Neilson v Overseas Projects Corporation of Victoria [2005] HCA 54; 223 CLR 331 at [115] per Gummow and Hayne JJ). Although the AAT is not bound by the rules of evidence, it is a matter for the party seeking to rely on foreign law to adduce evidence upon which the AAT may make factual findings as to the content of the foreign law.[232]
(d)The submission that use of ECT in Turkish hospitals ‘was below expected rates from elsewhere,’[233] does not persuasively link to the submission that if DGPZ required maintenance ECT, there was a ‘high risk’ he would not receive it;
(e)The submission that DGPZ’s risk of ‘turning to drugs in Turkey to alleviate his isolations (sic) and distress,’ which in turn exposes him to risk of harm from the prospect of criminal detention, ‘where conditions are reported as abusive, harsh and degrading, and where basic health and mental health care is not available,’[234] is speculative.
[229] Exhibit T3; T4.
[230] Exhibit T3; T4.
[231] Exhibit T3.
[232] DKXY v Minister for Home Affairs [2019] FCA 495 at [41].
[233] Exhibit A1, 78.
[234] Ibid, 33 [174].
On balance, however, the Tribunal accepts that repatriation to Turkey would be very difficult for DGPZ after living in Australia for most of his life and finds this consideration weighs very substantially in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of DGPZ’s case as provided for in cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, DGPZ does not pass the character test. The nature of his persistent and prolonged criminal offending, including violence against his elderly mother and an intellectually-disabled former partner, is objectively very serious. That is particularly so given his frequent offending after being formally warned by immigration authorities in 2011.
DGPZ’s abstinence from illicit drugs since being arrested in 2015 represents a relatively brief period in what has been lifelong use of illicit substances since his teenage years. That abstinence has occurred in the aftermath of his arrest, under conditional liberty, while imprisoned, and in immigration detention. Any abstinence must also be considered in the context of DGPZ’s previously unfulfilled undertakings to cease drug use, commit to rehabilitation, and live a law-abiding life. He has instead relapsed into drug abuse and committed further offences. The unreliability of his past undertakings does not inspire confidence, particularly given his history of dishonesty and the Tribunal’s concerns about the veracity of his evidence.
DGPZ’s most recent offence, at the age of 50, is also his most serious. He caused his intellectually disabled female partner to suffer potentially life-threatening injuries. There is an unacceptably high risk that DGPZ will again relapse into drug abuse and commit further offences. The community would expect DGPZ’s visa to remain cancelled.
Of the other considerations enlivened in this matter, the Tribunal accepts that DGPZ’s ties are substantially in Australia. Repatriation to Turkey would pose considerable difficulties for him given he last visited the country approximately 13 years ago.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation of DGPZ’s visa. That is because the two relevant primary considerations weigh very substantially against revocation. These outweigh the other relevant considerations of ‘Strength, nature and duration of ties’ which weighs substantially in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs very substantially in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 138 (one hundred and thirty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………….
Dated: 3 February 2020

Date of hearing: 13, 14 & 15 November 2019

Advocates for the Applicant:
Mr Anthony Krohn

Solicitors for the Applicant:

Advocate for the Respondent:

Refugee Legal

Mr Tal Aviram

Solicitors for the Respondent:

Clayton Utz

Date of hearing:	13, 14 & 15 November 2019
Advocates for the Applicant:	Mr Anthony Krohn
Solicitors for the Applicant: Advocate for the Respondent:	Refugee Legal Mr Tal Aviram
Solicitors for the Respondent:	Clayton Utz