Kalan and Minister for Home Affairs (Migration) - [2019] AATA 787

Kalan and Minister for Home Affairs (Migration) [2019] AATA 787 (2 May 2019)
Division:GENERAL DIVISION
File Number: 2018/2449
Re:Birgun Kalan
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris

Date:2 May 2019
Place:Melbourne

The Tribunal affirms the reviewable decision.
..............[sgd]..........................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – application for prospective marriage visa – application refused under s 501(1) of Migration Act – sponsor of Applicant seeks review of refusal decision – consideration of character test and powers of discretion in Act – can Tribunal go behind conviction when applicant convicted in absentia – ministerial Direction – primary considerations – other considerations – serious nature of conviction – reviewable decision affirmed
Legislation
Extradition Act 1988 (Cth), s 55
Extradition (Turkey) Regulations 2003 – Sch 1
Migration Act 1958 (Cth) ss 338, 347, 501
Migration Regulations 2004 (Cth), reg 2.08E
Cases
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jagroop and Minister for Immigration and Border Protection, Re [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Madafferi and Minister for Immigration and Multicultural Affairs, Re [2000] AATA 450
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Secondary Materials
Migration Act 1958 – Direction No. 79 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (dated 20 December 2018; commenced 28 February 2019)
Treaty on Extradition between Australia and the Republic of Turkey, done at Canberra 3 March 1994.
REASONS FOR DECISION
Senior Member D. J. Morris
2 May 2019
Background

On 3 May 2018 Ms Birgun Kalan asked the Tribunal to review a decision made by a delegate of the Minister for Home Affairs (the Minister) on 12 April 2018 to refuse to grant her husband, Mr Tamer Talipoglu, a Prospective Marriage (Temporary)(Class TO) visa (the visa). The delegate was not satisfied that Mr Talipoglu passes the character test and decided to exercise her discretion under section 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse his application for a visa.
Ms Kalan has standing to bring the application for review of the decision to the Tribunal because of section 347(2)(b) of the Act, which allows a sponsor or nominator of a person of a Part 5 reviewable decision under section 338 of the Act to seek review. The refusal of Mr Talipoglu’s visa is such a decision.
The hearing was held on 15 and 17 January 2019. Ms Kalan was represented by

Mr Greg Hughan of counsel, instructed by Mr Attila Mete. Ms Ashlee Briffa of the Australian Government Solicitor represented the Respondent. Ms Kalan gave evidence and was cross-examined. Mr Mert Kalan, her son, also gave evidence. Mr Steve Wilson gave evidence by telephone. Mr Talipoglu gave evidence by telephone from Turkey, as did Ms Meral Bingol, a lawyer practising in Turkey. The Tribunal was assisted by interpreters in the Turkish language.
The Respondent tendered a volume of relevant documents (RD) which was taken into evidence (Exhibit R1). The Applicant submitted the following documents which were also taken into evidence:
·Court Record – Decision of the Turkish Nation (Exhibit A1);
·Bank statements of Tamer Talipoglu (A2);
·Letter from Mr Steve Wilson of Royal Comfort Pty Ltd (A3);
·Amnesty International Report 2000 – Turkey (A4);
·Council of Europe Report on Turkey dated 7 December 2000 (A5);
·Home Office, UK, Turkey Country Report dated October 2003 (A6);
·Character reference from Mr Hasan Mansuroglu of the Alevist Cultural Association dated 23 December 2018 (A7);
·Written statement of Ms Birgun Kalan as amended dated 30 November 2018 (A8);
·Written statement of Mr Mert Kalan as amended dated 30 November 2018 (A9);
·Written statement of Mr Tamer Talipoglu (English translation), dated 30 November 2018 (A10);
·Written statement of Ms Meral Bingol, lawyer, dated 29 November 2018 (A11).
The Applicant and the Respondent both submitted Statements of Facts, Issues and Contentions (ASFIC and RSFIC, respectively).
Mr Talipoglu is aged 49 and is a citizen of Turkey. On 30 June 2015 he applied for the visa on the basis that he had become engaged to Ms Kalan. He stated that he first met

Ms Kalan in person on 9 September 2014 and that he intended to marry her in January 2016. Mr Talipoglu disclosed two previous marriages in his visa application (RD, p 83 and 96), the first from 1996 to 2003 and the second from 2006 to 2011, both of which ended in divorce. He has three children from those marriages, who reside in Europe.
Mr Talipoglu and Ms Kalan married on 31 March 2017 (A8). The Respondent drew the Tribunal’s notice to regulation 2.08E, subregulation 2A of the Migration Regulations 2004, which states:
(2A) Subregulation (2B) applies if:
(a)a person (the applicant) applies for a Prospective Marriage (Temporary)(Class TO) visa (the visa application); and
(b)         the Minister refuses to grant the visa; and
(c)the applicant or the sponsor of the applicant makes an application for review of the Minister’s decision to the Tribunal (the review application); and
(d)         the review application is made in accordance with the Act; and
(e)in the period after the Minister’s decision is made and before the review is finally determined, the applicant marries the person who was specified, in the application for the visa, as the applicant’s prospective spouse; and
(f)          the applicant notifies the Tribunal of the marriage; and
(g)         the marriage is recognised for the purposes of the Act.
(2B)       For paragraph 342(c) of the Act, the Tribunal must remit the application to the Minister for reconsideration, with the direction be taken to also be an application
a)    for (i) a Partner (Migrant)(Class BC) visa; and (ii) for a Partner (Provisional)(Class UF) visa, and
b)    that is made on the day that the visa application is remitted to the Minister.
The Tribunal accepts Ms Kalan’s notification in her written statement of the date of the marriage as fulfilling the requirements of subregulation (2A)(f).
Form 47SP – Application for migration to Australia by a partner, contains at Part I questions regarding an applicant’s character. Mr Talipoglu ticked the box marked ‘yes’ to two questions: Have you been convicted of any offence in any country (including any conviction which is now removed from official records)? And, have you been associated with a person, group or organisation that has been involved in criminal conduct?
Mr Talipoglu also answered ‘yes’ to a question about service in a military or police force. He attached the English translation of a decision of the 2nd High Criminal Court, Turkey (RD, p 37).
The record indicates that Mr Talipoglu was convicted on 27 February 2004 of crimes related to his involvement in a human organ trafficking ring. The record appears to indicate that Mr Talipoglu was sentenced to a one year prison sentence, which was reduced to a period of 10 months, wholly suspended (RD, p 70).
The Tribunal also had before it (RD, p 22) an English translation of a Republic of Turkey Results of Judicial Records Interrogation, dated 23 February 2017. That document records that Mr Talipoglu was convicted of drug offences in October 2006 and was the subject of drug treatment and probation orders in 2007 and 2009. The document is not specific about the offending, but Mr Talipoglu submitted (ASFIC, p 3) that the offending related to possession of cannabis for personal use and that he was sentenced for one year imprisonment, reduced to 10 months, and ordered to undertake a drug treatment and supervision order for twelve months.
Legislative framework
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Section 501(6) sets out the grounds for failing the character test. It states, in part:
(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) states, relevantly in this matter, in setting out what a substantial criminal record is:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or.…
The Applicant (ASFIC, p 1) conceded that Mr Talipoglu does not pass the character test in the Act because he had been convicted and sentenced to two periods of imprisonment in Turkey for which the total of the two terms was more than 12 months’ imprisonment, so he therefore has a substantial criminal record by force of section 501(7)(d) of the Act.
On the basis of the evidence from the Turkish Court record and the Judicial Records Interrogation that Mr Talipoglu has been sentenced to two or more terms of imprisonment where the total of those terms is more than 12 months, the Tribunal finds that the Applicant has a substantial criminal record and fails the character test on that basis.
The sole issue before the Tribunal, therefore, is whether there is another reason why Mr Talipoglu’s visa application should be refused under section 501(1) of the Act.
Ministerial Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to grant

Mr Talipoglu a visa consulted Direction No. 65, made under section 499 of the Act. On

20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs (who is jointly authorised with the Minister for Home Affairs to administer the Act) made a fresh direction under section 499, namely Direction No. 79. Direction No. 79 (hereafter referred to as ‘the Direction’) commenced on 28 February 2019 and (at section 3) revokes Direction No. 65 from that date. Section 499(2A) of the Act requires that the Tribunal must comply with the Direction in considering this matter; the correct Direction for the Tribunal to consider is Direction No. 79 (see Deputy President Forgie in Jagroop and Minister for Immigration and Border Protection [2015] AATA 571, at [59], upheld by the Full Federal Court in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.)
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Relevantly, the Direction includes the following principles at paragraph 6.3:
(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.
In deciding whether to refuse a non-citizen’s visa, the Direction requires a decision maker to take into account considerations set out in Part B. Part B is divided into ‘Primary considerations’ and ‘Other considerations.’ The primary considerations in Part B are set out in paragraph 11(1) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’
Paragraph 12(1) of the Direction sets out other considerations in relation to refusal of a visa (the Direction actually refers to ‘deciding whether to cancel a visa’ [sic] but this appears to be a printing error in the instrument as the relevant paragraph is headed ‘Other considerations – visa applicants’). They are: ‘International non-refoulement obligations; Impact on family members; Impact on victims; Impact on Australian business interests.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).
Evidence of Ms Kalan
Ms Kalan said she was born in Australia of a Turkish family. At the age of 6 she returned to Turkey with her parents. She later returned to Australia in 1998, aged 22. She married her first husband in Turkey and they had their older son there. She divorced her first husband in 2009. She told the Tribunal she and her father came from an Alevi community. The Tribunal is aware that Alevism is a syncretic, heterodox and local tradition of the Islamic Faith and adherents make up the largest religious minority group in Turkey, the majority of the population being Sunni Islam.
Ms Kalan said she first met Mr Talipoglu in February 2014, having been introduced to him by friends and first interacting with him on ‘Skype’ (a telecommunications application). She said she had various exchanges with him over a period of seven months before she went to Turkey to meet him in person in September 2014, accompanied by her two sons.
Ms Kalan said she spent about seven or eight weeks in Turkey on that occasion, with

Mr Talipoglu and met his family and some of his friends. She said she went to

Mr Talipoglu’s village for an engagement ceremony, and they were engaged in September 2014.
Ms Kalan said she was aware of the offending history of Mr Talipoglu and told the Tribunal that, while she knew there was a decision made against him, she believed that the police had arrested him because he knew another person who was involved, but Ms Kalan did not believe that Mr Talipoglu had been involved in the ‘organ mafia’, because ‘their activities disgust both him and me.’
Ms Kalan returned to Australia in October 2014 and maintained contact with her now fiancé. In 2017 she and her sons returned to Turkey for about seven or eight weeks and she and Mr Talipoglu were married in Tarsus in March that year. She lived with

Mr Talipoglu at his house during this visit while her sons lived at her family home village, which was nearby.
Ms Kalan told the Tribunal that Mr Talipoglu was employed in forestry, which was also the trade of his father and grandfather and did other handyman-type work. He is also a gifted musician, playing the baglama (a traditional stringed instrument), and gave music lessons, specialising in Alevi music. Ms Kalan explained that she is a member of the Alevi Community in Dandenong.
Ms Kalan said that Mr Talipoglu had told her about how he had taken cannabis in the past when he went through his separation and subsequent divorce but she has only seen him smoke tobacco.
In terms of her own circumstances, Ms Kalan confirmed that she had two sons, aged 18 and 20, and had been working in the past as a hairdresser. She told the Tribunal that her ex-husband had moved to another city and had little contact with her or their children. She provides the main support to her sons who still live at home, at this stage.
In terms of the trial which led to Mr Talipoglu’s conviction connected with illegal human tissue explanting, Ms Kalan said she was aware he attended Court on one occasion and was given a statement to sign. She said he then went to Germany for a music festival and to work, and to visit his sister who lives there, so he did not attend the further Court hearings when the substantive trial took place. She said that, before he left for Germany, he told his father if he heard anything about the case to get a family friend, who was a lawyer, to ‘deal with it’ and found that when he returned to Turkey the Court had already made its decision.
Ms Briffa asked Ms Kalan why Mr Talipoglu did not challenge the conviction, if he felt he had been wrongly found guilty. Ms Kalan said that, as he had been to Court and had been allowed to leave by the judge after giving a written statement, he thought he was not guilty. She said that, as he did not receive a summons or other correspondence from the Court, Mr Talipoglu’s lawyer did not attend the hearing.
When asked directly by the Tribunal why Mr Talipoglu didn’t take steps to appeal his conviction, Ms Kalan said he did consult with his lawyer who told him the matter was finalised and there was nothing further that he could do.
Evidence of Mr Mert Kalan
Mr Mert Kalan, the younger son of Ms Kalan, gave evidence. He has just completed his high school education and at the time of the hearing was awaiting advice from two universities about whether he would be accepted to enrol in courses.

Mr Kalan said he met Mr Talipoglu in person for the first time in March 2017. He had been to Turkey several times before that visit. Mr Kalan said that he was aware that his mother had commenced a Skype friendship with Mr Talipoglu before she told him and his brother that a romantic relationship had developed.
Mr Kalan said he felt comfortable with the relationship and liked Mr Talipoglu, believing he would fill a ‘father figure’ role in his and his brother’s lives, which had been absent since their father had left the household. He said he had made his own independent electronic contact with Mr Talipoglu so that he could find out more about him as well as speaking with the friend who introduced the couple, and was satisfied with the result.
Mr Kalan said he and his brother were present at the engagement ceremony and had developed a personal relationship with Mr Talipoglu. He said Mr Talipoglu provides him with help and advice. He said he had discussed Mr Talipoglu’s past offending with him, and it was his view that, if Mr Talipoglu had been better represented by his lawyer, a charge would not have eventuated. He said that Mr Talipoglu openly admitted his previous cannabis conviction but he did not believe that his stepfather had any involvement in the illegal human tissue explanting group.
Evidence of Mr Tamer Talipoglu
Illegal Organ Explanting
Mr Talipoglu denied that he had any involvement in the organ explanting ring.

Mr Talipoglu gave evidence that he was taken in for questioning by police in Istanbul, where he was living in January 2000. He said he was asked whether he knew a Mr Niyazi Sahin. He said he did know Mr Sahin through a monthly music magazine with which he was associated and told the police that Mr Sahin ran a business exporting citrus fruit to Bulgaria.
Mr Talipoglu said he was treated roughly by the police, kept in custody in a darkened room and continually questioned about how he knew Mr Sahin and ‘what he knew’, but he could not make sense of it and was beaten and tortured. He said a police officer typed up a statement but the police officers would not allow him to read the contents and demanded he sign it, which he eventually did.
He said that his ex-wife had sent a lawyer to the police station, a Mr Gurkhan Atabay. He said Mr Atabay asked to read the statement, but the police did not allow him to, saying the statement had been sent to a more senior officer and there was no copy. Mr Talipoglu said he was then released.
Two months later Mr Talipoglu said he was called to attend Court, where the prosecutor told him what was in the statement. He said, at that hearing, the judge asked him whether he knew the content of the statement and he replied that he did not. He told the judge he had signed it under duress and had been made to sign it.
Mr Talipoglu said he was questioned at the hearing ‘about approximately 20 people.’ When asked how the Court proceedings concluded, he said ‘it was ascertained that the statement he signed was not correct, it was announced I would be acquitted or let go.’ He said he did not have legal representation at this hearing, because his lawyer was caught in traffic and although he did arrive late, the Court refused to admit him because of his lateness.
When asked about the 20 or so other persons charged and whether they were released, Mr Talipoglu said the judge decided they would be tried but not kept in remand.
Mr Talipoglu said he went to Germany around 2004, after his divorce, for an Alevi Cultural Festival. He said he had a visa allowing him to stay in Germany for six months, and he then returned to Turkey.
When he returned to Turkey, Mr Talipoglu said he talked to a female lawyer who was a family friend and told her he had never received any official notification from the Court after his first hearing, and asked if she could investigate the matter for him. He told the Tribunal that she wrote to the Court and found that Mr Talipoglu had been sentenced to one years’ imprisonment, which was then reduced to ten months, and then again reduced to a fine.
Mr Talipoglu was asked whether he went to prison at all, or paid the fine. He said he did not go to prison and did not know who paid the fine or whether it was ever paid.
Under cross-examination, Mr Talipoglu was asked whether he thought his initial arrest was because the police had made a mistake, or because they had targeted him. He said that after he had reflected on the events, he felt he was targeted because he is Alevi. He said he was targeted because he had a friendship with Mr Sahin and also because he had more of a public profile than others, being known for his music. He told the Tribunal that music magazines had articles about him and his Alevi singing and poetry.
Mr Talipoglu agreed that the ‘organ mafia’ case was well-known in Turkey at the time and he was ashamed to have been involved with it, and that ‘I couldn’t tell anyone.’
Ms Briffa asked Mr Talipoglu about his written statement of 5 July 2015 (RD, p 75) where he wrote, in regard to his Court appearance:
One week later, I received a letter at my home address. I was called in to the Court, where the judge asked my [sic] some names. As I heard the name of Niyazi, I said that I knew him. Then, the judge asked me whether I had read the statement taken by the police or not. I replied that I had signed it without reading it. So, he said that it was invalid. Then, he asked if I chauffeured the mafia or not. I replied that I cannot drive and even I did not have a driving license. Upon that, everybody stood up as the judge would read aloud the decision. It was decided to release me while jailed pending trial of the others. That’s all. I have never seen Niyazi or his wife afterwards.
Ms Briffa asked Mr Talipoglu what he meant by the word ‘pending’. He responded that ‘many were held but I was not; the case had finished. I was being tried while out of prison.’
Ms Briffa then asked Mr Talipoglu whether he understood that the trial was continuing, and he replied: ‘I thought it was finished when they released me. I didn’t mean I was being tried – I was acquitted, let go.’
Mr Talipoglu was asked, if he thought he had no further obligation to the Court, why he had asked the female friend of the family who was a lawyer, when he returned to Turkey from Germany in 2004, to follow the matter up. He responded that he was applying for a job in a factory and needed a police certificate, which is where he saw the conviction recorded which prompted him to ask this lawyer to investigate the matter.
Ms Briffa said to Mr Talipoglu that the statement from Ms Meral Bingol, lawyer, suggests an appeal was lodged. He responded that this was done by Mr Atabay, the first lawyer who attended him at the police station when he was first arrested. Ms Briffa noted that

Mr Atabay is also recorded as acting as counsel for Mr Talipoglu at the substantive trial and suggested that it was implausible that Mr Atabay would have lodged an appeal without instructions from his client and without payment.
Mr Talipoglu said that he had given Mr Atabay a power of attorney in order to act on his behalf, but had done this prior to the appeal. Mr Talipoglu said he didn’t pay him, because

Mr Atabay was a relative of his ex-wife.
Drug offences
In terms of drug taking, Mr Talipoglu said he started smoking cannabis because he was stressed by his marriage breakup and divorce, but does not drink alcohol at all. He said he had not used cannabis since 2006. He said he had been arrested in 2006 for using cannabis and served five months in prison (receiving a 10 month sentence but the Court counting half of it as ‘already served’). He told the Tribunal he completed a treatment order made by the Court that required him to provide urine samples about every 10 or 20 days, and he was required to visit a sociologist every month for a period of 12 months. He told Mr Hughan that his period of 10 months was halved owing to his good behaviour.
Failure to pay child support
Mr Talipoglu said he lived in Austria with his then wife and their child. She was originally from his village in Turkey but lived in Vienna. He lived there with her from 2010 to 2012, before separating. He said he paid child support to her until he returned to Turkey but ceased to pay as he was not in a financial position to make the payments.
The Respondent asked Mr Talipoglu whether there was a period in Austria when he was not paying child support to his ex-wife, and he said that there was ‘maybe a period of one month when I did not pay.’ He agreed that he had not paid child support since he returned to Turkey in 2012.
Ms Briffa asked Mr Talipoglu about evidence that he was investigated for stealing some items from a discotheque. He said he was unaware of this matter until he obtained a police certificate from Austria in connection with his visa paperwork to apply to enter Australia.
Evidence of Ms Meral Bingol
Ms Bingol is a lawyer practising in Ankara in Turkey and gave evidence at the hearing by telephone in English. She said she had been asked to look at the Court documents relating to the illegal human tissue explanting trial at which Mr Talipoglu was one of

26 defendants.
Ms Bingol confirmed that Mr Talipoglu received a one year sentence, with a one-sixth reduction. She said that a one-sixth reduction is a general criminal law reduction which is however imposed at the discretion of the sentencing judge relying on a convicted person’s previous history, appearance and good conduct, and that the sentence finally imposed was 10 months, not 12 months.
Ms Bingol said that she had gone to the Court and obtained the paper files relating to the trial. She told the Tribunal that much of it was not very legible and that there was no lawyer representing Mr Talipoglu at the trial but there was one reference to an appeal being lodged; she could not find any defence submissions, only the appeal document.
Under direct questioning from the Tribunal, Ms Bingol said the matter was initially listed before a lower Court which decided it did not have jurisdiction and then it went to the

2^nd High Criminal Court where a panel of three judges heard it at trial. She said it was a high profile case in Turkey, attracting much media attention, and proceedings lasted two years, commencing in 2002 with a final decision on 27 February 2004. Ms Bingol said that over the period the Court held sittings three monthly for the case.
She said that if a person is required to attend the Court, they receive written notification and, if they have legal representation, that notification is sent to their lawyer. In relation to times of sitting, the Court does notify the parties but, in terms of evidence lodged, a party must pay another party for notification of any submissions or evidence lodged with the Court in relation to a case.
When asked directly whether it is rare for a person to receive a one-sixth reduction if the person has not taken part in the proceedings, Ms Bingol said that was not rare, and it happens ‘generally speaking.’ She said the Court documents reveal that Mr Talipoglu’s sentence was reduced because (1) he did not have a prior conviction and (2) because the Court believes he will not commit another crime.
Ms Bingol said it was not uncommon in Turkey for a person to give a power of attorney to a lawyer to monitor a case and that this gives the lawyer the authority to act in every form, including representation and making submissions, unless the power of attorney is limited. She said that the lawyer then has a legal responsibility to act for their client and, in the event that they can’t make contact, they must formally advise them they are closing the case.
Ms Bingol said she did not believe Mr Atabay attended the Court because she looked at the attendance books for the days of the trial, and he was not recorded as being present. She wrote in her statement (Exhibit A11), at [16]:
It is noted that when I went through the archive, I could see a lawyer on record but could not see any assistance or submissions by the lawyer in support of Tamer Talipoglu. In my opinion Tamer Talipoglu was not defended professionally and the name of the lawyer was not listed in hearing days as present suggesting that the lawyer did not actively take part in the defence.
Evidence of Mr Steve Wilson
Mr Wilson gave evidence by telephone that he owns a company that undertakes home renovations and French polishing. He said he had known Ms Kalan for eight years and had spoken to Mr Talipoglu by phone and several times through the internet. He said he was prepared to offer Mr Talipoglu work if he comes to Australia, noting that on his evidence he did not drive, but he felt this was surmountable and Mr Talipoglu could get a drivers licence once he was here. Mr Wilson was asked whether he was aware that

Mr Talipoglu does not speak English and he said he was not, because they had conversed in Turkish, but felt that also was not a major obstacle because Mr Wilson said he would be the person dealing directly with customers.
Applicant’s closing submissions
Mr Hughan submitted that the Tribunal should conclude that the correct and preferable decision is for the visa not to be refused. He said that it was commonly expressed that the Tribunal could not go behind a conviction, citing the decisions in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 and Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 (Ali), but submitted that in Ali [at 43] the Full Court of the Federal Court stated there was no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based. Mr Hughan submitted that an exception to the general rule of not going behind a conviction was applicable in this case, where a conviction was recorded in absentia, and referred to a decision of Deputy President Blow, QC (as Blow CJ then was) in Re Madafferi and Minister for Immigration and Multicultural Affairs [2000] AATA 450 (Madafferi). That matter related to certain convictions of the Applicant, in absentia, by a Court in Italy. DP Blow said, at [10]:
I am most reluctant to attach any weight to findings made by criminal Courts in absentia. Conducting criminal trials in absentia is repugnant to Australia’s system of justice, except in very rare cases (e.g. when a prisoner absconds during his trial and the trial is continued in his absence).
Mr Hughan said that Ms Bingol’s evidence corroborated that the first conviction was recorded in absentia and as such the Tribunal is not bound by the settled authority to give that conviction and sentence the finality of a judgment recorded after a trial at which a person was present. Mr Hughan also submitted that the recording of the conviction was based on a statement that was ‘coerced as a result of torture which demonstrates that the Turkish criminal justice system is not ‘pre-eminently suited to the determination of the guilt of persons charged with criminal offences’ (ASFIC p 10-11), and so the Tribunal should ignore the basis of the illegal human tissue explanting conviction recorded in 2004 and proceed on the basis that, although Mr Talipoglu has a substantial criminal record in the terms of the Act, his only criminal conduct is the possession of a small quantity of cannabis in 2006.
Respondent’s closing submissions
Ms Briffa said there was no disagreement between the parties that Mr Talipoglu fails the character test because of the two 10 month sentences imposed on him. She submitted that it was clear that Ms Kalan genuinely loves Mr Talipoglu and that it was also clear from the evidence that her sons have their mother’s best interests at heart.
Ms Briffa submitted that the Tribunal must consider the evidence through the lens of the Australian community and that members of that community would be ‘horrified’ if a person involved in the smuggling of human organs should be allowed to come to Australia to live.
Ms Briffa drew the Tribunal’s attention to the remarks of Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, at [78]:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
Ms Briffa submitted that the relevant factors in the Direction need to be considered, and that Mr Talipoglu has not been living in Australia or contributed to this country. She said the Tribunal should consider the type of visa being applied for, which provides a pathway to permanent residency. She said that the Tribunal can infer a level of recklessness on the part of Mr Talipoglu in terms of his cannabis convictions given that Turkey has very strict drug laws, and also should regard his failure to pay child support as serious conduct.
In terms of re-offending, the Respondent in oral submissions said that the risk may be low, but that given the nature of the offending, any risk that such activity would be repeated is unacceptable (RSFIC, para 27).
The Respondent conceded that the impact on family members if Mr Talipoglu is not granted a visa weighs in favour of setting aside the decision under review but noted that it was open for Ms Kalan to live with Mr Talipoglu in Turkey, should she choose to.
CONSIDERATION
As mentioned above, the Tribunal must consider Mr Talipoglu’s application for a visa against the considerations set out in Part B of the Direction.
Protection of the Australian community (paragraph 11.1)
Decision-makers must 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. Decision-makers are required to give consideration to the nature and seriousness of the non-citizen’s conduct to date, and the risk should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 11.1.1)
In respect of the illegal human tissue explanting trial, the (translated) Court record was before the Tribunal (RD, p 37-50). The Court found that a criminal enterprise with international contacts was established in Turkey with the specific purpose of illegally smuggling kidneys. The enterprise included doctors and academics. The record relevantly said:
It was determined that the buyers of kidney were from Israel, France, England and the kidney givers were from old USSR such as Romania, Bulgaria, Ukraine, Moldova, Belarus and Russia, the kidney givers, who were found by the members of criminal enterprise and whose economic conditions were not good, were persuaded by the mediators and the interviews were made with the defendant Yusuf Ercin Sonmez, the givers were supplied by this way the kidneys taken out from these people against very cheap costs were sold to buyers against excessive prices.
The Court further recorded: ‘the defendant Tamer Talipoglu mediated for kidney givers and buyers for criminal enterprise.’ It went on to record:
The defendant TAMER TALIPOGLU stated that he met with Kenan Sehit through Niyazi Sahin, he did not participate in criminal enterprise and he did not accept the previous statements which he had given related to this subject.

Later in the Court record, Mr Talipoglu is named with seven other defendants as acting together:
to find poor people to donate kidneys and persuade these people to sell kidneys against a minimum wage and thus this organization known as ‘Organ Mafia’ in the public opinion brought rich kidney patients both in Turkey and abroad, especially from Israel, to Turkey for transplantation of kidneys of poor people both in Turkey and from countries such as Moldova, Romania, Bulgaria, the provisions of the organ transplantation law were not complied with in these transplantations…
The wicked nature of this criminal enterprise may be clear by the evidence one witness (RD, p 45) gave at the trial that she was told by a medical practitioner member of the ring that a poor friend could have both of her kidneys explanted, ‘because she could live for 45 days without kidney[s]’ and in the meantime could source some cheaper kidneys from Iraq to be implanted, bought with part of the money she was paid for her own.
There is no doubt that, by any objective assessment, a criminal enterprise established for the purpose of inducing an impecunious person to sell a kidney for an economic return so that a wealthy person in need of a kidney transplant can benefit, circumventing the established law, in this case in Turkey and, it would appear, in several other countries, is abhorrent. It is an exploitative trade with scant regard for human dignity and with potentially fatal consequences, both for the donor and the recipient. It was not surprising to the Tribunal that the evidence of Ms Bingol was that this trial was a cause celebre in Turkey over many months, widely reported in the media.
Mr Talipoglu asserts that he had no involvement in this ‘organ mafia’ ring whatsoever, and submits that he was only implicated because of a friendship with Mr Sahin.
The Tribunal has carefully considered the submissions made by Mr Talipoglu and on his behalf. He has claimed that he was tortured and made to sign a statement by the police that he was not allowed to read. He said that, on later reflection, he considered this was because he is an Alevi. He said that he was asked at the initial Court hearing about the statement and the judge declared it was ‘invalid’. He told the Tribunal he believed he was acquitted and had no further connexion with the matter, which is why he didn’t follow matters up, went to Germany and only apparently found out about the conviction when he later applied for a police certificate on returning to Turkey.
He said in his statement (A10):
It was around this time that I had also separated from my first wife. Due to being down as she did not let me spend time with my children, I went to Germany. I believe that Court documents continued to go to my ex-wife. I was under the impression that given my statement that it was clear that I was not involved in the enterprise. Whilst I was overseas [sic], I believe that my father arranged a lawyer to attend Court for me for the judgment and I did not otherwise speak to a lawyer or follow what was going on in the case because I did not believe that I could even be convicted of such a serious crime as I was not involved. It was naivety on my end and it seems that it resulted in a finding that I was involved in the enterprise at a low level.
In his evidence, Mr Talipoglu told the Tribunal that he had not heard anything about the outcome of the trial and asked a female lawyer who was a family friend to look into it. He said he did not know who paid the fine which the Court imposed as a substitution for his prison sentence. He told the Tribunal he thought he had been ‘acquitted’ after his first appearance in Court, and yet in his written statement (RD, p 75) said the Court decided to release him ‘pending’ trial of the others.
The Tribunal simply does not accept the oral evidence of Mr Talipoglu that he thought he was acquitted. It may be accepted that he was released after the initial Court appearance, but on his own written evidence he knew that the trial was pending. The fact that the Court record of the substantive trial recorded not only that Mr Atabay was present as counsel representing Mr Talipoglu, and also that the Court recorded that Mr Talipoglu made a statement denying a part in the criminal enterprise leads me to the conclusion not only that he had representation but also that the Court did take into account either a statement he made or defence submissions made on his behalf about his lack of involvement. However the Court rejected this statement or submission or, at best, took them into account in determining the level of Mr Talipoglu’s involvement in the illegal human tissue explanting ring as not being a principal offender.
What is a mystery is that the only statement Mr Talipoglu referred to being considered by the Court (and which is also referred to in Ms Bingol’s statement), is the statement which he said was written by the police and which he was coerced to sign. This statement admitting involvement, Ms Bingol writes, was false, and Mr Talipoglu said the judge at the first hearing ‘said it was invalid’. Putting aside that the Court did not accept it, how, then, did the Court refer to a statement by Mr Talipoglu denying involvement, if it is asserted he was not present at Court and Mr Atabay was not present representing him?
It is also not entirely clear to me that Mr Talipoglu was not present at the hearing; we only have his word for that and the assessment of Ms Bingol based on what he told her and on her reading archived records long after the trial. I note that it is recorded that he received a reduction in his sentence because of his ‘respectful conduct’ at the trial; while this may be a term of art, another interpretation could be that he was present for part of the proceedings.
There are too many unanswered questions for me to accept Mr Talipoglu’s claims that he had no involvement whatsoever in this matter. Why did he, on his evidence, provide a written power of attorney to Mr Atabay if he thought that he had been ‘acquitted’? Why did Mr Atabay appear at the Court and, it would seem, either make oral submissions or submit documents to which the Court referred? Even accepting Ms Bingol’s evidence that she could not find Mr Atabay’s name among the attendance books relating to the trial, I also have to take into account her evidence that she noted he was recorded as counsel representing Mr Talipoglu and she found the archived Court records ‘illegible’ and incomplete.
Ms Bingol said in her statement that she was of the opinion that Mr Talipoglu ‘had substandard legal assistance during the hearing. There were no submissions made in support of his case.’ She also noted that Mr Atabay lodged an appeal on behalf of

Mr Talipoglu.
While the Tribunal may accept Ms Bingol had a genuine opinion that the legal representation afforded to Mr Talipoglu was in her opinion ‘substandard’, and that certain questions were not put to other defendants about his involvement in the ring, that is a professional assessment she has made and it is the Tribunal’s view that it does not provide the ingredients that would be essential for the Tribunal to take the exceptional step of impugning the Court’s findings.
In terms of the remarks in Madafferi, it may be accepted as an important principle that it is repugnant to the Australian system of justice for a person to be convicted of a criminal offence in absentia, but from Ms Bingol’s evidence such an approach appears a commonplace practice in Turkey where a person may provide a power of attorney authority to a lawyer to act for them, in their best interests, without the lawyer requiring regular instructions, or the Court requiring the defendant to be present.
It is axiomatic that the Tribunal must, on occasion, be examining criminal records of

non-citizens where a conviction is under foreign law. Submissions were not put to me that the trial itself was conducted irregularly, only that the fact Mr Talipoglu was convicted in absentia was sufficient reason for the Tribunal to depart from the settled line of authority of SRT, that, as set out in Ali at [37]:
…while the Tribunal may inquire into the circumstances of a conviction, it cannot do so if the true effect of conducting such an inquiry is to undermine the essential character and extent of the offending conduct that supports the conviction.
There were somewhat generalised submissions put that the judges who presided at the trial were subsequently imprisoned in relation to a national political scandal, but nothing explicit was stated about this point, and (even if there were evidence that this was so), no evidence was put to me that the judges acted corruptly or improperly in the trial itself.
The court record also shows (RD, p 49 and 50) that separate ‘conclusions on the punishment’ (in the words of the judgment) were made for each of the 26

co-defendants, and that Mr Talipoglu was listed among the eight in the first group, who were found guilty of being involved in the criminal enterprise. Some other

co-defendants were acquitted of being involved in the criminal enterprise, but found guilty of assisting in it. A third group of 14 co-defendants were acquitted on the finding of court that there was insufficient proof of their involvement in the criminal enterprise. This reinforces the Tribunal’s view that this trial may be viewed as a conventional curial process, where evidence was weighed by the panel of judges and findings of guilt or otherwise were made for each particular defendant.
I conclude, therefore, on the information before me that I cannot impugn the finding of the 2^nd High Criminal Court that Mr Talipoglu was, in fact, involved in the illegal human tissue explanting ring as a mediator. I might mention that Mr Talipoglu made much of the fact that he did not drive and said he had been accused of being a ‘chauffeur’ to members of the illegal human tissue explanting ring. This seems to me to be a red herring. The Court record refers to him being a ‘mediator’ and being present; it is only in his own statement that he alleges he was being accused of being a chauffeur.
It is not practicable for the Tribunal, in conducting an administrative review of this nature, to delve into the police and judicial practices of another country, and nor is it desirable so to do. The Tribunal notes that Australia has an extradition treaty with the Republic of Turkey and that fact gives some comfort that the Australian Government came to a considered view about the robustness of the judicial system there before that treaty was made in 1994.
Ms Bingol’s statement and oral evidence were useful in explaining the process of the trial and the general system of abatement of Court penalties in Turkey, but they do not persuade me that there was some manifest miscarriage of justice in Mr Talipoglu’s trial which, in extremis, may have led me in this consideration to ignore (or not take due account of), this criminal conviction, and I will not do so.
Having said that, the Tribunal does take into account, on the facts, that Mr Talipoglu’s sentence was for 10 months, later further reduced in length, and later still reduced to a fine of 900 YTL (around AUD$225). It may reasonably be concluded, therefore, that he was not a ringleader. It may also be reasonably concluded that the Court set this sentence after taking into account submissions in the statement to which they referred from Mr Talipoglu, and, maybe, defence argument.
Turning to Mr Talipoglu’s cannabis offending, the Tribunal may regard this as criminal offending, but not at the higher end of the scale. It would appear on the evidence before the Tribunal that he successfully completed the prison term and the treatment order imposed by the Austrian Court. In terms of the investigation for the alleged theft at the discotheque, the Tribunal did not consider this further because no conviction eventuated from it.
In terms of Mr Talipoglu’s failure to pay child support, his evidence shifted during the hearing in that he initially said he paid child support to his ex-wife until he returned to Turkey and then stopped paying because he couldn’t afford it. However, in later

cross-examination he changed his evidence to agree that he actually stopped paying child support around a month before he left Germany. This is an unsatisfactory abrogation of his responsibility to contribute to the financial support of his child.
While the Tribunal may on the evidence have concluded that Mr Talipoglu was not a major player in the illegal human tissue explanting ring, this criminal enterprise targeted persons who were economically vulnerable and liable to be exploited. As such, the Tribunal must have regard to the principle that crimes committed against vulnerable members of the community are serious (see paragraph 11.1.1(1)(c) of the Direction). In the Tribunal’s view, involvement in illegal human tissue explanting is of such a serious nature that the risk of any similar conduct in the future is, as set out in paragraph 6(4) of the Direction, unacceptable.
The Tribunal must have regard to the duration of Mr Talipoglu’s intended stay in Australia (paragraph 11.1.2(3)(b)(iii)), and the type of visa being applied for. He is seeking to come to Australia permanently, to settle here with Ms Kalan, his now wife. The fact that he has been found by a Court to have an involvement in such a repugnant criminal enterprise, carrying out a trade that objectively members of the Australian community would find obnoxious, and the fact that he has no prior connexions with this country before meeting Ms Kalan, militates against granting the visa.
The Tribunal finds that this primary consideration weighs against granting the visa.
Best interests of minor children in Australia affected by the decision (paragraph 11.2)
Both of Ms Kalan’s children are over 18 years old. There were no other minor children in Australia brought to the Tribunal’s attention by parties who may be affected by the decision, so the Tribunal did not consider this consideration further.
Expectations of the Australian community (paragraph 11.3)
The Direction states that: ‘Visa refusal may be appropriate simply because of the nature of the character concerns or the offences are such that the Australian community would expect that the person should not be granted a visa.’
The Tribunal accepts the evidence of Ms Kalan and Mr Kalan that they have no concerns at all about the character of Mr Talipoglu and, to the contrary, have found him nothing other than kind and considerate in their dealings with him. The Tribunal found the evidence of Mr Mert Kalan in this respect honest and impressive.
The Tribunal considers that the expectations of the Australian community must,

self-evidently, involve the weighing up of what a hypothetical member of the Australian community, who is properly apprised of the relevant facts, would think. In this respect, the Tribunal concludes that such a hypothetical person would have an expectation that the visa not be granted to a person convicted of a serious offence who has never been to Australia, in spite of the fact that he has recently married an Australian citizen. He has not made any positive contribution to the Australian community and has, putting aside the illegal human tissue explanting conviction, a somewhat chequered history in terms of his family responsibilities to his own children.
Ms Bingol in her statement recorded that Alevis have been subject to some discrimination and the Tribunal notes the UK Home Office report (Exhibit A6) states, at paragraph 6.153:
Alevis were reviled as non-Muslims of dubious loyalty, and to avoid persecution they practised dissimulation, taqiyya. Until the 20^th century, Alevis survived by living in remote areas, but with conscription and the drift to towns in search of work, Alevis, especially Kurds, have been increasingly exposed to Sunni prejudice and animosity.
The Tribunal may accept this as factual, but there was insufficient corroborative evidence before me that the fact that he is Alevi was the sole reason Mr Talipoglu was convicted, and that he was wrongly convicted, of being a mediator for the illegal human tissue explanting ring.
International non-refoulement obligations (paragraph 12.1)
This consideration is not engaged; Australia does not owe any international protection obligations to Mr Talipoglu as he has not ever entered this country.
Impact on family members (paragraph 12.2)
The Direction requires the Tribunal to assess the impact of a visa refusal on immediate family members in Australia, where those family members are Australian citizens, as in this case. The Tribunal accepts the genuineness of the marriage between Ms Kalan and Mr Talipoglu. While Mr Talipoglu said he would be keen for Ms Kalan to join him to make a life in Turkey should his visa not be granted, Ms Kalan herself said she would be unlikely to take that course, because of her two sons here. However, the Tribunal notes that her sons are now adults aged 18 and 20. One is about to embark on a tertiary course and the other is looking to work in a trade. They are beginning to make their way in the world, so it would be possible for Ms Kalan to relocate to Turkey to join her husband, if that were her ultimate decision.
I note there is evidence (RD, p 117) that Ms Kalan is suffering psychological stress in awaiting the outcome of Mr Talipoglu’s visa application, and that an adverse decision may have some impact on her mental well-being.
The Tribunal finds, on balance, given that the visa applicant is married to an Australian citizen, this consideration weighs in favour of granting the visa.
The other considerations set out in the Direction, Impact on victims (paragraph 12.3), and Impact on Australian business interests (paragraph 12.4) are not engaged in this consideration.
Conclusion
The Tribunal finds that, having failed the character test, it is not satisfied that there is another reason why the visa should be granted to Mr Talipoglu. It may be that he is a person who would make some genuine contribution to Australia, and in particular Alevi Faith adherents who reside in this country, with his baglama music, singing and other skills. However, the unanswered questions surrounding his involvement, and the level of that involvement, in what was a major criminal enterprise and the inconsistency in

Mr Talipoglu’s evidence mean that the benefit of the doubt cannot be safely given to him. The Tribunal will not, to use the words in Ali, undermine the essential character and extent of the conduct for which he has been found guilty.
The provisions of the Act and the ministerial Direction are essentially designed to support the architecture of border protection and, thereby, contribute to the cohesion of Australia’s multicultural society. It is not conducive to that aim to grant a visa with a pathway to permanent residency to a person who has never been to Australia and who has been convicted of a serious offence in an area of criminality which would meet with condemnation in any society.
DECISION
The Tribunal affirms the reviewable decision.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

............[sgd]............................................................
Associate
Dated: 2 May 2019

Date(s) of hearing: 15, 17 January 2019

Counsel for the Applicant: Mr Gregory Hughan

Solicitors for the Applicant: Mr Attila Mete, AUM Lawyers Pty Ltd

Solicitors for the Respondent: Ms Ashlee Briffa, Australian Government Solicitor

Date(s) of hearing:	15, 17 January 2019
Counsel for the Applicant:	Mr Gregory Hughan
Solicitors for the Applicant:	Mr Attila Mete, AUM Lawyers Pty Ltd
Solicitors for the Respondent:	Ms Ashlee Briffa, Australian Government Solicitor