Karabay and Minister for Home Affairs (Migration) - [2019] AATA 167

Karabay and Minister for Home Affairs (Migration) [2019] AATA 167 (18 February 2019)
Division:GENERAL DIVISION
File Number: 2018/6950
Re:Ergun Karabay
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:18 February 2019
Place:Melbourne

The Tribunal affirms the delegate’s decision not to revoke the mandatory cancellation of Mr Ergun Karabay’s Class BC Subclass 100 Spouse visa.
..............[sgd]..........................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of a visa – consideration of discretion exercisable under s 501 of Migration Act – Ministerial Direction No. 65 – primary considerations – serious offending – attempted murder – previous pattern of aggression and violence – other considerations – whether complementary protection may be owed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Corrections Act 1986 (Vic), ss 74, 76
Corrections Regulations 2009 (Vic), reg. 83A
Migration Act 1958 (Cth), ss 499, 501, 501CA
Migration Regulations 1994 (Cth), reg. 2.52
Cases
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HGBY and Minister for Immigration and Border Protection, Re [2017] AATA 2824
HSKJ and Minister for Immigration and Border Protection, Re [2017] AATA 1802
R v Karabay [2009] VSC 669
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Department of Foreign Affairs and Trade – DFAT Country Information Report Turkey – 9 October 2018
Migration Act 1958 – Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under
s501CA (dated 22 December 2014)

Migration Act 1958 – Direction No. 75 – Direction under section 499 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (dated 5 September 2017)
REASONS FOR DECISION
Senior Member D. J. Morris
18 February 2019
Background

Mr Ergun Karabay (the Applicant) is aged 47 and is a citizen of Turkey. He first arrived in Australia in 1996. While in Australia he met his future wife, Ms Azime Karabay. They commenced a relationship and in October 1997 he returned with her to Turkey where they married in December 1999. In August 2002 the Applicant and his wife returned to Australia with the intention of permanently settling here. There were two children of the marriage, daughters born in 2003 and 2004. Both children are Australian citizens.
In October 2004 Mr Karabay was granted a Class BC Subclass 100 Spouse visa (the visa) under the relevant provisions of the Migration Act 1958 (Cth) (the Act). On

18 October 2016 this visa was mandatorily cancelled under section 501(3A) of the Act as a result of the Applicant having a substantial criminal record and being sentenced to serve a term of imprisonment of more than 12 months.
In November 2016 Mr Karabay made a request to the then Minister for Immigration and Border Protection (the Minister) that the mandatory cancellation of his visa be revoked and made representations in this regard. A delegate of the Minister decided not to revoke the mandatory cancellation on 16 November 2018. Mr Karabay now brings that decision to the Tribunal for review.
The hearing was held on 6 and 7 February 2019. The Applicant represented himself, made submissions and was cross-examined by Ms Ashlee Briffa, of the Australian Government Solicitor, representing the Minister. Mr Karabay’s sister, Mrs Anyur Yucel, gave evidence and was cross-examined. The Tribunal was assisted by interpreters in the Turkish language.
The Minister tendered two volumes of papers (described as G Documents (GD) and Supplementary G Documents (SGD) in these reasons). Both parties submitted Statements of Facts, Issues and Contentions. Other documents were also taken into evidence and are listed in Appendix 1 at the end of these reasons.
Legislative framework
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of Mr Karabay’s visa if he made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52) and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. It was not contested by the Minister that the Applicant had made representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A National Police Certificate dated 10 January 2018 (GD, p 9) was before the Tribunal. It records that on 8 May 2009 the Supreme Court of Victoria (the Supreme Court) convicted Mr Karabay of the offence of Attempted murder and sentenced him to a term of 10 years’ imprisonment. On the same date, the Court convicted the Applicant of the offence of Recklessly cause injury, and sentenced him to a term of 2 years’ imprisonment, one year of that sentence to be served concurrently. The aggregate sentence was therefore 11 years’ imprisonment.
Section 501(6) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’. A person has a substantial criminal record under section 501(7)(c) if the person has been sentenced to a term of imprisonment of
12 months or more. On the facts, the Tribunal finds that the Applicant fails the character test on the basis of the sentence passed on him on 8 May 2009.
The National Police Certificate also records a number of other offences against
Mr Karabay:
·On 9 December 2009 at Broadmeadows Magistrates’ Court, he was convicted of the offence of Criminal damage (intent damage/destroy); and two offences of breach intervention order. The Court sentenced him to an aggregate of 6 months’ imprisonment to be served concurrent with the term of imprisonment he was already serving. On the same date he was also convicted of the offence of Use carriage service to make threat to kill and fined $500.00.
·On 30 January 2009 at Broadmeadows Magistrates’ Court, he was convicted of the offence of Recklessly cause injury, for which he was sentenced to 4 months’ imprisonment, partially suspended (the term to be served being 2 months) with an operational period of 18 months. On the same date he was convicted of the offence of Breach intervention order and fined $1,000.00.
·On 31 July 2006 at Sunshine Magistrates’ Court charges of Unlawful assault and fail to render assistance after accident were found proven and he was fined $200.00 without conviction.
·On 14 April 2004 at Melbourne Magistrates’ Court a charge of Assault police was found proven and the matter was adjourned for one year.
Section 501CA relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Having found that Mr Karabay fails the character test, the sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked. The Federal Court stated in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
The Ministerial Direction
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. On 22 December 2014, the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. 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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in

Part C, which is divided into Primary considerations and Other considerations. The primary considerations in Part C are set out in paragraph 13(2) 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.
Other considerations set out in paragraph 14(1) of the Direction are: International
non-refoulement obligations; Strength, nature and duration of ties; Impact on Australian business interests; Impact on victims; and Extent of impediments if removed. 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).
The Tribunal considered each of the primary considerations and, as relevant, the other considerations.
Primary considerations
Protection of the Australian community (paragraph 13.1)
This part of the Direction requires the Tribunal to have regard for the nature and seriousness of the conduct of the non-citizen to date and the risk to the community should he commit further offences.
The nature and seriousness of the conduct (paragraph 13.1.1)
Mr Karabay’s first offending occurred on 20 July 2003, just short of a year after he returned to Australia to settle. The Victoria Police record (SGD, p 159) records that police were called after reports of a brawl. They approached Mr Karabay who threw a carjack at them. The report says that he remained aggressive so police used capsicum spray. The report also states that Mr Karabay sustained an injury to the head. The incident resulted in the charge of Assault police for which the Applicant appeared in Court in April 2004.
In February 2005 the Victoria Police report (SGD, p 157) records that Mr Karabay and another offender smashed and broke the window of a car and assaulted the driver.

Mr Karabay told the Tribunal this was the result of a dispute over payment for some bricklaying work he had done, for which the person who engaged him had refused to pay. This incident led to the charges (found proven by the Court) of Unlawful assault and fail to render assistance after accident in 2006.
The most serious offending by Mr Karabay took place on 25 August 2008. The context, admitted by the Applicant, was that in 2006 he commenced an affair with Mrs Azu Tankir. Mr Karabay was at this time still married to his wife and, as mentioned above, they had two young daughters. Mrs Tankir was also married and had three young children. Mr Karabay described their affair as ‘turbulent’. The relationship continued, on and off, with, the Supreme Court records, some fifteen separations in 2007 (GD, p 12). At one point in October 2006, after Mrs Tankir rejected Mr Karabay’s proposition of a sexual liaison involving a third person, the Applicant ‘became abusive and threatened to kill her’ (GD, p 12). In July 2007 there was a roadside incident where Mr Karabay punched and kicked Mrs Tankir. As a result of this incident, Mrs Tankir obtained an Intervention Order against the Applicant.
In relation to the roadside incident, this led to charges of assault being laid and the 2009 conviction for the offence of Recklessly cause injury. It appears that, in spite of the Intervention Order being in place prohibiting contact between Mr Karabay and Mrs Tankir, they continued to contact and see each other, and the Tribunal accepts that this contact was initiated by both parties. Mr Karabay admitted that, in these contacts, he was breaching the Intervention Order but these breaches were not brought to the attention of police until a breach in 2008 when the Applicant was charged with breaching the Order.
At the beginning of August 2008, Mrs Tankir took out a fresh Intervention Order, to be in force for two years. On 25 August 2008 at about 3.00 a.m. Mr Karabay drove to where Mrs Tankir lived. She and her husband operated a pizza café and their residence was at the back of the shop. What happened next is outlined in the reasons for sentence in R v Karabay [2009] VSC 669, where Curtain J said, at [6]-[10]:
On this night Mrs Tankir’s husband was at work, and she was asleep with her three children. She was awoken by the sound of smashing glass, and on going to investigate saw you coming through a broken glass window at the front of the shop.
It appears that you had armed yourself with a hammer and smashed the glass to get in. Mrs Tankir, fearing for her safety and that of her children, returned to the back room and lay across her children who were asleep in the one bed, so as to protect them. You picked up a vegetable knife and followed her in to the back room and proceeded to stab Mrs Tankir multiple times to the right side of her body.
In the course of the attack the child [name redacted], aged ten, was injured. Throughout the attack you were yelling, “I told you I would kill you”. Mrs Tankir lay still and feigned death. You stopped attacking her and left. Mrs Tankir was able to call the emergency number before collapsing, and police and ambulance responded. She was taken to the Royal Melbourne Hospital where was diagnosed with multiple stab wounds.
She was later examined by the Registrar in clinical forensic medicine and was found to have suffered nine incised wounds, being to her back, right upper arm, right scapula, right buttock, right rear thigh, right upper abdomen, and right calf, more significantly, one wound is described as having nicked her liver and another wound as having pierced one of her lungs, and it was this wound which was said to be life threatening.
All the incised wounds required suturing, and Mrs Tankir remained in hospital for three days. The child, [name redacted], suffered a superficial wound to the leg which required some treatment from a doctor, but did not require suturing.
Her Honour went on to describe that, after leaving Mrs Tankir’s residence, Mr Karabay arranged to meet some friends. He told these friends what he had done and they persuaded the Applicant to give himself up and accompanied him to a police station where he was arrested and taken into custody.
The Direction requires decision-makers to view violent crimes very seriously, and states that crimes committed against vulnerable members of the community, such as children, are serious. It is clear that from his very first offending, there has been a vein of violence that has been consistent in the nature of Mr Karabay’s offending, and that violence steadily escalated to culminate in the events of August 2008.
The Tribunal notes the statement of Dr Dewitt Oosthuizen, Registrar in Emergency Medicine, Royal Melbourne Hospital, dated 8 September 2008 (SGD, p 281).

Dr Oosthuizen examined Mrs Tankir when she was brought to the hospital by ambulance after the stabbing. He wrote in his statement:
The injuries appear to have been caused by a sharp instrument or object for example a knife. The pneumothorax to her right lung could have potentially been fatal if not treated in a timely manner in which the pneumothorax resulted was from a stab wound to the upper body.

In his evidence to the Tribunal, Mr Karabay said he understood that Mrs Tankir was scared of him. He said that on the night in question he wanted to talk to her. He said he did not know why he took a hammer with him to the pizza café. He said he remembered her screaming when he smashed the window and went inside. Mr Karabay said he knew that Mrs Tankir had three children and their ages but said he did not know, at that time, that she had a husband.
Mr Karabay said he did not see the children that night and when Ms Briffa put to him that he had been convicted of the crime of Recklessly cause injury because he stabbed the 10 year old son of Mrs Tankir, he said he ‘didn’t mean to, I didn’t know they were there.’

Mr Karabay said he did not know that the children were present that night until ‘a couple of years later’.
Mr Karabay said he knew that he had stabbed Mrs Tankir several times but did not realise how many times until he was later told. It was noted that Mr Karabay pleaded guilty before the Supreme Court. Mr Karabay told the Tribunal that he did not realise he was pleading guilty to an attempted murder charge and that he had been told by his legal representatives that he could get a sentence of between 18 months and 2 years.

Mr Karabay said nevertheless he accepted the sentence and the punishment and ‘put my head down’.
Ms Briffa took the Applicant through written statements of Mrs Tankir. Mr Karabay did not accept several instances, in the lead up to the night of the stabbing, where Mrs Tankir had described in her statements his aggressive or threatening behaviour towards her. When he was reminded that one statement had been taken following the stabbing while

Mrs Tankir was still hospitalised and he had been arrested after giving himself up, and that she would therefore have little motive to fabricate details of his past behaviour,

Mr Karabay persistently said that he would accept that he slapped Mrs Tankir once, but would not accept other parts of her statements about his conduct prior to the night of the attempted murder.
The risk to the Australian community of re-offending (paragraph 13.1.2)
In terms of the risk to the Australian community should the Applicant commit further serious offences or engage in other serious conduct, the Tribunal found Mr Karabay’s evidence significantly unsatisfactory. He attempted to minimise aspects of his conduct towards Mrs Tankir leading up to the night in August 2008 when he broke into her house and stabbed her. Significantly, when taken through Mrs Tankir’s statement which was before the Supreme Court, Mr Karabay chose to cavil with certain aspects of her claims, however it is evident from Her Honour’s remarks on passing sentence that the history of the relationship, turbulent as it undoubtedly was, as set out by Mrs Tankir in her statement, is consistent with the history that Mr Karabay himself gave to a clinical forensic psychologist, Mr Patrick Newton, engaged by his own lawyers, and which resulted in a report before the Supreme Court. A copy of Mr Newton’s report was not before the Tribunal but the Tribunal is satisfied that the weight of evidence serves to corroborate the contemporary account of the history of the relationship as reported by Mrs Tankir and accepted by the Supreme Court.
Curtain J said at [22] (GD, p 16):
Despite your present abstinence, Mr Newton is of the opinion that you are at risk of relapse into heavy drinking, which of itself, would constitute a significant risk factor for further aggressive behaviour when you are released and that you should in the interim and at the earliest possible opportunity, participate in appropriate education and counselling to address your drinking problem. I note in this regard that you have already undertaken a short educational course on alcohol use, but in Mr Newton’s view you will need to undergo a structured intensive treatment program.
Mr Karabay provided to the Tribunal evidence of a number of courses he has undertaken whilst incarcerated to enhance both his employability and his interpersonal skills. Of note is a report by a prison officer that he has attended alcohol education programmes and ‘takes [h]is sobriety very seriously’ (GD, p 42). The Tribunal also notes (Exhibit A5) a certificate dated 12 December 2018 from a senior clinician from Caraniche at Middleton Prison that Mr Karabay had voluntarily participated in a clinical assessment with that organisation and had been waitlisted to participate in the next drug and alcohol treatment program at the end of January 2019.
It would appear from a review of the reports from the corrections authorities that

Mr Karabay has been a well-behaved prisoner who has not only used his time whilst serving a sentence of imprisonment productively but has consistently observed required rules. Mr Newton in his report referred to by the Supreme Court concluded that the Applicant’s anger is likely to be the most intensive in interpersonal relationships and when he is disinhibited by alcohol. Relevantly, the Tribunal notes that Mr Karabay and his wife divorced in 2013 and he has not been in a personal relationship since that time.
The Tribunal accepts that Mr Karabay was frank in admitting that abuse of alcohol played a large part in his aggressive behaviour and contributed to the circumstances surrounding the attempted murder conviction, and did not seek to suggest that this amounted to any form of mitigation. In her oral evidence the Applicant’s sister Mrs Yucel amplified this by her view, from her observations of her brother, that his increased drinking played a part in his offending behaviour and in the breakdown of his relationship with Mrs Tankir and, as it transpired, his divorce from his wife.
The sentencing Judge concluded that Mr Karabay’s prior history, before the events of October 2008, suggests that his problem with violence and anger is ‘an established one and not confined to interpersonal relationships.’
The Tribunal is not confident, from the evidence of the Applicant, that he fully accepts responsibility for his serious offending. He sought to deny certain claims by Mrs Tankir which had been accepted by the Court and which, at the time of the sentencing, had been corroborated by him to Mr Newton. Most egregiously, Mr Karabay’s statement to the Tribunal that he did not know that Mrs Tankir’s children were present at her house on the bed, being shielded by her, ‘until two years later’ is simply not believable. It is clear from all the evidence that she was lying atop her three children when she was violently attacked, and that one of them was also stabbed by the Applicant.
The inconsistency in Mr Karabay’s evidence to the Tribunal, about events which must reasonably be considered to be etched in his memory because they led to a very significant prison sentence, leads the Tribunal to the conclusion that while on the one hand genuinely remorseful about the injuries he inflicted, on the other Mr Karabay continues even now to attempt to diminish his own criminal conduct, in the offending that night and in the offences beforehand.
Mr Newton’s conclusion in 2008 was that Mr Karabay would benefit from a structured intensive treatment program and that such a program has not been available to him in prison. It is not clear from the papers before the Tribunal that such a structured intensive treatment program has since been available, although there is some evidence of courses undertaken by Mr Karabay in relation to better dealing with alcohol. Taking into account the evidence, the conclusion the Tribunal has reached is that there remains a significant risk of the Applicant re-offending, especially if he is placed in a situation of stress. The Tribunal concludes that this risk is at a level which is not acceptable.
This primary consideration weighs against restoring the Applicant’s visa.
The Tribunal notes that the Applicant became eligible, by order of the Court, for parole in 2016. A delegate of the Minister at the then Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) cancelled his visa on 18 October 2016. Mr Karabay said that, as a consequence, he was informed by the Adult Parole Board (the Board) that they would not consider any request for parole. In addition he said that he was reclassified from a prisoner who had been allowed to undertake supervised work outside the prison (in a ‘bush gang’ (Exhibit A1)) to one who was not.
Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal made its own inquiries about this matter. The Corrections Act 1986 (Vic) provides, at section 76 of that Act, that a prisoner on parole is still deemed to be serving a sentence. Section 74(4)(a) of that Act provides that parole may be granted with conditions.

The Corrections Regulations 2009 (Vic) provide at regulation 83A(1)(i) that a prisoner on parole may not leave Victoria without the permission of the Board. The Board does not usually grant parole to a prisoner whose visa has been cancelled because that person may then be taken into immigration detention and potentially removed out of the State by the Department to be detained in an interstate detention facility. The Board takes the view that the consequence would be that a mandatory condition of the prisoner’s parole, which the Board is charged to apply, would have been breached.
Best interests of affected minor children in Australia (paragraph 13.2)
As referred to above, Mr Karabay has two daughters, now aged 15 and 13. The Tribunal accepts the evidence that he loves his daughters and that loss of the ability to have regular contact with them is a significant factor in his decision to bring this application for review.
The Minister accepted that the evidence Mr Karabay submitted indicates that he remains in contact with his daughters and that they would be adversely affected were he to be repatriated.
The Tribunal notes Mr Karabay’s evidence that his former wife has now remarried and that she remains the primary carer for their daughters. Understandably, the prison term Mr Karabay has been serving has restricted his contact with his children. He told the Tribunal that he last saw his older daughter in December 2014 and his younger daughter in 2015; Mrs Yucel brought them to the prison. He said he has talked to his daughters on the telephone ‘once or twice a week’. Mr Karabay said that he had an amicable relationship with his former wife and this was corroborated by Mrs Yucel in her evidence. The Applicant said that he planned to discuss with his former wife some caring arrangement for their daughters, if he is allowed to stay in Australia, but that he had not yet done so.
Mr Karabay conceded that he had been unable to assist his children financially since his incarceration, but said that he had told his wife to sell his car and use the proceeds for the benefit of the children.
The Direction states that less weight should generally be given where the relationship between the non-citizen and the minor children is non-parental and there have been long periods of absence or limited meaningful contact. The Respondent’s written submissions stated that Mr Karabay is not in a ‘parenting role’. Care must be taken in making such an argument out. The Tribunal considers there is a distinction between the guidance in the Direction which directs decision-makers to assess effects on minor children who are, on the one hand, not the children of a non-citizen and, on the other, those who are. Factually, Mr Karabay’s relationship is parental. However, the second limb of that part of the Direction is relevant in that Mr Karabay’s personal interaction with his children has been very limited and sporadic for several years. He is not their primary carer, their mother is. There was no evidence before the Tribunal about whether the new husband of the Applicant’s former wife fulfils a parental role.
The Direction requires decision-makers, where there are two or more affected children, to give individual consideration to their best interests to the extent that those interests may differ. There was no evidence before the Tribunal of any particular differences; the two girls are close in age and the Applicant made no submissions about any particular special considerations, one to the other. While, as the Supreme Court found, and the Tribunal has also found, the Applicant has a history of aggression and violence, there was no evidence before the Tribunal of any aggression or violence being directed by Mr Karabay towards his immediate family.
In Australia, Mr Karabay has two adult nephews (sons of his sister Mrs Yucel) aged in their 30s, and he advised the Tribunal that one of them has minor children to whom he occasionally speaks on the telephone, but there was scant information before the Tribunal about any role that Mr Karabay plays in the lives of his great-nephews. The Tribunal concludes that role is peripheral because of the time the Applicant has been incarcerated (see paragraph 13.2(4)(a) of the Direction) and other persons already fulfil a parental role in relation to these children (paragraph 13.2(4)(e) of the Direction).
The Tribunal finds that this primary consideration weighs in favour of restoring

Mr Karabay’s visa, but that weight is somewhat abated by the limited contact he has had with his two daughters. They were four and five at the time of sentence and are now in their mid-teens.
Expectations of the Australian community (paragraph 13.3)
The Direction makes clear that non-citizens are expected to obey Australian laws whilst in this country and that ‘Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.’ In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J at [76] stated that this consideration is, in Her Honour’s words, ‘inextricably linked’ to the protection of the Australian community.
Aggressive and violent behaviour are unfortunate hallmarks of Mr Karabay’s criminal conduct in Australia, commencing from less than a year after he came to this country to live permanently. It is clear, too, that as the Supreme Court found, the attempted murder of Mrs Tankir and the reckless injuring of her son may be properly characterised as very serious examples of domestic violence.
Putting aside the evidence that Mr Karabay was intoxicated (which is no defence) on the night of the attempted murder, the Supreme Court said there was an element of premeditation in the offending. Mr Karabay armed himself with a hammer when he drove to Mrs Tankir’s residence that evening. He smashed a window when he was refused entry, and entered the house. He then took up a knife he found at the house and violently attacked a woman trying to protect her young children, and in the attack additionally hurt one of those children. One of the stab wounds might have had, on the medical evidence, life-ending consequences for the children’s mother.
The Tribunal concludes that the nature of the offending is such that the Australian community would expect that the Applicant not hold a visa, and that this primary consideration therefore weighs heavily against restoring the Applicant’s visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
The Direction requires decision-makers to consider Australia’s obligations under the

1951 Convention relating to the Status of Refugees and other international treaties to which Australia is a party. This means the Tribunal must examine whether Mr Karabay will be at risk of a specific type of harm if repatriated to Turkey. The Tribunal must not only consider what is called convention-related harm, but also any other non-convention related harm of which it has evidence.
The Tribunal cannot ignore the consideration of international non-refoulement obligations on the basis that an Applicant could make a valid application for another visa if the mandatory cancellation were not revoked (see BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456). Direction No. 75 was made by the Minister for Immigration and Border Protection on 5 September 2017 and came into operation on 6 September 2017 (Direction No. 75). Relevantly, Part 2 of Direction No. 75 says:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
1)The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.
In Re HGBY and Minister for Immigration and Border Protection [2017] AATA 2824 Member Kennedy stated at [157]:
It is now settled that I must assess any international non-refoulement obligations that might arise if HGBY is returned to Country A. In this regard, the Full Court in Minister v BCR16 [2017] FCAFC 96 set aside a decision of an Assistant Minister who had followed the approach set out in the Direction, albeit not bound by the Direction itself, to the effect that it was considered unnecessary to determine whether non-refoulement obligations are owed to a non-citizen where that

non-citizen could make a valid application for another visa, relevantly, of course, a protection visa.
The Tribunal in that case went on to say that his assessment of this consideration would, necessarily, be abridged. Deputy President Kendall (as His Honour then was) said in

Re HSKJ and Minister for Immigration and Border Protection
[2017] AATA 1802, at [89]:
In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
The Tribunal adopts this approach. It is necessary to consider this part of the Direction in respect of any protection-related claim contended by the Applicant, but the scope and depth of that consideration is limited to the material that is before this Tribunal.
Mr Karabay contends (Exhibit A1) that he understands that friends of family of the victim (the Tribunal presumes he is referring to Mrs Tankir) are ‘making plans to harm me upon my return to Turkey’. He elaborates in his written statement:
My sister has been travelling to Turkey and informs me that there are men that keep enquiring about my whereabouts that wish to cause me serious harm armed with guns and other weaponry. They have been coming to the house of my mother asking for me. They have also been to my brothers’ houses and are seeking a revenge for the damage I inflicted on a member of their family.
The Tribunal is aware that instances of ‘honour killings’ and other intimidation has been reported in some parts of Turkey when the reputation of a family is thought to have been damaged by the activities of an individual (see paragraph 3.82 of the DFAT Country Information Report Turkey, 9 October 2018). However ‘honour killings’ and related intimidation appear generally to be initiated by members of a family which considers its honour has been impugned, which is not a contention made by the Applicant in his submissions.

Mr Karabay said that he did not advise the Department of these reported threats because he only learned of them sometime after his sister, Mrs Yucel, had returned from a visit to Turkey and reported them to him. Mrs Yucel also submitted a written statement (Exhibit A8) and gave oral evidence. She wrote:
Another reason I am worried about my brother returning to Turkey is that I fear that upon his return to the country he would be killed as a result of the family of the victim of Ergun’s crime honouring the crime of their family member by executing revenge on Ergun. This type of practice is common in Turkey and the police turn a blind eye to it especially in the villages. I had not felt the need to bring this to Ergun’s attention because I did not know of his deportation status until near his earliest date of release in 2016. I also did not want him to have that on his mind as he has already endured quite a lot. I also really only found out how serious it was when my brother died in 2017 and I travelled to Turkey to visit my mother and other family members. It is then that I was informed that armed men had been making appearances at our mothers’ [sic] farm looking to find Ergun and asking when he would be back.
The same men I believe have also been to the houses of two of our brothers in Turkey who have already disowned Ergun as a result of his offending and would happily see Ergun handed over to these men upon his arrival. My brothers and Ergun are at odds with one another and they too would also like to see honour restored for what Ergun did and this would definitely be to inflict harm and probable death to Ergun.
The Tribunal spent considerable time hearing submissions and evidence from Mr Karabay and Mrs Yucel in relation to these claims. In his oral evidence Mr Karabay said Mrs Yucel had told him about these claims when she visited him in prison and he believed that men had gone to his mother’s house ‘two or three times, I don’t really know’. He said they had apparently asked his younger brother where Mr Karabay was.
Mrs Yucel in her oral evidence said that she visits her mother in Turkey about twice every year. She said in 2016, a few months prior to her finding out Mr Karabay’s visa was cancelled, while visiting her mother in Turkey, her mother had told her about ‘cars coming to the valley’ where the family farm is situated, and about people in these cars yelling as they drove past the family house. Mrs Yucel told the Tribunal these people did not visit her mother, but they drove past and yelled out threats, apparently mentioning the Applicant’s name. She said her mother did not know who the people were.
The Tribunal asked Mrs Yucel about her two surviving brothers who live in Turkey. One brother, she confirmed, lives in the family home on the farm with their aged mother; the other lives in Ankara. Mrs Yucel said she has had no contact with the second brother for some years after a family falling out.
From the evidence given at the hearing, it would seem to the Tribunal that the claims made in relation to specific harm awaiting the Applicant lack authenticity. Mrs Yucel’s evidence was that her mother had told her about some unknown people driving past her farm and yelling out. Contrary to what was said in her statement, in her oral evidence there was no mention of ‘weaponry’ or of these people actually ‘visiting’ her mother, in fact, Mrs Yucel said they did not visit the house. One brother, on her evidence, lives with their mother, and does not live separately, as her statement implies. Mrs Yucel confirmed she has had no contact with the brother who lives in Ankara for some years and, in answer to a direct question from the Tribunal, has not visited him in Ankara, so this would also seem to be at odds with her claim that these ‘armed’ people had also allegedly visited his house there.
Mr Karabay’s contentions about these claim are, he admitted, third-hand. Mrs Yucel, herself, had no first-hand knowledge of these claimed people, only what her mother, who she said was greatly aged, had told her during her visit to Turkey. The Tribunal concludes that this is very frail evidence to support a conclusive finding that Australia owes protection obligations to the Applicant. After careful consideration, the Tribunal concludes that these claims are inchoate and, in the absence of any corroboration at the hearing, and with the oral evidence conflicting with written second-hand assertions, these contentions are not sufficient to make out a claim for complementary protection from harm. The Tribunal notes in answer to a question from Ms Briffa, Mr Karabay agreed that Turkey has a functioning police force. It is therefore reasonable to conclude that if there was some threat to his personal safety, he could bring it to the attention of the police.
Noting the Minister’s submissions at the hearing that it is open to Mr Karabay to make an application for a protection visa which may involve provision of more detailed evidence, on the basis of what information was before this hearing, the Tribunal concludes that this consideration weighs neutrally in this merits review.
Strength, nature and duration of ties (paragraph 14.2)
Mr Karabay has resided in Australia for some 17 years. Apart from his two daughters, he has a sister here. He told the Tribunal his sister has two sons and one of those sons has children, and he maintains contact with these relatives. He is particularly close to his sister, Mrs Yucel, who was widowed in tragic circumstances, a significant driver in Mr Karabay coming to Australia to settle. It is notable that he first came to the attention of the police less than a year after permanently settling here, and the Direction requires decision-makers to take this factor into account in weighing this consideration.
The Tribunal accepts there is evidence that Mr Karabay was a good worker before he was imprisoned, and that he has an offer of employment on release, if allowed to stay in Australia. As such, the Tribunal reasonably concludes he was a contributor to the Australian economy. The weight of this consideration in favour of the Applicant is lessened by the early nature of the commencement of his offending and the time Mr Karabay has been incarcerated.
The Tribunal considers that, owing to the effect his deportation would have on his immediate family, particularly his children and his sister who lives in Australia, this consideration on balance weighs slightly in favour of restoring the visa.
Impact on Australian business interests (paragraph 14.3)
The Direction requires a decision-maker to consider the impact on Australian business interests if a non-citizen’s visa cancellation is not revoked, noting that employment links would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in this country.
The Tribunal has referred elsewhere in these reasons to Mr Karabay’s employment history. There is no evidence that this consideration is otherwise engaged, so it was not considered further.
Impact on victims (paragraph 14.4)
There was negligible evidence before the Tribunal about the impact on the victims, apart from the fact that Mrs Tankir had applied for, and been granted, a lifetime Intervention Order against Mr Karabay approaching her. Mr Karabay told the Tribunal he has had no contact with Mrs Tankir since the night of the major offending. While the Court noted that the events of 25 August 2008 would have been traumatic for Mrs Tankir and the three children, the Tribunal is limited in any detailed assessment, so in the absence of any such information, the Tribunal did not consider this consideration further.
Extent of impediments if removed (paragraph 14.5)
The Direction requires the Tribunal to consider the extent of any impediments a

non-citizen may face if repatriated in re-establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The following factors must be taken into account: the person’s age and health, any substantial language or cultural barriers, and any social, medical or economic support available in their home country.
There is no evidence that Mr Karabay is not in good health. He gave evidence that he left school in Turkey at a young age and started work. He then established a successful kebab shop for some years before selling it. He later worked in Turkey in his own taxi business (Exhibit A1) and on the family farm (where his mother and one brother still live). In Australia, Mr Karabay told the Tribunal that he had been very successful as a bricklayer, making enough to buy a family home. He has provided evidence of a number of trade courses he has undertaken whilst in gaol, which is to his credit.
In Turkey, apart from his mother and two surviving brothers, Mr Karabay has three other sisters (GD, p 78) but he did not provide any further information about his relationship with them, nor about their ability to assist him if he is repatriated.
The Tribunal considers that there are no substantial impediments to Mr Karabay should he be repatriated to Turkey. He lived there for around the first 30 years of his life and, on the evidence, had gainful employment for all of his adulthood. He is fluent in Turkish and, in addition, now has a very good understanding of English. These skills, together with the others he has gained in Australia and his own consistent past employment record, in the Tribunal’s view increase Mr Karabay’s employability.
The Tribunal finds this consideration weighs in favour of revoking his visa.
Conclusion
The main offence on 25 August 2008 of which Mr Karabay was convicted was a very serious one. It could easily have ended the main victim’s life, and it caused injury to a little boy being defended by his mother in a most traumatic circumstance. This offending appears to have been an act carried out in an exceptionally passionate rage, perhaps fuelled by alcohol. However, it occurred in the context of other earlier examples of violence perpetrated by the Applicant where alcohol did not play a part.
The Tribunal has found that a primary consideration in the Direction, the best interests of Mr Karabay’s minor children, support him being allowed to have a visa to remain in Australia. However, the weight of the other primary considerations, the protection of the Australian community and the expectations of the Australian community, for the reasons set out above, support the revocation of that visa, and in the exercise of the discretion as to whether there is another reason why the mandatory cancellation decision should be revoked, the Tribunal finds that these primary considerations which weigh against the restoration of the Applicant’s visa outweigh those considerations that support restoration.
DECISION
The Tribunal affirms the delegate’s decision not to revoke the mandatory cancellation of Mr Ergun Karabay’s Class BC Subclass 100 Spouse visa.

I certify that the preceding 83
(eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.....................[sgd]..................................
Associate
Dated: 18 February 2019

Date(s) of hearing: 6 & 7 February 2019

Applicant: In person

Advocate for the Respondent: Ms Ashlee Briffa

Solicitors for the Respondent: Australian Government Solicitor
Appendix 1
List of Exhibits
A1       Applicant’s Statement of Issues, Facts and Contentions and attachment
A2       Statement of Mufit Altunsoy, dated 5 December 2018
A3       Statement of Burhan Tiren, dated 5 December 2018
A4       Statement of Atilla Toplu, dated 6 December 2018
A5       Letter from Amy Gross, Caraniche Middleton Prison, dated 12 December 2018
A6       Statement of Osman Tiren, dated 14 December 2018
A7       Statement of Kemal Yucel, dated 18 December 2018
A8       Statement of Anyur Yucel, dated 22 December 2018
A9       Bundle of photographs and drawings lodged 6 February 2019
A10Information about post sentence orders for prisoners and parolees, Department of Justice and Regulation – Corrections Victoria, dated August 2018, lodged on 4 January 2019

R1 Paginated G Documents, lodged 14 December 2018
R2 Paginated Supplementary G Documents, lodged 31 January 2019

Date(s) of hearing:	6 & 7 February 2019
Applicant:	In person
Advocate for the Respondent:	Ms Ashlee Briffa
Solicitors for the Respondent:	Australian Government Solicitor