KCFS and Minister for Immigration and Border Protection (Migration)

[2017] AATA 539

KCFS and Minister for Immigration and Border Protection (Migration) [2017] AATA 539 (26 April 2017)

Division	GENERAL DIVISION
File Number	2017/0664
Re	KCFS
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Member K. Parker
Date	26 April 2017
Place	Melbourne

The Tribunal affirms the decision under review

[sgd]....................................................................

Member K. Parker

MIGRATION - visa refusal on character grounds - nature and seriousness of conduct - risk of engaging in criminal conduct if allowed to remain in Australia - discretion to refuse visa enlivened - where applicant convicted of multiple offences - need to protect Australian community from criminal misconduct - expectations of Australian community not met - applicant suffered hardship in childhood - strength, nature and duration of ties to Australia - impact on applicant and family if visa refused - impact on victims - decision affirmed

Legislation

Migration Act 1958 (Cth)

Crimes Act 1958 (Vic)

Cases

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135;
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, (1999) 56 ALD 349; [1999] FCA 1197

Mlinar and Minister for Immigration & Multicultural Affairs, Re (1997) 48 ALD 771

Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; (1999) 57 ALD 257; (1999) 30 AAR 74; [1999] FCA 1238
Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578; (1991) 102 ALR 19; (1991) 91 ATC 4646; (1991) 22 ATR 307

Secondary Materials

Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA; 22 December 2014

REASONS FOR DECISION

Member K. Parker

26 April 2017

introduction

1. The Applicant (KCFS) is a citizen of Turkey who has resided in Australia for the last 48 years.[1]  He was born in Turkey in 1954.[2]  As an infant, KCFS was sent away by his parents to live with his grandparents in Istanbul.  His grandfather died when KCFS was aged 7.  For most of his childhood, KCFS was raised by his grandmother. 

   [1] G-documents – page 23.  On 12 April 2017 the Minister filed a set of G-Documents and Supplementary G-Documents in this application (G-Documents).

   [2] G-documents – page 19 & 22.

2. KCFS was reunited with his parents and immigrated to Australia with them and his three brothers in 1969 at age 15.  At age 25, KCFS’s parents sent him back to Turkey at which time he joined the Turkish army for two years of National Service.[3] 

   [3] Refer paragraph 14 of KCFS’s Statement dated 27 March 2017 (Exhibit “A1”)(KCFS’s First Statement).

3. Following completion of National Service in Turkey, KCFS returned to live in Australia and was granted a Resident Return (Class BF-C) visa.  On 29 August 2012 this visa was cancelled on character grounds.  This Tribunal, differently constituted by Deputy President Constance, reviewed the decision to cancel KCFS’s permanent residence visa and affirmed this decision. 

4. On 5 April 2013, KCFS applied for a Protection (Class XA) visa.  On 8 July 2013, a delegate of the Minister refused to grant this visa.  KCFS applied for a review of this decision by the (then) Refugee Review Tribunal (RRT).  On 13 September 2013, the RRT affirmed the decision.

5. On 31 March 2014, the Federal Circuit Court of Australia made orders quashing the RRT’s decision and requiring it to rehear and determine the application for review, which took place on 16 December 2014.  The RRT remitted the matter back to the Minister for reconsideration on the basis that Australia had protection obligations with respect to KCFS under the Refugees Convention as amended by the Refugees Protocol.

6. On 25 November 2015 KCFS was issued with a Notice of Intention to Consider Refusal of his visa application (Notice), because the Department held information about his criminal history suggesting he may not pass the character test.  Extending back to 1970, KCFS’s criminal record comprised 38 convictions (of which he was sentenced to imprisonment (some of them suspended) for 21 of them and ultimately, served time in prison on three separate occasions).  Notably, KCFS was convicted of rape and intentionally causing serious injury following a horrific attack on a person known to KCFS that took place in 2005.  KCFS was sentenced to 11 years imprisonment (with an eight year non-parole period).  He served time in prison for these two offences from 2005 to 2013, following which he has since been held in immigration detention.  

7. On 31 January 2017, a delegate of the Minister of Immigration and Border Protection (Minister) subsequently refused to grant the protection visa to KCFS on character grounds under s 501(1) of the Migration Act 1958 (the Act). 

8. KCFS was notified of the decision to refuse his protection visa application on 1 February 2017.  On 8 February 2017, KCFS applied for a review of this decision by this Tribunal. 

9. After consideration of the evidence and the relevant legislative framework, this Tribunal affirms the decision of the Minister’s delegate to refuse KCFS’s protection visa application.

   ISSUES

10. KCFS has conceded that he does not pass the character test for the purpose of s 501(1) (and as defined in s 501(6) of the Act) because he has a substantial criminal record – refer to paragraph [3] of KCFS’s Statement of Facts, Issues and Contentions filed on 29 March 2017 and as confirmed by KCFS’s counsel at the hearing.

11. Accordingly, the issue for consideration by the Tribunal is whether KCFS’s protection visa application should be refused, taking into account the relevant considerations in Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

    legislative framework

12. Section 501(1) of the Act gives the Minister (or the Minister’s delegate[4]) the power to refuse to grant a visa, if an applicant is unable to satisfy the Minister that he or she passes the character test.  The Tribunal is endowed with jurisdiction to review decisions of a delegate of the Minister under s 501, by operation of s 500(1)(b) of the Act.[5]

    [4] By virtue of s 496 of the Act.

    [5] Subject to certain exceptions as set out in s 500(4A) of the Act.

13. The term character test is defined in section 501(6) of the Act.  A person is automatically deemed not to pass the character test in a number of circumstances, including where they have a substantial criminal record within the meaning of section 501(7) of the Act. 

14. As mentioned above, KCFS has conceded that he does not pass the character test, which leaves the Tribunal to determine whether the discretion to refuse the visa under s 501(1) of the Act should be exercised.

15. Guidance in exercising the discretion in s 501(1) of the Act can be found in the Direction which took effect on 22 December 2014. Section 499(2A) of the Act mandates that the Tribunal must comply with the Minister’s Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, Katz J).

16. Paragraph 6.1 of the Direction states, in part:

    6.1 Objectives

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

17. Paragraph 6.2 sets out General Guidance relating to the Government’s intent:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

18. The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:

    (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 a 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.

19. Paragraph 7.1(a) of the Direction states that a decision-maker ‘must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’

20. Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:

    ... Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa applicant will be approved.

21. This Tribunal is considering whether to affirm a decision to refuse to grant KCFS a protection visa, so Part B is applicable. The primary considerations under Part B are:

    (a)      Protection of the Australian community from criminal or other serious conduct;

    (b)      The best interests of minor children in Australia; and

    (c)      Expectations of the Australian community.

22. Other considerations that must be taken into account, where relevant, include (but are not limited to):

    (a)      International non-refoulement obligations;

    (b)      Impact on family members;

    (c)      Impact on victims; and

    (d)      Impact on Australian business interests.

23. Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.

24. Paragraph 12.1(2) of the Direction provides that the existence of a non-refoulement obligation[6] with respect to KCFS does not preclude the refusal of his visa application.  Australia will not remove him to Turkey if the protection visa is not granted. 

    EVIDENCE

    KCFS’s criminal history in Australia   

    [6] A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm – see 12.1(1) of the Direction.

25. A National Police Certificate dated 19 May 2015 lists KCFS’s convictions as summarised below, with offences attracting imprisonment penalties noted in bold:

COURT	COURT DATE	OFFENCE	COURT RESULT
Melbourne Childrens Court	10 April 1970	Indecent Assault on a Female	Without conviction. Probation 6 months.
Collingwood Magistrates Court	2 May 1974	Behave in Offensive Manner/Public Place	Convicted.  Fined $20.
St Kilda Magistrates Court	4 November 1977	Sell Indian Hemp Possess Indian Hemp	On each charge: convicted and fined $100.
Preston Magistrates Court	24 March 1982	Assault by Kicking Unlawful Assault Wilfully Damage Property (4 charges)	Convicted.  Fined $200. Convicted.  Fined $150. On each charge: Convicted and fined $100.
Melbourne Magistrates Court	27 August 1986	Intentionally Cause Injury	Convicted.  Community Based Order for 12 months to perform 150 hours.
Melbourne Magistrates Court	21 April 1989	Assault With Weapon (3 charges) Found Armed with Offensive Weapon/Instrument Behave in Offensive Manner/Public Place Theft Possess Pistol or Imitation Without Licence	1.  Imprisonment 1 month. 2.  Imprisonment 14 days concurrent. 3.   Imprisonment 7 days concurrent wholly suspended for 12 months. On each charge: Convicted and fined $200. Convicted:  Fined $100. Convicted: Fined $50.
Heidelberg Magistrates Court	19 July 1990	Intentionally Causing Injury Criminal Damage – Intent Damage/Destroy (4 charges) Unlawful Assault (2 charges) Breach re 21/4/1989 (Assault With Weapon x 3)	Imprisonment 3 months. On each charge: Imprisonment 1 month concurrent and concurrent. Sentences reinstated. 1.     Imprisonment 1 month. 2.     Imprisonment 14 days concurrent. 3.     Imprisonment 7 days wholly suspended for 12 months.
Frankston Magistrates Court	24 September 1991	Cultivate Narcotic Plant – Cannabis Possess Cannabis Use Cannabis	Convicted.  Fined $500. Convicted. Fined $250. Convicted. Fined $200.
Frankston Magistrates Court	3 May 1995	Make Threat to Kill Assault with Weapon (3 charges) Assault by Kicking Unlawful Assault (2 charges) Threat to Destroy/Damage Property Discharge Missile/Stone to Injure/Danger	One each charge: Imprisonment 4 months concurrent. Imprisonment 3 months.
Broadmeadows Magistrates Court	18 August 1995	Possess Cannabis	Without conviction.  Fined $150.
Frankston Magistrates Court	11 August 1998	Drunk in Public Place Breach Intervention Order	On both: Fined $600.
Melbourne Magistrates Court	9 May 2000	Breach Intervention Order	Fined $200.
Heidelberg Magistrates Court	23 August 2000	Theft from Shop	Fined $200.
Frankston Magistrates Court	21 February 2001	Breach Intervention Order	Convicted.  No penalty imposed.
Melbourne Supreme Court	6 August 2007 (Court of Appeal on 22 February 2007 following Crown appeal)	Rape Intentionally Cause Serious Injury	Imprisonment 8 years. Imprisonment 7 years. 4 years of sentence concurrent.  Total 11 years.  Non-parole period of 8 years.

1. KCFS accepted that the two offences, for which he was convicted in 2007, arising from conduct in 2005, were extremely serious and consisted of violent and sexual offences on a victim who was vulnerable at the time.[7]  KCFS’s twin brother was involved in the offence of intentionally causing serious injury but not in the offence of rape. 

   [7] Refer paragraphs 43 and 44 of KCFS’s Statement of Issues, Facts and Contentions.

2. The circumstances of those two offences were set out in the Court of Appeal sentencing judgment:

   The two respondents had known the victim ... for approximately 30 years.  About 15 to 20 years before the offence, both accused had had a falling out with [the victim], and they did not socialise with each other for some time.

   [KCFS’s twin brother] commenced to socialise with [the victim] again approximately 18 months before the date of the offences.  One the morning of 12 April 2005 [KFCS’s twin brother] met [the victim] at a mutual friend’s house in [suburb A].  They commenced drinking alcohol at those premises, and continued to drink alcohol throughout that day and the following night and morning.

   In the early evening of 12 April, [KCFS’s twin brother] and [the victim] left [suburb A] and drove to another friend’s flat in [suburb B].  At that time they were observed to be drunk but they were each in a happy frame of mind.   They departed from the [suburb B] premises shortly after 8pm, and travelled to KCFS’s flat in [suburb C].  At some stage during the evening the three men then went to a nearby hotel, where they drank and played pool for approximately two hours.  They then returned to KCFS’s flat and continued drinking there.

   [KCFS] has no real memory of the events which occurred after he arrived at [KCFS’s] flat.  However, at approximately 7.30am on the next morning, 13 April 2005, neighbours heard yelling and banging noises coming from the flat.  It appears that an argument had commenced inside the flat between [the victim] and the two respondents.  The argument became physical, and during it the three men moved outside to the courtyard area of the block of flats.  At the time various parts of the incident were witnessed by neighbours.

   [The victim] was observed to be lying naked on concrete in the courtyard and barely moving while he was attacked by both respondents.  [KCFS’s twin brother] repeatedly struck [the twin] with a brick to his head and his body.  At the same time KCFS struck [the victim] with a bicycle frame.  At some stage during the incident, the respondents rolled [the victim] on to his stomach and continued to hit him.  KCFS put down the bicycle frame and continued to hit [the victim] with the brick.  Both respondents were also observed to stomp on [the victim] and kick him in the head several times.  During that incident a witness heard one of the respondents yell out in Turkish “We will kill you, we will finish you off”.

   When the respondents ceased attacking [the victim], they attempted to conceal him from view by pushing his body into a 50 centimetre gap between the concrete floor of the veranda of the flats and the garden bed underneath it.  They were unsuccessful in that effort and after a while gave up.  They then went to an outside laundry nearby and washed themselves.

   The neighbours who had witnessed the attack on [the victim] contacted the police.  When the police arrived, they located [the victim] in an unconscious state in the courtyard where he had been attacked. He had six branches from a nearby tree protruding from his anus.  Those branches had been forced into his anus, during the attack, by KCFS.

   [The victim] was conveyed to the Royal Melbourne Hospital for emergency treatment.  He was found to have multiple and severe facial fractures, and a sub-dural haematoma.  He had sustained multiple and severe bruising to the head and body.  He was also found to have suffered multiple perforations to the rectum and the anal canal.  The six sticks inserted into his anus had each breached the rectal mucosa and ended up in the area of the pelvis, stomach, liver and heart.  The sticks caused serious internal injuries which required immediate surgery.  The rectum was beyond repair.  [The victim] will need to have a colostomy bag for the rest of his life.  It is clear that the injuries sustained by [the victim] were particularly serious and life-threatening.  He spent six days connected to a ventilator.  On the ninth day of his hospitalisation his condition deteriorated and he needed to return to theatre.  He remained in hospital until 6 May 2005.

   Both respondents were interviewed by the police.  KCFS initially claimed to have no recall of events.  However, on further questioning, he told the police he could remember [KCFS’s twin brother] and [the victim] pushing each other.  He then told the police he could recall punching [the victim] twice.  He said he did so because [the victim] was responsible for an earlier assault upon his brother, some twenty or more years previously, and that he was angry with [the victim].  He admitted throwing the bicycle frame at [the victim], but said that the frame did not hit him.  He could not remember how [the victim] became naked, or how the branches became inserted into his anus.  He agreed that after [the victim] ended up on the ground, neither he nor his brother attempted to give him any help.

1. Further, in the sentencing remarks of the Supreme Court of Victoria at first instance, the impact on the victim resulting from these crimes was outlined by the judge as follows:

   12.[The victim] was taken to hospital.  You were both arrested shortly thereafter.

   13.           The injuries that [the victim] suffered as a result of the attack were extremely severe.  He has massive amounts of bruising and swelling over his head and body.  He was treated for a subdural haematoma and multiple facila fractures.  He also suffered multiple perforations to the rectum and required immediate surgery for his abdominal injuries.  After six days connected to a ventilator and further surgery, he was discharged from hospital on 6 May 2005, some 23 days after the attack.

2. In a Statement made by KCFS on 10 September 2015[8], KCFS stated: “Even though I can’t really remember what happened on that day because all of the alcohol and drugs I had taken, it does not matter as I was the one that caused that to happen to my former friend”.

   [8] Refer pages 136 to 141 of the G-Documents.

3. At the hearing of this application, KCFS was questioned about the attack in 2005. He said that his twin brother and the victim had been drinking earlier and that “I didn’t have any drink that day.  My brother’s friend forced me”.  He said “I am ashamed of what I did to him and guilty”.   He said “I told them I don’t want to go.  They were begging me for two hours.”  

4. KCFS explained that he went with his twin brother and the victim because “they couldn’t stand up and they were driving the car”.  He said: “We went to his place but first, we went to my mum’s place.  Then we went to [name deleted] gardens where [the victim] kept putting tablets in my drink”.  When KCFS was asked how he knew this, he said “because he [the victim] was showing me”.  KCFS said this made him “really sick”.  When asked, KCFS said he did not know what type of tablets they were. 

5. KCFS said that “it was getting late.  About 2 or 3 o’clock.  We went to my place in [suburb C].  We kept drinking.  He [the victim] told me to give him more money for him to buy speed or heroin.  He pulled his pants down.  There was a pile of branches on the table.  I picked them up and moved them towards him like this [motion that he moved them horizontally, but not forcibly, toward the victim’s backside].  He fell backwards onto them”. He explained that the branches were on the table as he had been “crafting” them and “they were all stuck together”.

6. KCFS said the victim “was punching my brother who was sleeping on the couch because he wouldn’t give him any money.  He [the victim] ended up naked.”  When asked, KCFS confirmed that he pulled the victim outside into the courtyard.  He said “my brother was shocked when the neighbour called the police”.  KCFS said his flat was on the ground floor.  He also said “I put a bicycle on top of him” and that “I attacked my friend.  I punched him.  I had a brick in my hand but I didn’t hit him with the brick.  I tried to, but my brother stopped me. I stamped on his body”.   KCFS was questioned whether he turned the victim over, to which is said “I didn’t turn him.  He was lying on his stomach.  I went into the house, washed my hands and the police came”.

7. KCFS was asked whether he moved the victim under the veranda, to which he said “I was trying to get him out of the house”.  When it was put to him that by this stage the victim was already out of the house, KCFS said “I don’t know.  I was too drunk.  I went inside the flat”.

8. When questioned, KCFS said that the victim was conscious when he moved the branches toward his backside. He said the victim was unconscious when KCFS and his twin brother moved him outside.

9. KCFS was asked whether he had contacted the victim since the time of the offences, to which he said he had not because “he would not be happy if I contact him”.  When asked who was responsible for what happened, he said “my victim and me.  He drugged my brother and I.  We got stuck in the street all that night.  I told him to stop it.  He didn’t listen.  I had high blood pressure then.”

10. KCFS was questioned about a number of other his earlier offences: 

    (a)When asked about the ‘indecent assault of a female’ offence that took place in 1970, which the Tribunal notes was one year after his arrival in Australia, KCFS firmly denied having done anything to the woman.  He said he was running down a side alley and when the woman saw him running, she thought he was trying to attack her, called the police and they came to arrest KCFS.  He said they arrested him because he was Turkish. 

    (b)When asked about the 1982 conviction of assault by kicking, KCFS said he was sitting in a pub when he found out that people were bashing his brother in the coffee shop.  KCFS said he got involved in the fighting and when he saw blood on his head, he lost control.  He said he did not know what the fight was about.  He said he tried to stop it but they ended up turning on him.  He said people jumped on him too.  This incident took place in about 1979 and then KCFS went to Turkey and was convicted when he returned to Australia a number of years later.

    (c)When asked about the conviction on 27 August 1976 of intentionally causing injury, KCFS said he could not remember what happened.

    (d)When asked about the assault with weapon and other convictions on 21 April 1989, KCFS said he had found a plastic hand gun. He said he had been drinking and was “on the pills”.  He said he was on the train and some people had been drinking so he asked them for a drink.  KCFS said that when they did not give him any, he opened up his jacket and showed them the plastic gun, which was in his inside chest pocket.  He said they laughed at him when he did this.  KCFS said they got off the train at Glenferrie Station but he remained on the train and when he reached Richmond Station, the police located him on the train and arrested him.

    (e)When asked about the convictions on 24 September 1991 of cultivating, possessing and using cannabis, KCFS said that he was interested to know how cannabis grew, but that he was not growing cannabis.  He said that about 20 police searched his house and they only found one marijuana plant which five inches tall and “all dried up”.  He said the police found it “in a dark garage” and they charged KCFS with growing it.

    (f)Paragraphs [55] to [57] of these reasons for decision describe KCFS’s evidence relating to convictions involving his ex-partner, [MLAB].

11. When KCFS was asked why he should be trusted to be released back into the community he said: “I’m going to be good to the community.  I won’t repeat it.  I won’t get into trouble with the law.  I will stay with mum and dad.”

    KCFS’s early years in Turkey

12. When KCFS was an infant, his parents made a decision to send him away from his immediate family to live with his grandparents in Istanbul.  KCFS gave evidence that living with his grandparents was “okay” when his grandfather was alive.  He said he had fun with his grandfather and used to go to the fire station with him and play.   KCFS said that when he died, “everything went down”.  He said he was “stuck living with his grandmother” and that “life was really bad.  My grandmother was very tough on me.  She wouldn’t let me go out and play with the other kids.  She would hurt me and used to make my life miserable”.[9]  He said “when my grandmother got annoyed she would put hot chilli in my mouth.  She would also hit me.  On a few occasions she would fill a bucket with water and then push my head into the bucket and hold me down.  She’d let me come up to breathe then push my head into the bucket and hold me down again.   Sometimes I would escape from the house and go to the soccer field.  When she finally caught me she would belt me five or six times”.[10] 

    [9] Refer paragraph 2 of KCFS’s Statement dated 27 March 2017 (Exhibit “A1”)(KCFS’s Statement).

    [10] Refer paragraph 4 of KCFS’s Statement.

13. KCFS gave oral evidence that he missed his childhood as he did not grow up with his family or his brothers and this upset him a lot.  He said he felt like he “didn’t fit his family”.  He said he got bullied by kids who called him a “bastard”.  

14. KCFS gave evidence that his uncle used to stay at his grandmother’s house sometimes and was mean to him.  He said his uncle would lock him in the “dungeon” for hours being a storeroom in the house and that he would also grab KCFS’s hand and place it into the uncle’s underpants.  KCFS said this happened when he was aged 7 or 8.  He said he told his grandmother about it and his uncle stopped it.  KCFS said that his uncle also used to hit him on the head with his hand, for instance, when he did not pass subjects at school, and that he was hit so hard sometimes he would “see stars”.[11]

    [11] Refer paragraph 5 of KCFS’s Statement.

15. KCFS gave oral evidence that he was initially told that his grandparents were his parents.  He said he called his mother “sister” and his father “uncle”.  KCFS said he was not told who his true parents were until he was aged 9.  KCFS said he was allowed to visit his parents during school holidays if he passed his subjects at school and this was enjoyable.  He said it upset him when he was sent back to live with his grandmother.[12] 

    [12] Refer paragraph 8 of KCFS’s Statement.

16. KCFS said he wanted to live with his family but his grandmother would not let him.  He gave evidence that his parents did not explain to him why he had to live with his grandparents other than to say that he was sick and needed to be looked after.[13]  When KCFS was older he wrote a letter to his mother to ask her to take him back from his grandmother and gave it to his neighbour to post for him.  The neighbour did not deliver it but instead gave the letter to the grandmother who KCFS said became “really angry” and put his head in a bucket and held it under.[14]

    [13] Refer paragraph 7 of KCFS’s Statement.

    [14] Refer paragraph 10 of KCFS’s Statement.

    KCFS’s migration to Australia and later years

17. As mentioned, KCFS was reunited with his family at age 15 at which time he immigrated to Australia with them.  This included his mother, father, twin brother and two younger brothers.  KCFS said his parents treated him okay but his twin brother was abusive toward him by telling him that he should go back to live with his grandmother and by beating him, often leaving him with black eyes.[15]

    [15] Refer paragraph 11 of KCFS’s Statement.

18. KCFS gave evidence that he only attended at school in Australia for two months.  He said he left because he was getting bullied and used to get into fights.  He said that the Australian children used to call him “wog” and other names.[16]  He said he could not speak English.  He said he did not take English classes before he started at school.

    [16] Refer paragraph 12 of KCFS’s Statement.

19. KCFS said when he left school his father’s friend found him a job in laminating.  He said he would laminate pictures, maps and record covers.  He said he did this job for about four years from 1969 to 1973.  He said he left this job because it did not pay enough.  He said his weekly pay was $50. 

20. KCFS gave evidence that subsequently, he went to work for a rubber factory in Clayton, making garden hoses.  He did this job from 1973 to 1974 but left it because it was too hard for him to travel there from his home at the time in [suburb D]. 

21. KCFS’s visa application states that his employment history from this time onwards was as follows:

    (a)1974 to 1979 – Waiter at family coffee shop;

    (b)1979 to 1984 – unemployed;

    (c)1984 to 1987 – gardener at a hospital;

    (d)1987 to 1988 – factory worker;

    (e)1988 to 2005 – unemployed due to medical problems;

    (f)2005 to present – in prison or at detention centre.  KCFS gave oral evidence at the hearing that while he was in prison he worked on the laundry assembly line and only had about four months off for the whole time and for three months was on light duties because he was sick. He said the officers liked his work and he had a good record.

22. As mentioned above, KCFS’s parents sent him back to Turkey at age 25 because KCFS and his twin brother were getting into trouble with the police.   KCFS said he was doing a lot of different drugs including LSD, magic mushrooms and speed.  When questioned about whether he also taking heroin, KCFS said “not often, a couple a times”.  He completed National Service in Turkey for 20 months.  He said he enjoyed doing this.  It involved “sports, training, camping and weapons”.  When asked, he said he was “clean” during this period and did not take drugs.

23. KCFS gave evidence that after he completed National Service, in 1981, he participated in an arranged marriage in Turkey and his Turkish wife returned to Australia with him.

24. KCFS said his wife fell pregnant in 1983 and his son was born in 1984 in Australia.  He said that when his son was about one year old, his wife left him as she was concerned about his drinking and was scared that he would start using “heroin or that stuff”.  KCFS said he told her he had stopped in Turkey and was only smoking marijuana but that she did not believe him and started to argue with him.  KCFS gave evidence that it was not a good marriage and his family did not like his wife because she was not a virgin when she married him.[17]   He said that his wife wanted to send their son back to Turkey to live with his wife’s sister and that KCFS did not approve of this because he did not want his son to grow up like him.

    [17] Refer paragraph [16] of KCFS’s Statement.

25. After they separated, KCFS said his wife would not allow him to see their son.  He said that after she left, he subsequently saw their son as a baby when he visited KCFS’s parents but those visits soon stopped. When questioned why, KCFS said it was because of his drinking and smoking.  This Tribunal notes that KCFS told the RRT as part of an earlier review of a decision to refuse a protection visa to KCFS, that his wife had an intervention order against KCFS which meant that he was not allowed to have any contact with her or their son.[18] 

    [18] Refer page 77 of G-Documents.

26. KCFS said his son is still in Australia.  KCFS does not have contact with him and his ex-wife is no longer alive.

27. KCFS gave oral evidence that he had a subsequent partner called MLAB, who was a transvestite, for about 14 years.  He said he met MLAB in 1985 “when my wife went away” and that he wished he had never met MLAB.  KCFS said “I didn’t trust any woman because I got hurt”.  KCFS said they lived together but he “could be out for one or two years and then would come back”.  He said there was a lot of arguing. He said they would “fight over money and about him not helping her much”.  He said he was going out spending his money and not paying bills. When questioned as to why he would go back, KCFS said “I had no choice.  I had nowhere to live.  I lived in a rooming house.”

28. KCFS gave oral evidence that the second time he went to prison came about because he kicked MLAB’s door and she called the police.  He said that he pushed her and she fell against the door and onto the couch.  When questioned, KCFS said he could not remember if she hurt herself.  When asked, he acknowledged that MLAB would have felt frightened by what happened and that he felt guilty and ashamed.  KCFS confirmed that he went back to MLAB after this incident and that she forgave him.

29. KCFS was asked about the conviction in May 1996.  KCFS explained that he did not have any weapon.  He said he threw an empty cigarette lighter on the couch and kicked MLAB’s door.  He said MLAB was threatening him; saying she would “tell the Turkish government all different type of stuff” and that she would call his wife and son. He said that MLAB called the police.  He said the police spelt his name wrong and sentenced him to four months imprisonment. 

30. KCFS was asked about the breach of intervention orders concerning MLAB.  He said he was not allowed to go near her but that she would come and pick him up and then claim he had breached the orders. 

    Evidence from KCFS’s mother

31. The mother of KCFS gave evidence at the hearing.  She said was 87 years old and lived in a housing commission flat with her husband.[19]  She said her husband suffered a stroke and had a great difficulty walking within the house, needed aids and could not be left alone.  She said at the hearing, that she had left her youngest son at home and when she left to attend the hearing of this application that her husband had cried out that he wanted to come too.    When asked how her husband felt about KCFS, she said that he thought it would be better if he was released and that he would be good.

    [19] Refer paragraph 2 of Statement of KCFS’s mother dated 11 April 2017 (Exhibit “A2”)(Mother’s Statement). 

32. KCFS’s mother gave evidence that her son, KCFS, had a hard life growing up and that she had sent him away as a baby to live with her mother as she had no way of supporting two children.[20] At the hearing, she explained that KCFS had a twin brother and when he was born, she couldn’t look after him.  She said he was “naughty and cried all the time”.  Later when questioned, KCFS’s mother said her son was “unwell”.  She explained that her mother had told her she would take one of the twins and look after him until he was one or two years of age. KCFS’s mother said that later she tried to get KCFS back from her mother but that her mother would not allow it and told her, “If you take him, I will take you to court”. 

    [20] Refer paragraph 3 of Mother’s Statement.

33. KCFS’s mother gave evidence that she could sense that her son was “troubled” but that she had no say in how he was being brought up.[21]  She gave oral evidence that later when KCFS was in Australia and getting into trouble that he would say to KCFS’s mother “Why did you treat me differently and separately?” and that she could not answer him.  She said she did everything in her power not to treat him differently, but that KCFS felt he was being excluded.

    [21] Refer paragraph 3 of Mother’s Statement.

34. KCFS’s mother gave evidence that since her son had committed his last crime that he had done everything to turn his life around and had shown more respect when they saw him.[22]  When questioned how this showed itself, KCFS’s mother said that KCFS was “more careful and does not break or hurt anybody’s hearts or feelings” and that “when we say something, he doesn’t go against what we say.  He doesn’t fight against it” and that “he accepts whatever we say.  If we point out his mistakes, he accepts this”.  She said that before, KCFS “did not do what we told him to do.  He did what he wanted to do.”  KCFS’s mother gave oral evidence that her son was older now and had more experience now, having spent 12 years “inside”.   She said he behaved “more maturely”. 

    [22] Refer paragraph 4 of Mother’s Statement.

35. When questioned how this would help, KCFS’s mother said her son had told her he would help her so she could be more comfortable.  KCFS’s mother gave evidence that at the moment, her other sons helped her to care for her husband but they all had their own families and homes.  While KCFS’s mother acknowledged that her other sons lived within driving distance from her home, she said they could not come to visit her all the time.

36. When KCFS’s mother was questioned about why she thought the events of 2005 happened, she said “alcohol, just alcohol”.  It was put to KCFS’s mother that many people drink alcohol but had not committed the crimes that KCFS had committed, to which she said “he can’t handle his alcohol”.  She said this was the same for KCFS’s twin brother.

37. KCFS’s mother explained that KCFS had told her the offences are something that he had done and that he was ignorant.  She said KCFS had told her that he was not a person that would do something like that; that alcohol had been a factor and he sought her forgiveness.  She said he had said to her many times in conversation:  “How did this happen mother?  Why did I do that?  How can I make up for it?”  When asked whether it could happen again, KCFS’s mother said she did not anticipate that anything could happen, as her son was really sorry and wanted to make up for it. 

1. When KCFS’s mother was asked how KCFS got along with his twin brother presently, she said “right now, they get along well and don’t have any problems”.   KCFS’s mother was also questioned about KCFS’s twin brother’s current drinking habits to which she said “he’s good.  He is at home going about his business.  I know he doesn’t drink.  It’s not a problem.”

   Evidence from KCFS’s younger brother

2. The Tribunal also heard evidence from one of KCFS’s younger brothers, BLIK.  BLIK said he had stayed away from KCFS for a “good 10 years” after he had heard about the charges laid against him.  He said that he had started having contact with KCFS again recently when he assisted his parents to visit him while he was in detention.   He said that he had heard nothing about KCFS’s life but “after hearing from my parents and sister-in-law what he had to be put up with, I couldn’t help to feel sorry for him.  It breaks my heart what he had to go through as a kid.  I hated myself for not being there for him”.

3. BLIK gave evidence that he could sense that KCFS was trying to reach out and wanted to be a part of a family.  He said that while KCFS was at Christmas Island he started to talk to BLIK on the phone.  BLIK said he would send KCFS clothes to wear and certain foods.  BLIK said he also took on a role of being the conduit between KCFS and his professional representative.  At the hearing, the Tribunal noted that BLIK had greater proficiency in conversing in English in comparison to KCFS and did not require the assistance of an interpreter at the hearing, as KCFS did at certain times.

4. When questioned about what BLIK thought of KCFS now, he said that KCFS would consider it “a reward to look after his parents and nothing else” and that if he was released he would be working with BLIK.  BLIK said that KCFS had been “dry for 12 years” and was a “totally different man”.  

5. BLIK gave evidence that he would be starting a construction cleaning business soon and would give KCFS a job to help him get back onto his feet.[23]   BLIK said this would involve cleaning, maintenance, fencing and plaster repairs on newly built houses.  He said he knew some contacts in real estate; already he had most of the equipment, so he only required an old van to get started. He said he needed at least two people to operate the business.  

   [23] Refer paragraph 5 of BLIK’s Statutory Declaration signed on 11 April 2017 (BLIK’s Statement).

6. When asked about whether BLIK considered KCFS to be a risk to the community, BLIK said that he thought that KCFS was “reformed”.  He said his brother had “nothing against his name in the last 12 years” and had been a “model prisoner”.

7. When asked about KCFS’s twin brother, BLIK said he did not talk to him for five years but had been in contact with him since 2010 or 2011.  BLIK said he kept in touch to help KCFS’s twin brother’s family.  When asked if he knew whether KCFS’s twin brother still drank alcohol, BLIK gave evidence that: “I don’t think he drinks.  I think he drinks socially”, and later in evidence he elaborated that he had seen KCFS’s twin brother have one or two drinks at a family barbeque, “like everyone else”.  BLIK said “otherwise, [KCFS’s twin brother’s] wife would be ringing me up”.

8. When BLIK was asked whether he had a theory about why the offending in 2005 happened, he said that “the police couldn’t question it, because they were blind drink”. When asked why there should be confidence that the “bad stuff” would not happen again, BLIK said KCFS has had a good record for 12 years and that “if he doesn’t drink” then “I can’t see him being a problem”. 

9. BLIK said that when he spoke to KCFS on the phone while he was in detention it was mainly about what KCFS needed or wanted.  He said that KCFS needed a lot of help and needed people around him.  When asked, BLIK said KCFS and himself did not talk about the future.  He also said that KCFS did not talk to BLIK about the victim of the 2005 offending.

10. BLIK gave evidence that the burden of caring for his parents presently was not shared equally between his brothers. He said he would call his other brothers as he was desperate but that he was there for everything for his parents. 

    Psychologists’ opinions

11. KCFS did not seek to tender any recent reports from a psychiatrist, psychologist or any other health practitioner.  However, KCFS referred to the opinion of Pamela Matthews, a psychologist, who prepared a report dated 13 October 2006 for KCFS’s plea in the Court of Appeal proceeding to provide a context to the offending behaviour of KCFS in 2005 (Ms Matthews’s Report).[24]  This opinion was summarised by the Court of Appeal as follows:

    The report indicated that he had an overall IQ of 54[25], placing his functioning in the moderate level of intellectual disability.  Testing and history taking suggested that he always cognitively functioned in the moderate to borderline range of intellectual ability.  He also exhibited symptoms of a borderline personality disorder, which reflected in unstable interpersonal relationships, impulsivity in substance use and behaviour, chronic feelings of loneliness and boredom, and inappropriate intense anger.  Ms Matthews considered that there were three relevant aspects to [KCFS’s] history, namely, the borderline personality disorder, a post traumatic emotional trigger of physiological and psychological responsiveness to being bullied during his childhood and adult years, and a highly ambivalent relationship with his twin brother [name deleted].  She considered that on the day of the offences those three emotional aspects had coalesced, and, in combination with low cognitive functioning and disinhibition associated with alcohol abuse, had resulted in the violent offences for which he was then charged.   Ms Matthews expressed the view that given [KCFS’s] low level of cognitive functioning, his rehabilitative needs would be best addressed in programs specifically targeted at low functioning offenders.  She was of the opinion that [KCFS] would be vulnerable to being intimidated and manipulated whilst in custody.

    [24] Refer paragraph 15 of KCFS’s Statement of Issues, Facts and Contentions.

    [25] KCFS’s score for abstract reasoning (72) was higher than for verbal reasoning (57) – see page 221 of the G-Documents being a report by Michelle James dated 5 July 2011, extracting information from Pamela Matthews report dated 13 October 2006.

12. In the Supreme Court sentencing remarks, further findings of Ms Matthews (not already captured in the above paragraph) were summarised as follows:

    (a)KSCF will act to please his twin brother but will resent doing so;

    (b)the rape was an extension of the violence rather than being sexually motivated and the offending was impulsive rather than planned.[26]

    [26] Refer page 212 of the G-Documents.

13. The Minister relied on a “Treatment Summary” report dated 5 July 2011, prepared by a treating psychologist, Michelle James, for the purpose of describing KCFS’s participation and progress in a Sex Offender’s Program conducted by Corrections Victoria (Ms James’s Report).[27]  KCFS was required to complete this Program while he was in prison following the 2005 offences.  Ms James disclosed that she had facilitated less than half of KCFS’s treatment sessions so the report was based on some direct observations and also a comprehensive file review.  The Program was designed for special needs offenders such as those with “mild or borderline intellectual functioning, social skills deficit, acquired brain injury, dual diagnosis and/or poor literacy”.

    [27] Refer paragraph 35 to 38 of the Minister’s Statement of Issues, Facts and Contentions.  The report is on pages 218 to 229 of the G-Documents.

14. Ms James’s Report noted that Mr Matthews reported that KCFS experienced “short-term memory difficulty, possibly associated with head injury and/or alcohol use”.    Ms James stated in her report that KCFS was a quiet group participant who required prompting to engage verbally.  She said that over time, KCFS demonstrated a rudimentary understanding of how thoughts, feelings and behaviour interconnected.  While it was considered by Ms James that this insight would help KCFS to manage his responses to risky situations, she stated that his memory deficits created uncertainty as to his ability to maintain knowledge and implement behavioural changes in alternative environments, such as the community.[28]

    [28] Refer page 221 and 222 of the G-Documents.

15. KCFS was reported by Ms James to have engaged well in the program.  She observed that as the course progressed, KCFS’s confidence grew and he increasingly disclosed more information.   Ms James stated that initially KCFS did not consider the course as suitable for him because he did not consider his behaviour as being sexually motivated.  Ms James considered this was prompted by KCFS’s experience of embarrassment and shame regarding his offence behaviour.  Following encouragement, KCFS continued to engage the program appropriately.  He was observed to have accepted feedback from facilitators and demonstrated capacity to implement behavioural changes (for instance, using strategies to assist in aiding his memory, writing down the main points discussed in a session and practising assertive communication in the prison community).[29]

    [29] Refer page 222 and 223 of the G-Documents.

16. Ms James noted a “negative emotional reaction from [KCFS]” during the program with him expressing “anger and upset” when his prison sentence was extended as a result of the Court of Appeal decision.  Ms James observed of KCFS as follows:

    His emotional management at this time evidenced poor regulation and a tendency to externalise responsibility with his insight into this poor coping being very low.   His emotional management constituted a treatment target however, ‘real life’ opportunities to reinforce skills were limited, as he tended not to share such experiences in treatment.  However, despite this perceived 18-month setback, [KCFS] continued to engage in treatment.  Furthermore, according to his case officer’s notes, [KCFS] appears to have been a cooperative prisoner.  This demonstrates his willingness to work within the boundaries of supervision and if he continued this upon his release this would assist him to work with his parole officer in managing his re-integration and risk of re-offending.

17. Ms James observed that by the end of the program, KCFS had practiced asserting his own needs.  This was seen as important due to KCFS’s reported tendency to yield to his twin brother’s demands and influence, including at the time of the offence in relation to substance abuse on the night. 

18. In the report, Ms James identified that KCFS’s relationships with his twin brother and with MLAB were not “protective”.  His relationship with his twin brother was characterised by criminal activity and bullying and by KCFS’s own report, his relationship with MLAB was characterised by aggression and instability.  Ms James observed that KCFS’s insight into this lack of intimacy and protectiveness within these relationships was low.  Ms James stated:

    If [KCFS] continues to engage primarily in relationships which are characterised by manipulation, ridicule and aggression then he will likely continue to have unmet needs and be placing himself in situations which present as a risk for re-offending.[30]

    [30] Refer page 224 of the G-Documents.

19. Ms James stated that KCFS’s self-regulation was poor and that he exhibited poor cognitive problem solving, impulsivity and poor emotional awareness and coping.  Ms James considered that KCFS’s capacity for increasing his ability for adaptive general self-regulation was likely impacted by his overall low cognitive functioning and memory deficits.[31]    Ms James noted a tendency by KCFS to use alcohol as a coping tool, albeit maladaptive, while noting his desire to abstain from it in future.  She stated that KCFS’s ability to abstain from substance use when associating with his brother or coping with a significant stressor remained unknown.  Ms James stated that in order for KCFS to manage his risk of re-offending he would need to continue to abstain from substance use and increase his alternative emotional coping skills.[32]

    [31] Refer pages 224 and 225 of the G-Documents.

    [32] Refer page 225 of the G-Documents.

20. In her report, Ms James stated:

    [KCFS’s] offending behaviour does not offer evidence for deviant arousal, sexual pre-occupation or using sex to cope.  [KCFS’s] self-report regarding his lifestyle does not indicate such risks.  KCFS reported that he had been teased by the victim regarding his sexuality on the night of the offence.  KCFS had been the victim of similar ridicule regarding his intimate relationship at the time from his family.[33]

    [33] Refer page 226 of the G-Documents.

21. Ms James reported that although KCFS identified that anti-social behaviour with his twin brother was a risk, and despite KCFS’s acknowledgement of his twin brother’s history of manipulating him and engaging in substance abuse together, he still reported interest in in spending time with his twin brother. 

22. At the hearing, KCFS was asked how he felt about his twin brother now to which as responded “I still love him”.  His twin brother who was present in the Tribunal, unprompted, spoke out to KCFS in that instance, and said “I love you too”.  At another point during the hearing, KCFS gave evidence that he was not going to see his twin brother if released but later gave evidence that he would see him but not to go out and drink. When asked whether KCFS would go to his twin brother’s rescue again, KCFS said his twin brother would have to learn how to behave himself and he would not help him out.

    Static-99 – risk prediction instrument

23. In 2011, Corrections Victoria used a risk prediction tool, Static-99,[34] to provide a generalised measure of KCFS’s risk of re-offending prior to him undertaking a Sex Offender’s Program. In the Treatment Summary report by Ms James, dated 5 July 2011, Ms James reports as follows:[35]

    [34] Refer pages 277 to 346 of the G-Documents.

    [35] Refer pages 218 to 229 of the G-Documents.

    Actuarial risk assessment

    [KCFS] was scored on Static-99[36] which is an actuarial measure of long-term potential risk for sexual offence recidivism in adult male sexual offenders.  The Static-99 is an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders.  The test was developed by Hanson and Thornton (1999) based on follow-up studies from Canada and the United Kingdom with a total sample size of 1, 301 sexual offenders.  The Static-99 consists of 10 items and produces estimates of future risk based on a number of risk factors present in any one individual.  The risk factors included in the test are the presence of prior sexual offences, having committed a current non-sexual violent offence, having a history of non-sexual violence, the number of previous sentencing dates, age less than 25 years old, having male victims, having never lived with a lover for two continuous years, have a history of non-contact sex offences, having unrelated victims, and having stranger victims.

    The recidivism estimates provided by the Static-99 are group estimates based upon reconvictions and were derived from groups of individuals with these characteristics.  As such, these estimates do not directly correspond to the recidivism risk on an individual offender.  The offender’s risk may be higher or lower than the probabilities estimated in the Static-99 depending on the other risk factors not measured by this instrument.”

    Based on the Static-99 score, this places [KCFS] in the high-risk category relative to other male sexual offenders.  Individuals with these characteristics, on average, sexually re-offend at 39% over five years, at 45% over ten years and 52% over 15 years.  This is approximately twice times the base rate for sexual re-offending in the development sample.  The base rate is 18% for five years, 22% for 10 years and 26% for 15 years.

    [36] Harris, A. Phenix, A., Hanson, R.K., & Thornton, D. (2003).  Static-99 Coding Rules: Revised 2003.  Ottawa: Department of the Solicitor General of Canada.

24. Mr Matthews provided her further clinical judgment at the end of the report regarding KCFS’s overall risk manageability stating that KCFS had some risk manageability strategies in place although such change was yet to be tested in the community.[37] 

    consideration

    PRIMARY CONSIDERATIONS

    [37] Refer page 299 of the G-Documents.

    Protection of the Australian community from criminal or other serious conduct

25. Paragraph 11.1(1) of the Direction states:

    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

    (a)    The nature and seriousness of the non-citizen’s conduct to date; and

    (b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct

26. Paragraph 11.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s conduct to date. In considering KCFS’s conduct, the following parts of paragraph 1.11.1 are relevant:

    (a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously.

    …

    (e) The sentence imposed by the courts for a crime or crimes;

    (f)  The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (g) The cumulative effect of repeated offending;

    ...

27. KCFS’s representatives made the following contentions in his Statement of Issues, Facts and Contentions about the nature and seriousness of the conduct:

    43It is accepted that the offences for which the Applicant was convicted in 2007 are extremely serious.  Otherwise his criminal offending is not particularly serious, consisting of relatively minor offences and a few moderately serious offences, which are quite old.  Prior to 2005 the most recent offending for which a period of imprisonment was imposed was 1996 and before then 1990.

    44. The Tribunal must consider the factors listed in paragraph 11.1.1(1)  which are relevant.  It is accepted that that Applicant’s offending in 2005 consisting of violent and sexual offences on a victim who was vulnerable at that time, are to be viewed seriously.  The Applicant was sentenced for other offences which are to be viewed seriously by reason of sub-paragraph (a) in 1970 (when the applicant was about 16 and therefore appeared in the Children’s Court), then 1982, 1986, 1989, 1990 and 1996.  All of those other offences were dealt with in the Magistrates’ Court, rather than higher in the Court hierarchy, suggesting that none were viewed as very serious.

    45The sentences imposed by the Court of Appeal reflect the seriousness of the 2005 offences.  The longest sentence otherwise imposed for the assault offences committed by the Applicant was four months.  Other sentences have been for lesser periods of imprisonment (three months, two months one month, 14 days, 7 days), fines and a community-based order (which it appears the Applicant completed successfully).

    46The Applicant has committed numerous offences but there have been significant gaps between offending.  Although the 2005 offences were very serious there is not a pattern of offending which would suggest “any trend of increasing seriousness.

    47It is accepted that there are some cases in which there is a cumulative effect of repeated offending.  However the age of the Applicant’s other offending and the lesser seriousness or minor nature of those offences does not raise this factor.  The 2005 offences are what must be of concern to the Tribunal.”

1. In the Minister’s Statement of Issues, Facts and Contentions, it was contended as follows in relation to this consideration:

   45The offence of intentionally causing serious injury is one of the most serious homicidal injury offences, and the Court of Appeal described the brothers’ joint offence as a particularly serious instance of this offence, with grave injuries to the victim’s head resulting from a “sustained vicious and cowardly attack”, with most of the injuries inflicted while the victim was lying defenceless on the ground, using bricks and a bicycle frame as weapons.

   46The rape was regarded by the Court of Appeal as “a particularly serious instance of the crime of rape”, and the applicant’s conduct in committing the rape offence was described as “utterly cruel, vicious and disgusting”.  The insertion of six branches into a defenceless man’s anus with such force that his rectum was ruptured and rendered impossible to repair, is an appalling crime perpetrated by someone who had lost control and any sense of proportion.  It is unsurprising that in their victim statement the victim’s family said that they feared for their safety.

   47Further, the applicant’s lengthy criminal record features previous violent offences, three breaches of intervention orders, and two prior periods of imprisonment.

2. KCFS’s extensive criminal history between 1970 and 2005 is set out in paragraph [25].

3. The convictions for rape and intentionally causing serious injury in 2005 were the most serious instances of KCFS’s offending behaviour.  They were both violent and sexual crimes and should be viewed seriously under the principle laid out in paragraph 11.1.1(a) of the Direction.   The long imprisonment sentences handed down for those offences, resulting in KCFS serving 8 years in prison, reflected the extreme gravity of those crimes – applying paragraph 11.1.1(g) of the Direction.  KCFS himself conceded that they were extremely serious offences. 

4. KCFS also served two earlier terms in prison, admittedly a lot shorter in length (being a matter of months instead of years), although they still reflected the seriousness of those earlier offences in that the sentencing magistrates in those cases considered that an imprisonment term was warranted over other alternative forms of punishment. 

5. The Tribunal is unable to accept that those crimes were not serious because they were dealt with in the Magistrates’ Court and not a court of higher standing as contended for by KCFS’s counsel.  The nature of the offences must be taken into account.  Many of the previous offences committed by KCFS before 2005 involved violent crimes, specifically assault by kicking and unlawful assault in 1982, causing injury intentionally in 1986, assault with a weapon in 1989 and two charges of unlawful assault and one charge of causing injury intentionally in 1990. Accordingly, those violent crimes should also be viewed seriously under paragraph 11.1.1(a) of the Direction.

6. KCFS was given an opportunity at the hearing to provide a context for his offending behaviour.  He was questioned about a number of the more serious offences starting with the most serious crimes in 2005. 

7. Firstly, the Tribunal notes that KCFS had claimed in earlier proceedings not to have remembered what took place in relation to the events in 2005 because he was too intoxicated, however, at the hearing of this application, without too much trouble, he was able to provide a fairly detailed account of what happened.  This does not bode well for KCFS’s credibility as it would suggest that KCFS does in fact have a memory of the events in 2005 despite representing previously that he did not, notably, when it was in his interests to do so for the criminal proceedings.  The only other explanations for this might be that his memory has subsequently returned between the criminal proceedings and the hearing of this matter (which the Tribunal does not accept); or that simply, he has now fabricated a story about what happened in 2005 to seek to play down the gravity of what occurred. 

8. Of additional concern to the Tribunal, is the fact that KCFS sought to contradict the basis upon which the courts found him guilty for some his recorded convictions, and many instances to significantly play down the factual basis for those convictions – see for example paragraphs [30] to [37] and [55] to [57].

9. It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based.[38] As noted by the Federal Court of Australia (Branson, Lindgren and Emmett JJ) in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244:

   ... it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal…

   [38] Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578; (1991) 102 ALR 19; (1991) 91 ATC 4646; (1991) 22 ATR 307. Mlinar and Minister for Immigration and Multicultural Affairs [1997] ALD 771 and Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 at [41] to [45].

10. However, that is not to be taken as denying the right of an applicant to inform the Tribunal about the circumstances of their conviction, providing they do not contradict the court’s findings in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143.

11. The Tribunal was able to conclude from the oral evidence given by KCFS about the context of the more serious offences that they did not appear to be pre-meditated by KCFS.  The Tribunal does not consider that KCFS actively sought out to harm people.  This resulting harm mainly came to be as a result of uninhibited behaviour by KCFS when he was intoxicated or under the influence of drugs or both, or a lack of self-regulation when he lost his temper with other people or found himself in the middle of a brawl. 

12. The fact remained though that KCFS caused an increasing level of threat and harm to members of the community, as evidenced by his extensive 35 year long (and slowly escalating) criminal record, which must be taken by this Tribunal as establishing that those crimes occurred.

13. In relation to the conduct in 2005, the following Supreme Court’s sentencing remarks further reflected the high level of seriousness of the 2005 offences:

    14.     It is difficult to understand why you attacked [the victim].

    15.     [KCFS], you have little memory of the incident.  You told your forensic psychologist, Pamela Matthews, that your behaviour was impulsive and “it just happened”.  You admitted assaulting [the victim] to the police.  You said you did it because he hit your brother a long time ago.  You said your actions were wrong

    …

    17.     A significant part of the explanation for you committing the crimes is that you were both highly intoxicated after a prolonged period of drinking and lost control of yourselves when some kind of argument occurred between you and [the victim].

    18.     [The victim] supplied a victim impact statement in which he described the devastating impacts of the crime upon him.  He explained how he will need to carry a colostomy bag for the rest of his life.  He feels weak and needs assistance with everyday living tasks and with managing his epilepsy.  He has on-going medical costs which impact considerably on the financial welfare of the family.   He is physically unable to work and relies on a disability support pension.  [The victim] will never be able to return to his previous employment as a storeman due to his physical injuries.

    19.     On an emotional level, [the victim] explained he has not been the same since the attack and has been “emotionally wrecked”.  A psychologist diagnosed him as suffering from chronic post-traumatic stress disorder and major depressive disorder.  He has difficulty sleeping and concentrating.  He has low energy, has less interest in almost all activities and has lost his appetite.  The crime has also had an impact on the health of [the victim’s] family who are scared for their safety.  Their lives have never been the same since the attack.

14. On appeal, the Court of Appeal made the following further remarks:

    44 …[The sentencing judge was required to take into account the very grave injuries to the victim’s rectum and his internal organs].  As I have stated, all 6 sticks were inserted with such force as to breach the rectal mucosa.  Two of the sticks penetrated the retro-peritoneal space and the duodenum.  One stick ended up in the victim’s liver, and another between his right lobe.  The injuries were life threatening.  On [the victim’s] admission to hospital his life was, to a real extent, in the balance.  The injuries could only have resulted from an invasion of the victim’s body, perpetrated with substantial force, and in total disregard of his well-being, safety and dignity.  The conduct of [KCFS] I committing the rape was utterly cruel, vicious and disgusting.  He clearly intended his behaviour to be a display of arrant contempt for his victim, in order to degrade or humiliate him.  Not content with what he had done to [the victim], he compounded his wrongdoing by callously seeking to conceal [the victim’s] body.

15. The Tribunal was not provided with the sentencing remarks or other information regarding his convictions for KCFS’s offending before 2005. The fact remains, however, that in each case, the conviction was made and recorded and a sentence was imposed. While the Tribunal may have been assisted with further evidence in contextualising the nature of KCFS’s offending before 2005, it is unable to accept any suggestion by KCFS that he did not commit those crimes, by the findings of guilt that were made on the criminal threshold of beyond reasonable doubt and consequential sentencing.  

16. This is particularly so in relation to the conviction of indecent assault of a female one year after his arrival in Australia in 1970 and KCFS’s suggestion at the hearing that he did not do anything to this woman.  The Tribunal does not accept KCFS’s evidence seeking to contradict that this offence took place and must accept the conviction as recorded.  Nor does the Tribunal accept KCFS’s oral evidence that his victim in the 2005 offences fell backwards onto the branches, rather than KCFS having penetrated his victim with substantial force with those branches as found by the court in the criminal proceedings.

17. The Tribunal also considers there has been a gradual escalation of the seriousness of KCFS’s offences from 1970 to 2005 starting with threatening behaviour towards others, evolving to physical attacks on people or property and then culminating in the more serious crimes of rape and intentionally causing serious harm to his victim in 2005. 

18. The Tribunal also notes that KCFS committed repeated offences by over his time living in Australia, attracting 38 convictions, 21 prison sentences (some suspended), and was ultimately required to serve three separate prison terms.  

19. The Tribunal finds that in relation to the crimes committed by KCFS in 2005 taken on their own, or taken together with the earlier crimes of violence as referred to above, the consideration of the nature and seriousness of KCFS’s conduct weighs heavily in favour of a decision to refuse to grant KCFS a protection visa.

    Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

20. Paragraphs 11.1.2 of Direction No. 65 states in part:

    (1) ...

    (2) ...

    (3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)     information and evidence on the risk of the non-citizen reoffending; and

    (ii)    evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

    (iii)    the duration of the intended stay in Australia.

    (c)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.

21. KCFS’s representatives contended that KCFS had not re-offended since the 2005 offending: some 12 years.  It was also contended on behalf of KCFS as follows:[39]

    48   The matter set out in paragraph 11.1.2(1) weighs against the Applicant.  However that factor must be balanced by a proper application of whether in all of the Applicant’s circumstances the risk is unacceptable.  Although paragraph 11.1.2(2) may be seen to also weigh against the Applicant this case is not one of mere visa applicant.  The Applicant has been a permanent resident of Australia for most of his life.  To approach his case by reference to paragraph 11.1.2(2) is artificial and not genuinely reflective of the community expectation referred to therein.

    49   The maters in paragraph 11.1.2(3) favour the Applicant.  It is very unlikely the Applicant will reoffend in the way he did in 2005.   He was and is extremely remorseful for that offending.  He has successfully completed rehabilitation programs and has been a “model prisoner”.

    50   For these reasons it is submitted that the likelihood of further offending by the Applicant is low and that any risk he poses to the community is not an unacceptable one.

    [39] Refer page 14 of KCFS’s Statement of Issues, Facts and Contentions.

22. In response, the Minister contended that the degree of risk of KCFS re-offending is unacceptable, is heightened by his previous conduct and community members may fall victim to similar offences by KCFS if he is released. 

1. The Minister’s representatives contended the high risk Static-99 score for KCFS, while acknowledging was not predictive as to how any particular individual would behave, remained a very important factor to be taken into account when considering the likelihood of KCFS re-offending and consequential future harm being suffered by members of the Australian community.   It was further contended on behalf of the Minister, as follows:

   49   Following his attendance at a sex offender’s programme while in prison, the applicant was assessed as:

   49.1having low insight into the lack of intimacy and protectiveness in his personal relationships;

   49.2having poor general self-regulation, with his capacity for adaptive general self-regulation probably adversely affected by his low cognitive functioning;

   49.3tending to blame the victim and to externalise responsibility for his own actions;

   49.4having limited healthy emotional coping capacity which remained untested when confronted by significant life stressors;

   49.5while he recognised the risk of anti-social behaviour occurring in his twin brother’s company, the applicant still intended to spend time with him upon his release.

   50     The applicant has been in immigration detention since his release from prison in 2013.  Having been subject to close supervision while in detention over the last 4 years, the applicant has not had any exposure to living in the Australian community, with the consequence that this claimed rehabilitation remains untested.

   51     The brutal nature of the applicant’s April 2005 offending, his prior record of violent criminal offences, the high risk of recidivism assessment, and the Corrections Victoria assessment of the applicant’s poor general self-regulation and the limitations on his capacity to learn improved self-regulation, are all indicative of a significant level of risk that the applicant will re-offend should he be granted a visa and released into the community.

   52     His history of responding aggressively when faced with stressful situations, resulting in violent offending, and his limited capacity to give effect to coping strategies, mean that if the applicant was to be granted a visa and released into the community, there would be a real likelihood that he would re-offend, and that his re-offending would be violent in nature.

   Harm to individuals or to the Australian community

2. In considering the risk to the Australia community, the Tribunal must consider the nature of the harm to individuals or the Australian community should KCFS engage in further criminal or other serious conduct under paragraph 11.1.2(3)(a) of the Direction.   The Tribunal is satisfied that if KCFS re-offends in a similar way to as he has in the past, namely, to commit violent crimes, rape of type committed, callously abandoning an unconscious victim fighting to stay alive as he did in 2005 (and even worse, seeking to conceal a victim), the harm that would be suffered by individuals or the Australian community may encompass serious injury and even death. 

   Information and evidence on the risk of re-offending

3. The Tribunal must also consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the non-citizen reoffending was required by paragraph 11.1.2(3)(b)(i) of the Direction. 

4. The Tribunal acknowledges that KCFS’s conduct since he went into prison after the events of 2005 has been commendable.  While he has been in a structured environment, he has successfully abstained from using alcohol or drugs.  Notably, it seems that he has remained incident free, including for the later period of time for which he been in detention, apart from a few minor misdemeanours of smoking in an unauthorised area and reports of gambling and owing small debts to other prisoners, both of which the Tribunal considers to be insignificant. 

5. The Tribunal has reviewed the regular prisoner reviews prepared in relation to KCFS while at prison (see various pages from 457 to 620 of the G-Documents). The Tribunal also acknowledges that KCFS was consistently described as a quiet and compliant prisoner.  Early in his sentence he was described as keeping to himself; in later reports he was described as getting along well with some of the other prisoners.   Otherwise, prison officials overwhelming reported that there were no issues arising with respect to KCFS in their monthly reports.  These reports positively affirmed that KCFS’s attitude and behaviour at various times while serving his time in prison were of no concern to the staff.[40]

   [40] One example of this can be found at p 496 of the G-Documents in the entry for 17 October 2012.  Another example is at p 499 of the G-Documents in the entry for 9 December 2012.

6. KCFS was also employed for much of the time while he was in prison, working a lot of time in the assembly factory.  The reports of his work performance were consistently good.  There were some short periods when KCFS was not working while in prison but this was on account of his medical condition.  KCFS gave evidence that he suffered from a number of health conditions including hepatitis C, heart problems including angina, arthritis, chronic back pain and hip pain.

7. The Tribunal notes there were a couple of incidents in prison for which KCFS was commended including raising an alarm to officials that some clothes were burning on a heater, potentially averting a fire.[41]  He also voluntarily handed in a screwdriver to prison officials which he found in the prison, potentially averting the screwdriver from being used as a weapon to harm someone.[42]

   [41] Refer page 494 of the G-Documents.

   [42] Refer page 365 of the G-Documents.

1. The Tribunal has considered and accepts the psychologists’ opinions about KCFS as outlined in paragraphs [75] to [85].  The Tribunal notes the absence of any clear support by those two psychologists for the view there was no (or a low) risk of KCFS re-offending if he was released.   Instead, the Tribunal considers that those opinions provide support for there being an unacceptable risk that KCFS will re-offend.  

2. Notably, Ms Matthews considered that KCFS exhibited symptoms of a borderline personality disorder which reflected in unstable interpersonal relationships, impulsivity in substance use and behaviour, chronic feelings of loneliness and boredom, and inappropriate intense anger. 

3. It is acknowledged that Ms James made some positive comments about KCFS developing some strategies to help him by completing the sex offender’s program, although she was not definitive about this in her report but instead cautioned that this was untested.  In particular, the Tribunal notes the views expressed by Ms James in paragraphs [78], [82], [83] and [85].

4. However, despite the acknowledgments of the Tribunal in paragraph [117] to [120], the observations of Ms James as set out in paragraph [83] above and the assessment of KCFS by Ms James as summarised by the Minister in paragraph [114] above, make it difficult for this Tribunal to have confidence that if KCFS was returned to an unstructured environment, as would be the case if he was released into the Australian community, with plans to spend time with his twin brother who is still drinking alcohol (albeit socially), there remains an unacceptable risk that things will escalate as they have before and that KCFS would engage in harmful criminal misconduct. 

5. Further, KCFS’s lack of self-regulation evident from his repeat offending, despite spending time in prison on two earlier occasions, and consistent with the opinions of the psychologists, make it unlikely that KCFS would stop himself from re-offending or from getting into situations where the risk of this was significant.  The Tribunal also takes into account the “high risk” score given to KCFS under the Static-99 risk prediction instrument, whilst appreciating the limitations of that tool and the absence of any individualised component of the assessment.

6. The evidence revealed that KCFS’s relationship with his twin brother still exists and they have a strong connection.  His twin brother attended the hearing at the Tribunal as mentioned above.  His twin brother regularly communicated with KCFS while he was in prison and detention and at times, sought to visit him.[43]  When they served time together, the Tribunal notes that KCFS for a while shared a room with his twin brother.  As set out in paragraph [86] above, KCFS gave oral evidence that he planned to see his brother if he was released.

   [43] Refer page 548 of the G-Document as an example.

7. The Tribunal considers those observations support a finding that KCFS will find it difficult to contain the risk of re-offending if released.   As already mentioned, while the Tribunal does not consider that pre-meditation was a feature of KCFS’s offending behaviour, those crimes typically arose from the misuse of alcohol and/or drugs and to use the words of KCFS’s mother, because KCFS and his twin brother could not handle their alcohol.  The Tribunal is not satisfied on the evidence before the Tribunal, that KCFS will be better able to handle his alcohol than before, despite abstaining for 12 years in a structured environment.  Nor is the Tribunal convinced that KCFS will be able to continue to abstain from taking alcohol and/or drugs once he leaves the structured environment of detention, particularly if he spends time with his brother, as it was clear to the Tribunal that he intends to do. 

8. Being in his early 50’s, which KCFS was at the time of the 2005 offences, he should have known the risk that presented itself when the victim and KCFS’s twin brother cajoled him into drinking with them that night.  KCFS gave evidence that he saw the victim put drugs in his drinks, and yet, he made the decision to still drink them, knowing full well the risks involved from past experiences.  The Tribunal is not convinced that his participation in the Sex Offender’s Program and any strategies he may have developed in a theoretical setting since then, is enough to stop KCFS from succumbing to future temptations such as these, particularly, when presented to him by his twin brother (who he is eager to please), if released back into the community.

   Evidence of rehabilitation

9. The Tribunal must also consider any evidence of rehabilitation as required by paragraph 11.1.2(3)(b)(ii) of the Direction.

10. KCFS completed a number of rehabilitation courses during his time in prison after the events of 2005.   One such course was the Corrections Victoria Sex Offender’s Program referred to above in paragraph [77] to [85]. 

11. Other programs attended by KCFS included:

    (a)      Drug Education Program - 7 December 2005 to 14 December 2005;

    (b)      D&A (presumed to be Drug & Alcohol) Orientation – 30 April 2009;

    (c)      D&A Assessment – 5 June 2009;

    (d)      24 Hour D&A Level III Individualised – 1 February 2012 to 22 March 2012;

    (e)24 Hour Semi Intensive Drug Treatment (Level III) – Individual – 10 January 2012 to 22 March 2012;

    (f)       Literacy courses;

    (g)Certificate I in Hospitality (Kitchen Operations) at Gordon Institute of TAFE on 31 August 2007;[44] and

    [44] Refer page 638 of the G-Documents.

    (h)Certificate II in Transport & Distribution (Warehousing & Storage) at Gordon Institute of TAFE dated 2 May 2007.[45]

    [45] Refer page 639 of the G-Documents.

12. The reports, where provided, of KCFS’s progress in those courses were positive.  As mentioned above, in the Treatment Summary of participation and progress in the Sex Offender’s Program, the psychologist considered KCFS to have engaged appropriately throughout, noting there was one temporary setback that occurred when KCFS’s prison term was extended by the Court of Appeal although it seems this was overcome and KCFS resumed appropriate engagement with the program.

13. It struck the Tribunal that KCFS appeared interested in pursuing courses to improve himself and to provide him with some tools to try to keep him out of trouble once released.  However, any strategies KCFS may have developed during those courses remain as yet untested in an unstructured environment.

    Duration of KCFS’s intended stay

14. Under paragraph 11.1.2(3)(b)(iii) of the Direction, the Tribunal must consider the duration of KCFS’s intended stay in Australia. This is not a case in which the application is made for a short term stay in Australia, which may assist in limiting any risk posed to the Australian community for the period of that visa. KCFS has been in Australia for 48 years and has long term intentions to remain in Australia.  He has given evidence that all of his family has left Turkey.  His primary network of family and friends reside in Australia rendering the likelihood of him ever leaving Australia remote. 

15. This presents a significant amount of time (potentially one or two more decades) in which further criminal conduct may be committed by KCFS if he is released into the community.  The Tribunal does note that KCFS is now 63 years of age and also has a number of health issues which is likely to increasingly limit his physical capabilities as the years pass by, however, at the hearing, KCFS was observed to be able bodied and able to walk about freely.  

16. Taking into account the considerations and findings of the Tribunal as set out in paragraphs [89] and [135] above, the Tribunal finds that there is an unacceptable risk that KCFS will re-offend if he is released into the Australian community and is persuaded that the primary consideration of the protection of the Australian community from criminal or other serious conduct, weighs heavily in favour of refusing KCFS’s protection visa application.

    Best interests of minor children in Australia

17. On the evidence before the Tribunal, there are no minor children in Australia whose interests are relevant to KCFS’s case.  KCFS has no contact with his son.  There was no evidence tendered that he has a relationship of any note with any of his nieces or nephews.

    Expectations of the Australian community

18. Paragraph 11.3 of the Direction states:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

19. KCFS’s representatives contended that KCFS’s “circumstances, including his lengthy permanent residence in Australia and ties to the community and his family, his physical and mental health issues, the prospects of either being returned to a country where this is a well-founded fear of persecution or alternatively being detained indefinitely, are not such that the community would consider refusal of his visa appropriate simply because of the very serious nature of the offending.”[46]

    [46] Refer p 15 of the KCFS’s Statement of Issues, Facts and Contentions.

20. The Direction implicitly acknowledges that the Australian community accepts some risk in relation to the conduct of non-citizens, depending on its seriousness. The evidence before the Tribunal about the repeated nature of and gravity of KCFS’s criminal conduct supports the conclusion that the Australian community would expect the Minister to refuse to grant KCFS a protection visa, even after taking into KCFS’s personal circumstances as referred to in these reasons for decision. 

    OTHER CONSIDERATIONS

    International non-refoulement obligations

21. The Tribunal acknowledges that if KCFS’s protection visa application is refused, by operation of ss 189 and 196 of the Act, he would face the prospect of indefinite immigration detention if he does not obtain a visa to live in another country.[47]

    [47] See 12.1(6) of the Direction.

    Impact on Australian business interests

22. There is no impact on Australian business interests arising from KCFS’s case.  IBIK has given evidence that he is planning to employ KCFS in his proposed new business; however, that business does not presently exist so no current business interests would be affected. 

    Impact on family members

23. Paragraph 12.2 of the Direction requires consideration of the impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

24. The Australian community would understandably be concerned about the personal impacts of visa refusal on KCFS, his parents and brothers. The compassionate reasons informing that view are reflected in the evidence from KCFS, his mother and BLIK before the Tribunal, as described in these reasons for decision.

25. The Tribunal is satisfied this is a countervailing factor weighing against the decision to refuse KCFS’s visa application. The evidence of KCFS’s mother engenders sympathy for her circumstances and her husband’s circumstances. The Tribunal accepts that she and her husband would be distressed if KCFS was not released back into the Australian community.  However, evidence was given that presently KCFS’s other brothers presently provide care and support to their mother to assist in looking after her husband and there was no evidence presented which would suggest this situation would change in the near future.  The Tribunal’s consideration of this factor is therefore mitigated by continued support of those other immediate family members and their respective spouses, one of which (i.e. KCFS’s twin brother’s wife) was present for the duration of the hearing.

    Impact on victims

26. As already mentioned, the Tribunal acknowledges the reference by the courts in the criminal proceedings relating to KCFS’s 2005 offences, to a victim impact statement suggesting that the victim’s family feared KCFS so it can be inferred that they are likely to be concerned if he was released back into the community. 

    conclusion

27. Through KCFS’s convictions, and most notably, those in relation to the crimes in 2005, KCFS has demonstrated that he does not have a high regard for Australian laws or others in the Australian community. 

28. KCFS’s conduct enlivens consideration of the framework principles, which state at paragraph 6.3(6) of the Direction, that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding:

    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.

29. KCFS has been convicted of multiple offences since arriving in Australia as set out above. Given the extent of his criminal offending, the Tribunal is unable to conclude that during the time he has lived in Australia, KCFS has acted in a way that appropriately reflects his responsibilities as a visa holder and visa applicant.  

30. Further to the various considerations already addressed in these reasons for decision, the Tribunal acknowledges that KCFS had an extremely difficult and at times, traumatic, childhood.  He was given up by his parents and sent away from his immediate family at a very young age.  He was mistreated by his grandmother and sexually abused and beaten by his uncle.  His was taunted by his peers at school in Turkey for living with his grandparents, which was demoralising for him.  He was socially isolated by the strict rule of the grandmother who did not let him go out and spend time with his friends.  This would have impacted on him socially.  He was lied to about the identity of his real parents which, understandably, led him into a state of confusion about this for the first part of his childhood and when the truth was finally revealed, he could not understand why he was not able to return to live with his immediate family.  His twin brother at this time made him feel rejected by his immediate family during visits and would tell him to go back to his grandmother.  He had challenges with his schooling, as his learning progression was slow, and instead of this being constructively addressed, he was punished for this.  The Tribunal is very sympathetic to KCFS and has little doubt that this was likely to have contributed to the later development by KCFS of his serious drinking problems and a lower level drug habit.

31. It is also clear to the Tribunal from the evidence that KCFS’s parents would benefit greatly from the support he would be able to provide if he was released back into the community and he made good his commitment to and expressed desire to live with them to assist with the care of his father.  His brothers, and in particular, BLIK, would also benefit greatly from KCFS assuming some of care responsibilities for which he claimed to carry the bulk of the responsibility for at present. 

32. While KCFS has lived in Australia over the last 48 years, he was employed at various times.  Some of those roles lasted for quite a number of years.   KCFS also made efforts to work for most of the time while he was in prison and detention and the work reports for his performance in those roles were either good or excellent.  The Tribunal acknowledges that KCFS made a positive contribution to the Australian community by his gainful employment while living in Australia.

33. The Tribunal acknowledges that KCFS expressed remorse in relation to some of his offences, although he would also often seek to externalise the blame for what took place, for example, he said he did it because he was intoxicated and because his victim forced him to take alcohol and drugs. The Tribunal acknowledges that he also gave evidence accepting responsibility for his past criminal conduct, and that he promised to be good if released into the community and would not do it again.  Those comments are at odds with the repeat nature of some of his offences.  The Tribunal considers that the assessment of risk under section 501(6)(d)(i) of the Act is heightened if a visa holder or a visa applicant has repeatedly engaged in similar conduct.  It demonstrates that when tested, there was little or no regard by KCFS for the consequences and victim impacts of such repeated offending conduct, despite the evidence he gave that he would be good and would not do it again.

34. After weighing up all of the evidence and the applicable law, the Tribunal concludes that the need to protect the Australian community against KCFS’s criminal misconduct, coupled with the expectations of the Australian community, as set out in these reasons for decision, outweighs the other considerations. This conclusion is reached with a degree of regret in relation to the personal impacts of a decision affirming the refusal of the visa on KCFS, his parents and his other brothers. 

35. The Tribunal finds that KCFS does not meet the character test and that the discretion to refuse his protection visa under s 501(1) was appropriately exercised by the decision-maker. The decision under review is the preferable one and is therefore affirmed.

I certify that the preceding 156 paragraphs are a true copy of the reasons for the decision herein of Member K Parker

[sgd]...........................................................

Associate

Dated: 26 April 2017

Date of hearing:	18 April 2017
Counsel for the Applicant:	Greg Hughan
Advocate for the Applicant:	Ben Goulding
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	David Brown
Solicitors for the Respondent:	Australian Government Solicitor