Kelekci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1398

Kelekci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1398 (14 April 2021)

Division:GENERAL DIVISION

File Number:2019/8023          

Re:Deha Kelekci

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:14 April 2021

Date of Written Reasons:      19 May 2021

Place:Brisbane

The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised

.......................[sgd].................................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – decision on  remittal - Non-revocation of mandatory cancellation of a Class BS Subclass 801 (Spouse) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

SECONDARY MATERIAL

Department of Foreign Affairs and Trade “DFAT Country Information Report Turkey”, dated 10 September 2020 

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Rebecca Bellamy

17 May 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 38 year old citizen of Turkey. In March 2004, when he was 21, he moved to Australia as the holder of a Subclass 570 (Student) visa.[1] The most recent visa granted to him was a Class BS Subclass 801 (Spouse) visa (“visa”) on 29 March 2011.[2]

   [1] RD1, 75.

   [2] RD1, 76

2. On 12 October 2018, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 12 November 2018, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 28 November 2019, the Respondent decided not to revoke the cancellation.[5]

   [3] RD1, 165

   [4] RD1, 88-107

   [5] RD1, 16-25

3. On 5 December 2019, the Applicant applied to the Tribunal for review of the delegate's decision.[6] On 20 February 2020, the Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of the Applicant’s visa.[7]

   [6] RD1, 7-12

   [7] RD4, 271-298

4. On 31 March 2020, the Applicant filed an application for an extension of time to seek judicial review of the Tribunal's decision in the Federal Court of Australia.[8] On 24 June 2020, the Federal Court of Australia remitted the matter to the Tribunal to determine the Applicant's application for review according to law.[9]

   [8] RD5, 302

   [9] RD5, 301.

5. The hearing of this remitted matter proceeded on 18 and 19 January 2021. The Applicant gave evidence via videoconference. The Applicant’s partner and both of her parents gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

6. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

7. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]

   “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11]

   [10] [2018] FCAFC 151.

   [11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

8. There are therefore two issues presently before the Tribunal:

   ·whether the Applicant passes the character test; and

   ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

9. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12]

   [12] Ibid.

   Does the Applicant Pass the Character Test?

10. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

11. On 23 August 2018, the Applicant was sentenced to an aggregate term of imprisonment of three years and nine months.

12. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

13. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

14. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

15. Paragraph 7(1) of the Direction provides that:

    Informed by the principles in paragraph 6.3 above, a decision-maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[13]

    [13] The Direction, sub-paragraph 7(1)(b).

16. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...

17. Part C provides for the decision-maker to take into account “Primary Considerations”[14] and “Other considerations”.[15] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they 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.

    [14] The Direction, paragraph 13.

    [15] The Direction, paragraph 14.

18. The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

19. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[16]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[17]

    [16] [2018] FCA 594.

    [17] Ibid, [23].

    BACKGROUND AND OFFENDING

20. The Applicant was born in Turkey and moved to Australia in 2004 when he was 21 years old as the holder of a Subclass 570 (Student) visa. After his studies, he worked as a chef until 2007, then he worked as a courier before starting his own transport company in 2010. The company was profitable with three employees and two trucks.[18]

    [18] Transcript, pages 7 to 8.

21. He has travelled back to Turkey on two occasions in 2010 and 2012. His immediate family including his mother and brother remain in Turkey.

22. The Applicant was in a long-term de-facto relationship with his current partner (“Ms M”), who is an Australian citizen, between 2006 and 2015, which resumed in late 2017. He was granted a Class BS Subclass 801 (Spouse) visa on 29 March 2011.

23. The Applicant started committing traffic offences in 2006. Between 2006 and 2011 he was caught speeding on four occasions and not wearing a seatbelt on one occasion. He received fines for each offence. Good behaviour conditions were imposed on the Applicant’s license from 20 August 2011 to 19 December 2011.

24. The Applicant’s first recorded criminal offence was a charge of possessing a prohibited drug. This was committed on 26 November 2011 when he was found in possession of two tabs of MDMA at a music festival. The Applicant was fined for this on 24 January 2012. At the hearing the Applicant explained that he bought two pills outside a dance party and was immediately apprehended. He said he had not used illicit drugs until 2015.[19]

    [19] Transcript, page 43, lines 15 to 21.

25. Between April 2013 and August 2014, the Applicant committed six further traffic offences including using a mobile phone, disobeying traffic lights x 2, failing to stop at red light x 2, and speeding. He received fines for these infringements.

26. On 13 January 2015, the Applicant’s license was suspended for failure to pay fines.[20] The Applicant told the Tribunal that he was not aware of this at the time.[21]  On 22 January 2015, the Applicant was caught driving while his license was suspended. On 27 April 2015 the court imposed a good behaviour bond for 12 months. In the hearing the Applicant said he had not realised his license was suspended at that time.

    [20] Transcript, page 46, lines 10 to 14.

    [21] Transcript, page 44, lines 39 to 46.

27. In February 2015, Ms M had an abortion due to medical problems.[22] She gave evidence that the Applicant had wanted to keep the baby and it was the biggest thing she and the Applicant had ever had to deal with.[23]

    [22] Transcript, page 55, lines 25 to 40.

    [23] Transcript, page 57, lines 25 to 43.

28. Without being able to legally drive, the Applicant’s transport business lost a contract because the client only wanted him to drive. He sold one of his trucks and the other did not make money because of loan repayment, maintenance, running costs and wages paid to the driver.[24] He ended up having to sell the other truck. 

    [24] Transcript, pages 9 and 46.

29. The Applicant gave evidence that he started using illicit drugs in July 2015 to deal with his depression that had been triggered by a number of events including the loss of the baby followed by the breakdown of his relationship with Ms M, his father being seriously ill back in Turkey and the loss of his business. He and Ms M separated in August 2015 which devastated him, and the loss of her support led to him to make poor choices and spiral further into drug addiction.[25]

    [25] Transcript, pages 10 to 12.

30. On 17 July 2015 while still subject to the good behaviour bond, the Applicant was caught drug driving, the drug being methamphetamine.[26] On 1 October 2015 the Applicant was sentenced to a fine and had his license disqualified for three months for the drug driving offence.

    [26] RD2 page 251.

31. On 13 October 2015, after the Applicant and Ms M had separated, the police were called to the Applicant’s residence due to a report of domestic violence. After speaking with both the Applicant and Ms M, and observing the scene, the police determined that the Applicant had not done anything to Ms M except grab her in self-defence, that the allegations she had made were untrue, and that he was in need of a protection order against her. The police report indicates that while Ms M was argumentative and aggressive towards the Applicant, and at one point she threatened him with two knives, he tried to diffuse the situation and he sought police intervention.[27]      

    [27] RD2, page 249.

32. In November 2015, a person was murdered. The police spoke with the Applicant about it later concluded that he had more knowledge than he disclosed and that his actions before and after the murder hindered their investigation.[28] He was charged and later pleaded guilty to hindering the discovery of evidence concerning a serious indictable offence. The facts that were agreed between the prosecution and Applicant were recounted in the sentencing proceedings by the learned Judge. I reproduce the salient part of her remarks[29] here, noting that the Applicant is referred to as the “offender” and I have replaced other names with pseudonyms and replaced other identifying details with “…”:

    [28] RD2, page 248.

    [29] RD2, pages 35 to 40. 

    “On 29 May 2018, Mr F was found guilty of murder following a jury trial…

    The offender is not to be sentenced in relation to being an accessory after the fact to the murder but I accept that the surrounding circumstances are relevantly before me in that they provide the details of the offence.

    The Agreed Facts are as follows.

    At 6:42am on Monday, 16 November 2015, Mr M (“the deceased”) was found deceased by hotel staff in room … of the …Suits at…Street, Sydney. He had suffered a single fatal gunshot wound to the rear of his upper thigh which penetrated his abdomen.

    The deceased was an associate of Mr D and Ms K. Mr D and Ms K were in a relationship. Mr D was a part owner of…, which was a strip club and brothel in Kings Cross. Mr F was a frequenter of that venue. The offender was an associate of Mr F but was not acquainted with the deceased, Ms K or Mr D.

    In the early hours of Friday, 13 November 2015, the deceased met with Mr D, Ms K and Mr F at …and socialised with  them. They were later joined by Mr A. They all socialised amicably together until shortly after 6:00am at which time they moved to room…at the …Suites. Ms K left room…at 6:23am and Mr A left later that morning and did not return. The deceased, Mr F and Mr D continued to socialise until mid-afternoon.

    The Crown case is that, shortly after 3:00pm on Saturday, 14 November 2015, Mr F examined the deceased’s mobile phone and noticed that there was a contact saved in that phone as “Police Crime 1800 333 000”. This caused Mr F to become enraged. Between 3:38pm and 3:57pm, in the presence of Mr D, Mr F shot the deceased in the leg. The bullet ruptured the deceased’s iliac vein, which caused extensive internal bleeding and led to his death. Mr D promptly left the room after the shooting and caught a taxi back to…

    Mr F remained in room…for seven minutes, leaving at 4:04pm. He left the body of the deceased in the room together with some ammunition.

    After the shooting, Mr F went to the offender’s flat in …Street, Redfern, where he left the black and white checked jacket that he had worn at the time of the shooting. On Sunday, 15 November 2015, at approximately 1:30am, the offender travelled by taxi with Mr F to collect the white Corolla hire car that Mr F and Mr D had driven to the Cinema Centre Car Park (opposite the…Suites) the morning prior to the shooting.

    Mr F and the offender drove back to Mr F’s flat in…. The offender went into F’s flat and got some fresh clothes for him, which he then brought downstairs. Mr F was later seen wearing those clothes.

    The offender was present at Mr F’s flat when Mr D and Ms K came around to discuss what to do with respect to the shooting of the deceased. However, the offender denies knowing what the others were discussing.

    At some time prior to Monday, 16 November 2015, Mr F told the offender that he had shot someone in the leg.

    At around 6:30am on Monday, 16 November 2015, police located the deceased’s body inside room…at the…Suites. The police became aware that the rented white Corolla might be linked to the murder of the deceased. They located the vehicle in…Street.

    At about 4:00pm, the offender and Mr F got in the Corolla and drove off. Police followed the car and pulled it over not far from the offender’s flat. Amongst other things, one of the Detectives informed the two men that there had been a “serious incident... there was a homicide last night and this car is linked to it.”

    Later that night, the offender picked up Mr F’s jacket from the floor of his flat and put it in a neighbour’s bin about 200 metres down the road. He was aware from what he had been told by both Mr F and the police that the jacket was relevant in linking Mr F to the homicide.

    When the offender was first spoken to by police on Monday, 16 November 2015, he denied that Mr F had shot anyone.

    On Wednesday, 9 March 2016, the offender admitted to disposing of Mr F’s clothing in the presence of undercover operatives in the custody cells of the Sydney Police Centre at Surry Hills.

    The offender was formally interviewed by police on 27 June 2016 at which time he told them that Mr F informed him on the evening of 16 November 2015 that “he used a gun on someone on the leg...” The offender also confirmed that he had disposed of Mr F’s clothing. He told police that he threw the item in the bin because:

    “I didn’t want to have his stuff in my house... because like I just didn’t want it ‘cause um, they told me that he might have done something like that, you know what I mean, I just like didn’t want to have anything to do with him...”

    The offender additionally told police that he threw out a pair of sunglasses also left by Mr F on the same occasion.”

    (underlining added)

1. Her Honour also said the following about the offence:

   “I am satisfied that there was a low degree of planning involved in the offender’s disposal of Mr F’s jacket. While the offender was aware at some stage prior to Monday, 16 November 2015 that Mr F had shot someone in the leg, it was not until around 4:00pm on Monday, 16 November 2016 that the offender learned that there had been a homicide and that the jacket was relevant in linking Mr F to that homicide. I am further satisfied that the offence did not occur over a long period of time. The relevant conduct involved the offender returning to his flat on the night of 16 November 2015, picking up Mr F’s jacket from the floor and placing it in a neighbours bin around 200 metres away. This was only a single act which seemingly could have transpired in minutes.

   Although the Crown accepted that there was no planning in this matter, it was not accepted that the offender acted on the spur of the moment. It was submitted that after Mr F arrived at the offender’s door unexpectedly, he spent time with him over the following days. At some stage, Mr F told him that he had shot someone in the leg, but as I have indicated, it was not until police spoke to him and mentioned a murder investigation that he realised the seriousness of the matter. It was some hours after that that he disposed of the clothing.

   I accept that the evidence shows that the offender hindered the discovery of evidence motivated by self-preservation in that he sought to distance himself from Mr F and the suspected homicide. So much is clear from what the offender told police as set out in the Agreed Facts. Furthermore, at the hearing before me on 27 July 2018, the offender gave the following evidence:

   “Why I helped him was because he left his jumper in my house and then I actually didn't want to be involved in it, and then when we got arrested in the city together, when I was told that he may have done something like that, like murder, I was scared, I didn't know what to do, I didn't want to have nothing to do with him, that's why I chucked his jumper. I thought he was never going to come back anyway after he was arrested.”

   Finally, I have had regard to whether the disposal of his jacket hindered the investigation. The position of the Crown on this issue was that the police investigation may have been hampered by not being able to test the jacket for gunshot residue but the other evidence against the primary accused for the murder was very strong and included abundant CCTV footage of him wearing the subject jacket on numerous occasions.

   In light of all these matters, although the offender hindered the discovery of evidence in a serious murder investigation, I am nonetheless satisfied that the objective seriousness of this offence is towards the lower end of the range of conduct contemplated by the offence.”

2. On 9 March 2016 the Applicant was arrested and charged with concealing a serious offence which pertained to the murder. He was granted bail with conditions. He breached bail in April 2016 by failing to report.[30] In July 2018, the Applicant was sentenced to imprisonment for 11 months with a non-parole period of seven months for hindering the discovery of evidence concerning a serious indictable offence. 

   [30] RD2, page 240.

3. In the hearing the Applicant disagreed with some aspects of the Agreed facts. He denied that he was aware because of what he had been told by police and Mr F, at that time of disposing of the jacket, that it was linked to a homicide. He said when he was taken to be questioned by police he “had no idea about it”, then the police told him that Mr F might have shot someone in a hotel room. He said Mr F was released within hours of being questioned and he came to his home and said “I haven’t done nothing like that. If I done anything like that they wouldn’t let me out”.[31] He also claimed that that he had told police about the jacket in June 2016 in an interview, and not to an undercover officer. He said they asked him about it and he told the truth.[32] Had the Applicant spoken about the jacket with an undercover operative, he would not have known given the operative was undercover. Only strong reasons justify departing from the factual findings of the sentencing court. In this case, the Applicant had legal representation and there were Agreed Facts. I do not consider that there are strong reason to accept the Applicant’s evidence where it differs from the court’s findings.

   [31] Transcript, page 49, lines 28 to 38; page 50.

   [32] Transcript, page 48, lines 33 to 42.

4. However, the court did not find that the Applicant intended to hinder the investigation, and seemed to accept that he merely sought to distance himself from Mr F. There was no finding that he thought the jacket (or sunglasses) had any significance to the investigation and I am not satisfied that he did.        

5. In December 2015, the police were called to another domestic violence incident. The Applicant had attended Ms M’s home to fix the fence. They had argued earlier that day. She refused to let him into the house. He started banging on the front and rear doors and yelling, and Ms M called the police. The Applicant smashed the lounge room window injuring his arm. He yelled at Ms M to give him a towel and let him inside but she was afraid and refused. When the police arrived the Applicant said "I shouldn't have done it. I lost my temper and smashed the front window." The Applicant was then taken to hospital.[33] The police obtained an Apprehended Violence Order (“AVO”) which provided that the Applicant could not go to Ms M’s home or work. The Applicant was subsequently convicted of destroy or damage property (DV) in January 2016 and he received a fine.   

   [33] RD2, pages 245 to 246

6. On 10 February 2016, there was a further domestic violence incident. At around 10pm police observed the Applicant and Ms M standing in a bus lane arguing. Both stated that they had spent the previous evening at Ms M’s residence but had very different versions of how this came to occur. They also said he had gone with her to her work but disagreed about the reasons. Ms M told police that she had been punched, kicked and burned by the Applicant, and that he had smashed her mobile phone. She was unable to produce her mobile phone and the police considered her account to be vague, without detail and inconsistent when probed by questions. They concluded that she was embellishing or confabulating her account to cause trouble for the Applicant. The Applicant was cautioned, and later charged, for breaching the AVO. The police had concerns that the situation between the Applicant and Ms M would escalate further and that an AVO was required for the protection of the Applicant from Ms M. The police noted that Ms M was inviting the Applicant to her premises, causing him to breach the conditions of the AVO and then stalking and harassing him when he refuses to do as she wished, ultimately fabricating allegations against him.[34]

   [34] RD, pages 241 to 242.

7. On 18 February 2016 the Applicant was convicted of contravening the AVO and fine. The good behaviour bond from April 2015 was called up.  

8. On 14 May 2016, four days before his license disqualification period ended, the Applicant was caught driving. (On 8 June 2016, he was fined and his license was disqualified for a further 12 months).

9. Between 6 April 2016 and 1 June 2016, the Applicant was detected supplying
   4-Hydroxybutonoic acid (“GHB”) and methamphetamine on multiple occasions. He had been the subject of a controlled police operation. By committing these offences, the Applicant breached the 12 month good behaviour bond that had been imposed on 27 April 2015 for driving whilst his licence was suspended. He was arrested and taken into custody on 2 June 2016.

10. The Applicant pleaded guilty to four offences of supplying prohibited drugs[35] and the Agreed Facts were recounted in the sentencing proceedings by the learned Judge. I reproduce the salient part of those remarks[36] here:

    [35] 2 x supply prohibited drug (small & indictable quantity) and 2 x supply prohibited drug indictable quantity (not cannabis).

    [36] RD2, pages 52 to 64. 

    “A controlled police operation known as [taskforce name redacted] was authorised to enable the negotiation of purchase of drugs from the offender. During the course of the investigation, police lawfully intercepted mobile telephone services used by the offender (ending in 145 and 045). On 9 March 2016 the offender gave mobile number ending in 145, to an undercover police operative

    (“UCO”) the following day. A conversation took place with the UCO in which the offender asked the UCO whether he could supply him with “G water”, a pseudonym for the prohibited drug GHB.

    The UCO notified the offender that he would be away for a few weeks and contact was re-established in late March 2016. The UCO met the offender on 6 April 2016. The UCO was shown two small, clear resealable bags, each containing a small amount of crystals. The UCO purchased the two bags for $250. They weighed 1.09 grams and a presumptive analysis showed they contained 0.68 grams of methylamphetamine, with an average purity of 77.25%.

    On 11 May 2016, the offender received a telephone call from an unknown male requesting the supply of ice. At 12.26am on 12 May 2016, the offender met that person at the Meriton Hotel, Kent Street, Sydney, and supplied the unknown male with 1.75 grams of methamphetamine.

    This, together with one further supply referred to below, was the criminal conduct comprising the offending in Count 1 on the Indictment.

    On 22 April 2016, the offender was contacted by an unknown female, and in code, the offender agreed to supply 60 mls of 4-Hydroxybutonoic acid (GHB) for $300. That supply took place at approximately 12.40am at the Oaks Hyde Park Hotel.

    On 29 April 2016, the UCO met the offender at Pyrmont and they drove to Ramsgate, where the offender got out of the car and approached another vehicle. He then returned, and the offender supplied the UCO with a clear, resealable bag containing a small amount of white substance in it.

    On 12 May 2016, the offender supplied an unknown male with 45 mls of GHB.

    On 13 May 2016, police intercepted another transaction, in which an unknown male ordered 20 mls of GHB, which was supplied within 20 minutes.

    On 15 May 2016, police intercepted another telephone order for GHB. On this occasion 30 mls of GHB was supplied on Windmill Street, The Rocks. On the same day, another telephone intercept revealed an order for a supply of 30 mls of GHB, which was supplied at a Hungry Jacks outlet.

    On 16 May 2016, the offender received a text message with an order for 20 mls of GHB, which was supplied to an unknown person on Goulburn Street, Haymarket.

    On 18 May 2016, another text message in code ordered 20 mls of GHB, which was supplied by the offender to an unknown male at the Meriton Apartments on Pitt Street, Sydney.

    On 20 May 2016, the offender, by coded text message, arranged to supply 20 mls of GHB to an unknown male.

    On the same day, police intercepted a telephone call which involved a further order for 20 mls of GHB.

    Later that night, an unknown female, in a coded telephone call, ordered 50 mls of GHB. Shortly thereafter, the offender met an unknown female on Oxford Street, Sydney and supplied 50 mls of GHB.

    On 22 May 2016 at midnight, the offender received a telephone call from a person known as “Megan”, requesting in code a supply of GHB. At approximately 1.30am on 23 May 2016, the offender supplied that person with 30 mls of GHB.

    A short time thereafter, the offender received a further telephone call ordering GHB in code. An arrangement was made to meet at the Shangrila Hotel in Cumberland Street, where the offender was seen on CCTV arriving at 1.38am.

    The offender supplied an unknown male with 50 mls of GHB.

    On 25 May 2016, the offender received a number of text messages from an unknown person ordering GHB in code. That led to a supply to that person of 100 mls of GHB.

    On 28 May 2016, an unknown female, by code, ordered a quantity of GHB. At 7.42pm that evening the offender supplied the unknown female with 30 mls of GHB.

    On 30 May 2016, an unknown person, by telephone, ordered by code a supply of GHB. Just after 9pm, the offender supplied a female named “Karly” with 50 mls of GHB.

    At 12.09am on 31 May 2016, the offender received a telephone call from an unknown female, ordering by code, GHB. At 2.03am the offender supplied that female with 20 mls of GHB at Milsons Point.

    At 5.17pm on the same day, the offender received a telephone call from an unknown female, in which she ordered GHB by code. Further communications took place, in which the offender disclosed the price he paid for GHB ($4 for ml), and the sale price ($7 per ml) That led to a transaction in which the offender knowingly took part in the supply of 30mls of GHB.

    At 10.38pm, the offender received a further text message from the unknown female, following which, they met at Town Hall, and he supplied her with 30mls of GHB, and 1.75 grams of methamphetamine (which related to Count 1).

    On 1 June 2016, the offender received a text message from an unknown female, in which a further order was placed for the supply of GHB by code. An arrangement was made to meet in Kings Cross where the offender supplied the unknown female with 30mls of GHB. Each of those supplies constitute the offence in Count 2, supplying 668 mls of GHB.

    The UCO met the offender on 5 May 2016 in Haymarket. They drove the UCO’s car to Darlinghurst, where the offender showed the UCO a number of clear resealable bags and a small package of crystal shards in a black box. The offender supplied the UCO with a quantity of cloudy, small shards, for which the UCO gave the offender $3,500, previously issued to him by police. The offender took the cash and placed it in his pocket and left the vehicle

    The drug was sent for analysis and it was found there was no prohibited drug identified in the crystalline substance, which weighed a total of 27.8 grams. That was the conduct comprised in the offence in Count 3 on the Indictment.

    The offence on the Form 1 of supply prohibited drug (2.25 grams of cocaine), which was attached to Count 1, occurred on 25 May 2016 when the offender received a call from an unknown male ordering cocaine in code. That led to the offender agreeing to supply 2.25 grams of cocaine to the unknown male at the Meriton Hotel on Kent Street.

    On 2 June 2016, the offender was arrested. He participated in an ERISP interview, in which he admitted smoking marijuana and using ice a couple of times a week. He told police that there were drugs at the hotel room he occupied at the Criterion, and said it was his personal use. The offender agreed that the mobile phone ending in 145 was his phone for the last six months. He denied being the user of mobile phone ending in 045.

    The offender also admitted using GHB (only once or twice), and the last time he used it was three months ago. He also admitted he had previously used cocaine, the last time being six months ago. He denied being a drug dealer or a drug supplier. When confronted with the detail of the transactions outlined above, he denied supplying drugs to anyone.

    The offender also denied that a gram of ice found in the hotel room was his, and denied that the black book found in that room was his. He did not know who the other mobile phones found in that room belonged to.

    Police executed a search warrant at Room 12 in the Criterion Hotel, which search revealed drug paraphernalia, together with a dark coloured book/diary with a ledger inside, a number of syringes, a set of digital scales, and a resealable bag containing a crystalline substance inside, coming to a total weight of 0.42 grams, a make-up dispenser containing two small resealable bags, one of which contained 0.39 grams of crystalline substance, and glass pipe.

    The two mobile phones ending in 145 and 045 were subscribed to fictitious persons, and had been activated on 4 February 2016 and 23 February 2016, respectively.”

11. His Honour then recounted the Applicant’s submisssions, the salient parts of which are reproduced here:  

    “The offender deposed that he was thankful that he was charged with the offences on 2 June 2016. If he had not been charged, he did not know where he would be now or what person he would have become. Shortly after being taken into custody, he was violently assaulted in his cell by three or four men, and to this day he is unsure why that occurred. He has been in protective custody since. He suffered a broken jaw in that incident. Protective custody means that he has had limited access to programs, limited contact with other inmates, and limited time outside his cell. He had, however, competed the Remand Addiction Certificate course. He had also obtained work in custody, at first in the print shop, and later as a sweeper.

    …

    He had not taken any drugs whilst in custody and had been doing everything in his power to ensure that he was able to abstain from drugs upon his release. He had also gained insight into the effect drugs had on the community by seeing first hand when other inmates tried to detox from various stages of addiction. The offender deposed that he was ashamed of himself for ever being involved in the misery of drug supply. Upon his release, he hoped to get his licence back and start work again. He wanted to become a hard working member of the community, which had accepted him into its culture and country… he now realised that he was depressed following the breakdown of his relationship, something he had not experienced before. He had had no prior treatment for mental health issues, and given the recommendations made by Mr Watson-Munro, he wanted to pursue treatment for it.

    The report of Mr Tim Watson-Munro (Ex 1) outlined the offender’s personal background as well as his drug, alcohol and psychological history. Psychometric testing reflected a Depressive Disorder. Mr Watson-Munro opined that the offender presented as a cooperative, but depressed and anxious man, who had expressed appropriate remorse for his behaviour. He was suffering a moderate Depressive Disorder and escalating anxiety with the approach of his sentence. He expressed a strong desire not to use drugs again, but conceded he would benefit from professional assistance to reinforce the progress he had made to date. That treatment should involve cognitive behaviour therapy, utilising systematic desensitisation for his anxiety, development of relapse prevention strategies, social skills training for his diminished self-esteem, as well as supportive and motivational psychotherapy.”

12. In relation to the role played by the Applicant and his motivation for offending, His Honour said:

    “I find that the offender was involved in the substantial supply of drugs. However, his role in that supply was that of a user/dealer, supplying end users on a street level basis…I find that he was supplying drugs to not profit, but to feed his own addiction to the drug ice.”

13. On 23 August 2018 the Applicant was convicted of four counts of supply prohibited drugs. He was sentenced to an aggregate sentence of imprisonment of three years and nine months. He was sentenced to a non-parole period of two years and six months imprisonment.

14. In the hearing, the Applicant said he sold drugs only to fund his addiction. He aimed to make between $50 and $100 per day to feed his drug habit which costs him that much. He said he did not seek to make a profit or pay his living expenses with the proceeds. While he had savings from his business to pay living expenses, they were running out.[37] This is consistent with the finding of the learned sentencing Judge.

    [37] Transcript, page 17.

15. The Applicant claimed he had not taken any drugs since June 2016.[38] However, he had an infringement recorded against him in gaol for taking some sleeping tablets and methadone that was not prescribed to him. He said he had been having trouble sleeping after being attacked and it was difficult to see a doctor to get a prescription.[39] He added that he did that once and did not want to do it again as he considered that “being on sleeping tablets and being on methadone, you’re still…on drugs”.[40] He also clarified that he had not taken any “illicit drug” since June 2016.[41] There is no evidence before me that the Applicant has taken illicit drugs as opposed to prescription medication since June 2016, in fact there are two negative urine tests in the Tribunal materials. I accept that the Applicant has not taken illicit drugs (as opposed to drugs that can be prescribed) since June 2016. I also accept that he has not taken any medication that was not prescribed to him since January 2017.   

    [38] Transcript, page 18, lines 40 to 45.

    [39] Transcript, page 56, lines 34 to 38

    [40] Transcript, page 57, lines 15 to 20.

    [41] Transcript, page 57, lines 30 to 35.

1. Ms M gave evidence that the Applicant was never violent towards her. She said when he was using drugs he occasionally smashed things around the house, but prior to that he did not even raise his voice to her.[42]

   [42] Transcript, page 58, lines 1 to 15.

2. The Applicant and Ms M got back together at the end of 2017.[43] 

   [43] Transcript, page 13.

   PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

3. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

4. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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 Applicant’s Conduct to Date

5. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:

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

   (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

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

   (f)The cumulative effect of repeated offending;

   (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

6. There is no evidence that the Applicant has committed any violent or sexual crimes. While he broke a window in an act of aggression, it was not directed towards Ms M and she was not injured. His subsequent breaches of the AVO did not involve violence or aggression. Nor has the Applicant committed crimes against vulnerable members of the community. Factors (a) to (c) are not relevant. 

7. The disposal of Mr F’s jacket incurred a significant custodial sentence, indicative of the objective seriousness of the offending. However, as there was no intention to hinder an investigation and the learned sentencing Judge accepted that while the Crown’s position was that the police investigation may have been hampered by not being able to test the jacket for gunshot residue, the other evidence against Mr F for the murder was very strong. While the crime this offending related to was extremely serious, being murder, the actual offending must be at the very low end of the scale of seriousness. 

8. The supply of dangerous drugs for commercial gain is inherently serious, and the seriousness of the Applicant’s offending was reflected in the very substantial term of imprisonment imposed, being three years and nine months. I note that the learned sentencing Judge accepted that the Applicant engaged in the offending only to feed his addiction and not for any commercial gain.     

9. The Applicant also incurred numerous low-level traffic infringements in a period that roughly coincides with the period he was working as a courier and later in his transport company. The drug-driving is, to my mind serious, as driving under the influence of drugs or alcohol tends to increase the risk of collisions for the duration of the period when the person is driving. I consider this offending does indicate that, at the time of the offence, the Applicant demonstrated a disregard for the road rules and the safety of other road users.      

10. The possess drugs offence in 2011 is, on its own, trivial and does not significantly contribute to the seriousness of the totality of the Applicant’s offending. Damaging property and breaching AVOs must be considered serious. The circumstances of the breaches of the AVO somewhat militates the seriousness of those offences.    

11. The Applicant’s offending could not be described as frequent however there was a marked increase in seriousness that coincided with his drug addiction culminating in serious drug supply offences. 

12. The cumulative effect of the Applicant repeated drug offending was that multiple persons in the community were supplied with GHB which is a date-rape drug and can therefore be used to seriously harm other members of the community, and methamphetamine which is highly addictive.   

13. I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.

14. The relevant factors in paragraph 13.1.1(1) of the Direction, in their totality, weigh moderately against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

15. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

    ·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    ·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

16. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

17. The nature of harm from circulating illicit drugs in the community includes addiction, poor health, property crimes or crimes of violence, and in relation to GHB it can be used to facilitate sexual offences. What is more, the circulation of illicit drugs in the community puts a significant burden on the health and criminal justice systems.

18. Traffic infringements, and especially drug-driving offences, could result in serious injury or death to other road users.

19. The impact of property damage in a domestic setting and breaches of protection orders by being in proximity to a person when one has been ordered to stay away from them is that it can creates fear and lead to a volatile situation where people can get hurt.

20. Identifying the sort of harm that could result from further inadvertent hindering of police investigations would require speculation which would not be helpful or fair.   

    Likelihood of engaging in further criminal or other serious conduct

21. The Applicant committed the hindering offence, the drug-driving, the property damage and breaches of the AVO, and the drug supply offences during a period of 12 months, between July 2015 and June 2016, when he was addicted to methamphetamine. Prior to that, he had been in the community for 10 years, studying, working and for the most part being a law-abiding citizen. In that period, he had committed one trivial drug offence and some traffic infringements. I am satisfied that the Applicant’s risk of serious re-offending is entirely contingent on whether he becomes addicted to drugs again.

22. The Applicant’s evidence was that his drug use was associated with depression but he did not seek professional help because he had never needed it before.[44] He isolated himself from his friends, family and Ms M.[45] He said “Drugs completely changed my character, and I was no longer in control but that (sic)drugs were in control of me”.[46] He expressed regret for his offending and accepted full responsibility.[47] While it is easy to say those things, the Applicant has shown some commitment to his rehabilitation.  

    [44] Transcript, page 18, lines 15 to 29.

    [45] Transcript, page 17, lines 14 to 24.

    [46] A1, paragraph 11.

    [47] A1, paragraph 12.

23. The Applicant has completed several rehabilitation courses in prison and immigration detention, including a “remand addiction course” which involved 40 hours, a 24 week online drug and alcohol course online[48], depression management course, a stress management course and an anger management course, and he attended Narcotics Anonymous (“NA”) meetings[49]. He said he no longer suffers from depression. I am satisfied that he now has insight into his past depression and the need for appropriate treatment if he becomes depressed in future.

    [48] Transcript, page 19, lines 20 to 29.

    [49] Transcript, page 58, lines 15 to 25.

24. I note that prior to the Applicant being sentenced for the drug supply offences in August 2018, Mr Tim Watson-Munro, psychologist, opined that the Applicant exhibited appropriate remorse for his offending, was suffering a moderate Depressive Disorder and escalating anxiety with the approach of his sentence, and he recommended that the Applicant would benefit from cognitive behaviour therapy, development of relapse prevention strategies, social skills training for his diminished self-esteem, and supportive and motivational psychotherapy to reinforce the rehabilitative progress he had made so far. The Applicant reports that he is not longer suffering depression. He has not undergone the recommended treatment, however Mr Watson-Munro did not describe that treatment as crucial, and I note that the Applicant has done the courses set out above and has abstained from taking drugs or unprescribed medication since Mr Watson-Munro’s report.

25. What is more, the Applicant claimed that drugs were easily accessible in prison and immigration detention. [50] He said he sees people using drugs in immigration detention and he is not tempted, rather he feels sorry for them. He counsels them against drug use as he did in gaol. He recalled that he and a much younger cellmate gave up drugs together and it was the “happiest moment” for him because he was able to help someone.[51] The Applicant plans to attend NA meetings if he is returned to the community and he would like to be a sponsor.[52] The Applicant started smoking in detention but he does not drink alcohol.[53]

    [50] Transcript, page 18, lines 40 to 45.

    [51] Transcript, page 20, lines 1 to 28.

    [52] Transcript, page 20, line 39 to page 22, line 20.  

    [53] Transcript, page 16, line 46 to page 17, line 1.

26. Both the Applicant and Ms M said they plan to marry and have children.[54] He put forward Ms M and the children they wish to have together as strong motivators to remain drug free.[55]  He said her support was very important to him.

    [54] Transcript, page 15, lines 37 to 44; page 65, lines 35 to 37.

    [55] Transcript, page 16, lines 1 to 10.

27. The Applicant and Ms M represented that they had been in pretty much constant contact since a few weeks after their break-up[56], however when Ms M was probed about that in cross examination, her evidence fell away somewhat.[57] Ms M’s parents both seemed convinced that they were back together and planned to marry. I accept that Ms M and the Applicant had some contact since their break-up and have been back together since the end of 2017.

    [56] Transcript, page 15, lines 25 to 30.

    [57] Transcript, page 68.

28. Ms M admitted to having tried drugs a couple of times over the period of around one month. She was asked if she did that after the termination of her pregnancy, and she said it was a couple of years after that, which places it around 2017. She said and she did not like the effect it had on her and has not touched drugs since then.[58] She said if the Applicant were to take drugs she would never talk to him again.[59] 

    [58] Transcript, page 56, lines 17 to 29.

    [59] Transcript, page 64, lines 12 to 15.

29. If the Applicant is returned to the wider community, he plans to gain employment and ultimately re-start his transport business.

30. Both Ms M’s parents gave evidence to the effect that they each regard the Applicant in a positive light and consider his offending out of character. They support his relationship with Ms M and they spoke to his relationship with Ms M’s nieces and nephews.[60] I found that they were very keen to support the Applicant and therefore may not have given balanced evidence. However, I accept that they genuinely regard him in a positive light and support his relationship with Ms M.

    [60] Transcript, pages 72 to 78.

31. There are also letters of support from Ms M’s brother, a person who runs a logistics company and who is willing to offer the Applicant a job if he is released[61],  and two people who have known the Applicant for a number of years. All these people speak positively of the Applicant. Letters from friends and family are expected to be positive and do not necessarily provide an objective assessment of a person. However, I take them into account in the totality of the evidence which is consistently to the effect that the Applicant has largely spent his life in Australia studying, working, being a part of Ms M’s family and abiding by the law. I am satisfied that his preferred lifestyle, and the one he has mostly chosen to live during his adult life, is drug-free and crime-free.  

    [61] RD, page 42.

32. I am satisfied that if the Applicant were returned to the wider community, he would have many protective factors assisting him to remain drug-free and crime-free, including a stable home and supportive partner who will not tolerate drug use, supportive in-laws and a business that he once ran profitably. Further, he recognises that it was a mistake not to seek professional help for his depression, and he plans to continue to engage in NA and to go a step further to help others. He has not demonstrated that he can remain drug-free outside the highly structured environment of prison and immigration detention, however he had no interest in drugs for most of his adult life before he became addicted, he has abstained for over four years and he has gone a step further and sought to counsel other inmates and detainees against drug use.   

33. The Applicant incurred traffic infringements before he started using drugs. He attributed the demise of his transport business to the suspension of his driving licence. He has learned the hard way that he cannot afford to risk losing the ability to legally drive. I am satisfied that he has learned his lesson and that the transport business he intends to re-start will serve as very strong incentive to obey the road rules.    

34. I consider there to be a minimal risk that the Applicant will commit further offences of the kind that he has committed.     

    Conclusion: Primary Consideration A

35. Primary Consideration A weighs to a limited extent against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

36. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.

37. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;

    ·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

    ·     whether there are other persons who already fulfil a parental role in relation to the child; and

    ·     any known views of the child.

38. The Applicant does not have any minor biological children in Australia. He claims that there are two minor children, who he describes as his nephew (Child A) and niece (Child B), whose best interests are affected by the decision.

39. Child A is currently 15 years old and Child B is 14 years old. They are the children of Ms M’s brother. These children normally live with their father while their mother has largely been absent from their lives.[62] 

    [62] Transcript, page 62, line 35 to page 63, line 9.

40. The Applicant provided evidence that prior to his incarceration in 2016, he maintained a strong relationship with both Child A and Child B when they were growing up. They see him as their uncle, they lived with him and Ms M for an eight month period in 2014, and he often attended special events and did activities with them.[63]

    [63] Transcript page 23 lines 1 to 35; A1, paragraph 20.

41. Following his incarceration, Child A once visited him in gaol with his father in 2017. However, the Applicant asked him not to bring Child A to visit as he was embarrassed and did not want Child A to see him in gaol. He stopped communicating with Child A and Child B. He reconnected with them recently after being moved to immigration detention in 2019.[64]

    [64] Transcript, page 61.

42. Child A provided a letter dated 16 November 2020,[65] that purports to speak on behalf of both himself and Child B. He describes the Applicant as ‘uncle’ and Ms M as ‘aunty’. He states they used to see the Applicant regularly growing up and he was an important figure in their lives who treated them as if they were his own children. They lived with the Applicant and Ms M for a time and the Applicant used to pick them up from school and do activities with them. Child A was 10 when the Applicant was incarcerated, and he did not understand why at the time. He and his father went to visit the Applicant, but the Applicant told his dad that gaol was not a good place for any child to visit. After that Child A and Child B did not see the Applicant for many years while he was in gaol, until a few months prior to the date of the letter when the Applicant started communicating with them again. They were happy to have contact with him and have regularly done so since. Child A and Child B would be very upset if the Applicant had to return to Turkey, particularly as Ms M would go with him and they would lose them both. Child A states that they did not have their mother in their lives growing up and the Applicant and Ms M’s home always felt like a real family home. They state the Applicant is a good person and they need him and Ms M in their lives.

    [65] A1, Applicant’s Statement of Facts, Issues and Contentions, Attachment C page 38.

1. There is evidence before me from the father of these children and Ms M’s parents to the effect that the Applicant has been involved in the lives of Child A and Child B since birth except for a period around 2013 and he has been a very involved, supporting uncle to them. Importantly the Applicant and Ms M took these children into their home for an extended period and it is reasonable to infer that they would do it again if need be. I am satisfied that the Applicant has had a close and positive relationship with both Child A and Child B since each was born, which was interrupted for a period around 2013 and for a period of around four years following his incarceration.     

2. Child A and Child B live with their father who fulfils the parental role. There is no suggestion that they are not well cared for. They have grandparents who seem loving and supportive. There is no suggestion that they suffered any psychological or other harm when they were separated from, and not in contact with, the Applicant. Nor is there any suggestion that they would suffer any kind of hardship if the Applicant were to be deported. However, I am satisfied that their lives were significantly better when the Applicant was in the community, they missed him when they were not in contact, and they prefer being able to contact him now. While they can still contact him if he is in Turley, it would probably be harder with the time difference. Nor is long-distance contact a substitute for physical presence in the long term.

3. If Ms M were to relocate to Turkey, that would be her choice and not a direct result of the Applicant’s deportation.

   Conclusion: Primary Consideration B

4. The best interests of Child A and Child B weigh in favour of the revocation of the cancellation of the Applicant’s visa to somewhere between a low and moderate degree

   PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

   The relevant paragraphs in the Direction

5. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

6. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[66]

   [66] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

7. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

8. Paragraph 6.2(1) of the Direction states 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. 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.”

9. Those principles, set out in paragraph 6.3 of the Direction, are:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

   (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-citizens Visa should be cancelled, or their visa application refused.

   Analysis – Allocation of Weight to this Primary Consideration C

10. Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

    ·the Applicant moved to Australia when he was 21 years old. He is now 38 years old;

    ·the Applicant committed his first serious offence 11 years after moving to Australia;  

    ·the Applicant committed some serious offences when he was addicted to methamphetamine following the loss of his unborn child, his business and his long-term relationship at a time when his father was also very ill;

    ·there is a minimal risk that he will re-offend;

    ·his offending during that period demonstrated a disregard for the laws regulating the community that he seeks to re-enter;

    ·he was either studying, employed or running his own business from his arrival in Australia to when he lost his business in 2015. He employed some workers in his business[67];

    ·he provided funds to Ms M that gave her the ability to open a hairdressing salon and invest in another through which she raised money for various charities[68];

    ·in gaol and immigration detention he has sought to discourage others from drug-use; and

    ·if he is removed to Turkey, it will adversely affect Ms M (see below), Child A and Child B.  

    Conclusion: Primary Consideration C

    [67] A1, page 19.

    [68] A1, page 19.

11. The Applicant breached the trust of the Australian community. This must be balanced against the circumstances that led to his offending, his very low risk of re-offending, the substantial period he spent as a law-abiding, contributing member of the community before he became addicted to drugs, and his very good prospects of again being a law-abiding, contributing member of Ms M’s family and the community. Considering all relevant factors, Primary Consideration C is neutral.   

    OTHER CONSIDERATIONS

12. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

    (a) International non-refoulement obligations

13. The Applicant contends that he would face harm if removed to Turkey due to his opposition to compulsory military service on political grounds. He said his objection stems “solely” from  his political views[69] and that he objects to paying the fee to get out of military service because he does not want his money to be associated with unjustified foreign conflicts, killing and the oppression of Turkish people[70].  

    [69] A1, paragraphs 65 and 66.

    [70] A1, paragraph 70.

14. This evidence was inconsistent with what he wrote in his revocation request and other evidence he gave in the hearing. In his revocation request he referred to various terrorist groups and said:

    “I will be expected to serve compulsory military service for 15  months to fight against these terror groups. I believe my life would be in immediate danger and threat.”[71]

    [71] RD1, page 93.

15. He did not mention any other objection or fear with respect to compulsory military service. When he was reminded of this statement in the hearing, he said he was also worried he would be killed. He gave inconsistent evidence about how he would act on his claimed political objection, variously saying he would resist doing military service and therefore he would be considered an enemy of Turkey and imprisoned, and that he would make his views known to his senior officer (implying he would perform military service).[72]

    [72] Transcript, pages 65 to 67.

16. With respect to his objection to payment of the exemption fee, he was asked if he would refuse to pay taxes in Turkey for the same reason, and he said no.[73] He also said he would pay the fee if he had to in order to avoid military service.[74]

    [73] Transcript, page 75.

    [74] Transcript, page 72 and 73.

17. The Applicant did not give a convincing explanation for the change in his evidence from a fear of being killed in combat to a fear of harm due to his political objection to military service. I do not accept that the Applicant objects to military service or paying the exemption fee for political reasons. I find that he does not want to do it and would find a way to pay the fee in order to avoid it.   

18. It was contended on behalf of the Applicant  that the Turkish government would imprison him because of his support of a failed coup,[75] but no evidence was put forward to support that the Applicant did support the coup, how he did so and how the Turkish government would know. I therefore reject this contention.  

    [75] Applicant’s Statement of Facts, Issues and Contentions, paragraph 90

19. The Applicant claimed that if he returned to Turkey he would be considered a draft evader, imputed with anti-government sentiment, and subjected to a disproportionate period of military detention and serious mistreatment whilst in military detention.[76] He was questioned extensively about this claim.[77] His reasoning that he would be considered a draft evader was tenuous, and his claim that he would be imprisoned is at odds with the country information before me.

    [76] A1, paragraph 46.

    [77] Transcript, pages 33 to 38.

20. A Department of Foreign Affairs and Trade (“DFAT”) “DFAT Country Information Report Turkey”, dated 10 September 2020 contains the following information:[78]

    ·All Turkish men aged between 20 and 41 are eligible for conscription and must undertake military service of six months although exemption or deferment on a non-financial basis from military service is possible;

    ·Turkish men who are resident overseas are not required to do military service while they hold a foreign work permit. Those who do not hold such a permit are considered to be draft evaders and may be subject to considerable fines upon their return;

    ·Those who do not present for registration at a military recruitment branch are issued a fine, and fines continue to be issued for the period authorities consider an individual has avoided conscription;

    ·While the law allows for imprisonment as punishment for avoiding military service it is not used in practice;

    ·Prison is not used as a penalty for unpaid fines in Turkey; and

    ·In practice there are a very large number of conscription evaders and the state lacks capacity to follow-up on most cases.

    [78] Exhibit A1, pages 81 to 82.

21. The Applicant said he has been called up and he has applied for and been granted, deferments, while in Australia. He said the most recent was in 2014 which would have expired around 2016 or 2017. He said he able to apply for another deferment because the Turkish consulate told him he had to present himself in person to make the application.[79]

    [79] Transcript, page 33.

22. Given the Applicant has previously applied for and been granted exemptions, and he held a visa that allowed him to work until it was cancelled, at which time he was held in detention, it seems most unlikely that he would be considered a draft evader upon his return to Turkey or that he would be imputed with any anti-government sentiment as he claimed in his evidence. I am not satisfied that there is a real chance that the Applicant would be considered a draft evader, that he would be imputed with anti-government sentiment or that he would be imprisoned because he does not have a current deferral of military service.    

23. The Applicant did not raise any other claims that, if accepted, would engage Australia’s non-refoulment obligations and none arise on the evidence. I will consider any claims of harm or hardship under Other Consideration (e). 

24. This Other Consideration is neutral.

    (b) Strength, nature and duration of ties

25. The Applicant came to Australia in 2004 at the age of 21 and he has lived in Australia for 17 years. He commenced committing minor traffic infringements in 2006 and he committed a relatively trivial drug offence in 2011. His serious offending started in 2015. He is entitled to some limited weight under paragraph 14.2(1)(a) of the Direction. His employment and work running his own business, and his contribution to Ms M’s business which supported charities, afford him moderate weight under paragraph 14.2(1)(a)(ii) of the Direction.

26. The Applicant does not have any family in Australia. He has longstanding ties with Ms M and her family and extended family. That Ms M’s parents, brother and nephew speak highly and affectionately of him indicates that those ties are positive. He also appears to have strong pro-social friendships in the community. If he is returned to Turkey, Ms M will go with him, although she does not want to leave her nieces and nephews and her parents whom she helps by doing grocery shopping and taking them to doctor’s appointments and the like.[80] Ms M’s parents have some medical issues which the Applicant described as what would be expected given their ages – in their 70s. Ms M, being the only child who does not have her own children, provides assistance to them.[81]

    [80] Transcript, page 66, lines 32 to 35.

    [81] Transcript, Day 1, page 24.

27. The Applicant said that living in Turkey will be hard for Ms M because she does not speak the language and the culture is different, and in addition to that, because she does not speak the language, she would not be able to work as a hairdresser.[82]

    [82] Transcript, pages 14 and 15.

28. I am satisfied that, if the Applicant is returned to Turkey, Ms M would relocate there. I accept that this would cause her hardship because she does not speak the language, she would not be able to ply her trade (until she is able to speak the language well), she is not used to the culture, the standard of living is lower, she would be separated from her immediate and extended family, and she would not be able to assist her parents in their later years.

29. As Ms M’s family members are not the Applicant’s immediate family, any impact of his removal on them is not relevant to this Other Consideration.   

30. The Applicant’s social and familial ties, and the impact on Ms M of his removal from Australia, weigh moderately in favour of revocation under paragraph 14.2(1)(b) of the Direction. 

31. Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs moderately in favour of revocation.

    (c) Impact on Australian business interests

32. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.

    (d) Impact on victims

33. This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore not relevant.

    (e) Extent of impediments if removed

34. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

35. The Applicant is a 38 year old man who is able bodied and does not claim to have any medical or psychological conditions.   

36. He has a mother, brother, aunt and cousin living in Turkey.[83] He has returned to Turkey to visit his family twice since relocating to Australia. I am satisfied that he would have familial support in Turkey. He speaks the language and, having lived in Turkey until the age of 21, he is familiar with the culture.

    [83] RD1, page 103.

37. The Applicant has worked as a chef, a courier and he ran his own transport business. I consider he has reasonable employment prospects. He did not claim that he would have difficulty earning a living in Turkey. The country information before me indicates that Turkey has a reasonably developed, accessible healthcare system.[84]

    [84] Exhibit A1, pages 54 to 55. 

38. I am satisfied that the Applicant will most probably have to undergo six months of compulsory military service if he returns to Turkey. His brother has done that and he was not injured, although I accept that there is a chance that the Applicant could be injured.   

39. This Other Consideration (e) weighs to a limited extent in favour of revocation of the visa cancellation decision.

    Findings: Other Considerations

40. The application of the Primary and Other Considerations in the present matter can be summarised as follows:

    ·Primary Consideration A weighs to a limited extent in favour of non-revocation;

    ·Primary Consideration B weighs to a low to moderate extent in favour of revocation;

    ·Primary Consideration C is neutral;

    ·Other Consideration a is neutral;

    ·Other Consideration b weighs moderately in favour of revocation;

    ·Other Considerations c and d are not relevant; and

    ·Other Consideration e weights to a limited extent in favour of revocation.

    CONCLUSION

1. This matter is finely balanced, without any compelling factors for or against revocation of the visa cancellation. Weighing all relevant matters, I find that there is another reason to revoke the cancellation. Consequently, I exercise the discretion to revoke the cancellation of the Applicant’s visa.

   DECISION

2. The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.

132.    I certify that the preceding 131 (one-hundred and thirty-one ) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 19 May 2021

Date of hearing:

18 and 19 January 2021

Solicitor for the Applicant:

Sam Issa (by video link)

Firmstone & Associates 

Solicitor for the Respondent

Subasha Prasad (by video link)

Minter Ellison

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Agreed Bundle of Remittal Documents (RD1 to RD5 pages 1 to 322)	R	-	21 OCT 2020
A1	Applicant’s Statement of Facts, Issues and Contentions including attachments A to E: ·     Attachment A - Statutory Declaration of Deha Kelekci declared 19 November 2020 ·     Attachment B - Evidence regarding education and rehabilitation ·     Attachment C – Various letters of Support including: o   Letter of Support of Ms M’s brother dated 14 November 2020 o   Letter of Support of Ms M dated 14 November 2020 o   Letter of Support of Mr A dated 7 October 2019 o   Letter of Support of Child A dated 16 November 2020. o   Letter of Support of Ms M’s parents dated 17 November 2020  o   Letter of Support of Ms B dated 19 August 2019 o   Letter of Support of Mr G dated 12 November 2020 ·     Attachment D - DFAT Country Information Report for Turkey dated 10 September 2020) ·     Attachment E – Stockholm Centre for Freedom Article: “Increasing COVID-19 cases in Turkish prisons cause panic among families of political prisoners” (8 October 2020)	A	20 NOV 2020	20 NOV 2020
R1	Respondent’s Statement of Facts, Issues and Contentions	R	11 DEC 2020	11 DEC 2020