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

[2020] AATA 254

Kelekci and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 254 (20 February 2020)

Division:GENERAL DIVISION

File Number:           2019/8023

Re:Deha Kelekci   

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:20 February 2020

Place:Sydney

The Tribunal affirms the decision under review.

..........................[SGD]........................

Mr S Evans, Member

CATCHWORDS

MIGRATION – Mandatory visa cancellation – citizen of Turkey – Class BS Subclass 801 (Spouse) visa – failure to pass the character test due to substantial criminal record – whether discretion to revoke mandatory cancellation of visa should be exercised – Ministerial Direction No. 79 applied – primary considerations – other considerations – decision affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Baudromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Broder Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

‘DFAT Country Information Report for Turkey’ (Country Information Document, Department of Foreign Affairs and Trade, 9 October 2018)

REASONS FOR DECISION

Mr S Evans, Member

20 February 2020

INTRODUCTION

1. Mr Deha Kelekci (“the Applicant”) is a citizen of Turkey who first arrived in Australia on 26 March 2004 at the age of 21 as the holder of a Subclass 570 (Student) visa.  On 29 March 2011 the Applicant was granted a Class BS Subclass 801 (Spouse) visa.

2. On 12 October 2018  the Applicant’s Class BS Subclass 801 (Spouse) visa was cancelled by a delegate of the Minister (“the Minister” or “the Respondent”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as he was sentenced to an aggregate term of imprisonment of three years and nine months in August 2018.  Representations were made on 12 November 2018 seeking revocation of that decision. On 28 November 2019 a delegate for the Minister decided not to revoke the mandatory cancellation decision. 

3. The Applicant has applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the decision not to cancel the revocation of his visa. 

4. The matter was heard on 10 and 11 February 2020 at the Sydney Administrative Appeals Tribunal.  The Applicant appeared in person and was self-represented. 

5. I have decided to affirm the decision under review.  My reasons follow. 

   BACKGROUND AND EVIDENCE

6. The Applicant gave oral evidence at the hearing.  Further evidence was received from the Applicant’s partner, Ms F, and friends of the Applicant Mr A and Mr B. All provided testimony by telephone. The Tribunal also had before it written evidence and submissions. The totality of the evidence has been carefully considered.  

   The Applicant’s evidence

7. The Applicant is 36 years old and has resided in Australia continuously since arriving as a student in 2004.  He worked as a chef prior to starting his own small transport business with a fleet of two trucks between 2010 and 2015.  The Applicant lived with Ms F until shortly before his incarceration. 

8. The Applicant writes in his representation seeking revocation of the decision to cancel his visa that “in the first few years while studying and working part-time I had the opportunity and eventually established and managed my own business which I successfully ran for several years”. 

9. The Applicant met Ms F within two years of his arrival in Australia.  They began a long term relationship and the Applicant became close to her family, including Ms F’s brother and his two children. The success of his business enabled the Applicant to support Ms F in establishing her own business comprising two hair and beauty salons. 

10. In 2015 the Applicant lost his drivers’ license, an event which he now determines to be life altering. 

    In 2015 due to my own reckless indiscretions and a moment of stupidity I unfortunately lost my license, my main and only source of income.  I also lost my contracts for the Transport Company and the trucks I was paying off.  Because I had lost the ability to provide for myself, my workers and my partner, she too felt the ramifications of my misdemeanours. Because of our mounting debt and being unable to meet the mortgage payments not only did I lose everything, she did also. 

    Because of the deterioration of not only my business and my partners [sic] business, this led me to further spiral out of control.  It was the first time I had experienced hardship like this in my life.  Until now I had been successful at everything I had pursued.  I now felt a sense of hopelessness and being a failure to not only myself but to those around me.  I became increasingly embarrassed and frustrated and this led to me becoming depressed and feeling lonely.  

    …

    During the difficult time I started to mix with the wrong people and resorted to drugs to curb my pain.  This obviously eventuated in me committing the crimes I have committed and having me incarcerated.[1]

    [1] Respondent’s G-documents, G12 p 87.

11. The Applicant submits that he has learnt from his criminal behaviour and now wishes to put it behind him: 

    … loosing [sic] my business and licence and getting on a break with my partner, I did not know how to deal with it all.  Depression and starting using drugs in that period got the better of me.  I can say that I hit the bottom rock and it cost me a lot.  And not all I wanna [sic] do is to be able to prove myself and those around me that I am even stronger than before and learned heaps from my own mistakes.[2]

    [2] Ibid G13 p 100.

12. Drug use was an important factor in the Applicant’s offending but he is confident that he has done what is required to ensure he does not use again: 

    I’ve completed 20 weeks of remand addiction course in Parklea as well.  And I put my name down for more Equips and N.A. [Narcotics Anonymous] meetings to work on my problems that made me commit the crime.[3]

    [3] Transcript, 10 February 2020, pp 32-33.

13. The Applicant presented written letters of support to the Tribunal and called three witnesses to testify in support of his application.  The letters of support spoke generally of the Applicant regretting the mistakes he had made and noting him to be a loyal individual and a hardworking member of the community. 

    Evidence of Ms F

14. Ms F confirmed their relationship between 2006 and 2015. They broke up and later reconciled whilst the Applicant was incarcerated and are currently engaged.  She submits that the Applicant is a valued member of her family and “a very good man of excellent character”, who had supported her in realising her dream to start her own business. 

15. Ms F told the Tribunal that she plans to marry the Applicant and hopes they will start a family together.  She said that whilst she is willing to consider moving to Turkey should the Applicant’s appeal be unsuccessful, it would be a difficult decision for her.  She explained that she is close to her family in Australia including her nieces and nephews.  Ms F also told the Tribunal that her parents, who are aging and in relatively poor health, would be an important consideration when determining any future plans to move overseas should the Applicant’s visa be cancelled. 

16. Ms F testified that after the Applicant started taking “ice” he “turned into a different person”.  The Applicant “got caught up with the wrong crowd”; and the demands of their respective businesses, the passing of the Applicant’s father and the death of one of their dogs added to an already stressful situation.  Ms F summed up the situation in the lead up to the Applicant’s principal offending and in particular the role of drugs: 

    …we were together for nine and a half years.  There was never one incident with the police.  But then in this timeframe what I’m telling you about, six months to a year where he was taking ice and I was for a bit, that is the only times we’ve had these problems.  That’s also when we lost our businesses and everything.  So, you can see that…before then we were running businesses for years, we had a home, you know, we were extremely healthy, we were making money.  And then in that short time frame everything fell apart.[4]

    [4] Transcript, 11 February 2020, p 96.

17. Ms F told the Tribunal that she also began using drugs and they both became “like completely different people”. The period in which they were both using drugs she described as a “dark place” where they “lost everything” they had been working towards.  When asked about the Apprehended Violence Order (“AVO”) which was in place and subsequently breached by the Applicant, Ms F’s was unable to recall specific details of the order which she attributes to “being under the influence at the time”.  She testified that she had asked for the order to be “dropped”. 

18. Ms F confirmed that she and the Applicant speak daily whilst the Applicant has been in detention. 

    Evidence of Mr B

19. Mr B has known the Applicant for 15 years and confirms him to be “a trustworthy, hard-working and reliable man”. Mr B owns his own business and has offered full-time work to the Applicant should he be released back into the community. 

    Evidence of Mr A

20. Mr A confirmed that he too has known the Applicant for 15 years. He praised the Applicant’s generosity and strong work ethic.  Mr A testified that he had been overseas for approximately five years.  Mr A admitted that he and the Applicant used to “have the occasional joints [marijuana] here and there”, but said he was surprised when he found out the details of the Applicant’s crimes.  

21. Mr A did not visit the Applicant in jail because he was overseas at the time. Since his return he has visited the Applicant in detention in addition to keeping in contact through phone calls and messages. Questioned about being refused entry to Villawood Immigration Detention Centre during one of his visits to see the Applicant because he triggered an ion scanner, Mr A conceded that he still “like[s] my joints here and there”. 

    ISSUES

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

    (4) The Minister may revoke the original decision if:

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

    (b)the Minister is satisfied:

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

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

23. There is no question that the Applicant made the representations required by s 501CA(4)(a). Consequently, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[5]

    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…[6]

    [5] [2018] FCAFC 151.

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

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

    (a)  whether the Applicant passes the character test; and

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

25. 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.[7] I will address each of these grounds in turn.

    [7] Ibid.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

26. 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”.

27. On 23 August 2018 the Applicant was sentenced in the Downing Centre District Court to an aggregate term of three years and nine months imprisonment, with a non-parole period of two years and six months.  That the Applicant does not pass the character test is not contested by the Applicant.  Consequently, I am satisfied that the Applicant does not pass the character test.

28. The Applicant cannot rely on s 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.

    IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?

29. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with 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 s 501CA (“the Direction”) applies.[8] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    … 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.[9]

    [8] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.

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

30. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:

    (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.

31. Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.

32. The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

33. I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[10]

    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.[11]

    [10] [2018] FCA 594.

    [11] Ibid, [23].

34. Paragraph 6.3 of the Direction sets out a number of principles that should inform the way in which decision-makers apply the considerations in Parts A, B or C of the Direction. Briefly stated, they are as follows:

    (i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (ii)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;

    (iii)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;

    (iv)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;

    (v)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;

    (vi)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

    (vii)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 for determining whether to exercise the discretion.

35. I will now turn to addressing these considerations.

    Primary Consideration A: Protection of the Australian community from criminal or other serious conduct

36. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct.  Paragraph 13.1(2) of the Direction further provides that 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 Applicant’s conduct to date

37. The Applicant’s offending is recorded in an Australian Criminal Intelligence Commission Check Results Report and spans the period from 2012 until August 2018.[12] The offences, for which he was sentenced to imprisonment, leading to the mandatory cancellation of his visa, occurred in 2015 and 2016 (“the principal offences”). 

    [12] G-documents, G3 p 27.

    Possession offence

38. The Applicant’s first recorded offence was a charge of possessing a prohibited drug for which he was fined $500 on 24 January 2012.  The Applicant gave evidence that it comprised two tabs of MDMA which were detected at a music festival. 

    Vehicle related offences

1. Between 2012 and 2015 the Applicant received a number of fines for minor traffic infringements including exceeding the speed limit, failing to wear a seatbelt and failing to stop at a red light on a number of occasions.  The Applicant’s license was suspended on occasions for not paying outstanding fines.  In October 2015 he was fined for driving a vehicle with an illicit drug present in his blood. 

2. In June 2016 the Applicant was fined for driving whilst disqualified.  

   Other offences

3. In February 2016 the Applicant was fined $300 for contravening a restriction in a domestic Apprehended Violence Order. In January 2016 he was fined $600 for destroying or damaging property.

   Principal offences: 

   Supply of prohibited drugs

4. On 23 August 2018 the applicant was sentenced in the District Court of New South Wales after pleading guilty to supply of prohibited drugs.  The aggregate sentence was a total term of imprisonment of three years and nine months.  He was sentenced to a non-parole period of two years and six months imprisonment.  The offending took place in early 2016. 

5. The following summary  detailing the supply of prohibited drug offences is drawn from the sentencing remarks of the judge:

   The supply involved nine transactions and the amount of GHB was approximately two thirds of the commercial quantity of that prohibited drug. There were 19 separate transactions to a number of people, all of which were conducted by mobile phone, either through text message or phone call. There was some organisation and planning in these transactions which involved a coded language, and whereby arrangements would be made to meet users of various locations.  The offending took place over a period of seven weeks. I find the objective seriousness of the offending was just below the mid-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA. It is still considered serious offending. 

   …

   The offender was subject to a s 10 bond to be of good behaviour at the time of the offending…[13]

   …

   [13] G-documents, G5 p 60.

   Hindering the discovery of evidence

6. On 31 July 2018 the Applicant was sentenced to 11 months imprisonment with a non-parole period of seven months for hindering the discovery of evidence.  The offending took place in November 2015.  

7. The Supreme Court of New South Wales provides details of the offence committed by the Applicant, including that he disposed of a jacked that an associate, Mr Fazlilar, was wearing after learning that Mr Fazlilar had shot someone  whilst wearing  the jacket and that the vehicle driven by Mr Fazlilar was implicated in a homicide.  Despite knowing that Mr Fazlilar had shot someone, the Applicant denied this when interviewed by police and subsequently admitted to disposing of Mr Fazililar’s clothing in the presence of undercover operatives in the custody cells on 9 March 2016. 

8. 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. Relevant (for present purposes), amongst those factors are:

   (a)The principle that… 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 subparagraph (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 a trend of increasing seriousness;

   (f)The cumulative effect of repeated offending;

   (g)…

   (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 is in immigration detention … is serious

9. There can be no doubt that the offence of supplying prohibited drugs is a serious criminal offence. The Tribunal notes that the supply of prohibited drugs was found by the sentencing judge to be “just below the mid-range of objective seriousness” but that it “is still considered serious offending”. 

10. In regards to the matter of hindering the discovery of evidence concerning a serious indictable offence, the sentencing judge stated in her sentencing remarks that “the fact that the serious indictable offence is murder is of some significance”.[14]  Nonetheless, she was satisfied that the objective seriousness of the offence was towards the lower end of the range of conduct contemplated by the offence.  

    [14] Ibid G4 p 35.

11. I take into account that the Applicant’s offending has been frequent and with a trend of increasing seriousness.  The Applicant was on a good behaviour bond at the time of his drug offending.  I consider that the nature and seriousness of the Applicant’s offending weighs heavily in favour of not revoking the visa cancellation. 

    Primary Consideration A: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

12. Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. Subparagraphs 13.1.2(a) and (b) of the Direction relevantly states: 

    (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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken.

13. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct is very serious.  The Applicant was a part of the drug trade and in doing so facilitated the damage that illegal drugs do to the community.  The crime of hindering the discovery of evidence demonstrates a disturbing propensity for acting out of self-interest over the law and the community. 

14. I also accept that the Applicant had four punishments recorded during his time in criminal custody. Although the three punishments were for relatively minor infringements including smoking, given the nature of the Applicant’s offending it is a matter of concern that one of the punishments was for the administration of a drug. 

15. Noting that the punishment occurred early in his incarceration, the Applicant explained that he was having difficulty sleeping and could not see a prison doctor or psychologist due to the waiting time.  He was, he said, offered methadone by a cellmate who had it on prescription.  Two days later he failed the drug test.  

16. I acknowledge that the Applicant was in the midst of a spiraling and self-destructive addiction to methamphetamine at the time of the principal offending.

17. By his own account the Applicant had allowed drugs to “get the better” of him. The sentencing remarks for the charge of supplying prohibited drugs states:

    [the Applicant] deposed that at the time he now appreciates that “he was entering a form of depression” and that he did not know how to deal with it.  He started to recreationally use the drug ice, which use escalated to smoking three to four points per day, costing approximately $100.  He started to gamble, lost the friends he had, and became addicted to drugs.

    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.[15] 

    [15] Ibid G5 p 53

18. Whilst the Applicant’s drug use is a mitigating factor, it also raises the concerning prospect of the risk that exists to the community should he resume his drug taking. Whilst I accept his desire and even determination not to take drugs again, I must consider the totality of the evidence before the Tribunal. 

19. In this regard the sentencing remarks from 13 July 2018 include details of recommendations from a psychologist, Mr Tim Watson-Munro, which were provided in anticipation of the sentencing hearing. Mr Watson-Munro opined that the Applicant expressed a strong desire not to use drugs again, but conceded he would benefit from a professional assistance to reinforce the progress he had made to date in dealing with his substance abuse issues. That treatment should involve cognitive behaviour therapy, utilising systemic desensitisation for his anxiety, development of relapse prevention strategies, social skills training for his diminished self-esteem, as well as supportive and motivational psychotherapy.[16]

    [16] Ibid G5 p 55.

20. At the hearing the Applicant was questioned in detail about the measures he had taken to address his addiction, particularly as they related to his impending release back into the community.  Whilst he indicated a preparedness to seek external help and assistance, the sparsity of actionable detail and contingency was notable. Mr Watson-Munro’s suggestions have not been acted upon to a degree which would satisfy the Tribunal that the risk of relapse, and hence future offending, is as low as it could be. 

21. At the hearing the Applicant told the Tribunal that he has been “sober and clean for three years and eight months”.[17] Illicit drugs, he contended, were readily accessible in both prison and in detention but he had never faltered in his abstinence.  This, the Applicant maintains, is confirmed by the many drug tests he has taken during that period.  His view is that he has tested himself and resisted the temptation to take drugs again. 

    [17] Transcript, 11 February 2020, p 127.

22. The Applicant’s achievements in terms of his drug addiction are indeed substantial.  He is justifiably proud of having overcome his dependency on methamphetamines and his extended period of abstinence. 

23. The Applicant correctly identifies that he will be on parole if released back into the community and use of drugs would be a breach of parole conditions.  He also indicates a willingness to work with parole supervisors to identify other measures he may take to ensure he does not use drugs. 

24. I note also that the Applicant’s depression is currently untreated and that he says he is no longer suffering from depression.  He has completed the 20 week EQUIPS addiction program in prison in 2017 and says he regularly attends weekly Narcotics Anonymous meetings.

25. I must weigh this against the risk associated with the Applicant returning to the community and an environment with different challenges and opportunities. If he is returned to the community, he anticipates living with his partner, who is also a former methamphetamine user.  I note also that one of the Applicant’s referees was recently refused entry to visit him in detention because he tested positive for the presence of drugs. 

    Conclusion as to the protection of the Australian community

26. The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.  Given the serious nature of the harm that flows from repeated offences of the nature committed by the Applicant, I consider that a moderate risk of further harm of a similar nature is unacceptable.  I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision. 

    Primary Consideration B:  Best interests of minor children

27. 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. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

28. The Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:

    (a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);  

    (b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;  

    (c)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;  

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

    (e)Whether there are other persons who already fulfil a parental role in relation to the child;  

    (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);  

    (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and  

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.  

29. The Applicant does not have any children of his own but states that he has a strong relationship with his niece and nephew.  The Applicant’s niece and nephew, now aged 14 and 15, lived with him for a “long period of time” and in one representation he said it was “two years”.  At the hearing he confirmed that it was actually three to four months that they lived with him. 

30. I accept, however, that the Applicant has known the children for most of their lives, and helped provide for them during that period. 

31. At the hearing the Applicant accounted for the long period since he has seen his niece and nephew as being for their own wellbeing.  He told the Tribunal that he had asked his brother in law not to bring the children to visit him in jail.  He said that he did not want the children to see him in jail or to come to jail because it is “not a good place”.  Consequently, he has not seen or spoken to the children for over three and a half years.  The children now live with their mother, who the Applicant concedes he does not have a relationship with.

32. In these circumstances, I find that this consideration weights marginally in favour of the Applicant, but I place minimal weight on this factor when considering whether to exercise the discretion to revoke the cancellation decision. 

    Primary Consideration C – The Expectations of the Australian Community

    The relevant paragraphs in the Direction

33. In making an assessment of the weight to be allocated to Primary Consideration C, paragraph 13.3(1)[18] of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect, and (2) any overarching principles and guidance provided by the Direction.[19] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that a non-citizen should not hold a visa.

    [18] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.

    [19] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).

    The evolution of the Australian community’s “expectations”

34. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.

35. In 2003, Deputy President Block of this Tribunal said that one must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[20]

    [20] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at paragraph [36].

36. Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[21] The learned Deputy President thought this paragraph leads a decision-maker to:

    …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times.[22]

    [21] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at paragraphs [102]-[103].

    [22] Ibid at para [102].

37. The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:[23]

    In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.[24]

    [23] [2017] FCA 1466, [76]-[77] (“YNQY”).

    [24] Ibid at paragraph [76].

38. The learned Mortimer J also thought the last two sentences of paragraph 13.3 of the Direction:

    … [are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[25]

    …

    I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…[26]

    [25] Ibid at paragraph [76].

    [26] Ibid at paragraph [77].

39. In Afu v Minister for Home Affairs,[27] Bromwich J said:

    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 that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.[28]

    [27] [2018] FCA 1311, [85] (“Afu”).

    [28] Ibid at paragraph [85].

1. In FYBR v Minister for Home Affairs,[29] Perry J observed that:

   “It follows, in line with the authorities, that cl 11.3 of Direction 65[30] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”[31]

   [29] [2019] FCA 500 (“FYBR”).

   [30] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.

   [31] FYBR, [42] (Perry J).

2. FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Perry J’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.

3. Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:

   (a)the ‘expectations of the Australian community’ cannot be measured or determined as if a provable fact. It is an assessment of community values made on behalf of that community;[32]

   (b)the Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[33]

   (c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have “due regard” of those statements, if made;[34]

   (d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[35]

   [32] Afu, [85].

   [33] FYBR, [42].

   [34] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

   [35] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).

4. The Australian community expects non-citizens to obey Australian laws while in Australia.  As noted, the Applicant arrived in Australia in 2004.  The Respondent contends that the Applicant has “demonstrated a lengthy pattern of disregarding the Australian law and relevant rules”, and based on his criminal history, the Tribunal accepts this. 

5. The Applicant arrived in Australia as an adult.  He has worked here for almost the entire time through until his principal offending, a period of over 10 years.  He began his career in Australia working as a chef, before becoming a courier and finally a truck driver with his own business.  He has paid taxes, employed people and supported his partner and her family during much of that time. In doing so he made a positive contribution to the Australian community and this weighs in his favour.

6. The Minister notes that the Applicant has spent a considerable time in criminal custody and immigration detention and used the court’s resources at the expense of the Australian community and I accept this mitigates the extent of his contribution to the community.   

7. Taking into account the Applicant’s participation in the community and the nature of the offending and the risk of reoffending, I find that the expectations of the Australian community weigh in favour of non-revocation of the cancellation decision. 

   OTHER CONSIDERATIONS: 

8. When deciding whether to cancel a Visa, Other Considerations must be taken into account where relevant.  These considerations, as set out in paragraph 14(1) of the Direction, include, but are not limited to:

   (a)International non-refoulement obligations

   (b)Strength, nature and duration of ties

   (c)Impact on victims

   (d)Impact on Australian business interests

   (e)Extent of impediments if removed

   Other consideration A: International non-refoulement obligations

9. 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.

10. No evidence was advanced that is relevant to this other consideration. Accordingly, this other consideration is afforded no weight. 

    Other consideration B: Strength, nature and duration of ties

11. Paragraph 14.2 of the Direction provides that decision-makers are to have regard to how long the non-citizen has resided in Australia.  As noted, prior to his incarceration and detention the Applicant made a productive contribution to the economy. He has demonstrated an entrepreneurial nature and strong work ethic which has enabled him to support his partner in her own enterprise.

12. References and testimony from Ms F and the Applicant’s friends speak generally of the Applicant’s remorse for his offending and attempts to rehabilitate.  They also speak of the support that he may receive if released from immigration detention and his plans for the future.  The Respondent correctly identifies that the Applicant and Ms F separated in 2015 and draws to the Tribunal’s attention visitor logs which indicate that she did not visit him in jail at all and has only seen him twice whilst he has been in immigration detention. 

13. Ms F explained the reasons for the infrequent visits included the ability to talk on the phone and the privacy that is afforded by that method of contact.  I accept that Ms F and the Applicant are currently in a relationship and that their intention is to marry and start a family together. 

    Other consideration C: Impact on Australian business interests

14. This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia.  There is no evidence from either party that this was the case in the Applicant’s particular circumstances.

    Other consideration D: Impact on victims

15. The Direction provides that decision-makers should take into account the impact on victims where information is available.  There is no evidence before me of any victims of the Applicant’s crimes and consequently this consideration weighs neutrally.

    Other consideration E: Extent of impediments if removed

16. This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is repatriated to Turkey, and maintaining basic living standards, in the context of what is generally available to other citizens of that country.  Factors that should be taken into account are a non-citizen’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.

17. The Respondent contends that whilst the Applicant may face limited difficulty in re-establishing himself in Turkey, this factor would only present as a short term hardship and would not preclude resettlement.  The Respondent further contends that this limited difficulty would possibly be of no more hardship than what the Applicant would face in re-establishing himself in the Australian community once released after a number of years from criminal custody and immigration detention. 

18. The Applicant’s mother and brother both live in Turkey.  His mother, who the Applicant is close to, has visited him here in Australia whilst he was in detention and he speaks regularly to his brother.  The Applicant also confirmed that he has uncles, an aunt and cousins in Turkey.  He told the Tribunal that he has never worked in Turkey and if he were to go back to Turkey, “there’s really nowhere to look for work, I just wouldn’t know what to do for work”.  He expressed concerns about the poor pay in Turkey and the different structure of the economy compared to that of Australia.

19. The Applicant claims that he would be required to serve compulsory military service, which will involve fighting terrorist organisations, such as ISIS and the PKK.  He indicated that he was concerned he may be punished if he refused to serve.  The Respondent has provided the Tribunal with a DFAT Country Information Report dated 9 October 2018 which confirms that “Males aged 20 to 41 are eligible for conscription”.[36]  Being 36 years old, the Applicant would be a potential conscript.  The report also notes that exemptions from service are possible, including the option of paying for an exemption. 

    [36] ‘DFAT Country Information Report for Turkey’ (Country Information Document, Department of Foreign Affairs and Trade, 9 October 2018) p 39.  

20. The Respondent notes that in reference to the possibility of compulsory military service there is no evidence that the Applicant would be required to engage in combat, which I accept.  Whilst I accept that the Applicant may prefer not to be conscripted, it is a consideration which does not carry much weight with the Tribunal. 

21. In these circumstances, the Tribunal considers it appropriate to afford the expectations of the Australian community moderate weight in favor of non-revocation.  

    CONCLUSION

22. As mentioned earlier, s 501CA(4)(b) of the Act stipulates two alternative conditions required to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (i) the Applicant must be found to pass the character test, or (ii) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.

23. The Applicant’s serious offending precludes him form passing the “character test” in s 501(6) of the Act.

24. I have considered the specific circumstances relating to the Applicant as part of my consideration about whether to revoke the cancellation decision.  I am now required to weigh up those considerations. 

25. The primary considerations relating to the protection of the Australian community and expectations of the Australian community are in favour of not revoking the cancellation decision.  Whilst the Applicant’s most serious offending was related to his drug addiction, his earlier convictions also indicate a propensity to disregard the law. 

    Having regard to these considerations in the Direction, the Tribunal is not persuaded that the Applicant’s rehabilitative efforts are satisfactory relative to the risk of future harm to the Australian community should he reoffend. 

    Whilst I accept that he has made significant progress in relation to his drug use he has done so in the highly structured environments of prison and detention.  The Applicant’s ability to manage his drug use in the community is untested. Furthermore, he has neither completed, nor has he plans to complete, many of the treatments for his drug use and mood disorders which were recommended prior to sentencing. 

    The Applicant’s relationship with his niece and nephew speaks to his generosity, but there is no evidence of an ongoing relationship with the children, the children live with their parents and there is no evidence about what support he would provide them if released from detention. For this reason the primary consideration concerned with the best interests of minor children carries little weight in favour of revocation.   

    With respect to other considerations I note that the Applicant is a relatively young man who has proven himself both intelligent and resourceful.  I accept he does not wish to serve in the Turkish military, but I do not accept he is genuinely fearful of doing so.  There will be challenges in returning to Turkey, but he concedes he has a support network he can rely upon, beginning with his mother and brother.

26. Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa. 

    DECISION

27. For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 28 November 2019 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 (Spouse) visa pursuant to s 501CA of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..................................[SGD].................................

Associate

Dated: 20 February 2020

Date(s) of hearing:	10 and 11 February 2020
Applicant:	In person
Solicitor(s) for the Respondent:	Ms S Prasad, Minter Ellison