Kocak and Minister for Immigration and Border Protection (Migration)

Kocak and Minister for Immigration and Border Protection (Migration) [2017] AATA 1232 (9 August 2017)
Division:GENERAL DIVISION
File Number: 2016/3756
Re:Nemra Kocak
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:9 August 2017
Place:Canberra

The decision under review is affirmed.
........................................................................
Deputy President Gary Humphries
MIGRATION – Section 501 visa refusal – visa refused on character grounds – substantial criminal record – protection of the Australian community – expectations of the Australian community – decision under review affirmed.
Legislation
Migration Act 1958
Cases
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27
Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Secondary Materials
Department of Immigration and Border Protection’s Procedures and Advice Manual (PAM3)
Direction No. 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA)
Turkish Criminal Code
REASONS FOR DECISION
Deputy President Gary Humphries
9 August 2017

Mrs Nemra Kocak, the applicant, married Mr Muammer Lafci in Turkey in August 2014. It was the second marriage for both of them. They are both citizens of Turkey; in addition, Mrs Kocak is also an Australian citizen.
On 14 November 2014 Mr Lafci made a combined application for two partner visas in order to come to Australia to live with his new wife. However, on 30 June 2016 a delegate of the Minister for Immigration and Border Protection (the Minister) refused the application pursuant to s 501(1) of the Migration Act 1958 (the Act). Mrs Kocak applied to the Tribunal for merits review of this decision on 14 July 2016.
At issue before the Tribunal is Mr Lafci’s conduct between 1990 and 2014. Mr Lafci has been convicted in Turkey of a serious offence in which another man was stabbed in a town called Corum. The incident occurred in 1990, Mr Lafci was convicted of the offence in 1992 and he served a term of imprisonment in relation to the offence. Mr Lafci has entered, and been removed from, the United States of America on a number of occasions since the incident in 1990; his conduct in respect of these occasions is also in issue before the Tribunal.
On the basis of these matters the Minister’s delegate determined on 30 June 2016 that Mr Lafci did not pass the character test pursuant to s 501(6)(a), in that he has a substantial criminal record as defined by s 501(7)(c). It thus falls to the Tribunal in these proceedings to determine afresh whether Mr Lafci passes the character test and, if he does not, whether the discretion in s 501(1) should be exercised to grant – or to refuse to grant –a partner visa to Mr Lafci.
THE APPLICABLE LAW
Section 501(1) of the Act gives the Minister – and thus the Tribunal, standing in his shoes for the purposes of administrative review – a discretion, as follows:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(c)having regard to either or both of the following:
(i)     the person’s past and present criminal conduct;
(ii)    the person’s past and present general conduct;
(iii)    the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia; or
…
Otherwise, the person passes the character test.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
THE MINISTERIAL DIRECTION
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under the Act, and the person or body must comply with those directions. The Tribunal is such a body. The Minister has made Direction No. 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (the Direction).
Paragraph 6.2(1) of the Direction provides this general guidance to decision-makers:
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.
The discretion in s 501 is guided by the principles set out in Paragraph 6.3 of the Direction:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case. Paragraph 8(2) provides that, in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations, and Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
Part B of the Direction sets out the relevant considerations in the context of visa applicants. It requires that the decisionmaker must, to the extent that they are relevant, take into account three primary considerations and four other considerations.
The three primary considerations are set out in paragraph 11:
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
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.
Neither Mrs Kocak nor Mr Lafci has any minor children, so that the second of these primary considerations is not presently relevant. In relation to the first primary consideration, Paragraph 11.1 provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen's conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.'
Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously; …
e)    the sentence imposed by the courts for a crime or crimes;
f)     the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
g)    the cumulative effect of repeated offending;
h)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)   Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
With respect to the question of whether a non-citizen presents a risk to the Australian community, Paragraph 11.1.2(2) provides:
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that Australia has a low tolerance for any criminal conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
MR LAFCI’S CONDUCT
The existence of a discretion in s 501(1) to grant or refuse a visa necessitates consideration of the factual circumstances of any convictions recorded against Mr Lafci, as well as the background and context of those convictions. Particularly where a considerable period of time has elapsed since the most serious offending occurred, it behoves the Tribunal to obtain a full picture of the circumstances attending the original and subsequent occasions of wrongdoing he was accused of.
In this case, unfortunately, it has not been easy to discern that full picture. There was disagreement between the parties regarding the details of Mr Lafci’s involvement in the stabbing of a man in Corum in 1990, and there was further disagreement as to how Mr Lafci’s entry into, and departure from, the United States on several occasions should be characterised. There were discrepancies in documents filed with the Tribunal, and further discrepancies between those documents and the evidence given by witnesses before the Tribunal. In addition, it was obvious that many of the tendered documents were poorly translated from the Turkish.
The Tribunal had before it the decision record of the Corum High Criminal Court dated 3 March 1992 in relation to Mr Lafci’s trial. On its cover page, it records:
CRIME: COMPLETE ATTEMPT FOR MURDER IN THE FIRST DEGREE
In describing the details of the crime committed by Mr Lafci, the decision record notes:
…the defendant Muammer Lafci got in the bus, took a knife and put off the bus and stuck the knife strongly as to penetrate to 7-8 cm depth by targeting the heart of Molla Cirkin with hostility and grudge feelings…
Under the heading JUDGEMENT, the decision record says:
The defendant Muammer Lafci was SENTENCED for 24 YEARS HEAVY IMPRISONMENT in accordance with the article 448 of Turkish Criminal Law since it was proven guilty of the offense of intentional killing of the intervener Molla Cirkin and the punishment was reduced in 1/3 rate in accordance with the article 62 of Turkish Criminal Law since it was understood that the action of the defendant was at attempt stage… [sic]
The Judgement then proceeds to award a number of discounts to the sentence under various provisions of the Turkish Criminal Law, arriving at a final sentence of 10 years.
A statement of Mr Lafci dated 4 December 2016 was tendered. In the statement he said:
The fact that my version of events does not correspond entirely with those disclosed in my Turkish court documents… should help the Tribunal to accept that I am trying to tell the truth
In the statement, under the heading EVENTS IN TURKEY (MANSLAUGHTER CONVICTION) he described how, on 10 December 1990, he had been driving a bus for work from Ankara to Corum. He then records:
·At the time of incident (10/12/1990) I was driving a bus for work from Ankara to Corum. It was almost night time on our way back to Corum.
·As we were approaching Karakaya (A village between Corum and Sungurlu), I called out to the passengers loudly, ‘Anyone want to get off on the way?’.
·No one replied to my request to stop the bus.
·A short while later, as the bus reached the cross roads, a passenger yelled out ‘Slow down, we want to get off here’. This occurred at a distance between 150 and 200 metres in front of where we were meant to stop.
·There were three men who wanted to stop at this point. They began yelling ‘Fucking driver, mother fucker! He has not stopped on time, so we will have to walk a long way back’.
·I replied with ‘Why didn’t you reply as I asked if anyone wanted to get off? The man you are swearing at is my uncle’. Our conversations escalated both on and off the bus.
·Just then, they attacked and swore at me. One of them was holding a knife.
·We got into a scuffle. I confirm that I was involved in the scuffle.
·Frightened, because one of the men had a knife, I ran to the bus to save my life and gave them a kick and shut the automatic pneumatic door of the bus. Later I heard that one of three men had been injured. I thought this was because of hitting the automatic door or my foot.
He added:
Had it not been for the incident where a man was unfortunately killed, I believe I would have had a normal life in Turkey and that I would have never travelled to the USA.
Mr Lafci gave evidence by telephone from Turkey, through an interpreter. When asked what he had been convicted of in 1992, he replied fighting and wounding; he later described the offence as assault. He said that the origin of the incident was a refusal by some passengers to pay, and when he tried to make them do so, a fight broke out. He described how, having been released from gaol 122 days after being arrested the day following the incident, he had been sent to the United States by his father for his own safety. In this regard he said there were enemies behind me, a reference to the relatives of the man he had fought with. He said I don’t want trouble… I was scared of them… scared of fights. In a further statement dated 16 September 2016, he said he went to the United States at the end of April 1991 for the purpose of pouring oil on troubled waters and saving my life. His trial and conviction in Turkey occurred while he was in the United States.
Under cross-examination, he admitted to having stabbed a man during the altercation. However, he denied that the man had died.
He told the Tribunal he returned to Turkey from the United States in 1996 to serve his term of imprisonment. He served only two years before being released on parole. In the statement of 16 September 2016, he explained that this release was due to a law being passed in Turkey which reduced prison sentences generally; his was reduced to one fifth of the original sentence.
In his statement of 4 December 2016, he said that his initial entry to the United States in about April 1991 was lawful, and his departure voluntary. He admitted to having entered the USA unlawfully in January 2001, was subsequently allowed to live in the community there but became unlawful later in 2001 and left in 2005. He also described two further attempted unlawful entries of the USA in 2009. On these occasions, he said that he was still fearing for my life and wanting to seek asylum.
Under cross-examination two statements Mr Lafci had made were put to him. In a statement dated 23 April 2016 he wrote:
In my late 20s I heard everyone was going to America to make a better life and to be rich have a better future for my self and my family so I did go to America. [sic]
In an undated statement, he wrote:
Year 2001 I decided to go to America to try my luck. From the movies, and the media it looked like an amazing place. I was not a well off man here in Turkey and the situations, were not stable with the Government and human rights, did not seem to exist, freedom did not exist. [sic]
Counsel for the Minister put to him that these answers suggest he attempted entry to the United States for lifestyle reasons and not to seek asylum. He agreed with this suggestion.
Mr Lafci’s application for a partner visa for entry to Australia (Form 47SP) dated 22 August 2014 was before the Tribunal. In answer to a question about whether he had ever been convicted of a crime or offence in any country, including a conviction now removed from official records, the No box was ticked. Later in the same part of the form, the words DEPORTED FROM U.S.A for not having a valid visa were written. He gave evidence that his wife had filled out the form on his behalf, under his instructions, but that he had told her to tick the No box because he didn’t want her to know about his conviction. He had signed the form on completion.
His wife, Mrs Kocak, gave evidence confirming that she had completed the form under his instructions, and had not known of his conviction at the time she did so. She said she was shocked when she later received the Turkish court documents disclosing the conviction, and had discussed the circumstances of the conviction with her husband.
She testified that she had met Mr Lafci online in about December 2013 and met him physically for the first time in July 2014. They were married on 11 August 2014. Apart from a few weeks together at the time of their marriage, and a further 3 to 4 weeks together in Turkey in 2015, Mrs Kocak has not lived with Mr Lafci for any period of time. When asked what would happen if the Tribunal affirmed the decision to refuse Mr Lafci a visa, she responded I don’t think it will be good, and said that she doubted she would be able to take care of the business, the children and the loans, to repay them. Her evidence was that this related to loans she had taken out to take up a retail food business at the Fyshwick markets in Canberra. She confirmed that the reference to children was to her own three children of her former marriage, all of whom were now adults.
Other witnesses

Character witnesses were called on Mr Lafci’s behalf. They gave evidence, through an interpreter, by telephone from Turkey. Mr Hasan Ciritcioglu is a retired officer of the Turkish courts who has known Mr Lafci since 1982, when he lived next door to Mr Lafci’s family in Corum. In a statement dated 14 September 2016, which was tendered, he described the circumstances of the incident in December 1990, but makes clear that this is only a hearsay account. Of Mr Lafci he wrote:
I have never heard of a bad action of him so far. Even during his youth, he was a flexible, well-mannered, mature, skillful and practical boy. [sic]
He admitted in cross-examination that he had only seen Mr Lafci once for a few days since his release from prison in 1998.
Mr Esref Lafci is Muammer Lafci’s uncle. His evidence was that he had been driving the bus to Corum on the day of the incident in December 1990, but had not actually witnessed the stabbing incident.
Mr Yilmaz Lafci is Muammer Lafci’s father. He said that he had been operating a transport business for 40-45 years, and had employed his son in that business for part of that time. He confirmed that after his son’s release from prison, his son had been threatened by family members of the person who had been stabbed, so he had sent him to America. He said he believed it would have been very dangerous if he had not been sent away. He also gave a hearsay account of what had occurred in the incident in question.
The state of the evidence
As already mentioned, obtaining a clear picture of Mr Lafci’s behaviour relevant to his application for a visa has been a difficult exercise. There were inconsistencies between the oral evidence and the written statements of some witnesses, and attempts to clarify this were sometimes frustrated by difficulties associated with taking evidence by telephone from another country through an interpreter. At one point, Mrs Kocak, who is fluent in Turkish, disputed the translation provided by the Tribunal’s interpreter. Certainly it appeared that – for whatever reason – several answers provided by witnesses were not responsive to the questions asked. In addition, the Turkish court documents before the Tribunal were evidently not well translated, and there is some reason to believe that Mr Lafci did not understand parts of the statements in English he signed.
It was also put to the Tribunal by the representative for Mrs Kocak that some of Mr Lafci’s answers – most particularly his admission to having stabbed a man in December 1990 – were the product of misunderstanding by Mr Lafci of what he was being required to do in the witness box. Acknowledging those difficulties, the Tribunal comes to the view that it is safe only to reach the following conclusions with regard to the totality of the evidence provided by witnesses regarding Mr Lafci:
·Mr Lafci was convicted in Turkey in 1992 of an offence that best translates into Australian law as attempted murder.
·The person who was stabbed in the incident on 10 December 1990, though seriously injured, did not die.
·His departure for the United States in April 1991 was motivated substantially by his fears for his safety if he remained in Turkey.
CONSIDERATION
The discretion to refuse an applicant a visa under s 501(1) is triggered when the applicant does not pass the character test, and in subsections (6) and (7) that is defined to mean, inter alia, that he or she has been sentenced to a term of imprisonment of 12 months or more. It was not disputed that Mr Lafci was sentenced to 10 years imprisonment by the Corum High Criminal Court in March 1992, a conviction upheld on appeal by the TR Supreme Court on 3 November 1992. It was ultimately accepted by both parties that this means Mr Lafci does not pass the character test, and that the discretion may be considered.
The Tribunal notes the provisions of Paragraph 6.3 of the Direction.[1] The effect of those provisions appears to be the creation of an expectation that a person who has committed a serious crime of violence should be denied the privilege of entry into Australia. That expectation is reinforced where a person has never lived in Australia. The language in, for example, subparagraph (6) is uncompromising:
Australia has a low tolerance of any criminal or other serious conduct by visa applicants… reflecting that there should be no expectation that such people should be allowed to come to… Australia. (emphasis added)
[1] Mrs Kocak argued that the terms of the Direction should be given no weight because it contains content not found within s 501. The Tribunal must reject this contention; s 499 makes it clear that a decision maker under the Act must comply with a direction issued by the Minister.
As already noted, the principles set out in Paragraph 6.3 of the Direction are further explained in the three primary and four other considerations set out in Part B of the Direction. The Tribunal now considers the relevant primary considerations in turn.
Primary Consideration 1 – the protection of the Australian community from criminal or other serious conduct
Patently, attempted murder is a serious crime of violence, and must be viewed as weighing heavily against the grant of a visa under the discretion. It appears from the Turkish court’s decision record that the injury was serious, and this seems to have been reflected in the substantial sentence imposed by the court and upheld on appeal – 10 years imprisonment. If the Direction requires a decision maker to exercise low tolerance of serious offences committed by applicants, a crime of this sort must be viewed with great concern, and as generating a very low expectation of the grant of a visa. Significantly, the criteria make no reference to the effluxion of time; from this it must be inferred that a conviction for attempted murder must be regarded seriously notwithstanding that it occurred more than 25 years ago. As much is confirmed in the Department of Immigration and Border Protection’s Procedures and Advice Manual (PAM3) - Character and security instructions – s 501 character test, visa refusal and cancellation – part 3.9 Substantial criminal record. That part states that:
The general principle is that any convictions that the person may have incurred at any time will be considered for the purposes of the character test, regardless of how long ago or where the convictions may have occurred.
The Minister contended that the seriousness of this crime was compounded by repeated acts of dishonesty for migration purposes in Mr Lafci seeking unlawful entry into the United States on several occasions. Reference was made to the Tribunal’s decision in Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 where Deputy President McMahon made the following observations (at [35]):
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiyahas over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiyais not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
Additionally, the Minister contended that the provision of a false answer in Mr Lafci’s visa application was further evidence of conduct relevant to the Tribunal’s assessment of the nature and seriousness of his previous offending.
Some of the evidence put by, or on behalf of, Mr Lafci was to the effect that Mr Lafci did not commit the offence of attempted murder, or that the circumstances of the offence were far more mitigating than was evident in the official record of the Turkish court. In his statement of 4 December 2016 he said I genuinely feel that I would be misleading the Department of Immigration and the Administrative Appeals Tribunal if I was to agree with the content of the Turkish court document. His actions were also characterised, at one point, as self-defence.
The principle however is well established that the Tribunal cannot go behind the fact of a criminal conviction and question the basis upon which it was reached; rather it must accept the conviction and the essential findings of fact on which it was based. In Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385 the Federal Court considered a contested prior conviction of the applicant in the context of the power to deport in s 200 of the Act. It determined (at [41]-[43]):
41 First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based...
42 Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence...
43 Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based …, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences …; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals...
As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted... (References omitted)
The same principles were employed by the Tribunal in Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [121].
If the Federal Court in Ali set a heavy onus on applicants seeking to challenge the facts of prior criminal convictions, that burden has not been discharged by Mrs Kocak in this case. The circumstances of the altercation where a man was stabbed in 1990 are quite unclear, and although it is amply apparent that Mr Lafci does not consider that he was fully blameworthy for the stabbing, those circumstances are not greatly clarified even by Mr Lafci’s own account. It would be quite unsatisfactory and unsafe for the Tribunal to set aside the facts as found by the Turkish court (translational difficulties notwithstanding) in favour of an alternative hypothesis which has not been clearly articulated, much less established to the evidentiary onus referred to in Ali.
A further consideration put by Mrs Kocak was that the Tribunal should not regard Mr Lafci’s unlawful entries into the United States as criminal acts since he sought to enter that country in pursuit of a claim for asylum, and here it is not illegal for a person to enter Australia without suitable documents if they do so for the purpose of seeking asylum. It was put to the Tribunal that article 46.5 of the Department of Immigration and Border Protection’s Procedures and Advice Manual (PAM3) operates to deem an offence committed overseas as not being criminal behaviour if that behaviour would not constitute an offence in Australia. For the purposes of s 501 of the Act, part 3.9 (Substantial criminal record) of the PAM3 provides:
Political crimes and other issues
Situations may arise where there are issues of fairness relating to using a person’s conviction that occurred in a foreign country - for example, a person might:
·have a conviction for behaviour that is not considered to be an offence in Australia or
·have been sentenced to a term of imprisonment that is far more onerous than that which would be imposed under similar circumstances in Australia.
Although such convictions might cause the person to not pass the character test, such issues can be taken into account when exercising the discretion whether to refuse or cancel the visa.
Whatever the strength of this argument, it was not clear to the Tribunal that Mr Lafci had in fact been convicted of any offences against US immigration laws. Counsel for the Minister was able to direct the Tribunal to evidence of charges being laid against him in this respect, but no evidence was pointed to of the charges being heard by a competent court. Accordingly the Tribunal excludes from its consideration any issue of illegality relating to Mr Lafci’s entries into the United States.
It is another matter, however, to ignore the false answer Mr Lafci gave to the question in the visa application form relating to prior criminal offending. Mr Lafci explained that he had been embarrassed to tell his wife about the conviction and believed that, under Turkish law, it could be regarded as spent. The Tribunal accepts that evidence, but does not regard it as obviating the reality that – whatever his motive – Mr Lafci intentionally lied in completing a form which, given his extensive experience of other countries’ immigration laws, he must have realised was a document of some gravity. The Direction requires (at paragraph 11.1.1(1)(h)) the Tribunal to have regard to the provision of false or misleading information to the Department, including by not disclosing prior criminal offending. The specific mention in the paragraph of an omission in this respect indicates the importance Australia’s immigration authorities place on a full understanding of an applicant’s past criminal history; Mr Lafci’s failure to disclose this must be regarded as evidence of a propensity to dishonesty.
It was put to the Tribunal that Mrs Kocak made arrangements to alert the Department to the false statement in the application as soon as she received the Turkish court documents. Commendable though that is, it does not establish that Mr Lafci would have made such a disclosure had it not already become obvious that the Department was in the course of discovering the truth about his prior criminality.
With respect to the issue of risk to the Australian community should Mr Lafci, if granted a visa, commit further offences in Australia, the Tribunal is mindful of the long period that has elapsed since the stabbing in 1990. There was some flavour in his evidence that he had grown older and wiser since then. Mrs Kocak described Mr Lafci as a grey old man in his 50’s – he cannot hurt a fly. Certainly there is little of a contemporary nature to suggest a subsisting propensity to violence. On the other hand, any element of doubt on this question must be weighed carefully by the Tribunal, given the injunction in the Direction that Australia has a low tolerance for any criminal conduct by visa applicants. In this respect, the Tribunal is troubled by the divergence between what (it seems) the Turkish court found to be the facts when passing a heavy sentence on him in 1992 and what he maintains today actually happened. From this divergence it is reasonable to conclude that Mr Lafci has not yet fully accepted responsibility for his offending. The dishonesty Mr Lafci exhibited in his visa application form also sounds a note of caution to the Tribunal.
The language of Paragraph 6.3(4) of the Direction is significant:
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. (emphasis added)
Put simply, this direction to decision makers appears to suggest that the more serious the criminal offending, the lower the risk threshold that should be considered tolerable. On balance, the Tribunal considers that the risk that Mr Lafci may engage in violent or other serious offences, though not a great risk, is still significant enough to conclude that Primary Consideration 1 should weigh against the grant of a visa.
Primary Consideration 3 – expectations of the Australian community
The Direction provides, at paragraph 11.3(1):
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
This paragraph makes it clear that community expectations of how a person with the character and background of the applicant should be regarded constitute a separate and freestanding reason to refuse a visa. The minister contended that the Australian community would not expect a person who has committed the crime of attempted murder to be permitted to come to Australia.
Mrs Kocak advanced an alternative argument in which she cited the experience of the community’s reaction to the death of a bus driver in suburban Brisbane in 2016. Evidence was advanced of a strong community reaction in sympathy with the driver, who was set alight at a bus stop and burned to death. It was contended that the Australian community would be sympathetic to a bus driver who, allegedly like Mr Lafci, was set upon by his passengers.
The Tribunal accepts that the Australian community may well be sympathetic to the claims of a bus driver who was attacked by his passengers, but does not believe the position of Mr Lafci can be equated to that of the unfortunate bus driver in Brisbane. It is, for reasons already set out above, not open to the Tribunal to find that Mr Lafci was the wholly innocent victim of his passengers’ behaviour, but rather it must conclude that he undertook a deliberate act of violence against one of those passengers serious enough to be characterised as attempted murder. It must be considered quite unlikely that the Australian community would express sympathy for a driver who had stabbed one of his passengers almost fatally, even after some provocation. The Tribunal accepts the contention of the Minister that the Australian community would not expect a person convicted of attempted murder, in the terms described in the Turkish court record, to be admitted to Australia.
Other considerations
Paragraph 12 of the Direction lists four further considerations which must be taken into account. Of these, only two appear relevant in the present circumstances.
The Tribunal must consider the impact of a refusal to grant a visa on family members of the applicant (Paragraph 12(1)(b)). Mrs Kocak gave evidence of the difficulty she would face if her husband was not permitted to come to Australia to live with her. She spoke of difficulties in coping, especially with her business interests and the needs of her children, and said that I don’t think it will be good. It was contended that a refusal to grant the visa would severely damage her mental health, leading to the possible failure of her business. In this respect, she tendered a report of her psychologist, Ms Sandra Kaye. However, the minister disputed the weight that should be given to Ms Kaye’s evidence. Having given Mrs Kocak notice that Ms Kaye was required for cross-examination, the Tribunal must attach little weight to her written evidence when she was not called to support it in the witness box.

Mrs Kocak also made it clear that a refusal to grant a visa would not mean that she was able to relocate to Turkey, by virtue of her business and family interests in Australia which she is unable to abandon. It was also submitted that relocation to Turkey would require her to accept a life of poverty.
The Tribunal notes these considerations and accepts that the impact of a refusal to grant the visa would be significant to Mrs Kocak. However, the Tribunal is not persuaded that this impact under a secondary consideration in the Direction is enough to offset the weight that must be attached to the primary consideration tending against grant of the visa.
The other relevant secondary consideration is the impact on Mrs Kocak’s business interests. Evidence was placed before the Tribunal of the substantial financial commitment made by Mrs Kocak to her new business, a food vendor outlet at the Fyshwick markets, which would be put at risk of failing if her mental health deteriorated in the wake of her being denied the chance to live with her husband here.
The Direction outlines criteria that a decision maker must consider with respect to decisions which impact on Australian business interests. In Paragraph 12.4(1) these are described as follows:
Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia. The Tribunal is not persuaded that Mrs Kocak’s business falls within these provisions. There is no compelling evidence that her business would be at risk of failing in the event that a husband was refused entry to Australia, and in any case it clearly does not constitute a major project or delivery of an important service in Australia.
FURTHER SUBMISSIONS OF MRS KOCAK
Several contentions were put before the Tribunal by Mrs Kocak suggesting that Mr Lafci should, notwithstanding the evidence referred to above, be entitled to the exercise of the discretion in s 501 in his favour. Most of those contentions appeared only after the main body of the hearing had concluded. The Tribunal here sets out those contentions and its response to them.
A key argument advanced by Mrs Kocak during the hearing was based on article 51(1) of the Turkish Criminal Code. The decision of the Corum High Criminal Court in March 1992 suggests that Mr Lafci received the benefit, during sentencing, of article 51(1). This provision, as originally presented to the Tribunal, provides that a sentence will be discounted where a court reaches the conclusion that recurrence of the offense is out of question due to repentance shown by the offender during the trial period [sic]. The implicit finding by the Turkish court in applying article 51, Mrs Kocak submitted, is evidence – indeed, conclusive evidence – that Mr Lafci represents no risk to the Australian community of reoffending. The Tribunal agreed to consider this argument, but sought evidence that the form of article 51 before the Tribunal was the same form it took at the time of Mr Lafci’s sentencing in 1992.
In a submission presented after the hearing in April 2017, Mrs Kocak conceded that article 51 had been substantially amended between 1992 and the hearing. Article 51 as it stood in 1992 referred, it appears, to provocation, and not to the potential for recidivism. (I say appears because the translation presented to the Tribunal was quite inadequate.) Mrs Kocak then produced the opinion of a Turkish lawyer, Mr Esref Kaya, dated 23 April 2017. That opinion appeared to indicate that, at the time of Mr Lafci’s trial, article 51 referred to a crime committed under provocation, and the opinion went on to say:
That is, the perpetrator is acting in self defense. [sic]
Mrs Kocak’s contention now took a new direction; she argued that, if Mr Lafci had stabbed the man in Corum in self-defence, this would be regarded under Australian law as a complete defence and the provisions of s 501 would not be triggered. The Tribunal agreed to reopen the hearing to allow Mr Kaya to give testimony by telephone from Turkey on this question.
However, in the course of his testimony at the resumed hearing in July 2017 Mr Kaya made clear that the reference to provocation in article 51, as it then stood, does not create a presumption of self-defence. Self-defence, he said, is dealt with in a different section of the Code. With respect to the apparent suggestion in his opinion of 23 April 2017 that a crime committed under provocation was the equivalent of acting in self-defence, he said his original meaning had been lost in translation.
Mrs Kocak then advanced yet another argument at the resumed hearing, based on Mr Kaya’s evidence. She submitted that Mr Lafci had received the benefit of a sentence discount under article 59 of the Turkish Criminal Code, as it stood in 1992. article 59 at that time seems to have performed the function now played by article 51, that is, it conferred on the court the power to discount a sentence where it is satisfied that further recurrence of this offence is out of the question. Mrs Kocak thus relied on Mr Kaya’s evidence to revive the proposition – earlier advanced but then withdrawn – that the Tribunal is bound to treat the decision of the Turkish court in 1992 as conclusive on the question of whether Mr Lafci represents an unacceptable risk to the Australian community.
After the end of the resumed hearing, a further submission was received from Mrs Kocak. The submission stated that In his oral… evidence on article 59, Mr Kaya confirmed that a Turkish court cannot enforce article 59 if it believed that the person will re-offend. A further opinion from Mr Kaya (undated, but obviously written after the resumed hearing) was attached. The translation of this opinion was, once again, very poor, employing phrases like attitude of the attitude and the court will be reduced to a good state. It discussed article 59 and included the sentence There must be a conviction in the court that you will not commit any crime in the future.
Reviewing the transcript of Mr Kaya’s evidence before the Tribunal, it appears that the latest submission overstates that evidence. Mr Kaya appears, in the Tribunal’s assessment, to be saying that article 59 confers a discretion on the court to apply if it considers some criteria listed in the article to have been satisfied, not a requirement that all the criteria must be found before it can be applied. The Tribunal was not aided by the translation it received of article 59, which was incomprehensible.
But even if one characterises Mr Kaya’s evidence as supporting Mrs Kocak’s proposition regarding the interpretation of article 59, the Tribunal is not persuaded that this conclusively disposes of the question of whether Mr Lafci represents any risk to the Australian community should he be granted a visa. As is evident from the decision of the Federal Court in Ali , the Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (at [41]). But the additional and separate question of whether, against the background of that conviction and sentence, an offender is likely – in this case, many years later – to reoffend is a matter on which the Tribunal can inform itself using more than simply the findings of the original convicting court. As Branson J indicated in Ali, after referring to the heavy onus on a person who seeks to challenge the factual findings of the criminal court (at [45]):
…the above limitations on the matters to which a decision maker under s 200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned. (emphasis added)
To illustrate the logical force of Her Honour’s proposition, if Mr Lafci had engaged in a string of violent crimes since 1990, it would be preposterous to suggest that an Australian decisionmaker should still be bound by the finding of the Turkish court in 1992 that he was unlikely again to offend and therefore represented no risk to the Australian community. In reality Mr Lafci, of course, has not committed any further crimes, but the Tribunal is nonetheless entitled to take into account all the circumstances since his 1992 conviction including, for example, his dishonesty in completing his visa application.
As a matter of practicality, there is in any case a very good reason to look beyond the conclusion (if indeed there was such a conclusion) by the Turkish court in 1992 that Mr Lafci was incapable of committing further crimes. It was common ground between the parties before the Tribunal, and consistent with Mr Lafci’s own oral testimony, that Mr Lafci was not present during the trial in 1992. He had, by that time, sought refuge in the United States, and only learned of the outcome of the trial some time later. The reference in the court record to his respectful attitude towards the court is mystifying, given Mr Lafci was not present in the court for his trial. Possibly character evidence was placed before the court, notwithstanding the defendant’s absence; possibly the words reflect a standard formulation included whenever article 59 is applied.
Whatever the explanation, it is difficult to see how a court could have reached a conclusion about a defendant’s capacity to reoffend when it had never even set eyes upon him. The Tribunal would hesitate to use a finding arrived at in these circumstances to bind an Australian decisionmaker in entirely different circumstances.
Noting, in any case, that the court record makes no reference to a finding that Mr Lafci would be unlikely to offend again, the Tribunal is not persuaded as to the force of the late submissions made by Mrs Kocak. Possibly further evidence might be adduced to clarify these questions, but the form of Mrs Kocak’s arguments has changed repeatedly and without notice, and at some point a line must be drawn and a decision made. There has been ample opportunity for Mrs Kocak to make her case. Indeed there is no reason, other than inadequate research on Mrs Kocak’s part, why this argument about article 59 could not have been advanced during the substantive hearing in April.
A further submission was received from Mrs Kocak after this decision was drafted and was awaiting publication. The Tribunal has read the submission but does not consider that it raises any new arguments which are not already addressed herein.
CONCLUSION
The Tribunal must affirm the decision of the Minister’s delegate. The terms and tenor of the Direction make it abundantly clear that a conviction for attempted murder in Turkey in 1990 creates a strong presumption that Mr Lafci cannot expect the exercise of a discretion in his favour. The offence is unquestionably both serious and violent, and there can be little doubt that the expectation of the Australian community would be that a person convicted in such circumstances – that is, the circumstances described by the Turkish court which sentenced him – would be refused the privilege of living here.
It is not beyond the realm of possibility that the person convicted of such a serious crime might nonetheless be able to establish compelling reasons why latitude should be extended to them. But the Tribunal notes that Mr Lafci’s circumstances fall far short of that situation. The Tribunal considers it would be something of a leap of faith to regard him – given his antecedents – as a person who could be safely admitted to live in the Australian community.
The decision under review is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate
Dated: 9 August 2017

Date(s) of hearing: 10 - 11 April 2017; 24 July 2017

Date final submissions received: 27 July 2017

Advocate for the Applicant: CNA Immigration

Solicitors for the Respondent: Clayton Utz

[2017] AATA 1232

9 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal

Date(s) of hearing:	10 - 11 April 2017; 24 July 2017
Date final submissions received:	27 July 2017
Advocate for the Applicant:	CNA Immigration
Solicitors for the Respondent:	Clayton Utz