Ozberk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2630
•31 July 2020
Ozberk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2630 (31 July 2020)
Division:GENERAL DIVISION
File Number: 2016/3001
Re:Ali Riza Ozberk
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:F D O'Loughlin QC, Deputy President
Date:31 July 2020
Place:Melbourne
The Tribunal sets aside the decision under review and in lieu thereof remits the visa application to the Respondent with a direction that the Visa Applicant is not to be refused the visa under section 501(1) of the Migration Act 1958 (Cth).
.........[sgd]...............................................................
F D O'Loughlin QC, Deputy President
Catchwords
MIGRATION – Direction No. 79 applied – Turkish citizen – married to an Australian citizen – attempted murder – adolescent offending – risk of reoffending can be taken as non-existent – decision set aside
Legislation
·Migration Act 1958
·Direction No. 79 – Migration Act 1958 – “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”
Cases
Barbosa and Minister for Immigration and Border Protection [2015] AATA 565.
Boskovic and Minister for Immigration and Multicultural Affairs [2000] AATA 251.
Dahlgren and Department of Immigration and Citizenship [2010] AATA 351.
HJCS and Minister for Home Affairs [2018] AATA 3784.
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354.
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441.
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
Minister for Immigration, Local Government and Ethical Affairs v Batey (1993) 40 FCR 493.
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234.
Nguyen and Minister for Immigration and Border Protection [2017] AATA 2276.
Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385.
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
Veliu v Minister for Immigration and Border Protection [2018] FCA 53.
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336.
Watson and Minister of Immigration and Multicultural and Indigenous Affairs [2004] AATA 322.XTVC and Minister for Immigration & Border Protection [2016] AATA 278.
REASONS FOR DECISION
F D O'Loughlin QC, Deputy President
31 July 2020
This application raises the question as to whether the Visa Applicant, a now 41-year-old woman, who:
(a)is married to an Australian citizen of 20 years standing who has made his life here and has adapted to the Australian way of life;
(b)lived an unblemished life for 18 years;
(c)as an 18-year-old became involved in an emotional and then sexual relationship with a man 10 years her senior who was, unbeknown to the Visa Applicant, married;
(d)who was pressured by threats of disclosure to continue the relationship;
(e)committed a very serious crime and was imprisoned for approximately 29 months;
(f)has led an exemplary life without blemish for the 20 years since being released from prison; and
(g)has been the subject of a psychological assessment that concluded:
The criminal behaviour signs assessment also shows no risk that constitute any danger for the community. Her expectations from the future and her awareness of herself and around, are all positive
ought be refused the visa sought on character grounds under s 501 of the Migration Act.[1]
[1]The Migration Act 1958 (Cth).
The legislation and Direction
The relevant legislation and direction as to its administration are s 501 of the Migration Act and Direction 79.[2]
[2]Direction 79, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA made pursuant to Migration Act, s 499.
Section 501 is in the following terms:
S 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.
…
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;
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
Direction 79, which replaced Direction 65, contains the Minister’s directions concerning a discretionary grant of a visa notwithstanding a failure of the character test. The two directions are in the same terms in critical respects. Direction 79 includes:
(a)in the Preamble, at [6.3] Principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter … Australia. Being able to come to … 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 … if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to … Australia. (Emphasis added)
(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 … refusing the visa.
…
(6) 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.
…
These principles[3] and the considerations in Part B[4] are to inform and be taken into account, respectively, in decisions to exercise discretions associated with visa applications. Part B of the Direction sets out three primary considerations, and several other considerations (which are not exhaustive). Primary considerations should generally carry more weight than the other considerations.[5] The presently relevant Part B primary considerations are in the following terms:
[3]Direction 79, [7(1)].
[4]Direction 79, [7(1)(a)].
[5]To be given greater weight than the other considerations: Direction, [8.4].
11 Primary considerations — visa applicants
(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;
…
(c) Expectations of the Australian Community.
11.1 Protection of the Australian community
(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.
11.1.1 The nature and seriousness of the conduct
(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 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 minors, 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;
….
(e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501 (6)(c), is considered to be serious;
(f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h) The cumulative effect of repeated offending;
(i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) 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 the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that 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.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii) evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii) the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
…
11.3 Expectations of the Australian Community
(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.
12 Other considerations - visa applicants
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
…
(b) Impact on family members;
(c) Impact on victims;
….
FACTS
The Applicant:
(a)is the Visa Applicant’s husband;
(b)is a Turkish citizen;
(c)was born in Turkey and lived in Turkey until he was about 28 years of age;
(d)has lived in Australia for 20 years;
(e)has been an Australian citizen since 19 August 1999;
(f)has family members in Turkey, including his mother and sister and two older brothers in Australia;
(g)being a Turkish citizen is entitled to all of the benefits of citizenship (including healthcare, an entitlement to work) in Turkey;
(h)sold his house in Melbourne in January 2017 and rents accommodation;
(i)has visited Turkey between 2014 and 2017 on a number of occasions, and lived in Turkey between January 2017 and October 2017;
(j)was able to find work in Turkey but he considered that the work available was not of his choice and not to the standards he enjoys in Australia; and
(k)has adapted to life in Australia and much prefers life here than in Turkey.
The Visa Applicant:
(a)was born in Istanbul, Turkey on 1 March 1979;
(b)has never visited Australia;
(c)has family in Turkey;
(d)began working in 1996, and met a Mr Kalyoncu who was just over 10 years her senior, in 1997 while working at the same place;
(e)began to have a relationship (emotional and subsequently sexual) with Mr Kalyoncu six to seven months after meeting; their relationship lasted four to five months;
(f)wanted to end the relationship upon finding out that Mr Kalyoncu was married;
(g)was pressured and threatened by Mr Kalyoncu who did not want to break up. Mr Kalyoncu threatened to inform the Visa Applicant’s family about all aspects of their relationship;
(h)received threats from Mrs Kalyoncu, also approximately 10 years the Visa Applicant’s senior, when Mrs Kalyoncu became aware of the relationship with Mr Kalyoncu;
(i)went to Mr Kalyoncu’s house on 9 July 1998 where a violent attack occurred, about which more is said below;
(j)was injured in the attack along with Mrs Kalyoncu;
(k)was convicted of an offence of Full attempt to wilful murder and sentenced to 24 years imprisonment. The sentence reduced twice, first to 13 years and 4 months and then to 7 years 6 months;
(l)was released from prison on a form of parole after serving approximately 2 years and 5 months;
(m)re-joined the workforce upon release from prison, working at the white goods company TEBA;
(n)undertook self-improvement short courses to gain necessary qualifications and experience to work as an accountant;
(o)has held steady employment as an accounts clerk/accountant and executive assistant in different companies since release from prison;
(p)visited Italy and France in 2012;
(q)met her husband (the Applicant) in 2014 on the internet with the help of a mutual friend;
(r)married the Applicant in Turkey on 25 January 2017;
(s)was the subject of several glowing personal references that noted traits including that she:
(i)has never been seen in any fights;
(ii)loves children;
(iii)values family;
(iv)is a good person;
(v)is creative;
(vi)is a strong, honest, kind, hardworking, and reliable;
(t)claims that she was poorly represented in court, and said things to the Gendarmes while unrepresented that were what she thought they wanted her to say; and
(u)feels great regret for what happened and the shame it brought her family, and feels she has a responsibility for the death of her father who before the incident was diagnosed with cancer, was having treatment for it but subsequently discontinued treatment before ultimately passing away.
The circumstances in which the Visa Applicant visited the Kalyoncus’ house are disputed. Because the authorities mandate that the necessity to follow the court’s findings as noted below, it is appropriate to note and have regard to what the Court said about the visit and not dwell on the alternative account beyond noting it.
The Court noted the defence advanced by the Visa Applicant to the effect that:
(a)she and the victim’s husband had worked together;
(b)they developed an emotional and subsequently sexual relationship;
(c)the victim invited her to her house;
(d)she hesitated in going but went there;
(e)she wore a hijab in order not to be recognised;
(f)she went to the market and purchased two box cutters and detergent;
(g)when at the victim’s house the victim attacked her after she entered the house;
(h)the box cutters dropped on the ground;
(i)she defended herself;
(j)both she and the victim were hurt; and
(k)that her purpose was not to kill the victim,
but the Court did not accept it.
The Court found that the Visa Applicant’s actions constituted a full attempt of murder. The Court found in the following terms (as stated in the translation) that:
Cuts that were occurred on the face, hands and various sections and scratches on front face and neck of the intervener due to this incident were stitched and closed; Aforementioned person was injured in a way that is incapable of working for 15 days and injury was not vital,
…
Action of the defendant was considered as full attempt of murder by our court. It is considered that the defendant has relationship with the husband of intervener, defendant has visited the house of plaintiff with two box cutters she has placed into her bag in order to injure the plaintiff by wearing hijab in order not to be recognized, then there was an argue between defendant and intervener, defendant has locked the door in order to prevent intervener from leaving the house, she has attacked to the intervener on neck as vital body part, upon yelling of the intervener, witnesses have broken the door and intervened the incident, defendant was about to kill intervener, she was trying to sustain her relation with the husband of intervener by killing her, even though defendant has taken all measures, she was captured due to reasons beyond her control before executing her scheme, our court has evaluated the case in accordance with TCL 448, 62 and requested to punish to the defendant on minimum limit.
The Court also noted that there was evidence of a child having been present and having been hidden by Mrs Kalyoncu to protect and provide safety, and the Court ordered return of a bread knife to Mrs Kalyoncu, which at least leaves hanging the possibility that the findings above do not reconcile perfectly with all of the evidence.
In subsequent references to the event the Visa Applicant has given accounts which are not inconsistent with the account that she gave to the Court and which was not accepted by the Court.
In apparent support of an application to expunge the conviction, in 2016 Mrs Kalyoncu wrote to the Court in Turkey in the following terms:
I know that event caused [the Visa Applicant] to be sentenced on Kartal 1. Heavy Penalty Court makes [the Visa Applicant] life harder. I feel responsible on this matter becoming what it is because I couldn’t control my feelings. Although it is late, I want to correct this situation.
I declare that I withdraw the lawsuit on Kartal 1st Heavy Penalty Court issued 1998/236 and I drop the charge about [the Visa Applicant].
I won’t request any material or moral compensation from her.
Similarly Mr Kalyoncu wrote in the following terms:
Our relationship with [the Visa Applicant] started as colleagues, as we spend time together, my feelings towards her changed into love. I thought that my marital status would be an obstacle to the relationship I had. Therefore I avoided sharing the truth that I am married, with her. Our relationship lasted until [the Visa Applicant] has found out that I was married. I couldn’t accept that [the Visa Applicant] wanted to finish our relationship and to keep our relationship going, I kept [the Visa Applicant] under pressure and control.
Things got out of control as my wife has found out about my affair. As a result of irreversible events, [the Visa Applicant] is found guilty and punished. I feel guilty about her captivity which is making her life harder.
To change this situation despite all the time has passed, I declare that I withdraw the lawsuit of Kartal 1. Heavy Penalty Court issued 1998/236 about [the Visa Applicant].
I kindly ask you to re-consider the decision about her.
and a second letter in the following terms:
I am feeling responsible because of irremediable events that took place in our relationship with [the visa applicant] that resulted in [the Visa Applicant] punishment, and because of the troubles in her life caused by her sentence.
Even after such a long time, so as to fix this situation, I am waiving 1998/236 basis numbered lawsuit of Kartal 1st High Criminal Court about [the Visa Applicant].
I declare that I will not demand any kind of pecuniary or non-pecuniary damages from her under any circumstances.
In support of her visa application the Visa Applicant submitted to a psychological assessment through the Faculty of Medicine at the University of Istanbul and tendered the report from that examination signed by Dr Atiye Bortluoglu, a psychiatrist and forensic medicine specialist, Professor Dogan Sahin, a lecturer in the Department of Mental Health and Professor Sebnem Korur Fincanci from the Department of Forensic Medicine, a lecturer. The critical conclusion from the report was that:
The criminal behaviour signs assessment also shows no risk that constitute any danger for the community. Her expectations from the future and her awareness of herself and around, are all positive.
The Respondent was unable to cross-examine any of the authors of the psychological assessment report as a consequence of connection failures with Turkey and submitted, at least initially, that the conclusion could be received but accorded less weight. The Respondent accepted that:
(a)the relevant offence occurred more than 20 years ago;
(b)the Visa Applicant was a teenager (18) at the time;
(c)the Visa Applicant had not committed any offences that are of any significance that are known about before that time;
(d)the Visa Applicant had not committed any offences that are of any significance after that time; and
(e)the experts’ conclusions are not inconsistent with these propositions that are not challenged.
In these circumstances the experts’ conclusions are to be recognised in accordance with their terms for the purposes of the present analysis.
The Applicant also led evidence of a Mr Osan a Turkish lawyer who had experience in practice as a lawyer, as a public prosecutor, as a Military Judge and as a non-military Judge. Mr Osan’s evidence was that the trial defence was poorly conducted. In circumstances where it is inappropriate to go behind the facts of the conviction and the essential facts upon which it is based, all that can be said about Mr Osan’s evidence is that that is his opinion, but it cannot affect the conclusion of the Tribunal.
Interpretation and application of the law
In the present setting, no challenge can be made to either the fact of the conviction or the essential facts on which it was based.[6] While the Court in Turkey recorded that a contrary version of the facts had been advanced, a version that is not inconsistent with the Visa Applicant’s continued assertions as to what happened on the day in question, those facts asserted by the Visa Applicant must not be the foundation on which the Tribunal is to consider the present application.
[6]HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] Bromberg J. (endorsing Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 and upheld on appeal HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 McKerracher and Colvin JJ, Derrington J dissenting. See also Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 at [40]; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441.
That said, in assessing the considerations required to determine the present application, the Tribunal can and should have regard to the Visa Applicant’s circumstances, and life history, both before and after the critical event so as to form a view as to whether discretionary relief from failing the character test ought be granted.
The Respondent has identified for the Tribunal a number of illustrations where visas or Australian citizenship applications have been permitted or denied on character grounds. Cases where the relevant decision was overturned, and the visa or citizenship was allowed, had a notable feature being isolated instances of offending, notwithstanding the offending was a serious one, with circumstances of offending seen as unlikely to reoccur. Cases where the relevant decision was affirmed, and the visa application or citizenship denied, had themes that included the circumstances of offending were:
(a)not isolated (multiple offences); and/or
(b)of a kind where planning and foresight was involved in the relevant acts constituting the offence.
In XTVC[7] the applicant committed an offence of sexual intercourse without consent and was convicted five years prior to the Tribunal decision. After noting that the offending was clearly serious, that the trial judge had said there was guarded prospect of rehabilitation,[8] and a report suggesting a moderate to high risk of reoffending, the Tribunal considered that the risk to the Australian community weighed heavily against a decision that a visa be granted.
[7] XTVC and Minister for Immigration & Border Protection [2016] AATA 278.
[8]XTVC, [2016] AATA 278, at [54] to [55].
The present circumstances are clearly not parallel to this case.
In Waits[9] the applicant for a visa had been convicted 22 years earlier and sentenced to 15 months imprisonment for the manslaughter of his wife. The medical evidence was that the applicant’s responsibility and perception were substantially impaired and strong evidence of diminished responsibility. The offending occurred in a setting of the visa applicant’s wife having an extramarital and abusive affair during times when the visa applicant was reactively depressed. The Tribunal accepted that the nature of the offending was of a “one-off” type. Apart from other considerations, the offending occurred against a background of the visa applicant’s daughters being at risk of sexual molestation by his wife’s lover at the time of his offending. In these circumstances the Tribunal was satisfied that the applicant’s risk of recidivism was nil and set the decision under review aside.
[9]Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336.
This case has some parallels with the present circumstances, being a one-off type offending long ago and in circumstances that might not be considered likely to reoccur.
In Dahlgren[10] the applicant was refused a tourist visa on character grounds having been convicted of manslaughter nine years prior to the date of the decision. The Tribunal set aside the decision under review:
(a)noting that the circumstances in which the offending occurred were unusual involving alcohol, serious intoxication, hallucinations, suicidal ideations and major depression, a shooting in a single one off act, one of the actors becoming agitated when the event ran out of beer, and when Ms Harris and Shelby Dahlgren danced with the visa applicant and then sat in his lap; [11] and
(b)accepting that the applicant had a significant change in lifestyle concerning alcohol and drugs and had achieved significant rehabilitation and that the risk the applicant would repeat his serious conduct was low.
[10]Dahlgren and Department of Immigration and Citizenship [2010] AATA 351.
[11]Dahlgren, [2010] AATA 351 at [26].
There are parallels in terms of the risk of repeat conduct and the one-off incident in the present case.
In HJCS[12] the Tribunal considered a refusal of a temporary protection visa which was based on character grounds, the applicant having been convicted 16 years prior of an assault involving a stabbing of a woman the applicant found in bed with her husband, together with some low level theft related offences. While she was in detention she was convicted of two counts of assault. Having regard to the primary consideration – protection of the community, the Tribunal found that the applicant’s offending was of a sufficiently serious nature to raise concerns and while the Tribunal accepted that both the risk of reoffending and the risk of harm to the community are low provided the applicant receives appropriate mental health treatment and support, it considered that the risk was not minimal or trivial as such the factor weighed in favour of refusal of the visa. Notwithstanding these observations the Tribunal considered that the facts in relation to Australia’s non-refoulement obligations and the expectations of the community weighed in the applicant’s favour and accordingly set aside the decision under review.
[12]HJCS and Minister for Home Affairs [2018] AATA 3784.
This case has some parallels with the present circumstances albeit it involves more than one offence and committed somewhat more recently than the present circumstances.
In Nguyen[13] the Tribunal affirmed a refusal to grant a visa on character grounds because the applicant had been convicted of knowingly taking part in cultivating a commercial quantity of a prohibited plant six years prior to the decision. The Tribunal accepted that the applicant was remorseful but it also accepted that the risk of the visa applicant repeating his offending was not insignificant and was unacceptable particularly in circumstances where the medical evidence indicated that the applicant’s risk of recidivism would increase in the presence of key situational factors that were present during his earlier offending.
[13]Nguyen and Minister for Immigration and Border Protection [2017] AATA 2276.
This case has no parallels with the present circumstance it involving an offence that was not peculiar to the circumstances and an offence involving a degree of planning and organisation.
In Barbosa[14] the applicant had entered into Australia having failed to disclose a homicide conviction for which he was charged in 1986. The circumstances of failing to disclose a conviction and providing false and misleading information to the Department of Immigration and Border Protection led the Tribunal not to be satisfied that the applicant was of good character and the decision was affirmed.
[14]Barbosa and Minister for Immigration and Border Protection [2015] AATA 565.
In Watson[15] the applicant had been convicted in 1993 in relation to three counts of indecent assault of girls under 12 years of age and two counts of indecent assault on girls under 16 years of age. The offences occurred between 1979 and 1983 and the Tribunal affirmed the decision under review noting that:
... his behaviour at his trial as referred to in the sentencing Judge's remarks is a cause for concern; his behaviour in relation to the relevant authorities both in New Zealand and Australia at a later time are equally such that one has to feel uneasy about whether he has truly reformed. To this day he clearly endorses the view and philosophy (surely discredited by now) of Potter and indicated that additions at Alphadale on Community lines would not be unwelcome. He says now that sexual conduct involving children is bad but contends in the same breath that most children involved in it were not adversely affected. He does not seem to understand that an adverse effect on even one is sufficient.[16]
[15]Watson and Minister of Immigration and Multicultural and Indigenous Affairs [2004] AATA 322.
[16]Watson, [2004] AATA 322, at [72].
This case has no parallels beyond a period of time since the conviction or offending when compared with the present circumstances.
In Boskovic[17] the Tribunal affirmed an Australian citizenship refusal in circumstances where the applicant was convicted of wounding with intent to cause grievous bodily harm in 1978 and was later convicted of murder in 1987, 12 years before the applicant lodged an application for Australian citizenship in 1999. The Tribunal observed that:
Mr Boskovic's crimes are described, or can be described, as abhorrent and are ones which are of grave concern to the Australian community. Nearly 15 years have, however, elapsed since the commission of the last offence. Mr Boskovic has only been free of court obligations for a period of one year. It is a fine balance as to whether or not a person can be considered to have rehabilitated himself or herself to the extent that the person's enduring moral qualities can now be considered those of a person of good character. In circumstances where very serious crimes have been committed there must always be an element of risk in reaching such a decision.
On the evidence before it, and having taken account of the submissions and the authority that I have referred to, the Tribunal is not in this case persuaded that it can be satisfied that Mr Boskovic is now of good character. "[18]
[17]Boskovic and Minister for Immigration and Multicultural Affairs [2000] AATA 251.
[18]Boskovic, [2000] AATA 251 at [41] – [42].
This decision has no parallel with the present circumstances.
Conclusions
The authorities noted above can be taken to be a reflection of the expectations of the Australian community in immigration matters involving applicants with prior criminal convictions. These cases show that even for serious offences and crimes there can be an appropriate balance struck that is consistent with a grant of a visa in appropriate circumstances.
Applying the principles set out in Direction 79, and, as required by the authorities, having regard to the essential elements of the offence which led to the conviction and the essential facts noted by the Court, whether they are disputed or otherwise, it is apparent that it is necessary to assess or evaluate the competing balance of the extent, if any, of risk of re-offending and the harm that would be caused if re-offending occurred. All of the protective considerations required to be addressed in Direction 79 turn on the risk of the Visa Applicant reoffending. If the same type of offending were to recur, the harm to the victims of it and the Australian community would be unacceptable.
While past conduct is often, if not always, a sound starting point to predicting the future, or assessing risk of reoffending in the future,[19] it might be dangerous to assume in all circumstances, that based on past conduct that there is a likelihood of repeat conduct. The relevant enquiry is whether there is an unacceptable risk of future conduct repeating problematic past conduct. Where the time of assessment is relatively proximate to the time of the offending conduct, the risk of repeat conduct cannot be ruled out. Conversely, where the time between the offending and assessment constitutes many years, that interval can be an indicator of low, or minimal, or even zero risk of repeat offending conduct if, in that intervening period, there has not been any sign of any problematic conduct of any description. Further, where the offending conduct arose in particular circumstances that are unlikely to recur, when added to a lengthy period of time between assessment and the time of the problematic conduct, the danger of assuming future problematic conduct based on past conduct becomes manifestly greater.
[19]See Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385 at [46] Thawley J and the authorities there cited, particularly Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 574-5, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Further, it is not enough that the person has committed relevant conduct in the past, there must be a risk that they would engage in conduct in the future.[20] The tolerance for any risk of reoffending reduces as the seriousness of the offending increases. In some cases, any risk of reoffending will be sufficient to deny an entry visa. In Veliu[21] Robertson J endorsed the assessment approach of assessing the risk of the relevant conduct in the future as part an assessment of the risk of harm being unacceptable, with some risk being acceptable depending on its seriousness. The relevant risk must be real in a qualitative sense, as opposed to far-fetched or fanciful, but can still be low or minimal while still being real.[22]
[20]See for example in a s 501(6)(d) setting, Direction 79, Annex A, Section 2, cl6 (3) at pp28-9.
[21]Veliu v Minister for Immigration and Border Protection [2018] FCA 53 at [46] and [47].
[22]See the discussion in Minister for Immigration, Local Government and Ethical Affairs v Batey [1993] FCA 75; (1993) 40 FCR 493 at [22] and [35] Spender, Foster and Cooper JJ.
Here the offence was particularly serious. There are few, if any, more serious offences than attempted murder. In those circumstances any real risk of offending, assessed in a qualitative way rather than a quantitative way, and with real risk to be assessed in contradistinction with fanciful or far-fetched risk of re-offending, requires a conclusion that the visa application ought be refused.
That the offence was against another woman, and that offences against women and children and vulnerable members of the community are particularly noted in Direction 79, and offences against women are classified as serious without reference to the punishment they attract, does not change the assessment of the seriousness of the offence in this case. While there may be a range of additional reasons for this conclusion, it is difficult to conceive of more than a small number of more serious criminal offences, and for present purposes the offending conduct must be treated as at the top end of the undesirable conduct scale. The offence is serious in its own right which cannot be ignored and needs to be assessed as such for the purposes of assessment of risk of recurring in Australia if the visa is granted.
In the present case the evidence suggests that any risk, if there be any, of re-offending is so low as to be regarded as non-existent. The evidence is that the visa applicant on one day in her life of 41 years, at a time in her life which is vastly different to today, namely when she was an adolescent 18 year old in a relationship founded on a profound deception of or by a man 10 years her senior, committed a very serious criminal offence and was punished for that offence. Thereafter the Visa Applicant has led an unblemished life, and quite apparently has rehabilitated herself, and absent that one day event in her life would unquestionably be permitted a visa to enter Australia. The likelihood of the Visa Applicant again being a vulnerable teenager deceived by a man 10 years her senior is zero. The likelihood of a recurrence of a similar manipulation of the Visa Applicant in a similar way now and responding to it that same way is the same or so similar that it ought also be treated as zero. Further, and pivotally, the professional evidence as to the likelihood of re-offending is zero.
The non-protective factors to which regard must be had are balanced in favour of not refusing a grant of a visa under section 501(1). Refusal will affect the Applicant who is an Australian citizen who has settled and adapted to life here, is entitled to be here and who would be inconvenienced in a material way if he was to return to Turkey. While the Applicant could return to Turkey and live and work there, his life and part of his family is now here. The remaining non- protective factors are either not relevant or do not arise in the present setting.
In those circumstances the balancing exercise called for by Direction 79 requires a conclusion that the Tribunal set aside the decision under review and in lieu thereof remit the visa application to the Respondent with a direction that the Visa Applicant is not to be refused the visa under section 501(1) of the Migration Act.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of F D O'Loughlin QC, Deputy President
...............[sgd].........................................................
Associate
Dated: 31 July 2020
Dates of hearing:
26 February & 30 November 2018
Date final submissions received:
14 December 2018
Advocate for the Applicant:
Mr Kenan Bircan
Migration Agent for the Applicant:
International Skilled Migration
Advocate for the Respondent:
Ms Jiadi Liang
Solicitors for the Respondent:
Clayton Utz
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