RKHW and Minister for Home Affairs (Migration)

[2018] AATA 4577

RKHW and Minister for Home Affairs (Migration) [2018] AATA 4577 (11 December 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )

)No: 2018/5496

GENERAL DIVISION  )

Re: RKHW
Applicant

And: Minister for Home Affairs
Respondent

TRIBUNAL:                          The Hon. Matthew Groom, Senior Member

DATE of CORRIGENDUM:  14 December 2018

PLACE:            Melbourne

CORRIGENDUM TO DECISION

The Tribunal amends its decision of 11 December 2018 with the following:

Paragraph 113 of the decision is substituted as follows:

The Tribunal sets aside the decision under review and substitutes it with a decision to revoke the mandatory cancellation of the applicant’s visa under
s 501CA of the Act.

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

The Hon. Matthew Groom, Senior Member

Division:GENERAL DIVISION

File Number(s):      2018/5496

Re:RKHW

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date: 11 December 2018

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes it with a decision to revoke the mandatory cancellation of the applicant’s visa under s 501CA of the Act.

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

The Hon. Matthew Groom, Senior Member

Catchwords

MIGRATION – mandatory cancellation of visa – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – persistent breaches of family violence intervention orders – drug related offences – best interest of minor children – strong ties to Australia – decision set aside and substituted

Legislation

Migration Act 1958

Administrative Appeals Tribunal Act 1975

Cases

Re Ahori and Minister for Immigration and Border Protection [2017] AATA 601

Re Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303; (2011) 124 ALD 68

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

11 December 2018

INTRODUCTION

1. This is an expedited review of a decision made by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 (the Act) not to revoke a mandatory cancellation of the applicant’s Class BF (Transitional) (Permanent) visa.

2. The delegate’s decision was made on 18 September 2018.

3. In accordance with s 35(3) of the Administrative Appeals Tribunal Act 1975, the Tribunal has made an order restricting the publication of any information which may identify the applicant or any immediate family members of the applicant. In accordance with this order, and for the purpose of this decision, the applicant in this matter has been assigned the pseudonym ‘RKHW’.

4. The hearing in this matter was conducted on 3 and 4 December 2018. The respondent was represented by Mr David Brown of the Australian Government Solicitor and the applicant was represented by Mr Louis Morris Kristopher of Morris, Alexander & Nelson Barristers & Solicitors.

5. In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant, his sister, niece and nephew as well as all of the documentary evidence before it.

   BACKGROUND

   General background

6. The applicant is a 50–year-old Turkish national who arrived in Australian in 1973 with his parents, brother and two sisters. He was five years of age when he arrived in Australia. He was subsequently issued with a Class BF (Transitional) (Permanent) visa on

   
   

   1 September 1994.

7. The applicant has lived in Australia for 44 of his 50 years and considers himself Australian. He feels no particular connection to Turkey although he did return to Turkey with his family as a 15-year-old for approximately one year.

8. The applicant described significant challenges that he and his family faced while establishing themselves, after their arrival into Australia. His predominant memory of school was of being bullied and ostracised due to his ethnic background. He described feeling different and standing out from the other kids at school. He experienced regular verbal and sometimes physical abuse.

9. The applicant described developing a strong work ethic from a young age with a preference for practical activities. At school, his preferred subjects included metal-work, wood-work and hydraulics. He developed a strong interest in industrial machinery and had a dream of one day owning his own business. He worked part-time while still at school and left school at the age of 15 in order to work. At the age of 16, the applicant began working full-time in various local businesses involved in plastics and textiles. He subsequently had significant periods of employment, predominately as a labourer and farm hand.

10. During his late teens and early 20s, the applicant began experimenting with drugs and became a casual cannabis smoker. He increased his use of drugs in his 20s and 30s. He was exposed to a variety of drugs during this period in his life, including methamphetamine – speed, cocaine and heroin.

11. The applicant told the Tribunal that the quantity of his drug use fluctuated through the course of his 20s and 30s and culminated in his involvement in serious drug trafficking in his late 30s for which he was convicted and served time. The applicant told the tribunal that he has not used drugs, other than alcohol, since being released from prison following his drug trafficking conviction.

12. The applicant has had a number of relationships over his life time. His two most prominent relationships were with a woman with whom he had his first son during his early to mid-30s (Ms T). His more recent substantial relationship was with a woman whom he married (Ms E) and with whom he had three sons. He also has two step-sons from this relationship.

13. The applicant also had a short-term relationship with a young woman (Ms C) when he was around 25 years of age. Details about this relationship were scant. It would appear that it lasted a matter of some months. The applicant initially told the Tribunal that the relationship was not romantic but rather more of an acquaintance he made through a friendship group he was associating with at the time. When pressed further, he acknowledged that it was an intimate relationship.

14. The applicant has very recently formed a relationship with a woman he met through a “dating app” while he has been in detention (Ms M). They have expressed a mutual intent to further that relationship were he to be released from detention.

15. With each of the applicant’s former relationships described above, there has been some form of domestic violence intervention through the courts. There have been multiple incidents of breaches of family violence orders with respect to both Ms T and Ms E, which in each case has resulted in court action.

16. The most recent of these occurred in 2016 and was the cause of the applicant’s imprisonment and subsequent detention following the mandatory cancellation of his visa.

    Criminal history

17. The applicant’s offending history is summarised as follows:[1]

    [1]  G Documents (GD) 19.

    
    
    

Date	Offence	Sentence
6 February 2017	Persistent contravention of family violence order, criminal damage (intent damage/destroy) (2 charges)	3 months imprisonment to be served concurrently with previous sentences
1 February 2017	Threat to inflict serious injury, persistent contravention of family violence order, contravene a conduct condition of bail, commit an indictable offence while on bail	6 months imprisonment to be served concurrently
	Persistent contravention of family violence order	12 months imprisonment to be served concurrently
13 May 2013	Contravene family violence intervention order	With conviction fined $750
27 June 2008	Traffick drug of dependence	2 years, 6 months’ imprisonment
	Traffick drug of dependence	2 years imprisonment, 1 year, 4 months to be served concurrently
16 November 2004	Failure to comply with community based order	Fined $500
12 January 2004	Breach intervention order	3 months imprisonment to be served concurrently but wholly suspended for 18 months
	Possess controlled weapon without excuse	3 months imprisonment to be served concurrently but wholly suspended for 18 months
	Drive whilst disqualified (2 charges)	3 months imprisonment to be served concurrently but wholly suspended for 18 months
4 February 2003	Make threat to kill, breach intervention order, unlicensed driving, use of unregistered motor vehicle	Convicted and community based order for 12 months Disqualified from driving for 12 months
	Unlawful assault	Convicted and community based order for 12 months
	Possess controlled weapon without excuse, possess a dangerous article	Convicted and community based order for 12 months
23 January 1992	Handle stolen goods	Fined $250
	Fail to appear, possess drug of dependence	Fined $200 on each charge
	Use other drug of dependence	Fined $150
17 April 1986	Theft from shop, handle stolen goods	Adjourned. $500 good behaviour bond
15 April 1986	Theft from shop	Adjourned. $200 good behaviour bond

Low level theft offences

1. The applicant was 17 years of age when he committed a number of low-level theft-related offences. There was a further low-level offence relating to the handling of stolen goods as well as low-level drug offences which occurred when the applicant was around 23 years of age. There is very scant material before the Tribunal relating to these offences. However, the sentencing outcomes would strongly suggest that they were low-level offences.

2. The applicant was not able to recall his early offending in any detail but believed the theft incidents involved taking some small items from a shop, having been egged on by his friends.

   Driving offences

3. In 2003, when the applicant was around 34 years of age, he was convicted of unlicensed driving and use of an unregistered motor vehicle. He was subsequently disqualified from driving for 12 months. The following year the applicant was convicted of driving while disqualified, for which he was sentenced to three months imprisonment wholly suspended.

   Drug trafficking

4. Drug trafficking charges were brought against the applicant on 29 August 2006 when the applicant was around 38 years of age. As summarised in the respondent’s SFIC:[2]

   …the sentencing judge described [the applicant’s offending] as “most serious”. Her Honour went on to state that “the effects of use of drugs is pernicious. Drugs ruin the lives of those they do not kill. The impact of drug trafficking on community health and standards is enormous”

   The applicant’s offending was noted as occurring “over a significant period of time”, and involving “trafficking above street level, and dealing in substantial quantities with access to sources able to supply very large quantities of drugs”.

   [2] Respondent Statement of Facts, Issues and Contentions (RSFIC) 3.

5. The applicant was sentenced to an aggregate of three years and two months’ imprisonment.

6. The applicant told the Tribunal that his life had spiralled out of control during this period. He told the Tribunal that while he did not want to use it as an excuse, he was significantly impacted by his serious drug use at the time. In addition to earning him money, his involvement in drug trafficking had allowed him access to drugs to satisfy his addiction.

7. Following his conviction, the then Department of Immigration and Citizenship (the Department) issued a formal counselling letter to the applicant on 17 November 2008, warning him that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa.[3] The letter made clear to the applicant that visa cancellation could result in his removal from Australia. The applicant then signed an acknowledgement of the letter stating that he had read and understood its contents.[4]

   [3] GD 61.

   [4] GD 66.

8. Under cross-examination, the applicant acknowledged that he had received the letter and did not dispute that he read it and signed the acknowledgment of its contents. He told the Tribunal that he did not have a clear recollection of it. He also stated that at the time he was determined to not engage in any future criminal conduct, so the risk of him being deported was not an outcome that he considered possible at that time.

9. The applicant told the Tribunal that following his release from prison for his drug trafficking offences, he has not engaged in any other drug trafficking activities of any kind and had not used drugs other than alcohol, which has been sporadic, and which he conceded at times could be described as heavy drinking. The respondent did not challenge the applicant’s evidence in this regard. The applicant told the Tribunal that he now recognises the serious damage that drugs can cause and that since his release from prison for his drug trafficking offences he has tried to teach people about the dangers of drugs so that they can learn from his mistakes.

   Domestic violence offences

10. The applicant has been the subject of a number of domestic violence related reports over his adult life and has also committed a number of domestic violence related offences.

11. On 23 March 1993, when the applicant was 24 years of age, the applicant’s former girlfriend, Ms C, made a compliant to police following an incident at her house. The police records note her alleging that the applicant had attended her house and refused to leave when asked to do so and a short verbal argument took place. The records note her describing him as obsessed with her, continuingly contacting her and attending her house and harassing her verbally. The applicant denied Ms C’s account and told the Tribunal that Ms C was a nasty person who had falsely claimed to have been pregnant to him and who, according to the applicant, had harassed him and his parents seeking money. He claimed not to have been involved with Ms C for very long. There was evidence before the Tribunal that suggested that Ms C may have been the subject of an intervention order brought by the applicant against her.

12. On 14 October 2002, when the applicant was 34 years of age, his former partner Ms T made a complaint to police following an incident at the house they shared together. Ms T stated that the applicant accused her of having an affair and, when she laughed at the suggestion, that he pinned her down on the couch and punched her around the face and nose. There was no evidence before the Tribunal in relation to any injuries suffered by

    
    

    Ms T as a consequence of the incident.

13. Under cross-examination, the applicant acknowledged the incident, although he sought to down-play his wrongdoing by suggesting that he had become involved in a physical tussle with his partner and that he may have pushed her but only in an attempt to stop her from hitting him.

14. On 25 October 2002 the applicant was involved in an incident with a friend of Ms T. According to the police records, the applicant, who was armed, attended a petrol station where he approached Ms T’s friend and threatened to kill him. Ms T was present when the incident occurred. There was no threat made against Ms T. The applicant acknowledged the altercation but told the Tribunal that the friend had threatened him and had some form of weapon in his hand. He said that he had grabbed something from the car in order to defend himself.

15. The applicant was subsequently convicted on 4 February 2003 of make threat to kill, breach intervention order, unlawful assault and possess controlled weapon without excuse. He was sentenced to a community based order for 12 months. Following this incident, an intervention order was put in place that prevented the applicant from attending Ms T’s house or otherwise making contact with her.

16. On 28 October 2003 the applicant’s former partner, Ms T, made another complaint involving an incident with the applicant that had occurred at her house. According to police records, Ms T alleged that the applicant had attended her house in breach of the intervention order. The applicant was found by police a short distance away from Ms T’s house and in possession of a large knife. The applicant admitted to attending the house but explained to the Tribunal that the knife was one that he had in his car and that he sometimes used for work purposes. He told the Tribunal that he was very scared for his own safety during this period because of threats that had been made against him by friends of Ms T. On 12 January 2004, the applicant was convicted of breach intervention order, possess controlled weapon without excuse and two charges of drive while disqualified. The applicant was sentenced to three months imprisonment wholly suspended for 18 months.

17. On 16 November 2004, the applicant was convicted for a failure to comply with a community based order that had been imposed on 4 February 2003. The applicant was fined $500. The applicant told the Tribunal that this offence resulted from a mix up in relation to the work that he had undertaken in satisfaction of the order.

18. In early December 2012, when the applicant was 44 years of age, he was the subject of two police complaints made by his wife, Ms E. The police reports indicate that there was no physical violence but that there had been verbal abuse by both parties. The applicant was also accused of posting offensive material relating to Ms E on the internet. Ms E withdrew the first complaint and it would appear that no further action was taken in respect of the second complaint.

19. In early September 2016, when the applicant was 48 years of age and had recently separated from his wife, Ms E, police applied for an interim family violence order which was subsequently made on 21 September 2016. The order was served on the applicant on 13 October 2016. According to police records Ms E had sought the intervention order as a result of the applicant’s verbal abuse and controlling behaviour. The applicant was alleged to have posted Ms E’s phone number on a website, stating that she was available for intimate relationships. It was also alleged that the applicant had threatened to upload intimate images of the couple to the internet. The police records note Ms E informing the police that her personal details had been removed from the website and that there were nil threats of violence and that [Ms E] stated that the [applicant] was not a violent person as he likes to see himself as diplomatic. The children were not exposed to any family violence during the incident. In a written statement to police, Ms E stated that she felt that the applicant is trying to tarnish me and control me through any means he can and that’s not fair.

20. A day after the granting of the interim family violence order Ms E found the front and rear of her car had been damaged. The car had been parked in her driveway. At around this time Ms E made a number of statements to the police alleging that the applicant had been harassing her with Facebook posts, text messages and phone calls.

21. On 2 November 2016 a full family violence intervention order was made and served on the applicant on the same day. The applicant was not present in court at the time the order was made. The order is in place until 1 November 2021.

22. Ms E provided a written statement to the police for the purpose of the intervention order in which she stated:

    I feel really intimidated. I just want to feel safe and be at peace. We were in a controlling marriage, and I feel this is another form of him controlling me.

    I just want it to stop. I want there to be an end, I just want to move on, and get along peacefully. The kids need their father, but I need to protect them at the moment. I don’t think [the applicant] is in the right mental state to see the kids or be a positive role model.[5]

    [5] Supplementary G-Documents (SGD) 303.

1. The applicant subsequently made admissions that he had engaged in an extensive number of phone calls and text messages to his wife in contravention of the intervention order. The applicant also admitted posting to Facebook. The communications threatened the public disclosure of intimate photographs and other information of a personal nature. The applicant also admitted scratching his wife’s car in the form of an offensive and personally derogatory slogan.

2. The applicant was arrested on 15 December 2012 and remanded into custody for five days, before being bailed subject to strict conditions about complying with the family violence intervention order conditions.[6]

   [6] RSFIC 4.

3. Notwithstanding the bail conditions, the applicant then engaged in further abusive conduct towards his wife by posting additional material on Facebook that was offensive and threatening.

4. On 1 February 2017, the applicant was convicted of threat to inflict serious injury, persistent contravention of a family violence order, contravention of bail conditions and committing an indictable offence while on bail. The applicant was sentenced to 12 months imprisonment.

5. A further set of charges dealing with a persistent contravention of a family violence order and two counts of criminal damage were dealt with separately. On 6 February 2017, the applicant was convicted of the further offences and sentenced to three months imprisonment to be served concurrently with the 1 February 2017 sentence.

6. In all of the material before the Tribunal, as well as the oral testimony, there has been no suggestion that the applicant ever engaged in physical violence against Ms E. There is also no suggestion of violence of any kind being directed by the applicant towards the children.

7. The applicant admitted to his conduct and made clear to the Tribunal that it was wrong. He acknowledged that his behaviour would have caused his estranged wife to feel intimidated and concerned for her safety and expressed remorse for his behaviour. He told the Tribunal that at the time of his most recent offending he was struggling to deal with his separation from his wife and had begun drinking quite heavily. He explained that he was particularly struggling to cope with the absence of contact with his children.

   Cancellation decision

8. On 1 May 2017 the applicant’s Class BF (Transitional) (Permanent) visa was cancelled under section 501(3A) of the Act as he had a substantial criminal record by reason of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full time basis in a custodial institution.

9. On the same day, the applicant was issued with a letter from the department inviting him to make submissions in relation to the cancellation decision. The applicant subsequently made representations under section 501CA(4)(a) of the Act seeking a revocation of the decision.

10. On 18 September 2018 a delegate of the Minister decided not to revoke the visa cancellation decision. The applicant subsequently sought a merits review of that decision, which is the subject of the application currently before the Tribunal.

    ISSUE

11. There was no issue between the parties that the applicant had made representations within the 28 days of being notified of his visa cancellation. Nor is there any dispute that the applicant does not pass the character test under section 501(6)(a) on account of having a substantial criminal record. The Tribunal is satisfied on both of these points.

12. The issue before the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to all relevant considerations, including those set out in Part C of Direction No. 65 made under section 499 of the Act on 22 December 2014 (Direction 65).

    CONTENTIONS AND CONSIDERATION

13. The Preamble to the Direction specifies a number of principles which provide a framework within which decision-makers should approach their specific task:

    (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.

14. In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that 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;

    c) Expectations of the Australian community.

15. The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[7]

    Primary Considerations

    [7] Re Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303; (2011) 124 ALD 68

    The protection of the Australian community from criminal or other serious conduct

16. Paragraph 13.1(1) of the Direction states:

    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

17. Paragraph 13.1(2) of the Direction states that decision-makers should also give consideration to:

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

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

18. The Tribunal acknowledges that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct.

19. For the reasons stated above, the Tribunal accepts that the applicant’s drug trafficking and domestic violence offences constitute serious offending. The community views both of these forms of offending particularly seriously. The fact that the Court imposed a very significant term of imprisonment for his drug trafficking offence, as well as for his most recent domestic violence offences, is consistent with this assessment.

20. Counsel for the applicant submitted that the offending was not violent. The Tribunal rejects this characterisation. The applicant was convicted of unlawful assault.

21. The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind a conviction and examine the facts upon which it is based. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters that give context to a conviction.

22. The applicant told the Tribunal that his physical altercation with Ms T was a result of his seeking to defend himself and that it did not involve any substantial physical force on his part. The Tribunal is not satisfied that the applicant’s account is an accurate account of what took place; but it must be acknowledged that there is no evidence of the applicant causing physical injury to Ms T. This in no way downplays the seriousness of the applicant’s offending against Ms T.

23. In relation to the applicant’s more recent domestic violence offending, while again it must be acknowledged as serious offending which clearly left the victim feeling intimidated and concerned for her safety, Ms E’s written statements together with the police records are consistent with there having been no physical violence perpetrated by the applicant against Ms E. As noted above, in one of her statements to police Ms E is recorded as noting the absence of actual physical violence and that in her view the applicant is not a violent person.

24. Notwithstanding this, in the Tribunal’s view, the applicant’s more recent offending must be recognised as having an element of violence. His conduct was consistent with an intent to control and intimidate. The applicant also displayed physical violence against property and his Facebook posts included threats of violence.

25. In this context, the Tribunal is satisfied that the applicant’s domestic violence offending must be considered to be serious offending. As noted by Senior Member Sosso in Re Ahori and Minister for Immigration and Border Protection [2017] AATA 601:

    Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.

26. The Tribunal notes that the applicant’s offending also includes numerous breaches of intervention orders and bail conditions, demonstrating a persistent disregard for authority and the court process over an extended period.

27. While there was some evidence of the applicant having undertaken courses that were designed to assist the applicant to avoid his offending behaviour, there is no evidence that suggests a reduced likelihood of reoffending as a consequence of having undertaken the courses. When pressed under cross-examination in relation to the most recent courses undertaken in detention, the applicant appeared to view them as an opportunity to better equip himself in managing other detainees rather than as an opportunity for self-understanding and improvement.

28. There was no evidence of the applicant being involved in adverse incidents while in prison or detention. In fact, the evidence suggested that the applicant had played a positive and constructive role in assisting other detainees during his period in detention.[8]

    [8] SERCO letter, Exhibit A2.

29. The Tribunal notes that the applicant committed further offences after being warned by the Department that any further offending could result in his deportation from Australia. The applicant acknowledged receipt of the letter but told the Tribunal that he did  not give it a lot of thought as he was determined to not reoffend and did not consider future offending resulting in deportation a possibility. There is a significant gap between his receipt of the warning letter in 2008 and his next series of offences which occurred in 2016.

30. There is no evidence of the applicant having committed a further drug related offence following his earlier release from prison for drug trafficking. The applicant told the Tribunal that following his release from prison for his drug trafficking offences he was determined to remove himself from his social network and never again involve himself in drug trafficking. The applicant would appear to have made good on that commitment.

31. Given the significant period of time that has lapsed since the applicant was last involved in drug trafficking, the Tribunal is satisfied that the prospect of the applicant reoffending in this way in the future is extremely low.

32. The Tribunal makes a different assessment regarding his domestic violence offending. In relation to this type of offending the Tribunal is satisfied that the potential for reoffending is real.

33. The respondent submitted that that there exists a trend of increasing seriousness in the applicant’s domestic violence offending. The Tribunal is not persuaded by this characterisation. The evidence before the Tribunal demonstrated a concerning consistency in the applicant’s behaviour which emerged in similar circumstances, namely the break-up of a relationship that the applicant considered to be particularly significant.

34. It is quite probable that the applicant will face similar circumstances in the future. The applicant has demonstrated an emotional immaturity in dealing with relationship breakdowns. While he told the Tribunal that he regretted his behaviour towards both Ms T and Ms E, he did not demonstrate a clear understating of the cause of his behaviour or acknowledge the full extent of his wrongdoing; which would strongly suggest a potential for reoffending in this way again.

35. This risk assessment is mitigated by a number of factors:

    (a)It is clear that the applicant is highly motivated by a desire to avoid prison or detention in the future. He has demonstrated a capacity to change his personal circumstances and behaviour in order to avoid a similar consequence in the future in relation to his earlier drug offending. The applicant told the Tribunal that prior to his incarceration in February last year he did not believe that the type of domestic violence behaviour he had engaged in would result in prison time or risk of deportation. The Tribunal is satisfied that the applicant is now in no doubt about the real prospect of that occurring should the applicant reoffend.

    (b)The applicant has shown an understanding of the importance of him “moving on” with his life and not dwelling on past relationships. The applicant has commenced a new relationship with the intent of moving to Warrnambool, with plans to start a café and potentially undertake some training in social work. Whether or not these plans eventuate, the applicant has demonstrated a clear commitment to making a “fresh start” in a different part of the state.

    (c)It is clear that the applicant is part of a large loving and supportive family. It is clear to the Tribunal that the applicant is highly motivated to avoid further offending out of a concern for the impact that could have for his family, the stress it can cause and, in particular, the serious impact his potential deportation could have for his mother’s health and his ability to help support her. The applicant also demonstrated a strong desire to maintain a parental role with his children and, more broadly, a supporting role for other members of his extended family. It was also clear to the Tribunal that the applicant’s family are equally determined to provide him with the support necessary to turn his life around and avoid similar offending in the future.

36. Notwithstanding these mitigating factors, the Tribunal is satisfied that the applicant’s risk of reoffending is sufficiently real to raise concerns about the safety of the Australian community, in particular his estranged wife, as well as current or future partners, should the decision to cancel the applicant’s visa be overturned. Should he reoffend, it is likely that the types of behaviours he has engaged in the past would be repeated. This has the potential to cause his wife or current or future partners concern for their safety.

37. For these reasons, the protection of the Australian community should weigh in favour of cancelling the visa.

    The best interests of minor children in Australia

38. The applicant has one child aged 17 from his relationship with Ms T and three children with his estranged wife, Ms E aged 13, 10 and 7. He has two nephews who are minors aged 17 and 8. The applicant also has two stepsons from his relationship with Ms E, although they are not minors, as well as a number of other nieces and nephews who are also not minors.

39. The evidence before the Tribunal was that the applicant’s relationship with his 17-year-old son is not a particularly close one. The applicant told the Tribunal that he had spoken with the 17-year-old a couple times over the last year by phone. There was evidence that he had maintained a parental relationship with him when he was very young, but following the applicant’s separation from Ms T his contact had become less regular.

40. There was evidence before the Tribunal that the applicant has a particularly close bond with his 13-year-old son with Ms E. The 13-year-old has been diagnosed as having Autism Spectrum Disorder at level 1 and is in need of some additional care and attention. The 13-year-old was described by both the applicant and his sister as more sensitive than the other boys. The applicant’s nephew described the 13-year-old as a very bright and sensitive boy with a strong interest in science. There was evidence before the Tribunal that indicated that the 13-year-old missed his father, loved his father and wanted to be able to see him again. The applicant’s sister told the Tribunal that the 13-year-old had a good awareness of the applicant’s current circumstances and had wanted to give evidence in his support at the Tribunal.

41. The evidence before the Tribunal in relation to the 10 and 7-year-old boys was that again there was a close bond with their father. The applicant’s sister described the two younger sons as spirited and mischievous and in strong need of a father figure. This was further supported through the oral testimony of the applicant’s nephew, who knows the boys through school as well as family connections. Again, there was evidence before the Tribunal that indicated that the 10 and 7-year-olds missed their father and looked forward to being able to see him again. The applicant’s sister suggested that the two younger boys had a more limited understanding of the circumstances that the applicant given their age.

42. The applicant told the Tribunal that he had played a strong parental role with his children with Ms E. This was supported by the evidence of the applicant’s sister, niece and nephew. There was evidence of the applicant performing “stay at home parent” duties, as well as more traditional father-son activities such as taking the boys camping, biking and fishing. It was also reinforced through statements made by Ms E which were before the Tribunal where Ms E stated that she wanted the applicant to remain in Australia and believed that his ongoing presence in their lives would be in the children’s best interests. This needs to be mitigated by the existence of the current intervention order which will prevent the boys from having contact with the applicant until the order expires in 2021.

1. The Tribunal accepts that applicant has a very genuine emotional attachment to all of his children. His relationship with the children appears to have been an overwhelmingly positive one. However, this is mitigated by the applicant’s offending and the poor example he has presented to the boys through his offending conduct.

2. There is no evidence of any kind of abuse or violence being directed by the applicant towards his children.

3. In relation to his three younger sons in particular, the applicant has for significant periods played a parental role in their lives. There is no doubting that the applicant’s children, and in particular his three younger sons, would benefit from having the applicant performing the role of a stable and supportive father figure. However, this needs to be weighed against the likelihood of the applicant actually performing such a role, particularly when assessed in the context of the applicant’s conduct to date.

4. In addition, very careful consideration must be given to the potential harm that the children could suffer from being exposed to future domestic violence. While the evidence strongly suggests an effort has been made by both the applicant and Ms E to prevent exposing the children to the domestic violence incidents, there is some evidence of emotional stress having been caused by their exposure to date. The applicant acknowledged the mistakes he had made and told the Tribunal that he wants to support his children, teach his children and ensure that they avoid the mistakes that he has made in his life.

5. The Tribunal recognises the very significant impact the cancellation of the applicant’s visa will have on the future relationship between the applicant and his children. The respondent submitted that a relationship of some kind could be maintained through telephone, email, social media and other digital platforms. However, the Tribunal is satisfied that this is in no way a substitute for the ongoing physical presence of a father in the lives of young boys. Even accepting the poor conduct of the applicant at various times in his life, there can be no substitute for the ongoing presence and support of a loving father. There is no reason for the Tribunal to conclude that following the cessation of the intervention order in 2021, the applicant is incapable of performing such a role.

6. Any decision that can have the effect of denying young boys the ongoing presence of a loving father is a decision of real consequence. Such a decision should be made reluctantly and only where there is a very serious justification for doing so.

7. There was evidence before the Tribunal that the applicant’s three youngest children have a close connection with his two nephews who are minors. They frequently spend time together at each other’s house and also catch up at school. The applicant’s 17 year old nephew gave evidence to the Tribunal of the loving relationship he has with his uncle. He described going camping and fishing together and told the Tribunal that his uncle had been very supportive of him and his family when they had struggled financially. The applicant’s sister also told the Tribunal that the youngest nephew was a little mischievous and that her brother had, at times, been an important presence in his life. The Tribunal accepts that the cancellation of the applicant’s visa would have a detrimental impact on the relationship between the applicant and his two youngest nephews.

8. On balance, the Tribunal finds that it is in the best interests of each of the applicant’s children, as well as his two nephews who are minors, that the decision to cancel the applicant’s visa be revoked. This consideration should weigh heavily against cancellation of the visa.

   Expectations of the Australian community

9. The Australian community expects non-citizens to obey Australian laws.

10. The Tribunal notes the Federal Court decision in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, which held that this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community.

11. The Tribunal accepts that in light of the findings above, relating to a real risk of reoffending and of potential future harm, the Australian community would expect that the applicant’s visa be cancelled.

12. The Australian community has a particularly low tolerance for the type of domestic violence perpetrated by the applicant and would expect that this would weigh very heavily against the granting of a visa.

13. The Tribunal acknowledges that the Australian community would expect the Tribunal to have very careful regard for the best interests of the children.

14. The Australian community would also expect the Tribunal to have careful regard to the extent of the applicant’s ties with the Australian community and the fact that he has lived in Australia for almost his entire life .

15. However, in light of the nature and seriousness of offending, the Australian community would expect the best interests of the children consideration and the ties to the Australian community to be outweighed by the other considerations in this matter.

16. For these reasons, on balance, the expectations of the Australian community should weigh slightly in favour of cancellation of the visa.

    Other Considerations

    Non-refoulement obligations

17. There was no evidence before the Tribunal of any potential for protection obligations to be owed to the applicant. Accordingly, this consideration is given no weight.

    Strength, nature and duration of ties

18. The applicant has lived in Australia from the age of five years. At the date of the hearing he was 50 years of age. His mother, younger sister, brother, children, stepchildren, niece and nephews all live in Australia.  He has an older sister who lives in Turkey but with whom he claims to have had very little contact. The applicant also has a new partner, Ms M, whom he plans to live with in a different part of the State should he be released from detention.

19. A significant number of witness statements were provided in support of the applicant. These statements were submitted by family members, friends, and other acquaintances. They demonstrate that the applicant has strong ties to the Australian community that have been established over a long life in Australia. The applicant’s sister, niece and nephew all gave oral testimony before the Tribunal regarding their love and affection for the applicant and the supportive role he has played for them at various times in their lives.

20. It was clear from the evidence that the applicant is member of a large, close and loving family and that the applicant is a very valued member of that family. The applicant’s sister gave evidence regarding the role the applicant played in supporting her emotionally and financially during her separation from her former husband. The applicant’s niece gave very similar evidence of support during a challenging time in her life. The applicant’s nephew spoke of the strong and positive role the applicant plays in the life of the broader family, including financially, and spoke warmly of experiences he has had with the applicant on camping and fishing trips.

21. It was also clear from the oral testimony of both the applicant and his sister that the applicant has a very special relationship with his mother and that the cancellation of a his visa would impact her significantly both in terms of the stress it would cause and also because it would prevent him from being able to maintain a supportive role for his mother that would enable her to maintain close contact with her daughter and other family here in Australia.

22. The Direction acknowledges a higher tolerance towards offending in respect of visa holders who have strong ties to the Australian community and where they have lived in Australia for most of their life. That is certainly the case with respect to the applicant. The Tribunal is satisfied that over his life, he has made a significant contribution to the Australian community through his industrious, hard, physical work. This contribution is of course tempered by his previous criminal offending.

23. The Direction requires that the Tribunal to discount the level of tolerance for offending when the applicant has committed offences at an early stage after having arrived in Australia. The Tribunal recognises that the applicant offended during his late teens and early 20s. However most of that offending was at the lower end of the scale and must be viewed in the context of having first arrived in Australia at the age of five. The first of the applicant’s more serious offending did not occur until the applicant was well into his 30’s and there have been very significant periods of his life where the applicant has not offended.

24. On balance, the Tribunal finds that the applicant’s significant and long standing ties to Australia weigh very heavily against cancellation of the visa.

    Impact on Australian business interests

25. There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked.

    Impact on victims

26. There was no evidence before the Tribunal of the impact a revocation of a cancellation of the applicant’s visa would have on victims of his past offending. The only evidence from his former partners was a statement in support of the applicant remaining in Australia. The Tribunal places little weight on this consideration.

    Extent of impediments if removed

27. There was some evidence of health issues being experienced by the applicant including depression as well as a potential diagnosis of Attention Deficit Hyperactivity Disorder. The applicant is 50 years of age and appeared to be in relatively good physical health. There was no medical evidence of any health conditions that would prevent the applicant from travelling to Turkey. There was some concern expressed by the applicant’s sister about a potential for the applicant to have difficulty accessing health services in Turkey given the likelihood of him earning relatively low levels of income. This was inconsistent with the information referred to by the respondent, who submitted that Turkey’s health system is of a reasonable standard when assessed in a global context and that it provided access through the public system for those on little or no income.

28. The Tribunal accepts that given the applicant’s age and strong inclination for practical physical work he would be able to access work opportunities in Turkey. The Tribunal does however accept the contention put by the counsel for the applicant that the applicant would face significant difficulties on his return to Turkey from a language and cultural perspective. The applicant maintained that he had a reasonable proficiency in the language, and an understanding of the culture of Turkey but told the Tribunal that he doesn’t have any connection with Turkey and that “my family is here”.

29. The applicant’s sister was less confident that the applicant was well positioned to cope well if he were to return to Turkey citing his poor language skills and his general naivety. The Tribunal finds that this consideration should weigh slightly against cancellation of the visa.

    Other

    Having reviewed the material before it, the Tribunal is satisfied that there are no other considerations relevant to deciding whether or not to revoke the cancellation of the applicant visa.

    CONCLUSION

30. The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 65 – Part C. The Tribunal has carefully assessed each of the considerations of Direction 65 as set out above.

31. The Tribunal recognises the serious nature of the applicant’s prior offending. The Tribunal acknowledges that there is a risk of reoffending which, while mitigated by a number of factors, remains a real possibility. However, this needs to be weighed against the best interests of the applicant’s children, as well as the very significant ties the applicant has to the Australian community. Having very carefully assessed all of the considerations, the Tribunal is satisfied that the overall balance weighs slightly in favour of a decision to revoke the mandatory cancellation of the applicant’s visa.

    DECISION

32. The Tribunal sets aside the decision under review is set aside and substitutes it with a decision to revoke the mandatory cancellation of the applicant’s visa under

    
    

    s 501CA of the Act.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

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

Associate

Dated: 11 December 2018

Dates of hearing:   3 – 4 December 2018

Advocate for the Applicant:                Mr Louis Morris Kristopher

Solicitors for the Applicant:                Morris, Alexander & Nelson Barristers & Solicitors

Advocate for the Respondent:           Mr David Brown

Solicitors for the Respondent:           Australian Government Solicitor