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

Sarimsaklio and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3194 (30 September 2022)
Division:GENERAL DIVISION
File Number: 2021/1741
Re:Vedat Sarimsaklio
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Dr L Bygrave, Member
Date:30 September 2022
Place:Sydney

The Tribunal affirms the decision under review.
.....................................[sgd]...................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – remittal application by consent – mandatory cancellation of visa – resident return (subclass 155) visa – where visa cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children – expectations of the Australian community – other considerations – extent of impediments if removed from Australia – strengths, nature and duration of ties to Australia – Australian international obligations not enlivened – decision under review affirmed.
LEGISLATION
Migration Act 1958(Cth) ss 499, 500, 501, 501CA
CASES
Nkani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs AATA 1239 (10 May 2022)
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
SECONDARY MATERIALS
Direction No. 90 – 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
Dr L Bygrave, Member
30 September 2022
Introduction

The Applicant, Mr Vedat Sarimsaklio, is 49 years old and a citizen of Turkey.
On 6 March 2020, Mr Sarimsaklio was convicted in the Downing Centre Local Court of New South Wales (NSW) for offences including ‘armed w/i commit indictable offence-T1’, ‘resist or hinder police officer in the execution of duty’ and ‘receive/dispose stolen property - min indict. off. <=$5000-T2’, and was sentenced to an (aggregate) term of 20 months imprisonment.[1]
[1] Exhibit RB 39.
On 1 May 2020, the Department of Home Affairs (the Department) notified Mr Sarimsaklio in writing that his resident return (subclass 155) visa (visa) was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test on the following grounds:
·He has a ‘substantial criminal record’ as defined in paragraph 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. The Department’s notice referenced his conviction on 18 May 2012 of ‘two counts of Aggravated break, enter and steal’ and his sentence to an aggregate term of five years and six months imprisonment.
·He was serving a ‘sentence of imprisonment, on a full-time basis’ at the time of the decision. The Department’s notice referenced his conviction on 6 March 2020 for the offences of ‘Resist or hinder police officer in the execution of duty, Armed w/i commit indictable offence-T1 and Receive/dispose stolen property - min indict. off. <=$5000-T2’ and his sentence to an ‘aggregate term of 20 months imprisonment’.[2]
[2] Ibid 103-104.
Mr Sarimsaklio, assisted by his (then) legal representative, filed a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A) form dated 20 May 2020 and a Personal Circumstances Form dated 21 May 2020.[3]
[3] Ibid 115-133.
On 16 March 2021, a delegate of the Minister[4] decided not to revoke the decision to cancel Mr Sarimsaklio’s visa.[5]
[4] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.
[5] Exhibit RB 16-36.
On 24 March 2021, Mr Sarimsaklio filed an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal) and, on 7 June 2021, the Tribunal affirmed the delegate’s decision.
Mr Sarimsaklio subsequently lodged an appeal to the Federal Court of Australia (the Federal Court).
On 8 December 2021, the Federal Court made orders quashing the decision of the Tribunal dated 7 June 2021 and requiring the Tribunal to ‘reconsider and determine’ Mr Sarimsaklio’s application for review.[6]
[6] Order by Justice Charlesworth, Federal Court of Australia, 8 December 2021.
This matter was heard by the Tribunal (differently constituted) by videoconference on 30 and 31 August 2022. Mr Sarimsaklio had legal representation; he attended the hearing and provided oral evidence from Villawood Immigration Detention Centre.
relevant legislation and policy
The power to revoke a visa cancellation
Subsection 501(3A) of the Act states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) substantial criminal record, on the basis of paragraph (7)(a), (b) or (c);
…
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. [emphasis added]
The character test is set out in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) of the Act states that ‘a person does not pass the character test’ if they have a ‘substantial criminal record’ as defined by subsection 501(7); and paragraph 501(7)(c) of the Act defines a ‘substantial criminal record’ as the ‘person has been sentenced to a term of imprisonment of 12 months or more’.
Section 501CA of the Act sets out the provisions that apply if the Minister makes a decision (the original decision) under subsection 501(3A) to cancel a person’s visa. Subsection 501CA(4) relevantly provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations…; and
(b) the Minister is satisfied:
(i) the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked. [emphasis added]
I am satisfied Mr Sarimsaklio does not pass the character test in subsection 501(6) of the Act because his criminal record, which includes his conviction for offences and sentence to a term of imprisonment for 20 months (aggregate) on 6 March 2020, meets the statutory definition of a ‘substantial criminal record’ in paragraph 501(7)(c) of the Act.
Subparagraph 501CA(4)(b)(ii) of the Act requires that I consider whether there is another reason to revoke the decision to cancel Mr Sarimsaklio’s visa. The power of the Tribunal to review the decision to cancel his visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that I must comply with these directions.
The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced on 15 April 2021.
Direction No. 90
Direction No. 90 provides the following guidance on how the discretion is to be exercised:
6. Exercising the discretion
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. These principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Primary considerations are listed in section 8 of Direction No. 90 as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Other considerations are set out at section 9 of Direction No. 90. These include (but are not limited to):
(1)international non-refoulement obligations;
(2)extent of impediments if removed;
(3)impact on victims;
(4)links to the Australian community, including:
(a)strength, nature and duration of ties to Australia; and
(b)impact on Australian business interests.
Section 7 of Direction No. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.
Submissions regarding the original decision made on 1 May 2020
At the Tribunal hearing, legal representatives for Mr Sarimsaklio and the Minister made submissions about whether the original decision made by a delegate of the Minister on 1 May 2020 to cancel Mr Sarimsaklio’s visa was valid. The submissions were based on the original decision stating that Mr Sarimsaklio’s visa was mandatorily cancelled because he did not meet:
·paragraph 501(3A)(a) of the Act on the basis that he had a substantial criminal record due to his conviction and sentence of five years and six months imprisonment on ‘18 May 2012’; and
·paragraph 501(3A)(b) of the Act on the basis that he was imprisoned on a full-time basis following his ‘6 March 2020’ conviction.
Legal representatives for Mr Sarimsaklio and the Minister referred to the recent decision by the Full Federal Court, XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (XJLR),[7] in which the majority found that a decision to cancel XJLR’s visa pursuant to subsection 501(3A) of the Act was invalid because, for the purpose of paragraph 501(3A)(a), the delegate had relied on the same failure to pass the character test as had been relied on in an earlier decision to cancel XJLR’s visa pursuant to subsection 501(3A) of the Act.
[7] [2022] FCAFC 6.
The submissions then referred to prior decisions made by a delegate of the Minister on:
·15 April 2015 to mandatorily cancel Mr Sarimsaklio’s visa under subsection 501(3A) of the Act on the basis of his conviction on 18 May 2012 of two counts of ‘aggravated break and enter and commit serious indictable offence - in company’ for which he was sentenced to a term of imprisonment of five years and six months;[8] and
·22 December 2016 to revoke the decision to cancel his visa under subsection 501CA(4) of the Act.[9]
[8] Exhibit RB 165.
[9] Ibid 171.
Mr Sarimsaklio’s legal representative submitted to the Tribunal that the delegate, in making the original decision to mandatorily cancel his visa on 1 May 2020:
[11] failed to correctly identify the new events or circumstances that meet the first limb ‘failure of the character test’ instead relying upon a previously used conviction in an earlier cancellation that was overturned by the Department. The delegate instead used the new conviction for the cancellation to meet the second limb of the test which in turns [sic] invalidate the 1 May 2020 cancellation.[10]
[10] Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 19 August 2022, [11].
The legal representative for Mr Sarimsaklio referred to the decision in XJLR and contended:
[13] the Full Federal Court [in XJLR] concluded that “any combination involving the previous failure to satisfy the decision maker under s 501(3A)(a) that the visa holder passed the specific character test cannot be used to cancel the visa again. The circumstance of, or reason for, any subsequent imprisonment has no relevance to the exercise of the power, because that fact does not change or create a new combination under s 501(3A). The Minister’s satisfaction as to the existence of the same failure to pass the character test is still coupled to an imprisonment and the previous s 501CA(4) decision maker had already decided that there was another reason to revoke the earlier cancellation based on that combination in the context of any failure to pass the broader character test.”
[14] It is therefore our submission that the same combination, being the 2012 conviction and a term of imprisonment (albeit different) could not have been used as a basis to cancel the Applicant’s visa again.[11] [emphasis in original, footnotes deleted]
[11] Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 19 August 2022, [13]-[14].
The Minister’s legal representative submitted Mr Sarimsaklio’s situation was distinguishable from XJLR and contended:
[51] Although the 1 May 2020 cancellation relied on the same conviction as was relied on in the 15 April 2015 cancellation (for the purposes of s 501(3A)(a)), in the period following the 15 April 2015 cancellation decision, the applicant was convicted of additional offences, including 20 months’ imprisonment on 6 March 2020. That conviction was:
(a)   sufficient to meet the requirements of ss 501(3A)(a) and 501(7)(c) [of the Act] as it involved a sentence to a term of imprisonment of 12 months or more; and
(b)   not relied on by the delegate in the 15 April 2015 cancellation decision.
[52] It may be open to the applicant to argue that the 1 May 2020 cancellation decision was not validly made, as it relied on the same conviction that was relied on in the 15 April 2015 cancellation. However the Respondent submits that such an argument would inevitably fail as the Applicant is unable to satisfy the necessary threshold of materiality in circumstances where:
(a)   the criteria relevant to s 501(3A)(a) and (b) are in truth objective – they are either met or they are not; and
(b)   the Applicant’s 6 March 2020 conviction would be sufficient for both s 501(3A)(a) and (b); and
(c)    the 6 March 2020 conviction was an entirely new circumstance which occurred subsequent to the revocation decision on 22 December 2016.
[53] In short, the 6 March 2020 conviction enlivened the mandatory cancellation of the Applicant’s visa under s 501(3A) at the time the delegate made their decision. Because the conviction was before the delegate, they were required to cancel the visa and they could not have concluded otherwise.[12]
[12] Respondent’s Statement of Facts, Issues and Contentions dated 11 August 2022 [51]-[53].
I have considered and had regard to the Full Federal Court’s decision in XJLR, submissions made by the parties and the relevant facts of this matter, which show Mr Sarimsaklio was convicted on 6 March 2020 of offences that included ‘armed w/i commit indictable offence-T1’, ‘resist or hinder police officer in the execution of duty’ and ‘receive/dispose stolen property - min indict. off. <=$5000-T2’ for which he was sentenced to a term of 20 months imprisonment (aggregate). I have also had regard to the recent Tribunal decision by Senior Member Puplick in Nkani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[13] that considered a similar issue.
[13] AATA 1239 (10 May 2022).
I am satisfied that the delegate for the Minister in making the original decision to cancel Mr Sarimsaklio’s visa on 1 May 2020:
·was aware of (and referenced) Mr Sarimsaklio’s offences for which he was convicted and sentenced on 6 March 2020;
·was required under subsection 501(3A) of the Act to mandatorily cancel Mr Sarimsaklio’s visa because:
ohe had a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more on 6 March 2020 and so met subparagraph 501(3A)(a)(i) of the Act; and
ohe was serving a sentence of imprisonment on a full-time basis and so met paragraph 501(3A)(b) of the Act.
For completeness, I find the delegate for the Minister – in making the decision on 1 May 2020 – had no discretion given the requirements of the Act and the factual circumstances of Mr Sarimsaklio’s convictions and sentencing on 6 March 2020 and his imprisonment on a fulltime basis. Further (and clearly), Mr Sarimsaklio’s convictions on 6 March 2020 were not relied on in the decision to mandatorily cancel his visa on 15 April 2015.
Primary consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:
(a)the nature and seriousness of Mr Sarimsaklio’s conduct to date; and
(b)the risk to the Australian community should Mr Sarimsaklio commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Sarimsaklio’s conduct to date
Paragraph 8.1.1 requires that I consider the nature and seriousness of Mr Sarimsaklio’s ‘criminal offending or other conduct to date’.
Mr Sarimsaklio was born in Turkey in 1973. He first arrived in Australia with his parents and older brother on 4 April 1974 when he was seven months old. Mr Sarimsaklio’s parents, four brothers and members of his extended family continue to reside in Australia. This includes six nieces and nephews, aunts and uncles, sisters-in-law and cousins.

Mr Sarimsaklio has travelled to Turkey in the periods from October 1987 to December 1988, September 1990 to January 1992, December 1995 to January 1996 and June 2001. He has spent a total of approximately three years of his life in Turkey and has not departed Australia since June 2001.[14]
[14] Exhibit RB 180-181.
Mr Sarimsaklio attended school in Australia until year 10 and subsequently worked as a machine operator, a butcher and a pizza chef. He was last employed in 2010 and, since this period, he has primarily relied on social security benefits and lived at a granny flat at his parent’s home when not incarcerated.
In September 1990, Mr Sarimsaklio travelled with his family to Turkey to marry his cousin (the daughter of his mother’s brother) following arrangements by his grandmother. He and his wife returned to Australia in 1992 and they have three sons together: ‘A’ is 28 years old; ‘B’ is aged 27 years old; and ‘C’ is 26 years old. ‘A’ has a daughter, ‘D’, aged two years who is Mr Sarimsaklio’s only grandchild. Mr Sarimsaklio and his wife divorced in 2004.
Mr Sarimsaklio commenced a relationship with Ms ‘E’ in 2005 and they have a son, ‘F’, who is 16 years old. Mr Sarimsaklio told the Tribunal his relationship with Ms ‘E’ ended in 2012 when he went to jail and he has not spoken to her since this time. He said that ‘F’ is currently in year 11 at high school and he speaks with him on the telephone once a week.
Mr Sarimsaklio commenced a relationship with Ms ‘G’, who he has known for over 20 years, in October 2020.
Mr Sarimsaklio’s criminal history
Mr Sarimsaklio’s extensive criminal record is detailed in an Australian Criminal Intelligence Commission (ACIC) report dated 2 November 2020.
The ACIC report shows Mr Sarimsaklio has been convicted for 139 offences since 1989; this includes multiple stealing, larceny, driving, drug and dishonesty offences, and assault occasioning actual bodily harm, assault/resist police and custody of knife in public place offences between 1992 and 2012. Mr Sarimsaklio was further convicted on 18 May 2012 for two counts of aggravated break and enter and commit serious indictable offence in company, and sentenced to imprisonment for five years and six months (aggregate).[15]
[15] Ibid 43-49.
Since the revocation of Mr Sarimsaklio’s visa on 22 December 2016, he has been convicted for offences in NSW including:
·Downing Centre Local Court, 14 August 2017.
oOffence: ‘possess prohibited drug’. Result: fine $500.
·Downing Centre Local Court, 18 September 2018.
oOffence: ‘possess prohibited drug’. Result: fine $440.
·Central Local Court, 25 March 2019.
oOffence: ‘enter dwelling w/i intent (steal)-T1’. Result: nine months imprisonment (aggregate) and non-parole period with conditions of four months.
oOffence: ‘goods suspected stolen in/on premises (not m/v)’. Result: nine months imprisonment (aggregate) and non-parole period with conditions of four months.
oOffence: ‘receive/dispose stolen property-min. indict. off. <$5000-T2’. Result: nine months imprisonment (aggregate) and non-parole period with conditions of four months.
oOffence: ‘handle explosive/precursor without authorising licence’. Result: s 10A conviction with no other penalty.
oOffence: ‘possess prohibited drug’. Result: community correction order for 12 months.
·Central Local Court, 19 February 2020.
oOffence: ‘goods in personal custody suspected being stolen (not m/v)’. Result: six months imprisonment (aggregate).
oOffence: ‘possess prohibited drug’. Result: six months imprisonment (aggregate).
oOffence: ‘resist officer in execution of duty-T2’. Result: six months imprisonment (aggregate).
·Downing Centre District Court, 6 March 2020.
oOffence: ‘armed w/i commit indictable offence-T1’. Result: 20 months imprisonment (aggregate) and non-parole period with conditions of 11 months
oOffence: ‘resist or hinder police officer in the execution of duty’. Result: 20 months imprisonment (aggregate) and non-parole period with conditions of 11 months.
oOffence: ‘possess prohibited drug’. Result: s 10A conviction with no other penalty.
oOffence: ‘custody of knife in public place - subsequent offence’. Result: s 10A conviction with no other penalty.
oOffence: ‘receive/dispose stolen property - min indict. off. <=$5000-T2’. Result: 20 months imprisonment (aggregate) and non-parole period with conditions of 11 months.
·Downing Centre District Court, 24 April 2020.
oOffence: ‘Supply prohibited drug > indict. quantity (not cannabis)-SI’. Result: eight months imprisonment and non-parole period of six months.
oOffence: ‘Possess housebreaking implements’. Result: six months imprisonment.[16]
[16] Exhibit RB 38-42.
In his oral evidence to the Tribunal, Mr Sarimsaklio accepted that he has a ‘significant criminal history’ and has been convicted of ‘multiple offences’ for theft, possessing prohibited drugs, custody of a knife in a public place, and resisting arrest and assaulting police officers.[17] He attributed his offending to his drug use, explaining that he would do ‘stupid things’ to get the money to buy drugs.[18]
[17] Oral evidence of the Applicant on 30 August 2022 Transcript of Proceedings 59-60.
[18] Ibid 15.
The association between Mr Sarimsaklio’s drug use and his criminal record was also set out in the sentencing remarks of Magistrate Farnan on 6 March 2020:
I certainly accept that he is a person with a drug problem. When I look at his criminal record to see what, if any, leniency can be extended to him, it is certainly not a criminal record that anybody could be proud of.
[The Applicant] was first sentenced to full-time imprisonment in 2005; he has many matters on his record of dishonesty. Ultimately, he received a five-and-a-half year sentence with a relatively short non-parole period in the District Court, when the judge who sentenced him was clearly concerned to give him an opportunity to undertake residential rehabilitation, having regard to the conditions on that parole order.
…
Since 2018, looking at his record, clearly his drug issue has again led him to spiral into criminal behaviour, resulting in the matters that are before me …
I regard these matters, the resist and the armed with intent, as being at least in the mid-range of objective seriousness. They are clearly serious examples of those offences …
I don’t consider that any sentence other than a term of full-time imprisonment is appropriate for these matters. There’s nothing before me to suggest that intensive corrections in the community would assist [the Applicant]: of recent times, he has breached every community-based order that he has received.[19]
[19] Exhibit RB 59-60.
Other serious conduct – family violence
Records produced under summons from the Central Local Court of NSW include a NSW Police Facts Sheet that sets out an incident between Mr Sarimsaklio and Ms ‘E’ (the victim) in December 2007. The Police Facts Sheet stated that Mr Sarimsaklio ‘grabbed hold of the victim’s hair and dragged her’, ‘punched the victim on the right side of her face using a closed fist’, ‘punched the victim a second time’, ‘pushed the victim to the ground and sat on top of her and held her hands down’, ‘slapped her across the face with an open hand’ and ‘put his hands tightly around the victim’s throat’.[20] Ms ‘E’ later reported this incident to the Police and a Provisional Order (Ex Parte) for an Apprehended Domestic Violence Order (AVO) was made on 24 December 2007 that named Ms ‘E’ as the ‘protected person’ and Mr Sarimsaklio as the ‘defendant’.[21]
[20] Ibid 417-418.
[21] Ibid 552-554.
At the Tribunal hearing, Mr Sarimsaklio said Ms ‘E’ applied for the AVO against him because she didn’t ‘want to be with’ him; he also denied being ‘really, really violent’ but acknowledged that they ‘argued and screamed at each other a lot’ and accepted that she may have been ‘scared’ of him.[22]
[22] Oral evidence of the Applicant on 30 August 2022 Transcript of Proceedings 62.
I note there is no evidence before the Tribunal from Ms ‘E’ and Mr Sarimsaklio said he has ‘never spoken to her since [they] broke up’.[23]
[23] Ibid 75.
Contemporaneous case note reports in 2011 and 2012 set out in documents produced under summons by the NSW Department of Corrective Services refer to Mr Sarimsaklio requesting a visit in jail from his son, ‘F’ and being advised that ‘parental care’ had been given to Ms ‘E’ and ‘there are AVO’s in place so no contact’.[24]
[24] Exhibit RB 784, 786 and 799.
Mr Sarimsaklio’s time in prison and immigration detention
Mr Sarimsaklio’s records relating to his convictions, sentences and appeals from the NSW Department of Corrective Services show he has spent time in prisons since 1994 and was incarcerated for extended periods in 2003–2004, 2005–2006, 2007–2008, 2011–2015, 2018 and 2019–2020.[25] He has also been held in immigration detention for periods in 2015–2016 and from 2020 to the present.[26]
[25] Ibid 98-100.
[26] Ibid 183.
Case note reports and records by the NSW Department of Corrective Services show Mr Sarimsaklio participated in programs including Getting Smart, SMART Recovery, Managing Emotions, EQUIPS Foundation, Children Safe and Triple P Parenting, and he attended Alcoholics Anonymous meetings while in prison in 2012–2014.[27] He also completed the EQUIPS Addiction and EQUIPS Aggression programs in prison in August 2020.[28]
[27] For example, see Exhibit RB pages 745, 806, 812, 819-824.
[28] Ibid 1078.
Records of his convictions, sentences and appeals from the NSW Department of Corrective Services also show Mr Sarimsaklio failed ‘prescribed’ drug or urine tests on six occasions while he was in prison including, most recently, on 22 February 2019.[29]
[29] Ibid 100-101.
There is minimal relevant evidence about Mr Sarimsaklio’s conduct in immigration detention from 24 April 2015 to 22 December 2016 and from 19 November 2020 to the present, except for client incident report entries dated 7 June 2015, 5 July 2015 and 30 September 2015 that refer to ‘minor’ incidents of finding contraband in his shared room.[30] I place no weight on these entries given the contraband was found in a shared space and therefore cannot be definitely attributable to Mr Sarimsaklio.
[30] Ibid 196-198.
Mr Sarimsaklio also filed with the Tribunal certificates of courses completed while in immigration detention in relation to Anger Management and ‘smart recovery’ dated in June 2022.[31] Mr Sarimsaklio was questioned about these certificates by the Minister’s legal representative at the Tribunal hearing, particularly in relation to the authenticity of the ‘smart recovery’ certificate given it contained the same serial number as the certificate for the Anger Management course, appeared to be photocopied with some of the writing changed, and Universal Class (the course provider) does not offer a ‘SMART Recovery’ course. While Mr Sarimsaklio denied the certificate for ‘smart recovery’ was fraudulent, in view of this evidence, I must place limited weight on these certificates.
[31] Exhibit A13.
Formal warnings in writing about the consequences of offending on migration status
Mr Sarimsaklio has received the following written warnings about the consequences of his offending on his visa and migration status:
·On 3 May 2007, the (then) Department of Immigration and Citizenship wrote to Mr Sarimsaklio to advise that a delegate of the Minister had exercised their discretion and ‘decided not to cancel’ his visa under subsection 501(2) of the Act and stated:
However you are warned that if you engage in any further conduct that might bring you within scope of section 501, cancellation of your visa may be considered again.[32] [emphasis in original]
·On 23 April 2009, the (then) Department of Immigration and Citizenship sent Mr Sarimsaklio a ‘Formal Counselling Letter’, which explained the operation of section 501 of the Act, including the provisions of the character test at subsection 501(6) of the Act, and stated that the Department was aware of his criminal record. The letter advised that ‘at present’ no consideration was being given to cancel his visa; however:
The purpose of this letter is to warn you 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.[33]
·On 15 April 2015, the (then) Department of Immigration and Border Protection notified Mr Sarimsaklio in writing that his visa was mandatorily cancelled under subsection 501(3A) of the Act on the basis that he had a substantial criminal record as defined in subsection 501(7) of the Act because he had been sentenced to a term of imprisonment of 12 months or more. This notice referenced his conviction on 18 May 2012 of ‘aggravated break and enter and commit serious indictable offence in company’ and his sentence to five years and six months imprisonment.[34]
·On 22 December 2016, the (then) Department of Immigration and Border Protection wrote to Mr Sarimsaklio to advise the decision to cancel his visa had been revoked and stated:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.[35] [emphasis in original]
[32] Exhibit RB 157.
[33] Ibid 161-162.
[34] Ibid 165-168.
[35] Ibid 171-172.
Consideration
Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction No. 90, I make the following findings about the nature and seriousness of Mr Sarimsaklio’s conduct to date:
·Mr Sarimsaklio’s criminal history set out in paragraphs 38 to 42 shows he has been convicted of offences that have included:
o‘violent crimes’, which are ‘viewed very seriously by the Australian Government and the Australian community’; and
ocrimes against government officials in the performance of their duties, including resisting arrest and assaulting police officers, which are viewed as ‘serious’.
·As set out in paragraphs 43 to 46, there is evidence of an incident between Mr Sarimsaklio and his then partner in 2007, and the subsequent making of a Provisional AVO. This incident comprises an ‘act of family violence’ as defined in subparagraph 4(1) of Direction No. 90, which ‘regardless of whether there is a conviction for an offence or a sentence imposed’ is ‘viewed very seriously by the Australian Government and the Australian community’.
·The seriousness of Mr Sarimsaklio’s offending is reflected by the Courts imposing sentences of imprisonment including:
oon 18 May 2012, a sentence of imprisonment for five years and six months (aggregate); and
oon 6 March 2020, a sentence of imprisonment for 20 months (aggregate).
·Mr Sarimsaklio has frequently and repeatedly offended as shown by his convictions for 139 offences between 1989 and 2020 that are set out in the ACIC report on 2 November 2020.
·Mr Sarimsaklio received formal warning letters from the Department in 2007 and 2009, and his visa was mandatorily cancelled in 2015 before a decision was made to revoke the cancellation in 2016. Despite these warnings, he has continued to offend and – less than nine months after he was released from immigration detention in December 2016 – recorded a further conviction for ‘possess prohibited drug’ in August 2017.
I am satisfied that the nature and seriousness of Mr Sarimsaklio’s conduct weighs very strongly against exercising the discretion to revoke the cancellation of his visa.
The risk to the Australian community should Mr Sarimsaklio commit further offences or engage in other serious conduct
Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by Mr Sarimsaklio to the Australian community, I must have regard to, cumulatively:
·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and
·the likelihood of him engaging in further criminal or serious conduct, taking into account:
oinformation and evidence on the risk of him re-offending, and
oevidence of rehabilitation ‘at this time’, giving weight to time spent in the community since his most recent offence.
As set out in paragraphs 38 to 42, Mr Sarimsaklio’s criminal record shows that he has an extensive history of offending related to his drug use. Based on his past offending, I am satisfied that if Mr Sarimsaklio engages in further criminal or serious conduct, the nature of any harm to individuals or the Australian community would be serious.
I now consider the likelihood of Mr Sarimsaklio engaging in further criminal or serious conduct.
Information and evidence on the risk of the Applicant re-offending
A sentencing assessment report in relation to Mr Sarimsaklio by Corrective Services NSW dated 8 February 2019 assessed he has a ‘Medium – High risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’.[36] This report identified factors related to his offending, which included his:
·history of ‘anti-social behaviour’ with his offending ‘influenced by his substance abuse and subsequent aggression issues’;
·‘attitudes’ with him appearing to ‘take no responsibility for his actions’ and not adequately engaging in treatment to address his substance abuse issues;
·‘history of polysubstance use covering his adult life’ and lack of ‘understanding into the reasons behind his drug use’ despite acknowledging the ‘direct link between his substance use and offending’; and
·past ‘violence and aggression’ that is attributed to his substance use.[37]
[36] Exhibit RB 704.
[37] Ibid 703.
This sentencing assessment report also outlined Mr Sarimsaklio’s response to supervision, noting that he ‘has been subject to various orders since 1994’ and his response was ‘deemed unsatisfactory’ because he had failed to ‘report for interview’ or ‘undertake treatment aimed at addressing his illicit substance use’.[38]
[38] Ibid 704.
Relevantly, an ‘Update Breach Report’ dated 28 June 2019 noted that Mr Sarimsaklio was granted bail on 18 June 2019 with the condition that he reside at William Booth House (WBH) (a residential rehabilitation service) but his ‘whereabouts’ were ‘unknown’.[39] Case note reports from the NSW Department of Corrective Services recorded that Mr Sarimsaklio was admitted to WBH on 18 July 2019 and underwent detox but was asked to leave on 6 August 2019 due to his behaviour, which included ‘fights and intimidating behaviour towards fellow participants’.[40] In a record dated 15 August 2019, Mr Sarimsaklio reported ‘he has been using since he left WBH’ and ‘last used ice today’.[41]
[39] Ibid 756.
[40] Ibid 889-892.
[41] Ibid 894.
In relation to his substance use, Mr Sarimsaklio told the Tribunal that he has now changed. He said he has been on the Subutex program for ‘almost three years’, which involves him having an injection every three weeks.[42] He acknowledged he is ‘a drug addict’ but said he does not ‘hang out for drugs’ since he has been on the Subutex program.[43] In a statement dated 13 July 2022, Mr Sarimsaklio wrote that he needs to ‘keep medicated to address [his] systemic drug addiction issues’ and intends to continue the Subutex program and participate in rehabilitation courses and programs if he is released into the Australian community.[44] He also said he would like to attend a rehabilitation facility such as Wayback and that, apart from WBH, he could not recall previously having an opportunity or being required to participate in rehabilitation programs as part of his parole or community corrections orders.[45]
[42] Oral evidence of the Applicant on 30 August 2022 Transcript of Proceedings 14.
[43] Ibid 15.
[44] Exhibit A1 [18] and [21].
[45] Oral evidence of the Applicant on 30 August 2022 Transcript of Proceedings 55.

I place limited weight on this evidence of Mr Sarimsaklio; in particular, his willingness to attend a rehabilitation program if he is released into the Australian community. I find his evidence that he only has had an opportunity to access rehabilitation services since 2019 is inconsistent with numerous probation and parole service reports (dating from 2003) set out in documents from Corrective Services NSW that refer to his methamphetamines’ use and recommend he attend a residential therapeutic treatment program.[46] I further note Mr Sarimsaklio’s criminal record set out in the ACIC report refers to his sentences that include drug rehabilitation treatment in 2008, 2012 and 2019.
[46] For example, see Exhibit RB 750.
Mr Sarimsaklio underwent a psychological assessment with Mr Matt Visser (clinical psychologist) for the purpose of the Tribunal hearing. Mr Visser completed a report dated 13 July 2022, which set out Mr Sarimsaklio’s mental status, family history, educational history, relationship history and occupational history.
Mr Visser outlined Mr Sarimsaklio’s drug and alcohol use and determined that he met the diagnostic criteria for ‘Stimulant Use Disorder, Amphetamine Type’.[47] He also opined Mr Sarimsaklio previously had suffered from post-traumatic stress disorder, ‘may still meet the criteria for a mild depressive condition’ and there was a ‘strong likelihood’ he ‘has at least a mild form of intellectual disability’ (although this was not assessed).[48]
[47] Exhibit A10, 1.
[48] Ibid 2.
Mr Visser wrote that Mr Sarimsaklio’s roles as a father and son caring for his parents will in part depend on his ability to ‘maintain abstinence from substances, and in particular methamphetamine’ and ‘the highest likelihood of him being able to lead a prosocial life … is through a twelve month+ residential rehabilitation program’.[49] Mr Visser stated that Mr Sarimsaklio would be likely to relapse into the use of methamphetamine and heroin if he left a rehabilitation program early. He also opined that, while Mr Sarimsaklio would be able to access Subutex in Turkey, ‘the stress of relocation [to Turkey], and removal from support systems and stable accommodation would make relapse in his case almost a certainty’.[50]
[49] Ibid.
[50] Ibid.
At the Tribunal hearing, Mr Sarimsaklio identified the factors that he believes will prevent him from reoffending at this time. These included his visa being cancelled in 2020, his intention to go to rehabilitation, his desire to find a job and his wish to ‘be there’ for his four sons and granddaughter and to care for his parents.[51] I note that all of these protective factors (except the presence of his granddaughter) have been available to him previously. Relevantly, these factors were also present when Mr Sarimsaklio’s visa was cancelled in 2015. Indeed, despite warnings in 2007 and 2009 about the potential for his visa to be cancelled if he continues to offend and the cancellation of his visa in 2015, Mr Sarimsaklio resumed offending and was convicted for possession of drugs nine months after his release from immigration detention in 2016.
[51] Oral evidence of the Applicant on 30 August 2022 Transcript of Proceedings 15.
Weighing the evidence, I place significant weight on the sentencing assessment report by Corrective Services NSW on 8 February 2019 that assessed Mr Sarimsaklio at a medium to high risk of reoffending. I consider this is consistent with the assessment of Mr Visser, who opined Mr Sarimsaklio is likely to relapse unless he attends a residential rehabilitation service for at least 12 months.
Considering both the nature and seriousness of Mr Sarimsaklio’s conduct to date and the risk to the Australian community should he commit further offences of engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs very strongly against exercising the discretion to revoke the mandatory cancellation of Mr Sarimsaklio’s visa.
Primary consideration 2 – family violence committed by the applicant
Subparagraph 4(1) of Direction No. 90 defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’. Examples of behaviour that may constitute family violence include ‘an assault’.
Direction No. 90, at subparagraph 8.2(1), states ‘the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of … remaining in Australia’. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by Mr Sarimsaklio. These factors relevantly include:
·the frequency of his behaviour and whether there is any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence; and
·rehabilitation achieved at the time of my decision since his last known act of family violence, including:
othe extent to which he accepts responsibility for his conduct;
othe extent to which he understands the impact of his behaviour on his partner and their children; and
oefforts to address factors which contributed to his conduct.
I have set out details of an incident between Mr Sarimsaklio and his then partner, Ms ‘E’, in paragraphs 43 to 46. I am satisfied the behaviour of Mr Sarimsaklio in this incident is consistent with the definition of family violence contained in subparagraph 4(1) of Direction No. 90. I find this offence is very serious.
There is no evidence from Ms ‘E’ before the Tribunal either in relation to this incident in 2007 or her relationship with Mr Sarimsaklio, although case note reports in 2011 and 2012 from the NSW Department of Corrective Services indicate an AVO was in place at that time.
I am satisfied that the primary consideration of family violence weighs against exercising the discretion to revoke the cancellation of Mr Sarimsaklio’s visa. I place less weight on this primary consideration because there is no clear and objective evidence that his act of family violence in 2007 was repeated.
Primary consideration 3: best interests of minor children in Australia affected by the decision
Subparagraph 8.3(4) of Direction No. 90 lists the factors I must consider in considering whether cancellation of Mr Sarimsaklio’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:
·the nature and duration of the relationship between the child and Mr Sarimsaklio (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited ‘meaningful contact’);
·the extent to which Mr Sarimsaklio is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;
·the impact of Mr Sarimsaklio’s prior and future conduct, and whether that will have a negative impact on the child;
·the likely effect any separation would have on the child; and
·whether there are other persons who already fulfil a parental role for the child.
Evidence before the Tribunal shows the minor children who would be affected by the cancellation of Mr Sarimsaklio’s visa are his son, ‘F’ and his granddaughter, ‘D’.
Submissions made by Mr Sarimsaklio’s previous lawyer on 3 March 2021 set out he was instructed as follows:
·Mr Sarimsaklio has telephone contact with ‘F’ ‘several times per week’ and provides him with ‘emotional support’;
·family court orders are in place that grant Ms ‘E’ sole custody of ‘F’ until he is 18 years old; and
·in periods when Mr Sarimsaklio resided in the community, he has provided ‘F’ with ‘emotional, practical and financial support’ such as taking him to school, sport events or to visit his grandparents.[52]
[52] Exhibit RB 241.
An undated letter written by Mr Sarimsaklio’s three oldest sons stated that ‘F’ would be ‘heartbroken if he was to hear that his father has been sent back to Turkey’.[53]
[53] Ibid 207.
I note there are no statements from either ‘F’ or Ms ‘E’ that verify Mr Sarimsaklio’s past and continuing relationship with ‘F’. Mr Sarimsaklio told the Tribunal that he has not seen ‘F’ since he has been incarcerated and held in immigration detention. Nonetheless, I accept Mr Sarimsaklio has a parental relationship with ‘F’, which has been maintained through regular telephone contact, and I am satisfied the removal of Mr Sarimsaklio from Australia could have a detrimental impact on ‘F’.
An undated letter from ‘A’ stated that he would ‘appreciate his father staying in Australia’ so he could ‘bond’ and ‘spend time’ with his ‘only granddaughter’.[54] In his oral evidence, Mr Sarimsaklio said he has not met ‘D’ in person but speaks with her three times a week by phone when he calls his son, ‘A’. He said that he would like to be able to look after ‘D’ while his son is at work and wants to show his granddaughter ‘the right thing’ and spend time with her.[55] I accept that it would be in the best interests of ‘D’ to revoke the mandatory cancellation of Mr Sarimsaklio’s visa, although Direction No. 90 requires I place less weight on this relationship as Mr Sarimsaklio is not the parent of ‘D’ and there are other people who fulfil a parental role for ‘D’.
[54] Ibid 203.
[55] Oral evidence of the Applicant on 30 August 2022 Transcript of Proceedings 21.
A list of Mr Sarimsaklio’s relatives indicate that he has a 17-year-old nephew and a 12-year-old niece, and he gave oral evidence that his older brother’s children (who are 31 years old and 28 years old) themselves have minor children. While I am satisfied that these children have other people who fulfil a parental role for them and there is limited information about the nature and duration of their relationship with Mr Sarimsaklio, I find that it would be in the best interests of these children to revoke the mandatory cancellation of Mr Sarimsaklio’s visa.
Considering all the evidence in relation to the factors set out in subparagraph 8.3(4) of Direction No. 90, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision weighs for exercising the discretion to revoke the cancellation of Mr Sarimsaklio’s visa.
Primary consideration 4: expectations of the Australian community
Subparagraph 8.4(1) of Direction No. 90 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In subparagraph 8.4(2) of Direction No. 90, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction No. 90.
Subparagraph 8.4(4) of Direction No. 90 states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes.
I have set out the nature and seriousness of Mr Sarimsaklio’s criminal history and the risk to the Australian community if he were to commit further offences in paragraphs 38 to 46, 53 and 55 to 68 above. I am satisfied Mr Sarimsaklio has an extensive criminal history that includes 139 convictions for offences since 1989 and sentences of imprisonment, and he has been assessed at a medium to high risk of reoffending according to the LSI-R.
Based on the evidence and having regard to the principles and requirements in paragraph 8.4 of Direction No. 90, I find the Australian community would have a very low tolerance of Mr Sarimsaklio’s offending and would expect the Government to cancel his visa. I am therefore satisfied the primary consideration of expectations of the Australian community weighs strongly against exercising the discretion to revoke the mandatory cancellation of Mr Sarimsaklio’s visa.
Other considerations in direction no. 90
Section 9 of Direction No. 90 lists the other considerations that I ‘must also take into account’ in deciding whether to revoke the mandatory cancellation of a visa. The other considerations that are relevant in this matter are:
·the extent of impediments if Mr Sarimsaklio is removed from Australia; and
·links to the Australian community, namely the strength, nature and duration of Mr Sarimsaklio’s ties to Australia.
I note there is no evidence before the Tribunal that shows the considerations of international non-refoulement obligations, impact on victims or impact on Australian business interests are relevant to these proceedings. However, Mr Sarimsaklio’s legal representative referred to her reliance on submissions made to the Tribunal on 28 April 2021 by his (then) lawyer in relation to ‘breach of Australia’s international obligations’ that I consider below.
Other Consideration: Extent of impediments if Mr Sarimsaklio is removed from Australia
The extent of impediments if Mr Sarimsaklio is removed from Australia relates to his capacity to reside in, establish himself and maintain ‘basic living standards’ in his ‘home country’ of Turkey. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in Turkey.
Mr Sarimsaklio is 49 years old.
In his psychological assessment, Mr Visser diagnosed Mr Sarimsaklio with ‘Stimulant Use Disorder, Amphetamine Type’ and stated he is currently receiving treatment through the Subutex program. Mr Visser reported that Mr Sarimsaklio would be able to access Subutex in Turkey but noted the process of him ‘finding health services and accessing a prescription would be disruptive, with reduced continuity of care increasing the risk of relapse, and therefore overdose.’[56] Mr Visser further opined:
While the specific details of Turkey’s public mental health system are not in my area of expertise, [Mr Sarimsaklio’s] intellect, the language barrier, and lack of familial support would make it considerably harder to find support to gain access to public or social housing. The most likely outcome would then be long term homelessness.[57]
[56] Exhibit A10, 2.
[57] Ibid 3.
In a statement dated 13 July 2022, Mr Sarimsaklio wrote that he believes that he ‘will die’ if he is removed to Turkey and stated:
I would wither away in Turkey. Although the Minister indicates that I would have access to health services in Turkey, I do not have any money to pay for prescription medication and other prescribed treatments to address my drug rehabilitation medication, depression, back issues, and poor eyesight. As such, this is another hardship I would face if removed to Turkey.[58]
[58] Exhibit A1.
At the Tribunal hearing, Mr Sarimsaklio said he has been diagnosed with depression and has taken Avanza for approximately 15 years. However, when taken to his current medical records, he accepted that he was not taking any medication (or receiving counselling) for any mental health conditions. He also accepted there is no medical evidence that his back pain is a significant or continuing issue and, although he experienced back pain when detained in immigration in 2015–2016, he is not currently receiving any treatment for this condition.
I accept that Mr Sarimsaklio would experience (at least initially) difficulties finding health services and accessing a prescription for Subutex in Turkey. I also accept the evidence of Mr Visser that this factor – as well as the need to access a ‘12+ months’ rehabilitation program – would increase the risk of Mr Sarimsaklio relapsing into using drugs.
However, there is no information before the Tribunal to suggest that Mr Sarimsaklio, who is a citizen of Turkey, would be unable to access medical support in Turkey. Indeed, Mr Sarimsaklio’s mother gave oral evidence to the Tribunal that she was currently in Turkey for dental work as it was ‘cheap’ and has previously travelled to Turkey for an operation.[59] She also said that, on this trip to Turkey, she and her husband were able to obtain medications in Turkey that they had forgotten from Australia and her husband had received care at a local hospital after he experienced a fall.
[59] Oral evidence of Mrs H Sarimsaklio on 30 August 2022 Transcript of Proceedings 79.
In relation to why he believes he ‘will die’ if he is removed to Turkey, Mr Sarimsaklio said:
It’s just I don’t know nothing about that country. I’ll have nothing there, like, how am I supposed to live, like, somewhere I don’t even know nothing about. Like, property and I know nothing about it. I’ve got no money there.[60]
[60] Ibid 24.
There is no dispute that Mr Sarimsaklio has lived in Australia since he was seven months old, has spent a total of approximately three (out of 49) years of his life in Turkey and has not visited Turkey since 2001. While his wife was from Turkey and he speaks the Turkish language with his parents, I accept he may experience some language difficulties and substantial cultural difficulties if he is removed from Australia to Turkey.
The evidence before the Tribunal shows that Mr Sarimsaklio’s social and economic supports are in Australia. Mr Sarimsaklio’s parents, brothers, sons, granddaughter, partner and extended family members reside in Australia. Documents filed by Mr Sarimsaklio’s previous lawyer in relation to social security programs suggest that he would be unlikely to access unemployment benefits in Turkey and consequently, he would need to either obtain employment in Turkey or receive financial assistance from his family if he is removed from Australia. In contrast, if Mr Sarimsaklio is released into the Australian community, he would have access to social security benefits and reside at the granny flat at his parent’s home.
At the Tribunal hearing, Mr Sarimsaklio conceded that he has some extended family members in Turkey and, at the time of the hearing, his parents were staying in Turkey with a relative on his father’s side of the family. I accept – given the number of years since Mr Sarimsaklio has been in Turkey and the family fallout from his divorce from his wife (also his cousin on his mother’s side of the family) – that he may have difficulties relying on assistance from some members of his extended family if he were removed to Turkey.
On balance, I am satisfied that this other consideration of the extent of impediments if Mr Sarimsaklio is removed from Australia weighs strongly in favour of exercising the discretion to revoke the mandatory cancellation of his visa.
Other Consideration: Strength, nature and duration of ties to Australia

In considering the strength, nature and duration of Mr Sarimsaklio’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction No. 90 stipulate that I must consider any impact of the decision on his ‘immediate family members’ in Australia and I must have regard to:
·how long he has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where he began offending soon after arriving in Australia; and
omore weight should be given to time he has spent contributing positively to the Australian community;
·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Sarimsaklio arrived in Australia in 1974 when he was seven months old. He was first convicted of an offence in 1989 and his most recent convictions were in 2020. There is limited evidence of Mr Sarimsaklio contributing positively to the Australian community as he was last employed in 2010.
Mr Sarimsaklio has significant family and social links to Australia.
Mr Sarimsaklio’s parents are citizens of Australia (and Turkey) and are elderly. They have medical conditions and take medications as set out in health summary sheets dated 15 July 2022.[61] Mr Sarimsaklio and his parents gave evidence that, if he is released into the Australian community, he will live at a granny flat behind their home and provide care for them. While I accept the medical evidence about the medical conditions and medications of Mr Sarimsaklio’s parents, I note they were recently able to travel to Turkey and gave evidence for the Tribunal hearing from Turkey on 30 August 2022.
[61] Exhibit A18.
Mr Sarimsaklio has four brothers. His youngest brother, Mr ‘H’, provided written statements and gave oral evidence at the Tribunal about the care Mr Sarimsaklio would provide for their parents. In an undated written statement in 2021, Mr ‘H’ noted:
I truly believe he is capable of changing himself in Australia and there is no way he is capable of living in Turkey … [H]e is my brother and he means so much to myself and family. He taught me many ways of life that I am grateful for … He believes in bettering himself so please give him the opportunity to continue living in Australia as he knows no other life but in Australia.[62]
[62] Exhibit RB 199.
I have also considered the evidence set out about Mr Sarimsaklio’s relationships with his four sons and granddaughter. There are two undated letters from Mr Sarimsaklio’s sons filed in 2021: one from ‘A’ and one from ‘A’, ‘B’ and ‘C’, which refer to them being ‘very close’ to their father.[63] Although Mr Sarimsaklio emphasised the closeness of his relationships with his sons and granddaughter, I note none of Mr Sarimsaklio’s adult sons provided any further written statements in 2022 or gave oral evidence at the Tribunal hearing. I also note Mr Sarimsaklio gave oral evidence that none of his family members, including his parents and sons, had visited him in immigration detention; however, I accept that visitation has been restricted at various times over the past two and a half years due to COVID-19.
[63] Ibid 203 and 207.
Mr Sarimsaklio provided evidence and supporting documentation about his second oldest son, ‘B’, living with him if he is released into the Australian community. He said that ‘B’ currently lives with his mother but she ‘can’t handle him’.[64]
[64] Oral evidence of the Applicant on 30 August 2022 Transcript of Proceedings 17.
Mr Sarimsaklio provided a report completed by an occupational therapist on 30 November 2020 that stated ‘B’ has been diagnosed with ‘paranoid schizophrenia, intellectual disability and delusional aggressive behaviours’, and provided an assessment of ‘B’’s functional capacity and requirement for supported independent living.[65] The report set out ‘B’’s medical history, history of ‘domestic violence’ towards his mother and brother and ‘violence in the community’, capacity to undertake activities of daily living, and current status.[66] ‘B’ was assessed as having a ‘very high’ level of disability and the report recommended he have ‘1:1 support for personal care and other daily activities and overnight monitoring’ and ‘2:1 support for social activities’ as he is ‘a large male with capacity to cause harm’.[67]
[65] Exhibit RB 218.
[66] Ibid 218-221.
[67] Ibid 223 and 227.
While Mr Sarimsaklio initially made submissions that ‘B’ would live with him if he is released into the Australian community, he changed this view in his oral evidence when he was told about the information contained in the occupational therapist report and became aware of the high level of disability experienced by ‘B’ and the intensity of care he required.
Mr Sarimsaklio’s partner, Ms ‘G’, provided written statements dated 28 June 2022 and 18 August 2022 and gave oral evidence at the hearing. Ms ‘G’ said that she has known Mr Sarimsaklio for approximately 20 years and commenced a relationship with him in October 2020. Ms ‘G’ outlined their intention to live together and care for their respective parents if Mr Sarimsaklio is released into the Australian community.
I am satisfied the evidence shows Mr Sarimsaklio has strong and durable family links to Australian citizens and people who have an indefinite right to remain in Australia.
For these reasons, I am satisfied the other consideration of strength, nature and duration of ties to Australia weighs strongly for exercising the discretion to revoke the decision to mandatorily cancel Mr Sarimsaklio’s visa.
Other consideration: breach of Australia’s international obligations
The parties have provided submissions in relation to whether the removal of Mr Sarimsaklio to Turkey would result in Australian being in breach of Articles 12(4) and 17(1) of the International Covenant on Civil and Political Rights (ICCPR).
Article 12(4) of the ICCPR states: ‘No one shall be arbitrarily deprived of the right to enter his own country’, and Article 17(1) of the ICCPR states: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’.
I have considered the submissions made by the parties and the relevant facts of this matter. I do not consider Articles 12(4) and 17(1) of the ICCPR are enlivened in circumstances where Mr Sarimsaklio is a citizen of Turkey and his visa was cancelled as a result of the application of Australian laws. I therefore place no weight on this other consideration.
Conclusion
I am satisfied that:
·the first primary consideration (protection of the Australian community from criminal or other serious conduct) weighs very strongly against exercising the discretion to revoke the mandatory cancellation of Mr Sarimsaklio’s visa;
·the second primary consideration (whether the conduct constituted family violence) weighs against revoking the mandatory visa cancellation;
·the third primary consideration (best interests of minor children in Australia) weighs for exercising the discretion to revoke the mandatory cancellation of Mr Sarimsaklio’s visa; and
·the fourth primary consideration (expectations of the Australian community) weighs strongly against exercising the discretion to revoke the mandatory cancellation of Mr Sarimsaklio’s visa;
In relation to other considerations, I find:
·the extent of impediments to Mr Sarimsaklio if he is removed from Australia and the strength, nature and duration of his ties to Australia weigh strongly for exercising the discretion to revoke the mandatory cancellation of his visa; and
·no evidence that not revoking the mandatory cancellation of Mr Sarimsaklio’s visa would be a breach of Australia’s international obligations.
Section 7 of Direction No. 90 states that primary considerations should generally be given greater weight than other considerations. In the particular circumstances of this matter, where Mr Sarimsaklio has lived in Australia for most of his life and has an extensive criminal record, I have carefully considered and weighed each of the relevant primary and other considerations.
Weighing all the relevant primary considerations and other considerations, I am not satisfied there is another reason to revoke the decision to cancel Mr Sarimsaklio’s visa.
For these reasons, the decision made by a delegate of the Minister on 16 March 2021 to not revoke the mandatory cancellation of Mr Sarimsaklio’s visa is affirmed.
decision
The Tribunal affirms the decision under review.

I certify that the preceding 122 (one hundred and twenty - two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...................................[sgd].....................................
Associate
Dated: 30 September 2022

Dates of hearing: 30 & 31 August 2022

Solicitors for the Applicant: Ms Marial Lewis, Crossover Law Group

Solicitors for the Respondent: Ms Sarah Thompson, HWL Ebsworth Lawyers

[2022] AATA 3194

30 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Standing

Dates of hearing:	30 & 31 August 2022
Solicitors for the Applicant:	Ms Marial Lewis, Crossover Law Group
Solicitors for the Respondent:	Ms Sarah Thompson, HWL Ebsworth Lawyers