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

SBTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5609 (6 December 2019)
Division:GENERAL DIVISION
File Number: 2019/5856
Re:SBTY
APPLICANT

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

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member

Date:6 December 2019
Date of written reasons: 24 December 2019
Place:Melbourne

The Tribunal sets aside the decision made by the delegate of the Respondent dated 11 September 2019 and substitutes it with a decision to revoke the mandatory cancellation of the applicant’s visa under section 501CA of the Migration Act 1958.
........................[sgd]...........................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa under section 501CA – multiple breaches of family violence intervention order – whether mandatory cancellation should be revoked – Ministerial Direction 79 – primary considerations – other considerations – decision under review set aside and substituted
Legislation
Family Law Act 1975
Migration Act 1958
Cases
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Minister for Home Affairs v Omar [2019] FCAFC 188
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
Sowa v Minister for Home Affairs [2019] FCAFC 111
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
24 December 2019
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent dated

11 September 2019 not to revoke the mandatory cancellation of the applicant’s Class BW Subclass 856 Employer Nomination Scheme Visa (the “visa”).
The hearing of this matter was held on 26, 27 and 28 November 2019. The applicant was represented by Ms Georgina Costello SC and Mr Mathew Kenneally of counsel. The respondent was represented by Ms Siran Nyabally, a lawyer with the Australian Government Solicitor.
On 6 December 2019 the Tribunal made the decision to affirm the decision under review. Set out below are the written reasons for the Tribunal’s decision.
BACKGROUND
General background
The applicant is a 38-year-old Turkish citizen and is an Alevi Kurd. He was born in Tufanbeyli, Turkey in May 1981 and grew up there with his parents, an older brother and a younger sister.
The applicant married his former wife, SC, in Turkey in June 2005. His first child with SC, IC, was born in Turkey in 2006. The applicant migrated to Australia together with the SC and the oldest child in June 2008 as the holder of a Class UC Subclass 457 Business (Long Stay) visa. The applicant had been sponsored by his older brother, HC, to work as a bricklayer and concreter in his brother’s business.
The applicant’s second child with SC, BC, was born in Australia in 2010.
The applicant and SC initially separated in around 2012. They were briefly reunited in 2013 but subsequently separated again and have remained separated ever since. They are now divorced. Both of the applicant’s children reside with SC.
Criminal history
The applicant has a significant criminal record involving convictions recorded between December 2012 and May 2018. The criminal offences primarily relate to contraventions of various family violence intervention orders taken out by SC as well as the applicant’s brother, HC. The applicant was also convicted of assault with a weapon and possessing a dangerous article in a public place, which arose out of an incident that occurred at Centrelink. The applicant also has convictions for contravening community corrections orders.
The applicant’s most recent conviction involved a further conviction for persistent contravention of intervention orders together with the offences of intending harm/fear and stalking another person. These offences were committed against the applicant’s former wife, SC and his children. For these most recent offences the applicant was sentenced to an aggregate term of imprisonment of 12 months with a non-parole period of five months.
The details of the applicant’s criminal record are set out in the National Police Certificate included in the Tribunal materials. The applicant has not sought to challenge his criminal record as set out in the National Police Certificate although he did dispute certain aspects of his offending which will dealt with further below.
The most recent intervention order taken out by SC, which extends to the applicant’s two children, remains in place until 2020, and prevents the applicant from making contact with SC and his children, except in accordance with the Family Law Act 1975.
Cancellation decision
As a consequence of the applicant’s most recent conviction and the imposition of a 12 month term of imprisonment, the applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (the “Act”).
On 21 May 2018 the applicant made representations seeking revocation of the mandatory cancellation within the statutory time period.
On 11 September 2019, a delegate of the respondent made the decision to not revoke the mandatory cancellation of the applicant’s visa.
On 18 September 2019 the applicant applied to the Administrative Appeals Tribunal for review of that decision, within the statutory time period.
ISSUE
The Tribunal is satisfied that the applicant does not pass the character test under section 501(6)(a) as a consequence of his substantial criminal record. Accordingly, 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 the Direction No. 79, which was made under section 499 of the Act on

20 December 2018 (the “Direction”).
CONTENTIONS AND CONSIDERATION
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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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.
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.
The Direction provides that the primary consideration 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.[1]
Primary Considerations
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
The protection of the Australian community from criminal or other serious conduct
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.
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.
In considering the risk to the Australian community, the Tribunal acknowledges that the Direction provides that it must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should be non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal is satisfied that the applicant has a significant criminal record as described above.
The applicant’s record includes convictions for multiple intervention order breaches between 2012 and 2018. The applicant conceded that he had breached the intervention orders by seeking to engage with his wife and children but he insisted that he did not intend to cause any harm. His evidence was that part of the reason for breaching the intervention orders was his overwhelming desire to see his children. The applicant told the Tribunal that he now accepts that the appropriate way to secure access to his children is through the legal processes of the Family Court which is the process he is now pursuing. The applicant expressed regret for having breached intervention orders. Under cross-examination the applicant conceded that his memory with respect to some of the offending may have been impacted by his use of methamphetamine at the time as well as the stress he was experiencing at that point in his life.
Most of the intervention orders had been put in place with the intention of preventing the applicant from contacting either his ex-wife, SC, or his children. It is reasonable to infer from the existence of those intervention orders that SC felt genuinely concerned for her safety and the safety of their children. Such an inference is further reinforced by the fact that the applicant’s ex-wife made arrangements on a number of occasions to relocate to an address unknown to the applicant. The intervention order breaches involved the applicant texting his ex-wife, telephoning her and contacting her via Facebook. A number of the intervention order breaches also involved the applicant approaching his ex-wife and their children in person on various occasions. The offences against SC also include two separate threats to kill.
One of the intervention orders was taken out by the applicant’s brother, HC, during the period in which the applicant’s children were residing with HC and his family. In his evidence HC told the Tribunal that he did this to teach his brother a lesson. Notwithstanding HC’s evidence, the Tribunal considers it reasonable to infer from the existence of the intervention order that, to some degree at least, HC felt concerned for his safety and his family’s safety at that time.
The applicant’s offending also includes an offence of assault with a weapon and possessing a dangerous article in a public place following an incident that occurred at a Centrelink office in 2016. That offence involved the applicant having a concealed screwdriver in his possession. According to the police brief, the applicant became agitated as a consequence of being told through an interpreter that he would not be able to receive emergency money. The applicant told the interpreter that he had a screwdriver. The police brief states that, as a consequence of what the applicant had said, the interpreter became concerned for their safety and reported the incident to a more senior officer. Following the report the police were called.
In the course of giving his evidence to the Tribunal the applicant disputed certain aspects of the offending underpinning his convictions. For example, the applicant denies having ever threatened to kill his ex-wife, or anyone else. The applicant conceded that he had argued with his ex-wife but denied being verbally abusive or ever having been physically violent towards her or the children.
The applicant’s evidence was that some of his intervention order breaches were a consequence of having come across his ex-wife and their children inadvertently. For example, in relation to the breach of intervention order that occurred on the platform of the Flagstaff train station in December 2016, the applicant told the Tribunal that he had inadvertently come across his ex-wife at the station following the conclusion of a court hearing. He told the Tribunal he had not intended to harm his ex-wife in any way. He specifically denied having attempted to hand his ex-wife a piece of paper as had been alleged in the police brief.
The applicant also told the Tribunal that he had been encouraged by his wife to make contact at various times when she had wanted some financial help. He told the Tribunal that on a number of occasions his former wife had given him the address she was staying at in order to facilitate contact. The applicant’s evidence was that he had breached intervention orders at times while impacted by drugs. He stated that he was now free of drugs and did not want to use drugs again as it had ruined his life during the time he was using.
The respondent rejects any suggestion that the applicant’s ex-wife was in any way complicit or responsible for the applicant’s offending. The respondent referred to the applicant’s evidence at the hearing where he stated that he regretted making contact with his ex-wife but that “she used me”. The respondent contends that the applicant’s evidence in this regard suggests that he blames his wife for his offending.
The Tribunal has not had the benefit of hearing evidence from the applicant’s ex-wife in relation to details of the applicant’s offending. The Tribunal accepts that there may have been some occasions where the applicant had inadvertently seen his wife and children and also that the applicant’s ex-wife may have facilitated contact on occasion. The applicant’s evidence was consistent with his brother’s evidence in this respect. It is also consistent with the applicant having briefly reconciled with his ex-wife in 2013. However, there is no doubt in the mind of the Tribunal that the applicant’s ex-wife had put the orders in place because of genuine concern for her safety, that the applicant breached those orders and in doing so had exacerbated her concern. The Tribunal certainly rejects any suggestion that the applicant’s ex-wife was in any way complicit in his offending. The Tribunal accepts the contention put by the respondent, that the applicant ex-wife was young and socially isolated and that it was understandable in that context that she may have sought assistance from the applicant or his wider family at various times. This in no way justifies the applicant’s offending nor does it mitigate its seriousness.
However, the Tribunal does not accept that the applicant has not taken responsibility for his offending or simply dismissed it as having been the fault of his ex-wife. The Tribunal is satisfied that the applicant has acknowledged that in contacting his wife while intervention orders were in place, even in circumstances where he was encouraged to do so by his wife or where he had come across her inadvertantly, that he has broken the law and that it was a serious and wrong thing to do.
The respondent contends that the applicant in his evidence has downplayed the seriousness of his offending and in particular the impact on his wife and children. The respondent referred to the applicant’s evidence in relation to an incident that occurred on 1 November 2017 where, according to the police brief the accused had come across his ex-wife and children and yelled out to his ex-wife “Wait, wait wait. Wait for me.” The police brief notes that the applicant’s ex-wife then panicked and ran into a neighbour’s front garden with her children. According to the brief the applicant followed them and said “I’m not going to do anything, I would just like to help you. Stop, I am your friend. Don’t run away from me. I want to help you”. According to the police brief the applicant’s daughter then started “crying and screaming”. The respondent contends that in his evidence the applicant downplayed the impact of the incident on his daughter. The Tribunal does not fully accept the respondent’s contention in this regard. Again, the Tribunal has not had the benefit of hearing directly from the applicant’s ex-wife in relation to the details and context of the incident. The Tribunal found the applicant’s evidence that his daughter had not reacted in the manner described in the brief to be compelling and persuasive and accepts it as being truthful.
The applicant conceded that he had gone to his brother’s house in contravention of the intervention order in place in March 2014. The applicant’s brother, HC, told the Tribunal that he had put the intervention order in place because he wanted to teach the applicant a lesson. The applicant conceded that his brother had put the order in place because he had wanted him to stay away because of his drug use. The police brief stated that the applicant had tried to call his brother a number of times but his brother had refused to respond. The applicant then messaged his brother. The applicant later attended his brother’s home and had a verbal argument with him. The applicant conceded that in acting in this manner he had breached the intervention order but again denied acting in a threatening manner and denied intending to cause harm to anyone.

The applicant also denied having ever intended to threaten or harm an individual in the Centrelink incident which occurred on 10 June 2015. The applicant told the Tribunal that he had said to the Centrelink officer the he had a screwdriver in his pocket but that he had not pulled it out. He denied having verbally threatened the victim in any way. He told the Tribunal that he did not know whether he had been on drugs at the time but he said that he had been stressed and embarrassed about his personal circumstances including that he had lost his family and his self-confidence.
The Tribunal is mindful that it would be inappropriate for it to look behind the applicant’s convictions. Further, it would be inappropriate for the Tribunal to seek to impugn or question the essential factual findings that underpinned those convictions.[2]
[2] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Accordingly, notwithstanding that the applicant denies certain aspects of the offending and some of the detail as set out in the police briefs on which his pleas of guilty were based, the Tribunal accepts the convictions to which the applicant pleaded guilty, as well as the essential elements underlying those convictions. In particular, the Tribunal finds that the applicant did make threats consistent with his convictions. This is consistent with the applicant’s guilty pleas as well as the various sentencing remarks included in the Tribunal materials. The Tribunal finds that the applicant’s offending constitutes serious offending. Further, it accepts that the applicant’s offending was repeated and involved a disregard for the law. In reaching this conclusion the Tribunal is mindful that the applicant’s offending also included convictions for contravening community corrections orders.
The respondent contends that the applicant’s breaches of intervention orders must be viewed through the prism of domestic violence and the serious psychological impact such offending can have on victims. The Tribunal accepts this submission. The Tribunal accepts that the applicant’s offending was sustained over an extended period of time which has had a compounding effect on his ex-wife, although it is not satisfied that the offending involves an identifiable trend of increasing seriousness. The Tribunal accepts that by being exposed to some of the breaches it is reasonable to infer that the children have also been impacted to some degree. The Tribunal reaches this conclusion acknowledging that the applicant’s offending involves no offence of actual physical harm against his ex-wife, his children or any other person. The Tribunal accepts that non-physical offending of this kind can have a very significant impact on victims, including the children who are exposed to it. The Tribunal is mindful that offences against women and children, and also offences against government officials in the performance of their jobs, must be taken very seriously. The Tribunal is satisfied that the applicant’s offending falls within these categories.
The Tribunal is satisfied that if the applicant were to commit offending of this kind again in the future it has the potential to cause very significant psychological harm to members of the Australian community, including potentially members of the applicant’s own family.
The Tribunal now turns to the issue of the risk of harm to the Australian community.
The respondent contends that the Tribunal cannot be satisfied that the applicant will not reoffend again in a similar manner on the basis of a number of factors which may be summarised as follows:
(a)the applicant has sought to substantially downplay his offending towards his ex-wife and children and has not demonstrated full insight into that offending;
(b)while accepting that the applicant has taken some steps towards rehabilitation during his time in prison the respondent contends that there is insufficient evidence that the underlying issues that contributed to the applicant’s offending have been sufficiently addressed, and that the applicant’s capacity to appropriately manage his behaviour and not reoffend has not been fully tested outside of a custodial environment;
(c)the applicant was previously imprisoned and yet continued to reoffend which reduces to some degree the deterrence argument put on behalf of the applicant; and
(d)the Tribunal cannot discount that physical violence has occurred in the past and therefore cannot discount the possibility that physical violence will occur in the future.
In addition, the respondent contends that, given the serious nature of the applicant’s prior offending, any risk of reoffending should be considered to be unacceptable. The Tribunal does not accept this specific contention. While acknowledging that the applicant’s offending must be viewed as serious for the reasons already set out, the Tribunal is not satisfied that this is a case to which Principal 6.3(4) of the Direction should apply. In reaching this conclusion the Tribunal has been mindful of the fact that the sentence that the applicant received for his most recent offence, which triggered the mandatory cancellation of the visa, was at the lowest end of sentencing outcomes capable of triggering the mandatory cancellation on the basis of a substantial criminal record and, in addition, the sentence involved a significantly shorter non-parole period.
In contrast to the respondent, counsel for the applicant submitted that it is highly unlikely that the applicant will reoffend again in a similar manner for the following reasons:
(a)the applicant has expressed genuine remorse for his offending and has stated that he is committed to not reoffending;
(b)the applicant’s offending occurred against a backdrop of the breakdown of his marriage, separation from his children, challenges he was facing transitioning to life in Australia, financial pressures, homelessness, mental health issues and drug use and that these circumstances have either changed or the applicant is now better placed to effectively manage them;
(c)the applicant has undergone effective rehabilitation during his time in custody and as a consequence he has developed good insight into his offending, the causes of his offending and the steps he needs to take to ensure that he does not reoffend again in the future;
(d)the applicant has stated a commitment to ongoing psychological treatment to manage his mental health and consultant psychologist Mr Watson-Munro has expressed optimism that the applicant will maintain such treatment;
(e)the applicant has been drug-free for between four and five years;
(f)the applicant is reconciled to the end of his marriage as demonstrated by his willing facilitation of his divorce from his ex-wife;
(g)the applicant is now committed to seeking access to his children through the legal processes of the Family Court;
(h)during his time in custody the applicant has demonstrated his commitment and capacity to not contact either his ex-wife or children other than through the processes of the Family Court noting that during this period the applicant has had access to a mobile phone and the Internet and yet has not at any time sought to contact his ex-wife or children;
(i)the applicant’s experience of being in custody is an effective deterrent against future offending;
(j)the applicant is highly incentivised not to reoffend given the significant adverse consequences reoffending would have, including the potential for him to return to custody, be removed from Australia and forced to return to Turkey where he feels a risk of harm and discrimination, and be denied the opportunity to gain access to his children;
(k)if released into the community the applicant would have the benefit of future employment as well as the ongoing support of his brother and community support networks.
Further, counsel for the applicant contends that even in circumstances where the applicant were to reoffend again in a similar manner it is relevant to the Tribunal’s assessment of the risk that he poses to the Australian community that the applicant has no offending involving actual physical harm against either his wife, his children or any other person. Written submissions on behalf of the applicant described any reoffending, if it were to occur, as most likely involving further attempts by the applicant to “communicate” with his former wife. In this context, counsel for the applicant noted that Mr Watson-Munro concluded that he considered it to be unlikely that any further offending by the applicant would involve actual physical violence given the absence of any past criminal offending of that kind.
The respondent contended that the Tribunal could not be confident that the applicant had not committed acts of physical violence in the past and therefore could not discount the possibility of him engaging in physical violence in the future.
The Tribunal accepts that the applicant’s criminal record does not include offences involving actual physical violence. The Tribunal is not satisfied that there is any reasonable basis for suggesting that there is a likelihood of physical violence occurring in the future although of course it cannot be ruled out. However, the Tribunal is not satisfied that the applicant’s record involves no violent element at all. The Tribunal is satisfied that the applicant’s criminal record amounts to a record involving domestic violence against his former wife. The Tribunal is satisfied that it is reasonable to infer from the existence of the intervention orders and the efforts made by the wife to relocate to locations not known to her husband that the applicant’s former wife felt concerned for her safety. In repeatedly breaching intervention orders that were put in place in order to provide protection to the applicant’s former wife it is reasonable to infer that the applicant’s conduct further exacerbated his former wife’s concerns for her safety. While there is evidence before the Tribunal that the applicant’s former wife gave the applicant the locations of at least some of the alternative accommodations she was residing at, which is accepted, it does not alter the essential facts underpinning the applicant’s offending, namely that intervention orders had been put in place in order to address safety concerns of the applicant’s former wife and the applicant had repeatedly breached such orders. There is no question in the mind of the Tribunal that offending of this kind has the potential to cause very significant psychological harm should it be repeated.
Counsel for the applicant submitted that the applicant’s offending at the Centrelink office should be viewed as an isolated incident which occurred in a very specific set of circumstances at a very difficult time in the applicant’s life. Counsel for the applicant told the Tribunal that it was likely the applicant was impacted by drugs at the time of his offending as well as suffering underlying issues associated with stress and anxiety. Counsel for the applicant noted that the sentence imposed on the applicant for the offence was at the lower end of the scale, it was non-custodial and involved a fine of $2500. Counsel for the applicant noted that there were no other offences of a similar kind and that given that the applicant is now drug-free and in a better position to manage his underlying stress and anxiety, the Tribunal should consider it unlikely that the applicant would engage in offending of this kind again in the future. Without seeking to resile from the Tribunal’s earlier conclusion regarding the seriousness of the applicant’s offending, the Tribunal otherwise accepts the applicant’s submission in this regard both for the reasons set out by the applicant’s counsel and also because of the broader mitigating factors reducing the level of risk of the applicant reoffending generally as are set out in further detail below.
Through the course of his evidence before the Tribunal the applicant expressed remorse for his offending, acknowledged that his breaches of intervention orders were serious breaches of the law and told the Tribunal that he was committed to ensuring that such conduct was not repeated.
The respondent contends that the Tribunal should give less weight to the applicant’s expression of remorse as a consequence of the applicant’s denial of certain aspects of his offending and what is describes as the applicant downplaying the seriousness and impact of his offending.
The Tribunal found the applicant’s denials in relation to some details of his offending to be implausible. For example, Tribunal does not accept the applicant’s evidence that he did not at any time engage in threatening behaviour towards his wife. The Tribunal rejects the applicant’s evidence in this regard because it is inconsistent with the fact the intervention orders were taken by his former wife. As previously acknowledged, the Tribunal is satisfied that the obtaining of the orders infers that the applicant was concerned for her safety. It is also inconsistent with the applicant’s evidence that he had been a substantial drug user during much of his offending and that when on drugs he can be aggressive and that his drug use was, in part, a contributing factor in him breaching a number of intervention orders.
However, there were some details in the police briefs received into evidence that the applicant challenged and which did not go to the essential elements of the offence that the Tribunal accepts as truthful. For example, the Tribunal found the applicant’s evidence regarding the Flagstaff train incident, including the fact that he had not approached his ex-wife with a piece of paper and had not intended to harm her in any way, to have been consistent with the position he had adopted at the time of his guilty plea. The Tribunal found the applicant’s evidence in this regard to be truthful. The Tribunal also accepts the applicant’s evidence that his ex-wife had, on occasion, facilitated contact with him although it rejects absolutely any suggestion that this excused the applicant’s offending in any way.
The Tribunal is mindful of the care that must be taken when considering evidence of an applicant with limited English given the difficultly they can have in understanding questions being put and in expressing answers clearly. This was a relevant factor in the applicant’s evidence. It was apparent to the Tribunal at various points through the cross-examination that there was a degree of disconnect between the questions being asked by the solicitor for the respondent and the applicant’s understanding of those questions. For example in relation to the Centrelink incident the applicant denied having threatened the victim with a screwdriver. However it was clear to the Tribunal that in answering the question in the manner that he did the applicant was focused on the fact that he had not physically removed the screwdriver and directly threatened the officer which is actually consistent with the police brief.
The Tribunal has also been mindful of the fact that the applicant has been a serious user of drugs, including marijuana and ice, over an extended period. The applicant told the Tribunal that he had difficulty recalling detail in relation to much of his offending as a consequence of his drug taking at the time. The Tribunal accepts this evidence and accepts that this may have impacted to some degree the applicant’s evidence regarding the detail of his offending.
The Tribunal is satisfied that the applicant substantially accepts his offending and to that degree has developed genuine insight into his offending and is genuinely remorseful for it. It does not accept the respondent’s contention that the applicant has sought to substantially downplay the seriousness or impact of his offending. The applicant acknowledged on a number of occasions through the course of his evidence and in his written statements that he had breached the intervention orders, that doing so was wrong, that he is extremely embarrassed by his behaviour. This conclusion is reinforced by the evidence of Mr Watson-Munro who concluded that in his view the applicant has empathy and remorse for his offending and has developed insight into his behaviour and has expressed a strong desire to not reoffend.
However, the Tribunal does accept that this conclusion must be tempered to some limited degree as a result of the applicant continuing to denying certain aspects of his offending and which the Tribunal does not accept, as described above.
There was considerable evidence before the Tribunal in relation to the very difficult personal circumstances the applicant was dealing with during the course of much of his offending. It was submitted on behalf the applicant that while the applicant’s personal circumstances should not be viewed as an excuse for his offending they are relevant in understanding the context of his offending and also in understanding the extent to which his personal circumstances have since changed.
The evidence before the Tribunal was that following the applicant’s arrival in Australia he had encountered significant difficulties in adjusting to life in Australia and, in particular, had struggled with the English language. After arriving in Australia the applicant was employed as a bricklayer with his brother’s company and developed a reputation as a hardworking and highly skilled employee.
The evidence was that the applicant’s marriage broke down in 2012 and the applicant’s life spiralled out of control. He lost access to his children, the support of his partner and broader family and his job. The applicant then experienced considerable financial difficulty and as a consequence experienced homelessness. It was at this time that the applicant began using drugs and also began having difficulty managing his mental health. There was evidence that the applicant had suffered some level of anxiety while in Turkey. However, the evidence was that his mental health issues were exacerbated by the breakdown of his marriage, with all of the difficulties that followed, as well as by his addiction to drugs. The applicant has been diagnosed with depression and anxiety. There is also some evidence that during the height of his drug use he experienced a form of drug induced psychosis and delusional disorder.
The Tribunal accepts that these underlying issues were significant contributing factors in the applicant’s offending. It accepts, as contended by the respondent, that while his drug use was a particularly significant factor in his earlier offending, given that the applicant continued to offend after ceasing drug use, other factors such as his anxiety and stress associated with his family break up and separation from his children, continued to be significant factors in his later offending.
It was submitted on behalf of the applicant that as a consequence of becoming drug-free and the efforts the applicant has undertaken to address his underlying issues the circumstances of the applicant are now substantially changed and that this mitigates significantly his risk of reoffending. In contrast, the respondent contends that the evidence that the applicant has addressed his underlying issues is underwhelming and that his capacity to appropriately manage his behaviour has not been fully tested in the community.
There was evidence before the Tribunal in relation to the considerable effort the applicant has made during his time in custody to address his underlying issues more broadly and to prepare himself for release back into the community. During his time in custody the applicant has undertaken a significant number of courses and programs to this effect. The courses have involved a variety of subject matter with a focus both on addressing the underlying adjustment and anxiety issues that are at the core of the applicant’s mental health concerns, as well as general education to better position the applicant from an employment perspective on release. In seeking to address his adjustment and anxiety issues and learning appropriate behaviours the applicant has undertaken courses such as Coping with Change Program, Managing Worry, Managing Loss and the Family Violence Information Session. In addressing issues associated with gaining access to his children and doing so appropriately, the applicant has undertaken courses such as Is your family important to you?, Prison Legal Education and Assistance Project, Family Law Program. The applicant has completed a certificate in Spoken and Written English. In addition the applicant has undertaken a number of courses designed to maximise his future employment prospects including courses such as Participate in Workplace Safety arrangements, Certificate 11 in Cleaning Operations and a Course in General Education for Adults.

There was also evidence before the Tribunal that the applicant has maintained good behaviour while in prison including that he has undertaken bricklaying, concreting and horticultural duties. The Tribunal materials include a case management file note which states:
[The applicant] started work in Horticulture on 24/4/18 and has come a long way from his commencement date. His English is getting better and is a lot easier to communicate with. [The applicant] is always ready for work and takes it on with enthusiasm. He has been a great help in the new reflection garden where he has done some bricklaying, concreting and rendering. [The applicant] is always polite and continues to work well.
In his evidence to the Tribunal Mr Watson-Munro acknowledged the very considerable effort the applicant has made to rehabilitate while in prison. He noted that as a consequence the applicant appears to have developed significant insight into the causes of his offending and his underlying issues and he also noted that making such an effort demonstrates a genuine commitment to change. Mr Watson- Munroe gave evidence that, in his view, the applicant’s underlying conditions were now less intensely present and capable of being effectively managed. However, Mr Watson-Munroe did consider it important that the applicant maintained appropriate professional support on his release. Mr Watson-Munro told the Tribunal that the applicant had made clear to him that he was committed to obtaining such support. Mr Watson-Munroe told the Tribunal he was optimistic that the applicant would remain committed to receiving such support on release.
This evidence was further reinforced by the evidence of the applicant’s brother, HC, who told the Tribunal that he had seen a dramatic change in his brother during his time in custody. He told the Tribunal that at one point his brother had broken down and cried and apologised for his past behaviour. HC told the Tribunal that this had a very significant impact on him because he’d never seen his brother behave in that way before.
The Tribunal accepts that the applicant has made very significant efforts to rehabilitate himself while in prison including by undertaking courses to address the underlying issues that gave rise to his offending and also to better prepare himself for a transition back into the community. The Tribunal is satisfied that as a consequence of the applicant’s efforts his underlying issues such as anxiety and adjustment disorder are less intensely present. The Tribunal is also satisfied that the applicant understands the importance of ongoing support in the management of his mental health and is committed to doing so if released into the community. The Tribunal considers that the likelihood of the applicant accessing ongoing support is considerably enhanced as a consequence of the support being offered by the applicant’s brother. The Tribunal views these changed circumstances as a very significant mitigating factor in the assessment of risk of the applicant reoffending.
There was evidence before the Tribunal that the applicant is now fully reconciled to the end of his relationship with his ex-wife. In his evidence to the Tribunal the applicant said that he has accepted that his relationship with his former wife is now at an end. He told the Tribunal that when his former wife had sought a divorce he had willingly facilitated that divorce as soon as possible. He told the Tribunal that he respects his former wife but accepts that their relationship is at an end. He also told Tribunal that he is currently seeing a new partner.
This evidence was further reinforced by both Mr Watson-Munro as well as the applicant’s brother, HC, both of whom confirmed that the applicant had demonstrated an acceptance of the end of the relationship with his former wife and again both of whom cited the applicant’s facilitation of the divorce as an example of that acceptance. The Tribunal is satisfied that the applicant is fully reconciled to the end of his relationship with his former wife and again acknowledges this is a significant mitigating factor against future risk of reoffending.
There was evidence before the Tribunal that the applicant now fully accepts the importance of following the legal processes of the Family Court if he is to achieve his objective of regaining access to his children. Based on this evidence, the Tribunal is satisfied that the applicant has demonstrated a genuine commitment to pursuing access to his children through legal processes of the Family Court and views this as a significant mitigating factor in the Tribunal’s assessment of risk of the applicant reoffending again in the future.
There was evidence before the Tribunal that the applicant is now completely drug-free. The applicant told the Tribunal that between around 2012 and 2015 had been a regular user of marijuana and methamphetamine or “ice”. He told the Tribunal that his drug use had caused him to be more aggressive in his behaviour and that he believed it was a significant contributing factor to his offending. The evidence before the Tribunal was that in 2015 the applicant had voluntarily checked himself into a drug rehabilitation centre. This has been facilitated with the support of his brother, HC. The applicant told the Tribunal that following his release from the facility he has not at any time engaged in further drug use. The respondent did not contest this evidence and the Tribunal accepts it as truthful. In his evidence, Mr Watson-Munro told the Tribunal that in his view given that the applicant has not engaged in drug taking for between four and five years it is reasonable to conclude that he is no longer an addicted drug user. The Tribunal accepts this evidence. In closing submissions, the respondent noted that while the applicant had completed their withdrawal stage of the drug rehabilitation course he had not completed further stages. The Tribunal accepts this submission although it notes that respondent did not strongly contest the applicant’s contention that he had been free from drugs following the completion of the withdrawal stage.
In the course of giving his evidence the applicant made a point of emphasising that during the entire time he had been in custody he had not attempted to contact his former wife or children despite having access to a mobile phone and the Internet. The applicant told the Tribunal that he had not sought to contact his former wife or children because he now understood that to gain access to his children he needed to go through the formal processes of the Family Court. The applicant’s family lawyer gave evidence that the applicant had made application to the Family Court for access to his children. The evidence was that the applicant accepted that this would need to occur on a limited basis initially but that ultimately he wanted to have access to his children in a way that would enable him to play an important role in their lives.
This evidence was further reinforced by the applicant’s brother, HC, as well as

Mr Watson-Munro who again both confirmed their awareness that the applicant had access to a mobile phone and the Internet and yet had not endeavoured in any way to attempt to contact his former wife his children. Mr Watson-Munro told the Tribunal that he considered this to be a very significant factor in assessing the future risk of the applicant reoffending again in a similar manner.
The solicitor for the respondent argued that the Tribunal should give limited weight to this evidence given that the applicant’s behaviour had not been tested outside of a custodial environment. Having heard directly from the applicant as well as other witnesses who reinforced this evidence the Tribunal is satisfied that notwithstanding the fact that it has occurred in a custodial environment, the fact that the applicant has not taken advantage of the electronic means of communication available to him to endeavour to contact his former wife or children is a very significant mitigating factor in the assessment of the risk of him doing so on release. It does however accept that the applicant’s capacity to appropriately manage his behaviour more broadly has not been fully tested outside of a custodial environment and that therefore this represents some level of risk.
In his evidence the applicant made clear his understanding of what was at stake if he were to be released back into the community and then subsequently reoffend. The applicant told the Tribunal that he understood that if he were to reoffend again in the future it was almost certain that he would be returned to custody and subsequently removed from Australia and that he would as a consequence be denied access to his children. The applicant told the Tribunal that he had found being in custody very difficult and embarrassing and that he did not want to reoffend and be returned custody at some point in the future. In addition, the applicant expressed concern at the prospect of being returned to Turkey and the potential fear he had of harm or discrimination Turkey. Again this evidence was reinforced by both Mr Watson-Munro and the applicant’s brother, HC. Mr Watson-Munro noted in his written report:
[The applicant’s] motivation to resume and maintain treatment in the community has been galvanised by his current circumstances attendant to this, his appreciation of the gravity of his position through his exposure to the harsh realities of custodial life. He is also well aware that any further transgressions of the law however minor will inevitably lead to him being removed from the country.
Counsel for the applicant submitted that these factors presented as significant motivating factors to not reoffend again in the future. The Tribunal accepts this submission. The respondent submitted that the argument that the applicant’s prison and detention experience acts as a deterrent to future offending should be tempered to some degree given that the applicant has previously been in custody and yet reoffended. The Tribunal does not accept this submission. The previous experience in custody was very brief, namely two days, and was not in a full prison environment.
In his evidence to the Tribunal the applicant’s brother, HC, told the Tribunal of his ongoing commitment to his brother including financial and emotional support to assist in his transition back into the community. HC told the Tribunal that he wanted to make the applicant a partner in his construction business. He told the Tribunal that his business had significant future opportunities but that because of limitations on his time and the difficulty he had had in securing the assistance of people he can rely on, he believed his brother was well-placed to play a very significant role in facilitating growth in the business. He told the Tribunal that he wanted to grow the business to provide future financial security for himself, the applicant and their wider families.
HC told the Tribunal that his brother was a very hard-working and diligent person who was very reliable and loyal and therefore had the potential to play a significant role in the future of the business. HC gave evidence to the Tribunal that he was committed to providing his brother with appropriate accommodation on his release and that he would do whatever was necessary to support him in attending professional appointments or any other measures required to ensure that the applicant remained healthy, free from drugs and did not reoffend. He also told the Tribunal that he was willing to support his brother in pursuing the legal processes of the Family Court in order to secure appropriate access to his children.
The Tribunal takes significant comfort from the offer of support from the applicant’s brother. The Tribunal found the applicant’s brother to be a very impressive witness. He is clearly a decent and hard-working man who has achieved considerable success here in Australia and is held in high regard by the Australian Turkish community, as well as the community more broadly. The Tribunal is satisfied that the applicant’s brother is genuinely committed to doing all he can to ensure his brother is supported in any transition back into the community and also to assist him in responsibly managing his mental health. The Tribunal accepts that the applicant’s brother is well placed to provide support of this kind.
The applicant made clear that he was committed to taking up partnership with his brother’s business and to have the benefit of his brother’s support. This evidence is accepted by the Tribunal. Again the Tribunal recognises that the applicant’s positive prospects for employment and accommodation and the stabilising influence of his brother are significant mitigating factors in the assessment future risk the applicant reoffending again in a similar manner.
In his report dated 18 May 2018 and his further report dated 11 November 2019 consultant psychologist Mr Watson-Munro assessed the risk of the applicant reoffending again in a similar manner as “trending towards low risk”. Mr Watson Munro cited a number of factors as being present that in his view mitigated the risk of the applicant reoffending including:
(a)the fact that the applicant has demonstrated empathy and remorse for his offending;
(b)the fact that the applicant has been drug-free since 2015;
(c)the exposure to the “harsh realities of custodial life” and the prospects of being deported have further galvanised the applicant’s motivation to lead a pro-social life in Australia;
(d)in the absence of drugs, the applicant’s cognition has been restored and consequently this mitigates against the possibility of highly impulsive and potentially dangerous behaviour in the future;
(e)the fact that the applicant comes from a “solid family” with good support networks with offers of accommodation and future employment;
(f)the fact that the applicant appears to be reconciled to the end of his relationship with his former wife and now remains committed to seeking access to his children through appropriate legal processes associated with the Family Court;
(g)the strong incentives the applicant has not to reoffend including avoiding a return to custody, deportation and a denial of access to his children;
(h)the fact that the applicant has been actively involved in undertaking programs both within the community and while in custody to assist with his rehabilitation; and
(i)the fact that the applicant has developed insight into his behaviour and has expressed a strong desire to not reoffend.
The Tribunal accepts all of the mitigating factors identified above in respect of the risk of the applicant reoffending again in a similar manner. In particular, the Tribunal accepts that the applicant has made very significant efforts in his rehabilitation as a consequence of courses and programs undertaken to better understand and address the underlying issues that contributed to his offending. The Tribunal accepts as genuine the applicant’s stated commitment to not reoffend and his determination to pursue the legal processes through the Family Court in order to gain access to his children. On the basis of all of the mitigating factors identified above the Tribunal is satisfied that the risk of the applicant reoffending again in a similar manner is “trending towards low”.
However, notwithstanding these significant mitigating factors the Tribunal cannot be satisfied that the risk of the applicant reoffending again in a similar manner is so low as to be minimal or trivial. This is particularly so given Mr Watson-Munro’s view that the applicant requires ongoing counselling in respect of his mental health concerns. The Tribunal accepts Mr Watson Munro’s conclusion in this respect.
In undertaking this assessment, the Tribunal has been particularly mindful of paragraph 6.3 (1) of the Direction which states:
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.
In that context, given that the risk of reoffending is not minimal or trivial and having regard to the serious nature of the applicant’s prior offending and the potential impact further offending could cause, this consideration weighs significantly against a revocation of the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
The applicant has two children from his previous marriage to SC, a daughter IC aged 13 and a son BC aged 9. Both IC and BC reside with the applicant’s former wife. As has been referenced elsewhere in these reasons, the applicant separated from his former wife in 2012 and SC then obtained several intervention orders between 2013 and 2017. The current intervention order is in place until 2020. As a consequence the applicant has had limited contact with his children since 2012.
The applicant’s evidence to the Tribunal was that he loves his children and that he is committed to resuming a parental role in their lives. While acknowledging that it was no excuse for his offending behaviour the applicant told the Tribunal that his motivation for seeking contact with his former wife was his strong desire for contact with his children. When questioned in relation to the children the applicant became very animated and enthusiastically described in some detail each of them and the special memories that he retains of his time spent with them prior to his offending. The applicant told the Tribunal that he wanted to start up a business partnership with his brother to earn money and provide financially for his children.
The applicant’s evidence was that he remains committed to pursuing lawful means through the Family Court to secure access to the children. He acknowledges that, at least initially, his access is likely to be limited but it is his hope that ultimately he will be able to secure more extended access and to resume a parental role with respect to the children. This evidence was reinforced by the evidence of the applicant’s family lawyer Ms Ozer. Ms Ozer told the Tribunal that in her view the likelihood of the applicant securing some form of access to his children through the Family Court proceedings is extremely high. She stated that in her opinion it was greater than 95%. This was not disputed by the respondent and the Tribunal accepts this evidence.
The applicant’s brother, HC, gave evidence of the applicant’s strong devotion to his children and his desire to resume a parental role in the lives. HC told the Tribunal that he considered it to be highly unlikely that the applicant would be able to maintain a relationship with his children in the event that he was forced to return to Turkey given the nature of the current intervention order in place and the difficulty in the applicant pursuing any Family Court process remotely from Turkey. The Tribunal accepts this.
Having heard from the applicant directly, as well as other witnesses at the hearing, the Tribunal is satisfied that the applicant has a genuine love for his children and that he is committed to resuming a parental type role in their lives in the future and providing for them financially and emotionally. The Tribunal is satisfied that the applicant remains committed to pursuing access to his children but doing so through the lawful processes of the Family Court.
There was no evidence before the Tribunal as to the views of the children themselves in relation to either the applicant’s desire to secure access to them or in relation to the decision before the Tribunal.
In assessing this consideration the Tribunal is mindful of the fact that the applicant’s prior offending and the nature of his previous relationship with his former wife is likely to have had a negative impact on them to some degree. The Tribunal is also mindful that the applicant has had limited exposure to the children for some time which will have also impacted on their relationship. However, the children are still relatively young and the Tribunal is satisfied that there is a genuine potential for the applicant to play a positive role in their lives before they turn 18. The Tribunal recognises that this will depend in part on the views of the applicant’s ex-wife, the children themselves, whether the intervention order is extended beyond 2020 and also the outcome of the Family Court process.

The Tribunal is satisfied that in the event the visa cancelation is not revoked and the applicant is required to leave Australia, the potential for the applicant to resume a substantial role in his children’s lives before they reach adulthood is extremely limited. This conclusion is reached allowing for the potential for the applicant to communicate with his children by phone or internet if the current intervention order is not extended. The Tribunal is satisfied that such an outcome would have a detrimental impact on each of his children.
There was also evidence before the Tribunal with respect to the positive role the applicant’s brother, HC, and his children, the applicant’s nephews, could potentially have in the lives of the applicant’s children. The applicant’s nephews are CC aged 13, EC and OC both aged nine.
The evidence of HC in this regard was particularly impressive. It was very clear to the Tribunal that HC is a loving father and brother and a member of a strong and loving family.
HC told the Tribunal of the strong connection he personally felt for the applicant’s two children and his desire to play a positive role in their lives in the future. He told the Tribunal that he was committed to providing financial and emotional support to the applicant’s children. He told the Tribunal that he wanted to provide the applicant’s children with the types of opportunities that his children have had access to, including facilitating enhanced education, music and sporting activities and also in developing a greater understanding of their cultural identity and participation in the wider Australian Turkish community.
HC told Tribunal that at present he was not able to have access to the applicant’s children because the applicant’s former wife had made it clear that she did not want her children to maintain contact with the applicant’s wider family. He also told the Tribunal that in the event that the applicant was unsuccessful in his current application and forced to return to Turkey that, given the current intervention order, he considered it to be highly unlikely that he would be able to resume a relationship with the applicant’s children at any time in the future.
HC also told the Tribunal of the relationship between his children and the applicant’s children and the fact that they too would like to resume a relationship with their cousins.
HC also told the Tribunal that the applicant’s children had been denied contact with his parents, the children’s grandparents, because of the applicant’s ex-wife’s wish to not have contact with their broader family. HC told the Tribunal that he was concerned that if the visa cancellation is not revoked and the applicant is not able to secure access to his children that the children would likely also be denied access to their grandparents. HC told the Tribunal that he believed that this would be to the detriment of the applicant’s children. HC told the Tribunal that he was concerned that the impact of the applicant being forced to return to Turkey would be significant for both the applicant’s children and his children. He told the Tribunal that outside of the two immediate families both sets of children have no other wider family members present in Australia. He expressed his deep concern at the possibility that his children would be effectively denied an opportunity to develop a strong relationship with their only cousins here in Australia and vice versa. The Tribunal accepts this evidence.
The Tribunal is satisfied that the applicant’s brother and his children as well as his parents all have the potential to play a very significant and positive role in the applicant’s children’s lives. The Tribunal accepts that if the visa cancellation is not revoked it is highly likely that the applicant’s brother, his children and parents will not be able to resume a relationship with the applicant’s children. The Tribunal is satisfied that such an outcome would be to the financial and emotional detriment of the applicant’s children.
The applicant also told the Tribunal of his strong love and affection towards his nephews CC, EC and OC. He told the Tribunal he had spent significant time with them prior to going into custody including caring for them and playing games with them and taking them to the playground. The applicant told the Tribunal that he wanted to maintain an ongoing relationship with his nephews and play a positive role in their lives. The evidence was that if the applicant was forced to return to Turkey it would be difficult for him to maximise his relationship with his nephews. There was evidence before the Tribunal in relation to the applicant’s nephews’ ongoing communication with the applicant while he has been in custody via the telephone and that they had frequently asked HC when the applicant was “coming home”. The applicant’s materials included a statement from CC which reads as follows:
My name is [CC], I am 13 years old and also I have two brothers that never stop annoying me. My brothers are twins nine years old. I only have one auntie which is not in Australia and one uncle and is in prison for two years and never spent time with my uncle. I miss him so much that I can see him in my dreams playing football and soccer along with my family in a field. I know my uncle made mistakes in the past but I know he loves his kids and nephew a lot and couldn’t see them from a long time along with my dad, mum, brothers and me. My mum is cousins doesn’t need us talking to my cousins and blocked me on Instagram from talking “how are you and how stuff going” and I’m certain that my cousins miss us to. If you are going to give my uncle a chance and I know my dad and uncle is going to win other court to see my cousins as well.
I just need my whole family and my cousin spending time with me, dad, mum, and brothers like walking my dog, taking them to my swimming classes.
Please Judge. Give my uncle another chance.
I love my uncle.
The Tribunal is satisfied that a decision not to revoke the cancellation is likely to limit the capacity for the applicant to maintain a relationship with his nephews. The Tribunal is satisfied that this is to their detriment. The Tribunal forms this view acknowledging the potential for the applicant to maintain contact with his nephews via the phone or internet should he have to relocate to Turkey. The Tribunal is satisfied that the applicant’s offending has had no lasting impact on his nephews given that there was no evidence of them having been directly exposed to his behaviour.
For these reasons, Tribunal finds that it is in the best interests of each of IC, BC, CC, EC, and OC for the applicant’s mandatory visa cancellation to be revoked. The Tribunal is satisfied that this is particularly so in the case of the applicant’s children.
Accordingly, the best interests of minor children in Australia consideration weighs heavily in favour of revoking the mandatory cancellation of the applicant’s visa.
Expectations of the Australian community
13.3 (1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal acknowledges the frequently cited decision in YNQY v Minister for Immigration and Border Protection[3] as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs[4]. What can be gleaned from the case law is that in applying the expectations of the Australian community consideration:
(a)It is not for the Tribunal to make an assessment for itself as to the expectations of the Australian community in any particular case but rather the task of the Tribunal is to have due regard to the Government’s stated views regarding the expectations of the Australian community as set out in the relevant clause in the Direction.
(b)In determining what the Government’s stated views are, regard should be had to the words set out in paragraph 13.3(1) itself (or its equivalent provision in paragraph 11.3(1) or 9.3(1) whichever is relevant to the case before the Tribunal).
(c)In determining the weight to be given to the consideration the Tribunal must be mindful of the fact that it is a primary consideration. The Tribunal should also have regard to the nature of the offences that have been committed, the risk the applicant poses to the Australian community and other factors relevant to any character concerns that exist with respect to the applicant.
(d)Ultimately, the weight to be given to the consideration and whether it should outweigh other relevant considerations is a matter for the decision-maker to determine in the exercise of their discretion. In this sense, while generally the consideration is likely to weigh against the applicant, in some circumstances it may not be “decisively so” and there may well be circumstances that could exist where the consideration does not weigh against the applicant at all.
[3] [2017] FCA 1466.
[4] [2019] FCAFC 185
In applying this consideration the Tribunal has had due regard to:
(a)the Government’s stated views in relation to the expectations of the Australian community as set out in paragraph 13.3(1) of the Direction;
(b)the principle set out in paragraph 6.3(1) referred to above;
(c)the principle set out in paragraph 6.3(3) which provides that:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia; and
(d)the principle set out in paragraph 6.3(5) which provides that:
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 high 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.
The Tribunal has also had regard to other factors relevant to its assessment of the consideration and notes in particular:
(a)the Tribunal’s findings above in relation to the applicant’s remorse and his stated determination not to reoffend again in the future;
(b)the Tribunal’s findings in respect of factors that mitigate the risk of the applicant reoffending as set out earlier in these reasons although noting the Tribunal’s finding that the risk of the applicant reoffending is not minimal or trivial;
(c)the statements in support of the otherwise good character of the applicant from his brother and the wider Australian Turkish community.
However, notwithstanding these considerations, given the serious nature of the applicant’s offending and the residual risk of him reoffending, the fact that the applicant’s offending has been repeated over a number of years and involved offending against women and children, the Tribunal finds that the Australian community expectations consideration weighs significantly against revoking the mandatory cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
In the materials before the Tribunal the applicant has made various claims of harm should he be forced to return to Turkey. The applicant’s various written submission claim that the nature of the harm the applicant would be exposed to may trigger Australia’s international non-refoulement obligations.
The relevant provisions of the Direction relating to international non-refoulement obligations are set out in paragraph 14.1 of the Direction. Paragraph 14.1(1) describes a non-refoulement obligation as “an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm”. The paragraph goes on to state that:
Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Paragraph 14.1(4) states that:
Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non--refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
The Tribunal accepts that it must consider the claims of harm raised by the applicant for the purpose of determining whether there is “another reason” why the cancellation should be revoked.[5] This extends to claims that may not trigger Australia’s international non-refoulement obligations.[6]
[5] Minister for Home Affairs v Omar [2019] FCAFC 188.
[6] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456.
It is accepted by the Tribunal that the applicant has the right to apply for a protection visa in respect of his claims of harm should he wish to do so. There was no suggestion that he had in fact made such an application.
No contention was put to the Tribunal that there exists any practical impediment that would prevent the applicant from being returned to Turkey if the decision under review is affirmed and he was required to relocate to Turkey.
The applicant’s claims of harm if forced to return to Turkey may be summarised as follows:
(a)the applicant would be subjected to harm due to being a member of the Alevi Kurdish minority which could amount to serious physical harm and even potentially life-threatening harm. This could also extend to arbitrary arrest and detention or other forms of legal harassment;
(b)the applicant would be subjected to pressure from local Kurdish Workers’ Party (PKK) members within his community to take up arms with the PKK in their ongoing conflict with the Turkish government and in the event that he refused potential be exposed to a risk of significant harm, including life threatening harm;
(c)the applicant would be subjected to harm, which could amount to serious physical harm or even potentially life-threatening harm, as a consequence of his refusal to join the PKK when he last visited Turkey as he would be perceived to be a traitor by having refused to fight alongside them in their conflict with the Turkish Government:
(d)the applicant would be denied the opportunity to freely practice his religion as an Alevi Kurd due to persecution and other discriminatory practices against the Alevi Kurds in Turkey;
(e)the applicant may be impeded from involuntary internal relocation if seeking to do so to avoid harm or discrimination as a consequence of his membership of the Alevi Kurdish minority;
(f)the applicant would be subjected to discrimination in obtaining employment opportunities in Turkey, as well as more broadly, due to being a member of the Alevi Kurdish minority;
(g)the applicant would be subjected to potential harm due to the general security situation in Turkey;
(h)the applicant would be exposed to potential abuse by local village guards who are in “irregular force of approximately 45,000 personnel recruited from mostly Kurdish members of villages… to provide security against the PKK” due to their poor training and oversight.
The Department of Foreign Affairs and Trade (DFAT) Country Report dated 9 October 2018 included in the applicant’s materials before the Tribunal included a number of observations relevant to the applicant’s claims as an Alevi Kurd including:
(a)Turkey continues to face a range of internal and external security challenges generally including as a consequence of the resumed conflict between government forces and the PKK, as well as from a broader terrorist threat connected with hostilities involving Syria and Iraq;
(b)Since the collapse of the ceasefire between the government and the PKK in 2015, security forces have conducted a number of operations in south-eastern provinces. The International Crisis Group (ICG) reported that as at the end of 2018, conflict since the end of the ceasefire had caused an estimated 4,114 deaths, including PKK combatants, security force members and non-combatants;
(c)In early 2018 there were reports that Turkish forces had killed up to 300 civilians in the Kurdish city of Afrin in Syria close to the Turkish border; Turkish armed forces have also conducted cross-border operations against PKK targets in northern Iraq;
(d)During the State of Emergency following the attempted coup in 2016, a number of statutory decrees were adopted which bypassed normal legal processes which gave the state authorities significant powers to take action against perceived political opponents which include members of the PKK;
(e)In recent decades approximately half of Turkey’s Kurdish population have migrated to Western Turkey in order to avoid conflict in the south-eastern part of the country as well as to secure better economic opportunities;
(f)Substantial political divisions exist within the Kurdish population with analysts reporting that around half are sympathetic to the PKK’s goals while the remainder are conservative leaning and sceptical of the PKK’s ideology and methods;
(g)Historically there have been a range of government policies that suppress public expression of minority identity including Kurdish identities. Those policies include bans on public use of the Kurdish language, bans on Kurdish place names, and a prohibition on public support for Kurdish political parties, particularly those perceived to be separatist in nature. These policies have fuelled conflict between the government and the PKK. The current government has gradually wound back restrictions on the expression of minority identity and most are now officially revoked. the Kurdish language is now commonly used throughout Turkey and some Kurdish place names have now been reinstated although there have been more recent reports of Kurdish place names and other monuments being removed;
(h)International and domestic observers have reported that the government’s response to both the resumption of conflict between the government and the PKK and to the July 2016 coup attempt have significantly affected the rights and freedoms of Kurds in Turkey. Office of the High Commissioner for Human Rights reports in 2017 and 2018 detailed extensive human rights violations arising from the conflict between the government and the PKK including killings, torture, violence against women, excessive use of force, destruction of housing and cultural heritage, prevention of access to emergency medical care, safe water and livelihoods, and severe restrictions on freedom of expression. At the peak of the conflict in 2016, state security forces introduced strictly enforced curfews and movement restrictions in 47 districts in 11 provinces, many of which remain in place. In February 2018, the government announced a new series of curfews in several villages and towns of the Diyabakir province;
(i)The conflict led to significant internal displacement with reports that between July 2015 and July 2017 approximately 100,000 people lost their homes and up to 400,000 people were reportedly moved to neighbouring suburbs, towns and villages or to other regions within Turkey;
(j)In areas where curfews were enforced, large numbers of people were forcibly displaced and prevented from returning to their homes until after the conflict had subsided. Many have still not been able to return to their homes. DFAT assesses that Kurdish civilians living in conflict affected areas in the south east face a high risk of violence and discrimination from both government forces and the PKK;
(k)The government has used state of emergency powers to target a wide range of Kurdish individuals accused of supporting the PKK;
(l)Kurds in Western Turkey do not face the same risk of conflict related violence as those in the south-east. Human rights observers report that some Kurds in Western Turkey are reluctant to disclose their Kurdish identity, including through speaking Kurdish in public for fear of provoking a violent response;
(m)No laws prevent Kurds from obtaining public or private sector employment or from participating in public life or from accessing government health and education services in the same fashion as other Turkey citizens. The ability of Kurdish citizens to do so in practice, however, depends considerably on individual circumstances and geographic location. Kurds have traditionally been underrepresented in senior positions. Some Kurds employed in the public sector have reported a reluctance to reveal their Kurdish identity for fear of negatively affecting their prospects for promotion. DFAT assesses that Kurds are more likely to obtain public sector employment at the subnational level, particularly in areas where they are in the majority;
(n)DFAT assesses that Kurds in Turkey face both official and societal discrimination based on their ethnicity. The extent and form of this discrimination depends on geographical location and personal circumstances. Those residing in the south-east, Kurdish women and those active (or perceived to be active) in Kurdish political or civil society organisations are at a higher risk;
(o)No laws prevent the Alevi’s obtaining public sector employment or serving in the military, but no Alevi’s currently serve in senior government positions. Some Alevi’s claim to have been denied promotion in the public sector due to their religious identity;
(p)Although the Alevi community suffered significant societal violence in the past, DFAT is not aware of any instances of significant societal violence against the community in recent years. Like other religious minorities, Alevi’s have occasionally been the subject of negative portrayal in state media, and to low level societal threats of violence. DFAT assesses that Alevi’s face a low risk of official and societal discrimination. They do not enjoy the benefits of official recognition as a separate religion, they are generally able to worship freely and participate in most areas of Turkish life;
(q)Political parties representing Kurdish interests have traditionally faced strong opposition from the Turkish state;
(r)There are reports that the authorities have continued to target pro-Kurdish activists in the post-election period in the context of anti-terrorist raids against the PKK. A state run media agency reported on 11 September 2018 that 180 people associated with pro-Kurdish political activities have been remanded in custody across Turkey since the election; some human rights groups have reported that pro-Kurdish activists who made comments on social media that authorities found offensive were now likely to be identified as PKK supporters and faced much harsher punishments than in the past: instead of 1 to 2 months prison, activists now faced years long charges on broad terror offences, and family members were also likely to come under official scrutiny;
(s)DFAT assesses that pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment, and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-Nationalists supporters. The level of risk is the same for both high-level politicians and low-level activists and applies nationwide;
(t)There have been reports of unlawful or extrajudicial killings in Turkey connected to the conflict between government security forces in the PKK in the South East. The ICG reported that, between 20 July 2015 and the end of September 2018, clashes between security forces and the PKK had killed 461 civilians and 223 “youth of unknown affiliation”;
(u)In September 2017, the UN Working Group on Enforced and Involuntary Disappearance expressed concern over the resurgence of clashes in south-east Turkey between the PKK and government security forces and associated enforced disappearances;
(v)Article 23 of the Turkish Constitution guarantees the right to freedom of residence and movement. It allows the right to be restricted by law, however, for the purpose of promoting social and economic development, ensuring sound and orderly urban growth, protecting public property, investigating and prosecuting offences, and preventing offences. Turkish citizens, including members of ethnic and religious minorities, can and do relocate for a variety of reasons: large numbers of Kurds and Alevi’s have migrated from the south-east to western Turkey in search of employment and to escape conflict.

The Tribunal accepts that the applicant is both Alevi and a Kurd and that as such he would be a member of both a minority ethnic group and a minority religious group in Turkey.
The Tribunal accepts that historically there has been a level of general state sanctioned discrimination against the Kurdish minority in Turkey. This discrimination has involved the suppression of the public expression of Kurdish identity; the use of Kurdish languages; attention and prosecution; the right to political representation; and public sector employment. Historically this has extended to extrajudicial killings, torture and enforced disappearances. Based on the information set out in the Country Report, the Tribunal is satisfied that the current government has wound back, to some degree, previous restrictions on the expression of Kurdish identity in Turkey.
The Tribunal accepts that state sanctioned discrimination against the Kurdish minority has been elevated somewhat more recently as a consequence of the resumed conflict between the government and the PKK in recent years. The Tribunal accepts reports of extensive human rights violations against the Kurdish minority in Turkey as a consequence of the increased conflict between the government and the PKK including killings, torture, violence against women, excessive use of force, destruction of housing and cultural heritage, prevention of access to emergency medical care, safe water and livelihoods, and severe restrictions on freedom of expression.
There was limited evidence before the Tribunal in relation to the intensity of the conflict between government and PKK forces in Adana Province. However, it was clear from the applicant’s evidence that there were active PKK militants in the area when he previously lived in Turkey.
There was no evidence before the Tribunal that that the applicant was actively involved in political activities during the time he previously lived in Turkey. The applicant told the Tribunal that he was approached by youth militants associated with the PKK to participate in their militant activities but he refused to do so. The applicant told the Tribunal that while he came under significant pressure in that context he still did not participate in such activities. He told the Tribunal that some people who resisted such pressures were known to have “disappeared” and he continues to be concerned that if he were to return to Turkey that he would once again come under pressure to be involved in such activities and should he resist that he may be exposed to a similar fate.
The applicant told the Tribunal that while he felt some level of concern for his safety at the hands of government officials as a consequence of being a member of the Alevi Kurdish minority he felt considerably more concerned for his safety at the hands of youth militants associated with the PKK. His evidence was that while he had not been directly threatened in relation his life, other knows of others who have “disappeared” and he is genuinely scared of something similar happening to him. The solicitor for the respondent questioned how the applicant’s concern for his safety reconciles with the fact that his parents continue to live in the area. The applicant told the Tribunal that the militants pick on more vulnerable people but not the elderly.
The applicant told the Tribunal that as a member of the Alevi Kurdish minority he was subject to significant discrimination from an employment perspective and that as a consequence it was extremely difficult to obtain employment, at least well-paying employment. The applicant told the Tribunal that the situation had worsened in more recent years. The applicant told the Tribunal that he was particularly vulnerable to discrimination of this kind given his accent which readily identified him as a person of Kurdish ethnicity. This evidence was further reinforced through the oral evidence of the applicant’s brother, as well as other witnesses who are members of the Australian Turkish community.
The applicant gave evidence to the Tribunal in relation to discrimination he suffered in the practice of his religion as in the Alevi. He told the Tribunal that he was not free to congregate in a location where he would typically practice his religion. He described this as being in stark contrast to his experience in Australia where he felt free to practice his religion. The respondent contended that in giving his evidence the applicant had been describing the experience of Alevi’s generally and not personally. The Tribunal rejects this contention.
The applicant’s materials also included references to deterioration of the security situation in Turkey generally since 2014. The materials noted that DFAT’s smart traveller wants people to exercise a “high degree of caution” should they travel to Turkey. Further, it advises that people should “reconsider” the need to travel to Ankara and Istanbul because of the high threat of terrorist attacks. Further, it advises people to “reconsider travel to all areas within the South-eastern provinces… Due to the unpredictable security situation”.
On the basis of the evidence before it the Tribunal is satisfied the applicant is a member of the Alevi Kurdish minority and that as such if the applicant were to return to Turkey:
(a)there is a real chance the applicant would be subjected to state sanctioned discrimination which could extend to attempts to suppress his Kurdish identity or suppress Kurdish identity generally or other limitations on his rights as a Turkish citizen including severe restrictions on freedom of expression and freedom of movement. This could also extend to arbitrary arrest and detention or other forms of legal harassment;
(b)there is a real chance the applicant would be exposed to state sanctioned harm including potentially life-threatening harm, torture, excessive use of force, destruction of housing and prevention of access to emergency medical care and safe water; the Tribunal is satisfied that the risk of harm of this nature is heavily dependent on the specific circumstances and location within Turkey. The Tribunal is satisfied that the risk of this type of harm would be less should the applicant relocate to his home city in Aldana Province than if he were to relocate to a higher conflict zone in south-east Turkey. The risk would be less still if the applicant were to relocate into the western part of Turkey. In assessing this risk the Tribunal has been mindful of the applicant’s evidence where he stated that he is less concerned about harm from the Turkish Government and more concerned about harm at the hands of local youth militants in his home Province;
(c)there is a real chance the applicant would be subjected to serious physical harm and potentially life-threatening harm by members from the local youth militants associated with the PKK in retribution for his refusal to take up arms with the PKK when he last visited Turkey. The Tribunal acknowledges the respondent’s submission that the risk of this type of harm should be considered to be less given that the applicant, having refused previously to take up arms with the PKK, continued to live in his home city for an extended period of time without any serious consequence. However, the Tribunal found the applicant’s evidence in relation to this risk being ongoing to be consistent and compelling and is satisfied that it was truthful;
(d)there is a real chance the applicant would be subjected to pressure from local youth militants associated with the PKK to take up arms with the PKK again in the future, and should he refuse to do so, be subjected to serious physical harm and potentially life-threatening harm from such groups in retribution for such refusal. The Tribunal recognises that this risk is particularly heightened in certain parts of Turkey including the area surrounding the applicant’s home town. The Tribunal is also mindful of the fact that given the volatility in relation to the conflict between the Turkish government and the PKK, a scenario where the applicant again comes under significant pressure to take up arms with the PKK is not mere speculation but rather has a real and substantive basis;
(e)there is a real chance the applicant would be subjected to discrimination in the practice of his religion in Adana Province. In reaching this conclusion the Tribunal notes that the applicant’s evidence was somewhat in conflict with the evidence in the DFAT Country Report in relation to this issue which suggested that the Alevi religion was now freely practised across Turkey. The Tribunal accepts that the level of discrimination in this respect may vary significantly depending on the location within the country;
(f)there is a real chance the applicant would be subjected to discrimination in seeking to obtain employment opportunities in Turkey; and
(g)there is a real chance the applicant would be subjected to potential harm due to the general security situation in Turkey.
The Tribunal is otherwise not satisfied that there is a reasonable basis for the applicant’s other stated claims of harm.
The Tribunal acknowledges the potential for the applicant to be exposed to harm as a consequence of the general deterioration in the security situation in Turkey since 2014. The Tribunal is not satisfied that concerns of that kind give rise to international non-refoulement obligations as they are exposures that apply to all citizens of Turkey.
The Tribunal acknowledges that the applicant is likely to suffer discrimination in seeking employment in Turkey but is not satisfied that this rises to a level of harm that would engage Australia’s non-refoulement obligations.
The Tribunal is otherwise satisfied that on the basis of the Tribunal’s findings with respect to the applicant’s claims of harm set out above, Australia’s non-refoulement obligations are engaged in respect of the applicant. In particular, the Tribunal is satisfied that the applicant’s claims of harm extend to harm covered by the Refugees Convention and also, potentially, the CAT and the ICCPR.
The Tribunal is mindful of the consequences of a decision not to revoke the mandatory cancellation of the applicant’s visa in this context including that:
(a)the applicant would be subject to removal from Australia as soon as it is reasonably practicable for that to occur and consequently could be exposed to the risk of harm identified in breach of Australia’s international non-refoulement obligations;
(b)it would be open to the Minister to consider alternative management options such as the possibility of granting a visa under section 195A of the Act; and
(c)the applicant would not be subject to immediate removal from Australia if he applied for and was granted a protection visa but that should he make such an application he would spend time in immigration detention pending the outcome of the application.
Based on the conclusions set out above, the Tribunal is satisfied that this consideration weighs heavily in favour of revocation of the mandatory cancellation of the applicant’s visa.
The Tribunal has also considered the applicant’s claims of harm that do not give rise to non-refoulement obligations in the consideration dealing with impediments on return. That consideration is dealt with further below.
Strength, nature and duration of ties
In assessing this consideration the Tribunal has had regard to the principle set out in paragraph 6.3 (5) of the Direction which states that:
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.
The Tribunal has also had regard to paragraph 14.2 (1) (i) which states that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) 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, including the effect of non-revocation on the non-citizens immediate family in Australia (where those family members are Australian citizens, permanent residents, or people have a right to remain in Australia indefinitely).
The applicant has resided in Australia for approximately 11 years having arrived here in 2008 as a 27-year-old. The applicant has spent very little time out of Australia since arriving here, having travelled overseas only once in 2016 for a brief period.
The applicant has family ties to Australia including his brother, HC, who is an Australian citizen and resides here. In addition, the applicant’s children and nephews also reside in Australia.
Notwithstanding the fact that the applicant’s brother had previously taken out an intervention order against the applicant, it was clear from HC’s evidence as well as the applicant’s evidence that they are now fully reconciled and have a strong relationship with each other. As previously stated, HC was a particularly impressive witness. HC told the Tribunal of his love for his brother and noted the importance of the relationship given that the applicant is his only brother and his only immediate family member living in Australia other than his wife and children. HC told the Tribunal that he fully supports his brother and is willing to do everything necessary to assist him in his transition back into the community. More specifically, HC told the Tribunal that he is willing to facilitate accommodation for the applicant, provide financial support and facilitate the applicant’s attendance at professional support appointments.
HC also told the Tribunal of his intention to offer the applicant the opportunity to join in his business as a partner. He told the Tribunal of the applicant’s strong work ethic and his reliability and loyalty as a worker and that he considered the role the applicant could play in his business to be particularly important in securing future growth opportunities for his business. HC told the Tribunal that he found it very difficult to secure the kind of help the applicant was able to offer his business and that if the applicant was not available to work in his business he believed his business growth opportunities would be constrained. The applicant gave evidence to the Tribunal of his intention to take up his brother’s offer of partnership. Both the applicant and HC gave evidence of the applicant’s prior work experience as a bricklayer and concreter including having worked previously in his brother’s business.
The Tribunal is satisfied that a decision not to revoke the mandatory cancellation of the applicant’s visa would have a detrimental effect on the applicant’s brother and would likely cause him significant emotional and practical hardship. The Tribunal also finds that such a decision would have a detrimental impact on HC’s business and future growth opportunities in that business.
There was evidence from a number of other witnesses who also attested to the applicant’s strong work ethic and the positive role he has played through his work activities while in Australia. The Tribunal accepts that the applicant has made a positive contribution through his work activities, however this is tempered by the fact that he spent a considerable period of his time while in Australia either unemployed or in custody and also by virtue of the negative impact of his offending.
There was also some limited evidence of the applicant having made a positive contribution as a member of the Australian Turkish community which the Tribunal accepts, although it was not expanded on in any detail in the oral evidence at the hearing itself.
There was also some limited evidence before the Tribunal in relation to the applicant’s new partner. The applicant told the Tribunal that he believes a decision not to revoke the mandatory cancellation of his visa would be “bad” for her and that he did not expect she would relocate to Turkey with him. The Tribunal accepts that it is not likely that the applicant’s new partner would travel back to Turkey with him. The Tribunal accepts that such a decision is likely to have a detrimental effect on the applicant’s relationship with his new partner and on the applicant’s partner herself given the likelihood that it would make the further development of that relationship very difficult in the event that she did not relocate back to Turkey with him.
During his time in Australia the applicant has also developed social ties through his employment activities and also through the Australian Turkish community. There were a significant number of letters and other references from friends and community members in support of the applicant included in the materials before the Tribunal. The Tribunal accepts that a decision not to revoke the cancellation of the visa would cause disappointment for friends and former colleagues of the applicant due to him relocating back to Turkey.
For these reasons, and in particular due to the impact on the applicant’s brother, the Tribunal finds that the strength, nature and duration of ties consideration weighs significantly in favour of revoking the mandatory cancellation of the applicant’s visa.
Impact on Australian business interests
Counsel for the applicant submitted that a decision not to revoke the mandatory cancellation of the applicant’s visa would have an adverse impact on Australian business interests in the sense that it would impact on the potential growth opportunities for the brother’s business. As acknowledged above, the Tribunal accepts the impact such a decision would have on the applicant’s brother’s business but it does not accept that it is likely to compromise in any significant way the delivery of the major project of the delivery of important service to Australia more broadly. Accordingly, the Tribunal gives this consideration no weight.
Impact on victims
There was no evidence before the Tribunal in relation to the impact the Tribunal’s decision would have on the applicant’s former wife, who was the victim of majority of his offending. In addition, while the applicant’s brother had previously taken out an intervention order against the applicant, and was the subject of a breach of that order, they are now fully reconciled. The applicant’s brother is fully supportive of the applicant in this matter. The Tribunal has addressed the impact a decision would have on the applicant’s own children, who the Tribunal accepts were impacted to some degree, earlier in these reasons. Accordingly, this consideration weighs neither for nor against the applicant.
Extent of impediments if removed
It was accepted by both parties that the applicant is not likely to suffer any substantial language or cultural barriers generally if forced to return to Turkey given that he has lived in the country for a substantial portion of his life and continues to have family there, including his parents and sister.
The applicant’s parents remain married. His mother is 70 years of age and his father is 71 years of age. His sister continues to reside in Turkey although spends some time in Dubai. She is 34 years of age.
The applicant has a reasonable level of education having completed his secondary schooling through to Year 12 in Turkey. He also has significant work experience including some prior work experience in Turkey.
The applicant made submissions to the Tribunal in respect of impediments he is likely to suffer as a consequence of mental health issues. The Tribunal has been mindful of the fact that the applicant suffers from ongoing mental health concerns. The Tribunal is satisfied that the applicant is likely to have access to health care commensurate with that generally available to other citizens of Turkey although it accepts that the quality may be less than the applicant would otherwise have access to in Australia, particularly in respect of mental health. The Tribunal accepts that there still exists stigma associated with mental health conditions in Turkey as was acknowledged in the DFAT Country Report.

As referred to earlier on in these reasons, the applicant has made various claims of fear of harm if returned to Turkey. The Tribunal accepts a number of those fears as set out above. The Tribunal acknowledges that while some of those fears do not rise to the level of triggering Australia’s non-refoulement obligations they represent very significant impediments that the applicant will be exposed to if relocated to Turkey.
In particular, as previously referenced, there was evidence before the Tribunal that the applicant is likely to suffer discrimination as an Alevi Kurd when seeking employment opportunities in Turkey. The applicant told the Tribunal that it was almost impossible for him to obtain work in Turkey because of his ethnicity. He told the Tribunal that as a consequence of having an accent his ethnicity was very apparent to others in the community. He told the Tribunal that while he previously worked in the construction sector he had found it increasingly difficult to obtain employment in Turkey prior to his migration to Australia.
The applicant’s brother reinforced this evidence. HC told the Tribunal that despite having been able to secure employment himself when he previously lived in Turkey, the types of jobs he was able to secure were very low level menial jobs such as working in the rock mines and that it was extremely difficult to earn enough money to be able to meet day-to-day costs, at least without pooling resources with others.
There was also evidence before the Tribunal in relation to the worsening conditions in Turkey both from an economic perspective and also through political instability and the associated rising unemployment rate. The DFAT Country Report notes the unemployment rate at 11.7% and likely to remain high for some time. The Report also notes that in more recent years there has been significantly higher inflation and a dramatic depreciation of the Turkish lira against the US dollar, exacerbating economic concerns.
While the Tribunal accepts that the applicant is likely to face discrimination in seeking employment for the reasons described, the Tribunal is not satisfied that the applicant would be unable to secure employment of any kind. Rather, it accepts that his employment prospects would be more limited than those generally available to the non-Kurdish community in Turkey and that as a consequence his capacity to be able to earn would be significantly constrained. In reaching this conclusion the Tribunal has had regard to the fact that the applicant is still of a working age, in good physical health, has a considerable amount of practical work experience and an acknowledged excellent work ethic all of which would be to his advantage in seeking employment opportunities in Turkey.
In addition, the Tribunal accepts that there is a risk of the applicant being exposed to harm as a consequence of the deterioration in the security situation in Turkey generally since 2014. In particular, the Tribunal recognises that there remains a heightened risk of terrorist activity in Turkey at present. Although the Tribunal accepts that this is a risk that exists generally across the Turkish community.
There was some limited evidence before the Tribunal in relation to the applicant having commenced a relationship with a new partner. When questioned by the Tribunal, the applicant indicated that he believed that his new partner would not return to Turkey to live with him. In that context, the Tribunal acknowledges that the applicant would be without the support of his new partner in Turkey should he be forcibly returned there and that this is likely to make his transition back into Turkish life more difficult, at least initially.
In addition, as has been referred to earlier in these reasons, the Tribunal is satisfied that the applicant has a genuine love for his children and that should he be forced to return to Turkey it is highly likely he would be severely curtailed in resuming a relationship with his children, at least until they were of adult age. The applicant would also be significantly impacted by not having the immediate emotional support of his brother. The Tribunal accepts that these circumstances would have a devastating emotional impact on the applicant and likely further impede his transition back into life in Turkey. It also has the potential to significantly exacerbate his mental health concerns.
For these reasons, the Tribunal is satisfied that the extent of impediments if returned consideration weighs significantly in favour of revoking the cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in section 501(6) of the Act. Therefore, the Tribunal is required to consider whether to exercise the discretion in section 501(1) of the Act in accordance with the Direction. The Tribunal has carefully assessed each of the considerations relevant to the exercise of its discretion as set out above.
In weighing the various considerations the Tribunal has been mindful of the serious nature of the applicant’s offending. As stated above, in the view of the Tribunal, the applicant’s conduct amounts to acts of domestic violence and for the reasons stated must be considered serious offending. The Tribunal acknowledges the applicant’s genuine remorse and the significant efforts that he has made to rehabilitate himself. The Tribunal also acknowledges that there are a number of significant factors that mitigate the risk of the applicant reoffending including the fact that the he is now free of drugs, has reconciled to the end of his relationship, has committed to pursuing access to his children through the Family Court, has the support of his brother and the Australian Turkish community.
The Tribunal has been particularly mindful of the commitment made by the applicant’s brother to facilitate the applicant’s transition back into the community. That offer of support is very genuine. Further, the Tribunal is satisfied that the applicant’s brother is well placed to provide such support. The Tribunal acknowledges that despite the factors that mitigate the risk of the applicant reoffending, there remains some risk that is not minimal or trivial and therefore protection of the Australian community consideration weighs significantly against revocation. The Tribunal acknowledges that the expectations of the Australian community consideration also weighs significantly against revocation.
In the view of the Tribunal the best interests of children consideration in this matter is significant. Notwithstanding the fact that the applicant has had limited contact with his children for some years, the Tribunal is satisfied that the applicant loves his children and is genuinely committed to playing a positive and constructive role in their lives. The Tribunal is satisfied that the applicant is now committed to pursuing access to his children through the Family Court. The Tribunal is also satisfied that the applicant’s brother has a strong connection to the applicant’s children and is also committed to playing a positive role in their lives. The Tribunal has also been mindful of the impact a decision against revocation could have for the relationship between the applicant and his nephews and between the applicant’s children and their cousins and grandparents. The Tribunal is satisfied that this consideration weighs heavily in favour of revocation.
The Tribunal has also been mindful of the very significant impact a decision not to revoke the mandatory cancellation of the applicant’s visa would have for the applicant’s brother. The Tribunal accepts that the brothers are now reconciled. The Tribunal accepts that the applicant’s brother would be significantly emotionally impacted if the applicant was forced to return to Turkey. The level of concern the applicant’s brother demonstrated to the outcome of this matter was very clear to the Tribunal through the course of the hearing. Again this consideration weighs significantly in favour of the applicant.
The Tribunal has carefully considered the applicant’s claims of harm if returned to Turkey and as stated above accepts that at least some of these claims engage Australia’s international-non-refoulement obligations. The Tribunal accepts that the applicant has a reasonable basis for fearing harm and discrimination if relocated to Turkey and finds that this consideration weighs heavily in the applicant’s favour. The Tribunal has also carefully considered these claims as well as the applicant’s claims of harm more broadly in the context of impediments on return among other factors relevant to that consideration. The Tribunal is satisfied that the impediments on return consideration also weighs significantly in the applicant’s favour.
Having carefully weighed each of the considerations, the Tribunal is satisfied that the overall balance weighs in favour of a decision to revoke the mandatory cancellation of the applicant’s visa.
DECISION
The Tribunal sets aside the decision made by the delegate of the Respondent dated 11 September 2019 and substitutes it with a decision to revoke the mandatory cancellation of the applicant’s visa under section 501CA of the Migration Act 1958.

169.

170.    I certify that the preceding 168 (one hundred and sixty eight) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

........................[sgd]........................................
Associate
Dated: 24 December 2019

171.    Dates of hearing:

172.    26 - 28 November 2019

173.    Counsel for the Applicant:

174.    Ms Georgina Costello SC &
Mr Mathew Kenneally

175.    Solicitors for the Applicant:

176.    Bardo Lawyers

177.    Solicitors for the Respondent:

178.    Ms Siran Nyabally, Australian Government Solicitor

[2019] AATA 5609

6 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

171. Dates of hearing:	172. 26 - 28 November 2019
173. Counsel for the Applicant:	174. Ms Georgina Costello SC & Mr Mathew Kenneally
175. Solicitors for the Applicant:	176. Bardo Lawyers
177. Solicitors for the Respondent:	178. Ms Siran Nyabally, Australian Government Solicitor