Tuzcuoglu and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 651

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/69

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FIGEN TUZCUOGLU

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J Block, Deputy President

Date6 July 2005

PlaceSydney

Decision The decision under review is set aside; the Tribunal substitutes a decision that the Visa Applicant’s Spouse (Provisional) (Subclass 309) Visa not be refused on the basis that he does not pass the character test under section 501 of the Migration Act 1958

[SGD] Mr J Block
   Deputy President

CATCHWORDS

IMMIGRATION – Spouse (Provisional) (Subclass 309) Visa application refused – convicted and sentenced in Turkey for forging an official document – does not pass character test – discretion considered – completed visa application form dishonestly - no risk of recidivism – best interests of children  – weight given to conviction and sentence in foreign court considered – decision set aside   

LEGISLATION

Migration Act 1958 s. 501

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

REASONS FOR DECISION

6 July 2005 Mr J Block, Deputy President       

PART A – INTRODUCTION AND GENERAL

1.      The decision under review is the refusal (dated 22 November 2004) by a delegate of the Respondent of a Spouse (Provisional) (Subclass 309) Visa applied for at Ankara, Turkey, on 6 July 2004 by Inan Oksuz (“the Visa Applicant”); that application was sponsored by his wife Figen Tuzcuoglu who is the Applicant in this matter.

2.      The Applicant was represented by Mr Leonard Karp of Counsel, while the Respondent was represented by Mr A Chand of Clayton Utz Solicitors.

3. The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with the following exhibits tendered during the hearing:

A1	Statement of Isa Oksuz dated 14 March 2004; (exhibit A1 in fact and on the face of it was executed on 14 March 2004 but that date was plainly erroneous). Mr Isa Oksuz is referred to in brief as “Isa”, and being the manner in which he was referred to in evidence throughout the hearing. Isa played an important role in this matter in that he introduced the Applicant and the Visa Applicant; however he was not required for cross-examination and his witness statement may be accepted.
A2	Statement of Suleyman Oksuz dated 28 March 2005.
A3	Letter from Habip Salic, Mayor, dated 10 March 2005.
A4	Statement of Bekir Guleryuz dated 11 March 2005.
A5	Statement of Cevdet Demirci dated 8 March 2005.
A6	Letter from Ates Tafli dated 10 March 2005.
A7	Record of Court Proceedings of Hearing on 10 December 2001 in the 2nd Heavy Criminal Court of Kocaeli.
A8	Record of Appeal in the forgery/falsification/impropriety case, the date of appeal being 3 January 2002 and 18 February 2002.
A9	Statutory Declaration of Figen Tuzcuoglu declared on 17 January 2005.
A10	Additional Statement of Figen Tuzcuoglu dated 24 May 2005.
A11	Medical Report of Heather Pierce of Western Sydney Health dated 22 February 2005.
A12	Statement of Inan Oksuz dated 18 August 1997
R1	Translation of Court document found in the T-Documents at pages 79-81.

4.      As I have said Mr Chand did not require Isa for cross-examination. For the same reason witness statements made by Suleyman Oksuz, Habip Salic, Bekir Guleryuz, Cevdet Demirci, and Ates Tafli (Exhibits A2 to A6 respectively) can also be accepted.

5.      The Respondent’s Statement of Facts and Contentions dated 4 March 2005 contains the usual helpful chronology; it’s content under the head of ‘Facts’ is included as follows:

FACTS

28.08.1972	Mr Oksuz (visa Ms Tuzcuoglu) born in Adana, Turkey.
28.05.1997	Mr Oksuz convicted of bearing a pistol without having a licence and sentenced to imprisonment for 1 year (this sentence was later converted to a fine) (T82).
10.11.1997	Ms Tuzcuoglu (review applicant) and Mr Mehmet Ali Arican were divorced (T54).  Ms Tuzcuoglu and Mr Arican have one child during this marriage.
27.12.2001	Mr Oksuz convicted of joint forgery of an official document and sentenced to imprisonment for 1 year 8 months (T77).
06.2004	Ms Tuzcuoglu first meets Mr Oksuz (T92).
01.07.2004	Ms Tuzcuoglu marries Mr Oksuz in Yamurtalik, Turkey (T62).
05.07.2004	Mr Oksuz lodges an application for a Spouse (Provisional) (Subclass 309) Visa ("visa"), sponsored by Ms Tuzcuoglu (T35).  The application fails to disclose Mr Oksuz's prior criminal convictions.
22.11.2004	A delegate of the Minister refused to grant the application pursuant to s 501 of the Migration Act 1958 ("Act").

6.      In the interests of balance, I include the content under the head of ‘Facts’ in the Applicant’s Statement of Facts and Contentions dated 14 March 2005. That content (clauses 1-11) reads as follows:

Facts

1.The review applicant, Ms Tuzcuoglu, is a citizen of Australia  (T docs fol 57), who was born in Turkey (T fol 56). She has been here for some 30 years and many members of her family are in Australia.

2.Her second husband, Inan Oksuz, the visa applicant, is a Turkish national, now 32 years of age (T fol 37).

3.Ms Tuzcuoglu’s first marriage was dissolved in December 1997 (T fols 54-5). She has care, custody and control of the child of that marriage, Gulizar Arican who was born on 8 May 1997 (T fol 43), after her parents separated.

4.Gulizar has not seen her father since she was a baby. She is in need of a father figure.

5.Ms Tuzcuoglu and Mr Oksuz were married on 1 July 2004 in Turkey.

6.Their application for a spouse visa was lodged with the Australian Embassy in Turkey on 6 July 2004. In that application it was said at Q71 (T fol 45) that Mr Oksuz does not have any convictions in any country.

7.Ms Tuzcuoglu completed the visa application form on behalf of her husband. She misunderstood question 71, believing it to refer to convictions in any country but the visa applicant’s country of nationality. In any event she did not know at the time that her husband had been convicted of offences. Thus, she indicated in question 71 that he had no convictions.

8.This was not true. Mr Oksuz has indeed been convicted twice by Turkish Courts. These convictions were committed whilst in the Turkish Navy, and are as follows;

(a)   In December 2001 he was convicted, with two others, of forging an official document. The offence itself took place in February 1997. He was sentenced to one year and eight months imprisonment and ordered to pay a fine (T fols 77-8). He served eight months of this term before being released or terms equivalent to parole.

(b)   In 1997 he was convicted of bearing a pistol without having a licence and sentenced to one year’s imprisonment, commuted to a fine (T fol 82).

9.Mr Oksuz has not re-offended. He leads a quiet life and works in the family business in Turkey.

10.      The marriage between Mr Oksuz and Ms Tuzcuoglu is genuine.

11.Ms Tuzcuoglu is thirty seven weeks pregnant with Mr Oksuz’ child. That child will be an Australian citizen when he is born. Depending on whether the Tribunal reserves its decision, that decision may be made after the birth.

7.      This matter was listed for hearing on 24 May 2005 (“first hearing day”) and 25 May 2005 (“second hearing day”). For reasons which are not relevant, it was not completed in those two days and a resumed hearing took place on 17 June 2005 (“third hearing day”). On the third hearing day Mr Chand tendered Exhibit R1 in respect of the forgery conviction and which took place in Turkey on 27 December 2001; exhibit R1 reads as follows:

…

Defendants Salih Parlatan and intervening party Huri Parlatan were married in 1993, and that defendant Salih has divested himself of Golcuk Naval Command, and that defendant Salih has resided at his fathers house in Kirschir, an that defendant Salih has begun duty at Golcuk and resided in the same domicile with the other defendant Inan who was also a Master Sergeant and that whilst defendant Salih Parlatan was undertaking his duties at Golcuk, met the defendant Guldeniz Yilmaz and became friends, and that their friendship overtime has reached a new level and that in 1995 has taken Guldeniz Yilmaz to his bachelors flat and had consensual sex, taking away her virginity and rendering her pregnant, and that later her pregnancy was terminated, and that they decided to get married and plotted with the other defendant, Inan Oksuz to bring about the divorce of Salih who was married at the time, and that in the execution of this plan, the defendants Inan Oksuz and Guldeniz Yilmaz have presented at Kocaeli 5^th Notary Public with an Identification card taken from the intervener Huri Parlatan (who is legally wedded Salih Parlatan) but with a photo of Guldeniz Yilmaz attached and using their photos and military identification, to prepare a false power of attorney as if she were Huri Parlatan, and that defendant Guldeniz Yilmaz pretending to be Huri Parlatan has signed and written with her own hand writing on the power of attorney document that she was aware that the document pertained to a divorce, and thus the defendants Guldeniz Yilmaz and Inan Oksuz have committed the offence of falsifying the power of attorney document, and that with the forged power of attorney document have commissioned the Kocaeli Bar Association solicitor Teoman Ylldirim as an administrator, and that whilst aware of this forgery the defendant Salih Parlatan has initiated divorce proceedings in the Golcuk Civil Law Courts against his wife the intervener Huri Parlatan with an application dated 20/3/1997, and that solicitor Teoman Ylldirim has appeared in court supported by the false power of attorney document of intervener Huri, and that by mutual agreement, without the knowledge of the intervener, have achieved a decree of divorce, and that have mutually finalised the decision, and that defendant Salih Parlatan has registered the divorce with the registrar that was achieved by use of forged documents, therefore the claim by the intervener that a crime of forgery was committed was established by the defendants’ evasive defence, the proof of the claim, the power of attorney document in question, the Golcuk Civil Law Court’s verdict file numbered 1997/115 and 1997/71, the registrations at the registry, the notes of diagnosis and investigations, the report dated 27/11/2001 by expert graphologist Dr. Eren Bilgin, head of Kocaeli forensic medicine, in regards to forged documents.

Defendant Guldeniz and her representative Solicitor Cengiz Saribay in her defence have: claimed that she had spoken to Salih Parlatan with a view to a marriage, and that Salih had claimed to be single, that she could not think clearly because of an earlier cerebral trauma suffered, that she did not know the reason for the signature at the Notary Public and that she was innocent. However, they were not able to present any proof of the claimed cerebral trauma and that the claim that despite living with a person for 3 years and not knowing whether they were married or not was put down to level of culture was not given any credit. No credit is given to the defence detailed above.

Defendant Salih Parlatan and his representative Solicitor Cengiz Saribay in his defence have: claimed that he was married to the intervener Huri, that they were not getting along and that he wanted to get a divorce, that intervener Huri did not consent to a divorce, that she said “Salih should divorce me, I don’t want him either”, that defendant Inan Oksuz knew of Salih’s situation and was concerned about and that he took it upon himself to arrange a power of attorney document in the name of Huri Parlatan, and that without questioning has married Guldeniz Yilmaz, that Guldeniz Yilmaz was not aware of this.

Despite defendant’s notification of possible action under TCK act, article 347, no credit was given to the defence that had no basis.

The defendant Salih Parlatan has obtained from a court of law a decree of divorce based on a false power of attorney and related documents, with the finalisation of this decision, the guilt of forgery has been established without doubt.

JUDGEMENT: By reason of above:

1 – The defendant Salih Parlatan, is found guilty of obtaining a divorce by way of falsely acquired power of attorney document and carrying it through to the granting a decree of divorce. Under TCK Act, Article 342/2 a custodial sentence is appropriate for the offence of forgery given the social and private standing of the defendant. A sentence of four years of heavy labour is imposed.

In favour of the defendant during the hearing, taking into account his demeanor [sic] and stance, under TCK Act, Article 59/2 under judicial discretion, a 1/6^th reduction in sentence is applied, reducing the total sentence to three years and four months of heavy labour.

The claim that the rate of sentence imposed on the defendant has no basis under statute is dismissed under (illegible) statute articles 4 and 6.

2 – Defendants Inan Oksuz and Guldeniz Yilmaz for their part in falsely obtaining power of attorney by presenting forged documents, befitting their actions under TCK Article 342/last, and taking into account their social and private standing, imposition of a custodial sentence is appropriate with each sentenced to two years of heavy labour.

In favour of the defendants during the hearing, taking into account their demeanor [sic] and stance, under TCK Act, Article 59/2 under judicial discretion, a 1/6^th reduction in sentence is applied, reducing the total sentences to one year and eight months of heavy labour each.

…

480 million Turkish Lira be taken from defendants and be given to the intervener.

The amount of 6,010,000 Turkish Lira itemized below be charged to defendants as court costs.

Appeal is possible, partially against wish. The judgement has been read and explained in the presence of the intervener and her representative Solicitor Sevda Mulga, in the absence of defendants Salih Parlatan and Guldeniz Yilmaz their representative Solicitor Cengiz Saribay and Public prosecutor Sakir Goker 27/12/200.

…

8. It is common cause that the prison sentence imposed on the Applicant (and referred to in the Respondent’s Statement of Facts and Contentions) has the effect that the Visa Applicant does not pass the character test. This matter then falls to be decided under Part 2 of ‘Direction – Visa Refusal and Cancellation under section 501 - No 21’ (“Direction 21”).

PART B – THE EVIDENCE OF THE APPLICANT; EVIDENCE IN CHIEF

9.      The evidence of the Applicant took up a considerable period of time. The Applicant is a citizen of Australia. She is of Turkish origin and can speak Turkish, in that she has always spoken to her parents in that language. The Applicant has her own business, a child care centre in Sydney.

10.     The Applicant has been brought up in what she described as traditionally Turkish Muslim society. She gave evidence at considerable length as to what this means in practice. I do not consider it necessary to deal with all of that evidence in detail. However, her evidence was that a wife is always subservient first to her father and then to her husband. She will not marry without parental consent. She will never be alone with a man unless she is married to that man. Moreover a woman who is without a husband for whatever reason is at a very considerable disadvantage in Muslim society. In particular she will not be invited to any home where there “is a husband I might steal”. She cannot have guests in her own home unless they are female or men who are closely related. All of this evidence (and there was much of it) must be regarded with some caution in the light of her evidence when she was asked whether she would return to Turkey to live with her Turkish husband if this decision went against him. Questions in this particular regard were answered with so resounding a “no” that the Tribunal doubts whether she is as subservient or as disadvantaged as she sought to suggest.

11.     The Applicant was born in 1972. She was educated (to High School level) in Auburn, Sydney, and where in 1988, she completed her HSC. She went on to the University of Sydney and where she studied nursing. She abandoned her studies at the insistence of her first husband’s family; her first husband was Mehmet Ali Arican (referred to as “Mehmet”), from whom she is now divorced.  There is a daughter of that marriage, Gulizar, who was born on 8 May 1997 and who is now aged 8. Mehmet pays maintenance for Gulizar at the rate of $860 per month. Although Mehmet pays maintenance for Gulizar, he has had no contact with her since she was one and a half years old.

12.     The Applicant met Mehmet at Sydney University. A group of Muslim students would meet in order to discuss matters of mutual interest. Although she was never alone with Mehmet she clearly interested him, because a marriage was arranged between the two sets of parents. After marriage she was obliged, as I have said, and after only one year of study at Sydney University, to abandon her studies. Mehmet proved to be violent and the Applicant and Mehmet were divorced some three years after their marriage.

13.     Isa’s wife was at school with the Applicant and the Applicant has remained on friendly terms with her. Isa and his wife knew that the Applicant was single and asked her whether she wanted to meet Isa’s brother, who is the Visa Applicant, through the medium of the telephone. Isa’s brief statement, Exhibit A1, reads as follows:

1. I am the brother of Inan Oksuz, the visa applicant who is married to Figen Tuzcuoglu (Figen).

2. I have been in Australia since 18 May 1995, and I am an Australian citizen.

3. I know Figen through my wife. I first met her probably more than nine years ago. I know that she was abandoned by her first husband, although I found this out well after the event.

4. I went back to Turkey in April 2001 and stayed until July that year. I did not know, and was not told at the time, that my brother Inan had a criminal conviction. I think that this was because my family in Turkey, including my brother, did not want me to worry, because when I get upset I tend to get sick. Nor was I told about his conviction and gaol sentence in late 2001. Whenever I asked about my brother during his gaol time my family would say, “He is working in another state,” or something like that.

5. I only found out about the conviction for possessing a pistol in 2003 from my father. This was after Figen and Inan met by telephone. I did know about the gaol sentence or the conviction, until 2004, after the marriage.

6. I introduced Figen to my brother as my brother was unmarried and I thought that they would make a good couple.

14.     In Muslim society a woman cannot phone a man and the Visa Applicant phoned the Applicant in May 2003. That first conversation led to others, all of them brief. She asked no questions because in Muslim society a woman cannot do so of a man. She told the Visa Applicant of Gulizar and he always asked after Gulizar and sometimes spoke to her. He told her that he too was born in 1972 and that he had never been married. She said that at the time of first contact he was working in Istanbul in a security job. Istanbul is some 11 to 12 hours in time by bus from his home town in Yumurtalik.

15.     The telephone contacts were regular; he phoned every second day and she phoned him once a week. The Visa Applicant also used a mobile; he did not have a fixed phone. She did not know which jobs, if any, he had had before he became employed in the security position. She did know that he had been in the Navy; Isa had so informed her when they first made contact with each other.

16.     The Applicant said that although conversations were very brief, they related to each other very well. He often spoke to Gulizar who also speaks Turkish. Gulizar said, according to the Applicant, “I wish he would be my father”.

17.     The Applicant and the Visa Applicant decided to marry in September 2003. The Applicant said that the Visa Applicant completed High School but that he could not get any job which was better than that of a security guard. She described the employment prospects in Turkey as difficult.

18.     When asked why she decided to marry the Visa Applicant, the Applicant said “mainly because of my daughter. She needed a father. I needed a husband.” The Applicant went on to say that her daughter was badly affected by not having a father. As indicated previously in these reasons, Gulizar has had very little contact with her father, Mehmet, and indeed none for a number of years.

19.     The Applicant said that she had no idea that the Visa Applicant was in prison between September 2003 and May 2004. Nothing changed during that period. They phoned each other just as regularly as they had done previously. She said that when she phoned him, he answered; she said that he had his mobile with him in prison.

20.     The marriage was arranged for 1 July 2004. The Applicant left Sydney on 21 June 2004 and arrived in Turkey on 22 June 2004. Her daughter accompanied her and her parents came a month later. This was so because the marriage ceremony included both a religious ceremony (which took place on 24 July 2004) and a civil ceremony (which took place on 1 July 2004). Although it is the civil ceremony which constitutes the legal commitment, the religious ceremony was clearly regarded as being at least of equal and probably greater importance.

21.     The visa application was completed in Ankara on 6 July 2004. The Applicant completed it; she said that she did not put every question to the Visa Applicant because she knew some of the answers.

22.     T page 45 contains question 71 which is set out in full but without the boxes as follows:

71. Have you, or any other person included in this application, ever:

·Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

·Been charged with any offence that is currently awaiting legal action?

·Been acquitted of any criminal offence or other offence on the grounds of mental illness, insanity or unsoundness of mind?

·Been removed or deported from any country (including Australia)?

·Left any country to avoid being removed or deported?

·Been excluded from or asked to leave any country (including Australia)?

·Committed, or been involved in the commission of war crimes or crimes against humanity or human rights?

·Been involved in any activities that would represent a risk to Australian national security?

·Had any outstanding debts to the Australian Government or any public authority in Australia?

·Been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)?

·Served in a military force or state sponsored/private militia, undergone any military/paramilitary training, or been trained in weapons/explosives use (however described)?

...

In all cases the ‘no’ box was ticked.

23.     The Applicant did not ask the Visa Applicant whether he had been convicted of any crime. She said that she understood the question to relate only to convictions outside Turkey but not convictions in Turkey itself. She did not ever furnish any reasonable explanation as to why she was able to read the questions in so illogical a fashion. She did ask him if he had been convicted of any criminal offence in any other country and he answered “no”. She knew that his Navy service had taken him to certain other countries.

24.     The question as to service in a military force was answered with a ‘no’, according to the Applicant, because she did not consider that service in the Navy constitutes military service. Further questions on these aspects were met with the same answers. She understood the form to require details of convictions outside Turkey only and so far as she was concerned, the Navy and the Military were different concepts. It must be remembered that the Applicant speaks perfect English and is educated and to the point where she obtained entrance to the University of Sydney. For her to read the Spouse Visa Application in such a manner,  and so that it required the disclosure of convictions outside of Turkey only, would necessarily require the insertion of the word “other” between “any” and “country”. There was never any basis in logic, reason or grammar which would require so ridiculous an insertion in a perfectly simple question. It was obvious enough that the Australian government was interested in any convictions and to exclude Turkey in this context clearly required a wilful and unjustified reading of the question.

25.     The Applicant said that they first encountered a difficulty while she was still in Turkey. A call was received from the Australian embassy. The Applicant’s father asked the Visa Applicant whether there was a problem; he answered that there was not and that he was handling it all. He said that he had to procure some additional paper work from the Naval Base in Golcuk but did not say what that paper work was. The Applicant accompanied him to Golcuk and where papers were obtained. He did not show them to her and she did not ask; “in my family you don’t ask the man anything. If he says its fine, it’s fine.”

26.     The Applicant said that she found out for the first time about the convictions from Mr Karp in May 2005 (corrected to refer to March 2005) after the Spouse Visa was refused.

27.     The following exchange is taken from my notes of the Applicant’s evidence at this point:

How did you react when you found he was convicted of two offences?
I still love him – that happened in 1996 and 1997.
I didn’t ask about the offences.
I asked Isa what he knew about it and why wasn’t I told.
Isa said he did not know.

28.     The Applicant said that she got on well with the Visa Applicant’s family whom she met in Turkey. She said that despite the convictions “I still love him – he is my husband”.

29.     A son was born to the Applicant and the Visa Applicant on 27 March 2005.

30.     When asked whether she would join him in Turkey if this case went against her, the Applicant answered in categorical and even vehement terms. My notes in this context read:

Why do you want your husband to join you in Australia?
I wouldn’t join him in Turkey because I have a business here. I couldn’t do the same work in Turkey. I can’t adapt. I want him to come to Australia. He wants to come to Australia. I would have to live with my in-laws. He doesn’t have a home. His mother and father have a two bedroom house. He is working at his father’s café where he helps serve the customers.

31.     The Applicant went on to say that she wants the Visa Applicant to come to Australia and so does he; “In Turkey he doesn’t have a home or even a proper job”. The security job ended when he went to prison.

32.     The Applicant spoke also of medical problems; see Exhibit A11. She has a fused spine because she had scoliosis when young.

PART C – THE EVIDENCE OF THE APPLICANT; CROSS-EXAMINATION

33.     The Applicant said that she could not work with the Visa Applicant in his parent’s café because it is for men only. She made it clear that she could not see herself living in Turkey on any basis. If this application went against her she would have to move back with her parents. She has, so she said, two children by different fathers and her father would never allow her to marry for a third time. (That statement is hard to credit.) As she put it, her social position is difficult in the extreme.

34.     Further cross-examination of the Applicant related to her first marriage and its origins. I do not think that I need to detail it. She married Mehmet at a time when she hardly knew him.

35.     The Applicant said that she agreed to marry the Visa Applicant because she thought he would be a person of good character. She had spoken to Isa and Isa’s wife (Surgi). She insisted that she agreed to marry him on the strength of brief telephone conversations.

36.     In cross-examination the Applicant changed her previous evidence in one respect. She said that the Visa Applicant, while in prison, used another inmate’s mobile phone but only the machine; the Visa Applicant, so she said, inserted his own SIM card. This in turn raised a question as to how the Visa Applicant would always have the other inmate’s machine with him and on his person and whenever she phoned.

37.     The Applicant again insisted that she read the visa application form in the manner indicated. She again insisted that the Navy is not the military.

38.     When asked about the visa application and the declaration in it, she said that “I may not have read the declaration”.

39.     And when it was put to her that the Respondent would be interested in all convictions, she again insisted she read the question as applicable to convictions outside Turkey only. She said “I didn’t think he would have any crimes”.

40.     Further lengthy cross-examination did not produce any amendment of her evidence as to how the visa application was completed.

PART D – THE EVIDENCE OF THE VISA APPLICANT; EVIDENCE IN CHIEF

41.     The Visa Applicant (who gave evidence with the assistance of an interpreter in the Turkish language) was born in Turkey on 28 August 1972. He left school when he was 18 and joined the Navy when he was 22. He said that in between those two ages he worked in his father’s café as a waiter.

42.     The Visa Applicant next gave evidence at some considerable length as to when he entered the Navy, as to what rank (if any) he achieved, what work he did in the Navy, and whether he performed any early military service (i.e. in the army) apart from Navy service and which may have been (or may to an extent have been) voluntary. That evidence was confused and confusing. At the end of all of it, I am satisfied that he was in the Navy, that he was in the Navy for some time, that he did not achieve commissioned (or any other) rank, and that the work he did was not particularly skilled or important. At some time or times he worked in his father’s café as a waiter. He also obtained, prior to being sent to prison, a job in security. That last-mentioned job was neither skilled nor high level and may have been obtained because of his Navy service. To deal with all of his confusing evidence would be both tedious and unnecessary. I should note though that I do not believe that, at least in this respect, he was being untruthful.

43.     At some point in time during his Navy service the Applicant shared accommodation with Salih Parlatan (“Salih”) and Fatih Siz, both in the Navy but in different sections.

44.     The Visa Applicant said that he did not know in 1994 and 1995 that Salih was married at the time; he knew that Salih had previously been married but thought that at that time, i.e. 1994-1995, he was again single.

45.     As to the unlicensed firearm offence, the Visa Applicant said that he did not carry a weapon because he didn’t want to do so. His housemate, Salih, did carry a weapon. The latter on one occasion forgot his weapon, leaving it at home, and phoned the Visa Applicant to ask him to bring it to him. The Visa Applicant complied; at the bus stop he was searched and “I was caught”. He was apparently caught up in a general search.

46.     The authorities knew that the weapon was not his because his identity card which he produced at the time contained no indication that he was licensed to carry a firearm. He was charged and originally sentenced to a term of imprisonment but which was altered so as to impose a heavy fine.

47.     The circumstances of which the Visa Applicant was charged with and convicted of the forged power of attorney offence can only be described as bizarre.

48.     Salih at that time had a girlfriend named Guldeniz Yilmaz (“Guldeniz”) and whom he wished to marry. Exhibit R1, quoted previously in these reasons is the judgement of the Turkish Court. It records that there were three defendants, being Salih, Guldeniz and the Visa Applicant. The first two were represented by Cengiz Saribay (“Saribay”), a lawyer. The trial took place in Izmit. The charge against the three accused is described as “conjoint forgery of an official document”.

49.     The Visa Applicant said that he did not execute or sign any document in connection with the divorce for Salih. (The document in question would appear to have been a power of attorney, although how a power of attorney could bring about a divorce is unclear.)

50.     The Visa Applicant received a Court document in 1997 accusing him of falsifying divorce papers. He made a statement denying any knowledge or responsibility in August 1997 and gave that statement to the prosecutors. He then heard nothing until 1999 and by which time he had left the Navy.

51.     The Visa Applicant thought that the statement submitted previously would be sufficient. He did not seek the services of a lawyer because he did not think it was necessary. At a later stage he discovered that the case against him had not been withdrawn or abandoned. He made another statement (denying involvement of any kind) in the same terms as the previous statement.

52.     In 2001 the Visa Applicant heard that he had been found guilty as charged and sentenced to a term of imprisonment of one year and eight months. He was not in Court for the Hearing and he did not ever plead to the charge. He appealed, so he said, to Ankara, but again did not hire a lawyer. His appeal failed; he was not represented at the appeal hearing and so that he did not, according to his evidence, ever appear in a Court to answer the charge.

53.     The result of the appeal became known to him in July 2003. By this time he had become involved with the Applicant, having been introduced to her by Isa. He said that he talked to the Applicant only about his job and his family.

54.     A decision was taken that they would marry on 1 July 2004. He went into prison in September 2003 after giving himself up to the police. He did not, so he said, tell the Applicant or Isa about going into prison.

55.     Telephone contact (as before) continued in prison. He said that “I used my mobile” and he also said that he usually called the Applicant rather than the other way around. That evidence was then altered so as to indicate that he did not use his own mobile but that he used his own SIM card and that the machine (telephone machine) belonged to another inmate.

56.     The Visa Applicant was asked how it was that if the machine belonged to someone else, she, the Applicant, could always call him. His answer was that he would call her to let her know when she could phone him. (No such evidence was given by the Applicant.)

57.     As I have noted, the Visa Applicant said that he did not inform Isa so as to avoid upsetting him. He told his father not to tell the Applicant. He, himself, did not inform the Applicant that he was in prison or that he had been convicted of any crimes.

58.     The Visa Applicant said that he could not read English at all, although he can speak some English. The visa application form was completed by the Applicant; she asked him some questions “but not much”.

59.     He was asked categorically if she asked him about crimes in any countries. His answer, according to my notes, was:

Did she ask you if you had been convicted of a crime in any country?
I said no; I thought it meant other countries.

But you had been prosecuted in Turkey?
I can’t hide that, I was.

Did you give the Applicant the wrong information for the form?
No, I didn’t give the wrong information.

60.     This line of questioning was continued and the following exchange took place:

Did she ask you whether you had been convicted of a crime in any country and any country includes Turkey?
I thought it meant other countries and that Turkey was not included.

What was the exact question?
I can’t recall exactly, but she did say other countries.

Did she ask if you had served in a military force?
Yes.

Did she ask you whether you had served in any Navy and Air Force?
Yes.

What was the exact question?
I can’t recall.

Do you recall whether she asked if you had been in the military?
Yes. She asked if I did military duty and I said yes.

61.     As to his military service the Visa Applicant said categorically that he had told her that he had performed military duty; (this too was in conflict with the evidence of the Applicant).

62.     The Visa Applicant said that he knew how good Australia was, having been so informed by Isa.

PART E – THE EVIDENCE OF THE VISA APPLICANT; CROSS-EXAMINATION AND RE-EXAMINATION

63.     In cross-examination, the Visa Applicant admitted that he had been wrong to carry the firearm. He continued to deny that he was in any way involved in the forgery. And his evidence as to the use of the mobile phone while in prison continued to be contradictory. However, he denied any deliberate attempt to mislead the authorities in relation to the Spouse Visa form.

64.     In re-examination, the Visa Applicant again said that he did not have an opportunity to defend the forgery charge.

PART F – THE EVIDENCE OF MAHMUT CENGIZ SARIBAY

65.     Mr Saribay is a lawyer practicing in Izmit. His evidence, reduced to essentials, confirmed that the Visa Applicant was not represented at the forgery trial and that he had made a statement denying responsibility.

66.     Mr Saribay said that a very recent amendment to the law in Turkey (taking effect on 1 June 2005) now required the Turkish government to provide accused persons with a lawyer but that this was not so previously. He confirmed that prior to 1 June 2005 it was possible for an accused to be tried in absentia and convicted and sentenced to a prison term.

67.     Mr Saribay said that Guldeniz admitted that she signed the forged document, but claimed that because of a traffic accident she did not know what she was doing. It was her evidence, apparently, which resulted in the conviction of the Visa Applicant.

68.     Evidence was also given by Mr Saribay as to an appeal by his clients and which failed. He did not act for the Visa Applicant and had no knowledge of what happened to him.

69.     When asked what standard of proof is required in a Turkish Court, Mr Saribay was clearly at a loss. He said that if the Court is satisfied with the evidence it imprisons the accused and that is that.

70.     As I have indicated Mr Saribay in effect confirmed the Visa Applicant’s evidence as regards the prison sentence.

PART G – THE EVIDENCE ANALYSED

71.     The Applicant is a presentable young woman who appears to be sophisticated. She currently runs her own child care centre. She was intelligent enough to get a place at the University of Sydney.

72.     In her reading of the Spouse Visa Application and her unilateral importation of “other” into the question, the Applicant behaved either stupidly or dishonestly. In my view, one would have to be very stupid to read the form in the illogical manner in which the Applicant did, and she is by no means stupid. It follows then that she completed the form dishonestly. It follows also that she knew of the convictions and realised that to disclose them would prejudice (and even possibly ruin the prospects of success for) the spouse visa application. Her evidence in this regard was untruthful. It was also untruthful as to the phone calls while in prison. That evidence was at first that she could phone him and did phone him on his mobile; it was then changed to refer to his SIM card on the basis that he had access to another machine. But even so it could never explain the fact that she could always phone him. The Visa Applicant attempted to rectify the situation by altered evidence to the effect that he phoned her first so as to tell her when she could phone. She said nothing of the sort and if this were truthful she would have given evidence to this effect. Nor is she even as remotely as subservient as she would have the Tribunal believe. In relation to the spouse visa application and perhaps other matters, and as between her and the Visa Applicant, she plainly was the leader. It must be remembered though that it is not her character which is in issue.

73.     The Visa Applicant was, in my view, untruthful as to the convictions in a number of ways. If she, the Applicant, knew of them, he knew that she knew. His evidence as to how the form was completed was untruthful, (and plainly formulated by the Applicant) and so was his evidence as to the use of a mobile phone. (He found it very difficult to maintain these particular fictions.) If the Applicant knew of the convictions then so in all probability did Isa and the evidence of both Isa and the Visa Applicant’s father at least in this regard, is of doubtful veracity.

74.     It is quite likely that the Visa Applicant wanted to come to Australia having been told of the benefits of living in Australia by Isa. The marriage was organised as one where each party obtained considerable advantages. The Visa Applicant obtained residence in Australia and the Applicant obtained a much-needed husband. That is not to say that the marriage was one of convenience only. While doubting statements as to their being very much in love, a relationship between the two has been established and certainly there is no suggestion that the marriage is a sham.

75.     The Visa Applicant’s evidence indicated that he is not intelligent. The manner in which he behaved in relation to the forgery charge was stupid in the extreme. He clearly needed a lawyer; if he could not afford a lawyer he could have sought help from his parents and if they could not help because they did not have the means, it is possible that Isa would have done so. After leaving the Navy he obtained a menial job and when that ended when he went into prison he (after leaving prison) worked for his parents as a waiter.

76.     In relation to the two criminal convictions, I believe the Visa Applicant; his evidence in relation to the forgery is supported by Mr Saribay. In respect of the firearm conviction the sentence appears to have been, in the circumstances, severe. Reverting to the forgery conviction, there was no possible benefit for him in respect of a divorce for Salih. That he was convicted and sent to prison in absentia is decidedly odd to persons used to western systems of justice. It is very possible, of course, that I have not heard the whole story, which on the evidence before is very strange. Mr Chand informed me that enquiries in Turkey of the authorities there met with no response on the basis (it would seem) of confidentiality. There is thus evidence which supports the Visa Applicant but no evidence in rebuttal, and this matter must be decided on the evidence before me.

77.     The decision in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 makes it clear that this Tribunal should not query the fact that the Visa Applicant was indeed convicted and I do not. It is my view however that SRT may be confined to a situation where the system of justice is the same or similar to that in Australia. The evidence before me indicates that the Visa Applicant was convicted, but as to whether he received a fair hearing is on the evidence before me decidedly doubtful. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 Branson J said at paragraph 45:

“Fifthly, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.”

78.     My own view then on the forgery conviction is that on the basis that the Visa Applicant was correctly convicted, his sentence was harsh. It is not conceivable that an Australian court would convict a man of forgery, in his absence, on the word of one of his co-accused (who was in any event pleading that a traffic accident had the effect that she did not know what she was doing), where that man had no interest in the matter, and would then send him to prison either for the period in question, or at all. All of this is relevant (having regard to Branson J in Ali supra) not so much to the convictions and sentences, which undoubtedly occurred, but rather to the degree of seriousness with which they should be regarded and thus, in other words, affecting the weight.

PART H – DIRECTION 21

79.     In this Part H references to numbered clauses relate to numbered clauses in Direction 21.

80.     The primary considerations are contained in Clause 2.3, which reads as follows:

“2.3     In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)      the protection of the Australian community, and members of the community;

(b)      the expectations of the Australian community; and

(c)      in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”

81.     Clause 2.3 must be read in conjunction with Clause 2.5, which reads as follows:

2.5      The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)      the seriousness and nature of the conduct;

(b)      the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)      whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

82.     I do not believe that the Visa Applicant poses a substantial threat to Australia or that there is any substantial risk of recidivism. The firearm conviction came about in circumstances where the Visa Applicant should have known better than to help a friend in the manner indicated, but he did act, however stupidly, in an endeavour to assist his friend. The forgery conviction and sentence (and I emphasise that my findings are based on the evidence before me alone, which may not be all of the relevant evidence), has been dealt with in some detail previously, and, as I have said, accepts the seriousness factor.

83. On this basis, the only aspects of the Visa Applicant’s conduct which call for adverse comment arise from the completion of the spouse visa application and some of his evidence before the Tribunal. That conduct was serious, constituting breaches of section 234 of the Migration Act 1958, and where the penalties prescribed are heavy. Considered in conjunction with the Applicant she was plainly the leader and he acted, in my view, as she directed. That is not to say that those breaches should not be regarded in a serious light but the circumstances are such that his conduct is at least comprehensible, and arguably, less reprehensible than they would otherwise have been.

84.     The interests of the Visa Applicant’s son (and this is of course a primary consideration) will, in the absence of evidence to the contrary,  be served by his having both parents with him, and, as Mr Chand fairly conceded, there was no evidence of any kind to the contrary. The evidence was also that the Visa Applicant has established a good relationship with the Applicant’s daughter and there also her interests would best be served by having both her mother and stepfather with her.

85.     Deterrence is not in my view a significant issue in this matter, more particularly in the light of the conclusions to which I have come.

86.     As to Clause 2.12, I think that opinion in Australia would be divided, but that majority (and informed) opinion would favour the grant of the visa, more particularly having regard to the interests of the children and the fact that again having regard to the evidence the Visa Applicant’s treatment by the courts of his own country was harsh.

87.     The character evidence before me is not of much assistance but it does indicate that the Visa Applicant has, apart from the two convictions to which I have referred, a clean record. Some of the affidavit evidence is, as I have indicated, of dubious veracity.

88.     Hardship under Clause 2.17 is of limited relevance having regard to the conclusions to which I have come. The Applicant did not ever have the faintest intention of residing in Turkey and no power on earth would induce her to do so. I accept, however, that it would be hard for her to do so. Although she speaks Turkish and is of Turkish origin, she has married a man of limited education who has achieved little. The future for her (and the children) in Turkey would be bleak. I do not regard hardship to Isa as relevant; I think that it is likely that he played a more important role than his short witness statement would suggest.

89. This is a case where the balance falls in favour of the Visa Applicant, especially having regard to the interests of the children. This being so, the decision under review is set aside; the Tribunal substitutes a decision that the Visa Applicant’s Spouse (Provisional) (Subclass 309) Visa not be refused on the basis that he does not pass the character test under section 501 of the Migration Act 1958.

I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.

Signed:         A. Garcia       
  Associate

Dates of Hearing  17 March, 24 – 25 May and 17 June 2005
Date of Decision  6 July 2005         
Counsel for the Applicant         Mr L Karp

Solicitor for the Respondent      Mr A Chand