Uysal and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Uysal and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2871 (2 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5059
Re:Bulent Uysal
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Kira Raif
Date:2 September 2022
Place:Sydney

The decision under review is set aside.
................................[sgd]........................................
Senior Member Kira Raif
Catchwords
MIGRATION – refusal to grant a Class BB Subclass 155 Resident Return – where visa was refused under s 501(1) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – expectations of the Australian community – other considerations – international non-refoulement obligations - extent of impediments if removed – links to the Australian community – the strength, nature and duration of ties to Australia – refusal of visa is revoked - decision under review set aside
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Kira Raif
1 September 2022

This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancelation of a Class BB Subclass 155 Resident Return visa (RRV) held by the applicant.
The applicant is a national of Turkey, born in November 1977. He first travelled to Australia in February 2006 as a holder of the Provisional Partner visa and he was granted the permanent Partner visa in 2007. In August 2016 the applicant was granted the RRV.
The applicant was convicted of several offences between 2008 and 2019, which are described in more detail below. In June 2020 the applicant’s RRV was mandatorily cancelled under s 501(3A) of the Act because it was determined that the applicant did not pass the character test. The applicant was invited and made representations about the revocation of the decision to cancel his visa. On 10 June 2022 a decision was made under s 501CA(4) not to revoke the mandatory cancellation decision. The applicant is seeking review of that decision.
It is not in dispute that the applicant had made representations about the cancellation of his visa. The issues before the Tribunal are:
(i)Does the applicant pass the character test, as defined by s.501 and if not,
(ii)Is there another reason why the original decision should be revoked.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be set aside.
RELEVANT LAW
Section 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) (paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA(3) provides that as soon as practicable after making a decision under
s 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Minister, “within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision”.
Section 501CA(4) allows for a revocation of a decision under s 501(3A) and relevantly states as follows:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The “character test” is defined in s 501(6) of the Act. Relevantly, s 501(6)(a) provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); …
Section 501(7)(c) relevantly provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
On 15 April 2021 the Minister issued Direction 90 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (“Direction 90”) under s 499 of the Act. Direction 90 is binding on the Tribunal in performing its functions, or exercising powers under s 501 of the Act.
Direction 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at cl 5.2(2) of Direction 90 states that:
The non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The primary considerations which are set out in cl 8 of Part 2 of Direction 90 are:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
15.The other considerations which are set out of cl 9 in Direction 90 are:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims;
d)Links to the Australian community including
-Strength, nature and duration of ties to Australia;
-Impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: cl 7(2) and (3) of Direction 90.
In this case, it is not in dispute that the applicant has made representations about the revocation of the cancellation of his visa. The requirements of s 501CA(4)(a) are met.
Does the applicant pass the character test?
The character test is defined in s 501(6) of the Act. Relevantly, s 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in s 501(7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more or, under s 501(7)(d), the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
The Tribunal has been provided with the report of the NSW Department of Corrective services setting out applicant’s convictions. Information in the respondent’s Statement of Facts, Issues and Contentions (SFIC), which the Tribunal accepts as accurate, indicates that the applicant has been convicted of the following offences:

Date convicted

Offence

Sentence

17/11/08

Maliciously wound (2 counts)

Periodic detention (9 months)

20/11/12

Drive while under the influence of alcohol or drugs

Resist or hinder police

Community service (80 hours) and disqualification

27/07/17

Armed with intend to commit indictable offence

Stalk / intimidate intend fear physical etc harm

2 year good behaviour bond and community service

03/12/19

Participate criminal group contribute criminal activity

Receive property – theft

3 years imprisonment with 18 months non-parole period

The applicant concedes that he does not pass the character test. The Tribunal finds that the applicant has been sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the applicant has a substantial criminal record as defined in s 501(7)(c) and s 501(7)(d) of the Act. As the applicant has a substantial criminal record, he does not pass the character test. The requirements of s 501CA(4)(b) are not met.
Is there another reason why the original decision should be revoked?
The applicant made representations seeking the revocation of the cancellation decision in July 2020 and, in response to the invitations from the delegate, further representations were made in February 2021 and May 2021. The Tribunal has had regard to the applicant’s representations, as well as his submissions and evidence to the delegate, in addition to the evidence subsequently provided to the Tribunal by the applicant and the respondent.
In oral submissions, the applicant concedes that there is substantial offending but states that there is a contest between the best interests of his son and the offending in relation to the insulation (2016-2019) which resulted in a period of imprisonment. The applicant submits that where possible, the best interests of the children should prevail. The applicant submits that once the analysis is done of all the offending, taking into account that alcohol was the main contributor and he has now had substantial treatment and is rehabilitated, it is a balancing act between the best interests of the children and the last offence and in the applicant’s submission, the balance should be in favour of the best interests of the children, more significantly, his son.
The respondent submits that all the primary considerations are relevant. The respondent submits that the applicant has a history of the family violence. The respondent concedes that the best interests of the son weigh in favour of the revocation and links to the community also weigh in the applicant’s favour but submits there are other matters that should be taken into account.
The Tribunal’s considerations are set out below with regard to Direction 90.
Primary considerations
Protection of the Australian Community
Sub-clause 8.1 of Direction 90 provides as follows:
11.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind 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…. Decision-makers should also give consideration to:
- the nature and seriousness of the non-citizen’s conduct to date
-the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of the Direction states that violent crimes, crimes of violent nature against women and acts of family violence are viewed very seriously by the Australian government in the Australian community.
In considering the nature and seriousness of the applicant’s conduct to date, the Tribunal has had regard to the information int the NSW Police Facts Sheets, that are before the Tribunal, as well as the applicant’s oral evidence. The evidence indicates that, in relation to the most recent offence of theft / participating in a criminal group, the activities occurred over about a two-year period and resulted in substantial amounts being misappropriated. The fact that the applicant was given a custodial sentence of 36 months (with a non-parole period of 18 months reduced on appeal) indicates that the offence was viewed by the sentencing judge as serious.
In his oral evidence to the Tribunal the applicant sought to minimise his involvement in the offence, stating that he did not approach the other person but was himself approached, that he was not the organiser and others were involved. He also told the Tribunal that he was motivated by greed, having a better lifestyle and supporting his family overseas. The applicant appears to blame others for his actions and the Tribunal is not satisfied that he is genuinely cognisant of the extent of his own culpability.
The Police Facts Sheets record that in 2017 the applicant was seen threatening his step-daughter with a meat-cleaver while intoxicated. In oral evidence the applicant admits that he had broken beer bottles in front of her home but denies using a meat cleaver on that occasion but that appears to be inconsistent with the police report and the applicant’s own evidence to the court at the time. The Tribunal is mindful that he has been convicted of the two offences in relation to the incident, ‘armed with intend to commit indictable offence and stalk / intimidate intend fear physical etc harm’ and the conviction is evidence that the offences had been committed, despite the applicant’s present denials. This incident resulted in the applicant being the subject of an Apprehended Violence Order for a period of two years.
The applicant submits that there was no physical assault and no physical injuries caused to the victim and while the Tribunal acknowledges that was the case, it unlikely that the victim was any less fearful at the time. The Tribunal does not consider that the seriousness of the threat of violence can be denigrated in the circumstances where actual violence does not take place. The Tribunal considers offending of the family violence nature to be very serious.
In 2012 the applicant was convicted for driving under the influence and hindering police officer in the execution of duty. The evidence indicates that when the applicant was taken into police custody and the police attempted to take a blood sample, the applicant pretended to have a heart complaint and he was taken into hospital so the sample could not be taken. In relation to these offences, the applicant concedes in oral evidence that he was driving while under the influence of alcohol and that he had deliberately lied to the police by pretending to have a heart episode which prevented the taking of the blood sample for testing. The applicant was sentenced to 80 hours community service and given a two-year good behaviour bond.
In relation to the 2008 offences of malicious wounding, for which the applicant was sentenced to periodic detention, it is recorded that the applicant had an argument with another person and struck another person several times with a machete. In oral evidence, the applicant appears to admit that he was the aggressor in the incident and not acting in self-defence.
In his submission to the Tribunal the applicant states that he had been granted the RRV after these offences occurred. The Tribunal is mindful that the applicant did not disclose all of his convictions on the application form when applying for the RRV (which is addressed below) but even if he did, the fact that the applicant may have been found to be of good character when the RRV was granted does not mean that the Tribunal is unable to revisit the issue and to consider those offences in its overall assessment of the seriousness of the applicant’s conduct.
The Tribunal considers that some of the above offences involved actual violence or threats of violence against others. In the Tribunal’s view, these are very serious offences. The offences involving domestic violence are also serious offences.
The Direction allows the Tribunal to consider the frequency of the offending. In this case, the offences were multiple and spanned over a period of approximately ten years. It cannot be said that the applicant acted on impulse and did not appreciate the nature of his conduct. In oral evidence, the applicant confirmed that he realised he had an issue with alcohol and that it was affecting his conduct, yet he did nothing about it. The repeated nature of the offending, and the lengthy period over which the various offences took place and the applicant’s failure to take any meaningful action to rectify the situation until recently (notably, his interactions with Mr Rodriguez seem to coincide with his involvement in the criminal justice system), all suggest to the Tribunal that the applicant has little regard for the law.
There is also before the Tribunal the applicant’s traffic record report which indicates that he has been fined on three occasions between July 2006 and August 2010 for not giving proper or timely signal and two occasions of excessive speed. In December 2011 his license was suspended. It also shows the applicant’s persistent disregard for the Australian laws.
The Direction also indicates it is relevant to consider whether the applicant had provided false or misleading information to the Department, including by not disclosing his criminal offending. There is before the Tribunal a copy of the applicant’s application for the Australian citizenship, signed in October 2015. In it, the applicant confirms that he had been convicted of an offence and refers to the November 2008 conviction of malicious wounding. The applicant makes no reference to the 2012 offending in that application form and the Tribunal has formed the view that his answers on that form were not entirely truthful. There is also before the Tribunal a copy of the applicant’s application for the RRV in which he stated ‘no’ in response to a question whether he has been convicted of an offence in any country.
There is before the Tribunal the applicant’s application for the Australian citizenship. In that application he disclosed the past criminal offending and referred to the malicious wounding offences but not the 2012 offending. The applicant explained to the Tribunal that at the time his English was poor and he was not sure if drink driving was a criminal offence. The Tribunal does not accept that evidence, firstly because the Tribunal is not satisfied the applicant had poor English, given the length of his residence in Australia, and also because even if the applicant did not think drink driving was a criminal offence, he would have recognised that stalking / intimidation was an offence.
Further, there is before the Tribunal a copy of the Incoming Passenger Card (IPC) completed by the applicant in 2017 in which he failed to disclose his previous convictions. The applicant explains that he either misunderstood the question on the IPC to mean convictions overseas or that he did not think he needed to disclose convictions that had been previously disclosed but the Tribunal is mindful that the question on the form does not provide any such limits but simply asks whether the applicant had been convicted of an offence, so it is difficult to see how it could have been misinterpreted.
The applicant submits in his evidence to the Tribunal that the fact that he did disclose his convictions on the other IPCs is evidence of his good character as he was truthful in answering the questions. In the Tribunal’s view, the applicant’s compliance with the requirements of the Migration Act cannot be viewed as evidence of positive good character (as his failure to comply with the requirements of the Act can be viewed as evidence of bad character.)
All these factors indicate to the Tribunal that the applicant’s criminal and other conduct to date has been very serious.

The Tribunal has considered the risk to the community, should the applicant reoffend.
The applicant states, essentially, that in 2019 he was diagnosed with depression, anxiety and alcohol use disorder for the first time and prior to that he did not receive professional counselling or treatment. The applicant states that he has been abstinent from alcohol since February 2020 so the underlying reason for all offending is no longer present.
In his submission to the delegate the applicant states that there is no evidence that he is likely to cause harm to the community. The applicant notes that he has completed several rehabilitation programs (evidence of his completion of various course is before the Tribunal) and poses a low risk of threat. The applicant states that there is no likelihood that he would engage in family violence and he is considered by others to be a ‘family man’. In his evidence to the Tribunal the applicant refers to the reasons for his past offending. He states that the primary cause was alcohol and if it was not for the alcohol, most or all of the offences would not have been committed. There is before the Tribunal a report prepared by Dr Allan Donatossian Gregor who refers to the applicant having suicidal intention and thoughts. In a report dated 29 June 2019 Dr Gregor expresses the view that the applicant is suffering from major depression and alcohol excesses which caused psychosis. The Department of Justice Health and Forensic Mental Health Network refers to the applicant having a history of mental health issues such as anxiety, depression, isolation and mood swings.
In his submissions to the delegate and the Tribunal the applicant outlined the various programs he has completed. The Tribunal has been provided with a report issued by NCSNW outlining the program participation by the applicant while in detention. The applicant also presented a statement from Ms Staunton, alcohol and other drug counsellor at Odyssey House which refers to the applicant commencing treatment in July 2019. There is before the Tribunal a report by Ms Tammy Shiva, an AOD Counsellor at Odyssey House. Ms Shiva also refers to the assessments and programs undertaking by the applicant, stating he is an active participant. Mr Rodriguez’ view of the treatment the applicant received at Odyssey House was ‘not much’. There is also evidence from Expand Counselling which shows that the applicant has attended online counselling sessions to address behaviour change management and anger management skills.
The Tribunal has had regard to the report prepared by Mr Hugo Rodriguez dated 4 July 2019. The report appears to have been prepared after a single consultation which occurred only a few days prior to the report being written on 1 July 2019. In his report Mr Rodriguez refers to the applicant having alcohol dependence and states that the applicant does not exhibit traits normally found in the ‘typical criminal’ such as antisocial tendency or personality disorder. With respect to the applicant’s current psychological functioning, Mr Rodriquez refers to a DASS test (which is a self-reported test and, for that reason, may not be entirely accurate) and states that the applicant’s results are indicate of extreme depression, anxiety and severe stress. Mr Rodriguez identifies the likely psychological reasons for the offences as alcoholism and altered mood and the applicant reported the offences occurring in 2011 and 2017 were the direct result of impairment of judgment caused by alcohol intoxication while the 2006 offence occurred after heavy drinking the night before. However, in oral evidence to the Tribunal Mr Rodriguez concedes that he was not fully aware of the circumstances of the applicant’s past offending and, as such, his assessment that the offending was caused by alcohol may not be probative.
These observations are, in the Tribunal’s view, of somewhat limited value given that at the time of writing the report and formulating his opinions, Mr Rodriguez saw the applicant only on one occasion, this occurred many years after many of the offences had been committed, the findings are based on a self-reported DASS questionnaire which could have been self-serving, and with at least some of the information which formed the basis of Mr Rodriquez’s conclusions being offered by the applicant himself (such as the fact that some of the earlier offences occurred due to alcoholism). It is not apparent from the report that Mr Rodriguez had conducted any independent testing to ascertain the truthfulness of the applicant’s explanations for his past conduct, nor was there any independent testing of his mental state other than the self-reported questionnaire.
It is also of note that in oral evidence to the Tribunal the applicant concedes that the description of the incidents in Mr Rodriquez’ report is significantly different to what had in fact occurred and Mr Rodriguez’ evidence to the Tribunal also indicates that there were some discrepancies between the information supplied to Mr Rodriguez’ and the findings made in the criminal proceedings, as set out in the sentencing remarks. The Tribunal gives Mr Rodriguez’ evidence little weight in ascertaining the reasons for the earlier offending.
The Tribunal has also had regard to the subsequent reports prepared by Mr Rodriguez, with the most recent one dated August 2022. These refer to the applicant attending treatment sessions in which he participated ‘keenly’. In oral evidence, Mr Rodriguez clarified the applicant attended four counselling sessions. Mr Rodriguez’ reports indicate that symptoms of depression, anxiety and stress have resolved considerably due to the fact that the applicant does not take alcohol and is taking mood regulating medication and has also implemented therapeutic strategies. The August 2022 report by Mr Rodriguez indicates that the applicant has successfully rehabilitated and presents a low risk of reoffending. In oral evidence Mr Rodriguez confirmed that alcoholism has gone into remission phase and in his opinion, there is a low risk of the applicant consuming alcohol again and reoffending. The Tribunal acknowledges that opinion.
The applicant submits that he has no offences in Turkey and was granted the RRV in 2016 despite four previous convictions. The applicant notes that there is no pattern of violent or general offending and the last violent offence occurred in February 2017 with no physical assault or injury. The applicant states that the has successfully completed treatment and it is unlikely that he may present a risk of further offences or of harm to himself or others. The applicant refers to his past compliance with community service requirements and periodic detention and s. 9 bond conditions and states that there had been no offences in detention. (The Tribunal is mindful that despite such compliance commencing with the requirements of periodic detention, bond and community services, the applicant reoffended on multiple occasions, so that his previous compliance with the conditions is not an indication of the low risk of reoffending).
The applicant submits that he has rehabilitated himself, is abstinent from alcohol and is in a committed loving relationship. The applicant refers to his employment, significant family ties and states that there is low risk of general and violent reoffending. In oral evidence, the applicant stated that he had completed many courses while in detention and had never stopped. He promises not to drink again and states that he would not reoffend again. The applicant told the Tribunal that prison has had a major effect on him and because of his imprisonment, and his fear to lose his family, he would not drink alcohol again. The applicant states there had been situations in jail where there was violence but he has been able to avoid it. The Tribunal accepts that there is no evidence of any offence being committed since the 2019 conviction.
The Tribunal is prepared to accept that much of the past offending was caused by the use of alcohol and this seems to be the finding made by the judges during the criminal proceedings. However, the Tribunal is also mindful that in July 2019 when completing the Personal Circumstances Form the applicant does not refer to alcohol as being a contributor to his earlier criminal conduct and the notes from the NSW Department of Corrections Services also suggest that the applicant denied having alcohol or drug’s dependence. The applicant told the Tribunal that he did not recognise the significance of alcohol at the time but in the Tribunal’s view, it is also possible that the applicant is now seeking to exaggerate his past reliance on alcohol as a reason for the offending in order to establish that this stressor has been removed.
The Tribunal has generally formed the view that, despite the applicant’s participation in the rehabilitation programs and courses, his undertaking not to drink and not to engage in criminal conduct in the future cannot be accepted unequivocally and the applicant’s ability to do so is not without doubt. The Tribunal places significant weight on the fact that since undertaking professional counselling and treatment, the applicant would have spent only limited time in the community and his opportunities for drinking and for engaging in criminal conduct would have been far more limited than if he was living in the community. The applicant would not have had the same opportunities to access alcohol as he would in the community and in his evidence to the Tribunal the applicant concedes that alcohol is difficult to obtain in an immigration centre. He would have also had far more limited opportunity to commit economic crimes while in detention. In these circumstances, his undertaking not to use alcohol (which seems to have been a precursor to much of his offensive conduct in the past) has not been adequately tested. In his evidence to the Tribunal Mr Rodriguez’ also agreed that it would be more difficult for the applicant to abstain from alcohol if it is readily available.
The Tribunal has had regard to the report prepared by the Community Corrections Officer dated 29 November 2019 in relation to the most recent offending. In relation to risk assessment, it states that the applicant has been assessed as ‘medium – low risk of reoffending’. The Tribunal acknowledges that the applicant had been granted parole in November 2021 but is mindful that the risk of reoffending in that report has been assessed as medium to low, rather than low or non-existent.
The Tribunal also places some weight on the fact that the most recent offence did not involve, and did not result from, the use of alcohol. The applicant refers to ‘being greedy’. That offence, the seriousness of which is emphasised by the fact that the applicant had received a custodial sentence, appears to have been the result of the deliberate and calculated choices made by the applicant, over a prolonged period of time, and not due to any incapacity caused by the use of alcohol. In these circumstances, the various programs completed by the applicant may not be evidence of the applicant’s rehabilitation. While the Tribunal accepts that the applicant does not wish to return to jail and that possibility would act as a deterrent, the Tribunal is not fully satisfied that, with the passage of time, the threat of jail would act is a sufficient deterrent to future reoffending.
The Tribunal has formed the view that the risk of reoffending remains, even though that risk if lower than it was before the applicant’s incarceration. The risk is dependent on the applicant’s use of alcohol and his ability to abstain from it has not been adequately tested at present. The Tribunal finds that if the applicant was to reoffend, the risk to the Australian community would be significant, given the potential seriousness of the offences involving drink driving, violence or threat of violence to others and economic harm. The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
Clause 4(1) of the Direction 90 defines family violence as violent, threatening or other behaviour by a person that… causes the family member to be fearful.
There is before the Tribunal the NSW Police facts Sheet in relation to the 2017 offence which sets out the following information. The victim was the daughter of the applicant’s then partner. It is stated that the applicant was seen leaving the victim’s house after there was a sound of broken glass in front of her house and she found broken beer bottles. When the victim visited the applicant’s home, the applicant walked down his driveway holding a meat cleaver and he approached the victim. (As noted elsewhere, the applicant denies having or using a meat cleaver but admits breaking beer bottles.) The applicant was said to be yelling at her and threatening to kill her. The Tribunal has been provided with the Apprehended Domestic Violence Order in relation to the applicant, naming his step-daughter as a protected person. The ADVO was issued in June 2017 for a period of 2 years. The Tribunal finds that the 2017 offence constitutes family violence.
The 2008 also involved a family member. The circumstances are set out above and suggest the use of significant physical violence and threat of violence towards another person. The Tribunal is of the view that this offence also constitutes family violence.
In considering the seriousness of the family violence engaged in by the applicant, the Tribunal has had regard to the factors set out in paragraph 8.2(3) of the Direction. There is no evidence before the Tribunal to indicate the family violence offending occurred frequently. The applicant appears to understand the impact of his behaviour but the Tribunal is not satisfied that he genuinely accepts the responsibility for his conduct, given his evidence that in 2008 he was the victim rather than the perpetrator (the applicant ultimately conceded that was not the case) and that no meat cleaver was used in 2012 despite the findings made during the trial.
The applicant states in his submission to the delegate that he has provided statements of support from others, including his spouse and the applicant’s partner and step-daughter both gave oral evidence to the Tribunal in support of the applicant.
The Tribunal finds that some of the applicant’s offending involved family violence and the Tribunal is not satisfied that the applicant has full insight into his conduct. This factor weighs against the revocation.
The best interests of minor children in Australia
The applicant states in his submission to the delegate that his children and grandchildren are in Australia and have no intention of moving overseas. The applicant states that due to COVID, it would be ‘near impossible’ for him to remain in contact with his family. The applicant provided to the delegate a birth certificate for his son, who is now 15 years of age, as well as his school records. He also refers in his evidence to the delegate to his two step-children from his current de facto relationship, as well as grandchildren. In his evidence to the delegate the applicant refers to having a strong relationship with his step-children and grandchildren, including emotional and financial support that he provides to them.
In oral evidence, the applicant stated that his 15 years old son currently lives with his fiancé. He states that his son is ‘okay’ but he is under stress because of his situation. He has been in detention for 10 months, causing stress to his son. The applicant states that he has daily contact with his son, monitoring his school activities. The applicant states that his son’s schooling was affected by his imprisonment and later detention and his results had deteriorated and his behaviour had been affected. The applicant states that his son has been affected because there is no father figure and due to his behaviour, he had to change schools. The applicant’s son provided a written statement to the Tribunal in which he refers to the effect of the separation from his father including depression.
There is before the Tribunal a statement from Mr Rodriquez relating to the applicant’s son although Mr Rodriguez’ evidence to the Tribunal is that he had seen the son only once for about a 50-minute session and he does not believe further intervention is necessary.
The Tribunal accepts that the applicant has a close relationship with his son and that the separation has affected the son. The Tribunal is prepared to accept that if the applicant is to leave Australia as a result of his visa being cancelled, it is likely to result in further separation of the applicant and his son and that may also adversely affect the son’s mental health and well-being.
The applicant argues that the best interests of his son outweigh other considerations. The respondent claims that if the applicant was to live overseas, he would be able to maintain a meaningful relationship with his son – as he had done with other family members in Turkey and as he has been able to do while in detention – and that consideration should also be given to the son’s age, as he will soon reach the age of majority. The Tribunal acknowledges these submissions but is of the view that any relationship the applicant will have with his son by electronic means will be of vastly different nature than the relationship they will have if the applicant was to remain in Australia. The evidence before the Tribunal is that the child’s mother is presently overseas and intends to stay there if the child has appropriate support in Australia, and there are plans that the son will spend considerable time with the applicant and his family in the future. The quality of that relationship cannot be replicated by electronic contact.
The Tribunal also acknowledges that the child is 15 years of age at present. While it is correct to state that he will reach the age of majority in only a few years, it is also significant, in the Tribunal’s view, that the child is now at a formative age where the effect of relationships and separation may be more profound on him now than what it may have been if the child was younger. That is, the child age is significant not only in ascertaining when the child will reach majority, but also the effect that the visa decision will have on that child. The evidence before the Tribunal indicates that in this case, the applicant and his son have a close relationship, that the applicant is fulfilling his parental responsibilities and that the separation of the child from his father (which is likely to be lengthy due to the practicalities and the expense of travel to Turkey) will have significant adverse effect on the best interests of the child. The Tribunal has formed the view that the son’s best interests are such that the cancellation of the applicant’s visa should be revoked.
The applicant also refers to having a close relationship with his step-children and three grandchildren, aged 5, 5 and 18 months. The applicant states that he has a good relationship with the children and he has always engaged in activities with the children. The respondent submits that the applicant has had only limited interactions with the younger child due to his incarcerations and that he has been able to maintain a close relationship with the children by electronic means during the incarcerations. The respondent also notes that there are other persons in the children’s lives who have parental responsibilities. The Tribunal acknowledges that evidence but is satisfied, having heard in particular from the applicant’s partner and step-daughter, that the applicant plays a meaningful role in relation to the grandchildren and that there is a degree of attachment. Thus, while the Tribunal accepts the respondent’s submission that such a relationship could be maintained even if the applicant was overseas, the Tribunal acknowledges that the applicant’s departure from Australia may affect the nature of his relationship and the possibility of a closer relationship with these children in the future. The Tribunal has formed the view that it is in the best interests of the applicant’s grandchildren that the cancellation of his visa is revoked.

This factor weighs strongly in favour of the revocation.
Expectations of the Australian community
Clause 8.4 of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] Deputy President Block explained:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
In his submission to the delegate the applicant states that he has undertaken anger management courses and alcohol rehabilitation programs with Odyssey House. The applicant refers to the sentencing remarks which refer to ‘special circumstances’ (being alcohol abuse) and his willingness to rehabilitate, showing remorse and willingness to change his behaviour pattern. the applicant submits these matters show that he does not pose a danger to the community. The applicant states that there is no evidence that he is likely to reoffend and there is extensive evidence of rehabilitation and multiple letters of support. The applicant has expressed remorse and made an undertaking to abide by the Australian laws.
As noted above, the Tribunal accepts that the applicant had completed rehabilitation programs, has expressed remorse and willingness to change. However, the Tribunal gives these matters limited weight as evidence that the risk of reoffending is low or non-existent. Firstly, the applicant has spent considerable time in detention and not in the community and, as such, he has not had the opportunity to test his resolve not to use alcohol. He has not been subject to the level of temptation that may be available to him in the general community. There is thus little probative evidence to support the applicant’s contention that he will not consume alcohol and will not reoffend because he has not had much opportunity to do these things.
Secondly, the Tribunal is also mindful that at least some of the offensive conduct was not dependent on the applicant’s use of alcohol. The most recent offending of participating in criminal group contribute criminal activity and receive property (theft) was not committed because of the use of alcohol. Thus, even if the Tribunal were to accept the applicant’s claim that he would never use alcohol in the future, that does not necessarily satisfy the Tribunal that there is no risk of reoffending, given that some of the past offending was not due to the influence of alcohol. The Tribunal has also found that the applicant had not always been truthful in his dealings with the Department of Immigration when completing immigration paperwork and that willingness to not comply with the legal obligations was also not dependent on the use of alcohol.
As for the applicant’s undertaking to abide by the Australian laws, the Tribunal gives it little weight, given the persistent non-compliance in the past, spanning many years. In the Tribunal’s view, more time needs to pass, and particularly more time when the applicant has lived in the community, to determine if his remorse and undertaking not to reoffend are genuine.
For the reasons stated above, the Tribunal has formed the view that the risk of reoffending continues. The Tribunal has also found the offending to be serious, both the criminal offending and the general non-compliance with the laws, such as providing incorrect information in the various immigration forms.
The Tribunal has formed the view that the nature and the seriousness of the offences, the repeated offensive behaviour over a number of years and the potential harm to the community arising from the offences – even acknowledging that the risk of reoffending may be low - are such that the Australian community would expect that the applicant should not hold a visa. The Tribunal finds that the community expectations would weigh against revocation.
Other considerations
International non-refoulement obligations
The applicant’s evidence to the Tribunal is that he does not claim there are non-refoulement obligations arising in his case. This consideration is neutral.
Extent of impediments if removed
In his submission to the delegate the applicant states that his family are Australian citizens and permanent residents and can remain in Australia indefinitely. Evidence before the Tribunal is that the applicant has been in a de facto relationship for a little over ten years and the Tribunal received oral evidence from his de facto partner and step-daughter and there are also before the Tribunal written statements from the applicant’s partner and step-daughter who provide character references for him. The applicant’s partner spoke about their plans to get married in 2019, the applicant’s close relationship with family members and the hardship she would experience if the applicant was to leave Australia. The Tribunal accepts that evidence.
The Tribunal heard from Ms Sharin Morrison and Ms Tanya Morrison. Both spoke about the close connections the family has with the applicant, in particular Ms Tanya Morrison’s children. The Tribunal accepts that evidence. Ms Sharin Morrison also spoke about the applicant attending family functions and supporting the family. The Tribunal accepts that prior to his detention, the applicant has developed a good relationship with his partner and her family. The Tribunal has also received evidence from the applicant’s former spouse Ms Akbalik. She told the Tribunal that she plans to live in Turkey for some time and hopes to live their child with the applicant. She spoke about the close relationship between the applicant and their son and states that they have been able to maintain the connection on the phone when they were not able to visit the applicant in person. The Tribunal acknowledges the evidence that if the applicant’s visa is cancelled, that would affect Ms Akbalik’s plans to move to Turkey.
The applicant states in his written evidence that he suffers from anxiety and depression and has enrolled in an EQUIPS program targeting aggression, addiction and domestic abuse and it is in his best interest to have the ability to complete that program. The applicant states that displacement because of revocation will not allow him to seek adequate professional help that is provided by this program. The Tribunal does not accept that evidence because the applicant has presented no evidence to indicate that professional programs of similar nature would not be available to the applicant outside of Australia, if the applicant is required to leave the country as a result of his visa being cancelled. The Tribunal does not consider there would be an impediment to the applicant due to his inability to complete rehabilitation programs in Australia.
There is also before the Tribunal a statement from the applicant’s son who refers to the effect that the separation from his father has had on him. This has been addressed more fully above and the Tribunal has accepted that separation of the applicant and his son could cause both considerable hardship.
The Tribunal has also had regard to the report of Mr Rodriquez who states that the applicant’s partner displays symptoms of severe anxiety, stress and depression. Mr Rodriguez expressed the view that if the applicant is to leave Australia, his partner’s Adjustment Disorder may continue and she may not recover well. Mr Rodriguez stated that if the family cannot be reunited, his partner and son will be adversely affected and their symptoms would continue. The Tribunal gives that evidence some weight.
The applicant’s evidence to the Tribunal is that he has maintained a close relationship with his parents and siblings in Turkey despite having no contact in person. The respondent submits that the applicant would equally be able to maintain relationships with his family members in Australia if he was to leave and while the Tribunal accepts that is so, the nature of such a relationship would be very different.
Generally, the Tribunal accepts that if the applicant is removed from Australia, it would result in separation of the applicant from his family in Australia and cause hardship to the applicant and others. The Tribunal accepts that there would be a significant impediment to the applicant and others if he is removed from Australia. This weighs heavily in favour of the revocation.
Impact on victims
The Tribunal has heard from Ms Morison in relation to the 2017 incident There is no evidence before the Tribunal concerning any impact on victims.
Links to the Australian community
The applicant has been living in Australia since February 2006, first as a holder of a temporary visa and subsequently holding permanent visas. His evidence to the Tribunal is that he had never returned to Turkey since migrating to Australia. The applicant refers to the presence of his partner, children and grandchildren in Australia and states that it is in the interests of his family for him to remain in Australia. The Tribunal accepts that in the lengthy period of his stay in Australia, the applicant has formed strong connections in Australia, including family, business, social and other links. The applicant presented multiple character references (including from his present partner and former partner, co-workers, the prison chaplain and others) and supporting statements and the Tribunal accepts that the applicant has extensive social ties to Australia. The Tribunal also accepts that those who provided the reference genuinely hold the views expressed in those references.
The applicant provided to the Tribunal evidence of his past study, including statements of attainment issued by TAFE and there is before the Tribunal evidence relating to the operation of the applicant’s business. The applicant told the Tribunal that if released, he can run his own business and he also has an offer of a full-time job.
The Tribunal accepts that the length of the applicant’s residence in Australia is significant and that during that residence he has formed strong ties to Australia, including family, social, employment and other ties.
There is also before the Tribunal evidence concerning the applicant’s past employment in an insulation company and of his operating a business prior to his detention. The applicant provided his Notices of Tax Assessment issued between 2012 and 2019, bank records and other documents. In his submission to the delegate the applicant states that the business continues with the support of a business partner and employs several staff. The Tribunal accepts that the applicant has employment and business ties in Australia. That evidence does not establish that Australia’s business interests would be adversely impacted upon by the cancellation of his visa.
The Tribunal accepts that the applicant has extensive family, business and employment, social and financial links to Australia. That consideration weighs in favour of the revocation.
Conclusion
The Tribunal has formed the view that the applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the applicant had committed serious offences and there remains a risk of reoffending. The nature of the offending and the applicant’s general disregard for the law are such that his conduct is against the expectations of the Australian community. The applicant had committed family violence offences. The Tribunal has found that the protection of the Australian community, the fact that the applicant had committed family offences and the expectations of the Australian community all weigh heavily against the revocation. These are primary considerations and the Tribunal gives these significant weight.
The other primary consideration, the best interests of minor children in Australia, weighs in favour of the revocation. In this case, the Tribunal accepts that the applicant’s son would be adversely affected by the separation with his father with whom he appears to have a close relationship and this may be particularly difficult for the child at his age, as he is going through the formative years and, should the applicant leave Australia, will have very limited opportunities of seeing him in person for some time. There are other children who would be affected by the cancellation – three of the applicant’s grandchildren – and while the impact on them may not be as significant, the Tribunal accepts the evidence that they also have a good relationship with the applicant and consider him as their grandfather.
The Tribunal accepts that the applicant has significant ties in Australia, in particular the presence of his son, his de facto partner of many years and her family, and other social and business ties. The Tribunal acknowledges that the applicant has been living in Australia for about sixteen years. The Tribunal also accepts that there will be some impediment if the applicant is removed from Australia, including the risk of the breakdown of familial relationships that have been formed in Australia. The Tribunal accepts that the significant impediments if the applicant is removed from Australia would strongly favour revocation.
Overall, the Tribunal acknowledges the seriousness of the applicant’s conduct and considers that there are circumstances that are against the revocation. However, in the particular circumstances of this case, the Tribunal has determined that the best interests of minor children in Australia, the strength and nature of the applicant’s ties to Australia and the impediments if removed, outweigh other considerations. The Tribunal determines that the cancellation should be revoked. The Tribunal acknowledges that, should the applicant be convicted of any offences in the future, consideration may again be given to the cancellation of his visa.
DECISION
The Tribunal sets aside the reviewable decision and substitutes a decision that the mandatory cancellation of the Resident Return visa is revoked.

I certify that the preceding 97 (ninety seven) paragraphs are a true copy of the reasons for the decision herein of

Senior Member Kira Raif

……………..[sgd]..........................
Associate
Dated: 2 September 2022

Date of hearing: 25 and 26 August 2022

Solicitors for the Applicant: Ms Kim Hunter, Hunter Flood Lawyers

Solicitors for the Respondent: Ms Sophie Roberts, Mills Oakley Lawyers

[2022] AATA 2871

2 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date convicted	Offence	Sentence
17/11/08	Maliciously wound (2 counts)	Periodic detention (9 months)
20/11/12	Drive while under the influence of alcohol or drugs Resist or hinder police	Community service (80 hours) and disqualification
27/07/17	Armed with intend to commit indictable offence Stalk / intimidate intend fear physical etc harm	2 year good behaviour bond and community service
03/12/19	Participate criminal group contribute criminal activity Receive property – theft	3 years imprisonment with 18 months non-parole period