Yildirim and Minister for Immigration and Border Protection (Migration)

Yildirim and Minister for Immigration and Border Protection (Migration) [2017] AATA 1353 (24 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3814
Re:Feruz Yildirim
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:24 August 2017
Place:Sydney

The decision under review, being the decision made 5 April 2016 by a delegate of the Minister for Immigration and Border Protection, to exercise the discretion to refuse Mr Kilic’s application for a Partner visa, is affirmed.
......................................[sgd]..................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – visa – partner visa – refusal to grant visa – character test – risk would engage in criminal conduct in Australia – crimes committed in Turkey – actual bodily harm – sexual abuse crime – unsealing legal seal – protection of the Australian community – expectations of the Australian community – impact on family in Australia – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 27
Migration Act 1958 (Cth) ss 499, 501
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President J W Constance
24 August 2017
A. INTRODUCTION

Ms Yildirim has applied to the Tribunal to review a decision of a delegate of the Minister to refuse to grant a Partner visa to her husband, Mr Kilic. Ms Yildirim is entitled to make this application as her interests are affected by the decision.[1]
[1] See section 27 of the Administrative Appeals Tribunal Act 1975 (Cth).
Mr Kilic lives in Turkey. He applied for the visa to permit him to live permanently in Australia with Ms Yildirim who has lived here since 1991. Ms Yildirim is an Australian citizen.
For the reasons which follow the decision under review will be affirmed.
B. BACKGROUND
Mr Kilic is 50 years old. He is a citizen of Turkey where he has lived all his life.
Ms Yildirim and Mr Kilic married in Turkey in 2014. Since then Ms Yildirim has travelled to Turkey on several occasions to spend time with her husband. However most of her time has been spent in Australia as she needs to care for her three daughters of a previous marriage.
Mr Kilic has been convicted of five criminal offences committed in Turkey.
Convictions for “unsealing legal seal” of electricity meter (offences committed April 2008 and May 2009)
On 16 April 2008 Mr Kilic committed the offence of “unsealing legal seal”. At the time he was operating a food business and was in some financial difficulty. He was late in payment of the electricity account and the power authority disconnected the electricity supply to his business and sealed the meter. Mr Kilic sought the advice of a friend, broke the seal and re-connected the electricity supply.
In December 2008 Mr Kilic was convicted of this offence.[2] In December 2013 an appeal court upheld the conviction and imposed a judicial fine of 3000TL (Turkish Lira).[3]
[2] Exhibit R1 pp.115 ff.
[3] Exhibit R1 p.114.
In May 2009 Mr Kilic committed the same offence in similar circumstances.[4] He was convicted at first instance on 27 October 2009. On 30 October 2012 the conviction was upheld on appeal and a judicial fine of 3000TL was imposed.[5]
Conviction for causing “actual bodily harm” (offence committed April 2009)
[4] Exhibit R1 p.122.
[5] Exhibit R1 p.125.
In April 2009 Mr Kilic committed the offence of causing actual bodily harm to his wife. In November 2009 Mr Kilic was convicted and a fine of 740TL was imposed.[6]
Conviction for causing “actual bodily harm (wilful injury)” (offence committed December 2013)
[6] Exhibit R1 pp.91-98.
In December 2013 Mr Kilic again assaulted Ms Kilic causing actual bodily harm. By this time Mr Kilic and Ms Kilic had been divorced for approximately five months.[7] Mr Kilic was convicted of this offence in December 2014 and a fine of 3000TL was imposed.[8]
Conviction for “sexual abuse crime” (offence committed 3 July 2013)
[7] Exhibit R1 p.293.
[8] Exhibit R1 pp.102-110.
In July 2013 Mr Kilic committed a sexual abuse crime, being conduct which would be described as sexual harassment in Australia. He was convicted and sentenced to five months’ imprisonment. He commenced this term of imprisonment on 2 June 2014 and was given a “conditioned discharge” on 22 September 2014.[9]
[9] Exhibit R1 pp.63-88.
Application for Partner visa
Mr Kilic made a combined application for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa in March 2015. His application was refused by a delegate of the Minister on 5 April 2016.
C. LEGISLATION
The grant of a visa to entitle a non-citizen to enter Australia is governed by the Migration Act 1958 (Cth). The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[10]
[10] Subsection 4(1).
Section 501 of the Act provides, in part:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section, a person does not pass the character test if:
…
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia …… .
Section 499 provides, in part:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
Direction No.65
In exercise of the power given by s 499, the Minister issued Direction No. 65 on 22 December 2014. It provides “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to… refuse a non-citizen’s visa under section 501…”.[11]
[11] Clause 5.
Paragraph 6.2 provides General Guidance in exercising the discretion to refuse the grant of a visa: It provides, in part:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused …… under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, …… .. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in …… Part B, …… of this Direction.
The Principles are set out in Paragraph 6.3:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The manner in which the discretion is to be exercised is set out in Paragraph 7. Informed by the principles in Paragraph 6.3 the decision-maker must take into account the considerations set out in Part B of the Direction.
Part B sets out “Primary” and “Other” considerations; it is reproduced in the schedule to these reasons.
Paragraph 8 provides that a visa applicant “should have no expectation that a visa application will be approved.” The paragraph further provides that “[p]rimary considerations should generally be given greater weight than the other considerations” and that “[o]ne or more primary considerations may outweigh other primary considerations”.[12]
[12] Subparagraphs (4) and (5) respectively.
D. ISSUES FOR CONSIDERATION
Section 501 gives the Minister (and this Tribunal when exercising its review power) a discretion to refuse a visa to a person who has not satisfied the Minister (or the Tribunal) that he or she passes the character test as defined in subsection 501(6) of the Act.
The following issues arise for determination.
(a)Does Mr Kilic pass the character test in accordance with section 501 of the Act?
(b)If not, should the discretion to refuse to grant a visa to Mr Kilic be exercised?
E. CONSIDERATION
E.1 ISSUE 1: DOES MR KILIC PASS THE CHARACTER TEST IN ACCORDANCE WITH SECTION 501 OF THE ACT?
Evidence of Dr Ashkar, Forensic Psychologist
Mr Kilic was assessed by Dr Ashkar in February 2017. Dr Ashkar provided a report dated 3 March 2017[13] and gave evidence.
[13] Exhibit A7.
Dr Ashkar had been asked to evaluate Mr Kilic’s risk of criminal recidivism. He reported “his risk of criminal recidivism is low (as determined objectively by close examination of risk factors empirically and theoretically linked to violence).”[14] Dr Ashkar administered the Violence Risk Scale (Wong & Gordon 2000) as part of his assessment. This Scale was specifically developed to assess risk of violent recidivism in forensic populations.
[14] At p.7.
When he gave evidence, Dr Ashkar agreed that he had used the original version of the scale, and not the revised edition.
Evidence of Dr Banks, Clinical Forensic Psychologist
Dr Banks assessed Mr Kilic on 15 May 2017 at the request of the Solicitors for the Minister. He provided a report dated 28 May 2017[15] and gave evidence.
[15] Exhibit R2.
In the opinion of Dr Banks, the application of the revised edition of the Violence Risk Scale (VRS-2) indicated that Mr Kilic was above the midpoint of the low risk of reoffending category.
After administering a number of further tests, Dr Banks concluded that the risk of Mr Kilic engaging in “intimate partner violence” was “moderate”.[16]
[16] At pp.11 and 12.
Discussion
Later in these reasons I will refer to the opinions of each of the doctors in greater detail. I will also give my reasons for preferring the opinions expressed by Dr Banks. However, for the purposes of this discussion, the opinions of both doctors point to there being a risk that if Mr Kilic is allowed to enter Australia he will engage in criminal conduct in Australia.
I find support for this conclusion in the sentencing remarks in the Golcuk Criminal Court of First Instance in Turkey. When sentencing Mr Kilic for the offence of causing actual bodily harm (wilful injury) the Court said:
….. as we considered the criminal record of the defendant and saw that the defendant has criminal tendency, so there is no positive opinion about the defendant of our court that he won’t commit an offence in the future …… . [17]
[17] Exhibit R1 pp.104-105.
Having decided that I am not satisfied that Mr Kilic passes the character test, it is necessary to decide whether the discretion to refuse to grant him the visa he seeks should be exercised.
E.2 ISSUE 2: SHOULD THE DISCRETION TO REFUSE TO GRANT A VISA TO MR KILIC BE EXERCISED?
Part B of Direction No.65 sets out the primary and other considerations I must take into account in deciding whether or not to exercise the discretion to which I have referred.
E.2.1 Primary considerations
The Primary considerations are set out in Paragraph 11. They are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia;
(c)expectations of the Australian Community.
Primary consideration (a): Protection of the Australian community from criminal or other serious conduct.
Paragraph 11.1 of the Direction provides that “decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.” Consideration is also to be given to the nature and seriousness of the applicant’s conduct to date and the risk to the community should the applicant commit further offences or engage in other serious conduct.
Subparagraph 11.1.1 sets out further principles to which regard is to be had in considering the nature and seriousness of the non-citizen’s criminal offending. These are set out in full in the schedule to these reasons.
Mr Kilic has been convicted of five criminal offences committed over a period of less than seven years. Two of these offences involved domestic violence, one involved conduct of a sexual nature and two involved theft. On this basis there is a low tolerance of Mr Kilic’s conduct.
The nature and seriousness of the conduct
The three offences, two of which involved violence and one of a sexual nature, are properly viewed as serious.
The first assault by Mr Kilic on his wife occurred during their marriage. The second occurred after their divorce. As the victim had already been assaulted by Mr Kilic, the second assault was on a person who was vulnerable.
Mr Kilic’s account of the circumstances of the assaults varies significantly from that recorded by the Courts.
In relation to the first offence, Mr Kilic said that his wife confronted him near his shop and started screaming at him, demanding to know why he had gone to a house nearby. He says he placed his hand over her mouth to stop her screaming and pushed her into a nearby shopping centre.
In his Sentencing Remarks the Judge said:
Yilmaz Kilic whose open identity is written above has beaten with his hand his wife having civil marriage who has come to look for him in the house bachelor pad behind Golcuk Turkish Telecom and so he has wilful injured her simple as needing medical treatment.[18]
[18] Exhibit R1 p.93.
Mr Kilic said that the second assault (which occurred after their divorce) occurred when he was visiting his former wife in hospital. He says that again he put his hand over her mouth to stop her screaming.
When sentencing Mr Kilic the Court said:
because of a dispute between them, the defendant had injured the contributer by punching as an actual bodily harm and according to the judicial report which is proper to the explanation of the contributer, the action of the defendant is proved guilty as charged. Even though the defendant refused to be guilty because of being proper of judicial report and the explanations of the contributer the explanation of the defendant is not respected.[19]
[19] Exhibit R1 p.104.
The Court’s judgment indicates that at least one of Mr Kilic’s children witnessed his father punching his mother.[20] Mr Kilic denies this.
[20] Exhibit R1 p.104.
Mr Kilic denied the sexual abuse crime. The Court accepted the complainant’s testimony and found that Mr Kilic had made sexually suggestive remarks to her.[21]
[21] Exhibit R1 p.70.
The Court sentenced Mr Kilic to five months in prison, having initially increased the sentence to six months by reason of Mr Kilic’s repeating the harassing conduct “many times.”[22] The imposition of a term of imprisonment indicates the seriousness with which the Court regarded Mr Kilic’s conduct.
[22] Exhibit R1 p.71.
Taking into account that on three separate occasions the Court did not accept Mr Kilic’s version of events, I am satisfied that the offences took place in the circumstances set out in the Court documents and therefore should be regarded as very serious. This is particularly so as two offences involved domestic violence and the other was of a sexual nature.
Mr Kilic’s repeated dishonesty in relation to the electricity supply to his business within just over one year adds to the seriousness of these offences.
Should Mr Kilic commit further offences such as those of which he has been convicted, there is a risk of serious physical and/or psychological harm to individual members of the Australian community. Further, a repeat of his dishonest conduct involves the risk of financial loss to individuals or businesses.
The likelihood of Mr Kilic engaging in further criminal or other serious conduct
I have already referred briefly to the evidence of Dr Ashkar and Dr Banks. I will now return to their evidence in more detail.
Evidence of Dr Ashkar
Dr Ashkar assessed Mr Kilic by video link for approximately one hour. Ms Yildirim acted as interpreter.
Mr Kilic was assessed by Dr Ashkar using the first edition of the Violence Risk Scale. He scored six out of a possible 78 placing him in the low risk category for being charged with or convicted of another violent offence. In the opinion of Dr Ashkar, on the basis of these scores Mr Kilic does not require treatment.
In summarising the various offences committed by Mr Kilic Dr Ashkar reported:
Examination of Mr Kilic’s criminal history is compromised somewhat by details that are lost in translation, however it is clear that his offending history is limited in scope and degree. The unsealing offences committed in 2008 and 2009 reflect a disregard for the law but were motivated by financial strain and a desire to maintain the business, and are relatively minor in terms of property offending behaviour. The offences involving his former wife occurred within the context of a dysfunctional and strained relationship, they were reactive in nature (and while unacceptable), and fall towards the lower end of the violence spectrum. The sexual harassment offence (as I understand it from the translation) is simply not recognised as an offence in Australia.[23]
[23] Exhibit A7 p.6.
Evidence of Dr Banks

Dr Banks assessed Mr Kilic by video link for over four hours. An accredited interpreter was engaged.
Dr Banks used several different tools to assess Mr Kilic’s risk of re-offending, including the revised edition of the Violence Risk Scale. On this scale Mr Kilic scored 18 out of a possible 78 which placed him above the mid-point of the low risk of reoffending category.[24]
[24] Exhibit R2 p.10.
Dr Banks also assessed Mr Kilic by applying specific risk assessment measures to assess the risks associated with domestic or intimate partner violence. On the Spousal Assault Risk Assessment Guide Mr Kilic was rated as within the medium risk range for future violence towards an intimate partner. On two other assessments[25] he was considered to be in the moderate/elevated range and the moderate risk range respectively.[26]
[25] B-SAFER and the revised Domestic Violence Screening Inventory (DVSI-R).
[26] Exhibit R2 p.11-12.
On the basis of these results Dr Banks said that he concurred with Dr Ashkar that Mr Kilic was “in the low range for risk of general recidivism (though quantifiably much higher within the low range), but in contrast, he would rate in the moderate range for risk of intimate partner violence.”[27]In the opinion of Dr Bank’s Mr Kilic does require treatment to address his propensity to commit violent acts.
[27] Exhibit R2 p.13.
Discussion
On the basis of Dr Banks’ evidence I am satisfied that there is a moderate risk of Mr Kilic engaging in violent behaviour towards Ms Yildirim and others (should he enter other relationships) if he is permitted to live in Australia. I prefer the opinion of Dr Banks to that of Dr Ashkar in this regard for several reasons.
Dr Banks had considerably longer to assess Mr Kilic than did Dr Ashkar and had the benefit of an independent interpreter to assist him. As a result Dr Banks was able to provide a more detailed report as to Mr Kilic’s background than was Dr Ashkar. Further Dr Banks used the most up-to-date version of the Violence Risk Scale which put the risk of general recidivism higher than that assessed by Dr Ashkar.
However of greatest significance was that Dr Banks assessed Mr Kilic specifically for the risk of intimate partner violence which showed Mr Kilic to be at a higher risk of this type of reoffending than when he was assessed generally. Dr Ashkar did not canvass the issue of domestic violence with Mr Kilic.[28] While not diminishing the seriousness of Mr Kilic’s other criminal conduct, the level of the risk of intimate partner (domestic) violence is of particular concern.
[28] Transcript of Dr Ashkar’s evidence given 9 August 2017.
It is also of concern that Mr Kilic has not received any treatment in respect of his past violence and there is no proposal that he receive any such treatment.
I have taken into account Mr Kilic’s evidence that he will not reoffend. I also took into account that Ms Yildirim strongly believes that her husband would not assault her in any way. I accept her evidence that she would not expose herself or her daughters to the risk of harm if she had any concern as to her husband’s future conduct.
Ms Yildirim referred me to 23 referees’ statements attesting to Mr Kilic’s good character.[29] I have considered all these statements. However they do not assist me as, with the exception of the statement by Mr Kocaturk,[30] they attest to Mr Kilic’s good character without referring to the offences committed by him.
[29] Exhibits A8 – A27 inclusive.
[30] Exhibit A6.
Primary consideration (b): The best interests of minor children in Australia
There are no minor children in Australia whose interests should be considered.
Primary consideration (c): Expectations of the Australian Community
Clause 11.3 of the Direction provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have regard to the Government’s views in this respect.
In my view Mr Kilic’s conduct is of such seriousness that the Australian community would expect that he not be allowed to come to Australia. Although it is sometimes difficult to determine the expectations of the Australian community in relation to a particular issue, this is not the case in relation to domestic violence. The Australian community does not tolerate such violence.
The Government’s views on this issue are clear. In a joint media release made 24 September 2015 the Prime Minister and several other Ministers stated:
Women and children in Australia have the right to feel safe and live without fear of violence.
……
We must elevate this issue to our national consciousness, and make it clear that domestic, family or sexual violence is unacceptable in any circumstances. [31]
[31] Exhibit R4.
E.2.2 Other considerations
Under the heading “Other considerations – visa applicants” paragraph 12 of the Direction provides:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
The sub-paragraphs providing further detail in relation to each of the considerations referred to above are set out in the schedule to these reasons.
There is an obvious drafting error in the opening words of this paragraph. They refer to “deciding whether to cancel a visa”, rather than to deciding whether to refuse a visa. Nevertheless, it is clear that it was the intention of the Minister that this paragraph refers to an application for the grant of a visa. The paragraph is in Part B which specifically relates to visa applications. Further, sub-paragraphs (2) – (6) inclusive all refer to a visa application.
International non-refoulement obligations
There are no international non-refoulement obligations relevant in this application.
Impact on family members
Ms Yildirim
I accept the evidence of Ms Yildirim that a refusal to allow Mr Kilic to live in Australia would be devastating for her. He provides her with emotional support and she wishes that they be able to live together with her daughters as a family in Australia. Since their marriage she has been able to spend very little time with Mr Kilic. Should he not be permitted to enter Australia she will be faced with the difficult choice between living with her husband in Turkey or remaining in Australia with her three daughters.
Ms Yildirim provided a report dated 20 June 2015[32] from her Psychologist, Mr Tungandame.
[32] Exhibit R1 p.218.
Mr Tungandame reports that Ms Yildirim has had a difficult life, bringing up her three daughters as a sole parent since 2002. She has been socially isolated and has devoted her life to her children for a long time.
It is the opinion of Mr Tungandame that Ms Yildirim’s life has changed positively since she met and married Mr Kilic. She has more hope for the future and is focussing more on her own well-being.
Ms Yildirim’s daughters
Ms Yildirim’s daughters are adults and live with her. She continues to feel responsible for their well-being. The eldest daughter is soon to be married but has postponed the wedding in the hope that Mr Kilic will be able to attend.
In an undated statement Ms Senay Yildirim said, in part:
I am supportive of this marriage as I can see he makes my mother the happiest she has been since my father has passed and I believe she truly deserves to be happy…..It would be great for Yilmaz to be able to come to Australia and live with us as I believe he will be a great contribution to our family and he could possibly help us financially which would take off a lot of stress off of my mother. It would benefit our family to have a man and father figure in the house to protect and make us feel safe. I think that having Yilmaz here will be beneficial for us in many ways and it would be amazing if he could live with us in Australia.[33]
[33] Exhibit R1 p.139.
Impact on victims
There is no evidence to allow me to make any finding in relation to any possible impact of a decision to refuse or to grant a visa to Mr Kilic on the victims of Mr Kilic’s offences.
Impact on Australian business interests
There is no evidence to suggest that a refusal to grant a visa would have any impact on Australian business interests.
Any further considerations
In his application for a visa signed on 10 March 2015,[34] Mr Kilic declared that he had not been convicted of “an offence in any country (including any conviction which is now removed from official records).” [35] On the same day he signed a separate form providing personal particulars for assessment.[36] This form contained the same declaration. Both forms were submitted to the Department of Immigration and Border Protection in support of his visa application.
[34] Exhibit R1 p.29.
[35] Exhibit R1 p.38.
[36] Exhibit R1 p.273 at 281.
When questioned as to how he came to make these incorrect statements, Mr Kilic told Dr Banks that he “thought it meant any other country”.[37]However when he gave evidence to the Tribunal Mr Kilic said that the documents were prepared by agents on his behalf and he did not understand that this information was in the documents when he signed them. He says that the forms were not translated to him when he signed them. He simply signed the forms and returned them to the agents who had been engaged by Ms Yildirim.
[37] Exhibit R2 p.4.
Although Mr Kilic’s evidence in this regard was unsatisfactory, it was difficult to assess his credibility on this issue as his evidence was given by telephone through an interpreter. Further, Ms Yildirim claimed that the agents who prepared the forms did not follow the instructions she had given on Mr Kilic’s behalf and made a number of errors.
In the particular circumstances of this application I have not taken the evidence relating to the information in the documents into account in reaching my decision.
F. DISCUSSION
As I have already set out, I am to be informed by the Principles in Paragraph 6.3 in exercising the discretion to grant or refuse Mr Kilic’s application for a visa.
These Principles include that being able to come to Australia is a privilege conferred on non-citizens “in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.”
Unfortunately Mr Kilic has demonstrated a propensity to break the law. Having been convicted and fined for one offence of dishonesty, he committed the same offence again. The same situation arose in relation to the assaults upon his former wife. In addition he committed an offence which appears to be similar to the offence of sexual harassment recognised by Australian law.
In his written explanations in relation to each of his convictions Mr Kilic did not express any remorse and did not appear to accept responsibility for his offending.[38]
[38] Exhibit R1 pp.89, 99, 111, 129.
When questioned during cross-examination Mr Kilic refused to accept responsibility for any of his actions leading to his convictions for the assaults on his former wife and the sexual abuse incidents. He did not accept the Courts’ findings which were contrary to his statements at the time of the incidents. His comment in relation to his former wife was that “I just don’t understand what I have done to her”.
In his report of 28 May 2017[39] Dr Banks said:
Mr Kilic’s presentation and responses in this clinical interview indicated that he is likely to have been motivated to present himself as a positive, well-adjusted individual. It is my opinion however, that this in combination with his lack of insight and resistance to accept personal responsibility for any of his convictions, means the above risk estimate must be considered most conservatively.
[39] Exhibit R2 p.16.
When he gave evidence Dr Ashkar said that there was a “degree of minimisation and denial by Mr Kilic” in relation to his offending.[40]
[40] Transcript 9 August 2017.
When giving evidence Mr Kilic said that he did not know that he was committing crimes when he tampered with the electricity meter and did not think that his actions would cause him difficulty later in life.
I have taken into account that a refusal of his application for a visa will have a significant impact on Ms Yildirim. It will also have some impact on her daughters who understandably wish to see their mother happily married and continuing to live in Australia.
However taking into account all of the various matters I have referred to, I have come to the conclusion that the primary considerations of protecting the Australian community from criminal conduct and the expectations of the Australian community significantly outweigh the other relevant consideration of the impact on family members.
Whilst sadly Ms Yildirim will be placed in a very difficult situation, domestic violence is unacceptable in the Australian community and I am satisfied that Mr Kilic’s criminal record in this regard, his attitude to his offending and the risk of his reoffending disqualify him from the privilege of coming to live in Australia. I am of the view that in the circumstances of this matter the Australian community would expect that a visa not be granted.
The discretion to refuse Mr Kilic’s application for a Partner visa should be exercised.
G. CONCLUSION
The decision under review, being the decision made 5 April 2016, to exercise the discretion to refuse Mr Kilic’s application for a Partner visa, will be affirmed.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

......................................[sgd]..................................
Associate
Dated: 24 August 2017

Date(s) of hearing: 8 & 9 August 2017

Applicant: In person

Solicitors for the Respondent: M de Jongh, Clayton Utz
SCHEDULE
PART B
11       Primary considerations – visa applicants
(1)In deciding whether to refuse a non-citizen's visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian Community.

11.1     Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision makers should also give consideration to:
a)    The nature and seriousness of the non-citizen's conduct to date; and
b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)    The sentence imposed by the courts for a crime or crimes;
f)     The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
g)    The cumulative effect of repeated offending;
h)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)   Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

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

(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

iii.the duration of the intended stay in Australia.

(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

11.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)    The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)    Whether there are other persons who already fulfil a parental role in relation to the child;
f)     Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

11.3 Expectations of the Australian Community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government's views in this respect.

12       Other considerations – visa applicants
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)    International non-refoulement obligations;
b)    Impact on family members;
c)    Impact on victims;
d)    Impact on Australian business interests.

12.1 International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s50 1 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them- sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.

12.2 Impact on family members
(1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

12.3 Impact on victims
(1)Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

12.4 Impact on Australian business interests
(1)Impact on Australian business interests if the non-citizen's visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

[2017] AATA 1353

24 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Date(s) of hearing:	8 & 9 August 2017
Applicant:	In person
Solicitors for the Respondent:	M de Jongh, Clayton Utz