Yildirim and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Mr Kilic against the refusal of his application for a Partner visa by the Minister for Immigration and Border Protection. Mr Kilic, a Turkish citizen, had been convicted of five criminal offences in Turkey between 2008 and 2014, including two counts of causing actual bodily harm to his wife (one during their marriage and one after their divorce), a sexual abuse crime, and two offences related to tampering with an electricity meter. The Minister's delegate refused the visa application on character grounds, finding that Mr Kilic did not pass the character test due to the risk he posed of engaging in criminal conduct in Australia.

The primary legal issue before the court was whether the Minister's delegate had erred in exercising the discretion to refuse Mr Kilic's visa application. This required the court to consider whether Mr Kilic met the character requirements for a visa, and if not, whether the discretion to refuse the visa should have been exercised, having regard to the relevant considerations outlined in Direction No. 65. These considerations included the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The court affirmed the decision to refuse the visa. It found that Mr Kilic's criminal record, which included offences of violence and a sexual nature, demonstrated a criminal tendency and a low tolerance for his conduct. Expert evidence from a clinical forensic psychologist indicated a moderate risk of Mr Kilic engaging in intimate partner violence. The court also noted the sentencing remarks from a Turkish court which expressed no positive opinion about Mr Kilic's future behaviour. Applying the principles in Direction No. 65, the court concluded that the protection of the Australian community from criminal conduct was a paramount consideration, and that the nature and seriousness of Mr Kilic's offending, coupled with the assessed risk, warranted the exercise of the discretion to refuse the visa.

Consequently, the decision under review, which affirmed the delegate's decision to refuse Mr Kilic's Partner visa application, was affirmed by the court.