Yildirim and Minister for Immigration and Citizenship

[2008] AATA 702

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 702

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2351

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ERGUL YILDIRIM

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Regina Perton

Date11 August 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

MIGRATION ‑ spouse visa ‑ cancellation ‑ criminal record ‑ character test ‑ Australian citizen child ‑ exercise of discretion 

Migration Act 1958 s 499(1), 499(2A), 501(2), 501(6), 501(7).

REASONS FOR DECISION

11 August 2008 Regina Perton       

1.      On 26 July 2006, a delegate of the Minister for Immigration and Citizenship (the Minister) cancelled the Spouse (Class BS)(Subclass 801) visa (spouse visa) held by Ergul Yildirim on character grounds because of Mr Yildirim’s criminal record.  Mr Yildirim was re-notified of the decision on 16 May 2008.  On 30 May 2008, Mr Yildirim lodged an application for review of that decision.

2.      The issue before the Tribunal is whether the Tribunal should exercise its discretion to cancel Mr Yildirim’s visa.

BACKGROUND

3.      Mr Yildirim was born in Turkey.  He arrived in Australia on 25 December 1997 on a Class TO, Subclass 300 (Prospective Marriage) visa, having met his fiancée, an Australian citizen, in Turkey.  After his marriage in August 1998 he was granted a spouse visa.  His wife gave birth to their daughter in July 1999.  Mr Yildirim and his wife subsequently separated.  Mr Yildirim stabbed his estranged wife to death on 18 August 2001. 

4.      On 30 May 2002, Mr Yildirim was convicted of murder and sentenced to 18 years imprisonment with a non-parole period of 14 years. 

5.      A Notice of Intention to Consider Cancellation (NOICC) of Mr Yildirim’s visa was served on Mr Yildirim on 1 July 2005.  Mr Yildirim acknowledged receipt of the NOICC on 10 July 2005.  On 26 July 2006, the Minister’s delegate cancelled Mr Yildirim’s visa.  Mr Yildirim was notified of the decision on 2 March 2007 and notified again in May 2008.

Legislative and Policy Provisions

6. Under s 501(2) of the Migration Act 1958 (the Act), the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he or she passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)‑(d) is met. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection 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.

7. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.

8. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction N° 21, Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 (Direction 21), which provides guidance to decision‑makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

9.      Paragraph 2.2 of Direction 21 concerns the weight that should be given to various factors in deciding whether to cancel a visa.  It provides that:

….a decision‑maker should have regard to three primary considerations and a number of other considerations… Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

10.     Paragraph 2.3 of Direction 21 sets out the primary considerations:

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

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

(b)       the expectations of the Australian community; and

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

11.     Paragraph 2.4 of Direction 21 explains:

2.4      The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.  The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk.  This is of particular importance when the offences in question are in relation to drugs and crimes of violence…

12.     Paragraph 2.6 of Direction 21 sets out examples of the matters that the Government views as very serious offences.  These include:

…

(f)        murder, manslaughter, assault or any other form of violence against persons;

…

13.     Paragraph 2.8 of Direction 21 states that when exercising the discretion, decision‑makers must take into account any relevant factors provided by the non‑citizen as mitigating factors. 

14.     Paragraph 2.10 concerns consideration of the likelihood that the conduct may be repeated (including any risk of recidivism):

It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.  In particular, the following factors will be relevant to the assessment:

…

(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably expected to make. 

15.     Paragraph 2.11 of Direction 21 refers to the likelihood that visa cancellation may deter other persons from committing like offences i.e. general deterrence.

16.     Paragraph 2.12 of Direction 21 concerns the expectations of the Australian community.  The Minister points out that the Australian community expects non‑citizens to obey Australian laws while in Australia.  The nature of the character concerns or offences need to be taken into account in assessing whether a person should be removed from Australia.

17.     Paragraphs 2.13 to 2.16 of Direction 21 consider the best interests of the child who is less than 18 years of age when the decision comes into effect.  In general terms (paragraph 2.15), the child’s best interest will be served if the child remains with its parents unless there is evidence of abuse, neglect or the like.  Paragraph 2.16 sets out particular matters the decision maker should have regard to:

(a)the nature of the relationship between the child and the non-citizen;

(b)the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c)the age of the child;

(d)whether the child is an Australian citizen or permanent resident;

(e)the likely effect that any separation from the non-citizen would have on the child;

(f)the impact of the non-citizen’s prior conduct on the child;

(g)the time (if any) that the child has spent in Australia;

...

18.     Paragraph 2.17 of Direction 21 states that, when considering the issue of visa refusal or cancellation, other considerations may be relevant, although they will generally be given less individual weight than that given to the primary considerations.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non‑citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non‑citizen’s family,  in Australia and overseas; and any evidence of rehabilitation and recent good conduct. 

19.     The Commonwealth’s international obligations also need to be taken into account (paragraphs 2.18 to 2.23).  These include the International Convention on Civil and Political Rights (ICCPR). 

The Character Test

20. There is no dispute between the parties that Mr Yildirim does not pass the character test in s 501(6)(a) of the Act. In view of the nature of the offence and the sentence imposed, the Tribunal finds that Mr Yildirim has a substantial criminal record as defined in s 501(7) of the Act and that he does not pass the character test under s 501(6)(a) of the Act.

EVIDENCE

21.     Mr Yildirim told the Tribunal that he wished to stay in Australia so that his daughter would have an opportunity to have a relationship with him should she wish to do so after his release.  He currently has no contact with her.  The child is being cared for by an aunt, the sister of her deceased mother.  In 2005, Mr Yildirim initiated action in the Family Court in an effort to have some contact with his daughter, such as sending her birthday cards but her care-giver would not agree to that.  Mr Yildirim said that he has not initiated any further legal action as he does not wish to upset his daughter or his in-laws further, given the circumstances that have led to them raising the child.  He does not know what his daughter has been told about what has happened to him.

22.     Mr Yildirim married in August 1998 after arriving in Australia in December 1997.  It was his first and only marriage.  He met his wife when she was travelling in Turkey.  He and his wife went to Turkey with their daughter in 2000, during the Sydney Olympics, so that his parents could meet their grandchild.  It was during that trip that they decided that the marriage was not working out.  Mr Yildirim said that it was his wife’s decision to separate, describing it as an angry separation. 

23.     Mr Yildirim said that he has no relatives in Australia.  His parents live in Turkey, as does a brother.  Another brother lives in another country.  He said he has supportive friends in Australia including Siddik Duz, who welcomed him into his family.  Mr Duz and members of his family visit him regularly in prison.  Mr Yildirim stated that after his release from prison, which would be 2015 at the earliest, he hoped to start a business with Mr Duz.

24.     Mr Yildirim said that he has an ongoing relationship with an Australian citizen, Ms Pauline Boyack.  He met Ms Boyack before the murder of his wife.  She supported him during his trial and regularly visits him in prison.  He said that it is their intention to maintain the relationship and live together after his release from prison.  

25.     Mr Yildirim confirmed that in 2003 he had applied to serve his sentence in Turkey under a prisoner exchange agreement between Australia and Turkey.  He was still seeking to do so in 2005, which was evidenced by a letter still seeking that transfer.  He said that he had done so in an effort to maintain contact with his parents.  However, he had been transferred to another prison since that application for transfer and he has undertaken numerous relevant personal development and other courses since then.  He now wishes to remain in Australia to further his education and in the hope of eventually having contact with his daughter.  Mr Yildirim speaks fluent English as well as three other languages and believes he would make a positive contribution to the Australian community if allowed to stay.

26.     Mr Yildirim stressed how remorseful he is about committing such a crime.  He stated that he is very conscious that he has irretrievably damaged the lives of his daughter, his deceased wife’s family, his own family and his own.  He indicated that the punishment was rightfully meted out to him but he is using the time to rehabilitate and educate himself so that he can be a useful Australian resident on his release.

27.     Mr Yildirim described the circumstances in which he pleaded guilty in April 2001 to a charge of assaulting the new man in his estranged wife’s life.  No conviction was recorded but he paid a fine.  His estranged wife also obtained an intervention order.  Mr Yildirim told the Tribunal that the incident happened when he returned a security blanket and favourite teddy bear, which had been left behind after his daughter’s overnight stay, to his estranged wife’s home.  He said that a fight ensued with his estranged wife’s male friend who was at the house.  This led to Mr Yildirim’s arrest and an assault charge heard in the Magistrates’ Court.  Mr Yildirim said that despite the April 2001 incident and intervention order, access visits with his daughter continued.

28.     There were a number of written expressions of support of Mr Yildirim tendered, as well as oral evidence from four witnesses. 

29.     Anne-Maree Low, Programs Coordinator at Fulham Correctional Centre (Fulham), in a letter dated 17 July 2008, stated that since he had moved to that facility:

….I have observed Mr Yildirim settle into a disciplined routine based around improving his English speaking and writing skills, external studies in business management and creative writing skills as well as his involvement as a valued member of the Editorial Team for the Fulham Times newsletter.

…

Mr Yildirim has been a pleasure to work with over the years.  He has been at all times, professional, focused, well-mannered and committed to giving his best to whatever task he undertakes.

30.     Tony King, Correctional Officer at Fulham, in a letter dated 18 July 2008, commented on Mr Yildirim’s politeness and observed that he can…see that he is striving to do positive things with his time by participating in programs and educational courses.  Mr King stated that Mr Yildirim is well liked by the fellow inmates and prison staff alike.  He described Mr Yildirim’s articles in the Fulham newsletter as particularly interesting and informative.

31.     Bruce Reynolds, Salvation Army Prison Chaplain, stated in a letter that he has known Mr Yildirim for approximately two years.  He stated that Mr Yildirim has been involved in encouraging fellow Muslim inmates to learn more of what their faith teaches about peaceful relationships.  Mr Reynolds stated that he had also attended a program to learn what Christians believe.  Mr Reynolds indicated that Mr Yildirim had told him of his crime and about how a friend in the community keeps letters Mr Yildirim has written that he hopes that his daughter will one day choose to read.  He stated that Mr Yildirim has undertaken training and will be highly employable when he is released.  In oral evidence, Mr Reynolds said that he sees 70 to 80 prisoners as a part-time chaplain at Fulham.  He described Mr Yildirim as a model prisoner who is very involved in education.  He expressed the view that Mr Yildirim is sensitive about interfering in his daughter’s life at present but hopes that they can eventually have a positive relationship.  Mr Reynolds said that while he may not necessarily be personally able to assist Mr Yildirim on his release, the Salvation Army will be able and willing to do so.

32.     Robert Gaulton, Uniting Church Visiting Chaplain at Fulham, provided a letter of support dated 22 July 2008.  He described Mr Yildirim as:

·intelligent, articulate and thoughtful.

·a  friendly, open and outgoing person who seeks to assist others in their own journeys towards healing and redemption.

·someone who readily draws on his own experience to advise peers against impulsive behaviour while assisting them to manage anger in a more effective way.

·a deeply spiritual person who has adopted a leadership role among the Islamic community at Fulham.  (In addition, he organises and facilitates Islamic services while at the same time seeking to actively explore the parallels between Christianity and Islam).

·editor of the house newspaper and a regular contributor of balanced, thoughtful, well researched and informative articles.

·a diligent, highly capable student at Tertiary level who is seeking to gain a professional qualification in business.

…He readily acknowledges the fact that he made a serous error of judgement in the past and that he must endure the consequences of this – legally, physically and emotionally.  He is clearly dedicated to his daughter and hopes that some day he might be able to be a friend, mentor and proper father to her….

33.     In oral evidence, Mr Gaulton reiterated his view that if allowed to stay in Australia, Mr Yildirim would make a contribution to Australian society.  He described Mr Yildirim as exceptional in terms of his positive attitude to his circumstances.  He said that he would not be able to provide the same level of support to Mr Yildirim on release that he does now, but would invite him to call him after release and maintain a relationship.

34.     Siddik Duz provided a letter of support dated 2 July 2008 and also gave oral evidence.  At the hearing, he described himself as a cook, taxi driver and cleaner.  Mr Duz met Mr Yildirim in 2000 when they were both working for a company manufacturing tiles.  Mr Yildirim had just started working as a casual and was introduced to Mr Duz, who is also of Turkish origin.  They became friends and Mr Duz and his wife treated Mr Yildirim as part of the family.  Although shocked by his crime, they decided to continue to support Mr Yildirim and continue to do so.  Mr Duz said that he has taken other members of his family with him to visit Mr Yildirim in prison.  Mr Duz has also raised funds for Mr Yildirim to assist him in achieving his educational goals.  He stated that he can see another side to Mr Yildirim, an intelligent person with a heart of gold. 

35.     Mr Duz stated that he is planning to start a family restaurant business with Mr Yildirim as an equal partner upon Mr Yildirim‘s release.  Asked about the nature of his plans for the restaurant, Mr Duz said that it is an idea at present and it will evolve step by step as the time for Mr Yildirim‘s release comes closer.  He said that he would not take over an existing restaurant but rent some vacant space and start from scratch.  Mr Duz anticipated that Mr Yildirim would manage the business side of things while he did the cooking.  He currently cooks at the mosque on Fridays.  Mr Duz said that he is actively involved with the Turkish and Muslim community in Victoria and visits other prisoners as well as Mr Yildirim, as a volunteer.

36.     Pauline Boyack provided a letter of support dated 1 July 2008 and also gave oral evidence.  Ms Boyack and Mr Yildirim met at a nightclub in Melbourne’s outer suburbs in early 2001.  Mr Yildirim was already separated.  They met when he stopped Ms Boyack being pestered by unwelcome advances from another patron.  They formed a romantic attachment, regularly going out and sharing time at Ms Boyack’s home although they did not move in together.  After Mr Yildirim was charged with murder, Ms Boyack continued to support him despite suggestions from the police who questioned her that she should discontinue the relationship.  Ms Boyack visits Mr Yildirim every fortnight in prison and has applied to be part of the Residential Visit Program at Fulham.  Ms Boyack and Mr Yildirim both told the Tribunal that they intend to maintain their relationship.  Ms Boyack stated that she cannot understand why he should be punished further by being deported.  His deportation would be devastating to her and would shatter our plans and dream we have together.    

37.     Ms Boyack expressed the opinion that deporting Mr Yildirim could cause more resentment and anger in his daughter as she will possibly hate him for abandoning her.  Ms Boyack said that she had met Mr Yildirim’s daughter about three times before the murder.  Ms Boyack said that her children, who are all adults who have left home, know about her relationship with Mr Yildirim and have not objected to it, despite Ms Boyack being 28 years his senior. 

38.     Ms Boyack stated that if Mr Yildirim is deported, their relationship would be affected.  She does not anticipate moving to Turkey, given her employment and family commitments here.  However, she expressed the hope that he would not be as their relationship continues to be important to both of them.

39.     Letters of support were also provided by the following:

·Aziz Cooper, Senior Chaplain, Prison Chaplaincy Services of the Islamic Council of Victoria provided a letter of support dated 24 June 2008.  Mr Cooper has been visiting Mr Yildirim since 2001 in his role as Senior Muslim Chaplain to Victoria’s criminal justice system.  He described Mr Yildirim’s quest to educate himself.  Mr Cooper said that he was shocked when told that Mr Yildirim would be deported as Mr Yildirim had told him that his support networks, apart from his parents, are in Australia.  Mr Cooper expressed concern about Mr Yildirim’s daughter’s well-being in the coming years without her father if he is deported.  He stated that he hoped that Mr Yildirim would be given another chance on compassionate grounds.

·Rev Canon Keith South, Anglican Chaplain at Fulham, stated that he has known Mr Yildirim for 18 months.  He observed that Mr Yildirim has been willing to seek help and discover ways to re-establish his life on a firm foundation.  He supported Mr Yildirim being allowed to remain in Australia.

·Anthony Peters, Chaplaincy Co-ordinator at Fulham, provided a letter dated 24 June 2008.  He indicated that in the past two years, Mr Yildirim has completed the self-development programs that Fulham offers (Mr Yildirim provided documents to the Tribunal concerning many of those courses).  He stated that Mr Yildirim keeps himself sound of body & mind, is a model prisoner and I would have no hesitation in commending him ..for …Permanent Residency.

·Stephen Van Dyke, Correctional Supervisor, Srtzlecki Unit at Fulham provided a letter dated 26 June 2008.  Mr Van Dyke indicated that in May 2008, Mr Yildirim was placed in his area known as the Cottages, a minimum security area.  He said that only prisoners who are of good behaviour and who are engaged in educational or employment pursuits were allowed to move to that area.  He described Mr Yildirim’s behaviour and interaction with other prisoners and staff as good. 

·Behic Ilkitoglu, Ziya Budak, Mahmut Balci, Tevfik Benek, Hayri Dincer, Yahyr Cihan, Cabbar Yoldas, Omer Gurlu, Ugur Senec, Necati Yoldas, Sirmu Abad, Mahmut Atesok and Muzzaffer Fetiner (some names may be misspelt as in some cases they are hand-written) provided typed letters of support which are  similarly worded and dated on varying dates in early July 2008.  The letters urged that Mr Yildirim be given a second chance to restart his life in Australia.  They mention Mr Yildirim’s daughter and his inability to see her at present and state their belief that he should be given a chance to be here for his daughter when she needs him the most at her teenage years.  They urged the Tribunal to show compassion rather than uncompassionate legal approach to this case.  Mr Yildirim told the Tribunal that he knows all the signatories.  Mr Dincer and Mr Atesok have visited him in prison, as has Mr Yoldas, who comes from the same city in Turkey as Mr Yildirim and knows Mr Yildirim’s family there.  Mr Yildirim said that he has met the other signatories at weddings and other community functions.  He stated that he does not know who organised the signatories and that he did not author the letters.

Should the visa be cancelled?

40. In considering whether to exercise its discretion under s 501(2) to cancel his visa, the Tribunal has had regard to Direction 21.

Protection of the Australian Community, and Members of the Community

41.     In respect of the first primary consideration, concerning protection of the Australian community, the Tribunal notes that Mr Yildirim has been convicted of murder which constitutes a very serious offence (paragraph 2.6 of the Direction) and as such is a violent crime against the community.  He has deprived a then 2 year old child of her mother and her family of a daughter and sister.

42.     In his sentencing remarks, following the jury’s decision that Mr Yildirim was guilty of murder, Justice Teague of the Supreme Court of Victoria commented that the crime was particularly violent in terms of the injuries inflicted on Mr Yildirim’s estranged wife.  Justice Teague noted that the deceased, despite her fear of harm from her estranged husband, brought her child to his home to visit him on the day of the murder because she believed it important that their daughter maintain contact with her father.  Justice Teague accepted that the murder was not premeditated but also indicated that he had not been provoked by the victim.  Justice Teague also accepted that Mr Yildirim demonstrated a degree of remorse by calling an ambulance a few minutes after calling his mother and noted his preparedness to plead guilty to manslaughter.

43.     On the issue of the likelihood that the conduct may be repeated, the Tribunal notes the supportive comments of the various chaplains and others associated with Mr Yildirim.  Justice Teague in his sentencing remarks also noted that Mr Yildirim’s prospects of rehabilitation appeared good.  The Tribunal accepts that Mr Yildirim has spent his time in prison wisely and is well-liked by prison authorities and others.  On the other hand, Mr Yildirim has been in prison for some seven years and therefore, is unable to demonstrate that his behaviour will remain just as exemplary in the general community.  The Tribunal notes that Mr Yildirim had no previous convictions in Australia prior to the murder of his wife, nor has he had any offences in prison.  Overall, the Tribunal accepts that the risk of recidivism appears low.

44.     Mr Yildirim commented that there was considerable press coverage in both Turkey and Australia of his crime.  The Tribunal also notes the comments of Justice Teague that general deterrence must play a significant part in the sentence he imposed.  However, the Tribunal is somewhat ambivalent as to whether the cancellation of Mr Yildirim’s visa and his deportation will provide a general deterrence given the circumstances in which the crime occurred.  

The Expectations of the Australian Community

45.     In respect of the second primary consideration, concerning expectations of the Australian community, the Tribunal notes that the Australian community expects that non‑citizens will obey Australian laws while in Australia.  The Tribunal takes into account the seriousness and nature of Mr Yildirim’s offence and the short time he had been in Australia when he committed the offence. 

46.     Mr Rogers, appearing for the Minister, submitted that the Australian community would expect Mr Yildirim’s visa to be cancelled and that he would be deported.  He put forward as a relevant factor that Mr Yildirim was permitted to remain in Australia on a spouse visa because of his relationship with the person he murdered.  Another factor was the repugnancy of the actual crime, violently stabbing his wife to death.  

47.     Mr Rogers raised a further factor, which was the short time that Mr Yildirim had been in Australia when the crime was committed.  Mr Yildirim arrived in Australia in December 1997 as a 22 year old, on a temporary provisional visa issued on the basis that he was to marry an Australian citizen.  He obtained a spouse visa after his marriage in August 1998 and then murdered his sponsor wife less than three years later.  Mr Yildirim has no relatives in Australia apart from his daughter, who has been deprived of both parents during her childhood. 

48.     On the other hand, the Tribunal notes that Mr Yildirim has extensive support among prison chaplains and officers who suggest that his behaviour is exemplary and that he is being rehabilitated.  They, and a range of friends and acquaintances, have asked that Mr Yildirim not be deported.  Mr Duz has plans to set up a business with Mr Yildirim upon his release from prison.  Mr Duz has also been a support to Mr Yildirim in his friendship and financially.  Ms Boyack has also supported Mr Yildirim.  Their relationship began a few months before the murder and she is adamant that it will continue when he is released provided he remains in Australia.  The Tribunal notes her frank response that she does not believe that she would continue the relationship after his release if Mr Yildirim is deported to Turkey, given her family circumstances and the difficulties for her as she does not know the language etc.

49.     The Tribunal believes that most members of the Australian community would find the violent murder of an estranged spouse, the mother of a young child, abhorrent.  The Tribunal finds that the expectations of the Australian community would weigh in favour of cancelling Mr Yildirim’s visa.

The Best Interests of the Child

50.     Mr Yildirim’s daughter recently celebrated her ninth birthday.  She is an Australian citizen.  She is being raised by a maternal aunt.  There has been no contact between Mr Yildirim and his daughter since the crime was committed.  Based on the evidence before the Tribunal, it appears improbable that there will be any contact while Mr Yildirim is in prison.

51.     Mr Yildirim and his supporters have submitted that his daughter may wish to have contact with her father when he is released.  They have suggested that Mr Yildirim should be given a chance to be in Australia for his daughter when she needs him the most at her teenage years.

52.     Mr Yildirim’s daughter had only just celebrated her second birthday when her father violently killed her mother.  She had only been seeing her father for access visits for a period before that as her mother was her primary care-giver.  She has had no contact with her father since he has been in prison.  She is now being raised totally in her mother’s family with a maternal aunt being her guardian.  It is unknown what she has been told about her mother’s death or what has happened to her father.  There has been no support shown for Mr Yildirim from any member of his deceased wife’s family.  Whether his daughter, as a sixteen year old, will want to re‑engage with her father upon his release is unknown.  At that stage, she will be near adulthood and will be able to visit him and his family in Turkey should she wish to meet him or her paternal family. 

53.     The Tribunal finds that this is not a case where the best interests of the child weigh against the applicant’s visa being cancelled. 

Other Relevant Considerations

54.     Mr Yildirim’s parents are in Turkey.  Mr Yildirim applied for a transfer to Turkey in 2003 and maintained that request until at least 2005, so that his parents could have better contact with him.  At present they maintain contact by letter.

55.     Mr Yildirim has no relatives in Australia apart from his daughter but he does have a number of friends who visit him regularly.  He also has a relationship with Ms Boyack, an Australian citizen, whom he met a few months before the crime and who continues to visit him regularly and who believes that their relationship would continue after his release.

International Obligations

56.     Mr Yildirim travelled to Australia on a prospective marriage visa.  He has not made any claims that he fears mistreatment on return to Turkey and has in fact applied to participate in an international prisoner transfer between Australia and Turkey.  There is no evidence that Mr Yildirim is at risk if he returns to Turkey or that Australia will be in breach of its international treaty obligations if it deports him to his country of citizenship.

CONCLUSION

57.     In this case, as in many others of this nature, there are both positive and negative factors to weigh up.  Mr Yildirim has committed a serious and abhorrent violent crime.  He has deprived his daughter of her mother and effectively, a father while he serves his sentence.  He killed the person who sponsored his migration to Australia, less than four years earlier.  The Tribunal is of the view that most members of the community would be in favour of the government forcing him to leave Australia.

58.     However, his remorsefulness and commitment to rehabilitation during the first half of his minimum sentence are evident.  He has involved himself in prison community activities and in tertiary education.  Based on the evidence of those who see him regularly in the prison environment, it appears that he is unlikely to re‑offend; although obviously he has not been tested in the general community. 

59.     The existence of an Australian citizen child and her rights would usually be given great weight as a factor that would favour a decision not to cancel her parent’s visa.  However, in this case, it is improbable that there will be any contact with Mr Yildirim at least until he is released from prison.  His daughter will be 16 years old when Mr Yildirim has served his minimum sentence and have been raised by her mother’s family.  She may or may not know that her father killed her mother.  What her reaction to that will be is unknown.  It is far from certain that she will wish to meet and/or reconcile with him, even if he wishes to do so.  She will only be two years from adulthood at that time and will be able to make contact with him in Turkey, should she wish to do so.  Hence, the Tribunal is not persuaded that Mr Yildirim be allowed to stay in Australia on the basis that there is a chance that his daughter will wish to make contact with him upon his release.  It is just as likely that she will not wish to do so.

60.     In weighing up all the circumstances, the Tribunal finds that Mr Yildirim’s visa should be cancelled.

DECISION

61.     The Tribunal affirms the decision under review. 

I certify that the sixty‑one [61] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Dates of hearing:  1 August 2008
Date of decision:  11 August 2008
Advocate for applicant:                self-represented
Advocate for respondent:            Mr N Rogers
Solicitor for the respondent:        Australian Government Solicitor