Yildiz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 337

Yildiz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 337 (12 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7789

Re:Mehmet Yildiz

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:12 February 2021

Date of written reasons:        2 March 2021

Place:Sydney

The Reviewable Decision dated 19 November 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

..............................[sgd]..........................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – mandatory visa cancellation – Class BS Subclass 801 Spouse visa – failure to pass character test – sexual intercourse without consent – aggravated sexual assault, inflict actual bodily harm on victim – drug and alcohol misuse – limited remorse and responsibility for offending – moderate to high risk of re-offending – Direction No. 79 – protection of the Australian community – best interests of Applicant’s minor child – expectations of the Australian community – strength, nature and duration of ties – impact on Australian business interests – impact on victims – extent of impediments if removed from Australia – decision affirmed 

LEGISLATION

Migration Act 1958(Cth) ss 499, 500, 501, 501CA

CASES

FYBR and Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Pavey and Minister for Home Affairs [2019] AATA 4198

PNLB v Minister for Immigration and Border Protection [2018] AATA 162

Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

WRITTEN REASONS FOR DECISION

Senior Member Linda Kirk

2 March 2021

1. Mehmet Yildiz (‘the Applicant’), a citizen of Turkey, was born in 1982.[1] He arrived in Australia in March 2005 when he was 22 years old.[2] Prior to its cancellation, the Applicant held a Class BS Subclass 801 Spouse visa.[3]

   [1] G3, 63.

   [2] G3, 127.

   [3] G2, 11.

2. On 7 November 2016, the Applicant was convicted of Aggravated sexual assault, inflicting actual bodily harm on victim and Sexual intercourse without consent and was sentenced to 11 years and four months’ imprisonment and five years and eight months’ imprisonment respectively for the two offences.

3. On 13 December 2016, the Department of Immigration and Border Protection (‘the Department’) issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above.[4] On this date, the Applicant was serving a sentence of full-time imprisonment at Junee Correctional Centre in New South Wales. The Applicant was invited to make representations about revoking the decision to cancel his visa.

   [4] G3, 128-131.

4. On 22 December 2016, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) in support of his revocation request.[5]

   [5] G3, 63-77.

5. On 19 November 2020, a delegate of the Minister (‘the Respondent’) decided not to revoke the Mandatory Visa Cancellation Decision under subsection 501CA(4) of the Act (‘the Reviewable Decision’).[6]

   [6] G2, 13-28.

6. On 26 November 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[7]

   [7] G1, 1-4.

7. The matter was heard at a hearing of the Tribunal on 2 and 3 February 2021. The Applicant attended the hearing via videoconference from Cessnock Correctional Centre. He was self-represented and gave oral evidence at the hearing.

8. The material before the Tribunal consists of:

   • Respondent’s Statement of Facts, Issues and Contentions dated 19 January 2021 (‘Respondent’s SFIC’);
   • Section 501 G Documents filed 11 December 2020 (G1-G3, pages 1-175) (‘Exhibit R1’);
   • Respondent’s Tender Bundle filed 19 January 2021 (pages 1- 425) (‘Exhibit R2’);
   • Applicant’s Statement of Facts, Issues and Contentions undated, filed 31 December 2020;
   • Applicant’s Statement of Reasons dated 21 November 2020, filed 23 December 2020 (‘Exhibit A1’);
   • Correspondence/drawings from HY to the Applicant, filed 23 December 2020 (‘Exhibit A2’).

9. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

   LEGISLATION

10. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A)     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) …; 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.

11. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.

12. Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

13. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:

    (4) 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.

14. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 79

15. When considering whether to revoke the Mandatory Visa Cancellation Decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).

16. The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

17. The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.

18. Paragraph 6.2(1) of the General Guidance provides:

    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.

19. The following Principles are set out in paragraph 6.3:

    (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 women or children or vulnerable members of the community such as 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.

20. Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:

    (1)  Informed by the principles in paragraph 6.3 above, a decision-maker:

    a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

    b)    must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

21. In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.

22. In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):

    … Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.

23. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

24. The other considerations are:

    (a)       International non-refoulement obligations;

    (b)       Strength, nature and duration of ties [to Australia];

    (c)       Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

25. Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.

    ISSUES FOR DETERMINATION

26. Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

27. There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[8] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):

    ... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[9]

    [8] [2018] FCAFC 151.

    [9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

28. The issues for determination are:

    (a)whether the Applicant passes the character test; and

    (b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

29. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Background and employment

30. The Applicant was born in Turkey in 1982 and is of Kurdish descent. He is the third child of six children born to his parents, and he has three half siblings from his father’s first marriage. He started school when he was six or seven years old and left school at the age of 11 years.[10] After leaving school he commenced work at his uncle’s petrol station and later worked in supermarkets. In August 2002, he was conscripted to undergo his compulsory national army service in the Turkish army.[11] He served 12 months of his 15 months’ service in Cyprus, and was discharged in November 2003.[12]

    [10] Transcript, 8.

    [11] G3, 46.

    [12] TB 1-2, 181.

31. After his military service he returned home and worked at the same petrol station.[13] He met his future wife at his sister’s wedding in Turkey in 2004 and he came to Australia in March 2005 and they were married.[14] He and his wife lived with his wife’s parents and their daughter was born in May 2007. In 2008, he started a kebab shop in partnership with his step-brother, and in 2010 he established a kebab manufacturing business.[15]

    [13] Transcript, 8.

    [14] Transcript, 8.

    [15] Transcript, 13.

    Drug and alcohol use

32. The Applicant’s long work hours affected his marriage and he started to drink, take drugs, and go to nightclubs after work. As this was causing arguments with his wife and her parents, he responded by spending more time away from home. The Applicant started using methylamphetamine regularly in 2010 and by 2011, he was using ice five to six times a week.[16] He initially used ice only socially and then used it to help him to work. He also was using it to combat his depression and his problems with financial losses due to his gambling. The Applicant tried to stop his drug and alcohol addiction, but without support from his wife and family ‘he went deeper and deeper into “a mess”’.[17]

    [16] Transcript, 18.

    [17] TB, 182.

    Criminal history in Australia

33. The Applicant’s Nationally Coordinated Criminal History Check dated 2 December 2019 records his criminal history in Australia.[18]

    [18] G3, 29-31.

    Early offending

34. Between 2006 and 2011, the Applicant was convicted of five driving related offences: Never licensed person drive vehicle on road, Driver/rider state a false name/address, Drive while disqualified from holding a license, and two drink driving offences.[19] In February 2012, the Applicant was arrested for possessing a prohibited drug.[20]

    [19] G3, 31.

    [20] G3, 31.

    2013 convictions

35. On 17 September 2013, the Applicant was convicted of Assault occasioning actual bodily harm (domestic violence) and Stalk/intimidate with intention to cause fear or physical harm (domestic).[21] This offence arose during an argument between the Applicant and his former wife at a shopping centre in July 2013.[22] The Applicant held her face in a restrictive manner and then head-butted her with such severity that it required stitches.[23] In her sentencing remarks, Magistrate Betts noted that the incident occurred because the Applicant was angry at his        wife because she was not at home and had taken their daughter to the movies.[24] He     was sentenced to two 12 month good behaviour bonds for the offending and was required to comply with an Apprehended Violence Order (AVO).

    [21] G3, 31.

    [22] G3, 58.

    [23] TB, 5-7; G3, 56.

    [24] G3, 58.

    2014 convictions

36. On 25 June 2014, the Applicant was convicted of two counts of Assault with act of indecency. The facts of these offences are detailed by Magistrate Betts in her sentencing remarks as follows.[25] In the early hours of 16 November 2013, the Applicant met the 19 year old victim outside a hotel in Parramatta. He offered her methylamphetamine (ice) and she agreed to go with him to consume the drug. Magistrate Betts described what followed:[26]

    [the victim] went with him to an area that can only be described as out of the way. Her two friends waited outside and she went in the fire escape stairwell with him where they indulged in drug-related activity. During that involvement he put his hand down her pants   touching her right bottom. She told him, “No, don’t.” He then propositioned her, “Look, I’ll  give you anything.” He handed over two bank key cards, Commonwealth Bank key cards   suggesting that he was prepared to give her money. She told him again, “Don’t, don’t. Just leave me alone.”

    He was speaking English with her because she was English-speaking. He was not speaking Turkish. “Don’t, don’t.” Obviously she was not being heeded to by him. He offered her money from the cards. She said, “No, don’t. I don't want them.” Her friend   then went to look, “Cops are coming.” He told her to tell that person not to wait. The victim then said, “Look, I want to go home.” He said, “No, have another smoke.”

    She is a vulnerable 19-year-old, stupid, quite frankly, being out that hour of the morning,   going up blind alleys with strangers. The victim does not ask to be assaulted. He took advantage of her immaturity perhaps, so lit up another pipe and then he pulled her pants down and touched her in her private parts. She was trying to pull her pants up, he was trying to pull them down. They are the two acts of indecency, assault with act of indecency.

    [25] G3, 55-57.

    [26] G3 55-56.

1. The Applicant was arrested on the night of the offence and spent four months in custody. Because he was the subject of a good behaviour bond for his offending against his former wife at the time of the offending, his two 2013 offences were called up. He was sentenced to six months’ imprisonment for the four offences. The convictions and sentences for the four offences were confirmed on appeal on 28 May 2015.[27]

   [27] G3, 54.

2. In a Statement provided to the Tribunal in support of his review application dated 21 November 2020,[28] the Applicant stated as follows in relation to the two convictions for Assault with act of indecency:

   I am not guilty as it was consentual (sic). My lawyer lied to me and promised me a good behaviour bond whilst telling me if I plead NOT GUILTY I would be found guilty and sentenced to a heavy sentence. I know in my heart I am innocent. She lied to the police. I am unable to Appeal.

   [28] Exhibit A1.

3. In Appendix A of his Statement of Facts, Issues and Conventions in support of his review application, the Applicant stated as follows in relation to these convictions:

   We went to the car park and smoked some ice. I did not touch her but she blew smoke with her lips against my lips.

4. During cross-examination at the hearing, the Applicant agreed that he did touch the victim on the bottom and touched her in the groin area. He said that he did not do anything by force, and it was not done against her wishes.[29]

   [29] Transcript, 38-38.

   2016 convictions

5. On 7 November 2016, the Applicant was convicted of Sexual intercourse without consent and Aggravated sexual assault, inflict actual bodily harm on victim. He was sentenced to 11 years and four months’ imprisonment and five years and eight months’ imprisonment for those offences.[30] The Applicant was on bail pending an appeal of the 2014 offences when he committed            these offences.[31]

   [30] G3, 29-30.

   [31] G3, 41.

6. The circumstances surrounding these offences were recorded in the sentencing remarks of Judge Herbert:[32]

   [32] G3, 33-38.

   [In 2014] the victim… was admitted to [a Western Sydney hospital],  having sustained head injuries in a motor vehicle accident. She suffered swelling to the brain and, as a result, post-traumatic amnesia.

   At about 10pm on [the date of the offence] she went outside the hospital wearing her Mickey Mouse pyjamas to have a cigarette. Once outside she became confused and could not remember why she was at the hospital. She wanted to go home but could not remember     where she lived.

   She walked from the hospital to [a police station], which she could see as she walked along the street. She entered the police station, but finding the officer at the front desk was busy, she left. She continued walking along [a street] until she reached a pub… The pub was closed, but a female employee let her in and gave her a glass of water. She drank it and then left the pub. The CCTV footage shows that this occurred at 11.45pm.

   The victim walked back up [the street] in the direction of the police station. She sat down on a bus stop bench on [the street]. There was no one else around. She put her head down for a period of time before she heard the offender approach.

   The offender asked the victim what the time was and then asked her what her name was. She said, "I don't know." The offender asked her where she lived, and she replied, "I don't know." He asked her if she was cold and offered her his jacket. She declined. There was a conversation about cigarettes, after which the offender asked her, "What   about drugs?" She said, "No," and told the offender she does not do that stuff.

   …

   In the hours following the offences [the victim] was examined at [a sexual assault centre], as recorded in the History of Assault she told hospital staff that she was asked if she wanted “crack or ice”. An excerpt of the History of Assault was tendered by the offender, becoming exhibit 1, which included this account; the excerpt did not include her account as to her responses to the offender's offer. In reply the Crown tendered exhibit E, which included the continuation of the History of Assault. It was recorded that when asked if she wanted “crack or ice” “[the victim] answered, ‘No, I don't do that sort of thing.’ …Then he looked at her arm band and said, ‘[the victim], it has your address on it, I'll walk you home.’ He led her into a side street.”

   I am satisfied that the version as recorded in the medical notes which were taken within   hours of the offence is an accurate and reliable version of the events. I am satisfied beyond reasonable doubt that the victim did not agree to go to the alleyway with the offender to consume drugs, but rather she went there having been deliberately deceived by the offender saying that he knew her address and was taking her there when he led her into the alleyway. I am satisfied beyond reasonable doubt that the offender and victim did not consume methylamphetamine together in the alleyway.

   …

   In the alleyway the offender pushed the victim against a wall and the back of her head hit   the wall. The offender stood in front of the victim and started touching her breasts with both hands. She felt panicked and told him that she needed to go home. He said, "I'll take you there later."

   The victim became disoriented and the offender continued touching her breasts, stomach, and vagina on the outside of her pants. She felt further panic and told the offender that she had to go. The offender pushed the victim onto the bitumen and her   head hit the ground.

   The offender stood over the victim as she lay on the ground. He pulled down her pyjama pants and he removed her shoes in order to fully remove the pyjama pants. The victim started to cry. The offender pulled her underwear down to her knees. The victim heard the offender's jacket and belt hit the ground. He knelt between her legs. The victim said that she was not feeling well and she needed water. The offender said, "You wanna go home, don't you?"

   The offender touched the victim's breasts with one hand and unsuccessfully tried to insert his penis into her vagina. He appeared to become frustrated and told the victim she was not “wet”. He grabbed the sides of her head and pushed it into the bitumen.

   The offender pushed the victim's knees back onto her chest. He spat on his hand and used that hand to digitally penetrate her vagina. This is the offence of sexual intercourse without consent that is contained on the Form 1.

   The offender then pushed the victim's shins against her chest and he inserted his penis into her vagina a number of times. He stopped when he heard a noise. This is the conduct constituting count 1.

   The offender stood up and walked to the end of the alley, before turning around and returning to where the victim was. He moved her onto her right side, took hold of her left leg, and pushed it into her stomach. He again unsuccessfully tried to insert his penis into her vagina.

   The victim was still crying. The offender told her to get onto her knees. He rolled her onto her back, placed his right hand on her stomach, and was holding his penis with his left hand. The victim said that she had to go and that she would not say anything. The offender said, "I have to finish first." The offender pushed both of her legs against her stomach and inserted his penis into her vagina a number of times. This conduct constituted count 2.

   The victim told the offender that it was hurting and to stop. The offender continued.

   After a time the offender stood up, put his pants back on, and left. The victim remained on the ground until the offender left. She put her clothes back on and checked to see that     he was gone. She walked to the Liverpool Police Station and reported the matter. It was about 1am.

   …

   As a result of the assault the victim sustained bruising to her face, arms, and inner thighs. The treating doctor noted the following injuries: a 5 centimetre by 3 centimetre abrasion with swelling to her right cheek; a 4 centimetre by 3 centimetre swelling to her left cheek; tenderness to the base of her skull; two parallel scratches approximately 2 centimetres in length on her left shoulder; abrasions to her right elbow and lower hand; tenderness to her lower thoracic back; purplish bruising to both inner aspects of her thighs; tenderness to the fossa navicularis and posterior fourchette.

7. Judge Herbert found the offences committed by the Applicant to be above the mid-range of objective seriousness for such offending.[33] Her Honour remarked that the Applicant ‘acted in a purposeful manner. He deliberately lured [the victim] into the laneway with his lies, with the intention of sexually assaulting her.’ [34] The Applicant ‘abused a woman knowing that she was in a confused and extraordinarily vulnerable position.’ His ‘offences were opportunistic, taking advantage of a woman in the worst of circumstances.’[35] Her Honour continued:

   To do what he did to a woman in her situation does indicate a degree of brutality. He purported that he was going to help her, and instead he had no feelings for a human being in such circumstances, and used and degraded her.[36]

   [33] G3, 51.

   [34] G3, 49.

   [35] G3, 49.

   [36] G3, 50.

8. Her Honour acknowledged that although the Applicant’s offences were of a relatively short duration, this did ‘not reduce the objective seriousness of his offence.’[37] The Applicant had unprotected sexual intercourse with the victim, exposing her to pregnancy and disease, which ‘added to the degradation of being sexually assaulted in an alleyway and is a relevant consideration in determining the overall seriousness.’[38] In addition, at the time of this offending the Applicant was on bail for an offence of violence and other offences of a sexual nature ‘which is a significant matter of aggravation.’[39]

   [37] G3, 50.

   [38] G3, 50.

   [39] G3, 49.

9. Her Honour described the impact of the Applicant’s offending on the victim as ‘significant, as would be expected of a violent sexual assault by a stranger in a public place: the sequelae of these offences are often devastating.’[40]

   [40] G3, 39.

10. In Appendix B of his Statement of Facts, Issues and Conventions in support of his review application, the Applicant stated as follows in relation to these convictions:

    After smoking we hugged and kissed and had consentual (sic) sexual intercourse in the alley way. At no time did she say ‘no’ or ‘stop’. At no time did I cause her an injury however she may have grazed her knees during sex.

11. During cross examination at the hearing, the Applicant told the Tribunal that he and the victim ‘did enter into a sexual relationship’.[41]  He denied that he pushed the victim causing her head to hit the wall or that he pushed her onto the bitumen causing her head to hit the ground. He agreed that he pulled the victim’s pants down and removed his own. He denied that he used force and that the victim was crying or resisting.[42] The Applicant agreed that he may have taken advantage of the victim and maybe should have taken her back to the hospital.[43]

    [41] Transcript, 41.

    [42] Transcript, 45.

    [43] Transcript, 42.

    Appeal of convictions

12. In his Statement of Facts, Issues and Contentions, the Applicant stated that he is ‘innocent’ and intended to appeal the 2016 convictions in the NSW Court of Appeal. A record shows that the Applicant filed a ‘Notice of Intention to Appeal’ on 8 November 2016,[44] but no further steps appear to have occurred. At the hearing, the Applicant told the Tribunal that his barrister told him she had lodged an appeal, but it was unsuccessful.[45]

    [44] TB, 158.

    [45] Transcript, 50-53.

    Remorse and responsibility for offending

13. The Applicant told the Tribunal that victims of both his offences consented to the sexual acts and his behaviour was affected by the drugs he had taken:

    I’m not saying that these things didn’t happen. All I’m saying is that it’s there was no force, and the drugs did make me do things that I would normally not have done.[46]

    [46] Transcript, 48.

14. In his submissions dated 22 December 2016 and 28 July 2020, the Applicant stated that when committing his offences, he ‘didn’t mean to hurt anyone’. He told the Tribunal that he apologises to his victims for what he did and to the people he has hurt.[47]

    [47] Transcript, 55.

15. In his Statement of Facts, Issues and Contentions, the Applicant wrote:

    People (mainly women) are frequently falsely making up allegations of sexual assault for financial gain.

    [The victim] was motivated by financial greed to lie to the police and at court.

    Following [the Applicant’s] late plea of GUILTY … she sued in the Supreme Court for damages which was not contested and was awarded $150,000.

    Later she was awarded $10,000 in Victim Compensation by Victim Services.

16. During cross-examination at the hearing, the Applicant was asked about these allegations. He said that he received a letter asking him to pay $10,000 and he took it to the Governor of the gaol who informed Victim Services that he was unable to make this payment.[48] In relation to the damages awarded to the victim, the Applicant said he was not sure about the accuracy of this, and he had only heard about it from other people.[49]

    [48] Transcript, 54.

    [49] Transcript, 54.

    Rehabilitation

17. In gaol, the Applicant completed the 20 session EQUIPS Addiction Program and a Certificate III in Hospitality.[50]

    [50] TB, 242-243.

    Psychological assessments

18. The Applicant was interviewed by Dr Furst, a Consultant Forensic Psychiatrist, who prepared a written report for the Court dated 14 June 2016.[51] The Applicant described his military service as being extremely traumatic. When he served in Cyprus, he had been wounded by terrorist fire, had killed a number of people himself and seen many die, including having his best friend die in his arms. He also claimed to experience ongoing traumatic memories and flashbacks up to the present. Dr Furst diagnosed the Applicant with Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder and Substance Use Disorder (methyl-amphetamine dependence).[52] He opined that the Applicant’s offences were at least partly driven by the direct effects of methylamphetamine ‘increasing his libido and making him more disinhibited.’ His depression and PTSD also were ‘relevant mitigating factors’ and his depression also probably had ‘an adverse effect on his judgment making him more impulsive and reckless’ at the time of the offences, independent of the effects of the methylamphetamine.[53] Dr Furst noted the Applicant was willing to engage in further treatment and he therefore he had ‘reasonable prospects of improving his mental health over the medium to longer term and having good prospects of being successfully rehabilitated.’[54] In his opinion, the Applicant’s risk of re-offending would be reduced if he followed the treatment recommendations and remained abstinent from drugs of abuse.[55]

    [51] TB, 169-179.

    [52] TB, 174.

    [53] TB, 175.

    [54] TB, 176.

    [55] TB, 177.

19. The Court also considered an assessment of the Applicant by psychologist Ms Dilek.[56] She treated the Applicant for a period of 17 months and had numerous counselling sessions with him following the breakdown of his marriage between April 2013 and September 2014. He told her that he had a trouble-free childhood and schooling. He described his military service as a positive experience during which he was treated with respect and he was not subject to discrimination. Ms Dilek opined that based on her assessment and consultations with the Applicant he was suffering from ‘severe mental health issues’ at the time of his offences.[57]

    [56] TB, 180-183.

    [57] TB, 182.

    Risk of re-offending

20. In her sentencing remarks, Judge Herbert stated:

    I am not able to find that the offender has good prospects of rehabilitation, or that he is unlikely to reoffend, given the fact that he committed these offences within such a short period of time after his previous offences. The offender's expressions of regret appeared to focus much more on the impact that his offending has had on his own life rather than that of the victim. The offender may have expressed a willingness to undertake treatment and courses, but at this stage he lacks insight into the seriousness of his offences.

    …

    Hopefully with treatment [the Applicant] may come to understand the seriousness of his conduct. If that occurs his prospects of rehabilitation will improve. At best they could be regarded as guarded.

21. A report by the NSW Department of Corrective Services Probation and Parole Services dated 20 February 2017 assessed the Applicant to be at a ‘medium’ risk of reoffending.[59]

    [59] TB, 235.

    Applicant’s daughter

22. The Applicant has one daughter, HY, from his relationship with his former wife, born in May 2007. The Applicant has not resided with his wife and their daughter since 2013 and has not seen his daughter since his incarceration in 2014. He has not been visited by his daughter in gaol, other than a video call visit (AVL) they had together about six months ago. He has however been in contact with his daughter two to three times a week by phone and claims they have a ‘great relationship’.[60]

    [60] G3, 72.

23. In his Personal Circumstances Form dated 22 December 2016, the Applicant wrote that should he be removed from Australia, his daughter:  

    will be very distort (sic) and may have long term depression as she asks every day when am I coming home. She is looking forward to seeing me in the community she needs a father in her life.[61]

    [61] G3, 72.

24. The Applicant wrote that he ‘would like to stay here to give better future for my daughter’ and he told the Tribunal that he really wants to be in his daughter’s life.[62]

    [62] Transcript, 64.

25. The Applicant told the Tribunal that his daughter lives with her mother and her grandmother and the care they provide to HY is ‘amazing’.[63]

    [63] Transcript, 16.

    Family and friends in Australia

26. The Applicant has some ties to Australia including two brothers, three sisters, two uncles and his former wife and mother-in-law.[64] He did not provide any statements in support from these relatives or evidence of his relationship with them. He told the Tribunal he remains in contact with his mother-in-law and he calls one of his brothers every month or so.[65]

    [64] G3, 73-74.

    [65] Transcript, 62.

27. The Applicant did not provide any letters of support from friends within Australia or evidence of other ties. He told the Tribunal that since he has been in gaol, he has lost contact and connection with his former friends.

    Family in Turkey

28. The Applicant told the Tribunal that his mother and father live about three hours from Ankara and his sister lives in Istanbul.[66] He has a good relationship with his parents and his siblings, and he speaks to them every weekend.[67] He recently had an AVL visit with his family in Turkey which his brother organised.[68]

    [66] Transcript, 10.

    [67] Transcript, 61.

    [68] Transcript, 63.

    Plans for the future

29. The Applicant told the Tribunal that if he returns to the Turkey he will live with his parents.[69] He is confident he will be able to find work either at a petrol station or in the tourism industry.[70] If he remains in Australia, he will work with his brother in his kebab business and also will live with him. He would eventually like to move from Sydney to Adelaide or Queensland because he wants ‘a new start.’[71]

    [69] Transcript, 61.

    [70] Transcript, 9.

    [71] Transcript, 63.

    Impediments on return

30. In his Personal Circumstances Form dated 22 December 2016, the Applicant claimed:

    I was in the army in Turkey + I am a professional sniper. I am not sure what will happen to me if I was to go back to Turkey.[72]

    [72] G3, 76.

31. He expanded on these claims in his statement dated 28 July 2020:

    I am Kurdish background, if I go back to my country they will ask me to go back to the army. I don’t want to go back and die.[73]

    [73] G3, 82.

32. In his Statement of Facts, Issues and Considerations, the Applicant wrote that prior to coming to Australia he was a sniper in the Turkish Army and during the course of military operations he killed a number of Kurdish terrorists. If he is returned to Turkey, he ‘fears he will be murdered’.

1. During cross-examination at the hearing, the Applicant was asked whether he has any fears or concerns about returning to Turkey. He confirmed that he does not have any fears of being harmed if he returns to Turkey.[74] He has family waiting for him there who are willing to support him, and he is happy to go back to his country.[75]

   EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

   [74] Transcript, 11.

   [75] Transcript, 10.

   Does the Applicant pass the character test?

2. In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the Nationally Coordinated Criminal History Check dated 2 December 2019 regarding his criminal convictions and sentences.

3. The evidence before the Tribunal is that on 7 November 2016, the Applicant was convicted of Aggravated sexual assault, inflicting actual bodily harm on victim and Sexual intercourse without consent and was sentenced to 11 years and four months’ imprisonment and five years and eight months’ imprisonment respectively for the two offences. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.

4. For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.

   Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

5. In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.

   PRIMARY CONSIDERATIONS

   Primary Consideration A – Protection of the Australian community

6. Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:

   When considering protection of the Australian community, decision­makers 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. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

7. Paragraph 13.1(2) directs that 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.

   (a)       Nature and seriousness of the Applicant’s conduct to date

8. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:

   (a)  The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)  The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;

   (c)   The principle that crimes committed against vulnerable members of the community (such as 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;

   (d)  Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   (e)  The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (f)    The cumulative effect of repeated offending;

   (g)  …

   (h)  …

   (i)    ...

9. As required by paragraph 13.1(2)(a) of the Direction, the Tribunal has considered the nature and seriousness of the Applicant’s conduct to date and finds that it is very serious. In making this finding the Tribunal has had regard to the factors listed in paragraph 13.1.1(1).

10. Having regard to sub-paragraphs 13.1.1(1)(a) and (b) of the Direction, the evidence before the Tribunal is that during the period from July 2013 to August 2014, the Applicant committed a domestic violence offence against his former wife and four sexual offences against two female victims. As the offences which resulted in the Applicant’s 2014 and 2016 convictions were sexual crimes against a woman, and the offences for which he was convicted in 2013 and 2016 involved violence, the Tribunal finds that the Applicant’s criminal offending is very serious. As Magistrate Betts noted in her sentencing remarks in relation to the Applicant’s September 2013 conviction for domestic violence against his wife, ‘violence by one person towards another just cannot be condoned.’ The offences for which the Applicant was convicted in November 2016 involved him deliberately and purposefully luring his victim into a laneway with the intention of sexually assaulting her, acting violently towards her, and causing her extensive physical injuries, including to her head as a consequence of him forcibly hitting her head against a wall and onto the ground. The Tribunal finds that the offences for which the Applicant was convicted in 2013, 2014 and 2016 are very serious.

11. The Tribunal has had regard to sub-paragraph 13.1.1(1)(c) of the Direction, which recognises that crimes committed against vulnerable members of the community are serious. The victims of the sexual offences for which the Applicant was convicted in 2014 and 2016 were both vulnerable women. His first victim was aged 19 years and, as Magistrate Betts observed, the Applicant took advantage of her immaturity and that she was affected by drugs when he sexually assaulted her. His second victim was a woman who the Applicant knew had been involved in a car accident, had suffered a head injury for which she was hospitalised and could not remember her own name or address. Aware that his victim was ‘in a confused and extraordinarily vulnerable position’, the Applicant sexually assaulted her in a manner that was opportunistic and highly degrading to her.

12. Having regard to sub-paragraph 13.1.1(1)(d) of the Direction, the Tribunal notes that the Applicant was sentenced to 11 years and four months’ imprisonment and five years and eight months’ imprisonment respectively for the two offences for which he was convicted in 2016. These sentences considerably exceed the length of sentence required to satisfy the definition of a ‘substantial criminal record’ in subsection 501(7) of the Act. The custodial sentences imposed on the Applicant by the Court are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]; PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].

13. The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending has been frequent and repetitive and has displayed a trend of increasing seriousness. His early offending between the period 2006 and 2011 resulted in convictions for five driving offences and for possessing a prohibited drug. During the 13 month period from July 2013 to August 2014, the Applicant committed a series of violent and/or sexual offences of increasing severity, being a domestic violence assault against his former wife, an assault involving an act of indecency, and culminating in an aggravated sexual assault involving actual bodily harm for which he was convicted and sentenced to his current term of imprisonment.

14. On the basis of the evidence before it and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct to date has been very serious as it has involved violent and/or sexual offences against his female victims, two of whom were vulnerable, and one of whom was his former wife and mother of his daughter. The very serious nature of the Applicant’s criminal offending weighs heavily against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

    (b)     The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

15. In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:

    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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).

16. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, as required by sub-paragraph 13.1.2(1)(a) of the Direction, the Tribunal finds that any future re-offending by the Applicant may involve serious physical and/or psychological harm to members of the Australian community, including young and/or vulnerable women. Domestic violence and sexual assault can result in very serious psychological damage and emotional harm to victims, with long-lasting effects. The devastating and ongoing impact of sexual assault is reflected in the statement of the Applicant’s most recent victim in which she describes the effect of his offending against her:

    I live with the ongoing mental pain every day. I have become very untrustworthy towards anyone. I am still unable to go into the Liverpool CBD. I find myself looking over my shoulder and not being able to be near strangers, men in particular. I have lost any sense of safety. I feel unsafe and anxious at all times.

    I suffer from nightmares and have trouble falling asleep. I constantly hear the sound of his belt hitting the floor. That sound haunts my days and my nights.[76]

    [76] TB, 184.

17. On the basis of the evidence before it, the Tribunal finds that the potential harm to individuals should the Applicant engage in criminal offending is extremely serious. His violent and criminal behaviour has caused to date, and has the potential to cause in the future, substantial and ongoing psychological and physical harm to victims, and significant financial cost to the community associated with emergency services and law enforcement activities.

18. In relation to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has taken into account available information and evidence on the risk of him re-offending as required by sub-paragraph 13.1.2(1)(b) of the Direction.

19. The Applicant maintains he is innocent of the four sexual offences for which he was convicted as he claims the sexual acts with his victims were consensual. He admits however that he is guilty of ‘a minor common assault’ against his wife.[77] He claims that he used ice ‘once’ which caused him to offend, has learned his lesson and will not touch drugs again, and has ‘had it hard in gaol.’[78]

    [77] Exhibit A1, 2.

    [78] G3, 74.

20. The Tribunal is unable to contradict or go behind the Court’s findings of criminal guilt in relation to the offences for which the Applicant has been convicted. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, the Full Federal Court recognised the policy reasons that require the Tribunal to accept the findings of criminal guilt made by the Court. McKerracher J stated at [76]-[77]:

    … consistently with the line of authority which stems from mid-twentieth century decisions dealing with this topic, there could be no sound or legitimate policy reason to assume that the legislature intended to depart from some decades of authority which precluded facts being relied upon which necessarily contradicted the underlying facts supporting the sentence. No such legislative intent is expressed. None can be inferred. None should be found or assumed, in the absence of a clear statement to such effect.

    As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based … The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.[79]

    [79] See also Colvin J at [179]-[182].

21. The Applicant’s 2016 conviction enlivened the mandatory visa cancellation power           and is the reason why the Applicant fails the character test for the purposes of sub-paragraph 501CA(4)(b)(ii). Just as the Tribunal must accept the fact of the conviction, it cannot make factual findings contrary to those made by the Court for the purpose of imposing a sentence for the Applicant’s offending. They are ‘essential         facts’ on which the conviction was based and cannot be questioned, although the factual circumstances of the conviction may be examined for the purposes of considering the matters relevant to the revocation of the visa cancellation. As Bromberg J explained in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]:

    Where a previous conviction is the foundation for the exercise of power by the decision- maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself…

22. The Tribunal accepts the Courts’ findings of guilt and its factual findings in relation to the domestic violence offence for which the Applicant was convicted in 2013 and the four sexual offences he committed that resulted in the 2014 and 2016 convictions and makes its assessment of the likelihood of the Applicant reoffending on this basis.

23. The evidence before the Tribunal is that in February 2017, an LSI-R assessment by the NSW Department of Corrective Services Probation and Parole Services assessed the Applicant at a ‘medium’ risk of re-offending.[80] In his June 2016 report prepared for the Court, Dr Furst expressed the opinion that the Applicant’s risk of re-offending would be reduced, and his prospects of rehabilitation would be good, if he followed treatment recommendations and remained abstinent from drugs of abuse. The evidence before the Tribunal is that the Applicant completed EQUIPS courses in gaol. There is no evidence before the Tribunal that the Applicant is having ongoing psychological treatment, including taking medication for his diagnosed mental health conditions. Nor has the Applicant undertaken any courses in gaol for sex offenders or to address his violent criminal behaviour.[81]

    [80] TB, 235.

    [81] Transcript, 20.

24. In her November 2016 sentencing remarks, Judge Herbert was unable to find that the Applicant had good prospects of rehabilitation or that he was unlikely to reoffend. In her view, the short period of time over which he committed the offences and his lack of insight into the seriousness of his offending and its impact of his victims were such that his rehabilitation prospects at that time were at best ‘guarded’.

25. In the more than four years that have now passed since the Applicant was sentenced by Judge Herbert, the Applicant appears not to have gained any insight into the seriousness and impact of his criminal offending. He has demonstrated little, if any, concern for the victims of his crimes and accused his most recent victim of being motivated by financial gain. It is apparent from the Applicant’s evidence to the Tribunal, including his written statements, that his acknowledgement of the impact of his offending is limited to how it has affected him and his family, and does not include the devastating effects of his criminal behaviour on his victims.

26. The Tribunal finds there are a number of factors that are indicative of moderate to high risk of the Applicant re-offending. These include his denial that the sexual activity between him and his victims was non-consensual, his lack of remorse and insight into his criminal offending, and that he has not participated in a custody-based sex offenders’ program. The Applicant’s ongoing refusal to acknowledge the criminal and serious nature of his actions against his victims indicates that during his six years in custody he has not gained any appreciation of the seriousness of his criminal behaviour. This supports a finding that there is an ongoing risk that the Applicant may engage in non-consensual sexual activity and commit further sexual offences if he is returned to the community.

27. On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate to high, and that this level of risk is unacceptable, particularly given the extremely serious nature of the harm he may cause if he commits further sexual offences against women.

28. For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, the Tribunal finds that Primary Consideration A, on balance, weighs heavily against the revocation of the Mandatory Visa Cancellation Decision.

    Primary Consideration B – The best interests of minor children in Australia affected by the decision

29. Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.

30. In considering the best interests of the child, paragraph 13.2(4) provides:

    (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 the 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.

1. The Applicant has a daughter, HY, born in 2007 and aged 13 years. In his request for revocation submissions dated 22 December 2016, the Applicant claimed he telephoned his daughter two or three times a week and they have a ‘great relationship’.[82] The Applicant’s evidence to the Tribunal was that he has not seen his daughter since he entered custody six years ago and their most recent contact was a video call six months ago. Prior to entering custody, the Applicant did not live with his former wife and child for a period of 12 months.[83] A NSW Corrective Services record dated April 2019, notes that the Applicant’s daughter’s psychologist had said she is not yet ready visit the Applicant in custody.[84] Another record dated April 2020 notes that the Applicant’s former wife has custody of his daughter and she does not bring her to see him in gaol.[85]

   [82] G3, 72.

   [83] G3, 72.

   [84] TB, 242.

   [85] TB, 330.

2. Having regard to paragraph 13.2(4)(a) of the Direction, the evidence before the Tribunal is that the Applicant has had a very limited parental role in his daughter’s life, particularly in the six years since he has been incarcerated in gaol. He has not lived with his daughter since she was six years of age and she has not visited him in gaol, and he has therefore not been physically present for more than half her life. There is very limited independent evidence before the Tribunal about the Applicant’s relationship with his daughter other than his assertions that they have a ‘great relationship’.

3. The evidence is that the Applicant’s daughter currently resides with her mother and grandmother from whom she receives daily care and emotional and practical support. The Applicant has had limited meaningful contact with his daughter other than telephone calls and a recent video call. While the Applicant clearly has a strong emotional bond with his daughter, there is very limited evidence that he is a significant figure in her life. This extended period of physical absence of the Applicant from his daughter’s life and the limited contact he has otherwise had with her is such that his involvement in her daily care and upbringing is not at all significant.

4. Having regard to paragraph 13.2(4)(b) of the Direction, the evidence demonstrates that the Applicant is unlikely to play a significant parental role in his daughter’s life in the foreseeable future. The Applicant is not eligible for early release from gaol until 10 October 2023, by which time his daughter will be 16 years old. Whereas the Applicant’s daughter may choose to continue to remain in contact with him via phone and video calls, there is no immediate prospect that she will visit him in gaol or that he will have regular contact with her. For the medium to long-term, it is her mother and grandmother who will fulfil the primary parental roles in the Applicant’s daughter’s life.

5. The Tribunal has had regard to the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the children, as required by paragraph 13.2(4)(c) of the Direction. The evidence before the Tribunal is that it was the Applicant’s wife taking their daughter to the movies that provoked the argument that led to his domestic violence assault against his former wife in 2013. At this time, HY would have been aged six years. There is no evidence that HY witnessed the assault of her mother by the Applicant, however if he were to engage in similar violent conduct against his former wife in his daughter’s presence, she would suffer emotional distress if not more serious harm.

6. For the purposes of paragraph 13.2(4)(d) of the Direction, the Tribunal has had regard to the Applicant’s evidence that his removal from Australia will cause his daughter distress and potentially ‘long term depression’. The Tribunal accepts that the Applicant’s separation from his daughter as a result of his removal to Turkey will likely have a negative impact on her as he will necessarily be physically absent from her life, and she will not have the opportunity to see her father, unless and until she is able to travel to Turkey to visit him. She will however be able to continue to maintain contact with him via phone, video and other electronic means as they have done while he has been incarcerated in gaol.

7. Considering the factors in paragraph 13.2(4)(e), the evidence before the Tribunal is that the Applicant’s daughter is receiving her primary care from her mother and her grandmother. Accordingly, the Tribunal is satisfied that there are other persons who currently fulfil a parental role in relation to HY, and there are adequate and stable care arrangements in place for her which will not be affected by the Applicant’s removal from Australia.

8. There is limited evidence before the Tribunal of the views of HY in relation to the Applicant or how she would be impacted if he were not to hold a visa, other than the evidence provided by the Applicant himself. Accordingly, the Tribunal has not placed weight on the factors in paragraph 13.2(4)(f).

9. Having regard to paragraphs 13.2(4)(g) and (h) of the Direction, there is no evidence before the Tribunal to indicate that the Applicant has abused or neglected his daughter, or that she has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. As noted above, the Applicant’s daughter was living with her parents when the Applicant violently assaulted her mother in September 2013 but there is no evidence that HY was physically or psychologically harmed. The Tribunal has therefore given neutral weight to the factors in paragraphs 13.2(4)(g) and (h).

10. The Tribunal has also considered the interests of the Applicant’s five nieces and nephews who reside in Australia.[86] The Applicant did not provide any detail about the nature of his relationship with these children, and how they may be adversely affected by his removal. The Tribunal has therefore given the impact on these children of the Applicant’s removal from Australia neutral weight.

    [86] G3, 73.

11. Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that, on balance, this primary consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s daughter for the cancellation of the Applicant’s visa to be revoked and for him to be permitted to remain in Australia.

    Primary Consideration C – The expectations of the Australian community

12. Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:

    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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

13. The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:

    ·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[87] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[88]

    ·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[89] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[90]

    [87] Charlesworth J at [66]; Stewart J at [91].

    [88] Charlesworth J at [67]; Stewart J at [104].

    [89] Charlesworth J at [76].

    [90] Stewart J at [97].

14. The effect of paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.

15. Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of multiple offences in Australia. The Applicant’s criminal record includes the serious crimes of domestic violence and sexual assault which, as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of the non-citizen’s visa. The Australian community would have a very low tolerance for the Applicant's criminal offending, which has involved a series of violent and/or sexual offences, including against his former partner and two vulnerable women. In light of the seriousness of the Applicant's offending, the Tribunal finds that the Applicant is likely to have exhausted the trust of the Australian community, and it would expect that he should no longer hold a visa.

16. The Applicant arrived in Australia at the age of 22 years and is now aged 38 years. Having regard to the factors in Principle 5 of paragraph 6.3 of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had been resident in Australia for a shorter period of time. The Tribunal finds that the length of time the Applicant has been living in Australia, is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his serious criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.

17. Having regard to the factors in Principle 7 in paragraph 6.3 of the Direction, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory visa cancellation on the Applicant’s daughter, his two brothers, three sisters, two uncles and his former wife and mother-in-law who are Australian citizens or permanent residents and reside in Australia.

18. There is limited evidence before the Tribunal in relation to the impact of the Applicant’s removal from Australia on the Applicant’s family immediate members, none of whom provided a statement in support of the Applicant’s application for review of the Mandatory Visa Cancellation Decision. The Tribunal however accepts that the Applicant’s removal from Australia will limit his family from reconnecting face-to-face with the Applicant and will require them to maintain their relationship with him by phone, letters, email and visits to Turkey. The impact on the Applicant’s immediate family in Australia are factors which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.

19. The Tribunal also has had regard to the contribution the Applicant has made to the Australian community during the 16 years he has been resident in Australia. The evidence is that the Applicant held regular paid employment in Australia and ran his own small business and therefore contributed to the economy and paid taxes. These contributions are factors which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal offending.

20. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending and the other factors relevant to his circumstances, the Tribunal finds that Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision.

    OTHER CONSIDERATIONS

21. While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.

22. The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:

    ... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    International non-refoulement obligations

23. Paragraph 14.1 of Direction 79 requires the decision-maker to take into consideration Australia’s 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 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 non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

    3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

    4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

    5)If, however, the visa that was cancelled was a Protection visa, 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 have their visa reinstated. 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 remains cancelled, they would face the prospect of indefinite immigration detention.

24. In his Personal Circumstances Form provided in support of this revocation request, and in statements provided in support of his review application, the Applicant claimed that he fears for his life if he were returned to Turkey. In his oral evidence at the hearing, the Applicant was questioned about these claims and was asked directly whether he has any fears or concerns about returning to Turkey. He confirmed that he does not have any fears of being harmed if he returns to Turkey.[91]

    [91] Transcript, 11.

25. As the Applicant’s evidence is that he does not fear persecution or serious harm on return to Turkey, the Tribunal finds that the Applicant does not engage Australia’s international non-refoulement obligations and therefore this ‘other’ consideration is of neutral impact. In making this finding, the Tribunal has had regard to subsection 501E(2) of the Act, which will allow the Applicant to make an application for a protection visa and the decision-maker for any such application will be required to assess his protection claims prior to the consideration of ineligibility criteria or referring the application for consideration under section 501 of the Act – Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b).

    Strength, nature and duration of ties

26. Paragraph 14.2(1) of the Direction states:

    Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

27. Considering the factors in paragraph 14.2(1)(a)(ii) of the Direction, the Applicant first arrived in Australia in March 2005 when he was 22 years old and he has resided here for almost 16 years. He has been steadily employed in a number of small businesses manufacturing and selling kebabs and he has therefore contributed to the Australia economy. In addition, the Applicant has made a contribution to his local community through playing soccer and his involvement with the Kurdish community.[92]

    [92] G3, 75.

28. Having regard to the factors in paragraph 14.2(1)(a)(i) of the Direction, the Tribunal notes that the Applicant started to offend soon after arriving in Australia, with his first convictions being recorded in January 2006, less than a year after his arrival here in March 2005.

1. The Applicant has family ties in Australia, particularly his daughter, siblings, uncles and his former wife and mother-in-law. However, there is no evidence before the Tribunal to indicate that his family members have any particular reliance on the Applicant or would suffer any financial or practical hardship if he were removed from Australia. Insofar as this consideration weighs in favour of revocation, the Tribunal has given it limited weight.

2. Based on the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.

   Impact on Australian business interests

3. Paragraph 14.3(1) of the Direction states:

   (1)Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

4. The Applicant was employed in small businesses manufacturing and selling kebabs prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to Turkey.

   Impact on victims

5. Paragraph 14.4(1) of the Direction states:

   (1)Impact of a decision not to revoke 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 the non-citizen being considered for revocation has been afforded procedural fairness.

6. The victim of the Applicant’s most recent offending provided to the Court a Victim Impact Statement dated 10 June 2016. She wrote that she is seeing a psychiatrist and has been prescribed medication for depression and to assist her to sleep. She further described how the Applicant’s offending has affected her sense of security and well-being:

   Every day since the incident I worry that his friends are watching me, or that others might try to take advantage of me. I am afraid that when I am out one of them will recognize me. I constantly worry.[93]

   [93] TB, 184.

7. There is no evidence before the Tribunal of the impact on the Applicant’s other two victims of the Applicant’s crimes against them. On the basis of the statements made in the above Victim Impact Statement, the Tribunal finds that if the Mandatory Visa Cancellation Decision were revoked and the Applicant were released into the community, the impact on the Applicant’s most recent victim could be potentially devastating. This consideration therefore weighs against the revocation of the Mandatory Visa Cancellation Decision.

   Extent of impediments if removed from Australia

8. The Direction states in paragraph 14.5(1) that:

   (1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)  The non-citizen’s age and health;

   (b)  Whether there are substantial language or cultural barriers; and

   (c)   Any social, medical and/or economic support available to them in that country.

9. Having regard to paragraph 14.5(1)(a) of the Direction, the evidence before the Tribunal is that the Applicant is 38 years old of Kurdish ethnicity and he has previously suffered from depression and anxiety and has been diagnosed with PTSD, Major Depressive Disorder and Substance Use Disorder (methyl-amphetamine dependence).[94]  It is unclear to what extent the Applicant continues to suffer from these medical conditions. The evidence before the Tribunal contained in the Department of Foreign Affairs and Trade (DFAT) Country Information Report: Turkey (September 2020) is that ‘[f]or the general population, healthcare in Turkey is accessible and high quality’.[95] Further ‘[n]o laws prevent Kurds (or other ethnic minorities) from obtaining public or private sector employment, from participating in public life, or from accessing government health and education services in the same fashion as other Turkish citizens’.[96]

   [94] TB, 174.

   [95] TB, 384 [2.16].

   [96] TB, 394 [3.8].

10. Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on return to his country of citizenship. He lived in Turkey until the age of 22 years and completed his schooling and worked there in a range of roles. Noting paragraph 14.5(1)(c) of the Direction, the Tribunal is satisfied that the Applicant will have access to social, medical and economic supports available to all Turkish citizens, although these may not be of a comparable standard to those available in Australia.

11. In his Personal Circumstances Form, the Applicant wrote that he does not ‘have a life in Turkey’.[97] In his oral evidence, he confirmed that his parents, two brothers and grandmother reside in Turkey, and he has recently been in regular contact with them and they are aware of his circumstances. They have indicated that they are willing to provide him with accommodation as well as emotional and practical support on his return. The Applicant told the Tribunal that he is confident he will be able to find work in Turkey, either using his existing knowledge and experience in retail and manufacturing, or potentially utilising his English language skills in the tourism industry.

    [97] G3, 77.

12. On the basis of the evidence before it, the Tribunal finds that, on his return to Turkey, the Applicant will face some initial hardship, particularly financial and emotional stress, while he looks for a job and adjusts to living in a country where he has not lived for the best part of two decades. This hardship will be exacerbated by his separation from his daughter and other immediate family members in Australia.

13. Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.

    CONCLUSION

14. In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature, frequency and seriousness of the Applicant’s offending, and the moderate to high likelihood of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

15. Primary Consideration B weighs in favour of the revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s daughter for the Applicant to have his visa reinstated and be permitted to remain in Australia.

16. Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious and violent offending should cause him to forfeit the privilege of remaining in Australia.

17. In regard to the relevant other considerations, only the strength, nature and duration of ties, and the extent of impediments on return to Turkey weigh marginally in favour of revocation of the Mandatory Visa Cancellation Decision.

18. The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

    DECISION

19. The Reviewable Decision dated 19 November 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 145 (one hundred and forty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

................................[sgd]........................................

Associate

Dated: 2 March 2021

Dates of hearing:	2 and 3 February 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor

[58] G3, 48.