YRRF and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 55
•3 February 2025
YRRF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 55 (3 February 2025)
Applicant:YRRF
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/2931
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:3 February 2025
Decision:The Tribunal sets aside the decision under review and remits the decision to the respondent for further consideration on the basis that the discretion to refuse the application on character grounds should not be exercised.
Statement made on 03 February 2025 at 5:13pm
Catchwords
MIGRATION – refusal to grant Child (Migrant) (Class AH) visa – Turkish national – substantial criminal record – conviction in a foreign court – conviction for being a member of FETO/PDY - whether Applicant passes the character test – whether to refuse to grant a visa - consideration of Ministerial Direction No. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community - decision under review set aside.
Legislation
Migration Act 1958 – ss 499(1), 499(2A), 501(1), 501(6)(a), 501(7)
Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
NDBR v Minister for Home Affairs [2019] FCA 1631
Ozberk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2630Secondary Materials
Ministerial Direction no. 110 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA of the Act
Statement of Reasons
The applicant and his son (the visa applicant) are Turkish nationals and supporters of an organisation known variously as Hizmet, Fetullah Gulen and FETO/PDY. The applicant resides in Australia lawfully, having been granted a protection visa in 2018, and Australian citizenship after that. His son currently resides in Iraq having crossed over the border illegally, following his conviction in Turkiye on charges related to his support for Hizmet.
In May 2016, Hizmet was declared by the government of Turkiye to be an armed terrorist organisation. In July 2016, following what has been described variously as a ‘purported coup’ and a ‘failed coup’, the government of Turkiye began a systematic purge of Hizmet supporters from the civil service and military and began charging Hizmet supporters with criminal offences. [1] The visa applicant was charged and convicted of being a member of an armed terrorist organisation on 17 April 2019 and handed a sentence of imprisonment of more than four years.[2]
[1] A7, p 28.
[2] G-Documents, p 71.
Shortly before the visa applicant’s conviction, on 4 February 2019, his father submitted an application for a child visa on his behalf.
The delegate who considered the application was satisfied that the applicant did not pass the character test provided for in section 501 of the Migration Act 1958 (the Act). That conclusion was reached on the basis that he had been sentenced to a term of imprisonment of 12 months or more.[3] The delegate exercised his discretion to refuse the visa after considering the matters laid down in the relevant ministerial direction that applied at the relevant time. That decision, made on 16 April 2024, is the subject of this review.
[3] See subsection 501(7) which specifies that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. A person with a substantial criminal record does not pass the character test (paragraph 501 (6)(a))
In this review, two questions arise. First, is it the case that the visa applicant fails the character test so as to enliven the discretion to refuse the child visa. Second, having regard to Ministerial Direction no. 110 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA of the Act (the Direction), should the discretion to refuse the visa be exercised. One issue which may affect the answer to both questions is the extent to which the Tribunal can look behind the visa applicant’s conviction in Turkiye and to the soundness of the process by which his conviction and sentence were procured.
Before addressing those questions, it is necessary to make relevant findings of fact. The facts which are relevant are somewhat broader in scope than is normally the case in matters of this kind. The political situation in Turkiye needs to be properly understood before it is possible to determine the risk that the visa applicant poses to the Australian community. I have been provided with a significant amount of country information by the applicant which paints a grim picture concerning the human rights situation in that country. The conclusions which the material support were not strongly resisted by the respondent at a factual level. The respondent did, however, emphasise in submissions that in making my findings I cannot go behind the essential findings of the court which imposed the sentence which has led to the applicant failing the character test.
I accept that submission. In reaching my findings on the primary facts I am satisfied that I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (HZCP),[4] that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'.
[4] [2019] FCAFC 202 at [68].
The Federal Court has made clear that a person who makes representations regarding a visa cancellation, or, as in this case, a visa refusal,[5] cannot advance a factual position that undermines the factual bases on which the convictions and/or sentences which triggered the exercise of the discretion were determined. In this case, those are the findings of the court in Turkiye which led to the applicant being sentenced to more than four years in prison.
[5] See the application of the principles in HZCP to the refusal setting in NDBR v Minister for Home Affairs [2019] FCA 1631 at [47]
An applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not activate the discretion to refuse the visa. However, in this case the visa applicant has only one relevant conviction and sentence. Consequently, he cannot seek factual findings inconsistent with the findings of the court in his case. That is the basis on which I have proceeded. I am satisfied that the principle set out in HZCP may be as applicable to a sentence imposed by a foreign court as it is to an Australian domestic court.[6] I have applied the principle in reaching my factual conclusions. I have given the findings of the court in relation to the applicant full force and effect. However, that does not oblige me to accept that Hizmet is an armed terrorist organisation. The court proceeded on the basis that Hizmet was declared to be such an organisation and it was therefore obliged to deal with the visa applicant as a supporter of it in a particular way.[7] But that does not establish as a matter of fact that Hizmet is an armed terrorist organisation. That is a question which I am free to determine based on the material before me and which is highly relevant to the question of whether, for the protection of the Australian community, the visa applicant needs to be excluded.
[6] Given that the Act provides for visa decisions involving applicants who in many cases are applying for a visa to come to Australia, and the purpose is to exclude people of bad character from Australia, reading down the phrase ‘sentence to a term of imprisonment of 12 months or more’ to only include sentences imposed by Australian courts is not suggested by the text when read in context.
[7] G-Documents, pp 66 to 70.
Material before me
The material in the following schedule was taken into evidence:
Exhibit No.
Description
R1
G-Documents (G1 to G33, 607 pages)
A1
‘Is the Turkish Judiciary turning into a criminal syndicate’ (Applicant Tender Bundle, tab 1)
A2
‘Prosecutor behind claims of corruption in Turkish Judiciary appointed to top appeals Court’ (Applicant Tender Bundle, tab 2)
A3
‘A silent “Coup” in Turkey deepens political and judicial crisis’ (Applicant Tender Bundle, tab 3)
A4
‘Prosecutor reveals corruption within judiciary in letter to Turkey’s top judicial body’ (Applicant Tender Bundle, tab 4)
A5
‘How Turkey’s courts turned on Erdogan’s foes’ (Applicant Tender Bundle, tab 5)
A6
‘Turkey: Judges, Prosecutors Unfairly Jailed’ (Applicant Tender Bundle, tab 6)
A7
DFAT country information report Turkey (10 September 2020)
A8
‘Turkiye Events of 2023’ (Applicant Tender Bundle, tab 8)
A9
‘Country policy and information note: Gulenist movement, Turkey, October 2023’ (Applicant Tender Bundle, tab 9)
A10
‘Special Report 2021 Tukey: Transnational Repression Origin Country Case Study’ (Applicant Tender Bundle, tab 10)
A11
‘Turkey’s Crackdown on the Gulen Movement: 2022 in Review’ (Applicant Tender Bundle, tab 11)
A12
‘How the Supporters of the Hizmet Movement Suffer From Persecutions By the Turkish Government’ (Applicant Tender Bundle, tab 12)
A13
Statement of visa applicant’s father dated 13 August 2024
A14
Statement of visa applicant’s brother dated 13 August 2024
A15
Statement of visa applicant’s mother dated 13 August 2024
A16
Psychologist report, Mercy Polyclinic dated 6 August 2024
A17
Psychologist report, MindSea Psychology, undated
A18
Statement of visa applicant’s friend dated 13 August 2024
A19
Statement of Ozer Tilmazlar dated 13 August 2024
A20
Statement of Professor Mehment Ozlap dated 12 August 2024
A21
Statement of Dennis Erdogan dated 12 August 2024
A22
Translation of Turkiye Criminal Court of Justice dated 5 March 2024
A23
Translation of minutes of hearing dated 4 June 2024
A24
Decision on behalf of the Turkish nation of the Regional Court of Justice, 20th Penal chamber dated 17 February 2019
A25
Document from European Court of Human Rights dated 29 April 2024
A26
Press Release from European Court of Humans rights dated 18 December 2023
Findings of Fact
The visa applicant was born in Turkiye (then known internationally as Turkey) in 1994. He is the fourth child in the family and has five siblings.
The visa applicant’s father has had longstanding involvement in what is called the Hizmet movement. It was founded by Fethullah Gulen, a retired Turkish imam who became a successful businessman. He currently operates his business and other interests from the United States. The Hizmet movement is sometimes known as the Gulenist movement and is referred to officially by the Turkish government as FETO/PDY. I discuss this movement further below, but for the time being it is sufficient to note that its true nature is the subject of significant controversy both within Turkiye and internationally. Until at least 2010 it was regarded as a respectable social movement promoting positive values like peace, education and works of charity.[8] It became immensely popular within Turkiye and had millions of supporters. At some point in the second decade of this century there appears to have been a falling out between the now president of Turkiye Recep Erdogan and Fethullah Gulen and there ceased to be compatibility between their goals.[9]
[8] G-Documents, pp 235.
[9] Ibid, pp 235-240.
In May 2016, Hizmet was declared to be an armed terrorist organisation, and after violence erupted in a number of cities across Turkiye on 15 July 2016 (which were branded a coup attempt by the Erdogan regime), Hizmet has been treated as responsible for the violence that occurred. People associated with Hizmet have been removed from positions in the civil service and the military and tens of thousands of members of the organisation have been charged with criminal offences related to their involvement with the movement.[10]
[10] Exhibit A7, p 19; G-Documents, pp 208-209, 223-224.
The visa applicant’s father was in Australia in July 2016, having come to Australia to visit his daughter earlier that year. Four of his brothers were imprisoned because of their affiliation with Hizmet. His elder brother was incarcerated between 2018 to 2020. The visa applicant’s father is highly sceptical of the ‘so called military coup of July 2016’. The visa applicant’s father describes the Hizmet movement as ‘peaceful and progressive’. He claims ‘it has made significant contributions to the lives of thousands of people in other countries and has been a valuable contributor to the economies of those nations’. He contends that it has been labelled a terrorist organisation in Turkiye, ‘solely because its members criticise the government for its corruption and strive to improve the social and political situation in Turkey’.[11]
[11] Exhibit A13, pp 1-3.
The visa applicant grew up in regional Turkiye. He went to private schools linked to Hizmet and after finishing school, attended Yozgat University. He lived in Yozgat with friends, at least one of whom became a co-accused when charges were laid against him. They both actively participated in Hizmet Movement discussions, educational courses, and motivational trips which, according to his co-accused, ‘shaped our commitment to contributing positively to society and personal growth’.[12] The visa applicant describes himself as a supporter of the Hizmet movement at this time.
[12] Exhibit A18, pp 1-3.
During the events of 15 July 2016, both the visa applicant and his co-accused were visiting their home city in western Turkiye during university holidays. When they returned to Yozgat for summer school they could sense that the political situation in Turkiye had changed and that persecution of Hizmet volunteers was widespread.[13]
[13] Ibid.
Sensing that their neighbours were hostile to the Hizmet movement, the visa applicant and his co-accused decided to move to a different location. When they had packed up their belongings the police arrived and the two were taken into custody. Initially, they were detained for about a week. They were charged with being a part of a terrorist organisation. They were released under supervision but were required to report to the police station weekly for the next three years.[14]
[14] Ibid.
The visa applicant was charged with being a ‘Member of Armed Terrorist Organization’. The date of the crime was 29 August 2016 and the place was Yozgat/Merkez. The Court found the visa applicant was:[15]
…proven guilty of being a member of FETO/PDY (FETHULLAHIST TERRORIST ORGANIZATIOLN/PARALLEL STATE STRUCTURE) Armed Terrorist Organization…
[15] G-Documents, p 71.
He was sentenced to 4 years and 2 months in prison.
The court proceeded on the basis that FETO/PYD ‘is an armed terrorist organisation that aims to terminate the parliament, government and other constitutional institutions using… violence by using non-democratic methods and to come to power on July 15, 2016 for this purpose.’[16]
[16] Ibid, p 62.
This was consistent with a declaration of the Supreme Court of Appeals made on 17 June 2017. It was not a specific finding of the court which convicted the visa applicant, nor have I seen the evidence which supported the finding by the Supreme Court of Appeals.[17]
[17] Ibid.
The court also proceeded on the basis that a communications app called Bylock, which I understand is similar to Whatsapp or Telegram ‘…is a crypto system produced by FETO/PDY members, by the communication program called Bylock for the purpose of providing secret communication within the organization, which can be communicated by the members of the organization, and which the members of the organization can communicate without deciphering over the internet’.[18] No specific evidence in establishing this appears to have been led before the court which considered the applicant’s case. Decisions of superior courts were used as the basis for the conclusions.
[18] Ibid.
The court noted in clear terms:[19]
Our court adopted the above-mentioned decisions and the applications of the 16th Criminal Chamber of the Supreme Court in the same direction that have stable stability, and no detailed explanation was required regarding the FETO/PDY armed terrorist organization and the Bylock program.
[19] Ibid.
In terms of deciding who was a member of FETO/PDY, the court adopted Supreme Court authority to the following effect:[20]
The member of the organization is the person who adopts the purpose of the organization, who is included in the hierarchical structure of the organization and thus leaves his own will to the organization to be ready to fulfill the duties to be given. Membership in the organization refers to joining, bonding, entering the command of the hierarchical power that dominates the organization…membership of the organization is that the member of the organization is ready to perform and execute with full sense of surrender without questioning any orders and instructions given within the organization hierarchy…Actions such as having sympathy for the organization or adopting the goals, values and ideology of the organization, reading and keeping publications about it, respecting the leader of the organization are not sufficient for the membership of the organization.
The member of the organization must knowingly and willingly join the organization…The person who is a member of the organization must act with the intent and will to become a member, knowing that when entering an organization, it is an organization established to process elements that the law deems criminal…It has been stated that the person who knowingly and willingly helps the organization, although not included in the hierarchical structure within the organization, will be punished as a ember of the organization…Actions that facilitate the movements of the organisation and maintain its life can be seen within the scope of aid.
[20] Ibid, p 63.
The court went on to note an association between Asya Bank and FETO/PDY relying on a report from the Banking Regulation and Supervision Agency. In particular, it noted that:[21]
…the President and the Government considers the bank in question is in the safe position of the FETO/PDY Organization, provided the financial financing of the organization, the Fetullah Terrorist Organization (FETO) acts as laundering proceeds of crime, considering that it is acted in a way that is away from the banking objectives and activities in real sense, all the financial savings of all institutions directly or indirectly connected to the state deposited in that bank, particularly THY (Turkish Airlines), have been withdrawn from the said bank. Considering that the banking and economic sector is quite sensitive and fragile, as usual and normally, just as the state institutions do, in order to prevent the risk of financial losses and loss of all depositors; it should be an expected behaviour for a standard investor to withdraw their existing accounts at the bank, transfer them to other evaluation sources and institutions, close their existing accounts and not to open a new account.
[21] Ibid, p 65.
This logic allowed the court to conclude that anyone opening an account at Asya Bank after December 2013 when state sanctioned institutions were closing them, could only be doing so because they wished to show support for FETO/PDY. After a call by Fethullah Gulen in December 2013, 6000 accounts were opened at the bank by 30 January 2014.[22]
[22] Ibid.
Accordingly, anyone who opened a bank account in that window, contrary to the wishes of the Turkish state and in line with instructions of Fethullah Gulen, ‘are the ones who directly support the terrorist organization in line with the will they put forward to persistently follow this instruction’. If no alternative explanation is offered for the opening of the account ‘it is necessary to accept that the person has performed this action with the order of the organization and that this action will be serious evidence regarding the crime against the person’.[23]
[23] Ibid.
The judgment also notes that the organisation ‘emerges as an educational movement and is perceived [as such] by a large part of every layer of society as well as being careful not to criminalize publicly until it reaches the goal of achieving the goal but enough power to give the impression that its supposed legitimacy is from religion in the civilian area and from the law in the public domain’.[24]
[24] Ibid, p 66.
In relation to the visa applicant, the court determined as follows:
·he was using the Bylock app from 10 July 2015 until 7 February 2016;
·when the messages were examined, the messages involved ‘statements about students and brothers of the group, the tasks given and the jobs done’;[25]
·the app was used ‘for private communication in line with the organizations purposes’;
·he opened a bank account with Asya bank on 5 September 2014 and used it actively between 2014 to 2016;
·he deposited money and opened a gold deposit account;
·he lived in the organization’s houses; and
·it was possible that the visa applicant was informed of the Gulen’s demand to make deposits and that the opening and use of accounts served the demand and purpose of the organization.
[25] Which I note was consistent with the visa applicant’s statements to the court that he used the Bylock application ‘to talk the issues about the house’.
These findings were ‘deemed sufficient for the certainty of the guilt. Thus, [the visa applicant’s] involvement in the hierarchical structure of the organization being determined by the evidence collected throughout the examination, in his loyalty to the hierarchical structure from the past is continuous till now. Therefore, has been decided to be penalized for being a member of armed terrorist organization with the acceptance that there is continuity and actions detected within this scope.’[26]
[26] Ibid, p 70.
As noted previously, the visa applicant was sentenced to four years and two months in prison.
Following his conviction on 17 April 2019 the applicant was not detained, pending appeal, and remained in the community. Soon after his conviction, the visa applicant received a communication from the Department of Foreign Affairs and Trade (DFAT) in Ankara requesting an updated passport. He was advised that his Child Visa was ready and that DFAT was waiting for a new passport. The visa applicant, however, knew that he was unable to obtain a new passport from the Turkish Passport Office. The Turkish authorities informed him that it would not renew his passport due to his court case and potential affiliation with the Hizmet movement.[27]
[27] Ibid, p 82.
The visa applicant decided to leave Turkey illegally. He was smuggled across the border to Iraq in April 2019. He continues to live illegally in northern Iraq. He has never denied that he is a member of the Hizmet movement headed by Fetullah Gulen and that his father has been helping the organization financially since 1979. His father’s involvement has consisted of construction, opening and management of schools and student hostels (including the one his son was staying in when arrested). The visa applicant’s father was member of the Board of Directors of a number of educational institutions associated with the Hizmet movement. The visa applicant believes that that is the reason he was targeted by authorities for arrest.[28]
[28] Ibid, p 83.
The visa applicant openly admits his association with Hizmet, but denies any affiliation with terrorist organisations.
The visa applicant has given evidence that he is suffering psychologically and there are risks to his physical safety in Iraq. He has heard gunfire and explosions during his time living there.[29]
[29] Ibid, p 83.
He fears that if he is returned to Turkey he will be ‘detained, seriously harmed or killed by the Turkish government’ due to his political opinion.[30]
[30] Ibid.
It will be necessary to make some further incidental findings when examining certain considerations in the Direction, but for the time being, the above outline is sufficient to proceed to consider the larger questions raised in these proceedings.
Does the applicant satisfy the character test?
It is contended on behalf of the visa applicant that he does satisfy the character test. The applicant accepts that the visa applicant was sentenced to a prison term of four years and two months, but contends that the impugned sentence was not issued by an independent judicial source.[31]
[31] Applicant’s Statement of Facts, Issues and Contentions dated 13 August 2024 at [33].
The applicant has provided a wide range of sources which report adversely on the functioning of the judiciary in Turkiye since the events of 15 July 2016, including material referred to in the DFAT country information. The applicant points to the character evidence in support of the visa applicant. He also points to the court documents which ‘highlight ongoing legal proceedings, issues with arrest orders, and the complexities of handling cases involving accusations of terrorism in Turkey’.[32]
[32] Ibid at [30].
For those reasons, contrary to the delegate’s finding, the applicant contends that I could not be satisfied that the visa applicant was convicted by an independent judiciary in Turkiye and I should be satisfied that the visa applicant does pass the character test.
I do not accept that submission. I do not have to be satisfied that the visa applicant was convicted by an independent judiciary in Turkiye. The visa applicant will fail the character test if he has been sentenced to a term of imprisonment of 12 months or more. The wording does not draw any distinction between sentences imposed by an Australian court or a foreign court, and given the context in which the question arises – an application for the grant of a visa that will allow a person to come to Australia – I am not satisfied that it is appropriate to read down the phrase as referring only to sentences imposed by Australian courts.
Proceeding then on the basis that the term does refer to sentences imposed by foreign courts, a question arises as to whether some additional inquiry should be made as to whether the judiciary which imposed the sentence was independent and not merely doing the bidding of the executive government.
The proposition is not without merit – at least in the abstract. In a statutory context where the purpose of the provision is to exclude people of bad character from Australia, in many cases, convictions secured by judiciaries which are serving the will of an authoritarian regimes may well provide no insight into a person’s character. For example, author and dissident Alexander Solzhenitsyn was convicted and sentenced to serve eight years in a Soviet gulag for breaching laws prohibiting anti-Soviet agitation.[33] The agitation against Stalin’s repressive regime was, if anything, a testament to his good character. However, on a straight reading of s 501 of the Act, if it were to be applied, Mr Sozhenitsyn would not pass the character test, in light of his conviction.
[33] Encyclopaedia Britannica (online as at 3 February 2025), ‘Aleksandr Isayevich Solzhenitsyn’.
Once one accepts that the Parliament was prepared to allow foreign convictions and sentences to be as determinative of character as the ruling of a domestic court, it is difficult to find a legitimate basis on which to decide that it is possible to go behind a foreign sentence in a particularly egregious case, without the result that the Tribunal could be asked to assess the legitimacy of any every foreign conviction. Precisely what the acceptable standard should be, would ultimately be something formulated by the Tribunal rather than specified by the Parliament. In those circumstances, the better approach is to accept that Parliament has imposed a particular threshold which may result in people of good character being scrutinised. However, the Parliament has also provided a discretion at the next stage of the decision-making process which ensures that ultimately a visa can be granted to a person who fails the character test. That is certainly how the matter has been approached previously in the Administrative Appeals Tribunal.[34]
[34] Ozberk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2630 [18]-[19].
Consequently, in circumstances where there is evidence that the visa applicant was sentenced to a four year and two-month term of imprisonment, I am satisfied that he does not pass the character test.
Exercise of Discretion
Despite the fact that the visa applicant has failed the character test, I still have a discretion to decide not to refuse him his visa on character grounds.
In exercising that discretion, I am required to have regard to the Direction, which was signed by the Minister on 7 June 2024.
The Direction makes clear that where the discretion to refuse to grant or to cancel a visa is enlivened, the decision maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Section 5.2 of the Direction sets out the principles to be applied when considering the discretion which include:
(1) Australia has a sovereign right to determine whether non-citizens 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 safety of the Australian Community is the highest priority of the government;
(3) non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
(4) the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if the engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time;
(6) with respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age;
(7) decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation; and
(8) the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, eve if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Informed by the principles above, I must take into account the considerations identified in sections 8 and 9 of the Direction where they are relevant to the decision.
Protection of the Australian Community from Criminal or Other Serious Conduct
Protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
When considering the protection of the Australian community, I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. I must keep in mind that entering or remaining in Australia is a privilege that Australia confers on non-citizens 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.
In the present case, the visa applicant has been condemned for his involvement in Hizmet. His family members have been long-standing participants in the movement and the movement was, for almost the entire period of the applicant’s involvement in it, treated as a relatively benign social movement, albeit one with considerable social power resulting from the size of its membership and its members placement within the bureaucracy. The organisation undertook educational and charity work in Turkiye and throughout the world.[35]
[35] G-Documents, p 235
In May 2016 the Government of Turkiye declared Hizmet to be an armed terrorist organisation. I have no evidence of the basis of that declaration and whether it is supported by any reliable evidence. Since the events of July 2016, it has been claimed that Hizmet had a role in the coup attempt. That view is the official position taken by the Government in Turkiye, but again the basis for the claim remains obscure.
The country information prepared by DFAT in September 2020 (more than four years after the coup) had this to say about the Hizmet/Gulenist movement:[36]
The government…officially designated the Gulenist movement a terrorist organisation in May 2016 under the assigned names ‘Fethullah Gulen Terror Organisation’ (FETO and “Parallel State Structure (PDY). (Erdogan and the AKP argued credibly that the Gulen movement was running a parallel movement within the civilian and military bureaucracy.
Following the July 2016 attempted coup, the government immediately blamed Gulen for orchestrating the attempted overthrow…As many as 80,000 people arrested or detained, approximately 5,370 people have been tried in cases specifically related to the coup, and 1,524 have received life sentences…there were credible reports of disappearances and torture while in police custody of Gulen suspects who were former employees of the Ministry of Foreign Affairs. The Turkish national Police deny the claims…
DFAT assesses those accused of membership of the Gulen movement face a high risk of adverse official attention including arrest and prosecution. In some cases, this is justified: credible evidence may exist that they were involved in the July 2016 attempted coup, or inappropriately obtained or misused public office. In some instances, however, the burden of proof for membership of the Gulen movement does not meet credible evidentiary standards, and the accused have limited ability to defend themselves.
[36] Exhibit A7, pp 27-28.
This material provides no proper basis for a finding that the Gulen Movement is an armed terrorist organisation. It notes that the movement has been designated a terrorist organisation but does not indicate why that was the case or whether there is any evidence to support such a designation.
The only allegation that has attracted the epithet ‘credible’ is the claim that the Hizmet movement is ‘running a parallel movement within the civilian and military bureaucracy’. It is very hard to know what to make of such a claim and how serious it is. If the movement shows favouritism to members or engages in nepotism, that might constitute a ‘parallel movement’. If that is the concern, it falls well short of sedition or terrorism which would be conduct of much more significant concern.
The country information report draws other important but unsupported conclusions about the Hizmet movement and its participants. It concludes that arrest and prosecution in some cases is justified’ and supports this conclusion with the following statement ‘credible evidence may exist that [members of the Hizmet Movement] were involved in the July 2016 attempted coup, or inappropriately obtained or misused public office.’[37]
[37] Exhibit A7, p 28.
It is difficult to imagine a less helpful sentence when one is called upon to determine whether a member of the Hizmet Movement poses a threat to Australia by reason of criminal or violent conduct. According to the Country Information, members might have been involved in either an attempt to violently overthrow the elected government in Turkiye on the one hand, or inappropriately obtained public office on the other - two decidedly different forms of misconduct. DFAT doesn’t know which, but there may be credible evidence of those things having been done by Hizmet movement members. The highly qualified sentence leaves open the possibility that despite the passage of four years and thousands of prosecutions, there may not be any credible evidence of either.
The information concerning the Hizmet Movement’s involvement in the coup from the UK Home Office is equally vague. The tenth report of session 2016-17 of the House of Commons Foreign Affairs Committee included a response by Sir Alan Duncan, Minister of State for Europe and the Americas, Foreign and Commonwealth Office, to the Committee:[38]
When asked specifically whether the Gulenist organisation were responsible for the coup he [Sir Alan Duncan] answered: I think the answer has to be, in large part, in terms of significant involvement, yes…When pressed about the extent of Gulenist involvement in the coup attempt, he said: This is a very complicated phenomenon in Turkish government and society; it will probably take years to analyse this and get to the bottom of it.
[38] G-Documents, p 240.
That does not provide much of a foundation for concluding that Hizmet is a terrorist movement or had any direct or violent involvement in the events of July 2016. There is significant evidence before me that the Hizmet movement is the target of adverse attention within Turkiye. There is no credible evidence that this adverse attention is based on evidence of the movement’s involvement in an attempted coup in July 2016.
I am not prepared to proceed on the basis that Hizmet is an armed terrorist organisation, nor am I prepared to proceed on the basis that it was involved in an attempted coup in Turkiye in July 2016. Nothing in the findings of the court which convicted the visa applicant compels me to proceed that way.
I am however obliged to proceed on the basis that the visa applicant was a member of Hizmet, lived in Hizmet accommodation, used apps associated with the Movement and used a bank associated with Hizmet.
There is nothing in any of those findings that suggest that the applicant poses a threat to the safety of the Australian community.
Nature and seriousness of conduct to date
I am also required to give consideration to the nature and seriousness of the visa applicant’s conduct to date.
I am satisfied that the applicant belonged to an organisation which the government of Turkiye wished to take steps to discourage. On the evidence available to me, I cannot determine whether the posture of the government of Turkiye was justifiable based on the threat of violence which the movement posed, or whether more basic political motives were in play.
Generally speaking, involvement in organisations designated by a democratically elected government as prohibited is a serious matter and potentially of concern. However, in this case, the organisation in which the applicant was involved had a long history of charitable and educational work as well as political acceptance in Turkiye. Given his family’s involvement in the movement it is not at all surprising that he was a member of the movement. The fact that the visa applicant did not immediately cease involvement with the organisation upon it being declared a terrorist organisation, and that he continued pursuing his education through the organisation, is also understandable. The conduct proven against the applicant does not, in all the circumstances appear to be serious or of concern if he enters Australia. On the evidence before me, continued involvement in Hizmet in Australia (where it is not prohibited) would not be a cause for concern.
I have considered the matters set out in paragraph 8.1.1. It is relevant that the visa applicant received a significant sentence (consideration (c)) but given the highly political nature of the crime, the sentence appears to reflect factors which are very specific to the political situation in Turkiye.
I accept that the applicant provided false and misleading information to the department as outlined in the respondent’s statement of facts issues and contentions. This is inappropriate behaviour. The applicant should have been more forthcoming about the pending charges when he filled out the application.
The only other consideration of relevance appears to be consideration (i). The conduct that the visa applicant engaged in in Turkiye would not be an offence in Australia. Membership of Hizmet is permitted in Australia.
Risk to the Australian community should the non-citizen commit further offences
There is no risk to the Australian community if the visa applicant continued to be an active member of Hizmet. His father lives in Australia and is an active member of Hizmet. He poses no threat to any member of the Australian community.
The Protection of the Australian Community consideration does not weigh against the applicant.
Family violence
There is no suggestion that the visa applicant has ever committed family violence. This consideration is neutral.
Strength nature and duration of ties to Australia
The visa applicant has never lived in Australia. However, he does have ties to Australia. His father is an Australian citizen as is his mother. His father happened to be in Australia during the events of July 2016 and was granted a protection visa in 2018,[39] and ultimately citizenship. The applicant also has three siblings who are also Australian citizens. The family is described as a close-knit support network. He relies on his Australian-based family for emotional and financial support.[40] I am satisfied that the support is particularly important while he has been residing illegally in northern Iraq.
[39] G-Documents, p 131.
[40] Applicant’s Statement of Facts, Issues and Contentions at [50].
This consideration weighs in favour of the applicant.
Best interests of minor children
This consideration is not relevant.
Expectations of the Australian Community
The Australian Community expects non-citizens will obey Australian laws. I have no reason to expect that the applicant will not do so if he comes to Australia. Hizmet is legal in Australia, and it is just the fact of membership which has resulted in a criminal conviction overseas.
The Australian community also expects that the Australian Government should refuse entry if conduct elsewhere raises serious character concerns about the visa applicant. It is difficult to discern anything in the conduct found by the criminal court in Turkiye which raises serious character concerns.
This consideration does not weigh against the applicant.
OTHER CONSIDERATIONS
Legal consequences of decision under section 501
This consideration is relevant when non-refoulement obligations are engaged. They are not relevant in this case.
Extent of impediments applicant may face if removed from Australia to his home country
I must consider the extent of any impediments that the applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). This consideration is not relevant in this case. The applicant is off-shore, residing illegally in Iraq. He will not be returned to Turkiye if an adverse decision is made.
Impact on Australian Business Interests
This consideration is not relevant.
Other considerations
The applicant has invited me to consider the following additional matters:
(1) if the visa is refused, the visa applicant will endure significant emotional, financial and practical hardship overseas. Where he is, at present, is unsafe. If he returns to Turkiye, it could expose him to risks including imprisonment and persecution based on his past affiliations;[41]
(2) the emotional toll on the visa applicant will be substantial, particularly with the knowledge that he cannot join his family in Australia;[42]
(3) there is evidence that the visa applicant has been under treatment for severe depression since his visit on 30 October 2022 and recently the depression has worsened. Family reunification is important for his mental health;[43] and
(4) there is information provided by a range of credible NGO and governmental organisations about the adverse treatment of supporters of the Gulen movement by the Government of Turkiye.[44]
[41] Applicant’s Statement of Facts, Issues and Contentions at [81].
[42] Ibid at [82].
[43] Ibid at [83]; Exhibit A16.
[44] Applicant’s Statement of Facts, Issues and Contentions at [86].
All of these considerations weigh in the applicant’s favour.
CONCLUSION
This is a very unusual case. The crime of which the visa applicant has been convicted arose in a very specific political context in Turkiye. He did not engage in any anti-social conduct but fell victim to a change in the political fortunes of a longstanding movement of which he was a peaceful and productive member. There is no evidence that he ever engaged in any form of anti-social or violent conduct. He merely persisted in an association with an organisation which, for reasons which remain obscure to this day, was politically targeted by the Government of Turkiye. While as a matter of law I am required to find that the applicant fails the character test, I am satisfied that I should not exercise the discretion to refuse the applicant a visa pursuant to section 501(1).
The decision under review is set aside and remitted to the respondent for further consideration on the basis that the discretion to refuse the application on character grounds should not be exercised.
Date(s) of hearing: 27 November 2024 Date final submissions received: 14 November 2024 Solicitors for the Applicant: Hussaini Law Group Counsel for the Respondent Mr Nick Swan Solicitors for the Respondent: HWL Ebsworth
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