Yucel and Minister for Home Affairs (Migration)

Yucel and Minister for Home Affairs (Migration) [2018] AATA 3364 (10 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3623
Re:Baris Yucel
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:10 September 2018
Place:Sydney

The decision of the Respondent dated 19 June 2018, to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958, is affirmed.
............................[SGD]............................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – Class BF transitional (permanent) visa – mandatory cancellation – non-revocation – failure to pass the character test – Ministerial Direction No 65 – serious criminal convictions – protection of the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – strength nature and duration of ties – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Ministerial Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
10 September 2018
BACKGROUND

The Applicant was born in Turkey on 16 August 1981 and arrived in Australia on 4 November 1988.
The Applicant, during his time in Australia, worked at various jobs and was, from time to time, before various courts, charged with a variety of offences, some of which were particularly serious and are properly described as offences of violence.
On 25 May 2017 a delegate of the Minister for Immigration and Border Protection notified the Applicant that his Visa had been cancelled on 25 May 2017 under section 501 (3A) of the Migration Act 1958 (Commonwealth).
In June 2017 and on 11 May 2018 the Applicant made representations seeking revocation of the original decision. On 19 June 2018 a delegate of the Respondent decided not to revoke the original decision of 25 May 2017.
On 28 June 2018 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s Visa should be revoked pursuant to section 501 of the Migration Act 1958 (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)That the Applicant passes the character test as defined by section 501 of the Act or
(b)There is another reason why the original decision should be revoked.
RELEVANT LEGISLATION AND POLICY
Ministerial Direction No. 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65), the relevant paragraphs of which are set out below, describes the framework within which the Tribunal‘s discretion is to be exercised in this case.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
4The 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.
Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
It is clear according to the Act that because of the Applicant’s past criminal history he does not pass the character test.
Details of the Applicant’s offending history are contained in the G documents, pages 43 to 46, inclusive, supplemented by various passages from sentencing courts, describing the factual circumstances of some of the offending. It is of course for the Tribunal to form its own view as to the seriousness of the particular offences, the convictions for which are not contested (although the Applicant disputed certain facts surrounding those offences).
Subsection 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 s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(2));
(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));
(d)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 (cl 6.3(4));
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, 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 (cl 6.3(5)); and
(f)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 (cl 6.3(7)).
Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction 65, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations.
The three 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.
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of Direction 65 provides:
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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. 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.
2Decision-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.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction 65 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
(a)the principle that violent and/or sexual crimes are viewed very seriously (subparagraph 13.1.1(1)(a));
(b)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious (sub-paragraph 13.1.1(1)(b));
(c)the sentence imposed by the courts for a crime or crimes (sub-paragraph 13.1.1.(1)(c));
(d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (sub-paragraph 13.1.1.(1)(d));
(e)the cumulative effect of repeated offending (sub-paragraph 13.1.1.(1)(e));
(f)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (sub-paragraph 13.1.1.(1)(g)); and
(g)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious (sub-paragraph 13.1.1.(1)(h)).
The risk to the Australian community
Paragraph 13.1.2 of Direction 65 states that decision makers should have regard to the following:
(a)the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated is unacceptable;
(b)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(c)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.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
The considerations include:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction 65 provides:
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 continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in paragraph 6.3 of Direction 65, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes (sub-paragraph 6.3(2) of Direction 65).
Other Considerations
International non-refoulement obligations
Considerations include:
(a)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 Convention and Protocol non-refoulement obligations.
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa.
(c)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).
(d)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.
(e)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.
Strength, nature and duration of ties
Considerations include:
(a)how long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Direction 65 notes 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.
Impact on victims
Paragraph 14.4 of Direction 65 provides:
'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 visa cancellation has been afforded procedural fairness.'
Extent of impediments if removed
Extent of impediments if removed requires consideration of 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: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Protection of the Australian community (past conduct and future risk)
It is sufficient to say that the Applicant’s offending history is lengthy, worryingly varied and contains offences which are properly described as violent. It cannot be said that the Applicant’s offences diminished in seriousness over time. They displayed a lack of respect and concern for Australian laws and Australian citizens. The Applicant was given, on numerous occasions, the assistance of non-custodial sentences. Neither these sentences, nor those imposed upon him which were custodial, appear to have deterred him from committing further offences, and on occasions, further serious offences.
The last serious offence for which the Applicant was convicted was described as “intimidate, intend fear, physical harm”. For that offence, he was sentenced to 8 months imprisonment. He appealed unsuccessfully against the severity of the sentence and the sentence was confirmed.
Review of the Applicant’s criminal history, together with a proper evaluation of the chances and opportunities which he has been given at sentencing, suggest that the Applicant is a recidivist offender. Furthermore, it is patently clear that he is incapable of abstaining from criminal conduct. The Tribunal concludes that it is therefore highly probable that the Applicant will offend in the future and the real likelihood is that some offending will be serious, violent and likely to affect other citizens.
The Tribunal accepts the submissions of the Respondent that the Applicant’s offending is both serious and that the Applicant is likely to be a risk of offending in the future. The Tribunal considers that this Primary Consideration weighs heavily against the Applicant.
The best interests of minor children in Australia
The Applicant has six minor children in Australia:
(a)W (born 2001) – age 17 years, 7 months;
(b)T (born 2003) – age 15 years;
(c)X (born 2005) – age 13 years;
(d)L (born 2005) – age 13 years;
(e)A (born 2006) – age 12 years; and
(f)T (born 2013) – age 5 years.
It is an undoubted principle that all children should have the benefit of knowing both mother and father. In this case, the Applicant has not been, for any appreciable time, the caregiver nor has he been responsible for the welfare of any of his children. Sadly, all but one of the children are in care; the other is in juvenile detention. The Applicant, in evidence, was adamant about caring for his children in the future. However, this should be scrutinised realistically. He has spent substantial portions of their lives in custody.
His youngest child was present at some point during the hearing. There is no doubt he has a connection with the child and it is probable that there is a real connection with the others. I am not, however, satisfied that there is a realistic possibility that the Applicant will ever be able to play an appropriate role or be a part of their lives. Nonetheless, the children’s interests would be best served by the presence of their father in Australia. On that basis, this consideration overall weighs somewhat in the Applicant’s favour.
Expectations of the Australian Community

Having regard to the phraseology of Direction 65, it is impossible to accept other than this consideration, because of the Applicant’s background, criminal history and likelihood of committing further offences, weighs against the Applicant.
Other considerations
International non-refoulement obligations
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.
The Applicant says that he was a Muslim who converted to Christianity. He believes Turkey to be a “more extremist” regime and is concerned about the attitude in Turkey where he says such conversion is “not kindly looked upon”.
Neither these nor any of the other matters raised by the Applicant in the Tribunal’s opinion raises any non-refoulement questions. It is for the Applicant to establish the basis of any claim under this consideration.
There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.
Furthermore, should the Applicant wish to do so, it is open for him to make an application for a Protection Visa.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.
Strength, nature and duration of ties
The factors relevant to this consideration, and referred to elsewhere in this decision, operate in favour of the Applicant.
Extent of impediments if removed
The Applicant has lived in Australia since he was young child. He has supportive family in Australia. If removed, he would necessarily have to leave his children and family. The Applicant has been gainfully employed, at times, in Australia and has therefore contributed to society. There is nothing in his health or his ability to work that suggests that he would not be able to find some form of work if removed from Australia to his country of origin.
During the course of the hearing, the Applicant appeared largely to abandon any real concerns about his conversion to Christianity and the possibility of having to live in a predominantly Muslim country. The Tribunal has already determined that these matters are not properly the subject of non-refoulement obligations. However, these are matters which may be accepted will likely cause him personally, some concern and anxiety.
Furthermore, removal of the Applicant from Australia would necessitate the Applicant leaving family members in Australia. The Applicant has the prospect of little or no family support should he have to return to his country of origin. It is also obvious that merely returning to a country with which he has had effectively no association during his life will be difficult. In this regard then, the matters to which I have referred and those other considerations which are relevant in this regard should be accepted as weighing in favour of revocation being cancelled.
CONCLUSION
The best interests of the Applicant’s children and the obvious difficulties that the Applicant will face should he be removed from Australia and returned to his country of origin, together with other family and social matters referred to above, weigh in favour of reversing the revocation.
There are, however, the most powerful reasons to be concerned about the Applicant’s past conduct and the fact that the Tribunal considers that there is a real likelihood of serious criminal conduct being perpetrated by the Applicant in the future.
Primary Considerations of the protection of the Australian community and expectations of the Australian community appear to the Tribunal to weigh heavily against the Applicant and outweigh all other considerations. The Tribunal, therefore, affirms the decision to revoke the Applicant’s Visa.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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Associate
Dated: 10 September 2018

Date(s) of hearing: 6 August 2018

Applicant: In person

Solicitors for the Respondent: R Noronha – Clayton Utz

[2018] AATA 3364

10 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	6 August 2018
Applicant:	In person
Solicitors for the Respondent:	R Noronha – Clayton Utz