FEDERAL COURT OF AUSTRALIA

Vural v Minister for Home Affairs [2020] FCA 667

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs of and incidental to the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant, a citizen of Turkey, seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) under s 501CA(4) of the Migration Act 1958 (Cth) (Act). The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (Minister) not to revoke the cancellation of the applicant’s Class BB Subclass 155 (Five Year Resident Return) visa (visa).

2    The applicant contends that the Tribunal committed three different jurisdictional errors, namely (and broadly) that the Tribunal:

(1)    misconstrued or misapplied para 14.5(1) of “Direction No. 79”, which relates to the assessment of the extent of impediments to be faced by the applicant if removed to Turkey;

(2)    overlooked evidence in country information about employment opportunities and access to medication and drug treatment in Turkey; and

(3)    erroneously found that the applicant had failed to heed two warnings given to him by the Department of Immigration and Citizenship (Department) in relation to the potential consequences for his visa should the applicant continue to offend.

3    For the reasons expressed below, the Tribunal did not commit jurisdictional errors as contended by the applicant. The applicant’s judicial review application is accordingly dismissed.

Background

4    The applicant was born in Turkey in 1967. He first arrived in Australia, with his parents and other siblings, in 1970.

5    The applicant has a prolonged criminal history. His offending between 1982 and 2018 includes assault, assaulting police, intentionally causing injury, firearms and weapons offences, dishonesty offences, possession of drugs of dependence and trafficking drugs of dependence. The applicant has undertaken numerous terms of imprisonment in relation to these offences. The key prison terms are detailed below.

6    On 21 April 2008, the applicant was given a formal warning by the Department to the effect that further criminal convictions could result in the cancellation of his visa. The Department’s letter relevantly expressed the following:

It has come to this department’s attention that you have a criminal record. As you have a criminal record, I would like to advise you of the operation of section 501 of the Migration Act 1958 (the Act).

…

The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia, and, in certain cases, bars on re-entering Australia.

7    On 15 February 2010, the applicant was convicted in the County Court of Victoria in relation to a series of offences, including possessing and trafficking drugs of dependence. The applicant received a total effective term of imprisonment of 2 years and 9 months.

8    On 6 July 2010, the applicant was again notified by the Department that his visa may be liable to cancellation on character grounds.

9    On 16 February 2011, a delegate of the Minister for Immigration and Citizenship determined not to cancel the applicant’s visa on character grounds. However, the Department’s written notice to the applicant relevantly expressed the following:

… the delegate decided that you are to be given the following formal warning.

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

10    The applicant acknowledged receipt of the Department’s written notice by way of a signed letter dated 23 February 2011. The applicant’s letter acknowledged that he understood that he could again be considered for refusal or cancellation of any visa granted to him if further information of relevance came to the attention of the Department.

11    On 6 June 2018, the applicant was convicted in the Magistrates’ Court of Victoria of his most recent offences, including contravening a community corrections orders, driving whilst disqualified, attempted theft, theft and committing an indictable offence whilst on bail. The applicant was sentenced in relation to these offences to a total effective term of imprisonment of four months.

12    On 25 June 2018, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act by a delegate of the Minister. The applicant was advised that he could request revocation of the delegate’s decision.

13    The applicant subsequently sought revocation of the delegate’s decision to cancel his visa. He submitted a form entitled “Request for Revocation of a Mandatory Visa Cancellation under s501(3A)” dated 5 July 2018 and a “Personal Circumstances Form” dated 22 August 2018.

14    On 3 January 2019, the Minister’s delegate decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa. For reference, s 501CA relevantly provides the following:

Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person

…

(3)     As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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.

 (5)      If the Minister revokes the original decision, the original decision is taken not to have been made.

…

Tribunal’s decision

15    On 8 January 2019, the applicant sought review by the Tribunal of the delegate’s decision not to revoke the visa cancellation. The applicant did not have legal representation in the Tribunal.

16    On 18 and 19 March 2019, the Tribunal conducted a hearing of the applicant’s review application. The applicant gave evidence and was cross-examined. The applicant’s father (who was assisted by an interpreter), sister and three adult children also gave evidence. The Minister provided a Statement of Facts, Issues and Contentions (Minister’s Statement) and tendered a volume of documents, including a report dated 9 October 2018 entitled “DFAT Country Information Report Turkey” and a document entitled “Republic of Turkey Social Security Institution, Social Security System 2016”.

17    On 29 March 2019, the Tribunal delivered its decision and reasons for decision: Vural and Minister for Home Affairs (Migration) [2019] AATA 579 (AAT Reasons). The Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa.

18    The Tribunal acknowledged that s 499(2A) of the Act required the Tribunal to comply with relevant ministerial directions in relation to its decision, which, in this case, was “Direction No. 79 - Migration Act 1958 - Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation” (Direction No. 79). As discussed further below, Direction No. 79 expressly requires the Tribunal to consider particular “primary considerations” and “other considerations” in exercising its discretion under s 501CA(4) of the Act.

19    By way of summary, the Tribunal, in reaching its decision to affirm the delegate’s decision:

(a)    set out the relevant background and legislative framework (including detailing the operation of Direction No. 79): AAT Reasons at [1]–[20]. In the course of doing so, the Tribunal found that the applicant failed the character test because he had been sentenced to a term of imprisonment of 12 months or more (see ss 501(6)(a) and 501(7)(c)): ibid at [12];

(b)    summarised the evidence given by the applicant and his relatives: ibid at [21]–[45];

(c)    considered the “primary considerations” under Direction No. 79: ibid at [47]–[69]. In particular, the Tribunal found that:

(i)    in relation to the protection of the Australian community, the applicant’s drug trafficking was serious and not excused by his drug habit, the applicant had not heeded the two warnings given to him not to reoffend, the risk of reoffending was real, and accordingly this consideration weighed against revoking the mandatory cancellation of the applicant’s visa: ibid at [47]–[60];

(ii)    in relation to the best interests of minor children in Australia affected by the decision, the children relevant to the consideration were the applicant’s grandchildren and that, due to their ages and level of the applicant’s involvement in their lives, this consideration weighed in favour of revoking the cancellation, but not heavily so: ibid at [61]–[65]; and

(iii)    in relation to the expectations of the Australian community, the community would view very adversely the criminal conduct of the applicant that had spanned such a long period, and which included several crimes of violence, and that this consideration weighed against restoring the visa: ibid at [66]–[69];

(d)    considered the “other considerations” under Direction No. 79: ibid at [70]–[91]. In particular, the Tribunal found that:

(i)    in relation to Australia’s international non-refoulement obligations, this consideration was not engaged and weighed neutrally in its assessment: ibid at [70]–[75];

(ii)    in relation to the strength, nature and duration of the applicant’s ties to Australia, because of a strong family network in Australia, this consideration weighed in favour of revocation: ibid at [76]–[81];

(iii)    in relation to the impact on Australian business interests, there was no evidence that the revocation would compromise the delivery of a major project or service in Australia, and this consideration accordingly weighed neutrally: ibid at [82];

(iv)    in relation to the impact on victims of visa revocation, there was no material before the Tribunal on this point, and did not consider this further: ibid at [83]; and

(v)    in relation to the extent of impediments to the applicant if removed to Turkey, given the applicant’s medical conditions (including anxiety and depression) this consideration weighed in favour of revocation. However, this was only very lightly so, as the applicant would not be conscripted for army service, he was able to speak Turkish, and he would have access to Turkish social security and employment: ibid at [84]–[91].

20    Having considered all of these matters, the Tribunal concluded as follows:

CONCLUSION

[92]     In considering the question of whether there is ‘another reason’ that the mandatory cancellation of a non-citizen’s visa should be revoked, the Tribunal must, under section 499(2A) of the Act, apply the Direction; though it is not exhaustive. One primary consideration weighs in favour of setting aside the mandatory cancellation of Mr Vural’s visa; but the other two primary considerations weigh against restoring the visa. Two other considerations weigh in favour of restoring the visa, though the majority weigh neutrally. The Tribunal does not undertake some mathematical equation in this review process, but instead must look at the overall question (taking into account the objectives articulated in paragraph 6.1 as set out above) as to whether it is satisfied that there is another reason, under section 501CA(4)(b)(ii) of the Act, to revoke the cancellation of the visa.

[93]     The Tribunal concludes that the comprehensive extent, and the seriousness of, Mr Vural’s offending over such a long period of time, together with the finding that there is a significant risk that he will re-offend, are pivotal in the conclusion that the decision not to revoke the mandatory cancellation of his visa was the correct decision.

DECISION

[94]     The Tribunal affirms the decision not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa.

Application for judicial review

21    On 18 April 2019, the applicant sought judicial review of the Tribunal’s decision in this Court. He was unrepresented at the time that he filed his originating motion and supporting affidavit.

22    The application was initially listed for hearing before me on 25 November 2019. On that date, the applicant, appearing in person, informed me that he had recently obtained legal representation and sought an adjournment. The ultimate result was that Kerdo Legal filed a notice of acting in relation to the applicant on 28 November 2019, and the hearing was adjourned to 13 February 2020.

23    In the interim, on 3 December 2019, the applicant filed an amended originating application. The amended application advances three grounds of review, which are considered in turn below.

24    At the hearing of the application on 13 February 2020, the applicant was represented by Mr Hughan of counsel, and the Minister was represented by Mr Mosely of counsel. Both had filed written outlines of submissions on behalf of their clients.

Ground 1 – Misapplication of para 14.5 of Direction No. 79

25    The first ground of review advanced by the applicant contends that

[t]he [Tribunal] misconstrued and misapplied cl. 14.5 of Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation under s501CA and thereby failed to exercise its jurisdiction and/or erred in the exercise of its jurisdiction to review the decision of the delegate of the [Minister].

26    Direction No. 79 is a ministerial direction issued pursuant to s 499(1) of the Act. The Tribunal must comply with such directions to the extent applicable: ibid, s 499(2A); see, for example, CHJK v Minister for Home Affairs [2019] FCA 1330 at [12]–[27] per Flick J.

27    Paragraph 14(1) of Direction No. 79 requires the Tribunal, in deciding whether to revoke the mandatory cancellation of a visa, to take in account various considerations where relevant, including (at para 14(1)(e)) the “[e]xtent of impediments if removed”. The content of this particular consideration is informed by para 14.5 of Direction No. 79, which provides as follows:

Extent of impediments if removed

(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.

Tribunal’s consideration

28    As discussed below, the applicant challenges particular aspects of the Tribunal’s assessment of the extent of impediments to the applicant if he was removed to his home country, Turkey. For reference, the Tribunal’s consideration in this regard in the AAT Reasons was as follows:

CONSIDERATION

…

Other considerations

…

Extent of impediments if removed (paragraph 14.5)

[84]     The Direction requires the Tribunal to take into account the extent of impediments a person may face if repatriated, taking into account Mr Vural’s age and health, any substantial language or cultural barriers and any social, medical and/or economic support available to him in Turkey.

[85]     Mr Vural submitted that he suffered from depression and anxiety, and high blood pressure, and took medication for each of these conditions. The Respondent submitted (Exhibit R3) that Mr Vural would have access to the social security system administered by the Turkish Government’s Social Security Institution which includes universal health insurance. The Tribunal notes that this document states “The system does not include the entire population and [does] not have adequate safeguards against poverty.”

[86]     However, the Direction requires that a decision-maker must consider the extent of impediments that a non-citizen may face in settling and maintaining basic living standards through the lens of what is available to the person in the context of what is generally available to other citizens of that country. Thus, the requirement on a decision-maker in considering paragraph 14.5(1)(a) and (c) of the Direction is not to measure what the Australian welfare system may provide, or have provided to an individual, compared with what may be available in the welfare system of a country to which a non-citizen is repatriated. The correct approach is to assess what is generally available to citizens of the other country and would be available to a person, who is a citizen of that other country (who is broadly of the same age and with similar medical needs), if the person were repatriated.

[87]     The Tribunal has already discussed that Mr Vural speaks Turkish and finds that there would be no substantial language or cultural barriers if he were removed. The Tribunal also notes that Mr Vural provided evidence of his training as an auto-mechanic and that he had had periods of employment in that trade; as well as, for a time, operating his own car mechanic business. These skills would be readily transferable if Mr Vural was repatriated. The Tribunal also notes that Mr Vural provided evidence of certain other skills courses he had undertaken in prison, which is to his credit, and which also would enhance his employability. Mr Vural is, at the age of 51, not, as he submitted “elderly”, but the Tribunal acknowledges that as an older person re-entering the labour force, especially a person who has spent the greatest proportion of his life in another country, these factors would make job-seeking more difficult.

[88]     In terms of Mr Vural’s submissions regarding obligations for national service, the Tribunal notes that the DFAT Country Brief for Turkey (Exhibit R2) states (at 3.92):

Article 72 of the Constitution states that national service is the right and duty of every Turk. Males are required to register at age 20 for service that commences once they turn 21. University students can defer their service until they have completed their studies. Males aged 20 to 41 are eligible for conscription and must undertake military service of six months for university graduates and 12 months for non-graduates.

[89]     Mr Vural in his own submissions conceded that, as he is over the age of 41, he would not be conscripted if repatriated. Exhibit R2 states (at the end of 3.94):

In January 2016, the government passed a law allowing Turkish citizens over the age of 38 who had lived or worked outside Turkey for at least three consecutive years to obtain exemption from military service for TRY5680 (then AUZD1580)

[90]     The Tribunal concludes that, as Mr Vural is self-evidently aged over 38 and fulfils the other criterion of having lived or worked outside Turkey for more than three consecutive years, he would, on the basis of this information, be able to obtain exemption. Mr Vural states in his written submissions that he could not afford to pay the exemption fee. He provided evidence of mortgage payments for his residence. It was not clear whether he still has that residence but it would seem probable that he may be able to arrange his financial affairs to pay the requisite amount, if required. The Tribunal does not accept Mr Vural’s assertion that he would be ‘persecuted’ for not undertaking national service when he was not resident in Turkey for almost all of the period when he would otherwise have been eligible to be called up.

[91]     The Tribunal accepts that Mr Vural is on courses of medication for his medical conditions, as well as undergoing methadone treatment. On balance, the Tribunal finds, given Mr Vural’s various health conditions, and that there was scant information before the Tribunal about his access to this medication and to a methadone programme in Turkey, this consideration weighs in favour of restoring Mr Vural’s visa, but only very lightly so.

Applicant’s submissions

29    The applicant’s criticism of the Tribunal under this first ground centres on the Tribunal’s characterisation (in [86] of AAT Reasons) of the appropriate test under para 14.5(1) of Direction No. 79. The substance of the applicant’s argument is captured in the following paragraphs from his written submissions:

28.     Paragraph 86 of the Tribunal’s Reasons … reveals the Tribunal has misunderstood and misapplied cl. 14.5 of Direction no 79.

29.     On its proper construction, cl. 14.5 directs a decision maker to look at the extent of impediments which a person may face in establishing themselves and maintaining basic living standards if returned to the country of which they are a citizen. The words in brackets in cl. 14.5(1) – “in the context of what is generally available to other citizens of that country” refer only to the basic living standards applicable to that country.

30.     The “impediments”, which the decision maker must consider, are personal and the extent of them is to be assessed taking into account three factors, as set out in (a)-(c), each of which is also personal to the former Australian visa holder. Thus (a) deals with the person’s age and health. Sub-clause (b) deals with whether the person faces substantial language or cultural barriers, noting the language of that sub-cl. is passive and does not contain the italicized words; rather those words should be understood to be imported from the dominant part of cl. 14.5(1).

31.     Sub-clause 14.5(1)(c) is also by its language and context directed to the individual and asks, What support is available to “them in that country”? Such support may come from any number of sources: family, friends, their own resources or support from a social welfare system. The existence of a beneficent social welfare system may be available to assist a person to establish themselves and maintain the basic living standards, in the context of what is are generally available to others.

…

35.     As a result of the Tribunal’s misinterpretation of cl. 14.5 the Tribunal did not address the issue which cl. 14.5 addresses. It should have considered what were the basic living standards in Turkey and then made an assessment of whether this Applicant could achieve and maintain those living standards.

Consideration

30    As the applicant’s challenge under the first ground focusses on [86] of the AAT Reasons, I will break that paragraph down into the following three sentences:

[86]     [Sentence 1] … the Direction requires that a decision-maker must consider the extent of impediments that a non-citizen may face in settling and maintaining basic living standards through the lens of what is available to the person in the context of what is generally available to other citizens of that country. [Sentence 2] Thus, the requirement on a decision-maker in considering paragraph 14.5(1)(a) and (c) of the Direction is not to measure what the Australian welfare system may provide, or have provided to an individual, compared with what may be available in the welfare system of a country to which a non-citizen is repatriated. [Sentence 3] The correct approach is to assess what is generally available to citizens of the other country and would be available to a person, who is a citizen of that other country (who is broadly of the same age and with similar medical needs), if the person were repatriated.

31    The applicant does not take issue with sentence 1 of [86]. He cannot reasonably do so as the sentence simply rephrases the chapeau to para 14.5(1) of Direction No. 79.

32    The statement in sentence 2 of [86] is also correct; the task of the Tribunal in the present case under para 14.5(1) was not to draw a comparison between the welfare systems in Australia and Turkey. The focus of para 14.5(1) is instead on the impediments that the applicant will face in Turkey “if removed from Australia”.

33    Sentence 3 of [86] may, however, depending on how it is construed, constitute a misconstruction of para 14.5(1). If the Tribunal was intending to express that para 14.5(1) required the decision-maker to consider the impediments faced by a non-citizen in his or her home country solely by reference to the impediments generally imposed on a typical citizen of the home country and without considering, or adjusting its analysis by reference to, the non-citizen’s particular circumstances, then that approach is incorrect. Paragraph 14.5(1) is not to be applied solely by reference to a generic citizen of the relevant home country, the characteristics of whom are uninfluenced by the particular non-citizen’s personal circumstances.

34    Despite its parenthesised content, para 14.5(1) remains focussed on the extent of impediments that the particular non-citizen would face as a result of removal from Australia. The reference to “the non-citizen” in the opening words of para 14.5(1) requires the decision-maker to take into account the personal attributes of the particular non-citizen. This will include the non-citizen’s age and health (para 14.5(1)(a)), the extent of the non-citizen’s language skills and cultural knowledge (para 14.5(1)(a)), and any attributes peculiar to the non-citizen that would be relevant to obtaining social, medical or economic support (para 14.5(1)(a)). This will naturally include the non-citizen’s medical conditions.

35    That said, once those personal attributes are identified, the parenthesised content in para 14.5(1) is clearly intended to influence the weight which a decision-maker would otherwise attribute to the applicable impediments by reference to the standards of living that are “generally available” to other citizens of the relevant home country. In particular, the apparent objective of the parenthesised content is that, where the “general” basic living standards in a home country are low, any impediments to the non-citizen are to be characterised as of a lesser extent than if the same non-citizen, with the same attributes, were to be returned to a home country where the “general” basic living standards in that home country are high. That way, the “extent” of the impediments is, to some degree, standardised by reference to the “context” of the relevant home country.

36    Notwithstanding these observations, the consideration under para 14.5(1) should not be applied in a formulaic manner. To do so would likely misdirect the decision-maker from the ultimate statutory task. However, the following steps are, subject to the circumstances of the particular case, one suggested way (but not the only way) of addressing the various components of para 14.5(1):

(1)    identify the relevant attributes of the particular non-citizen, in particular those that are relevant to the overarching subject of para 14.5(1), namely the establishment of him or herself, and the maintenance of basic living standards, in the home country;

(2)    broadly characterise the level of basic living standards that are “generally available” to citizens of the home country;

(3)    by reference to the answers to the steps above, identify any impediments that the non-citizen will face in establishing him or herself in the home country and maintaining the basic living standards that are generally available to citizens of the home country; and

(4)    characterise the “extent” of any identified impediments.

37    Returning to the present case, sentence 3 of [86] of the AAT Reasons, while capable of various interpretations, does not necessarily betray the principles discussed above. In particular, the sentence acknowledges that the person in relation to which the analysis is to be undertaken is to be “broadly of the same age and with similar medical needs” as the particular non-citizen seeking revocation. The Tribunal was accordingly aware that the consideration under para 14.5(1) was not to be applied in disregard of the applicant’s personal attributes.

38    In any event, it is not appropriate to discern error in legal principle by parsing one sentence of one paragraph of the reasons of the decision-maker. Administrative reasons should not be overzealously scrutinised to discover error in the application of para 14.5(1) of Direction No. 79: see, in relation to the equivalent paragraph in the former ministerial direction, RZMW v Minister for Home Affairs [2019] FCA 1761 at [45]–[46] per Jackson J. It is instead necessary to consider how legal principle was applied in the totality of the reasons.

39    Having regard to the totality of the AAT Reasons (and in particular the paragraphs set out above at [28]), I do not discern any misconstruction or misapplication of para 14.5(1) of the Direction No. 79 as alleged by the applicant. The Tribunal expressly acknowledged and considered attributes personal to the applicant. In particular, the Tribunal acknowledged at [85] of the AAT Reasons that the applicant suffered from depression, anxiety and high blood pressure, and took medication for these conditions. Later in the same paragraph, the Tribunal noted the Minister’s submission that the applicant would have access to the Turkish social security system, including universal health care. Later, at [91], the Tribunal accepted that the applicant was on medication for his medical conditions, and was undergoing methadone treatment. However, given the “scant information” before the Tribunal about the applicant’s access to these forms of medication and treatment in Turkey, the Tribunal was not in a position to draw specific conclusions in relation to the availability of medication and treatment for the applicant personally. As a result, the Tribunal concluded that the consideration under para 14.5(1) “very lightly” weighed in favour of the revocation of the visa cancellation.

40    In my view, even if I were to accept that the Tribunal did not perfectly restate the operation of para 14.5(1) in [86] of the AAT Reasons, the manner in which the Tribunal applied para 14.5(1) to the facts of the present case does not reveal any error. The Tribunal’s primary focus was (appropriately) on the applicant’s personal circumstances, and the manner in which the Tribunal referred to and considered the benefits of the Turkish social security system generally does not evidence any jurisdictional error.

41    For these reasons, the applicant’s first ground of review is dismissed.

Ground 2 – Overlooking of evidence regarding extent of impediments in Turkey

42    The second ground of review advanced by the applicant contends that

[t]he [Tribunal] failed to exercise its jurisdiction and/or erred in the exercise of its jurisdiction to review the decision of the delegate of the [Minister], by overlooking evidence before it which was material the issues raised by the Applicant in his request for revocation relating to the extent of the impediments he would face if removed to Turkey.

43    As can be seen, this ground of review, like the first ground, concerns the Tribunal’s consideration of the extent of impediments that the applicant would face if removed to Turkey.

Evidence allegedly overlooked

44    The applicant submits that the Tribunal overlooked certain evidence about Turkey contained in a report dated 9 October 2018 entitled “DFAT Country Information Report Turkey” (DFAT Report), which was provided by the Minister to the Tribunal. The DFAT Report is 54 pages long, and contains wide-ranging information about Turkey, including its history, political framework and security situation.

45    The applicant identifies various aspects of the DFAT Report that he alleges were overlooked by the Tribunal. The relevant aspects of the report are best identified by reference to the applicant’s written submissions:

40.     The Applicant claimed that he would be subject to Turkey’s conscription laws. In response the Minister provided the Tribunal with a DFAT Country Information Report for Turkey, dated 9 October 2018 (“DFAT Report”).

41.     The DFAT Report also included information about employment and the Turkish health system.

42.     Unemployment in Turkey is high and has risen steadily since 2012. It was anticipated to continue above 10% through to the end of 2018. The employment gap between young males and other groups, including older workers (the group to which the Applicant would belong if removed to Turkey) is the highest in the OECD.

43.     Access to medication is also covered by the DFAT Report, e.g.:

While patients are no longer obliged to make contributory payments when visiting primary health care providers, they are obliged to make flat rate out-of-pocket payments when receiving medications and outpatient services in public hospitals. These payments inhibit access to health care by the poor.

44.     The DFAT Report also considered drug use and treatment:

There is little data available on the prevalence of illicit drug use in Turkey. A general population survey conducted in 2011 found that the use of illicit substances among the general population appeared to be rare, with cannabis the most common drug used by adults aged 15 to 64 years. Nevertheless, widespread popular sentiment in Turkey, shared by law enforcement agencies, believes illicit drug use is reaching serious levels. Critics of the government’s approach towards illicit drug use have noted that authorities have focused on drug seizures and prosecutions of small-scale drug peddlers and users rather than harm reduction, and that drug policies are not effective, comprehensive or integrated. Most drug related treatment in Turkey takes place in outpatient settings. 79 drug rehabilitation centres are located in 49 of Turkey’s 81 provinces. In June 2017, authorities announced plans to establish 12 ‘rehabilitation and social adaptation’ villages in Istanbul, Izmir, Ankara, and Adana, to reintegrate recovering drug addicts into society.

(Citations omitted.)

Submissions

46    The applicant contends, in summary, that an inference should be drawn that the Tribunal overlooked these matters from the Tribunal’s failure to mention any of these aspects of the DFAT Report in its reasoning, its conclusions on the extent of impediments, and its comments about the “scant information” before it. The applicant accepts that whilst this evidence is not extensive, it was directed to the issues that the Tribunal was required to consider. The applicant submits that the Tribunal’s failure to have regard to this evidence amounts to jurisdictional error.

47    In response, the Minister argues, in summary, that the reasoning of the Tribunal discloses that it did in fact consider the unemployment situation in Turkey, that the applicant’s access to medication and drug rehabilitation and treatment. The Minister further highlights that the content of the DFAT Report was only of a general nature.

Consideration

48    With respect to employment opportunities in Turkey, the Tribunal acknowledged at [87] that, as an older person re-entering the labour force, and especially as a person who had lived extensively in another country, the applicant would find job-seeking more difficult. That analysis is consistent with the advice in the DFAT report (see para 2.13). The Tribunal also considered that, in addition to skills obtained from courses undertaken whilst in prison, the applicant was a trained automobile mechanic who had operated his own car mechanic business and would possess skills that were readily transferable.

49    In light of these observations, there is no basis to draw an inference that the Tribunal failed to consider the references in the DFAT Report to employment prospects in Turkey. Moreover, the Tribunal was not required to make a precise finding about the applicant’s prospects of obtaining employment in Turkey: Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 230 at [58]–[60] per Besanko, Barker and Bromwich JJ.

50    With respect to access to medication and drug use and treatment in Turkey, the Tribunal at [85] referred to the applicant’s evidence as to his health issues and medication and, as discussed above in relation to the first ground of review, referred to the evidence presented regarding access to the social security system in Turkey. Then, at [91], the Tribunal accepted that the applicant had various medical conditions, but was unable to draw specific conclusions about his access to medication and to a methadone programme in Turkey given the “scant information before the Tribunal”.

51    The Tribunal was not required to refer to every aspect of the DFAT Report that possessed some relevance to the assessment of the impediments that the applicant would face if removed to Turkey: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] per Griffiths, White and Bromwich JJ; Navoto v Minister for Home Affairs [2019] FCAFC 135 at [88] per Middleton, Moshinsky and Anderson JJ; Paszkiewicz v Minister for Home Affairs [2019] FCAFC 198 at [42] per Middleton, Kerr and Anastassiou JJ. Indeed, it will often be the case that most country information provided to the decision-maker will possess at least tangential relevance to the circumstances that the non-citizen will face upon return to his or her home country. But the need for the decision-maker to expressly refer to, and confront, that information will generally depend on the nature of the claims advanced by the non-citizen, and the strength of the connection between the country information and those claims.

52    In the circumstances of the present case, where the applicant did not advance specific claims or submissions focussing on the DFAT Report, and the content of the DFAT Report was of a general nature, there is no reasonable basis to infer that the Tribunal failed to consider the relevant aspects in the DFAT Report regarding health services in Turkey.

53    For these reasons, the applicant’s second ground of review is dismissed.

Ground 3 – Applicant’s failure to heed warnings from the Department

54    The third ground of review advanced by the applicant contends that

[t]he [Tribunal] failed to exercise its jurisdiction and/or erred in the exercise of its jurisdiction to review the decision of the delegate of the [Minister], by erroneously finding that the Applicant had failed to heed two warnings given to him by officers of the [Minister’s] Department.

55    This ground relates to the two warnings that were given by the Department to the applicant regarding the potential consequences of further criminal offending. The first warning was in a letter dated 21 April 2008 (see above at [6]) and the second warning was in a letter dated 16 February 2011 (see above at [9]).

Tribunal’s consideration of warnings

56    The Minister’s Statement (filed in the Tribunal) stated the following:

29.     It is patently clear that the opportunity of multiple non-custodial orders and periods served in custody have not deterred the Applicant from continuing to offend. It is also clear that the threat of visa cancellation has not deterred the Applicant from continuing to offend.

30.     On 21 April 2008, the Applicant was sent a Formal Counselling Letter from the (then) Department of Immigration and Citizenship. The letter stated, among other things:

It has come to this department's attention that you have a criminal record. As you have a criminal record, I would like to advise you of the operation of section 501 of the Migration Act 1958 (the Act).

…

The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia, and, in certain cases, bars on re-entering Australia.

31.     Despite this warning, the Applicant continued to repeatedly offend. Notably, on 15 February 2010 he received his most serious sentence of an aggregate 2 years and 9 months imprisonment.

57    In introducing the warnings given to the applicant in the AAT Reasons, the Tribunal stated the following:

BACKGROUND

…

The Applicant’s Evidence

…

[31]     [The advocate for the Minister] asked Mr Vural about a letter he had received in April 2008 (GD, p 172) from the Department headed ‘Formal Counselling Letter’. The letter explains the operation of section 501 of the Act, sets out that the Department has become aware of Mr Vural’s criminal record and goes on to state:

No consideration is currently being given to cancelling your Class BB Subclass 155 Five Year Resident Return visa, under section 501 of the Act. Your visa will therefore continue to provide you with permission to remain in Australia.

The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of section 501(6), could result in the cancellation of your visa. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.

[32]     Mr Vural said he recalls receiving the letter. When asked why he continued to offend, he told the Tribunal that he thought the warning about his visa related to the same kind of offences that he had been convicted of in the past, relating to drugs and weapons, and that he never went back to selling drugs.

[33]     He then admitted that he continued to offend because he had a drug problem. He said he sought help from his Community Corrections Order (CCO) supervisor, to get off drugs.

[34]     Mr Vural was taken to sentencing remarks of His Honour Judge Gamble in the County Court on 15 February 2010 in R v Vo & Vural [2018] VCC (GD, p 154-171). In relation to the Applicant, His Honour said:

[Extract of sentencing remarks, which are irrelevant for current purposes.]

[35]     [The advocate for the Minister] asked Mr Vural about a letter dated 16 February 2011 he received from an officer of the Department (GD p 175). This letter relevantly said:

On 6 July 2010, the [then] Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.

As I advised you by phone today, after taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class BB Subclass 155 Five Year Resident Return visa will continue to provide you with permission to remain in and re-enter Australia. However the delegate decided that you are to be given the following formal warning.

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if you case is reconsidered.

[Bold type in the original.]

[36]     The letter was sent by registered post to Mr Vural at his home and he acknowledged receiving it, as recorded in a signed acknowledgement dated 23 February 2011 (GD, p 177). Mr Vural told the Tribunal he did not realise it was a second warning.

[37]     Mr Vural was asked about some 40 further offences of which he has been convicted in the last five years, including some which are drug-related. He acknowledged the offending and said at the time he had a new female partner who led him back to drug use. He said at the time he couldn’t think properly and wasn’t thinking about the prospects of prison or the possible consequences in regard to his visa. He told the Tribunal at this time he was injecting heroin, using ice, taking ecstasy and smoking cannabis, often all of them together.

58    After considering further matters, the Tribunal concluded as follows in relation to the nature and seriousness of the applicant’s conduct (for the purposes of paras 13.1(2)(a) and 13.1.1 of Direction No. 79):

[55]     As set out above, Mr Vural had two explicit written warnings from the Department about his migration status, in 2008 and again in 2011. He was also spoken to by an officer of the Department. He heeded neither warning. This is a significant factor for the Tribunal to take into account because he did not claim to be unaware of the direct possible consequences to his migration status in Australia if he continued to offend. The Tribunal does not accept Mr Vural’s submission that he thought the warnings were only about the ‘same kind’ of offending; the letters were clear that they were about any form of criminal offending.

(Emphasis added.)

Applicant’s submissions

59    The applicant contends that the Tribunal erred in finding (at [55] of the AAT Reasons) that the applicant had not heeded either of the two warnings given to him. The basis for this is that the applicant did not offend between the first warning in 2008 and the second warning in 2011. (The applicant was convicted by County Court of Victoria in February 2010 (see above at [7]), however I take it from the applicant’s submissions in this respect (which was not contradicted by the Minister) that the 2010 conviction related to offending conduct that pre-dated the first warning in 2008). As such, the applicant’s written submissions contended as follows:

51.    … Accepting the Tribunal’s words are ambiguous, in that they could refer to the fact that from 2014 he reoffended after he had been given two warnings, it is nevertheless submitted the Tribunal had in mind that the Applicant was warned, then offended, then warned again and then further offended. This is the most likely meaning of the words used by the Tribunal, in the light of the Minister’s error in the Statement of Facts, Issues and Contentions.

Consideration

60    On my reading of the AAT Reasons, the Tribunal did not make any error in finding that the applicant had failed to heed the warnings given to him by the Department in 2008 and 2011. It should be highlighted that the applicant committed 36 further recorded offences after receiving the second warning in February 2011. In June 2018, he was sentenced in relation to nine of those offences to a total effective term of imprisonment of four months, which triggered the mandatory cancellation of his visa. This is the context in which the Tribunal heard and determined the applicant’s review application in March 2019. Looking back on the events leading up to the Tribunal’s decision, it is clearly correct that the applicant had failed to heed the warnings given to him in 2008 and 2011 regarding the potential consequences for his visa should he continue to offend.

61    In any event, if I am wrong, and the Tribunal did err, that error was immaterial to the outcome of the Tribunal’s decision. Even accepting the applicant’s interpretation, it does not negate the fact that the applicant committed 36 further recorded offences after receiving his second warning in February 2011. Even if such an error (if it be one) was not made, it could not have realistically resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] per Bell, Gageler and Keane JJ.

62    For these reasons, the applicant’s third ground of review is dismissed.

Conclusion

63    For the reasons expressed above, the applicant’s application for judicial review is dismissed. The applicant will pay the Minister’s costs of and incidental to the application.

Associate:

Dated:        19 May 2020