Murder – Visa Cancellation on Character Grounds Confirmed

 

Persons sentenced to long terms of imprisonment for serious crimes committed in Australia rarely succeed in having their visa cancellations overturned in the AAT. This is so even if there are Australian citizen offspring involved.  The gruesome basic facts in Yildirim v MIAC [2008] AATA 702 (11.8.08) are:

Mr Yildirim was born in Turkey. He arrived in Australia on 25.12.1997 on a… Subclass 300 (Prospective Marriage) visa, having met his fiancée, an Australian citizen, in Turkey. After his marriage in August 1998 he was granted a spouse visa. His wife gave birth to their daughter in July 1999. Mr Yildirim and his wife subsequently separated. Mr Yildirim stabbed his estranged wife to death on 18 August 2001. On 30.5.02, Mr Yildirim was convicted of murder and sentenced to 18 years imprisonment with a non-parole period of 14 years.

The AAT hearing occurred some 7 years into his sentence.  The AAT concluded that the visa cancellation should be affirmed:

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

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

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

In contrast the interests of the offspring was a crucial factor in a case of a young man with considerable criminal history. In Rimoni v MIAC [2008] AATA 761 (28.8.08) the male applicant had 2 young children.  The applicant from NZ had multiple robbery convictions and some serious driving convictions.  The AAT summed up his criminal circumstances aptly:

It is not a case of giving the applicant a second chance – he has already squandered too many chances.

But is was the existence of the Australian citizen offspring which was decisive:

•115.          The tribunal is guided on this question by the decision of the Full Federal Court in Wan v MIMA (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v MIEA (1998) 150 ALR 608. In Wan at para.. 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

•116.          The applicant has two children in Australia, Destiny, aged 13 (Esme Mahe’s daughter) and Jadalen, aged 4 (Lupe Alofa’s daughter)..

•120.          At the hearing the applicant claimed to have a close relationship with his daughter Jadalen. In his interview on 14 May 2007, however, he said that his relationship with Jadalen’s mother Lupe Alofa was no longer amicable and that he had problems contacting his youngest daughter (Jadalen), as Lupe would not allow him to speak to her. He later said that Jadalen would not speak to him on the telephone and did not know him, as he had been out of her life for too long.

•121.          He said at the hearing that he was now on good terms with Ms Alofa, and that she is content for him to be involved with Jadalen, but there is no evidence of any kind from her before the tribunal that might corroborate that assertion. It may be accepted that he genuinely wishes to play a major part in Jadalen’s life, but Direction No 21 declares (para 2.16(b)) that the hypothetical prospect for developing a better or stronger relationship in the future is normally given relatively less weight than the proven history of the relationship based on past conduct.

•122.          It is plain, however, that the applicant is very close to his daughter Destiny, now aged 14. He was her primary carer when she was young and her mother counts on him to resume that role when they are married so as to enable her to pursue her nursing career.

•123.          This is not the common case of an offender seeking to use a child he has casually fathered as a kind of human shield. He was formerly closely involved in Destiny’s life and I accept that she could suffer significantly if the applicant were removed. There is no practicable way of alleviating that result in present circumstances if his visa is cancelled.

•124.          I therefore conclude that the best interests of Destiny, and to a lesser extent Jadalen, weigh strongly against visa cancellation in this case.

Barbara Davidson