Grabovica and Minister for Immigration and Multicultural and Indi Genous Affairs
[2003] AATA 1103
•3 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1103
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/635
GENERAL ADMINISTRATIVE DIVISION ) Re
Dusko Grabovica
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley Date3 November 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Zivko Grabovica passes the character test pursuant to s 501(6) of the Migration Act 1958.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 676 (short stay visitor) visa – refusal of visa on character grounds – association with a person or group who is reasonably suspected of having been involved in criminal conduct – association with Pero Colic and the 5th Kozara Brigade – war crimes in the former Yugoslavia – examination of the Visa Applicant’s involvement with the 5th Kozara Brigade – held that there is no evidence to associate the Visa Applicant with war crimes or crimes against humanity – held that the Visa Applicant passes the character test – decision under review set aside.
Migration Act 1958 s 499, 501, 501(6)(b)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Hapugoda and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 330
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
3 November 2003 Mr RP Handley Summary
1. Mr Zivko Grabovica, who is aged 56 and lives in Bosnia and Herzegovina, applied for a visitor visa to visit his son and his son’s family in Australia. Mr Grabovica is a professional driver who, as a member of the Civilian Defence Force, was required to work as a driver for a paramilitary organisation, the 5th Kozara Brigade, during the conflict in Bosnia and Herzegovina in 1991/1992 and again in 1995.
2. The Respondent states the 5th Kozara Brigade, under the command of Pero Colic, was involved in war crimes and crimes against humanity during that conflict. The Respondent found that Mr Grabovica did not pass the character test by reason of his association with the 5th Kozara Brigade and Pero Colic, whom the Respondent suspected of being involved in criminal conduct. The Respondent therefore refused Mr Grabovica’s application for a visitor visa.
Background
3. The Applicant, Dusko Grabovica, was born in Sydney on 10 July 1973 and is aged 30. He is an Australian citizen and is married with one son. His father, the Visa Applicant, Zivko Grabovica, was born in Bistrica, Prijedor, Bosnia and Herzegovina on 7 June 1947 and is aged 56 (T p35). Mr Zivko Grabovica’s first wife, Mr Dusko Grabovica’s mother, died in 1978. Mr Zivko Grabovica has two children by his second wife, Nevenka: Slaven Grabovica, born on 12 January 1981 and now aged 22, and Daniel Grabovica, born 12 November 1983 and now aged 20. Slaven and Daniel both reside in Bosnia and Herzegovina with Mr Zivko Grabovica and his wife.
4. Between 1969 and 1976, Mr Zivko Grabovica resided in Australia with his wife. He returned to live in Bosnia and Herzegovina in 1976 when his first wife became ill (T39), since which time he has been employed as a professional driver with Penzijsko Invalidsko Osiguranje (PIO) (T p123), the Pension and Invalid Insurance Fund of the Republic of SRPSKA.
5. From 18 September 1991, Mr Zivko Grabovica was conscripted, as a member of the Civilian Defence Force, to work as a driver, when required, for the 5th Kozara Brigade, a Serbian paramilitary organisation from Prijedor (T p47). He was subsequently discharged on 30 November 1992 (T p107). On 17 May 1995, Mr Zivko Grabovica was again conscripted to work as a driver for the 5th Kozara Brigade, being discharged on 4 January 1996 (T p107).
6. On 8 January 2003, Mr Zivko Grabovica applied for a subclass 676 (short stay visitor) visa (T p35), stating that the reason why he wished to visit Australia was “to visit my son and his family and be for the moment of baptism of my grandson” (T p36).
7. On 13 February 2003, a delegate of the Respondent advised Mr Zivko Grabovica that she was considering refusing his application on the basis that he was not of good character based on his association with a person or group reasonably suspected of involvement in criminal conduct (T p122) and inviting him to comment as to why his visa application should not be refused. Mr Zivko Grabovica responded by letter of 24 February 2003, stating that his involvement with the 5th Kozara Brigade was through the Ministry of Defence, which required his employer to provide a vehicle and driver for transporting food and first aid, and that he had no alternative but to oblige (T p123).
8. On 18 March 2003, a delegate of the Respondent decided to refuse the grant of a visa to Mr Zivko Grabovica on the ground that he is not of good character because of his association with a person or group or association whom was reasonably suspected of criminal activity (T p9). On 17 April 2003, the Applicant applied for a review of this decision with the Tribunal (T p5).
9. At the hearing, the Applicant was self-represented and the Respondent was represented by Andrew Grimm, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) together with supplementary documents (“the S Documents”) and documents tendered by the Applicant. At the hearing, the Applicant gave oral evidence and Mr Zivko Grabovica gave evidence by conference telephone from Bosnia and Herzegovina.
Relevant Law and Policy
10. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (b) which states as follows:
The person has or has had an association with someone else, or with a goup or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; …
14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
16. The issue for the Tribunal to determine in this case is, therefore, whether Mr Zivko Grabovica is not of good character having regard to his association with a person, group or organisation whom the Minister reasonably suspects of having been involved in criminal activities, so as to be precluded from the grant of a subclass 676 (short stay visitor) visa. If the Tribunal decides he is not of good character, it must consider whether to exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa.
Evidence
11. Mr Zivko Grabovica migrated to Australia in 1969. His son Dusko was born in Australia in 1973. Mr Zivko Grabovica said he worked hard and purchased a house. However, his wife became ill and wanted to return to the former Yugoslavia. They therefore returned to Yugoslavia in 1976 where his wife died about two years later. Mr Zivko Grabovica later remarried and had two further sons, now aged 22 and 20.
12. On returning to Yugoslavia in 1976, Mr Zivko Grabovica obtained employment as a professional driver with the Pension and Invalid Insurance Fund in Prijedor. He has been employed by the Fund since that time. He normally drives pensioners and employees in the Fund’s passenger vehicle. Mr Zivko Grabovica said the war started in 1990. He had nothing to do with it and did not participate in any way. He was not interested in politics or war. He had a wife and children and a household to support.
13. Mr Zivko Grabovica was a member of the Civilian Defence Force, equivalent to the Army Reserve in Australia. It was not the Military Police. In 1991/1992, he was requisitioned as a driver, using his employer’s other vehicle, a pick-up truck, to make deliveries of food and medicine to the 5th Kozara Military Command. From there, the goods were sent to the frontline. But Mr Zivko Grabovica never went to the frontline. He was not an active soldier and he did not wear a uniform. He was not conscripted – just attached to the 5th Kozara Brigade as part of the Civilian Defence Force. He continued to work for his employer and was only required to make deliveries to the Military Command about once a month which would take a maximum of two days. He was again required to make such deliveries in 1995.
14. Mr Zivko Grabovica said he did not receive orders directly from Branko Jovanovic. Major Jovanovic was a high ranking officer and Mr Zivko Grabovica received his orders from more junior officers under Major Jovanovic’s command. In answering the Department’s questionnaire (T p201), Mr Zivko Grabovica nominated Pero Colic as the senior officer to whom Major Jovanovic reported. Mr Zivko Grabovica said he never had any contact whatsoever with Mr Colic. As an ordinary member of the Civilian Defence Force, he had no chance of getting in touch with high ranking officers.
15. Mr Zivko Grabovica said he had no knowledge of any war crimes committed by the 5th Kozara Brigade. He was only with the Brigade from time to time and never went to the frontline.
16. Mr Zivko Grabovica said he wants to visit Australia, which he still loves very much, and to visit his son and grandson. He still has Australian friends with whom he wants to have a few beers. He is seeking a three month visa although he may only stay for a month. He intends to return to Bosnia and Herzegovian where he hopes to continue working for the same employer for another six or seven years until he retires. He also has his wife to return to – she has her own business – and his two younger sons who are now studying at University.
17. The Applicant, Mr Dusko Grabovica, said he loves his father dearly. His father brought him up from the age of four when his mother died and has done a lot for him. When the Applicant was 18, his father sent him back to Australia, where he was born and is an Australian citizen. Initially on his return, the Applicant was supported by his father’s friends. It would have been difficult for his father to visit Australia before now because of the expense and his father’s situation in Bosnia and Herzegovina. It is his father’s dream to see Australia again and the Applicant had wanted him to be here in Australia in November 2002 for the christening of the Applicant’s son.
Consideration of the Law and Findings
18. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(b), Mr Zivko Grabovica passes the “character test” having regard to his association with a person, group or organisation whom the Minister reasonably suspects of being involved in criminal activities. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).. However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
19. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Mr Zivko Grabovica does not pass the character test, it must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
20. In Part 1 of Direction No 21 the Minister provides the following guidance:
1.5The meaning of ‘association’ for the purposes of the Character Test encompasses a very wide range of relationships including having an ‘alliance’ or a ‘link’ or ‘connection’ with a person, a group or an organised body that is involved in criminal activities. ‘Association’ does not require actual membership of a group or organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:
(a)the degree and frequency of association the non-citizen had or has with the individual, group or organisation;
(b) the duration of the association; and
(c) the nature of the association.
1.6In some cases the information concerning the association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other person at risk.
21. The Tribunal notes, as Deputy President Forgie recognised in ReHapugoda and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 330 at paragraph 54, that s 501(6)(b) states that “a person does not pass the character test based solely on an association a person ‘has had’ with a person whom the Minister reasonably suspects ‘has been … involved in criminal conduct’. That is so without regard to the currency of the person’s present association or the person’s conduct generally.”
22. Turning to the application of the character test, it is appropriate that the Tribunal set out its findings. Mr Grimm conceded at the hearing that the Respondent does not seek to rely on its earlier expressed contention that Mr Zivko Grabovica had an association with Pero Colic. Mr Colic was the commander of Serbian forces, including the 5th Kozara Brigade, who were involved in war crimes and crimes against humanity, including the killing of Bosnian Croats and Bosnian Muslims in the conflict between 1992 and 1995 to which reference is made in the S documents. However, the Respondent contends that Mr Zivko Grabovica did have an association with the 5th Kozara Brigade. His delivering supplies to the Brigade is a sufficient association with the Brigade and he therefore fails the character test.
23. The Applicant said his father continued to work for his employer through the period of conflict and only made deliveries to the Military Command of the Brigade in his employer’s vehicle when called upon to do so. His father – who was essentially a civilian and never given a uniform – was not involved in any other activities associated with the war. In making the deliveries, he was following military orders. He was requisitioned because the Brigade were short of vehicles and drivers. The Applicant referred the Tribunal to the Certificate dated 22 September 2003 provided by the military in Banja Luka (A1). This states that Mr Zivko Grabovica, during his engagement with the Military Post in Prijedor, was not in a position “whereby he would get direct orders from Pero Colic, Branko Jovanovic, or Monier Talic”.. A certificate from the City Council of Prijedor dated 29 November 2000 (A1) states that Mr Zivko Grabovica’s involvement in the war was over a period of 22 months and that he was never involved in any warfare activities. His engagement was wholly “outside the area of warfare activities”.
24. In the Tribunal’s view, Mr Zivko Grabovica does not fail the character test by reason of his association with the 5th Kozara Brigade as contended by the Respondent. The evidence is that Mr Zivko Grabovica continued to work for his employer, the Pension and Invalid Insurance Fund, throughout the relevant period. As a member of the Civilian Defence Force, he was required from time to time to make deliveries of food and medicine, using his employer’s pick-up truck, to the Military Command of the 5th Kozara Brigade. Mr Zivko Grabovica said in evidence that he did not wear a uniform and that such deliveries would take a maximum of about two days a month. He did not go to the frontline and was not otherwise involved in warfare activities. There is no evidence to contradict this and the Tribunal has no reason to disbelieve Mr Zivko Grabovica’s account.
25. The Tribunal considers that Mr Zivko Grabovica’s attachment to the Military Post in Prijedor, having regard to its duration, degree and frequency, does not establish a sufficient association to support a finding that Mr Zivko Grabovica does not pass the character test. There is no evidence that Mr Zivko Grabovica’s “enduring moral qualities” are so deficient to show it is for the public good to refuse his application for a visa (see Goldie (supra) and Re Msumba (supra)).
26. The Tribunal notes that even if it were to find that Mr Zivko Grabovica does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. Mr Grimm submitted that the primary considerations of the protection and expectations of the Australian community are paramount. War crimes and crimes against humanity are very serious offences and, by refusing entry to Mr Zivko Grabovica, Australia would be making a strong statement about such offences. Such offences are so abhorrent to the Australian community that it would not expect that anyone associated with the omission of such offences, however peripherally, would be allowed entry. Mr Grimm submitted that these considerations outweigh any hardship to Mr Zivko Grabovica, his son and family members. In any event, the Applicant and his family can visit Mr Zivko Grabovica in Bosnia and Herzegovina.
27. By contrast, the Applicant contended that his father has never been involved in any activities associated with war and has never been charged or convicted of any offence. While the Applicant and his family could visit his father in Bosnia and Herzegovina, it is his father’s dream to visit Australia again where, having been a permanent resident for six years, he could have applied for Australian citizenship.
28. The Tribunal has found no evidence to associate Mr Zivko Grabovica with any war crimes or crimes against humanity and there is nothing to suggest he is anything but of good character. The Australian community would therefore expect that he would be granted a visa and be permitted to visit his son and his son’s family and Australia where he lived for six years. Mr Zivko Grabovica is committed to returning to his family and employment in Bosnia and Herzegovina, and the visa involved is a short stay one.
29. In conclusion, the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that, pursuant to s 501(6) of the Act, the Visa Applicant passes the character test.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley
Signed: .......................................................................................
AssociateDate/s of Hearing 24 October 2003
Date of Decision 3 November 2003
Representative for the Applicant Self-represented
Representative for the Respondent Mr A Grimm, Solicitor
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