GVSW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1015

GVSW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1015 (9 April 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2017/3922
GENERAL DIVISION  )

Re: GVSW
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member B J Illingworth

DATE OF CORRIGENDUM:        9 April 2021

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.     on the cover page of the decision, delete the following sentence: “The decision under
       review is set aside”; and

2.     in substitution, insert the following two sentences: “The Tribunal sets aside the
       reviewable decision. In substitution, the Tribunal decides that the mandatory
       cancellation of the Applicant’s Class XA Subclass 866 Protection visa be revoked”; and

2.     delete the following sentence in paragraph 344 of decision, which reads “For the
       reasons outlined above, the decision under review is set aside”; and

3.     in substitution, insert the following two sentences: “For the reasons outlined above, the
       Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that
       the mandatory cancellation of the Applicant’s Class XA Subclass 866 Protection visa
       be revoked.”

........................[SGND]........................
  B J ILLINGWORTH
  (Senior Member)

Division:GENERAL DIVISION

File Number(s):2017/3922      

Re:GVSW  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:09 April 2021

Place:Adelaide

The decision under review is set aside.

....................[SGND]........................

Senior Member B J Illingworth

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth).

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185.

GVSW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1543.

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018.

REASONS FOR DECISION

Senior Member B J Illingworth

09 April 2021

INTRODUCTION

1. GVSW (the Applicant) seeks review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (formerly the Minister for Immigration and Border Protection) (the Respondent) made under s 501CA(4) of the Migration Act 1958 (the Act) not to revoke the mandatory cancellation of his Class XA Subclass 866 Protection visa.

2. This application was originally heard by the Tribunal (the First Hearing) and a decision was published on 15 September 2017 which affirmed the decision under review[1]. Subsequently, following an appeal, by Order of the Federal Court of Australia dated 19 July 2019, the Tribunal decision was quashed, and the matter remitted to the Tribunal for rehearing[2]. The application has now been heard by a differently constituted Tribunal.

   [1] Exhibit B, Consolidated Bundle of Documents Volume 2, pages 786 – 823.

   [2] Ibid, pages 840-841.

3. The Tribunal received into evidence the G Documents from the First Hearing which was supplemented by further documentary evidence including country information in relation to Bosnia and Herzegovina. The parties also consented to the Tribunal receiving the transcript of the First Hearing into evidence. However, the organisation responsible for the recording and transcribing of evidence, after being given considerable time to locate it and provide it to the Tribunal, advised it could not be located. The whole of the oral evidence was heard afresh.

4. At the hearing before me, the Applicant was represented by registered migration agent and advocate Ms Le and the Respondent was represented by Mr Gerard, Australian Government Solicitor.

   BACKGROUND

5. At the First Hearing, the Applicant gave evidence by video link from the Immigration Detention Centre on Christmas Island. His then partner RG[3] provided written material and gave oral evidence. His son LB[4] also provided written material and oral evidence, as did the children of RG, JH[5] and LH[6], as well JG[7], RG’s mother.

   [3]RG was referred to as ‘Ms H’ in the First Hearing.

   [4] LB was referred to as ‘The son’ in the First Hearing.

   [5] JH was referred to as ‘The youngest son of Ms H’ in the First Hearing.

   [6] LH was referred to as ‘The eldest son of Ms H’ in the First Hearing.

   [7] JG was referred to as ‘Mrs G, mother of Ms H’ in the First Hearing.

6. Following the decision dated 15 September 2017, and before the hearing of the appeal, riots broke out at the Christmas Island Detention Centre.  The Applicant was assaulted and injured in earlier riots in 2015. Due to ongoing fear for his personal safety, on 11 January 2018 the Applicant signed a ‘request for removal from Australia’ form. On 12 March 2018, the Applicant was removed from Australia and was returned to Bosnia and Herzegovina pending the outcome of his appeal and this application for review.

7. RG subsequently travelled to Bosnia and Herzegovina to join the Applicant for approximately two weeks. On 18 May 2018, they were married, and RG then returned to Australia. She looked for a new place for her, the Applicant and her youngest son JH to live. 

8. RG was born in the United Kingdom and held both English and Australian passports. She was permitted to reside within the European Union (EU). On 12 October 2018, RG and JH[8] travelled to the Netherlands to reside there with the Applicant.

   [8] JH also held both English and Australian passports and was similarly permitted to reside within the EU.

9. Bosnia and Herzegovina was not a member of the EU and the Applicant’s Bosnia and Herzegovina passport and citizenship did not afford him the right to reside elsewhere in Europe. He maintained his residency in the Netherlands because of his marriage to RG. RG was permitted to live and work in the Netherlands.

10. The Applicant and his wife RG gave evidence from the Netherlands by video link. The other witnesses to whom I will refer, gave evidence by telephone.

    THE EVIDENCE

11. The hearing was conducted over a number of days in the latter half of 2020 which the Tribunal will now summarise.

    The Applicant

12. The Applicant was born in in 1970 to parents of Serbian ethnicity. He grew up in Mostar, Yugoslavia (now part of Bosnia and Herzegovina). He is 50 years of age.

13. The Applicant had a disrupted childhood. Before he was born his father left the former Yugoslavia for Australia. The Applicant said his father escaped as a refugee. He first met his father when he was about 8 years of age when he returned to the former Yugoslavia. His father returned to Australia with the intention of arranging for the Applicant and his mother to join him in Australia. It never happened. His parents divorced and his mother remarried.

14. In the early years of his life, the Applicant lived with his grandmother. She lived in a rural village outside Mostar. His mother was working and could not care for him. When he commenced school, the Applicant lived with his uncle. He had a cousin who was the same age and they attended school together. By the second year of school, the Applicant returned to live with his mother and her new husband. They had two children and living with them was difficult. He said it was not the best circumstances to be brought up in.

15. In 1984, another uncle visited the Applicant from Australia. His uncle said that the Applicant’s father wanted to bring him to Australia. Eventually his mother signed over responsibility for the care of the Applicant to his father. In December 1986, when aged 16 years and with the assistance of his father and uncle, the Applicant travelled to Australia as a permanent resident travelling on a Yugoslav passport.

16. He was met at the airport by his father, his father’s partner and her daughter from a previous relationship. The Applicant said that he then knew he had a house to go to.

17. The Applicant went to school to learn English and after six months enrolled in year 10. He said school was not too bad, but he had some issues at school during which he was suspended. After completing year 11, he undertook a hospitality course.

18. The Applicant resided with his father until approximately 1988 when he was 18 years of age. He had issues with his father because they had not been together for his first 16 years. On one occasion he tried to leave home, but his father found him at a bus station and brought him home.

19. The Applicant said that over the years his relationship with his father has improved. He was grateful for the help that his father has given him in recent years; particularly when he was deported, and his father helped him return to the Republic of Srpska. He said they have progressed through the difficult period of their relationship. His father is now 80 years of age and they have become more like friends and more recently best friends. They speak a great deal.

20. The Applicant continued to reside in Australia since his arrival. He remains in contact with his uncle who resides interstate and his father and uncle also maintain very regular contact.

21. The Applicant maintained contact with his mother for 2 – 3 years after arriving in Australia albeit the contact lessened over that time; but after his mother’s death in the Balkan war, he had no further contact with his remaining family members including his two half siblings. He said after the war the country split into Croatia, Serbia and Bosnia and Herzegovina and he holds a Bosnia and Herzegovina passport. He said that he was not sure which passport he was entitled to, but his hometown of Mostar is now part of Bosnia and Herzegovina. When he was advised he was to be deported he was not sure which country he would be sent to and feared he would be stateless.

    Immigration Detention

22. The Applicant referred to riots that occurred in Immigration detention. In his handwritten statement dated 10 July 2017[9] he said:

    In November 2015 during a major disturbance on (CIDC) I was assaulted by a mob of rioters for merely refusing participation in destruction of Commonwealth property. I am yet to receive appropriate medical treatment for this injury (Please refer to Dr J Flynn report of 27 January 2016.)

    [9] Exhibit B, Consolidated Bundle of Documents Volume 2, page 760.

23. In evidence, he said that the riots were a major disturbance. He suffered injury to his shoulder. He refused to participate in the riots, and he was set upon by masked men. The floor was wet. They swung a cricket bat at him, he was struck in the chest then he slipped and suffered permanent damage to his shoulder. He suffered discomfort for a number of months and today he has limited movement in his shoulder. He is now unable to participate in physical activity. Unless he has surgery, his shoulder will never be the same again.

24. The Tribunal received a report from Dr Flynn dated 27 January 2016[10] in which it was reported that a general practitioner noted that during the riots on 8 November 2015, the Applicant was hit with a cricket bat to his right chest and fell landing on his left shoulder and thereafter suffered shoulder pain. It was opined, given the severity and duration of symptoms, that a diagnosis of rotator cuff tear was most likely.

    [10] Exhibit A, Consolidated Bundle of Documents Volume 1, pages 245 – 252.

25. Following the original adverse Tribunal decision in 2017, he remained in detention at Christmas Island. He said detention was slowly destroying him. He did not have much hope. There were further riots. There was one detainee during the riot whom the Applicant thought had died because he was not responsive. The Applicant called 000 on his mobile phone. The ambulance came to the detention centre but had to wait at the gate and could not enter because of the riot. He carried that unconscious detainee out of the gate to the ambulance officers. The detainee was sent to Perth, was revived and returned to the detention centre two weeks later.

26. The Applicant described the fires and damage that occurred to the detention centre. The main instigators were charged and jailed, and others were deported. For a period following the riots, they slept outside in caged areas until the living quarters were repaired and available. It took a couple of months to finish the repairs.

27. No officials were present inside the centre when the riot was occurring. They had all decamped. The Applicant spent much of this time in his room which was one area that was not burnt down. The Applicant said that he was frightened for his life because offenders were running around with chainsaws, cricket bats, steal balls and were high on drugs.

28. The Applicant spoke to RG daily. During the riots he telephoned and spoke to his migration agent and RG. Following the riots, RG encouraged him to leave Christmas Island detention centre. She never abandoned him. With RG’s support, and on 11 January 2018, the Applicant signed a ‘request for removal from Australia’ form which gave rise to his relocation to Bosnia and Herzegovina.

    Deportation and return to Bosnia and Herzegovina

29. The Applicant returned to Bosnia and Herzegovina for the first time when he was deported. He was taken to the airport by Serco officers. When he arrived at the airport, the Applicant said he got cold feet and did not want to leave. They called Border Force. He told them he did not have enough money to survive in Bosnia and Herzegovina and that he wanted to go back to Christmas Island. After further discussion, he decided to carry on and he continued his journey to Bosnia and Herzegovina.

30. He left Australia on 12 March 2018 and arrived in Sarajevo on 14 March 2018. When he travelled back to Bosnia and Herzegovina, he did not have a passport, only travel documents issued by Border Force. He obtained his Bosnia and Herzegovina passport after he returned in April 2018.

31. Upon arrival, he was handed over to local authorities who said that they knew who he was and the sooner he departs the better. He regarded this as a threat. The authorities asked where he was staying, and he took a taxi to the hotel. He was given AU$1,500 and the room was paid for 30 days. His only identification was his driver’s licence. There was no welfare available. He did not stay in the hotel for more than 24 hours.

32. He felt uneasy following the threat. The Applicant said he did not feel welcome and it felt to him like a foreign country. He contacted his father and RG. He asked his father if he knew anyone who may assist and, after some telephone calls, his father gave him a name of a person. In the early hours of the next morning he left the hotel, caught a bus and took a 2 ½ hour journey to Nevesinje in the Republic of Srpska, where his father’s friend met him at the bus station. He stayed with that person until he left for the Netherlands. In Nevesinje, he could not obtain a permit to live there permanently, could not earn an income, had no skills, limited language and was not entitled to health care as he could not register legally in the Republic of Srpska.

33. RG said she was coming to join him in Bosnia and Herzegovina. She was doing what she could to find a better place for him to live. RG said to the Applicant that he had to get out of Bosnia and Herzegovina, that she had never given up on the him and she told him she would search for another country in which they could live.

34. He said staying in Bosnia and Herzegovina was not an option. RG could not stay there because she could not get work, did not know the language and it was not a place for JH to be brought up. He said he might have had a Bosnian and Herzegovina passport, but he had no rights because of his Serbian descent. He described Mostar as a city in two parts; half Croatian and half Bosnian-Muslim and because he was viewed as Serbian, he needed to find his own territory. He was treated like an outsider. It was a first world country. The moment he opened his mouth they knew he was not from that area and he was not treated as local. He said he could not go to Serbia.

35. The Applicant said if he had to leave the Netherlands who knows what would happen to him and he would likely disappear. He is preoccupied with what will happen to him. He has nowhere to go and no one to go to. He regards himself as stateless. He was also critical of the time he had to spend on Christmas Island in detention waiting for the decision; if he did not sign to leave the country he would still be in detention.

36. Whilst in Nevesinje, he returned to his hometown, Mostar, to obtain a new birth certificate.  He then began to obtain other documents that enabled him to apply for and obtain a Bosnia and Herzegovina passport.

37. Whilst in Bosnia and Herzegovina, he made no attempt to contact family, including the uncle with whom he resided nor his old school friends. He did not know where to start and a lot of people had been killed or driven out of the former Yugoslavia during the war. It felt strange to return. He had no connection with the country. His name was Serbian. It was daunting and he felt overwhelmed. He recognised very little of his hometown save for part of the old bridge which withstood bombing during the war.

    Offender History

38. The Applicant accepted that his offender history contained in the National Police Certificate was an accurate record of his criminal offending[11].

    [11] Ibid, pages 28 – 31.

39. He was first dealt with in the District Court in 1989 for the offences of attempted false pretences and building breaking and felony for which he received concurrent sentences of imprisonment of eight months and 10 months respectively. Between 1989 and 2014 the Applicant was sentenced to terms of imprisonment on 13 separate occasions. Those offences resulting in imprisonment, together with a breach of recognizance, were contained in a table referred to in the decision of the Tribunal dated 15 September 2017 which is duplicated below:[12]

    [12] GVSW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1543.

Court	Court date	Offence	Court result
District Court of SA	4 Sept 1989	Attempted false pretences and building breaking and larceny	Imprisonment 10 months concurrent
District Court of SA	10 Nov 1989	Forgery and uttering	Head sentence: imprisonment 30 months
District Court of SA	22 Feb 1991	Building breaking and felony, receiving, larceny, unlawful possession	Head sentence: 59 months 16 days imprisonment
Holden Hill Magistrates Court	29 Jan 1992	Building breaking and felony	Imprisonment 18 months
Adelaide Magistrates Court	9 Dec 1993	Larceny, false pretences and fraud	Head sentence: 6 years 1 month 3 days
Adelaide Magistrates Court	11 Oct 1995	Larceny	Imprisonment 6 weeks
Supreme Court of South Australia	15 Dec 1995	Larceny	Imprisonment 4 weeks
Supreme Court of SA	11 Mar 1996	Unlawful possession, false pretences, receiving and break and enter building and commit offence	Head sentence: 6 years 9 months 5 days imprisonment
Holden Hill Magistrates Court	3 Jun 2004	Common assault	Imprisonment 12 days
Elizabeth Magistrates Court	23 Aug 2004	False pretences	Imprisonment 7 months
Hay Local Court	8 Jul 2008	Supply cannabis of commercial quantity	Imprisonment 18 months
Adelaide District Court	5 Mar 2010	Attempt/trafficking controlled drugs	Imprisonment 2 years
Adelaide District Court	28 Jan 2014	Breach of recognizance	Imprisonment 1 year 8 months
District Court of SA	28 Jan 2014	Cultivate a controlled plant, possess prescribed equipment and Interfere with electricity meter	Imprisonment 2 years

1. The Applicant described his offender history as embarrassing but said he cannot travel back in time. He said he cannot erase it; that it is terrible, and he confirmed the contents of his statement dated 10 July 2017[13] where he stated that he took full responsibility for his criminal conduct which began in 1989 and concluded in 2011. In that statement he wrote:

   I have gained appreciable insight and accept my criminal conduct has had a profound impact on my family, friends and community in general. I am under no illusion about that.

   I have demonstrated not merely with words but with actions that I have finally come to my senses to change my life.

   [13] Exhibit B, Consolidated Bundle of Documents Volume 2, pages 755 – 763. 

2. The Applicant referred to his sentence of imprisonment dated 5 March 2010, where he was sentenced to imprisonment for two years but was ultimately released after serving nine months, having entered into a two-year good behaviour bond. That offence related to possession and attempted trafficking in marijuana. The Applicant said that, upon his release from custody, he had nowhere to go and returned to reside with people who he knew. Marijuana was being cultivated at that house. This, he said, contributed to his subsequent offending because he had no place of his own.

3. His last offending occurred in 2011 and related to the marijuana being cultivated in that house. It was also the year he met RG.

4. In the decision of the Tribunal dated 15 September 2017, the Tribunal detailed the Applicant’s offender history after he moved out of home and dropped out of school. That decision helpfully reads as follows and there is no dispute about that aspect of the decision:

   THE OFFENDING

   Over the next few years, the Applicant lived in boarding houses and at various addresses. He started to gamble and commenced a life of crime, the details of which are set out on his National Police Certificate. Between September 1989 and December 1995, he was convicted multiple offences of dishonesty including larceny, forgery, false pretences, fraud, building break and felony. He received a number of sentences of imprisonment to be served.

   In March of 1996, he was convicted in the Supreme Court of South Australia for numerous offences including unlawful possession, false pretences, receiving, breaking and entering a building. He received a head sentence of six years, nine months and five days imprisonment. There were numerous driving offences between 2003 and 2007. On 3 June 2004, in Holden Hill Magistrates Court he was convicted of common assault and imprisoned for twelve days together with a community service order for 18 months. This would appear to be the only offence involving some violence, although the Applicant gave evidence that he was acting in self-defence.

   The next chapter of the Applicant’s offending can be found in the sentencing remarks of Judge Muecke of the District Court of South Australia on 5 March 2010, after a jury had found him guilty of attempting to traffic in a controlled drug on Monday 23 November 2009. The Applicant was apprehended by police at the Adelaide Airport on 12 January 2007 carrying a suitcase holding cannabis with a value of between $21,000 and $35,000. He was arrested and granted bail. Prior to facing trial for this offence, the Applicant was stopped in country New South Wales on 12 January 2008 and found with 5 kilograms of cannabis. He was charged and convicted of supplying a commercial quantity of cannabis and sentenced to a term of imprisonment of twelve months. Part way through the trial relating to the Adelaide airport offence, the Applicant pleaded guilty. Judge Muecke said in his sentencing remarks:

   ...I am satisfied that you probably carried drugs to Townsville and Sydney the year before. I cannot therefore sentence you for this offending on the basis that it is an isolated drug offending by you.

   Judge Muecke referred to reports from a psychologist, Mr Maroulis, and from a psychiatrist, Dr David Kutlaca, finding that the Applicant was depressed prior to the incident in January 2007. The Judge also referred to a positive report dated 14 December 2009 from an organisation called “Exist in Harmony”.

   The Applicant was sentenced to a term of imprisonment for two years and eight months which reflected his guilty plea. The Judge ordered that he be released after serving nine months of that sentence and upon him entering into a recognisance in the sum of $750 to be of good behaviour for two years. The Applicant was warned by Judge Muecke in his sentencing remarks as follows:

   ...you are required to sign a recognisance and an order. I have explained what the terms of imprisonment are and that you will be released after nine months provided you sign this recognisance. The consequences that may follow if you fail to comply with the conditions of the bond is that you may have to serve the full term of my sentence of imprisonment of two years and five months.

   The Applicant appealed against this sentence on various grounds including on the ground that the sentence was manifestly excessive. The Court of Criminal Appeal noted:

   The appellant is now 40 years old. As previously noted, he has a very poor criminal history, and committed a further drug offence in January 2008. These matters suggest that both personal and general deterrence are particularly important in his case. The drug trade is able to continue because the appellant, and people like him, have been willing, for the purposes of financial gain, to run the risk of detection. This makes considerations of general deterrence important.

   On 30 June 2010 the Court of Appeal found that the sentence was not manifestly excessive and was in fact “an appropriate sentence”.

   The Applicant was released from prison in December 2010 and, in the following year, he failed to comply with the recognisance release order that he had signed on 5 March 2010. This final chapter of the Applicant’s offending can be found in the sentencing remarks of Judge Muscat in the District Court of South Australia on 28 January 2014.

   The failure to comply with the recognisance and the specific warning given by Judge Muecke in his sentencing remarks relates to the Applicant committing an offence of hydroponically cultivating 18 cannabis plants and intending to sell some or all of the cannabis plants being grown. There were associated charges of possessing equipment in order to facilitate the cultivation of the cannabis plants and interfering with the electricity supply to the premises where the cannabis plants were being grown inside three separate rooms. The Applicant was also charged with unlawful possession because the sum of $3,970 in cash was found which was suspected of being obtained by unlawful purposes, namely the sale of cannabis. The Applicant was arrested on 26 September 2011. The Applicant pleaded not guilty. There was a trial before a Magistrate, and he was found guilty of three offences on 10 December 2012. The Applicant then appealed against the convictions, which was dismissed by the Supreme Court on 5 June 2013.

   Judge Muscat said in his sentencing remarks:

   ... I am satisfied beyond reasonable doubt that the cultivation you were convicted of was an obvious commercial enterprise, your role being to guard the crop as well as the equipment. You had been doing so for several months, as found by the magistrate.

   That role does not diminish the seriousness of your offending, particularly in light of your previous history of serious drug offences and the fact that these offences were committed by you in clear breach of your release upon the recognisance you signed in this court.

   You found yourself residing at that house after you needed somewhere to live following a falling out with your father not long after you were released from prison upon the Commonwealth recognisance. That was a very poor choice on your part. You were prepared, it seems, to take the risk associated with your involvement in a commercial enterprise in cannabis.

   Later in his remarks Judge Muscat said:

   In my view, you have reverted to criminal behaviour of a similar nature to that which you were released upon the recognisance, although perhaps not to the same extent.

   The Applicant commenced his final term of imprisonment from 28 January 2014. He was released from prison and placed in Immigration detention on 28 September 2015. The Applicant is currently in detention on Christmas Island.

   The Applicant’s de facto relationship and the birth of his son LB

5. The Applicant said he had one biological son LB born in March 1999. LB has high performing autism. The Applicant was in a relationship with LB’s mother TP from approximately 1996 and they found some periods of happiness during which the Applicant did not offend.

6. The Applicant had a second work accident in about 1999 which had a profound effect upon him. He was performing “form work” in the construction industry when he fell under a 90kg load and was injured. He suffered back, head, shoulder and knee injuries, and thereafter had mental health issues. His psychological issues left him unable to perform work around the house, tension developed in the relationship and the Applicant moved out to his father’s house.

7. The Applicant referred to a letter from Ms TP dated 29 November 2011[14] in which she said that she had known the Applicant for 14 years and that they had been in a de facto relationship for eight years during which time their son LB was born. She said their de facto relationship was “mostly good” until the Applicant suffered a second work-related injury from which he was physically and mentally unwell. The Applicant became depressed, moody and felt worthless. The Applicant subsequently moved out of their home and returned to his parents’ house to remain close to LB.

   [14] Exhibit A, Consolidated Bundle of Documents Volume 1, page 96.

8. Ms TP referred to her difficulty as the primary care provider for LB because he suffered from autism and she needed the Applicant’s help, which he provided. At that time, LB spoke of committing suicide. LB caused her enormous stress, particularly during occasions of his depression. He disliked socialising with others, suffered antisocial behaviour, and was not wanting to attend school or play sport.

9. The Applicant said that after his release from a short prison sentence, LB was on medication and had stopped going to school. His presentation shocked him, and he was overweight. The Applicant then took LB into his care and played a significant role in improving his wellbeing. He said that RG also had two sons who engaged with LB and all of the boys enjoyed a good relationship.

10. The Applicant said his relationship with LB was very good. He last saw him in 2015 at the Port Augusta prison. They knew that the Applicant was to transfer into immigration detention and RG brought him up to visit the Applicant. The Applicant said he had missed so many of LB’s achievements and he is very proud of LB.

    The Applicant’s relationship with RG and her sons, LH and JH

11. The Applicant’s relationship with RG and her two sons, LH and JH, which commenced in 2011, developed rapidly. At the start the boys were aged approximately eight years and five years respectively. Initially, the Applicant was dealing with his own issues and was not prepared to let RG into his life. He said RG was able to look up his antecedent history and was satisfied that he did not present a danger to her and her two sons. The relationship developed and was very good.

12. The Applicant said that RG’s boys had a difficult upbringing with a violent father. At first, LH was not accepting of their relationship. In respect of JH, the Applicant encouraged him to engage in sports rather than computer games. The boys were company for LB. They soon developed into a loving family and the Applicant played a parental role to RG’s sons.

13. The Applicant’s last criminal offence was committed in 2011 from which time he was on bail until dealt with by the District Court on 28 January 2014. He was then dealt with for breaching his good behaviour bond in relation to the sentence of 5 March 2010, having pleaded guilty to the offence of cultivating marijuana and related offences. During that time on bail, the Applicant’s relationship with RG, her two sons and LB developed significantly. He described it as a very blissful time and something very special. He described the acceptance and real love that they all had for each other.

14. Following the development of the relationship, the Applicant cut all ties with his former associates. After RG came into his life, he became part of her family, had a close relationship with her sisters and felt accepted. They knew of his criminal offending and did not hold it against him because they could see the love that he and RG had for each other.

15. After he was sentenced to imprisonment in January 2014, RG and the boys visited him at least once a week. He spent most of his time in custody in Port Augusta Prison.

16. The Applicant, RG and her youngest son JH now reside in the Netherlands and have done so since in or about October 2018. The Applicant said that he has always had a good and close relationship with JH, however, in or about May 2020 behavioural issues developed. JH was extremely underweight and suffered from hypersensitivity including to food. School had just resumed and, following reports of potential COVID 19 infection, they were under quarantine.

17. JH had a number of issues that the Applicant and RG were trying to work through. As a result, he was placed in foster care for 28 days until 31 May 2020. After that, JH insisted that he did not want to return home full-time and they were able to obtain a placement in council housing which was a facility to look after children with special needs. He spent the majority of the six-week summer break with the Applicant and RG and they are now talking of his return home on a full-time basis. It is intended JH will remain in the current accommodation until they understand the cause of his problems. The current accommodation is made up of about half a dozen houses in a row in which children of different age groups reside.

18. Paragraphs 37 and 38 of the Tribunal decision dated 15 September 2017 were read to the Applicant. Those paragraphs read as follows:

    The youngest son of Ms H

    Ms H’s younger son was born in 2005. He wrote a letter in support of the applicant dated 11 July 2017 together with an earlier undated letter. In his letter dated 11 July 2017 the younger son said:

    [The Applicant] has helped me to be open and not defensive all the time. Ever since my dad left, it felt like I never had a father because he did horrible things to us.
    ...

    [The Applicant] helped me with my anxiety by helping me talk about the challenges I had to face.

    …

    [The Applicant] listens to me and makes me feel better and happy about myself. He makes me laugh and smile.

    [The Applicant] should be able to live in Australia with us because he gives me hope and makes things brighter. He cheers me up, he makes me not think about the bad things in my life. Although he is not my biological dad, he is a father to me. ...

    In his oral testimony the younger son spoke affectionately about the applicant and how he calls him “best buddy”. He said that he considers him like a father figure and is upset when he is away.

19. The Applicant said that those paragraphs accurately recorded the close and loving relationship that he enjoyed with JH and when he spoke those words to the Tribunal at the First Hearing, it was a true description of their relationship. However, the Applicant’s detention was a great disruption. The time they had spent together was suddenly cut off and coming to the Netherlands had been an upheaval for JH.

20. Insofar as JH said “[the Applicant] helped me with my anxiety”, the Applicant explained that he was referring to things that JH witnessed with his father’s violence which had an awful effect upon him and JH was referring to the support the Applicant had given him.

21. The Applicant said that, from his arrival in the Netherlands and until the commencement of JH’s troubles, their relationship was excellent, and the Applicant did everything he could for JH. Yet it was difficult for JH, particularly with the new language, and his problems were a combination of a number of events including not feeling accepted, no one wanting to interact with him and thereafter all he wanted to do was play on his computer. It was during this time that JH had contact with his father on the internet, looking for a way to go back to Australia. When his father was not obliging that created a further problem.

22. The Applicant said that there is no conflict between he and JH. He encouraged him to go to school and to learn the language, but JH felt unaccepted and he has continued with language difficulties.

23. The Applicant said that he has told RG and LH to go back to Australia. He became distressed and cried when giving evidence. He said, “these people are hurting because of me”, “I can’t watch this” and “it’s heartbreaking”. He said RG has taken steps to return to Australia with JH and said that JH deserves to return to Australia. RG has approached the Australian Embassy and sought exemption from quarantine obligations, but the airfares are currently 4 to 5 times the normal price for one-way tickets to Australia.

24. RG’s employment is ending, and it will be difficult financially for them. The Applicant has been recently trying to get work but has to date been unsuccessful. He does not speak the language and has no qualifications. The last job he applied for was unsuccessful because he did not have a valid driver’s licence. He is not entitled to government assistance.

25. Because of Brexit and the United Kingdom’s departure from the EU, RG was invited by letter dated 13 July 2020 to apply for residence documents and, if granted, both she and the Applicant will likely be granted residence permits, which would allow them  to remain in the Netherlands[15]. However, if RG and JH return to Australia, then the Applicant will not be able to remain in the Netherlands and the only place to which he could return is Bosnia and Herzegovina where he has no friends and no family and does not know what will happen to him should he return. He currently enjoys the privilege of living in the Netherlands because of RG.

    [15] Exhibit AF, Letter from Dutch Government, together with English translation.

26. The Applicant was referred to the Refugee Review Tribunal decision of 20 August 2001 which found that the Applicant was a person to whom Australia owed protection obligations under the Refugee Convention. He was directed to the following passage under the heading, ‘Finding and Reasons’ which relevantly reads:[16]

    [16] Exhibit A, Consolidated Bundle of Documents Volume 1, pages 216 -217.

    The applicant is from Mostar and the Tribunal notes that this area of the country is an area populated by Muslims and Croatians. The applicant is ethnically a Serb. The Tribunal considered the country information above and notes that whilst there have been some returns of Serbs to this area these would most probably be older people of no threat to other ethnic groups. The applicant being a young man will not be considered in this category. The Tribunal finds on the basis of the above country information that there is a real chance the applicant will face harm serious enough to amount to persecution because of his ethnicity should he now return to Mostar. As a result in relation to Mostar the applicant has a well-founded fear of persecution because of his ethnicity and therefore for a Convention reason.

    Relocation

    It is also necessary for the Tribunal to consider whether the applicant can relocate to another part of the country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1.

    However, this principle only applies to people who can genuinely access domestic protection; and for whom the reality of protection is meaningful. If relocation is not a reasonable option in the particular circumstances, it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded: Randhawa per Black CJ at 442-3, Beaumont J at 450-1.

    Also, under the heading ‘Relocation’[17]:  

    The question then that the Tribunal has to consider is whether relocation is a reasonable option. As the country is in effect divided into the Muslim-Croat Federation and the Serb Republic (Republika Srpska) (RS) the obvious area for relocation is the Reublika Srpska. The Muslim-Croat Federation is not a reasonable option in the Tribunal’s view as there the applicant would, in addition to the relocation problems discussed below, face similar problems to those he faces in Mostar.

    In regard to relocating to the Republika Srpska, the Tribunal accepts the applicant’s evidence and that of his father that his ability to speak Serbian has slipped since his arrival in Australia. He arrived here at the age of sixteen and has not returned in the last fifteen years. It appears he speaks to his father in Serbian but often has to use English words. It would seem reasonable that his grasp of the Serbian language has slipped and that he does intersperse speaking in Serbian with English words.

    The Tribunal also accepts that the applicant has a back injury and that whilst he may like to continue working in the building industry this might be difficult. His injury would in any event appear to have been sufficiently serious to curtail his employment opportunities. The Tribunal notes the country information above that unemployment is high in all of Bosna-Herzegovina and that the reports would tend to suggest that the economic situation in Republika Srpska is worse than in the Muslim-Croat Federation.

    …

    The Tribunal finds that the applicant has a well-founded fear of persecution because of his Serbian ethnicity in relation to Mostar in Bosnia Herzegovina and that it is not reasonable for him to relocate to another part of the country. The Tribunal finds that the applicant has a well-founded fear of persecution because of his Serbian ethnicity which brings him within either the Convention grounds of race or particular social group.

    [17] Ibid, pages 217 – 218.

1. The Applicant maintains those findings are equally applicable now and that he still has a well-founded fear of persecution because of his Serbian ethnicity. He said his language skills have slipped even further and he now speaks to his father more in English. He also maintains, as the Refugee Review Tribunal found, he would continue to have difficulty finding accommodation, that he has no relatives in the Republika Srpska, or Bosnia and Herzegovina, and that unemployment is still high being approximately 44 – 47%. He said no one will provide work to him in a Muslim area.  When living in Australia he was on the disability support pension.

2. The Applicant maintains he is a refugee and, if he knew then what he knows now, he would have elected to have stayed in the detention centre on Christmas Island. When he was on Christmas Island, he made the decision that he wanted to taste freedom again and he did not predict what would happen when they moved to the Netherlands. He said his decision was then made “under extreme duress”.

3. The Applicant was referred to the International Treaties Obligations Assessment (ITOA) dated 20 December 2016 published prior to the Applicant’s return to Bosnia and Herzegovina[18]. The Applicant rejected the findings of the ITOA.

   [18] Exhibit A, Consolidated Bundle of Documents Volume 1, pages 274 – 292.

4. The Applicant was asked if he knew why he had to sign the voluntary deportation order. He speculated that it was because he was stateless. Then, in reference to the response to the ITOA dated 30 October 2016[19], the Applicant said that following his arrival in Bosnia and Herzegovina after being deported, he was advised he was not permitted to remain in Serbia and that he would have to return to Bosnia and Herzegovina.

   [19] Ibid, pages 269 – 271.

5. When asked to comment on the impact his visa cancellation would have upon his biological son LB, the Applicant explained that he knows that the long periods of separation have had an impact on his son. His son listens to the Applicant and absorbs and respects the advice the Applicant gives him. They are both hurting because of their separation and both think about it all the time. The Applicant is proud of what LB has achieved and has spent countless hours supporting him and keeping him positive. LB is due to finish his apprenticeship and the Applicant continues, even from a distance, to provide positive feedback and support on occasions when LB has a slump.

6. The Applicant reiterated that he will not reoffend. He said he is not proud of his past and has strived to be a better person and compliant with the laws of Australia. He has not offended since 2011. He has now reached an age where he has matured and, given what his wife has been through, for him to reoffend again would be a disaster. His gambling was the main cause of his earlier offending. Another root cause was the people in the drug business with whom he associated. Those influences have been eliminated from his life completely.

7. The Applicant said he wanted his life back with a home, love and support in Australia and he has no need to return to his former criminal activity. His wife and their family love him unconditionally. No other woman would leave an Australian job and sacrifice what she has sacrificed to save his life and the thought of reoffending is now the furthest thing from his mind. He detailed various housing opportunities that are available should he return to Australia.

8. In cross-examination, the Applicant said that his father migrated to Australia in the 1960s. His father was meant to send for his mother but that did not occur.

9. The Applicant does not know the whereabouts of the uncle with whom he resided when he started school. He knows that some family members were killed during the Civil War. He does not know the whereabouts of any relatives including his half siblings. He did not try and contact them when he returned to the Republic of Srpska and has no desire to do so.

10. The Applicant accepted he had a long history of criminal offending of just over 20 years. When asked to explain that history he said, shortly after his arrival in Australia he had difficulty adjusting. He had previously met his father when he was eight years of age but had no recollection of him and bridging the gap with him was difficult. He received no guidance from his father and was forced to leave the home at an early age, entering into boarding accommodation with people from all walks of life who were using drugs and alcohol.

11. The Applicant said that on his second day in Australia he was introduced to gambling at the casino and, because of that gambling, the break and enter offending began. Further, those who were using drugs at the boarding house committed break and enter offences to fund their drug use and food expenses. It was against that background that he was dealt with in September 1989 for his criminal offending when he was aged approximately 18 years. He was not granted bail but remained in custody following his arrest until sentenced to imprisonment.

12. In November 1989, he was convicted for charges of forgery which he believed had to do with the use of credit cards. He had issues with gambling which developed into a serious problem that remained with him over many years. He described it as a disease. It was a vicious cycle of when he had money, he would go to the casino and hope to win, and then when he did not have money to live and pay rent, he would commit offences. He would spend all his earnings at the casino and then stole money to fund his daily needs. His dishonesty offences all related to his gambling addiction.

13. In relation to his sentence on 22 February 1991 and thereafter, he said that when on parole he would reoffend, and that imprisonment and parole did not a deter him from his gambling addiction.

14. The Applicant was referred to a warning he received from the Minister in March 1993. He said he received a number of warnings. The Applicant said the 1993 warning that stated he would be liable for deportation had no effect on him. He agreed two months later he was arrested for numerous dishonesty offences which he said related to credit card offending. He was given a sentence of imprisonment of 6 years. He was released on parole after 18 months with a condition that he did not go to the casino. He breached that condition on many occasions. He said that was “my disease”.

15. The Applicant said that although he sought counselling, he would return to the casino. He continued to offend and in 1996 he received another sentence of imprisonment of 6 years and 9 months for numerous dishonesty offences. He had counselling in prison and when released on parole he went to live with his father.

16. The Applicant agreed that on 6 April 1998 he was issued with a Deportation Order in relation to which he sought review and was successful. He was referred to the decision of Deputy President Burns of the Administrative Appeals Tribunal dated 6 September 1999, in which he said he had a level of financial responsibility and that he had totally abstained from gambling since his release from custody[20]. The Tribunal said, “[t]hese factors would indicate a significant degree of rehabilitation already achieved and also point to the good prospects of him continuing along that path.”

    [20] Ibid, pages 71 – 99.

17. The Applicant said he was doing very well at that stage but in 1999 he had a serious work accident. However, the Applicant was referred to further offending on 2 June 1998, after he was issued with the deportation order. On that occasion he was observed acting suspiciously at certain premises and, when confronted by a person, the Applicant lied and said he was a police officer.

18. After the offence of impersonating a police officer for which he was convicted without penalty on 21 October 1998, the Applicant’s visa was cancelled on 11 October 2000. The Applicant was placed in immigration detention where he remained for 18 months. He sought a review of the cancellation of his visa and was eventually granted a protection visa in March 2002.

19. The Applicant was asked about two offences of common assault for which he was sentenced in June and July 2004. He said the offence occurred in August 2002 when he arrived at his former partner’s house and an incident occurred with a male person who was leaving the home. He said he intervened when the male was seen to act inappropriately towards his partner. The male left and returned with a ‘car lock’ and approached the Applicant. The Applicant gave him a karate kick.

20. The Applicant was asked about the contents of a police apprehension report which alleged that on 1 September 2002 and thereafter he committed a number of offences, including stealing items and then returning them requesting a refund. One such incident occurred at Bunnings. He said he could not recall the offence, albeit it was possible that it occurred. He said following his accident in 1999 he suffered trauma, and this may explain his lack of memory. The Tribunal notes that there is no reference in the National Police Certificate for what appears to be that offending to which the Applicant was referred.

21. The Applicant was referred to an incident that occurred when he was a taxi driver. An incident occurred with another motor vehicle and when they both stopped at some traffic lights, the respective occupants of the vehicle wound down their windows and it was alleged the Applicant spat at the passenger of the other vehicle. The Applicant said he represented himself in court and his version of events differed from what was before the court. He did not agree that he received a sentence of imprisonment of 12 days as referred to in the National Police Certificate. He said he did not return to prison for 10 years, from his sentence commencing 11 March 1996 until sentenced on 8 July 2008 to imprisonment for 18 months for supplying cannabis.

22. The Tribunal notes that the Applicant was sentenced on 23 August 2004 to imprisonment for seven months but was placed on a good behaviour bond for two charges of false pretences.

23. The Applicant was questioned about two alleged incidents involving his former partner which were reported to have occurred on 2 June 2005[21] and 11 March 2006[22]. The Applicant said that the allegations contained in those reports were false and that his former partner was not truthful and made false reports against him. Nonetheless, a restraining order was entered into that they not contact each other which they both breached. The Applicant was asked about other reported incidents including the incidents of 19 October 2011[23], 27 May 2012[24], 26 June 2012[25], and on 5 February 2014 when the Applicant’s former partner made an application to vary an intervention order because of his behaviour.[26] In relation to that antecedent history, the Applicant detailed the volatile nature of their relationship and separation and in particular that his former partner did not want him to come around to her home unannounced. Nonetheless, when she required his support, including to assist with their son LB, he was always there for both of them.

    [21] Exhibit B, Consolidated Bundle of Documents Volume 2, page 567.

    [22] Ibid, pages 581 – 582.

    [23] Ibid, page 657.

    [24] Ibid, page 665.

    [25] Ibid, page 668.

    [26] Ibid, page 672 – 673.

24. The Applicant was cross-examined about his later drug-related convictions. He said that he was arrested on 12 January 2007 while attempting to traffic cannabis when he was detected by customs dogs at the airport. He had 10 bags of cannabis and he was caught by a police operation. He entered into a bail agreement not to leave the state, but on 12 January 2008 was caught in New South Wales with 11 bags of cannabis weighing 5 kg. For the 2007 offence, he was sentenced on 5 March 2010 to two years of imprisonment to be released after serving eight months, after which he was placed on a bond to be of good behaviour for two years. Council referred the Applicant to the sentencing remarks of His Honour Judge Muecke dated 5 March 2010. His Honour found that the Applicant’s offending was not isolated. He was sentenced on 8 July 2008 for supplying cannabis and was sentenced to imprisonment for 18 months.

25. The Applicant acknowledged that he received another formal counselling letter dated 4 September 2008.[27] The letter was to warn him that no active consideration was being given to the cancellation of his Class XA Subclass 866 Protection visa, but the purpose of the letter was to warn him that further criminal convictions could result in a fresh consideration of his visa cancellation.

    [27] Exhibit A, Consolidated Bundle of Documents Volume 1, pages 148-149.

26. The Applicant admitted that he committed an offence of dishonesty for which he was sentenced on 12 January 2009 when he did not return a rented trailer.

27. The Applicant said that he was released from prison in about December 2010 and thereafter he was able to stay with his father on occasions, but his principal place of residence was at the home of the brother of his drug associates. Cannabis was growing in two rooms of that home. The Applicant pleaded not guilty to drug cultivation and related offences. He said that he pleaded not guilty because he was living there but others were responsible. He was nonetheless found guilty at trial before a magistrate. On 28 January 2014, he was sentenced for that offending by His Honour Judge Muscat of the District Court of South Australia, to two years imprisonment with a non-parole period of nine months.

28. The Applicant said in cross-examination that he was released from custody in about September 2015 and then immediately placed into immigration detention. He was cross-examined about an alleged incident in detention on 6 May 2016[28], in which it was alleged that he was aggressive when speaking to a Serco Officer. The Applicant denied the allegation. He said that Serco officers were violent towards detainees on a daily basis. Those officers would choke detainees.

    [28] Exhibit B, Consolidated Bundle of Documents Volume 2, page 747.

29. The Applicant elaborated on the period he spent in Bosnia and Herzegovina following his deportation. On the first evening, he telephoned his father who acted quickly to arrange alternate accommodation with a friend or distant cousin, D. The Applicant lived with D between March and October 2018 until he travelled to the Netherlands. D was very welcoming. The Applicant helped D around his house and property, and he gave D money.

30. D helped the Applicant obtain his birth certificate.

31. RG arrived in Bosnia and Herzegovina on 9 May 2018. She stayed for two weeks and together they went to Mostar where they married. D attended the wedding. It was before a marriage celebrant.

32. The Applicant’s father sent the Applicant money from Australia. His father arrived in late May 2018, just after RG returned to Australia. He stayed until late September 2018. His father also assisted D by providing money.

33. The Applicant said that Serbs dominate the population of Nevesinje, and he did not feel unsafe there. However, the Applicant rejected Counsel’s proposition that he had a social network there. He said that he was in a village of people aged in their 70s – 80s. He agreed that he had not been threatened or harmed whilst living in that area. He now lives in Alkmar in the Netherlands.

34. The Applicant detailed his attempts to obtain employment in the Netherlands, but his problem is his lack of language and that, particularly in factories, there is a safety concern. He said you need to speak Dutch. He does not have skills in information technology and, in his experience, nationals of the Netherlands who speak the language get priority for job vacancies. He has been reliant on RG having employment.

35. In respect of the invitation to RG to apply for resident documents, he explained that his right to remain in the Netherlands was dependent on her residence status. If she is granted residence, which he expects will occur, he will automatically be entitled to residency as her spouse, but he does not know what will happen if she returns to Australia. He cannot make those enquiries. RG must do so as she is the one who received the invitation.

36. In relation to his future residence, should he be required to leave the Netherlands, he said he could not stay in the Republic of Srpska for more than three months. Only Serbian people are allowed to live there, and you need Serbian documents which the Applicant said he could not obtain. He cannot legally work there and cannot register to live there. The Applicant said he considered himself a refugee and, when asked why he could not seek asylum in the Netherlands, he said he had not looked into that. In any event, he could not live in the Netherlands without money. He could not live in his city of birth, Mostar as he is an outsider and, if he returned to live there, he will be persecuted and set upon. He has not lived in Bosnia and Herzegovina and has only lived in the Republic of Srpska.

37. In re-examination, and in reference to the sentence of 3 June 2004 for common assault resulting in imprisonment for 12 days, the Applicant was referred to the police apprehension report[29] which details his sentence, namely, to perform 12 days of community service within 18 months. There was no reference to imprisonment. The Applicant said he performed that community service.

    [29] Exhibit B, Consolidated Bundle of Documents, Volume 2, page 688.

38. The Applicant said that his father was born in Nevesinje which was 45 minutes north of Mostar. His father’s friend D made enquiries and tried to register the Applicant as a resident but determined that the Applicant could not work or live there.

39. In respect of his grandmother’s village where he lived as a child, the population was approximately 20 people, and the village has since been wiped out and no one is there anymore. He does not know the whereabouts of any relatives. He learnt of his mother’s death through Serbian family living in Adelaide that came from the same suburb in Mostar.

40. The Applicant said that he had not applied for residence in Serbia which he thought could take a long time with no guarantee of approval. He expressed the opinion that, in his belief, he could not pursue this because of the finding of the ITOA which was binding on Serbian authorities.

41. The Applicant was referred to his cross-examination and the allegations by his former partner of violence, which he said were false. He was asked, in those circumstances, why the Tribunal should have regard to her letter of support written in 2011. The Applicant referred to an email dated Tuesday 9 February 2016[30] Footnote G Documents Volume 1 page 254 in which the former partner, wrote to the Tribunal noting that the Applicant was in detention at Christmas Island and raising difficulties she was having in caring for LB. She needed the Applicant to take over a parenting role, that LB listens to the Applicant. She asked that the communication be forwarded to the Department of Immigration and inquired whether there was any way the Applicant could stay in Australia to father his child. Otherwise she may have to have their son removed from her home.

    [30] Exhibit A, Consolidated Bundle of Documents Volume 1, page 254.

42. The Applicant said that the situation was then very dire and that he had to step in and speak to his son. LB listened to the Applicant who still had an influence over him. He maintained communication by telephone and social media. He denied that he was ever violent towards his former partner. He added that he does not hit women and has never assaulted a woman.

    Evidence of RG (the Applicant’s wife)

43. RG said that she was born in Cardiff, United Kingdom and immigrated to Australia in 1977 when she was three years of age. She is a citizen of Australia and the United Kingdom. She has been employed in various government positions, both state and federal. She lived for a time in New South Wales and she returned to South Australia when her first son was aged about 2 to 3 years.

1. RG provided a number of handwritten statements. In a handwritten statement dated 19 June 2015[31], by which time she had been a relationship with the Applicant for 4½ years, she said that she had been the victim of domestic violence in her previous marriage which had been witnessed by her two sons. She detailed the impact that violence had upon her and her sons, and the positive impact that the Applicant has had upon them over the course of their relationship, and the loving relationship that she and her sons enjoyed with him. She also detailed the strong parental relationship the Applicant had with his then 16-year-old son LB.

   [31] Ibid, pages 162-165.

2. RG referred in that statement to the regular contact she, her children and her parents had with the Applicant whilst in custody and the support they intend to give him in the future. She spoke of the significant impact his deportation would have on them, noting this statement was prepared prior to the First Hearing before the Tribunal.

3. In evidence before the Tribunal, RG said that she and the Applicant had been together since 2011 and married in 2018. They are committed to each other. She, the Applicant and their respective children are a family.  

4. She confirmed that her eldest son did not want to travel to the Netherlands and remained in Australia and lived with her parents. He was then approximately 19 years of age. He had a good social network and he said his life was in Australia. He wanted RG to be happy. JH wanted to go to the Netherlands. He loved the Applicant and wanted to be with him. She and JH flew to the Netherlands arriving 12 October 2018 and the Applicant joined them the following day. Since then they have lived together in the Netherlands until JH went into foster care. He is to have a gradual return to their home.

5. RG referred to her written statement dated 11 July 2017[32] prepared in anticipation of the First Hearing. She detailed the relationship with the Applicant, their history together as a family, including family holidays, the parental relationship the Applicant had with her two sons, various photographs of the family members and expressed the importance of the Applicant remaining in Australia. Her evidence was consistent with the Applicant’s evidence in detailing the loving family relationship they all enjoyed.

   [32] Exhibit B, Consolidated Bundle of Documents, Volume 2, pages 771-775. 

6. RG detailed the abuse she endured in her first marriage, the impact it had on her and her sons, which I will not here detail. This evidence was not in dispute and the Tribunal accepts RGs evidence. But she also said that since the Applicant came into their lives, he has performed a parental role to her sons.

7. RG was referred to the handwritten statement of JH dated 11 July 2017, prepared in anticipation of the First Hearing when the Applicant was in immigration detention on Christmas Island. JH was then 12 years of age. He detailed the important role that the Applicant played in his life, the strong and loving relationship, and the devastation he would experience should the Applicant be deported. He said, “He is like a father to me.” The thought of not seeing him again would be overwhelming.

8. Despite the Applicant being in immigration detention, RG and her sons communicated regularly including by exchange of Christmas and birthday cards and telephone conversations approximately once a week. The Tribunal received copies of various communications[33]. JH described the Applicant as his hero and best buddy.

   [33] Exhibit A, Consolidated Bundle of Documents, Volume 1, pages 379-389.

9. RG detailed the development of her relationship with the Applicant from 2011 to date. She did not become aware of his criminal record until later in 2011, at which time the Applicant opened up and detailed his criminal history and his personal history, including as a youth. She is aware of and has seen his complete criminal record and knows that he is not a violent person.

10. RG referred to various photographs, including a holiday to Queensland in 2012. She said they were a family and referred to the Applicant’s support given to her and her sons when they had health issues and were hospitalised.

11. Following the Applicant being sentenced to imprisonment in 2014, RG and her sons saw him regularly at both Murray Bridge and Port Augusta prisons. RG’s parents also visited him in both prisons.

12. RG was referred to the original Tribunal decision and the impact this had on her and her sons. Both boys had difficulty understanding and coming to terms with the decision. It also impacted upon her parents. RG was referred to her letter dated 11 July 2017 and, in particular, the last two paragraphs[34] wherein she again referred to them as a family. After the Applicant went into immigration detention, they maintained communication and sent letters and parcels. When he was transferred to Christmas Island it became more difficult to communicate including by telephone. There was a time delay with mail or parcels being sent.

    [34] Exhibit B, Consolidated Bundle of Documents, Volume 2, page 775.

13. RG said that, following the 2017 Tribunal decision, she continued to support the Applicant and told him she would find somewhere for them to live together should he be deported.

14. In relation to the Notice of Filing and affidavit of the Applicant, together with the annexure titled ‘Request for Removal from Australia’[35], RG said that at that time she remembered the riots on Christmas Island. She said to the Applicant that he should not stay, and it would kill him. She could hear in the background a person speak words to the effect of, ‘if you will not be one of us you are one of them’. The riots lasted three days and the Applicant was in hiding. She documented events that were happening, including the Applicant being assaulted because of his refusal to take part in the riots. The Applicant told her what he saw during the riots, she could hear the rioting on the telephone. She told him he had to go back to Bosnia and Herzegovina. She told him that she would find him again.

    [35] Ibid, pages 824 – 831.

15. RG said that the Applicant still suffers from the injury he received when he was hit with a cricket bat for refusing to take part in the riot.

16. RG heard from the Applicant when he arrived in Bosnia and Herzegovina and he told her that he was not welcome there. They maintained contact and she explained to him that he had to leave. With the assistance of the Applicant’s father he was able to find alternate accommodation. She said the Applicant was crying and upset.

17. When the Applicant was in Australia they had spoken of marriage and she took time off to fly to Bosnia and Herzegovina where they were married on 18 May 2018. She had the support of the members of her family. The Applicant was then living in Nevesinje because there was a lot of anger and aggression in Bosnia and Herzegovina between Croatians, Serbians and Bosnian Muslims.

18. RG left Bosnia and Herzegovina on 22 May 2018 and returned to Australia because of her responsibilities to her children. RG was then looking into countries where they could live together. She had a family friends who resided in the Netherlands and, having assessed schooling, healthcare and job opportunities it was decided they would move to the Netherlands. Upon arrival they lived with the family friends and their two children until they located their own accommodation. She said, had they stayed in Bosnia and Herzegovina, the only suitable schooling was at an international school which was too expensive and there was no healthcare or employment. It was not a safe place in which to live and unsuitable for JH. The Netherlands was multicultural.

19. RG was referred to her typed statement dated 19 November 2019[36] in which she wrote:

    I conducted a lot of research in The Netherlands. Taking into account that I am an EU citizen, language, education, employment and living standards. I have family friends who reside in the Netherlands who assisted us when we first arrived.

    She continued to explain that her eldest son did not want to move to the Netherlands, and the decision to move was the hardest decision she has had to make. She reunited with the Applicant when she and JH arrived in the Netherlands on 12 October 2018. Her eldest son LH visited the Netherlands on 10 October 2019.

    [36] Exhibit S.

20. They did consider moving to the United Kingdom but the cost of moving there was prohibitive. They could not afford the required sum to be held in a bank account as a precondition to being granted residence. There was also an issue with the length of time the Applicant could remain in the United Kingdom. In the Netherlands, he could reside there as her spouse and there was no limit on the time he could remain, so long as she resided there too; but if she left, he would have to leave. She sold everything she owned in Australia to travel to the Netherlands

21. After a certain period of time, the Applicant was permitted to work in the Netherlands but initially RG was the sole income earner. She was responsible for the welfare of her family and there were no government benefits. She was responsible for all household expenses, including rent. It was financially difficult.

22. RG worked in a low-paying job and the taxes were high. At the time of the hearing, the Applicant was able to work, however because of the COVID-19 pandemic, everything was at a halt. Brexit was also to occur, and she had to apply for permanent residency because Great Britain was leaving the EU. Her current employment was about to end because of the pandemic, and she was applying for other employment. As for the Applicant, she referred to various positions he had applied for but confirmed that he had limited skills and no language and had not yet secured employment.

23. In relation to issues she and the Applicant had with her son JH and his placement in foster care, RG was referred to various medical and psychiatric reports[37] and, in particular, a report of Child Adolescent Psychiatrist Dr Zutt dated 12 November 2019. He opined that JH was not suffering from a mental disorder, but he had psychological problems. He had become angry about his situation and, although his mood was dysphoric and sad, there were no signs of depression or psychotic disorder. Dr Zutt reported that JH’s eating habits were peculiar and more related to his hypersensitivity. He was eating less as a sign of protest and was reluctant to go to school and participate in normal activities.

    [37] Exhibits V, W and X.

24. Since the time of Dr Zutt’s report, JH’s mental health has regressed. He would not eat or leave his room and he would smash things in his room and speak offensively. On occasion, when RG was working from home, JH said he wanted to kill himself and did not want to remain in the home. As a result, through crisis care, they were able to organise for JH to go into foster care which at first was temporary to 19 May 2020[38]. RG had regular contact with the crisis care team, foster parents and foster care council, and a lady who was also providing help and assistance.

    [38] Exhibit E.

25. RG detailed behavioural issues observed by his foster parents which JH had previously demonstrated at a time when the family had difficulties with JH’s natural father. She referred the Tribunal to a Better Access Mental Health Referral and Treatment Plans dated February 2017[39] and RG’s written statement to the delegate of the Department of Immigration dated 24 February 2017[40], in which she referred to JH, who was then 11 years of age, being on a mental health care plan and the impact his separation from the Applicant was having upon JH and his mental health.

    [39] Exhibit A, Consolidated Bundle of Documents, Volume 1, pages 308 – 312.

    [40] Ibid, page 313.

26. RG said that she believed JH was closer to the Applicant than her and said that he would come downstairs and talk to the Applicant and they would interact, but he would not do so with RG.

27. RG said that she believed JH was missing Australia and wanted to go home. She believed that his current mental health condition was the result of the pressures of the new language, limited friendships and missing their extended family. She said it was not easy surviving in the Netherlands. Although there were happy times when there, RG said that she cannot now cope with the burden that is on her shoulders and does not know that she can continue to live in that way anymore. She is now receiving medical treatment and is on medication and described herself as being at breaking point. She said she really needs help. Her parents know her current distress. She has had to take paid leave from her employment. She described an occasion when she took leave because JH would not come out of his room, not sleep or eat, and a psychologist had to be brought to the house. Sending JH back to Australia alone is not a solution. He has no relationship with his father, her parents are in their 70s and the only option is for RG to return to Australia with JH.

28. RG was also referred to her unsigned statutory declaration, which she confirmed was true and correct and was received by the Tribunal which expanded upon her evidence, and the difficulties she and the Applicant have had to deal with in caring for JH[41]. They are struggling to find normality and JH had lost his way. RG became very distressed when giving evidence.

    [41] Exhibit Q.

29. In cross-examination, RG gave evidence consistent with her evidence-in-chief. She said that JH was 15 years of age in June 2020, and that he had recently said that he wants to return to Australia. She expanded upon the difficulties in caring for JH whilst in the Netherlands. She and the Applicant have had assistance from clinics and JH’s school had been “amazing”. One older teacher has become a mentor. They could not afford to place him in an international school. He struggled with the language and was put into a class that was running 5 to 6 months ahead of his school grade. He was put into a smaller class. JH was taken to a psychologist and psychiatrist, but he now refuses to go.

30. When JH was in foster care, RG had weekly contact with the foster family. They enjoy a good relationship with that family who speak English.

31. She confirmed the contents of the third statement dated 11 July 2017[42], and agreed that the Applicant’s criminal history was poor, but she understood the difficulties he has had in his life, including his dysfunctional upbringing which offered no guidance, support or stability. She has told the Applicant she would not tolerate or condone such conduct in the future and, if he were to return to Australia, she was adamant he would not put their family in jeopardy. She opined that he would not reoffend, that he is not a risk to the Australian community and that he needs to be permitted to return to Australia to enable their family to be together.

    [42] Exhibit B, Consolidated Bundle of Documents, Volume 2, pages 771-775.

32. With RG soon to lose her current employment, they face uncertainty with respect to income. The entitlement to any pension is determinate upon the time they have been employed in the Netherlands, and so it is unlikely she will receive any adequate pension while unemployed. Obtaining employment is difficult, with most job applicants being multilingual, and job positions often requiring fluency in a second language. Her family has provided support in the past and, although they would likely do so in the future, she does not want to ask her parents again for financial support.

33. The Applicant’s father was planning a visit with the Applicant’s son LB which had to be cancelled because of the COVID-19 pandemic. They intended stay to stay for approximately two weeks.

34. RG was cross-examined about her relationship with the Applicant in Australia. She was referred to her letter dated 19 June 2015[43] and confirmed that her sons were withdrawn and moody after her separation from her husband in 2010. She met the Applicant in early 2011, at which time she was still having difficulties with both her sons following the breakdown of her first marriage and the domestic violence. In May 2011, she started to introduce the Applicant to her children and things improved for both boys, particularly after meeting the Applicant’s son LB. She sees the improvement in her sons lives. LB and JH have a close and loving relationship with the Applicant. Although not living together, the Applicant would spend approximately three nights per week at her home and also weekends. That arrangement continued until the Applicant was imprisoned which caused JH difficulty and distress, and he was thereafter under a mental health care plan and the care of a psychologist and received help from the chaplain and guidance support officer at school.

    [43] Exhibit A, Consolidated Bundle of Documents, Volume 1, page 162.

35. RG was also referred to her letter dated 19 May 2016[44], in which she detailed the impact the Applicant’s detention had upon her eldest son. Her relationship with LH became toxic and volatile and she expressed the need for the Applicant’s continuing support. LH was to move in with her parents; she could not cope mentally with the difficulties in that relationship.

    [44] Ibid, pages 266 – 267.

36. RG accepted that there had been problems before moving to the Netherlands which related back to her marriage and the domestic violence, but that the move had considerably exacerbated the situation.

37. RG was referred to a Certificate of Conduct[45], together with the English translation, which was a document similar to the Australian National Police Certificate, which confirmed the Applicant had not committed an offence while living in the Netherlands.

    [45] Exhibit J.

38. RG confirmed the requirement to apply for residency in the Netherlands, which she had done, but when giving evidence did not know if that would be approved.

    Mrs JG (Mother of RG and the Applicant’s mother-in-law)

39. Mrs JG provided statements and letters to the Tribunal on behalf of herself and her husband. She confirmed that her daughter’s previous marriage involved physical abuse which was demoralising for her daughter and both children who were frightened of their father and there was a warrant out for his arrest.

40. She first met the Applicant in March 2011 at her 60^th birthday. Her impression was that he was a lovely man who mixed well with their family and was friendly. His relationship with LH and JH at first was hard and the boys were timid until they got to know him. The relationship improved after a couple of months, after which they all got on very well.

41. Mrs JG said that she became aware of the Applicant’s personal history, including his life in Bosnia and Herzegovina, his travel to Australia at 16 years of age and his criminal history. She visited him when he was in jail and described JH as being “over the moon” when he saw him on that occasion. She described LH as being more laid-back and more cautious having remembered what his father had done in the past.

42. The Applicant’s detention was more devastating for JH than LH. RG subsequently took the boys to Queensland in the hopes of a new life but that did not happen. RG’s father drove them there, and they got an apartment. LH did not enjoy Queensland and subsequently returned to South Australia and lived with Mrs JG and her husband. RG and JH subsequently returned to South Australia. However, the family kept in contact with the Applicant, including when on Christmas Island, by sending postcards and parcels. They all hoped that he would return to them.

43. Mrs JG referred to the disappointment the first decision of the Tribunal had upon the whole of the family. RG was shocked and devastated; she then became depressed, was not eating, she lost her job and came to reside with her and her husband.

44. They initially hoped that RG would not leave Australia.  Nonetheless, RG and the Applicant married with their blessing. She knew RG was returning to Australia with the intention of finding somewhere for them to live. She then hoped that they would move to the United Kingdom. When RG and JH left for the Netherlands, she and her husband felt that part of the family was gone. JH was happy with the move.

1. The Applicant’s evidence was that he made the decision that he “wanted to taste freedom again”. He did not want to stay on Christmas Island and he voluntarily signed the request for removal form. When he was at the airport he had “cold feet” but subsequently decided to leave Australia.

2. The Respondent submitted that this Other Consideration did not apply in the circumstances of the Applicant. A decision by the Tribunal not to revoke the Applicant’s visa cancellation cannot give rise to a breach of Australia’s non-refoulement obligations in circumstances where the Applicant voluntarily returned to Bosnia and Herzegovina in 2018 and is no longer residing in Australia. The Applicant was not expelled or otherwise forced to return to Bosnia and Herzegovina but did so voluntarily.

3. The Respondent referred the Tribunal to the evidence of the ITOA dated 20 December 2016[59] which said that Australia would not be in breach of its non-refoulement obligations if the Applicant were to be returned to Bosnia and Herzegovina. Further, the Respondent submitted that the Applicant had no answer as to why he had not sought asylum in the Netherlands, but referred to the flawed assumption that he was owed protection obligations by Australia which was contrary to both the findings of the ITOA and his voluntary decision to return to Bosnia and Herzegovina.

   [59] Ibid, pages 274 – 293.

   Conclusion: Other Consideration (a)

4. The Applicant made a voluntary decision, evidenced by his signed request for removal form, to leave Australia and be returned to Bosnia and Herzegovina in 2018. He was not under duress or coercion to sign that form which he knew would result in his return to Bosnia and Herzegovina.

5. This was a conscious decision that he and RG made together, following the Christmas Island riots which the Tribunal accepts influenced that decision. It is only now with the benefit of hindsight and the issues that have arisen since RG and JH joined him to reside in the Netherlands, and the distress and upset the Applicant feels for them in consequence of that relocation, that he now regrets the decision to voluntarily return to Bosnia and Herzegovina.

6. Should the Tribunal decide not to revoke the Applicant’s visa cancellation the consequence will be that he has no right of return to Australia. It will not be a consequence of that decision that the Applicant will be deported to Bosnia and Herzegovina.

7. What will happen to the Applicant in those circumstances will be dependent upon the decision of RG to return to Australia and the decision of the Netherlands as to what consequences will flow from that decision.

8. Other Consideration (a) is not enlivened having regard to the factual circumstances of this matter.

   Other Consideration (b): Strength, nature and duration of ties

9. Paragraph 14.2(1) of the Direction provides for the strength, nature and duration of ties to Australia reflecting the principles at 6.3 and having regard to the following:

   a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;

   i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and

   b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).

10. Direction 14.2(1) (a) and (b) are to be considered cumulatively. This Other Consideration is directed to the strength duration and nature of family or social links the Applicant has with Australian citizens, permanent residents or people having an indefinite right to remain in Australia. 

11. The Applicant has resided in Australia for most of his life, arriving as a 16-year-old boy in 1986 until his departure in 2018. As previously discussed, he was first dealt with for offences when he was 18 years of age, namely within approximately two years after his arrival in Australia and continued to offend until 2011.

12. The Applicant worked in the construction industry but suffered a serious accident in 1999 which impacted significantly upon him. The Tribunal notes the comments of Judge Muscat that in the three years prior to being sentenced in 2014 the Applicant had been employed. The Applicant said in evidence that he was on the disability support pension when living in Australia.

13. The Tribunal received a letter from Mr J Kyriacou of Bargain Priced Rubbish Removal dated 1 June 2015. He employed the Applicant on a casual basis for four years prior to the Applicant’s imprisonment in 2014. He spoke highly of the Applicant as an employee. He knew the Applicant’s family, RG and her sons and said that he and the Applicant have become good friends. He confirmed the Applicant’s close bond with his autistic son. He was prepared to reemploy the Applicant upon his release from custody but that did not occur as he went into immigration detention.

14. The Applicant maintained contact with his mother for approximately two years after his arrival in Australia. However, following her death during the civil war in the Republic of Yugoslavia he had no contact with his stepfather or two half siblings and, apart from is his father’s friend (or distant cousin) who he met and lived with when he returned to Bosnia and Herzegovina, he knows no one else and has no other contact in that country.

15. The Applicant’s father Mr LB is 80 years of age and lives in Australia. Over recent years they became close and more recently they have become very close. His father lives alone and is hopeful of the Applicant’s return to Australia so he can provide him with the support he requires in his old age. Mr LB has a daughter but has had no contact with her or her mother for many years.

16. The Applicant is married to an Australia citizen, RG. RG and her son JH joined the Applicant in the Netherlands but are to return to Australia. The Tribunal received letters from JH which detailed his strong bond with the Applicant to whom he refers as his “best buddy”. The Applicant has played a parental role with respect to JH.

17. The Applicant also has a close relationship with his mother-in-law, Mrs RG, and father-in-law, together with RG’s eldest son LH, all of whom provided written statements and expressed how close they were to the Applicant and their familial relationship. Mrs RG also gave evidence of that close relationship. The Tribunal accepts that they are a close and loving family and the Applicant is an important member of that family which also includes RG’s sister.

18. The Applicant has a son, LB, from his former marriage. Relevant to the First Hearing was the written evidence of his former wife dated 29 November 2011[60] who expressed the need for the Applicant to be available to assist her with the care of LB who was autistic and suffered from anxiety and depression. There was no updated statement from her before the Tribunal.

    [60] Ibid, page 196.

19. LB also provided written statement and gave evidence expressing his love for his father and the significant contribution the Applicant made in helping him deal with his autism and mental health issues. LB is now an adult and gave evidence before the Tribunal. He has just completed his apprenticeship but continues to need the support and guidance of the Applicant including to help him cope with his mental health condition and autism. The Tribunal accepts that evidence.

    Conclusion: Other Consideration (b)

20. The strength of the Applicant’s marriage and the love and bond he also shares with JH is evidenced by the fact that RG and JH travelled to the Netherlands to live with the Applicant pending the outcome of this application. They did so at a time when the Applicants visa was revoked and there was no guarantee that he would be permitted to return to Australia. They were determined to be with him.

21. That arrangement has encountered significant difficulty because of the mental health issues that have impacted upon JH since relocating to the Netherlands. As a result, JH has been in foster care for some time, albeit spending holidays and weekends with the Applicant and RG.

22. The Tribunal is satisfied that despite that difficulty, RG and JH still have a loving relationship with the Applicant and that JH is currently closer to the Applicant than his mother. The Tribunal also accepts that RG and JH are arranging to return to Australia and that when that occurs, should the Applicant’s visa cancellation not be revoked, they will both suffer stress and distress because of their separation from the Applicant. JH will lose the benefit of the Applicant’s in-person parental role, which will be impacted upon by their separation.

23. The Tribunal does not have sufficient evidence before it to decide whether, and if so to what extent, the Applicant’s separation from JH may have an impact upon his mental health. It is not for the Tribunal to speculate. But the Tribunal accepts that the Applicant has been a father figure to RG’s sons and, albeit LH is now 21 years of age, the non-revocation of the visa cancellation will have a significant impact upon LH and JH due to their separation from the Applicant.

24. The Applicant has strong familial ties to RG’s parents and extended family, together with the Applicant’s father. The Tribunal is satisfied that the non-revocation of the Applicant’s visa cancellation with have an impact upon all of them and particularly his father who, at 80 years of age, will have limited opportunity to travel to see the Applicant in the future.

25. The Applicant also has a particularly strong tie to his son in providing him with support and guidance in dealing with both his mental health issues and his autism. Albeit LB has the capacity to travel to see his father should he remain overseas; it is the need for day-to-day support that will be important to his future wellbeing.

26. When balancing all the relevant considerations, the weight to be given to Other Consideration (b) is greater than medium but does not weigh heavily in favour of the Applicant. The Tribunal therefore gives significant weight to this Other Consideration in favour of the Applicant and the revocation of his visa cancellation.

    Other Consideration (c): Impact on Australian business interests

27. Paragraph 14.3(1) of the Direction provides that decision-makers must have regard to the following where relevant:

    Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that 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.

28. There was no evidence before the Tribunal that enlivened this Other Consideration.

    Other Consideration (d): Impact on victims

29. Paragraph 14.4(1) of the Direction provides that decision-makers must have regard to the following where relevant:

    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 revocation has been afforded procedural fairness.

30. There was no evidence before the Tribunal that enlivened this Other Consideration.

    Other Consideration (e): Extent of impediments if removed

31. Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:

    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.

32. The failure of the Tribunal at the First Hearing to consider the extent of impediments should the Applicant be removed and returned to Bosnia and Herzegovina was the error conceded by the Respondent which gave rise to the order of the Federal Court of Australia remitting the matter to the Tribunal.

33. Since that First Hearing, the Applicant’s residence has changed such that the effect of the Tribunal’s decision not to revoke the Applicant’s visa cancellation will not be his removal from Australia to his home country of Bosnia and Herzegovina. He currently resides in the Netherlands and hence it will now be a question of where he will be permitted to reside.

34. The Applicant’s right to reside in the Netherlands is because his wife RG, who is an English citizen and holds a European Union passport. England has now left the European Union but English citizens including RG were invited to apply for a visa to remain in the Netherlands, which application will likely be granted. RG has lodged an application for a visa. Hence the Applicant will, by virtue of his marriage to RG, be permitted to remain in the Netherlands should the visa be granted.

35. However, when RG returns to Australia the Applicant says that he will lose the right to remain in the Netherlands. Yet surprisingly, despite being faced with that possibility, and his expressed fear of returning to Bosnia and Herzegovina, the Applicant has not made any inquiry about his ability to remain in the Netherlands. It is not disputed that the Netherlands is a signatory to the Convention Relating to the Status of Refugees.

36. Hence, the question for the Tribunal is not what will happen to the Applicant upon removal from Australia. The question which the Tribunal must consider is the extent of impediments upon his return to Bosnia Herzegovina consequent upon a refusal to revoke the visa cancellation. It is appropriate when considering those impediments to have regard to the Paragraph 14.4(1) of the Direction.

    Conclusion: Other Consideration (e)

37. Other Consideration (e) is not enlivened on the evidence before the Tribunal. He will not be removed from Australia. However, the consequence of his visa cancellation and RG’s return to Australia will likely result in the Applicant being required by the Netherlands to return to Bosnia and Herzegovina, which return is an Other Consideration which the Tribunal will now consider.

    Other Consideration (f) Extent of impediments upon return to Bosnia and Herzegovina

38. The Tribunal is satisfied that RG and her son JH will return to Australia when permitted, having regard to the impact the COVID -19 pandemic has on international travel and the travel cost considerations. The Applicant will not be permitted to remain in the Netherlands once RG has departed the country which is currently his right as RG’s spouse.

39. It is a matter for the Applicant whether he makes inquiries with the appropriate authority that he be granted a visa to remain in the Netherlands in his own right. It is not for the Tribunal to speculate about the likely outcome of such inquiry or such visa application he may make.

    International Treaties Obligations Assessment (ITOA) dated 20 December 2016

40. An ITOA dated 20 December 2016[61] was prepared with respect to the Applicant. Under heading ‘Evidence and Reasons’, it was noted that the Applicant claimed he was stateless and that, although he had not formally applied for citizenship of Bosnia and Herzegovina, he is nevertheless a citizen of that country and will be granted appropriate documentation confirming that status. The Applicant obtained a Bosnia and Herzegovina passport shortly after his relocation there in 2018.

    [61] Pages 274 – 293.

41. Under heading ‘Finding of Fact’, the author found the Applicant was a citizen of Bosnia and Herzegovina and was ethnically a Serb. It was accepted that he suffered from depression which was being managed by medication. He had previously suffered a shoulder injury but there was some improvement and it was found that the Applicant had the capacity to work. It is relevant however, that this was before the Christmas Island riots, when the Applicant suffered further injury to his right shoulder which remains ongoing. The Tribunal accepts that he continues to suffer from an ongoing shoulder complaint but there is no current medical evidence before the Tribunal as to the nature and extent of that injury and its impact on his potential future employment. The Applicant is currently applying for employment where appropriate in the Netherlands.

42. The author of the ITOA noted the Applicant’s claim “that as an ethnic Serb, if he returned to Mostar, he would be returning to a town divided between Muslims in the east and Croats in the west and as a result will face persecution.” It was found that the harm feared by the Applicant would amount to persecution.

43. In assessing whether that fear was well-founded the author had regard to country information. After referencing the various religious communities and that “as a result of the war, the majority of Serbian Orthodox adherents live in the Republika Srpska, and the majority of Muslims and Catholics in the Federation”, recent country information indicated social discrimination and occasional violence against ethnic minorities took the form of attacks against places of symbolic relevance, including religious buildings. The author then found “no country information from the past five years was located indicating significant harm or severe discrimination against Serbs in Bosnia and Herzegovina on account of their ethnicity or religion”. The author noted that in March 2016 the German Federal Office for Migration and Asylum designated Bosnia and Herzegovina a “safe country of origin” and hence, by default there was no risk of persecution for citizens of those countries.

    The author continued:

    …country information does not support the client’s claim that he is at risk of persecution on account of being an ethnic Serb. There are no reports of serious harm experienced by Serbs on account of their ethnicity or religion in Bosnia and Herzegovina.

44. It was found that the Applicant did not have a well-founded fear of being persecuted. Further, the Applicant was not a refugee and Australia did not have a non-refoulement obligation to the Applicant under the Refugees Convention.

45. In considering access to medical treatment, no country information indicated that persons of Serb ethnicity or people who did not speak Serbian were refused access to medical treatment. They had access to healthcare in Bosnia and Herzegovina, albeit some hospitals failed to meet European Union standards. Mental health care centres exist, health insurance was available and those who are unemployed had access to free health insurance.

46. The author noted unemployment in Bosnia and Herzegovina was amongst the highest in Europe, which then was at or about 44% - 47%, and that the Applicant may be unemployed based upon his Serbian ethnicity in areas were Serbs were a minority. Serbs were a majority in the Republika Srpska but a minority in the Muslim-Croat Federation, including the capital Sarajevo and the Applicant’s hometown of Mostar. Further, the general socio-economic conditions in Bosnia and Herzegovina are among the worst in Europe.

47. The Tribunal received supplementary documents including country information[62]. The European Series Volume 3: ‘Citizen and Prevention of Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia’ dated June 1997 provided historical information. Persons married to Bosnia and Herzegovina citizens are permitted naturalisation after renouncing their foreign citizenship. Emigrants and their direct descendants can obtain citizenship[63] and citizens of Bosnia and Herzegovina may hold citizenship of another country[64].

    [62] Exhibit AG, Supplementary Relevant Documents, pages 877 – 1162.

    [63] Ibid, page 912.

    [64] Ibid, page 972.

1. European Union Democracy Observatory Citizenship Observatory Country Report 2013[65] provided further update in relation to citizenship of the Republic of Srpska and the Federation Bosnia-Herzegovina. It reads “Every citizen of one of its entities (the Republic of Srpska and the Federation of Bosnia and Herzegovina) is, thereby, a citizen of the state of Bosnia and Herzegovina”[66]. It reports that citizens participation in political life in the country is circumscribed by ethnic identity and allegiance and, in certain groups, individuals are prevented from enjoying the full spectrum of civil rights[67].

   [65] Ibid, pages 1004 – 1040.

   [66] Ibid, pages 1017 – 1018.

   [67] Ibid, pages 1020.

2. The Bosnia and Herzegovina Standard Q&A Report dated 19 October 2017 provided further information with respect to citizenship[68]. The Bosnia and Herzegovina 2019 Human Rights Report says that there were no reports that government or its agents committed arbitrary or unlawful killings[69]. Under the heading ‘Torture and Other Cruel, Inhumane, Degrading Treatment or Punishment’ which was prohibited, the report stated that no report is indicative of such practice being employed with respect to prisoners as was the case in previous years[70]. However, national minority groups were underrepresented in government and state-level parliament. It was reported that public view of corruption in Bosnia and Herzegovina was endemic and there was a lack of transparency[71]. There is reported harassment and discrimination against members of minorities but not as frequent as it was in previous years. This discrimination also extends to employment. As previously reported, violence and intimidation against ethnic minorities at times was focused on symbols and buildings of those minorities, particularly related to religion. Albeit there was an established legal framework for protection of minorities and minority councils, those councils lacked resources and political influence[72]. There were widespread instances of media coverage and public discourse designed to betray members of ethnic groups in negative terms, usually in connection with the 1992 – 1995 conflict.

   [68] Ibid, pages 1052 – 1056.

   [69] Ibid, page 1058.

   [70] Ibid, page 1059.

   [71] Ibid, pages 1075 – 1076.

   [72] Ibid, page 1086.

3. Bertelsmann Stiftung’s Transformation Index 2020 Country Report on Bosnia and Herzegovina referred to political instability and an almost complete stagnation in political and socioeconomic reforms[73]. 30.8% of the population of Bosnia and Herzegovina were Serbs. Further, “the quality of public health care, social protection and education is rather low”. The country is ethnically divided and has ethno-territorial interest groups and civil society organisations. Ethnic identification dominates all spheres of life[74]. Under heading ‘Welfare Regime’, it is reported that within the social security system there is pension and invalidity insurance, health insurance and health protection, and unemployment insurance, but that system is financially unsustainable. Reforms were adopted in 2017 but it is too early to determine the effects of such reform. The ratio of those contributing to the scheme versus those claiming entitlements to healthcare is 1 to 5 respectively. There is inadequate assistance available to the most vulnerable groups in society. Nepotism in Bosnia and Herzegovina institutions “…perpetuate exclusion and deny human rights to many citizens. Ethnic minorities are particularly vulnerable to exclusion, while internally displaced people are at high risk of poverty.[75]” The political elite are highly polarised for their own political and material interests[76].

   [73] Ibid, page 1096.

   [74] Ibid, pages 1111.

   [75] Ibid, pages 1119 – 1120.

   [76] Ibid, page 124.

4. In other material and articles provided to the Tribunal dated between 2012 and 2020[77], similar evidence was outlined which I will not repeat. In EAS Country of Origin Information Report dated 2016 A page 38 it is reported under heading “Level of violence” that the Overseas Security Advisory Council report on crime and safety said the vast majority of crimes committed in Bosnia and Herzegovina are non-violent (but widespread) crimes. “Violent criminality not associated with organised crime is not significant”. The largest concentration of crime incidents occurs in Sarajevo and larger towns such as Mostar.  Incidents of violence relate to organised crime such as smuggling, trafficking and other transnational crimes.

   [77] Ibid.

5. The Tribunal also received a publication authored by VISAGUIDE.world titled ‘Netherlands MVV Visa – Dutch visas for stays longer than 90 days’, which confirmed the evidence of the Applicant and RG about the grant of permits to family members or partners of Dutch residents. It further confirmed that a request for asylum is available, albeit an applicant is unable to work for the first months of the asylum procedure.  

   Conclusion: Other Consideration (f)

6. The overwhelming evidence before the Tribunal is that upon return to Bosnia and Herzegovina there is no basis for the Applicant having a well-founded fear of persecution. Nonetheless, the Tribunal is satisfied that the Applicant has a genuine concern about the life he will face should he return to Bosnia and Herzegovina.

7. The Applicant is 50 years of age and suffers from depression together with an injury to his left shoulder that will be an impediment to him absent surgical intervention. He is not a qualified tradesman. He will be at high risk of joining those in the Bosnia and Herzegovina community who face unemployment and potential poverty.

8. The Tribunal is satisfied that the Applicant will likely have access to the same level of medical treatment that would be afforded to others in the community who are in the public health system, albeit the quality will likely be low, particularly in comparison to the Netherlands or Australia.

9. The Tribunal is satisfied that the Applicant has, to a significant degree, lost his Serbian language skills which he should be able to renew, once he is living in Bosnia and Herzegovina, which accords with the findings of the ITOA. But that may take some time and impact significantly upon his ability to integrate into society generally and his ethnic community specifically.

10. He has no known family in Bosnia and Herzegovina. To the extent that his father introduced the Applicant to a person in the Republika of Srpska in 2018, the Tribunal accepts that the Applicant assisted that person financially using those monies given to him when he departed Australia.  The Applicant’s father also contributed money, including when Mr LB visited the Applicant for a period of time and resided at that friend’s home. Without the future financial help of family members in Australia, the Applicant will have difficulty surviving economically. The Applicants father is now aged 80 years and he will be unlikely to provide financial help in the future.

11. When weighing up those factors relevant to the question of impediments, the Tribunal is satisfied that this Other Consideration weighs heavily in favour of the Applicant and the revocation of his visa cancellation.

    Other Consideration (g): The best interests of stepson JH

12. JH is currently 15 years of age and residing in the Netherlands. The Tribunal accepts that he will return to Australia with RG and the Applicant’s continued visa cancellation will have a significant impact upon JH. Paragraph 13.2 of the Direction is relevant to considering the best interests of JH.

13. JH’s natural parents’ marriage was infected by incidents of family violence and for much of his life JH has had no involvement with his natural father. The Tribunal accepts that recently JH made contact with his father on the internet, in an effort to return to Australia, but was given no support after which his mental health deteriorated, and he was placed in foster care. He no longer communicates with his natural father.

14. The Applicant has played a major role in parenting JH since the start of his relationship with RG in 2011 until his imprisonment in 2014. Thereafter, the Applicant maintained contact with RG and her sons on a regular basis, including when he was in immigration detention. The Tribunal accepts the evidence given by the Applicant, RG, LH and JH about their relationship with the Applicant, and that JH has continued to have a very close loving parental relationship with the Applicant, particularly since moving to the Netherlands in 2018 and even when in foster care. That loving relationship was also confirmed by the Applicant’s mother-in-law, Mrs RG and the Applicant’s father

15. JH had mental health issues before travelling to the Netherlands and given his difficulty in integrating into a new country and learning a new language, those issues have resurfaced to a significant degree. It is important that the Applicant be able to maintain his parental relationship to support JH and ensure his return to good health including as an adult. Should they be separated in consequence of the Applicant’s visa cancellation, that separation will likely have a further detrimental effect upon JH. The Applicant has a positive influence on JH’s life and it is in the best interests of JH that the relationship continues.

16. The Tribunal is satisfied that the revocation of the Applicant’s visa cancellation would be in the best interests of JH. The Tribunal acknowledges that the Applicant was, to a degree, removed from JH’s daily routine whilst in custody and immigration detention. However, they have now been together again since 2018 and it is important that the relationship continue and that the Applicant be able to play that supporting and loving parental role upon JH’s return to Australia and help him overcome his current mental health issues. JH will turn 18 years of age in three years but importantly at this particular time in his life he requires the presence of the Applicant for guidance and support and accordingly this Other Consideration therefore weighs heavily in favour of the revocation of the Applicant’s visa cancellation.

17. There are no more Other Considerations that the Tribunal should have regard to on the available evidence. 

    CONCLUSION

18. Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.

19. Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:

    (a)Primary Consideration A is given medium weight in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;

    (b)Primary Consideration B is not enlivened on the evidence before the Tribunal;

    (c)Primary Consideration C is given medium weight in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation; and

    (d)Other Consideration (a) is not enlivened having regard to the factual circumstances of this matter.

    (e)Other Consideration (b) weighs significantly in favour of the Applicant and the revocation of his visa cancellation.

    (f)Other Considerations (c), (d) and (e) are not enlivened on the evidence before the Tribunal.

    (g)Other Consideration (f) weighs heavily in favour of the Applicant and the revocation of his visa cancellation.

    (h)Other Consideration (g) weighs heavily in favour of the Applicant and the revocation of his visa cancellation.

20. The combined weight of the Other Considerations is such that they outweigh the combined medium weight that the Tribunal has attributed to the Primary Considerations A and C.

21. The Tribunal therefore finds that, taking into account all of the considerations, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.

22. Consequently, the Tribunal exercises the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

23. For the reasons outlined above, the decision under review is set aside.

    ……………..[SGND]…………………….

    Administrative Assistant Legal

    Dated: 09 April 2021  

Date of hearing:

12 May 2020 – 13 May 2020 and

24 – 26 August 2020

Representative for the Applicant:

Marion Le, Marion Le Consultancy

Representative for the Respondent:

Arran Gerrard, Australian Government Solicitor