Jokic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 279
•21 February 2020
Jokic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 279 (21 February 2020)
Division:General Division
File Number(s): 2019/8262
Re:Veronik Jokic
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:21 February 2020
Place:Sydney
The Tribunal decides that:
1.the decision under review dated 4 December 2019, not to revoke the mandatory cancellation of the applicant’s Class BA Subclass 204 Women at Risk visa, is set aside; and
2.the matter is remitted to the respondent with the directions as apparent in the reasons for decision.
...............................[sgd]....................................
Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION – cancellation of visa on character grounds under s 501(3A) – where discretion under Direction No. 79 cannot be exercised – where evidence before Tribunal inadequate to make proper considerations under Direction No. 79 – decision set aside and remitted.
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Zakon o hrvatskom državljanstvu, 'Narodne novine' br. 53/91, 70/91, 28/92, 113/93 - Odluka USRH, 4/94 - Odluka USRH i 130/11 [Croatian Citizenship Act, 'Official Gazette' No. 53/91, 70/91, 28/92, 113/93-Constitutional Court decision, 4/94- Constitutional Court decision and 130/11] (Republic of Croatia).
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
21 February 2020
These proceedings are a review of a decision made by the Minister’s delegate on 4 December 2019, refusing to revoke the mandatory cancellation of a visa granted to the applicant in 2001. The applicant was, together with his brother and mother, granted a Class BA Subclass 204 Women at Risk visa. Since that time his mother and his brother have become Australian citizens.
The applicant was born in Benkovac, a city within the former Yugoslavia, now within the Republic of Croatia. His father was a Croatian citizen at the time of his birth as also was his mother. The father was a Catholic who came from Biograd (another place in Croatia) and later served in the Croatian army. His mother was orthodox, as were the majority of the persons then in Benkovac. Benkovac was where the applicant’s mother and her parents were born. Most of the orthodox residents of Benkovac were displaced persons when war came to Benkovac in the 1990s The applicant, his mother and brother moved from one refugee camp to another, at first in Benkovac and later, from 1995 in Serbia. After two years, they fled again to Montenegro to another refugee camp. From there they came to Australia in 2001.
The war traumatised the applicant. Also, his father was an alcoholic and caused the applicant significant trauma as he abused the family.
The applicant fell into drug taking in Cabramatta, a few years after his arrival in 2001, and soon embarked on a life of crime to support his drug habit.
For a number of years he tried to rehabilitate himself with repeated visits to Adele House, an organisation specialising in drug and alcohol rehabilitation. He went there for three months in 2005, one month in 2009, 8 days in 2011, 8 days in January 2012, one year between July 2013 and July 2014, and six months from November 2014 until May 2015. He also went to a Salvation Army residential rehabilitation centre for eight months in 2012. Despite those efforts, he did not succeed in his own rehabilitation. He was before the NSW Drug Court on a number of occasions.
The drugs he took included heroin, cannabis and Valium. He was once prescribed fentanyl patches, which is a very powerful opioid. He was later prescribed methadone, which he still takes today.
From time to time he would be drug free and then relapse. The current prescription of methadone suggests that his addiction has the capacity to cause him to relapse.
His criminal record is summarised in the respondent’s Statement of Facts Issues and Contentions. The applicant disputed some of the facts underlying the convictions and some of the police records tendered by the respondent, but as will appear, it is not necessary further to discuss those matters.
Many things about the applicant were unknown to the delegate who made the reviewable decision. He or she did not know that the applicant has a close relationship with his nephew and niece, aged 5 and 10. His cousin also has a young son, who had contact with the applicant prior to his recent incarceration and detention. The consideration of the best interests of the infant Australian children is, of course, a mandatory consideration under Direction No. 79 (‘the Direction’), and no interview was conducted with the applicant when the delegate made the reviewable decision. The migration agent who represented the applicant and made representations on his behalf to the delegate made no mention of the children. The Tribunal was unaware of the existence of the children until questions were asked of the applicant in the witness box by the Tribunal itself.
The applicant made representations that he would suffer harm if returned to Croatia, no doubt influenced by his experiences in the 1990s. US State Department country information tendered by the respondent suggests that the harm feared by the applicant may be misplaced, but it is not necessary or desirable to make findings about that matter at this time for reasons which follow. The basis on which the delegate put those issues to one side is inconsistent with current Federal Court authority, but since I have decided that the reviewable decision must be set aside in any event, it is not necessary to discuss that matter further.
Another mandatory consideration under the Direction is the other consideration dealing with impediments if removed. Curiously, the delegate did not decide whether or not the applicant was stateless, and observed that if so, there was no country to which the applicant could be deported. Yet he or she made findings, apparently without probative evidence about what would happen if the applicant were sent back to Croatia.
I am not in a position to apply the Direction or exercise discretion in this matter because the evidence does not permit me to do so. The matter must be returned to the respondent to be investigated further.
A clinical psychologist in January 2020 said that he was at risk of suicide if he were to be separated from his family and sent back to Croatia. She assessed the risk at the present time as low, but remarked that given his vulnerability in his current situation she recommended he be reassessed should there be a change in his presentation.
She also diagnosed him with depression, anxiety and post-traumatic stress disorder (PTSD) symptoms. She thought that he should have specialised trauma counselling and continue to engage with drug and alcohol support services.
She also mentioned that the applicant had suffered a brain injury in a road accident in recent years, but did not comment on the effects of that injury.
The delegate did not have that report, but had an earlier report dated 30 May 2012 from a psychologist at the Salvation Army residential rehabilitation centre, which stated that he had substance dependency, depression, anxiety (social and PTSD symptoms) low self-esteem and mood swings (possible bipolar disorder). At that time, the applicant was not at risk of deportation, and remained at liberty.
Neither psychologist reported on the applicant’s likely chance of recidivism if he remains in the community, a matter of importance under the Direction.
The suicide risk is, of course, a matter of great concern if the applicant is to be deported to Croatia. So also are his mental health problems, and the brain injury which he suffered, since they have the capacity to prevent him from obtaining employment or keeping a job. He has struggled to keep in employment in Australia, and has done so only intermittently. If that happened to him in Croatia, his suicide risk may be all the greater.
It seems to me that before the mandatory considerations in the Direction could be the subject of findings, further information must be obtained. The following must all be taken into account before it is decided whether the cancellation of his visa ought to be revoked:
(a)the applicant’s history of trauma;
(b)his lengthy substance abuse;
(c)the extent of his PTSD symptoms;
(d)his requirements for treatment;
(e)his risk of suicide in the event of his removal to Croatia;
(f)any sequelae of his brain injury which might affect him in the future;
(g)the availability of social security benefits, including particularly his income; and
(h)the availability of drug rehabilitation establishments in Croatia.
The applicant is in detention at Villawood, and a comprehensive psychiatric evaluation of his mental health, cognitive ability, suicide risk if he is returned to Croatia where he has no family, and where he has not been since 1995, should be undertaken by the respondent. The psychiatrist should be asked to comment on the applicant’s likely ability to support himself by employment if returned to Croatia, having regard to his state of health.
There is an Australian Embassy in Croatia and the respondent is to be directed to cause enquiries to be made by embassy staff about the availability of facilities that would be required by the applicant, in accordance with the psychiatrist’s report, including any pension he would become entitled to receive if he cannot obtain or retain employment. For that purpose, the embassy should be informed of the applicant’s criminal record, in case that is relevant.
The citizenship of the applicant was not investigated by the delegate, but before the Tribunal, the Minister’s representative submitted to me that the applicant was not stateless, but rather was a Croatian citizen. That submission was founded on the tender of translations of two statutes, one of the Socialist Republic of Croatia passed in 1977 (‘the 1977 statute’), and the other of a more recent statute of the Republic of Croatia[1] (‘Croatian Citizenship Act’).
[1] Zakon o hrvatskom državljanstvu, 'Narodne novine' br. 53/91, 70/91, 28/92, 113/93 - Odluka USRH, 4/94 - Odluka USRH i 130/11 [Croatian Citizenship Act, 'Official Gazette' No. 53/91, 70/91, 28/92, 113/93-Constitutional Court decision, 4/94- Constitutional Court decision and 130/11] (Republic of Croatia).
The Socialist Republic of Croatia was a republic and federated state of Yugoslavia formed during World War II. In 1991, under an independent non-Communist government it seceded from Yugoslavia and modern day Croatia began its existence.
Whether the 1977 statute is still in force is unclear to me. The statute of the Republic of Croatia seems to govern the present citizenship regime, possibly to the exclusion of the earlier statute, although the evidence before me does not establish that. The Republic of Croatia statute seems to deal with the matter comprehensively.
The Republic of Croatia statute on its face would seem to make the applicant entitled to Croatian citizenship by origin. That is because he was born in Benkovac, and both his parents were Croatian citizens: see Croatian Citizenship Act arts 3 and 4. However, the Croatian Citizenship Act provides that Croatian citizenship is to be proved by a valid identity card, military identification card or passport: see Croatian Citizenship Act art 29. The applicant has access only to a birth certificate. The Croatian Citizenship Act also makes provision for a Registrar to issue a Certificate of Citizenship to persons recorded in the citizenship records kept by the registrar’s office of the person’s place of birth: see Croatian Citizenship Act arts 27 and 28. If the applicant’s birth is so recorded, then he should be able to obtain a Certificate of Citizenship in due course. A birth certificate issued by the Yugoslav authorities in 1981 would no doubt be of assistance to him. It would be desirable for the embassy to be asked to confirm that the applicant would be treated as a Croatian citizen if deported.
DECISION
For those reasons, the reviewable decision will be set aside and the respondent will be directed to make enquiries in accordance with these reasons for decision.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
.................................[sgd].......................................
Associate
Dated: 21 February 2020
Date(s) of hearing: 13, 14 and 18 February 2020 Solicitors for the Applicant: Turner Coulson Immigration Lawyers Solicitors for the Respondent: Sparke Helmore Lawyers
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