Mandic and Minister for Immigration and Citizenship
[2011] AATA 142
•3 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 142
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5453
GENERAL ADMINISTRATIVE DIVISION ) Re Drasko MANDIC Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date3 March 2011
PlaceSydney
Decision The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Mandic’s favour so as not to cancel his visa.
....................[sgd].....................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – extensive criminal history related to heroin addiction – prospects of rehabilitation – other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person – non-refoulement obligations - level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions - decision under review set aside
RELEVANT ACT
Migration Act 1958 (Cth): s 501
CITATIONS
Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689
OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
3 March 2011 Mr R P Handley, Deputy President 1. Mr Mandic has applied to the Tribunal for a review of a decision of the delegate of the Minister for Immigration and Citizenship to cancel Mr Mandic’s visa on the grounds that he has a substantial criminal record and does not therefore pass the character test.
BACKGROUND
2. Mr Mandic, who is aged 42, was born in September 1968 in the former Republic of Yugoslavia and is a citizen of Bosnia and Herzegovina. He first arrived in Australia in November 1992 on a Prospective Marriage visa at the age of 24. On 8 February 1993, Mr Mandic was granted a Permanent Spouse visa and a Resident Return visa. Mr Mandic separated from his wife in 1993 and they were divorced in 1995.
3. Mr Mandic has a long history of offences including breaking and entering, stealing, burglary, larceny, and of giving or having goods reasonably suspected of having been stolen. He was first charged with an offence in Australia – ‘break, enter and steal’ - on 3 February 1994. He was convicted of this offence in his absence on 20 June 1994 at Balmain Local Court, but was not sentenced until he was next before the Court. On 23 February 1995, he was convicted of four further ‘break and enter’ related offences and sentenced to one year and four months imprisonment with a non-parole period of 12 months for those four offences and the earlier conviction of 20 June 1994, varied on appeal to the District Court on 12 May 1995, to 12 months imprisonment with a non-parole period of six months.
4. On 11 December 1996, Mr Mandic was sentenced to one year and four months imprisonment with a non-parole period of 12 months for ‘steal in dwelling’, a sentence confirmed on appeal to the District Court on 20 November 1997.
5. On 1 April 1997, Mr Mandic was convicted in the Melbourne Magistrates Court of attempted burglary and sentenced to three months imprisonment, suspended for 12 months. On the same occasion, he was also convicted of ‘unlawful possession’, ‘behave in offensive manner in a public place’, and ‘assault with weapon’ for which offences he was fined. On 3 April 1997, he was convicted of four counts of attempted burglary and he was sentenced to eight months imprisonment for each count, to be served concurrently, and on 11 July 1997, he was convicted of burglary and theft for which he was sentenced, respectively, to 50 days and 28 days imprisonment, to be served concurrently.
6. On 3 December 1997, Mr Mandic was convicted of ‘break, enter and steal’ and ‘break enter and steal with intent’ at Waverley Local Court for which he was sentenced to six months imprisonment.
7. On 6 July 1998, Mr Mandic was advised that as a result of a 1995 conviction, he may be liable for deportation under s 200 of the Migration Act 1958 (the Act). He was interviewed about this on 20 October 1998 and made submissions, and the Department subsequently decided not to deport him.
8. On 3 November 2000, he was convicted of further attempted break, enter and steal, and burglary offences for which he was sentenced to two years imprisonment, with a 12‑month non-parole period, and on 21 November 2000 he was sentenced to another 12 months imprisonment, to be served concurrently, for a similar offence. Mr Mandic was released on parole but, on 18 September 2001, Mr Mandic’s parole order was revoked and he was ordered to serve the balance of his sentence of nine months and five days. On 17 May 2002, Mr Mandic was sentenced for the offences of break, enter and steal, and larceny to three years imprisonment with a non-parole period of 12 months.
9. By letter dated 19 March 2003, the Department notified Mr Mandic that the Minister was considering whether to cancel his visa and inviting him to respond. Mr Mandic responded on 10 April 2003 and seven individuals provided letters of support. He was released on parole but on 23 January 2004, his parole order was again revoked and he was ordered to serve the balance of his sentence of one year and 23 days. On 9 January 2004, he was convicted of the offences of ‘receive/dispose of stolen property’ and ‘possess goods suspected of being stolen’ and sentenced to six months imprisonment.
10. On 5 March 2004, while still in custody, Mr Mandic was further convicted of ‘break and enter a building and commit a felony’ and sentenced to two years imprisonment with a nine months non-parole period.
11. On 30 June 2005, Mr Mandic was convicted of three break and enter/steal offences and sentenced to 21 months imprisonment with a non-parole period of 15 months. On 12 August 2005, his previous parole order was revoked. On 28 September 2005, he was convicted of the offence of ‘goods reasonably suspected of being stolen’ and sentenced to six months imprisonment to be served concurrently with his other sentences.
12. On 21 August 2006, Mr Mandic was convicted of housebreaking/burglary related offences and sentenced to two years imprisonment with a non-parole period of 18 months. On 7 September 2006, his previous parole order was revoked. On appeal against the sentences imposed on 21 August 2006, on 20 October 2006, the non-parole period was reduced to 15 months. On 6 June 2008, Mr Mandic’s parole was again revoked and he was ordered to serve the balance of his term of imprisonment expiring on 21 August 2008.
13. On 17 July 2009, Mr Mandic was convicted of further break and enter related offences and sentenced to 12 months imprisonment with a non-parole period of nine months. These sentences were confirmed on appeal on 10 September 2009, although the non-parole period was reduced to eight months. Mr Mandic was released into the community on parole on 24 March 2010.
14. Mr Mandic also told me that in the week before the hearing, he was convicted of the offence of being ‘in possession of goods suspected of being stolen’ and fined $550. He was charged with this offence in July 2010, to which he had pleaded ‘not guilty’, after being found in possession of a travel concession card.
15. On 20 January 2010, the Department notified Mr Mandic of its intention to consider cancellation of his visa and inviting him to make submissions in response. By letter dated 10 March 2010, he was invited to comment on additional information.
16. On 23 November 2010, a delegate of the Minister decided to cancel Mr Mandic’s visa. The Department notified Mr Mandic of the cancellation of his visa by letter hand delivered on 16 December 2010 and, on 17 December 2010, Mr Mandic applied to the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
17. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
18. Mr Mandic has been sentenced to a significant number of terms of imprisonment of 12 months or more, the longest being of three years. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Mandic’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
19. The primary considerations in Direction No 41 are set out in paragraph 10(1):
10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
20. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
Primary Considerations
21. The ‘primary’ considerations relevant in Mr Mandic’s case are the protection of the Australian community, the length of time he has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct, and relevant international obligations. These considerations are addressed below.
the protection of the australian community
22. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
the seriousness of the conduct
23. Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) is serious theft. Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
24. The Tribunal notes Mr Mandic’s extensive criminal history between 1994 and 2010, including multiple convictions for ‘break and enter and steal’ and convictions for burglary and larceny. His convictions are largely related to theft and it is clear from Mr Mandic’s evidence and the comments of the sentencing judges that Mr Mandic stole goods in order to fund his heroin addiction. Mr Mandic said that he first used heroin on the recommendation of a friend in early 1994 at a time of stress and quickly became addicted. He soon found his earnings were insufficient to support his habit. He did not use heroin while in prison but, while not in prison, would generally use heroin daily. However, between 2001 and 2003, he was ‘clean’ for nearly two years and, ironically, it appears that what he described as the “fear and anxiety” associated with the possible cancellation of his visa in 2003 (see paragraph 9, above) was a factor leading to his relapse.
25. Mr Mandic said the cost of his heroin habit was between $50 and $200 per day depending on the stage he was at in the cycle of addiction. He never had an established dealer because he never wanted to be part of the drug scene; it was not that difficult to buy heroin. Mr Mandic said he was totally unprofessional in stealing to support his habit. He was impulsive, opportunistic and not premeditated. He would break into houses and steal goods: cash and valuables were the easiest but sometimes he would also take smaller electrical equipment. He was not stealing on a daily basis and never had a permanent source to whom he would ‘sell’ stolen goods.
26. I note the fact Mr Mandic has been sentenced to multiple terms of imprisonment of 12 months or more, including one term of imprisonment of three years, indicates the seriousness of his criminal conduct. However, as Mr Burwood, representing Mr Mandic pointed out, the offence of ‘break, enter and steal’ carries a maximum penalty of 14 years imprisonment and, thus, the sentences handed to Mr Mandic were at the lower end of the spectrum. I also note that the regular pattern of offending and that, in a number of instances, he committed further offences not long after being released on parole. The most recent offences for which Mr Mandic was imprisoned were committed on 25 April 2009. He was released on parole on 24 March 2010 and remained in the community until taken into immigration detention on 16 December 2010.
27. In sentencing Mr Mandic for recent offences in Sydney Central Local Court on 15 July 2009, Magistrate Armati referred to “various MERIT related reports”, had regard to Mr Mandic’s background in coming from a war-torn country, having substantial difficulties, including post traumatic stress disorder, and resorting to alcohol and drugs as a means “of finding some form of balance in your life”. However, the Magistrate noted that numerous previous sentences of imprisonment had not deterred Mr Mandic from reoffending and said that other endeavours needed to be made to assist him in dealing with his problems. On appeal against sentence in the District Court, Blanch CJ commented that, bearing in mind that the offences were committed while Mr Mandic was on parole, “he is very lucky to have received a sentence as low as twelve months imprisonment”.
28. Magistrate Linden, in sentencing Mr Mandic on 21 August 2006, noted “He has a sad and lamentable history of exactly this type of offence, and he is currently on parole for similar matters.” Magistrate Moore, in sentencing Mr Mandic on 30 June 2005, referred to Mr Mandic’s drug addiction and stealing property in order to “sell them for a minor sum for your next hit”, and noted that the offences were committed on parole. Judge Murrell, in sentencing Mr Mandic on 5 March 2004, noted that Mr Mandic had stolen property valued at between $23,000 and $24,000. The Judge referred to the difficulties Mr Mandic had with alcohol and gambling but principally with drug dependency. The sentencing remarks of Judge Latham on 17 February 2002 are not dissimilar.
29. The comments of the judges indicate that Mr Mandic made full admissions on arrest and pleaded guilty to the majority of the charges. The common thread in Mr Mandic’s criminal history seems to be theft driven by drug dependency, remorse, insight into his situation, rehabilitation, abstinence for a while, and then a lapse back into drug use. This pattern has been repeated on a number of occasions.
30. The mitigating circumstances in Mr Mandic’s case relate to his background and the traumatic events surrounding the breakdown of the former Yugoslavia, his escape to Germany, his resettlement in Australia, the difficulties he encountered on arrival including the breakdown of his relationship with his wife, and the guilt associated with leaving his family in the former Yugoslavia. These matters have been referred to in sentencing Mr Mandic.
31. The evidence establishes that Mr Mandic suffers from major depression. The psychologist, Dr Ross Colquhoun, who until recently was treating Mr Mandic and who has provided an assessment report for these proceedings received on 15 February 2011, noted Mr Mandic having told him that he had experienced “feelings of depression and anxiety” since leaving the former Yugoslavia. In 1997, Mr Mandic became so depressed as a result of his mother’s illness – he said she died of cancer that year which he assumed “was brought on by her life’s and family’s disintegration” - and as a result of his drug addiction that he attempted suicide. Mr Mandic told me that he was admitted to Prince Alfred Hospital in Melbourne and was then transferred to a mental institution. On discharge, he was not prescribed anti-depressants and as a result “was not doing too good”.
32. Dr Colquhoun said that Mr Mandic was referred to him for treatment by a general practitioner under a Medicare Care Plan. Dr Colquhoun saw Mr Mandic on ten occasions between August and December 2010 and also on 9 February 2011, at Villawood, for the purpose of preparing his report. Dr Colquhoun said when Mr Mandic first attended his clinic in August 2010, he was “quite depressed and concerned about not relapsing to heroin use”. He expressed anxiety about deserting from the Yugoslav army and about what happened to his family. He expressed major regret and remorse about his addiction to heroin and the crimes he committed to fund his habit, and also about the implications of this for his life and that of his family.
33. Mr Mandic also sought professional help from Peter Harris, a counsellor at Mission Australia. Mr Harris provided a letter of support dated 4 February 2011 and gave evidence in person at the hearing. He said he had seen Mr Mandic for counselling on about two dozen occasions for sessions of about an hour. Both Dr Colquhoun’s and Mr Harris’ reports indicate that Mr Mandic was making good progress until he was detained and taken to Villawood. Dr Colquhoun said Mr Mandic’s mood “deteriorated markedly when he was taken into Villawood”.
34. Mr Mandic said that over the past two months in Villawood, he has twice seen a psychiatrist, Dr Vrjosseck, who has prescribed Effexor tablets for his depression which Mr Mandic takes daily, and his mental state has also been monitored by a mental health nurse.
35. Apart from his criminal history, I note that Mr Mandic has been disciplined while in prison for institutional misconduct on 21 occasions. However, with one exception, this occurred in the period March 1995 to March 2004. Since March 2004, Mr Mandic has only been disciplined on one occasion, in August 2007, for failing to attend muster. Mr Mandic pointed out that many of the earlier infringements were also for this and were minor infringements. The Immigration Report dated 25 February 2010, prepared by the Kempsey Probation and Parole Service, stated that “Mr Mandic has not incurred any institutional misconducts during his current period of incarceration”. Mr Mandic was subject to a random urine analysis on one occasion during his most recent imprisonment which returned a negative result. At the time the Report was prepared, Mr Mandic was undertaking the ‘Getting Smart’ program on alcohol and drug addiction. He had been employed in the furniture construction unit and his overseers had commented that he was “productive, punctual with his attendances and courteous towards staff”, presenting “nil issues to overseers”.
36. Having considered the evidence, it is clear that many of the crimes for which Mr Mandic has been convicted are of a serious nature involving his breaking into people’s houses and stealing possessions in order to fund his drug habit. However, the offences seem to have been impulsive and none seem to have involved violence.
The risk that the conduct may be repeated
37. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Mandic’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders. I have already referred to Mr Mandic’s criminal history above. As noted, I have been provided with a report from a psychologist, Dr Colquhoun, and a letter of support from a counsellor, Mr Harris, both of whom also gave evidence at the hearing. Dr Colquhoun completed a doctorate on addiction and treatment, now published as a book, and specialises in treating opiate addiction. He is engaged in clinical practice but also continues to be involved in research, currently on naltrexone implants.
38. Dr Colquhoun said that for the purpose of preparing his report, he conducted a structured interview with Mr Mandic at Villawood over a period of about three hours in the course of which he administered psychometric tests. Dr Colquhoun said that between August and December 2010, Mr Mandic made “very good progress”, was coming regularly, and Dr Colquhoun was very pleased “at the way he was committed” to rehabilitation and making “very significant efforts to change”. Mr Mandic demonstrated insight into why he had relapsed in the past, and consistently talked about his past efforts at rehabilitation and his shame and guilt at relapsing and returning to crime and his wanting to vindicate himself and redress some of his wrongs. Dr Colquhoun said Mr Mandic’s attitude is “most impressive”.
39. Dr Colquhoun said he administered the highly regarded ‘Personal Assessment Inventory’ test with Mr Mandic. The test results revealed scores consistent with “severe psychological turmoil; with constant rumination and feelings of guilt over past transgressions, real or imagined”, high‑level stress, major depression, identity problems, impulsivity with a high potential for negative consequences such as substance abuse, and increased risk of self‑harm and suicidal behaviour (which Dr Colquhoun said required immediate evaluation and appropriate intervention). On the other hand, Mr Mandic’s score on the treatment rejection scale was low “suggesting that he acknowledges major life difficulties in his functioning and perceives an acute need for help in dealing with these problems”.
40. Dr Colquhoun diagnosed “Opiate Dependence, Early Partial Remission” (has not used illicit drugs for more than one month but less than 12 months) and “Major Depression”. Dr Colquhoun said that while Mr Mandic will need to continue in treatment for some time:
… Mr Mandic has made remarkable gains in terms of his rehabilitation. He has completed tertiary study, he has pursued worthwhile and productive activities and counselling and he has maintained consistent, although part-time employment for some time with the prospect of full time employment upon release.
Mr Mandic has consistently displayed sincere remorse for his crimes of the past and is resolved to continue his recovery. I believe he has a very good chance of complete recovery and that he will make a worthwhile contribution to society in the future.
41. Dr Colquhoun said that the war in the former Yugoslavia had overturned Mr Mandic’s settled world. Previously, he had been happy, with a wide circle of friends across different ethnic backgrounds, and studying for an economics degree. Mr Mandic suffered trauma associated with his escape from Yugoslavia and subsequently seeing television reportage of events in the area where he had formerly lived. Dr Colquhoun said there is a high correlation between people who have experienced trauma and those who use opiates to forget their problems and experience euphoria. However, a tolerance to opiates quickly develops and nullifies the euphoric experience, with the drug affording little or no benefit and increasing the person’s psychological distress.
42. Dr Colquhoun said Mr Mandic is currently taking Suboxone, a synthetic opiate, which will enable him to stabilise - in terms of housing, employment etc -before moving to naltrexone to address his dependence. Dr Colquhoun said naltrexone is a very effective tool in helping people get off opiates: implants last for six months and reduce craving to nil. He said Mr Mandic is unlikely to relapse if he moves to naltrexone. Given his commitment and motivation, his prospects are very good and it is “highly likely” that he will succeed in overcoming his addiction. There comes a time when most addicts grow out of the addiction and, with the right form of help, succeed in overcoming it: the “vast majority succeed sooner or later”. In Mr Mandic’s case, the risk of recidivism is closely tied to his heroin dependence. So if he can overcome this, it is “highly unlikely that he will reoffend”. Dr Colquhoun said Mr Mandic is one of the better prospects for rehabilitation he has encountered in his 15 years of practice.
43. Dr Colquhoun spoke of the possibility of Mr Mandic being imprisoned for desertion if he is returned to Bosnia and Herzegovina and of the prison conditions there, which are reported to be below international standards, and the effect of this on Mr Mandic. Dr Colquhoun said any detention without mental health care would be highly detrimental to Mr Mandic’s mental health and would give rise to a high risk of suicide. Even if not imprisoned, the effect of him returning after 20 years, with the possibility of him being ostracised and vilified, is likely to be highly detrimental to Mr Mandic’s mental health.
44. Mr Harris is a general counsellor specialising in addiction. In his letter of support dated 4 February 2011, Mr Harris said that during treatment, Mr Mandic “demonstrated consistent focus, determination and resolution to his recovery”. While Mr Mandic had sought help with an addiction to gambling, it became clear that his drug problem was more long standing. Mr Harris said Mr Mandic is a very intelligent person and was upfront about the struggle and difficulty he has encountered in addressing his drug addiction. Mr Mandic displayed a high degree of insight into his addiction and had a very high level of motivation to remain drug free. He replaced a life revolving around drugs with a richer life including tertiary study, his artwork, and his work. Mr Mandic has also been proactive in seeking support, such as that from Mission Australia, by whom Mr Harris is employed. Mr Harris said that prior to his recent detention:
...Mr Mandic was well on the way to integrating himself into mainstream society as an active and productive member of the community. Given his long history of incarceration and the diagnosis of Post Traumatic Stress Disorder, I consider this a considerable achievement. Had Mr Mandic not been incarcerated again in December 2010, I believe that there is every reason to believe that he would have continued with [the] process with positive results.
45. Mr Harris said that generally, those with an opiate addiction go through about seven attempts to get free of the addiction. The majority do, however, succeed.
46. A friend of Mr Mandic’s, Angelo Licciardello, provided a letter of support dated 6 February 2011 and gave evidence at the hearing. Mr Licciardello said he has known Mr Mandic for about six years and is aware of his criminal history and of how he has tried to overcome his heroin addiction. He commented on how depressed and scared he found Mr Mandic to be when he visited him in Villawood about three weeks ago. Mr Licciardello noted the positive changes Mr Mandic has made towards securing his future. He said he “will stick by” Mr Mandic but recognises that he will continue to need professional help.
47. As noted above, the Immigration Report, dated 22 February 2010, referred to the Getting Smart program on alcohol and drug addiction undertaken while Mr Mandic was last imprisoned and commented on his productive, punctual and courteous behaviour.
48. I note that Mr Mandic has in the past consistently broken the conditions on which he has been released on parole with the consequence that he has been required to serve the balance of his sentence. However, he did not breach the terms of his most recent parole which commenced on his release into the community on 24 March 2010 and ended on 24 December 2010.
49. Mr Mandic has also provided the Tribunal with further documents confirming the training programs and professional services in which he has been involved at Mission Australia: art, yoga, meditation, fitness, craft and mixed media, job skills, computer classes, financial literacy, Tai Chi, communication and conflict resolution, cooking, writing, and counselling sessions. In a letter dated 13 January 2011, the Mission Australia program coordinator spoke of Mr Mandic as having “positively contributed to the Mission Australia Centre, being actively involved with many programs and services and at the same time encouraging others to engage as well”. She also referred to Mr Mandic as a “very competent artist” who sold five artworks in a recent exhibition and “was highly commended for his outstanding practice”. His artwork has recently been published in a magazine.
50. Among the large number of documents provided by Mr Mandic as to the courses and training programs he has completed is a copy of the transcript for his recently completed (between July and November 2010) TAFE Certificate III in Events, being part of the tourism, hospitality and events training package offered at Sydney Institute of TAFE. A letter from the head teacher for the program, dated 21 January 2011, states that Mr Mandic’s “attendance, punctuality and performance were highly satisfactory and [sic] has proven competency in all units”. Mr Mandic has also provided copies of the correspondence with a business called ‘Eventful Management’ with whom Mr Mandic completed work experience while undertaking the TAFE program in event management. Mr Mandic states that this business subsequently offered him an internship which was due to start on 10 January 2011.
51. Mr Mandic described the activities in which he has been involved in the past 12 months, some of which are referred to above. While attending TAFE, doing his artwork and seeking professional help, he was also working part-time in a café as a kitchen hand. Mr Mandic said at the time he was detained on 16 December 2010, he was also about to go with his case worker to sign up for an apartment which had been arranged with the Housing Intervention Assistance Project.
52. Mr Mandic said when he was detained and taken to Villawood, he was in shock and fell into a deep depression for about four weeks. At that time, he was in the process of turning his life around and had established support groups to help him. He is still confident that with professional help he can succeed in dealing with his addiction and making himself part of society.
53. Having heard the evidence and read the extensive documentation, I am impressed by Mr Mandic’s intelligence, his insight into his condition and his commitment to, as he described it, turning his life around and overcoming his addiction to heroin. The evidence of his counsellors supports this and the other documents with which I have been provided point to his proactive approach to addressing his addiction and integrating himself into the community. It was unfortunate that he was detained at the time that he was, a time when the hard work Mr Mandic had put into this over the previous nine months since his release from prison was beginning to show positive results both in terms of his having developed a strategy with his counsellors for addressing his drug addiction and reintegrating him into the community with employment, housing and other creative activities.
54. I am satisfied from the evidence that Mr Mandic has undergone significant rehabilitation and has proved his ability to live constructively in the community. I am also satisfied that the prospect of his overcoming his addiction to opiates is very high and that consequently the risk of his committing further criminal offences is very low. In my view, the Australian community has little to fear from Mr Mandic and the evidence indicates that there is a very good chance of his becoming a productive member of the community if allowed to stay.
Length of Time Ordinarily Resident
55. The second primary consideration relevant in Mr Mandic’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”.
56. Mr Mandic first offended in Australia on 3 February 1994 after he had been resident here for 15 months. Because of the relatively short period between his arriving in Australia and his first offending here, this consideration should not be treated as a consideration in his favour. Rather it should be regarded as a neutral factor: Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].
Relevant International Obligations
57. In Mr Mandic’s case, the principal obligation is that concerning non-refoulement contained in the Refugees Convention. Article 33(1) states:
(1)No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
However, I also note that the provisions of the International Covenant of Civil and Political Rights, in particular the right to life (Article 6) and not to be subjected to cruel, inhuman or degrading treatment or punishment (Article 7), may be relevant when considering such international obligations.
58. Mr Mandic escaped from the former Yugoslavia in September 1991 after deserting from the Army Reserve to which he had been called up at the beginning of the civil war to fight for Bosnia on the Croatian front. He escaped to Germany where he was granted a temporary refugee visa. In November 1992, Mr Mandic was granted a prospective spouse visa enabling him to migrate to Australia with his girlfriend who had also left the former Yugoslavia. They married but their marriage subsequently broke down. Mr Mandic attributes this to the extreme culture shock they experienced on arrival in Australia, to the very poor circumstances in which they were living, and to the pressure exerted on his wife by her Croatian family in Australia.
59. An International Obligations and Humanitarian Concerns Assessment in Mr Mandic’s case was prepared by a departmental officer and dated 22 July 2010. This assessment notes that Mr Mandic was born in Banja Luka, Bosnia, in what is now part of the Republika Sprska. His father was Serbian and his mother Croatian. The assessment states that the Republika Sprska Amnesty Act covering the period 1 January 1991 to 14 December 1995 specifically excludes from the amnesty “Republika SPRSKA citizens who have committed the criminal acts of not responding to the call-up or avoiding military service … and wilful escape or desertion from the army”. A copy of the Criminal Code for the Republika Sprska provided by Mr Mandic indicates that under Article 300, the offence of escaping abroad or remaining abroad with a view to evading military duties is punishable by imprisonment for a term ranging from six months to five years. The assessment, however, states that Mr Mandic could face imprisonment for these crimes of up to 10 years.
60. While the assessment does not find substantial grounds for believing Mr Mandic will be subjected to torture if returned to Bosnia and Herzegovina, it refers to a 2010 Amnesty International Report on Bosnia and Herzegovina which in turn refers to a report by the State Ombudsmen dated September 2009 commenting on the ill-treatment of detainees by the police and in prisons:
They cited inadequate hygiene and material conditions as well as lack of access to health services for detainees. The authorities failed to address the situation in Zenica Prison Forensic Psychiatric Annex, where patients with mental health problems lacked adequate medical assistance.
61. The assessment states there are indications that a pattern of gross, fragrant or mass violations of human rights may exist in Bosnia and Herzegovina, relying on a 2009 US Department of State Country Report on Human Rights in Bosnia and Herzegovina and a 2010 Amnesty International Report. The assessment states:
Country information clearly shows that recriminations for the ethnic wars of 1991-1995 are ongoing and that relations between Serbs, Croats and Bosnian Muslims have worsened dramatically. …
In a volatile environment, with high levels of unemployment and poverty, it is fair to say that anybody seen as an outsider could easily become a scapegoat.
62. The assessment concludes:
Mr Mandic has lived in Australia since 1992, a period of 18 years. He fled his home country to avoid an ethnic war, and if returned, would in all probability be punished for that.
If convicted, Mr Mandic would face incarceration in conditions well below international standards.
His marriage fell apart due in no small part to the pressure put upon him by his Croatian wife’s parents, whom he claims could not accept him on account of his ethnicity.
In his personal statements, Mr Mandic comes across as an intelligent man who has made the effort to learn English and to assimilate in Australia. His lapse into alcoholism and drug addiction has resulted in an extensive criminal record, but his crimes have not been of a violent nature.
63. Mr Mandic said his family suffered because of his deserting and fleeing to Germany. They are far from “influential” as suggested by the departmental delegate in the statement of reasons for his decision. Mr Mandic said that his mother “lost her job at an employment agency for reasons of her being Croatian and my desertion”. His father, who served in the Yugoslav Army and would have been embarrassed by his son’s desertion, was an electrical engineer and never influential. His father is now aged 68, suffering from heart disease, lives in a one‑bedroom flat on a pension of $450 per month, and is cared for by Mr Mandic’s sister who is a former successful basketball player. The rest of his family are dispersed throughout Europe.
64. Mr Mandic said he fears imprisonment if returned to Bosnia and Herzegovina; even if he survived imprisonment, it is likely that he would suffer persecution, and his employment and health care prospects would be non-existent. Mr Burwood submitted that the evidence supports a finding that Australia has an obligation not to return Mr Mandic to Bosnia and Herzegovina.
65. Having considered the evidence, and with particular reference to the assessment prepared by the Department, I am satisfied that there is a real possibility of Mr Mandic being charged with desertion if he is returned to Bosnia and Herzegovina and of his being imprisoned in conditions that are below international standards especially for those with mental health problems. This could involve a violation of his human rights and, in terms of Article 33(1) of the Refugees Convention, a threat to his freedom on account of his ethnic background. I accept that because of the ongoing ethnic conflict there, Mr Mandic’s mixed ethnic background and his desertion from the Army Reserve, he may be subject to discrimination and ostracism. Dr Colquhoun’s evidence suggests that, in such a situation, if Mr Mandic’s mental health deteriorates, he may be at risk of suicide. All of this leads me to conclude that the primary consideration of relevant international obligations favours Mr Mandic’s visa not being cancelled.
OTHER CONSIDERATIONS
66. As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Mandic’s case specifically referred to in the Direction are his family and other ties to the Australian community, his age, his health, his links with Bosnia and Herzegovina, the hardship that may be experienced by Mr Mandic if he is returned to Bosnia and Herzegovina, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
67. Mr Mandic does not have any family in Australia. He was divorced from his wife many years ago and does not presently have a spouse-like relationship. Dr Colquhoun said that Mr Mandic told him he “has not had the opportunity or inclination to have a long-term relationship at all while [he] has been dependent on heroin, subject to proceedings and trying to overcome his addiction”. His ability to form long-term relationships is likely to have been affected by his opiate dependency. Having lived here for over 18 years, he has, however, become acclimatised to the Australian community, his English is excellent, and the evidence as to the educational and training programs he has completed indicates that he has made significant efforts to complete relevant training to enable him to obtain suitable employment. I agree with the comments made, for example, both by both Dr Colquhoun and the departmental assessor, that he is an intelligent man who is motivated to become assimilated into the Australian community.
68. Mr Mandic is aged 42 and, according to Dr Colquhoun, suffers from anxiety and depression for which he needs ongoing psychological treatment. Mr Mandic says he also suffers from hepatitis C and tinnitus. Mr Mandic acknowledges that he needs professional support to assist with his rehabilitation and he has put that in place. I have already referred to the likelihood that his mental health will be adversely affected if he has to return to Bosnia and Herzegovina. His father and sister still live there. Mr Mandic said that whilst initially he was not in regular contact with them, he is now communicating with them regularly and it is obvious from his evidence that he is fond of them both. Whilst it would appear that they could help Mr Mandic if he has to return to Bosnia and Herzegovina, their capacity to do so may be limited, since his father is retired and living in a one bedroom flat, suffers from a heart condition and relies on a modest pension, and his sister is unemployed, three months pregnant and living with her boyfriend.. Mr Mandic said his extended family are now spread across Europe.
69. Mr Mandic has received two prior warnings: in 1998 and in 2003. I note from the documentation provided by the Department that at the time he responded to the notice of intention to cancel his visa in April 2003, Mr Mandic had been free of drugs since 2001 and was feeling positive about his rehabilitation. I also note the evidence of Dr Colquhoun and Mr Harris that relapses are not uncommon during the process of overcoming a dependence on opiates, but also that in their opinion Mr Mandic now has a very good chance of overcoming this given his motivation and commitment.
Conclusion
70. Weighing up the relevant ‘primary considerations’, as stated above, I am satisfied that Mr Mandic represents a minimal threat in terms of the protection of the Australian community. I am also satisfied that the relevant international obligations favour Mr Mandic being allowed to remain in Australia. The other relevant primary consideration, the length of time Mr Mandic has been ordinarily resident in Australia, is, as explained above, a neutral consideration. Of the ‘other considerations’ to which less weight must be given than the primary considerations, I accept that Mr Mandic’s return to Bosnia and Herzegovina would cause him significant hardship because of the possibility either of his being charged with desertion and being imprisoned or of being subjected to discrimination or ostracism, and because of the limited support he is likely to have there. His mental health is also likely to suffer as a result.
71. Mr Mandic has been diligent in undertaking training and if released into the Australian community there appear to be good prospects for him obtaining employment. Notwithstanding that Mr Mandic has previously been warned about consideration being given to the cancellation of his visa, I was impressed by his motivation and commitment and the evidence indicating that he has a very good chance of overcoming his drug addiction.
72. Weighing up all these matters, I am satisfied that the discretion in s 501(2) of the Act should be exercised in Mr Mandic’s favour and his visa should not be cancelled.
Decision
73. The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Mandic’s favour so as not to cancel his visa.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed:..........[sgd].....................................................................
A Veness, AssociateDate of Hearing 18 February 2011
Date of Decision 3 March 2011
Counsel for the Applicant Mr D Burwood
Solicitor for the Respondent Mr S Moloney, Clayton Utz
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