Petkoski and Minister for Immigration and Multicultural Affairs
[2000] AATA 800
•8 September 2000
ORAL DECISION AND REASONS FOR ORAL DECISION [2000] AATA 800
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q00/660
GENERAL ADMINISTRATIVE DIVISION )
Re ZLATE PETKOSKI
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORAL DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date8 September 2000
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution for it decides that the applicant continue to be permitted to reside in Australia.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. Q00/660
GENERAL ADMINISTRATIVE DIVISION )
Re: ZLATE PETKOSKI
APPLICANT
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT
CORRIGENDA
Before: Deputy President DP Breen, Presidential Member
Date: 6 October 2000
Place: Brisbane
The Tribunal amends its Oral Decision dated 8 September 2000, whereby it set aside the decision under review and in substitution for it decided that the applicant continue to be permitted to reside in Australia, to read as follows:
"The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant, ZLATE PETKOSKI, and that he be granted the visa he seeks."
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa cancellation – equivocal evidence regarding convictions in Yugoslavia – Tribunal not satisfied those convictions were imposed against applicant – significant period of residence in Australia – criminal convictions in Australia not amounting to substantial criminal history.
Migration Act 1958 s 501
REASONS FOR ORAL DECISION
8 September 2000 Deputy President DP Breen, Presidential Member
The evidence in this case is in many respects unconvincing, especially on the most salient points at issue in the case.
For example, does the applicant or does he not have convictions recorded against his name, as against in his name, in Yugoslavia. I find the records from the Republic of Macedonia purporting to prove convictions in the name of Zlate Petkoski, though they set out the personal details of the applicant, such as date of birth, name of parents, place of birth, present address etc to be unconvincing. The evidence overall suggests that interchanging of names and identities is not uncommon. I have no idea why a third person would adopt the identity of the applicant for the purpose of criminal proceedings in Yugoslavia. However, that is not the issue for me to resolve. I repeat my view that the records are unconvincing.
However, equally, I find the evidence of the applicant that he was not the person convicted of the relevant offences in Yugoslavia also to be unconvincing. I am left in the position on this issue of having to say that I am unable to decide it on the evidence as it presently stands. Therefore, a finding on that issue against the interests of the applicant, a person who was lawfully admitted to this country in 1974 notwithstanding the claim that certain of these convictions then already stood on his record, should now be removed from it cannot be justified and I therefore refuse to make such a finding.
Evidence was led of his criminal history and of his path of life in Australia. His criminal history here does not amount to a substantial criminal history as defined in the legislation. As to his lifestyle as an itinerant farm worker, it is clear that whilst he can be regarded as something of a social pest, it clearly cannot be found by a responsible legal forum that he is a man of criminal ways who offers a threat, whether through criminality or through generality, to the Australian community. He has one conviction of assault, an offence committed within months of his arrival in this country. According to the Crown case he was deported because of that conviction and sentenced. According to his case, he was not.
My view is, on all of the evidence, that indeed he was but it is clearly established that he was re-admitted to this country at the latest in 1992. He was re-admitted by the use of a false passport, an example of what I have already spoken of, namely, a claimed propensity on the part of Serbian people to interchange identities. I make that comment based on the evidence before me in this case. I do not say that in fact the Serbian people have such a propensity. I merely say that on the evidence in this case it is fair to say that such a propensity has been claimed.
The applicant has made little contribution to the Australian community and in my view can claim no likelihood of doing so in the future. However, he was admitted to this country 26 years ago, he has resided in this country in the aggregate for quite a number of years – it is difficult to be exact as to how many – and though he has been convicted of some criminal offences and though his lifestyle has been that, as I have said, of an itinerant farm worker who has established no real personal or community ties, on all of the evidence before me I do not believe the decision under review is justified.
I therefore set aside the decision under review and in substitution for it the Tribunal determines that the applicant be permitted to continue to reside in Australia.
I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 4, 5, 6, 8 September 2000
Date of Decision 8 September 2000
Counsel for the Applicant Mr D O'Gorman, Pro Bono Counsel
Solicitor for the Applicant
Counsel for the Respondent
Solicitor for the Respondent Mr P O'Higgins, Messrs Blake Dawson Waldron
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