Petrovic and Minister for Immigration and Multicultural Affairs
[2000] AATA 1135
•21 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1135
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q00/796
GENERAL ADMINISTRATIVE DIVISION )
Re ZORICA PETROVIC
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date21 December 2000
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant and that his visa application be reconsidered in an expedient manner.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa refusal – status of foreign convictions – non-disclosure on application – community expectations.
Migration Act 1958 s 501
REASONS FOR DECISION
21 December 2000 Deputy President DP Breen, Presidential Member
This was an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a Subclass 309 Spouse Visa to Mr Branislav Petrovic, the visa applicant, under Section 501 of the Migration Act 1958.
The matter was heard before me on 12 November 2000 in Brisbane. Written submissions were received from both parties by 14 December 2000. Mrs Petrovic was represented by Mr D Rangiah of Counsel, instructed by Leslie Hunt Migration and Consultancy Services. Mr H Copley, Solicitor of Messrs Blake Dawson Waldron, represented the respondent Minister.
Oral evidence was taken from the visa applicant and the applicant. The following documents were also taken into evidence.
Exhibit 1 "T" Documents
Exhibit 2 Affidavit of Branislav Petrovic dated 10.11.00
Exhibit 3 Affidavit of Zorica Petrovic dated 26.10.00
Exhibit 4 Attachments – bundle of applicant's documents
Exhibit 5 Extracts from Yugoslavian Criminal Code as at 1964
Exhibit 6 Yugoslavian document of Folio 81 in "T" Documents
Exhibit 7 Court Testimonial dated 25.9.00
Exhibit 8 Court Testimonial dated 1.4.85
Exhibit 9 Extracts from a Yugoslavian Criminal Law Text Book
Mr Petrovic is 43 years of age and a citizen of the Federal Republic of Yugoslavia. Mrs Petrovic was born in Yugoslavia and migrated to Australia with her parents in 1971 at the age of 9 years. In 1979 she obtained Australian citizenship but was sent back to Yugoslavia in 1983 by her parents in order for her to become more familiar with her cultural heritage. It was during that extended visit that she met Mr Petrovic and they were married in 1987. Mrs Petrovic remained in Yugoslavia with her husband as he had a good job there as a truck driver. They have three children aged between 5 years and 13 years. All three children have Australian citizenship. When the war broke out in Kosovo in 1999, Mr Petrovic insisted that his wife and children returned to Australia for their safety. It was his intention to apply for a spouse visa and follow them to Australia.
When Mr Petrovic filled in his application and attended an interview for the purpose of migration he stated that he had no past criminal convictions. Approximately two weeks after the interview he forwarded his police clearances to the respondent which showed that in 1977 he had been convicted of co-operating in a rape and was sentenced to five and a half years imprisonment.
Mr Petrovic's visa was refused under Section 501 of the Migration Act. The conviction in 1977, and subsequent sentence, means that he has a substantial criminal record as defined in subsection 501(7) and so fails the character test. This subsection considers only the sentence imposed by the Court, not whether it was actually served. Nor does this subsection allow for the Tribunal to enquire as to whether the offence was in fact committed. The Tribunal must accept the fact of the conviction. Therefore, the Tribunal is left to consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No. 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.
There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.
Protection of the Australian community
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the cancellation of the visa will have on other non-citizens.
Nature and Seriousness of Crime
With respect to the nature and seriousness of the crime committed, the Tribunal is of the view that rape and assisting a rape are very serious offences. However, Mr Petrovic's evidence was that he simply introduced the victim to a friend of his and then went to school for the rest of the day. On his way home he saw the victim, who was very upset, told him that his friend had tried to rape her and asked him to walk her home. While the Tribunal finds this evidence somewhat inconsistent with a sentence for over 5 years imprisonment, Mr Petrovic's version of events was not challenged in any way. The respondent did not place before the Tribunal any official version of facts on which the sentence was imposed or any other version from any other source. While the respondent contends that the Tribunal should place little weight on Mr Petrovic's evidence where it seeks to minimise or impugn the conviction, the respondent's cross-examination does not lay any basis for a submission challenging his version of events.
What the Tribunal is left with is a description of an event which occurred 24 years ago and was considered serious enough under Yugoslavian law to warrant a conviction and a lengthy criminal conviction. That the same event may not have been treated so harshly in Australia is something the Tribunal may have regard to, particularly as the legal system in Yugoslavia is quite different from that in Australia, but the fact of the conviction remains and cannot be disregarded in any way. To take this approach is not to go behind the conviction but, rather, to assess how seriously the Australian community would regard this particular instance of criminal activity in all of the circumstances. The mere fact that a conviction issues out of a foreign court does not of itself give cause for this Tribunal to question it. There would have to be clear evidence of a substantial miscarriage of justice, which is political in nature, before that issue would arise.
Nature and Seriousness of Non-disclosure of Conviction
Mr Petrovic speaks little English and needed assistance in filling in his application form. At the time he filled the form in and when he attended the interview, he had in his possession a document from the Yugoslav Courts attesting to the fact that he did not have any convictions. While it is clearly the law in Yugoslavia that a conviction which attracts a sentence of over 3 years imprisonment cannot be expunged, most truck drivers are not well versed in the intricacies of sentencing laws, even in this country. While ignorance of the law is no excuse, it would not have been unreasonable for Mr Petrovic to have acted on the court documents, particularly given the length of time which has elapsed since the conviction. Once Mr Petrovic became aware that the conviction was still on his record, he notified the respondent of it.
It is the Tribunal's view that the failure to notify the Immigration Department of the conviction in the first place was not an attempt by Mr Petrovic to fraudulently gain entry to Australia, but an honest misunderstanding. It is true that the application forms request information on all convictions, even if they have been removed from the record. However, given the visa applicant's limited understanding of the English language and the fact that he regards the conviction as a part of the distant past, makes it understandable that he would have answered "no" to that question. As such, it is the Tribunal's view that the Australian community would not view this non-disclosure as a serious threat to its protection.
Risk of Recidivism
With respect to the risk of the visa applicant committing another crime of the type he was convicted of, the Tribunal assesses it to be so minimal that it hardly bears consideration. In the past 24 years the applicant has not committed any crimes and has been an upstanding member of the Yugoslav community. He had no other convictions before the offence in 1977 and that offence can truly be described as a mere aberration in this man's life. It is extremely unlikely that he would be involved in a crime of a sexual nature or any other nature for that matter upon his arrival in Australia.
The fact that when he obtained police records showing his conviction he appropriately notified the respondent, tends to suggest that he is unlikely to habitually place false information on documents to be lodged with Government Departments. These proceedings have certainly made both himself and his wife very aware of the need to be very careful in providing correct information to the Government in the future, further minimising any risk.
General Deterrence
The question of general deterrence is not of great weight in this matter as the visa refusal is not likely to be widely publicised.
Community ExpectationsThe second primary consideration is the expectations of the Australian community. These expectations are that a non-citizen will obey Australian laws. Where there is a risk that this trust will be breached, or the crime which the person is convicted of is so abhorrent, it may be appropriate to refuse the visa.
While rape is a crime generally considered abhorrent by the Australian community, there is also an expectation held by the community that if a person has served the time for their crime and shown that they have been rehabilitated, that they be permitted to carry on with their lives. Whatever Mr Petrovic's involvement in the offence, his good conduct for the past 24 years makes it clear that he has been rehabilitated. These provisions under the Migration Act are not designed to further punish an individual for their crimes but to protect the Australian community. In this case the refusal of the visa on these grounds would act to further penalise Mr Petrovic.
With respect to the non-disclosure of the conviction to the Immigration Department in the first instance, this is something which would concern the Australian community. It is important that people seeking to enter this country are honest about their pasts so that Australians, through the Department, can make an informed choice as to who they let into the country. It is important for the safety of the community as a whole that this information is given. However, given Mr Petrovic's state of knowledge at the time he provided the information, and the fact that once he was aware that his assumptions were false and the conviction was still on his record he notified the Department, it is the Tribunal's view that the Australian community would not expect him to be precluded from entering the country on this basis.
Best Interests of the ChildrenThe final primary consideration is enlivened in this case as Mr Petrovic has three children who are Australian citizens. The starting point under the Ministerial Direction for this consideration is that the best interests of the children will be served by their remaining with their parents. There is no evidence to suggest that the children's interests do not coincide in this matter. The respondent submitted that as the children had resided in Yugoslavia until last year, they would face limited hardship if they were to return.
It is important to remember, however, that these children are Australian citizens. Their mother, who is also an Australian citizen, has said that it is her intention to remain in Australia, with the children to remain as well. This course of action is one supported by the visa applicant. It was his evidence that he would prefer the children to remain in Australia where they are safer and have more opportunity. He thought it was better that only he suffered rather than his whole family and he simply hoped that they would visit him from time to time. Educational and health services are better in Australia than they are in Yugoslavia. Further, although the war in Kosovo is officially over, the Balklands area continually suffers upheaval and there is currently political unrest with Montenegro, which threatens to escalate into further violence. Therefore, it is clear that the children's best interests are served by their remaining in Australia.
The children have never been separated from their father until they came to Australia. It is not denied that they share a loving relationship with him and are missing him greatly. Emotionally they would benefit from their father being allowed to come to Australia and in the longer term they would benefit financially as well once he is able to obtain employment. It is the Tribunal's view that the best interests of these children would be served by Mr Petrovic's visa being granted.
The primary considerations are weighed in the applicant's favour. There are a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration. The pertinent considerations are as follows:
(a)the extent of disruptions to the non-citizen's family, business and other ties to the Australian community;
(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(c)family composition of the non-citizen's family, both in Australia and overseas;
(d)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen; and
(e)any evidence of rehabilitation and any recent good conduct.
Mr Petrovic's father and sister live in Yugoslavia. His wife, children and wife's family live in Australia. While it is true that he currently has no other ties to Australia, and that he will probably need some assistance from social security upon his arrival, the refusal of the visa would separate him from his family. Given their current financial position it is unlikely that Mrs Petrovic and her children would be able to visit him for a number of years, causing the visa applicant extreme emotional hardship.
The refusal of the visa places the applicant, Mrs Petrovic, in a very difficult position. She must either take her children back to Yugoslavia where they have limited prospects and face continued political upheaval, or she remains in this country, separated from her husband, and raises her children alone. The lack of emotional and financial support from her husband will cause her severe hardship.
As stated above, Mr Petrovic has not engaged in any criminal conduct in the past 24 years. He has character references from employers which all attest to his being hard-working and honest. It is his intention, if he is permitted to come to Australia, to learn English as quickly as possible and to seek work in the transport industry so he can support his family and make a positive contribution to the Australian community. It is the Tribunal's view that the failure to disclose the conviction at first was not a further blemish on the applicant's character, but a reasonable misunderstanding on the basis of the court documents which the visa applicant sought to rectify as soon as he was aware of the mis-information.
Therefore, the secondary considerations are also balanced in favour of the visa applicant.
That a man was convicted of the offence of assisting a rape and sentenced to 5½ years imprisonment means, under this legislation, that he lacks good character. That he has not committed any other crimes in 24 years, has been gainfully employed and raising a family during that times makes it clear that he has been rehabilitated and is of no threat to the Australian community. That he failed, on the basis of official court documents, to declare that conviction on his application to come to this country is of concern, but was an honest and reasonable mistake. That he provided the correct information to the Department as soon as he was aware that the conviction was still on his record, shows that he was not attempting to fraudulently obtain entry into this country but was acting in good faith. That the refusal of the visa would see him separated from his family, perhaps permanently, or see the return of his children who are Australian citizens to a country which only rarely exists in a fragile state of peace, shows that the decision to refuse the visa failed to appropriately take into account the real human element of this case.
The Ministerial Direction speaks a lot about the expectations of the Australian community and the community's low tolerance of crime. The Ministerial Direction does not pay a lot of attention to the ethos of "the fair go" which is so inherent in the Australian community or the compassion which this community is capable of displaying. A young man got involved in a crime 24 years ago and he did not mention it when he first applied to join his family in this country because the courts of his country incorrectly told him that the conviction no longer existed. That should not preclude him from coming to Australia, when all of the evidence points to the fact that he is not a threat to the community and will most likely make a positive contribution to this nation. This is a case where the Australian community would expect that the discretion be exercised in the visa applicant's favour.
Therefore, the Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant and that his visa application be reconsidered in an expedient manner.
I certify that the 29 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 13.11.00
Date of Decision 21.12.00
Counsel for the Applicant Mr D Rangiah
Solicitor for the Applicant Leslie Hunt Migration and Consultancy Services
Solicitor for the Respondent Mr H Copley, Messrs Blake Dawson Waldron
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