Rankovic and Minister for Immigration and Multicultural Affairs

CATCHWORDS – IMMIGRATION – character test – whether applicant not of good character – whether discretion ought to be exercised in applicant's favour – decision set aside

Migration Act 1958 ss. 31, 500, 501, 499
Migration Regulations Schedule 2, Schedule 4 clause 4001

DECISION AND REASONS FOR DECISION [2001] AATA 1054

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2001/1253
GENERAL ADMINISTRATIVE DIVISION     )

ReSLOBODAN RANKOVIC
Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 13 December, 2001
Place: Melbourne

DECISION

The Tribunal:

1.sets aside the decision of a delegate of the Minister dated 18 September, 2001; and
2.substitutes a decision that the applicant's visa should not be cancelled on character grounds pursuant to s. 501 of the Migration Act 1958.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 2 October, 2001, the applicant, Mr Slobodan Rankovic (also known as Mr Bob Rankovic), applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") dated 18 September, 2001. The Minister's decision was that Mr Rankovic's bridging visa be cancelled pursuant to s. 501(2) of the Migration Act 1958 ("the Act") on the ground that he did not pass the character test specified in s. 501(6)(a) of that Act.

At the hearing, Mr Rankovic was represented by Mr Hughan of counsel and the Minister by his solicitor, Mr Brereton. The documents lodged by the Minister pursuant to s. 500(6F) of the Act were admitted in evidence
("G documents") together with a number of statements and other documents, the essence of which I will refer to in the course of these reasons. Mr Rankovic gave evidence in support of his case together with his wife, Mrs Nadia Rankovic, Mr Colin McInnes-Smith, Pastor David Drummond and Mr Alan Parkin. No oral evidence was led on behalf of the Minister.

THE ISSUES

The first issue is whether Mr Rankovic passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.

BACKGROUND

Many of the background facts were not in dispute between the parties. In light of that and on the basis of the evidence, I have found the facts that I will set out in the following paragraphs.

Mr Rankovic was born in Yugoslavia on 11 October, 1955 and raised in Belgrade. He is of Serbian ethnicity but his mother is from Croatia. When he was very young, his parents separated and he was raised by his mother. He does not have any brothers or sisters and his father died several years ago. Mr Rankovic completed 12 years of schooling before completing a commerce degree at the University of Belgrade. He majored in sales and marketing in his degree.

During 1975 and 1976, he completed 15 months of compulsory military service. After completing his commerce degree, Mr Rankovic worked for a large clothing manufacturer and retailer for whom his mother also worked. Later, he was employed by an automotive parts company before commencing his own small
textile business.

Mr Rankovic was married on 28 November, 1982 and remained married until 1985. In 1988, he left Yugoslavia. His friend, Mr Zelko Markovic, left at the same time. While his friend travelled to Australia, Mr Rankovic travelled to Canada on a tourist visa. He later applied for refugee status and was granted that status. His work was varied and included factory work, selling flowers and labouring as a builder's labourer.

Mr Rankovic felt very lonely in Canada but he kept in touch with Mr Markovic, who was very happy with his new life. They would speak over the telephone and Mr Rankovic also spoke with Mr Markovic's wife, whom he met in Australia. He also spoke to their friend, Nadia Sabioni, who emigrated to Australia in October, 1967 from Yugoslavia with her parents and siblings. She was then 13 years of age and, five years later on 1 December, 1972, became an Australian citizen (Exhibit S). Mrs Rankovic first worked in a factory and then as a sales assistant in a pharmacy. When she was 19, she returned to Yugoslavia to stay with family and returned when she was 21. On returning, she worked as a waitress and at a dry cleaners before completing a business course. She then obtained a position as a medical receptionist and remained in that position for five years.

Nadia and Mr Rankovic felt a mutual attraction over the telephone and he invited her to visit him in Canada. Before she did so, Mr Rankovic asked her whether she would help him get to Australia. He wanted to come to Australia as he felt that his friend was very happy here. Nadia told him that she would help him if she could but would only help as his fiancée. Marriage to him at that stage and his entering Australia did not enter her head. She would help him by becoming his fiancée and then seeing whether it would develop into a more serious relationship. She would never marry for anything other than love. In 1989, Mrs Rankovic travelled on a ticket that took her first to Toronto and then to Yugoslavia to visit her relatives before returning to Melbourne. Nadia arrived in Toronto on 5 March, 1989 and, on the basis of her evidence, I find that she fell in love with Mr Rankovic on 17 March, 1989. She said she remembers the date will because it was St Patrick's day. Mr Rankovic also fell in love with her and she never continued her trip but remained with him in Canada. While in Canada in approximately 1990, Mrs Rankovic became a born-again Christian. She and Mr Rankovic married on 22 February, 1991 (Exhibit T).

During 1991, Mr Rankovic found work difficult to obtain as there was a downturn in the building industry in Canada. He was unemployed for a few months but then found work with Craftwood Flooring which is a company making and installing hardwood floors. He worked for that company for two years and then opened his own business carrying out similar work. He employed a person full-time as well as other casual employees.

Both Mr and Mrs Rankovic were granted permanent residence in Canada in late 1992. They decided to stay in Canada. In November, 1994, they were married in an orthodox Church. On 24 April, 1996, Mr Rankovic became a Canadian citizen (Exhibit V) but Mrs Rankovic decided that she was happy with her Australian citizenship. He was very happy but Mrs Rankovic was not entirely happy as she missed her family. Her sister had visited her each year, her brother had visited three times and her mother had also visited but Mrs Rankovic was homesick for Australia. In the beginning, Mr Rankovic had promised her that they would go to Australia and she had been very patient waiting for him. In 1996, Mr Rankovic obtained a three month tourist visa to visit Australia. He sold the equipment in the business, travelled to Yugoslavia to visit his mother who still lives there and returned to Toronto in order to travel to Australia in January, 1997. Mr Rankovic arrived in Australia on 29 January, 1997.

Mr and Mrs Rankovic spent the first few months of their life together in Australia living with Mrs Rankovic's mother and brother. Mrs Rankovic obtained employment as a pathology collector. Mr Rankovic extended his visitors visa. He was unable to work as his visa did not permit it and, initially, was not sure that he wanted to stay in Australia. Seeing that his wife was happier, he decided to stay and lodged an application to be permitted to do so. Mr Rankovic completed an application for permanent residence and lodged it with a person whom he thought was a migration agent. He had met that person at a café in Carlton where other Serbians met. Mr Rankovic, who had to borrow them from his father in law, gave the man the lodgement fees and $200 for his fees but the application was never lodged and the man never seen again. Mr Rankovic discovered that the application had not been lodged when he visited a friend in immigration detention and was himself detained on the basis that he was not legally in Australia. He was then granted a bridging visa and lodged a fresh application on 4 June, 1998. As a condition of his bridging visa, he was unable to work in Australia and that remained the case until January, 1999.

Mrs Rankovic found the Pentecostal Church in Richmond ("the Church") during 1999. She and her husband attended an Alpha course on Christianity in June, 1999. That course, which assists people to learn more about Christianity, lasted ten weeks. Mr Rankovic was arrested on 5 November, 1999. He helped out on the next Alpha course. Mr and Mrs Rankovic were baptised on 16 April, 2000 (Exhibits Q and R). Mr Rankovic said that he and his wife are part of the welcoming and hospitality ministry in the Church. In that role, they help new people in the Church. Prior to his arrest, he took a young offender, Mr Errol Akkus, to Teen Challenge at Kyabram. Teen Challenge is a drug rehabilitation programme established by the Assemblies of God Church.

Mr Rankovic was convicted of cultivating cannabis, theft and attempted theft by Judge Kelly in the County Court. He was sentenced to eighteen months imprisonment on the first count, three months on the second count and one month on the third. As two months of the sentence on the second count was directed to be served cumulatively upon the sentence on the first count, the total sentence was twenty months imprisonment. He was ordered to serve nine months imprisonment before becoming eligible for parole. Mr Rankovic and his co-offender, Mr Zoran Sovilij were directed to pay compensation in the sum of $2,285.69 to United Energy Limited.

THE EVIDENCE

The offences

The sentencing remarks

Judge Kelly described the circumstances of the offence:

"… on 7 November 1999, police raided premises at 342 St Kilda Street, and 47 Glencairn Avenue, Brighton, and arrested the three prisoners; none of whom lived at either of those premises. 47 Glencairn Avenue had been converted into a factory for the hydroponic production of cannabis. 343 St Kilda Street was in the course of conversion for the same purpose.
Indeed, the prisoner Popic was caught red-handed using his trade of electrician to complete the wiring of lights in the rooms of the house by connecting it to the main supply anterior to the meter.
47 Glencairn Avenue contained 144 immature cannabis plants; and 342 St Kilda Street a quantity of drying plants which had been grown at 47 Glencairn Avenue. Tenancy records establish that 47 Glencairn Avenue was leased to the prisoner Rankovic from 3 June 1998 to 2 June 1999, and to the prisoner Sovilj from 7 July 1999 to the date of his arrest.
342 St Kilda Street was leased to Rankovic from 7 July 1999 to the date of arrest. From these facts I deduced that Rankovic used the Glencairn Avenue premises to grow cannabis. Sovilj continued to use it for this purpose and that Rankovic was in the course of transferring his factory to 342 St Kilda Street. Each of these prisoners pleads guilty upon separate presentments to his part in an enterprise which, and through his counsel he protests, was a separate enterprise from that of his fellow accused. Their relationship was that of friendship and not of partnership. I am prepared to accept these protestations; matters could have fallen out that way.
Each of the prisoners has his own Via Doloroso to the commission of his crime. Rankovic, an immigrant to Canada from Yugoslavia established a floor-laying business and married a woman of Yugoslav descent but Australian citizenship who was visiting Canada on holiday. She became a Canadian citizen and worked there, acquiring an ability to collect blood. She became homesick and so they came to Australia, she as a citizen and using her ability to gain employment with Dorevitch Industries, Pathologists, he on a tourist visa without any permit to work.
A permit to work was granted in 1999. By then he had become engaged in this illegal industry, perhaps because of the inability to engage in lawful work. …" (G documents, pages 196-197)

In sentencing the offenders, Judge Kelly said, in so far as it concerns Mr Rankovic:

"Neither of these prisoners has any prior convictions. Rankovic is 45 years of age and married but without children. …Each prisoner has produced impressive evidence of previous and subsequent good character, by way both of oral testimony and written references. Both have pleaded guilty at an early stage. The risk, foolishly created by Rankovic, of deportation, which I trust will not become reality, is matched by Sovilj's experience of the shameful brutality of the Melbourne Custody Centre. I am unable to find any distinction between these prisoners relevant to sentence.
…
Popic's crime was opportunistic, committed at the instigation of others, little contemplated and undertaken for relatively small profit. Its seriousness was not such as to demand immediate imprisonment. Consideration that without skilled assistance the electrical bypass might not readily and safely be made, justifies the imposition of imprisonment. But the circumstances and the prior character of the prisoner make it expedient and just to suspend such imprisonment.
I have considered the case of the other prisoners with anguish. The conclusions I have reached as to their seduction into this crime, and their otherwise good character and prospects, strongly incline me to take a similar course to that taken in Popic's case.
Regretfully I have come to the conclusion that such a course would be wrong. The community has chosen to proscribe as a serious crime the cultivation of cannabis for profit. Each of the prisoners ignored this proscription and set out upon a considered, planned, pre-meditated breach of the law for his own profit. Although the state of the crop and lack of automatic watering and the delay in fitting 342 St Kilda Street all point to a casual or amateurish enterprise, there can be no doubt that each of these prisoners sought to gain a large financial advantage over other citizens, by the use of unlawful means.
The purposes, both of retribution and general deterrence make, in this circumstance, a sentence of imprisonment to be actually served mandatory. The unfortunate nature of this aberrant and isolated diversion into a criminal path, the amateurish way that path was followed until closed by police intervention, I seek to reflect by limiting both the sentence and the time directed by me to be spent in custody. …" (G documents, pages 193-195)

Mr Slobodan Rankovic

His inability to work until January, 1999, led to his becoming frustrated and depressed. His frustration arose not only because of his being bored but because he could not fulfil his role as the provider for his family. This was a matter that weighed heavily on his mind as it is part of his cultural background that a husband should fulfil that role. Money was in short supply and he and his wife had great difficulty in making ends meet in the months after their arrival. Time, however, was not in short supply and it weighed heavily on his hands. He spent it looking at shops in nearby Chapel Street in Prahran. There he saw shops selling hydroponic equipment and others that sold books on how to grow marijuana. He said that he thought that he could make money by growing marijuana and that he would then be able to make a financial contribution to the family.

At the time, he said, he knew that smoking marijuana was illegal but he did not know how serious it was to grow it. It did not appear to be serious as he had seen books on how to grow it and seen people smoking it. He said that he no longer held the view that it was not very serious as he now sees why it is serious and the harm that it has on young people. Mr Rankovic said that he had seen a programme about children of 7, 9 and 11 years of age using marijuana. He had not previously been aware of the harm that it can cause.

Mr Rankovic said that he borrowed money to purchase the equipment he needed. As it turned out, he had never made any money out of the venture as he still owed money when he was arrested. He owed $15,000 to $20,000 at the end and his mother paid that debt by selling her apartment in Yugoslavia. In all, she sent $35,000 to him to pay his debts. Although in Australia at the moment to support her son, she will move to live with her sister on her return to Yugoslavia.

Even when he was growing the marijuana, Mr Rankovic said, he was thinking about ways in which he could get out of it. He admitted that he did not stop when he obtained permission to work in January, 1999. That, he said, because he kept thinking that he would do it just one more time. He did, however, think of obtaining a career and did a course at the Refugee and Immigration Legal Centre to become a migration agent. Since his conviction, he understands that this profession is no longer open to him.

Mr Rankovic also said that he feels shame and is ashamed of his behaviour. He has asked himself why he did it when he hurt so many people, including his wife, along the way. Some would say it was greed but he did not think so. He is confused. While in gaol at Dhurringile, he completed the Harm Reduction component of an Alcohol and other Drugs Program covering topics such as "What is a Drug?", statistics, tolerance, risk behaviours and community supports (Exhibit Z).

Mrs Nadia Rankovic

Mrs Rankovic said that she knew that her husband had nothing to do during the day while she worked and that he met some people from Yugoslavia. She met Zoran Radovanovic and Tiana MacDowell and saw Zoran Sovilj once at his wedding to Tiana MacDowell. She met Uros Popic once very briefly but barely spoke with him. At the time, she said in her oral evidence, her husband felt frustrated, hopeless and entirely dependent upon her. He is a smoker and he could not buy his cigarettes. He became depressed, she said.

Mrs Rankovic said that she first found out what her husband was doing in November, 1999 when he was arrested. Before his arrest, she had suspicions about what he was doing and talked to him many times. He always denied that he was doing anything wrongly and they would end up arguing, she said.

She said that she was angry and very hurt when she found out what he had been doing. She felt betrayed by him and disappointed. He was not the man she had married. They no longer had a closeness and he was so much alone, she said. A great strain was placed on their marriage. She told him that he had ruined their lives and set them back. For all that he has done, she has forgiven her husband, she said. Since his arrest, he has wanted her to tell only the truth about what happened. He cannot express the regret he feels.

Mrs Izolda Sabioni

25. Mrs Izolda Sabioni said that she was aware that her son in law had been convicted of offences of cultivating cannabis, theft and attempted theft. She believed that he committed these crimes because he could not work and his wife was only working part time. At the time, her son in law and daughter did not have enough money.

Pastor David Drummond

Pastor David Drummond said that he had married into the Serbian community. It is his understanding that it is a very patriarchal community. A man loses face if he cannot provide for his family. The community's expectations would have placed a great burden on Mr Rankovic to facilitate his role as the provider.

Relationship with his wife

Mr Rankovic

Mr Rankovic said that he was very uncomfortable when he was growing marijuana but not telling his wife about it. His wife is a big part of him. In Canada, she was a part of his business life as well as his personal life. Once he was involved in growing marijuana, she was not a part of what he described as his business life and he found it hard that he had to keep it from her. His wife questioned him about what he was doing but never pushed him hard, he said. He told her that it would be all right. Mr Rankovic said that he told her that it would be all right as she deserved to know that what he was doing was not bad. He was scared too because, were she to find out what he was doing, she would send the police to see him. His wife has no tolerance for drugs. He was relieved when he was arrested by the police and was able to tell her.

Mrs Rankovic

Mrs Rankovic said that she lost trust in her husband when she discovered what he had been doing. They have had problems in dealing with the situation and it put a strain on their marriage. She has, however, completely forgiven him, she said and knows that he deeply regrets what he did. Mrs Rankovic said that she believes that her husband is a very special person and she will continue to believe in him. She believes that her husband will never re-offend as it would destroy their marriage.

Mrs Rankovic said that she knows that her husband was relieved to be caught. On the morning after his arrest, he told her that he felt as if a great weight had been lifted off his shoulders. He had also told her that he had felt stuck and had not known how to get out of the situation. She feels that her husband has grown from the experience. He has embraced God more fully and, after his arrest, became a more active member of the Church. She said that she really loves her husband and that he is not a bad person.

Ms Elida Sabioni

Ms Elida Sabioni, who is a caterer, said that she has known her brother in law, Mr Rankovic, for 11 years. She visited him and her sister in Canada on some 10 occasions, she said. As to the circumstances in which Mr Rankovic came to be involved in crime, Ms Sabioni said:

"I believe that Bob became involved in crime because he could not contribute to the household. He came to Australia and was unable to work because he did not have work permission. He would say to me, "Nadia is working so hard and I cannot help her." When they first came here, they were really struggling, but with our family support they managed to survive on Nadia's wages. However, Bob seemed very depressed because he was not able to contribute to the family. The situation was made worse because Nadia had to ask her family for money all the time. Bob felt he was useless and not a good husband. He felt that he was not doing his 'bit'." (Exhibit J, paragraph 3)

Relationship with the Church

Mr Rankovic

Mr Rankovic said that he started to attend Church casually in 1999 before he was arrested. He did that to please his wife as he felt that he was acting behind her back with regard to his growing marijuana. Mr Rankovic said that he had been raised in a communist country and did not have any religious faith at that time. He then began to believe in God because he saw what God did for people in the Church. God has also helped him a lot and helped him to overcome obstacles.

Mr Rankovic said that he felt very disappointed in himself to have breached the faith put in him by the Church community. He felt that he had let the community down. Before he was arrested, Mr Rankovic said that he spent time working with a man named Steve, who worked with homeless youth around Flinders Street in Melbourne. He said that he met Steve during an Alpha Programme when Steve took a group of young persons. Mr Rankovic understood that the other members of the Church knew Steve. After that, Mr Rankovic said that he would help Steve to take the homeless to hostels to get them emergency accommodation if they were sick. While helping Steve, he met Chris Latton, who was living in an empty building. Steve asked him if he could find Chris Latton accommodation and he did that by collecting money for rent and then accompanying Steve to pick Chris Latton up. Mr Rankovic said that he continued to help Steve even after he was arrested in November, 1999. He also continued to see Chris Latton who would visit him and his wife at their home. They became good friends but he has not seen him for a while now.

Mrs Rankovic

Although she felt that her husband had initially attended the Alpha course to please her, Mrs Rankovic said, she felt that, after his arrest, his faith strengthened. He became more involved and began to help out on the next Alpha course. Her husband has told her that he might like to be an evangelist preacher. She sees him as genuinely caring and giving. This is illustrated in the care he showed Chris whom he helped financially by giving him very small amounts of money here and there, taking him to the pictures and feeding and caring for him in their home.

Mrs Sabioni

Mrs Sabioni said that her daughter and son in law have a very beautiful relationship and her daughter loves him very much. She also loves him as does her whole family. They all support him, she said.

Ms Sabioni

Ms Sabioni said that her brother in law had made many changes in his life. Since his release on bail, he has become an active member of the Church where he is very well known for his kindness and generosity. Ms Sabioni said that her brother in law loves what he does with the Church and used to visit the homeless on the streets. She referred to his assisting a homeless Aboriginal man who drank and took drugs. He would be violent but her brother in law was able to pacify him. Her sister and brother in law allowed this man to stay at their home, gave him food and money and arranged transport for him.

Mr Paul Gibson

Mr Paul Gibson, who is a counsellor, saw Mr Rankovic for 12 sessions between January and June, 2000. They also developed a social friendship and often played golf together. Mr Gibson said that he has great respect for both Mr and Mrs Rankovic. When he first saw Mr Rankovic in January, 2000, he believed that he was suffering from sleep problems, body pain, fatigue and psychomotor agitation. Mr Gibson also believed that Mr Rankovic was suffering from Depression and Generalised Anxiety Disorder. In his opinion, all of these conditions and symptoms were related to his conduct in growing marijuana.

Mr Gibson said that Mr Rankovic is greatly valued in the Church for his loyalty and faithfulness. He has always shown a particular sympathy for, and willingness to help, the underprivileged in a hands on manner. He is a valuable and trustworthy person.

Pastor Susan Harvey

Pastor Susan Harvey said that Mr and Mrs Rankovic have regularly attended the Church since June, 1999 and she has come to know Mr Rankovic personally since then. He was a course participant in an Alpha Programme and later became involved as an assistant with several groups. Of his involvement in the Church, Pastor Harvey said:

"I believe that Bob's remorse regarding his previous activities has been sincere. He has certainly developed and grown. He is a helpful and generous person. Initially, when the charges were laid, Bob withdrew from the Church and many of his relationships out a sense of shame and embarrassment over what he had been involved with. However, Bob has since embraced the Christian faith more fully. He has been very consistent in his involvement in the Church and has followed through on each commitment. He has demonstrated an ongoing concern for people in need, going out of his way to provide both material and emotional support for a number of individuals. I would consider him now to be an active member of our Church." (Exhibit N, paragraph 2)

Pastor Drummond

Pastor Drummond said that Mr Rankovic is a good person. He works with his wife in the Alpha Programme and takes responsibility for facilitating meals for that programme. In addition, Mr Rankovic takes an active part in discussions. The ministry team of the Church welcomes and encourages his participation. Over the years, Pastor Drummond said that he had seen a number of people turn to God and to express remorse in an effort to ameliorate their guilt. He had been looking out for that in Mr Rankovic but had seen none of it. In his view, the prospects of Mr Rankovic's re-offending are minimal. The members of the Church are used to supporting people and they have committed themselves to Mr Rankovic not just at the hearing but in the future.

Pastor Drummond said that he regarded marijuana as a drug whose dangers were undervalued. Its main danger arose from its psychotropic effects on people and that is not, in his view, sufficiently recognised. The Church at Richmond has one of the highest awareness levels when it comes to drugs, Pastor Drummond said. At least once each month, there is a presentation regarding drugs.

Mr Alan Parkin

Mr Alan Parkin said that his first recollections of Mr Rankovic were as a reluctant participant in the Church. After his marijuana growing activities became known, Mr Rankovic had, at first, wanted to go to another Church but he stayed. Having decided to stay, he made no attempt to hide what he had done. Since then, Mr Parkin said that Mr Rankovic's commitment as a Christian had developed and there has been a significant change in his countenance and his life.

Mr Colin McInnes-Smith

Mr Colin McInnes-Smith and his wife have known Mr and Mrs Rankovic since approximately April, 2000 through the Church. They have been on the lay leadership team of the Church for some 10 years and know Mr and Mrs Rankovic both from Church services and activities and through a home-based fellowship and learning group held in their home each week. Mr McInnes-Smith said that Mr Rankovic has shown himself to be a very honest, sensitive and caring member of the group and he is well-liked by its 16 regular members. He believed that Mr Rankovic has shown personal growth through his involvement and commitment in the Church and that his faith has provided him with a strong foundation and fresh perspective.

Mr McInnes-Smith said that he had visited Mr Rankovic when he was on remand, in gaol and in the detention centre. Mr Rankovic has shown insight into the stupidity of his actions and the hurt he has inflicted on his wife. Mr McInnes believed that he would not re-offend. Mr Rankovic, he said, is an honest man who has a lot to offer the community.

Vasilije Tomic, Archpriest-Stavrofor

A translation of a letter written by Vasilije Tomic, Archpriest-Stavrofor in Toronto reads as follows:

"I have learned that Slobodan Rankovic has been accused of an indictable offence of growing marijuana. I have learned with regret that he got in conflict with law in Australia. I have been asked to testify to his character and I do so without hesitation.
I have known Slobodan Rankovic since he came to my Parish, in Toronto, in 1991. He made an impression on me as a worthy, diligent and honest person, who was fervently desirous to succeed in life. In November 1994 I celebrated his marriage to wife Nadija and was a guest at their wedding reception.
As soon as he came to my Parish, Slobodan actively joined in the church activities and brought brightness to our Parish. With his personal interest in church and religious affairs, his spouse and himself surpassed the others. We often met in their warm home environment, and had long discussions about religious subjects. His and his wife's hospitality was known to many people.
Whilst talking with Slobodan I realised that he understands what he did was against the law and wrong: he repented and tried to convince me that such a mistake will not be repeated. I believe that was a moment of his weakness and a result of his unresolved status in Australia. I also believe that was a passing crisis in his life and I wish that he overcomes it as soon as possible and becomes a useful member of the Australian society." (G documents, page 180)

The future

Mr Rankovic

Mr Rankovic said that there are many reasons why he will not re-offend. One of the most important is his wife. Although she would travel to Canada with him, she would be devastated by that as she would be away from her family. He said that he never wanted to hurt his wife again or to breach the Church community's faith in him. He had established his relationships with his wife and his friends. Some had written to him when he was in gaol and others had visited, he said.

When he was in gaol, he worked on the dairy farm. He started by milking the cows and was then asked to maintain certain records. He was paid $75 per week, he said, and indicated that this is well paid in gaol terms. The Industry Supervisor at Durringile wrote of Mr Rankovic's work at the dairy farm:

"For the majority of the time he spent at this location Slobadan worked for me in the dairy.
During this time he carried out quite a range of jobs including milking, feeding cows and calves, administering medication to sick cows and calves and recording such medication also maintaining a quality assurance record manual.
Whilst he was working at the dairy Slobodan carried out his duties with minimal supervision and to a very high standard, he was always very approachable and cooperative and willing to give any job a try regardless of the hour of the day or night.
I found Slobodan to be an excellent worker." (Exhibit Y)

Mr Rankovic said that he worked for All Australian Exports and Marketing in 2000 and that he has been told that he is welcome to return there. He was engaged there in October, 2000 after making a full disclosure about his past offences. A letter written on 19 January, 2001 by Ms Dorothy Saffron, a director of All Australian Exports and Marketing Services states that Mr Rankovic had been working since October, 2000 as a Marketing Consultant. Ms Saffron continued:

"We have been delighted with his performance, integrity, diligence, reliability and responsibility.
We are aware of his current circumstances, and find these offences out of character, with the man we have employed.
Furthermore, he has often spoken to me and management within the company about the mistake he has made by committing the offences. He is deeply hurt by his actions, and is concerned about the fact he has shamed his family as a result of these actions.
He has explained to us that he became involved in these activities because of his desperation due to his inability to obtain a work permit, due to his length of time concerning his application for residency.
We have no hesitation in re-employing or further employing him despite any criteria or dispositions of the Court." (G documents, page 178)

Mr Peter Sabioni, who is Mr Rankovic's father in law, has also undertaken to help him to obtain employment although he cannot offer any himself. Mr Sabioni has been in the painting and decorating industry for over 30 years and has many contacts. He said that he had known his son in law for over 10 years and had found him to be hard working and trustworthy (Exhibit AA).

Mrs Rankovic

Were her husband to be deported, Mrs Rankovic said, she would follow him to Canada. She would, however, miss her family very much. Her mother suffers from diabetes and she would be heartbroken if her daughter had to leave. Each week, they see each other three or four times and her mother is very emotionally dependent upon her, Mrs Rankovic said. She said that she helps her mother to read any official letters.

Mrs Rankovic said that she and her husband are very worried about having to start their lives over again. Mrs Rankovic said that she is now 47 years of age. They have no assets but she has a stable life here. She considers Australia to be her home and all of her family lives here. She would be most distressed were she to leave.

Ms Lynn Akkus

Ms Lynn Akkus is the mother of Mr Errol Akkus, who was bailed to the Teen Challenge Program in the care of Mr and Mrs Rankovic and who later died. She is aware of Mr Rankovic's convictions but stated that he is, nevertheless, not a criminal. From observing Mr Rankovic, she knows that he deeply regrets his mistakes and is making every effort to start life afresh. When he was released from the remand centre, he devoted himself to his family and to the Church. He has also cared for his mother. Ms Akkus described Mr Rankovic as a very kind and generous person who is actively involved in the Church and always willing to help people in need. She spoke of his helping a homeless, drug addicted man whom Mr and Mrs Rankovic housed and provided with transport. Ms Akkus said that Mrs Rankovic is struggling to look after her mother in law as well as pay her own bills. In addition, she helps her mother and her father with shopping and cooking. She thought that Mrs Rankovic would find it very distressing to be uprooted from her family.

Mr Peter Sabioni

Mr Peter Sabioni said that he is an Australian citizen who arrived in Australia in October, 1967 from Croatia. He has a good relationship with his son in law and considers him to be a fine person despite his convictions. His son in law is a person who likes to work and does not drink much alcohol. He tries to establish opportunities for himself and is a respectable person who behaves very well.

Mr Sabioni said that his daughter and son in law are very much in love and cannot be separated. If his son in law were required to return to Canada, he said that the situation would be catastrophic for his daughter and for her family. Her mother would be terribly distressed and so would he. He lives very close to his daughter and sees her once or twice a week. She helps him and makes him special dishes. They talk together all the time and she is there for him now that he is getting older. Mr Sabioni said that he has two other children and all his children get on well together and are good friends.

Mrs Sabioni

Mrs Sabioni said that she is now 67 years of age and suffers from diabetes and arthritis. She knows that her daughter would return to Canada if her husband were sent there. This, she said, would break her heart as she would not be able to live without her daughter. She would not be able to travel to Canada to see her as she is now too sick and too old. Of all her children, Nadia cares for her most, she said. Mrs Sabioni said that she gets very anxious and stressed as well as depressed just thinking about the possibility. She said that what her son in law did was wrong but that it is not part of his nature.

Ms Sabioni

Ms Sabioni said that she thought that her brother in law would make a great Church Minister and he is talking about it. Mr Rankovic had talked to her about doing a four year night school course to help people. Ms Sabioni said that her sister would be devastated were she to leave Australia. She would not be happy to leave her family and especially her mother, who is not well at all.

Pastor Harvey

Pastor Harvey said that she was aware of Mr Rankovic's convictions. Of the future, she said:

"4. I currently have close contact with Nadia. I know how hard it has been on her. She has been maintaining regular visits to Bob, caring for his mother as well as working and supporting her self. I also know that she is extremely involved with her family. I believe that, considering all the circumstances, she has been coping quite well. I know that if Bob is deported she would go with him because she is deeply committed to her marriage. However, she would be terribly affected if she had to go to Canada as her family, friendships and work are all here. Nadia's two main support structures are her Church and her family, both of which are here.
5.I would say that Nadia's relationship with Bob is very strong. Nadia is very dedicated to Bob and fully supports him. Further, the Church will support them both with marriage counselling and by supporting Bob's re-entry into the community should he be released. Pastor David Drummond will oversee this support.
6.I personally believe Bob is someone who deserves a second chance." (Exhibit N)

Pastor Drummond

Pastor Drummond said of the future:

"4. I know that Nadia is finding life difficult. I have been in regular contact with Nadia throughout Bob's incarceration, and have found this time to be particularly hard on her. Bob's mother arrived in Australia soon after his incarceration. Nadia has had to take primary care of this elderly woman, who is suffering a great deal of confusion over her son and a degree of cultural disenfranchisement from her daughter-in-law. She also has the responsibility of visiting her husband to visit and a professional career to maintain.

5.To deport Bob would cause much distress to his family. I believe that to inflict such a burden on Bob's wife would not serve justice nor ameliorate any risk to the community. I am confident he would not re-offend. From my involvement with Bob and in observing his contributions to the Church, I am confident that the due process of the law has already imposed a heavy penalty on him which he has borne responsibly. I believe that Bob has learned from his mistakes and has already suffered enough. He deserves a chance to be permitted to remain in Australia." (Exhibit D)

CONSIDERATION

Framework of Act

Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for any bridging visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.

At the time that the delegate's decision was made and of this review, criterion 4001 provided that:

"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or

(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."

Section 501(1) of the Act provides that:

"The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test."

The "character test" is set out in s. 501(6), which provides that:

"For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or

(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)having regard to either or both of the following:

(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;

the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test."

For the purposes of the character test, a person has a substantial criminal record if, among others:

"(c) the person as been sentenced to a term of imprisonment of 12 months or more;
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;" (s. 501(7))

Application of s. 501(7) in the circumstances of this case leads to the conclusion that Mr Rankovic has a substantial criminal history and that he does not pass the character test.

The Direction

Failure to pass the character test does not mean that Mr Rankovic's bridging visa must be cancelled. Section 501(1) provides that the Minister may do so but not that he must do so. That brings me to the question whether Mr Rankovic's bridging visa should be cancelled. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 ("the Direction"). The Direction was in force at the time that the delegate made his decision in relation to Mr Rankovic.

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."

Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:

"…have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." (Direction, paragraph 2.2)

The three primary considerations are:

"(a)the protection of the Australian community and members of the community;

(b) the expectations of the Australian community; and
(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children." (paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Rankovic's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Mr Rankovic's conduct, I must have regard to:

"… the Government's view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;…" (paragraph 2.6)

In considering past criminal conduct, the Direction sets out two matters that must be taken into account:

"It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:
(a)the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

(b)the repugnance of the crime:
.crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community." (paragraph 2.7)

In assessing such matters, regard must also be had to any relevant factors put forward by Mr Rankovic as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.

Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …" (paragraph 2.12)

As Mr Rankovic does not have children, it is not relevant to consider the Minister's direction in relation to children.

Should Mr Rankovic's visa be cancelled?

In answering this question, the first matter to consider is whether the offences he committed were serious. The answer to this question must be that the offence of growing cannabis was a serious offence when viewed, as it was, as a drug related offence undertaken for financial gain. Based on the findings of Judge Kelly, I find that Mr Rankovic, Mr Popic and Mr Sovilj acted alone. They were not part of any organised drug activity. In fact, Mr Rankovic's efforts were not particularly organised in any respect for Judge Kelly described the enterprise as casual and amateurish. Whether marijuana is a drug of dependency is not a matter upon which any evidence was led. It is commonly regarded as a "soft" drug but, as Pastor Drummond commented, there are those who question its psychotropic side effects. Marijuana is not heroin, which is specifically identified in paragraph 2.6 of the Direction but it is an illegal drug.

It could be tempting to stop at that point and to condemn the offence as it should be condemned. It should, though, be seen in its wider context. I accept Mr Rankovic's evidence that he was frustrated by his inability to work to support his wife or at least to contribute to their family income. That does not justify his turning to crime but it is more explicable when regard is had to the evidence of Pastor Drummond about the expectation in the Serbian community that a man will support his family. It is also more explicable when a man who feels that community expectation upon him is placed in another community which appears to treat lightly the proper concerns of the Government and others regarding drugs. That other community is represented in books and pamphlets which I accept Mr Rankovic found quite openly displayed in shops in Chapel Street and which showed him how to grow marijuana. It is understandable that he thought that growing marijuana was not such a serious offence when he saw it displayed so openly although he clearly knew that it was the wrong thing to do and against the law.

I find that it is most unlikely that Mr Rankovic will re-offend. That finding is based in part on Judge Kelly's findings about the manner in which the offences were committed. He saw them as a "solitary excursion into criminal behaviour" and the actions as an unfortunate, aberrant and isolated diversion into the criminal path (G documents, pages 193 and 194) by Mr Rankovic and his co-offenders. It is also based in part on Mr Rankovic's own past and his future. As to his past, I find that he had not previously committed any offences. He has always been hardworking and turned his hand to many lawful and gainful activities in order to make an income. He has impressed not only his last previous employer, All Australian Exports and Marketing, in Australia but also the supervisor on the prison farm. He was required to undertake a range of tasks at the prison farm and he turned his hand to all of them.

Mr Rankovic has impressed not only his employers and supervisors but also the other members of the Church congregation. Over a thousand people attend Sunday services at the Church. A representative proportion of them attended the hearing. I accept that Mr Rankovic has the full support of those who attended and also of the wider Church community. As to Mr Rankovic's embracing the Church, I find that his efforts are genuine. While I find that, perhaps, he first attended Church in Australia to please his wife in 1999, his efforts have their genesis at least in 1991 when he began to attend Church in Toronto. Based on Archpriest-Stavrofor Vasilije Tomic's letter, I find that Mr Rankovic involved himself in Church activities at that time. His involvement is not a recent thing that will dissipate should he be permitted to stay in Australia.

As to the future, I find that Mr Rankovic has a clear insight into why he offended and how serious his offences were. He has gained an insight into the harm that drugs have on people and particularly on young people. I find that he is ashamed of his actions and does not seek to minimise them or to explain them away.

Mr Rankovic's Church activities do not sit well with his offences. His activities in growing marijuana while helping Steve with the homeless and taking a drug addicted and homeless man under his wing are at odds. At one level, it could be thought to be the actions of a hypocrite or of a person having "a bob each way" by counteracting a good act with a bad act. On reflection, I do not consider that either interpretation is apt. It seems to me that Mr Rankovic's actions in growing marijuana and in committing the related offences were aberrations. His true self is reflected in activities such as those he undertook with Steve. They are the actions that are consistent with his past actions and with the actions of the person known to his wife. They are also consistent with his actions since in the Church and during his imprisonment. Taking this into account together with the support he has of his wife, her family and their Church, I find that the risk of Mr Rankovic's re-offending are small.

The likelihood that cancellation of Mr Rankovic's visa on the basis that he is not of good character will deter others from growing marijuana or engaging in the drug trade is not a matter upon which any evidence was led. The circumstances in which Mr Rankovic committed his offence were relevant only to a very small group of people if not peculiar to him. Cancellation of his visa is unlikely to deter anyone else who engages in the same enterprise in the same amateurish manner. Such a person is likely to be oblivious to the realities of the situation. As for organised drug activities, Mr Rankovic's activities and their consequences would have no impact upon them at all.

Should Mr Rankovic be required to return to Canada where he is a citizen, I find that Mrs Rankovic would suffer greatly. She would be separated from her mother who is ill and relies upon her. In addition, she would be separated from her father who is increasingly dependent upon her. She is deeply devoted to her activities in the Church and to the members of its congregation. While she has two friends to whom she could possibly turn if living in Canada, she would miss her family greatly and her mother would find it difficult to manage without her support even though she has two other children. On the basis of their own evidence, I find that Mr and Mrs Rankovic would find it difficult to start again in Canada.

Having regard to the matters overall, there is no doubt that the Australian community expects its citizens to obey its laws. There is also no doubt that it is a forgiving community who will allow a person to have another chance when the risk of his re-offending is minimal, he recognises his errors and is making a positive contribution to the community. Mr Rankovic is such a person. He is also a person in a stable and loving family who gives him full support. Should he be permitted to stay, he also has employment waiting for him.

Taking all of these matters into account, I do not consider that the safety and welfare of the Australian community would be improved were Mr Rankovic to be refused a visa on the grounds that he is not of good character. Furthermore, its safety and welfare would not be diminished were his visa not cancelled on that ground. By contrast, the difficulties facing Mr and Mrs Rankovic and Mrs Rankovic's family in Australia would be disproportionately great.

For these reasons, I decided on the day of the hearing to:

1.set aside the decision of the respondent dated 18 September, 2001; and

2.substitute a decision that the applicant's visa should not be cancelled on character grounds pursuant to s. 501 of the Migration Act 1958.

I certify that the eighty-five preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),
Signed:          .....................................…….........
  Clancy Riddiford       Associate
Dates of Hearing  13 December, 2001
Date of Decision  13 December, 2001
Date of written reasons                16 January, 2002
Counsel for the Applicant            Mr Hughan
Solicitor for the Applicant           Erskine Rodan & Associates
Counsel for the Respondent        Mr Brereton
Solicitor for the Respondent        Australian Government Solicitor

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Rankovic and Minister for Immigration and Multicultural Affairs [2001] AATA 1054

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[2001] AATA 1054

13 December 2001