Stamenkovic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 607

Stamenkovic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 607 (5 April 2024)
Division:GENERAL DIVISION
File Number:2024/0260
Re:Vladica STAMENKOVIC
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:5 April 2024
Place:Adelaide

The decision under review is affirmed.
............................[sgnd]........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class AR Subclass 151 Former Resident visa under section 501(3A)- where Applicant does not pass the character test– Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115.
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon J Rau SC
5 April 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 16 January 2024,[1] not to revoke the mandatory cancellation of his Class AR Subclass 151 Former Resident visa (“the Visa”). His visa was cancelled on 11 November 2022 under section 501(3A) on the basis that he did not pass the character test.[2]
[1] Exhibit 2, G-Documents, G3: Decision by a Delegate under section 501CA(4), 13-29.
[2] Ibid G-Documents, Attachment E: Letter from the Department to the Applicant – Notification of visa cancellation under s 501(3A), 51-6.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of Commit an assault that causes harm – Basic offence for which he was sentenced to a term of 1 year and 7 months of imprisonment.[3]
[3] Ibid Attachment A: National Criminal History Check (dated 08.11.2022), 31.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held in person on 26, 27 March 2024. The Applicant was self-represented and the Respondent was represented by Mr David Brown and Ms Maria Pappas of Australian…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Stamenkovic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 607
Case: [2024] AATA 607
Decision Date: 5 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Vladica Stamenkovic and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the mandatory cancellation of Mr Stamenkovic's Class AR Subclass 151 Former Resident visa under section 501(3A) of the Migration Act 1958 (Cth) due to his failure to pass the character test, stemming from a substantial criminal record. The central question before the Tribunal was whether the discretion to revoke this visa cancellation under section 501CA(4) should be exercised, with particular regard to Ministerial Direction No. 99.

The Tribunal was required to determine the weight to be given to various factors when considering the revocation of the visa cancellation, as guided by Ministerial Direction No. 99. This included assessing Mr Stamenkovic's ties to Australia, the potential impediments he might face if removed to Serbia, and the impact of the decision on victims and Australian business interests. The Tribunal also had to consider the Applicant's criminal history, his personal circumstances, and his contributions, or lack thereof, to the Australian community.

In its reasoning, the Tribunal found that Mr Stamenkovic's contribution to the Australian community had been overwhelmingly negative due to his serial offending and involvement in criminal and drug-related activities. While acknowledging that most of his formative years were spent in Australia, the Tribunal noted that he had been absent for a significant period and had not contributed positively to the community since approximately 2009, instead receiving a disability support pension. Regarding impediments to re-establishing himself in Serbia, the Tribunal accepted that he would face dislocation and stress, but found no substantial language or cultural barriers, and noted his son was in Serbia. The Tribunal concluded that the negative factors, particularly his criminal record and lack of positive contribution, weighed heavily against the revocation of the visa cancellation.

The Tribunal affirmed the decision to cancel Mr Stamenkovic's visa, finding that the discretion to revoke the cancellation should not be exercised.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant did not call any witnesses, choosing instead to rely upon the received written material. Given the Applicant’s general lack of credibility, this afforded the Tribunal no opportunity to test his evidence with any witness. Background Facts The Applicant was born on 23 June 1966 in Yabuka, a Serbian town in the former Yugoslavia.[8][8] Exhibit 2, Attachment H: Request for Revocation of Mandatory Cancellation, 70. In 1971, the Applicant came to Australia as a 4-year-old with his parents and older sister. The Applicant has claimed that he lived in Australia since this time.[9] This is untrue. The Applicant attended school in Australia. He claims to have been teased. [9] Ibid Attachment H, 71. The family became permanent residents.[10] He initially stated that his father passed away in 1984 in a car accident in Blanchetown,[11] but he changed that to 1988 in his later statement.[12] He said his mother passed away roughly 12 years ago.[13] His mother did return to Serbia after separating from his father. She remained there for some years. She suffered from schizophrenia. The family had property in Serbia although the Applicant says that he has since gifted that property to his eldest son. [10] Ibid 71-2.[11] Ibid 71.[12] Exhibit 5, Statement of Vladica Stamenkovic (dated 06.03.2024), 7. [13] Ibid 8. The Applicant’s criminal history in Australia began as a minor. I note this, but aside from it providing context and background, I give his juvenile offending as such, no weight. On 9 October 1981, the Applicant appeared in Adelaide Children Court charged with two counts of larceny from the person and one count of failing to cease loitering or leave a place. He was not convicted, but he was placed on a 12-month good behaviour bond.[14] He was just 14 years old at the time. [14] Exhibit 2, G-Documents, Attachment A, 32. On 19 January 1982, the Applicant was charged with three counts of building breaking and felony. No conviction was recorded.[15][15] Ibid. On 23 March 1982, the Applicant was charged with possessing Indian hemp and smoking or self-administration of a drug. He was not convicted but received a $40 fine.[16][16] Ibid. On 16 June 1982, the Applicant left Australia for 10 months. He told the Tribunal that he travelled to Serbia to learn the language.[17] He did not speak Serbian at home.[17] Ibid Attachment L: Movement Record, 102. On 23 June 1982, the Applicant was fined and convicted of driving unlicensed and disobeying traffic lights (pedestrian).[18][18] Ibid Attachment A, 32. On 3 April 1983, the Applicant returned to Australia.[19][19] Ibid Attachment L, 102. On 12 April 1983, the Applicant was convicted of common assault and fined $200. On the same date, he was also charged with receiving. No conviction was recorded on this account.[20][20] Ibid Attachment A, 32. On 13 October 1983, the Applicant was charged with lie or loiter in public place. He was fined $27.50.[21][21] Ibid 31. On 3 April 1984, the Applicant was convicted of multiple offences including possessing implements, hindering or resisting police, using offensive language in public place and failing to truly answer. He received multiple fines and was placed on a 6-month good behaviour bond.[22] [22] Ibid.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. (a) Legal consequence of the decision: This issue does not arise in this case. This Other Consideration (a) is neutral.(b) Extent of Impediments if Removed Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: (a)the non-citizen’s age and health; (b)whether there are any substantial language or cultural barriers; and (c)any social, medical and/or economic support available to that non-citizen in that country. The Applicant is aged 58. He has various physical and mental ailments as discussed above. As a disability pensioner, he would be limited in his work prospects should he return to Serbia. His entitlements there, including as an army veteran, are unknown. Presumably they would be the same as any other citizen. There are no substantial language or cultural barriers. This is demonstrated by the Applicant’s lengthy stay in Serbia between 1988 and 2003. His son is also there. I have no doubt that despite what he says, he has family and other connections in Serbia. There is no evidence to suggest that the Applicant would not be entitled to the same social, medical and/or economic support as any other Serbian citizen. I accept that this support may be inferior to that available to him in Australia. I accept that the Applicant would suffer serious dislocation in moving back to Serbia and that this would be both stressful and possibly adversely impact on his mental health. It would take him some time to reestablish himself there. This Other Consideration (b) weighs in favour of revocation.(c) Impact on victims Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness. There is no evidence on this point. This Other Consideration (c) is neutral.(d) Impact on Australian business interests Paragraph 9.4 of the Direction directs a decision-maker to take into account the following: Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

Ratio Decidendi

Legal Principle Established

This consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.Primary Consideration 3: Ties to AustraliaParagraph 8.3 of the Direction provides:(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. (2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. (3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. (4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:a) the length of time the non-citizen has resided in the Australian community, noting that:i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia. The Applicant lived in Australia between the ages of about 4 and 21, aside from his absence for 10 months in 1982. He was then absent for almost 15 years, returning in March of 2003. Most of his formative years were nevertheless spent in Australia. The Applicant’s contribution to the Australian community has been overwhelmingly negative. As detailed above he has been a serial offender. He has been involved with a criminal, drug abusing, sub-culture. Since about 2009, he has not contributed as a taxpayer, but has been in receipt of a disability support pension. It is understood that he receives disability support pension as a result of physical injuries arise from his motor accident,[145] meanwhile he also claims to have been working as a carer for 12 years at the Northern Carers Network.[146] His evidence about his work history is unsupported by any evidence such as a statement of service or tax returns. I do not accept his evidence as truthful.[145] Exhibit 9, Respondent’s Tender Bundle, 456. [146] Exhibit 5, Statement of Vladica Stamenkovic (dated 15.02.2024), 1. The Applicant has a sister here. She has provided no letter of support. She was one of his victims.