Stamenkovic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

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 Government Solicitor.
During the hearing it became evident that there are many reasons to treat the Applicant’s evidence with great caution. The Applicant was a poor historian. He was generally not credible. He made frequent denials of his involvement in events recorded in various independent official records, including those maintained by police and corrections. The Applicant tended to minimise his role in those incidents resulting a conviction, even those to which he entered a plea of guilty. He made scandalous and unsubstantiated claims about the integrity of the Sentencing Judge in the primary offence. He claimed that His Honour had made incorrect findings of fact and that he “was not interested in what I had to say’. He said that His Honour had “lied to my face and to my lawyer as well. “ He also claimed that His Honour “ is well known for putting people in gaol, no matter what.” This attack on the integrity of the sentencing Judge was presumably designed to deflect attention from the gravity of his offending. If so, it failed. He has on numerous occasions in the past, demonstrated a willingness to lie to suit his purposes or to avoid the consequences of his actions. There are many examples of this, some are set our below. One such example is his claim to have lived in Australia since he was a 4-year-old child[4] and yet he required the assistance[5] of a Serbian interpreter to speak with police some 3 ½ decades later, on 13 December 2008. When asked about this during the hearing, he said that the police were not listening to him, so he asked them if they would find it easier if he spoke through an interpreter, essentially as a joke. They took him seriously. In 2012, a police record also states: “an interpreter was not organised due to no interview and the accused stated he could understand most words of English”.[6]
[4] Implying that this was uninterrupted and ignoring his 15 year stay in Serbia between 1988 and 2003.
[5] See paras [45] and [69].
[6] Exhibit 9, Respondent’s Tender Bundle, 74.
He has made numerous denials of offending in statements to police and has lied about his ongoing substance abuse to various independent sources. In 2009, he told police that he: “was not aware that possessing cannabis was an offence as he is a new migrant to this country.” He also told them that: “he was not aware that the transformers, light shades and globes constitutes prescribed equipment and is illegal to possess. He states he brought the items from cash converters between three and five years ago and uses them as heating lamps for when he used to spray paint doors. He states that as far as he is aware the equipment has not been used in the growing of cannabis”. [7]
[7] Ibid 51, 57.
Where there is any contest between the Applicant’s evidence and that of an independent source, I prefer the latter.
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.
On 23 June 1984, the Applicant turned 18.
On 18 March 1985, the Applicant appeared in the Adelaide Magistrates Court. He was convicted of possessing Indian hemp. He was fined $250.[23] When asked about this, the Applicant did not recall it.
[23] Ibid.
On 12 July 1985, the Applicant was convicted of using offensive language. He was fined $150.[24] When asked about this, the Applicant did not recall it.
[24] Ibid.
On 5 August 1985, the Applicant was charged with receiving. He was sentenced to 8 months imprisonment with suspended sentence and placed on 2 years good behaviour bond.[25] When asked about this, the Applicant did not recall it. He then said that he “was bullied and misled by bad people”.
[25] Ibid.
On 18 October 1985, the Applicant was convicted of driving with excess blood alcohol and straddling lanes. He was disqualified from driving for 8 months and fined $350. When asked about this, the Applicant did not recall it.
On 28 July 1987, the Applicant was convicted of possessing a controlled substance. He was fined $150. When asked about this, the Applicant did not recall it. He added that he did not think that he was taking drugs.
On 20 April 1988, the Applicant left Australia.[26] He stated that the reason he went back to Serbia is to get his mother out of war.[27] This is a rather strange explanation. He said that she could not afford a ticket. When asked why he didn’t’ buy her a return ticket instead of going there himself, he was unable to give a plausible explanation. It appears more likely that he followed his mother back to Serbia after his father’s death.[28] He said that he was conscripted into the Jugoslav army shortly after his return. It is highly unlikely that he did not know that this would happen before he left Australia. He said that he was in the Army as a Military Policeman for 1.5 years. He claims to have PTSD as a result of “trauma experienced in the war”. He worked in a bakery for 6 years. He had 2 years off, doing nothing. He continued to use drugs and alcohol. He then got married. He had 4 children. His marriage lasted about 3 years. Although the timelines don’t align in any way, he claimed that he then wanted to return to Australia, but his wife did not. He got “permission” and left with his children. In fact, he did not return until 29 March 2003, some 15 years later.
[26] Ibid Attachment L, 102.
[27] Exhibit 5, Statement of Vladica Stamenkovic (dated 16.02.24).
[28] Exhibit 9, Respondent’s Tender Bundle, 893.
In March 1993, the Applicant’s oldest son D. Stamenkovic was born, in Serbia.[29] He has since been deported back to Serbia for his criminal offending. The Applicant claimed to have no knowledge of his son’s offending or his current whereabouts.
[29] Exhibit 2, G-Document, Attachment H: Request for Revocation of Mandatory Cancellation, 78.
In January 1996, the Applicant’s second son L. Stamenkovic was born, in Serbia. He now lives in Australia.[30] L. Stamenkovic now claims to have an intellectual disability and being illiterate,[31] though he attended normal primary schools then high school as did his siblings.[32] He has also been involved in criminal activity. The Applicant claimed not to know what offences he had committed. He is presently on home detention, in a share house at Smithfield Plains. It was unclear whether he is currently on remand, or serving a sentence. This is not consistent with the Applicant’s claim to be his son’s carer.
[30] Ibid.
[31] Exhibit 3, Statement of L. Stamenkovic (undated) at [8], [9].
[32] Exhibit 4, 3. Letter of Support from L. Stamenkovic (dated 06.02.2024).
In August 1997, the Applicant’s twin daughters M1 and M2 Stamenkovic were born, in Serbia. They now live in Australia.[33] M1 went to prison for 3-4 months.[34] She is currently released from prison.[35] M1 did not provide a letter of support for the Applicant. The Applicant told the Tribunal what her offending was shoplifting. I note that imprisonment is an unusual penalty for shoplifting. He said that M1 suffers with mental illness but he was unable to tell the Tribunal her condition or whether she has received treatment. However, he was able to tell the Tribunal that M2 has mental health issues and has been diagnosed with schizophrenia. M2 has also been in trouble with the police. No details were provided by the Applicant.
[33] Ibid.
[34] Exhibit 9, Respondent Tender Bundle, 918.
[35] Ibid 893.
On 29 March 2003, the Applicant migrated back to Australia with his 4 children, after separating from his wife. He did not declare his criminal convictions on an incoming passenger card upon his arrival.[36] The Applicant did not provide any compelling reason for this failure.
[36] Exhibit 2, Attachment G: Incoming Passenger card dated 29 March 2003, 66.
On 9 January 2004, at about 10.20 pm, the Applicant was found by police asleep in a stationary vehicle. The Police Apprehension Report states:
“The vehicle appeared to have a person lying in the front driver's seat, with the chair almost in a vertical position. The engine was still running and the head lights and left indicator were still activated. On approach of the vehicle, police observed the driver's side window to be wide open, and there to be a male asleep in the driver's seat. Police [name] approached the driver's side of the vehicle, and further observed the vehicle to be in drive, and the driver's seatbelt to be on. Police removed the keys from the ignition, and attempted to wake the driver.
Police [name] - used verbal commands, in an attempt to wake the driver. He shone his torch in the face of the Driver and when he still did not respond, began to shake his arms near the right elbow.
The Driver of the vehicle woke up and appeared stunned. Police then asked the male if he had any identification and if he did, to bring it with him out on to the curb. The male seemed to look around the passenger's seat for some time before finally picking up his wallet which was on the seat. Police observed the male walk to the side of the road. He seemed slightly unsteady on his feet, and couldn’t keep still.
The ACCUSED now known to police as Vladica STAMENKOVIC 23/6/66 produced photographic identification in the form of his South Australian drivers licence, number [number]. Whilst obtaining the ACCUSED's details, police observed a slight smell of liquor coming from the ACCUSED's breath, and that the ACCUSED's eyes were slightly blood shot. (COUNT 1)
Police [name]. formed the opinion the ACCUSED was driving under the influence, and had a short conversation with the ACCUSED, which he later recorded in his notebook. Police then conveyed the ACCUSED to the SALISBURY Police station for a Breath Analysis test . The ACCUSED's vehicle was conveyed by Constable [name] SALISBURY PATROLS back to the SALISBURY police station.
Police [name], states she is qualified to conduct Breath Analysis Tests . At about 10.44pm, Police conducted a Breath analysis test on the ACCUSED at the SALSIBURY Police station. The ACCUSED recorded a reading of 0.130 grams of alcohol in 210 litres of breath, over the legal limit. (COUNT 2) She observed a moderate odour of liquor on the ACCUSED 's breath and that he appeared slightly flushed in the face. She states the ACCUSED appeared tidy, polite and quiet, and further that he had dilated pupils, and moderately bloodshot eyes . The ACCUSED also staggered slightly.
From the time police first spoke with the ACCUSED until the time the Breath Analysis Test was conducted, he took nothing by way of mouth. TRAFFIC CONDITIONS: Traffic light, weather fine, bitumen road in good repair.
At about 10.58pm, Police [name] (conducted a notebook interview with the ACCUSED in relation to Driving Under the Influence, and driving with a Prescribed Concentration of Alcohol above the legal limit. The ACCUSED was subsequently reported for driving whilst under the influence of alcohol and whilst with a prescribed concentration alcohol level above the legal limit.”[37]
[37] Exhibit 9, Respondent’s Tender Bundle, 2-3.
On 6 June 2005, the Applicant was convicted of driving under the influence. He was fined $300 and disqualified from driving for 12 months commencing from 1 July 2005.[38] When asked about this, the Applicant did not recall it.
[38] Exhibit 2, G-Document, Attachment A, 31.
On 9 August 2005, police record report that the Applicant engaged in an act of violence on [female 1] who was his domestic partner, living with him and his children at the time, at his home address.[39] The Police Apprehension Report states:
“At about 8.30 pm on Tuesday 9th August 2005 the [accused] was at his home address with the [victim]. The [victim] tipped alcohol down the sink due to the [accused] drinking for most of the day. An argument started. The [accused] dragged the [victim] into the hallway and threatened to smash the empty bottles over her head. The [accused] dragged her into the bedroom and spat in her face calling her a s**t and c**t. The [accused] grabbed the [victim] chains which were around her neck, twisting them tried to choke her. The [victim]. kneed him in the groin and grabbed the back of his hair. The chains around the [victim] neck broke. The [victim] ran out of the bedroom the [accused]. chased her and grabbed her wrist and threw her into the corner of the couch. The [accused] then called the police telling them that she was drunk.
*** VICTIM *** Female 1’s name
In this matter is [name] States that at about 8.30 pm on Tuesday 9th August 2005 she was at [address] Davoren Park. States that the [accused] was also there with another male drinking alcohol. An argument started between them. The [accused] became angry and was screaming and yelling. He dragged her into the hallway and grabbed bottles and smashed them over her head. States the [accused] then dragged her to the bedroom and threw her on the bed where he spat in her face and called her a s**t and a c**t. The [accused] told her that he was going to slit her throat. States the [accused] grabbed the chains around her neck and twisted them a tried to choke her. Nil permission. Nil medical attention.
*** ACCUSED ***
[39] Exhibit 9, Respondent’s Tender Bundle, 11.
[40] Exhibit 9, Respondent’s Tender Bundle, 11.
In this matter is Vladica STAMENKOVIC who states that he remembers the incident which occurred on 9/8/05 at his home address. At the time the [victim] was living with him and his 4 children. He denied assaulting the [victim] in any way, stated he only pushed her away with his 2 hands because she was facing him and he wanted to call the Police.”[40]
When asked about this incident the Applicant said that he didn’t know anything about it. He then said, “I don’t think it ever happened”. He then denied that it had happened and said that no charges proceeded against him. He also denied even knowing [female 1]. He denied ever having been in a relationship since his marriage, although he claimed that 6 women had told him that he was the father of their children. He said that he had challenged them to have a DNA test. Only one had done so, and the result was negative.

I do not accept the Applicant’s evidence. I prefer to rely upon the contemporaneous police records. Nevertheless, out of an overabundance of caution, bearing in mind the Applicant’s denial of both an intimate connection and any violence , I do not give this incident any weight, as an instance of family violence.
On 16 August 2005, [female 1] applied for and was granted an interim Domestic Violence Order (‘DVO’) by the Elizabeth Magistrates Court as a result of physical and emotional abuse over 2 years.[41] [Female 1] subsequently sought to revoke the DVO so she could contact the Applicant and his children again.[42]
[41] Ibid 6-8.
[42] Ibid 15-6.
On 27 September 2005, the Applicant reportedly assaulted a female neighbour in a public place.[43] The Police Apprehension Report states:
“It is alleged that between 1610 and 1620 hrs, on Tuesday 27th September 2005, the accused in this matter assaulted the victim by punching her in the facial area with a clenched right fist and by pushing her to the ground. It is further alleged that this resulted in the victim sustaining a small cut to the inside of her mouth area and swelling to head area.
*** Victims Version***
The victim in this matter, is [female 2], 42yrs of [address]. She states that at about 1615 hrs on Tuesday 27th September 2005 she was walking home on Walpole St, DAVOREN PARK. States that at this time, was in company with several children. Victim states that a male child, the son of the alleged offender in this matter, went to the front yard of a house in Walpole St and removed a piece of downpipe from the house. Believing that this child was going to chase and assault other children with this article, she states that she stopped the child as he ran past her. At this time, the victim states that the alleged offender, STAMENKOVIC, appeared from the southern end of Walpole St. States that he approached and came to within about 1 metre of her, stopped and that there was an exchange of words. States that he then punched her in the face with a clenched right fist and pushed her to the ground. Victim states that as she rose to her feet, she grabbed a large necklace which the accused had around his neck and that she hit him, in an effort to protect herself. States that she returned to her home and contacted police. The victim states that as a result of the assault, she sustained a small cut to the inside of her mouth, swelling to her head area and a bruised ankle. States that she did not provoke the accused in any way and was only acting in self-defence when she hit the accused.
*** Police Version ***
At about 1630 hrs on 27^th September 2005, police [S/C name] was on solo uniform mobile patrol, when as a result of information received via police radio, he attended at [address of the victim]. States that on arrival, spoke to victim in this matter, [female 2] and obtained s statement in relation to alleged assault. At this time, [S/C name] observed the victim to have amount of dried blood around her mouth as well as a swelling to skull area.
Subsequently attended at the home address of alleged offender in this matter, Stamenkovic. On arrival, [S/C name] at the front door of [address] and was greeted by a male adult who had a glass of liquor in his hand and was under the influence of alcohol. Spoke to the accused who was interviewed in relation to the alleged assault. [S/C name]. made notes of the conversation in his notebook in longhand at the time. Interview commenced at about 1700 hrs and completed at about 1720 hrs. Accused subsequently reported for Common Assault.
*** Accused's Version ***
The accused in this matter is Vladica STAMENKOVIC, 39 Yrs, of [address]. He stated that he has attended opposite the victims address in Walpole St because his children been assaulted. Accused made full admissions as to punching the victim and to pushing her to the ground. He asserted that he was only defending himself against her. Accused stated that after punching her, she rose to the ground and grabbed his necklace, then he pushed her back to the ground. Offered no other reason, apart from fact that he believed his son was being assaulted by the victim. Accused continually asserted that police were required to act on his behalf and not for the victim, stating that he called police first and therefore, he should be the victim, and not her.”[44]
[43] Ibid 20.
[44] Ibid 20-1.
When asked about this incident the Applicant denied that this happened as reported. He denied punching his neighbour. Again, I do not accept his evidence. I accept the evidence as set out in the contemporaneous report.
In 2006 the Applicant reports that he was involved in a motor vehicle accident that left him with shoulder, neck and back injuries. He said he later applied for and was granted a disability support pension (‘DSP’) in 2014. His oral evidence is inconsistent with a police report on 21 May 2009 which states: “The accused’s identification was confirmed via [Centrelink] Pensioner's Card.”[45] This confirms the Applicant received DSP as early as 2009.
[45] See para [53].
On 30 June 2008, the Applicant was charged with driving unregistered motor vehicle on a road. No conviction or penalty was recorded.[46] The Applicant told the Tribunal that this was a stupid mistake.
[46] Exhibit 2, G-Document, Attachment A, 31.
On 18 October 2008, the Applicant was apprehended drink driving. The Police Apprehension Report states:
“At about 12.50pm on Saturday 18th October 2008, Vladica STAMENKOVIC, the accused was driving a Ford sedan, SA registration travelling north on Heytesbury Road, DAVOREN PARK. Police observed the vehicle swerve to the left, nearly colliding with the kerb. The vehicle turned west onto Pritchard Street, DAVOREN PARK, the vehicle ran wide, colliding with the northern kerb. Both right - side wheels mounted the kerb. The vehicle remained on the kerb for about 5 metres.
At this time Police activated their flashing lights and sirens indicating for the vehicle to stop. The vehicle revved loudly and the rear wheel spun causing the tyres to squeal. The vehicle continued west along Pritchard Street, before following the street north. The vehicle turned west onto Walpole Street before stopping in the driveway of [address] Walpole Street, DAVOREN PARK.
The accused was submitted to an alcotest which was positive, subsequent BA test result was 0.162 grams of alcohol in 210 litres of breath. The accused was issued with immediate loss of licence notice number [number], disqualifying him from driving for 12 months forthwith.
Checks revealed the vehicle's registration expired on 14/8/08 . The accused was arrested for driving without due care, fail to stop, PCA and driving unregistered.”[47]
[47] Exhibit 9, Respondent Tender Bundle, 30.
When asked about this incident the Applicant said that he was “going at 3 kmph and I had a flat tyre……I didn’t see the big deal in it………it was a silly mistake…….the police didn’t tell the truth about the flat tyre.” However, the police report stated: “When the vehicle moved all wheels back onto the road, the right front tyre was deflated.”[48] The report actually included the detail the Applicant said the police intentionally left out. Meanwhile the Applicant did not accept that he was driving recklessly while intoxicated.
[48] Ibid.
On 16 November 2008, a Multi-Agency Protection Service report states:
“Victim is the adult son of the accused. The accused has 3 other children [name of children] twin daughters and an adult son. The mother lives in Serbia [sic]. The family moved to Australia in 2003.
There have been over 30 previous CP cases regarding this family dating back to 2003. There has been 2 confirmations of abuse recorded in 2007 & 2008.
Concerns have related to the accused's violence; heavy drug use and drug dealing seriously impacting on his ability to provide care and protection for the children; the accused not adequately providing for the children (no food, utilities cut off); the children not attending school and wandering the streets stealing and using drugs.
The victim has speech & learning difficulties and in 2011 was referred to Headspace. In 2008 the accused faced criminal charges for assaulting [D. Stamenkovic] with a pole. The accused is on a Disability Support pension following 2 car accidents in 2008 & 2009.”[49]
[49] Ibid 176.
The Applicant denied any interactions with Child Protection services. I also note the different account of past motor vehicle accidents.
On 26 November 2008, the Applicant behaved in a disorderly manner in the precincts of the Elizabeth Magistrates Court. The Police Apprehension Report states:
“At about 11:30 am on Wednesday 26th of November 2008, police [name]. were on uniform duty at the Elizabeth Magistrates Court waiting to attend a trial in court room 5. At that time they were approached by the accused in this matter who invaded their personal space and tried to engage them in conversation regarding the male they were going to trial over who was an associate of his. Police [name] told the accused he did not wish to discuss the matter whereby [sic] he became offended and became aggressive towards police as did his son D. Stamenkovic.
The accused proceeded to behave in a disorderly manner inside the Elizabeth Magistrates Court by yelling loudly the word "f**k" waving his arms around and pointing his finger in the face of police in an aggressive manner. The son of the accused was also behaving in a Disorderly Manner.
The accused then hindered police [name] by grabbing him with both his hands and blocking him with his body, making it significantly harder for him to pursue and arrest his son, D. Stamenkovic for Disorderly Behaviour which had escalated to the point where police had to act.
Once police had D. Stamenkovic arrested and cuffed, Police [name] also placed the accused under arrest as he continued to behave in a Disorderly manner out the front of the Elizabeth Magistrates Court House. [Police name] and [Police name] placed the accused under physical arrest due to his temper and conduct whereby he tried to pull his arms away from police and refused to walk with police and pushed in the opposite direction. These actions made it significantly harder for police to perform their duty.”[50]
[50] Ibid 36.
When asked about this incident the Applicant said that this report was untrue.
On 13 December 2008, the Applicant assaulted his sister (S.S), with a wooden pole and his son D. Stamenkovic (then aged 15) with a metal pole. He was arrested and charged with two (2) counts of aggravated assault and one count of resisting police. The Police Apprehension Report states:
“*** VICTIM VERSION ***
Victim 1 (S.S.)
Victim 1 in this matter is S.S of [address]. Victim 1 is a sister of the accused.
At about 12.00 p.m. on Saturday the 13th of December 2008 Victim 1 attended the address of the accused, due a phone call from [D. Stamenkovic] (Victim 2 in this matter). [D. Stamenkovic] stated that the accused had been ‘shooting up’ at the home address in front of all the children. [D. Stamenkovic] further went on to say that the children and he were in danger of neglect and assault and needed help.
Victim 1 attended the address to assist the children and check on their welfare, on attending with a friend [name] (witness 1), Victim 1 walked up to the door of the property where the accused was standing. Victim 1 asked to speak to [D. Stamenkovic] - and the accused became angry and said that he did not know why I wanted to speak to [D. Stamenkovic] - as he was the problem. Victim 1 expressed concern for the children and the accused refused to allow her to see the children. The accused became further abusive swearing at Victim 1. The accused reached behind the wall and caught hold of a brown bat in his right hand. As the accused did this [D. Stamenkovic] leapt inside and pushed the accused backwards to prevent him getting at Victim 1. At this point the younger children began to scream. The younger children began to run for Victim 1 for shelter. The victim brought the children to the car while the accused and - struggled for the bat. [D. Stamenkovic] then ran out of the house towards the car closely followed by the accused. Victim 1 shouted for [D. Stamenkovic] to come to the car. As Victim 1 turned to see what was happening, she saw the accused pick up another plank of wood. The accused then came at Victim 1 with the plant of wood up over his head in an attempt to hit Victim 1 with it. A further struggle took place between [D. Stamenkovic] and the accused as [D. Stamenkovic] attempted to defend Victim 1. Victim 1 was in fear for her safety and got the children into the car and left the scene. D. Stamenkovic also left the area.
Victim 1 claims that no person had permission to assault her.
Victim 2
Victim 2 in this matter is D. Stamenkovic of [address]. Victim 2 is the son of the accused.
At about 12 .03 p.m. on Saturday the 13th of December 2008 Victim 2 contacted S.S (his aunt and Victim 1 in this matter) due to the accused injecting himself with drugs in front of the other children. Victim 2 was also very concerned as the children had not eaten any food and the accused was not looking after them. Having contacted S.S by telephone, S.S called around to their house, Victim 2’s aunty and [witness name] (witness 1) attended the address of the accused, [address]. An altercation took place where the accused swung a pan of wood at victim 1 in an attempt to assault her. Victim 2 intervened and prevented the intended assault.
Having left the area, Victim 1, Victim 2, Witness 1 along with the younger children, [L Stamenkovic, M1 and M2 Stamenkovic] all attended Elizabeth Police station to report the assault.
Having reported the assault, they then attended Victim 1’s home address of [address].
At about 4.50 p.m. while at the address, Victim 2 looked out through the curtains and saw the accused enter the front garden holding metal stick, the accused placed the metal stick against the fence and approached the front door the of the property. The accused then began to kick the front door. Victim 2 fearing for the safety of the other children, opened the door and ran past the accused hoping that the accused would run after him. In the garden Victim 2 told the accused “come and get me, come and get me”. The accused then approached Victim 2 in an angry manner. The accused had a can of beer in his hand. The accused walked at Victim 2 and pushed him with his shoulder. Victim 2 then pushed the accused back and the accused swung around and hit victim 2 with the can of beer in the side of his head. Victim 2 then ran towards the gate of the garden and the accused ran after him and grabbed the metal pole he had placed there. The accused returned to the front door and hit it with the stick. The accused was shouting “f**k off, I just want my kids back”. The accused then swung a metal walking stick at Victim 2 hitting him in the arm near his elbow. Victim 2 stepped back and kicked the accused in the leg. The accused then chased Victim 2. The accused swung the metal stick and hit Victim 2 in the back twice and once in the head. The metal stick broke in half when the accused hit Victim 2 in the head. Victim 2 felt dizzy and grabbed the accused, during the struggle, the accused began to ram the broke end of the metal stick into Victim 2’s ribs and back causing immediate pain. The accused also rammed the stick into Victim 2’s face and head causing injury. Victim 2 then ran away towards another house. The accused chased Victim 2 but Victim 2 got away to a place of safety.
Victim 2 claims that no person had permission to assault him.
*** ACCUSED VERSION ***
The accused in this matter is Vladica Stamenkovic, dob 23/06/1966 of [address].
In an interview with Police [name]. and a requested Serbian interpreter [name], the accused through the interpreter that he had been attacked outside his home address by [D. Stamenkovic] (his son) and Victim 1 (S.S). The accused further went on to say that he had been attacked by his son and S.S again later in the day. The accused refused to answer any further questions about what he had said. Through the interpreter, the accused claimed that the injury he had was sustained by Police during arrest. The accused was advised on how to make a complaint. The accused was constantly disruptive in interview making it difficult for both the Police and the interpreter. When asked if he wished to end the interview and through the interpreter, the accused refused to answer. This question was asked several time and the interpreter informed Officers that the accused would not answer. Due to this the interview was terminated at the request of the accused as he did not wish to answer any further questions.”[51]
[51] Exhibit 9, Respondent’s Tender Bundle, 42-44.
When asked about this incident the Applicant said that the report was exaggerated. He said his son was living with his sister at the time. He said D. Stamenkovic came to his house to demand money. He refused to give him any, as a result, D. Stamenkovic called S.S to the house. He denied hitting his son and his sister. He said that the police would not listen to his version of events when they came. In exasperation he said: “So, do I need an interpreter? So they got me one.”
On 24 December 2008, Correctional Services notes record:
“Vlad spoke about all his issues regarding Families SA - he has had one appt with them and they will contact him for next appointment. I carefully went through Vlad's bail conditions with him emphasising that he must not approach or communicate with his son [D. Stamenkovic] and Vlad’s sister S.S with whom [D. Stamenkovic] meant to be living.
Vlad told me that his son is visiting a man called [name redacted] who is currently in the ARC. This man had been living with Vlad and family and was then incarcerated. Vlad’s son is only 15yrs old and on further investigation, [redacted information] – this came to light when I investigated further.
The Volunteer Unit is involved here too as [redacted information] from that office apparently takes son [D. Stamenkovic] for visits. I told Vlad that I didn’t like the sound of this and would investigate this further giving him no information, I informed both CMC [name] and MCM [name] about this situation involving the son and MCM will take appropriate contacting ARC, Volunteer Unit, Court Unit (bail report due from them for [redacted information] and whoever else needs to be involved in order for these visits to be stopped.
[name redacted] is a person that was “couch surfing” at Vlad’s place and the family have only known him for a few months.
I got the information about the visits to ARC directly from [redacted information] as she phoned Vlad while he was in my office and I spoke to her.
Vlad said that son [D. Stamenkovic] had charges against Vlad and [vice] versa, and son [D. Stamenkovic] will be appearing in the Youth Court in January some time. The other 3 children in the family are living with sister S.S. Vlad's wife is back in their home country.
next appt 7/l/09 at 11.30am.”[52]
[52] Exhibit 9, Respondent’s Tender Bundle, 449-50.
On 6 February 2009, the Applicant was convicted of driving with excess blood alcohol, driving unregistered motor vehicle on a road, failing to stop vehicle and due care – basic offence. He was fined $700 and disqualified from driving for 8 months and 11 days.[53]
[53] Exhibit 2, G-Document, Attachment A, 31.
On 21 May 2009, police attended at the Applicant’s home with a General Search Warrant. The Police Apprehension Report states:
“On Thursday 21st May 2009, Police [name] attended at the accused's home address at [address] Davoren Park and under the authority of a General Search Warrant held by [name] conducted a search.
Inside the locked rear shed of the premises , Police located six (6) transformers, four (4) light shades and two (2) light globes constituting prescribed equipment and a rubbish bin full of approximately 1.5 kilograms of dried cannabis.
Police [name] conducted a record of interview with the accused which was recorded in her notebook. The accused was subsequently reported for possessing prescribed equipment and possessing cannabis.
Police [name] took still photographs of the prescribed equipment and cannabis seized.
The accused’s identification was confirmed via [Centrelink] Pensioner's Card, an OIM check and previous dealings with police.
*** ACCUSED VERSION ***
The accused in this matter is Vladica STAMENKOVIC (23/6/1966) of [address].
(Count 1): Possess Prescribed Equipment:
STAMENKOVIC states that he was not aware that the transformers, light shades and globes constitutes prescribed equipment and is illegal to possess. He states he brought the items from cash converters between three and five years ago and uses them as heating lamps for when he used to spray paint doors. He states that as far as he is aware the equipment has not been used in the growing of cannabis .
(Count 2): Possess Controlled Drug for Sale:
The accused states that he was aware that the cannabis was in the rear shed. He states that one of the people that frequents his house found it on the side of the road and it has been in his shed for a couple of days. He states that he assumes that people that frequent his house were going to smoke the cannabis. The accused states that everyone has access to the rear shed and that people are meant to lock it when they l eave but no- one ever does. The accused states the house belongs to him. The accused states that he was not aware that possessing cannabis was an offence as he is a new migrant to this country.”[54]
[54] Exhibit 9, Respondent’s Tender Bundle, 51, 57.

This report confirms that the Applicant was in receipt of a DSP as early as 2009. This is inconsistent with his evidence to the Tribunal and it raises issues regarding the truth of his claim to have worked for 12 years as a carer.
On 12 June 2009, the Applicant was charged with disorderly behaviour. No conviction or penalty was recorded.[55] When asked about this, the Applicant did not recall it.
[55] Exhibit 2, G-Document, Attachment A, 31.
On 7 July 2009, the Applicant was charged with resisting police. He was not convicted but placed on a 12-month good behaviour bond.[56] When asked about this, the Applicant did not recall it.
[56] Ibid.
On 22 February 2011, the Applicant was apprehended by police driving under the influence of methamphetamine.[57] When asked about this, the Applicant did not recall it. He also said ”I don’t do it anymore, so I don’t see the big deal in it...”
[57] Exhibit 9, Respondent’s Tender Bundle, 62.
On 8 August 2011, the Applicant was convicted of driving vehicle with the presence of drug in fluid or blood. He was fined $700 and disqualified from driving for 6 months.[58]
[58] Exhibit 2, G-Document, Attachment A, 31.
On 10 January 2012, the Applicant was involved in hindering police. The Police Apprehension Report states:
“Count 1 (Hinder Police)
At about 11.30p.m on Tuesday 10^th January 2012, police [name] were on uniform mobile patrol when as a result of a call for assistance by another patrol, attended at Arura Reserve, Pritchard Street, Davoren Park. Upon arrival police [name] had a female in custody and advised attending patrols, M2 Stamenkovic had assaulted police and was to be arrested. Police [name] attempted to place M2 under arrest, whilst they did this a male, now known to be Vladica Stamenkovic, the accused in this matter grabbed hold of M2 and pushed police away.
Count 2 & 3 (Resist Arrest/Property Damage)
Police attempted to pull the accused away from M2 but the accused continued to hold onto her. Police were able to separate the accused from M2 the accused continued to resist arrest by not following police direction and was physically resisting arrest by tensing his arms down his sides and not complying with directions to place his arms behind his back. The accused damaged the property of police [name] whilst continuing to resist arrest, by breaking his watch and tearing his shirt. His watch face was cracked and the band broken off, rendering the watch unusable.
The accused was taken to the ground, where he continued to resist arrest by holding his arms underneath his body. Police were able to free the arms of the accused from under his body and he was placed in handcuffs to the rear of his body. The accused was searched, given his arrest rights by police [name] and conveyed to the Elizabeth Cells Complex.
Upon arrival the accused was searched and removed of his property and placed into an observation cell. At about 12.24am on Wednesday 11th January 2012, the accused was interviewed by police [name] in police notebook and at 1.10am was charged.”[59]
[59] Exhibit 9, Respondent’s Tender Bundle, 68.
When asked about this incident the Applicant said that the police were trying to arrest his daughter (M2) “They had the wrong person …it wasn’t my daughter …what they wrote about her was rubbish. This is a stitch up and I went along with it…what an idiot!”
On 21 March 2012, the Applicant was detected by police on Peachey Road at 12.33AM. He was in beach of a bail curfew. Interestingly, the Police Apprehension Report among other things states:
“An interpreter was not organised due to no interview and the accused stated he could understand most words of English.”[60]
[60] Ibid 74.
When asked about this, he said “my daughter was crook…I was waiting on the corner of the road… waiting for a home GP to come…” This is not what he told police at the time, which was that he was going to get food for his children, from the shop.[61]
[61] Ibid.
On 25 March 2012, the Applicant again breached a condition of his bail agreement.[62]
[62] Ibid 78.
On 16 April 2012, the Applicant entered into another bail agreement.[63]
[63] Ibid 82.
On 28 April 2012, the Applicant breached the bail agreement curfew.[64]
[64] Ibid.
On 30 April 2012, the Applicant breached the bail agreement curfew.[65]
[65] Ibid 86.
On 14 January 2013, the Applicant was convicted of hindering police.[66] He entered a guilty plea.
[66] Exhibit 2, G-Document, Attachment A, 31.
On 9 or 10 March 2013, the Applicant is alleged to have indecently assaulted a woman. A summary occurrence report states:
“[Female 3] was in custody at the Adelaide Woman's Prison on 23rd July 2013 when she reported to her counsellor, [name of counsellor] that she was indecently assaulted in March 2013 by an associate of hers, Vlad Stamenkovic, and his two daughters [M1 and M2].
[Female 3] reported to [counsellor] that she had attended STAMENKOVICH’ home address and was attacked by STAMENKOVICH and his daughters. She stated that she was punched in the head as well as fondled inappropriately.
On 1st August 2013 the investigation was allocated to Elizabeth CIB [name] for follow-up.
On 21st September 2013 Police [name] attended the Adelaide Women's Prison to speak with [female 3] re this matter. She confirmed that she wished to proceed and that she would be willing to go to Court over the matter. Further to the original information [female 3] stated that on the day in question she had attended STAMEKOVICH's house with $500 in cash had obtained from begging. She stated that the reason for her attendance at STAMEKOVICH's house was to organise for him to purchase amphetamine for her. She states that upon realising that she had a large amount of cash he and his daughters attacked her, stealing the $500.
[Female 3] was released from custody shortly after being spoken to, but prior to a statement being obtained. She was bailed to an address at [location]. She breached that bail shortly after for not residing at the address. She has since been arrested and re-bailed but is not believed to be residing at that address.
Due to her transient nature [Female 3] has been difficult to locate in order to speak to about this matter. CIB [name] has checked with a number of her associates in the Elizabeth LSA but has not been able to locate her.
CIB [name] liaised with Elizabeth Community Constable's [name] in relation to [Female 3] whereabouts. Community Constable's have an interest in keeping track of her due to her nuisance behaviour of door-to-door begging. CC's have been unable to locate her but are continuing their attempts.
An ancillary report (report number) has been added to PIMS requesting that any Police coming into contact with [Female 3] request that she contact Elizabeth CIB regarding this matter.
….
Victim this matter is currently an inmate of the Northfield Women’s Prison on Grand Junction Rd, NORTHFIELD.
Reporting person is Aboriginal Counsellor [counsellor’s name] a member of Staff at NORTHFIELD.
Count 1. Btwn 1800-1900 9/3/13 or 1800-1900 10/3/13, suspect this matter, Vladica STAMENKOVICH whilst at [address location], has fondled and groped the victim all over the body including her breasts and groin with his hands. Further the victim alleges that she was held down by the suspects two daughters, M1 and M2 STAMENKOVIC. Nil permission. Victim feared for her safety. Count 2. Btwn the above times and dates. The suspect this matter Vladica STAMENKOVICH has punched the victim to the head. Nil permission, nil injury.”[67]
[67] Exhibit 9, Respondent’s Tender Bundle, 224, 228.
This matter appears not to have proceeded to a trial or a conviction.
On 15 April 2013, the Applicant was charged with two counts of failing to comply with bail agreement. He was convicted and placed on a 6-month good behaviour bond.[68] The Applicant told the Tribunal, “maybe I went to the doctors because of my back injury.”
[68] Exhibit 2, G-Document, Attachment A, 31.
In 2014, the Applicant’s first granddaughter (Child A) was born.[69] She is the daughter of the Applicant’s son, L. Stamenkovic. Child A’s parents have been separated for 5-6 years. They were never married. Child A lives with her mother and her mother’s current partner. She now has 2 younger stepsiblings.
[69] Ibid Attachment H, 76.
On 9 August 2014, the Applicant was involved in an incident with police. The Police Apprehension Report states:
“At about 12.58 pm on Saturday 9th August 2014 police [name) was on mobile uniform patrol when tasked to a fire at [address] DAVOREN PARK.
Police [name] arrived at the address at about 1.03pm. On arrival at the address there was present four Metropolitan Fire Service officers speaking with a group of people in the front yard of [address]. On observation there was a rubbish fire in the centre of the front yard which was emitting a considerable amount of smoke.
MFS officers were attempting to speak with the accused in this matter, Vladica STAMENKOVIC. STAMENKOVIC was abusive towards the MFS officers, continually yelling “F**k off!” and threatening the MFS officers if they came on to his property. He was advised by MFS that they needed to extinguish the rubbish fire due to the smoke and he has continually ref used to allow them access to the property. Police [name] has then attempted to speak with STAMENKOVIC who continued to yell and swear at police and MFS. He has then picked up items and thrown them and kicked items around the front yard of the property.
At this point in time police noticed that numerous persons had exited their houses and were drawn to the behaviour of STAMENKOVIC. This included families with children and elderly persons. Walpole street is a street which runs in an east west direction and has a new housing estate directly opposite [address]. Police took into account that the behaviour of STAMENKOVIC was a breach of public decorum and detrimental to all those in the vicinity who could see or hear the behaviour of STAMENKOVIC.
STAMENKOVIC has then picked up a hose located on the eastern side of the front yard next to the driveway and has attached it to a tap and turned it on. STAMENKOVIC has then directed the spray towards the MFS officers standing on the foot path in front of the property, and has then directed the water spray at police [name] spraying him to the head and chest with water.
At this stage further police have been requested to attend and STAMENKOVIC has sprayed water on the fire yelling out "F**k off it's done!" and continued to yell out "F**k off!"
STAMENKOVIC has then run inside the house with other family members and locked the front door. Further police [name] have arrived at the address and began speaking with STAMENKOVIC through the front door of the property.
STAMENKOVIC was advised by police that he was going to be placed under arrest and to exit the house. STAMENKOVIC has refused to exit the house and has rang 000 for police to attend the address and remove the police present. STAMENKOVIC has then exited the house after twenty minutes of negotiation and was placed under arrest.
He was then taken to the ELIZABETH Police cells and charged with the offences at 2.17pm. His identity was confirmed via police (SHIELD) systems.
ACCUSED VERSION
The accused in this matter was not interviewed in relation to the offences due to his behaviour and intoxication whilst in police custody.”[70]
[70] Exhibit 6, Respondent’s Tender Bundle, 91-92.
When asked about this, the Applicant told the Tribunal that “I don’t recall it, but its rubbish. It’s not in my nature to behave in such a manner.”
On 15 September 2014, was detected by police with suspected stolen property and housebreaking implements. The Police Apprehension Report states:
“On Monday 15th September 2014, police [name] were on uniform mobile patrol on Bulkington Road, DAVOREN PARK when two (2) males, the accused & co-accused, were seen pushing a Chef oven along the street at about 1:30am. Suspicion was raised that the oven was obtained unlawfully as the accused and co- accused were unable to accurately give an address from where the oven was obtained, giving number [address] but the street numbers do not go that high. The accused gave the name or Tony as the person who allegedly sold the item to him for $200, but was unable to provide a receipt, surname, telephone number or any other details as to his identity or proof of sale. The gas pipe that connects the oven to a home's main gas line was also cut in manner that would make it unable to be directly connected back to a main gas line due to it being damaged, as if it were cut with plyers etc. The accused was also in possession of a green Woolworths bag full of different tools (hammers, plyers, screw drivers, spanners etc) without a lawful purpose. These tools are commonly used for house breaking. These tools were seized as exhibits.
The accused was interviewed and reported for unlawful possession and possession of house breaking implements. The record of interview and all other seized exhibits were booked into police property management system number [number]. The accused was identified by police computer records.
***ACCUSED***
Count 1
The accused stated he had purchased the oven from a male he knows as [name] about a week ago . He met at the male at the Playford Tavern and paid $200. He stated the co-accused was assisting him move the oven. He denied stealing the oven but could not prove (by receipt or any other means) a lawful purchase.
Count 2
The accused was unaware it was an offence to carry the tool at night and stated he was using them to uninstall the oven before taking it .
***CO-ACCUSED***
[71] Exhibit 9, Respondent’s Tender Bundle, 104.
The co- accused stated he was asked by his brother to assist the accused in moving the oven and had only met him earlier in the day. He stated when he saw the accused with the oven he was already on Bulkington Road and did not see where the oven came from.”[71]
When asked about this incident, the Applicant stuck with his story about taking the tools with him to disconnect the oven. He said he was surprised that the oven was already disconnected and he didn’t need to use the tools. He picked it up from the front yard of a house. He wanted the oven because he was renovating at the time. He nevertheless entered a plea of guilty to the charges.
On 9 November 2014, the Applicant was arrested for aggravated robbery. The Police Apprehension Report states:
“*** VICTIM VERSION ***
[Female 4] is the victim in this matter and states on the 9th of November 2014, she was at the Playford Tavern when she saw a male whom she knew only as Vlad who she had met on one previous occasion . The victim states she left the tavern with Vlad and went to one of his friends' places nearby . After a period of time the victim left the house alone and was walking across a nearby park when Vlad and another unknown female approached her, assaulted her by punching and kicking her, and stole her daughters Nokia mobile phone valued at about $100. Victim received facial and abdominal injuries from the assault and was admitted to the Lyell McEwin Hospital.
On the 10th of April 2015, the victim participated in a photographic identity parade and positively identified Vlad.
*** POLICE VERSION ***
At about 8:10 p.m. on Friday the 1st of May 2015 , Police [name] attended [address] regarding the possible location of a suspect tor an aggravated robbery in [location] in November 2014.
Upon arrival Police spoke with a male now known to them as Vladica STAMENKOVIC (d. 23/2/1966), the accused.
Evidence provided by the victim had identified a male at the address by the name of Vlad and having reasonable cause to suspect he had committed an offence he
was arrested for aggravated robbery to ensure his appearance before a court.
The accused was interviewed on video with the assistance of a Serbian interpreter however declined to answer questions.
The identity of the accused was confirmed by OIM picture.
*** ACCUSED VERSION ***
[72] Ibid 109.
Vladica STAMENKOVIC (d. 23/2/1966) is the accused in this matter and declined to answer questions.”[72]
When asked about this incident the Applicant said: “the other lady committed the offence… it had nothing to do with me… The police suggested the interpreter.”
On 20 July 2015, the Applicant breached a condition of his bail agreement.[73]
[73] Ibid 114.
On 5 November 2015, the Applicant was convicted of disturbing the peace, assaulting police, unlawful possession and hinder a member of an emergency services organisation. He was sentenced to 8 weeks imprisonment with suspended sentence and placed on an 18-month good behaviour bond.[74]
[74] Exhibit 2, G-Document, Attachment A, 31.
When asked about this, the Applicant said that he did not remember but “it was not true to the full extent… I just entered a plea of guilty…”.
On 15 December 2015, the Applicant was arrested at his home for aggravated assault and discharge firearm to cause harm.[75] On the same day, the Police also issued the Applicant with a Police Interim Intervention Order (‘PIIO’). Risk was assessed at medium level. The police stated that they reasonably believed that without the PIIO, the Applicant would further commit in an act of domestic violence against the protected persons.[76] The Police Apprehension Report states:
“The victim in this matter [L. Stamenkovic], who alleges at about 7.20 pm on Tuesday the 15th of December 2015, whilst at his home address at Davoren Park. Had an argument which ensued between the victim and the accused over Christmas. As the victim was attempting to leave the house through the front screen door when the accused clenched his right fist and swung at the victim narrowly missing his head. As the victim attempted to flee down the front porch through the front yard, he felt an impact in the middle of his back from a projectile. As the victim looked back he observed the accused holding an object that resembled a fire arm. The object consisted of a barrel and a wooden shotgun handle. Police attended the home address in relation to the disturbance and located the accused at his home, a second Patrol located the victim at a second location close by.
Police conducted a search of the premises f or the firearm under section 32 of the firearms Act. No firearm was located at premises .
At about 8.20 pm on Tuesday the 15th of December 2015, the accused was placed under arrest for aggravated assault and discharge firearm to cause harm and given his arrest rights on video and conveyed to the Elizabeth cells. Apprehension number [number] refers.
Police completed a Domestic violence risk assessment which resulted in a risk level of 29, which is considered medium risk.
Police issued the accused with a Police Interim intervention Order as it was reasonable to suspect that the defendant will without intervention commit a further act of abuse against the protected persons.
The accused's identity was confirmed through Police computer systems.”[77]
[75] Exhibit 9, Respondent’s Tender Bundle, 125.
[76] Ibid.
[77] Ibid.
When asked about this incident the Applicant denied the reported incident. He said that it was “total rubbish…. a pack of lies… not true….”
On 4 January 2016, a Police Apprehension Report states:
“At about 4.30am on Monday, 4th January 2016, Police conducting uniform mobile patrol when they stopped a green FORD station wagon VIC registration [number] on Marleycombe Road, ELIZABETH VALE to conduct a licence check on the driver. The accused was a passenger in the vehicle and [then] he alighted from the vehicle. Police made observations of the accused who had glazed eyes, sweating, and slurring his words. Police suspected he was under the influence of an intoxicating drug.
Police conducted a search of the accused under the Controlled Substances Act and located a small resealable bag containing less than 1 gram of suspected methamphetamines in his right pants pocket. Police had a conversation with the accused which was recorded in handwritten notes at the time.
Police seized the items and issued the accused a field receipt number [number] refers. The drugs were entered into Elizabeth Property, PPMS [number]. Police conducted a presumptive screening test on the substance which returned a positive result for methamphetamine.
The identity of the accused was confirmed through police photographic records. Police issued the accused with a drug diversion referral notice episode number [number] refers.
The accused did not attend the assessment and fail to comply with the provisions of the act. The accused was subsequently reported for possessing a controlled drug.”[78]
[78] Exhibit 9, Respondent’s Tender Bundle, 129.

In 2016, the Applicant’s son, D. Stamenkovic was deported to Serbia following his release from prison.[79] The Applicant told the Tribunal that he did not know why his son was in prison. He said that he had spoken to D. Stamenkovic on the phone a few times since he was deported. He was living in the Applicant’s property in Serbia, but he thinks that he may have sold it.
[79] Exhibit 2, G-Document, Attachment D: Sentencing Remarks of the District Court of South Australia (dated 22.08.2022), 47.
On 20 September 2016, the Applicant was convicted of possessing controlled drug (not cannabis).[80] He told the Tribunal that someone had dropped some bags containing drugs. in his car, or slipped them into his pocket.
[80] Ibid Attachment A, 31.
On 7 August 2017, the Applicant was apprehended by police and found to be in possession of methamphetamine. He was scheduled for a drug diversion meeting which he repeatedly failed to attend.[81] The Applicant told the Tribunal that he had back pain so he missed reporting.
[81] Exhibit 9, Respondent’s Tender Bundle, 143-4.
In 2018, the Applicant’s second granddaughter (Child B) was born.[82] Her mother is M2 Stamenkovic. The Applicant told the Tribunal that Child B is with the Department for Child Protection due to M2’s mental health condition.
[82] Exhibit 2, G-Document, Attachment H, 76.
On 18 February 2018, the Applicant was found in possession of stolen goods to the value of $102.83.[83]
[83] Exhibit 9, Respondent’s Tender Bundle, 138.
On 13 March 2018, the Applicant was apprehended by police in possession of a knuckle duster. He claimed that it was a key ring. Police observed that “simply drilling a hole in a knuckle duster doesn’t change what it is.”[84] The Applicant told the Tribunal that the police ”made me take it off the key ring so it was called a knuckle-duster”.
[84] Ibid 134.
On 20 September 2018, the Applicant was convicted of possessing controlled drug (not cannabis).[85]
[85] Exhibit 2, G-Document, Attachment A, 31.
On 16 November 2018, the Applicant was involved in an aggravated robbery, assault causing harm and theft. A Summary Occurrence Report states:
“Victim [Mr B], taken to a house in [Davoren Park], by suspect, only known as “[Ms H] .”. Once at the house 3 unknown suspects assaulted victim by punching him to head numerous times and whipping him on the back of the head with a hose and forced him to smoke meth under threat of further violence. Victim has a split to the face and bruising. Suspects also forced victim to give his belongings including his bank card and threatened to kill him if he did not provide his pin number. Suspects withdrew $1500 from victims account at OTR DAVOREN PARK ATM. Suspects told victim they were going to cut him up and feed him to the dogs and forced him to remain at address under threat of further violence. Victim in fear for his life. Victim only left by escaping and running away when suspects went into different room. Nil permission.”[86]
[86] Exhibit 9, Respondent’s Tender Bundle, 243.
When asked about this incident the Applicant said that he could not remember this.
On 6 March 2019, the Applicant was convicted of using or possessing prohibited weapon and hindering police.[87] He agreed that he pleaded guilty.
[87] Exhibit 2, G-Document, Attachment A, 31.
On 22 March 2019, the Applicant was arrested in relation to the events of 16 November 2018.[88]
[88] Ibid Attachment D: Sentencing Remarks of the District Court of South Australia, 44.
On 25 March 2019, Correctional Services notes record that “no literacy issues were disclosed”.[89]
[89] Exhibit 9, Respondent’s Tender Bundle, 446.
On 24 May 2019, Correctional Services notes record:
“Vladica attended as directed, he reported that he has been evicted from his house and he is living outside the front in his car, he is not sure how he can get his property out, CM suggested that when he goes to SAPOL to sign in he asks. CM advised that he needs to contact her when he finds alternative housing and he needs to update the court. Vladica said that he has been evicted by the bank and they are foreclosing on his house. Vladica said that he will contact his lawyer and he can organise everything for him, he will not speak to the police about anything, he has lost all trust in them, they are trying to frame him for all this stuff. Vladica attended the office with a mobile phone in hand and CM asked for his number and he said that he doesn’t have one, he said that it has a cracked screen and it belongs to a friend. CM asked why he would carry a phone if it doesn't work and he said he doesn't have one. CM stated that she needs a contact number in case he fails to turn up for his apt, she can call him. He said that he will turn up for his appointments. N/A: 07/06/2019 at 10.30 am. Reminder slip provided.”[90]
[90] Ibid 444.
On 13 November 2019, a police report states:
“At about 1640 Wed 13/11/19 the victim [name], was at the Elizabeth train station when the suspect and he had a verbal altercation. The altercation resulted in the suspect punching the victim to the face once causing a small abrasion above his left eye. Victim have never met the suspect. Nil permission.…
….
Collected CCTV from PSSB covering the assault at the train station. Footage shows the suspect approaching the victim who immediately detects hostility and attempts to get away from the suspect. The suspect follows the victim until he is cornered and the suspect is seen on camera punching the victim to the face and kicking him to the leg. The victim run away and the suspect follows to a point obscured by a vending machine where a further struggle appears to take place.
While the CCTV is grainy police have identified the suspect to be Vladica Stamenkovic. Stills of the suspect, suspect talking with the victim and the suspect assaulting the victim.
The suspect has been added to the occurrence and flagged as wanted. CCTV booked into PPMS, [number].”[91]
[91] Ibid 309, 317.
On 21 February 2020, Correctional Services notes record:
“Vladica reported for supervision today as required. He walked into the room carrying an open bottle of Port. He was advised not to bring alcohol into a DCS property. When questioned why he had the Port, he was evasive and eventually said that 'someone had given it to him'. He did not appear to be under the influence of alcohol. Vladica will be moving address soon but was advised that he needs to inform me within two days of the move. Vladica is difficult to communicate with. He does not want to listen to what I have to say and then at one point became overly flirtatious, asking me whether I was single. It was explained to him that this was inappropriate behaviour. NTR Friday 6/3/20 at 11.30am. Appt. slip issued.”[92]
[92] Exhibit 9, Respondent’s Tender Bundle, 436.
On 20 March 2020, Correctional Services notes record:
“Vladica reported for supervision as required. He is still facing Homelessness and from today will be “couch surfing” at a friend’s house. Address to be updated on JIS [redacted information] Vlad had his mobile phone stolen so provided new contact details. I provided him with the phone number for Homelessness Gateway and urged him to phone them today. Vlad states that he is having difficulties securing accommodation through Housing SA as he still has a house registered in his name although he says that it was repossessed by Westpac. Vlad spoke about health concerns and that he needs to stay in the area of Elizabeth as he is seeking treatment for Hepatitis C. We spoke about COVD-19 and Vlad says that he is mostly oblivious about it as he does not have radio or tv. We discussed the health precautions that he should be taking. Informed him that future reporting will be via phone. Understood. NTR - 3/4/202 via phone.”[93]
[93] Ibid 435.
On 20 May 2020, Correctional Services notes record:
“Return PC from Vlad after receiving 2nd warning letter. Vlad sounded very intoxicated/under the influence. He states that he is still living at with a friend [name]. He said that his mobile phone was stolen and he was under the impression that he no longer had to report to Community Corrections. I informed him that this was not the case and that he is required to report to me fortnightly. Vlad was using [name] mobile phone – [number]. I informed Vlad that he was just about to have a Breach submitted to SAPOL for failing to contact/attend. Once again, Vlad sounded very intoxicated and it was difficult to hold a conversation with him. I reminded him of his pending court date 26/5/20. NTR to my by phone on 2/6/20 at 2pm. Vlad says that he will endeavor to get another phone.”[94]
[94] Ibid 432.
On 4 September 2020, Correctional Services notes record:
“Vladica reported for supervision as directed. He was observed prior to his appointment out the front of the entrance doors smoking and drinking out of a bottle of alcohol. Vlad was in the company of two females who then took the alcohol from him claiming that it was theirs. Vladica was counselled by staff and then seen briefly by CM to sign attendance sheet. Vlad was told that this was the third time that he has presented at ECCC with open bottles of alcohol and told that he not be seen if he is under the influence. He was apologetic. Vlad advised that he was late to his last court hearing 2/9/20 and a warrant to lie was issued. Vlad was reminded again about his upcoming court dates. He is aware that if he fails to attend that he will be arrested. NTR to me 18/9/20 at 2pm.”[95]
[95] Exhibit 9, Respondent’s Tender Bundle, 429.
On 21 October 2020, the Applicant was convicted of possessing controlled drug (not cannabis).[96]
[96] Exhibit 2, G-Document, Attachment A, 31.
On 12 January 2021, the Applicant was convicted of assault arising from the events of 13 November 2019. He was sentenced to 7 weeks imprisonment with suspended sentenced and placed on a 12-month good behaviour bond.[97] He told the Tribunal that he could not remember what this was about. He then stated that the victim had been swinging his arm at him. He had not met him before. He claimed that the CCTV footage of the incident “ missed the first bit, where he approached me.”
[97] Ibid.
On 18 January 2021, Correctional Services notes record:
“Sequence No - 00562/20. On 28/1/2020 Vlad became subject to Supervised Bail [number] for the offence - Basic Commit Assault. Vlad was inconsistent with reporting and often would attend at ECCC outside of his appointment times. Warning letters were issued during the period of his supervision. There were no AOD testing conditions in his Bail and Vlad is clearly using illicit substances and has a problem with alcohol. There were three separate occasions where he reported for supervision with alcohol in his possession and it was clear that he was under the influence. Vlad has experienced homelessness throughout his order and he lives day to day, couch surfing at different addresses. Vlad does not lead a structured day and is often seen associating with other known offenders. Vlad would be suitable for future community-based orders but the addition of AOD testing/counselling conditions would be highly recommended. In court on 12/1/2021 his matter was finalised and he was issued with a head sentence of 7 weeks suspended on a Bond for 12 months without supervision. He was ordered to pay $100 to the victim. This file to be terminated.”[98]
[98] Exhibit 9, Respondent’s Tender Bundle, 424.
On 19 February 2021, Correctional Services notes record:
“Vlad reported for supervision as arranged. He had visible cuts and scrapes to his face and reported that he had recently been in a physical altercation when a woman that he encountered out in public accused him of stealing her mobile phone. Vlad states that an unknown male that was not involved in the incident punched him in the face and stomach repeatedly and bit him three times on the head and ear (this was visible). Vlad disclosed that he then retaliated and punched the male once to the face. Vlad was counselled about placing himself in situations that may lead to SAPOL attendance and further assault charges. Towards the end of the appointment Vlad bent down and picked up a bottle of red wine that he had concealed when entering the room. He was again counselled about bringing alcohol into a Correctional facility. NIC 26/2/21 District Court. NTR to me in person 4/3/21 at 2pm. Appt. slip and court date info provided.”[99]
[99] Ibid 423.
On 10 March 2022, Correctional Services notes record:
“Vlad reported for supervision early after phoning stating that he was over at Elizabeth Shopping Centre and asking if he could 'pop over'. Vlad entered the room concealing an unopened bottle of red wine and an unopened can of spirits. He claimed that he had been ‘given them’. Vlad provided medical certificates covering the dates 15/2/22 - 17/2/22 and 21/2/22 to 25/2/22 noting that he was phone reporting at this time however was concerned that he was unable to attend ECCC with a copy of his varied Bail Agreement issued to him on 14/2/22. A COVID warning screen had been added on 21/2/22 after Vlad had advised that he was experiencing COVID symptoms. I advised Vlad that I now have a copy of his last Court transcript and a request for a COPRO. It was noted that had ECCC been aware of his varied Bail (24/11/21) that we would have been drug testing. I explained that he now has conditions for AOD testing as well as AOD counselling. Vlad disclosed that he had used meth yesterday and I questioned him on his level of use. He replied that he used a 'ball' last week. I asked what this equates to and he stated “35 points”. I advised Vlad that although I have been aware of his drug use that there were previously no conditions to test him or to refer him to drug rehab/counselling. Vlad became agitated at this point and reports that he would also have marijuana in his system. He claims that he will be able to abstain from meth whilst he is being tested. I will be supplying Vlad with contact details for counselling at his next appointment. He expressed that he is aware of a service in Davoren Park that would be 'close' to him. Vlad expressed extreme hopelessness about his current situation and admitted to having been resistant in seeking services in regards to homelessness. Vlad claims that he hasn't done so because he believes that he will be incarcerated. He also cited problems with lack of proof of identity documents and stated that he is not even registered with Housing SA because of this. It is noted that Vlad has previously reported that he owned his own home but it was repossessed by the bank. Before next supervision I will produce a list of referral services for Vlad and encourage him to make contact whilst he is in the office with me. Vlad was erratic today and clearly agitated. He stated that he is having ‘issues’ with his Daughter and spoke about a recent incident where there was SAPOL attendance. Vlad reported that he is currently staying with his Daughter and will need to lodge another Bail variation. He then became upset and stated that he may as well just hand himself in and do a term of imprisonment so that he can come back out and organise housing and his life. It is clear that it is going to be difficult to have Vlad engage based on his drug and alcohol use as well as his lack of stability/support in the community. He is well known in the local community ·among anti-social contacts. Vlad stated 'so what you are going to test me every fortnight' and was advised that testing is random however he can assume that he will now be regularly tested as requested in his COPRO/Bail. Understood. CM to continue to work with Vlad and to provide relevant information. NTR to me 24/3/22 at 10.30am (AOD testing booked).”[100]
[100] Exhibit 9, Respondent’s Tender Bundle, 410-1.
A Correctional services Report dated 6 May 2022 states:
“At the commencement of supervision, the defendant expressed contempt for his order and displayed an anti-authoritarian attitude. He was counselled on two occasions after directing sexually inappropriate comments towards the writer.
The defendant was able to quickly develop a rapport with the writer, followed direction and remained compliant with reporting. There are three recorded non-attendances with warning letters issued. It is noted that these non-attendances were recorded at the commencement of this order.
The defendant has a pattern of failing to attend for supervision at his scheduled appointment times but will phone ahead to seek permission to attend at an alternate time.
It is noted that there are 8 recorded instances where the defendant has reported for supervision in possession of open bottles of alcohol, despite numerous warnings.
There are 10 recorded instances where the defendant's presentation has been described as appearing to be 'intoxicated' with alcohol fumes detected.
The defendant has been resistant to engage with any form of counselling and has been provided with referral information for Homelessness support services on 7 noted occasions. To date the defendant has not made contact. The defendant has stated that a lack of identification documents has meant that he has been unable to engage with Housing SA. It is noted that the defendant recently obtained photo identification through his driver's licence. The defendant has also explained his reluctance to seek assistance is due to his belief that he will be incarcerated.
The defendant has managed to maintain compliance with reporting despite living a life of instability featuring homelessness, drug, and alcohol use. Supervision of the defendant has been problematic, often due to his chaotic presentation. The defendant will engage in conversation appropriately but will rarely engage in any targeted discussion around his criminogenic needs.
The defendant has an extensive history of drug use, dating back to when he was a teenager. The defendant has previously reported that he is a daily drinker and that he consumes marijuana and methamphetamine regularly. The defendant has not been receptive to offers of referral for any form of counselling or treatment.
Throughout his period of supervision, the defendant has experienced homelessness and ‘couch surfs’ between addresses after being evicted from his own home in May 2019. The defendant has reported that foreclosure occurred on his property after he failed to meet his mortgage payments.
The defendant lives a transient lifestyle and is often sighted at the Elizabeth Shopping Centre and in the company of other known offenders. This lack of stability has exposed the defendant to fall victim to assaults, theft of his possessions and is believed to have contributed to a range of health issues.
The defendant has disclosed that he was previously diagnosed with depression, anxiety, and Post Traumatic Stress Disorder (PTSD). The PTSD is believed to be a result of the time that he served in the Serbian army. He has recently been prescribed antidepressant medication.
The defendant returned to Australia from Serbia in 2003 following a relationship breakdown with the mother of his children. The defendant brought his four children with him and raised them as a single father.
It is sadly noted that the defendant's children were subject to [redacted information] from a young age reportedly due to the defendant's drug use and association with negative influences in the family home. There are documented cases of physical violence and other incidents in the home leading to the involvement of the Department for Child Protection.
The defendant's now adult children have all been involved [redacted information] and have [redacted information]. The defendant’s eldest Son was [D. Stamenkovic]. The defendant still maintains relationships with his daughters and has recently spoken about his. Daughter [M2] acting in the role of carer for him. The defendant has reported that he experiences extreme pain due to a motor vehicle accident in 2006 that left him with shoulder, neck, and back injuries. The defendant has been in receipt of a Disability Support Pension since this accident.
The defendant appears to have limited pro-social support in the community with broken relationships with his children and a group of friends and contacts that are negative influences.
It is noted that no fresh offending has occurred throughout the defendant's period of supervision however, it is believed that until the defendant is able to address his criminogenic needs that he remains at risk of reoffending.
The defendant is considered suitable for further community-based supervision based on his ability to maintain contact and compliance with reporting.
It is recommended that the defendant would benefit from intensive supervision.
For the supervision to be effective, it is recommended that in any future orders, the defendant be directed to abstain from all illicit substances and submit to drug and alcohol testing as directed. It is also recommended that the defendant be directed to attend for drug and alcohol counselling and treatment and to attend and participate in therapeutic programs, counselling, and treatment.”[101]
[101] Exhibit 9, Respondent’s Tender Bundle, 452-7.

There is nothing to suggest that the Applicant will take any of the steps recommended by Mr Fugler. Indeed, his whole life history is an eloquent testimony to the contrary.
The Applicant has been a long-term substance abuser and has offended when under the influence. I have no confidence that he can or will break the habits of a lifetime.
He has been assessed by correctional services as being a person who is a high risk of reoffending.
Having regard to the above I assess the probability of the Applicant reoffending if released back into our community, as high.
Conclusion: Primary Consideration 1
Primary consideration number one weighs extremely heavily against revocation of the Applicant’s visa cancellation.
Primary Consideration 2: Family Violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant has been in family violence as discussed above. His direct victims have included his sister, and his sons.
Conclusion: Primary Consideration 2
This consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: Ties to Australia
Paragraph 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.
The Applicant has 3 of his 4 children living here. Only L. and M2 Stamenkovic have purportedly provided letters of support. These are set out above. His children have been offenders themselves. They are hardly likely to be a good influence on him, and vice versa.
His relationship with them is complex as discussed above.
The Applicant has 2 granddaughters living here. His relationship with them is distant and complex as discussed.
He is adamant that he has no partner and never has had one, since his divorce.
Conclusion: Primary Consideration 3
This consideration weighs moderately in favour of revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are:
Child A, aged 10, is his granddaughter. Her situation is discussed above. The Applicant has never been a primary carer. He claims that her mother does not mind him having contact with Child A. If the Applicant were removed to Serbia, there would be little practical consequence for Child A. He could continue contact electronically. His claim of a deep connection to her is exaggerated and unreliable.
Child B, aged 5 or 6, granddaughter. The Applicant has never been a primary carer. This child is under Child Protection supervision. The Applicant has had very limited contact with her. His capacity to communicate electronically would be the same in Serbia as here. His claim of a deep connection to her is also exaggerated and unreliable.
Child C, age unknown, R.G’s newborn baby – of whom he claimed to possibly be the father. The child is believed to be in the care of Department for Child Protection.[147] It is now clear that the Applicant is not the child’s father and that he has no role to play there.
[147] Exhibit 9, Respondent Tender Bundle, 893.
The Applicant did not identify any specially relevant connection to the lives of any other children in Australia.
If the Applicant were to return to his former anti-social ways, a prospect which I regard as highly likely, he would be of little value to any of the children and indeed, he may directly or indirectly harm them, by presenting such a negative role model.
If he were to return to Serbia, he could still remain in contact with the children electronically. This would, from their perspective be essentially a continuation of the established arrangements over the past few years, to the extent that any actually existed.
Conclusion: Primary Consideration 4
Having regard to all of the above, primary consideration 4 weighs at best slightly in favour of revocation of the Applicant’s visa cancellation. In the highly likely event of the Applicant re-offending, this primary consideration would weigh against revocation.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[148]
[148] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a)the Applicant’s criminal record as set out in Annexure B
b)the other matters set out above, in particular the Applicant’s history of violence and contempt for the laws of Australia.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
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.
There is no evidence on this point.
This Other Consideration (d) is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under s 501 or s 501CA: neutral.
(b)extent of impediments if removed: weighs in favour of revocation.
(c)impact on victims: neutral.
(d)the impact on Australian business interests: neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs extremely heavily against revocation.
Primary consideration 2 weighs very heavily against revocation.
Primary consideration 3 weighs moderately in favour of revocation.
Primary consideration 4 weighs slightly in favour of revocation.
Primary consideration 5 weighs very heavily against revocation
Other considerations (a), (c) and (d) are neutral.
Other consideration (b) weighs in favour of revocation.
In weighing up all of these considerations, Primary Considerations 1, 2 and 5 collectively weigh overwhelmingly against revocation.
The collective weight of primary Considerations 3 and 4 and Other Consideration (b), are at best modestly in favour of revocation. Even this is only so, in the very unlikely event of the Applicant not continuing to offend. If, as appears very likely, he was to continue with the entrenched behaviours of a lifetime, the weight properly attaching to these considerations would be even further diminished. Primary Consideration 4 for example may, in these circumstances, even becomes a factor also weighing against revocation.

In my view, the proper application of the Direction overwhelmingly favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding two-hundred and forty-four (244) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

.....................[sgnd].........................
Associate

Dated:   5 April 2024

Date of hearing:
26, 27 March 2024

Advocate for the Applicant:
Self-Represented

Advocate for the Respondent:
Mr David Brown and Ms Maria Pappas
Australian Government Solicitor

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Respondent

Statement of Facts, Issues and Contentions

2

Respondent

G-Documents

3

Applicant

Statement of Mr L. Stamenkovic (Applicant’s second son) (undated)

4

Applicant

Bundle of Documents

1.    Medical Report from International Health and Medical Services (ihms)

2.    Drug & Alcohol Counselling Attendance Record

3.    Letter of Support from L. Stamenkovic (dated 06.02.2024)

4.    Letter of Support from M2 Stamenkovic (daughter) (dated 06.02.2024)

5

Applicant

Statement of Mr Vladica Stamenkovic (16.02.2024)

6

Applicant

1. Treatment letter from Psychologist L. Sassi (dated 06.03.2024)
2. Applicant’s handwritten letter (dated 29.02.2024)

7

Applicant

Attendance and Participation Form

8

Applicant

Statement of Fact

9

Respondent

Tender Bundle

10

Respondent

Supplementary Tender Bundle

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court	Court Date	Offence	Court Result
Magistrates Court of SA	07.10.2022	Hinder Police	Convicted Discharged without penalty
Magistrates Court of SA	07.10.2022	Drive motor vehicle with meth amphetamine in fluid or blood	Convicted Fined $900 Driver’s licence disqualification for 6 months cumulative
Magistrates Court of SA	07.10.2022	Drive motor vehicle with meth amphetamine in fluid or blood	Convicted Fined $900 Driver’s licence disqualification for 6 months
District Court of SA	22.08.2022	1. Commit an assault that causes harm - basic offence 2. Basic: dishonestly deal with property without consent	1. Sentenced 1 year 7 months Imprisonment 2. Sentenced 5 months 22 days imprisonment concurrently Head sentence: 1 year 4 months 12 days imprisonment Non parole period 9 months 12 days
Elizabeth Magistrates Court - SA	12.01.2021	Basic-commit assault	Convicted 7 weeks imprisonment Suspended sentence bond $100 12 months Compensation $100
Elizabeth Magistrates Court - SA	21.10.2020	Possess controlled drug (not cannabis)	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	06.03.2019	Hinder police	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	06.03.2019	Use or have possession of a prohibited weapon	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	20.09.2018	Possess controlled drug (not cannabis)	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	20.09.2016	Possess controlled drug (not cannabis)	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	05.11.2015	· Disturbing the peace · Assault police · Unlawful possession · Hinder a member of an emergency services organisation	Convicted 8 weeks imprisonment Suspended sentence bond $500 18 months
Elizabeth Magistrates Court - SA	15.04.2013	Fail to comply with bail agreement	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	14.01.2013	Hinder police	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	08.08.2011	Drive vehicle with drug type unknown in fluid or blood	Convicted Fined $700 Driver`s licence disqualification 6 months
Elizabeth Magistrates Court - SA	07.07.2009	Resist police	Without conviction Good behaviour bond $200 12 months
Elizabeth Magistrates Court - SA	12.06.2009	Disorderly behaviour	Without conviction Dismissed without penalty
Elizabeth Magistrates Court - SA	06.02.2009	Drive with excess blood alcohol	Convicted Fined $700 Driver`s licence disqualification 8 months 11 days
Elizabeth Magistrates Court - SA	06.02.2009	· Drive unregistered motor vehicle on a road · Fail to stop vehicle · Due care - basic offence	Convicted Discharged without penalty
Elizabeth Magistrates Court - SA	30.06.2008	Drive unregistered motor vehicle on a road	Without conviction Dismissed without penalty
Elizabeth Magistrates Court - SA	06.06.2005	Drive under the influence	Convicted Fined $300 Driver`s licence disqualification 12 months from 1/7/05
Adelaide Magistrates Court - SA	28.07.1987	Possessing a controlled substance	Convicted Fined $150
Port Adelaide Magistrates Court - SA	18.10.1985	Drive with excess blood alcohol	Convicted Fined $350 Driver’s licence disqualification 8 months
Port Adelaide Magistrates Court - SA	18.10.1985	Straddle lanes	Convicted Discharged without penalty
Port Adelaide Magistrates Court - SA	05.08.1985	Receiving	Convicted: 8 months imprisonment Suspended sentence bond $50 2 years
Adelaide Magistrates Court - SA	12.07.1985	Offensive language	Convicted Fined $150
Adelaide Magistrates Court - SA	18.03.1985	Possessing Indian Hemp	Convicted Fined $250
Adelaide Children Court – SA	03.04.1984	Possess implements	Convicted Fined $30
Adelaide Children Court – SA	03.04.1984	Hinder or resist police	Convicted Bond $100 to be of good behaviour for 6 months
Adelaide Children Court – SA	03.04.1984	Use offensive language in public place	Convicted Discharged without penalty
Adelaide Children Court – SA	03.04.1984	Fail to truly answer	Convicted Fined $40
Adelaide Children Court – SA	13.10.1983	Lie or loiter in public place	Without conviction Fined $27.50
Adelaide Children Court – SA	12.04.1983	Receiving	Without conviction Dismissed without penalty
Adelaide Children Court – SA	12.04.1983	Common Assault	Convicted Fined $200
Adelaide Children Court – SA	23.06.1982	Pedestrian disobey traffic lights	Convicted Fined $5
Adelaide Children Court – SA	23.06.1982	Drive unlicenced	Convicted Fined $10
Adelaide Children Court – SA	23.03.1982	Smoke or permit self-administration of a drug	Without conviction Fined $40
Adelaide Children Court – SA	23.03.1982	Possessing Indian Hemp	Without conviction Dismissed without penalty
Adelaide Children Court – SA	19.01.1982	Building breaking and felony (3)	Without conviction Dismissed without penalty
Adelaide Children Court – SA	09.10.1981	Larceny from the person	Without conviction Bond $200 to be of good behaviour for 12 months
Adelaide Children Court – SA	09.10.1981	Fail to cease loitering or leave place	Without conviction Dismissed without penalty
Adelaide Children Court – SA	09.10.1981	Larceny from the person	Without conviction Bond $150 to be of good behaviour for 12 months

[2024] AATA 607

5 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date of hearing:	26, 27 March 2024
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Mr David Brown and Ms Maria Pappas Australian Government Solicitor

Exhibit no.	Lodged by	Document
1	Respondent	Statement of Facts, Issues and Contentions
2	Respondent	G-Documents
3	Applicant	Statement of Mr L. Stamenkovic (Applicant’s second son) (undated)
4	Applicant	Bundle of Documents 1. Medical Report from International Health and Medical Services (ihms) 2. Drug & Alcohol Counselling Attendance Record 3. Letter of Support from L. Stamenkovic (dated 06.02.2024) 4. Letter of Support from M2 Stamenkovic (daughter) (dated 06.02.2024)
5	Applicant	Statement of Mr Vladica Stamenkovic (16.02.2024)
6	Applicant	1. Treatment letter from Psychologist L. Sassi (dated 06.03.2024) 2. Applicant’s handwritten letter (dated 29.02.2024)
7	Applicant	Attendance and Participation Form
8	Applicant	Statement of Fact
9	Respondent	Tender Bundle
10	Respondent	Supplementary Tender Bundle