Stevanovic and Minister for Immigration and Citizenship
[2007] AATA 1427
•14 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1427
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0982
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN STEVANOVIC Applicant
And
MINISTER FOR IMMIGRATION
AND CITIZENSHIP
Respondent
DECISION
Tribunal Egon Fice Date14 June 2007
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and decides that the applicant’s visa should not be cancelled. (sgd) Egon Fice
Member
MIGRATION – cancellation of Transitional (Permanent) Visa and Absorbed Person Visa - removal from Australia – character test – substantial criminal record –‑ seriousness and nature of conduct – risk of recidivism – deterrence – expectation of Australian community – long term resident
Migration Act 1958 ss200, 201, 499, 501
Ministerial Direction N° 21, 23 August 2001
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
REASONS FOR DECISION
14 June 2007 Egon Fice, Member 1. Mr John Ivan Stevanovic, a Serbian citizen, is lawfully in Australia having been granted a Transitional (Permanent) Visa (the visa) in 1968 and he has held an Absorbed Person Visa since 1 September 2004. Mr Stevanovic was notified by the Department of Immigration and Citizenship (the Department) in a letter dated 26 March 2007 that a decision was made on 20 April 2005 to cancel his visa under s 501(2) of the Migration Act 1958 (the Act). A delegate of the Minister for Immigration and Citizenship (the Minister) cancelled Mr Stevanovic’s visa on the ground that he failed to pass the character test set out in s 501(6)(a) of the Act because he had a substantial criminal record, as that term is defined in s 501(7) of the Act. Mr Stevanovic was detained by officers from the Department and he is currently in detention at the Maribyrnong Immigration Detention Centre.
2. There was no dispute about the fact that Mr Stevanovic did not pass the character test. Therefore, the only issue before me is whether, having regard to all of the relevant considerations in Ministerial Direction No 21, 23 August 2001 (the Ministerial Direction), the preferable decision is to cancel Mr Stevanovic’s visa.
RELEVANT FACTS
3. Mr Stevanovic was born in France on 8 January 1966. His parents were from Serbia, in the former Republic of Yugoslavia. Mr Stevanovic migrated to Australia with his family in 1968 aged two and a half years. He has not left Australia since his arrival.
4. In about 1990, Mr Stevanovic entered into a de-facto relationship with his then partner and they began a family together, having two daughters. The eldest is now aged 15 and the youngest 13 years. That relationship ended in 1995. Mr Stevanovic has not lived with his children since that time although he has maintained contact with them.
5. Mr Stevanovic then entered into a second relationship with the mother of the child against whom he later committed the criminal acts which precipitated the cancellation of his visa.
6. Between 1999 and May 2001 Mr Stevanovic committed four acts of incest and four acts of indecency with his then de-facto partner’s daughter. She was aged between 12 and 14 years at the time the offences were committed. The victim was mildly intellectually disabled.
7. After Mr Stevanovic left the relationship in 2001, he became aware that the victim’s mother had been telephoning friends and making allegations against him. He was then living in his sister’s house. His sister was widowed. A short time after he moved into his sister’s house, he explained to his sister that the allegations made against him, of which she had become aware, were true, and he volunteered to go to the police to make a confession. His sister accompanied him to the police station.
8. Mr Stevanovic pleaded guilty to all charges and on 18 December 2001 he was sentenced to a period of three years imprisonment, with a non-parole period of 20 months.
9. Mr Stevanovic was paroled on 9 December 2002 and left prison on 29 January 2003. It was a condition of Mr Stevanovic’s parole that he complete the sex offender program which he began in Carlton in February 2003. He ceased attending the sex offender program in March 2003 due to depression. After obtaining psychological assistance, he recommenced the program in August 2003 and he completed it in March 2004.
10. Upon his release from prison in 2003, Mr Stevanovic obtained accommodation with a friend. That was where he met his current wife, who then lived in the other half of the unit occupied by his friend.
11. In October 2004, Mr Stevanovic received a notice of intention to consider cancellation of his visa from the Department. Mr Stevanovic claimed to have hand-delivered a response to the Department. However, the Department has no record of receiving any such document.
12. By April 2006, Mr Stevanovic, not having heard anything further from the Department, proceeded to marry his current wife on 22 April 2006. His wife has a son aged 13 years from a prior relationship.
13. It is necessary to say something briefly about Mr Stevanovic’s life prior to his committing the offences for which he was imprisoned. His father, who was alcoholic, subjected Mr Stevanovic to a harsh and abusive life. Mr Stevanovic and his two sisters were sexually abused by his father. His father was eventually charged with and convicted of rape. He committed suicide while in prison. Mr Stevanovic’s mother was an alcoholic and suffered from epilepsy. She died at the age of 52 in 1994. Mr Stevanovic’s elder sister was killed in a car accident which happened in the immediate vicinity of the family home in 1983. Mr Stevanovic’s younger sister has suffered serious mental health problems as a result of alcohol abuse.
14. Mr Stevanovic does not hold a passport. He has now lived in Australia for 39 years. He has only the barest conversational Serbian and he cannot read or write in that language. He has no family in Serbia and has never been to that country. In fact, as he has never left Australia since arriving here aged of two and a half years, this country is the only one he has ever known.
THE LEGISLATIVE SCHEME
15. On 1 October 2004 Mr Stevanovic received a notice from the Department of Immigration and Multicultural and Indigenous Affairs (as it then was) dated 30 September 2004 stating that consideration was being given to cancelling his visa under s 501(2) of the Act because he might not pass the character test set out in s 501(6). Section 501(2) of the Act provides:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
16. Section 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record. That term is defined in s 501(7) of the Act which provides that, for the purposes of the character test, if, amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more, the person is regarded as having a substantial criminal record.
17. The letter dated 30 September 2004 stated that cancellation of Mr Stevanovic’s visa would result in his permanent removal from Australia. It also said that before the Minister or her delegate would consider whether his visa would be cancelled under s 501(2), he was to have the opportunity to comment in writing. According to the Department, Mr Stevanovic did not respond to that notice, although Mr Stevanovic’s evidence was to the contrary.
18. A delegate of the Minister made a decision on 20 April 2005 to exercise the discretion provided for under s 501(2) of the Act. However, Mr Stevanovic was not notified of that decision until almost two years later. The reason for the delay is that the Minister was awaiting the outcome of the High Court of Australia appeal from the Full Court of the Federal Court of Australia decision in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420. The majority justices in that case (Moore and Gyles JJ) found that the Minister had committed a jurisdictional error by deciding to cancel Mr Nystrom’s Transitional (Permanent) Visa without having identified and considered the fact that Mr Nystrom also held an Absorbed Person Visa which could be cancelled by the operation of s 501F(3). The majority also queried, obiter, whether visa cancellation pursuant to s 501(2) of the Act could be used to circumvent the limitations in s 201, which provides a specific power to deport non-citizens who have committed crimes.
19. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370, the High Court held that the cancellation of Mr Nystrom’s Transitional (Permanent) Visa resulted in his Absorbed Person Visa also being cancelled by the operation of s 501F(3). The High Court also held that the Minister’s discretion to cancel Mr Nystrom’s visa due to his criminal record was not restricted by the scope of the deportation power contained in ss 200 and 201 of the Act.
20. Although the Department took steps to remove the cancellation decision from Mr Stevanovic’s record due to the Federal Court’s decision in Nystrom, and a fresh notice of intention to consider cancellation of Mr Stevanovic’s Absorbed Person Visa was issued on 18 July 2006, following the High Court decision in Nystrom, this was considered to be unnecessary. Accordingly, a delegate of the Minister notified Mr Stevanovic of the decision to cancel his visa in a letter dated 5 March 2007. This notification was based on the original notice of intention to consider cancelling his Transitional Visa dated 30 September 2004. The Minister does not rely on the notice of intention to cancel Mr Stevanovic’s Absorbed Person Visa dated 18 July 2006.
21. Mr Stevanovic did not dispute that the delegate’s power to cancel his visa was enlivened because he failed to pass the character test. Mr Stevanovic also accepted that he has a substantial criminal record as that term is defined in s 501(7) of the Act. However, Mr Stevanovic contended that the delegate ought not to have exercised his discretion to cancel his visa in his particular circumstances.
THE MINISTERIAL DIRECTION
22. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Further, a person or body must comply with the directions made by the Minister under s 499(1). The relevant directions made by the Minister on 23 August 2001 are set out in the Ministerial Direction which makes it clear that it must be followed by the Tribunal.Broadly, the Ministerial Direction states that when exercising the discretion under s 501 of the Act, the decision maker must take into account a wide range of factors including the expectations of the Australian community; the nature of the crimes committed; the non-citizen’s links to Australia; and any relevant international law obligations. The Ministerial Direction states that the purpose of refusing or cancelling a visa under s 501 of the Act is to protect the safety and welfare of the Australian community and to exercise a choice, on behalf of the Australian community as a whole, as to who should be allowed to enter or remain in the community.
23. Although the Ministerial Direction sets out three primary considerations, which are regarded as most important, there are other considerations which should also be taken into account, but given less weight, in balancing all of the relevant considerations. The primary considerations when making a decision to cancel a visa are:
(a)the protection of the Australian community and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between the child or children and the person under consideration, the best interests of the child or children.
PROTECTION OF THE AUSTRALIAN COMMUNITY AND MEMBERS OF THE COMMUNITY
24. Consideration of the first primary factor requires me to assess the level of risk to the community if Mr Stevanovic were to remain in Australia. The relevant matters which I must consider are:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
Seriousness and nature of the conduct
25. The Ministerial Direction under paragraph 2.6 provides examples of offences which the Government considers to be very serious. Amongst those examples are crimes against children, and in particular sexual assaults and crimes taking advantage of children. In this case, the victim in question was aged between 12 and 14 years when the crimes were committed against her. Furthermore, the sentencing judge, Judge Curtain, described the victim as mildly intellectually disabled. That fact clearly adds to the seriousness of the crimes committed by Mr Stevanovic.
26. It is appropriate to take into account the victim’s relationship to the applicant. In particular, the relationship between stepfather and stepdaughter is one of trust. It involved a child that was particularly vulnerable due to her age, her intellectual disability and her relationship with Mr Stevanovic. As Judge Curtain said in her sentencing remarks:
That these crimes are serious there is no doubt. Your conduct involves a serious breach of a significant trust, not only that of your stepdaughter, but also that of her mother. Further, your stepdaughter was intellectually disabled, possibly to mild degree, but none the less her disability tends to compound your misconduct.
27. In his evidence, Mr Stevanovic said that the victim’s mother was involved on the first occasion that an indecent act and incest with the victim took place. That allegation was raised at the sentencing hearing and it is recorded in the transcript. However, the Crown did not accept that allegation, and it pointed out that there was no material in the depositions to assist her Honour in that regard. It was suggested that the informant be contacted in order to provide further information about that allegation. However, her Honour makes no mention of it in her sentencing report. It is clear that Judge Curtain did not take that allegation into account when sentencing Mr Stevanovic.
28. In accordance with what the Full Court of the Federal Court said in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, I am limited to the essential facts as found by the sentencing Judge in the course of her deliberations concerning the sentence. As the Full Court said, at page 244:
…
But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. …
and further, at page 245:
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent.
29. Mr James Forsaith, a solicitor with the Australian Government Solicitor, who appeared on behalf of the Minister, also submitted that the enduring nature of the offences should be taken into account. The offences were committed over a period of about two years according to the transcript of the sentence hearing.
30. Paragraph 2.7 of the Ministerial Direction states that it is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Therefore, I am required to take into account the extent of a person’s criminal record, including the number and nature of offences, the time between offences and the time that has elapsed since most recent offence and the repugnance of the crime.
31. There is no question that Mr Stevanovic’s crime is repugnant given the nature of the offences, the age of the victim and his relationship with her. However, Mr Stevanovic had not previously been convicted of any criminal act and, since 2001, he has not been convicted of any further criminal acts of any kind.
32. The incest offences of which Mr Stevanovic was convicted carried a maximum penalty of 25 years. The indecent act offences carried a maximum penalty of 10 years and the incest and indecent act offences were not alternative offences. Despite that, Judge Curtain sentenced Mr Stevanovic to three years imprisonment with a non-parole period of 20 months. In her sentencing report, her Honour said, at page 5:
…
I also declare that in sentencing you, I have had regard to the protection of the community from you as the principle (sic) purpose for which this sentence is to be imposed and I have determined that it is not necessary in order to achieve that purpose, to impose a sentence which is longer than that which is proportionate to the gravity of the offence, considered in light of its objective circumstances.
33. Her Honour took into account the fact that when Mr Stevanovic’s conduct came to light, he admitted his conduct to his sister and then voluntarily reported it to the police. In the course of the police interview, he made admissions regarding the matters to which he subsequently pleaded guilty. Judge Curtain also said that it was apparent from the matters raised in the police interview that Mr Stevanovic was filled with disgust at his conduct and that he was contrite and remorseful. She also noted that he conceded to the police that he should have known better and that he wanted no mercy. Her Honour referred to the very harsh and abusive life suffered by Mr Stevanovic up to his adolescent years at the hands of his father. She also referred to Mr Stevanovic’s mother’s problems and the fact that his sister was killed in a car accident in 1983. Judge Curtain mentioned the fact that Mr Stevanovic had worked productively for more than 15 years and that he had two daughters from his previous defacto relationship. She said that the mother of his girls from that relationship continued to support him.
34. Therefore, although there can be no question about the fact that the offences committed by Mr Stevanovic must be regarded as very serious, Mr Stevanovic’s conduct following the commission of those offences, and the fact that he did not seek bail, led to Judge Curtain considering that one may be confident that your rehabilitation is well under way. She also noted that he had insight into his offending and that he was genuinely remorseful and contrite. Accordingly, her Honour imposed what may be regarded as a relatively light sentence for Mr Stevanovic’s offences.
Likelihood that conduct may be repeated (including risk of recidivism)
35. The Ministerial Direction states that it is the Government’s view that a person’s previous general conduct and total criminal history are highly relevant when assessing the likelihood of an offence and risk of recidivism. One of the important factors to be considered in this regard is whether the non-citizen commits a further offence after having been warned previously about the risk of cancellation of his or her visa. In this case, Mr Stevanovic had no prior criminal convictions and he has not committed any further offences since 2001.
36. Judge Curtain, in sentencing Mr Stevanovic, relied on the reports of Dr Lester Walton, a psychiatrist, and Mr Ian Joblin, a psychologist. She noted that neither Dr Walton nor Mr Joblin would readily describe Mr Stevanovic as a paedophile in the sense that his primary sexual interest was not children. Dr Walton also expressed the view that as Mr Stevanovic was not tempted toward incestuous behaviour with his own daughters, his prognosis was more favourable than is often the situation. Judge Curtain also noted that Mr Stevanovic had already taken steps towards his rehabilitation and she was satisfied that those steps were genuine as was his contrition and remorse.
37. Despite what was said by Judge Curtain in her sentencing report, Mr Forsaith raised issues about Mr Stevanovic’s credit and he pointed out that Mr Stevanovic’s evidence given to the Tribunal was at odds with a number of statements he is alleged to have made when interviewed by police; when providing a history to various psychologists in the course of completing the sex offender program; and the history he gave to Mr Patrick Newton, a clinical forensic psychologist who provided a report dated 8 May 2007 for the purposes of the Tribunal hearing. Mr Guy Gilbert of counsel, who appeared for Mr Stevanovic, said that the Tribunal could not take into account the inconsistent statements previously made by Mr Stevanovic as it would offend the principle that the Tribunal cannot go behind the sentencing remarks as was stated in SRT. Mr Gilbert also submitted that because the psychologists, except for Mr Newton, who took histories from Mr Stevanovic in the course of the sex offender programs, were not called to give evidence before the Tribunal, their written statements, regarding the histories alleged to have been given to them by Mr Stevanovic, should not be admitted in evidence or were of no evidentiary value.
38. While I accept that the Tribunal cannot go behind the sentencing remarks made by Judge Curtain, there is nothing in the transcript of the sentencing hearing which deals with Mr Stevanovic’s claims about Bosnia or his prior psychological problems. The Tribunal is not bound by the rules of evidence. The only question which may arise is the weight to be given to untested material which is put before the Tribunal.
39. In a report prepared on 4 October 2002, which was drafted for the purpose of assisting in the determination of Mr Stevanovic’s treatment and suitability for a sex offender program, the history given to the psychologist indicates that Mr Stevanovic implied that there had been a single incident which gave rise to his offending. He also reported going to Bosnia for a holiday in 1992 for three months when the war broke out and that he had been there for two and a half years. He reported he was captured, put in a camp for approximately three days where he was hit in the face with a rifle and sustained facial bone breakage. Mr Stevanovic’s alleged experience in Bosnia was also repeated in the course of group sessions in prison on 22 September 2003. However, when asked about that in cross-examination, Mr Stevanovic said that the persons that made the notes of that incident must have got it wrong. He denied ever having told anyone that he had gone to Bosnia.
40. There were a number of statements made to the police, recorded in the transcript of interview, which were clearly attempts to apportion some blame to the victim and to her mother; although Mr Stevanovic denied the accuracy of the transcript. Also, when first interviewed by police, he attempted to portray that there had only been one event. It was only after being confronted with the evidence of the victim that he finally agreed that the offences occurred on four separate occasions. When interviewed by Mr Newton, he was asked whether he had experienced any form of psychiatric or psychological problem at any time prior to offending. Mr Stevanovic said no. This is contrary to the sentencing report by Judge Curtain who said that Mr Stevanovic appeared to have suffered a nervous breakdown towards the end of his relationship with the mother of his two children.
41. Mr Newton, in his report, noted that the historical background that Mr Stevanovic gave to him differed significantly from that recorded by Judge Curtain. He said he was not able to seek Mr Stevanovic’s explanation for the discrepancies. Mr Forsaith explored the consequences of Mr Stevanovic’s apparently contradictory statements during the cross-examination of Mr Newton. While Mr Newton agreed that it was cause for some concern, he said that there were several possible reasons why Mr Stevanovic had made apparently contradictory statements. One might be that he was saying things which were in his interest. It might also depend on the rapport that he had with the interviewer which may have caused him to adopt a naïve and foolish attempt at self-protection.
42. At the hearing, Mr Stevanovic became distressed when asked to recall the detail of the offences. He said he was trying not to remember details and did not want to revisit the past. Mr Forsaith submitted that on that basis, I should give a little weight to Mr Stevanovic’s evidence. While I am concerned about the numerous inconsistencies between Mr Stevanovic’s evidence and the various documents that were before me, I am nevertheless satisfied with Mr Newton’s evaluation of the risk of recidivism. Mr Newton administered a test known as STATIC-99 which enabled him to evaluate the stable risk factors. Stable risk factors are based in either the personality of the offender or their developmental history, or are reflected in the characteristics of the offending itself. Stable risk factors tend not to change over time. Mr Newton said that the accuracy of this test has been confirmed in multiple studies across diverse sexual offending populations in a range of countries and situations. On this test, Mr Stevanovic’s scores placed him in the low risk category for recidivism. Mr Newton noted that this assessment accords with the results obtained on three previous risk assessments conducted by various psychologists.
43. Mr Newton also said that in evaluating the risk of sexual recidivism, regard must be had to dynamic risk factors. These represent factors germane to the individual’s context, psychological functioning or environment which increase the risk for sexual offending. When Mr Newton took into account dynamic risk factors, for example Mr Stevanovic’s poor self-esteem and the interpersonal difficulties he has experienced, he said that this may raise the risk factor. On the other hand, Mr Newton said because Mr Stevanovic has been at liberty in the community for over four years without committing further sexual offences that would suggest his risk of re-offending would be significantly reduced. In fact, Mr Newton assessed Mr Stevanovic’s risk of recidivism to be approximately 4 per cent within five years and 4.6 per cent within ten years. He also pointed out that if Mr Stevanovic completed ten years without re‑offending, the risk level would be halved. Mr Newton was of the opinion that given Mr Stevanovic’s participation and completion of the sex offenders program, he poses a low risk of recidivism. However, when Mr Newton was confronted with the inconsistencies in Mr Stevanovic’s history of which he was not previously aware, he accepted that the risk of recidivism might be slightly higher than he had first assessed. He said that on interview, he assessed Mr Stevanovic to be in the middle of the low range, but the new evidence with which he was now confronted might push that to the upper end of the low range. He also suggested that the risk of recidivism might have moved to the low end of the moderate range but that it needed further assessment.
44. Accepting that Mr Stevanovic could not be described as a paedophile in the sense that his primary sexual interest was not children, Judge Curtain said that Mr Stevanovic’s prognosis was rather more favourable than is often the situation. While Mr Stevanovic may have initially had some difficulty with victim empathy, and it is quite clear that his rehabilitation is not complete, I am satisfied with Mr Newton’s analysis.
General deterrence
45. The Ministerial Direction states that general deterrence aims to deter other people from committing the same or a similar offence.
46. Given that the risk of a person committing the type of sexual offences which Mr Stevanovic committed depends on a person’s psychological functioning or an environment which increases the risk for sexual offending, and the fact that stable risk factors tend not to change over time being based either on the personality of the offender or their developmental history, it is not immediately apparent that cancelling the visa of such an offender will act as a deterrence. The only way the degree of risk can be modified is by the presence of protective factors in the individual’s make-up. The protective factors in this case, according to Mr Newton, include Mr Stevanovic’s expressions of remorse, victim empathy and his participation in extensive and comprehensive specialist treatment. This is all clearly explained in Mr Newton’s report. It seems to me, from that report, while the threat of visa cancellation may have some effect on the dynamic risk posed in a particular individual’s case, there was no evidence that it is likely to act as a deterrent.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
47. The Ministerial Direction requires the decision maker to have due regard to the Government’s view regarding the expectations of the Australian community. The Ministerial Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. I doubt that there could be much serious argument about that direction. The Ministerial Direction also states that visa refusal or cancellation and removal of the non-citizen from Australia may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or that he should be removed from Australia.
48. Mr Forsaith submitted that it is for the Tribunal to consider whether middle of the road reasonable members of the Australian community who do not hold extreme views, with knowledge of the facts before the Tribunal, would expect an applicant to be allowed to remain in the community. This is of course a quote from the decision of Deputy President Block in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
49. While the expectations stated in the Ministerial Direction appear to be quite reasonable when applied to persons who have come to Australia for a short visit, or have only been in Australia for a short period of time, there are a number of additional matters which must to be taken into account where the non‑citizen is a permanent resident and has lived in Australia for most of their life. In this case, Mr Stevanovic has now lived in Australia for 39 years. He was aged two and a half years when his family immigrated and his schooling and formative years were in Australia. Although he is a Serbian citizen, he was born in France. If he were removed from Australia, my understanding is that he would be returned to Serbia, a country to which he has never been, let alone resided in. His only remaining relatives are in Australia and he has family and other connections in this country. These factors, if known by the so called middle of the road reasonable members of the Australian community who do not hold extreme views, would almost certainly result in different expectations when compared with non-citizens who have only been in Australia for a very short period of time and who continue to have a family or other connections in another country. This is despite the fact that the criminal offences committed by Mr Stevanovic are very serious and the evidence does disclose a lack of frankness in relation to his offences.
50. Concern about the removal of long term residents in Australia under s 501 of the Act has been referred to by a number of Judges of the Federal Court of Australia. By way of example, in Nystrom v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 143 FCR 420, Moore and Gyles JJ said;
This is yet another disturbing application s 501 of the Migration Act 1958 (Cth). …
And further, at page 422,
The appellant has been entirely brought up in Australia. It was only happenchance that he was not born here. He is only an alien by the barest of threads. However, if the decision under challenge here stands he will be deported to Sweden and permanently banished from Australia. That result causes us a similar sense of disquiet to that expressed by Spender J. in Shaw v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 142 FCR 402, particularly at [2]–[5] and Sackville and Allsop JJ in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152 [1] and [64]–[79] respectively. It suggests that administration at this aspect of the Act may have lost its way.
Emmett J, the dissenting judge in that case, said at page 433:
…While I do not agree with that conclusion, I share the disquiet expressed by their Honours concerning the circumstances in which a man who has spent all of his life in Australia and who has no knowledge of the Swedish language would be removed to Sweden and banished from Australia because of what must be characterised as an accident of history and an oversight on the part of his parents…
51. I should also refer to the Commonwealth Ombudsman’s report of February 2006, where he said:
4.7The quality of DIMA’S administration of s 501 cases could be significantly enhanced if the recommendations outlined above are accepted and implemented.
4.8Even if this were to occur, there is a remaining issue to do with fairness and reasonableness of the extensive application s 501 to long-term permanent residents. This concern is the more acute in cases where s 501 has been used in circumstances where s 201 could not be used. It is ultimately for the Minister to decide when s 501 is to be used, but it is nevertheless appropriate in this report to question whether s 501 should be applied to a person who meets the following criteria:
· arrived in Australia as minor and spent his or her formative years in Australia
· has effectively been absorbed into the Australian community, using criteria similar to those considered in relations to s 34
· has strong ties – particularly strong family ties – to the Australian community
· has no ties with the likely receiving country and return there would impose hardship in terms of language, culture, education and employment
· has family members in Australia who would face hardship as a result of the visa holder’s separation from them
· could not be removed under s 200 criminal deportation provisions
· would not constitute a significant risk to the Australian community if released from detention.
52. It is reasonably apparent from the evidence that all of the above criteria, recognised by the Commonwealth Ombudsman, apply to Mr Stevanovic. Therefore, it is my opinion that the Australian community would not expect Mr Stevanovic to be removed from Australia.
BEST INTERESTS OF THE CHILD
53. There are three relevant children, all of whom are under the age of 18 years. Mr Stevanovic has two daughters from his first relationship and he now has a stepson as a result of his marriage on 22 April 2006.
54. Mr Stevanovic’s two daughters do not live with their mother. One of the daughters lives with the man who became her partner immediately after Mr Stevanovic, and the second daughter lives with her maternal grandmother. Although Mr Stevanovic does not see his daughters all that frequently, as one lives a significant distance out of Melbourne, he does see them from time to time. His evidence was that he also has frequent telephone and text message contact with them. Neither of those daughters is financially dependent upon him.
55. Mr Stevanovic’s stepson, who gave evidence at the hearing, regards Mr Stevanovic as his father. It was clear from his evidence that he has respect for his father and, after his natural father separated from his mother and moved to Queensland, he is now very pleased to have the presence of a father figure in his life. In my view, a separation again at this stage of his life would be devastating for the stepson.
56. Also in evidence was a letter from Mr Stevanovic’s eldest daughter, pleading that he be allowed to remain in Australia.
57. It is out of the question that any of the children would move to Serbia with him. Given the cultural and language barriers faced by the children in a country where their father does not read or write the language and knows nobody, Serbia is hardly a suitable environment for them.
58. Quite clearly, this factor points strongly to Mr Stevanovic remaining in Australia.
OTHER CONSIDERATIONS
59. A very significant consideration is the fact that Mr Stevanovic is now married to an Australian citizen. In assessing the compassionate claims of the Australian partner, I am required to consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
60. Mr Stevanovic’s wife said that she first met Mr Stevanovic at the beginning of 2004 when he became her neighbour, moving into the other half of the semi‑detached unit where she lived with her son. Their friendship developed and they were married in 2006.
61. Both Mr and Mrs Stevanovic gave evidence about a telephone conversation with an officer from the Department prior to their deciding to marry. They both said in evidence that in the course of their discussions with the officer, while they were aware that Mr Stevanovic had been given a notice of intention to cancel his visa, no steps had been taken since receipt of that notice in 2004. Their evidence was that they told the officer they intended to marry and were told simply to get on with their lives and not to be concerned about it. However, the Department put into evidence a file note dated 13 February 2006 by the officer concerned. The file note is said to record two conversations, one on 9 February 2006 with Mr Stevanovic and the second on 13 February 2006. There is no mention in the file note of discussions with Mrs Stevanovic; nor is there any mention of Mr Stevanovic’s plan to marry. However, the officer was not called for cross-examination.
62. In those circumstances, and given the fact that Mrs Stevanovic was not present in the hearing room when Mr Stevanovic gave his evidence, I accept their evidence regarding statements made about their intention to marry. Therefore, while I accept that Mrs Stevanovic was aware of Mr Stevanovic’s criminal background prior to their marriage, I also accept that her concerns regarding the notice to cancel Mr Stevanovic’s visa had been alleviated by an officer of the Department.
63. In my view it is also an important consideration that significant hardship would be caused to Mr Stevanovic’s immediate family members who are lawfully resident in Australia. I am particularly concerned about Mr Stevanovic’s stepson and his two daughters. If Mr Stevanovic is able to reconstruct his life and become a useful member of the community, quite clearly that will be of significant advantage to his children and to his wife. On the other hand if Mr Stevanovic were removed from Australia, it is highly likely that he would lose contact with his children altogether. In addition, Mr Stevanovic would be in a country where he has never been before, where he neither reads nor writes in the Serbian language, and where he has no relatives or friends to give him support.
64. Also of some significance is the fact that Mr Stevanovic has never been formerly advised by an officer of the Department that his visa might be cancelled. He was convicted of one series of offences and was never given a warning following that conviction but rather the Department moved directly to cancel his visa. In other words, Mr Stevanovic has not been given the opportunity for a second chance.
DECISION
65. Although the offences of which Mr Stevanovic was convicted are of a serious nature and would be regarded as abhorrent by fair-minded members of the Australian community, the risk of Mr Stevanovic repeating this conduct is relatively low. He voluntarily surrendered to the police after committing the offences and he made admissions to the police in the course of his interview. He also pleaded guilty to all counts and he was contrite and remorseful. He expressed to the police that he did not want any mercy and that he should be appropriately punished.
66. A psychiatrist and a psychologist who prepared reports for the sentencing Judge said that Mr Stevanovic could not be described as a paedophile. They were also of the view that his prognosis was more favourable than is often the situation. I have no doubt that the prognosis is now reinforced as Mr Stevanovic has married and quite clearly has taken responsibility for his stepson.
67. I do not hold the view that visa cancellation would significantly act as a deterrent to the commission of like offences by other persons. There are complex psychological factors involved, both static and dynamic, which predispose people to criminal sexual conduct.
68. Mr Stevanovic’s long period of residence in Australia and the fact that he has never been to Serbia, where it is likely he would be sent if he were removed from Australia, leads me to the view that it is unlikely that the Australian community would expect Mr Stevanovic to be removed.
69. The final primary consideration is that of the three children. It is clear to me that their best interests would be served if Mr Stevanovic remains in Australia.
70. As I have set out above, there are other considerations which, while having less weight, nevertheless support the view that Mr Stevanovic’s visa ought not be cancelled.
71. Therefore, it is my view that neither the primary nor other considerations compel the view that Mr Stevanovic’s visa should be cancelled. Therefore, the delegate’s decision to cancel Mr Stevanovic’s visa under s 501(2) of the Act should be set aside.
I certify that the seventy-one [71] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr Egon Fice
Signed: Ursula Noyé
Clerk
Dates of Hearing 18 & 22 May 2007
Date of Decision 14 June 2007
Counsel for the Applicant Mr G Gilbert
Solicitor for the Applicant Clothier Anderson & Associates
Solicitor for the Respondent Mr J Forsaith, Australian Government Solicitor
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