Sinanovic and Minister for Immigration and Citizenship [2010] AATA 32 (18 January 2010)

Last Updated: 19 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 32

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5169

GENERAL ADMINISTRATIVE DIVISION		)
	Re		HASAN SINANOVIC

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 18 January 2010

Place Perth

Decision

The Tribunal affirms the decision under review.

...........[sgd S D Hotop]......

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Emergency Rescue visa – applicant born in former Yugoslavia and first arrived in Australia in January 1996 when aged 35 years – applicant has remained in Australia since arrival – applicant first committed offences in Australia in June 2000 – applicant convicted of those offences involving aggravated sexual penetration and attempted sexual penetration without consent – applicant sentenced to effective term of imprisonment for 10 years in May 2002 – applicant’s visa cancelled – applicant does not pass character test – discretion to cancel applicant’s visa – Direction [41] – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – protection of Australian community outweighs other considerations favouring non-cancellation of visa – applicant’s visa should be cancelled – decision under review affirmed

Migration Act 1958 (Cth), s 501

Direction [no 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

18 January 2010

Deputy President S D Hotop

INTRODUCTION

1. Hasan Sinanovic (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 8 October 2009, cancelling his Class BA Subclass 203 (Emergency Rescue) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

THE FACTUAL BACKGROUND

2. The applicant was born in October 1960 in Bosnia and Herzegovina in the former Federal Republic of Yugoslavia. He first arrived in Australia on 19 January 1996 and was granted permanent residence on that date as the holder of a Class BA Subclass 203 (Emergency Rescue) visa. He has not departed Australia since his arrival on 19 January 1996.
3. On 5 March 2002 the applicant was convicted in the District Court of Western Australia of the following offences, and on 10 May 2002 he received the following sentences in respect of those convictions:
   • one count of sexual penetration without consent in circumstances of aggravation, committed on 2 June 2000, for which he was sentenced to imprisonment for 10 years;
   • two counts of attempted sexual penetration without consent, committed on 2 June 2000, for which he was sentenced to imprisonment for 5 years on the first count and imprisonment for 4 years on the second count.

All of the abovementioned sentences were to be served concurrently.

4. Following the imposition of the abovementioned sentences of imprisonment, a delegate of the respondent cancelled the applicant’s visa under s 501(2) of the Act on 17 November 2003. By letter dated 24 January 2007, however, an officer of the (former) Department of Immigration and Multicultural Affairs informed the applicant that he “may not have been afforded procedural fairness” in relation to the abovementioned decision to cancel his visa and that he was “now being treated as the holder of a permanent visa”.
5. Meanwhile, on 15 December 2006, the applicant had lodged with the Department an application for a Protection (Class XA) visa. On 3 January 2007, however, a delegate of the respondent refused that application.
6. On 8 January 2007 the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision of 3 January 2007. On 13 February 2007, however, the applicant withdrew his application to the Refugee Review Tribunal and, on 28 February 2007, that Tribunal accordingly decided that it did not have jurisdiction to review the delegate’s decision of 3 January 2007.
7. On 8 October 2009 a delegate of the respondent made a fresh decision to cancel the applicant’s Class BA Subclass 203 (Emergency Rescue) visa under s 501(2) of the Act.

THE LEGISLATION

8. 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.”

The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

THE MINISTERIAL DIRECTION

9. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, “Direction [no 41] – Visa refusal and cancellation under s 501” (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”

and Part B:

“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. ...”

Direction [41] will be relevantly referred to in more detail later in these reasons.

THE EVIDENCE

10. The evidence before the Tribunal comprised:
    • the “G Documents” (G1–G39, pp 1–167) lodged by the respondent (Exhibit R1);
    • statement of the applicant, dated 11 November 2009 (Exhibit A1);
    • “Statement of Facts and Contentions of the Applicant”, dated 4 December 2009 (Exhibit A2);
    • statement of Adnan Sehovic, dated 12 November 2009 (Exhibit A3);
    • statement of Anela Dizdarevic, dated 12 November 2009 (Exhibit A4); and
    • the oral evidence of the applicant.

The applicant’s evidence

11. The applicant tendered in evidence (Exhibit A1) his statement, dated 11 November 2009, and he affirmed that its contents are true and correct. The contents of that statement are as follows:

“ I Hasan Sinanovic have never been convicted for any criminal offence in my country Bosnia and Herzegovina.
The only conviction happened in Australia besides the point that I never pleaded guilty when I was convicted for a serial (sic) crime.
I served my sentence in the vest (sic) way I could. I never caused any trouble and demonstrated myself as a man of integrity.
After four years and 8 months in prison I was released on probation. I served my probationary time in the best way I could.
I did not miss my first opportunity to get a job. I put my efforts into my daily duties, working in a team and always being proud of myself.
I arrived in Australia under a Protection visa (Emergency Rescue) Visa (sic).
I was taken from a War Prisoner Camp and provided a ‘Safe Haven’ in Australia.
The house I built in my country Bosnia was burnt down by the Serb Para Militants and the land was taken by Serb forces.
My ex-home which was burned down is now on Republic Srpska territory which is a territory I cannot return to as I fear of revenge by the Serbs.
I was wrongly accused and have never had a chance to defend myself and now after I served my sentence I am declared as a person who may repeat the crime.
Yes I am declared of being capable of repeating the crime, declared by administrative workers, not by someone authorised for such assessment not a psychiatrist for example.
I beg for a chance to prove that I will be valuable citizen of Australia.” (sic)

12. The applicant also tendered in evidence (Exhibit A2) a document headed “Statement of Facts and Contentions of the Applicant” signed by him and dated 4 December 2009, and he affirmed that the contents of that document are true and correct. The contents of that document are as follows:

“ Part I – Facts

1. This is an application to the Administrative Appeal (sic) Tribunal (the Tribunal) made by me Hasan Sinanovic (the Applicant) for review of a decision of a Delegate of the respondent to cancel the applicant’s Class BA Subclass 203 Emergency Rescue Visa on the grounds that I did not ass (sic) the character test within the meaning of S501 of the Migration Act (the Act).
2. I was born in Bosnia and Herzegovina on 1 October 1960. I arrived in Australia on 19 January 1996 as a holder of a Subclass 203 Emergency Rescue Visa.
3. On 10 May 2002 I received the convictions and sentences in the District Court of Western Australia totalling nineteen years. I was set up, innocent, without the chance of defending myself, and subsequently served my time.
4. My only hope was to reopen the case and prove my innocence. Unfortunately on 17 November 2003 a delegate of the Minister cancelled my visa under S501(2).
5. I applied for a Protection (Class XA) visa on 1 December 2006. The application was refused on 3 January 2007 and I sought review of this decision in the RRT on 8 January 2007. On 13 February 2007 I withdrew my application before the Refugee Review Tribunal.
6. On 8th October 2009 a delegate again decided to cancel my visa.

Part II – Contentions

1. I am a person of good character, I have never been convicted for any criminal offences in any other country except in Australia.
2. I fully respect the verdict brought on 10.05.2002 as accusation and charges for an offence I allegedly committed on 02.06.2000.
3. I never committed the offence I was charged for and maintain my innocence now with my wish to reopen the case and have a new trial with my evidence of me being innocent.
4. I served the sentence of 19 years and spent nearly five years behind the bars, but always was a good prisoner, cooperative and thankful to the country for rescuing me on 19.01.1996 from a war destroyed country.
5. I originated from Bosnia and Herzegovina, I am a Muslim by religion and as such I became a target of the Serb Nationals who destroyed my house, my home, my family and placed the area under Serb administration by International Agreement.
6. I cannot return to my home where I will be persecuted by the Serbs for nothing else apart from being a specific national – Muslim. I have developed fear to return to that country.
7. I feel that Australia has an International obligation towards me. I need protection rather than deportation to the country I do not belong, that being Republic Srpska in Bosnia and Herzegovina.
8. I am a person of good character and I strongly oppose the belief of the Minister that I might REPEAT the conduct.” (sic)
   
13. The applicant was referred to a letter which he had written to a former Minister for Immigration, dated 24 February 2003, whose contents are as follows:

“ I write to you in the hope that you and your Department will consider favourably towards making a decision to let me remain in Australia.
Applications have been made by my wife Jasmina Smajilovic and son and daughter to come to Australia. I myself came to Australia as a refugee, from a barbaric Serbian Camp. This was only with the assistance of the United Nations.
I was in a Serbian prison camp from 25/05/95 up until the United Nations and Red Cross pleaded my release on 16/01/96. Within three (3) days of that release, I landed on Australian soil.
Back in the Serbian Camp I was only fed once every 36 hours. On a daily basis I walked over the bodies of friends and fellow prisoners left rotting where they fell due to starvation and/or Serbian inflicted violence. I never believed I would survive this nightmare. I do not want to go back to that Hell!
Please understand that my life is only out of danger whilst I am in Australia. Should I be returned, I am 100% certain that I will be murdered. Please understand my position should you send me back there, I will not survive 7 days. I would be treated like an ‘escaped’ convict who has been caught and brought back to face a death sentence for ‘escaping’.
I have no accommodation should I not be killed. My home was completely destroyed by Serbian Armed Forces on a bombing raid – should I return to what is left, I will be faced with Serbian families on my property who will exact further violence towards me. All my friends and relatives are dead from previous assaults and bombing raids. All that remain are my wife and two children, and even of this I am not sure! The last I heard, they were in a refugee camp in Sarajevo.
My wife made her initial application to the Australian Embassy in Vienna. This application was inclusive of my son Jasmin and daughter Hasena. As far as I am aware she was dealing with one of the staff members who I know to be a Mr Zelko Malijevic. On several occasions in the past I have spoken with this man.
I have also been in touch with several organizations here in Western Australia in my quest for knowledge of my family without a great deal of success.
The most important issue to me, far above my possible deportation, is the safety and welfare of my family who have been left behind.
On my own behalf I would like to say this is the first time since my arrival in Australia that I have broken the law. I can, and do, honestly swear to you that this will never happen again. I made a grave mistake. I will not re-offend!
My work record in Australia can only be described as consistent and without incident or failure to achieve what was required of me. I worked hard for five years with the same company – David Gray Fertiliser Pty Ltd. This was a full time position. I was employed as a machine operator and I can assure you that my employer will only speak of me with high regard in respect to all areas of my employment and manner.
Sir, I wish to reiterate to you the fact that if I am returned to my country of birth I will be murdered. I would also like to draw your attention to the Section of ‘Other International Obligations’, in particular, ‘The International Convention on Civil and Political Rights’ sections 2.19, 2.20, 2.21, 2.22, 2.23, 2.24 and 2.25.
I further wish to state that I do realise I have failed in my duty to be a model citizen of a country that has provided me with opportunities that I could never have had in my own country. I am sad that I have let down a country that has shown me so much compassion and acceptance.
Whilst here in prison I will undertake all programmes available to me to ensure that I will not re-offend. I sit in this prison on a daily basis kicking myself for putting you in the position to send me back to the Hell from where I’ve escaped. If granted to stay in Australia I will abide by all parole orders and stipulations and will not once again put the community or myself in the position to which I now face.
...” (G17, pp 100-101)

The applicant confirmed that the contents of that letter were true and correct as at 24 February 2003 except for the reference to his acceptance that he was guilty of the relevant criminal offences. He said that it was “very difficult” for him to admit guilt because he was not guilty of those offences, and that he had admitted such guilt because he was advised to do so in order to gain admission to a Cognitive Skills course in prison and to obtain release from prison on parole. He added that if he had not admitted guilt he would have remained in prison until 2008 (whereas he was in fact released on parole in November 2006).

14. The applicant was also referred to a statutory declaration, dated 11 May 2007, which he had provided to the Department. The contents of that statutory declaration are as follows:

“ 1. I make this declaration in response to the ‘Notice of Intention to Consider Cancellation of Your Visa under subsection 501(2) of the Migration Act 1958’ dated 18 April 2007.

2. I believe that I am a person of good character.
3. I attach a letter of support from the Bosnian-Hercegovian Cultural and Recreational Centre dated 7 February 2006 attesting to the fact that they believe that I can make a contribution to the community without any danger to society.
4. I attach a letter of support dated May 2007 from Adnan Sehovic which attests to the help and support I have given to his family and others.
5. I attach a letter of support from Marizela Mulic, an employee of the Department for Corrective Services in WA and whom I have known for 8 years. She attests to the fact that it is her belief that I will not be a burden or threat to society in the future. She attests to my rehabilitation during my time in gaol.
6. I attach a letter of 3 April 2007 from the Department of Corrective Services stating that the Dangerous Sexual Offences Review Committee met on 30 August 2006 to review my case, and decided not to refer my case to the DPP for consideration for an application to the Supreme Court under section 17 of the Dangerous Sexual Offenders Act 2006. I understand from this that the Committee did not consider that I presented a serious risk to the safety of the community.
7. I apologise for all the trouble I have caused. I have been rehabilitated during my time in prison. I did a Cognitive Skills program whilst I was in prison, that has helped me, and I will not do any bad things in the future. I attach a copy of the completion certificate for this course. My life is very simple now; I work and come home. I have friends here, and I am a law abiding person.
8. I do not wish to return to my village of Luka, near Srebrenica. It has many painful memories for me as a result of my experiences there during the civil war. I have no-one there and life is difficult as the country is still recovering from the war. My wife does not want me to live with her anymore, and she will not allow me to have contact with my children (a daughter aged 18 and a son aged 13). I feel suicidal at the thought of returning to Bosnia, and being so alone there.
9. Apart from my time in prison, I have had stable employment in Australia. I worked for David Gray for 5 years before going to prison, and I believe that I can continue to make a contribution to Australia in the course of my employment in the future. At my sentencing on 10 May 2002, my lawyer referred to a document signed by a number of the workers at David Gray’s confirming that they regarded me as honest, trustworthy, dependable and of good character.
10. I am currently working for Coogee Contracting which is a company undertaking earthmoving, truck and plant hire, landscaping and building limestone walls.” (G8)
    

The applicant confirmed that the contents of that statutory declaration were true and correct as at 11 May 2007. He added, however, that his former wife had since remarried, and that he now has contact with his daughter who is now married and has a child 5 months old and who lives near Tuzla in Bosnia and Herzegovina. Asked what he meant by stating “I apologise for all the trouble I have caused” in para 7, the applicant explained that the reason he apologised is that “the law made a decision” that he was guilty and the Justice Ministry said that he was guilty and so he apologises to them, but he reiterated that he has not committed a crime and is not guilty. [The Tribunal notes that copies of the attachments referred to in paras 3–7 of the above statutory declaration are included in the “G Documents” which are in evidence (Exhibit R1, G10, G11, G13 and G38).]

15. In his examination-in-chief the applicant gave evidence regarding the circumstances in which he came to leave Bosnia and Herzegovina and arrive in Australia in January 1996, as outlined in his abovementioned statements (Exhibits A1 and A2) and his letter to the Minister dated 24 February 2003 (G17, pp 100–101). He said that he first arrived in Adelaide but that he then moved to Perth because he had friends there.
16. As regards the crimes of which he was convicted in Perth in 2002, the applicant said that he had never admitted to guilt and that he still “professes” that he is not guilty of those crimes. He said that he has spent “lots of time” in female company and that he has had no problems socializing with women. He added that he is always ready to help others when they are in distress and make them feel better and that he has always been a good person.
17. The applicant said that, during the 4 years and 8 months that he spent in prison, he was always good and did what was required of him and never created any problems and was regarded by the prison officers as an exemplary prisoner. He said that, after he was released on parole in November 2006, he reported regularly and punctually to his parole officer as required, and he completed his parole period in November 2008.
18. The applicant said that, following his release from prison in November 2006, he obtained full-time employment in March 2007 with a construction company, DTMT Construction, and he commenced work on 31 May 2007. He referred to a support letter and petition signed by numerous employees of DTMT Construction in November 2009 (see G39) and said that his boss wants him back at work.
19. As regards the risk of his committing similar crimes in the future, the applicant confirmed that he had never been referred to a psychologist for a professional assessment. He added that when he was in the detention centre he requested that such an appointment be made but that, even though an officer “promised” to do so, it “never happened”.
20. The applicant was asked whether he had a place to return to in Bosnia and Herzegovina. He said that that country is not a “lawful” country and that the Srebrenica area, where he was born and lived, is now predominantly occupied by Serbian people. He said that his house had been burnt down, and the whole village where he lived had been destroyed, by the Serbs during the civil war and that the area is now bushland inhabited by bears and wolves. He added that his former wife has remarried and he would have no family or money to support him there.
21. The applicant said that, if he remained in Australia, he would want his visa returned to him, and would want to get his job back at DTMT Construction and earn money so that he could “reopen the case and prove that [he is] innocent”.
22. In cross-examination the applicant was asked to give his version of the circumstances which led to his criminal convictions in 2002. He said that he was in a group of 5 or 6 people who were spending time together for 9 or 10 days. He said that he and the woman in question did sleep together but that they were not boyfriend/girlfriend. He said that the woman asked him for money to buy drugs but that he told her he could not give her any money because he had paid various bills. He said that after 9 days she “got angry” and called the police and the police then came and apprehended him. He said that the woman had needle marks on her arm and that he did not want to be with her after that. He said that he had known the woman for about 2 years prior to the incident in question and that they and others used to “hang out” in her apartment block. He also said that throughout the time he had known the woman they had had a consensual sexual relationship and that he had never done anything to her by force.
23. The applicant said that during his trial “the judge and her lawyer all attacked [him]” and they accepted what she said and did not accept what he said. He said that he believed that he was given a harsh penalty because of “September 11” and because he is a Muslim.
24. The applicant, when asked whether he was remorseful for having committed the relevant offences, replied that he was not because he did “not feel guilty at all” and he has “done nothing that [he] should feel sorry about”. He acknowledged that he had previously expressed remorse in letters to the Department but he added that he had only done so because he had been advised that it was necessary for him to do so in order for him to be able to attend the Cognitive Skills course in prison and to obtain release on parole.
25. The applicant said that he does not have any close family members in Australia. He said that he has a daughter, aged 20 years, who is married and has a 5-month old child and who lives near Tuzla in Bosnia and Herzegovina, and a son, born in 1995, who lives with his mother (the applicant’s former wife) and her present husband in Bosnia and Herzegovina. He said that he speaks with his daughter by telephone about once per month, but that he has never seen, and has no contact with, his son. He added that his ex-wife does not allow him to have any contact with his son “because her husband would be jealous”. He said that he would like to have contact with his son and, if he were allowed to remain in Australia, he would like to bring his son here for his education. The applicant also said that he has a sister who lives in America and an elderly brother who lives in Bosnia and Herzegovina and who is blind and deaf and very sick.
26. As regards his educational and vocational qualifications, the applicant said that, before he left Bosnia and Herzegovina, he completed high school and subsequently became qualified as a construction technician, having completed apprenticeships as a technician, and a painter, and he also trained as a plumber.
27. It was put to the applicant that he would not be at risk of persecution by reason of his ethnicity if he were returned to a Muslim-Croatian area of Bosnia and Herzegovina. The applicant responded that Bosnia and Herzegovina is not a “lawful” country and that he has no house and no money there and he would be picked up by the police if found sleeping in a park. He also said that there is high unemployment in Bosnia and Herzegovina and that he would have “nothing” there. He added that to return him to Bosnia and Herzegovina would be “a death sentence” – worse than his prison sentence – and that, if he were so returned, he would sleep in front of the Australian Consulate or kill himself.

Additional material

28. The applicant tendered in evidence (Exhibit A3) a signed statement of Adnan Sehovic, dated 12 November 2009, which states as follows:

“ I have known Mr Hasan Sinanovic, currently in the Detention Centre at the Airport, since 1996 and have always found him to be an honest man, a good friend who is a hard working man and who has a good sense of humour.
I was a guarantor for Mr Hasan Sinanovic to be released from detention on 22 January 2007 and provided full board accommodation for him for a period of about three months.
If I ever had any doubts regarding Hasan then I would have never taken him into my home and allowed him to stay with my family.
I trusted Mr Hasan Sinanovic to stay with my family and he proved to be a man worth trusting.
...”

The applicant also tendered in evidence (Exhibit A4) a signed statement of Anela Dizdarevic, dated 12 November 2009, which states as follows:

“ I have known Mr Hasan Sinanovic, currently at an Immigration Detention Centre, since 1996.
I know Hasan as a very honest man of great integrity who is unable (sic) of committing any crime particularly the crime he was sentenced for.
Hasan spent days and nights with me as he stayed at my home and he was always a good friend and a man whom I could fully trust.
Hasan has never said any rude or sexy words to me or to my friends who have met him at my home.
Again, Hasan Sinanovic is a very honest and trustworthy person whom I fully support as such to remain in Australia.
...”

Neither Mr Sehovic nor Ms Dizdarevic was required by the respondent for cross-examination.

29. The Tribunal also notes the following letters of support for the applicant which are contained in the “G Documents”:
    • letter, dated May 2007, from Adnan Sehovic (G11, p 64);
    • letter, dated 5 May 2007, from Marizela Mulic (G11, p 65);
    • letter (undated) from Gemma Doyle (G27).
30. The “G Documents” also include the following letters from persons employed by DTMT Construction Company:
    • letter, dated 23 July 2009, from Brett Cullen, HR/IR Manager, which states:

“ Mr Hasan Sinanovic was employed on a full-time basis with DTMT Construction from 31/05/07 till 22/07/09. Hasan was employed as a Labourer.
Hasan was a good employee and continually arrived at work on time and there were never any indiscretions.
...” (G25);

• letter, dated 19 July 2009, from Andy Balic, Supervisor, Brockman 4 Project, which states:

“ I, Andy Balic, Supervisor working for DTMT Construction, wish to express my reasons for the recommendation of Permanent Residency for Mr Hasan Sinanovic.
Mr Hasan Sinanovic has worked for DTMT for over 2 years, and I found him to be a valuable, industrious worker. He contributes positively to the workforce, and is very likable and friendly among his work mates. Always willing to be helpful, he strives for excellence in his assigned tasks and has succeeded in achieving this. I strongly feel that he is a great asset to DTMT.
After hours he is very sociable and knows how to have a sensible, good time with all his friends. I am highly recommending him to be granted the status of Permanent Residency and would gladly welcome him as a fellow Australian. ...” (G26);

• letter and petition (undated) signed by 31 persons, which states:

“ As his work colleagues we are aware that Hasan has been removed from site because his visa has been cancelled.
We know Hasan as a long term friend and colleague. He is a person with integrity, a good worker who proved that he can keep his job down through good work ethics and professional and personal conduct.
This petition is written in support of Hasan’s application for reinstatement of his visa.” (G39)

31. Two letters from Muhamed Merdjanic, President, Bosnian-Hercegovian Cultural and Recreational Centre are included in the “G Documents”. One letter, dated 7 February 2006, states as follows:

“ Our Association has been established in 1993 and since then has grown to be the most successful Australian Association with Bosnian background.
The Association has built community centre with supporting sporting infrastructure in value of more than 6 million dollars and it is debt free. We have been involved in close cooperation with various Governmental and Non-Governmental organisations providing support in settlement needs of many refugees from former Yugoslavia especially from Bosnia. Our status is well documented in various Government Departments.
In 1996 on January 19th large group of Bosnian war detainees (103) under auspices of United Nation High Commission for Refugees were brought from Serbian Detention Camp to Australia.
Amongst that group, there was Mr Hasan Sinanovic. It was certainly an experience I would never forget seeing large group of men looking full of fear, hungry, underweight and completely lost. All of them appeared suffering from post traumatic stress disorder.
Mr Sinanovic was in a group which settled in Adelaide initially but shortly after that he joined other group which settled in Perth.
Our Association was intensively involved in providing enormous support with other associations to this group of detainees (refugees).
Mr Sinanovic has come long way since then, irrespective of deep scares (sic) of war and mistreatment in detention camps in Serbia.
Unfortunate incident which happened in June 2000 shocked our association and we believe that Mr Sinanovic has paid the price reflecting the Australian law.
We believe that Mr Sinanovic has entered phase of full recovery and rehabilitation within Western Australian Corrective Services and Justice System.
We strongly recommend that Mr Sinanovic remains in Australia as we believe he can contribute to the community at large without any danger to the society. We are willing to voluntary monitor and help Mr Sinanovic to adjust in every day living in our society and will provide help in gaining suitable employment. We know so many details about whole group (103) of Serbian detainees who settled here in Australia and some of them returned to Bosnia, so please contact us if you need more details about Mr Sinanovic.” (sic) (G10)

The other letter, dated 22 May 2008, states as follows:

“ Please, read this letter in conjunction with the letter dated 07 February 2006.
Our Association has been in touch with Mr Hasan Sinanovic since his release from detention facilities at Domestic Airport. We try to help Mr Sinanovic in obtaining an employment and with his efforts he gained quite remunerative employment in North West of Western Australia. Every spare time Mr Sinanovic has come to our facilities. We strongly believe he has adjusted him self within local community and community at large without any negative consequences.
We are pleased that he is contributing to the society and he is very prompt in any support in community projects by way of giving donations or voluntary work in his free time.
Please take into consideration that Mr Sinanovic deserves second chance and on the basis of his current circumstances and reflection of his behaviour in the community at large he does not pose any danger to the society. He should remain in Australia.” (sic) (G22, p118)

32. The Tribunal will refer to certain other material contained in the “G Documents” in the course of the following analysis.

ANALYSIS

Application of the “character test”

33. By reason of the fact that the applicant has been sentenced to a term of imprisonment of more than 12 months – namely, on 10 May 2002 (see paragraph 3 above) – the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
34. It follows from that finding that the discretionary power to cancel the applicant’s visa pursuant to s 501(2) of the Act is enlivened in this case.

Should the discretionary power to cancel the applicant’s visa be exercised in this case?

35. Part B of Direction [41] comprises paragraphs 8–11. Paragraph 9 states:

“ (1) ... decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note: The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2) Decision-makers should only take into account directly relevant considerations.
...”
The primary considerations

36. Paragraph 10 sets out the primary considerations as follows:

“ 10. The primary considerations

(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
Protection of the Australian community

37. Paragraph 10.1 states:

“ 10.1 Protection of the Australian community

(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”

38. The objectives set out in Part 1, paragraph 5 are as follows:

“ 5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

The seriousness and nature of the relevant conduct

39. Paragraph 10.1.1(1) states:

“ 10.1.1 The seriousness and nature of the conduct

(1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”

Paragraph 10.1.1(2) lists (in paras (a)–(m)) “examples of offences and conduct that are considered serious”, including (relevantly):

“ (c) rape and any other sexually-based offences;
...
(i) ancillary offences in respect of offences and conduct that are considered serious, including:
(i) convictions for attempting to commit an offence;
...”

Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

“ (3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including

(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.

(4) The following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
...”

40. When sentencing the applicant, on 10 May 2002, to the terms of imprisonment in respect of the convictions referred to in paragraph 3 above, O’Sullivan DCJ said:

“ Mr Sinanovic, you can remain seated while I make these remarks. ... You have been convicted after a trial of two offences of attempted sexual penetration without consent and one offence of sexual penetration without consent in circumstances of aggravation.
These offences were committed by you on 2 June 2000 at Coolbellup. The complainant was a 61-year-old woman who suffered from incontinence and a bad back which gave rise to feelings of pain which she controlled with a morphine pump. The evidence given at trial included that on the day in question you went to visit a workmate who lives in the same block of units as the complainant and who at that time, I think, had a relationship with the complainant. You went with your workmate to her unit and you had a drink with her and she showed you around the unit.
After some time your workmate returned to his own unit but you remained with the complainant, having a drink with her and talking. After a while the complainant needed to go to the toilet and was anxious for you to leave. You got up and appeared to be leaving and the complainant went quickly to the toilet, calling to you to close the door behind you as you left. The complainant had wet herself and needed to shower and she heard the door slam and, thinking she was alone, got undressed and got into the shower.
You didn’t leave the unit, but in fact yourself undressed and went to the shower and confronted the complainant. When the complainant saw you naked in front of her she said, ‘Oh, my God, no,’ and tried to resist you but you grabbed her and attempted to sexually penetrate her anally in the shower. That is the first offence of which you have been convicted. The complainant managed to break free as you struggled and she ran into the bedroom but you followed her. You threw her on to the bed and forced yourself upon her and sexually penetrated her vaginally. In the course of sexually penetrating her vaginally you bit her on the chest area causing significant bruising, especially to the left breast.
The complainant is demonstrably much smaller and weaker than you and she was unable to resist and was crying hysterically. They are the circumstances relating to the second offence of which you have been convicted. After ejaculating into the complainant you lay – I’m sorry, Madam Interpreter. You lay on top of her, pinning her to the bed, and later you tried to sexually penetrate her again without success. That is the third offence of which you have been convicted, an offence of attempted sexual penetration without consent. They then are some of the facts relating to your offending.
Turning to matters personal to you. Your (sic) are 41 years of age. You were born in Bosnia and came to Australia in 1996 as a refugee from the Balkan conflict. Your parents are deceased. You are the youngest of four children, two of whom remain in Bosnia and one is, I think in the United States. You have a wife and two children who remain in Bosnia and I understand that the youngest of the children was born after you left, and you have never seen that child. I was told that you completed high school in Bosnia. You did a painting apprenticeship and then you went into the plumbing trade.
I was told that you then became a sort of supervisor in the building history, and that you did quite well winning some awards and some recognition. When the trouble broke out in Bosnia you apparently fought in conflict and you were captured and imprisoned and interrogated. You were eventually released from the camp at Sebrenitza (sic) and under United Nations supervision brought to Australia. You first came to Adelaide and then to Perth, where you have lived and you worked for David – you worked in a factory in O’Connor for some 5 years. You are – you have a permanent residence visa but you do not have Australian citizenship, and sofa (sic) as I’m aware you have no prior convictions, and he (sic) had no convictions before these convictions with which I’m now dealing.
Before sentencing you it’s necessary to take into account anything which can be said in your favour, but I have to say that there is not very much. You completely denied these offences despite what I consider to have been a strong case against you, and you have demonstrated no remorse at all until this morning. The expression of remorse contained in the letter which I have read has no doubt been provided by you on legal advice, and after you and your advisers have read the pre-sentence report and the psychologist report, which expresses concern that you were unable to accept responsibility for your actions.
Against that background the letter which I have read has, in my view, something of a hollow ring and can count for very little. However, I do accept that once this case is completed there will be a better prospect that you will come to realise the seriousness of your offending, and perhaps as your counsel has said, this letter indicates the first step in that process, and so I take it into account to that extent. I note what has been said about your health and your emotional and psychological condition. I note that you are said to be suffering from anxiety and symptoms of post-traumatic stress disorder and I take that into account, but as your counsel has rightly conceded, that cannot excuse these offences one bit.
In my view there are a number of very serious features of these offences. They include that the complainant was 61 years of age, as you well knew. She was in her own home. You had only just met her, and she in now (sic) way contributed to her own misfortune. You are demonstrably a man of good physical stature and I have no doubt that you have significant strength. The complainant, at trial, appeared to be quite frail and older than her 61 years, and as I have already noted, she suffered from incontinence and a bad back, even if you did not know it at the time. You were clearly prepared to use, and you did use, significant force upon her.
You treated her with contempt and in a degrading manner for purposes of your own sexual gratification. The injuries which she suffered included not only physical injuries to her chest, but psychiatric injuries which required hospitalisation. In my view conduct of this kind now calls for significant terms of imprisonment.
Would you stand now please, Mr Sinanovic. In resect (sic) of count 1 on the indictment, the offence of attempted anal sexual penetration, you should serve a term of imprisonment of 5 years. In respect of count 2, sexual penetration without consent in circumstances of aggravation, you should serve 10 years’ imprisonment. In respect of count 3, attempted sexual penetration without consent, you should serve a term of 4 years’ imprisonment.
I have given some thought to whether these sentences should be served concurrently or cumulatively. But in all the circumstances, I have decided that they should be served concurrently. You should be declared eligible for parole and the sentences should be backdated, so as to be deemed to have commenced upon the date of your conviction on 5 March this year. ...” (G7, pp 52–55)

41. The 3 offences of which the applicant was convicted on 5 March 2002 relate to a single occasion on 2 June 2000 and represent his entire recorded criminal history in Australia. The applicant testified that he has not committed any offences outside Australia and there is no evidence before the Tribunal which contradicts that evidence. Each of the abovementioned 3 offences was, however, of a very serious nature and that seriousness was compounded by the circumstances in which they were committed, namely, that they were committed against, and involved violence towards, a relatively elderly and defenceless woman in her own home. The nature and seriousness of the relevant offences were amply described in the remarks of the sentencing judge and were reflected in the substantial custodial sentences which he imposed (see paragraph 40 above). The Tribunal accepts the respondent’s submission that the abovementioned offences of which the applicant was convicted on 5 March 2002 were abhorrent.
42. The sentencing judge in his remarks referred to certain mitigating factors pleaded on behalf of the applicant but commented that they provided no excuse whatsoever for the commission of the relevant offences. In the present proceedings no factors were expressly raised by the applicant by way of mitigation in respect of the relevant offences. Instead, the applicant consistently denied that he had committed the offences of which he was convicted.

The risk that the conduct may be repeated

43. Paragraph 10.1.2 of Direction [41] states:

“ 10.1.2 The risk that the conduct may be repeated
(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”

44. There is, unfortunately, no objective authoritative evidence (such as a report of a psychiatrist, psychologist or other relevantly qualified professional) before the Tribunal regarding the extent of rehabilitation already achieved by the applicant and the prospect of further rehabilitation in his case, and the degree of risk of his similarly re-offending. There is, however, a reference, in the sentencing submissions of counsel and in the sentencing remarks of O’Sullivan DCJ on 10 May 2002 (a transcript of which is in evidence – Exhibit R1, G7), to a report of David Summerton, Psychologist, dated 3 April 2002, regarding the applicant. Passages from this report were quoted by the Crown Prosecutor, including the following:

“ The overall picture is of an individual who entirely denies any wrongdoing and who presents himself as being victimised.” (G7, p 49)

45. By way of evidence of his rehabilitation, the applicant referred to his good conduct while in prison (from March 2002 to November 2006), his completion of a Cognitive Skills course in prison, his compliance with the requirements of his parole, his good employment record with DTMT Construction Company (from 31 May 2007 to 22 July 2009), and his good conduct generally since his release from prison. The Tribunal notes that the “G Documents” contain the following relevant documents:
    • Ministry of Justice Immigration Report, dated 23 October 2002, which (inter alia) comments favourably on the applicant’s prison performance (G18);
    • certificate of completion by the applicant of a Cognitive Skills Program, dated 15 December 2005 (G13);
    • letters from Brett Cullen and Andy Balic, and a letter of support and petition signed by 31 employees, of DTMT Construction Company (G25, G26, G39 – see paragraph 30 above);
    • letters from Muhamed Merdjanic, President, Bosnian-Hercegovian Cultural and Recreational Centre (G10, G22, p 118 – see paragraph 31 above).

The Tribunal also notes the following letter from Jackie Tang, Chairperson, Dangerous Sexual Offenders Review Committee, Department of Corrective Services, dated 3 April 2007 (referred to in para 6 of the applicant’s statutory declaration, dated 11 May 2007, set out in paragraph 14 above):

“ Dear Mr Sinanovic
The Dangerous Sexual Offenders Act 2006 (the Act) provides that the Director of Public Prosecutions (DPP) can apply to the Supreme Court for a continuing detention order or a continuing supervision order for serious sexual offenders who continue to present a serious risk to the safety of the community whilst they are serving a custodial sentence. The Act became operational on 15 May 2006.
The Dangerous Sexual Offenders Review Committee (DSORC) met on 30 August 2006 to review your case. The Committee will not be referring you to the Director of Public Prosecutions for consideration for an application to the Supreme Court under Section 17 of the Dangerous Sexual Offenders Act 2006 at this stage.
We apologise for the lateness in notification whilst the Committee was establishing the administrative process.” (G38)

46. In the Tribunal’s opinion an important factor which is relevant to an assessment of the degree of risk of the applicant’s committing similar or other serious offences in the future is the extent to which he has accepted responsibility for, and is genuinely contrite and remorseful in respect of, the offences of which he was convicted on 5 March 2002. It is clear from the applicant’s evidence in this proceeding that he continues to deny any guilt or responsibility, and feels no contrition or remorse, in respect of those offences. The applicant, in his evidence in this proceeding (see paragraph 22 above), presented a version of the circumstances in which he came to be arrested and charged with the relevant offences which, the Tribunal understands, was not presented by him at his trial, and which the Tribunal does not accept. The applicant’s continued refusal to accept responsibility for the offences of which he was convicted on 5 March 2002, together with this assertion that he was not treated fairly by the trial judge and was discriminated against when sentenced (see paragraph 23 above), clearly indicate to the Tribunal that the applicant has not since become rehabilitated. In these circumstances the Tribunal does not regard the applicant’s assertions that he will not commit offences in the future as reliable.
47. Having regard to the whole of the considerations referred to in paragraphs 44–46 above, the Tribunal is not satisfied that there is a minimal or low risk of the applicant’s committing similar or other serious offences in the future. The Tribunal accepts the respondent’s submission that there is a real risk that the applicant will commit similar or other serious offences in the future.

Conclusion regarding protection of the Australian community

48. Having regard to the Government’s objectives set out in Part 1, paragraph 5 of Direction [41], the very serious and abhorrent offences of which the applicant was convicted on 5 March 2002, and the Tribunal’s assessment that there is a real risk that he will commit similar or other serious offences in the future, the Tribunal concludes that the primary consideration referred to in paragraph 10(1)(a) of Direction [41] – namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” – militates strongly in favour of cancellation of the applicant’s visa.

Whether the person was a minor when they began living in Australia

49. Paragraph 10.2 of Direction [41] states:

“ 10.2 Whether the person was a minor when they began living in Australia
(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”

50. By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”. It is common ground that the applicant was 35 years old when he first arrived in Australia on 19 January 1996. The applicant was, therefore, not a “minor”, within the meaning of paragraph 10.2 of Direction [41], when he began living in Australia.
51. Accordingly, this “primary consideration” is not applicable in the applicant’s case.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity

52. Paragraph 10.3(1) of Direction [41] states:

“ 10.3 The length of time that a person has been ordinarily resident
(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”

The applicant has been ordinarily resident in Australia from 19 January 1996 and, according to the evidence before the Tribunal, the offences of which he was convicted on 5 March 2002 were committed on 2 June 2000. Given that the applicant was ordinarily resident in Australia for a period of approximately 4½ years before he commenced to engage in criminal activity, his case is entitled to be given favourable consideration to that extent in accordance with paragraph 10.3(1) of Direction [41].

Relevant international obligations

53. Paragraph 10(1)(d) of Direction [41] refers to:

“ relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

International obligations imposed by the abovementioned Conventions are referred to in more detail in paragraphs 10.4–10.4.3 of Direction [41].

54. Although the applicant has one child under the relevant age of 18 years, namely, his son who was born in 1995, that child, according to the applicant’s evidence, resides with his mother and her present husband in Bosnia and Herzegovina. The applicant’s evidence was, furthermore, that he has never seen, or had any contact with, that child. Accordingly, the applicant has not sought to rely on the Convention on the Rights of the Child in support of his case that his visa should not be cancelled.
55. As regards the Convention and the Protocol Relating to the Status of Refugees (“the Refugees Convention”), paragraph 10.4.2(1) of Direction [41] states:

“ 10.4.2 Convention and the Protocol Relating to the Status of Refugees
(1) In cases where issues of protection pursuant to the Refugees Convention are raised by the person or are clear from the facts of the case, they must be given consideration.”

56. The applicant claims that, if he is returned to Bosnia and Herzegovina, he will suffer persecution by reason of his religion as a Muslim.
57. On 15 December 2006 the applicant lodged with the Department an application for a Protection (Class XA) visa on the basis that he was a non-citizen in Australia in respect of whom Australia had protection obligations under the Refugees Convention because he feared that he would be “harmed by the Serbs” because he is a Muslim if he returned to Bosnia and Herzegovina. (G12)
58. On 3 January 2007 a delegate of the respondent refused the applicant’s application for a Protection (Class XA) visa. In a statement of reasons for that decision (G34) the delegate stated that (inter alia):
    • advice received from the Department’s Country Information and Protection Support Section was to the effect that there was no evidence to suggest that Muslims were being persecuted in Bosnia and Herzegovina at the present time;
    • during the last 10 years there have been major developments to stabilise the ethnic tensions in Bosnia and Herzegovina and the situation for Muslims in that country has stabilised.

The delegate concluded that the applicant did not have a genuine or well-founded fear of persecution for reasons of his religion, for the purposes of the Refugees Convention, if he returned to Bosnia and Herzegovina. Accordingly, the delegate was not satisfied that the applicant is a person to whom Australia has protection obligations for the purposes of a grant of a Protection (Class XA) visa.

59. The Tribunal is not satisfied, on the basis of the evidence before it, that any protection obligations pursuant to the Refugees Convention arise in the circumstances of the applicant’s case.
60. As regards other relevant international obligations, paragraph 10.4.3(1) of Direction [41] states:

“ 10.4.3 Other relevant international obligations
(1) The following are to be considered:
(a) The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);
(b) The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture; and
(c) The prohibition against refoulement under the ICCPR and CAT is absolute. There is no balancing of other factors if the removal of a person from Australia, including if that removal followed as a consequence of the refusal or cancellation of a visa, would amount to refoulement under the ICCPR or the CAT.”

61. A comprehensive report by an officer of the Department providing an assessment of Australia’s international obligations and humanitarian concerns, in respect of the applicant’s being returned to Bosnia and Herzegovina, dated 18 June 2007, is in evidence before the Tribunal (Exhibit R1, G16, pp 86–97). As regards non-refoulement obligations, the report concluded that:
    • there are no substantial grounds for believing that the applicant would be in danger of being subjected to torture if returned to Bosnia and Herzegovina, for the purposes of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”);
    • there is not a real risk that the applicant will face violation of his fundamental human rights under Article 6 or Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”) as a necessary and foreseeable consequence of return to Bosnia and Herzegovina (G16, p 91).

The report, however, concluded:

“ There are significant obstacles to the return of Mr Sinanovic to the region of Bosnia-Herzegovina where he was born and raised as this area is now dominated by the ethnic Serbs in what is effectively a separate state within the borders of Bosnia-Herzegovina. These difficulties would necessitate the return of Mr Sinanovic to the Muslim-Croatian Republic of Bosnia-Herzegovina where he would have no family or friends to assist with his re-settlement and re-integration into the community of that state.” (G16, p 96)

Conclusion regarding relevant international obligations

62. Having regard to the considerations referred to in paragraphs 53–61 above, the Tribunal is not satisfied that the cancellation of the applicant’s visa and his being returned to Bosnia and Herzegovina would necessarily be inconsistent with Australia’s international obligations under the Refugees Convention, the ICCPR or the CAT.

Other considerations

63. Paragraph 11 of Direction [41] states:

“11. Other considerations
Note: These are not primary considerations.
(1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
...”

Subparagraph (3) sets out (in paras (a) – (g)) an inclusive list of “other considerations”. The Tribunal will specify, and comment upon, each of those other considerations below.

(a) Family ties, the nature and extent of any relationships

64. There is no evidence before the Tribunal that the applicant is presently in a marital relationship or a de facto relationship or a close personal relationship with any Australian citizen or permanent resident. Nor, according to the applicant’s evidence, does he have any immediate or close family members in Australia. There is, furthermore, no evidence that the applicant has any substantial ties to the Australian community such as ownership of real estate or other valuable assets in Australia or business interests in Australia. On the other hand, the applicant has, according to the evidence, been gainfully employed in Australia during the periods when he has not been in prison or immigration detention, and he has established a network of friends and workmates (as evidenced by the letters of support referred to in paragraphs 28–30 above) since he arrived in Australia.
65. Having regard to the whole of the evidence before it, the Tribunal is not satisfied that the applicant has any significant ties to the Australian community which might be disrupted by the cancellation of his visa and his removal from Australia.

(b) The person’s age

66. The applicant is presently 49 years of age. In his oral evidence he described himself as “still young”. The Tribunal does not regard the applicant’s age as a significant consideration in this matter.

(c) The person’s health

67. The applicant, in his evidence, did not refer to the present state of his health, except for a brief reference to his deteriorating eyesight, and he did not seek to rely on health issues in support of his case. Accordingly, the Tribunal does not regard the applicant’s health as a significant consideration in this matter.

(d) Any links to the country to which the person would be returned

68. According to the applicant’s evidence, he has a daughter (aged 20 years), a son (aged 14 years) and an elderly brother who live in Bosnia and Herzegovina. His daughter has a child aged 5 months. The Tribunal is satisfied that the applicant’s daughter, in particular, would be able to provide him with at least emotional and social support in the event of his removal to Bosnia and Herzegovina.
69. The Tribunal notes that the applicant lived in Bosnia and Herzegovina until he was 35 years of age and completed his primary and secondary education and obtained various trade qualifications there. The Tribunal is satisfied that, although he has been outside Bosnia and Herzegovina since January 1996, his being returned to that country would not present him with any language or cultural difficulties. As regards language, the Tribunal notes that, notwithstanding his 14 years in Australia, the applicant gave his evidence in the Serbian language at the hearing and appeared to require the assistance of the Serbian interpreter throughout the hearing.

(e) Hardship likely to be experienced by the person

70. The Tribunal accepts that the applicant would be likely to experience material and emotional hardship if he were removed from Australia to Bosnia and Herzegovina. As regards material hardship, the Tribunal accepts that the applicant has no assets in Bosnia and Herzegovina and would have to seek employment in (presumably) a more depressed labour market than presently exists in Western Australia. On the other hand, the applicant has valuable trade qualifications and skills which he acquired in Bosnia and Herzegovina and which would be likely to assist him to obtain employment. As regards emotional hardship, the Tribunal accepts that the applicant’s removal from Australia to Bosnia and Herzegovina would deprive him of the social network which he has established in Australia and would locate him in a country which, according to his evidence, has very painful memories for him and where he presently has no social network (other than his children and a brother). On the other hand, removal of the applicant to Bosnia and Herzegovina would provide him with the opportunity to re-establish a close relationship with his daughter, see and form a close relationship with her child, and, in due course, see (for the first time) his son (born in 1995) and form a relationship with him. The Tribunal notes the concluding comments in the Departmental report referred to at the end of paragraph 61 above, but the Tribunal is not satisfied that the “obstacles” and “difficulties” referred to in that report would necessarily prevent the applicant from making substantial contact with his abovementioned family members in Bosnia and Herzegovina if he wished to do so.

(f) Level of education

71. The applicant’s education and acquisition of trade qualifications in Bosnia and Herzegovina have been referred to above. The applicant does not appear to have furthered his formal education since arriving in Australia and, as previously indicated, does not appear to have acquired proficiency in the English language in the 14 years that he has lived in Australia. He was, however, represented at the hearing before the Tribunal by a registered migration agent and he gave his evidence through, and was otherwise assisted by, a qualified interpreter in the Serbian language.

(g) Whether the person has been formally advised by an officer of the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act

72. The applicant has never been formally warned by the Department about the risk of visa cancellation on character grounds under s 501 of the Act. His visa was, however, originally cancelled under s 501(2) on 17 November 2003 but, as noted in paragraph 4 above, that decision was not implemented. According to the evidence before the Tribunal, the applicant has not had any criminal convictions since November 2003.

Overall assessment of the primary considerations and the other relevant considerations

73. Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether those considerations, on balance, favour cancellation or non-cancellation of the applicant’s visa.
74. In the Tribunal’s opinion, it is appropriate in this case to give the greatest weight to the first abovementioned primary consideration, namely, the protection of the Australian community, by reason of:
    • the very serious and abhorrent nature of the crimes of which the applicant was convicted on 5 March 2002; and
    • the Tribunal’s assessment (in the absence of any objective authoritative evidence to the contrary) that there is a real risk of the applicant’s committing similar or other serious crimes in the future.

That primary consideration, in the Tribunal’s opinion, militates strongly in favour of cancellation of the applicant’s visa.

75. In the Tribunal’s opinion, the other relevant and applicable primary considerations and other considerations referred to above – to the limited extent that they militate against cancellation of the applicant’s visa – are collectively deserving of substantially less weight than that attached to the first primary consideration, namely, the protection of the Australian community.

Conclusion

76. The Tribunal concludes, therefore, that, having regard to the totality of the primary considerations and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the applicant’s visa.
77. Accordingly, the discretionary power to cancel the applicant’s visa, pursuant to s 501(2) of the Act, should be exercised in this case.

DECISION

78. For the above reasons the Tribunal affirms the decision under review.
    

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: E M Jordan .....................................................................................

Associate

Date of Hearing 12 January 2010

Date of Decision 18 January 2010

Representative of the Applicant Mr M Churchill

Counsel for the Respondent Mr A Gerrard

Solicitor for the Respondent Australian Government Solicitor