Mundzic and Minister for Immigration and Citizenship [2010] AATA 399 (31 May 2010)

Last Updated: 2 June 2010

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/3484

GENERAL DIVISION )

Re Adnan Mundžić

Applicant

And Minister for Immigration and Citizenship

Respondent

DIRECTION - CORRIGENDUM

Tribunal Mr RP Handley, Deputy President

Date 2 June 2010

Place Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. The decision as published on 31 May 2010 was:

The Tribunal sets aside the decision under review and substitutes a decision that Ms Ražnatović be granted a Cultural/Social (Temporary) (Subclass 42) visa to enable her to perform a series of concerts in Australia.

2. The Tribunal now amends that decision as follows:

The decision under review is set aside and the matter is remitted to the respondent for reconsideration with a direction that the discretion in s 501(1) of the Migration Act 1958 should not be exercised to refuse Ms Ražnatović a visa.

...................[sgd]....................
Mr RP Handley
Deputy President

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 399

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/3484

GENERAL DIVISION )

Re Adnan Mundžić

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Ms G Ettinger, Senior Member

Date 31 May 2010

Place Sydney

Decision The Tribunal sets aside the decision under review and substitutes a decision that Ms Ražnatović be granted a Cultural/Social (Temporary) (Subclass 42) visa to enable her to perform a series of concerts in Australia.

....................[sgd].......................
Mr RP Handley
Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP – visa refusal – character test - significant risk of vilifying a segment of the community – Direction 41 – primary considerations – protection of the Australian community – decision under review set aside

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RELEVANT ACT

Migration Act 1958: ss 499, 501

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CITATIONS

Jones v Toben (2002) 71 ALD 629; (2002) EOC 93-247; [2002] FCA 1150

Irving v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 457; (1993) 44 FCR 540

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OTHER AUTHORITIES

Direction - Visa Refusal and Cancellation under s 501 – No. 21

Direction [No.41] – Visa Refusal and Cancellation under s 501

...

REASONS FOR DECISION

31 May 2010

Mr RP Handley, Deputy President Ms G Ettinger, Senior Member

BACKGROUND

1. Adnan Mundžić has applied for a review of a decision to refuse to grant Svetlana Ražnatović a Cultural/Social (Temporary) (Subclass 42) visa for the purpose of performing a series of concerts in Australia. Mr Mundžić is a Director of Bosna Nation Records Pty Ltd which sponsored Ms Ražnatović’s visa application. Mr Mundžić has organised concert tours by a variety of musicians/singers from the Balkans over the past 10 years. Ms Ražnatović is a popular and successful singer who is based in the Serbian capital Belgrade and performs under the stage name ‘Ceca’.
2. Ms Ražnatović’s visa application was refused by a delegate of the Minister on the ground that she does pass the character test and that the discretion to grant a visa not be exercised in her favour. The delegate found that if Ms Ražnatović is allowed to enter Australia, “there is a significant risk that she will vilify a section of the community or incite discord in the Australian community or a segment of the community”. Ms Ražnatović was married to the late Željko ‘Arkan’ Ražnatović, the founder and commander of a paramilitary group known as the Serbian Volunteer Guard or ‘Arkan’s Tigers’ and founder of the Party of Serbian Unity.
3. Arkan’s Tigers were involved in fighting in Croatia, Bosnia and Kosovo during the early to mid-1990s arising out of which Mr Ražnatović was indicted by the International Criminal Tribunal for the former Yugoslavia for crimes against humanity committed by Arkan’s Tigers. These crimes included rape, murder and other serious offences committed in September 1995 and, in particular, the execution of 65 non-Serbian men who were buried in two mass graves. The indictment was dated 23 September 1997. Before the matter came to trial, Mr Ražnatović was assassinated in a hotel in Belgrade on 15 January 2000.
4. Ms Ražnatović was born in Serbia in 1973. Her career in the music industry commenced in 1988 when her first album of folk music was also released. She has released many albums since then which are reputed to have sold a total of at least 10 million copies. She now describes her music as something between pop and folk music. On 19 February 1995, Ms Ražnatović was married to Mr Ražnatović with whom she has two children. Ms Ražnatović was arrested in March 2003 and detained for four months in connection with the murder of Serbia’s Prime Minister, Zoran Djindjic, but was later released without charge. Ms Ražnatović said that media reports that she is currently (December 2009) being investigated in connection with illegal financial transactions carried out in the ‘Obilić’ football club, founded and owned by her late husband, of which she is honorary President, are false.
5. On 3 August 2007, Ms Ražnatović applied for a temporary visa to perform six concerts in Australia during the period 30 August 2007 to 16 December 2007. (Her first application for such a visa in February 2005 was refused in May 2005.) By letter dated 12 February 2008, a delegate of the Minister notified Ms Ražnatović’s representative of an intention to consider refusal of her visa application and inviting submissions, which were lodged on 6 March 2008. On 1 July 2009, a delegate notified Ms Ražnatović of the refusal of her visa application and, on 28 July 2009, Mr Mundžić, as her sponsor, applied to the Tribunal for a review of this decision.

ISSUES, RELEVANT LAW AND POLICY

6. There are two principal issues in this case. First, does Ms Ražnatović pass the character test set out in s 501(6) of the Migration Act 1958 (the Act)? Second, if she does not pass the character test, should the discretion in s 501(1) to not refuse the grant of a visa nevertheless be exercised in her favour?
7. Section 501(1) provides that the Minister may refuse to grant a visa to a person “if the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides relevantly that a person does not pass the character test if:

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

8. Section 499 empowers the Minister to give written directions to a person or body having functions under the Act about the performance of those functions or the exercise of powers under the Act, and the person or body must comply with such directions. At the time of the decision to refuse Ms Ražnatović’s visa application, the relevant direction was Direction - Visa Refusal and Cancellation under s 501 – No. 21 (Direction No 21). A new direction, Direction [No.41] – Visa Refusal and Cancellation under s 501 (Direction No 41), has since replaced Direction No 21, commencing on 15 June 2009. The Tribunal must also comply with this Direction.
9. Direction No 41 states (paragraph 7(1)) that a visa may be refused if the person does not satisfy the Minister that the person passes the character test. Paragraph 7.4.3 explains the factors to be considered in determining whether a person does not pass the character test pursuant to the grounds in s 501(6)(d)(iii), (iv) and (v) relied upon by the Minister:

7.4.3 Significant risk of vilifying a segment of the community, of inciting discord or of representing a danger through involvement in disruptive and/or violent activities

(1) In deciding whether a person does not pass the character test under section 501(6)(d)(iii), (iv) or (v) of the Act, factors to be considered include, but are not limited to, evidence that the person would:

(a) Hold or advocate extremist views such as a belief in the use of violence as a legitimate means of political expression;

(b) vilify a part of the community;
(c) has a record of encouraging disregard for law and order;
(d) has engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society;
(e) participates in, or is active in promotion of, politically motivated violence or criminal violence and/or is likely to propagate or encourage such action in Australia;
(f) is likely to provoke civil unrest in Australia because of the conjunction of the person’s intended activities and proposed timing of their presence in Australia with those of another individual, group or organisation holding opposing views.

(2) The operation of section 501(6)(d)(iii), (iv) and (v) of the Act must be balanced against Australia’s well established tradition of free expression. The grounds in these sub-paragraphs are not intended to provide a charter for denying entry or continued stay to persons merely because they hold and are likely to express unpopular opinions, even if these opinions may attract strong expressions of disagreement and condemnation from some elements of the Australian community.

10. If a person does not pass the character test, the decision-maker must consider whether to exercise the discretion to refuse or cancel a visa having regard to the particular circumstances of the case. Part B of Direction No 41 sets out a number of primary considerations that decision-makers must take into account in every case and also a number of other considerations that decision-makers should take into account where relevant, referred to below. Generally, in accordance with paragraph 11(1), other considerations should be given less weight than the primary considerations.
11. The primary considerations in Direction No 41 are set out in paragraph 10(1):
    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).
              
12. These considerations are elaborated on by a range of factors to which regard must be had.

THE APPLICANT’S EVIDENCE

SVETLANA RAžNATOVIć

13. Ms Ražnatović said that between 1988 and 1991 she released three albums. In 1991, at the age of 18, she went to live with her boyfriend, who was a Muslim, in Austria, near the border between Switzerland and Austria. Ms Ražnatović acknowledged that although she was living in Austria, she did return to Serbia from time to time to see her family.
14. However, Ms Ražnatović denied having spent time with Serbian troops in 1991 or having ever worn combat fatigues and said that the photograph that purports to show her in Vukovar wearing Serbian Army fatigues and carrying an AK47 machine gun is a photomontage – a fake. Ms Ražnatović said she was never in Vukovar at that time and did not give support to the regime of Slobodan Milošević. Indeed, she released a joint album with a Croatian actor in 1991 which was an anti-war song entitled ‘Not Against My Friend’ which was an appeal to young people not to be pushed into the war. She also said that she gave a concert in Zagreb (Croatia) or Sarajevo (Bosnia) in 1992 which she could never have done had she been supporting Serbian troops the year before.
15. Ms Ražnatović said she was never a member of Milošević’s party and did not support his regime. She was never invited by Mr Milošević to sing for him or his party. She has never been involved in any political party. All she is interested in is her music.
16. Ms Ražnatović described her music as love songs which she labelled modern folk, something akin to country music in the United States. She denied that her songs are ‘turbo-folk’ and said she does not know what that label means. Ms Ražnatović said she was not in the top five singers in the former Yugoslavia in the early 1990s: for example, a concert she gave in Belgrade in 1995 attracted an audience of 12,000 people. It was only in about 2002 that she achieved ‘superstar’ status when 100,000 people attended her concert at the ‘Marakana’ stadium in Belgrade and when, for the first time, she was invited to sing at the Serbian New Year’s Eve celebrations. In June 2006, 150,000 people attended her concert in Belgrade.
17. Ms Ražnatović acknowledged that when she married Arkan in 1995 – which was for love and not “to gain points” - it was a great occasion for the media, although, at the age of 22, she did not pay much attention to the media. There were 800 people at the wedding and she was honoured that the wedding was broadcast on television. As a result, she became a national celebrity, but she said she was not as big a star as she became in 2002. She had never met Mr Milošević before she got married. Ms Ražnatović said ‘pop star’ weddings are often broadcast in Serbia. In her case, a DVD of the wedding was also released, with the proceeds going to humanitarian aid.
18. Ms Ražnatović said that despite being refused a visa for the United States, Canada and Australia in 2005, she had previously travelled to the United States in 2002 and early 2003. In the course of her career, she has given over 300 concerts in Western Europe and there has never been any trouble at these concerts. There have never been any racial tensions or fights and she has never made any insulting or derogatory remarks. At her concerts, people come to enjoy themselves, and in her songs, she brings a message of love. It is not like a sporting match when people bring banners supporting their team.
19. Ms Ražnatović said in countries where she has performed, there have been Croatians, Bosnians, Serbians, Muslims in the audience – people from all over the former Yugoslavia. She has given concerts in Bosnia and Herzegovina and there has never been a problem. She acknowledged that a Bosnian group in Sweden had tried to stop her two concerts there in 2007 – she learned about this through the media – but, ultimately, there was no trouble at the concerts. Ms Ražnatović said she was honoured to be invited to represent Serbia at the Eurovision Song Contest in 2009 but declined in favour of someone younger.
20. Ms Ražnatović said she has never been convicted of any offence. She was arrested in March 2003 and detained for four months, but was later released without charge. With regard to recent stories in the media concerning the Obilić Football Club, she said this was mere media speculation – the sort of sensationalism to which she has been subject since 2003. She has no control over what the media say about her.
21. Ms Ražnatović said she has not released a new album for the past four years. Four years ago, when her last album was released, she performed in Bosnia and again last year, and she did not need a visa for this purpose. Approval from the police was, however, required for the concerts, but there was no problem in obtaining this. As of a few months ago, she no longer requires a visa to visit other European countries. She is awaiting the release of her new album before organising other concerts in the former Yugoslavia.
22. Ms Ražnatović was asked about Arkan’s indictment by the International Criminal Tribunal for the former Yugoslavia. She said she did not meddle with his work and they never talked about it. He was his own man and she never knew where he was going or when he was coming back. She only knows what the media reported. Her view is that the war was a big mistake: a lot of innocent people died, were injured and suffered as a result. Ms Ražnatović said her husband loved his country and his people: he was a patriot. During the time they were married, they had visitors from all over Yugoslavia.
23. Ms Ražnatović said she has a son and a daughter. Both have appeared in concerts with her. Her son attends a British school. If he made a three-fingered salute at a concert in Belgrade, he would not have done this as an insult. In Serbia it is an orthodox salute – a national greeting. Ms Ražnatović denied having heard chants of ‘Arkan, Arkan’ at her concerts. Rather, she said, the audience chants ‘Ceca, Ceca’. She does not consider that people associate her with her former husband. She has always maintained her individuality and pursued her career to support her children and her family. She denied that she dedicated her 2002 concert in Belgrade to her husband. She said it was held in honour of her fans.
24. Ms Ražnatović was asked about various media reports of interviews she has given in the years following her husband’s death. She said it was natural for interviewers to ask her about her husband because she had two children with him. She does not deny that there was interest in her and her husband as a couple. However, it is 10 years since his death and mostly interviewers are interested now in her career and her music. When asked specifically about what she is reported to have told interviewers, she was unable to recall what she said but denied many of the comments attributed to her and said she is often misquoted.

MARKO LOPUšINA

25. Marko Lopušina is an independent journalist who has been following Ms Ražnatović’s life and work since 1995 and has written a biography of her. He provided a statement for the Tribunal dated 5 February 2010 and gave evidence by conference telephone from Belgrade. Mr Lopušina said that in 1991 Ms Ražnatović was living in Switzerland [sic – Austria] with her boyfriend and singing in nightclubs in the area. He described her as “18 years old and a thin and skinny girl”. The woman in the Vukovar photograph carrying an AK47 does not look like a skinny 18–year-old, and the photograph is a photomontage circulated in 2007 by a Bosnian group in Sweden who were trying to stop her concerts there. Publication of the photograph caused trouble between the Bosnian group and Serbians in Sweden who denounced the photograph as a fake and instituted court proceedings over it. Ultimately, the concerts went ahead and, despite threats being made, there was no trouble. The audience included Bosnians.
26. Mr Lopušina said Ms Ražnatović’s only political involvement was as a companion to her husband Arkan. She was never a member of any political party in Serbia. She is an artist and now a world class superstar who sings songs about love which are not nationally inclined. In Mr Lopušina’s view, her songs would tend to unite people rather than to antagonise particular groups. She has fans both in the Balkans and across Europe. He has never read of any incidents at her concerts.
27. Mr Lopušina said he does not consider Ms Ražnatović to be a ‘turbo-folk’ singer. She sings pop-like music written by songwriters from across the former Yugoslavia. One of her most famous songs, ‘Belgrade’, was written by a Bosnian. Mr Lopušina said the description ‘turbo-folk’, meaning of the fast genre, is a term the use of which has declined since 2000 and is now little used in Serbia. Ms Ražnatović’s songs were never of this genre.
28. Mr Lopušina acknowledged that there was a phenomenon associated with Arkan and Ceca in the 1990s. However, the two names are no longer synonymous and Ms Ražnatović has moved on. She no longer willingly answers questions about Arkan except to say she is proud of him. She wants her children to grow up independently and not to be linked with their father.
29. Mr Lopušina said Ms Ražnatović became much more popular in Serbia in 2003 after she was released without charge. During the time of her relationship with Arkan she was not so popular. In his statement, Mr Lopušina said:

Many Bosnians, Croats, Serbs and Albanians love Svetlana Ražnatović’s songs. Her artistic performances in emigrant countries contribute to the development of multiculturalism of immigrants, their unity and integration into the life of the country domicile [sic], in this case Australia.

30. Mr Lopušina told the Tribunal that he visited Australia in 1992 and again in 2004, travelling to all capital cities.

THE SONGWRITERS

31. Marina Tucakovic and Aleksander Radulovic Futa provided a letter dated 14 February 2010. Ms Tucakovic said she has written 62 songs for Ceca; Mr Futa said he has written 21 songs for Ceca. They said these songs are not of the turbo-folk genre but rather are “pop with motif of folk and ethno melos”. The songs are about love, about the feelings of men and women, and about the passion of falling in love. They were neither inspired by war in the former Yugoslavia, nor inspired by or dedicated to “individuals and/or criminals and/or war profiteers”. The songs do not “bear national characteristics”.
32. Ms Tucakovic also wrote a separate letter dated 14 February 2010 in which she said that as the author of over 50% of Ceca’s songs, she was disappointed and offended to learn that Australian immigration authorities assessed Ms Ražnatović as a symbol of Serbian nationalism and a person who served the regime of Slobodan Milošević. Ms Tucakovic said that having worked with Ms Ražnatović since 1993, she can state that Ms Ražnatović has never been a promoter of or symbol of nationalism nor has she ever been in the service of anyone’s regime. Ms Ražnatović is a professional artist who has gained her popularity solely on her talent and good songs.

CONCERT PROMOTERS/ORGANISERS

33. Dejan Maksimovic, the general manager of Music Star Production provided a letter dated 12 November 2009 and gave evidence by conference telephone from his company’s headquarters in Belgrade. He said he organised 38 concerts for Ceca in 11 countries in Europe between April 2002 and August 2008, including in Stockholm in April 2007. He said that the concerts attracted large audiences from across different nationalities, and that neither during nor after the concerts was there a single incident recorded. He personally attended the majority of her concerts and never saw evidence of a display of nationalistic symbols.
34. Dusan Gusa, is a concert organiser and owner of a music and video shop in Liverpool, NSW, who provided a letter of support dated 10 February 2010 and gave oral evidence at the hearing. Mr Gusa is of Croatian background and, since 2000, has been organising concerts for performers from the former Yugoslavia which have been attended by Serbians, Croatians, Bosnians, Macedonians and Albanians, without there having been any problems at these concerts. He also imports, distributes and sells CDs and DVDs of performers and artists from the former Yugoslavia, and said that Ms Ražnatović’s CDs and DVDs are best sellers, with more than 30% bought by Croatians, Bosnians, Macedonians and Albanians. Mr Gusa said that, in his opinion, there would be no trouble associated with a concert tour by Ms Ražnatović in Australia. He does not consider her a political product of the Milošević regime. Her songs are about love and none of them promote Serbian nationalism, or tend to vilify or promote discord in other communities of the former Yugoslavia.
35. Mr Gusa distinguished concerts from sporting events where sometimes there are rivalries that give rise to national tensions and lead to insults and verbal abuse, as with the recent problems at the Australian Open. At concerts, members of the audience are all there for the same reason – to listen to their favourite songs or singer. There is no rivalry.
36. Mr Mundžić also provided evidence about the entertainers, musicians and singers from the Balkans whose tours he has organised, including over 100 concerts from the time he registered his company in 2001. Mr Mundžić is a Bosnian Muslim by background, born in Banja Luka, Bosnia and Herzegovina, in 1976. After being imprisoned for three months during the Balkan conflict, he fled to Italy as a refugee in 1993 and, in 1996, came to Australia. He has had extensive involvement in the Bosnian community in Sydney, including organising cultural events for the community and social occasions for young Bosnians, and managing a Bosnian radio program.
37. Mr Mundžić said that the concerts he has organised have been attended by people from all parts of the former Yugoslavia and there have never been any trouble, national insults or any similar problems. He is the first promoter in Australia to mix performers from different parts in the former Yugoslavia in the same concert, including in the “Pop Rock Marathons”, the music festivals he has organised in a number of State capitals in Australia.

THE BALKAN COMMUNITY IN AUSTRALIA

38. Pero Lazarevic, the President of the Serbian Cultural Club in Victoria, provided a letter dated 9 November 2009 stating that a concert tour by Ms Ražnatović would be supported by all the Serbian community in Victoria. In oral evidence by conference telephone from Melbourne, he said he does not believe there would be any trouble as a result of such a tour since Ceca’s concerts, while of particular interest to the Serbian community, would also attract Bosnians and Croatians. Mr Lazarevic does not associate her with the Milošević regime – she sings about love and not politics and he has never heard of any trouble at any of her concerts. The trouble that happened at the Australian Open in Melbourne could only happen with “a bunch of idiots” – “kids and teenagers” - attending sporting events. Such problems are rare. For example, last Saturday, his soccer club played a Bosnian club and they ended up singing together until 1 am.
39. Jozo Brkić, the “Manager of the Croatian Society Sydney and in the Croatian club ‘Punchbowl’”, provided a letter of support dated 15 February 2010. He said that Ms Ražnatović has many fans from the Croatian community who would attend her concerts and, in his opinion, the presence of Ms Ražnatović in Australia would not offend anyone from the Croatian community or members of other ethnic communities from the former Yugoslavia. The threat of discord only comes when there is rivalry, as is the case with sporting competitions between representatives of different communities such as in the Australian Open.
40. Miroslav Barjaktar, the President of the Serbian Community Krajina in Western Australia, Goran Pantic, the Secretary/Manager of the Serbian Cultural Club in Hoxton Park, NSW, and Gradomir Petrovic, the President of the Serbian Community Albion Park White Eagles Soccer Club all provided letters of support for a concert tour by Ms Ražnatović whose songs they praised.

THE RESPONDENT’S EVIDENCE

DR HARIZ HALILOVICH

41. Dr Halilovich is a social anthropologist, lecturer and researcher at the University of Melbourne, and weekly columnist in ‘BH Dani’ (literally ‘Bosnian-Herzegovinian Days’), a Sarejevo-based weekly political magazine. The Minister asked Dr Halilovich to prepare a report to assess whether Ms Ražnatović’s proposed visit would pose a significant risk to the Australian community or a segment of the community by reason of the grounds set out in s 501(6)(d)(iii), (iv) and (v) of the Act. He concluded:

In my opinion, based on my knowledge of Ms Ražnatović’s activities and how these activities have been perceived by members of the ex-Yugoslav ethnic diasporas in Australia (Serbs, Croats, Bosnians and Kosovar Albanians), it is indeed highly likely – if not inevitable – that if Ms Ražnatović were to enter Australia and carry out a series of concerts there would be a significant risk that she would vilify and incite discord in a segment of the Australian community. The groups that would be vilified include many Australian citizens, survivors of ‘ethnic cleansing’ from Bosnia, Croatia and Kosovo and their respective ethnic communities in Australia. This would further polarise inter-ethnic relations and cause discord between members of these communities on the one hand and members of the Serbian community on the other hand. In terms of actual numbers of people affected, this represents a significant proportion of the Australian population, some 500,000 people.

42. Dr Halilovich is originally from Srebrenica in Bosnia and Herzegovina. Mr Mundžić provided some further material relevant to Dr Halilovich’s background which, he claimed, indicates that Dr Halilovich is not a person who can provide an objective report. This material comprises three documents available on the internet. The first is an open letter to “Ljubomir” from Dr Halilovich, dated 19 January 2010, in response to Ljubomir’s article which, Dr Halilovich states, was published by (the media production house) ‘Pescanik’ on 15 January 2010. In his letter, Dr Halilovich describes how about 50 members of his family were buried in Potocari, and all together over 100 killed (by Serbian forces during the Balkan conflict), plus about 100 of his school mates, about 100 of his neighbours and about 100 people he used to meet regularly in passing. The letter is understandably emotional in tone.
43. The second document is an undated letter, but apparently from November 2004, when Dr Halilovich, “on behalf of Srebrenica Society”, wrote to SBS Television protesting at SBS World News coverage of the Serbian Orthodox Church Patriarch Pavle’s visit to Australia on 7 November 2004. The letter states that “We, survivors from Srebrenica and all Bosnians and Herzegovinians in Australia, were deeply shocked and offended” by that coverage which was “not only culturally insensitive to the Bosnian survivors of the ethnic cleansing and genocide, but also a complete misrepresentation of a person who provided ideological backing to the perpetrators of the war crimes ...”. Mr Mundžić also produced an article written by Dr Halilovich, first published on 27 November 2009 in ‘BH Dani’, entitled “Patriarch Pavle – High Priest of Hypocrisy”, about the then recently deceased Patriarch stating that he was “one of the culprits of the bloodbath in the former Yugoslavia of the 1990s”.
44. The third document is an article by an American historian Paul B Miller entitled ‘Nationalistic manipulation of genocide’ that appeared in ‘BH Dani’, no 524, published on 29 June 2007. This article is a response by Mr Miller to criticism of an earlier article by Dr Halilovich. In this response, Mr Miller states that Dr Halilovich’s perspective is clouded by his own experience and the tragedy that affected his family during the war in Bosnia-Herzegovina. Mr Miller cites examples of how Dr Halilovich has distorted the views expressed by Mr Miller in his original article.
45. Dr Halilovich gave oral evidence at the Tribunal hearing. He said he spent two months researching relevant material in preparing the report and, in his view, the material produced by Mr Mundžić referred to above, does not compromise his position - Dr Halilovich refuted any suggestion of bias. He also has Serbians in his family. Dr Halilovich said he has never been involved in any political party and is not a formal member of any social or community organisation although he has worked with the Bosnian community in Australia.
46. Dr Halilovich said Ms Ražnatović has been described by academics and journalists as the leading exponent of turbo-folk music in the Balkans. ‘Turbo-folk’ is a term coined as an ironic description – such music contains elements of folk and pop music with sexual connotations, strong hedonistic underpinnings and elements of sex, drinking and nationalism. He said that Ceca’s concerts include the exposure of naked flesh, lyrics that are ambiguous and elements of nationalism. He also referred to Ms Ražnatović’s 10-year-old son giving the Serbian nationalist three-fingered salute at her concert in Belgrade in 2007 resulting in “an explosion of nationalist ecstasy in the crowd”. He said there is an association between Ceca’s songs and strong nationalistic themes in Serbia, and different groups will attach different meanings to the words of her songs.
47. In cross-examination, Dr Halilovich agreed there are many other turbo-folk singers in Serbia. Two of those to whom he was referred have performed in Australia without there being any problem. Dr Halilovich said they are different to Ceca because of the symbolism associated with her. Mr Mundžić showed him a media report, “Ceca & Vlada in a competition for most beautiful celebrity couple” referring to Ms Ražnatović’s relationship with the model Vlada (Vladimir Cvetković). Dr Halilovich rejected the suggestion that the media may now associate Ms Ražnatović with her boyfriend Vlada.
48. Dr Halilovich said what united Mr and Ms Ražnatović was “their far right, nationalist politics”. He stated that Ms Ražnatović was at the forefront of Serbian nationalism at least two years before she met Arkan for the first time” (on 11 October 1993). In support of this statement, Dr Halilovich cited the Vukovar photograph of her carrying an AK47 and various media sources. He said the Ceca phenomenon cannot be separated from Arkan Ražnatović. Ms Ražnatović needed a strong man like Arkan to establish her persona. Her status as a dominant star in Serbia at that time was partly due to Arkan and the Milošević regime.
49. Dr Halilovich spoke about the migrant community from the former Yugoslavia in Australia compared to that in other European countries, including Sweden. He said the situation in Australia is different because of the distance of Australia from the former Yugoslavia and Australia’s policy of multiculturalism. People came to Australia from the former Yugoslavia to settle here – to start a new life and establish communities here. In Europe, it is common for people to move between countries in order to work and be able to send money home. The sort of migrant community infrastructure that is established in Australia – including churches, sporting clubs etc – is much more extensive than in other countries in Europe where there are migrants. Dr Halilovich said that, in his opinion, migrant communities from the former Yugoslavia in Europe would react differently to Ceca to those in Australia.
50. Dr Halilovich was asked about the visit to Australia by Patriarch Pavle in November 2004. Dr Halilovich agreed that there had been no violence associated with this visit but sought to distinguish Patriarch Pavle’s visit from the proposed visit by Ms Ražnatović on the basis that Patriarch Pavle was a religious figure.

DOES MS RAžNATOVIć PASS THE CHARACTER TEST?

51. The first issue for the Tribunal to determine is whether Ms Ražnatović passes the character test set out in s 501(6) of the Act. The Minister relies on the grounds set out in s 501(6)(d)(iii), (iv) and (v), namely that there is a significant risk that if she is allowed to enter or remain in Australia she will engage in conduct that will vilify a segment of the Australian community, incite discord in the community or in a segment of the community, or represent a danger to the community or a segment of the community.
52. Paragraph 7.4(2) of Direction No 41 states that the ‘significant risk’ grounds in s 501(6)(d) are enlivened if there is evidence suggesting that “there is more than a minimal or trivial likelihood”.
53. There is no definition of ‘vilify’ in the Act, Direction No 41 provides no guidance, and the Minister states that the word has not been the subject of judicial consideration. According to the Macquarie Dictionary, the ordinary meaning of ‘vilify’ is “to speak evil of; defame; traduce”. The Butterworths Concise Australian Legal Dictionary defines ‘vilification’ as “a public act of showing and inciting hatred towards, serious contempt for, or severe ridicule of, a person or group of persons”. The Minister also referred to a decision dealing with similar behaviour under the Racial Discrimination Act 1975 (Cth): Jones v Toben (2002) 71 ALD 629; [2002] FCA 1150. In her decision in that case, Branson J considered whether material posted on the internet which cast doubt on the Holocaust was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate. She discussed the meaning of the words ‘offend’, ‘insult’, ‘humiliate’ and ‘intimidate’ and concluded, at [93], that the material would more probably than not:

engender feelings of hurt and pain in the living by reason of its challenge to the deep seated belief as to the circumstances surrounding the deaths, or displacement, of their parents or grandparents. For the same reason, I am satisfied that it is more probable than not that the material would engender in Jewish Australians a sense of being treated contemptuously, disrespectfully and offensively.

THE MINISTER’S SUBMISSIONS

54. The Minister submitted that displays of Serbian nationalism at Ms Ražnatović’s concerts and public comments by Ms Ražnatović which glorify ‘Arkan’ Ražnatović or deny the trauma experienced by migrant groups in Australia, of a kind to which Dr Halilovich referred in his report, would have a similar effect and comprise racial vilification. The Minister relies on Dr Halilovich’s report and his opinion in making this submission, especially because of the particular character of the refugees in the Bosnian community who may be affected even if they do not attend one of Ms Ražnatović’s concerts.
55. With regard to the meaning of ‘inciting discord’ for the purposes of s 501(6)(d)(iv), paragraph 7.4.3(1)(d) gives the example of “advocating that particular ethnic groups should adopt political, social or religious values well outside those generally acceptable in Australian society, and which, if adopted or practised, might lead to discord ...”. The Minister refers to the ordinary meaning of ‘incite’ as being to ‘stimulate’ or ‘urge on’ and of ‘discord’ as being lack of harmony or strife (see the Macquarie Dictionary). Thus, the Minister contends, inciting discord in the community or a segment of the community means stimulating disharmony in the community which is greater than a mere difference of opinion.
56. The Minister submits that there is a significant risk that if allowed to enter Australia, Ms Ražnatović would advocate what may be perceived by Australian Croatian, Bosnian or Kosovar communities as extremist views, engage in conduct incompatible with the smooth operation of a multicultural society or stimulate or prompt disharmony in the community. The Minister relies on Dr Halilovich’s report as to Ms Ražnatović’s past Serbian nationalist conduct (for example being photographed in combat fatigues carrying an AK47 in Vukovar and supporting the nationalist policies of Slobodan Milošević) and public statements supporting Serbian nationalism, which, the Minister contends, may prompt a celebration of Serbian nationalism among her supporters in Australia and create disharmony in the other communities of the former Yugoslavia in Australia.
57. The Minister also referred the Tribunal to the email dated 15 November 2007 from Senada Softic-Telalovic, President of the Australian Council of Bosnian Herzegovina Organisations, who said that the Bosnian-Herzegovinian community and the Croatian community “will stage massive demonstrations if she [Ms Ražnatović] is allowed into our country”. The Minister said it is the perception of a person – the aura and mythology surrounding the person - that is important rather than the true facts. Ms Ražnatović is associated with Arkan and the regime of which he was a part. Many people who suffered as a result of that regime migrated to Australia. If Ms Ražnatović is allowed to come to Australia, they may feel that their experiences have been denied.
58. The Minister also submits that that there is a significant risk that Ms Ražnatović would represent a danger to a segment of the Australian community by being involved in activities that are disruptive to the community or likely to provoke violence or other harm. In Irving v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 457; (1993) 44 FCR 540, the Full Federal Court held that being involved in activities disruptive to the community means being connected with such activities by, for example, providing a focal point or occasion for them; to be disruptive means having the effect of polarising two groups of the community beyond mere disagreement or controversy by threatening, in a harmful way, the normal cohesiveness of the community or group: see Ryan J at [5] to [6].
59. The Minister contends, relying on Dr Halilovich’s opinion, that if allowed to enter Australia, Ms Ražnatović is likely to provide a focal point for displays of Serbian nationalism which could lead to confrontations between Serbian nationalists and other groups from the former Yugoslavia involving verbal taunts and gestures and possibly actual violence. Dr Halilovich’s evidence is that the diaspora of communities from the former Yugoslavia is different from that in European countries by reason of distance. The difference between Ms Ražnatović and other artists visiting Australia from the former Yugoslavia is her public profile and the fact that she supported her late husband and describes him as a patriot and hero.

MR MUNDžIć’S SUBMISSIONS

60. Mr Mundžić acknowledges that there will be some members of the community who will not be happy if Ms Ražnatović is allowed to enter Australia but submits that the evidence of her concerts across Europe is that there have never been any incidents or difficulties at her concerts.
61. Mr Mundžić noted that the Serbian tennis player Novak Djoković gave the three-fingered Serbian salute to his fans at the Australian Open in 2007, 2008, 2009 and 2010. Despite there being fights at the Open between Croatian and Serbian fans, he said it seems unlikely that Mr Djokovic will be denied a visa in the future. Mr Mundžić contended that there is a difference between sporting events such as the Australian Open and concerts given by Ms Ražnatović. With sporting events, there is a competitive element and national symbols are displayed. The ethnic rivalry at the Australian Open is not confined to Croatian and Serbian fans. At the 2010 Open, 35 Chilean fans were ejected. With Ms Ražnatović’s concerts, there are no flags or national symbols evident in her audiences and there has never been any trouble at her concerts. If Ms Ražnatović were to use nationalist symbols, she is likely to lose at least 30% of her fans. Posters advertising her concerts have no national symbols, and she is supported by international companies such as Volkswagen.
62. Mr Mundžić said although he has not publicised the possibility of Ms Ražnatović performing in Australia, a few of her fans discovered this and opened a Facebook site. Mr Mundžić said he had nothing to do with this. Over 3,000 fans have now signed on this site in support of Ms Ražnatović’s tour, including another 110 fans in the last 24 hours (before the hearing). Mr Mundžić said there are a lot of Bosnians and Croatians among those who have signed. With regard to Ms Softic-Telalovic’s letter of complaint, Mr Mundžić noted that she is not a representative of the Croatian community, and referred the Tribunal to the letter of support from Mr Brkić who said that Ms Ražnatović has many Croatian fans who would attend her concerts.
63. Mr Mundžić contended that Ms Ražnatović is not an exponent of turbo-folk music. The fact that she displays some bare flesh on stage is in line with other stars around the world such as Beyoncé, Britney Spears, Madonna and Pink. Indeed, the photographs of those stars which Mr Mundžić produced indicate that Ms Ražnatović’s dress is relatively demure by comparison with what Mr Mundžić described as the “underwear” some of these other stars wear on stage. He said there is no evidence of Ms Ražnatović ever using the three-fingered salute on stage. The salute dates from the fourteenth century when it was a Serbian Orthodox salute representing the trinity. (According to the Wikipedia entry to which Mr Mundžić referred, its use was revived during the Balkan conflict, but Slobodan Milošević, his party comrades and supporters did not use the salute. It was instead used by demonstrators in the events leading to the ousting of Slobodan Milošević. It is now used by Serbian sporting stars and fans celebrating sporting wins. However, it is often perceived as provocative if used to Croatians, Bosnians or Albanians.)
64. Mr Mundžić said if one examines photographs of Ms Ražnatović’s concerts, 70% of the audience is 17- or 18-year-olds who would not remember the Balkan conflict. With regard to Ms Ražnatović’s songs, Mr Mundžić denied that any are nationalistic, and said that none of her songs are dedicated to anybody. He referred the Tribunal to the letters from the two songwriters who, he said, have written over 70% of her songs. Mr Mundžić also noted that Ms Ražnatović had been invited to perform Serbia’s entry for the 2009 Eurovision Song Contest (which she declined in favour of someone younger). He said this would not have happened if Ms Ražnatović was still associated with the Milošević regime. Moreover, anyone reading newspapers from the former Yugoslavia (Mr Mundžić said he has a shop where he sells such newspapers) would know that Ms Ražnatović has been in a new relationship (with the model Vlada) for the past three or four years.
65. Mr Mundžić said that much of the evidence relied on by Dr Halilovich is media reports, many from 10 or 15 years ago. It is well known that the photo of Ms Ražnatović carrying an AK47 is a fake. Mr Mundžić referred the Tribunal to a report prepared by IREX, an independent non-profit organisation which published a Media Sustainability Index 2006/2007 (MSI), ‘The Development of Sustainable Media in Europe and Eurasia’. The report for Serbia accords ‘Professional Journalism’ a rating of 1.88 out of 4. The report refers to “aggressive ‘tabloid’ journalism”, and to the lack of education and professionalism of many journalists:

MSI panelists unanimously agreed that reporting generally is not fair, objective, or sourced on relevant information. “Serbian editorial offices are full of journalists of doubtful moral credibility, so objective reporting we could recognise only when mentioning a small number of real professionals,” said Goran Vladovic, editor-in-chief of OK Radio in Vranje.

66. Mr Mundžić noted that there is no reliable evidence that Ms Ražnatović is the subject of any criminal investigation in Serbia in relation to the Obilić Football Club. He referred to a certificate provided by the Serbian Ministry of Interior dated 12 February 2010 which confirms that she “has no criminal records according to official penalty records of this police administration”.

THE TRIBUNAL’S VIEW

67. The Tribunal is not satisfied that there is sufficient evidence to support the Minister’s contention that if Ms Ražnatović performs concerts in Australia this will lead to ‘trouble’ between different groups from the former Yugoslavia. The uncontradicted evidence provided by Mr Mundžić – that of Ms Ražnatović, Mr Lopušina and Mr Maksimovic (who organised 38 of Ceca’s concerts in 11 European countries between April 2002 and August 2008) - is that there have never been any problems in any of Ceca’s concerts held in Europe, including in countries such as Sweden where there appears to be a broad spectrum of migrants from the former Yugoslavia. While Dr Halilovich said that in his view the migrant communities in Sweden are different from those in Australia, the evidence provided by Mr Mundžić from members of the relevant migrant communities in Australia indicates that despite likely disapproval of a tour by Ceca by a segment of the Croatian community, there is, nevertheless, support not only from the Serbian community but also from segments of the Bosnian-Herzegovinian and Croatian communities.
68. The evidence presented by Mr Mundžić suggests that the label ‘turbo-folk’ is not applicable to Ms Ražnatović as a singer: Ms Ražnatović strongly denies that her songs are turbo-folk, as do her two songwriters and Mr Lopušina, the journalist who wrote her biography. Nevertheless, in the Tribunal’s view, the relevant issue is how she is perceived and whether she is associated with her late husband Arkan and his nationalist politics and the crimes for which he was indicted by the ICTY.
69. In our view, the evidence indicates that Ms Ražnatović was associated with Arkan during the time of their marriage and in the period immediately following his death. However, it is now 10 years since his death. Moreover, we note that Ms Ražnatović does not appear to have achieved ‘superstar’ status until, at earliest, 2002, when 100,000 people attended her concert in Belgrade. Mr Maksimovic’s evidence suggests that it is in the period since then that her appeal across Europe has broadened, with her giving concerts in Austria, Germany, Sweden, France, Switzerland, Bulgaria and Slovenia as well as concerts in Serbia, Bosnia, Montenegro and Macedonia. The Tribunal is not satisfied that Ms Ražnatović’s success in recent years is connected with her having in the past been associated with her late husband.
70. Mr Mundžić said that much of the evidence relied on by Dr Halilovich is media reports, many from 10 or 15 years ago, and questioned the accuracy of some media reports given the Serbian media’s poor reputation. While not many of Dr Halilovich’s sources are quite of that vintage, we note that some of the media sources he relied on with respect specifically to Ms Ražnatović are now quite dated, being from the period 2001 to 2004. For example, Dr Halilovich’s comment at paragraph 51 of his report relies on a quotation from a book by Zorana Papic published in 2002 stating that Ms Ražnatović “belongs to a new political order of nationalism”. Ms Ražnatović strongly denied that she has any political association and her biographer, Mr Lopušina, said in evidence that her only political involvement was as a companion to her husband. We also note the evidence of Ms Ražnatović, Mr Lopušina and Mr Mundžić that the photograph of Ms Ražnatović carrying an AK47 is a fake. Certainly, to the untrained observer, the photograph does not look like “a skinny 18-year-old”, as Mr Lopušina described her in 1991, when she was living in Austria with her Muslim boyfriend, several years before she first met Arkan. The Tribunal is not, therefore, satisfied that the sources relied upon by Dr Halilovich present an accurate picture of how Ms Ražnatović is now perceived.
71. The Tribunal acknowledges Dr Halilovich’s qualifications and experience as a social anthropologist with a specific interest in the Balkans conflict and the communities of the former Yugoslavia. We also recognise that his report prepared for the Minister for these proceedings was carefully researched and relied on an extensive range of sources. However, his approach to some of the material such as the photograph alleged to show Ms Ražnatović carrying an AK47 in Vukovar in 1991, and to some of the now dated media reports to which he had access and on which he relied, together with his writings to which Mr Mundžić referred, and which are outlined above, do, in our view, suggest that Dr Halilovich’s perspective is coloured by his experiences and, indeed, by the tragedy that affected his family and friends in Srebrenica - as Paul B Miller pointed out in his June 2007 article in ‘BH Dani’.
72. That Dr Halilovich’s perspective is so coloured is, in our view, also supported by the tenor of his report and of his evidence at the hearing that did not address whether Ms Ražnatović’s concerts in Europe have resulted in any problems, and did not consider whether there might be a distinction between nationalist rivalries at competitive sporting events and cultural events which have a broader appeal. In the Tribunal’s opinion, this is a distinction that needs to be carefully considered. The only evidence of trouble between the different migrant communities of the former Yugoslavia has been at competitive sporting events, and there is no evidence that such trouble is reflective of what might happen at cultural events. We note that at the 2010 Australian Open there was similar trouble involving Chilean fans.
73. We are not satisfied that Dr Halilovich’s statement at paragraph 44 of his report is well founded. He states:

While these incidents [referring to violent incidents at the Australian Open and other unspecified violent incidents] of ethnically motivated violence in ex Yugoslav communities need to be taken seriously, they appear quite minor and insignificant if compared with what a concert of Mrs Ražnatović could trigger. It is to be expected that any concert by Mrs Ražnatović in Australia would replicate the scenes from other concerts which regularly turn into Serb nationalistic rallies.

74. The other evidence before us suggests otherwise. Having heard from Mr Mundžić’s witnesses and read the statements of support referred to earlier, we are not satisfied that there is a significant risk of ethnically motivated violence of the kind Dr Halilovich suggests. There is no evidence before the Tribunal of there being any trouble between fans at any of Ms Ražnatović’s concerts. For example, Dr Halilovich relies on an email from Ms Softic-Telalovic dated 15 November 2007, quoted above. This refers to Ms Ražnatović as still being under investigation, which she strongly denies, to her having a criminal record, of which there is clear evidence to the contrary, of Ms Ražnatović’s name being with the Hague Tribunal, of which there is no evidence, and to her being until recently under house arrest. We are satisfied that Ms Ražnatović was released from detention (which was in connection with the investigation of the financial transactions of the Obilić Football Club) in June 2003 without ever being charged.
75. Ms Softic-Telalovic is President of the Australia Council of Bosnian Herzegovinian Organisations. Mr Mundžić noted that she does not represent the Croatian community and referred to Mr Brkić’s statement that Ms Ražnatović has many fans in the Croatian community, which is supported by the evidence of both Mr Gusa, who is of Croatian background, and Mr Mundžić. Mr Mundžić’s evidence also establishes that Ms Ražnatović has fans in the Bosnian-Herzegovinian community, of which he is a part. We also note that since 2002, Ms Ražnatović has performed in concerts in Bosnia-Herzegovina, Montenegro and the former Yugoslav Republic of Macedonia.
76. With regard to the suggestion that Ms Ražnatović may stir up nationalistic sentiment by, for example, using the three-fingered salute, there is no evidence that she has ever given such a salute at any concert, nor do her songs, which are largely about love and relationships, suggest, at least in the English translation provided to the Tribunal, any nationalistic leanings. Moreover, the two songwriters responsible for more than 70% of her songs have strongly denied such connotations.
77. The Tribunal also notes paragraph 7.4.3(2) of Direction No 41: a statement that the operation of s 501(6)(d)(iii), (iv), and (v) of the Act “must be balanced against Australia’s well established tradition of free expression”, and that these grounds are not intended to provide a charter for denying entry to persons merely because they hold unpopular opinions even if these opinions may attract strong disagreement and condemnation from some elements of the Australian community.
78. The Tribunal concludes there is insufficient evidence to satisfy us that in the event that Ms Ražnatović is allowed to enter Australia there is a significant risk that she would vilify a segment of the Australian community, incite discord in the community or represent a danger to the community in the terms of s 501(6)(d)(iii), (iv) or (v) of the Act. While there are some in the Australian community or a segment of the community who disapprove strongly of Ms Ražnatović by reason of her past association with Arkan Ražnatović, the likelihood of vilification, discord or danger to the community is, in the Tribunal’s view, minimal having regard to the evidence discussed above. Thus, the evidence before us does not support a finding on the above grounds that Ms Ražnatović does not pass the character test.
79. The Tribunal therefore sets aside the decision under review and substitutes a decision that Ms Ražnatović be granted a Cultural/Social (Temporary) (Subclass 42) visa to enable her to perform a series of concerts in Australia.
80. The Tribunal notes that even if we were to find that Ms Ražnatović does not pass the character test, we would exercise the s 501(1) discretion in her favour to not refuse the grant of a visa. Of the primary considerations set out in paragraph 10(1) of Direction No 41 (see above), the only relevant consideration in Ms Ražnatović’s case is the protection of the Australian community. The other three primary considerations are not relevant here: Ms Ražnatović has not resided in Australia and, while she has two children, her application is for a temporary visa to enable her to perform in Australia and her solicitor has stated that she does not intend to bring her children with her to Australia. There are no other international obligations relevant to Ms Ražnatović’s application.
81. The relevant factors to be considered when assessing the risk of harm to the Australian community are the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated. Ms Ražnatović has no convictions and there is no evidence that she been charged with any offences. The only relevant conduct appears to be that arising out of her alleged association with Serbian nationalism and her association with her former husband Arkan. The Tribunal has said above that there is insufficient evidence to satisfy us that in the event that Ms Ražnatović is allowed to enter Australia there is a significant risk that she would vilify a segment of the Australian community, incite discord in the community or represent a danger to the community in the terms of s 501(6)(d)(iii), (iv) or (v) of the Act. In our view, Ms Ražnatović’s presence in Australia for the purpose of performing a concert tour does not represent a significant risk to the Australian community.
82. As noted above, Direction No 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations. We note that the only relevant other consideration identified by the Minister is the fact that Ms Ražnatović was refused a visa in 2005. However, this was not a case of a person being warned about their conduct bringing them within the deportation provisions of the Act which, it appears, is the intended focus of this consideration. In our view, this is not, therefore, a relevant consideration in this case.
83. In summary, neither the primary nor the other considerations weigh against the exercise of the s 501(1) discretion in Ms Ražnatović’s favour and, in our view, having heard her evidence and with the benefit of Mr Mundžić’s other evidence, discussed above, the discretion would be exercised in her favour.

DECISION

84. The Tribunal sets aside the decision under review and substitutes a decision that Ms Ražnatović be granted a Cultural/Social (Temporary) (Subclass 42) visa to enable her to perform a series of concerts in Australia.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President and Ms G Ettinger, Senior Member.

Signed: ........[sgd]...................................................................

Associate

Dates of Hearing: 5 and 6 May 2010

Date of Decision: 31 May 2010

Applicant representative: Self-represented

Respondent representative: Ms A Linacre, Clayton Utz