Absorbed person visa cancellation win in the AAT
Here are the facts in Stevanovic and Minister for Immigration and Citizenship  AATA 1427 (14 June 2007):
- Mr Stevanovic was born in France on 8 January 1966. His parents were from Serbia, in the former Republic of Yugoslavia. Mr Stevanovic migrated to Australia with his family in 1968 aged two and a half years. He has not left Australia since his arrival.
- In about 1990, Mr Stevanovic entered into a de-facto relationship with his then partner and they began a family together, having two daughters. The eldest is now aged 15 and the youngest 13 years. That relationship ended in 1995. Mr Stevanovic has not lived with his children since that time although he has maintained contact with them.
- Mr Stevanovic then entered into a second relationship with the mother of the child against whom he later committed the criminal acts which precipitated the cancellation of his visa.
- Between 1999 and May 2001 Mr Stevanovic committed four acts of incest and four acts of indecency with his then de-facto partner’s daughter. She was aged between 12 and 14 years at the time the offences were committed. The victim was mildly intellectually disabled.
He volunteered himself to the police was charged and convicted and sentenced to 3 yeas imprisonment. He completed the sex offenders program.
The AAT referred to the Commonwealth Ombudsman’s report of February 2006, where he said:
- 7 The quality of DIMA’S administration of s 501 cases could be significantly enhanced if the recommendations outlined above are accepted and implemented.
- 8 Even if this were to occur, there is a remaining issue to do with fairness and reasonableness of the extensive application s 501 to long-term permanent residents. This concern is the more acute in cases where s 501 has been used in circumstances where s 201 could not be used. It is ultimately for the Minister to decide when s 501 is to be used, but it is nevertheless appropriate in this report to question whether s 501 should be applied to a person who meets the following criteria:
- arrived in Australia as minor and spent his or her formative years in Australia
- has effectively been absorbed into the Australian community, using criteria similar to those considered in relations to s 34
- has strong ties – particularly strong family ties – to the Australian community
- has no ties with the likely receiving country and return there would impose hardship in terms of language, culture, education and employment
- has family members in Australia who would face hardship as a result of the visa holder’s separation from them
- could not be removed under s 200 criminal deportation provisions
- would not constitute a significant risk to the Australian community if released from detention.
The AAT concluded:
It is reasonably apparent from the evidence that all of the above criteria, recognised by the Commonwealth Ombudsman, apply to Mr Stevanovic. Therefore, it is my opinion that the Australian community would not expect Mr Stevanovic to be removed from Australia.
- Although the offences of which Mr Stevanovic was convicted are of a serious nature and would be regarded as abhorrent by fair-minded members of the Australian community, the risk of Mr Stevanovic repeating this conduct is relatively low. He voluntarily surrendered to the police after committing the offences and he made admissions to the police in the course of his interview. He also pleaded guilty to all counts and he was contrite and remorseful. He expressed to the police that he did not want any mercy and that he should be appropriately punished.
- A psychiatrist and a psychologist who prepared reports for the sentencing Judge said that Mr Stevanovic could not be described as a paedophile. They were also of the view that his prognosis was more favourable than is often the situation. I have no doubt that the prognosis is now reinforced as Mr Stevanovic has married and quite clearly has taken responsibility for his stepson.
- I do not hold the view that visa cancellation would significantly act as a deterrent to the commission of like offences by other persons. There are complex psychological factors involved, both static and dynamic, which predispose people to criminal sexual conduct.
- Mr Stevanovic’s long period of residence in Australia and the fact that he has never been to Serbia, where it is likely he would be sent if he were removed from Australia, leads me to the view that it is unlikely that the Australian community would expect Mr Stevanovic to be removed.
- The final primary consideration is that of the three children. It is clear to me that their best interests would be served if Mr Stevanovic remains in Australia.