Adikarta and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1071
•28 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1071
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1486
GENERAL ADMINISTRATIVE DIVISION ) Re OSTBILL ADIKARTA Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr M. A. Griffin, Member Date 28 October 2005
Place Sydney
Decision The decision under review is affirmed. [SGD] M. A. Griffin Member
CATCHWORDS
IMMIGRATION – refusal to grant contributory parent (CA-143) visa - remained in Australia unlawfully – false and misleading declaration in connection with application for the grant of a visa – Visa Applicant is a person not of good character - discretion considered – blatant disregard of terms or conditions of visa is very serious – expectations of Australian community visa not be granted – deterrent effect – no measurable hardship to children – decision affirmed
Migration Act 1958 ss. 234, 235, 501
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648
Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766
Re McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805
Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
REASONS FOR DECISION
28 October 2005 Mr M. A. Griffin, Member 1. Mr Ostbill Adikarta (“the Applicant”) seeks review by this Tribunal of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”). The delegate refused to grant to the Applicant’s father, Mr Sanusi Adikarta (“the Visa Applicant”), a contributory parent (CA-143) visa. The refusal decision was made on the ground that Mr Sanusi Adikarta did not pass the character test pursuant to section 501 of the Migration Act 1958 (“the Act”). The discretion available to the Respondent was not exercised in the Visa Applicant’s favour.
the issues
2. The primary issues for determination in this application are:
· Whether the Visa Applicant passes the character test as defined by section 501(6) of the Act;
· If the Visa Applicant does not pass the character test whether or not the Tribunal should exercise its discretion to refuse his application for a contributory parent (CA-143) visa pursuant to section 501(1) of the Act.
the hearing
3. At the hearing of the application for review, the Applicant was represented by Ms O’Hanlon, solicitor, and the Respondent by Ms Quinn, solicitor of Phillips Fox.
4. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T16) and documents exhibited as A1-A8 for the Applicant.
5. The Applicant and his two brothers gave oral evidence in person. His father gave evidence by telephone with the assistance of an interpreter.
legislation and direction
6. The relevant statutory provisions are:
“MIGRATION ACT 1958
SECT 234
False papers etc.
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
…
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
SECT 235
Offences in relation to work
(1) If:
(a) the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work that the non-citizen may do in Australia; and
(b) the non-citizen contravenes that condition;
the non-citizen commits an offence against this section.
…
(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.
…
SECT 501 Refusal or cancellation of visa on character grounds
…
(1)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.
…
(6)For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
The person is not of good character…
…”
7. The words “good character”” as used in section 501 of the Act “should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion” (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431).
8. It is not necessary for there to be a continuance of the instance of general conduct. It is sufficient if instances of general conduct be displayed but once or twice, thereby laying the “character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).
9. Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Ministerial Direction”) sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test. One factor to be taken into account is whether the Visa Applicant has shown contempt or disregard for the law including Immigration Law (para 1.9(a) and (b)). Thus paragraph 1.9(b) requires consideration to be given to :
“Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.”
10. If the Tribunal is not satisfied that the Visa Applicant passes the character test the issue for determination, as already indicated above, is whether the decision of the Respondent’s delegate be affirmed or set aside by exercise of the residual discretion under section 501(1) of the Act. In making this determination the Tribunal is to have regard to the Ministerial Direction and, as here relevant, to the following provisions:
“PART 2 – EXERCISING THE DISCRETION
2.1If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…”
11. The three primary considerations that must be taken into account by decision-makers are the protection of the Australian community and members of it, the expectations of the Australian community, and in all cases involving a parental relationship between the person under consideration and a child or children, the best interests of the child or children.
12. With reference to the protection of the Australian community, the Ministerial Direction provides that the factors relevant to an assessment of the level of risk to the community of a non-citizen entering or continuing their stay include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism, and whether visa refusal may prevent or discourage similar conduct. The Ministerial Direction in this regard makes specific reference to offences relating to the making of false or misleading statements in connection with entry or stay in Australia as being considered to be very serious. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.
13. The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648; Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766 and Re McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805). It is important to note the emphasis placed on “the observance of truth”. It is conceivable that false information may be provided without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing information to determine whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage.
14. The Ministerial Direction reads:
“2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
a. The seriousness and nature of the conduct2.6…
…
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
...
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
…
(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect.
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.
…
Other considerations
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
…
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
…
(h) any evidence of rehabilitation and any recent good conduct;
…”
factual situation and findings of fact
15. The Visa Applicant is a 52 year old Indonesian citizen. He is married. His wife resides with him in Indonesia. He has three adult sons and one infant grandchild, all of whom reside in Australia.
16. The Visa Applicant first came to Australia on 1 May 1982, to visit his brother. He came alone. He arrived on a two week visitor’s visa and stayed unlawfully after it expired. On 30 December 1985 his wife and family joined him in Australia. They remained unlawfully in Australia after their entry permits expired on 25 January 1986. He did not leave Australia until he was removed by the Immigration authorities on 24 October 2002.
17. In February 1990, the Visa Applicant applied for an Extended Eligibility Temporary Entry Permit (EETEP). The application was refused on 10 August 1990.
18. On 24 July 1991, the Visa Applicant lodged an application for a Refugee protection visa. The application was refused on 27 March 1992. That decision was affirmed by the Refugee Review Tribunal (“the RRT”) on 1 March 2000.
19. The Applicant’s brothers were granted permanent visas as a result of their unlawful stay during their formative years in 1996. The Applicant who is the youngest of the three brothers was granted a similar visa in 1999. All three have since acquired Australian citizenship.
20. On 20 April 2000, the Visa Applicant’s wife applied for a Refugee protection visa. The application was refused and that decision was subsequently affirmed by the RRT on 13 June 2001.
21. On 14 June 2002 the Visa Applicant was granted a Bridging visa for the purpose of making arrangements to depart Australia. On 17 June 2002 the Visa Applicant was detained because he had failed to make arrangements to depart. He was removed from Australia on 24 October 2002.
22. The Visa Applicant admitted that he overstayed his visitor’s visa but said that he did not know what he had to do to legalise his stay. He said he was seeking a better future in Australia. He said he thought about making his stay legal but could not afford legal advice. The Visa Applicant admitted that while in Australia he worked unlawfully in a variety of jobs, but said he had to support his wife and three children. He said he used the income from this unlawful work to pay for his family to join him. He was asked why he did not use that money to legalise his own stay. He said he had been separated from his family for too long (3 years 7 months) and wanted to get them here first and get legal advice later.
23. The Visa Applicant was asked why he did not attempt to legalise his stay until 1990. He said “…I was the only one that supported the children, and it is just a matter of financial means. And at the time I was so confused at how to legalise my stay and how to contact a solicitor, and also the fear of being rejected by Immigration” (transcript page 15).
24. The Visa Applicant was then questioned about his dealings with the Immigration Department and his application for Refugee protection. The transcript of the proceedings records the following exchanges at pages 16 - 18:
MS QUINN: Did you ever consider telephoning the Immigration Department and asking them what you should do?
THE INTERPRETER: It wasn’t possible, because at the time I was very scared.
MS QUINN: Is it true to say that you were aware that if you had applied for a visa during that period, you might have been refused and might have had to return to Indonesia?
THE INTERPRETER: I didn’t fully realise at the time, but I was scared.
MS QUINN: What exactly were you scared of?
THE WITNESS: ..... because I didn’t have anything in Indonesia.
MS QUINN: So is it correct that the reason you did not apply for a visa during that period was because you did not want to return to Indonesia?
THE INTERPRETER: Yes, that’s correct - because I was scared.
MS QUINN: Were you aware that you were breaking Australian laws by remaining in Australia unlawfully?
THE INTERPRETER: Yes, I realised that. Yes, because I was scared of the Immigration.
MS QUINN: And after 1990, when you first applied for a visa, is it true that you applied for a protection visa at some stage?
THE INTERPRETER: That’s true, because at the time I didn’t know.
MR GRIFFIN: I beg your pardon?
THE INTERPRETER: Because at the time I didn’t know. It was all the solicitor’s suggestion. I mean it was the migration agent.
MS QUINN: Were you aware that by applying for a protection visa, you were claiming to be a refugee?
THE WITNESS: Yes, later on after that, when I got rejected by Immigration.
MS QUINN: Did you appeal that decision?
THE WITNESS: Yes.
MS QUINN: Did you realise when you appealed that you were claiming to be a refugee?
THE WITNESS: Yes.
MS QUINN: Did you consider yourself to be a refugee?
THE INTERPRETER: Really I wasn’t a refugee, but because it was the suggestion of the solicitor, and I just followed him.
MS QUINN: In 2002, is it true that you were granted a bridging visa on the basis you would be departing Australia within a few days?
THE INTERPRETER: Yes.
MS QUINN: Were you aware when you were granted that visa that you would need to depart Australia as soon as possible?
THE INTERPRETER: Yes.
MS QUINN: Why didn’t you depart?
THE INTERPRETER: Because at the time even if I go home I was still scared about what I would face - what difficulties I would face in Indonesia.
MS QUINN: Were you aware that if you didn’t depart voluntarily there was a good chance that the Australian Government would remove you forcibly?
THE INTERPRETER: At that time I didn’t think about that and at that time, to be honest, I was looking - I was still trying to look for a solicitor.
MS QUINN: When you were granted the bridging visa did you tell the Department of Immigration that you would be leaving within a few days?
THE INTERPRETER: Yes.
25. The Visa Applicant and his wife are living with members of her family in Indonesia, periodically moving from house to house. The Visa Applicant has been unable to secure employment. He said he has tried for 6 or 7 jobs but his age and lack of qualifications make it difficult. He said he relies upon the generosity of family and money sent to him by his sons.
26. The Visa Applicant and his wife miss their three sons and their grandchild. The sons are all adults and are working. The Applicant and his brother Steven are single and live in their own home together. Their brother, Eric, is married and lives with his wife and his daughter who is 2 years of age.
27. In October 2004 Eric visited his parents in Indonesia to show them their grandchild. Eric and his wife are saving to buy a home and he does not think he will be able to afford to visit his parents again in Indonesia for some time. Eric says that his mother could look after the child and enable his wife to work if they were granted a visa. He says this would reduce the financial pressure on him. He says his daughter was very happy in the company of his parents during his visit to them in October 2004. He says he misses his parents very much and his daughter will be deprived of the opportunity to have a close relationship with her grandparents.
28. Steven Adikarta has a good job with good prospects. He sends money to his father regularly and puts all his remaining money into the house mortgage. When asked about saving up to visit his parents, he said it depended on his other priorities. He said it depends if he really misses them and that he had other things that he wanted to use the money for.
29. The Applicant also sends money to his parents and puts most of his income towards the house mortgage. He said he cannot save money in these circumstances and is looking for a second job so that he can visit his parents. He said that he missed his family social life. He said when his parents were in Australia the family would get together each week. He said both his parents were members of a church in Australia and his father did voluntary work for the church, working on the sound system and participating in other church activities. A letter from the church Pastor was tendered in evidence, confirming the attendance of the family at the church, their regular participation in church activities and their “positive attitude and good characters”.
Character
30. The Visa Applicant knowingly stayed unlawfully in Australia after his 2 weeks visitor’s visa expired. He remained unlawfully for a further 7 years and 9 months. During this time he worked unlawfully and used the money earned to bring his family to Australia. After his first attempt to legalise his stay was refused, he applied for Refugee protection, knowing that he was not in fact a refugee. He obtained a Bridging visa but did not make arrangements to depart.
31. The Visa Applicant has given various reasons for these breaches of the law. Initially he stated the sole reason for overstaying and working illegally was “solely for the benefit of my family”. He also said “I stayed…illegally because my three children were growing accustomed to Australian life”. He said he could not afford legal advice. He said he relied upon the migration agent’s advice in submitting the refugee application. However, he admitted he knew was not a refugee when the appeal against the refusal decision was lodged. He also admitted that he had no intention of departing Australia when he was given a bridging visa for the specific purpose of making travel arrangements to depart.
32. As has been said in many a decision of the Tribunal, it is not in aid of advancing the case of an applicant for a visa for that person to say that the false representations were made by another and he or she was not aware of the details. An applicant must usually take responsibility for acts of an agent even if the applicant was not aware of the conduct of and representations made by the agent. As was said in Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022 at paragraph 73:
“…a person cannot avoid his or her obligations to answer questions accurately and truthfully in immigration applications by merely asserting that reliance was placed upon someone else to provide this information and it is they who should be held solely responsible for any deficiencies. There are obviously varying degrees of inaccuracy and untruthfulness in the information that may appear in particular applications, but where an applicant simply signs a blank form and then leaves it to someone like a migration agent, lawyer or friend to fill in the details this would seem on the face of it to amount to reckless conduct. It is also conduct which would fit within the definition of being knowingly involved in the making of any subsequent false or misleading statement contained in such an application, even though it was not completed in person by the applicant. To hold otherwise would be to render largely purposeless much of the processing of immigration applications.”
33. This assumption of responsibility for the acts of another extends to situations where the applicant had an intention to mislead the Respondent or where the applicant was prepared to allow another to do or say or write such things as were considered necessary to achieve a result to which the applicant was knowingly not entitled. I am satisfied that the Visa Applicant was fully aware that the application to the RRT contained a false or misleading statement as to his claims to be a refugee. I am also satisfied that the Visa Applicant intentionally misled the Respondent in connection with the Bridging visa process.
34. There is no issue in this matter that the Visa Applicant overstayed his visa and remained illegally in Australia. There is no issue that he obtained employment when he was not entitled to do so. I am satisfied that in remaining in Australia he intended to commit an offence. I am satisfied that he knew he was not entitled to work. I find that he deliberately disregarded the law. I find that he deliberately committed serious breaches of the immigration law.
35. I consider that the conduct of the Visa Applicant displays a deficiency in his moral qualities. He should, as was submitted on behalf of the Respondent, have contacted an officer of the Respondent and endeavoured to regularise his migration status as soon as possible. He did not do so. On the contrary, he set about bringing his family to join him and they too remained unlawfully. His children subsequently benefited by obtaining Australian citizenship. The Visa Applicant now seeks to benefit from his own unlawful conduct and gain residence in Australia.
36. I find that the Visa Applicant is a person not of good character. His character is “so deficient as to show it is for the public good to refuse entry” (Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324).
Discretion
37. Being satisfied that the Visa Applicant is, within the meaning of the Act, a person not of good character, I am required pursuant to the Ministerial Direction to give appropriate weight to the primary and other considerations there enumerated. Having done so I am then required to exercise my discretion as to the refusal or otherwise of a visa being mindful of the result of the weighing exercise.
38. The considerations so relevant have been earlier detailed.
39. Overstaying a visa may not be an offence but in my mind it is a serious matter, especially where as in the present case, the conduct was deliberate. As was discussed in Re Ayaad and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 935, Australia as a sovereign country has the right to admit onto its land such persons as it considers warrant entry. The entry is to be subject to such terms and conditions as it decrees. Conduct contrary to any such term or condition can be serious. Blatant disregard of such a term or condition, as was the case with the Visa Applicant, is very serious.
40. Each of the acts or commissions referred to in paragraph 2.6 of the Ministerial Direction is “serious” and to be considered so. It is the circumstances in which act/s was/were committed and the gravity of the specific conduct that will determine the consequence. In this instance the misconduct of the Visa Applicant was committed knowingly, deliberately and to achieve for him and his family an advantage to which he and they was/were not entitled. The Visa Applicant never had the intent of staying in Australia for only a limited period of time.
41. The Australian community is entitled to be protected from the behaviour of such who would breach the Australian laws where it suits them to do so. The Visa Applicant falls into this category. It is suggested that his improper conduct related only to his contact with the Respondent. There is also evidence of his good conduct through involvement in church activities. This may be so, but he has displayed a propensity to act regardless of the law. The Australian community is entitled to be protected against such a person. He poses a risk to the community. He may well choose to break other laws to gain advantage, such as social security and other beneficial legislation. Having in mind the duration of his conduct and his involvement of others in it, the Tribunal cannot be satisfied that he would not again act regardless of the law.
42. There are many people who would like to live in Australia. If the facts of this matter were known to such people and they realised that conduct the like of that engaged in by the Visa Applicant was such as to preclude a visa being granted, then prospective immigrants might well be conscious of the need to be honest and forthcoming with the Respondent and not seek to mislead and misrepresent a situation. The Australian community, being fully informed of the above factual situation, would not expect a visa to be granted. It would be seen in effect as representing a reward for successfully evading the law.
43. The Applicant and his brothers are not now children within the meaning of the Ministerial Direction. They are financially independent and are making their own lives. They are able to travel to Indonesia and visit their parents, albeit with lengthy periods of separation. Any hardship they might experience is to be seen in light of their current situation. I do not consider on the evidence before the Tribunal that the refusal of a visa to their father would cause a measurable hardship to the children.
44. I accept that the interests of the grandchild are not best served by separation from her grandparents. However, taking account of her age, her presence with a large extended family in Australia and the limited relationship she has had with the Visa Applicant and his wife, I am satisfied that her interests do not outweigh the primary considerations.
45. As to the circumstances of the Visa Applicant and his wife in Indonesia, I note that they have the support and assistance of Mrs Adikarta’s family and financial help from their children in Australia. I accept they will experience some hardship but on the evidence I am satisfied this does not outweigh the primary considerations.
46. I am satisfied that the primary considerations in this matter outweigh other relevant considerations.
47. Accordingly, the decision under review is affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M. A. Griffin, Member
Signed: A. Garcia .....................................................................................
Associate
Dates of Hearing 5 & 6 July 2005
Date of Decision 28 October 2005
Solicitor for the Applicant Ms U. O’HanlonSolicitor for the Respondent Ms T. Quinn
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