Dalenga Todorova and Minister for Home Affairs (Migration)

Dalenga Todorova and Minister for Home Affairs (Migration) [2019] AATA 6009 (16 December 2019)
Division:GENERAL DIVISION
File Number: 2018/5474
Re:Marija Dalenga Todorova
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:16 December 2019
Date of written reasons: 24 January 2020
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides not to refuse the visa applicant a Partner (Subclass 309) visa under section 501(1) of the Act.
...........................[sgd].............................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – visa refusal – serious criminal offending – failure to pass the character test – Ministerial Direction 79 – primary considerations – other considerations – decision set aside
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs
HZCP v Minister for Immigration and Border Protection [2018] at [78]
Minister for Immigration and Multicultural Affairs v SRT [1999 F CA 1197 at [40]
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
YNQY v Minister for Immigration and Border Protection
Secondary Materials
Direction No. 79 - Migration Act 1958 - Direction under Section 499 Visa Refusal and Cancellation under S501 and Revocation of a Mandatory Cancellation of a Visa under S501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
24 January 2020
INTRODUCTION
This is an application for review of a decision to refuse Mr Georgi Todorov (the visa applicant) a Partner (Provisional) (Subclass 309) visa (the “visa”). The visa applicant is a 39 year old dual citizen of Macedonia and Bulgaria currently residing in the United Kingdom.
The application is brought by the visa applicant’s wife, Ms Marija Dalenga Todorova (the “visa sponsor”). The visa sponsor is a 32 year old Australian citizen currently residing in Melbourne.
The initial hearing in this matter was conducted on 21 February 2019. The visa sponsor was self-represented. The respondent was represented by Ms Siran Nyabally.
The visa applicant gave his evidence with the assistance of an interpreter in the Macedonian language. During the course of the visa applicant’s evidence at the initial hearing the Tribunal became concerned about the reliability of the interpretation being provided. The visa sponsor, who also speaks some Macedonian, also expressed a concern about the reliability of the interpretation. As a consequence of these concerns the Tribunal adjourned the matter to enable an alternate interpreter to be secured.
The hearing recommenced on 17 April 2019 with the aid of a new interpreter who specialised in the visa applicant’s local dialect. At the recommenced hearing the visa sponsor was again self-represented and the respondent was represented by Ms Siran Nyabally. The recommenced hearing ran over two days.
Due to the concerns the Tribunal had about the reliability of the interpretation provided during the course of the visa applicant’s evidence at the initial hearing, at the recommenced hearing the Tribunal heard the visa applicant’s evidence again from the beginning. With respect to the visa applicant’s evidence, when making its decision in this matter the Tribunal has disregarded the visa applicant’s evidence given at the initial hearing and has relied solely on the visa applicant’s evidence given at the recommenced hearing.
On 16 December 2019 the Tribunal made the decision to set aside the decision under review. Set out below are the written reasons for the Tribunal’s decision.
BACKGROUND

The visa applicant and the visa sponsor met in Bitola, Macedonia in May 2008. They formed a relationship in late 2011, and were married in Bitola in November 2012. On 15 October 2016 the visa applicant applied for the visa on the basis of his marriage to the visa sponsor.
On 6 November 2017, the visa applicant was issued with a Notice of Intention to Consider Refusal of his visa. After considering representations made by the visa applicant, on 18 September 2018 a delegate of the Minister refused to grant the visa under section 501(1) of the Migration Act 1958 (the “Act”). The delegate’s decision was made on the basis that the visa applicant has a substantial criminal record and does not pass the character test by virtue of subsection 501(6)(a) of the Act.
The visa applicant’s representative was notified of that decision by email on 20 September 2018, and the visa sponsor applied for review of the decision in the Tribunal on 21 September 2018.
The visa applicant’s criminal record involves a conviction for drug dealing involving substantial quantities of heroin and cocaine committed in Germany in 2007 as part of a criminal syndicate. The Tribunal materials include a copy of a certified translated German police clearance certificate which sets out the specific offence for which the applicant was convicted[1]. The visa applicant was sentenced to a total term of four years imprisonment as a consequence of the offence. He served a total of two years and three months before being released on 23 November 2010. There was some contention between the parties in relation to the period of time the visa applicant served in prison. The respondent noted that the visa applicant’s claim of only serving a period of two years and three months imprisonment was inconsistent with information included in the German police certificate and the sentencing remarks of the Court. The Tribunal is not satisfied that the information to which the respondent refers is reflective of the actual term of imprisonment served. Having heard directly from the visa applicant on this point the Tribunal is satisfied that his account on this matter is truthful.
[1] G Documents page 23.
The visa applicant was 26 years of age at the time of the offence and 29 years of age at the time of his release from prison. There is no evidence before the Tribunal of the visa applicant having ever committed any other offence.
ISSUE
There was no dispute between the parties regarding the accuracy of the applicant’s criminal record as set out in the German police certificate, although the visa sponsor does take issue with some of the respondent’s contentions regarding the circumstances surrounding the visa applicant’s offence. The dispute between the parties on this point will be addressed later in these reasons. The visa sponsor did not resist the respondent’s contention that the applicant does not pass the character test set out in section 501(6)(a) of the Act as a result of his substantial criminal record. However, the visa sponsor contends that having regard to the full circumstances of the case the residual discretion the Tribunal has to not refuse the visa under section 501(1) of the Act should be exercised in the visa applicant’s favour.
The Tribunal accepts that the German police certificate is an accurate record of the visa applicant’s conviction. Based on all the materials before it, the Tribunal is satisfied that the visa applicant does not pass the character test as a consequence of his substantial criminal record.
Therefore, the issue before the Tribunal is whether it should exercise its residual discretion to not refuse the visa under section 501(1) of the Act, having regard to the circumstances of the case and all relevant considerations, including those set out in Part B of Direction No. 79 (the “Direction”).
CONSIDERATION
Paragraph 6 of the Preamble to the Direction sets out a number of principles that provide a framework within which decision-makers should approach their specific task. Those principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse the visa, paragraph 11(1) of the Direction provides that the primary considerations are:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
The Direction provides that primary considerations should generally be given greater weight than the other considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[2]
Primary Consideration
[2] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 (1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should be non-citizen commit further offences or engage in other serious conduct.
Paragraph 11.1.1 (1) of the Direction provides that:
In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violence and/or sexual crimes are viewed seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)The cumulative effect of repeated offending;
i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraph 11.1.2 of the Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decision should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.
As noted in these reasons, the visa applicant’s 2009 conviction resulted in a sentence of 4 years imprisonment. The Tribunal is satisfied that the offence involved very serious drug dealing, including dealing in heroin and cocaine in substantial quantities as a member of a wider criminal syndicate.
In giving his evidence before the Tribunal, as well as in a number of statements included in the Tribunal materials, the visa applicant set out what he claims were the circumstances leading up to his offending and subsequent conviction. That evidence can be summarised as follows:
·In the period leading up to the offence the visa applicant had developed a connection with a group of people within his home town who were from a slightly older generation. At the outset he had looked up to these new acquaintances as he had viewed them as “having done well”.
·Over time he had begun to see a different side of the group of acquaintances and began to recognise that a lot of them had gambling problems, although he did not understand the full severity of it at the time.
·He had been pressured to gamble by the group. Over time he developed a feeling of being left out and feeling belittled and embarrassed.
·Despite having previously resisted, on one occasion he had made the mistake of accepting an offer of money for gambling by one of the acquaintances. At the time he had not previously gambled before in his life. He lost the money that was given to him. As a consequence of this and “within a blink of an eye” he had become indebted to the acquaintance. Having lost the initial money he then borrowed a further amount in order to recover the loss and lost that money also. The acquaintance then made it clear to him that he had an expectation that the money would be quickly repaid. The visa applicant had no capacity to pay the money back. He was embarrassed to raise the issue with his parents or wider family or friends, and he was very distressed and did not know what to do.
·After having become indebted to the acquaintance he was then offered a job to pay off the debt. He was promised a job in Germany. The job required him to drive vehicles or trucks from Germany to Macedonia. He considered this to be a reasonable option for earning the money necessary to repay the debt, as he had previous experience importing vehicles through his family’s business from Germany as well as Italy.
·When he arrived in Germany the promised work did not come through and it was at this point that he first became aware that the person he was indebted to was involved with drugs. It was at this time that he was pressured into street sales in order to quickly pay off the debt. Being “young, desperate and scared”, he convinced himself he had no choice but to assist with the drug dealing. He felt that he had no other way of finding the funds in a timely way and was scared of being hurt if he did not agree. He described the choice he made at this point as being the biggest mistake he has made in his life, totally out of character and one that caused him to feel extreme discomfort. This was the first time in his life he had ever been exposed to drugs.
·He was initially directed to sell small amounts of heroin to regular customers on the streets. He described his involvement at this point as being “minimal”. He described himself as feeling sick in the stomach and shaky as a consequence of undertaking these activities. He knew that he could not do it. He knew that it was wrong and he could not “stomach the feeling”. He describes having tried to hide from people so that he did not have to go through with any street sales. It became obvious to his associate (Boshkovski) that he was not capable of bringing back money as expected. He was then moved away from street sales and told instead to help transfer drugs from Boshkovski to another dealer (co-accused Lazarevski). He did not package the drugs. He was handed a bag and his job was to take the drugs from Boshkovski to Lazarevski. He worked at the direction of Boshkovski. He felt stuck and all he wanted to do was to remove himself from the situation as quickly as possible.
·As soon as he had enough money to pay off the debt he returned to Macedonia and he completely removed himself from any contact with either Boshkovski or Lazarevski.
·Several months after he returned to Macedonia, Boshkovski became the subject of a criminal investigation in Germany and was subsequently arrested. The visa applicant’s understanding is that in order to obtain a significant reduction in his sentence, Boshkovski incriminated a number of people amongst what was subsequently understood to be a wider group of associates. This included the visa applicant.
·A warrant for the visa applicant’s arrest was issued on 14 December 2007. He was no longer in Germany at this time, he had no associations or social links in Germany and he was completely unaware that he was the subject of a criminal investigation.
·On 30 August 2008 he was arrested at the Macedonian-Greece border while attempting to enter Greece for his annual family holiday. This was the first time he was made aware that he had been the subject of an investigation. He was incarcerated and transferred to Germany to stand trial.

The Tribunal found the visa applicant’s evidence in relation to the circumstances leading up to his offending in Germany to be credible and reliable. While there is no doubt that the visa applicant sought to present background evidence that was helpful to his case, the Tribunal found his evidence in this regard to be consistent and cogent. The visa applicant’s evidence in this respect was also further supported by evidence of the visa sponsor who the Tribunal also found to be a very credible and reliable witness. The Tribunal formed this view notwithstanding the obvious interest the visa sponsor has in a positive outcome in this matter.
The visa applicant also gave evidence regarding the nature of the charges brought against him and the circumstances of his trial. The visa applicant contends that the charges brought against him were based on statements made by Boshkovski who had told the authorities that the visa applicant had been part of an organised crime syndicate. The visa applicant disputes this characterisation and states that he was never knowingly part of a wider syndicate and had no knowledge that a wider syndicate existed outside of Boshkovski and Lazarevski.
While the visa applicant does not deny his involvement in drug dealing, he maintains that he had a low level involvement and that the true extent of his involvement was never accurately explained to the authorities. He claims that as a consequence, the charges brought against him were more serious than his underlying conduct justified. He maintains that he had difficulty in communicating with authorities at the time due to language difficulties and although he was provided with legal aid he felt that his representation was poor. He maintains that his capacity to properly defend himself was further adversely impacted by a lack of funds and the lack of any family or friends or trusted associates in Germany to help him through the process. He maintains that his legal aid representative pushed him to plead guilty to the charges even though he did not feel at the time that he was guilty to the full extent of the charges.
The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind the visa applicant’s conviction and re-examine the facts upon which it was based.[3] However, there is nothing that prevents the visa applicant, or the visa sponsor on his behalf, from presenting to the Tribunal matters that give context to those convictions.
[3] See Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 at [40] and HZCP v Minister for Immigration and Border Protection [2018] at [78].
Consistent with this, the Tribunal accepts as a fact the visa applicant’s conviction for the offending in Germany as set out in the German police certificate. Further, the Tribunal accepts the underlying essential facts that gave rise to that conviction, including that the visa applicant was involved in the dealing of heroin and cocaine in substantial quantities as part of a syndicate. The Tribunal accepts that the visa applicant was sentenced to a term of imprisonment of four years and served two years and three months of that sentence. The Tribunal also accepts the respondent’s contention that the offence for which the visa applicant was convicted in Germany would, if committed in Australia, constitute a serious criminal offence.[4]
[4] The respondent tended an extract of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) that supports this contention.
In relation to the context of the visa applicant’s offending, the Tribunal accepts the visa applicant’s evidence that he engaged in the offending behaviour in Germany under some significant personal duress as a result of the debt he owed to his associates, and that at the time of the offending he maintained a real and genuine concern for his own physical safety.
The Tribunal also accepts that the visa applicant did not have a high level role within Boshkovski’s drug dealing group. The Tribunal rejects any suggestion made by the visa applicant that he was not part of a group but it does accept that his knowledge of the broader group and its activities was somewhat limited.
While the Tribunal accepts that the visa applicant no doubt faced considerable practical difficulties in defending himself against the charges brought against him, it does not accept that there is a reasonable basis for concluding that his conduct did not justify the charges brought against him. Nor does the Tribunal accept that there is any reasonable basis for questioning the fairness of the trial or the soundness of the subsequent conviction. As stated above, the Tribunal does not consider it appropriate to look behind that conviction.
Notwithstanding the context of the visa applicant’s offending, any form of dealing in narcotics has the potential to cause very significant harm to the community in which the activity is undertaken. Drugs such as heroin and cocaine destroy lives and wreak havoc through families and communities. The respondent tended 2 news articles relating to drug importation into Australia to support its contention that the type of offence the visa applicant was convicted of in Germany would have a serious adverse impact on the Australian community, were such an offence to be committed in Australia. One of the news articles was an ABC news article relating to the importation of $105 million worth of drugs into Australia. In that article a senior Federal Police officer was quoted as saying “we've seen the damage that cocaine causes when it reaches Australian communities-the health effects that it has, the increases in domestic violence, the increase in property crime, the increase in assault”. The Tribunal is satisfied that the offending conduct for which the visa applicant was convicted would unquestionably be considered to be serious offending in the Australian context.
The serious nature of the visa applicant’s offending is further reinforced by the length of sentence he received for the conviction, namely, four years. For a first offence that is a very substantial term of imprisonment. This was despite the fact that the sentencing judge clearly recognised mitigating factors in favour of the visa applicant, including his genuine remorse, his early confession and his willingness to assist the authorities with the provision of information to aid their further investigations.
For these reasons the Tribunal is satisfied that the visa applicant’s offending must be considered to be very serious for the purpose of the Tribunal exercising its discretion in relation to this matter.
In forming this conclusion the Tribunal accepts that the visa applicant had not engaged in any form of criminal activity prior to the German conviction and, based on the material before it, has not engaged in any criminal activity since his release from prison. Accordingly, there is no evidence before the Tribunal of any kind of repeat offending or of any trend of increasing seriousness in offending.
The Tribunal now turns to the risk of reoffending and the potential harm the visa applicant poses to the Australian community.
On the issue of risk of reoffending the respondent contended that were the visa applicant to reoffend in a manner similar to his German conviction, it would cause serious harm to the Australian community. As described earlier in these reasons, heroin and cocaine can have a very serious physical and psychological impact on individuals and also a devastating emotional and financial impact on their families and the broader community. The visa applicant himself was acknowledging of the devastating impact illicit drugs can have. Accordingly, the Tribunal accepts the respondent’s contention in this regard.
However the respondent contended that in light of the very serious nature of the visa applicant’s offence, any risk of such conduct being repeated was a risk of harm to the Australian community that was unacceptable. While acknowledging that the applicant’s offending must be viewed as serious for the reasons already set out, the Tribunal is not satisfied that this is a case to which Principle 6.3(4) of the Direction should apply. In reaching this conclusion the Tribunal has been mindful that it was a first offence and that in sentencing, the sentencing judge acknowledged a number of mitigating factors that it considered to be relevant in assessing the visa applicant’s level of culpability.
In his evidence before the Tribunal, the visa applicant stated that he is extremely regretful for his offending and very disappointed in himself for allowing himself to be pressured into involvement in drug dealing. He acknowledged that his actions were wrong and he told the Tribunal that receiving punishment was appropriate given the seriousness of his actions.
The visa applicant contends that his offending does not reflect the type of person that he truly is or that he saw himself as becoming. The visa applicant described the circumstances leading up to his offending as an important life lesson and he told the Tribunal that he is determined never to make a mistake like that again.
The visa applicant described his time in prison as having allowed him time to think about his actions and teach him a lesson. He described having learnt that no matter how bad a situation, he should have opened up to his family for support and should not have been ashamed to tell his parents what he had done.
The visa applicant also described his time in prison as having allowed him to better understand the impact that drugs have on society and, as described above, he was acknowledging of the serious damage drugs can cause to people and communities.
In his statement to the Tribunal the visa applicant described his return to Macedonia as not easy, noting that he was looked down upon by many people within his home town. He stated that it was a long process to be accepted back into the community. He stated that when he first returned from prison he was very depressed, embarrassed and rarely left the house. He described feeling that he had let down his family and their honour and had shamed them within the eyes of the community. He stated that his parents raised him to be a positive and honest person and he felt as though he had failed them as a son. He acknowledged that he played a role in feeding drug addiction and that he feels a sense of shame. He stated “my heart is also with the families of these addicts. I think I will always have guilt within me… I take full responsibility for my actions and hope that my mistake is a deterrence to any other individual who knows of my situation and finds themselves in such a position”. He stated that he has promised himself, his wife and his parents that he will never again reoffend or associate himself in any way with gambling or drugs.
The visa applicant also stated to the Tribunal that after his release from prison and return to Macedonia he cut a lot of people out of his life. He told the Tribunal that he no longer associates with any people who involve themselves with gambling activities and steers clear of any people who he suspects may consume or deal with drugs. He described having allowed himself to make a mistake once in his life and that he is determined to never again allow himself to even come close to making a similar mistake again. He stated that he has not gambled since the initial gambling loss that led to his offending behaviour.
The visa applicant told the Tribunal that he had not been in trouble with the police prior to the offence. He stated that he does not have a criminal history beyond the offence nor a tendency to commit crimes. He stated that since his release from prison he has remained law-abiding and has endeavoured to do all he can to contribute positively within his community. He gave evidence that since his release from prison he has obtained work on a consistent basis and has educated himself further to advance his employment opportunities.
The visa applicant emphasised the importance of his current partner, the visa sponsor, in re-establishing himself following his release from prison. He stated that he has been blessed to find a loving partner who has brought light back into his life. He described the relationship as a loving one that makes him all the more determined to be a better person. He states that he would never again act in a way that would jeopardise his family.
Based on the visa applicant’s evidence and statements, the visa sponsor put a number of contentions to the Tribunal in relation to the risk of reoffending. In addition, Immigration Solution Lawyers put a number of contentions on behalf of the visa applicant to the Department. Those contentions can be summarised as follows:
·The visa applicant has only one conviction and that offence occurred approximately 12 years ago.
·The visa applicant’s offence was totally out of character. He is now totally rehabilitated and is of good character. Other than in respect of his German offence the visa applicant has consistently demonstrated a high regard for the law.
·The visa applicant’s offending occurred in a particular context where he was under considerable duress and in fear for his physical safety.
·The visa applicant’s evidence supports a conclusion that his participation in the offending was limited and of a lower level. The visa applicant ceased all connection with Boshkovski as soon as he was able to clear the debt and return to Macedonia.
·The limited nature of the applicant’s involvement in the offending was acknowledged by the sentencing judge in his sentencing comments. The sentencing judge also acknowledged the visa applicant’s early confession and the fact that he assisted authorities in their investigation.
·The visa applicant has consistently demonstrated genuine remorse for his offending. The visa applicant is not a repeat offender. The offence was an isolated incident. There is no evidence of increasing seriousness.
·The visa applicant has demonstrated a high level of insight into his offending. The visa applicant has acknowledged his wrongdoing and that it justified receiving a significant punishment.
·The visa applicant has also acknowledged that illicit drugs have a significant impact on users, the community and public resources and that drug offences are serious in nature.
·Following his conviction the visa applicant has taken appropriate steps to rehabilitate and put in place other practical measures to avoid the risk of reoffending, including avoiding contact with previous associates or others who might be exposed to drug use or gambling. He has also undertaken a drug and alcohol awareness program and participated in a number of counselling and psychologists sessions.
·The visa applicant does not present a risk of recidivism. This is supported by an independent psychological assessment undertaken by Dr Iln Cohen and is also consistent with the conclusions of treating psychologist, Dr Daniella Trajkovska.
·The visa applicant maintained a record of good behaviour while in prison and also utilised his time productively. The visa applicant worked in the confectionery department and enrolled in a course to learn the German language. He also actively involved himself in prison sports.
·The visa applicant has demonstrated a consistent commitment to employment since his release from prison, demonstrating a strong work ethic. This is further evidenced by the employment reference letter from Ms Olga Mordukhay, which states that the visa applicant “proved to be a resource full, capable, loyal & professional employee”.
·The visa applicant has a loving wife and a supportive family and now only wishes to be reunited with his wife permanently in Australia so that they can continue their lives together and start a family of their own. Both the visa applicant and the visa sponsor have strong support networks in Australia.
·The visa applicant has complied with all government requests for information in a timely manner and has provided true and accurate information including full disclosure of the totality of his criminal offending.
The respondent did not contest that the visa applicant has not previously offended, has made efforts at rehabilitation and that there is no evidence of having offended since his release from prison. Further, in closing the counsel for the respondent conceded that the risk of the reoffending may fairly be described as small. However, the respondent maintained that the risk of reoffending should not be considered to be negligible. The respondent cited a number of reasons for its contention including that:
·The visa applicant’s offending history, including the seriousness of his offending and his apparent willingness to engage in illegal activity for personal gain, is indicative of a propensity to disregard the laws and disrespect its legal institutions and underscores the risk that he would engage in further unlawful conduct.
·The visa applicant has attempted to minimise his responsibility for his offending and this undermines his claimed insight into the seriousness of his offences, his remorse for his offending and his claims of rehabilitation.
The Tribunal is satisfied that the visa applicant is genuinely remorseful for his offending and has demonstrated considerable insight into that offending. The Tribunal does not accept the contention put by the respondent that the visa applicant has sought to downplay his criminal offending. While it accepts that the visa applicant has attempted to present his offending in the best possible light, for the reasons stated above, it accepts his evidence regarding the circumstances leading up to his offending and the nature of the offending itself as being truthful.
While, for the reasons already described, the Tribunal does not consider it appropriate to look behind the conviction nor that that there is any reasonable basis for questioning the appropriateness of the charges, the soundness of the conviction or the fairness of the trial, the Tribunal does not accept that the applicant’s evidence in this regard suggests a lack of insight. While the visa applicant clearly believes that Boshkovski overstated his level of involvement in the broader group activities and that he should have been charged with a lesser offence, he also made clear in his evidence that he accepts that he engaged in drug dealing of heroin and cocaine and that it constitutes very serious offending. The Tribunal accepts the visa applicant’s evidence that he felt physically sick at what he had done and feels significant ongoing guilt, which is strongly indicative of a high level of awareness of wrongdoing.
The respondent also contends that the visa applicant has attempted to deflect responsibility for his offending by suggesting he was forced into it as a consequence of his debt to Boshkovski. Again the Tribunal rejects this contention. As previously stated, the Tribunal accepts the visa applicant’s evidence regarding the circumstances leading up to his offending, including that he felt genuine fear for his personal safety as a consequence of his debt to Boshkovski. However, the visa applicant made clear to the Tribunal that despite the broader circumstances presenting some context to his offending he did not consider it to be an excuse. The Tribunal is satisfied that the visa applicant understands and accepts the serious nature of his wrongdoing and has genuine remorse for that offending.
The Tribunal is satisfied that the visa applicant has taken significant practical steps to rehabilitate himself including:
·maintaining good behaviour while in prison;
·using his time in prison to reflect on the nature of his offending and the circumstances that gave rise to his offending in order to develop genuine insight and identify measures to be taken to improve his future prospects and reduce any risk of him engaging in similar offending in the future;
·seeking out information to better understand the impact that dealing in drugs can have for individuals, families and the broader community;
·completing a course in the German language while in prison;
·engaging in work activities while in prison; and
·completing a drug and alcohol awareness diploma.

The Tribunal accepts that the visa applicant attended several sessions with physician, Dr Daniela Trajkovska, while based in Bitola in 2015. In a translated copy of her report dated 6 May 2015 Dr Trajkovska stated that the visa applicant “regularly attends psycho-therapeutic session” and reached a number of conclusions with respect to the visa applicant including that:
·he is depressed as a consequence of his physical separation from his wife;
·he does not show traits of antisocial personality;
·he is remorseful for the events that “occurred many years ago” and those events were due to “existential problems”’; and
·he is not aggressive and is able to “totally fit within the social life”.
In addition, the visa applicant was referred by Immigration Solution Lawyers for a psychological assessment by clinical psychologist, Dr IIan Cohen. The visa applicant underwent an assessment with Dr Cohen during which he completed a questionnaire measuring emotional disposition and a personal assessment inventory. In his report dated 19 January 2018, Dr Cohen concluded that:
·The assessment does not reveal any permanent character flaws or psychopathology in the visa applicant;
·the visa applicant’s participation in criminal activity emerged as a result of immaturity, poor decision-making and debt at the time;
·The visa applicant appears to be a more mature and self-sufficient person than at the time of the offence;
·The visa applicant is gainfully employed, highly regarded by his employer and has shown an ability to express remorse for his past criminal activity;
·The visa applicant is truly apologetic for his past behaviour and sincere in this regard;
·There is no evidence of the visa applicant being a risk to the community, nor is there evidence of recidivism; and
·The visa applicant and visa sponsor are a highly committed and devoted married couple and their relationship is extremely close and loving.
Dr Cohen completed a further report dated 23 July 2018 in which he concluded:
The Applicant Georgi Todorov was found to be remorseful and authentic with regards to his regret for his past criminal actions and completed incarceration and rehabilitation. Today Mr Todorov is well rehabilitated and gainfully employed and in my opinion of good character.
The respondent did not contest the conclusions of either Dr Trajkovska or Dr Cohen but submitted that the Tribunal should give little weight to the fact that the visa applicant has undertaken counselling and psychological assessment, on the basis that he had only undertaken counselling and the psychological assessments after his initial visa application and after having met his wife. The inference the respondent was encouraging the Tribunal to draw was that the visa applicant had only engaged in counselling and the psychological assessments for the purpose of assisting his visa application and with the encouragement of his wife. Having heard from the visa applicant directly, the Tribunal rejects the respondent’s contention in this respect. While the Tribunal is in no doubt that the visa applicant was encouraged by his wife to undertake the counselling and psychological assessments and also that he was aware of their relevance to his visa application, the Tribunal is satisfied that the visa applicant was not primarily motivated by such considerations. Rather, the Tribunal finds that the visa applicant has a genuine desire to improve himself, understand how he found himself in a position of offending and what he needs to do in order to ensure that he does not reoffend. The Tribunal is satisfied that the counselling the visa applicant received in 2015 has assisted him in this respect to some degree.
Further, while the Tribunal did not have the benefit of hearing from either Dr Trajkovska or Dr Cohen directly, the Tribunal is satisfied that there is no reasonable basis for rejecting or questioning their observations and conclusions in respect of the visa applicant in any way. However, less weight has been given to some of the observations of Dr Cohen in particular, which the Tribunal considers to be more personal opinion than professional opinion.
The visa applicant told the Tribunal that he has not engaged in drug taking at any time nor has he participated in gambling since his release from prison. This was not contested by the respondent and the Tribunal accepts the visa applicant’s evidence in this regard.
The visa applicant also told the Tribunal that since his release from prison he has not engaged with any previous social contacts who were involved in either drug taking or gambling. The Tribunal accepts the truthfulness of this evidence.
There is no evidence of the visa applicant having offended again in any way since his release from prison.
Consistent with these findings, the Tribunal is satisfied that the visa applicant is rehabilitated, which in the Tribunal’s view, strongly mitigates any risk of reoffending.
It is clear that the visa applicant and visa sponsor have a very strong and loving relationship, with a heavy dependence on one another. The visa applicant has maintained that relationship despite the difficulties of physical separation. Both the visa applicant and sponsor made clear to the Tribunal that they remain committed to their marriage and that they share a strong mutual desire to start a family and raise that family here in Australia. It was clear to the Tribunal that the visa sponsor plays a very important supporting role in the visa applicant’s life. The Tribunal accepts that the visa sponsor presents as a stabilising influence in the visa applicant’s life, which further mitigates the risk of reoffending.
The Tribunal accepts that the visa applicant has maintained consistent employment following his release from prison, which further demonstrates rehabilitation and a strong commitment to getting on with his life in a stable and law abiding manner. The visa applicant’s evidence was that he is currently working in the security industry in London. The visa applicant’s professionalism and work ethic has been recognised by an employer on more than one occasion following his release from prison.
The materials before the Tribunal included a number of references from employers, family and friends; all of whom recognised strong positive attributes of the visa applicant. A number of the family and personal references recognised the visa applicant’s general remorse for his offending and also a strong love and commitment towards his wife.
The Tribunal also accepts that there are a number of incentives the visa applicant has to not reoffend, including his desire to avoid returning to prison particularly in light of the difficult experience he had while in prison. These incentives also include his clearly demonstrated desire to be re-united with his wife, raise a family here in Australia and to not let his wife or other family members down in any way in the future. In addition, it is clear that the visa applicant is aware of the significant adverse consequence he would suffer if he were to be granted a visa following the conclusion of these proceedings and were then to subsequently reoffend.
Having considered all of the evidence before it, the Tribunal is satisfied that the visa applicant is not naturally inclined towards criminal behaviour, and that the circumstance leading up to his German offence gave rise to significant personal duress and clouded the visa applicant’s decision-making. The Tribunal rejects the respondent’s contention that the visa applicant’s offending demonstrates a broader propensity towards disregarding the laws or disrespecting legal institutions. Rather, the Tribunal is satisfied that the visa applicant’s offending was out of character. Given this and acknowledging all of the factors identified above, the Tribunal is satisfied that the risk of the visa applicant reoffending in a manner similar to his German offence or in any other manner that could cause serious harm to the Australian community, is extremely low. In reaching this conclusion the Tribunal has been particularly mindful of the fact that, on the evidence before it, the applicant has not reoffended in any way in the approximately 10 years since his release from prison. During that time the visa applicant has demonstrated his capacity to conduct himself in an honest, decent, law-abiding manner.
However, given the very serious nature of the visa applicant’s prior offence even an extremely low risk cannot be lightly dismissed.
Accordingly, notwithstanding the applicant’s remorse, rehabilitation and an extremely low risk of reoffending again in a similar manner, the Tribunal is of the view that the protection of the Australian community consideration weighs slightly in favour of refusing the visa applicant’s visa under section 501(1) of the Act.
Best interests of minor children in Australia affected by the decision
There was no evidence before the Tribunal of there being minor children in Australia who are directly related to the visa applicant and who may be impacted by the Tribunal’s decision in this matter.
Notwithstanding this, there was evidence of the potential for the visa sponsor’s nieces (through her brother) who are aged 8 and 11, to be adversely impacted in the event that the visa applicant is unsuccessful in securing a visa and the visa sponsor were to relocate out of Australia as a consequence of the decision. The Tribunal accepts that while the visa sponsor made clear that it was her strong desire not to leave Australia, she considers herself committed to their marriage and therefore in the event that the visa applicant is unsuccessful in this matter, there remains a real prospect of the visa applicant relocating to live with her husband outside of Australia.
There was evidence that the visa sponsor is very close to her nieces and that they would be likely to suffer significant hardship in the event that the visa sponsor relocated outside of Australia. Both the visa sponsor and her brother, Mr Zoran Dalenga told the Tribunal of the close bond the visa sponsor has with the children. Mr Dalenga told the Tribunal that the visa sponsor was a “mother type” figure towards the children, noting that he has separated from his partner. Mr Dalenga told the Tribunal that the children would be devastated if for any reason the visa applicant had to relocate outside of Australia. The visa sponsor gave evidence that she loves her nieces and is committed to continuing to play a positive role in their lives.
The Tribunal is satisfied that in the event that the visa sponsor did relocate outside of Australia it is likely that the relationship the visa sponsor has with her nieces would be significantly adversely impacted, given that her capacity to maintain a close relationship with her nieces would be reduced due to the geographic dislocation. The Tribunal reaches this conclusion while acknowledging that the visa sponsor would still be able to maintain contact by telephone, email and over the internet. It is also likely that in those circumstances the visa sponsor is likely to visit Australia from time to time.
There was no evidence that the visa applicant himself had a close relationship with the visa sponsor’s nieces, although the Tribunal accepts that there is the potential for such a relationship to develop over time. The Tribunal is satisfied that the visa applicant’s offending has not had a direct adverse impact on the visa sponsor’s nieces and is also satisfied that in the event that the visa applicant is successful in this matter and relocates to Australia, there is a potential for the visa applicant to also play a positive role in their lives.
Notwithstanding the absence of a close relationship between the visa applicant and the visa sponsor’s nieces, the respondent contended that in applying the Direction the Tribunal should give consideration to the impact that its decision may have on the visa sponsor’s nieces. The Tribunal accepts this contention. Having heard the limited evidence that there was in this regard, the Tribunal is satisfied that a decision by the Tribunal to exercise its discretion against the granting of the visa applicant’s visa would not be in the best interests of the visa sponsor’s nieces. This is because there remains a potential for a visa refusal outcome to effectively compel the visa sponsor to relocate out of Australia, thereby adversely impacting her relationship with her nieces. It is also likely to significantly constrain the capacity for the visa applicant himself to develop a close and positive relationship with the children.
However, the Tribunal accepts the respondent’s further contention that the weight to be given to this consideration is limited given the fact that the visa applicant himself does not have a close relationship with the visa sponsor’s nieces. Furthermore, the adverse impact that the visa sponsor’s nieces might suffer would be as a consequence not of the Tribunal’s decision directly, but rather of the visa sponsor’s own decision to relocate out of Australia.
For these reasons, this consideration weighs only slightly in favour of granting the visa applicant’s visa.
Expectations of the Australian community
Paragraph 11.3 (1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable 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 of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal acknowledges the frequently cited decision in YNQY v Minister for Immigration and Border Protection[5] as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs[6]. Consistent with the case law, the Tribunal accepts that in applying the expectations of the Australian community consideration:
·It is not for the Tribunal to make an assessment for itself as to the expectations of the Australian community in any particular case, but rather the task of the Tribunal is to have due regard to the Government’s stated views regarding the expectations of the Australian community as set out in the relevant clause in the Direction.
·In determining what the Government’s stated views are, regard should be had to the words set out in paragraph 11.3(1) of the Direction itself (or its equivalent provision in paragraph 13.3(1) or 9.3(1) whichever is relevant to the case before the Tribunal).
·In determining the weight to be given to the consideration, the Tribunal must be mindful of the fact that it is a primary consideration. The Tribunal should also have regard to the nature of the offences that have been committed, the risk the applicant poses to the Australian community and other factors relevant to any character concerns that exist with respect to the applicant.
·Ultimately, the weight to be given to the consideration and whether it should outweigh other relevant considerations is a matter for the decision-maker to determine in the exercise of their discretion. In this sense, while generally the consideration is likely to weigh against the applicant, in some circumstances it may not be “decisively so”, and there may well be circumstances that could exist where the consideration does not weigh against the applicant at all.
[5] [2017] FCA 1466.
[6] [2019] FCAFC 185
In applying this consideration the Tribunal has had due regard to:
·the Government’s stated views in relation to the expectations of the Australian community as set out in paragraph 11.3(1) of the Direction;
·the principle set out in paragraph 6.3(1) referred to above; and
·the principle set out in paragraph 6.3(5), which provides that:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a high level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
In undertaking its weighing exercise in respect of this consideration, the Tribunal acknowledges the serious nature of the visa applicant’s criminal offence. As was acknowledged earlier in these reasons, the fact that the visa applicant has previously involved himself in dealing in narcotics is a course of conduct that the Australian community would maintain a very serious concern about. The serious nature of his offending was also reflected in the significant term of imprisonment to which he was sentenced as a consequence of his offending.
The Tribunal has also given consideration to the fact that the visa applicant does not reside in Australia and that his contribution to the Australian community is extremely limited. The Tribunal accepts the visa applicant’s contention that he has contributed to some degree indirectly through his financial support of the visa sponsor.
However, in weighing this consideration the Tribunal has been very mindful of its conclusion that there is an extremely low risk of the visa applicant reoffending and causing harm to the Australian community. The Tribunal considers this to be a significant mitigating factor in assessing this consideration.
In addition, the Tribunal has also given consideration to:
·the visa applicant’s remorse for his offending;
·the effort the visa applicant has made to rehabilitate himself;
·the fact that the visa applicant has been able to maintain steady employment since his release from prison; and
·the fact that the visa applicant has not reoffended since his release from prison.
Having carefully considered the Government’s views as to the expectations of the Australian community as set out in the Direction as well as all of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community consideration weighs in favour of a refusal of the applicant’s visa. However, the weight given to the consideration is significantly reduced due to the mitigating factors identified above and, in particular, the extremely low risk of the visa applicant reoffending.
For these reasons, the expectations of the Australian community consideration weighs in favour of a refusal of the visa applicant’s visa, but not significantly so.
Other Considerations
International non-refoulement obligations
There was no evidence before the Tribunal of any non-refoulement obligations owed to the applicant and therefore this consideration weighed neither for nor against the granting of the visa applicant’s visa.
Impact on family members
There was significant evidence before the Tribunal in relation to the adverse impact a refusal of the visa applicant’s visa will have on family members including, in particular, the visa sponsor herself.
In assessing the weight to be given to this consideration the Tribunal is satisfied that a refusal of the visa applicant’s visa would have a serious adverse impact on the visa sponsor who resides in Australia and is an Australian citizen - this is regardless of whether she elected to relocate with her husband overseas or alternatively elected to remain here in Australia, separated from him.
As described earlier on in these reasons, it was apparent from the evidence before the Tribunal that the relationship between the visa applicant and the visa sponsor is genuinely a very close and loving one. They have now known each other for approximately 12 years, have been in a relationship for eight years and married for almost seven years. The visa applicant’s absence from Australia has clearly placed an enormous strain on their relationship and the visa sponsor in particular. In order to maintain their relationship the visa sponsor has been required to travel to Europe and the United Kingdom on multiple occasions to visit the visa applicant. This has imposed significant logistical and financial pressures on her, which has added to the significant emotional stress that both have experienced as a consequence of their present circumstance.

Both the visa applicant and the visa sponsor made clear to the Tribunal their desire to have a family and the additional stress their current separation gives rise to, given the difficulty they have had conceiving as a result of both the stress itself and also their limited amount of time together.
It was clear from the evidence that the visa applicant provides a level of financial support to the visa sponsor that the visa sponsor would be denied, in the event that their relationship was unable to continue as a consequence of their extended separation. In this sense the visa applicant also contributes indirectly to the Australian community and given his consistent record of employment, it is likely that he would continue to provide this type of support were he to be granted his visa.
It is also very evident from the evidence before the Tribunal that both the visa applicant and visa sponsor rely on each other for support to a significant degree. In her statement dated 15 January 2018 the visa sponsor states:
Relationship wise, both Georgi and I are extremely dependent on one another. We are thankful for modern technology which has assisted us and allowed us to keep in constant daily contact. We have set roles in a relationship and assist each other in every aspect. I do not feel that I could go on in life should he not be part of my life. A visa refusal at this stage would mean that our relationship would not be able to continue. We’ve stressed all avenues to be together. For a love so pure to be torn apart would be a tragedy.
The Tribunal is satisfied that should the visa applicant be unsuccessful in the application and the visa sponsor chose to remain living in Australia separated from her husband, the visa sponsor would feel considerable personal distress as a consequence of the separation, the difficulty in maintaining a relationship with her husband and the inability to have children with him and raise them together in Australia.
In her statement the visa sponsor indicated that she did not believe she would relocate permanently and that in those circumstances the relationship with her husband could not be sustained. However, in other evidence she was less certain. In her evidence the visa sponsor oscillated between indicating that she did not want to think about it, addressing the consequences she would experience in the event of a relocation and indicating that she could not go on should her husband not be part of her life. Having considered the evidence, the Tribunal accepts that while the visa sponsor maintains a very strong desire to remain in Australia given the presence of her family and the fact that she has built a life and a career here, there still remains a genuine prospect that the visa sponsor may relocate outside of Australia to live with her husband should he be denied a visa. This is because of her very strong commitment to their relationship. The Tribunal accepts that this would have a very significant adverse impact on the visa sponsor personally including significant emotional distress as a consequence of her separation from family and friends.
The visa sponsor is clearly a highly educated person who contributes very positively to the Australian community. The visa sponsor currently works as an Aviation Protection Officer at Melbourne Airport. She has an advanced Diploma of Business (Legal Practice), Advanced Diploma of Conveyancing and Security Certificate II qualification and is currently studying a Bachelor of Legal Studies at Latrobe University. She indicated to the Tribunal that she intends to become a lawyer. The visa sponsor has the potential to make a very significant and positive contribution to the Australian community. She has worked extremely hard to be in a position to do so. The visa sponsor made clear that she would find it personally devastating to be separated from family and friends and denied an opportunity to pursue her career and raise a family here in Australia.
The visa sponsor noted in her statement:
I would like to also stress that Australia is home and I have a well-established life and strong ties within Australia. Relocation would be detrimental to me, psychologically, physically and financially. I have worked hard to receive my qualifications and have worked even harder to reach my current role. I’m an honest and trustworthy person. I work at Melbourne Airport as an Aviation Protection Officer. I work alongside Border Control and continue to receive training on a regular basis. I have a large responsibility on my shoulders and love my role. A visa refusal would result in loss of my entire livelihood and place both Georgi and I in a severely detrimental position.
The Tribunal accepts the visa sponsor’s evidence that she had previously attempted to establish a life for herself and the visa applicant in both the United Kingdom and also in Macedonia. The visa sponsor made clear to the Tribunal that she found it very difficult to live in both of these locations. She told the Tribunal about the difficulties that she had in Macedonia, including an inability to find suitable employment and the consequential financial stress that imposed, language difficulties and ongoing discrimination she felt she suffered at the hands of some members of the local community as a consequence of her being seen as a foreigner. The visa sponsor also described the difficulty that she would have in maintaining an existence in the United Kingdom given the expense of living there, as well as the difficulty that she would have in securing suitable employment given the existence of some barriers to her present qualifications being properly recognised there. The visa sponsor also told the Tribunal of her concern about the ongoing uncertainty in relation to the right of the visa applicant and indirectly herself to maintain residency in the United Kingdom in the context of ongoing Brexit uncertainty. Both the visa sponsor and visa applicant made clear that they considered the prospect of living elsewhere in Europe to be extremely difficulty due to language barriers, difficulty in obtaining employment and lack of family support. The Tribunal accepts this evidence.
The Tribunal is satisfied that the visa sponsor has a particular vulnerability regarding ongoing separation or a sense of obligation to relocate, given her significant mental health concerns. The visa sponsor has an established history of depression. There are reports before the Tribunal in relation to her depression associated mental health conditions. In his report clinical psychologist Dr Cohen noted the significant impact of ongoing separation:
Mrs Dalenga has a diagnosis of Major Depression-she relies heavily on her husband for emotional support; separation is already causing Marija to self-harm and the risk of suicide is substantial if this married couple are separated on an ongoing basis.
If as a consequence of the visa applicant being denied his visa the visa sponsor relocated overseas, the visa sponsor’s broader Australian family are also likely to be adversely impacted. The visa sponsor has a substantial family presence in Australia and it was clear from the evidence that the visa sponsor is very close to her family. The Tribunal is satisfied that if the visa sponsor were to relocate it would place some constraint on family members’ capacity to maintain the close connection they currently have with the visa sponsor, due to the resulting separation. There was also evidence of the visa sponsor having a significant close friendship group in Australia who would also be adversely impacted should the visa sponsor relocate outside of Australia to live with her husband, given the difficulty they may have in maintaining their close friendship as a result of geographic dislocation.
The Tribunal draws these conclusions while being mindful that any consequence resulting from the visa sponsor relocating would not be a direct result of the Tribunal’s decision but rather a result of a choice made by the visa sponsor, albeit one she may feel obligated to make.
There was evidence of the visa applicant himself having family in Australia who would also be denied the opportunity to develop a closer relationship with him and the visa sponsor, if the visa applicant were to be denied his visa. While there was no evidence of any substantial connection between visa applicant and his wider family in Australia, the Tribunal accepts that in the event his visa is refused they would be denied the opportunity to develop a stronger connection with him, as well as the visa sponsor, and in that sense would be adversely impacted.
For these reasons, and in particular the potential impact on the visa sponsor, this consideration weighs heavily against a refusal of the visa applicant’s visa.
Impact on victims
There was no evidence before the Tribunal of the impact the Tribunal’s decision would have on victims of his past offending. The Tribunal therefore places no weight on this consideration.
Impact on Australian business interests
The visa sponsor gave evidence to the Tribunal of the potential adverse impact her permanent relocation outside of Australia may have on both the Australian Government and Australian business, as a consequence of the difficulty she may have in supporting her existing HECS debt and other loan obligations. The Tribunal notes that even in circumstances where the visa sponsor felt obligated to relocate overseas to reside with the visa applicant she would continue to have a legal obligation to meet her existing debts, and that any potential adverse impact is extremely indirect in any case. Accordingly the Tribunal gives this consideration no weight.
Other
While it was accepted by the parties that no relevant international non-refoulement obligation consideration arose in this case, both the visa applicant and the visa sponsor gave evidence to the Tribunal of a concern they had regarding their personal safety, should the visa applicant’s visa be refused and they were at some point in the future required to return to Macedonia to live. There was evidence before the Tribunal of the ongoing social and political unrest in Macedonia, the difficulty the visa applicant and visa sponsor may have in securing ongoing employment, accessible and appropriate social support and health services in Macedonia as well as the high rates of crime in that country. The Tribunal acknowledges the significant challenges that may exist for both the visa applicant and the visa sponsor in the event that at some point in the future they felt compelled to return to Macedonia to live. However, in weighing this consideration, the Tribunal notes that presently the visa applicant has the capacity to be able to reside in the United Kingdom and even in circumstances where that right was adversely impacted through the Brexit process, he continues to have the right to reside elsewhere in Europe. Again, while acknowledging that relocation elsewhere in Europe in turn may impose challenges for the visa applicant and, were she to reside with him, the visa sponsor also, any weight to be given to this consideration must be tempered by the fact that it is both a speculative and indirect consequence of any decision that the Tribunal may make in this matter. For these reasons, the Tribunal gives only very limited weight to this consideration.
CONCLUSION
The Tribunal is satisfied that the visa applicant does not pass the character test set out in section 501(6) of the Act. Therefore the Tribunal is required to consider whether to exercise the discretion in section 501(1) of the Act in accordance with the Direction.
The Tribunal accepts that the nature of the visa applicant’s prior offence is extremely serious however, for the reasons set out, it assesses the risk of the visa applicant reoffending in a similar manner or in a way that could cause harm to the Australian community to be extremely low. For this reason in particular, the Tribunal considers the protection of the Australian community consideration to weigh only slightly in favour of refusing the visa applicant’s visa, and the expectations of the Australian community consideration to weigh in favour of refusing the visa applicant’s visa but not significantly so. The Tribunal also accepts that a refusal of the visa applicant’s visa would not be in the best interests of the visa sponsor’s nieces, and as a consequence the Australian minor consideration weighs slightly against a refusal of the visa. The balance of the considerations, other than the family consideration, are either neutral or of limited weight.
As referred to earlier in these reasons, while primary considerations are generally to be given greater weight than other considerations, it is now well established that in the right circumstances the Tribunal can give greater weight to a non-primary consideration. In the Tribunal’s view this is such a case. The decisive consideration in the mind of the Tribunal is the very significant adverse impact a refusal of the visa applicant’s visa would have on the visa sponsor herself. The Tribunal is satisfied that such an adverse impact would occur regardless of whether the visa sponsor elected to remain in Australia separated from her husband or relocate to live with him and be separated from friends and family in Australia.
Accordingly, having carefully weighed all of the considerations, the Tribunal is satisfied that the overall balance weighs against a decision to refuse the visa applicant his visa under section 501(1) of the Act.
DECISION
The Tribunal sets aside the decision under review and in substitution decides not to refuse the visa applicant a Partner (Subclass 309) visa under section 501(1) of the Act.

111.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member.

....................[sgd]......................................
Associate
Dated: 24 January 2020

Advocate for the Applicant: Self-represented

Advocate for the Respondent: Ms Siran Nyabally

Solicitors for the Respondent:
Australian Government Solicitor

[2019] AATA 6009

16 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Siran Nyabally
Solicitors for the Respondent:	Australian Government Solicitor