Dzemali and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 388
•28 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 388
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/892
GENERAL ADMINISTRATIVE DIVISION ) Re KAJAN DZEMALI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date28 April 2005
PlaceMelbourne
Decision The decision under review is affirmed.
[The Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration – applied for spouse visa on two occasions - visa refusal – whether of "good" character - contrived marriage with Australian citizen - providing false and misleading information – best interests of the children – decision affirmed.
Migration Act 1958 – s501
Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Wan and Minister for Immigration and Multicultural and Indigenous Affairs (2000) 107 FCR 133
REASONS FOR DECISION
28 April 2005 The Hon C R Wright QC., (Deputy President) A. The Application to Review
1. On 25 June 2004 the respondent’s delegate refused an application by Juldrita Dzemali (the visa applicant) for a Class UF Partner-Provisional (Sub-Class 309) visa on the ground that she did not meet the character test specified by s501 of the Migration Act 1958 (“the Act”).
2. The visa applicant’s husband and sponsor, Kajan Dzemali, has applied to the Tribunal for a review of that decision. The hearing of the application took place on 22 February 2005.
B. Chronology and Findings of Fact
3. The visa applicant and the review applicant were married in Macedonia on 15 May 2003. Both applicants were born in Macedonia, the review applicant on 3 March 1971 and the visa applicant 8 September 1973. In 1988 they commenced to live in a de facto relationship which, it is alleged, continued until early 1992. It is alleged that their relationship was opposed by the visa applicant’s father who did not approve of the review applicant.
4. On 29 November 1992, the visa applicant gave birth to a daughter Ulzime Dzemali. It is not in dispute that the review applicant was the father of the child. It is claimed by the applicants that their de facto relationship came to an end because the visa applicant failed to tell the review applicant of her pregnancy until it had progressed for one or two months. Whilst giving evidence before the Tribunal on 22 February 2005, the visa applicant said that the review applicant was angry “because I didn’t tell him on time that I was pregnant – that was the key reason.” The review applicant in his evidence said “we broke up because she didn’t tell me from the start that she was pregnant with my child and then things started getting worse and worse and then we broke up.” In light of the other evidence as to their subsequent marriages to different partners and the sequence of circumstances and events which occurred thereafter, and the general implausibility of these explanations, I find this evidence to be entirely unconvincing. In short I do not believe that the relationship between the parties came to an end at that time.
5. Exactly how the relationship between the applicants progressed after Ulzime’s conception and birth is not clear from the evidence, but it is undisputed that the review applicant subsequently travelled to Australia on a visitor’s visa on 16 July 1996 and, on 15 December 1996, married Ms Dauti Kine, an Australian citizen. On 23 March 1999 he was granted a spouse visa on the basis of this marriage. He says the marriage ended later that year when Ms Kine discovered that he had fathered a child during his previous relationship with the visa applicant.
6. During the review applicant’s absence in Australia, the visa applicant married Amet Ameti, an Australian citizen who, at that time, was visiting Macedonia. Their marriage took place on 12 September 1997. However within about 6 weeks of their nuptials Mr Ameti returned to Australia, leaving his new spouse and her child in Macedonia.
7. On 17 October 1997, the visa applicant made the first of two applications for a spouse visa to enter Australia on the basis of her marriage to Mr Ameti. I find that when she was interviewed by a migration official in Belgrade on 10 June 1998, the visa applicant claimed that her marriage to Ameti was genuine. She also alleged that her relationship with the review applicant had come to an end in March 1994 when he beat her and kicked her out of their home. She said that she had then returned to her parents’ home with her child. She said that her relationship with the review applicant had been broken in February 1993 because he was drinking and hitting her.
8. In making these findings of fact as to what was said at the interview, I have taken into account the submissions made by Mr Hughan, counsel for the applicants, to the effect that the absence of actual notes and the lack of identification of the migration official conducting the interview rendered the “case dump” material recorded in the T documents (Exhibit R1) of suspect weight and little evidentiary value. I have also taken into account the visa applicant’s claim that the interpreter provided for the interview was inappropriate as he (or she) was Macedonian and she herself speaks Albanian as her principal language and only a little Macedonian. She claimed that she did not tell the interviewer many of the things recorded in the case dump. I have also taken account of the admissions which she made during cross-examination. I do not accept the visa applicant’s denials of the content of the recorded material, which I accept as a fair and accurate resumé of her conversation with the interviewer.
9. On 22 January 1999 the Minister’s delegate refused the visa applicant’s first application for a spouse visa, and, on 8 April 1999, Mr Ameti applied to the Migration Review Tribunal to review the delegate’s decision. That application was unsuccessful and the delegate’s decision was affirmed on 5 September 2000.
10. On 26 May 1999 the review applicant returned from Australia to Macedonia and resumed his de facto relationship with the visa applicant. Notwithstanding the resumption of this relationship the visa applicant made a second application for a spouse visa on the basis of her marriage to Ameti. This was lodged on 23 March 2000. In the application she identified herself by her maiden name of Juldrita Jakupovska. The respondent submitted that this was done to disguise the fact that she had made a previous unsuccessful application. She denied this, but I think the respondent’s submission is probably correct.
11. At the time of making the second spouse application, the visa applicant was several months pregnant with her second child by the visa applicant. According to the evidence of both applicants this was a planned pregnancy. The visa applicant was interviewed by a migration officer at the Belgrade Embassy in relation to the application on 17 July 2000. A few days later, on 24 July 2000, she gave birth to her daughter Leonora.
12. In the “case dump” record of the interview which is reproduced at pp104 to 107 of Exhibit R1, it is noted that the visa applicant told the interviewing officer that Mr Ameti was the father of her expected child. It is also noted that she claimed that she met Ameti when they were children and they later wished to marry, but this had been opposed by her father. The visa applicant in her evidence said that once again she had not been provided with an inappropriate interpreter at this interview and that she had not said many of the things attributed to her in the record. I do not believe her. I find that she said those things attributed to her in the interview record and I reject her claim that what she said was misinterpreted. Again, I have taken account of Mr Hughan’s submissions in arriving at these conclusions.
13. On 8 October 2000 the Minister’s delegate refused the visa applicant’s second spouse visa application.
14. On 14 January 2001 the review applicant returned to Australia. In a document lodged with the Tribunal as the review applicant’s proof of evidence on 1 February 2005 the review applicant is recorded as saying:
“6. In July 2000 Juldrita gave birth to our second daughter Leonora. I was not prepared at that time to accept my responsibilities to my wife and children and I returned to Australia. Over the next two years I felt very sad without them and realized that I wanted to be with Juldrita forever.”
15. At first the review applicant seemed to agree that he had said this (Transcript pp 57 and 58), although it contradicted his evidence at the hearing that he had actually come to Australia intending to buy a house and create the right conditions to bring the visa applicant and their 2 daughters to live in Australia. However, later, in cross-examination, he denied the statement contained in the proof and denied that he had previously agreed making it during his evidence.
16. On 16 February 2001 the visa applicant divorced Ameti.
17. On 4 March 2003 the review applicant, who had continued to reside in Australia since 14 January 2001, was granted Australian citizenship and the following month, on 17 April 2003, he returned again to Macedonia. Once again he resumed cohabitation with the visa applicant and, on 15 May 2003, they were married. They have lived in Macedonia with their two children ever since.
18. On 23 July 2003 the visa applicant applied for a spouse visa on the basis of her marriage to the visa applicant. That application is the subject of this application to review.
19. In my opinion, the undisputed facts recounted above and the findings I have made as to certain disputed issues strongly suggest to me that there has been an enduring bond and mutual commitment between the visa applicant and the review applicant which has existed continuously since their first entering into a de facto relationship in 1988, and that their respective marriages to Dauti Kine and Amet Ameti (both of whom were Australian citizens at all relevant times) were nothing more than sham unions entered into for the purpose of their each securing valid entry into Australia, with a view to subsequently acquiring permanent residency or Australian citizenship and then resuming their previous connubial existence.
20. The visa applicant says that had she secure a spouse visa enabling her to come to Australia to live with Ameti she would have done so because of her father’s wishes in the matter. On this basis it may be argued, as it has been successfully in some previous cases (see cases referred to on page 7 of the Applicant’s Statement of Facts and Contentions) that a marriage to acquire a right of entry into this country without any component of romantic love is nonetheless a valid and genuine marriage provided there exists a bona fide long term commitment between the parties. This argument was advanced on behalf of the applicants, but I have no hesitation in rejecting it in the circumstances of this case as it is plain to me that if the visa applicant had succeeded in either of her Ameti spouse visa applications, she would have come to Australia simply to await an opportunity to resume cohabitation with the review applicant and their 2 daughters. In my opinion she never had a long term commitment to Ameti, and, as I have said the union between them was a sham.
21. It was plainly advantageous for each applicant to seek entry to Australia by means of marriage to a person already holding Australian citizenship, because the anticipated waiting period which would be inevitable before they could reunite if one only of them gained entry via a spouse visa would thus be avoided or materially shortened. It was an interesting scheme, but its transparency is obvious in hindsight.
22. Mr Hughan submitted that such inferences as I have drawn are not supported by the evidence, but plainly I do not agree with him. My findings are made on the basis of my satisfaction of each finding on the balance of probabilities.
23. However, if I am shown to be wrong in reaching these conclusions, I should also record that I have no doubt that the visa applicant has demonstrated that she has told a number of untruths for the purpose of advancing her quest for entry into Australia. She admitted that at her interview at the Belgrade Embassy she said she was in a genuine relationship with Ameti at that time and that this was untrue. She also agreed that she said she didn’t know where the review applicant was living. This also was untrue. (At that time they were living together). It is beyond doubt also that at the time of her second spouse visa application as Ameti’s wife, the relationship, if it ever existed was at an end and by pretending otherwise she was presenting a false case to the Department.
24. She agreed with Mr Brereton that Ameti knew she was living with the review applicant as his wife at that time, but she claimed that Ameti understood that if she obtained a spouse visa based on her marriage to him she would rejoin him (Ameti) in Australia with her two children. She also claimed that she had told the review applicant of her intention to do this and to live with Ameti as his wife in the event that her application succeeded. He evidence as to these matters lacked credibility and, as Mr Brereton put to her at page 41 of the Transcript, her story that she deliberately became pregnant to the review applicant to have her second daughter so should “get as far away as possible” from Ameti simply didn’t make sense.
C. Character
25. There are adverse character implications which clearly arise from my findings and the inferences which I have drawn. In considering whether or not it should be concluded that the visa applicant is a person of good character, the provisions contained in the Minister’s Direction No 21 which give policy guidance on this issue must be taken into account. So too must the authoritative statements made by the AAT and the Federal Court in several reported cases as to the scope and meaning of “good character” within the context of the Act. All relevant parts of the Minister’s Direction and the leading cases on the matter have been referred to in the written Statements of Facts and Contentions supplied by the solicitors for the applicants and the respondent respectively, and I have considered them all.
26. In my opinion the visa applicant is not a person of good character within the meaning of the Act.
D. Discretion
27. It is therefore necessary to consider whether or not my discretion should be exercised to ameliorate the consequences of this finding. The Minister’s Direction No 21 requires that in considering this issue decision-makers must have regard to primary and other considerations. As a matter of policy the Direction states that they:
“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.”
(Direction, paragraph 2.2)
The primary considerations are:-
(a) the protection of the Australian community;
(b) the expectations of the Australian community; and
(c) the best interests of a child or children.
The other considerations relevant to the circumstances of this case include:
(a)the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
(b)genuine marriage or de facto relationship to an Australian citizen;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(d)family composition of the non-citizen’s family;
(e)…
(f)…
(g)…
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary or permanent visa;
(j)the purpose and intended duration of the entry or stay, including any significant compassionate circumstances;
(k)… ..”
Protection of the Community
28. Within the terms of paragraph 2.6(c) of the Minister’s Direction, the Government regards as “very serious” both applying or nominating for permanent residence on the basis of a contrived marriage and making false or misleading statements in connection with entry into Australia. It was submitted by counsel for the applicant that her misconduct is unlikely to be repeated. I do not agree. In this connection I venture to repeat what I said in Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714 @ paragraph 33:
“In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.”
The visa applicant has clearly shown that she is prepared to engage in a course of deceptive conduct to achieve a desired purpose. In my opinion there is a distinct prospect of recidivism in this case.
I am also of the opinion that a degree of general deterrence would be achieved by refusing the visa sought in this case. The views of Deputy President Block, Purvis QC and Professor G D Walker set forth on page 11 of the respondent’s Statement of Facts and Contentions clearly support this view. I have also expressed similar views myself on previous occasions.
Expectations of the Community
29. Generally speaking Australian citizens expect non-citizens to obey the migration and other laws of this country, and also that persons who do not do so will not be admitted in the event of a serious breach. In any individual case the expectations of the community must be judged from the standpoint of moderate and humane individuals with a clear perception of the relevant facts. It is my assessment that such individuals would not expect the visa applicant to be rewarded for her deceptive conduct by the grant of a visa in this case.
Best Interests of the Children
30. Very little evidence was given upon which a positive finding could be made as to the relative benefits of the visa applicant’s children being raised in Australia. At this time neither child is an Australian citizen, although their father is. Neither child has ever been to Australia. There is no evidence of their knowledge of English or familiarity with Australian customs and culture. There is some evidence that the family, including both applicants and both children, are living in poor circumstances. What employment opportunities may exist for either or both parents in Australia is unclear. Both gave evidence at the hearing in their native language with the aid of an interpreter. There was no evidence that the family members or any of them suffers from chronic or other illness or disability. There is no evidence that the children would be separated from their parents or either of them if their mother’s visa application is refused.
31. The review applicant gave evidence that if the visa applicant is not permitted to enter Australia he will remain with his children in Macedonia. He did not say whether or not he is working or has a guaranteed source of income at the present time, but he did say that the unemployment rate in Macedonia is high.
32. Counsel for the respondent questioned whether the marriage relationship between the applicants is genuine but, as already indicated above I find that it is. In my opinion the applicants will continue living together with their children as a united family unit if the application for review is unsuccessful.
33. As pointed out in Wan and Minister for Immigration and Multicultural and Indigenous Affairs (2000) 107 FCR 133, it is necessary for a finding to be made as to the best interests of each child. On the basis of my observations above it is plain to me that neither the children nor the applicants will suffer any identifiable hardship if the visa sought is refused, but this does not mean that a finding should be made that it is in the children’s best interests to remain in Macedonia. On the contrary I think the only finding that can be made in good faith is that the children’s best interests, in the sense of their being provided with appropriate living conditions and welfare access would be found in permitting their mother to come to this country with them and her husband and to commence a new life here. I say that this is the only appropriate finding because I am familiar with present welfare and other relevant conditions in Australia and the evidence, albeit sparse, tends to suggest that Macedonia is a poor country with virtually a subsistence economy. Whether the product of nationalistic conceit, empirical experience, or media induced beliefs it is virtually impossible, in the absence of direct and compelling evidence, to conclude that life in Macedonia would be preferable to that in Australia, but at the same time it must be conceded that this is the opinion of a person of Australian ethnicity with no experience of life in Macedonia.
34. These findings do not necessarily mean that my discretion should be exercised favourably to the visa applicant. Indeed I am not persuaded it should be so exercised. As mentioned above there is no significant or demonstrable hardship to the applicants or their children. In saying this I am conscious that the review applicant has acquired Australian citizenship and he should not lightly be deprived of the benefits of citizenship notwithstanding his involvement in his wife’s misconduct. Ulzime is now 12½ years old and Leonora is nearly 5. There is no reason to suppose they cannot have a happy and fulfilling childhood in Macedonia.
35. In my opinion the decision under review should be affirmed. I now give that direction.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 22 February 2005
Date of Decision 28 April 2005
Counsel for the Applicant Mr G Hughan
Solicitor for the Applicant Ada Falcon
Counsel for the Respondent Mr M Brereton
Solicitor for the Respondent Australian Government Solicitor
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