Husejnovski and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 677
•29 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 677
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/1396
GENERAL ADMINISTRATIVE DIVISION ) Re FEJAS HUSEJNOVSKI
Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date29 June 2004
PlaceMelbourne
Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Immigration – sub-class 309 spouse visa – multiple visa applications - false and misleading statements– whether of good character – re-marriage to review applicant - decision set aside.
Migration Act 1958 – s501
REASONS FOR DECISION
29 June 2004 Mr S P Estcourt QC., (Deputy President) 1. In this case the Tribunal finds in favour of Mr Husenjovski’s application to set aside the decision of the Minister to refuse a spouse visa to his wife Najme Husejnovski, to allow her to travel from Macedonia to join her husband in Australia.
2. The reason for the Tribunal’s decision is that Mrs Husejnovski has satisfactorily explained her multiple applications for visas to come to Australia, her divorce from Mr Husejnovski, her intervening marriage and divorce and her subsequent re‑marriage to Mr Husejnovski. There being no other suggestion that Mrs Husejnovski is of bad character, the Tribunal is satisfied that she passes the character test posed by s501 of the Migration Act 1958 (“the Act”).
3. Mrs Husejnovski (“the visa applicant”) is a citizen of Macedonia. On 25 March 2003 she applied for a sub-class 309 spouse visa on the basis of her marriage to Mr Husejnovski (“the review applicant”). The application was refused by a delegate of the Minister (“the respondent”) on 4 December 2003 on the basis that the visa applicant failed the character test, and that the delegate was not satisfied that the case was appropriate for the exercise of her discretion to nonetheless grant the visa.
4. On 18 October 1973, the visa applicant and the review applicant were married in the former Yugoslav Republic of Macedonia. They had three children, Lefterije born in 1973, Viktor born in 1976 and Dasmir born in 1986.
5. On 16 March 1988, the visa applicant and the review applicant divorced.
6. Somewhere between 1988 and 1989, the review applicant travelled to Australia on a visitor visa. No departmental records exist to show the details of that application, or the date upon which he entered Australia.
7. On 17 December 1989, the review applicant married Kathleen Louise Batty in Australia.
8. Somewhere between 1990 and 1991, the visa applicant applied for a remaining relative visa which was refused on the grounds that her divorce from the review applicant was “connived”.
9. On 22 September 1992, the visa applicant applied for and was refused a visitor visa.
10. On 2 December 1993, the review applicant became an Australian citizen.
11. On 22 June 1994, the review applicant successfully sponsored his son Viktor for a child visa.
12. In 1995, the visa applicant applied for and was refused a parent visa on the ground that the majority of her children were still in Macedonia.
13. On 23 March 1996, the review applicant successfully sponsored his other son, Dasmir for a child visa.
14. On 10 September 1996, the visa applicant married an Australian citizen, Miroslav Filipovic, in Macedonia.
15. On 25 October 1996, the visa applicant applied for a permanent spouse visa on the basis of her marriage to Miroslav Filipovic. That visa was refused on 14 April 1998.
16. On 1 September 1997 the review applicant and Kathleen Louise Batty were divorced.
17. On 11 November 1998, the visa applicant again applied for a spouse visa on the basis of her marriage to Miroslav Filipovic That application was refused on 22 November 1999. Both that application and the earlier spouse visa application were refused on the ground that the delegate was not satisfied that the parties had a genuine and continuing relationship.
18. On 17 March 2000, the visa applicant and Miroslav Filipovic divorced.
19. On 1 September 2000, the visa applicant arrived in Australia on a visitor visa granted on 26 July 2000 and valid for 6 months.
20. On 9 October 2000, the visa applicant and the review applicant married for the second time.
21. On 13 February 2001, the visa applicant applied for a protection visa, which was refused on 19 October 2001. That refusal was affirmed by the Refugee Review Tribunal on 18 October 2002.
22. On 12 December 2002, the visa applicant applied to the Minister for intervention under s417 of the Act which was refused on 13 March 2003.
23. On 25 March 2003, the visa applicant applied for a spouse visa and departed Australia on 28 April 2003. The visa was refused on character grounds on 4 December 2003 and on 23 December 2003, the present application was made to the Tribunal for a review of that refusal.
24. An analysis of the statement of facts and contentions relied upon by the respondent in conjunction with the record of the decision under review discloses five separate areas of concern as to the visa applicant’s character. They are:
(a)that the visa applicant has made unsuccessful applications for five visas of different types in the period between 1991 and 1999;
(b)that the visa applicant and the review applicant had a long-term plan involving their divorce and re‑marriage in order to facilitate the visa applicant’s entry to Australia;
(c)that the marriage to Mr Filipovic was not genuine and was entered into for the purposes of the visa applicant gaining entry to Australia;
(d)that the visitor visa granted to the visa applicant on 26 July 2000 was obtained as a result of false and misleading information, because her real intention in coming to Australia was to marry the review applicant;
(e)that the protection visa application made on 13 February 2001 was
made purely to remain in Australia.
I will deal in turn with each of these concerns.
25. As to the issue of multiple visa applications, the respondent concedes in the statement of facts and contentions filed in this application that multiple applications themselves are not matters “which ought to be held against an applicant”, but nonetheless contends that in the present case the visa applicant was “trying all avenues in her attempts to come to Australia”.
26. In the Tribunal’s view, the making of legitimate applications for numerous visas of different types, which were successively refused, does not reflect adversely on the character of the visa applicant. It is not suggested to the visa applicant that her first application for a visitor visa or her applications for remaining relative and parent visas, involved any migration misconduct. They were refused for varying reasons, among them an adverse view formed about the reason for her divorce, but the refusals were never challenged and the reasons tested. The two spouse visa applications whilst the visa applicant was married to Mr Filipovic will only reflect on the visa applicant’s character if the marriage to Mr Filipovic is found by the Tribunal to be other than a genuine marriage. The visitor visa was granted. There is no suggestion that the protection visa was made by the visa applicant without a belief in her entitlement to such a visa. The present spouse visa application is the subject of a review by the Tribunal which will take into account all matters expressed to go to the visa applicant’s character.
27. The suggestion that the visa applicant and the review applicant had a long term plan to divorce and re‑marry to facilitate migration to Australia arises by implication from the respondent’s statement of facts and contentions, and from the way in which the case was conducted. The allegation is however, expressly contained in the decision record of refusal by the Minister’s delegate, Tara Kavenagh, dated 4 December 2003. Ms Kavenagh wrote:
“I do not accept the applicant’s claim that the 12 year period between the parties divorce and re‑marriage is sufficient to demonstrate that their original divorce and subsequent re‑marriage was genuine. The very harsh economic conditions and continuing security problems in Macedonia and the significant economic gains for the entire family that were to be gained by embarking on this scheme, provides clear incentive for the parties to have willingly separated for this period of time in order to achieve the aim of migration for all family members.
In reaching my conclusion I have taken into consideration the visa applicant’s immigration history which shows she has lodged 7 applications for migration to Australia in the period since her sponsor first migrated to Australia. This supports my belief that it was the parties long-term plan that she would re-join the sponsor in Australia after their initial divorce. I acknowledge that the applicant has other family members living in Australia who she would no doubt also like to be re‑united with, however the fact that once she arrived in Australia in 2000 she very quickly married the sponsor and started living with him, suggests that the sponsor was her main motivation for migration all along.”
28. The Tribunal does not accept this theory. The review applicant gave evidence that he married the visa applicant initially at a very early age and “wandered around” and left her alone which led to conflict and they decided to separate. He came to Australia. That evidence was not seriously challenged.
29. There is a suggestion that the divorce was contrived because the visa applicant continued to stay in the review applicant’s father’s house after he left for Australia. That is true, however the unchallenged and uncontradicted evidence before the Tribunal from the review applicant was that the visa applicant continued to stay in his father’s house because it was not his house but his father’s, and because the review applicant and the visa applicant’s children were young at that stage and the visa applicant had no family of her own to live with, her family house being empty, (I infer disused).
30. Moreover, the Tribunal has evidence from the couple’s son Dasmir that the visa applicant moved out of the review applicant’s father’s house a couple of months after Dasmir migrated to Australia in March 1996. Dasmir told the Tribunal that when he returned to Macedonia to visit his mother in 2000, his mother was living at his sister’s house. That is to say, the visa applicant was residing with her daughter and her daughter’s family.
31. The intervening marriages of the visa applicant and the review applicant also militate against a long-term plan to divorce and re-marry to facilitate migration to Australia. I will deal with the visa applicant’s marriage to Mr Filipovic shortly. First, as to the review applicant’s marriage to Kathleen Louise Batty, the unchallenged evidence of the review applicant is that he and Ms Batty had a very good relationship in the beginning, but that the relationship ended after more than 7½ years when Ms Batty found another person with whom she had an affair and formed a relationship. The review applicant’s evidence is that this had a devastating effect upon him and he started to drink heavily as a result.
32. The respondent points to the suspicious circumstance of the visa applicant arriving in Australia on 1 September 2000 and marrying the review applicant a month later. This was however, satisfactorily explained, in the Tribunal’s view, by the evidence of the visa applicant’s son Dasmir.
33. Dasmir gave evidence, which was not controverted, that when his mother and father split up he was just a child and when invited by his father, he was anxious to come to Australia. When he returned to visit his mother in Macedonia in 2000 however, he felt for his mother’s position and formed the idea of getting his mother and father back together. He said that he didn’t discuss this with his father, before going to Macedonia, but the opportunity arose when his mother came to Australia on a visitor visa to visit her mother who was sick. He said that his mother was staying with his uncle at that time, and that it was when he was going backwards and forwards between his father’s house and his uncle’s house visiting his mother that he started to raise the question of the couple getting back together. He said that he told his father that if they didn’t get back together he would leave school and go back to Macedonia with his mother when she went.
34. Dasmir’s evidence was confirmed by the review applicant. He was no doubt motivated in agreeing to remarry by a desire not to see his son return to Macedonia, but the review applicant was nonetheless desirous of remarriage. He gave evidence that since the couple have been re‑married, their relationship has been better than ever and that he has stopped drinking heavily and feels well enough again to go back to work. His unchallenged evidence was that the relationship between he and the visa applicant is much better because he is more mature and he sees things differently now. He wants to continue to live his life happily with his wife.
35. The visa applicant gave evidence that before she came to Australia she was not thinking about marrying her first husband again, and that it was not discussed until well after she came to Australia. The evidence of both the visa applicant and the review applicant that they did not discuss the question of marriage before the visa applicant came to Australia on a visitor visa was not shaken in cross-examination.
36. The visa applicant said that the decision to re‑marry was made 2 to 3 weeks after she arrived in Australia, and that it was Dasmir who persuaded her that she should reunite with the review applicant again. She was also approached by her father‑in‑law and mother‑in‑law. She told the Tribunal that since she has been reunited with her husband the relationship has been even better than it was previously when it was good. She said that she feels very happy in the relationship. She seemed most genuine in the giving of this evidence, and it withstood cross‑examination without appearing strained.
37. It is suggested on behalf of the respondent that the applicants’ evidence that they had not spoken about re‑marriage before the visa applicant came to Australia is undermined by a report from the applicants’ psychologist, Mr Kleynhans who reported on 19 March 2003 that “after long discussions, and liaising amongst family members, they decided to reconcile their differences and get back together again. Hence … (the visa applicant) returned to Australia to start the process and they got married to each other for the second time …”.
38. The Tribunal is satisfied however with Mr Kleynhans’ explanation for this statement which is given in a subsequent report dated 16 February 2004. He wrote:
“It was brought to my notice that there was some discrepancies about the information I provided in my report dated 19 March 2003. I have spoken to Mr Husejnovski again on 16 February 2004 about the information in question and I hereby submit the clarification. Mr Husejnovski and Mrs Sulemanovska were married when they were living in Macedonia. He so much wanted to come to Australia, but his wife resisted as she felt that their children were too young to come. This put a strain on their relationship as their differences became irreconcilable. He made the decision to come to Australia and she’d remain in Macedonia. Due to irreconcilable differences, they got divorced. Both married again, but these marriages failed. Mrs Sulemanovska came to Australia on 31/8/2000 on a visitor’s visa as she wanted to be with her sick parents who were hospitalised. During her stay in Australia, the civil war broke out in Macedonia and she was advised not to return there and to apply for a Refugee Visa; the latter was rejected. In the mean time their children were talking amongst themselves as both parents (Mr Husejnovski and Mrs Sulemanovska) were not happy with their lives. They arranged for their parents to get together and to talk things over and after a long deliberation, Mr Husejnovski and Mrs Sulemanovska, decided to get married again. This occurred on 9/10/200.”
39. The Tribunal is satisfied that there was no plan between the visa applicant and the review applicant to divorce and re‑marry, and is satisfied that both the original divorce and the subsequent re‑marriage were genuine.
40. The next issue is as to whether the marriage between the visa applicant and Mr Filipovic was genuine. As to this, the visa applicant gave evidence that she divorced the review applicant because he left and went to Australia, that she stayed in his father’s house because she had her children to look after and had nowhere else to go, and that contact was only made between her and the review applicant in connection with the children. She said that she had met Mr Filipovic first in about 1983, and that he had next contacted her over the telephone when he was coming to Macedonia and suggested getting together. He stayed for about 3 weeks and he liked the visa applicant’s family environment and “expressed the wish to get together”. The visa applicant, having known him previously, found she really liked him, and felt that he was a good person. She agreed to marry him. She said that she married him “so that I could be with my people and so I would be a married person like everybody”.
41. The visa applicant was cross-examined about her marriage to Mr Filipovic. It was put to her that the marriage was only to obtain a visa to come to Australia, but her emphatic response was:
“No, no, no. I wanted him for a husband.”
42. It was put to the visa applicant that when she was interviewed in 2003 in connection with her present visa application she told migration officials that she married Mr Filipovic just to get a visa to come to Australia. She answered, with considerable verisimilitude, that she had experienced difficulties with the interpreter on that occasion, but that she did not say that she married Mr Filipovic just to get a visa to come to Australia, rather it was being suggested to her by the interviewer that she was marrying him for his money.
43. The Tribunal accepts the visa applicant’s evidence in chief that she was influenced in her acceptance of Mr Filipovic’s marriage proposal by the fact that it would enable her to live in Australia with all of her remaining relatives, (with the exception of her daughter who continues to live in Macedonia with her husband and children), but that she genuinely liked Mr Filipovic, believed him to be a good enough person to make the decision to marry and wished once again to be a married person.
44. In the Tribunal’s view that is sufficient for the marriage to be regarded as genuine. The Tribunal directs itself in accordance with Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (Federal Court of Australia, Full Court, 8 May 1990, Unrep.) at 11 where the Court said:
“People enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.”
45. In the Tribunal’s view, on the evidence, the marriage of the visa applicant to Mr Filipovic met that test. The marriage endured, (despite separation), for 3 years and 5 months and although the divorce record from Macedonia mentions that Mr Filipovic “deserted” the visa applicant by departing for Australia two to three weeks after the marriage it is clear that on 9 December 1997, 15 months after the marriage, Mr Filipovic was still acting in support of his sponsorship of his wife by attending a DIMIA interview at Dandenong in Victoria.
46. The next issue is the suggestion that the visa applicant’s application for a visitor visa involved the provision of false and misleading information, because the visa applicant’s intention in coming to Australia was to re- marry the review applicant.
47. With regard to this issue, the Tribunal has already found that the review applicant and the visa applicant had not discussed the prospect of re‑marriage prior to the visa applicant coming to Australia and has also found that there was no long term plan to divorce and re‑marry. Moreover, the evidence from the visa applicant’s mother Mrs Sulemanovska was that at the time of her daughter’s visit she was sick and in hospital. The Tribunal is satisfied that visiting her sick mother was the visa applicant’s true purpose in coming to Australia.
48. The last of the issues listed above is the suggestion that the visa applicant’s application for a protection visa one month before the expiry of her visitor visa indicated that the visa applicant was seeking to remain in Australia by any means available.
49. It is true that a protection visa is a type of visa that can be applied for whilst a person is in Australia, whereas a spouse visa application necessitates the visa applicant being outside the country. However, there is no suggestion in this case that the visa applicant did not have a genuine belief in her entitlement to apply for a protection visa.
50. The visa applicant gave evidence that it was suggested to her that a protection visa would be more suitable, and that she was likely to be more successful in an application for a protection visa. She also knew that with a protection visa application she was entitled to stay in Australia. Her evidence however was that she was fearful of returning to Macedonia because there was war there.
51. No doubt the suggestion that she was more likely to be successful in an application for a protection visa stemmed from the fact that she had, on two earlier occasions been refused a spouse visa and had been refused a remaining relative visa on the grounds that her divorce from the very person she had re‑married was “connived”. Nonetheless, Macedonia had gone into civil war between ethnic Albanians and orthodox Macedonians, and it was never put to the visa applicant that she did not genuinely believe that the situation in her country was not safe and that she feared to return.
52. The mere fact that the visa applicant chose to make an application for a protection visa rather than a spouse visa does not reflect on her character. For such an application to cause her to fail the character test, it would need to be the case that it was made either without holding a genuine fear of returning to Macedonia or with knowledge that she was not entitled to a protection visa. Neither is the case.
53. In all of the circumstances of this application, the Tribunal is satisfied that each of the character concerns held by the respondent in respect of the visa applicant have been satisfactorily explained by acceptable evidence. There being no other suggestion that the visa applicant is not a person of good character, the Tribunal is satisfied that she passes the character test posed by s501 of the Act.
54. It follows that the decision of the Tribunal is that the decision under review is set aside and that the visa application is remitted to the respondent with a direction that the visa not be refused on character grounds.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC.,
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 1 June 2004
Date of Decision 29 June 2004
Counsel for the Applicant Ms Georgina Costello with Ms Ada Falcon
Solicitor for the Applicant Ryan Carlisle Thomas
Counsel for the Respondent Mr Michael Brereton
Solicitor for the Respondent Australian Government Solicitor
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