Marjanovic and Minister for Immigration and Multicultural Affairs - [2000] AATA 692

DECISION AND REASONS FOR DECISION [2000] AATA 692

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/166

General Administrative DIVISION )

Re MARA MARJANOVIC
Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date11 August 2000
PlaceCanberra

Decision The decision of the Tribunal is that the decision under review is affirmed.

.......………...(Signed).............….….. DEPUTY PRESIDENT B H BURNS

CATCHWORDS
MIGRATION – application for a subclass 300 prospective marriage visa – applicant's fiancé found to be a person not of good character – discretion exercised in favour of refusing visa – decision affirmed.

Migration Act 1958, ss500, 501
Migration Regulations, clause 4001 in Schedule 4
Migration Series Instruction No. 164; "The Character Requirement"
General Direction – Visa Refusal s501 – No.5

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v. Baker (1997) 45 ALD 136

REASONS FOR DECISION

11 August 2000 Deputy President B.H. Burns

This is an application by Ms Mara Marjanovic ("the applicant") for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") dated 11 April 1999, refusing to grant her fiancé, Mr Dragan Maric, a subclass 300 visa - prospective marriage.
The decision was made pursuant to s501 of the Migration Act 1958 ("the Act") on the basis that Mr Maric is a person who is not of good character, and as such is unable to meet the public interest criterion outlined in clause 4001 prescribed in Schedule 4 of the Migration Regulations for the grant of a subclass 300 visa – prospective marriage.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with exhibits tendered by the parties. The exhibits included letters written by Mr Maric to the applicant (Exhibit R12), a psychologist's report by Ms Indira Haracic-Novic (Exhibit A1), details of Mr Maric's spouse 100 visa application (Exhibits R2 and R10) and documents associated with offences committed by Mr Maric (Exhibits R5, R8 and R9). In addition, the Tribunal heard oral evidence from the applicant, Ms Mara Marjanovic, and the applicant's son Mr Marinko Marjanovic. Ms Vida Maletic gave evidence with the assistance of a Serbo-Croatian interpreter, as did Mr Jovan Bogdanovic, Father Jakob Jovic and Mrs Borka Jovic. Mr Maric gave evidence by telephone from his flat in Sarajevo, also with the aid of a Serbo-Croatian interpreter.
The applicant was represented by Ms Robertson, a migration agent and then by Mr J Evans of counsel. The respondent was represented by Mr Cureton, departmental advocate, and then by Mr Gregg, departmental advocate.
Section 501 of the Act provided, as at the date of the respondent's refusal to grant the visa in question, as follows:
'Special power to refuse or to cancel visa or entry permit
501. (1) The Minister may refuse to grant a visa to a person ... if:
(a)subsection (2) applies to the person; …
...
(2) This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character; ...
...'

The Tribunal has jurisdiction to review a decision of the Minister under s501 by virtue of s500(1)(b) of the Act.

Part of the criteria which needs to be satisfied for a subclass 300 - prospective marriage visa is the public interest criteria set out in clause 4001 in Schedule 4 of the Migration Regulations. Clause 4001 prescribes that in order for a visa to be granted, the Minister must decide that
"……(1) The applicant meets the requirements of subclause (2), (3) or (4).
(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.
(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.
(4) An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa."
Policy guidelines have been issued with respect to the application of s501 of the Act and clause 4001 of the Regulations. (Migration Series Instruction number 164; Title "The Character Requirement"). The following parts are relevant
"9.5 Past criminal conduct or general conduct:
sub-paragraph 501(2)(a)(i) and (ii)

9.5.1 Paragraph 501(1)(a) of the Act provides that the Minister may refuse to grant a visa if subsection (2) applies to the person. Subsection (2) applies if the Minister is satisfied that a person is not of good character having regard to:

The person's past criminal conduct; or
The person's general conduct.

9.5.2    Paragraph 501(2)(a) is concerned with a person's conduct, both 'general conduct', and conduct of a more particular kind, described as 'criminal conduct'. Paragraph 501(2)(a) is not concerned with whether the conduct has had some temporal result, such as incurring a conviction, but is concerned with the light the conduct throws on the person's character.
9.5.3    Paragraph 501(2)(a) has specified matters which the Minister must have regard to; ie, he or she must take them into account and give weight to them because they are fundamental elements in making the decision; but this does not mean that the decision is to be made by reference to these matters exclusively. Hence, in deciding whether a person is not of good character, regard should be had to recent good conduct, as well as to past criminal conduct. Recent good conduct would fall under the heading of general conduct.
9.5.4    Baker's case [ ie Minister for Immigration and Ethnic Affairs v. Baker (1997) 45 ALD 136] held that the intention of Parliament in making s501(2)(a) was:
…simply to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories.
…

9.5.7 Even criminal conduct may not lead to the conclusion that a person is not of good character, eg because of the nature of the crime (some absolute offences need involve 'no moral obloquy', according to Baker's Case), or because of lapse of time since the offence, or the existence of positive evidence of reformation. On the other hand, a single instance of reprehensible conduct may suffice to show that a person is not of good character, depending on the gravity of the conduct and the other relevant circumstances.
9.5.8 As the FFC stated in Baker's Case:
The words 'good character' in the section should…be understood as 'a reference to the enduring moral qualities of a person'. Conduct may make those qualities visible, but it should never be confused with them. In each case, having regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.

9.6Past criminal conduct: sub-paragraph 501(2)(a)(i)

9.6.1 In deciding the question of character in relation to past criminal conduct, the onus of proof is on the Minister to show whether, at the time the application is being considered, the person is not of good character.
9.6.1.1 The starting point for such an inquiry is to ascertain what evidence exists at that particular time which could lead to a finding that, on the balance of probabilities, the person is not of good character.
9.6.1.2 Past criminal conduct does not only refer to conduct which was the subject of criminal conviction; reprehensible conduct for which there was no criminal conviction should also be taken into account as this will help to throw light on the person's character. Criminal conduct means conduct which is punishable by law, but which may not actually have been punished. It therefore includes conduct which has been punished by a conviction or convictions, and includes conduct for which there has been no conviction, but which is capable of conviction.
9.6.1.3 Consideration should also be given to recent good conduct (eg good works in the community) when deciding whether a person is not of good character. "Recent good conduct" includes conduct occurring after the criminal conduct.
9.6.1.4 A finding that a person is not of good character may be justified, in the absence of any mitigating factors, if the person:

...

has at any time been convicted of an offence in circumstances indicating habitual contempt, or disregard, for the law or for human rights.

...
9.6.2 Care must be taken, when considering the application, to balance such information against other relevant matters existing at that time such as:

·the nature, severity and frequency of the offence/s;
·how long ago the offence/s were committed;
·how old the applicant was when the offence/s were committed;
·the applicant's record since the offence/s were committed.
Relevant matters here would include:
any recidivism;
pattern of similar offences; and/or
pattern of continual or blatant disregard/contempt for the law.

9.6.3 Where a person has been convicted of one or more offences other than those set out in 9.6.1 above, there may also be grounds for a finding that a person is not of good character. The onus is once again on the Minister to show, that at the time of consideration of the application, the person was not of good character. When considering the application on the basis of these offences the same factors as outlined in 9.6.2 should be taken into account.
...
9.6.7 Where an officer believes there are grounds for a finding that the applicant is not of good character on the basis of the applicant's past criminal conduct, the question of the exercise of ministerial discretion to grant a visa will arise, despite this negative finding. For guidance on policy in this regard see paragraphs 9.8.9 and 9.9.1 to 9.9.4.

9.7General conduct: paragraph 501(2)(a)(ii)

9.7.1 General conduct in this context means any past or current conduct which may establish that the person is currently not of good character and includes criminal conduct. Criminal conduct is a subset of general conduct, but is set out in s.501(2)(a) separately from general conduct as it is convenient for the purposes of categorisation and analysis when determining whether a person is not of good character.
9.7.1.1 In Baker's case, the FFC confirms that criminal conduct is a subset of general conduct when it states, at p 18 of the typescript:
... no importance can be attached to the fact that some of the conduct, which was actually "criminal conduct" within the meaning of subpara (i) [of paragraph 501(2)(a)], was considered on the basis that it was made relevant by subpara (ii).
9.7.1.2 Remember that criminal conduct means conduct which is punishable by law, but which may not actually have been punished. It therefore includes conduct which has been punished by a conviction or convictions, and includes conduct for which there has been no conviction, but which is capable of conviction. All other conduct, both good and bad, constitutes the remainder of general conduct.
9.7.1.3. General conduct could, for example, be a course of conduct which shows a blatant disregard of others/authority and a failure to undertake legal obligations as a responsible member of the community. The conduct would not be criminal in nature, but would serve to exemplify the character of the applicant (eg continual evasion or non-payment of debt, continual disregard as to payments of family maintenance, engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on the balance of probabilities, are disreputable).
9.7.1.4 General conduct also includes good, recent conduct. Good acts performed by the applicant after reprehensible conduct are indications that the applicant's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the applicant's character.

NOTE, in Baker's Case the court stated that general conduct does not just mean "prevalent" or "usual" conduct. The court considered that some instances of general conduct displayed only once or twice may be very good indications as to a person's character.

9.7.2 When making a decision in relation to character based on a person's general conduct, irrespective of whether that person has any criminal convictions, it must be stressed that the onus is on the Minister to be satisfied, on the balance of probabilities, that the person is currently not of good character because of that general conduct.
9.7.2.1 When considering an application on the basis of an applicant's general conduct, regard may be had, but should not be limited to, the following matters (but see paragraph 9.6.2): …

·whether the person has, in connection with any application for or grant of a visa, provided a bogus document or made a statement that was false or misleading (ie immigration malpractice):
any misrepresentation in connection with an application for a visa might be taken into account, depending on the nature and intent of the misrepresentation;
·whether the person has ever made a false or misleading declaration on an approved form, as defined in section 5(1) of the Act, about his or her character or conduct or both.
·criminal conduct (this is considered in detail under the separate heading of "criminal conduct").

9.7.2.2 In relation to dot points two and three in 9.7.2.1 above, the benefit which was/would have been gained had the truth of the matter not been revealed/admitted is relevant to the assessment. If knowledge of the true state of affairs would have prevented the conferral of the benefit, this militates against a finding that the applicant is of good character.

...

9.7.3 The list of matters set out at paragraph 9.7.2 is not exhaustive of those matters which could reflect adversely on a person's character. There could well be other matters in the nature of general conduct which an officer considers are relevant to a finding that a person is not of good character.
...
9.9 Exercising the discretion to refuse/not refuse the grant after a
negative character finding
9.9.1 When an officer is satisfied that a person is not of good character after having regard to the person's past criminal conduct, general conduct or ... the discretion to refuse or not refuse a visa under section 501 is enlivened.

NOTE: In all cases following an adverse character finding, all mitigating factors must be balanced against the adverse character finding. ...

9.9.2 In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:

·     the circumstances of the person at the time of the application. These include but are not limited to:
-    genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;
-    the best interests of any child associated with the visa applicant/s;
-    the strength of family, social, business and other ties to the Australian community;
-    periods of previous lawful residence;
-    the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);
-    family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of International obligations under the Refugee Convention (see section 8).

· whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and
· whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.
The above list of matters is not exhaustive.

9.9.3 Unless the officer is satisfied that there is sufficient credible evidence available to overcome the discretion to refuse on character grounds, based on the above factors, and that undue harm would be unlikely to result to the Australian community, a decision should usually be made to refuse to grant the visa."
General Direction – Visa Refusal s501 - No.5 issued by the Minister for Immigration and Multicultural Affairs deals in part with breaches of immigration law, and relevantly provides:
"The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:
…

where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody."

The General Direction also deals in part with the conduct of the Australian citizen who sponsors a visa application which is taken into account when exercising the discretion to refuse to grant a visa.

"If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:
where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:
-whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);
-if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and
-in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established."

FACTS

The Tribunal makes the following findings of fact which are not in dispute:
1)Mr Maric was born in Sarajevo on 18 July 1957, in what is now known as the nation of Bosnia-Herzegovina. Mr Maric was residing in Sarajevo at the time of the hearing of this application, and lives alternately in Sarajevo and Zagreb.
2)On 3 March 1985 Mr Maric entered Australia as a visitor with a Temporary Entry Permit (TEP) valid for three months. He overstayed the original visa and eventually departed Australia on 16 October 1985 (T7/73, T9/75). In dispute between the parties is whether Mr Maric applied for an extension of time (T9/75 and transcript page 225 line 25).
3)Mr Maric came back to Australia less than a year later, on 24 September 1986 on another visitor's visa. He stayed lawfully for almost six months, and departed on 12 March 1987 (Exhibit R6).
4)On 5 May 1989 Mr Maric entered Australia to attend a funeral. He departed a day later on 6 May 1989 (Exhibit R6).
5)The last time Mr Maric entered Australia was in 1990 (Exhibit R6), when he arrived here on 4 March of that year in the company of one, Dusko Sargic.
6)Shortly after Mr Maric arrived in Australia in 1990, he travelled to Canberra where he married Ms Vida Maletic, an Australian citizen. The ceremony took place in a house attached to the Serbian Orthodox Church in Forrest ACT on Tuesday 17 April 1990 (Exhibit R11). At the time, Ms Maletic was 53 years of age, and Mr Maric was 32 years of age.
7)On 20 April 1990, Mr Maric lodged a spouse 100 visa application for permanent residency on the basis of his marriage to Ms Maletic (Exhibit R10).
8)While the application was being processed, Mr Maric was charged with the offence of false pretences on 26 April 1990. The charge involved the switching of price tags on various products in order to reduce the price he would have to pay at the store in question. Mr Maric pleaded not guilty to the charge, but on 7 June 1990 he was convicted and fined $400. His conviction was upheld on 1 August 1991 (T1/7, Exhibits R5 and R9).
9)By Christmas of 1990, Mr Maric and Ms Marjanovic had entered into a romantic relationship (transcript page 85 line 25).
10)On 22 February 1991 Mr Maric was convicted of driving under the influence. He was fined $400 and his driver's licence was suspended until 22 August 1991 (T1/7).
11)On 3 March 1991, Mr Maric was arrested following an altercation between himself and Ms Marjanovic which lead to him being charged with assault. The charges were dropped when he left Australia in August 1991 (T34/171). Police inquiries also revealed that Mr Maric had been driving a motor vehicle while his licence was suspended (Exhibit R8).
12)In May 1991 Mr Maric's application for a spouse 100 visa on the basis of his marriage to Ms Maletic was rejected by a delegate of the respondent, who was not satisfied that Mr Maric met the criteria of s126(1) of the Migration Regulations. In particular, the delegate was unable to conclude that a genuine marriage relationship existed. The decision was reached after Ms Maletic and Mr Maric were interviewed separately, and representatives of the Department of Immigration and Multicultural Affairs made visits to Ms Maletic's house (Exhibit R10).
13)On 17 June 1991 Mr Maric applied for review of the spouse visa rejection to the Migration Internal Review Office. The decision under review was affirmed (T27/134).
14)On 25 August 1991 Mr Maric departed Australia (Exhibit R6). He applied for a fresh spouse 100 visa at the Australian Embassy in Belgrade on 13 September 1991 (Exhibit R2). This second spouse visa application was rejected by a delegate of the respondent in February 1993 (Exhibit R2).
15)In the meantime, in 1992 Mr Maric went to live in Germany.
16)On 3 May 1996, Mr Maric applied for a special global humanitarian 202 visa in Bonn. The respondent rejected this visa application on 10 November 1996 (T27/134).
17)On 21 August 1996, Mr Maric was convicted of an offence in a German court (T29/142). The offence translated into English means "false unsworn statement" (Exhibits A2 and A4).
18)In May or June 1998 Ms Maletic lodged divorce papers at the Family Court (transcript page 72). On 9 August 1998 the decree nisi for the dissolution of the marriage of Mr Maric and Ms Maletic became absolute (T15/85).
19)Ms Marjanovic visited Mr Maric in Zagreb for a period between the dates of 15 June 1998 and 28 October 1998 (T27/135).
20)On 20 August 1998 Mr Maric applied for a subclass 300 visa – prospective marriage, on the basis of his relationship with Ms Marjanovic (T17/89-113).
21)Mr Maric did not disclose that he had been convicted of a crime or offence at question 70 of the visa application form (T17/108).
22)On 11 April 1999 Mr Maric's application was rejected by a delegate of the respondent on the basis that Mr Maric was not of good character (T34/ 171, 172).
23)On 26 May 1999 Ms Marjanovic applied to this Tribunal to review the decision of the delegate of the respondent to refuse to grant her fiancé Mr Maric a subclass 300 visa – prospective marriage (T1/4).

EVIDENCE
Mr Marinko Marjanovic

Mr Marinko Marjanovic, the applicant's son, was the first witness to give oral evidence. He is 29 years of age, and works as a computer contractor.
Mr Marjanovic testified that he met Mr Dragan Maric in 1990 at his friend Radenko Maletic's house, and he said that later in the year he discovered that Radenko's mother, Vida Maletic, was married to Mr Maric.
Mr. Marjanovic gave evidence that the relationship between his mother, Mara Marjanovic, and Mr Maric began to develop towards the end of 1990, and he described the relationship between his mother and Mr Maric as being "most sincere and genuine". Mr Marjanovic testified that when Mr Maric returned to Sarajevo, his mother kept in constant contact with Mr Maric via the telephone and letters, with the expense of the telephone calls being shared between Ms Marjanovic and Mr Maric. Mr Marjanovic was of the opinion that his mother and Mr Maric were often in daily contact.
Mr Marjanovic gave evidence that his mother lives alone, but that she has been dependent on him for financial, physical and emotional support since 1996 when she had an accident which rendered her incapacitated for her former work as a chef. Mr Marjanovic further said that his mother relies on Mr Maric for emotional support, and that he sees Mr Maric's absence as detrimental to his mother's health. He testified that he has spoken to Mr Maric personally, and he says that Mr Maric is depressed about being separated from his fiancé.
When questioned as to his mother's future if the appeal is unsuccessful, Mr Marjanovic testified that he would continue to support his mother but he said that he sees this situation as less than ideal. He informed the Tribunal that he accepts the relationship between Mr Maric and his mother, and that Mr Maric presents as a "well educated man who is multi-skilled, well travelled…[and] considerate."
Ms Vida Maletic
Ms Vida Maletic was born on 2 August 1938. She lived with her first husband for 18 years before they separated and divorced. She married Mr Dragan Maric, her second husband, in 1990 in a Serbian Orthodox Church in Forrest ACT. Ms Maletic gave evidence that she had only known Mr Maric for approximately three weeks before they married.
Ms Maletic testified that the wife of the priest of the above church made the initial suggestion that she marry Mr Maric. Mr Maric's friend Dusko Sargic was taking steps to stay permanently in Australia, and the priest's wife reasoned that if he could stay, perhaps Mr Maric could stay as well.
While Ms Maletic gave evidence that she suspected that Mr Maric wanted to marry her for visa reasons, she said that she did hold hopes that their marriage would last. After their marriage they did not live together as husband and wife. Ms Maletic testified that approximately four weeks after the wedding, Mr Maric started seeing Ms Marjanovic, particularly at nights.
During cross-examination, Ms Maletic said that she told representatives of the Department of Immigration that Mr Maric was her husband and that it was a genuine marriage. She said that she felt she had to say this, and that she did initially think the marriage was genuine.
Ms Maletic gave evidence about the altercation between Ms Marjanovic and Mr Maric. She maintained that the incident occurred outside her house, but that she did not witness the assault, aside from seeing Ms Marjanovic's torn blouse. Ms Maletic said that her involvement with Ms Marjanovic was minimal, but that Ms Marjanovic did help her to file divorce papers in 1998.
Ms Maletic gave evidence about her feelings on her divorce to Mr Maric. She said that she did not feel angry or disappointed that her marriage did not work out, although she felt a little resentful at the way things turned out.
Mara Marjanovic
Ms Marjanovic's first language is Serbo-Croatian, and she used an interpreter during the latter part of her testimony.
Ms Marjanovic arrived in Australia on 31 May 1969. She was 21 years of age, and already married. Ms Marjanovic had only four years of primary education in Yugoslavia, and on arrival in Australia she trained for four years to become a chef. Her knowledge of English is self-taught. She separated from her husband in 1988, and divorced in 1993 because of violence in the marriage. Ms Marjanovic's son was born in Australia, and she became an Australian citizen in 1975.
Ms Marjanovic gave evidence that she met Mr Maric at the end of April or May of 1990. On the first occasion she was briefly introduced to him when she went to Vida Maletic's house to pick up her son. She said that five months later she met him again at the Manuka shops, and they had coffee and talked. She gave Mr Maric her telephone number. By Christmas of 1990 their relationship had developed into one of "mutual understanding and I fell in love with the man."
When questioned on Mr Maric's marriage to Vida Maletic, Ms Marjanovic testified that Mr Maric told her when they were at the Manuka shops, or in a telephone conversation shortly after, that he was married to Vida Maletic. He told her that he wasn't very happy with the marriage, but under cross-examination Ms Marjanovic said that she didn't question why he was having problems with the marriage. She assumed that he had applied for a visa on the basis of that marriage, but didn't want to inquire into the nature of the relationship. It was put to Ms Marjanovic that she knew it wasn't a genuine marriage, but she denied this and asked how could she know what happens in the privacy of other people's homes.
Ms Marjanovic gave evidence that she had no personal knowledge of the spouse 100 visa applications, or the humanitarian visa application made by Mr Maric in Germany. She said that she had simply assumed that Mr Maric was not granted the spouse 100 visa because of the assault incident involving herself and Mr Maric. Ms Marjanovic testified that the assault incident involved Mr Maric slapping her on the face and ripping her blouse. Police intervened and Mr Maric was charged with assault and resisting arrest. Ms Marjanovic said that she later dropped the charges.
Ms Marjanovic testified that she became engaged to Mr Maric when she visited him in Yugoslavia in 1998. She gave evidence that immigration officials told her that it was better to put the marriage on hold and apply for a prospective marriage visa. She said that she followed their advice and filled out the necessary forms while in Yugoslavia.
Ms Marjanovic was questioned in detail in relation to the visa that is the subject of these proceedings. She testified that she filled out the visa form as her English was better than Mr Maric's, but that Mr Maric was present while she filled out the form. She asked him questions about the form when she didn't know the relevant details, and looked up a dictionary when she wasn't sure about the meaning of a word on the form.
When asked why she ticked the "no" box in relation to question 70, which asked whether the applicant had ever been convicted of a crime or offence, Ms Marjanovic said that she assumed Mr Maric didn't have any criminal convictions, and that she did not question Mr Maric in relation to this issue. Ms Marjanovic gave evidence that her concept of criminals is "those people who are stealing, kill people, bank robberies…people that sexually assault people."
Under cross-examination Ms Marjanovic said that she was aware that Mr Maric had been charged with offences involving false pretences, drink driving and assault. However, she considered these offences to be "minor" and again she said that she thought the form referred to crimes such as robbing a bank or killing a person. Ms Marjanovic appeared somewhat confused about whether she knew that Mr Maric had been convicted of the false pretences offence in court, and whether she had discussed the convictions with Mr Maric.
Ms Marjanovic gave evidence that after the visa form was filled out Mr Maric received a letter asking him to provide a police clearance certificate from the Australian Federal Police. When she went to get the form she saw the convictions listed. Counsel for the respondent put to her that the details of the certificate did not surprise her as she had known about the convictions since 1990. Ms Marjanovic denied knowledge about the outcome of the court case for the false pretences charge, and reiterated her view that it was just a "minor" conviction.
Ms Marjanovic told the Tribunal that in 1996 she had an accident when a push-bike travelling approximately 60km an hour ran her over. She hurt her back, arm and shoulders as well as dislocating her hip. She hit her head hard on the ground and says she has had a bad memory since the accident. She has since been unable to work as a chef, and is reliant on her son for emotional, financial and physical support.
Ms Marjanovic testified that if Mr Maric's visa were to be refused, she would go to live with him in Yugoslavia. She sees this as a last resort, however, as Australia has been her home since she was 21 years of age. Her family also lives in Australia. There would also be potential ethnic conflict if she went back to Yugoslavia, as she is a Serbian and Mr Maric is a Croatian.
Ms Marjanovic gave evidence that her life has been very stressful, and although there are people who support her, that support cannot completely replace the emotional support she got from being with Mr Maric whom she loves.
Mr Dragan Maric
Mr Dragan Maric gave evidence by telephone from his residence in Sarajevo with the assistance of a Serbo-Croatian interpreter as he speaks no English.
Mr Maric gave evidence that he came to Australia in 1985 as a tourist and to visit some relatives and friends who lived here. When asked why he stayed longer than permitted he gave as his reason the fact that he enjoyed being in Australia. He acknowledged the fact that he was here unlawfully for three months, although he claimed that he had lodged with the immigration authorities a request for an extension of time. Mr Maric gave further evidence that he returned to Australia in September 1986 and stayed for six months, legally this time. In 1989 he came to Australia for one day in order to attend a funeral, and in 1990 he again acquired a tourist visa.
Mr Maric testified that he first met Ms Maletic briefly in 1986 when he visited the Yugoslav Club in Canberra. He said that they renewed their acquaintance in 1990 at the priest's house where he stayed a couple of nights. The priest, Father Jovic, was a relation of Dusko Sargic, who was Mr Maric's travelling companion.
Mr Maric gave evidence that he and Ms Maletic decided to get married shortly after they met at the priest's house. Father Jovic officiated at the ceremony which took place in a room off the church, and Father Jovic's wife was present as a witness. When questioned as to whom it was who first suggested marriage, Mr Maric testified that it was Ms Maletic who proposed that they get married, and he denied that the priest's wife ever suggested that he and Ms Maletic get married.
When questioned on the details of their marriage, Mr Maric gave evidence that the marriage was initially going smoothly, but problems developed and he and Ms Maletic did not see eye to eye on many issues. One such issue was money, with Ms Maletic urging him to sell some of his assets back in Yugoslavia. Mr Maric said that he did not wish to sell his assets at that time. Mr Maric also testified that their problems were compounded by the surprise visits conducted by the immigration authorities.
Mr Maric gave evidence that he did not marry Ms Maletic for visa purposes. He said that he married her out of respect, and said that they had similar views on life. In cross-examination he denied that he intended to come to live in Australia permanently when he acquired his tourist visa in 1990. He said that his marriage was genuine, and that they did live together as husband and wife. While he did not love Ms Maletic, he respected her, and had hoped that the future would bring love.
When asked why he told the police his address was in Cabramatta only one week after the wedding, Mr Maric testified that he was working to feed himself, and that Ms Maletic did not earn enough money to support them both. He said that while he had money back in Yugoslavia, he did not wish to spend it all if he could be working to earn money.
When questioned why the application for the spouse 100 visa was filled out only days after the wedding, Mr Maric gave evidence that Ms Maletic was keen for the form to be filled out as quickly as possible, otherwise he could not pursue investment opportunities.
When questioned about his initial meeting with Ms Marjanovic, Mr Maric gave evidence that he had a hazy recollection of when he first met her, but he said that they met again at the Manuka shops. Counsel for the respondent put to Mr Maric that the Manuka shops meeting was a fabrication, and that Mr Maric and Ms Marjanovic were in a relationship from the time of his marriage to Vida Maletic. Mr Maric strongly denied this allegation, and reiterated that his marriage to Ms Maletic was a genuine one and that he didn't lie to the immigration authorities.
Mr Maric testified that at the time he met Ms Marjanovic, he was having arguments with Ms Maletic and was not happy. His relationship with Ms Marjanovic made him very happy, and he was very much in love with her. He said that he knew that she was in love with him too, and when he returned to Yugoslavia they kept in touch via telephone calls and letters. He estimated that they called each other every 1-2 days, and wrote 2-3 letters per week.
Mr Maric said that he cannot live without Ms Marjanovic. He knows that she had a bad accident and is on compensation, and he wants to be able to help her. He gave evidence that he would not have married Ms Maletic had he known Ms Marjanovic first.
When questioned about his criminal convictions, Mr Maric testified that he had had problems with the police while in Australia. Mr Maric acknowledged in his evidence that whilst in Sydney he was charged and convicted of the offence of false pretences, and while in Canberra he was charged with driving under the influence of alcohol, and the assault of Ms Marjanovic. He also admitted that whilst in Germany he also had problems with the police, when he was accused of driving without a licence. However, he maintained in his evidence that the criminal charge that he was convicted of in Germany is not appropriately translated as "false pretences" but should be called "false unsworn statement".
In relation to question 70 in his visa application, Mr Maric gave evidence that he did not ask Ms Marjanovic to tick the "no" box in relation to the question of criminal convictions and that he didn't try to conceal his convictions. Ms Marjanovic filled out the visa form because he didn't understand English. He was in the room while she filled out the visa form, and while she asked some personal details she did not ask him about everything. In particular, he testified that she did not ask him about question 70.
In relation to the visa process, Mr Maric was also cross-examined about portions of letters he wrote to Ms Marjanovic in Exhibit R12. One contained the statement "those people from the Embassy are really such dogs, and worse than that." Mr Maric said that that statement had been written after his visa application had been rejected after twelve months effort, and that he felt like a "dog". Another contained the statement "should I go illegally and take a chance? I see no other solution, those dogs can fuck around with it forever." In response to this statement Mr Maric said that he loved Ms Marjanovic so much that "I am thinking often that I should swim the ocean to be able to be with her." (transcript page 304) He maintained that "she is the woman of his life" and that he would be willing to do anything to be with her. (transcript page 304) He said he was not a criminal, but only a frustrated man. The final portion put to Mr Maric was as to why he wrote "they got to see only the nice side but now they are going to see the one that is fucked up." The statement referred to his "fucked up" side of nature. Mr Maric gave evidence he had been drinking at the time he wrote that statement, and was sorry he was not an "angel" (transcript page 306), that he has made mistakes in his life and that he was totally different now.
Mr Jovan Bogdanovic
Mr Bogdanovic gave evidence that he has known Ms Maletic for about twenty years. His son was a friend of Ms Maletic's son, and Mr Bogdanovic said that he knew Ms Maletic when she was still married to her first husband.
Mr Bogdanovic testified that he met Ms Maletic's second husband, Mr Maric, on two occasions. On the first occasion he was having coffee at Ms Maletic's place, and she said "I want you to meet my new husband." On the second occasion, a few weeks later, he saw Mr Maric doing some work in the shed at the back at Ms Maletic's house.
Father Jakob Jovic
Father Jovic gave evidence that he has been a priest for 20 years. He said that he left Yugoslavia 13 years ago, and is now priest of the Serbian Orthodox Church in Forrest ACT. He has performed three hundred to four hundred marriage ceremonies over the twenty years, including thirty or forty in Australia.
He testified that he performed the marriage ceremony of Vida Maletic and Dragan Maric according to church law. His wife and another woman were the witnesses, and the ceremony was performed in the church house because Ms Maletic and Mr Maric could not afford to pay the $150 required to have the ceremony performed in the church itself.
In cross-examination Father Jovic said that he had met Mr Maric two or three times before the marriage ceremony. He gave evidence that Mr Maric had been travelling with Dusko Sargic, who is Father Jovic's cousin.
Father Jovic gave evidence that he had known Ms Maletic since his arrival in Canberra 13 years ago, and he sees her as a good and honest woman. When it was put to Father Jovic that Ms Maletic had suggested that it was his wife who initially suggested the marriage between Ms Maletic and Mr Maric, he was surprised. He said that as far as he knew, they had both married for love.
When the Tribunal asked Father Jovic if he was suspicious of the marriage, he said that he initially had doubts about the genuineness of the marriage because Mr Maric did not have permanent residency and had only just arrived in Australia. He stated that there was also a substantial age gap between Mr Maric and Ms Maletic. However, he gave evidence that his doubts were dispelled when Ms Maletic and Mr Maric told him they were marrying for love, and seemed happy.
Father Jovic testified that he has officiated at only three weddings where one member of the couple did not have permanent residency. One of those weddings was his brother, who he says now has two children and is very happy. The second was Dusko Sargic and Melissa Knobbs in June 1990, and the third was Mr Maric and Ms Maletic. Father Jovic testified that all the other wedding ceremonies he has performed involved Australian residents.
Father Jovic testified that at the time he performed the ceremony he thought the marriage was genuine. However, he said that he had only been in Australia for 18 months at that stage, and "there were things I know today I didn't know yesterday" (transcript page 334).
Mrs Borka Jovic
Mrs Jovic testified that she was a witness at the marriage ceremony of Ms Maletic and Mr Maric.
Mrs Jovic gave evidence that she saw Mr Maric only a few times before the ceremony. She said that Mr Maric did not stay at their house because there was insufficient room.
Mrs Jovic said that she knew Vida Maletic through the church. Her function as priest's wife was to socialise with many of the church goers. She occasionally had coffee with Ms Maletic, but that was as far as the friendship went.

Mrs Jovic strongly denied ever suggesting that Ms Maletic marry Mr Maric so that he could obtain permanent residence, and in that regard she said that when she spoke to Ms Maletic on the day of the marriage ceremony, Ms Maletic said that she was in love.
THE PARTIES' SUBMISSIONS
Respondent's Submissions
Counsel for the respondent, Mr Gregg, submitted that s501 of the Act requires that the Tribunal consider two distinct issues. The first issue is whether Mr Maric is a person who is not of good character. If the Tribunal decides the first issue unfavourably to Mr Maric, then the second issue is whether the Tribunal should exercise its discretion to issue a visa to Mr Maric despite the adverse findings as to character.
In light of the Tribunal's two-fold task, Mr Gregg submitted that the Tribunal should affirm the decision under review. He submitted that Mr Maric is a person who is not of good character because of
1)   His contrived marriage to Ms Maletic in April 1990, the sole purpose of the marriage being to gain permanent residency in Australia. In relation to the contrived marriage, Mr Maric made two visa applications based on the marriage, and gave false statements to an officer of the Department of Immigration and Multicultural Affairs in an interview on 5 March 1991 (exhibit R10);
2)   His criminal convictions, having being convicted in Australia in 1990 and 1991 of the charges of false pretences and driving under the influence of alcohol. In Germany in 1996 Mr Maric was also convicted of making a false statement to police;
3)   His propensity to make untruthful statements, both in denying his criminal convictions when applying for a visa in 1998, and giving untruthful evidence to the Tribunal particularly in relation to his marriage to Vida Maletic; and
4)   Other evidence such as letters written by Mr Maric to Ms Marjanovic which demonstrate his vindictive and hostile personality, and also demonstrate a willingness to act illegally.
In relation to Mr Maric's marriage to Vida Maletic, Mr Gregg submitted that Ms Maletic was a truthful witness whose evidence should remain undisturbed by the unconvincing evidence of Mr Maric, Father Jovic and Mrs Jovic.
Mr Gregg submitted that the Tribunal should have regard to the strong circumstantial evidence pointing towards the conclusion that the marriage was contrived. Among other things, Mr Gregg highlighted the fact that:
·     there was an age difference between Mr Maric and Ms Maletic of 21 years
·     they had only known each other for a short period before their marriage
·     Mr Maric had a desire to live in Australia
·     Mr Maric's application for permanent residency was lodged only three days after the wedding
In relation to Mr Maric's criminal convictions, Mr Gregg submitted that although the convictions are not particularly serious, they reinforce the conclusion that he is a dishonest person, and therefore not of good character. Moreover, his drink driving charge and assault of Ms Marjanovic while intoxicated suggest that Mr Maric may pose a risk to public safety, and while he maintains he has not consumed alcochol since 1993 there is always a possibility he will "fall off the wagon". Mr Gregg also submitted that Mr Maric does not show signs of accepting responsibility for his actions.
In relation to Mr Maric's failure to declare his criminal convictions at question 70 of the visa application form, Mr Gregg submitted that the evidence of Ms Marjanovic and Mr Maric should not be accepted. Mr Gregg contends that Ms Marjanovic's explanation was neither convincing nor consistent, and that Mr Maric's assertion that he does not understand English was contradicted by the fact that he read out a passage in English.
Mr Gregg submitted that in relation to the Tribunal's discretion to grant a visa to Mr Maric, the Tribunal is bound by General Direction No. 5, in which clause 6 requires the decision maker to have due regard to whether Ms Marjanovic had knowledge of Mr Maric's conduct. Mr Gregg submitted that Ms Marjanovic had knowledge of the contrived marriage, knew about Mr Maric's criminal convictions and has given untruthful evidence to the Tribunal.
Mr Gregg further submitted that there are no compelling compassionate grounds on which the visa should be granted, as Ms Marjanovic's son can give her financial and physical assistance. Further, if Ms Marjanovic were to go to live with Mr Maric in Bosnia or Croatia she would not suffer any major disadvantage, being familiar with the language and culture.
Applicant's Submissions
Counsel for the applicant, Mr Evans, submitted that the refusal to grant Mr Maric a visa to enter Australia should be set aside on the following grounds:
The marriage between Mr Maric and Ms Maletic was genuine;
Mr Maric's criminal convictions are not serious; and
The failure to disclose the criminal convictions at question 70 of the visa application form was negligent rather than deliberate.

Alternatively, Mr Evans submitted that should the Tribunal decide that the correct decision had been made, the Tribunal should nevertheless in its discretion grant the visa to Mr Maric as there is sufficient evidence to show severe hardship to the applicant if the visa were to be refused.
In relation to the marriage between Mr Maric and Ms Maletic, Mr Evans submitted that evidence from the witnesses, including parts of Ms Maletic's evidence, supports the conclusion that the marriage was genuine albeit unusual. It was also contended that since the marriage was genuine, Ms Marjanovic could not have believed the marriage to be contrived.
In relation to Mr Maric's criminal convictions, Mr Evans submitted that the offences committed in Australia were summary offences of a minor nature, and that appealing the conviction is a legal right of the accused rather than evidence that the accused does not accept responsibility for the charges. The drink driving offence in particular occurred at a time when Mr Maric conceded he was having problems. It was further submitted that the offence committed in Germany was also a summary offence, and was seen as similar to giving an incorrect statement to a public official.
In relation to the non-disclosure of Mr Maric's criminal convictions at question 70 of the visa application form, Mr Evans submitted that Ms Marjanovic's evidence shows that she has only a rudimentary understanding of English. Moreover, her concept of a "criminal offence" includes violent offences such as murder and armed assault, and does not include offences of the type which Mr Maric was convicted of. Mr Evans further submitted that both Mr Maric and Ms Marjanovic took immediate steps to rectify the situation when they were alerted to the non-disclosure of Mr Maric's criminal convictions.
Mr Evans, in summarising the oral evidence given by the witnesses, pointed out that Mr Maric gave evidence by telephone in the middle of the night in what were clearly difficult circumstances. Mr Evans submitted that despite these difficulties, Mr Maric showed himself to be an emotional man who showed considerable poetic licence in his letters to the applicant, and who responded to questions about his problems with alcohol with honesty.
Mr Evans requested that the Tribunal disregard the inconsistent statements as to whether Mr Maric stayed at Father Jovic's house as it is not significant to the outcome of the case. Mr Evans submitted that Ms Maletic's evidence, while not necessarily deliberately untruthful, had been soured by a failed relationship.
In the event that the Tribunal decided that the correct decision had been made, Mr Evans submitted that the Tribunal's discretion should be exercised to overturn the decision. The basis for this submission is that Ms Marjanovic is suffering hardship as a result of Mr Maric's visa application being rejected. Mr Evans submitted that there is a genuine relationship between Mr Maric and Ms Marjanovic, that Ms Marjanovic believed Mr Maric's marriage to be genuine and that Ms Marjanovic did not know the full details of Mr Maric's criminal convictions at the relevant time.
Mr Evans finally submitted that Ms Marjanovic's home is in Australia, and that she no longer has the same links with her country of birth as she does with Australia. She should not have to rely on her son for her physical and emotional needs which would be fulfilled should Mr Maric be granted a visa to reside in Australia.
THE TRIBUNAL'S FINDINGS, REASONS AND DECISION
The Tribunal is mindful in considering the question as to whether or not it is satisfied that Mr Maric is not of good character, that regard shall be had to his enduring moral qualities in the light of his past criminal conduct and/or general conduct (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84). In this respect, conduct which is favourable and that which is not will be relevant.
The Tribunal is also mindful that the Minister's General Direction and policy guidelines are applicable in the course of the Tribunal making its determination.
Mr Maric gave evidence by telephone from Sarajevo. He was an unimpressive witness. The Tribunal formed the distinct impression that he was evasive and selective in the giving of his testimony. His testimony, motivated as it was by his desire to move to Australia, was wanting in regard to credibility. The Tribunal is of the opinion that he tailored his evidence in order to portray his situation, both past and present, in the best possible light without regard for the truth. The Tribunal found the following aspects of his testimony to be particularly unimpressive, namely his evidence concerning overstaying by some months his temporary entry permit to Australia in 1985, his evidence relating to the circumstances surrounding his conviction for false pretences in June 1990, the evidence he gave with respect to the circumstances surrounding the filling out of his 1998 visa application and the evidence he gave concerning his marriage to Ms Maletic.
The Tribunal is of the view that Mr Maric's evidence was purely an attempt by him to paint, without regard for the truth, a picture that would assist him to gain permanent residency in Australia.
The Tribunal does not have the necessary confidence in Mr Maric's evidence. It is rejected as unreliable. The Tribunal would indicate that in relation to its findings regarding Mr Maric that it has taken into account the circumstances in which he gave his testimony. Ms. Marjanovic also gave evidence. The Tribunal had the advantage of closely observing her in the giving of her testimony. The Tribunal formed the distinct impression that Ms. Marjanovic has a deep romantic attachment to Mr Maric. In the opinion of the Tribunal Ms. Marjanovic's feelings towards Mr Maric have coloured her testimony and significantly so. The Tribunal is of the view that her testimony in the main fell to be described as unreliable. Her testimony was particularly unimpressive as to the state of her knowledge as to Mr Maric's offending behaviour, the true circumstances relating to the filling out of Mr Maric's current visa application and as to her knowledge of the purpose of Mr Maric's marriage to Ms Maletic.
Ms Maletic, the former wife of Mr Maric, also gave evidence. The Tribunal had the advantage of listening to and closely observing Ms Maletic in the giving of her evidence. She was an impressive witness. The Tribunal gained the distinct impression that she was at all times open and honest in the giving of her testimony. The Tribunal accepts her evidence.
Mr Marinko Marjanovic, the son of Ms Marjanovic, gave evidence. The Tribunal formed a favourable impression of Mr Marjanovic in the sense that he did his best to accurately portray matters of a factual nature. The Tribunal accepts the factual content of his testimony where it does not conflict with the evidence of Ms Maletic. The Tribunal also accepts his resolve to continue to assist his mother in the future.
The Tribunal accepts the evidence of Mr Bogdanovic which was not challenged by the respondent.
The Rev Jovic and Mrs Jovic gave evidence as to some of the circumstances surrounding the marriage of Mr Maric and Ms Maletic. Their memory of the events in question had no doubt suffered with the passage of time. The Tribunal does not have the same confidence as to the quality of their testimony as with respect to that of Ms Maletic. The latter's evidence is preferred and particularly so where it might be said to be at variance.
Having regard to the evidence which is accepted by the Tribunal and the reasonable inferences which can be drawn from it, the Tribunal makes the following findings of fact:
(a)In relation to a visitor visa application made in 1986 and received by the Australian High Commission in Belgrade on 21 July 1986, Mr Maric supplied a supporting letter which falsely stated that he had a fiancée and that marriage would take place in November or December of that year.
(b)In relation to a spouse visa application for permanent residency on the basis of his marriage to Ms Maletic which was lodged on 20 April 1990, Mr Maric falsely stated that he and Ms Maletic had decided to get married on 6 May 1989.
(c)In March 1991 Mr Maric gave information to the respondent when interviewed in relation to his application for permanent residency which was designed to falsely create the impression that his relationship with his spouse Ms Maletic was a genuine and continuing one.
(d)On 17 April 1990 Mr Maric married Ms Maletic. Mr Maric did so for the sole and only purpose of enabling him to pursue his long held aim of obtaining permanent resident status in this country. Ms. Maletic acquiesced in the marriage, well knowing its purpose, but in the vain hope that something might come of the marriage. The Tribunal concludes that, in every sense of the word, the marriage was a sham.
(e)On 20 August 1998 Mr Maric applied for a prospective marriage visa on the basis of his relationship with Ms Marjanovic. In the filling out of his application for this visa, Mr Maric knowingly gave false information, namely, that he had never been convicted of a crime or offence in any country. The Tribunal is satisfied that Ms Marjanovic was a party to the provision of this false information.
On the totality of the evidence before the Tribunal, together with the above and earlier findings, the Tribunal has no hesitation in concluding that Mr Maric embarked upon a deliberate course of conduct in pursuit of his aim of attaining permanent resident status in Australia. That conduct has shown a complete disregard for the immigration law and procedures of this country. He is prepared to and has involved others in this conduct.
He has also shown a disregard for the law in other respects as evidenced by his offending behaviour. Whilst his offending behaviour, when viewed separately, does not rank high in terms of seriousness, it provides a significant insight into Mr Maric's character and his enduring qualities to date when taken together with his disregard for the immigration laws of this country. The Tribunal finds Mr Maric to have a propensity to be dishonest where to do so will assist him in achieving his own purposes. This propensity is further confirmed by the nature of the testimony he gave before this Tribunal and which reflects adversely upon his character.
The Tribunal is mindful that it must have regard to any recent good conduct of Mr Maric and any positive attributes that might be said to throw a different light on his enduring moral qualities. Further, in the case of Mr Maric's past criminal conduct, the Tribunal must be careful to consider factors as set out in 9.6.2 of the Minister's policy guidelines, including any potentially mitigating factors.
In this regard, the Tribunal notes that with respect to the offence on 26 April 1990 of false pretences that Mr Maric was convicted and fined $400. His offending was not such as to warrant a custodial sentence and is towards the lower end of the scale in terms of seriousness. In 1996 his offending in Germany in relation to a false unsworn statement also warranted a fine and is of a minor nature. Apart from his conviction in 1991 for driving under the influence of alcohol the Tribunal accepts that that is the extent of Mr Maric's offending record. To his credit, Mr Maric has no offending history in the Republic of Croatia (T23).
Having considered the totality of the material before the Tribunal, together with the submissions of the parties, the Tribunal is of the view that Mr Maric is a person who is not of good character, having regard to his general conduct and past criminal conduct. The Tribunal is firmly of the view that while Mr Maric's past convictions alone might not be sufficient to warrant a negative character finding, when one considers the nature of some of his offending (ie false pretences and false unsworn statement), together with what has been described as his general conduct (ie blatant disregard for immigration laws and procedures, together with orchestrating a contrived marriage) some of his enduring moral qualities are tellingly exposed. The Tribunal is also of the opinion that this type of conduct is of particular concern to the Australian community. The Tribunal considers that his propensity to be dishonest and deceptively so is a significant factor in the determination of the character of Mr Maric and is of such a nature as to outweigh factors favourable to him. The Tribunal is accordingly satisfied that Mr Maric is not of good character.
Having found Mr Maric to be not of good character, the Tribunal now turns to a consideration of the exercise of the discretion to refuse to grant Mr Maric a visa pursuant to s.501 of the Act. In so doing, the Tribunal would indicate that it has had regard to the Minister's General Direction and policy guidelines and, in particular, para. 9.9.2.
The Tribunal has borne in mind that Mr Maric has demonstrated a blatant disregard for the immigration laws of this country. The Tribunal is of the view that it would make for a very poor example and send the wrong message to others if Mr Maric was to be given permanent residency status having regard to his flouting of those laws.
The Tribunal accepts that there does exist some form of romantic relationship between Mr Maric and Ms Marjanovic. Whilst the Tribunal has no doubt that Ms Marjanovic has a strong romantic attachment towards Mr Maric, it offers no view as to the strength or otherwise of Mr Maric's feelings towards Ms Marjanovic, except that there are before the Tribunal a number of letters attesting to some form of meaningful relationship between the two.
The Tribunal is also of the view that in all probability Ms Marjanovic knew of the sham marriage at or about the time she commenced her relationship with Mr Maric which the Tribunal, on the evidence of Ms Maletic, finds to be very shortly after Mr Maric's marriage to Ms Maletic. At that time Mr Maric had already applied for permanent residency based on his marriage to Ms Maletic. Ms Marjanovic also knew, in the opinion of the Tribunal, of the false information provided by Mr Maric in his current visa application with respect to never having been convicted of a crime or offence. The Tribunal would indicate that it has taken these matters into consideration when assessing the compassionate claims made by Ms Marjanovic.
The Tribunal is of the view that Ms Marjanovic will suffer some hardship were Mr Maric's application for visa be refused. Despite some reservations, the Tribunal is prepared to accept that Mr Maric may also suffer some degree of hardship. The Tribunal also acknowledges that were the application to be refused, Ms. Marjanovic's son may be parted from his mother and suffer some hardship were she to go to Sarajevo to marry Mr Maric.
The Tribunal has also considered the strength of Mr Maric's family and social ties to the Australian community. Those ties are minimal on the evidence before the Tribunal. Whilst he has a married sister in Australia, there was insufficient evidence to indicate the strength of any relationship he may have with her. There was little evidence regarding social ties in Australia, other than the presence of Dusko Sargic and other ties which he may have emanating from the presence in Australia of others who have successfully migrated here from Sarajevo and surrounding regions. Mr Maric's mother continues to live in Sarajevo.

The periods of lawful residence in Australia by Mr Maric are as outlined previously in these reasons and are minimal.
The Tribunal has also considered the likelihood of Mr Maric engaging in further unlawful or unacceptable conduct in Australia were the visa to be granted. In this respect, the Tribunal has significant reservations. The propensity of Mr Maric to disregard the immigration laws and to do so with dishonesty and deception leads the Tribunal to conclude that there would be a high risk of Mr Maric engaging in further unlawful and unacceptable conduct and particularly so in an immigration context or other similar context.
Having regard to all the factors in favour of refusing to grant the subject visa and weighing them against the factors mitigating against refusal, the Tribunal is satisfied that the former significantly outweigh the latter such that it is appropriate that the Tribunal exercise its discretion to refuse to grant Mr Maric the visa which he seeks.
Accordingly, for the above reasons, the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         ................(Signed).......................
   Catherine Hutchins (Associate)
Date/s of Hearing  20-21 September 1999
  25-26 November 1999
  17-18 February 2000
Date of Decision  11 August 2000
Counsel for the Applicant        Mr J Evans
Counsel for the Respondent    Mr R Gregg
  (Departmental Advocate)