Memed and Minister for Immigration and Multicultural Affairs - [2002] AATA 678

DECISION AND REASONS FOR DECISION [2002] AATA 678

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1668

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RESUL MEMED
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date9 August 2002
PlaceMelbourne

Decision      The decision under review is set aside and the matter is remitted to the respondent for reconsideration with a direction that the visa application not be refused under s501 of the Migration Act 1958.
   [Sgd S P Estcourt QC]
  Deputy President
CATCHWORDS
Immigration - spouse visa sub-class 309 - refusal to grant - character test - whether visa applicant's past general conduct amounts to providing false and misleading information - whether visa applicant colluded with review applicant to enter into a contrived marriage - suspicious circumstances - onus of proof.
Migration Act 1958 – s501
McDonald v Director General of Social Security (1984) 1 FCR 354
Goldie v Minister for Immigration and Multicultural Affairs (1991) FCA 1277

REASONS FOR DECISION

9 August 2002 Mr S P Estcourt QC., (Deputy President)

This is an application by Resul Memed ("the review applicant') for the review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") pursuant to s501 of the Migration Act 1958 ("the Act") to refuse the grant of a Spouse Visa Sub-Class 309 to the applicant's wife Nesime Memed ("the visa applicant").
The essence of the decision of the Minister's delegate was that the sequence of events and "precision-like timing" of the divorce and re-marriage of the review applicant and the visa applicant, and the review applicant's intervening marriage to and divorce from an Australian citizen and his own acquisition of Australian citizenship was contrived solely for migration purposes for the family, that is to say to enable the present visa application.
The relevant provisions of section 501 of the Act are:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…
501(6) For the purposes of this section, the person does not pass the character test if:
…
(c)       having regard to either or both of the following:
…
(ii)       the persons past and present general conduct;
          the person is not of 'good character'."
Thus it can be seen that notwithstanding that, as was pointed out by the Federal Court in McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 and 368-9, it will rarely be appropriate to speak in terms of onus of proof in relation to the making by an administrative tribunal of a decision pursuant to a statutory discretion, section 501 of the Act provides that it is for the visa applicant to satisfy the Minister and ultimately the Tribunal, that he or she passes the character test.
The review applicant is the husband of the visa applicant who is a citizen of the former Yugoslavian Republic of Macedonia.
The following facts, (with some interpolation of my own), are taken from the respondent's statement of facts and contentions and I find them to be proved:
(a)on 25 January 1984, the review applicant and the visa applicant married in Macedonia. Two children were born of the marriage, namely Erdzan born on 17 March 1984 and Usamedin born on 22 July 1998;
(b)on 30 August 1993, the review applicant and the visa applicant divorced;
(c)on 12 February 1994, the review applicant married Ms Nazira Arslanoska, an Australian citizen. The marriage was by proxy, the review applicant and Ms Arslanoska having met whilst she was on holiday in Macedonia between March and September 1993;
(d)on 15 July 1994, the third son of the review applicant and the visa applicant, Doan, was born;
(e)on 21 October 1994, the review applicant was granted a spouse visa based on his marriage to Ms Arslanoska;
(f)on 11 March 1995, the review applicant entered Australia;
(g)on 22 August 1995, the review applicant went to the former Republic of Macedonia;
(h)on 13 October 1995, the review applicant returned to Australia;
(i)on 9 September 1996, the review applicant and Ms Arslanoska divorced;
(j)on 5 June 1997, the review applicant was granted Australian citizenship;
(k)on 28 June 1997, the review applicant went to the former Republic of Macedonia;
(l)on 3 August 1997, the applicant and the visa applicant re-married;
(m)on 26 August 1997, the visa applicant lodged the first of a number of visa applications which culminated in the present application;
(n)on 23 September 1997, the review applicant returned to Australia.
On the basis alone of the factual matrix set out above, the decision of the Minister's delegate that she was in no doubt that the parties had colluded to gain Australian citizenship firstly for the review applicant and then for the visa applicant and her children, was perfectly reasonable. The Minister's delegate applied for herself the correct test, finding that the visa applicant had failed to convince her that she and the review applicant had not committed serious breaches of immigration law.
Equally, on the material before it, the Migration Review Tribunal's decision to refuse an earlier spouse visa application was entirely reasonable. The Tribunal had held that in view of the evidence concerning arguments between the parties during their first marriage, the decision to remarry after one or two weeks together following no contact for nearly four years, required supporting material regarding the genuine nature of the commitment between them. The Tribunal held that it had no evidence that the visa applicant was committed to the review applicant, notwithstanding its finding that the review applicant wished to resume a family life with the visa applicant and their children.
The Tribunal has however had the advantage not only of seeing and hearing the review applicant and the visa applicant, but of evidence tendered by consent from Ms Arslanoska, detailing the history of her marriage to and divorce from the review applicant and from Mr & Mrs Isov as to constant arguments between that couple. Additionally the Tribunal heard evidence from Ms Usnija Lumanovska, the review applicant's cousin, who did not give evidence before the Migration Review Tribunal but who had seen video and photographic evidence of the wedding between the review applicant and Ms Arslanoska, and who expressed her view of the genuineness of both the review applicant's marriage to Ms Arslanoska and his re-marriage to the visa applicant.
Ms Arslanoska in her statutory declaration tendered by consent (Exhibit 2) gave the following evidence:
"In 1993, I went to Macedonia on a holiday.
When I was in Macedonia, I met RESUL MEMED. We started to socialise together. We went out a few times, we fell in love. Resul Memed then asked me to marry him.
After a few weeks I Nazira came back to Australia. Resul Memed received his Visa to enter Australia. He arrived to my home. My ex husband came to visit our children. Resul started to argue over the fact that he was coming over to see the children. We had big discussion over the matter Resul was very angry and upset about the situation.
Resul did not understand the system in Australia. I started to socialise with my ex husband again because I still had feelings for him and loved him, because he is the father of my children. Resul still argued that my ex husband was coming to my house. I had to explain to Resul that that's the way its going to be forever. Resul did not except the fact of the system in Australia, so he said 'We in Macedonia don't allow this because of our culture and way of life.' We were constantly fighting and arguing for a few days. Things started to get out of hand, we had no control of the relationship. I Nazira kicked Resul out of my home with all his belongings. From that day, I never saw Resul or heard from him and I don't want anything to do with him."
I fully accept that Ms Arslanoska's evidence was not tested by cross-examination, but the fact remains that before the Tribunal it was tendered with the consent of both parties and there is no internal inconsistency or inherent improbability in her statement which would cause me to reject her evidence. I accept it.
I adopt the same process of reasoning in relation to the evidence of Nevzat and Sadia Isov, who declared that they were friends of the review applicant and Ms Arslanoska while they were living together in Perth, that when they first met Mr Memed they found him to be a very nice person and that during their relationship they heard them arguing constantly. As neighbours they expressed the view that the couple were having a lot of difficulty.
Ms Lumanovska's evidence that both marriages were genuine was not shaken in cross-examination.
There are matters which upon an analysis of the factual matrix in this case give cause for suspicion. They are:
(a)that the review applicant and the visa applicant's third child Doan was conceived after the couple's divorce and during a time when the review applicant had agreed to marry Ms Arslanoska;
(b)that the review applicant waited from 21 October 1994 when he was granted a spouse visa based on his marriage to Ms Arslanoska until 11 March 1995 before he entered Australia to take up residence with his wife;
(c)that his period of cohabitation with Ms Arslanoska was very short, a period of only about 5 months;
(d)that the re-marriage of the review applicant and the visa applicant was very quick, only a matter of some two months after the review applicant returned to Macedonia in June 1997;
(e)that the review applicant returned to Australia approximately one month after that re-marriage and did not return to Macedonia for nearly three years and has since the re-marriage spent a total of only about two months in the former Yugoslavian Republic.
As to the circumstances surrounding Doan's conception, the review applicant gave the following evidence:
"… we decided to get married, but she had to go back. And I stayed on my own over there. And because I was on my own at that time and like probably many other males, I was looking for a lady and that is why I started to see Nesime again. But Nesime didn't know anything about my marriage with the Australia lady. Because Nesime, with her parents, she was living in another city …
She wasn't living in the same city as I was living. I was lying to Nesime. She didn't know anything about that. While I was on my own and I was waiting to go to Australia, actually, I was just lying to Nesime. I just wanted to be with someone else while I was waiting. And that is how we conceived our third child."
Whilst the review applicant's behaviour in this regard would no doubt be judged by many as irresponsible and selfish in the extreme, his demeanour was consistent with what he was saying and his evidence did not lack verisimilitude. I am not remotely persuaded that his evidence to the Tribunal was false and that the truth lies in a continuing sexual relationship and a continuing marital animus subjugated solely for the purpose of allowing marriage to an Australian citizen to facilitate the migration of the review applicant, the acquisition of Australian citizenship, the divorce of the Australian citizen, and the re-marriage of the review applicant and the visa applicant.
As to the review applicant waiting from October 1994 until March 1995 to come to Australia after he was eligible, the review applicant gave the following evidence:
"Because I had my own business, because I wanted to settle some other matter. Because I had a small business, I wanted to clear things and I had my own property. I had to clear up all these things, because I had to go and I was supposed to be there – that is what I thought, that I am going to be there for good. I couldn't do that just in a short time, just in a rush …
I closed my business. First I sorted out all things with the bank, because that I was coming here for good and I didn't want to leave anything there."
I pressed the review applicant as to whether it took five months to close a business and he replied:
"I was still having goods in stock and I have to clear up all things and I was still waiting for some other things to close. I couldn't do that, just suddenly and go, because I was coming here for good."
I am satisfied that the review applicant's responses in this regard were not disingenuous.
As to the brevity of the cohabitation in Australia between the review applicant and Ms Arslanoska I am satisfied from the evidence that I have earlier set out that the marriage was a genuine marriage, but it encountered problems when the couple commenced to live together in Perth, and it resulted in a genuine breakdown with the review applicant moving across the continent to live with his cousin in Melbourne.
That the remarriage of the review applicant and the visa applicant in such quick time after a considerable break in their relationship may leave the question of the review applicant's motivation open to speculation. It may have been motivated by a sense of guilt for his earlier selfishness and irresponsibility or out of a belated recognition of true love. It is beyond the Tribunal's role to arbitrate the various possibilities. It is sufficient for me to say that I am satisfied that the remarriage was not part of an elaborate conspiracy, the ultimate aim of which was to secure the migration of the review applicant and the visa applicant and their children to Australia.
On the question of the review applicant's return to Australia after his remarriage and the limited time spent since with his wife in the former Republic of Macedonia I accept the review applicant's explanation that money was the reason. That evidence was supported by the visa applicant's evidence that the review applicant returned to Australia only two months after their remarriage because he had to go back because of his work.
Overall I am satisfied that lack of funds contributed to by the review applicant's financial support of his family in the former Yugoslavian Republic of Macedonia is the reason why there was not greater contact between the review applicant and the visa applicant.
The past and present conduct of the visa applicant which is said in this case to cause her to fail the character test, whether that conduct be characterised as general conduct or criminal conduct or both, is her participation in a conspiracy involving collusion and contrived marriages and divorces the object of which was to bring about the resettlement of the visa applicant's immediate family in Australia.
Because it is for the visa applicant to satisfy me that she passes the character test, the evidence must leave me more than in a state of equipoise. If I were simply unable to reject the evidence of the review applicant and the visa applicant that would mean that the visa applicant fails to satisfy me that she is of good character.
The position I find myself in however, is that whilst a number of aspects of the factual matrix in this case give cause for suspicion, I positively accept the evidence of the review applicant and the visa applicant as to the explanations for those apparently anomalous facts.
It follows that I am satisfied that the visa applicant passes the character test.
As the Federal Court said in Goldie v Minister for Immigration and Multicultural Affairs (1991) FCA 1277 at paras.5-8):
"The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry."
I am positively satisfied in this case that the visa applicant's enduring moral qualities are not so deficient in that sense or that her past conduct amounts to providing false or misleading information in connection with an application for the grant of a visa or in an approved form.
It follows that the decision of the Tribunal is that the decision under review be set aside and the matter is remitted to the respondent for reconsideration with a direction that the visa application not be refused under s501 of the Act.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing  18 July 2002
Date of Decision  9 August 2002
Counsel for the Applicant        Applicant appeared on own behalf
Solicitor for the Applicant
Counsel for the Respondent    Mr Phil Cadman
Solicitor for the Respondent    Blake Dawson Waldron