Mujedinovski and Minister for Immigration and Citizenship

[2008] AATA 454

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 454

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/3316

GENERAL ADMINISTRATIVE   DIVISION		)
Re		VITURYE MUJEDINOVSKI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date2 June 2008

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
  Senior Member

MIGRATION – applicant's father entered Australia in 1994 on a tourist visa – married an Australian resident within six weeks and paid her $25,000 – marriage contrived – application for permanent residency made two days later – interview by immigration officers in 1999 – answers given to questions were false – visa applicant subsequently charged and convicted of ten offences – application then made for protection visa – voluntary exit from Australia in 2001 – application made for Contributory Parent visa to enter Australia refused in 2007 – Direction 21 – visa applicant not of good character – Part 2 discretion not favourably exercised – decision affirmed

Migration Act 1958 (Cth) s 501

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277

Irving v Minister for Immigration and Multicultural Affairs [1996] FCA 1660

Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142

Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238

Taylor v Minister for Immigration and Multicultural Affairs [2004] FCA 181

REASONS FOR DECISION

2 June 2008   Mr John Handley, Senior Member

1.      This application concerns a review of a decision made by a delegate of the respondent Minister to refuse to grant a Contributory Parent Class CA (Contributory Parent / Migrant) Sub‑Class 143 visa to Mr Sadik Selimi who is a resident of Macedonia.  The application for the visa was made by his adult daughter, Viturije Mujedinovski (the applicant) who is a resident of Australia.

2. The delegate applied the provisions of s 501 of the Migration Act 1958 (the Act) and found that Mr Selimi did not pass the character test.  The delegate then considered the discretion available to him and by application of Part 2 of Direction No 21 (refer later) decided to refuse to grant the visa being sought.

3.      The circumstances giving rise to the application may be briefly summarised as follows.

4.      Mr Selimi is currently 53 years of age having been born on 26 November 1954.  He was previously known by the surname Jakupovski but which he changed to Selimi at the request of his father.  On 8 February 1973, Mr Selimi married Neire and they have four adult children, three of whom live in Melbourne namely, Juldrita, Viturije and Viktorije.  The fourth child Nazar lives with Mr Selimi and his wife in Macedonia.

5.      On 9 December 1994, Mr Selimi and Neire divorced in Macedonia.  On 17 December 1994, Mr Selimi travelled to Melbourne with Viturije to attend her wedding to Faruk.  The applicant then entered on a tourist visa and intended to stay for a short time.  On 29 January 1995, Mr Selimi married Lea Flegel an Australian resident and paid her $25,000.  On 1 February 1995, Mr Selimi applied for permanent residency.

6.      Ms Flegel was interviewed on 1 April 1999 by officers of the Immigration Department and admitted that she married Mr Selimi so that he could apply to remain permanently in Australia on spouse grounds.  She admitted that she had not ever lived with Mr Selimi, nor had she ever resided at 30 Alexander Street, Hallam which was an address that she and Mr Selimi had offered the Department from time to time as their matrimonial address (Supplementary T‑docs 19 at p130).  Ms Flegel later pleaded guilty to charges in the Dandenong Magistrates' Court of nominating a person to stay for the purposes of acquiring a visa and being knowingly concerned with the delivery of documents which were false or misleading in a material particular.  She was convicted and sentenced to two months imprisonment (T‑docs pp281 – 282).

7.      Mr Selimi was interviewed by departmental representatives on 10 May 1999 (T‑docs pp97 – 129) concerning the nature of his relationship with Flegel and the validity of his marriage.  That interview occurred a short time after he was found to be at premises at 45 William Avenue, Dandenong in the presence of his former wife, Neire.  During the interview Mr Selimi made false statements concerning his marriage to Flegel and his relationship with Neire.  He also made false statements concerning documents that had been lodged by him.  The documents were supplied to dispel a contention of the respondent that the marriage was contrived (refer T‑docs p226).  The documents were false and purported to be evidence of expenditure on household items, insurances, school fees and purchase of real estate.  Mr Selimi needed to establish his marriage was genuine because his application for permanent residency was based on the nomination of his spouse.  He was later charged with 10 offences (9 of the charges were in relation to provision of a document containing misleading particulars) and entered a plea of not guilty at the commencement of a three day hearing in the Magistrates' Court at Dandenong.  He was convicted of all offences.  He entered into a reconnaissance to be of good behaviour for 12 months and was released upon payment of a security of $1,000.  On leaving the Court precincts – on 18 December 2000 – he was detained by Immigration officials and was admitted to Immigration detention.  Two days later on 20 December 2000 he made an application for a protection visa claiming that he was a refugee.  That application was refused and an appeal was lodged with the Refugee Review Tribunal.  Before that appeal was heard, Mr Selimi voluntarily left Australia.  He returned to his home in Selo Graesnica in Macedonia.  On 20 October 2004, Mr Selimi remarried Neire and on 3 November 2004 the application was made for the contributing parent visa (CPV) which has given rise to these proceedings.

8.      Mr Selimi gave evidence by telephone from Macedonia.  He adopted a statement signed by him on 24 December 2007 which was received as Exhibit A1.  He said the contents were true and correct and he wished to make no alterations, although it was learnt during the hearing that his eldest daughter, Juldrita, who he had recorded as living in Macedonia had – subsequent to the completion of the statement – migrated to Australia and was now living in Melbourne.

9.      The statement of Mr Selimi is reproduced as follows:

I, SADIK SELIMI. of Selo Graesnica, Z. P. Porodin, Bitola, Macedonia, STATE AS

FOLLOWS:

I am the visa applicant in this case. In 2004 I applied to migrate to Australia on a parent visa, together with my wife Neire Jakupovska and our son, Nazar, who is the youngest of our four children. My application for a visa has been refused on the basis that the Australian Immigration Department decided that I am not of good character and that my application should therefore be refused.

2. I accept that in the past I committed offences with respect to my previous spouse visa application, but I am a good person and believe that I [sic] my visa application should be approved so that my wife and I can travel to Australia and be with my two daughters here and our six grand-children. Since I made this visa application in 2004 it has been explained to me by my new migration agent that my son Nazar does not meet the test of being dependent for Australia’s immigration laws. I did not know this when my son-in- law Faruk completed the application form for us to sign. However I accept that Nazar cannot be part of this visa application, although in truth he is dependent on me because we both work on the small farming property that I own (in part).

3. I was born in Kisava, which is a village in the Bitola region of southwest Macedonia, on 26 November 1954 and am now 53. I still live in this area, although now we live in Graesnica. Like many of the population of this region I am Albanian by my heritage. For most of my life I have been working on a farm. Now I own a small parcel of land and lease another plot on which my son and I work. We grow corn and feed for livestock and have a small number of milking cows.

4. My life in Macedonia has been very hard. We Albanians have always been discriminated against and are the poor people in our country. Because of the poverty we faced in Kisava my family moved to Graesnica when I was about four years old. I went to school for only about four years, starting when I was aged eight. But I cannot write anything more than my own name and a few words in Albanian that I can recognize. I cannot read or write Macedonian, although I can understand that language and speak it to a limited extent. I cannot read, write or understand English, so when I was in Australia I always depended on other people to help me with the authorities. Although I picked up a few words that I could speak when I lived here, now I have forgotten even those words.

5. When I was 18 years old I married Neire Telovska. We have four children, three daughters and the youngest child, our son. The eldest girl Juldrita Dzemali lives with her husband in Macedonia. Viturije Mujedinovski is aged 32 and lives in Melbourne with her husband Faruk and their two children, Viktor and Floreanna. Viturije is the sponsor of my application for a parent visa. Viktorije Elmazovska also lives in Melbourne with her husband Zani and their four children. Finally there is Nazar Selimi who lives and works with me.

6. Sadly my marriage had been difficult for many years, with my wife and I often arguing. I decided that I wanted to travel to Australia for my daughter Viturije’s wedding, but this upset my wife even more and we decided that we should get divorced. We did not want to tell our children because we thought that it would upset them, but we divorced on 9 December1994, just before I came to Australia. I understand that the Department of Immigration officer who decided my case thinks that the divorce was not real, but that is not correct. After many years of stress we decided that we were both better off not being married to each other any longer.

7. I decided to travel to Australia for my daughter’s wedding. It was not my intention to stay in Australia when I applied for a visitor visa. I was going to attend my daughter’s wedding to Faruk Mujedinovski and spend a short time holidaying, but planned to then return home to Macedonia. Viturije and I traveled together, arriving in Australia on 17 December 1994.

8. Although I did not intend to stay, after I arrived here I listened to some people, in particular John Jemal, who explained to me that it was very easy to stay in Australia. I foolishly listened to these people, because I did not at that time understand that the Australian authorities took these matters so seriously and because things back home were very bad and I thought that I could have a better life in Australia. Of course I now know that making a false visa application was wrong and that in the eyes of the Australian government it was a very serious thing to do. I am very sorry that I listened to these people and did these things.

9. Mr Jemal made it all sound very simple. He knew a woman named Lea Flegel, who rented a property that he owned. I met her soon after coming to Australia and liked her. I thought that she liked me as well and that in time we would have a real relationship, but that did not turn out. He told me what I should say to the Immigration Department officers and put together the documents that they required. During this time I worked at a market garden at Pearcedale for Coolibah Herbs and paid all my Australian taxes as required.

10. Around the beginning of 1999 Neire traveled to Australia to be with Viturije after the birth of her second child Floreanna. I did not know that she was in Australia until one night I went to Viturije’s home and saw her there. At first I was upset and wanted to leave, but Viturije asked for me to stay and so I decided to do so for the sake of my daughter’s wishes. Over the following months Neire and I began to see more of each other and found that we were getting on better than we did during the troubled years of our relationship in Macedonia.

11. In March of 1999 officers from the Immigration Department came to my home in Dandenong and found Neire & I together. I was very confused and tried to maintain that I was still involved in a genuine relationship with Lea, but it was obvious that the officers did not believe me. I then spoke to John Jemal about this and he arranged for me to see a lawyer named John Selimi. Together they assured me that everything would be alright. I asked if members of my family should come to Court but was told it wasn’t necessary for them to do so. Even when we went to Court I did not really understand what was happening. Mr Selimi told me that it was a hearing to confirm my visa and that we won the case, but after Court I was stopped by Immigration officers who then took me into detention.

12. Thankfully my son-in-law paid the money for me to be released from detention the next day and I was able to return to my home in Dandenong. However I was advised to make an application for a refugee visa, because things in Macedonia were then very bad and I was worried what would happen if I had to return.

13. Although I was concerned about the situation in Macedonia, my wife and I decided that we should return there when my son received a conscription letter early in 2001. We left Australia on 26 March 2001 and we have not returned since that time. We reconciled in Macedonia and have since re-married.

14. After I returned to Macedonia I changed my family name from Jakupovski to Selimi, at the request of my father who has since passed away. I did not make this change of name with intention of attempting to conceal what I knew of my Australian migration history from the Immigration authorities. When my son-in-law Faruk completed the current parent visa application documents I asked him to make sure that he included that I had previously applied to migrate to Australia, because I did not want to get into any further troubles with the authorities.

15. However he did not realize that I had been convicted of criminal offences at the Magistrates’ Court at Dandenong, so he did not set out those convictions in the application form. This was a genuine mistake that we made because we did not understand what had happened at Dandenong. When my migration agent obtained a police certificate that showed what had happened, we did not try to conceal the certificate but made sure that it was sent to the Department.

16. I hope that the Tribunal will allow my wife and I to return to Australia and live here with our daughters and grand-children. I promise that I will not break any Australian laws and understand that I will have to be very careful about completing any official documents.

10.     In evidence at the hearing Mr Selimi said that he came to Australia in 1994 with his daughter intending to stay for three months.  At the wedding he met a person known to him as John Jemal who asked him whether he wanted to stay in Australia.  He said that Jemal told him that he knew of a woman (Flegel) who lived in a property owned by him and he would be able to set us up (Selimi and Flegel) to stay in Australia.  Mr Selimi said that he agreed to that proposition but now regretted it.  He agreed that he married Flegel a short time later and a spouse application was made with the intention of permitting him to remain permanently in Australia.

11.     Mr Selimi said that he was reunited with his wife Neire some years later when he met her after their daughter Viktorije gave birth to her child Floreanna.  He said that he resumed his relationship with Neire at the encouragement of his children.

12.     In December 2000, Mr Selimi attended the Dandenong Magistrates' Court and said he did not know the purpose for that appearance but understood that it had something to do with the issue to him of a visa.  He said he could not remember whether he had an interpreter assisting him, that he did not understand the proceedings, he could not remember whether he gave evidence nor could he remember whether he pleaded guilty or not guilty.  He said at the conclusion of the proceedings he was told by his solicitor – also known as Selimi – that everything was alright.  He said he did not know until the present application was made (and after a certificate had been obtained from the Australian Federal Police) that he had then been convicted.

13.     Mr Selimi said if he is allowed to return to Australia he will abide by the law, that he will enlist people that he trusts to complete forms on his behalf and interpret the contents to him.  He said that he would then be more careful than he had been previously, he acknowledged the errors and mistakes that he had made in the past and it is his wish to live in Australia with his wife, his children and his grandchildren.

14.     In cross‑examination Mr Selimi said he did not know why he had attended the Dandenong Magistrates' Court or the outcome of the proceedings at the Court.  He said he did not know who had made the protection application on his behalf or its contents or whether those contents were false.  He also said that he did not know that his wife Neire was in Australia before he met her at the celebration of the birth of his granddaughter Floreanna.

15.     Mr Selimi said that he could not remember whether he had an interpreter assist him at the Magistrates' Court, whether he had been asked to plead guilty or not guilty, whether he gave evidence and whether he went into the witness box.  He said he could not remember being interviewed by Immigration officials on 10 May 1998 or whether he was alone or with another person.  He said he could not remember whether any documents were attached to his application for permanent residency (which were later found to be fraudulent and for which he was charged and convicted).  He could not remember the name of the solicitor who then acted for him nor could he remember saying during the interview on 10 May 1998 that his marriage to Flegel was real.

16.     Whilst Mr Selimi did acknowledge some of his previous conduct he frequently cast blame on Jemal by frequently using the expression all these things happened because of Jemal and / or whatever he told me to do or say I did.  He thought that Jemal had made the application for permanent residency for him in 1995 and said that Jemal had coached him prior to the interview with Immigration officials as to the likely questions that would be asked and the answers that he should give.  He agreed that he paid Jemal $10,000 and that he was to pay him another $10,000 after the permanent residency visa was granted.

17.     Mr Selimi acknowledged that his marriage to Flegel was contrived and acknowledged also that to do so was a serious offence.  He also agreed that his marriage to Flegel was contrived with the intention of being used to support an application for a permanent residency visa.

18.     On the one hand Mr Selimi acknowledged that he was responsible for his previous behaviour and what had happened to him.  He also added that they lied (Jemal and Selimi), that he was uneducated and had had limited schooling.

the legislation

19. Section 501 (1) of the Act provides that the Minister may refuse to grant a visa to a person if that person does not pass the character test.  Sub-section (6) relevantly provides that a person does not pass the character test if:

(c)       Having regard to either or both of the following:

(i)        The person's past and present criminal conduct;

(ii)       The person's past and present general conduct;

the person is not of good character

20.     I am satisfied that Mr Selimi's past criminal conduct and his past and present general conduct indicates that he is a person not of good character.

21.     Mr Selimi was convicted in the Dandenong Magistrates' Court of 10 charges relating to his contrived marriage to Flegel and his submission of documents in support of his residency application which were found to be fraudulent.  There is nothing which points to any present criminal conduct but there is much from the above summary of the evidence indicating past and present general conduct which is not of good character.  The past general conduct is evident from the above; it concerns his behaviour and contempt of Australian laws over six years and points to a person of poor character.  Some of his past general conduct attracts the provisions of paragraph 1.9 (b) of Direction 21 (provision of a bogus document or making a false or misleading statement) and I am compelled to take that conduct into account.  There is little that would point to present general conduct as being of good character.  His acknowledgement of past mistakes, in my view, is of insufficient degree in the absence of any evidence of rehabilitation or other recent conduct which would suggest that he is at present of good character.  The acknowledgement of his past conduct and his statements of intending to comply with Australian laws (paragraphs 13 and 16 earlier) coincide with these proceedings.  The gravity and extent of his past criminal and general conduct and the absence of evidence of present general conduct, on balance, is heavily weighted against succeeding under Part 1.

22.     If not already apparent, I cannot find Mr Selimi has enduring moral qualities; he has committed infractions . . . that show weaknesses or blemishes in character and he is a person who lied to officers of the respondent thereby demonstrating an absence of good character (refer Irving v Minister for Immigration and Multicultural Affairs [1996] FCA 1660; Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148).

23.     I am not satisfied therefore that Mr Selimi passes the character test.  Having made that finding, attention is then directed towards Part 2 of Direction 21 (refer s 499 (2A) (of the Act)).  The Federal Court has found that Direction 21 must be followed and failure to do so would be an error of law (refer Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 at paragraph 28).

24.     Part 2 of Direction 21 refers to three primary considerations namely

(a)The protection of the Australian community; and members of the community;

(b)The expectations of the Australian community; and

(c)In all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

protection of the australian community

25.     This primary consideration is made up of three parts namely, the seriousness and nature of the conduct, the likelihood that the conduct may be repeated (including any risk of recidivism) and general deterrence, being the likelihood that visa refusal would prevent or inhibit the commission of like offences by other persons.

26.     Mr Selimi has not engaged in crimes of violence or theft nor involved in the trafficking of drugs nor sexual assault all of which are especially repugnant.  However, it is worthy to note at Part 2.6 (c) the Minister regards serious crimes against the Act as being very serious.  Mr Selimi has committed crimes against the Act and he was found guilty of those crimes.  Mr Selimi admits that he paid a considerable amount of money to Jemal to orchestrate an intended application for permanent residence and it would appear that Flegel was a willing accomplice.  But apparently not without a price because Mr Selimi also paid her $25,000 to fraudulently present herself as his wife.  Mr Selimi said that he acted under the direction of Jemal and signed documents that were produced to him.  Whilst I accept that he does not read or speak English, I am satisfied he was a willing participant in a scheme devised by Jemal to ensure that a residency visa was ultimately obtained.  From Jemal's point of view, it was in his interests to engage in conduct of that type because Mr Selimi had agreed to pay him another $10,000 when the visa was issued.  I am also satisfied that Mr Selimi knew that he was engaged in a course of conduct which was illegal.  His absence of command of the English language in written and spoken form and his poor education does not prevent him from knowing and being a willing participant in a scheme intended to defraud the Australian community.  He willingly paid monies to Jemal to do whatever was necessary to ensure that he could stay as a permanent resident.  He was not prepared to make a legitimate application for permanent residency and for many years either made, or allowed to be made, statements and representations which he knew were false and which were intended to conceal that his marriage was a sham.

27.     Mr Selimi said on a number of occasions during the hearing that he regretted his past conduct and gave assurances that it would not be repeated.  Those disclosures are obviously to his credit but nothing else is known, nor was anything put, which would assist in assessing the likelihood of similar offences again being committed.  That Mr Selimi was prepared to engage in a course of conduct in which he was a willing participant where he was able to conceal the true nature of his relationship for many years in a foreign country where he did not speak or read English does cause me to have little confidence that similar conduct would not be repeated.  There was no evidence of any rehabilitation that might reasonably be expected to have been made.

28.     I am confident that refusal to grant a visa would be of general deterrence to the general community.  It is my view that fair-minded decent honest persons would not ever engage in conduct previously committed by Mr Selimi but there may be others who might be deterred from conduct similar to that previously undertaken by him if they learn that there is a likelihood of detection, prosecution and punishment.

29.     On balance, I attach considerable weight to the first primary consideration namely the protection of the Australian community and members of it.

30.     The second primary consideration is the expectation of the Australian community.

31.     Paragraph 2.12 provides that the Australian community would expect non‑citizens to obey Australian laws whilst in Australia.  I would think that most Australian citizens would be very disturbed about the conduct of Mr Selimi.  I think that he would be regarded as a person who acted dishonestly and who has demonstrated virtually nothing since he left Australia in March 2001 which would permit a conclusion that he is a person who is now honest or can be trusted.  His conduct clearly points to him being a person who was prepared to disregard Australian laws and engage in behaviour – even by the expenditure of considerable sums of money – to ensure that he was able to stay.  In his application for a tourist visa he said that he was entering Australia for the purposes of attending his daughter's wedding.  In his application for refugee status – which I think was clearly in the mind of his representatives at the Dandenong Magistrates' Court as a fall back position (refer report at Supplementary T‑docs at p156) he claimed that he left Macedonia to escape from the persecution and discrimination suffered by me and all other Albanians at the hands of the Serbs (Supplementary T‑docs p58).  Additionally, he claimed that he feared that returning to Macedonia would expose him to persecution and discrimination.  That application was as false as the marriage he entered into and despite the professed fear of returning he voluntarily left Australia in March 2001 and returned to (and remains on) the farm that he worked before he left in 1994.

32.     I think also that Australian citizens would regard non‑citizens more favourably if having committed offences in Australia, they readily acknowledge their conduct rather than be a willing participant in a lengthy record of interview for which the answers given are false and for which there had previously been coaching or a rehersal.  Australian citizens would also find it difficult to believe that having appeared before the Magistrates' Court at Dandenong for three consecutive days that there would not be a memory of whether evidence was given and whether assistance was offered by an interpreter.  The report of the proceedings in the T‑documents records that Mr Selimi pleaded not guilty.  It is inconceivable that the Magistrate would have allowed the proceedings to continue for three days in the absence of an interpreter.  I am satisfied and find as a fact that the Mr Selimi did understand the nature of the proceedings, that he did plead not guilty, that he did give evidence and that the allegations against him were properly interpreted.  His denial throughout the hearing of this application of his understanding of the proceedings at Dandenong Magistrates' Court and his memory of it does him no credit.  He was entitled (as is every person) to have the Crown prove its case but, I think this application would have been more favourably considered if he had made admissions during the interview in May 1999 and had pleaded guilty and renounced or ended his association with Jemal.  Behaviour of that type would have demonstrated:

(i)       a recognition that he had breached domestic laws; and

(ii)a degree of honesty and maturity for which immigration officers and the Australian public may have given him credit.

33.     I attach considerable weight to this part of Direction 21 and I am satisfied that the Australian community would hold an expectation that the past conduct of Mr Selimi would justify the refusal to grant him a visa.

the best interest of the child

34.     This discretionary consideration applies only with respect to children under the age of 18 of whom Mr Selimi has none.  However the child can extend to grandchildren (refer Taylor v Minister for Immigration and Multicultural Affairs [2004] FCA 181; Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142).

35.     It was put by the son-in-law of Mr Selimi, Faruk, that he and his wife Viturije, the applicant in these proceedings, would benefit by the presence of Mr Selimi and his wife in Australia in minding their children whilst they are both at work.  It was learnt that Faruk and Viturije work differing shifts in order for their children to have parental supervision at all times.  Similarly, it may be that the children of the Mr Selimi's other daughters in Australia might benefit from his presence.  However nothing is known about the relationship between Mr Selimi and his grandchildren.  It is not known whether there has ever been a relationship.  The numbers of grandchildren and their respective ages was unknown and it may be that some of those children may have been born since he departed Australia in 2001 although it is known (refer earlier) that he was here at least in 1994 when Floreanna was born.  Nothing is known of his relationship with Floreanna or any other grandchildren during the period of time that he was in Australia between 1994 and 2001.  Paragraph 2.16 (b) especially, is relevant.

36.     It is of course of benefit to grandchildren that they have contact with their extended family but having regard to the criteria at paragraph 2.16 it is difficult to find any circumstance which would benefit Mr Selimi.  It is assumed that the grandchildren in Australia speak English.  It is not known whether they speak Albanian.  If not, the prospect of any relationship with Mr Selimi would be limited.  Little weight in my view can be attached to this consideration which would be of benefit to Mr Selimi.

37.     The remaining discretionary provisions are found at paragraph 2.17 under the heading Other Considerations.  This part requires that the matters under this paragraph be given consideration but that they be given lesser weight than the three primary considerations.

38.     With that in mind, and by regard to the provisions existing under 2.17, there is nothing which points to any disruption of Mr Selimi's family in Australia by him being refused a visa.  Three children have left Macedonia and are demonstrating an intention to permanently reside in Australia.  There is nothing which points to hardship by Mr Selimi and his wife being absent from Australia other than the dislocation of the family which apparently was initiated by the migration of the children to Australia.  There is nothing known which would prevent his daughters, their husbands and their children visiting Mr Selimi and his wife in Macedonia.

39.     For reasons expressed earlier there is nothing which points to evidence of rehabilitation or recent good conduct on the part of Mr Selimi other than his expression of regret and apology during the hearing and recorded in his statement.

conclusion

40.     On balance and for the reasons expressed earlier, I am satisfied that the discretion which must be exercised under Part 2 of Direction 21 should conclude in a finding of refusal to issue the visa sought by Mr Selimi's daughter, the applicant in these proceedings.

41.     Accordingly the decision under review will be affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Dates of Hearing  12 and 21 May 2008
Date of Decision  2 June 2008
Counsel for the Applicant         Mr G Hughan
Migration Agent (Instructing)     Ms A Falcon
Solicitor for the Respondent     Mr D Brown, Australian Government Solicitor