Naumoski and Minister for Immigration and Multicultural and Indigenous Affairs

DECISION AND REASONS FOR DECISION [2002] AATA 585

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/18

GENERAL ADMINISTRATIVE DIVISION        )
           Re      Athena Naumoski
  Applicant
           And    Minister for Immigration and Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date16 July 2002
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Zvonko Naumoski.
  ..............................................
  RP Handley
  Deputy President
CATCHWORDS

IMMIGRATION – spouse provisional visa – character test – examination of the Visa Applicant's past and present conduct – the making of false and misleading statements – held that the Visa Applicant does not pass the character test - discretion that may be exercised by the Tribunal when the Visa Applicant fails the character test – necessity to consider the expectations of the Australian community balanced against humanitarian considerations for the Applicant's family – held that the discretion should be exercised in favour of the Visa Applicant – decision of the Respondent set aside with a direction that a visa should not be refused.
Migration Act 1958 ss 499, 499(1)(2)(2A), 501, 501(1), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

REASONS FOR DECISION

16 July 2002 Mr RP Handley

This is an application by Athena Naumoski ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 7 November 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Zvonko Naumoski ("the Visa Applicant").
At the hearing, the Applicant was represented by Simon Jeans, Solicitor, and the Respondent was represented by Sharon Hanstein, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given in person by the Applicant, Father Dimce Voinovski and Eugenia Georgelos, and by conference telephone by the Visa Applicant, Janet Brooks and Megan Richardson.
Background
The Applicant, Ms Naumoski, was born in Cyprus on 14 June 1971 and is aged 31. She arrived in Australia with her family on 13 January 1977 and became an Australian citizen on 4 December 1987. The Visa Applicant, Mr Naumoski, was born in Bitola in the former Republic of Yugoslavia on 24 September 1969 and is aged 32. Mr Naumoski was first married on 3 November 1990 and he and his wife had two children: Natalie who was born on 22 February 1991 and is aged 11, and Zoran who was born on 19 November 1993 and is aged 8. Mr Naumoski and his first wife were divorced on 23 June 1998.
On 28 October 1996, Mr Naumoski was granted a visitor visa valid for three months from the date of entry. He entered Australia on 15 November 1996. On 23 January 1997, he lodged an application for a protection visa having been granted a Bridging Visa A on 22 January 1997. His application was refused on 16 April 1997 and on 23 April 1997 he sought a review of this decision by the Refugee Review Tribunal ("RRT").
On 8 November 1997, Mr and Ms Naumoski met in Sydney. Within a few weeks of their meeting, Mr Naumoski told Ms Naumoski that his protection visa application included false claims. On 29 April 1998, the RRT conducted a hearing on Mr Naumoski's application and, on 29 May 1998, the RRT affirmed the refusal of a protection visa. On 15 June 1998, Mr Naumoski made a request for Ministerial intervention which was refused on 4 November 1998. Mr Naumoski's Bridging Visa A expired on 14 December 1998.
On 9 June 2001, Mr and Ms Naumoski were married at the Macedonian Orthodox Church at Carlton in Sydney. On 5 July 2001, Mr Naumoski approached the Respondent and was granted a Bridging Visa E valid until 11 July 2001. On 11 July 2001, he departed Australia for Macedonia.
On 7 November 2001, Mr Naumoski lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Belgrade. On 23 November 2001, he was interviewed at the Embassy by Janet Brooks, a Senior Migration Officer, in the presence of Megan Richardson. On 23 November 2001, Ms Brooks, the delegate of the Respondent, decided to refuse Mr Naumoski's application for a subclass 309 visa on the ground that he did not pass the character test because of his past and present general conduct. Ms Brooks also elected not to exercise her discretion in Mr Naumoski's favour. On 7 January 2002, Ms Naumoski lodged an application for a review of this decision by the Tribunal.
Relevant Law and Policy
Under s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Naumoski is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
Evidence
Athena Naumoski (the Applicant)
Ms Naumoski said she was born in Cyprus on 14 June 1971. She was three years old when the Turks invaded Cyprus. Her family home was in the Turkish occupied area. However, her grandparents' home was in the mountains in the Greek Cypriot area and this is where she, her mother and sister went after the occupation. Her father had been conscripted into the Cypriot Army and during the war her family were told that he had been killed. However, six months later, he and her mother's uncle, who had also been reported as being killed, met up and made their way to her grandparents' home in the mountains. Her father, who was a first class machinist, then went to Oman for two years in order to save money and give the family a better life. On 13 January 1977, Ms Naumoski migrated to Australia with her sister and parents. They arrived in Australia with two suitcases, with none of them being able to speak any English. Her father got a job at BHP leaving home at 5:00 am and returning home at 8:00 pm, working to provide a better future for the family.
At first, the family stayed at Quaker's Hill where Ms Naumoski went to an English as a second language school to learn English, as well as attending Quakers Hill Primary School. From Quakers Hill, the family moved to Croydon Park, where there was a larger Greek community, so that they could maintain their cultural links. After primary school, Ms Naumoski attended Strathfield Girls High School from which she graduated in 1988. She then completed a Diploma in Travel and Tourism and became a licensed travel agent. She has taught travel and tourism at TAFE College for the past nine years. She has also undertaken a Diploma in Real Estate at Meadowbank TAFE and a Bachelor of Higher Vocational Education at Charles Sturt University. She graduated with a Diploma in Real Estate and her Bachelor Degree in May 2002 and she will obtain her licence as a real estate agent later this year.
Ms Naumoski is currently working as a salesperson at Forty Winks, is teaching travel and tourism at TAFE and is working as a cleaner in the evenings. She previously operated her own travel agency in Enfield. She is living with her parents with whom she has a very close relationship. However, Ms Naumoski also owns a house and she and Mr Naumoski jointly own a unit. The house is worth about $270,000 and the unit about $225,000. Both properties are rented out and Ms Naumoski is making the loan repayments on the mortgages on the two properties which amounts to about $400,000. She earns about $900 per week net from her three jobs from which she covers all her expenses and also sends money when she can to her husband in Macedonia. Ms Naumoski said she needs to maintain these jobs in order to) meet her financial commitments. About two weeks ago, she sent her husband $2,000 which she had saved over a period of about three months.
Ms Naumoski said she first met her husband on 8 November 1997. Within a couple of weeks of their meeting, he told her about his immigration status, including that he had applied for a refugee visa to enable him to remain in Australia. She assisted him reading and translating his solicitor's letters. She was aware that his solicitors had made false claims on Mr Naumoski's behalf in his refugee visa application. Ms Naumoski said that in April 1998, she read the specific claims made in his refugee visa application and asked him whether these claims were true. He told her that they were not true, although he had received threats from his wife's parents. Ms Naumoski said she had helped her husband type up the statement dated 1 May 1998 (T p182) which they had prepared at the request of his solicitors. Mr Naumoski also told her about his separation from his wife. He told her that he was not legally separated from his ex-wife at the time he applied for a visitor visa but believed that there was a possibility of a separation.
Ms Naumoski said she has a very strong relationship with her husband. They bonded from day one. They have joint financial arrangements including bank accounts and have shared the paying of bills. Although Mr Naumoski proposed marriage to her fairly early on in their relationship, Ms Naumoski wanted to be financially secure before starting a family, so they waited. However, she wanted to get married before her thirtieth birthday, and so they arranged this about five days before her birthday. Ms Naumoski said they had a blessing of their home by the priest, which is an important spiritual matter in their religion. They also discussed marriage with the priest before their wedding. She and Mr Naumoski went to church together regularly at either one of their two churches: she belongs to the Greek Orthodox Church and he to the Macedonian Orthodox Church. She said they both have strong religious beliefs..
Ms Naumoski was not aware of when her husband's visa expired in December 1998, but when this happened, she did not want him to leave. She wanted to know him better, although the fact that he was in Australia illegally worried them both. She said her husband's solicitor never advised them that his later application for a spouse visa might be refused on character grounds.
Ms Naumoski said she and her husband purchased a unit together and he used to park his van outside the unit which had equipment in it for his work undertaking installations for Foxtel. Ms Naumoski said she had previously employed her husband as a courier in her travel agency business: he collected and delivered documents for her. He did this to assist her in this business and she did not pay him. After purchasing the unit, as a security measure, they installed surveillance cameras outside having first checked with both the local council and the police that they were permitted to do so. The intention was to prevent a robbery, there having been a number of robberies locally. Because the police were aware that they had surveillance cameras, they would often come and check the tapes if there were robberies in the neighbourhood. Moreover, when last year there was an explosion in a unit nearby, the police used their unit as a base to inquire into the incident. When Mr Naumoski left Australia on 11 July 2001, Ms Naumoski moved back in with her parents and the unit is now rented.
Mr Naumoski said her husband has always been very helpful towards others such as neighbours and friends when they have needed help. He is a good, hard working, family orientated man like her father. Ms Naumoski is a godmother to Eugenia Georgelos' son, Joseph, and because in the Greek community the spouse of a godparent also assumes the role of a godparent, Mr Naumoski established a special relationship with Ms Georgelos' children. Ms Naumoski said her husband respects the Australian Government and the Australian law. The only thing he has done is to try and make a better future for himself and his family. While he was in Australia, he worked hard, paid tax, operated a bank account and acted as a normal Australian resident. Because Ms Naumoski is a private person, she did not tell others about her husband's immigration status. Her view was that they should fix their own problems. Although at first she did not tell her family about her husband's status, she did tell them before she and Mr Naumoski were married.
Ms Naumoski said that she maintains contact with her husband by phoning him in Macedonia, but she finds maintaining contact by phone very hard. She uses both phone cards and Telstra, although to phone Mr Naumoski using Telstra costs up to $70 for 20 minutes. She has spent between $2,000 and $2,500 on phone cards since her husband returned to Macedonia. Usually, she phones on five or six days a week and sometimes four or five times a day. Their first wedding anniversary was on 9 June 2002 when she was at home on her own. She feels lonely and lost. Her birthday was on 14 June 2002 and it was the same – she felt empty, lost, lonely and depressed.
Ms Naumoski said she has not been able to go to Macedonia because of other commitments. Her mother, who is 59, was diagnosed with a brain tumour last year and Ms Naumoski needs to be there for her. She cleans, cooks, supports and cares for her mother who has lost part of the sight in one eye as a result of the tumour sitting on the optic nerve. One side of her mother's face is also numb. Her mother is unable to take headache pills because this may effect the brain scans which she has to have. Her mother needs 24 hour care because of her condition. For example, two weeks ago she fell in the bath tub. Her father, who is aged 57, works in the morning and looks after her mother in the afternoon. Ms Naumoski looks after her mother in the morning and works in the afternoon. Ms Naumoski said she would not consider paying for external care for her mother because it is her family's responsibility. Her mother is unable to go out – even to the corner shop. If her husband were able to return to Australia, their flat is only nine and a half minutes away and she would continue caring for her mother. Ms Naumoski's sister, who lives on her own in a unit about 35 minutes away, helps as much as she can but has substantial work commitments. She is the managing director of a personnel recruitment company and travels to Thailand and all over Australia. She is often away from home.
Ms Naumoski said the four specialists who are caring for her mother in respect of her brain tumour are presently away at a conference and will return in about a week. Her mother's original family doctor has retired and she has a new family doctor. The new family doctor did not feel able to provide a full history of her mother's condition. The family has been advised that her mother must be relaxed and must not be subjected to stress. Ms Naumoski said that if she went to live in Macedonia, she thought it would probably kill her mother, bearing in mind all that the family has been through in coming to Australia and making a new life here.
Ms Naumoski said she does not speak Macedonian or read or write the Cyrillic script. She has never been to Macedonia and does not think she would be able to live there. She had read the US State Department report on Macedonia and is very concerned about the situation there. She believes she would be unable to find work. She is also concerned because of her Greek background and because of the ongoing conflict between the Greeks and Macedonians. Ms Naumoski said she and her husband communicate in English. When she first came to Australia, she had to deal with being an outsider and learning a new language, and she does not want to go through this again. She acknowledged that she could return to Cyprus where she has permanent residency and that she could also live and work in Greece with the permission of the Greek Government. However, she does not want to start all over again. And, in any event, her husband cannot speak Greek and he would be affected by the conflict between Macedonia and Greece if he were to live in Greece. Ms Naumoski said she does not know whether she could sponsor her husband to live in Cyprus.
Ms Naumoski said that if her husband is able to return to Australia, he has promised her a big traditional wedding party with 300 or 400 people. Their wedding on 9 June 2001 was a very small occasion involving members of her immediate family. She and her husband want to have children. She supports him in maintaining contact with his two children in Macedonia. Her husband would probably start his own business again working as a subcontractor for Foxtel. He is a hardworking person and Ms Naumoski said he would be an asset to Australia. She feels betrayed, hurt, lost, and angry knowing that the person she loves is not here with her. She said she has suffered stress, headaches and migraines and lost weight. One of her shoulders swells if she is stressed, following a whiplash injury in a motor vehicle accident two or three years ago.
Ms Naumoski said her husband has few assets. He has parents and a sister in Macedonia. His parents came to visit them in Australia in 1998, staying for nine months and living with them at their unit. Ms Naumoski spent some of this time living with her parents to permit Mr Naumoski to have to have some time on his own with his parents. She got on very well with them. She has not met Mr Naumoski's sister.
Zvonko Naumoski (the Visa Applicant)

Mr Naumoski said he was born in Bitola in the former Republic of Yugoslavia on 24 September 1969. Before coming to Australia, he worked as a salesman in the old Yugoslavia and then, under the new regime, he worked as a self-employed truck driver and ran a wholesale food business. A few months before he came to Australia, Mr Naumoski and his former wife were having marital problems. She packed her bags and went to live with her parents, leaving the children with him. About a month later, she came and collected the children. He wanted to come to Australia to clear his mind and see his family there - an aunty and cousins. At that time, he was not thinking of divorce, but was intending to return to Macedonia to his wife and children with a view to he and his wife being reconciled. However, about 15 days after he arrived in Australia, he phoned his former wife and she told him not to phone again because she had found another partner and did not want him to disturb her again. Mr Naumoski said that until that time, he did not regard himself as being separated from his wife and this is why he did not state that he was separated in his application for a visitor visa.
Mr Naumoski said his original intention was to visit Australia for about three months and then return home. He had a good business in Macedonia and intended resuming this. However, after speaking with his wife and being told that their marriage was over, he began to think differently. He liked Australia, and saw an advertisement in a Macedonian newspaper in Sydney by Barlow and Company. At that time, Mr Naumoski knew nothing about different visas and he approached Barlow and Company for advice as to how he could stay longer in Australia. They advised him to apply for a protection visa and he just followed the advice he was given. He was told that he had to make up a good story as to why he should be treated as a refugee and could not return to Macedonia. They advised him to say that his life would be threatened if he returned to Macedonia and told him how to concoct a story. While, he did have problems with his wife's parents, in particular, because they blamed him for the divorce, his claim that his father-in-law was transporting guns was not true. He was advised to include this by Barlow and Company.
Mr Naumoski said his application to the RRT was made on the advice of Barlow and Company. He expanded on his previous false claims in a written statement and at the hearing. He is very sorry that he took that advice, for which he is now being punished, and is very sorry that he made the false claims in his protection visa application. If he had understood then what he knows now, he would have acted differently. However, what he said about the war in Macedonia was true and ) there is danger to anyone returning to the country. Mr Naumoski said he was also aware that after the RRT had affirmed the refusal of his visa, Barlow and Company applied for Ministerial intervention on his behalf. He acknowledged that at the interview at the Embassy in Belgrade in November 2001, he said that he later learned that applying for a protection visa was a way for a person to extend their stay in Australia and a lot of Macedonians were advised by lawyers to follow the same course as he did.
Mr Naumoski acknowledged that he had overstayed his visa. He said he did this because he had fallen in love and was blinded by the love of the person with whom he wished to spend the rest of his life. He wanted to get to know Ms Naumoski better which was also her wish before being committed to marriage. Meanwhile, he and his former wife were divorced on 23 June 1998. He said that shortly after he and Ms Naumoski met, he told her everything about his immigration status, including about the false claims in the protection visa application. Ms Naumoski did not know what a protection visa was at that time.
Mr Naumoski acknowledged that he had worked in Australia without permission. Nevertheless, the fact that he worked is an indication of the sort of hardworking person he is. He worked for Foxtel as a subcontractor installing Foxtel in people's homes. To do this, he had to buy a van and his own tools for which he borrowed money from the bank. The van has been repossessed but he still has the tools. Mr Naumoski said he always worried about working illegally and felt like a half-man. However, he wanted to work towards a brighter future. Obviously, he greatly regrets working illegally and being in Australia without permission after the expiry of his visa.
Mr Naumoski said he and his wife met in November 1997 in Maroubra. He was very lucky to meet her and the relationship between them flourished. While he was here, they went on holiday together to Brisbane and the Gold Coast. When Mr Naumoski's parents visited Australia, his wife was there with his other relatives to meet them at the airport and they established a loving relationship. Mr Naumoski said he and his wife shared their financial arrangements including joint bank accounts and joint ownership of their unit in Bankstown. They used to go out together to eat at restaurants and had a lot of contact with Ms Naumoski's parents and with her friends which included dancing at Greek dancing clubs.
Mr Naumoski was asked about his relationship with Eugenia Georgelos. He said he and his wife are godparents of her child, Joseph, and they saw a lot of Ms Georgelos and her children. Ms Georgelos was always very friendly and they treated each other like brother and sister. He got on well with her children with whom he played a lot.
Mr Naumoski said his relationship with his wife is a very strong one and they have a close and loving bond. They are both suffering for the mistakes he made and find it very difficult being separated. On average, they speak about once a day on the telephone and sometimes two or three times a day. If he is allowed to return to Australia, they plan a future together, including raising children and working towards a better life. Mr Naumoski hopes that he will be able to renew his contract with Foxtel. They have a good opinion of him as a worker and he does not think he would have any difficulty resuming this work. Foxtel have asked on several occasions when he is returning to Australia.
During his time in Australia, Mr Naumoski helped his family and friends here. He also assisted the police in Bankstown and they were thankful for that. He felt proud to be part of the community to which he was able to contribute, including by paying his taxes and GST. He established a very good relationship with his wife's parents and was able to provide with them with assistance in the normal family way.
Mr Naumoski is a member of the Macedonian Orthodox Church which he attends when he can. Whilst living in Australia, he met the local priest, Father Voinovski, on numerous occasions both at church and socially. Father Voinovski blessed their home and was present at various religious ceremonies which they attended. He also talked with Mr and Ms Naumoski about their marital responsibilities before they were married and he conducted the marriage ceremony. Since returning to Macedonia, Mr Naumoski has continued to attend church when he can.
Mr Naumoski said he has a good relationship with his two children in Macedonia. They like to be with him, but how often he sees them rather depends on his ex-wife. His son was staying with him at the time of the hearing and they were planning to spend the following day together. While Mr Naumoski was in Australia, he maintained contact with his children by telephone. He would also send them things, including money, and Ms Naumoski assisted him with this including with sending presents.
For the first month after he returned to Macedonia on 11 July 2001, Mr Naumoski was unable to find work. Since then, however, he has been travelling to Germany to buy second hand cars and bring them back to Macedonia for resale. He has been twice and a friend has also brought cars back for him. Mr Naumoski has now obtained a business visa permitting him to go anywhere in Europe on business and he will be travelling to Germany for a third time next week. He has a friend in Germany who is assisting him with the business. Mr Naumoski is not making a great living from it. He said the economy in Macedonia is in a very bad state with unemployment as high as 80%. Mr Naumoski owns a large seven bedroom house in Macedonia where he lives with his parents, his sister and her two children. His sister moved there after her husband died in 1997 while Mr Naumoski was in Australia. Mr Naumoski's daughter is now aged 11 and his son is aged 8. He provides financial support for them and when he came to Australia, he left his ex-wife with a truck for their use valued at $20,000.
Mr Naumoski said he did not think he could live in Greece with his wife, in part because Greece does not recognise Macedonia and also because his wife would be unable to leave her mother in Australia.
Mr Naumoski said he remembered the interview with Janet Brooks and two others at the Australian Embassy in Belgrade on 23 November 2001. He said he wanted to communicate with them in English but is not sure whether he understood everything correctly. He wanted to prove to people from Australia that he had learned their language and was prepared to communicate in that language. This was a matter of pride for him. It is possible that he may have been misunderstood, for example, Ms Brooks seems to have thought that he came to Australia intending to stay, whereas in fact it was after he met Ms Naumoski that he wanted to stay, with her. Perhaps, unfortunately, he is not as experienced with the English language as he thought. Mr Naumoski said he did not remember being told that if he gave false information this would be grounds for the refusal of a visa. He said it is possible this was said but he was very nervous at the time, and was tired having travelled all night from Macedonia to Belgrade. He remembers being told that an interpreter was available to assist but he said she did not speak very much. A lot of documents were discussed which were difficult to understand. Most of the discussion was about his application for a protection visa. Generally, he said the interview was a friendly one. He was happy at being able to communicate in English and there was a lot of laughter.
Father Dimce Voinovski.
Father Voinovski said he became a priest in the Macedonian Orthodox Church in 1991 and has been working in Australia since 8 June 1996. He first met Mr Naumoski less than a month after Mr Naumoski arrived in Australia. He used to see him at church and on special religious occasions. Mr Naumoski would also undertake voluntary community work. When Mr and Ms Naumoski purchased their new home, Father Voinovski was invited to bless the home. Then before acting as the marriage celebrant at their wedding, he discussed the role of husband and wife with them and completed the necessary forms. Father Voinovski said Mr and Ms Naumoski are an example of how young couples should be. Ms Naumoski has shown respect for the traditions of the Macedonian Orthodox Church, even though she is from a different tradition. She used to come with Mr Naumoski to attend mass.
Father Voinovski said, in his opinion, Mr Naumoski is a good man, a man of dignity, and a lover of humankind. He works hard with a view to progressing his life and strives to persuade others to love the work they do. He is tireless. Father Voinovski said he was aware that Mr Naumoski was initially here temporarily but said he did not know what kind of visa Mr Naumoski had, nor did he know when Mr Naumoski's visa expired. Father Voinovski did not know what a protection visa is and, when this had been explained to him, said he was not aware that Mr Naumoski had applied for such a visa. Father Voinovski said Mr Naumoski told him about his former wife and his children when Mr Naumoski completed the forms in readiness for the marriage. Mr Naumoski said his ex-wife had not cared for him or his needs and sought to put him down all the time, preferring contact with her own family with whom she discussed problems, rather than with Mr Naumoski. Father Voinovski said Mr Naumoski also told him that his ex-wife's parents were important people locally and regularly tried to put him down.
Father Voinovski said Mr Naumoski knew many of his colleagues in Macedonia including the Bishop of the region. Father Voinovski has contact with between 2,000 and 2,500 people in the Macedonian community every year. He is not aware of Macedonians in Australia applying for protection visas, but said he could understand this happening given the current situation in Macedonia.
Eugenia Georgelos
Ms Georgelos is a single parent with three children aged 14½, 7½ and 4. She and Ms Naumoski have known each other for about 10 years, are like sisters, and Ms Naumoski is the godmother of her son, Joseph. Ms Georgelos first met Mr Naumoski about four years ago, about three weeks after he and Ms Naumoski first met. Thereafter, Ms Georgelos used to see quite a lot of them. She was going through a difficult separation at the time and was very depressed. Both Mr and Ms Naumoski provided her with support including babysitting for her children with whom they played. Ms Georgelos has no other brothers or sisters in Sydney. Mr Naumoski was always very helpful towards her.
Ms Georgelos, who has worked as a sales manager for the past 3½ years, said Mr and Ms Naumoski loved and respected one another and did everything together. Mr Naumoski related well both to Ms Naumoski's family and Ms Georgelos' family, including her mother. He is a kind, family orientated man who puts others first and is capable, honest and respected. Ms Georgelos said he deserves to be in Australia with his wife so that they can get on with their lives and start a family. Ms Georgelos and her family miss him. Although, she was not aware of Mr Naumoski's immigration status or of his having been in Australia illegally, this does not alter her opinion of him. He is a good man. He is hardworking and has a lot to contribute to Australia. Ms Naumoski "has been a nervous wreck" since Mr Naumoski left in July 2001: She misses him greatly and is torn because her mother is sick.
Janet Brooks
Ms Brooks is a Senior Migration Officer, currently working at the Australian Embassy in Vienna where she has been since 3 December 2001. Previously, she worked for about four weeks at the Embassy in Belgrade between 30 October 2000 and 28 November 2001 helping clear the backlog in spouse visa applications. Before that, she spent 2½ years as a Senior Migration Officer in Bangkok, eight months in Suva and a number of short-term relief postings to Jakarta, Port Moresby, and Ankara.
Ms Brooks could not remember what Mr Naumoski said about his application for a visitor visa. However, he gave the impression that his aunty in Australia coached him as to how to apply, provided supporting documentation and agreed to sponsor him. Ms Brooks said her recollection is that Mr Naumoski wanted to come to Australia for more than three months and wanted to stay as long as possible. She said he was very honest at the interview, which went smoothly, lasting for at least an hour, and he was "up-front" and did not try and hide anything from them.
In cross-examination, Ms Brooks agreed that she had interviewed about 22 or 23 people while she was in Belgrade for those four weeks. In each case, having interviewed the person, she made a decision on their application. She rejected about 14 applications on character grounds and referred seven or eight cases for further processing, for example in respect of medicals. She said most of the applications had been put to one side for her to deal with by the previous Senior Migration Officer for her to deal with because of character concerns. However, Ms Brooks acknowledged that Mr Naumoski's application was not lodged in Belgrade until 7 November 2001. She rejected the suggestion that she had been prejudiced in her refusing Mr Naumoski's application. She said Mr Naumoski told her that his solicitor had already advised that the application might be refused on character grounds.
With regard to her Statement dated 26 June 2002 (R1), Ms Brooks acknowledged that she had received a draft witness statement which had been prepared in Canberra by the Legal Department. Ms Brooks completed the draft statement by adding some pertinent details and also had some email exchanges with Megan Richardson in Belgrade about the statement. Ms Brooks was not surprised that the statements by Megan Richards and Vesna Topic, who were also present at the interview, were similarly worded. She was under the impression that this was the legal way of doing things.
Megan Richardson
Ms Richardson said she has been a Senior Migration Officer in Belgrade since April 2001. She had formerly been an Immigration Officer since February 1998. She did not take notes during the course of the interview with Mr Naumoski but has since read Mr Brooks' handwritten notes and typed record of interview. Ms Richardson said she had a clear recollection of the interview, in particular, because Mr Naumoski was an interesting person. They enjoyed talking to one another and it was a good interview. Ms Richardson sat in on the interview to observe Ms Brooks' interviewing technique in such spouse visa applications. Ms Brooks was on a special mission to the Embassy in Belgrade to help clear a backlog of spouse visa applications.
Ms Richardson said Mr Naumoski told them that he believed he had a better chance of getting a visitor visa from Australia if he stated in his application that he was married. He also told them that he intended to remain in Australia for more than the three months permitted by the visa if everything worked out. He was very personable and was quite open about his stay in Australia. He seemed relaxed and comfortable speaking in English.
Ms Richardson said the litigation section in Canberra had provided her with a draft witness statement on the basis of notes which she provided. When she received the draft statement, she made some corrections and she and Ms Brooks discussed their draft statements by email. Ms Richardson said she also showed her draft statement to Ms Topic, the interpreter at the interview. The three draft statements were sent to her as an attachment to an email message from the litigation section in Canberra. She said it did not surprise her that parts of the statements were similar in wording.
SUBMISSIONS
Applicant
Mr Jeans said the Applicant accepts that Mr Naumoski does not pass the character test as a result of his having made false claims in his protection visa, overstayed his visa and worked in Australia unlawfully. He has not attempted to hide this and accepts responsibility for his actions and has expressed remorse and regret. He should be given credit for this.
With regard to the exercise of the Minister's discretion under s 501(1) of the Act, Mr Jeans referred the Tribunal to the evidence as to Mr Naumoski's character. He said Father Voinovski should be an excellent judge of character, given that he meets thousands of people every year, yet took the trouble to attend the Tribunal to give evidence in support of Mr Naumoski. Ms Georgelos gave evidence of the emotional support that Mr Naumoski provided her with during the period after her separation. She stated that he is trustworthy and hardworking. Ms Naumoski gave evidence of the genuineness of their marital relationship. She described her upset at her husband's absence on their first wedding anniversary and on her recent birthday. She gave evidence about her mother's illness and said that it would kill her mother if Ms Naumoski left to live in Macedonia. Ms Naumoski has strong emotional and family ties, especially given the background of her family moving to Australia from Cyprus. Ms Naumoski also has various financial commitments in Australia which she must satisfy. It would be devastating for her if her husband was unable to come to Australia. She would also not be able to relocate to Macedonia and would have significant difficulty returning to Cyprus or moving to Greece.

Mr Naumoski emphasised his remorse in respect of his immigration misconduct. However, it should be noted that Mr Naumoski was advised by Barlow and Company, a firm that collapsed several years ago. Mr Barlow is no longer a solicitor or registered migration agent in New South Wales and the handling of Mr Naumoski's protection visa application is consistent with other applications handled by that firm. Ultimately, however, Mr Naumoski took responsibility, returned to Macedonia and lodged a spouse visa application in the normal way.
Mr Jeans said that Mr Naumoski is a family man with responsibilities. He is honest, he pays his taxes, he supports his children in Macedonia, he undertakes voluntary community work, including assisting the police, and provides support to family and friends. It is also clear that Mr Naumoski has strong religious beliefs. If he is permitted to return to Australia, there is no doubt that he would obtain full-time employment and make a contribution to Australia.
Mr Jeans expressed concern about the Respondent's witnesses and the similarity of their witness statements, which, he submitted, should be given little weight by the Tribunal. He noted that Ms Brooks refused a large proportion of the applications dealt with by her in Belgrade on character grounds and suggested that she may have been tainted by bias. With regard to her record of interview, there may have been misunderstandings because an interpreter was not used. Mr Jeans said the Tribunal's own experience of Mr Naumoski giving oral evidence during the hearing indicated the need for the use of an interpreter. Nevertheless, it was interesting to note that the two witnesses as to the interview with Mr Naumoski at the Embassy in Belgrade both gave evidence as to his genuineness and openness in responding to questions.
Mr Jeans said there is no evidence that the Applicant was involved in making false claims. She merely assisted Mr Naumoski in typing up a statement required by his solicitors. There is also no likelihood of Mr Naumoski being involved in any other deceptive conduct. All the other evidence is to the contrary, for example as to the assistance he gave to the New South Wales Police.
Mr Jeans submitted that hardship to both the Applicant and her mother are significant factors in this case. Mr Naumoski is clearly a hardworking person and Mr Jeans submitted that the Australian community would take a compassionate view and understand the Applicant's need to stay in Australia and her desire to make a home and have her family here.
Respondent
Ms Hanstein, for the Respondent, said Mr Naumoski was given the option of using an interpreter at the interview in Belgrade but preferred to speak English to show that he is capable of doing so, even though he was aware of the importance of the interview. There is no evidence that he had any difficulty in communicating. Ms Hanstein said there is no basis for Mr Jeans' allegation of bias. The similarity of the Respondent's witnesses' statements merely reflects the purpose of the statements, which was to set out the evidence which the witnesses would give at the hearing. Ms Richardson thought Ms Brooks' handwritten notes of the interview and typed record accurately reflected the interview except as to her recording that Mr Naumoski's sister was in Australia when in fact it was his aunt. Ms Hanstein submitted that the evidence of the two Senior Migration Officers concerning Mr Naumoski's visitor visa application should be treated as reliable. The Respondent says that Mr Naumoski failed to state in his application that he was separated from his wife. The evidence of the Senior Migration Officers is also that he intended to overstay his visa because he wanted to remain longer in Australia.
With regard to the false claims made in Mr Naumoski's application for a protection visa, Ms Hanstein noted the detailed nature of the false claims and the additional claims added later at the time of Mr Naumoski's application to the RRT. Mr Naumoski continued to rely on the false claims including in his request for Ministerial intervention. Then, after his the request for Ministerial intervention had been refused, Mr Naumoski remained in Australia after his visa had expired and worked without permission. Such immigration malpractice reflects adversely on his character. Of the character witnesses who gave evidence on his behalf, all were very subjective and gave no indication of whether they were aware of Mr Naumoski's malpractice. The Respondent contends that little weight should be given to their character assessments.
With regard to the exercise of the Minister's discretion in accordance with Direction No 21, Ms Hanstein emphasised the seriousness of Mr Naumoski's misconduct. Whilst he said he would not repeat such misconduct, nevertheless, his protection visa application involved detailed false claims and, while he has expressed regret and remorse, this could be more closely associated with the consequences of his actions, and is not necessarily an indication that he would not be involved in such conduct again. With regard to general deterrence, Mr Naumoski acknowledged that a lot of Macedonians in Australia have used protection visa applications as a means of extending their stay. Thus, the refusal of Mr Naumoski's application would have a deterrent effect.
Ms Hanstein submitted that the Australian community expects non-residents to respect Australian law while in Australian and that such a blatant disregard for the law while in Australia should not result in a person being granted a visa. Ms Hanstein noted that Ms Naumoski had assisted her husband in typing up a statement for the RRT and was aware that it included false claims.
With regard to other considerations, while the refusal of a visa to Mr Naumoski will cause hardship to Ms Naumoski, nevertheless, she was aware that he was of character concern from shortly after her relationship with him commenced. Ms Hanstein recognised that if Ms Naumoski were to leave Australia to be with her husband, this would cause hardship to Ms Naumoski's mother, although Ms Hanstein suggested that such hardship could be alleviated if external physical care could be provided. Ms Hanstein suggested that Mr and Ms Naumoski could reside in Greece. The best interests of Mr Naumoski's children might also be served by his staying in Macedonia.
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Naumoski passes the "character test" having regard to his past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 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. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Naumoski does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9(c)).
Mr Naumoski admitted that he made false claims in his protection visa application and overstayed his visa and worked unlawfully. On this basis, the Applicant accepts that Mr Naumoski does not pass the character test. The Tribunal finds that Mr Naumoski did make false claims in his protection visa application relating to his father-in-law in Macedonia and as to the threats to Mr Naumoski's life should he return. The Tribunal also finds that Mr Naumoski failed to depart Australia by 14 December 1998 when his Bridging Visa A expired 28 days after notification of the refusal of ministerial intervention. Thereafter, Mr Naumoski was in Australia unlawfully and worked unlawfully until he was granted a Bridging Visa E on 5 July 2001 in accordance with whose terms he departed Australia on 11 July 2001. Thus his unlawful conduct extended over a period of 2½ years. On the basis of these findings, the Tribunal is satisfied that Mr Naumoski does not pass the character test by reason of his past and present general conduct, pursuant to s 501 (6)(c)(ii) of the Act. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Naumoski.
In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(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.

With regard to the Protection of the Australian Community, paragraph 2.4 states:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of offences considered by the Government to be serious include serious crimes against the Migration Act 1958, which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
With regard to this first primary consideration and Mr Naumoski's misconduct, the Tribunal makes the following findings. First, the Tribunal is not satisfied that Mr Naumoski made a false and misleading statement in his application for a visitor visa granted on 28 October 1996. The Tribunal accepts his evidence that at the time he left Macedonia, he did not regard himself as being separated from his wife and anticipated that they might be able to reconcile their differences. While his wife had left the marital home, there was no formal separation. It was not until Mr Naumoski telephoned his wife about 15 days after his arrival in Australia and she told him that she had found another partner and did not want him to disturb her again, that he knew his marriage was at an end and that a reconciliation was not possible. In the Tribunal's view, prior to this time, it was reasonable for Mr Naumoski to perceive that he was not separated.
Secondly, with regard to Mr Naumoski's intentions as to staying in Australia, the Tribunal accepts his evidence that at the time he applied for the visitor visa, his intention was to visit his family in Australia and "clear his head" and that he did not have an intention to remain beyond the three months permitted by the visa. It was only after he spoke with his wife, and it became clear that their marriage was at an end, that he began to think about the possibility of staying on. It was then that he appears to have contacted Barlow and Company, in response to seeing their advertisement in the Macedonian newspaper in Sydney, and took steps to seek advice about whether it would be possible to extend his stay in Australia. The Tribunal notes that the only evidence with regard to Mr Naumoski's visitor visa is the IRIS case notes (T8) in respect of this application. While Ms Brooks and Ms Richardson gave evidence that Mr Naumoski said he intended to remain in Australia, the Tribunal is not satisfied that he had this intention when he applied for the visitor visa.
Thirdly, with regard to Mr Naumoski's application for a protection visa, the Tribunal accepts that he acted on the advice of Barlow and Company in exaggerating the difficulties he had encountered in dealing with his father-in-law in Macedonia and falsely claiming that his father-in-law was smuggling arms and had threatened to kill him. The Tribunal notes that Mr Naumoski continued to rely on these false claims, and, moreover, amplified and embroidered these claims in making his application for a review to the RRT, also on the advice of Barlow and Company. Barlow and Company also sought to rely on these false claims in their request for Ministerial intervention on behalf of Mr Naumoski. Mr Naumoski now expresses remorse in respect of his actions and regrets his foolishness in following such advice.
Fourthly, Mr Naumoski expressed his remorse concerning his having overstayed his visa after the refusal of Ministerial intervention and remaining in Australia unlawfully and working without permission for a further period of 2½ years. He stated that he was blinded by his love for the Applicant and their need to get to know one another better before Ms Naumoski, in particular, felt sure of their commitment to one another and comfortable about getting married.
There is no doubt that Mr Naumoski's misconduct in making false and misleading statements in relation to his protection visa application and remaining and working unlawfully for an extended period of time should be regarded as serious misconduct. Mr Naumoski has expressed his regret and remorse and has said that he would never repeat such misconduct. Both he and his wife have obviously found their separation since 11 July 2001 to be extremely painful. Mr Naumoski's misconduct must be seen in the context of other good conduct of which there was evidence before the Tribunal: of Mr Naumoski providing support to the police, of his providing community support to friends, family and through his church, and in other respects being of good character and hardworking as was attested to by, for example, Father Voinovski. In the Tribunal's view, the risk of Mr Naumoski's repeating such misconduct is minimal. Nevertheless, the Tribunal acknowledges that the refusal of visa where a person has been guilty of immigration misconduct is likely to have a deterrent effect on others who may be contemplating such misconduct. Mr Naumoski said that he later became aware that other Macedonians in Australia were also extending their stay by submitting protection visa applications.
The second primary consideration is the Expectations of the Australian Community. Paragraph 2.12 states there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal's view, making false and misleading statements and remaining in Australia unlawfully and working without permission are serious matters. Nevertheless, the Tribunal notes what Deputy President McMahon said in ReLeha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054, of the relevant paragraph in Direction No 17 which is expressed in identical terms in paragraph 2.12 of Direction No 21:
Paragraph 2.12 (of Direction No 17) gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely. This view has been cited with approval by the Tribunal in other cases, for example, in Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74.
In Mr Naumoski's case, there are humanitarian considerations which the Australian community would take into account relating to Ms Naumoski and her mother. Ms Naumoski's mother underwent surgery to remove a brain tumour on 10 January 2001. Ms Naumoski and her father have organised their working hours so as to provide her mother with 24 hour care between them. Her sister, while able to provide some assistance and support, is not able to provide such extensive care given other commitments. When seen against the background of the family's migration from Cyprus following the Turkish invasion and their having to start afresh in Australia, for Ms Naumoski to go to Macedonia to be with her husband, or to Cyprus or Greece, would obviously cause her mother significant distress. The Tribunal also takes into account the hardship which would be caused to Ms Naumoski by such a move having regard to her commitments, both emotional and financial in Australia, and her desire to start a family with her husband. In these circumstances, the Tribunal's view is that the Australian community would take a humane view of Ms Naumoski's situation and permit her husband to join her in Australia.
The third primary consideration is the best interests of any children in a parental or other close relationship with the person under consideration. Mr and Ms Naumoski do not yet have any children by their relationship. Mr Naumoski has two children, a daughter aged 11 and a son aged 8 from his previous marriage. These children live with their mother and maintain ongoing contact with their father. They are not included in Mr Naumoski's visa application. However, it is likely that Mr Naumoski's communication with his children will become more difficult if he returns to Australia.

With regard to the Other Considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, "it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; the non-citizen's business and other ties to the Australian community; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; and the family composition of the non-citizen's family, both in Australia and overseas.
The Tribunal has no doubt that the relationship between Mr and Ms Naumoski is a genuine marital relationship. The Tribunal finds that Ms Naumoski was aware that there were difficulties concerning her husband's immigration status before their marriage and that this could affect his ability to obtain a visa enabling him to reside in Australia. Nevertheless, the Tribunal notes that their marriage came after a period of being together for 3½ years. The Tribunal has already referred to Ms Naumoski's family arrangements in Australia, and, in particular, to her need to assist in the care for her mother, remembering that her family migrated to Australia from Cyprus in 1977. Mr and Ms Naumoski's evidence suggests that Mr Naumoski successfully established himself as a technician working as a subcontractor for Foxtel undertaking Foxtel installations. It appears that Mr Naumoski established a good reputation and he anticipates that he would have no difficulty in re-establishing his position as a subcontractor. He still has the necessary tools in Australia to perform this work. Mr Naumoski has an aunty and cousins in Australia and has established close relationships with Ms Naumoski's family and friends. One of those friends, Eugenia Georgelos, gave evidence as to his good character. Father Voinovski, the priest at the Macedonian Orthodox Church attended by Mr Naumoski, also attested to his good character and voluntary work in the community. The Tribunal also notes that both Ms Brooks and Ms Richardson described Mr Naumoski's presentation at the interview in Belgrade as both open and honest.
The Tribunal has already referred to the hardship that would be caused to Ms Naumoski's mother if Ms Naumoski had to move from Australia and the hardship to Ms Naumoski herself if her husband were to be refused a visa and she had to move in order to be with him. Ms Naumoski said she did not wish to live in Macedonia given the conditions there, the fact that she does not speak the language the likelihood of her being unable to obtain employment, and the separation from her family, especially in light of her family's migration to Australia in 1977. The Tribunal accepts that significant hardship is being caused to Ms Naumoski by reason of the separation from her husband and that she feels committed to remaining in Australia and also wishes to maintain her home here and raise a family.
Weighing up the primary and other considerations, in the Tribunal's view, Mr Naumoski poses no risk to the Australian community and, indeed, the Tribunal's impression is that he is entrepreneurial by nature while at the same time being committed to contributing to the community. With regard to the Expectations of the Australian Community, as stated, the Tribunal's view is that the community would view Mr and Ms Naumoski's situation humanely, albeit noting that there has been a breach of trust by Mr Naumoski in relation to his immigration misconduct. There are also compelling Other Considerations in this case, referred to above, which contribute to the Tribunal being persuaded that the discretion not to refuse the grant of a visa under s 501(1) of the Act should be exercised in favour of Mr Naumoski. Thus, the Tribunal sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  27 June and 28 June 2002
Date of Decision  16 July 2002
Solicitor for the Applicant         Mr S Jeans
Solicitor for the Respondent    Ms S Hanstein, Blake Dawson Waldron

[2002] AATA 585

16 July 2002

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Judicial Review

Character Test

Discretion

Humanitarian Considerations