Re McKay and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 861
•17 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 861
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/222
GENERAL ADMINISTRATIVE DIVISION ) Re Maryanne McKay Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date17 August 2004
PlaceSydney
Decision The Tribunal affirms the decisions under review.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – parent (subclass 103) (permanent) visa – character test – refusal of visa on the basis of past and present general conduct – the review applicant concedes that the visa applicant fails the character test – discretion that the Tribunal may exercise where the visa applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the visa applicant and his family if a visa is refused – found that the visa applicant did make false and misleading statements in his visitor visa application and on his incoming passenger card and did work in Australia unlawfully for over 13 years – visa applicant operated an elaborate scheme of identity fraud at different levels and for different purposes – deterrence factor weighs against the grant of a visa – held the protection and expectations of the Australian community outweigh all other considerations – decisions of the Respondent are affirmed.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133,
Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608REASONS FOR DECISION
17 August 2004 Professor GD Walker, Deputy President Summary
1. The visa applicant, Alan McKay, who is aged 46 and a citizen of the United Kingdom, arrived in Australia with his wife, Lynda McKay, and their daughter, on 7 November 1984 on a visitor visa valid for three months. From 1 February 1985 until 21 April 1998, Mr and Mrs McKay remained in Australia unlawfully and, using a false identity, worked without permission. On 22 April 1998, Mr and Mrs McKay departed Australia and on 18 August 1998, Mr McKay lodged an application for a parent (subclass 103) (permanent) visa.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr McKay remained in Australia illegally for period of over 13 years and worked continuously, using a false identity, while unlawful in Australia. A delegate of the respondent therefore refused Mr McKay’s application for a parent visa. This is the decision to be reviewed by the tribunal.
Background
3. The review applicant, Maryanne McKay, was born in Irvine, Scotland, on 1 March 1980 and is aged 24. She was adopted by the visa applicant, Mr McKay, on 8 November 1982 (T p91). Ms McKay was granted permanent residence in Australia on 19 May 1998 and became an Australian citizen on 26 July 2001 (T p215). She has a son, Terrence, born on 6 September 1996, who is aged almost eight (T p51). She resides with her de facto, Luke Smith, at Werrington, New South Wales. Ms McKay is employed as a data entry clerk for Douglas Hanly Moir Pathology (T p215).
4. The visa applicant, Alan McKay, was born in Glasgow, Scotland, on 18 July 1958 and is aged 46. His wife, Lynda McKay, was born in Glasgow, Scotland, on 10 September 1961 and is aged 42. Mr and Mrs McKay were married on 16 October 1981 (T p87) and are citizens of the United Kingdom. From 1974 until 1984, Mr McKay worked in various positions in Glasgow (T p247). From 1982 until 1983, Mrs McKay worked as a machinist in Glasgow (T p252).
5. On 7 November 1984, Mr and Mrs McKay arrived in Australia with their daughter Maryanne, on a visitor visa valid for three months. Their visas expired on 1 February 1985, after which time they remained in Australia unlawfully (T p322). Between November 1984 and July 1989, Mr McKay worked without permission, using the false identity of Alan McCullagh, as a labourer for Toll Trek, from July 1989 to January 1992 as a warehouse operator for Sony, from January 1992 to September 1995 as a stock-taker for Franklins, from September 1995 to December 1996 as a labourer for Hume Pipes and from January 1997 to April 1998, as a warehouse operator for Skilled Engineering (T p248). Between 1985 and 1992, Mrs McKay also worked without permission, using the false identity of Lynda McCullagh, initially as a packer for Addis and then as a stock-taker for Franklins (T p252).
6. On 21 April 1998, Mr McKay applied for a bridging visa E and on 22 April 1998, Mr and Mrs McKay departed Australia (T p322). On 18 August 1998, the solicitors representing Mr McKay, Kessels & Associates, lodged an application for a parent (subclass 103) (permanent) visa, which included his wife, with the Australian consulate in Manchester, England (T6 p70). On 20 August 1998, an officer at the consulate acknowledged receipt of the application and advised them that they had been placed in the queue in respect of their subclass 103 applications (T7 p100). Between October 1998 and November 2002, the solicitor representing Mr McKay communicated with the Australian consulate, providing documents as requested in support of Mr McKay’s application. On 1 November 2002, an officer of the Department of Immigration and Multicultural and Indigenous Affairs Perth Offshore Parent Centre (“POPC”) advised Mr McKay that she was now responsible for his application (T33 p231).
7. On 4 March 2003, an officer of the POPC advised Mr McKay that she was considering refusing his parent visa application, which included his wife, on the ground that he did not pass the character test because of his past and present general conduct and giving him the opportunity to comment on her decision and to provide further information within 49 days of receipt of the letter (T49 p293). By letter of 5 April 2003 (T50), Mr McKay responded, stating that he and his family had come to Australia to start a new life after going through a “tremendous amount of difficulties” relating to Mr McKay’s adoption of Maryanne and that they were extremely sorry for what they did and wanted to be reunited with their daughter and grandson in Australia (T pp296-297).
8. On 18 February 2004, a delegate of the respondent decided to refuse the grant of a visa to Mr McKay on the basis that he did not pass the character test under s 501(6)(c)(ii) of the Migration Act 1958 (“the Act”) and also decided not to exercise her discretion under s 501(1) of the Act to not refuse the grant of a visa. On 27 February 2004, Maryanne McKay, the sponsor for Mr McKay’s parent visa, lodged an application for a review of this decision by the tribunal.
9. At the hearing, the review applicant Maryanne McKay was represented by Ron Kessels, Solicitor, of Kessels Goddard & Ajuria, solicitors, and the respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor’s office. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the evidence submitted by the parties at the hearing. Oral evidence was given in person by Maryanne McKay and by telephone by Alan McKay.
Relevant Law and Policy
10. Under s 501(1) of 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 is met. The relevant ground in the current matter is paragraph (c)(ii), as follows:
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
11. 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. Section 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”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
12. 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 the 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, they exercise the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
13. At the hearing, the applicant’s representative conceded that Mr McKay is not of good character having regard to his past and present general conduct. The issue for the tribunal, therefore, is whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa to Mr McKay.
Evidence
14. Mr Alan McKay, in his oral evidence by telephone from United Kingdom, having adopted his signed statement dated 5 August 2004 (Exhibit A10), proceeded to describe how he and his wife Lynda decided to come to Australia because some domestic issues were making life difficult for them in their home town. Lynda had a daughter named Maryanne who had been born before she met Alan McKay. Lynda and Alan married in 1981, after which Alan legally adopted Maryanne.
15. In 1994 Alan McKay applied for, and was granted, a V12 visitor visa on behalf of himself, his wife and daughter and entitling them to remain until 1 February 1985. He now admits that he and Lynda “went to Australia with the intention of trying to remain there, and not as tourists”, and accordingly made a false statement about his intention to return at the expiration of the visa.
16. Presumably Mr McKay could have applied for a permanent residence visa, especially as Mrs McKay’s sister, Mary Mule, had been living in Australia for some years, while Mrs McKay herself had lived lawfully in Australia with her family (named Mullaney) during 1974 and 1975. Processing such an application would have taken some time, however, and the McKays appeared to be anxious to leave the domestic tensions in their home town behind. No explanation was offered as to why they could not have moved to some other part of the United Kingdom in the meantime, or permanently. The family arrived in Australia on 7 November 1984 and within two days of their arrival, Mr McKay obtained employment, using the name Alan McCullagh. Mrs McKay also obtained work shortly thereafter, using the corresponding alias. Both obtained drivers’ licences, opened bank accounts and used the Medicare system under that name. The couple had chosen the name McCullagh before leaving the United Kingdom and Mr McKay arrived equipped with a genuine Scottish birth certificate relating to a real person of that name. How that certificate had been obtained, and what part, if any, the real Alan McCullagh had played in the process, was not explained. Mr McKay said he cannot remember ever using the birth certificate because he was never asked to produce it, not even when he applied for his driver’s licence. Mr McKay was thereafter employed in a number of unskilled positions, as was Mrs McKay. Both paid income tax on their wages, but presumably under the PAYE system they had little choice in the matter.
17. This was not simply a case of adopting a convenient alias, however. To a considerable extent the visa applicants led a double life. They enrolled their daughter Maryanne in public school under their true name of McKay and were able to conceal from their daughter the fact that their employment and financial activities, as well as their driver’s licences, were in another name. They were able to maintain this deceit, according to Mr McKay, by never mixing with people from their respective workplaces in the presence of Maryanne. In her oral evidence Maryanne McKay denied ever having seen any incoming mail in the house in the name of McCullagh. She declares, as does her father, that she had no knowledge of the true situation until her parents told her when she was aged 16.
18. Mr McKay has expressed contrition at the “terrible mistake” he and his wife made and says that they were very naïve and stupid to do what they did. But an elaborate and planned deception of this kind in some respects suggests the opposite of naiveté and stupidity, particularly when they had already chosen their false name and he had acquired the birth certificate before they arrived in Australia. Nor could one maintain a double life in this way, “avoiding the authorities” (Exhibit R1 p297) for over 13 years simply by making a “mistake”.
19. In 1997 they obtained legal advice that their own visa position was hopeless, but that Maryanne could obtain a visa as an “innocent illegal” at the age of 18. It was obvious that if she did, however, her parents would be detected by the Department. Consequently, Alan and Lynda McKay decided that Maryanne should make the application and that they would return to the United Kingdom, hoping that they would be able to come to Australia again at a future time. Accordingly they obtained a bridging visa E on 21 April 1998 and departed on 22 April 1998. At that stage they abandoned the use of the name McCullagh. Four months later, the visa applicants lodged an application for a parent (AX-103) visa in Manchester, England. The review applicant, Maryanne McKay, became a naturalised Australian citizen on 26 July 2001.
20. There is heavy demand for the places available for successful parent category applications. The Australian High Commission informed the visa applicants on 12 December 2000 (Exhibit R1 pp147-149) that there were some 20,000 persons who had applied for these visas, of whom some 5,000 had completed the assessment process and had been placed in the queue for visa grant when places became available. Given the level of demand for visas the Minister had capped the parent subclass 103 at 400 visas and the High Commission pointed out that there were at that time some 1,432 applicants in the queue ahead of them.
21. The visa applicants have no business connections in Australia and their main wish is to be reunited with their daughter and especially their grandson, Terrence. Mr McKay says that “It wouldn’t be fair to ask them to adapt to life in Britain”. The applicants would prefer to live in Sydney with Maryanne and Luke Smith, and Luke’s stepfather has indicated that he would give Alan McKay employment. Terrence was 14 months old when the visa applicants returned to the United Kingdom, but on two occasions they have spent periods of five weeks in Australia, during which time they have developed a bond with him. In 1999, Maryanne and Terrence also spent three months in Britain with her parents. They speak to their daughter and to Terrence by telephone and Terrence is beginning to ask questions as to why he cannot see his grandparents more often. Maryanne McKay indicated however, that she and Luke were planning to take Terrence to the United Kingdom for a five week stay commencing 21 December this year. The visa applicants like to plan to come to Australia every two years and so far have been able to do so without difficulty, although the rejection of the present application would mean that they would have to apply specifically for a visitor visa each time and could not use the electronic visa system administered through travel agents.
Submissions
22. Both sides relied on the submissions contained in their respective statements of facts and contentions (Exhibits A4 and R2) and supplemented them in oral argument. On behalf of the review applicant Mr Kessels acknowledged that Mr McKay could not pass the character test in s 501 and that the only matter in issue was the exercise of the discretion inherent in s 501(1). In that connection he pointed out that any future visit to Australia by the visa applicants would require a tourist visa which would entail a s 501 determination. Accordingly it could not be assumed that they would readily receive a visa to visit their daughter and her family in the future.
23. Noting that one of the main reasons given by the Minister’s delegate for refusing the application was the deterrence factor, the applicants’ solicitor conceded there was no need to produce evidence to prove deterrence, but that the Tribunal could assume that such an effect existed as a matter of common knowledge. But having departed in 1998 and being placed in the queue for a parent subclass 103 visa, Mr McKay and his wife had waited five years before character was expressly raised as an issue. For six years now the visa applicants have been denied the opportunity of settling in Australia and that ought to be sufficient. He also pointed out that the regulations permit onshore applications for aged parent visas by applicants lacking a visa at the time of application. A spouse can apply for a visa onshore at any time, he argued, even if he or she is in unlawful status. Consequently, he said, the legislation has no policy of generally placing a ban on visas simply on the ground of unlawful residence. The applicants’ witnesses had been truthful and the applicants acknowledged the nature and seriousness of their past wrongdoing.
24. On behalf of the Minister, Mr Allatt pointed out the seriousness of an applicant’s conduct is relevant to the exercise of the discretion, and in this case the applicants had clearly intended not to depart from Australia after expiration of their V12 visitor visas. They could have chosen to seek permanent residence, relying in part on the fact that Mrs McKay’s sister was living here, but that process would have taken some time and they were desirous of leaving their home town as soon as possible. In Australia they maintained the fiction of their false identity for a long period, while at the same time using their true identity to enrol their daughter in school and for other purposes. The gravity of making false or misleading statements in their original tourist visa application and of remaining and working for 13 years unlawfully, while making false applications for drivers’ licences and bank accounts, and using the Medicare system, could not be overlooked. He conceded that the couple came under no other adverse notice by the authorities and that neither visa applicant had any criminal convictions. Nevertheless, these breaches were very serious infractions of a system that is designed to regulate immigration into Australia. While recidivism might not be a major risk, there could still be a justifiable concern that some of the ramifications of their false double life might continue to linger. Deterrence has to be determined in the context of this case and the grant of a visa after such a lengthy overstay could be seen as rewarding unlawful conduct.
25. The expectations of the Australian community included an understanding that the immigration policy would be interpreted compassionately and in this case the McKays were a close family. Nevertheless, there should be no benefit as a matter of course accruing from serious misconduct. The applicants had remained unlawfully until Maryanne had received her visa and they could make their own application. There could be no objection to the benefit accruing to Maryanne, who was an innocent party, but this flowed back to the parents in the form of an ability to apply for a parent visa on the basis of her permanent residence and now citizenship. That could be seen by many people as a benefit accruing to the applicants from their own serious misconduct.
26. The interests of the grandchild were a major factor and the respondent accepted the applicant’s evidence on this issue. But the child and his parents are free to visit the applicants in the United Kingdom and in fact plan to do so this year. The applicants may also be able to return for visits, though they would need to apply for a visitor visa in each case.
Application of the Law and Findings
27. As noted above, the applicant’s representative concedes that Mr McKay does not pass the character test having regard to his past and present general conduct (s 501(6((c)(ii)). The issue for the tribunal to consider is therefore whether to exercise the discretion under s 501(1) to not refuse the grant of a visa to Mr McKay. In doing so, the tribunal must have 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.
28. 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.
29. Before discussing these considerations, it is appropriate to set out the relevant findings of fact. I find that Mr McKay made a number of false and misleading statements in connection with his entry to and stay in Australia including that he made a false and misleading statement on his application for a visitor visa. Mr McKay’s intention was not to come to Australia for a holiday, but to remain in Australia indefinitely. He also made a false and misleading statement in respect of his Incoming Passenger Card when he stated his intended length of stay as being three months. Mr McKay acknowledged that he knew his visitor visa did not give him permission to work, but nevertheless worked unlawfully for over 13 years.
30. Turning to the first of the primary considerations, the protection of the Australian community, I note paragraph 2.4 of Direction No 21 which 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 Act, 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.
31. 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”.
32. Mr Kessels, for the applicant, acknowledged that Mr McKay’s conduct in making false and misleading statements is very serious. That conclusion is inescapable and I find accordingly. The primary and secondary visa applicants contrived and operated a premeditated, elaborate scheme of identity fraud at several different levels and for a variety of purposes. It even involved deceiving their own daughter, who was unaware of her parents’ parallel existence as Alan and Lynda McCullagh until they told her when she was aged 16. She might not have been informed even then but for the approaching opportunity for her to obtain her own visa, and in due course citizenship, which in turn might provide a lever for an offshore application by her parents. Maintaining this deception over 13 years entailed not only “avoiding the authorities” but also almost daily mendacity towards their daughter Maryanne.
33. The second consideration in paragraph 2.5 of Direction 21 is the likelihood that the conduct may be repeated (including any risk of recidivism). Once the visa applicant had made the Department aware of the facts, there was of course no point in continuing the deception. The applicants accordingly abandoned the name McCullagh in 1998 and reverted to their true identity for all purposes. Since then they have complied with the terms of the two visitor visas they were granted to come to Australia to be with their daughter and grandchild. Of course, they had every incentive to do so, with the current application pending. Nevertheless, the evidence does not give rise to any serious likelihood that the conduct will be repeated.
34. As regards paragraph 2.5(c), the applicants’ solicitor very properly conceded that the general deterrence factor is not a matter on which evidence needs to be or can be called. It can be assumed Deterrence is a consideration that underlies the assessment of all penalties and sanctions in courts of law and in administrative decision-making. It is based on the accepted principle that choices must be seen to have consequences. Mr Kessels contended that being required to wait for over five years for permission to reside permanently in Australia was enough of a sanction to constitute a deterrent to others contemplating similar breaches of the law, but I am unable to accept that contention. The visa applicants have been able to spend two periods of five weeks visiting Australia, and their daughter and grandson in turn have spent a three month period in the United Kingdom with them. About a quarter of Australia’s population today is foreign-born, or has a foreign-born parent, so there must be many thousands of instances in which Australians have parents or grandparents living abroad. In addition, the opening up of worldwide employment and business opportunities, especially for young people, has meant that many Australians have adult children living overseas for long periods, or in some cases indefinitely. That may not be regarded as ideal, but people seem to accept it both as an opportunity for their children to have an interesting life and also as something that is often required as part of making one’s way in the modern world. In addition, telecommunications are inexpensive and international air transport is now within the reach of people of average means, as the present case itself shows. And, of course, being required to live in modern Britain itself cannot be regarded as a hardship. I therefore find that the deterrence factor weighs against the grant of a visa in this case.
35. The second primary consideration is the expectations of the Australian community (Direction 21, paragraph 2.12). When applying that somewhat general concept, Block DP in Jupp and MIMIA [2002] AAT 458 at [7m] said:
I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or the other.
In Leha and MIMIA [2000] AATA 1054 at [34], McMahon DP, when interpreting the corresponding provision in the former Direction 17, which is identical to paragraph 2.12 in Direction 21, had this to say:
Paragraph 2.12 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 that the Act would be administered fairly and humanely.
A fair and humane approach to exercising the discretion in section 501(1) must take account of the fact that there are many thousands of people waiting in the queue for the few hundred subclass 103 parent visas granted each year. Many of those parents would have poignant stories to tell and would be as anxious to join their children in Australia permanently as the present applicants are. The concept of fairness, which plays such a central part in Australian culture, would be affronted by a decision that had the effect of withholding a parent visa to an honest applicant in order to grant such visas to persons who systematically cheated the immigration system over a long period. The success of Australia’s migration program, and the Australian people’s acceptance of it, rests in large part on the Act’s being administered in an organised, controlled and considered manner. The people’s legitimate expectations would be defeated if serious wrongdoing were rewarded in that way. Further, a humane approach to administering the Act requires considering the application at hand, not only in isolation, but also in the context of other applicants with similar needs and desires. Nor does it entail overlooking the important distinction between those who comply with the Commonwealth immigration laws and those who do not. I therefore find that the second primary factor weighs against the grant of visas in this case.
36. The third primary consideration is the best interests of any children under the age of 18. The Federal Court has emphasised that this is a paramount consideration: Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision in Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In this matter, there is one relevant child, Mr and Mrs McKay’s grandson Terrence, who is almost eight. I note that while Terrence has regular telephone contact with his grandparents, he has had limited face to face contact with them as they returned to Scotland when he was aged one. They have however returned to Australia to stay with Terrence and Ms McKay on two occasions between December 2001 and January 2002 and December 2003 and January 2004, and Maryanne and Terrence spent three months with the applicants in Britain in 1999.
37. I accept the evidence concerning the warm relations between Terrence and his grandparents, and in particular Mr McKay, because he is Terrence’s only grandfather, his own paternal grandfather being deceased.
38. On the other hand, Terrence is living in Australia with both his parents. That meets the primary consideration in paragraph 2.15 of the direction which states that:
In general terms, the child’s best interests will be served if the child remains with its parents.
He also has contact with his maternal aunt and his paternal grandmother. His father is employed full-time as a bricklayer, his mother works part-time with Douglas Hanley Moir Pathology, and he is attending school. There is no reason to doubt that he is well cared for. No doubt he misses his grandparents from time to time, but it is quite common for children to see their grandparents only at long or irregular intervals. In fact Terrence may have more time with his grandparents than many children do, a further five-week visit to stay with them in Britain having been arranged for December this year and January 2005. Terrence would no doubt strongly prefer to have his grandparents living close by, but the evidence does not show that he is likely to suffer harm from continuance of the present arrangements, and I so find.
39. Neither Alan nor Lynda McKay has any business ties to Australia, their only connection being the presence in Australia of their daughter and grandson. The evidence does not show severe family disruption, nor serious hardship, because the visa applicants have been able to travel to Australia and there is a good chance they would be able to be permitted to visit this country again in the future. Further, Maryanne, Terrence and Luke have also been able to make extended visits to the United Kingdom to be with the visa applicants. It is really a matter of the inconvenience and expense of travel rather than hardship, but of course travel itself has its own satisfactions. Maryanne McKay, who is an Australian citizen and an innocent party in these events, has compassionate claims based on her desire to have her parents in Australia. There is evidence that she has been prescribed anti-depressants, mainly following the adverse decision on the grant of the visa six months ago. How far her distress is due to the uncertainty created by a pending appeal could not be tested, but her situation must be taken into account. It does not, however, constitute a decisive consideration.
40. In light of all the evidence, and on weighing the primary and other considerations, I conclude that the relevant primary considerations concerning the protection and expectations of the Australian community outweigh all other factors. I therefore affirm the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 9 August 2004
Date of Decision 17 August 2004
Solicitor for the Applicant Mr R Kessels,
Kessels Goddard & AjuriaSolicitor for the Respondent Mr M Allatt,
Australian Government Solicitor's office
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