Serifovski and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 241

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 241

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/901

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PULUMP SERIFOVSKI

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date22 March 2005

PlaceMelbourne

Decision The decision under review is affirmed.

(The Hon C R Wright QC)

Deputy President

CATCHWORDS

Immigration - spouse visa application - character test - scheme by both applicants (de facto husband and wife) to marry Australian citizens to gain entry to Australia to divorce after securing visa/citizenship and then marry each other - false and misleading information - discretion - best interests of child aged 17½  - hardship - decision under review affirmed.

Migration Act 1958 – s501

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

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Wati and Minister for Immigration and Multicultural Affairs (2000) AATA 984)

Wan v Minister for Immigration, Multicultural and Indigenous Affairs (2001) 107 FCR 133

REASONS FOR DECISION

22 March 2005 The Hon C R Wright QC., (Deputy President)   

Background Chronology

1.      The visa applicant, Refika Serifovska, is the wife of the review applicant.   They began living in a de facto marital relationship in Macedonia in 1979.   There were 4 children of the union.   The youngest,  Muradie Serifovska, was born on 23 August 1987.    The other 3 children are now over the age of 18 years.   The eldest son, Ilir Lumanovski is married and lives with his wife and children in Australia.

2.      The review applicant migrated to Australia on a spouse visa in 1997.   This visa was sponsored by Bedrije Mustafova, an Australian citizen of Macedonian origin.  The review applicant married Ms Mustafova in Macedonia on 3 December 1994.    The respondent claims that this was a bogus marriage arranged for the purpose of enabling the review applicant to gain entry into Australia and, later Australian citizenship.

3.      On 10 August 1997, the visa applicant married the review applicant’s younger brother, Alui Sadzit (also referred to as Shaxit).   She then applied to migrate to Australia, on a spouse (provisional) visa, sponsored by Sadzit, an Australian citizen.  The application was assessed and refused on the basis that the marriage was not genuine and had been contrived to facilitate the visa applicant’s entry into Australia.   This has been admitted by the visa applicant and it is not in issue in the present proceedings.

4.      In 1999 the visa applicant and Sadzit were divorced.

5.      On 1 March 2001, the review applicant and Ms Mustafova were divorced.

6.      On 24 August 2001, the review applicant was granted Australian citizenship.

7.      In August 2003 the review applicant returned to Macedonia from Australia and, on 22 September 2003, the visa applicant and review applicant were married in Macedonia.

8.      On 1 October 2003 the visa applicant, sponsored by the review applicant, applied for a subclass 309 provisional spouse visa.

9. On 25 June 2004 the respondent’s delegate refused to grant the visa on the basis that the visa applicant was not of good character due to her past and present general conduct. Reliance was placed upon s501(6)(c)(ii) of the Migration Act 1958.

The Application to Review

10.     On 4 August 2004 an application to review this decision was lodged with the AAT.   A hearing of that application took place in Melbourne on 24 February 2005.   Oral evidence was taken from both applicants and their son, Ilir Lumanovski with the aid of an interpreter.   Aliu Sadzit also gave oral evidence.    The s37 documents and other documentary exhibits were also received into evidence and will be referred to as necessary in these reasons.    Mr John Gibson of counsel appeared for the applicants and the respondent was represented by Mr Timothy Webb.

The Issues

11.     The visa applicant claims that as a result of bad or incomplete advice given by her migration agent in Macedonia, and her failure to understand the Australian migration requirement that her marriage must be genuine, she believed that all she had to do was to go through a form of marriage to an Australian citizen to gain legitimate entry to this country.   It is contended that in these circumstances her marriage to Sadzit cannot reasonably form the basis of an adverse character assessment.

12.     It is also contended by the visa applicant that the respondent’s claim that she was not only involved in misleading or fraudulent conduct in relation to the Sadzit marriage, but was also part of a wider plot involving both applicants to secure entry to Australia by the review applicant on the basis of a bogus marriage to Ms Mustafova, is wrong and is not supported by the evidence.

13.     Finally it is contended by the visa applicant that if an adverse character assessment is made against her, the Tribunal’s residual discretion to direct that her visa application not be refused on character grounds, should be exercised in her favour.

Discussion

14.     The essence of the applicant’s case that the review applicant’s marriage to Ms Mustafova was genuine was contained in his declaration of 24 January 2004.   (Exhibit A1).   The relevant parts of that declaration are as follows:

“4.       In 1994, I met Bedrije Mustafova in the city of Bitola.   I commenced a relationship with her and maintained my relationship with Refika at the same time for several months.   Bedrije left Macedonia for Belgium and then to Australia and I continued to correspond with her by telephone and in writing and via our mutual friends who travelled from Macedonia to Australia and brought news of each other.

5.        I decided to join Bedrije in Australia in Late 1994 (I think) and lodged a visa application which was refused but was ultimately successful after an appeal.   I arrived in Australia on 5 December 1997.   I commenced living with Bedrije immediately on my arrival.   We lived at 6 Callamore Court, Dandenong for 12  months approximately.   This is the house of my brother Shaxit and we lived there rent-free.   We also lived together with other family members for a couple of months after this time and returned to Shaxit’s house for a few months before our relationship came to an end.

6.        Bedrije and I separated in December 1999 or January 2000 after I had returned from my son’s wedding in Macedonia.   The problems between Bedrije were due largely to my support of my son coming to Australia.    My son had married an Australian girl and was making an application to come to Australia.   He was particularly unhappy about my relationship with Bedrije and did not want to have anything to do with her.  My son and Bedrije had a major argument.   She then did not want me to have anything to do with him.   Over time it became clear that I must choose between the wishes of my son or my wife.   I chose my son.

…

8.        During my absence from Macedonia, Refika lodged a visa application on the basis of a spousal relationship with my brother Shaxit.   My relationship with Refika was, at that time, strained and I did not care if she came to Australia or not.   I was aware that Refika wanted to come to Australia and certainly would have been happy to have my children here with me but I did not participate in the decision between Refika and my brother to enter a marriage of convenience for the purpose of sponsoring Refika to Australia.   I did know about the decision and neither supported it nor opposed it.   I can say that, in subsequent discussions with both my brother and Refika, they told me that they never knew that a marriage of convenience was the wrong thing to do.

9.        The spouse application was refused in 1998.

10.      When I travelled to Macedonia in August 1999, my relationship with Bedrije was on the rocks but not over.   I had no intention of resuming my relationship with Refika and, indeed, had thoughts of improving my performance as a husband to her.   However, during my time in Macedonia I was placed in close contact with Refika in the organisation of our son’s wedding.   It was during this time that I realized that we had so much of our history in common and that she had suffered considerably as a result of my actions.    She had spent the best part of her life raising my children with no support from me.   After our son’s wedding, we had some very open and honest conversations about our lives and our future and I expressed my remorse for my past actions.   We contemplated a future together but made no commitment.   When I left Macedonia to return to Australia I still had not ended my relationship with Bedrije and considered my position in relation to my matrimonial affairs.

11.      I decided that I could not continue to maintain a relationship with Refika [sic] and advised her of this.   I believe that this decision was not unexpected although he [sic] was not happy about it

12.      From the beginning of 2000 onwards, I maintained communication with Refika and provided her with funds if they were available.   I spoke with her on the phone and we exchanged letters.

13.      Around the middle of 2003, we decided to marry and for Refika to come and live with me in Australia.    This was discussed and decided over the phone.”

(The reference in paragraph 11 to “Refika” should be read as “Bedrije” I think.    The reference to “he” should not doubt be read as “she”.)

15.     The section 37 documents were taken into evidence as Exhibit R1.   At page 117 thereof, in a document purporting to be a note of an interview between a migration officer and the review applicant at the Australian Embassy in Belgrade on 3 November 2003, the following question and answer are recorded:

“- Have you ever lived with Bedrije as husband and wife? --- Yes, for two weeks only.   After that I moved to my brother’s place when my son came to A/a” (Australia) “I moved in with him in a house which I bought for him.”

16.     In paragraph 7 of Exhibit A 1 the review applicant refers to this recorded entry and gives the following explanation:

“7. I refer to Document T29 p117 which states that I had said that Bedrije and I only lived together for 2 weeks.   This is not correct.   I participated in a telephone interview with an officer of the Department of Immigration on 3 November 2003 but never said this and do not know why it is recorded as such.   The first time that I have heard of this statement or seen the interview record is after the commencement of this proceeding.”

17.     This matter was pursued by Mr Webb in cross-examination of the review applicant during the hearing on 24 February 2004.   The following exchange is recorded at pages 12 to 13 of the Transcript:

“Mr Webb:   Mr Serifovski, I should like to just show you two comments which appear on the T documents.   The first of those is notations from an interview which was conducted between yourself and an officer of the Australian embassy in Belgrade, and that appears on page 117.   Specifically halfway down that page you will note the  comment:

Have you ever lived with Bedrije as husband and wife?

And the response:

Yes, for two weeks only.   After that I moved to my brother’s place, and when my son came to Australia I moved in with him in a house which I bought for him.

The Interpreter: This was caused by the agency in Manastir, or Bitola.

Mr Webb:  Could you please explain that a little further?  I am not sure I understand you.

The Interpreter:  I lived with Bedrije for a year and a half, but we live in a village over Macedonia.   We are not very educated so to prepare any documentation we go to an agency down in town, and we get their advice and they write it up for us.

Mr Webb: I understand that this is a record of an interview conducted not with your agent but between yourself and an officer of the Australian Embassy in Belgrade.

The Interpreter: I understand, but it was the agency in Manastir that told us to say these things.”

18.     To remove any ambiguity from the review applicant’s final answer to Mr Webb I took up the issue again a little later.    At pages 23 and 24 of the Transcript the following questions and answers are recorded:

“The D President:  Mr Webb asked you some question a few minutes ago concerning statements that appear at page 110 of the T documents.  I would ask you now to turn to page 117.   Half-way down the page this question and answer appear:

Have you ever lived with Bedrije as husband and wife?

And what appears to be the answer is:

Yes, for two weeks only.   After that I moved to my brother’s place, and when my son came to Australia I moved in with him in a house which I bought for him.

The Interpreter:          I lived with Bedrije for nearly two years, but this was the agency in Manastir, or Bitola.   They wrote it for two weeks.

The D President:      Are you telling me that when you were interviewed in Belgrade on 3 November 2003 that you told the consular official who was questioning you that you had lived for two weeks only with Bedrije?

The Interpreter:          That is what the agency told us to say.

The D President:        Yes, but did he tell the consular official that when he was interviewed?

The Interpreter:          The agency wrote it, two weeks.

The D President:        I don’t care who wrote it, I want to know whether he told that – the consular official whether it was his own idea or the agency’s idea, is not important to me at the moment.

The Interpreter:         When the proper documentation was made the agency said, “I am going to write here that you lived with her for two weeks.   You sign that you have lived here for two weeks.”

The D President:        All right.   And after the agency said that did you, when you went to that interview, repeat that answer to the interviewing official?

The Interpreter:         Yes, I had to because the agency had already written it.

The D President:        And did you also tell the official that you moved to your brother’s place?

The Interpreter:         I don’t know, I am not sure.”

19.     The version of this part of the 3 November 2003 interview deposed to by the review applicant in his oral evidence, plainly contradicts what he said in paragraph 7 of Exhibit A1.   I have no doubt that the review applicant fully understood the potential significance of what he now admits he said to the Embassy official and was at pains to suggest that it was a false answer supplied by his villainous migration agent.   If, however, his answer to the interviewing official was true i.e. if he only resided with Ms Mustafova for a fortnight after coming to Australia and has no explanation for their separation thereafter, weight is added to the respondent’s proposition that the marriage to Ms Mustafova was a sham.

20.     There are several other factors about the case which tend to point in the same  direction.

21.     Ms Mustafova was born in 1948.   She was 16 years older than the review applicant.   She had been married previously and was the mother of 3 children.   The review applicant met her for the first time, according to his evidence in 1994 and they were married soon after on 3 December 1994.    She then left Macedonia and went to Belgium.    The review applicant did not accompany her.   The reason for this separation from the review applicant was not explained by him.   Ms Mustafova did not give evidence.   They reunited 3 years later in Australia but the cause of the long delay may well  be explained by the necessity for an appeal in relation to the review applicant’s spouse visa.

22.     At page 110 Exhibit R1, the visa applicant is recorded as saying during her separate interview with an Embassy official on 3 November 2003, the following “They” (i.e. review applicant and Ms Mustafova) “lived in A/a” (Australia) “for a very short period of time.”

She is also recorded as saying:

“His brother” (presumably Sadzit) “organised that marriage for him.”

This latter statement appears to me to take on some significance when it is remembered that Sadzit also organised his own bogus marriage to the visa applicant on 10 August 1997.

23.     In paragraph 4 of Exhibit A1, the review applicant said that he maintained a relationship with both Ms Mustafova and the visa applicant at the same time for several months.   During his oral evidence he said “Once I met Bedrije I broke up with Refika”.   He did not satisfactorily explain this discrepancy.

24.     In Exhibit R1 at page 184, in a document provided by the applicants, 8 neighbouring farmers from the applicant’s village in Macedonia, said (inter alia) “In 1997 Pulump left to (sic) Australia to provide better financial conditions for his family, but for a long period he could not take his family to Australia.”   This statement, dated 18 February 2004 is obviously based on hearsay, but as the statement was obtained by the applicants for the purpose of assisting the current visa application it may be inferred that they knew of and approved of the contents.   In a similar statement, bearing the same date, and appearing at page 186 of Exhibit R1, the visa applicant maintained that it “is true” that “she is in a de facto relationship with Pulump from 1979.”

25.     It was acknowledged by the visa applicant that she had at all times been supported by money provided by the review applicant while he was living in Australia.   Of itself this is not proof that a continuing matrimonial relationship between them existed.    The review applicant has obviously done very well financially since coming to Australia and would be well able to support his former de facto and her children in Macedonia even if supporting another wife in Australia.   However, the provision of continuous financial support is at least consistent with a continuing marital commitment between the two applicants.

26.     Although not entirely clear from the evidence, it appears that the review applicant is claiming that he was in a continuing genuine relationship with Ms Mustafova at the same time as his brother was attempting to gain entry to Australia for the visa applicant by virtue of his bogus marriage to her.   The visa applicant also says that the review applicant was still in Macedonia when she married his brother on 10 August 1997.    This seems to accord with the review applicant’s evidence that he arrived in Australia on 5 December 1997.   (see paragraph 5 Exhibit A1).   I find it very difficult to understand why the visa applicant would wish to come to Australia in these circumstances.   I asked her about this during her evidence, but received no explanation save that “everyone wants to go to Australia.”   However, according to the applicant’s case she, at that time, was a deserted Macedonian peasant woman with no prior knowledge of Australia and four children all under the age of 18 years.   She had few, if any, prospects in Australia.    Her de facto husband was married to another woman and was intending to join his new wife in Australia.   The Visa applicant had no genuine relationship with his brother.   If the respondent’s contention is accepted, i.e. that both she and her de facto husband were trying to get to Australia to set up a new family home with their children, her willingness to enter into the bogus marriage to help achieve that purpose seems to me to make a lot more sense.

27.     It is appropriate to record that I regarded the visa applicant as an unconvincing and evasive witness.   In reaching this conclusion I have made full allowance for her lack of education and the difficulties associated with giving evidence through an interpreter from an overseas location.

28.     The witness, Aliu Sadzit lacked any basic credibility.   He was indeed a very poor witness.  Amongst other things he gave evidence that without any suggestion by his brother or the visa applicant he went to the local migration agency in Macedonia and paid $1,000 of his own money for that organisation to prepare the necessary papers for the visa applicant to marry him and come to Australia (see Transcript pp74-75).   He also said he never spoke to his brother, the review applicant, about the proposed marriage.   His version of events was unbelievable.

29.     The review applicant also was a generally unconvincing witness as to disputed issues,  and I am not prepared to accept his uncorroborated evidence as to relevant events and relationships.

30.     The only witness whose evidence was unchallenged and had the appearance of reliability was Ilir Lumanovski, the applicant’s son.   That said, I must also record that I am unable to accept Lumanovski’s assessment of the relationship between his father and Ms Mustafova mentioned in paragraph 3(a) of his statement (Exhibit A2).  His essential story was that when he came to Australia himself he found his father living with Ms Mustafova.    He said he opposed this relationship and his opposition was the basic cause for the breakup of his father’s relationship with Ms Mustafova.    However, the date of Mr Lumanovski’s entry into Australia is not specified.   If reliance can be placed upon what the review applicant says in Exhibit A1, paragraphs 5 and 6, it appears to have been at some time between December 1997 and December 1999.   If the review applicant lived with Ms Mustafova for any period of time, no matter how short, after coming to Australia it could have been then that his son found them together.   It is also quite feasible that neither the visa applicant nor the review applicant had informed him of their mutual scheme to gain entry to Australia by 2 bogus marriages, if indeed, that was the plan.   If, however, the review applicant had really abandoned the visa applicant and their four children, had indulged in an affair with Ms Mustafova, and then married her to come to live with her in Australia in a genuine marriage relationship, it is difficult to understand Lumanovski’s objection to their living together.   Overall, I am by no means confident that his evidence necessarily undermines the contentions put forward by the respondent.   Indeed on the balance of probabilities, I have concluded that the marriage between the review applicant and Ms Mustafova was bogus and that it was part of a general scheme to secure Australian residency and citizenship for both applicants in which the visa applicant herself was complicit.   I would not surprise me if Aliu Sadzit was the architect of the scheme, but there is no need to make a specific finding as to this.   The important issue is that the visa applicant was part of the conspiracy.

31.     An independent basis upon which the visa applicant’s character may be impugned is to be found in her conduct regarding the bogus marriage between herself and Sadzit.   The issues relating to this aspect of her conduct are set forth in paragraph 11, of these reasons.

32.     In my opinion the statements made by the visa applicant in her statement to migration officer, John Caspersonn as recorded in Exhibit R1 @ pages 26 and 27 rebut the contention that her behaviour was not deliberately misleading or fraudulent.   This interview was clearly concerned with the validity of the marriage with Sadzit.   That the visa applicant made the statements attributed to her in the recorded material and that what she said was deliberately false is established by her own evidence (see pages 59 – 60 of the Transcript) where she said:

“Mr Webb:                 Ms Serifovski, the decision record containing the decision refusing you spousal visa application contains a statement that you had lived together in a marital relationship for six weeks with Mr Aliu.   Do you have any comments in relation to that statement?

The Interpreter:         No

Mr Webb:So you did not live together in a marital relationship for six weeks?

The Interpreter:         No

Mr Webb:The decision record also states, quote:

`When asked how they had spent their time, the applicant stated that they had done many things together.   They had been around Macedonia and eaten at lots of restaurants.   When asked for specific details she stated that they had not left the village, apart from the occasion when they ate once in a restaurant in Bitola.’

Do you agree that you told the Department that you had done many things together and eaten at restaurants, etcetera?

The Interpreter:         The agency told me to say that.

The D President:        But did you say it?

The Interpreter:         Whatever they told me to say I said.”

33.     I reject the visa applicant’s statement that she did not intend to deceive the Australian Government in making that application as she claims in paragraph 4 of Exhibit A3.   Like her husband she has blamed the agency for fabricating her story, but in doing so she has exposed her own complicity by knowingly repeating it.

Character

34.     On the basis of the findings made and the Minister’s Direction No 21 as to policy and other considerations in determining character issues, and in accordance with the principles established by decided cases including:

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

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

(All of which were recently discussed by Deputy President Forgie in Wati and Minister for Immigration and Multicultural Affairs (2000) AATA 984)

I find that the visa applicant is a person who is not of good character within the meaning of the Act.

Discretion

35.     I turn therefore to consider whether as a matter of discretion the visa applicant should be refused a visa.   The Minister’s Direction No 21 is also relevant to this issue and is binding upon decision-makers including members of the AAT.   The primary considerations to be taken into account are set forth in paragraphs 2.3 to 2.16; other considerations are referred to in paragraphs 2.17 to 2.24.   The direction says “Decision-makers must have due regard to the importance placed by the Government on the 3 primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.”

36.     The first primary consideration is “the protection of the Australian Community and members of the community.”   Factors relevant to this consideration are as follows:

(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 may prevent or discourage similar conduct (general deterrence). (Paragraph 2.5)

According to paragraph 2.6 of the Direction the Government regards crimes against the Migration Act, including applying or nominating for permanent residence on the basis of a contrived marriage and making false or misleading statements in connection with entry into Australia, as “very serious”. On this basis the visa applicant’s misconduct both in respect of her own bogus marriage to Sadzit and her complicity in the review applicant’s bogus marriage to Ms Mustafova was “very serious”. This characterisation applies in my opinion whether or not the migration agent in Macedonia was also complicit in either part of the scheme as an instigator or abettor. The observations of Deputy President McMahon in Lachmaiya at pp.155-156 reinforce the view that such conduct by the visa applicant is very serious and strikes at the foundation at the control processes by which Australia attempts to regulate the entry of non-citizens.

37.     Deputy President McMahon observations are also relevant to the question of the likelihood of recidivism.   I have observed previously, and repeat again, my view that behaviour of the kind now under scrutiny would be unnecessary in future if the visa applicant were to gain entry to Australia, but the risk of recidivism is not limited to such a consideration.   An applicant falls foul of paragraph 2.5(b) of the Direction if his or her conduct is such that there is a risk that fraudulent or dishonest conduct may be undertaken in the applicant’s dealings with governmental, municipal or other public authorities.   In the present case I regard such a risk as substantial.

38.     I am also of the view that general deterrence is a significant consideration in cases such as this.   The general tenor of the evidence given during the hearing was to the effect that the neighbours and villagers in the applicant’s area of Macedonia take an interest in the prospects and processes of applications to live in Australia.   I am satisfied that if the visa applicant’s spouse visa application is refused, that fact and the reasons causing that outcome are likely to become known throughout the community and operate as a future deterrent to any others who may be minded to try to beat the system dishonestly.

39.     I will  pass over the requirements of paragraph 2.5(b) of the Direction, but  will return to it later in these reasons.    I turn now to paragraph 2.5(c) which requires decision-makers, in all cases involving a parental or close relationship between a child and the applicant to have regard to the best interests of that child.   Paragraph 2.13 specifies that this applies only if the child “is or would be less than 18 years of age at the time when the decision is intended to come into effect.”   Paragraph 2.15 provides that in general, the child’s best interests will be served if the child remains with its parents.    That requirement may be modified by other considerations such as those specified in paragraph 2.16.

40.     As pointed out in paragraph 1, the applicants have one female child under 18.   She is now aged 17½ years.    She has lived with her mother in Macedonia for her entire life.   There is no suggestion that her education has familiarised her with written or spoken English.   The respondent submits that cultural and linguistic barriers would make it difficult for her to relocate to Australia.   I accept this submission.   Her father who has lived in Australia most of the time for some 8 years, still required the use of an interpreter to give evidence, as did her mother.   Two of Muradie’s sisters live in Macedonia.   If the review applicant wishes to return to Macedonia there is no reason to suppose that this would create real difficulties.   He lived there from birth until 1997.   he gave evidence that he has now disposed of his business “Victoria Fresh”.   Having regard to the profitability of that business he may well have sufficient capital to provide him with a comfortable income if he returns to Macedonia.   In any event he appears to be able bodied and there is no reason to suppose that he could not resume working as a farmer to support his family.   I am conscious that he is an Australian citizen, but having regard to the means whereby he secured that status, I think that fact deserves less prominence than it might have in other circumstances.   Furthermore, not only did he know of the visa applicant’s dishonest conduct he was complicit in it.

41.     These considerations, although principally relevant to the hardship which may be experienced by the review applicant if his wife’s visa is refused, is also of relevance to the best interests of his daughter.   It is often put to me by counsel that the best interests of any child who has a prospect of living with both parents in Australia is to be found in granting a visa which will effect such an outcome, particularly if the alternative is living in a less developed country such as Macedonia.

42.     This is a superficially attractive proposition but is not necessarily correct.   I have no evidence as to the circumstances and in Macedonia or the services available to its citizens.   There is no evidence that, for example, it has deficient health services or, more importantly that the relevant child or either applicant has poor health.   In my view the best interests of the relevant child in this case are not clear cut.   However for the sake of discussion, I am prepared to assume that it would be in the child’s best interests to come to Australia and this result would, of course, be achieved if the visa sought is granted. (See Wan v Minister for Immigration, Multicultural and Indigenous Affairs (2001) 107 FCR 133). However as my previous comments may have indicated I do not see any great hardship to the review applicant if the visa sought is refused. Nor do I see any particular hardship to the visa applicant herself. She has spent her entire life in Macedonia, apparently surrounded by family and friends. She has been living apart from the review applicant for 8 years or more. He supports her with funds provided from Australia. There is no suggestion that this provision will not continue even if the review applicant decides not to return to his original home.

43.     I return finally to the consideration mandated by paragraph 2.5(b) of the Minister’s Direction – the expectations of the Australian community.    Such expectations must be assessed on the theoretical collective judgment of reasonable, moderate and humane members of the community assessing the situation with a full understanding of the facts and issues relevant to the particular case.   The visa applicant has demonstrated contempt and disrespect for the Australian immigration system and has made false and misleading statements in her attempted furtherance of her mutual plan with the review applicant.    Her conduct was serious and premeditated.   I do not think that the interests of the child or potential hardship to either applicant would significantly change the expectations of the community.   In my opinion the community would  expect the visa application to be refused.

Conclusion

44.     In my opinion the other consideration in this case outweigh those relating to the best interests of the child and as a consequence I am not persuaded that my residual discretion should be exercised in favour of the visa applicant.    The decision under review is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:   K L Miller (Administrative Assistant)

Date/s of Hearing  24 February 2005
Date of Decision  22 March 2005
Counsel for the Applicant         Mr John Gibson
Solicitor for the Applicant          Woodsman Consultants Group Pty Ltd
Counsel for the Respondent     Mr Timothy Webb
Solicitor for the Respondent     Clayton Utz