Seva and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 254

DECISION AND REASONS FOR DECISION [2002] AATA 254

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1890

GGENERAL ADMINISTRATIVE DIVISION       )
           Re      Boyana Seva
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date17 April 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 Marjan Zdravkoski.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – spouse provisional visa – character test – meaning of character test – requirement to consider past and present general conduct – discretion that can be exercised by decision-maker – best interests of the children paramount to the expectations and protection of the Australian community.
Migration Act 1958 ss 499, 499(1)(2)(2A), 501, 501(1) (6), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister forImmigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

17 April 2002 Mr R P Handley

This is an application by Boyana Seva ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 19 November 2001 to refuse the grant of a subclass 309 spouse (provisional) to the Applicant's spouse, Marjan Zdravkoski ("the Visa Applicant").
At the hearing, the Applicant was self-represented and the Respondent was represented by Greg Peek, 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 documents tendered by the parties. Oral evidence was given by the Applicant, the Visa Applicant and the Applicant's son, Boris Seva, by conference telephone from Macedonia.
BACKGROUND
The Applicant, Ms Seva was born in Bosnia on 29 June 1964 and is aged 37. She migrated to Australia with her parents and three sisters in 1970. The Visa Applicant, Mr Zdravkoski was born in Macedonia on 1 March 1965 and is aged 37. Ms Seva and Mr Zdravkoski were married on 12 August 2001. Ms Seva has two children from her previous marriage, Boris Seva, who was born on 23 September 1990 and is aged 11, and Ljubica Seva, who was born on 19 March 1992 and is aged 10.
On 11 June 1997, Mr Zdravkoski applied for a visitor visa at the Australian Embassy in Belgrade, stating on the application that he had never been married. This application was refused on 23 June 1997. On 7 November 1997, Mr Zdravkoski applied for a visitor visa stating that he was married. On the basis of this application, Mr Zdravkoski was granted a visitor visa and arrived in Australia on 22 November 1997. On 6 February 1998, Mr Zdravkoski was granted a long stay visitor visa permitting him to remain in Australia lawfully until 22 August 1998. He did not, however, leave Australia by that date.
On 13 December 1999, Mr Zdravkoski lodged an application for a protection visa and was granted a Bridging Visa C which permitted him to remain in Australia pending the outcome of his application, but did not permit him to work. On 21 March 2000, this application was refused and, on 27 March 2000, he lodged an application for a review by the Refugee Review Tribunal ("RRT").
Mr Zdravkoski commenced casual employment in about October 2000 working for a friend making car trailers, earning $80 - $100 per day. On 31 January 2001, Mr Zdravkoski was detained by immigration officers at his place of employment and, subsequently, his bridging visa was cancelled. On 5 February 2001, Mr Zdravkoski was released from detention on payment of a $5,000 bond and was granted a further Bridging Visa pending a decision on his application to the RRT. On 12 August 2001, Ms Seva and Mr Zdravkoski were married at the Macedonian Church in Carlton in Sydney. On 4 October 2001, Mr Zdravkoski withdrew his application to the RRT and, on 8 October 2001, returned to Macedonia accompanied by Ms Seva and her two children who have lived with him there since that time.
On 23 October 2001, Mr Zdravkoski lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Belgrade. Mr Zdravkoski and Ms Seva were interviewed at the Australian Embassy in Belgrade by a delegate of the Respondent on 16 November 2001. On 19 November 2001, the delegate decided to refuse the grant of a subclass 309 visa to Mr Zdravkoski on the ground that he was not of good character because of his past and present general conduct and found that there was no basis for exercising the Minister's discretion in Mr Zdravkoski's favour. On 11 December 2001, Ms Seva lodged an application for a review of this decision with 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 Zdravkoski 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
Boyana Seva ("the Applicant")
Ms Seva was born in Boznia and migrated to Australia with her parents and three sisters arriving in 1970. They are all still in Australia, although her father died three years ago. Ms Seva went to school in Sydney, including Cabramatta High School. On leaving school, she trained to be a receptionist at TAFE and then worked at the Ethnic Affairs Commission. Since having children, she has worked part-time, two days a week as a medical receptionist for the past six years. Ms Seva was married to Radenko Seva on 19 May 1988 from whom she was divorced in November 1995. As part of the property settlement, their unit in Queanbeyan was sold and the proceeds of sale were divided between them. Ms Seva said her ex-husband is not willing to share responsibility for their children.
Ms Seva said she met Mr Zdravkoski through a boyfriend of her friend in September 2000. As her relationship with Mr Zdravkoski developed, he told her about his immigration problems and that his visa had expired. This would have been about November 2000. Ms Seva was not initially aware that Mr Zdravkoski had made another application to stay in Australia and she did not know that on his second application for a tourist visa in November 1997, he had said he was married. She first learned of this at the interview in Belgrade in November 2001. She was stunned when she learned this and very upset that he had lied in this visa application. Mr Zdravkoski later told Ms Seva that he had tried to extend his visa and had consulted a migration agent who promised that this was possible and that Mr Zdravkoski would be able to work. Ms Seva said she became aware that he was working illegally, although she was not sure whether she was aware of this when they first met.
About May 2001, Ms Seva and Mr Zdravkoski consulted a migration agent, Dinko Donjerkovich, about their situation and he advised that Mr Zdravkoski should apply for a visa and that in the end there would be a positive result. Ms Seva and Mr Zdravkoski were married at the Macedonian Church in Carlton on 12 August 2001. Ms Seva purchased airline tickets for herself, Mr Zdravkoski and her children out of her savings from the proceeds of sale of the unit in Queanbeyan. They flew from Sydney on 8 October 2001 and were met in Skopje by her husband's brother. Since then they have been living with her husband's father in the lower storey of a two storey house, in a large village in Macedonia. In the upper storey, her husband's brother and his family live. Ms Seva said this arrangement works quite well.
Ms Seva said the only income they have had until now is her Australian social security benefits, but these will stop six months after her leaving Australia. The only other money she has is what is left from the proceeds of the sale of the Queanbeyan unit. Her husband has been unable to find work because of the lack of jobs. There are many people out of work. Most of the local people are farmers. Even university qualified people are unable to find jobs. Her father-in-law is a retired teacher, aged 70. Her middle brother-in-law works as a bodyguard, but, as is common at the moment, has not been paid for some time. Ms Seva said she is also not working. She does the cooking and cleaning. She speaks Serbian but does not understand all Macedonian. Also, she can not write in the Cyrillic script. Her husband helps out his uncles if there is work to be done, for example some painting, and his uncles will give him something in return, such as eggs or cheese. Ms Seva said they have learned to economise and never go out.
Ms Seva said living in Prilep, is quite a change to Australia. She described the facilities as "vintage" and said their house has outside squat toilets. Because the village is quite large, there are boutiques, barbers, computer shops, a post office etc. Her children have not adapted to the local food: they live on cornflakes, eggs and cheese. Ms Seva said there is a lot of political activity and violence in the area. If anything, things are getting worse and there have been a lot of shootings and killings. However, despite the hardship and the political violence, it is better that they all be there together. She said she could not live without her husband.
Ms Seva said her children are relatively happy but miss Australia, her family in Australia and the Australian lifestyle. The good thing about the village is that the children can go out with friends. Her son, Boris mixes well at school and can speak both Serbian and Macedonian. However, he is not interested in learning to read and write. He has not learned anything at school and Ms Seva feels he is wasting his time. By contrast, her daughter is doing well at school. She is more academically minded and is learning to read and write.
Ms Seva said that while there is social security in Macedonia, there is no free public health. One has to pay to consult a doctor and for medication. She said the local doctor's surgery is filthy and unhygienic.
Marjan Zdravkoski
Mr Zdravkoski said he has two brothers with families, and a father. When he left school, Mr Zdravkoski worked in the fields with his family and did some painting. He also did a builder's course which he finished in 1993 and completed six months work experience as a builder after that course. From 1994, he worked in a private company as a sales person. Mr Zdravkoski said he has a lot of friends in Australia and wanted to visit Australia because he had heard a lot of good things about it. After his first application for a visitor visa was refused, it was suggested to him that he should say in the application that he was married and he therefore included his sister-in-law in the application as his supposed wife. At this stage, he had never been married and now very much regrets that he stated this in his application.
On arriving in Australia, Mr Zdravkoski went to stay with a friend, Zoran. He did not have very much money so he depended upon his friends who gave him a few dollars here and there. He liked Australia and wanted to stay as long as possible and, having been advised that he could extend his tourist visa, he sought and was granted an extension of 6 months. However, when he sought a further extension of 3 months, this was refused. Nevertheless, he stayed on in Australia unlawfully after his visitor visa expired on 22 August 1998. For about 16 months, he did not do very much except see his friends. He did not work during that time and was largely supported by his friend, Zoran, who knew of his illegal status.
Having decided that he wanted to stay in Australia legally, Mr Zdravkoski sought help through friends. In December 1999, he met Bale Dojcinovski, who presented himself as a migration agent. Mr Dojcinovski said he could help Mr Zdravkoski obtain a visa and a tax file number. Mr Dojcinovski came to Zoran's house to see Mr Zdravkoski. He told Mr Zdravkoski that he would obtain a bridging visa for him, together with permission to work and a tax file number. Mr Dojcinovski asked for Mr Zdravkoski's passport and took this together with a completed visa application form with him to Canberra, saying that he would bring back a visa for Mr Zdravkoski. This occurred about 13 December 1999. When Mr Dojcinovski returned, he had obtained a bridging visa for Mr Zdravkoski, although no permission to work. Mr Dojcinovski said he would obtain this and a tax file number. Mr Zdravkoski then paid Mr Dojcinovski $3,600 which had been collected by friends on his behalf on the basis that he would pay them back.
Following this, Mr Zdravkoski received correspondence from the Department of Immigration which he would pass to Mr Dojcinovski without necessarily opening the letters. Mr Zdravkoski remembers signing a document at Mr Dojcinovski's request without knowing what it was. Mr Dojcinovski then returned $500.00 to him. After this he disappeared. Mr Zdravkoski said this was about four months after the grant of the bridging visa in December 1999. Mr Zdravkoski said Mr Dojcinovski did not have an office. He either came to his friend's house or Mr Zdravkoski would meet him in Mr Dojcinovski's car. They would correspond by phone.
Mr Zdravkoski said that although he knew he did not have a right to work in Australia, he was ashamed of owing money to his friends and felt he had to pay them back. His friend gave him a casual job making car trailers where he worked for three or four days a week over a period of approximately four months from around October 2000 until January 2001 when he was detained by immigration officers. Mr Zdravkoski acknowledged that he also never had a tax file number. He told the officer who interviewed him at the Australian Embassy in Belgrade that he had worked for a period of four months, although not everyday. During these four months when he worked casually, he saved enough to repay the $3,600 collected by his friends. However, when he was detained by immigration officers, his friends then loaned him $5,000 for the bond to secure his release.
Mr Zdravkoski said that about December 2000 or January 2001, about 12 months after the issue of the bridging visa, he went to see a migration agent, Dinko Donjerkovich. . Mr Donjerkovich advised Mr Zdravkoski that the application made on his behalf by Mr Dojcinovski for a review of the decision refusing his application for a protection visa, had no chance of success. Mr Zdravkoski said he was not even aware that his application for a protection visa had been refused on 21 March 2000 or that, on 27 March 2000, Mr Dojcinovski had sought a review of that decision on his behalf. Mr Zdravkoski said he did not know what documents he had signed for Mr Dojcinovski. Mr Donjerkovich advised Mr Zdravkoski that he would prepare another written submission to the RRT on his behalf expanding the claims made in the original RRT application lodged by Mr Dojcinovski.
Mr Zdravkoski said he was not aware of what was going on with Mr Dojcinovski and he is very sorry for breaching Australian immigration law. He has admitted to his wrongdoing and, if he is given a chance, wants to be a good citizen in the future.
Mr Zdravkoski said he first met Mrs Seva in about September 2000 through a friend who was seeing a girlfriend of hers. His relationship with Mrs Seva was initially that of friends, but from around May 2001 their relationship became serious and they decided to get married. Mr Zdravkoski said he was no longer working at that time. As their relationship became more serious, he suggested that Mrs Seva accompany him to see the migration agent who could then explain exactly what Mr Zdravkoski's immigration problems were. They therefore both went to see Mr Donjerkovich.
Mr Zdravkoski said he has a perfect relationship with his wife and her children but they are in dispair because of their unknown future and waiting for this matter to be resolved. Mr Zdravkoski said there are no jobs for him in Macedonia and even those who do have jobs, do not always get paid. Mr Zdravkoski said he is Macedonian Orthodox and goes to church when he can.
Boris Seva
Boris is aged 12 and got up in the early hours of the morning in Macedonia to speak to the Tribunal by conference telephone. Boris said it is over five months since they left Australia and the weather has been too cold and he does not like the food. However, he is "going well" at school, where he is in Class 5A. He can speak Macedonian and has made friends there. Nevertheless, he misses his school in Australia. He said there is rubbish everywhere you go in Macedonia and the toilets "stink".
Boris said he gets on "real good" with Mr Zdravkoski whom he says is his friend. Mr Zdravkoski plays football with him and they go on outings, for example to the pizzeria. Boris said he would not want to come back to Australia without Mr Zdravkoski.
SUBMISSIONS
Respondent

Mr Peek, for the Respondent, submitted that Mr Zdravkoski does not pass the character test because of a course of misconduct in his dealings with the Australian immigration authorities. Mr Peek noted that Mr Zdravkoski made a false or misleading statement in his second application for a visitor visa when he stated that he was married, he remained in Australia unlawfully from after 22 August 1998 until 13 December 1999 when he was issued with a Bridging Visa, and he worked unlawfully until he was detained on 31 January 2001. Moreover, although Mr Zdravkoski said he did not compose the statement contained in his application for a protection visa, nevertheless, this application, which he signed, made false and misleading claims.
With regard to the exercise of the Minister's discretion under s 501(1) of the Act and the guidance provided by Direction No. 21, Mr Peek, referring to the first of the primary considerations - the Protection of the Australian Community, said the Respondent submits that Mr Zdravkoski's misconduct constituted serious breaches of Australia's immigration law. With regard to the Best Interests of the Children, he noted that Ms Seva's children are not used to the cold temperatures in Macedonia in the winter months and the lack of hygiene. He acknowledged that the evidence presented by Ms Seva suggests that the children are facing hardships. Nevertheless, the children are relatively well off and happy, and Boris said he wanted the family to stay with Mr Zdravkoski.
With regard to Other Considerations, Mr Peek noted that Ms Seva knew of her husband's immigration problems before their marriage. However, Mr Peek acknowledged that she is suffering hardship as a result of the current situation. He submitted that the character references provided by Ms Seva do not indicate that those giving the references know the full history of Mr Zdravkoski's immigration misconduct.
Applicant
Ms Seva said her husband has admitted to his mistakes and has paid the penalty in terms of delay and all the difficulties he has faced. Her husband is not a criminal and has no police record. On the contrary, he is of good character. She referred to two character references in support of this contention.
With regard to the exercise of the Minister's discretion under s 501(1), Ms Seva, referring to the Best Interests of the Children, acknowledged that her children are happy and well settled, but said they did not cope well with the winter. However, while her daughter is doing well at school, her son has not learned anything and, essentially, is wasting his time at school. Ms Seva said she worries what they will do when her social security benefits cease to be paid on 8 April 2002, six months after their departure from Australia. They will then have no source of income and, unlike most of the people in the village where they are living, they have no land which they can use to support themselves. Ms Seva said because their natural father takes no interest in them, her children have longed for a father figure and love Mr Zdravkoski and he loves them back. Her children have yearned for such a family relationship for many years.
Ms Seva said she has no family in Macedonia and she finds being separated from her family in Australia very difficult. In Australia, her mother lives alone and Mrs Seva has seen neither her nor her sisters for over five months. She has not told her family in Australia of the problems they are enduring in Macedonia. If she and her husband were living in Australia, they would have baby sitters on hand from among members of her family and her children would have a grandmother and cousins to visit. Ms Seva said she was not even able to obtain the ingredients to make her daughter a cake for her birthday. Her daughter's wish is to return to Australia as soon as possible because she misses her grandmother, whom she adores, her cousins, her school and her friends.
Ms Seva said if they are able to return to Australia, even though she left her job to travel to Macedonia, she should be able to find another job in Australia relatively easily because she has a lot of experience. She said she loves her husband, they are a complete family unit, and there is no future for them 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 Zdravkoski 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 Zdravkoski 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 Zdravkoski admits that he made a false or misleading statement on his second application for a visitor visa for Australia when he stated that he was married and included as his alleged spouse, details for his sister-in-law. Mr Zdravkoski told the Tribunal he regretted doing this and was very sorry for it. Mr Zdravkoski also acknowledged that he remained in Australia unlawfully after the expiry of the extension to his visitor visa on 22 August 1998. He did nothing about seeking to legalise his status until he approached a person whom he believed to be a migration agent, Bale Dojcinovski, in December 1999. Mr Dojcinovski appears to have obtained a bridging visa for Mr Zdravkoski in conjunction with the lodging of a protection visa application on 13 December 1999. The Tribunal accepts Mr Zdravkoski's evidence that the refugee claims contained in the protection visa application were concocted by Mr Dojcinovski without the knowledge of Mr Zdravkoski, and that Mr Dojcinovski also concocted the reasons given in the application for a review of the refusal of the protection visa by the RRT which Mr Dojcinovski appears to have submitted on Mr Zdravkoski's behalf (R1).
Since the file documents relating to Mr Zdravkoski's protection visa application are missing, the Tribunal has only had access to those documents kept by the RRT in relation to Mr Zdravkoski's review application. The Tribunal notes that the review application (R1) was completed by someone other than Mr Zdravkosi whose name was not provided in answer to Question 11 on the form as requested. The Tribunal accepts Mr Zdravkoski's evidence that, in about March 2000, he signed a document for Mr Dojcinovski in response to which Mr Dojcinovski returned $500 to Mr Zdravkoski. After Mr Zdravkoski had met Mr Dojcinovski on this occasion, Mr Dojcinovski disappeared. Mr Zdravkoski's evidence is that he was not even aware of the refusal of his protection visa application on 21 March 2000.
The Bridging Visa issued to Mr Zdravkoski on 13 December 1999 did not permit Mr Zdravkoski to work. The Tribunal accepts Mr Zdravkoski's evidence that he did not work until about October 2000, when his friend provided him with casual work on three or four days a week. He continued working unlawfully until he was detected and detained by immigration officers on 31 January 2001. The Tribunal accepts Mr Zdravkoski's evidence that, on release from detention, he did not thereafter work.
In December 2000 or January 2001, Mr Zdravkoski consulted Mr Donjerkovich, a registered migration agent, for advice concerning his immigration status. Mr Zdravkoski's evidence is that Mr Donjerkovich told him that his application to the RRT stood no chance of success and that Mr Donjervich therefore prepared an additional submission on his behalf expanding the claims in the RRT application. Since Mr Zdravkoski's protection visa file is not available, the Tribunal is unable to verify exactly what happened with regard to this application. Nevertheless, in about May 2001, Mr Zdravkoski took Ms Seva with him to see Mr Donjerkovich for Mr Donjerkovich to explain about Mr Zdravkoski's immigration status. On 31 July 2001, Mr Donjerkovich notified the RRT of Mr Zdravkoski's new residential address (R2) which was acknowledged by the RRT by letter of the same date (R3). Then, on 4 October 2001, on Mr Donjerkovich's advice, Mr Zdravkoski notified the RRT of the withdrawal of his application for a review (R4). The RRT acknowledged this withdrawal by letter of the same date (R5), and notified the Department of Immigration and Multicultural Affairs accordingly (R6).
On the basis of the Tribunal's findings with regard to Mr Zdravkoski's conduct in making a false and misleading statement, remaining unlawfully in Australia and working unlawfully in Australia, the Tribunal is satisfied that this provides sufficient grounds for a determination that Mr Zdravkoski 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 Zdravkoski.
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, the Tribunal has found that Mr Zdravkoski made a false or misleading statement in connection with his entry into Australia and that such a false or misleading statement was also made by Mr Dojcinovski on a form signed by Mr Zdravkoski in connection with his application for a protection visa. Such matters are regarded as serious by the Australian community. The Tribunal accepts Mr Zdravkoski's evidence that he had no knowledge of the story concocted by Mr Dojcinovski in his protection visa application nor of the statement made in this regard by Mr Dojcinovski in the application for a review by the RRT. Mr Zdravoski has apologised for his misconduct and, in the Tribunal's view, the risk of his repeating such misconduct is minimal. The Tribunal acknowledges that the refusal of visas where a person has been guilty of immigration misconduct is likely to have a deterrent effect on others who may be contemplating such misconduct.
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, remaining in Australia unlawfully and working without permission are serious matters. Nevertheless, the Tribunal notes what Deputy President McMahon said in Leha 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 Zdravkoski's case, the Tribunal is of the view that the Australian community would take a humane view of the other considerations in this matter.

The third primary consideration is the Best Interests of the Child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, "to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration".
On the basis of Ms Seva's evidence, the Tribunal finds that her children, Boris and Ljubica, have adopted Mr Zdravkoski as their father and have formed a close mutual bond with him. The Tribunal notes that while the children seem to be relatively well settled in Macedonia, Ms Seva's evidence is that they are missing their family and friends in Australia, their school and the lifestyle to which they are accustomed. The Tribunal accepts Ms Seva's evidence that the living conditions in which they find themselves in Macedonia are inferior to those in Australia and that the children want to return to Australia, albeit with Mr Zdravkoski as well as their mother. The Tribunal therefore finds that the children's best interests will be served by Mr Zdravkoski being granted a visa to enable the whole family unit to return 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 in which 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.
There is no dispute that the relationship between Ms Seva and Mr Zdravkoski is a genuine marital relationship. The Tribunal finds that Ms Seva was aware that there were difficulties concerning Mr Zdravkoski's immigration status before their marriage and that this could affect his ability to obtain a visa enabling him to reside in Australia. The Tribunal notes that the need perceived by Ms Seva for the family unit to remain together, which has lead to her and the children accompanying Mr Zdravkoski on his return to Macedonia, has caused significant disruption to their family life and has subjected them to some hardship in Macedonia. It has also separated Ms Seva and her children from their family in Australia and, as stated above, from their normal environment and lifestyle. The Tribunal finds that if Mr Zdravkoski were to be refused a visa, this would cause significant hardship to Ms Seva as well as to her children. Any separation of Mr Zdravkoski from Ms Seva and her children would also cause significant hardship to him.
Weighing up the primary and other considerations, in the Tribunal's view, the best interests of Boris and Ljubica Seva outweigh any need for the protection of the Australian community,which is of minimal concern in this case. With regard to the expectations of the Australian community, the Tribunal's view is that the Australian community would take into account Ms Seva's and her children's situation as well as that of Mr Zdravkoski, and would view that situation humanely, albeit noting that there has been a breach of trust on Mr Zdravkoski's behalf.
Thus, the Tribunal concludes 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 Zdravkoski and, therefore, sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 March 2002
Date of Decision  17 April 2002
Representative for the Applicant              Self represented
Representative for the Respondent        Mr G Peek, Solicitor