Simic and Minister for Immigration and Citizenship
[2008] AATA 463
•3 June 2008
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1836
GENERAL ADMINISTRATIVE DIVISION ) Re BOGOLJUB SIMIC Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
CORRIGENDUM
TRIBUNAL: Honourable Dr B H McPherson CBE Deputy President
DATE: 18 July 2008
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The words ‘Vladimir Tarasova’, ‘Mr and Mrs Tarasova’, ‘the Tarasovas’ and ‘Mr Tarasova’ where they appear throughout the Decision should instead read ‘Vladimir Tarasov’, ‘Mr and Mrs Tarasov’, ‘the Tarasovs’ and ’Mr Tarasov’ respectively.
........................[Sgd]............................
Deputy President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 463
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1836
GENERAL ADMINISTRATIVE DIVISION ) Re BOGOLJUB SIMIC Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Honourable Dr B H McPherson CBE Deputy President Date3 June 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and directs that the application be reconsidered by the Minister or another Delegate in accordance with these reasons. The Tribunal remits the matter accordingly.
...............[Sgd]............................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Visas – character test – criminal and general conduct – false Australian passport – false Russian police clearance – no criminal conviction recorded – no risk of re-offending – protection of Australian community secured – genuine family ties to Australia – good character – application to be reconsidered by Minister – decision under review set aside.
Migration Act 1958 ss 499, 501(1), 501(6)
Migration Act 1958 (Ministerial Direction No. 21 under s 501 Visa Refusal and Cancellation 2001)
Griffiths v The Queen (1977) 127 CLR 293
The Queen v Carngham (1978) 140 CLR 487
Goldie v Minister for Migration [1999] FCA 1277
Church Property Trustees v Ebbeck [1961] ALR 339; (1960) 104 CLR 394
REASONS FOR DECISION
3 June 2008 Honourable Dr B H McPherson CBE Deputy President INTRODUCTION
1. Mrs Irina Simic (formerly Tarasova) who is the visa applicant, was born Irina Schmelkina in Moscow in 1953. In 1972 she married Viktor Verbilo, with whom she had one child in 1973. The marriage broke down and they were divorced in 1977. In January 1984 she married Vladimir Tarasova. He had at one time worked for the KGB and, at some stage after the Soviet Union collapsed, he informed against persons who he knew had engaged in corrupt or criminal conduct. This aroused their ire and Mr and Mrs Tarasova were forced to flee from Russia for fear of retribution. Their fears may not in fact have been misplaced because, shortly after their departure, Mrs Tarasova’s mother was found tied to a chair and strangled. The Tarasovas first went to Cyprus and then to Australia, which Mrs Tarasova has visited on several occasions since 1996 using her Russian passport with various forms of temporary entry visa to Australia.
“Work” in Australia
2. On 29 May 2000 Mrs Tarasova was served with a notice of intention to cancel her then current visa on the ground that she had worked in Australia in contravention of her visa conditions. The material before me contains a helpful opinion dated 3 September 2002 from a Departmental Legal Officer, which concludes that the position of the director of a small proprietary company who works (as Mrs Taranova is said to have been doing in Australia in about May 2000) is “not free from doubt” and should be clarified by legislation. I respectfully agree with that conclusion, while adding that such directors often receive nothing but dividends on their shares, leaving it doubtful whether in consequence they satisfy the definition of “work” in Regulation 1.03 of the applicable Migration Regulations 1994. It speaks of work as “an activity that, in Australia, normally attracts remuneration”, whereas dividends are ordinarily quite independent of services rendered. It is not, however, necessary on this occasion to pursue the question to finality because the Department no longer relies on this particular instance in May 2000 except to demonstrate that Mrs Tarasova was warned against working in Australia and so was aware that she should not do so.
FALSE PASSPORT
3. On 21 October 2000 Mrs Tarasova was in Australia under a temporary visa granted to her husband with her as a dependant. On 6 December 2000 she left Australia and travelled to Russia using an Australian passport, on which she also returned to Australia on 23 December 2000. She had obtained that passport by making a false representation that her name was Irina Loren. There have been suggestions that as a result the passport was a “forgery”; but the true position in law is that the Minister was authorised by s 8(1) of the Passports Act 1938 to cancel the passport and take possession of it, which is what was done in this instance.
4. On 18 September 2002 in the Magistrates Court at Brisbane Mrs Tarasova was charged under s 10(1)(a) of the Passports Act with making a false or misleading statement for the purpose of obtaining an Australian passport. She pleaded guilty to the charge without delay. Acting under s 19(1)(d) of the Crimes Act 1914 (Cth), the Magistrate decided to discharge her without proceeding to a conviction upon her giving security, without sureties, by way of recognizance in the sum of $2000 to be of good behaviour for two years. Some of the notations subsequently appearing in the Departmental material describe the form of court order made on that occasion as a ”conviction” and imply that Mrs Tarasova had subsequently falsely denied that she had ever been convicted; but that is not a correct view of the order, as can be seen from Griffiths v The Queen[1] and the discussion of that decision in The Queen v Carngham[2].
[1] (1977) 127 CLR 293
[2] (1978) 140 CLR 487
5. Among several reasons why the Magistrate recorded no conviction was Mrs Tarasova’s explanation of her offence, which was that she had suddenly received news from Moscow that her son Maxim was dangerously ill in Moscow with hepatitis and possibly cancer. Of his condition there was medical evidence before the Magistrate. Mrs Tarasova naturally wished to see her son. She was, however, warned by the migration agent whom she consulted in Australia that if she travelled to Moscow on her Russian passport, her visa would lapse and she would not be permitted to re-enter Australia. She was advised that the migration agent could obtain an Australian passport for her, but it would cost her $60,000, which she paid to him. In the course of her journey to Moscow on that passport she used the name Loren to complete a passenger card. This was an inevitable concomitant of her travelling on the falsely obtained passport in that name. It will be necessary to revert to the passport offence when later assessing Mrs Tarasova’s character.
Cucina Amore
6. I have referred to the Departmental allegation that Mrs Tarasova was working in May 2000 in contravention of her visa conditions. She is alleged to have done so again in late 2001 or early 2002. On this occasion, the business in which she is said to have worked was a restaurant known as Cucina Amore on the Gold Coast. It was a small establishment capable of accommodating about 40 customers with a staff of about four. Her association with it arose from the Tarasovas having lent money to the proprietors of the restaurant, whose name was Nikolic. They were unable to repay the loan, and, in lieu of the money owing, offered to transfer the restaurant to the Tarasovas. I am left with the impression from evidence at the hearing that the restaurant may in some way originally have served as security for the loan. Whether or not that is so, Mr Tarasova evidently washed his hands of the whole business, leaving it to his wife to look after it. He began drinking heavily, which led to deterioration in relations between them.
7. Mrs Tarasova was able to engage the services of Mr Bogoljub (“Bob”) Simic, who is the review applicant in these proceedings, to manage the restaurant, a field in which he is experienced. In the course of time the two of them fell in love. She and Mr Tarasova were divorced, and she married Mr Simic on 23 July 2002 according to the Serbian Orthodox rite. Early in the investigations, a Departmental officer was not persuaded that their relationship was genuine. More recently, however, that opinion has been controverted by another interviewer who saw them both in Cyprus in March 2005. His assessment based on the interview and evidence presented at it was that the relationship was genuine[3]. He was left with “little doubt that they are both in a happy committed relationship”. The genuineness of the marriage is no longer contested.
[3] Exhibit 1: T29 Folio 311-312.
working in the restaurant
8. Reverting to the restaurant, it was sold by Mrs Tarasova late in 2002 or early in 2003, when the couple went to live in Moscow. The Department bases its allegation that, in breach of her visa conditions, she worked in the restaurant upon admissions that she made in the course of an interview conducted on or about 29 April 2003. She told the interviewer that at the restaurant she “used to cook pizzas and sometimes assist in clearing tables”. She was at the restaurant every day “because people steal from you if you are not there”. It is no doubt difficult to believe that she did not lend a hand from time to time, although the evidence is that she had staff there to do the work, and so did not need to do it herself. For reasons somewhat similar to those relevant to her earlier work as a company director in 2000, I am by no means persuaded that what she admitted she was doing amounted to “engaging in an activity that, in Australia, normally attracts remuneration”. A person who works on his own property does not attract remuneration in Australia. He simply works for himself, and is, of course, not paid for doing so. Even if this is too simplistic an approach to the matter, there seems to me to be sufficient ambiguity in the test adopted to make it clearly applicable in circumstances like the present. On any view, it cannot be considered a plain or obvious instance of breaching the visa condition prohibiting work. The comment may be added that the evident purpose of the condition is to preserve employment opportunities in Australia for Australians. The impact, if any, on employment opportunities of working in one’s own business might be thought to be relatively slight.
forged police clearance
9. More serious is the third complaint against the visa applicant Mrs Simic, as she had now become. This is that in the course of applying from Cyprus for a spouse visa at the end of 2002, she provided a forged Russian police clearance certificate. Its falsity was discovered when the Australian Embassy in Moscow arranged to have it examined locally. The visa applicant’s account of it was that she had arranged with a friend in Moscow to obtain the certificate for her, which in due course she lodged in support of her visa application from Cyprus. She says she never knew it was forged.
10. Technically, at common law her offence would amount to uttering (making use of) a forged document; but only if she knew the document was forged when she used it. On her account of it, she does appear to have been more than usually unlucky. Who would want to do this to her? In giving evidence before me by telephone from Cyprus, she became very upset and claimed that her former husband Mr Tarasova was being vindictive towards her. She said he was the “friend” who had been asked to obtain the police clearance certificate for her in Moscow.
11. All this seems rather improbable. It is, however, even more difficult to discern what she would have hoped to gain from providing a forged certificate with her visa application. I say this because when in November 2007 a genuine clearance certificate was obtained from the police in Moscow, it showed that no previous conviction was recorded against her in Russia. The same is true of the comparable police clearances obtained in Australia and Cyprus. One may therefore wonder why she would have been disposed to use a forged certificate on the earlier occasion.
THE LEGISLATIVE FRAMEWORK
12. The relevant legislation is contained primarily in s501 of the Migration Act 1958 (the Act). Section 501(1) authorises the Minister to refuse a visa to a person if that person fails to satisfy the Minister that he or she passes the character test. By s501(6) a person does not pass the character test if:
“(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
The person is not of good character … Otherwise the person passes the character test”.
13. In Goldie v Minister for Migration[4], Spender, Drummond and Mansfield JJ said that the concept of “good character” –
“… 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 that it is for the public good to refuse entry”.
[4] [1999] FCA 1277 at [9].
general character
14. The decision which this application is brought to challenge was made by the Minister’s delegate on 27 March 2007. The decision maker considered, first, that Mrs Simic passed the test laid down by s501(6)(c)(i). While describing her as having been “convicted” on the charge under s10(1)(a) of the Passports Act 1938 (Reasons paras, 4, 14), he noted that on that charge she was discharged “without conviction” in the Magistrate’s Court on 18 September 2002. He went on, however, to find that, on the basis of her past and present general conduct, she did not pass the character test posed by s501(6)(c)(ii), and he refused her application for a visa.
15. There is, as Ms Julian Armitage of Counsel observed, evidently no judicial authority expounding the meaning of present, as distinct from past, general conduct. Presumably, however, it refers to conduct that is currently taking place as opposed to conduct as it has been or was at some time, in the past. The concept of “enduring moral qualities” adopted in Goldie’s case tends to reflect that impression of it.
16. In considering whether the visa applicant passed the general conduct test in s501(6) (c) (ii) the decision makers reviewed her past conduct that amounted to prior infringements of the law. They included specifically –
(1)the offence of falsely obtaining the passport and its use for the purpose of travelling twice in late 2000; and
(2)the lodgement of the false Russian police clearance certificate in connection with her spouse visa application in 2002. In that regard, the decision maker described the certificate as “probably” having been “obtained at her request”. About that there has never been any dispute, the real question being whether Mrs Simic knew when she lodged it with her application that it was forged. On that question there has never been any positive finding against her.
The Minister’s delegate also took account –
(3)of Mrs Simic’s having in early 2002, in breach of the conditions of her visa, “worked” in her restaurant Cucino Amore. It is, however, a matter which, for reasons already explained, I do not find to have been established against her. In addition, the delegate gave consideration.
(4)to her having failed to declare that she had “previously been known as Irina Loren”, or had used this name “through her use of a fraudulently obtained passport in this name”[5]. Whatever precisely is being referred to in this context, it is plainly all part of committing the passport offence in December 2002 and not something that merits separate and additional condemnation or punishment. It would not be so treated by a court for sentencing purposes. In any event, the decision maker himself did not consider it “significant in the overall character assessment”.
[5] Statement of Reasons, Exhibit 1: T2, folio 6 at par 7.
17. When these three or four matters are analysed, it seems to me that only the first and second can properly count against Mrs Simic’s character or credit. They are the matters of –
(1) obtaining and using the passport; and
(2)submitting the false police clearance are serious; but they are the only two of any substance.
18. Her overall conduct does not justify the decision maker’s assertion[6] that “she repeatedly provided false and misleading information”. Saying that “on more than one occasion” she had been prepared to use false documents[7] is literally true but only in the sense that she has done so twice. Nor is it fair comment to describe her[8] as having “a lengthy history of using false or fraudulent documents”. That remains so even if there is added “as well as providing false and misleading information”, the more so as this element was itself assessed as not being “significant” overall.
[6] Statement of Reasons, Exhibit 1: T2, folio 6 at par 7.
[7] Statement of Reasons, Exhibit 1: T2, folio 7 at par 15.
[8] Statement of Reasons, Exhibit 1: T2, folio 8 at par 19.
MINISTERIAL DIRECTION NO 21
19. In assessing the visa applicant’s character in the light of her general conduct, this Tribunal is, like the Minister’s delegate, bound to apply the directions given by the Minister under s499 of the Act. In relation to past and present criminal conduct in s501(6)(c)(i), para 1.8 of Direction No 21 enjoins decision makers to take into consideration:
“(a) the nature, severity and frequency of the offences;
(b) how long ago the offence/s were committed;
(c) the non-citizen’s record since the offence/s were committed…
(d)any mitigating circumstances, such as may be evident from the judge’s comments …”
20. Paragraph 1.10(b) expressly authorises conduct to be considered that has produced an acquittal of a criminal offence, “or where there has been no conviction recorded”.
21. In relation to matters (a) to (d) specified above in this case, it is to be noticed that, as regards frequency, there are at most only two offences of any degree of seriousness (the passports and the police clearance); that they were committed more than five years ago in 2002; that Mrs Simic performed the conditions of her bond; that she has had an unblemished record during and ever since that time; and that the comments of the judge or magistrate specifically accepted as mitigating factors her urgent need to travel to Moscow to see her seriously ill son. The magistrate also took into account the unlikelihood of her re-offending; and her promise and provision of assistance to the Australian Federal Police in relation to “other matters”. Despite para 1.8(d) of Ministerial Direction No 21, the decision maker did not refer at all to the reasons given in the Magistrates Court on 18 September 2002. Perhaps the full transcript of the proceedings in court was not available to him. He made no reference to it.
22. It is not altogether clear to me why, in making his assessment of her character, the Ministerial delegate first concluded that Mrs Simic passed the character test for past and present criminal conduct[9] before proceeding, on the basis of what was essentially the same conduct[10] to find that Mrs Simic failed to pass the general conduct test posed in s501(6)(c)(ii). This surely can be explained only on the footing that in her case no conviction had been obtained here or recorded in respect of it. It is true that the heading to para 1.8 of Direction No 21 refers to “past and present criminal conduct”, but the provision is plainly not confined to criminal conduct or offences that have resulted in a conviction. So much is clear from the references in para 1.10 to “unresolved” charges and to charges where (as here) no conviction has been recorded.
[9] Statement of Reasons, Exhibit 1: T2, Folio 6 at par 8.
[10] Statement of Reasons, Exhibit 1: T2, Folio 7 at pars 12 to 17.
23. The result is that the decision maker appears not to have directed specific attention to matters mentioned in para 1.8, such as the infrequency of the offending, the lapse of time since the offences were committed; the visa applicant’s good record since their commission, and the Magistrate’s comments with respect to matters of mitigation. The decision maker thought that the visa applicant’s reasons for obtaining and using the fraudulent passport did not outweigh the seriousness of her conduct. That is hardly consistent with the Magistrate’s comments, or with the decision to impose nothing more than a two-year good behaviour bond.
PRIMARY CONSIDERATION: RECIDIVISM
24. Having concluded on the basis of Mrs Simic’s past criminal conduct that she passed the character test under s501(6)(c)(i), the decision maker then went on to find on the basis of her general conduct that she did not pass the character test under s501(6)(c)(ii). It then fell to him to determine whether or not to exercise his discretion to grant or refuse the applicant’s visa application. Under Ministerial Direction No 21 the Primary Considerations, so far as relevant here, are stated in para 2.3 to be:
“(a) the protection of the Australian community, and members of the community;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism)”.
25. It may be noted that, for the purposes of s501(6) of the Act, a person does not pass the character test –
“(d)in the event the person were allowed to enter or remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia …”
26. Paragraph 1.12 expressly dictates that for the purposes of the character test, it is not enough to find that a non-citizen has engaged in conduct specified in s501(6)(d) in the past; but rather that:
“decision makers are required to determine whether there is a significant risk that a non-citizen would engage in the specified conduct set out in paragraph 501(6)(d) in the future”.
27. According to para 1.13, the “significant risk” criterion is met if there is “more than a minimal or trivial likelihood” that a non-citizen would engage in conduct which “if proven” would amount to a criminal offence.
28. Under the matters specified in Direction No 21 as affecting the discretion are “the likelihood that the conduct may be repeated including the risk of recidivism”. A non-citizen “with several convictions in Australia” should be considered as having an increased risk of recidivism in light of that past behaviour”. This description plainly does not fit Mrs Simic, who has not had “several” convictions whether inside or outside Australia. Nevertheless, the Minister’s delegate considered[11] that in view of her “lengthy history of using false or fraudulent documents”, as well as “providing false and misleading information to suit her purposes”, there was “a moderate risk of recidivism” should she return to Australia. In the end, however, he summarised it as a “likelihood that the conduct may be repeated”[12].
[11] Statement of Reasons, Exhibit 1: T2, Folio 8 at par 19.
[12] Statement of Reasons, Exhibit 1: T2, Folio 9 at par 36.
29. As previously indicated, I do not consider that the description “a lengthy history” is capable of being supported by reference to two instances constituted by the passport and the police clearance; nor is there any attempt to identify the provision of false and misleading information, whether to suit her own purposes or otherwise. Because of this, I do not consider that the finding of “a moderate risk of recidivism”, or a “likelihood” of the conduct being repeated is capable of being sustained. Experience in the criminal courts suggests that it is seldom possible to predict that someone is more is not likely to re-offend, the more so if there are few instances of specific conduct to their discredit, or it has been committed by a person of mature years and has taken place under the stress of particular circumstances that are not likely to be repeated. Mrs Simic is now 54 years of age and her conduct was not motivated by greed or the hope of any personal financial gain. Indeed, she lost an amount of more than $60,000 of her own money in procuring the passport, which was one reason why the Magistrate refrained from fining her.
30. I therefore do not consider that the risk of her re-offending if she is permitted to return to Australia is capable of being realistically assessed as anything more than slight or even negligible.
primary considerations: protection of australian community
31. The other Primary Consideration, which is the need to protect the Australian community from the activities of foreign criminals, is strongly emphasised in the Ministerial Direction. There must be few who would doubt that it ought to be regarded as a primary consideration in government immigration policy and its administration. At the same time, however, it must be recognised that Mrs Simic’s misconduct inflicted no injury or pecuniary loss on any particular individual or individuals in the Australian community. No one was defrauded in the ordinary sense of that word. Her “victim” was the Department of Immigration and the procedures established to maintain the integrity of the immigration system. Those who work to manage and protect it are naturally sensitive to conduct that threatens its integrity.
32. No one wishes to see the essential safeguards for the immigration system materially weakened or destroyed. But it seems probable that Australia’s immigration policy and the system that underpins it will succeed in surviving what Mrs Simic has done to it. It is true that para 2.6(c) of the Ministerial Direction specifically includes presenting false or forged documents, or making a false or misleading statement in connection with entry into Australia, as “serious crimes against the Migration Act”; but they pale in comparison with the other crimes mentioned in para 2.6. Those include the production, importation and distribution of illicit drugs; organised criminal activity; sexual assaults especially against children; armed robbery and home invasion; murder and other forms of violence against persons; terrorist activity; kidnapping; blackmail; extortion; arson and so on. In assessing the level of risk that Mrs Simic presents to the Australian community, the likelihood of her repeating her conduct is relevant. As already suggested, the risk can be assessed as minimal. It is highly unlikely that she will ever again present forged or false documents to the Immigration Department. One would, in any event, expect that her international movements, if any, will remain a matter of official interest for some time to come. The Australian community appears to be safe enough from any further such misconduct on her part.
OTHER CONSIDERATIONS
33. Other considerations referred to in the Ministerial Direction include, in para 2.17(a), the extent of disruption to family ties to the Australian community; and, in para 2.17(b), genuine marriage to an Australian. It will be recalled that the visa applicant was married to the review applicant Mr Bob Simic on 23 July 2002, and that the Department is satisfied now that the marriage is genuine. Mr Simic was born in what was then Yugoslavia in 1950. He migrated here when he was 20 years old, and is a Australian citizen.
34. His immediate family and all his friends live here. He has a grown-up son and daughter of a former marriage, who were born and raised in Australia, and they have children of their own. They all appear to be members of a close knit family group, who have welcomed Mrs Simic to their ranks. In his telephone evidence at the hearing, the son described her as “a gem” and the daughter was equally supportive. I was favourably impressed by Bob Simic and his friend Michael Johnson, who gave their evidence in person before the Tribunal. Mrs Simic had to give her evidence by telephone link from Cyprus, so I did not have the advantage of seeing her do so. She has been working in the tourist industry among the Russian community in Cyprus, and there are written references from local business and other people who attest to her qualities of honesty, ability and hard work.
35. The exclusion of Mrs Simic from Australia has meant that the couple have had to live elsewhere. They first tried Moscow; but it is an expensive place and, as Mr Simic cannot speak Russian, he was unable to find work or make friends. After some moths, the cold began to affect his health, and they moved on to Limassol in the Turkish part of Cyprus, where Mrs Simic had contacts from her previous stay there. Needless to say, it was a good deal warmer than Moscow, but Mr Simic continues to miss his family and friends here in Australia. There is an opinion from Dr Speed, his medical practitioner on the Gold Coast, that Mr Simic is now suffering from stress and other ailments that have resulted in his becoming diabetic. Of course, he can also obtain medical advice and treatment in Cyprus; but Mr Simic, who is now 57, feels more confidence in the local Australian service and the standards to which he is accustomed here than those in Cyprus.
36. The Ministerial decision maker considered that there was no evidence here that Mr Simic was suffering “severe hardship” or anything more than “disappointment and difficulty”. This, in my respectful opinion, greatly underrates the disadvantages of his present position. As a citizen of this country, he is entitled to expect that he will be able to continue living in Australia, and to do so with his wife, and within reach of his children, his grandchildren and his friends.
37. In Church Property Trustees v Ebbeck[13], Dixon CJ said that the policy of the law is “to preserve and maintain marriage”, while Kitto J[14] in the same case (at 409) recognised “the general principle that the institution of marriage is sacrosanct, and in particular that neither husband nor wife should be given an inducement to divorce or separation.” The same policy or principle is inherent in the International Covenant on Civil and Political Rights, from which extracts are set out in para 2.17 of the Ministerial Direction. To oblige Mr and Mrs Simic either to live abroad, or to live apart, is contrary to that principal and policy. Unless there are other and compelling reasons for doing so, Mr and Mrs Simic should not be required to make that choice.
[13] (1960) 104 CLR 394, 404.
[14] (1960) 104 CLR 394, 409.
38. In para 2.12 of the Ministerial Direction there is a discussion of the Expectations of the Australian community. In the course of it, it is said of the expectation that the Australian law will be obeyed that “where a non-citizen has breached, or where there is a significant risk that they will breach, this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere”, it may be appropriate to refuse a visa application. As is recognised in para 2.12, the question whether such refusal is an appropriate response depends on “the nature of the character concerns or offences”. The expectations of a whole community frequently vary from one individual to another. But it may, with some confidence, be postulated that a majority of individuals in the Australian community would think that the decision refusing Mrs Simic a visa was in all the circumstances unduly censorious of her conduct.
39. The infrequency of her past wrongdoing, the reasons for it, the time that has elapsed since it took place, her subsequent good behaviour, the hardship that will otherwise be inflicted on both Mr Simic and her, as well as the other matters that are mentioned in these reasons, all combine to support the conclusion that the decision on 27 March 2007 given by the Ministers Delegate to refuse to grant her application for a visa should be set aside.
40. The orders will be that:
(1)The decision dated 27 March 2007 of the Minister’s Delegate refusing to grant the applicant Mrs Irina Simic (formerly Tarasova) a visa under the Migration Act 1958 is set aside.
(2)Direct that the application be reconsidered by the Minister or another Delegate in accordance with these reasons.
(3) Remit the matter accordingly.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE Deputy President
Signed: .................[Sgd]..............................................................
Jacqui Woods, AssociateDate/s of Hearing 14 & 15 May 2008
Date of Decision 3 June 2008
Counsel for the Applicant Ms A. Julian-Armitage
Solicitor for the Respondent Clayton Utz
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