Viturije Mujedinovski and Minister for Immigration and Citizenship
[2010] AATA 380
•21 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 380
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3316
GENERAL ADMINISTRATIVE DIVISION ) Re Viturije Mujedinovski Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date21 May 2010
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that under s 501 of the Migration Act 1958 the Minister not refuse Mr Selimi a visa even although he does not pass the character test on the basis of his past and present general conduct.
.......(sgd G L McDonald).........
Deputy President
CATCHWORDS
MIGRATION - Contributory Parent Class CA (Contributory Parent-Migrant) (subclass 143) visa - visa applicant – past and present conduct including sham marriage results in applicant failing the character test – exercise of discretion – immigration offences no longer expressly listed in Ministerial Direction as ‘serious offences’ – unlikelihood of repeat of reprehensible conduct if visa granted – decision set aside.
Migration Act 1958 ss 499, 501, 501(1), 501(6) and 501(6)(d)(i)
Administrative Appeals Tribunal Act 1975 s 37Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 83 ALD 411
Mujedinovski v Minister for Immigration and Citizenship (2009) 112 ALD 10
Mujedinovski and Minister for Immigration and Citizenship [2008] AATA 454Mujedinovski v Minister for Immigration and Citizenship [2009] FCA 199
REASONS FOR DECISION
21 May 2010 Mr G L McDonald, Deputy President 1. This is a rehearing resulting from the remittal after a successful appeal to the Full Court of the Federal Court of Australia[1]. The applicant, who is one of three daughters of the visa applicant, is applying for review of the decision of a delegate of the Minister refusing the grant of a Contributory Parent Class CA (Contributory Parent-Migrant) (subclass 143) visa. The application for the visa includes two secondary applicants, who are the visa applicant’s wife and adult son. The delegate, in a decision notified on 4 July 2007, decided:
(i)that the visa applicant did not pass the character test proved for in s 501(6) of the Migration Act 1958 (the Act), and,
(ii)not to exercise his discretion, the authority for which is found in s 501(1) of the Act, to issue the visa.
[1] Mujedinovski v Minister for Immigration and Citizenship (2009) 112 ALD 10. The applicant sought a review of the delegate’s decision before the Administrative Appeals Tribunal, which affirmed that decision on 2 June 2008 ([2008] AATA 454). She sought a review of this decision by the Federal Court, which dismissed her application ([2009] FCA 199). The applicant appealed this decision to the Full Court of the Federal Court.
2. The Tribunal had before it the documents filed to satisfy the requirements of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), a set of supplementary T documents (the ST documents) and a further set of supplementary T documents (the FST documents). The Tribunal also had a copy of the transcript of the proceedings in the first Tribunal hearing (FST2). Oral evidence was given on behalf of the application by Mr Selimi (by telephone and with the assistance of an interpreter), his daughter Mrs Viturije Mujedinovski, her husband Mr Faruk Mujedinovski, and a granddaughter Ms Ylzima Dzemali. The respondent called no oral evidence.
3. The facts are largely not in dispute. Mr Sadik Selimi, the visa applicant, was born on 26 November 1954, in Macedonia. He is of Albanian descent. On 8 February 1973 he married Neire Telovska. Until he changed his surname to Selimi on 6 April 2001, it was Jakupovski. He and his wife have four children, all of whom are now adults, three daughters and a son. The three daughters now live, with their families, in Victoria, Australia. His son continues to live in Macedonia.
4. On 9 February 1994 Mr Selimi and his wife were divorced. On 17 December Mr Selimi accompanied his daughter, Viturije, (the applicant) to Australia where she was to marry. Mr Selimi entered Australia on a short term visitor’s visa with the anticipation of returning to Macedonia after his daughter’s wedding. On 31 December of the same year, Viturije married Faruk Mujedinovski.
5. Mr Selimi decided to remain in Australia. On 29 January 1995 he married Lea Joanne Flegel. It was sham marriage. Mr Selimi maintained that he was influenced by Mr John Jemal to enter the marriage contract. Ms Flegel stated that the marriage was entered into in order for Mr Selimi to secure permanent residence status in Australia.[2] An application, based on his marriage to Ms Flegel, was made for Mr Selimi to be granted permanent residence on 1 February 1995.[3]
[2] ST documents, S19, pp 130-131.
[3] ST documents, S27, pp 161-183.
6. At an interview held on 26 March 1998, arranged as part of the process associated with assessing Mr Selimi’s application for permanent residency, discrepancies arose between the answers given by him and Ms Flegel. This alerted the Department of Immigration officials that the marriage may be a sham. Departmental officers attended Mr Selimi’s residence for an inspection early in the morning on 25 March 1999. There they found Mr Selimi with his former wife.
7. Mr Selimi in a subsequent interview with departmental officials maintained that his former wife had spent only the preceding night with him and that his marriage to Ms Flegel was genuine and that they had been living together for the past three years.[4] On 2 June 1999 Mr Selimi was advised that the application for the grant of permanent residency had been refused.[5]
[4] ST documents, S18, pp 95-129 at p 103.
[5] ST documents, S37, pp 272-273.
8. On 14 October 1999 Mr Selimi was charged with 10 offences, each one alleging a breach of the provisions of the Act.[6] Aside from the alleged offence relating to the sham marriage, the remaining offences related to him tendering documents to the Department of Immigration which contained false or misleading particulars given in support of establishing that the marriage to Ms Flegel was genuine.
[6] ST documents, S22, pp 138-141.
9. Mr Selimi had told his daughter Viturije and her husband, prior to the hearing before the Dandenong Magistrates’ Court, that his solicitor said that there was no need for them to attend the court with him and that the case concerned his obtaining a visa.
10. Mr Selimi pleaded not guilty to all of the charges. After a three day hearing he was convicted. On 18 December 2000, Mr Selimi was sentenced to a term of imprisonment for two months suspended upon him giving a recognisance of $1000 and undertaking to be of good behaviour for a period of 12 months.[7] At the hearing, Mr Selimi was represented by a solicitor who was able to communicate with him in the Albanian language.
[7] ST documents, S24, p 143.
11. Immediately after the hearing, Mr Selimi was taken into immigration custody. Viturije and her husband were contacted and, after payment of a surety by her husband, Faruk, Mr Selimi was released. Mr Selimi informed Viturije and Faruk that his lawyer had won the case.[8] There is a slight difference between the two statements tendered to the Tribunal from Viturije and Faruk, which the Tribunal accepts amounts to a different recall of the exact words used. An appointment was arranged with Mr Selimi’s solicitor. Viturije and Faruk arranged to attend that appointment with Mr Selimi.
[8] Statement of Viturije Mujedinovski, dated 24 December 2007, para 7; Faruk Mujedinovski, dated 24 December 2007, para 8.
12. According to the evidence of Viturije and Faruk, whose evidence on this point the Tribunal accepts, Mr Selimi did not mention to them he had been convicted of criminal offences and been sentenced. At the meeting Mr Selimi’s solicitor advised him that he could ‘go’ (appeal) to a higher court. Viturije intervened and said that the matter was to end there and that Mr Selimi would return to Macedonia. She told the Tribunal that while she was unaware of what the court proceedings related to, she suspected that they related to her father’s immigration status and she did not want to be involved in any trouble with the authorities.
13. On 20 December 2000 Mr Selimi applied for a protection visa.[9] The reason he expressed in the application was ”…to escape from the persecution and discrimination suffered by me and all other Albanians at the hands of the Serbs”. [10] Faruk helped him complete the application form. The application was rejected on 15 January 2001. Mr Selimi then appealed to the Refugee Review Tribunal. On 27June 2001 the Refugee Review Tribunal affirmed the decision not to accept him as a refugee.
[9] ST documents, S13, pp 53-64.
[10] Ibid at, p 58.
14. On 26 March 2001 Mr Selimi left Australia with his first wife to return to Macedonia. He and his first wife have continued to live in Macedonia.
15. Section 501(1) of the Act provides that a person who does not pass the character test may be refused a visa. Relevantly for this case, the character test is prescribed in s 501(6) as follows:
(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.
To guide decision makers in considering the exercise of powers under s 501 of the Act, the Minister issued Direction No 41 entitled “Visa Refusal and Cancellation under s501” (the Direction) on 3 June 2009. Direction 41 revoked and replaced Direction 21 (the previous Direction), dated 23 August 2001 and is also issued pursuant to s 499 of the Act. Section 499 of the Act binds decision makers, including this Tribunal, to consider the matters addressed in the Direction. The Direction addresses both the application of the character test in s 501(6) of the Act in Part A, and in Part B the matters to be taken into account when the discretion granted in s 501(1) is to be exercised.
16. Relevant to considering Mr Selimi’s past and present conduct is clause 7.3.2 of the Direction. It provides as follows:
(1)In considering whether the person is not of good character on the basis of past and present general conduct, the following factors are to be considered:
(a)whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
(i) involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
(ii) a history of serious breaches of immigration law; or
(iii) involvement in war crimes or crimes against humanity;
(b)whether the person has been removed or deported from Australia or another country and the circumstances that led to the removal/deportation; or
(c)whether the person has been:
(i) dishonourably discharged; or
(ii) discharged prematurely;
from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct, that in Australia would be regarded as serious.
(2)In addition to the above matters, if the person’s conduct is the subject of criminal charges in Australia, which have not been finalised before the relevant court, no decision should be made in respect of the character test until the charges have been resolved.
(3)Where charges have been brought against a person in a jurisdiction other than an Australian jurisdiction, the conduct that is the subject of those charges must be considered in the context of its impact on the person’s character.
(4)General conduct also includes recent good conduct. Any good acts of the person after any reprehensible conduct are indications that the person’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the person’s character.
17. The Tribunal does not consider that there is a significant risk of Mr Selimi engaging in future criminal conduct in Australia.[11] While it is acknowledged that he was convicted of the 10 offences previously mentioned those offences are all associated with his attempts to remain in Australia. There is no evidence that he has committed any other offences. If, in the terms of clause 7.4(2) of the Direction, he was able to secure a visa to remain in Australia, there is no “evidence suggesting that there is more than a minimal or trivial likelihood” that he would be likely to commit any further offences. There is certainly no evidence which suggests that there is, in the terms of clause 7.4(3) of the Direction, ”a significant risk” that he would be likely to commit further immigration or any other offences. This aspect of the Direction does not need further consideration.
[11] Section 501(6)(d)(i)) of the Act and clause 7.4(1) of the Direction.
18. The factors which are to be taken into consideration when considering the exercise of the discretion found in s 501(1) of the Act are divided in the Direction into two parts: primary and other considerations. The primary considerations must be considered and the other considerations are to be considered when they are relevant. The primary considerations are set out in clause 10(1) as follows:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Clause 10.1(2) provides that the factors relevant to assessing the level of risk of harm are the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated. Clause 10.1.1(2) lists a number of offences and conduct which are considered to be serious. The previous Direction listed immigration offences among those considered to be serious. These are no longer included in the Direction.
19. The other considerations to be taken into account when exercising the discretion are found in clause 11(3) of the Direction. Relevant to this matter among the other considerations are:
· family ties;
· the person’s age;
· the person’s health;
· hardship likely to be caused to the person’s family; and
· the person’s level of education.
Submissions
20. It is submitted that Mr Selimi does not pass the character test as the result of his past and present general conduct, because “…of serious breaches of immigration law, including an extended attempt to misrepresent his marital status in order to fraudulently obtain a permanent residence visa”.[12] The respondent maintains that this course of conduct occurred over a five year period. It extends to Mr Selimi maintaining in his current application for a Contributory Parent Class CA visa that he had no criminal convictions, whereas he was convicted in the Dandenong Magistrates’ Court of 10 offences. It is submitted that if Mr Selimi fails the character test, then the discretion should be exercised to refuse the grant of a visa on the basis that he does not satisfy the primary and other considerations relevant to the exercise of the discretion.
[12] Respondent’s Statement of Facts Issues and Contentions, para 41.
21. If Mr Selimi fails the character test then a decision maker can refuse to grant a visa.
22. On behalf of Mr Selimi, it is claimed that his ”…”continuing moral conduct that shows a lack of enduring moral quality” can not be demonstrated”.[13] Reference to the basis for making this submission is quoted from the decision of the Full Federal Court when their Honours said:
“…There is no evidence that, since 2001, Mr Selimi has done anything either illegal or morally blameworthy apart from giving false evidence to the Tribunal. This misdeed was not, however, considered by the Tribunal when it assessed Mr Selimi’s past and present general conduct for the purposes of s 501(6)(c)(ii).” It was later to be brought into account when the Tribunal was deciding how to exercise the discretion conferred on it by s 501(1). The evidence indicates that Mr Selimi has been living in Macedonia on his farm since 2001. There is nothing to indicate that he has there committed any offences or otherwise engaged in any conduct which would impinge adversely upon his eligibility for a visa on character grounds. The Tribunal’s reasons disclose as much. It noted his acknowledgement of past mistakes, but did not think that was sufficient "in the absence of any evidence of rehabilitation or other recent conduct which would suggest that he is at present of good character". It does not say what rehabilitation might have been undertaken. Nor does it indicate what other recent conduct might have been considered as suggestive in the requisite sense of present good character. Mr Selimi is an illiterate farmer who has been farming on his family land. So far as the Tribunal has identified, and so far as the evidence disclosed, he had not engaged in any inappropriate conduct for some seven years at the time of the Tribunal’s decision ...[14]
[13] Applicant’s Statement of Facts and Contentions, para 6.
[14] Mujedinovski v Minister for Immigration and Citizenship (2009) 112 ALD 10 at para 43.
23. Alternatively, it is submitted that if in fact Mr Selimi is found to fail the character test then the discretion found in s 501(1) of the Act should be exercised to grant his visa.
Consideration
24. It is trite, but necessary, to comment that the Tribunal must reach its determination based on the evidence before it. The comments of the Full Court related to the evidence as determined in the first Tribunal hearing. The findings of the first Tribunal and the conclusions reached by the Full Court of the Federal Court based on those findings do not bind this Tribunal, which is rehearing the case and must base its determination on the findings of fact it makes from the material and evidence before it.
Does Mr Selimi pass the character test having regard to his past and present general conduct?
25. The Tribunal is satisfied that Mr Selimi’s past general conduct relating to his attempts to gain a visa to remain in Australia lack the ”…enduring moral qualities reflected in the soundness and reliability in moral judgment in the performance of day-to-day activities…”[15]. The incidents were not isolated ones, but rather a course of illegal and morally reprehensible conduct pursued over a number of years in order to obtain an Australian residence visa. The Tribunal is satisfied that included in this behaviour were:
·entering a false marriage in order to make an application for a spousal visa. The conduct involved an Australian citizen participating in the offence;
·making false statements to the Department of Immigration in an attempt to deceive the Department;
·the Tribunal notes that Mr Selimi has only a basic education and may experience difficulty understanding the legal process. Nevertheless the Tribunal does not accept, since the solicitor who represented Mr Selimi in the Dandenong Magistrates’ Court speaks the same language as Mr Selimi, that he did not understand that he was facing criminal charges. Nor does the Tribunal accept that the outcome was not explained to Mr Selimi There was a three day trial, and it is inconceivable that his solicitor did not explain the nature of the proceedings or that the Court permitted him to enter into a recognisance to be of good behaviour without ensuring he understood what he was signing. That being so, Mr Selimi has repeatedly misled a number of people in his explanation of what he understood. Among those are this Tribunal in his denial that he did not know what happened until Faruk contacted him in 2006, and to his daughter Viturije (and Faruk) in asserting that his appearance in the court related to a visa application when he knew that it related to criminal offences. He continued the deception later when he said to Viturije and her husband that his lawyer had won the case when that was clearly not so.
[15] Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 83 ALD 411 at para 51.
26. Mr Selimi in a statement, prepared for purposes of this hearing, and in his oral evidence, given by telephone from Macedonia, acknowledged that he had made a very big mistake by entering into the fraudulent marriage with Ms Flegel and accepted that he was responsible for undertaking that action. Mr Selimi stated that he did so because he wanted to be able to stay in Australia. However Mr Selimi maintained that his then solicitor told him that the case in the Dandenong Magistrates’ Court was connected with his obtaining a visa. Mr Selimi is unable to recall if there was an interpreter present at the hearing or whether the Magistrate spoke to him in the course of the proceeding. For the reasons stated earlier, the Tribunal is unable to accept that Mr Selimi was unaware of the nature of the proceeding until he was told by Faruk, after Faruk had enquired of the police in 2006 as part of the preparation for the visa which has led to this hearing.
27. Mr Selimi also told the Tribunal that he could not recall applying for refugee status while he was in Australia. The Tribunal accepts that Mr Selimi was unable to read or write English and had no, or a very limited, ability to understand the spoken language. However applying for a protection visa is an important and major step. Mr Selimi replied to several questions in the application to be a refugee, including the reason why he left Macedonia. Mr Selimi wrote in response:
I left Macedonia to escape from the persecution and discrimination suffered by me and all other Albanians at the hands of the Serbs. I wanted to start a new life in Australia in the hope that I could also help my family and myself.[16]
[16] ST documents, S13 pp 53-74 at p 58.
His reply is inconsistent with his testimony that he came to Australia to be with his daughter at her marriage. Further, in the form, which is dated 12 December 2000, he acknowledges his convictions in the Dandenong Magistrates’ Court.[17] This is inconsistent with his testimony to the Tribunal during the hearing that he was unaware of the convictions until Faruk drew his attention to them in 2006. Additionally, the Department of Immigration sent him a letter refusing his application,[18] and the Refugee Review Tribunal sent him a letter advising of its decision not to grant a protection visa plus its reasons for this decision[19]. The number of steps undertaken by Mr Selimi, or on his behalf, combined with the content of the answers provided by him when applying for refugee status leave the Tribunal satisfied that it is unable to accept his current claim of being unable to remember applying for refugee status.
[17] ST documents, S13 pp 53-74 at p 66.
[18] ST documents, S14, pp 76-77.
[19] ST documents, S 17, pp 91-94.
28. The above matters leave the Tribunal satisfied that Mr Selimi’s past and present general conduct result in a finding that he is not of good character.
29. The Tribunal must now consider the exercise of the discretion contained in s 501 of the Act. The deceptive marriage conduct, which Mr Selimi was involved in, is victimless in as far as there was no harm done to any person. It is nevertheless conduct from which the Australian community needs to be protected, as it demonstrates that the perpetrator does not appreciate the importance of the institutions and values which the Australian community has embraced. Marriage is a respected institution which, regardless of whether it involves a religious connotation or is limited to a civil ceremony, has been and continues to be important in the family life of Australians. Entering into a sham marriage in order to try and achieve some ulterior motive is harmful in that it is inconsistent with and repugnant to what is sort to be achieved by marriage. It treats as unimportant something which the Australian society has decided is important: marriage should not be entered into as a means to an end, but an end in itself.
30. Deliberately providing misinformation to immigration authorities by representing a marriage is genuine when it is a sham is also harmful conduct. There is a cost to society to uncover and take action to punish the offenders. Australian citizens may be encouraged to participate in unlawful activity[20]. Meanwhile, such conduct wastes the time of public servants who could otherwise be considering legitimate visa and refugee claims.
[20] In this case, at least, Ms Flegal.
31. However the fact that breaches of immigration laws are not now listed as examples of serious offences in clause 10.1.1 of the Direction requires deliberation by the Tribunal. This removal from that list is indicative that the Minister no longer regards such offences as being significantly worthy of inclusion. The Tribunal is aware that the list is declared to be non-exhaustive, but the exclusion of what was previously included does indicate a lessening in at least the weight which must be accorded to the commission of such offences. In this instance, Mr Selimi’s offences are not now to be regarded as serious enough to conclude, in the terms of clause 10 of the Direction, that there is a risk of harm to the Australian community by granting the visa. Moreover, as was concluded in paragraph 17 (above), there is no evidence to indicate a risk that this impugned conduct may be repeated.
32. There are no other primary considerations relevant to this application, so there remain the other considerations. The reference in clause 10(1)(d)(i) of the Direction to ”the best interests of the child” is limited to those rights described in the Convention on the Rights of the Child, which is limited to circumstances associated with minors[21]. It, therefore, has no application to Mr Selimi’s children, who are all adults. However, clause 10.4.1(2) provides that, the best interests of any child, who is an adult, may be considered under the category of other considerations. Likewise, the interests of the grandchildren can be considered under this category. The Tribunal may consider any benefits that may accrue to Mr Selimi’s grandchildren, all of whom live in Australia, as a result of him being permitted to obtain a visa.
[21] Article 1 of the Convention on the Rights of the Child provides, “[f]or the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.
33. The Tribunal is satisfied that there would be no risk of Mr Selimi’s past impugned conduct being repeated if he was permitted to obtain a Contributory Parent Class CA visa. The only time that he has engaged in unacceptable conduct relates to his attempts to secure permanent residence status. Otherwise, there is no other evidence of aberrant conduct, and the Tribunal accepts that to that extent he must be taken not to have engaged in any such conduct.
34. The Tribunal accepts that Mr Selimi received a limited formal education. This may go some, but not all, of the way to explain the naïve aspects of his conduct in relation to attempting to obtain permanent residence status.
35. The Tribunal also accepts that while he was in Australia between 1994 and 2000, Mr Selimi worked in a market garden. His work was acknowledged by a director of the company operating the garden, who describes him as hard working, thoughtful, experienced, honest, reliable, dedicated, knowledgeable and as gaining the respect of his fellow workers.[22] The Tribunal accepts Mr Selimi paid his taxes during the period he worked in Australia.
[22] ST documents, S16, p 90.
36. It is evident, and the Tribunal accepts, that Mr Selimi has a stable marriage having remarried his first wife. He clearly enjoys a close relationship with the three of his daughters, who all reside in Australia and he has, at least, six grandchildren, all of whom reside in Australia. Mr Selimi and his wife, assisted by their adult son, own and operate a small self sufficient farm in Macedonia. It is the desire of Mr Selimi and his wife to be with their daughters and their families in Australia.
37. A balance must be arrived at in considering the exercise of the discretion found in s 501 of the Act. Mr Selimi has engaged in a determined effort to gain an entry visa to Australia. His conduct clearly indicates that he appreciates the benefits which Australia can offer he and his family. The context in which his past and present conduct has failed him is limited. The Tribunal is satisfied that he presents no threat to the Australian community if he is granted a visa despite the unsatisfactory nature of his past general conduct.
38. Aside from presenting no threat to the Australian community, there are other positive reasons, largely associated with his age, his otherwise unremarkable conduct and his family circumstances, for him to be granted the visa. Usually, as the Direction points out, the other considerations will be accorded less significance than the primary considerations. In this case, the circumstances point to the only relevant primary consideration constituting a relatively weak ground on which to exercise the discretion adversely to Mr Selimi, while the other considerations assume greater importance in the exercise of the discretion. Thus, the significance to be accorded to the latter outweighs the significance to be accorded to the former. The weight of the other considerations favours Mr Selimi not being refused a visa. That being the case, the Tribunal is satisfied that the preferable decision would be for Mr Selimi to be granted the Contributory Parent Class CA visa, even although he does not pass the character test.
39. For the above reasons, the Tribunal sets aside the decision under review and substitutes a decision that under s 501 of the Act the Minister not refuse Mr Selimi a visa even although he does not pass the character test on the basis of his past and present general conduct.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Signed: ..(sgd D De Andrade)..........
Personal AssistantDate/s of Hearing 20 April 2010
Date of Decision 21 May 2010
Counsel for the Applicant Mr J Gibson
Representative for the Applicant Ada FalconSolicitor for the Respondent Mr D Brown,
Australian Government Solicitor
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