Pesochinsky and Minister for Immigration and Multicultural and In digenous Affairs [2003] AATA 1119 (7 November 2003)

Last Updated: 7 November 2003

CATCHWORDS - IMMIGRATION - Spouse visa - character test - false and misleading information - whether of good character - failure to pass character test - whether discretion should be exercised - best interest of the children - deterrence to others - decision affirmed.

Migration Act 1958 ss. 20, 31, 234, 499 and 501

Migration Regulations 1994 cl. 309.225 of Part 309 of Schedule 2

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

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs, AAT Decision 9753, 27 September, 1994

Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137

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

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

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

Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353

DECISION AND REASONS FOR DECISION [2003] AATA 1119

ADMINISTRATIVE APPEALS TRIBUNAL )

) V2002/1389

GENERAL ADMINISTRATIVE DIVISION )

Re ROMAN PESOCHINSKY

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 7 November, 2003

Place: Melbourne

Decision: The Tribunal affirms the decision of the respondent dated 11 November, 2002.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 18 December, 2002, the applicant, Mr Roman Pesochinsky, applied for review of a decision of a delegate of the respondent, the Minister of Immigration and Multicultural and Indigenous Affairs ("the Minister") dated 11 November, 2002. The delegate decided to refuse to grant a visa to Ms Maryna Pavlova on the basis that she did not pass the character test pursuant to s. 501 of the Migration Act 1958 ("the Act") and on the basis that he declined to exercise his discretion under that section. Mr Pesochinsky has sponsored Ms Pavlova's visa application.

2. At the hearing, Mr Pesochinsky was represented by Mr Kissane of counsel and the Minister by his solicitor, Mr Brereton. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. Also admitted on behalf of Mr Pesochinsky were witness statements of Alex Khait, Valery Vornovaty, Albert Murovanchik and Mr Pesochinsky, an Assessment Report by Dr Klaus Serr dated 29 August, 2003, telephone accounts, ten money transfers and 29 photographs. Oral evidence was given by Mr Pesochinsky and Ms Pavlova. Regard was also had to Ms Pavlova's witness statement. No oral evidence was given on behalf of the Minister.

THE ISSUES

3. The first issue is whether Ms Pavlova passes the character test set out in s. 501(6) of the Act. If she does not pass that test, the second issue is whether the discretion in s. 501(2) should be exercised to refuse to grant her the visa for which she has applied.

BACKGROUND

4. A number of factual matters were not in dispute between the parties. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.

5. I find that Mr Pesochinsky was born on 23 January, 1952 in Odessa in the Ukraine. He completed his high school and spent a further eighteen months studying for a Veterinary Science Degree but did not complete it. After completing an apprenticeship as a painter, he worked for six years as a painter in the Ukraine. He married on 11 March, 1971 and he, his wife and his elder son arrived in Australia in 1978. When he had been in Australia for some five years, his father died. Mr Pesochinsky's younger son was born in 1988. His mother and a married sister live in the United States of America. On 23 September, 1981, Mr Pesochinsky became an Australian citizen. Mr Pesochinsky married but was divorced from his first wife on 7 June, 2001. He educated his two sons at private schools. His elder son, who works in information technology in the banking industry, is married and has two daughters. His younger son is completing his secondary education.

6. Mr Pesochinsky is the managing director of Jasper View Pty Ltd, which is a company he established and which is engaged in property development and painting. The turnover of the business is in the order of $500,000.

7. Ms Pavlova was born on 27 August, 1960 in the Ukraine. She was initially employed as an engineer and later as a bookkeeper. Her parents separated and her mother and her step father live in Russia. Her grandmother lives in the Ukraine. Ms Pavlova married Eduard Pavlov on 29 June, 1985. They had one child, Oleksandr Pavlov born on 22 April, 1986, but the marriage ended in divorce on 10 October, 1987. Mr Pavlov subsequently died on 20 October, 1992.

8. Ms Pavlova married Sergey Vynogradov on 23 February, 1991. They too had one child, Nataliya Vynogradova born on 25 August, 1993. The marriage is said to have ended in divorce but this is a matter that I will consider later in these reasons.

9. On 25 March, 1992, Ms Pavlova lodged an application for a Minorities of Former USSR visa (Subclass 210), which was a permanent visa. Her application included her then husband, Sergey Vynogradova and her son, Oleksandr. It was refused on 25 June, 1992 on the basis that her Australian sponsor was ineligible to be a sponsor. On 29 April, 1995, Ms Pavlova lodged a further application for a Subclass 210 Visa in relation to her self, husband, son and daughter. Her application was closed administratively on 30 April, 1997 as the Subclass 210 programme had been capped.

10. On 12 May, 2000, Ms Pavlova lodged an application for a Subclass 676 Short Stay Visitor Visa. She stated that her husband and her children would remain in the Ukraine. The purpose of her visit was to attend the 50^th wedding anniversary celebrations of her aunt and uncle. In answer to question 28 as to whether she had ever had an application for entry to Australia refused, she put a cross in the box marked "No".. Her application was granted on 19 May, 2000 and Ms Pavlova travelled to Australia on 13 June, 2000 and left on 28 August, 2000.

11. On 12 January, 2001, she lodged an application for a Subclass 686 Long Stay Visitor Visa. She stated that her husband and her son would be staying in the Ukraine but that her daughter would be travelling with her. She disclosed her previous application as it had been made within the previous five years. In answer to question 28 as to whether she had ever had an application for entry to Australia refused, she put a cross in the box marked "No". Her application was granted and Ms Pavlova and her daughter arrived in Australia on 1 February, 2001. One of the conditions attached to her visa was that she not apply for a substantive visa while she remained in Australia. This is known as "Condition 8503".

12. Mr Pesochinsky and Ms Pavlova went through a ceremony of marriage on 17 June, 2001. On 9 July, 2001, Ms Pavlova requested that Condition 8503 be waived so that she could lodge an application for a substantive visa following her marriage and while she was in Australia. Her request was refused on 10 July, 2001 and she left Australia on 28 July, 2001.

13. On 5 November, 2001, Ms Pavlova lodged an application that she had signed and dated on 12 October, 2001 for migration to Australia by a partner ("Spouse Visa"). She included her daughter in her application and supported her application with a number of documents including a Certificate of Divorce purporting to state that Ms Pavlova and Mr Vynogradov were divorced on 21 February, 2001. In her application, Ms Pavlova stated that she had been married to Eduard Pavlov and to Sergey Vynogradov. She also stated that both marriages had ended in divorce; that to Eduard Pavlov had ended on 10 October, 1987 and that to Sergey Vynogradov had ended on 12 February, 2001. When asked at question 6 whether she had "... ever been refused an entry permit or visa in Australia", Ms Pavlova ticked the box marked "No" (T documents, page 72).

14. Ms Pavlova was interviewed at the Australian Embassy in Moscow on 18 January, 2002 regarding her application. A handwritten record of the interviewer's questions and Ms Pavlova's answers was kept (T documents, pages 124-155). A note of a telephone message in the DIMIA migration record case dump shows that an officer of the Australian Embassy in Moscow telephoned the Head of the Vinnitea Civil Registry in the Ukraine regarding Ms Pavlova's divorce. She was told that the divorce certificate was issued to her on 12 September, 2001 as that was the date on which the divorce took place and not on 12 February, 2001.

THE EVIDENCE

The relationship between Mr Pesochinsky and Ms Pavlova

15. In a statement dated 16 October, 2001 (T documents, page 106), Mr Pesochinsky said that he met his wife in July, 2000 at a hairdressing salon. He heard her speaking Russian and started to talk to her while they both waited. Mr Pesochinsky discovered that he knew the relatives whom she was visiting. At that time, he liked her but did not take matters any further as she told him that she was married.

16. In January, 2001, Mr Pesochinsky saw one of Ms Pavlova's relatives at a social function. He asked about Ms Pavlova and the relative told him that she was returning for a further visit the following month. The relative also told Mr Pesochinsky that she had a problem in accommodating Ms Pavlova because she had other guests. Mr Pesochinsky offered his spare room and his offer was ultimately accepted. Ms Pavlova and her daughter arrived in Australia on 1 February, 2001 and stayed with him. Mr Pesochinsky said that he and Ms Pavlova spent a lot of time talking together and, within a week, their relationship began.

17. Mr Pesochinsky said that he proposed to Ms Pavlova at the end of April, 2001 and she accepted immediately. As she was already divorced, it was not a problem and they were married on 17 June, 2001. They had a party for 30 people after the marriage ceremony.

18. Mr Pesochinsky said that Ms Pavlova had to leave Australia on 28 July, 2002 because her visa was about to expire. He knew that she was on a visitor's visa and that it was about to expire but had been really sure that she would be staying. He found it hard to be parted from her. Even though he had known her only a short period of time, he felt that she was his world and that he had never known life without her. They decided to meet in Thailand and have a proper honeymoon. They met on 20 September, 2001 and stayed together until 3 October, 2001. Mr Pesochinsky said that he asked Ms Pavlova to take all of her documents to Thailand in order to prepare her application for her and her children to come to Australia.

19. Mr Pesochinsky said in his statement and at the hearing that he has met Ms Pavlova on two occasions since the first. Those meetings took place in May, 2002 and November, 2002 but his business commitments have prevented him from arranging a meeting in Thailand this year. On the last visit, Ms Pavlova was accompanied by her daughter. He speaks with Ms Pavlova almost every day. She lives with her grandmother but occasionally visits her mother in Russia. He also provides her with financial assistance when she asks for it. From September, 2001 until September, 203, he has sent her money transfers for $US600, 1,000, 600, 3,000, 500, 537, 538.60, 500, 1,000 and 600.

20. Ms Pavlova said that she first met Mr Pesochinsky in July, 2000 and then again in February, 2001. Originally, she stayed with her relatives but then Mr Pesochinsky suggested that she and her daughter stay where he was as there was more room. As there was not enough room with her relatives, Ms Pavlova decided to move to his house. Their relationship gradually developed and he proposed to her sometime in April, 2001. She said that she thought that, as she was living in this close relationship and seeing him every day, she had got to know him better and she agreed. She accepted his proposal and they married on 17 June, 2001.

21. Since she has returned to the Ukraine, she said, Mr Pesochinsky has telephoned her nearly every day and he supports her financially.

22. Friends of Mr Pesochinsky have written statements in support. Mr Alex Khait said that he has known Mr Pesochinsky for about ten years and he has often visited his home. After Mr Pesochinsky started to live with Ms Pavlova, Mr Khait said that he noticed how Mr Pesochinsky had changed and the change has continued since they married. Mr Khait said that he sees that they have a warm and genuine relationship. He also said that "Roman and Maryna make a nice couple, they treat each other with love, warmth and respect. I particularly like seeing how Roman treated Maryna's daughter Nataliya." (Exhibit A)

23. Mr Valery Vornovaty stated that he has known Mr Pesochinsky for about 20 years and has often visited his home. After he was introduced to Ms Pavlova, Mr Vornovaty said that they often met together for dinner at Mr Pesochinsky's home. Mr Pesochinsky and Ms Pavlova often visited Mr Vornovaty at his home. Mr Vornovaty said that:

"Their closeness and mutual affection was refreshing. They get married in June 2001 and I undoubtedly believe that they will remain so.

I have observed the devotion and warmth that these two people share between themselves and believe it is unquestionable. They are a loving couple that express tenderness to each other at all times. Until Maryna left Australia they were always together and it was very easy for an outsider to see the attentiveness they showed to each other." (Exhibit B)

24. Mr Albert Murovanchik has known Mr Pesochinsky for 15 years and have been good friends for the whole time. He first met Ms Pavlova in March, 2001 and has met them regularly since then and especially at weekends. Mr Murovanchik said in his statement:

"Roman and Marina's relationship is definitely genuine and continuing because they have lived together as a married couple since June 2001 and, during the time Maryna was in Australia, they were always together at any occasion. I believe that they have a very strong and happy relationship. When I heard them talking together their major topic of conversation was about their future plans and the dreams that they wish to achieve for their future life." (Exhibit C)

The divorce of Ms Pavlova and Mr Vynogradov

25. The English translation of the certificate lodged in support of Ms Pavlova's application for a Spouse Visa stated that the marriage between Sergiy Ivanovich Vynogradov and Maryna Gennadyevna Pavlova had been dissolved and was recorded in the Divorce Register on 12 February, 2001. The certificate was said to have been issued to Ms Pavlova on 12 February, 2001 (T documents, page 112).

26. On 20 August, 2002, officials of the Australian Embassy in Moscow contacted the Civil Registry in Vinnitsa in the Ukraine regarding the divorce certificate. It was advised that the divorce certificate had been issued to Ms Pavlova in person on 12 September, 2001 and that 12 September, 2001 was also the date of effect of the divorce. Ms Pavlova had also obtained an extract of the certificate in 2002.

27. The Australian Embassy wrote to Ms Pavlova on 21 August, 2002 advising her that the Minister would, in considering her application, take into account:

"  the provision of false and misleading information to Immigration officers at an interview on 28/01/2002 concerning your subclass 309 visa application, during which you stated, among other things, that you divorced your second husband in January 2001;

  the provision of false and misleading information in Form 47SP in relation to an application for a Spouse visa (subclass 309), signed and dated 12/10/2001, in which you stated that your relationship with your second husband ended in divorce on 12/02/2001;

  the provision of a fraudulent divorce certificate dated 12/02/2001 in support of your subclass 309 visa application (Certificate No. 073185, Entry No. 1185); and

  that you were not legally free to marry when you married the sponsor of your visa application, Mr Roman Pesonchinsky, on 17 June 2001." (T documents, pages 156-157)

28. Ms Pavlova's response to the letter was made through her migration agent who had spoken to Mr Pesochinsky who, in turn, had spoken with her. The migration agent explained the situation in the following terms:

"Since receiving your email dated 09/09/2002 advising me that Vinnitsa Civil Registry had confirmed that the divorce certificate is fraudulent, Mrs Pavlova went there and looked into the whole situation because as far as she was concerned and aware her divorce was issued on the 12/02/2001. What she discovered is as follows:

She produced her passport to them and they checked there files and told her that her divorce was granted on the 12/09/2001. She then showed them the copy of the divorce certificate that she had with the date of 12/02/2001 and they told her that it was not a true copy of the original.

In January 2001 our client signed the application for divorce which was given to her husband to submit as she was going to be in Australia in early February 2001 and asked that he send her divorce certificate to Australia as soon as he received it.

At around March 2001 our client received by mail a copy of what she believed was her divorce certificate. On the 17/06/2001 she was married to Mr Pesochinsky in Melbourne Australia.

Our client had no knowledge that her divorce was not finalized and she truly and honestly believed that she was divorced.

Between the 20/09/2001 & the 03/10/2001 even before our client lodged her application to DIMA Moscow she met her husband Mr Pesochinsky in Thailand for their honeymoon. Had they known that the she was not divorced on 12/February/2001 and only divorced on 12/September/2001 they could have re-married in Thailand at that time." (T documents, page 162-163)

29. Mr Pesochinsky said that, when he proposed to her in April, 2001, he believed that Ms Pavlova was divorced. She had arranged through her friend, Ira Dmitrenko, for her former husband to send her divorce certificate to her. He said in cross-examination that he saw the certificate and that he had given it to the marriage celebrant. The marriage celebrant told him that he had sent the divorce certificate to the Department but, when he went to get the marriage certificate, Mr Pesochinsky said that he was told that no documents had been lodged. There is no record of their having married. After her return to the Ukraine, he said in his statement, he "... discovered that her former husband had provided a false divorce certificate" (Exhibit H, paragraph 8). Mr Pesochinsky said that he told her that she should obtain proper divorce papers and he understood that she did this and that the divorce was properly granted on 12 September, 2001. In cross-examination, Mr Pesochinsky denied that Ms Pavlova was desperate to come to Australia. She had returned to the Ukraine and found that she was not divorced as she had thought.

30. When they met in Thailand, Ms Pavlova had the divorce certificate with her. She changed the date of the divorce from 12 September, 2001 to 12 February, 2001. He knew that she had done that so that she could come to Australia quickly. He was missing her terribly. Neither of them spoke to anyone at the Australian Embassy. He said that he had only wanted to speed the matter up and had not realised that it was such a big matter. A piece of paper means nothing against a genuine relationship. When asked whether this meant that he would breach Australia's laws, Mr Pesochinsky replied, "Not really." He agreed that he would not proceed with a property development without appropriate approval but said that a property development and the situation with regard to the application were not the same thing.

31. Ms Pavlova said that she had not been living with her husband for five years when she met Mr Pesochinsky. She thought that she was officially divorced from him and asked a girlfriend Ira Dmitrenko to send them. Ms Dmitrenko did send the papers but they turned out to be the wrong papers. Ms Pavlova said that she found out that they were the wrong papers about a month after she returned to the Ukraine from Australia.

32. In cross-examination, she said that she had asked her ex-husband to obtain the certificate. There had been a court hearing in January, 2001 and she had asked him to get the certificate. The divorce was not granted until the certificate was obtained.

33. Also in cross-examination, Ms Pavlova said that she had not thought about her visa's expiring when she was about to marry.. She did not think about it at all and Mr Pesochinsky had no intention of letting her go back to the Ukraine at all. She had gone to the Department when a friend told her that she would have to go back and be sponsored and she did not want to be separated.

34. She did not know that her papers were wrong when she married but agreed that the divorce certificate she presented at the time had to be a false document in its entirety as the divorce was not granted until September, 2001. She said that she had told her friend to ask her former husband for the certificate. Ms Pavlova said that she did not ask him herself as they were not on very good terms. Ms Pavlova said that she did not know whether Sergey Vynogradov had re-married. She denied that she asked her friend to create a false divorce certificate. What she had asked her to do was to get the certificate for a divorce that had already happened. When asked whether she was able to give any reason why her former husband would go to the trouble of sending a false document, she replied that she could. They were on very bad terms and that might be why he would go to that trouble.

35. When she found out what had happened, Ms Pavlova said in giving her evidence, she told Mr Pesochinsky about it. She said that she asked for his advice and whether they should marry again. They decided, she said, to change the date of the divorce to 12 February, 2001. If they had not done that, they would have to wait a longer period for her visa. She now thinks that it was stupid to change the certificate.

36. In cross-examination, she said that she did not think that it was so serious. She had taken the relevant papers to Thailand in September, 2001 so that she could make her application. Ms Pavlova did not speak to anyone at the Australian Embassy as Mr Pesochinsky suggested that it would be better to leave the divorce date as it was the date that had been used when they married in Australia i.e. 12 February, 2001. They thought that if they changed the date, her application would be delayed. She did not raise the matter of the married-divorce date at the interview with the Australian Embassy in Moscow.

37. In that interview, the following questions and answers are recorded regarding Ms Pavlova's second trip to Australia and her divorce:

"Q. Who paid for your trip?

Myself

Q. Did your husband object?

Yes, he objected - he didn't want me to go. At that time we were planning to divorce.

Q. Were you living together?

Yes.

Q. So you continued to live together but you applied for a divorce?

We already had divorce. We already had a court decision but we didn't take it.

Q. What was the sense of this divorce?

- We continued to live together. We would have a scandal one day and the next day ...

Q. Any other reasons? Why continue to live together after divorce. No sense to divorce if you lived together?

- We lived together. I was planning to go for 06M, I thought after I come back we may reconcile ...

Q. What was sense of getting court decision if not sure?

I made a mistake, I had to divorce him on the second day after marrying him??

Q. We get court decision?

In January.

Q. Date?

I think 10 Jan 2001.

Q. Was it before you lodged 2nd appl- or after?

- I don't remember. B/c we were not officially divorced. I wrote I was still married.

Q. Did you get this court decision before you lodged appl- or v/v or after?

I think before.

Q. Do you know how long before?

At the same time." (T documents, pages 138-139)

Previous applications

38. At the interview, Ms Pavlova agreed, she was asked whether she had ever applied for migration to Australia, she replied:

" No. Ten years ago, first time, when my relatives asked, they sent documents. When Maria was here.

Q. What happened to this appl-?

I think it was refused but I was not really interested at that time, I was pregnant.

Q. Did you lodge another application after that?

- No.

Q. We have record that you lodged another appl- and you included your husband & two children.

I lodged through Cooperman, API.

Q. So you were still interested: migration to A/A. It contradicts what you said earlier? Why conceal this? Comments?

I thought I better not tell you about this, I don't know.

Q. Anything else you want to say or explain its your last opportunity?

What can I say? I don't know what to say, he sends money, we had such a beautiful wedding.

Q. Its in your own interests to be honest and open about everything?

- When applied for a v/v I was told not to tell about migration applications. So it looks like I provided misleading info.

Q. Who told you not to put this info?

Kyiv consulate. There was a question about previous applications. B/c I've done it once I thought I had to be consistent.

Q. Anything else you've lied consistently about?

No, only about migration applications." (T documents, pages 150-151)

39. In cross-examination, Ms Pavlova said that she had not admitted that she had made previous applications as she had been in a bit of a state and in such a state that she could not answer the questions. She had thought that they were asking about applications within the previous five years. One of her acquaintances had told her that there was no need to mention applications more than five years old.

The future

40. Mr Pesochinsky said that he has built up his business over the last twenty to twenty five years and it is a business based on personal contacts. He could not re-locate it to the Ukraine and would not be able to work there. His two sons and his two grandchildren live in Australia and he has made his life here, he said. His younger son, who is 18 years of age, wants to work with him but it will be ten years or so before his son will be able to step into his shoes. At the moment, he could only leave him to manage the business for a very short time.

41. Ms Pavlova said that she wants to be with her husband. Already, they have paid for their mistakes and they want to do everything in the proper way.

42. Mr Pesochinsky said that he finds it very difficult to live alone and had explained how difficult it is to Dr Serr, whose qualifications are given as BA(Hons), BSW, PhD, MAASW (Acc).

43. Dr Serr interviewed Mr Pesochinsky on 1 July, 2003 after being asked to report on whether Mr Pesochinsky would suffer any adverse effects if Ms Pavlova's application were refused. Mr Pesochinsky told him that his wedding to Ms Pavlova had been a very happy occasion. Although he only spent six months with her and her daughter, he formed a close relationship with both of them. He feels that Nataliya, referred to by Dr Serr as Natasha, is his own daughter and cares very much for her welfare. Mr Pesochinsky acknowledged to him that the divorce certificate had been falsified. Dr Serr reported that Mr Pesochinsky had said to him:

"... once it was discovered that Marina's divorce certificate was not legitimate the situation became very embarrassing for everyone. Mr Pesochinsky still feels ashamed now when meeting his friends who constantly ask him `when is Marina coming back?'.. As a result, he has began to avoid people and stated that he feels increasingly isolated from his friends. Mr Pesochinsky also reported that since Marina is gone he has lost interest in meeting people, often being depressed about the situation. He indicated that keeping friendships going at the moment is hard under the circumstances.

Mr Pesochinsky stated that for some time now he finds it difficult to sleep and concentrate on his work. In particular he reported that:

  He misses Marina and Natasha very much and finds it difficult to get through the day without being able to be with them. He especially misses the emotional/psychological comfort the relationship with Marina had providing him

  He often has sleepless nights because he worries about the living condition and safety of Marina and Natasha as well as her son Alex whom he has not met so far. They are said to live in the Ukraine in a one-bed-room apartment with her grandmother, under difficult circumstances

  As he has to get-up early in the morning and often leave home before 7am, he frequently has difficulties attending to his business because of the lack of sleep and stress associated with his situation. Being a small property developer he depends on fulfilling his contractual arrangements with other firms as well as being able to tender/look for new work opportunities. This also involves making contact with many businesses, having to make a good impression in order to get work. However, being tired and depressed makes this task progressively difficult and his business activities are said to have suffered. It is increasingly difficult to do justice to work requirements and managing the business effectively

  Stress and feelings of depression are said to have effected Mr Pesochinsky's state of physical and mental health, where he finds it hard to stay alert and interested in his life around him

  While he rings Marina three/four times per week to feel close to her, each time he feels more hopeless and powerless to be able change their situation. He feels increasingly trapped into this situation and does not know how to escape it

...

Mr Pesochinsky reported that he misses the intimate human contact and close bond which existed between himself and Marina. Finding it difficult to cope with this situation, he reported frustration and anxiety in relation to issues of sexuality.

Mr Pesochinsky therefore stated that:

  He finds it increasingly difficult to live without his wife

  Misses the physical and sexual relationship with her

  As he considers himself married to Marina he refuses to have a relationship with another woman

  His sexual/physical needs are not met and he is being deprived of having a fulfilled life" (Exhibit D, pages 2-3)

44. Dr Serr concluded:

"Based on the information provided by Mr Pesochinsky, he considers himself married to Marina and is waiting to be re-united with her. There is some evidence to suggest that his current situation has created a stressful situation for him where:

  He is suffering emotionally and psychologically, having to live separately from Marina

  His physical and sexual needs are not met leading to an increasing level of frustration

  The longer this situation continues the more Mr Pesochinsky may feel depressed and disturbed by his circumstances. This in turn may well result in a degeneration of his general state of health in due course

  He finds it increasingly difficult to concentrate on his business commitments and may become socially isolated as a result of experienced grief

From this assessment it also seems clear that Mr Pesochinsky has little opportunities in the Ukraine to re-establish himself and would not be able to support a family there. All his connections have been built-up in Australia over an extended period and he is needed here by his children and grandchildren.

For these reasons a re-unification between Mr Pesochinsky and Marina seems more appropriate undertaken in Australia." (Exhibit D)

CONSIDERATION

Framework of Act

45. Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 ("the Regulations") (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Spouse Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 as specified by cl. 309.225 of Part 309 of Schedule 2 of the Regulations.

46. At the time that the delegate's decision was made and of this review, criterion 4001 provided that:

"Either:

(a) the applicant satisfies the Minister that the applicant passes the character test; or

(b) the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or

(c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass 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."

47. Section 501(2) of the Act provides that:

"The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test."

48. The "character test" is set out in s. 501(6), which, in so far as it is relevant, provides that:

"For the purposes of this section, a person does not pass the character test if:

(a) ...;

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or in involved in criminal conduct; or

(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; or

(d) ...

Otherwise, the person passes the character test."

The Direction

49. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction - Visa Refusal and Cancellation under section 501 - No.21 ("the Direction").

50. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.

... When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

51. The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community."

The Direction - application of the character test

52. The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant. Of them, the Minister stated in the Direction:

"1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is `not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct."

53. In considering whether a person is not of good character when measured against s. 501(6)(c)(i), the Minister directs decision-makers to take the following into consideration:

"(a) the nature, severity and frequency of the offence/s;

(b) how long ago the offence/s were committed;

(c) the non-citizen's record since the offence/s were committed, including:

  any evidence of recidivism or continuing association with criminals;

  a pattern of similar offences; and/or

  pattern of continued or blatant disregard/contempt for the law; and

(d) any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents." (paragraph 1.8)

54. With regard to s. 501(6)(c)(ii), the Minister directed, in so far as it is relevant to the circumstances of Ms Pavlova's case:

"1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

  engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;

  continual evasion or non-payment of debt;

  continual disregard as to payments of family maintenance;

  involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, `white collar' crime, fraud, breaches of immigration law; or

  involvement in war crimes or crimes against humanity.

(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;

(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:

(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):

  whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or

  the seriousness of the offence which the applicant has been charged; or

(b) resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)."

The authorities regarding "good character"

55. In this case, the focus is upon any criminal conduct in which Ms Pavlova may have engaged as set out in s. 501(6)(c)(i) and upon her past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression "good character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:

"´Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

The Macquarie Dictionary defines character as `1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)

56. After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:

"These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)

57. A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:

"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (page 781)

58. What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:

"Unless the terms of the Act and regulations require some other meaning be applied, the words `good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion ...

...

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)

59. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:

"... does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of `good character' in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

... Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the Tribunal's decision on this ground, so it is unnecessary to pursue this question." (pages 324 and 327)

Does Ms Pavlova pass the character test?

60. There are a number of matters that must be considered before I can answer this question. I will start with the marriage ceremony that Mr Pesochinsky and Ms Pavlova went through on 17 June, 2001. Having listened to, read and looked at all of the evidence, I have no doubt that Mr Pesochinsky genuinely loves and cares for Ms Pavlova and her daughter. He sees his life with her as meeting every expectation that he has of married life and he is happy and fulfilled with her.

61. What of Ms Pavlova? As she described her response to his marriage proposal, I find that her approach to the marriage was a little more clinical. She had got to know him better, she said, because of their having lived in a close relationship. Of itself, an approach that is a little more clinical does not mean that a commitment is not genuine. It was, after all, Ms Pavlova's third marriage and a practical approach would not be unexpected.

62. A more important matter to consider is whether she was divorced and whether she knew that the divorce certificate that she presented to the marriage celebrant was false or whether she thought that it was genuine. At the interview held on 18 January, 2002, Ms Pavlova said that she and her then husband Sergey Vynogradov were still living together when she applied for a visa in January, 2001 but she thought that they had obtained a divorce by then. If she thought that she had obtained a divorce by then, it means that she falsely stated that she was married when she applied for that visa. Her statement in her oral evidence that she and her former husband had not been living together for five years would be consistent with the reference in her application to her husband if they were not divorced. It was not consistent with her statement at the interview that they were still living together in January, 2001.

63. Ms Pavlova said that she had asked her friend to ask her former husband to get the divorce certificate for her. It is not apparent from the evidence when she asked her friend to get it i.e. whether she asked for it before or after Mr Pesochinsky asked her to marry him. I can make no finding regarding that matter. What I do find, though, is that Ms Pavlova knew that the divorce certificate she gave to the marriage celebrant was false. Her inconsistent stories lead me to conclude that what she said in her application was the truth. That was that she had a husband. On balance, I also find that she was living with her husband at the time that she left the Ukraine in February, 2001 as that makes greater sense when read with her application form. I do not accept that she had not lived with him for five years when she married Mr Pesochinsky and I do not accept that she had obtained a divorce from Mr Vynogradov in January, 2001. I am satisfied that she knew that she was not divorced when she met Mr Pesochinsky again in February, 2001 and knew that she had not been through a court proceeding in January, 2001. It follows that she knew that the divorce certificate that was sent to her by her friend had to be false, as indeed it was.

64. The reasons why it would appear that the documents recording the marriage of Mr Pesochinsky and Ms Pavlova have not been lodged with, presumably, the Registrar of Births, Deaths and Marriages are a matter for conjecture. It was a matter that was not followed through at the hearing. Whatever the reasons, I am satisfied on the evidence that I have that Mr Pesochinsky believed that he was going through a genuine marriage ceremony. He has shown it both in his emotional response to Ms Pavlova and also in the substantial amount of money that he has already sent to her in the Ukraine and the holidays he has taken her on in Thailand.

65. I find that Ms Pavlova did not truthfully answer the questions of the officers at the Australian Embassy when they asked her whether she had ever applied to migrate to Australia. At first she said no but did immediately correct that answer. That was not a misstatement in itself but the misstatement occurred when she referred to only one application. Her not mentioning that application could have perhaps been explained by her having forgotten it but, instead, she chose instead to say that she was in a state and thought that she was being asked about applications in the previous five years. It is certainly the case that the application form for a visitor's visa asks about applications made in the previous five years but the question in the interview made no such reference to applications within a time limit. The application form for a visitor's visa also asked whether Ms Pavlova had ever had an application for entry to Australia refused. She answered in the negative and so made no reference to her applications in 1992 and so denied her two earlier applications for Subclass 210 Visas.

66. These matters make me query whether Ms Pavlova went through the marriage ceremony with Mr Pesochinsky with the same open heart that he had. They make me query whether she intends to stay with him despite the fact that I find that she has given him and his friends every appearance of being happy and that she appears happy in the photographs. I have not taken this aspect beyond querying the matters but I am not prepared to find that their union, when viewed from both sides, is genuine in the sense of both parties' intending it to last into the indefinite future and not merely so long as it suits the purposes of one or other of the parties. At the same time, I am not prepared to find that it is not a genuine union.

67. Whether a genuine union or not, I am satisfied that Ms Pavlova knew that the divorce certificate and the information she gave in her application for a Spouse Visa were false. She had falsified the marriage certificate. In doing so, she has contravened s. 234(1) of the Act which provides that:

"A person shall not, in connexion with ... an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a) ...

(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or

(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular."

She persisted in her misstatement about when she was divorced even when she was interviewed and asked whether she had lied consistently about anything other than her migration applications. Earlier, she had chosen not to approach the Australian Embassy to acknowledge what she had done.

68. Having regard to these matters and the evidence as a whole, I am satisfied that Ms Pavlova has engaged in a course of conduct that has shown her to be a person who disregards the laws of the country in which she would wish to live if it suits her own needs. Even at the hearing, it was not clear what Ms Pavlova now stated to be the true situation. She has made Mr Pesochinsky a very happy man but her doing so for an individual member of the Australian community does not outweigh the disregard that she has shown for Australia's migration laws. Her disregard is considered to be a serious matter for it jeopardises the fair and consistent administration of Australia's migration laws. It is too early to say that Ms Pavlova has changed her ways and to assess the likelihood of her repeating them in the same or other contexts should it suit her interests. I am not satisfied that Ms Pavlova passes the character test.

The Direction - exercise of the discretion

69. Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed that they:

"... 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." (Direction, paragraph 2.2)

70. The three primary considerations are:

"(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 relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children." (Direction, paragraph 2.3)

71. The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Ms Pavlova's conduct; the likelihood that she will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

72. Of particular significance in relation to the seriousness and nature of Ms Pavlova's conduct, I must have regard to the Direction that:

"It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:

...

(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using a possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

..." (Direction, paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Ms Pavlova as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that her conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Ms Pavlova's case, it is relevant to have regard to:

"the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make." (Direction, paragraph 2.10(c))

73. General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).

74. Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. 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 the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. ..." (Direction, paragraph 2.12)

75. The third primary consideration relates to the best interests of a child. The matters to which the Minister has directed a decision-maker's attention in considering the best interests of the child are:

"(a) the nature of the relationship between the child and the non-citizen;

(b) the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c) the age of the child;

(d) whether the child is an Australian citizen or permanent resident;

(e) the likely effect that any separation from the non-citizen would have on the child;

(f) the impact of the non-citizen's prior conduct on the child;

(g) the time (if any) that the child has spent in Australia;

(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances." (Direction, paragraph 2.16)

76. The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:

"32 An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan's children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan's children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations." (page 142)

77. In looking at the best interests of the child, regard must also be had to the High Court's judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353. (Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child ("the Convention") in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:

"Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. ...

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. ...

4. ...

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities ...

3. ..."

78. The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:

"No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason - legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as `a primary consideration'.. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it." (page 365)

79. Before returning to that, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:

"(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

(b) ...

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d) family composition of the non-citizen's family, both in Australia and overseas;

(e) ...

(f) ...

(g) ...

(h) any evidence of rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent visa;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k) ..." (Direction, paragraph, 2.17)

Should Ms Pavlova not be refused a visa on the basis of her not passing the character test?

80. As I have found, Ms Pavlova knew that she was not divorced when she went through the ceremony of marriage with Mr Pesochinsky. This led her to provide a false divorce certificate to enable her to go through the ceremony. She then maintained the false statement through her application for a Spouse Visa but not only maintained it but also altered a genuine divorce certificate so that it was consistent with her position. She maintained the misstatement despite being given the clear opportunity at the interview at the Australian Embassy to tell all. At that interview, she made a further misstatement regarding her previous application for migration.

81. It seems to me that this is a gravely serious matter. Ms Pavlova has shown a disregard for Australia's migration laws not only in one misstatement that she has carried through but in the creation or falsification of documents to support her misstatement. She has also shown a disregard for its marriage laws in providing a false document to support her false claim that she was divorced. She is an educated person and I am satisfied that she knew what she was doing and engaged in a course of conduct in order to pursue her own interests in being able to come to Australia. The fair and efficient administration of Australia's migration laws depends in large measure upon the honesty of those seeking to take advantage of them for it is impossible to check every statement made in every application. To answer questions falsely and to provide false documents is to undermine the integrity of the system.

82. Given the multiple strands to Ms Pavlova's misstatements, it is too early to find that she will not repeat her conduct were she permitted to come to Australia. She has already shown that she is prepared to disregard two of its laws and whether or not she would be prepared to disregard others must remain a matter of conjecture until some time has passed and she shows that she is prepared to put abiding by the law above her own interests.

83. On the evidence that I have, I am satisfied that the outcome of Ms Pavlova's application for a Spouse Visa will become known to people in Mr Pesochinsky's circle of friends. I am unable to make any finding as to whether it would become known to anybody outside Ms Pavlova's family in the Ukraine. Whether a refusal of her application would have any effect in discouraging similar conduct depends upon whether that refusal is likely to become known to people who might engage in such conduct. Without any greater evidence as to the breadth of the likely circulation of the news of any such refusal, I am unable to make any finding as to whether or not refusal would prevent or discourage people from knowingly making false statements and falsifying documents in support of their applications.

84. The evidence regarding Ms Pavlova's children is sketchy. Her son is aged 17 and her daughter 10 years of age. Both children were included in her application for a Spouse Visa. There is a statement included in the documents relating to Nataliya. It is said to have been signed by Sergiv Ivanovych Vynogradov and states that he gives his permission for his daughter to leave the Ukraine to take up permanent residence in Australia. I have not found a similar document for Oleksandr although he too is under 18 years of age. I accept that Mr Pesochinsky is very fond of Nataliya and would treat her as his own. I also accept that, all things being equal, daughters benefit from being with their mothers but they also benefit from being with their fathers. It is one thing for Nataliya's father to give his permission for her to make her home with her mother but what of Nataliya and Oleksandr's best interests? Is it in their interests to leave the Ukraine? Would that be in their best interests for their education and for their general development? Do they have regular contact with their fathers and extended family as well as with each other and, if so, would it be in their best interests to be unable to have that contact or only able to have it to a lesser degree? These are examples of the questions on which I have no evidence. Although those of us who live in Australia may well think that it is the best place in which to live, it would be presumptuous to think that it is in everybody's best interests to live here. What is in the best interests of one person may not be in the best interests of another.

85. I do accept that it is in Mr Pesochinsky's best interests to remain in Australia. He has worked hard since he came to Australia and has developed a viable business that has seen him support his family and set his children on a solid path for their future. His elder son is developing a career in another field and his younger son is far too young and inexperienced to take over the responsibility of the business. He has grandchildren, whom he cares deeply for, and has built his life in Australia. I am satisfied that Mr Pesochinsky would find it very difficult to live in the Ukraine where he would have grave difficulty in starting a business and where he would be separated from his family apart from Ms Pavlova and her children.

86. If Ms Pavlova is not permitted to come to Australia, she will not be able to live with Mr Pesochinsky. This will certainly cause Mr Pesochinsky great distress for I am satisfied that he truly loves her. I am satisfied that he is lonely and missing her very much. At the same time, Mr Pesochinsky has played a part in Ms Pavlova's presenting herself as a person who was divorced on 12 February, 2001. I have no reason to believe that he is normally otherwise than a law abiding member of the Australian community and who is a man familiar with the need to follow rules and regulations. Compliance with rules and regulations is a necessary consideration in the building industry. Yet, despite that, he became a party to altering a divorce certificate or at least knowingly sponsoring Ms Pavlova's application when he knew that she was relying on a fraudulent document. He must have done so to suit his own purposes and they were to have her at his side as quickly as possible. Indeed, Mr Pesochinsky saw the alteration of the divorce certificate as simply expediting the application. He did not see it in the context of his obligations to obey Australia's laws and does not seem to have seen it as the serious matter that it is.

87. On balance, I have decided that the Australian community would consider that it is too early to consider granting Ms Pavlova a visa. Both she and Mr Pesochinsky continue to put their relationship ahead of all other interests. As wonderful as it is to see two people finding happiness in each other, the protection of the Australian community is also relevant. Its protection requires that its laws will be obeyed and it is far too early to find that Ms Pavlova is a person who will do that. On this occasion, I consider that the protection of the Australian community outweighs those considerations in support of her being granted a visa. Therefore, I do consider that the discretion should not be exercised in her favour. She should be refused a visa on the basis that she does not pass the character test in s. 501 of the Act.

88. For the reasons I have given, I affirm the decision of the respondent dated 11 November, 2002.

I certify that the eighty-eight preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie

Signed: ................................................................

P. Paczkowski Associate

Date/s of Hearing 22 and 25 September, 2003

Date of Decision 7 November, 2003

Counsel for the Applicant Mr B. Kissane

For the Applicant Australian Migration Program & Investments

Solicitor for the Respondent Mr M. Brereton,

Australian Government Solicitor