Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149

FEDERAL COURT OF AUSTRALIA

Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149

VITURYE MUJEDENOVSKI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL

VID 217 of 2009

RYAN, MANSFIELD & TRACEY JJ

23 october 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 217 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VITURYE MUJEDENOVSKI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES: RYAN, MANSFIELD & TRACEY JJ

DATE OF ORDER: 23 OCTOBER 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed. 2. The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law. 3. The first respondent pay to the appellant her costs of the appeal and of the application at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION VID 217 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VITURYE MUJEDENOVSKI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES: RYAN, MANSFIELD & TRACEY JJ

DATE: 23 october 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT

THE COURT: 1 This appeal is from orders of a Judge of the Court dismissing an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister to refuse a contributory parent/migrant visa to the appellant's father, Mr Selimi. The outcome of the appeal depends on the proper construction of s 501(6) of the Migration Act 1958 (Cth) (the Act) and its application to the conduct of Mr Selimi. 2 For the Mujedenovski family, the appeal in effect represents a final opportunity to reunite in Australia. The father of the family, Mr Selimi, is presently living in Macedonia with his wife and one of their four children. Their remaining children live in Australia, together with their six grand children. If the appeal is unsuccessful, Mr Selimi will be unable to migrate to Australia and the family will remain geographically separated, presumably for other than temporary periods when they can be together. 3 As sometimes occurs, however, that outcome may be ordained by s 501(6) of the Act properly construed and applied to an assessment of Mr Selimi's character. 4 It is necessary to explain why. 5 Mr Selimi is now 54 years old. He is a Macedonian citizen. He married in 1973. He and his wife had four children, all now adults. Three of the children, including the appellant (one of his daughters) live in Melbourne. The fourth still lives in Macedonia. Mr Selimi and his wife were divorced in Macedonia in December 1994. Later in December 1994, Mr Selimi came to Australia to attend the appellant's wedding. He came to Australia on a tourist visa issued under the Act. 6 Mr Selimi did not return to Macedonia following the wedding. On 29 January 1995, he married an Australian resident, and on 1 February 1995 he applied under the Act for an Extended Eligibility (Temporary) (Class TK) (Subclass 820) (Spouse) visa and a General Residence (Class AS Subclass 801) (Spouse) visa. The marriage was contrived to enable him to stay in Australia. Officers of the Minister's department apparently discovered that fact during 1999. They interviewed his then wife, that is the woman he had married in Australia. In mid 1999, Mr Selimi was also interviewed by officers of the Minister's department. He had, at that time, been found living with his former wife, that is the wife whom he had divorced in December 1994. Mr Selimi attempted unsuccessfully to cover up the sham marriage. He was charged and convicted on 18 December 2000 in the Magistrates Court at Dandenong of 10 offences, nine relating to provision of a document which contained misleading particulars. The convictions as described were one count of "apply for a visa when did not intend to live genuine marriage relationship", and nine counts of "cause to be delivered a document containing a false statement" in relation to the visa applications based on the sham marriage. Mr Selimi was convicted and was given a two month suspended prison sentence, and placed on a $1000 bond to be of good behaviour for 12 months. The conviction of a breach of s 243 of the Act rendered him an unlawful non-citizen, upon which basis he was then detained. 7 Immediately following his conviction and release by the Magistrates Court on the terms just mentioned he was detained by immigration officials and admitted to an immigration detention centre. Two days later, on 20 December 2000, he applied for a protection visa under the Act, claiming that he was a refugee. His claim for a protection visa asserted that he had left Macedonia to escape from the persecution and discrimination suffered by him and all other Albanians at the hands of the Serbians, and that he feared mistreatment from the Serbian people, the Serbian police and Serbian supporters because he is Albanian. That application was refused on 15 January 2001. That decision-maker had "serious reservations" as to Mr Selimi's credibility and the substance of his claims to fear persecution. That decision was apparently affirmed by the Refugee Review Tribunal on 24 August 2001. That is information different from that recorded by the Tribunal. It appears, by inference, from the material that Mr Selimi had left Australia at about that time. The application for a protection visa had been refused by a delegate of the Minister and Mr Selimi applied for that decision to be reviewed by the Refugee Review Tribunal. Before that review was conducted, he decided to return to Macedonia on a voluntary basis, which he did in August 2001. On 20 October 2004, in Macedonia, he remarried his former wife. 8 In November 2004, the appellant applied for him and his wife to be able to come to Australia on a Contributory Parent Class CA (Contributory Parent/Migrant) (Subclass 143) visa. That is the visa application which has given rise to these proceedings. To the present time, Mr Selimi remains in Macedonia. 9 The earlier application to enable Mr Selimi to remain in Australia permanently had been for an Extended Eligibility (Temporary) (Class TK) Subclass 820 (Spouse) visa and a General Residence (Class AS) Subclass 801 (Spouse) visa. Determination of his entitlement to that visa was delayed for some time for reasons which are unexplained. Ultimately, the application was refused. 10 The application for the Contributory Parent/Migrant visa was rejected because Mr Selimi did not pass the character test by virtue of s 501(6) of the Act, in particular s 501(6)(c)(ii) and the delegate then exercised the available discretion adversely to the appellant after addressing the relevant discretionary considerations. 11 The decision of the delegate was affirmed by the Tribunal on 2 June 2008 on the same basis.