Decision The decision under review is affirmed.

IMMIGRATION - application to migrate - sponsor - character test - protection of the Australian community - expectations of the Australian community - best interests of a child - level of risk to community - seriousness and nature of conduct - likelihood that behaviour will be repeated - risk of recidivism - whether visa refusal may prevent or discourage similar conduct - fraudulently obtained passport - false information on visa application - obtaining employment

Migration Act 1958

Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583

Turini v Minister for Immigration and Multicultural Affairs [2000] AATA 731

1. Mrs Tina-Marie Ayaad (the appeal Applicant, herein after referred to as "Mrs Ayaad") the wife of Gergis Buishier Ayaad also known as George Michael Antony (herein after referred as "the Applicant") by this application seeks review of a refusal decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") on 9 December 1999. The refusal decision related to an application for the Applicant to migrate to Australia. Mrs Ayaad is the sponsor of the Applicant's application.

2. In the decision refusing the application the Respondent stated:

"It is clear from the information provided that Mr Ayaad knowingly and deliberately obtained a fraudulent passport while in South Africa for the purposes of obtaining visas to travel to other countries. He used a false name and the fraudulently obtained passport to obtain visas for Australia on three separate occasions. He also used the same name and passport to apply for a visitor visa in Auckland which was refused. The same name and passport was used to obtain visas for New Zealand, and to marry in New Zealand.

The Migration Act provides, in section 101, that visa applications must be correct and contain the correct information. Mr Ayaad has provided incorrect information, to the effect that he was a South African citizen when he is not, in 4 visa applications. The Act further provides, in section 102, that passenger cards completed by people entering and leaving Australia are to be correct and contain correct information. Mr Ayaad would have provided incorrect information on his incoming and outgoing passenger cards from Australia by claiming that he was a South African citizen. Further, the Act provides in section 103, that applicants are not to present bogus documents in relation to visa applications or for entry clearance purposes. Mr Ayaad's fraudulently obtained South African passport is a bogus document and he presented it to immigration officials in Pretoria, Australia and Auckland in relation to visa applications and also to entry clearance authorities in Australia in order to obtain entry to Australia.

Therefore, Mr Ayaad has consistently provided false information and false documents in relation to four Australian visa applications and numerous applications to the New Zealand authorities.

In assessing Mr Ayaad's general conduct I have placed considerable weight on the fact that he obtained a bogus document, namely a South African passport, and then used that document to obtain three Australian visas and two New Zealand permits. I have also considered that Mr Ayaad travelled into Australia on a visa permitting short stay and extended this for a period of one year. In addition, Mr Ayaad also made a false declaration regarding his name and nationality at the time of his marriage and presented the bogus passport with his migration application. Taking into account all the information presented with his application I have formed the opinion that Mr Ayaad is not of good character under section 501(6)(c)(i) of the Act and I therefore find that he does not pass the character test.

Departmental policy guidelines require that, in considering whether or not to refuse a visa following an adverse character finding, a delegate is bound by the Minister's direction under section 499. Full and proper consideration will also be given to the individual circumstances of the case including the nature of the criminal offences, links to Australia or observation of International law requirements (Migration Series Instruction 245).

In this case, a primary consideration is the protection of the Australian community.

Visa refusal would serve to underline the seriousness with which the Australian Government regards the presentation of bogus documents and immigration fraud.

Mr Ayaad's actions which involved obtaining and using a bogus passport for the purposes of entry to Australia and New Zealand would be considered as particularly serious by the Australian community.

I have considered that Mr Ayaad's wife may prefer to live in Australia near her family. This must be balanced against the fact that they made a decision to travel to New Zealand to marry and live in the knowledge that there is no guarantee that a further visa would be granted to Mr Ayaad. I can therefore give little weight to this consideration.

Mr Ayaad has applied for a provisional spouse visa, subclass 309 which would allow him to live indefinitely in Australia. Given his history of deliberately obtaining a fraudulent document and providing false information in relation to visa applications, I consider that there is a serious risk that he may continue this illegal conduct while in Australia permanently. I have given weight to this consideration.

On balance taking into account both the primary and other considerations in this case, I find that the primary considerations outweigh any other considerations. In the absence of any significant compassionate or compelling factors I find that the circumstances do not warrant the exercise of my discretion in this case". (T13, p144)

3. It is noted that in the delegate's decision and with reference to a primary consideration namely, the best interests of a child that it is stated "as Mr Ayaad does not have any children included in this application the best interests of the child need not be considered in this case." As will be mentioned later in these reasons Mr Ayaad does have a daughter and the interests of that child need to be considered as a primary consideration.

4. Mrs Ayaad, in her application for review of the refusal decision, contends that there has been a:

"(1) Breach of natural justice - the applicant was not given the opportunity to comment or make submissions on the decision being made.

(2) There are further relevant facts which the applicant was not given the opportunity of presenting.

* some of the facts in evidence have been misstated

* the decision-maker has overlooked certain relevant facts

* the decision-maker has drawn incorrect conclusions from the facts

* the decision-maker has given inappropriate weightings in respect of some factors."

5. The issues thus to be determined are as to whether the Applicant by reason of his past and present general conduct satisfies the character test within the meaning of section 501(6)(ii) of the Migration Act 1958 ("the Act"). If the character test is not satisfied the Tribunal is to then consider whether it should exercise it's discretion under section 501 of the Act in favour of the Applicant by reason of the relevant matters falling for consideration pursuant to directions made by the Minister under section 499 of the Act.

6. At the hearing of the present application before the Tribunal Mrs Ayaad was represented by Mr Lee of Messrs Lee, Craues, McPherson and Associates Ltd, immigration lawyers of Christchurch, New Zealand. The Respondent was represented by Ms Adele Connor, an authorised officer of the Australian Government Solicitor.

7. The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 - T15. Written material was tendered as exhibits on behalf of Mrs Ayaad, namely:

D Affidavit of Notoa Samuel Kaleopa and Penina Toreka Kaleopa 29 June 2000

F Affidavit of Reverend Father Raymond Joseph Schmack 25 July 2000

8. Mrs Ayaad, the Applicant, Mrs Kaleopa, the mother of Mrs Ayaad and Mr Peter Yassa (a company director) gave oral evidence upon which they were cross examined.

9. So far as relevant to this application section 501 of the Act provides:

"(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

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

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

10. Pursuant to section 499 of the Act the Minister has issued Directions which provide guidance to decision-makers, including the Tribunal (see Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583), in making decisions to refuse or to grant a visa under section 501 of the Act. The Directions provide guidance on the application of the "character test" as well as the exercise of the discretion to consider whether to refuse a visa taking into account primary and other considerations.

11. The Directions provide that the decision-maker is to take into account all the relevant circumstances of a particular case including evidence of rehabilitation and recent good conduct. Paragraph 1.9 of the Directions stipulates that in respect of subsection 501(6)(c)(ii) of the Act any good acts of the non-citizen after reprehensible conduct are to be considered as indications of character reform and thus both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizens' character. The decision-maker is, amongst other matters, to consider 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 and whether the person has ever made a false or misleading declaration on an approved form pursuant to the legislation about that person's character or conduct or both.

12. The primary considerations which are to be taken into account in exercising the discretion in the event of a finding adverse to a person on the issue of character are the protection of the Australian community and members of it, the expectations of that community and the best interests of a child particularly in respect of the parental relationship between that child and the person under consideration.

13. Paragraph 2.5 of the Directions details factors relevant to an assessment of the level of risk to the community. Such factors include the seriousness and nature of the conduct of the person, the likelihood that the conduct may be repeated including any risk of recidivism and whether visa refusal may prevent or discourage similar conduct on the part of others. With reference to the seriousness and nature of the conduct paragraph 2.6(c) of the Direction notes that serious crimes against the Act include presenting false or forged documents and making a false or misleading statement in connection with entry or stay in Australia. Paragraph 2.11 of the Direction referable to general deterrence requires that consideration be given to the nature of the offence and whether visa refusal will prevent or discourage others from engaging in similar activities.

14. The Direction in paragraph 2.12 stipulates that the Australian community expects non-citizens to obey Australian laws while in Australia. A visa refusal may be appropriate simply because the nature of the character concerned is such that the community would expect that the person would not be granted a visa.

15. The Applicant was born in Alexandria, Egypt on 6 February 1975. He remained living in that country until 1994 when he moved to Cyprus where he stayed until 28 December 1996. His residence in Cyprus was not disclosed in the subject form of application for migration to Australia. In December 1996, using his Egyptian passport, the Applicant travelled to and entered South Africa obtaining a three month holiday visa at his port of entry.

16. The Applicant stated in evidence before the Tribunal that it was his desire to travel and doing so on an Egyptian passport was "very hard". Whilst in South Africa he "met a man who worked for the government", who said that for a fee he could obtain a South African passport for the Applicant. The Applicant had heard of this practice after only being in that country for a few months and having been "convinced" that "this was a good idea" and that "it would be easier to travel around the world on a South African passport rather than an Egyptian passport", he supplied a photograph and a set of his fingerprints to the contact. The Applicant had discussed the matter at a cafeteria coffee shop with a fellow employee and had also on occasions seen "people getting passports and flying out of South Africa to America and Europe".

17. Having been told that an anglicised name would be preferable on the passport the Applicant gave to the contact for this purpose the name George Michael Antony.

18. Having supplied the photograph, fingerprints and false name and approximately three months thereafter, a passport was produced with the relevant details on it in respect of which the Applicant paid 4,000 South African rand. Thereafter the Applicant remained in South Africa without renewing his visa. He now had a South African passport. He had obtained employment with a pizza parlour. He did not seek to obtain a work permit as he had the passport.

19. In 1997 the Applicant using his South African passport and his false name applied to the authorities for a holiday visa to visit Australia entering this country on 26 September 1997. He obtained extensions to the visa and remained living in this country until 18 September 1998.

20. Even be it that he was aware that under the terms of the grant to him of the holiday visa he was not, without consent, to engage in gainful employment, he whilst in Australia worked for a Mr Peter Yassa on a casual basis, as a scaffolder being paid an hourly rate in cash or by cheque. Although Mr Yassa stated that the Applicant "would have provided a tax file number", the latter in his evidence said that he had not sought to do so.

21. Using his South African passport and his false name the Applicant left Australia and entered New Zealand. He has remained living in that country.

22. Mrs Ayaad, an Australian (25 January 1988) and New Zealand citizen was born in New Zealand on 15 December 1966. She is thus nine years older than the Applicant and she is presently residing in New Zealand. She first entered Australia in 1983 when she was approximately 17 years of age. On 16 July 1988 she married, such marriage being dissolved by Decree Absolute of the Family Court of Australia on 27 October 1998.

23. Mrs Ayaad and the Applicant met in early 1998 and began keeping each other company in March of that year. They commenced living together at Maryland Sydney in June 1998 and became "engaged" in September 1998. They married one another in New Zealand on 5 November 1998. At the time of the wedding and on the marriage certificate the Applicant used his false name and gave false information as to his parentage. He gave his mother's name as "Mary Antony" and that of his father as "Michael Antony". He gave his own name as "George Michael Antony". All of this information was false. He signed the Particulars of Parties to Marriage form "George" without a family name. It was some time after the marriage that the Applicant informed his wife that his real name was Gergis Ayaad and that he was travelling with the use of a false passport and thus resident illegally in New Zealand.

24. On 15 December 1999 a daughter, Heavenleigh Mary Kaleopa Ayaad was born in Australia to Mrs Ayaad and the Applicant. Mrs Ayaad had travelled to Australia to have the baby, this according to her so that her family would be nearby. The Applicant, being in New Zealand, was not present at the birth. However after the birth Mrs Ayaad returned to New Zealand where she has since lived with the Applicant and their daughter.

25. When first meeting the now Mrs Ayaad the Applicant introduced himself as "George", no mention then being made of his real name. It was one to two months after the first meeting that he gave his name to her as "George Antony". She did not become aware of his real name until after the wedding. She was she said then devastated. "The trust was no longer there. He had to rebuild it with me. I had just been divorced. If there was to be any future he would have to come clean".

26. The subject application for a temporary visa under subclass 309 was made on 25 August 1999 and it was not until the same was refused that the family of Mrs Ayaad, her parents, brothers and sisters in Australia were told about the false representations made by the Applicant.

27. In a letter accompanying the visa application Mr Lee, the Applicant's and Mrs Ayaad's representative, of "Immigration Solutions International" stated:

Our client is currently obtaining a police clearance from Egypt but has experienced some difficulties. We anticipate that it will be with us soon.

There is one matter which we feel we need to clarify for you. When the Applicant left Egypt in 1997, he went to South Africa. A man whom he met there obtained a South African passport for him under the name of George Michael Antony. Under that name and passport he applied for and was granted a visitor visa to Australia. He later applied through your office for a further visitor visa but this was declined...

Because he has acquired a South African passport we have ticked 'yes' to question 14 although he has not formally been granted South African citizenship. Our client will no longer be using the South African passport.

We enclose both of our client's passports do that you can verify that he is one and the same person.

28. The Applicant although present in New Zealand on a visitor's visa worked initially without consent later obtaining permission to engage in employment, this with the use of his South African passport. He remained working until more recently when, in association with the present application he has as above mentioned surrendered his passport to the New Zealand authorities revealing at that time his immigration history. On 23 February 2000 the New Zealand police authorities reported to the immigration service:

"As a result of enquiries Ayaad was interviewed and arrested in respect of arriving in New Zealand on 18 September 1998 entering the country using false arrival card particulars.

On 10 February 2000 Ayaad was sentenced by Judge Callahan to a fine of $350.00.

It is acknowledged that Ayaad used the same false particulars to obtain a Visitor's permit for three months and subsequent work permits. However, in all the attendant circumstances Ayaad was not charged with these specific offences but they were brought to the attention of the Court in the summary if facts presented to the Judge.

Subsequent enquiries with the South African High Commission in Canberra confirmed on 9 February 2000, that the South African passport obtained by Ayaad was a genuine passport containing false particulars. Ayaad was able to obtain this passport after obtaining a South African Identification Card in the Anglicised version of his name following his working in South Africa.

29. Because of the above-mentioned conviction the Applicant was sent a "notice of revocation of temporary permit" by the New Zealand authorities in 22 February 2000. The Applicant had until 14 March to either leave New Zealand or lodge a reconsideration request. The latter he did.

30. The subject visa application was forwarded to the Australian Consulate General Auckland under cover of a letter of 25 August 1999 having been signed by the Applicant on 22 August 1999. He applied under his real name saying that he had been known by another name, that is, George Michael Antony. He disclosed details of his Egyptian passport and of his South African identification number. He stated that he had attended primary, secondary and post-secondary education obtaining a Diploma of Business. He declared fluency in Arabic, English and Greek. He disclosed employment skill as a head chef in South Africa, a scaffolder in Egypt (in his Egyptian passport his profession is stated as that of a technician) and a cook with an airline caterer in New Zealand. He did not in his application disclose his employment with Mr Yassa in Australia as a builder's leading hand employed, according to Mr Yassa, in his evidence before the Tribunal, "for two years full-time".

31. On 7 October 1999 in a letter to the Applicant a migration case officer with the Australian Consulate in Auckland stated:

The documents provided in the submission accompanying your application do not satisfactorily evidence that you have a genuine ongoing relationship with your sponsor, with all the elements of a committed marital relationship. The information submitted to date is insufficient on which to base a favourable assessment as you have not been able to satisfy the definition of "spouse" - part 1. 15A of the Migration Regulations refers (copy attached).

32. In an affidavit sworn on 2 November 1999 provided to the Consulate on 4 November 1999 the Applicant stated:

"I am the applicant for permanent residence in Australia under the Spouse Sub-class...This affidavit is in response to requests to clarify my name and how I obtained a South African passport. When I went to South Africa, I met a man who worked for the Government who said that he could obtain a South African passport for me and convinced me that this was a good idea, as it would be easier to travel around the world on a South African passport rather than an Egyptian passport. I did not complete any documentation to formally apply for the passport or for citizenship in South Africa. I simply provided the photograph and fingerprints and the man in question produced the passport. I confirm that I was not entitled to apply for citizenship and, notwithstanding the passport, I did not consider myself to be a South African citizen. The same man suggested that I change my name from an Arabic one to one which was more "South African". We decide upon George Michael Antony which is the name I have used since then. However I have made no application at any time to change my name formally by deed poll or otherwise. I am continuing to use that name but it is only an informal use.

33. The Applicant was at all times aware of the falsity of the passport and indeed had "heard stories" of other people "managing to stay in Australia on false passports". In due course the false passport was handed to the New Zealand authorities and a removal order as above mentioned served on him. An appeal is pending against the latter order.

34. The Applicant maintains that employment is available to him if he is permitted to enter and remain in Australia. Mr Yassa wishes to employ him as a permanent leading hand in his construction business. Evidence was tendered before the Tribunal as to the Applicant whilst in New Zealand being "a hard working" employee "totally honest, reliable and dependable". He maintains a connection with the Coptic Orthodox Church.

35. The Applicant says that he wishes to live in Australia with his wife and daughter, failing which and in the event of the appeal in New Zealand not being successful, he will return to Egypt with a consequent probable break-up of the small family. Mrs Ayaad said that she is part owner with her parents of real estate in Sydney and would remain living in New Zealand or Australia. She says "there is no way I would go to Egypt. My daughter and I need stability".

Specific defaults or prospective offences of the Applicant :

36. The acts of the Applicant that reflect upon his character include the following. They are acts that were done in the context of applications for permission to visit and/or reside in South Africa, Australia and New Zealand.

1. obtaining on payment of money a false passport in South Africa;

2. obtaining employment in South Africa with the use of a passport fraudulently obtained;

5. obtaining a visitor's visa for Australia by use of the false passport;

6. completing entry immigration card with false information;

7. giving false information to immigration officers when aware that the doing of same was an offence;

8. obtaining employment in Australia contrary to conditions of visitor's visa;

9. not obtaining a tax file number whilst working in Australia ;

10. obtaining extensions of the term of a visa with the use of false information ;

11. completing departure card with false information;

12. obtaining a visitor's visa for New Zealand by use of the false passport;

13. obtaining a permit to work in New Zealand by use of false information and

14. providing false information on an application for a marriage certificate; and

15. the Applicant was aware that use of a false passport and the providing of

false details when entering Australia was an offence. The Applicant

deceived South African, Australian and New Zealand authorities by using

a passport which contained information false and illegal to the knowledge

38. Whilst not specifically raised as a matter to be considered in the context of the present application, it is pertinent to note that the Applicant has his parents, two brothers and two sisters all living in Egypt. He maintains regular contact with them.

39. The parents of Mrs Ayaad, two brothers and a sister are permanently resident in Australia. The parents extend their offer of support to Mrs Ayaad, the daughter and the Applicant.

40. As elsewhere mentioned in these reasons Mrs Ayaad is part owner with her parents of a house in Sydney. She presently suffers from Asthma, impaired glucose tolerance and gallstones for which she is said to be on the waiting list at Liverpool hospital for surgery. She could, on the evidence, equally well have the surgery in New Zealand. She contends that in light of her medical condition it would be stressful for her to live in Egypt. She has not visited the country.

41. There is evidence to the effect that Mrs Ayaad has a good employment record and is able to obtain a remunerative position as and when she seeks one. In the event of the Applicant returning to Egypt she will seek employment presumably as an administrator and place her daughter in childcare.

42. Mr Lee appearing on behalf of the Applicant does not nor could he resile from the patent dishonesty of the Applicant to the South African, Australian and New Zealand immigration authorities. Prima facie it is submitted the Applicant does not pass the character test. However the Tribunal by reason of the Directions is to consider all relevant circumstances including countervailing factors which evidence aspects of good character namely, the absence of a criminal record but for the conviction in New Zealand, the surrender of the passport and the Applicant not "choosing to cover his tracks". On consideration of these circumstances it is submitted a different assessment of the character of the Applicant might be made. Further the Applicant does now admit that what he did was wrong and says that he is sorry. He has become a family man and has always been a member of the Coptic Church. On taking into consideration these factors the Applicant, it is submitted, passes the character test.

43. Ms Connor on behalf of the Respondent submits that the Applicant does not pass the character test by reason of his involvement in activities indicating contempt or disregard for immigration laws. This contempt for and disregard of the relevant legislation and otherwise has been detailed earlier in these reasons. The Tribunal is satisfied that the conduct of the Applicant in relation to immigration practice and procedure in South Africa, Australia and New Zealand is amply sufficient to indicate that he is not of good character. His conduct in New Zealand resulting in his arrest, being charged and convicted and the consequent revocation of his temporary permit maintain this finding. The bad conduct carried out by him in the past is not outweighed by his volunteering information to the New Zealand authorities. The Tribunal concurs with the submission made on behalf of the Respondent that the confessional attitude adopted by him was assumed in the context of the application for migration to Australia, the Applicant being aware that in all probability the falsity of his conduct in the past would be discovered. The Tribunal is satisfied that the Applicant has not evidenced a reformed character and is of the opinion, on the whole of the evidence before it, that the finding as to the Applicant not being of good character, within the meaning of section 501(6)(c)(ii), should be maintained.

44. In the event of the Tribunal not acceding to the submissions made on behalf of the Applicant as to character, which is the case, Mr Lee drew attention to the considerations both primary and other that are relevant to the exercise of the discretion. Protection of the community, it was submitted, is intended to direct attention to criminal activities of a person more than activities that have not lead to the commission of an offence. "The flavour of the Direction" it was contended is directed at conduct breaching the law from a repetition of which by the Applicant or others the community is entitled to be protected.

45. On behalf of the Respondent it was noted that protection of the Australian community entails consideration of the seriousness of the conduct, the likelihood of recidivism and general deterrence. It is not a matter of considering "the criminal activities" of a person per se but more the nature of the conduct and it's implications so far as the community is concerned. Paragraph 2.6 of the Direction lists examples of conduct which are considered by the Government to be very serious, included amongst which is conduct which has or could have constituted offences against the Act. Conduct in breach of the Act and the New Zealand legislation, entering both Australia and New Zealand be use of a false passport and maintaining his illegal status over a relatively lengthy period of time illustrates a blatant disregard for the immigration laws of these countries. However it is the overall conduct of the Applicant that is to be noted whether or not he has been charged and convicted. In the present matter the Applicant was at all times aware that he was carrying out activities and engaging in conduct that was wrong and illegal. There is thus an apparent propensity to do wrong from which the Australian community may well consider it should be protected. The Applicant, as appears from the above listing of his defaults, is not reticent in providing false information.

46. It is true that the Applicant surrendered the false passport and thus cannot use it again. He, it is said, will not re-offend. There is no certainty as the Tribunal sees the situation in this being so. It is not only that the Applicant obtained a false passport and used it but he also on a number of occasions deliberately provided false information and misled authorities.

47. The Applicant in his evidence spoke of others obtaining false passports in South Africa and travelling to countries using the false documentation. He spoke of people to his knowledge living in Australia by virtue of the use of false identity material. These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.

48. The Australian community would not expect a decision-maker to readily condone or forgive a transgressor, one who deliberately seeks to mislead immigration authorities, this even be it the latter has expressed contrition and is a member of a family unit. As was submitted on behalf of the Respondent by the use of the false passport to gain entry and extensions on his rights to remain in both Australia and New Zealand the Applicant has shown a serious disregard for the immigration laws of these countries, this for his own personal gain. Persons seeking to enter Australia have a moral and a legal obligation to be truthful in their dealings with immigration authorities and to abide by the Australian law. The Tribunal concurs with the submission made on behalf of the respondent that the Australian community would not expect this conduct to be condoned or rewarded through the grant of a visa. (See Turini v Minister for Immigration and Multicultural Affairs [2000] AATA 731, para 31).

49. The Directions require the Tribunal to consider the best interests of the daughter of the Applicant and Mrs Ayaad, this as a primary consideration. Heavenleigh is presently living with her parents in New Zealand. Her mother is nine years older than her father. Her mother has been twice married. Her grandparents, uncles and aunts live in Australia, other relatives reside in New Zealand. Her mother left the Applicant in New Zealand to travel to Australia to give birth to the child in order that her parents, brothers and sisters would be nearby. She is able to earn an income, she has property and has the capacity to care for the child. The absence of a father would be regrettable. It is trite to say that he was the author of this eventuality.

50. Even be it that Mrs Ayaad was not aware of the Applicant's true identity at the time of marriage she was aware of the situation at the time she conceived Heavenleigh.

51. On behalf of the Respondent it is conceded that the child's interests may be best served if she remained with her parents and the family unit intact. It is noted that whilst currently an appeal is pending in New Zealand, if successful the Applicant, Mrs Ayaad and the daughter would be able to remain in that country where Heavenleigh has been living with her parents from shortly after the date of her birth. The child has not resided in Australia.

52. The Tribunal has taken into consideration the matters primarily to be considered and other relevant factors already discussed earlier in these reasons. On balance the factors referable to the protection of the community and expectations of the community outweigh the interests of the child. The facts of this matter that relate to the relevant considerations do not warrant the discretion being exercised in favour of the Applicant.

53. Accordingly the decision under review is affirmed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for the decision herein of:

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