Markaj and Minister for Immigration and Border Protection (Migration) - [2017] AATA 1516

Markaj and Minister for Immigration and Border Protection (Migration) [2017] AATA 1516 (20 September 2017)
Division:GENERAL DIVISION
File Number(s): 2017/3869
Re:Elis Markaj
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:20 September 2017
Place:Melbourne

The Tribunal affirms the decision under review to refuse to grant the applicant a Partner (Temporary) (Class UK) Visa.
[sgd]........................................................................
Egon Fice, Senior Member
IMMIGRATION AND BORDER PROTECTION – refusal to grant Partner (Temporary) (Class UK) visa – applicant fraudulently entered into Australia on falsified passport – character grounds – substantial criminal record – applicant convicted of various criminal offences, including offences involving drug trafficking and extortion – where serious risk to Australian community if applicant re-offended – where Australian community would expect application to be refused – decision affirmed
Legislation
Migration Act 1958 (Cth) ss. 499, 501
Cases
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR 16 v Minister for Immigration and Border Protection [2017] FCA 96
Secondary Materials
Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Egon Fice, Senior Member
20 September 2017

Mr Markaj is a citizen of Albania. He first arrived in Australia on 30 October 2011 on a false Italian passport. That passport was issued under an alias used by Mr Markaj, Fabio Mammoliti. Mr Markaj also presented a counterfeit Italian National ID card and an Italian Drivers Licence.
Department of Immigration and Border Protection (DIBP) officers, concerned with Mr Markaj’s Italian passport, conducted further examination and investigation of his identity and purpose for coming to Australia. Following interrogation, Mr Markaj admitted that his passport was fake. In explaining why he had come to Australia, Mr Markaj is reported as having said:
I have come to Australia to seek a new life and to earn some money.
I took on a debt of 7,000 euro (approximately AUD $9354) and together with some money I had saved I paid for the passport. The remaining cash I have saved up was my life’s worth of savings. I now do not have any money. Please let me in, just so I can earn some money so I can repay the debt I owe. I won’t cause any trouble.
At no stage in that recorded interview did Mr Markaj say that he was fleeing Albania for fear of persecution in that country.
Arrangements were made for Mr Markaj’s removal from Australia and he was booked on a Singapore Airlines flight departing on 1 November 2011 at 4.45 PM. When Mr Markaj was returned to Melbourne Airport and prior to embarking on the Singapore Airlines flight, while being held at the holding rooms, Mr Markaj requested access to a Migration Officer. In the course of that conversation, Mr Markaj said he feared returning to Albania because he was afraid someone might kill him. Apparently he alluded to some sort of blood feud; that his cousin had recently been shot and that this was the reason why he did not wish to return. At that point he specifically indicated that he wished to claim asylum.
The removal process was aborted and Mr Markaj was returned to the Maribyrnong Immigration Detention Centre (MIDC).
On 2 December 2011 Mr Markaj lodged an application for a Protection (Class XA) Visa (Protection Visa). On 20 January 2012 a delegate refused to grant Mr Markaj and Protection Visa on the ground that he was not a person to whom Australia owed protection obligations. Mr Markaj sought review by the Refugee Review Tribunal (RRT). On 19 March 2012 the RRT affirmed the primary decision. On 10 March 2013 the Minister intervened in Mr Markaj’s case, determining under s.48B that

s.48A did not apply to prevent him from lodging a further application for a Protection Visa.
Mr Markaj lodged his second application for a Protection Visa on 30 January 2013. On

17 July 2013 a delegate of the Minister refused Mr Markaj’s application. Mr Markaj then sought review of the delegate’s decision by the RRT on 26 July 2013.
Contrary to his initial statement of the reasons for coming to Australia, Mr Markaj claimed he left Albania because he feared for his life. He claimed that members of a Muslim family would harm him due to a blood feud which began when his 14-year-old cousin was shot in Albania in 2009. Mr Markaj claimed that three men at shot him while he was driving in a motor vehicle but he escaped by going to his uncle’s restaurant in the mountains. Later he received a DVD warning him that the men would kill him. He said the men warned him they would kill his parents if he reported the incident to the police. Mr Markaj feared being killed if he was returned to Albania.
Mr Markaj’s claim to be entitled to a Protection visa was again heard by the RRT which handed down its decision on 3 September 2014. In the reasons for decision, the Member recorded that Mr Markaj said his 14-year-old cousin had been shot as a result of him having formed a relationship with the girl from a Muslim family who demanded he convert to Islam. He claimed that his cousin survived the shooting but that he and his family had been living in hiding since that time and that another cousin was shot and killed in 2009. Mr Markaj claimed he was also threatened and shot at in September 2011 after telephoning the family concerned in an attempt to resolve the dispute before his return to Albania in December 2010. Following that attempt on his life, Mr Markaj claimed he was hiding at his uncle’s place in the mountains before making arrangements to flee Albania for Australia.
The Tribunal Member who heard his second application, Ms A Murphy, noted that significant new information had become available since the first RRT decision. That information raised serious concerns about Mr Markaj’s credibility and the truthfulness of his claims. Ms Murphy said the following were significant:
·     Upon arrival in Australia, Mr Markaj told an immigration officer that he had lived in Milan, Italy, since birth and that his family were from Sicily. He said he was not married and had no children. When his concealed Albanian passport was discovered in his suitcase, he admitted he was an Albanian National and that he paid €10,000 for his documents. He also admitted he had a daughter living with his former de facto partner in Italy. However, at the RRT hearing on 30 July 2014, Mr Markaj denied that he told an immigration officer that he lived in Milan or that he was an Italian citizen, later stating that he told some lies but it was in the context of trying to enter Australia on his Italian passport and his fear of being returned to Albania.
·     Mr Markaj did not disclose his prior criminal convictions in Italy on his visa application despite direct questions requiring an answer to whether he had prior criminal convictions. In the course of his departmental review, Mr Markaj was given information from the Italian authorities which stated he had been deported from Italy on 16 November 2010 as a result of revocation of his residence permit by the police of Varese based on a decision of an Italian court which sentenced him to 3 years and four months imprisonment for drug dealing and extortion. At interview with the delegate, Mr Markaj said he knew nothing about these matters and the information did not relate to him. On 24 April 2013 Mr Markaj’s representative wrote to the Department confirming that Mr Markaj had never committed nor was he convicted of any crimes while in Italy.
·     On 13 June 2014 the RRT wrote to Mr Markaj setting out details of the information provided by the Italian authorities and why that information would be the reason, or part of the reason, why the RRT would affirm the decision to refuse a Protection visa. In response to that letter, Mr Markaj provided a statutory declaration made on 21 July 2014 in which he acknowledged that he had been charged and convicted of drug trafficking and extortion in Italy although he claimed the charges were baseless.
·     Mr Markaj stated that after his release from prison on 16 November 2010 he was taken to the police station and then to a detention camp before being removed from Italy on 5 December 2010 and returned to Albania. At the hearing, Mr Markaj apparently said he knew his criminal history would come out eventually but that he tried to keep it secret because he was afraid he would be returned to Albania.
·     Mr Markaj’s brother, Everest, had also come to Australia seeking a Protection Visa. Ms Murphy was concerned about inconsistencies between Mr Markaj’s account of the blood feud in which his family was said to be engaged and the account given by Everest. Departmental documents recorded that Everest came to Australia on a student visa to pursue studies in Australia and on arrival, he applied for a Protection visa. The application was refused by a delegate on 22 August 2011 and that decision was subsequently affirmed by the RRT on 7 March 2012. The Federal Circuit Court of Australia dismissed Everest’s application for judicial review. What troubled Ms Murphy were the different reasons given by the brothers for the existence of the so-called blood feud in Albania. Mr Markaj’s account said the feud arose because of the relationship between a Christian and a Muslim girl while his brother attributed the existence of the feud to the support given by Catholics to the Demo-Christian Party and Muslim support to the Democratic Party.
·     When the RRT disclosed its concerns about the inconsistencies in the evidence regarding the blood feud, the applicant apparently said he was unable to comment on why his brother gave a different account. He speculated that his brother was fearful that if he told the true story and named the family involved, that would reach Albania and cause difficulties for his family. The RRT did not accept that explanation.
·     Ms Murphy also noted there were significant inconsistencies in Mr Markaj’s own evidence regarding the blood feud. She noted that Mr Markaj was unable to name the girl from the family in Albania whose relationship with his cousin started the blood feud or when his cousin was shot other than stating it happened when he was in gaol in Italy between 2007 and 2010.
·     In the course of his evidence at the RRT, Mr Markaj’s evidence was that his father’s cousin went to talk to the family of the girl and was killed after leaving church in their village in 2009. He said that death was never reported to the authorities. His evidence at the hearing also was that on his release from gaol in Italy, he telephoned a member of the Muslim family in Albania to say the feud had to end because one of his family members had been killed. Mr Markaj testified that no names were used and that the person on the phone became angry causing him also to become angry.
·     However, in his written claims for the Protection visa, despite the seriousness of the killing of his father’s cousin, Mr Markaj made no mention of that incident. Although Mr Markaj gave a number of explanations for not having disclosed that at an earlier time, including when first interviewed at Melbourne airport, the RRT Member did not accept any of those explanations. Given its seriousness and importance to his application for a Protection visa, the Tribunal found that the evidence of the shooting death of his father’s cousin was simply false.
·     According to Ms Murphy, at the hearing Mr Markaj told the Tribunal that after the attempt to shoot him on 9 September 2011, he went into hiding at his uncle’s house for a month and a half. In his written claim, he said he was only able to stay at his uncle’s place for about a week. In response, Mr Markaj denied ever saying that, stating it must have been a problem with interpreting.
·     In addition, at the hearing Mr Markaj told the Tribunal that he did not know the Muslim family to which the girl in question belonged prior to the blood feud commencing. He also said he had never seen members of the family and he did not recognise the people who attempted to shoot him on 9 September 2010 other than stating that they were the same people who appeared in the threatening DVD which was later delivered to his friend. When it was put to Mr Markaj that in the course of interview by the delegate of the Minister, he had stated that he knew the men who shot at his car were from the Muslim family because he recognised them, Mr Markaj stated he may have spoken to them before but he did not remember.
Having read the extensive material before me on this matter, I also share Ms Murphy’s serious concerns regarding the veracity of the evidence Mr Markaj gave before the RRT on both occasions; the accounts he gave to the immigration authorities at the airport; and to the account given to a delegate of the Minister on first review. It seems he has a significant ability to create purported factual situations, all of which go directly to assisting his claim for a Protection visa. While it is not surprising to find embellished self-serving evidence given by an applicant in these circumstances, I would not expect to be confronted by a continuing change in the factual basis for the application: not merely in respect of minor particulars but rather, the very essence of the genuine fear expressed by Mr Markaj should he be returned to Albania.
The RRT had another piece of documentary evidence before it in the form of a newspaper report of the shooting of Mario Markaj, a 14-year-old boy, translated through an Internet translation tool which was perhaps of lesser quality than might have been desired. Nevertheless, the translation indicated that a 14-year-old boy called Mario Markaj was shot at school by his friend. At least one translation suggests the incident took place in Copenhagen. However, the Tribunal paced little weight on that evidence. It nevertheless gives some substance to the genesis of the shooting claim, although in a completely different context.
In conclusion, the RRT found it could not accept Mr Markaj’s evidence regarding the shooting, whether it was the result of the relationship with the Muslim girl or from a dispute about religion. The Tribunal did not accept that the father’s cousin was shot and killed while attempting to resolve the feud. It did not accept that Mr Markaj’s family was involved in a blood feud in Albania or that the applicant had ever attempted to resolve such a feud. The Tribunal did not accept that Mr Markaj was ever threatened, harassed or attacked in Italy or Albania by any member of the girl’s family or any other person on account of a blood feud. The Tribunal found there to be no real chance that Mr Markaj would be harmed by any member of the Muslim family or any other person as a result of a blood feud in Albania. It also found that there was no real chance of harm to Mr Markaj as a result of his religious persuasion. The RRT affirmed the decision not to grant Mr Markaj a Protection (Class XA) visa.
On 17 November 2014 Mr Markaj lodged with DIBP an application for a Partner (Temporary) (Class UK) visa. On 15 December 2014 a delegate of the Minister refused that application. Mr Markaj then lodged an application with what was then the Migration Review Tribunal (MRT) seeking review of the Department decision. On 8 May 2015 the MRT remitted the application to the delegate with directions that it would be reconsidered.
In a letter dated 13 May 2016 a delegate of the Minister informed Mr Markaj that his Partner Visa was being considered on the basis that he did not pass the character test. He was invited to comment. On 19 June 2017 a delegate of the Minister decided that Mr Markaj not pass the character test. He decided to exercise his discretion under s. 501(1) of the Migration Act 1958 (Migration Act).
Mr Markaj seeks review of a decision of a delegate of the Minister for Immigration and Border Protection dated 19 June 2017 to refuse to grant a Partner (Temporary) (Class UK) visa pursuant to s 501(1) of the Migration Act.
MR MARKAJ’S CRIMINAL OFFENDING
Mr Markaj committed a number of serious criminal offences while living and working in Italy. I had in evidence a translation of what is described as a Penal Certificate which is a certificate obtained from the Court Records Office. The sentencing Judge in the Court of Busto Arsizio on 9 October 2008 recorded the following crimes:
(a)supplying or selling illegal narcotics substances on an ongoing basis – committed from 12 January 2007 to 01 March 2007;
(b)supplying or selling illegal narcotics substances on an ongoing basis – committed from 14 December 2006 to 01 March 2007;
(c)
illegal transfer of narcotics substances on an ongoing basis – committed from

01 January 2007 to 28 February 2007;
(d)
illegal transfer of narcotics substances on an ongoing basis – committed from

03 January 2007 to 10 February 2007;
(e)buying, possessing and selling illegal narcotics substances on an ongoing basis – committed from 01 January 2006 to 17 May 2007
(f)attempted extortion acting jointly – committed from 26 January 2007 to 12 March 2007; and
(g)extortion – committed on 14 February 2007.
Mr Markaj was sentenced to a term of imprisonment for a period of three years and four months.
As I have already indicated above, Mr Markaj also attempted to enter into Australia on

30 October 2011 under a false name, using a falsified Italian passport. He claimed the purpose of his trip to Australia was to visit a friend who lived in Adelaide. He claimed to have a contact in Adelaide and produced a faxed copy of an Australian passport to which was attached a letter from the Australian contact claiming Mr Markaj, under his alias Fabio Mammoliti, was visiting him from 17 October 2011 up to 17 November 2011. Mr Markaj also provided a mobile telephone number for his fictitious Adelaide friend.
Quite clearly, Mr Markaj had undertaken considerable and detailed planning in order to perpetrate a fraudulent entry into Australia. At the commencement of his interview with a Senior Inspector he was cautioned under s. 234(1) of the Migration Act and Division 137 of the Criminal Code Act 1995. He was informed of the consequences of making false or misleading statements or producing forged documents. Despite that, Mr Markaj persisted with his fabricated account of who he was and what he was doing in Australia.
Mr Markaj only admitted that his Italian passport was false and that he was an Albanian citizen when his Albanian passport was discovered in his luggage. Following this discovery, Mr Markaj then proceeded to distance himself from an association with Italy. He claimed never to have lived in Italy but learnt to speak Italian by watching Italian television channels in Albania and by school studies and reading books. Mr Markaj had not, on any declaration form, made the border control personnel aware of his criminal offending in Italy.
In the course of his interview with border control personnel, Mr Markaj requested to be allowed to telephone his family in Albania. He was provided with a telephone and observed to be speaking with somebody as he made the call.
APPLICATION OF THE MINISTER’S DIRECTIONS
Section 499 of the Migration Act provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with the direction under subsection (1).

The current Direction is described as Direction No. 65 (the Ministerial Direction). It was made by the Honourable Mr Scott Morrison, then Minister for Immigration and Border Protection, on 22 December 2014.
The Preamble to the Ministerial Direction sets out its objectives. Relevant to this matter are the following:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test.… Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Clause 6.2 of the Ministerial Direction provides general guidance to the decision-maker. The following are relevant in this case:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke the mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while the factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Clause 6.3 of the Ministerial Direction sets out the principles to which a decision-maker must have regard. Those which are relevant are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
…
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 8 refers to taking into account relevant considerations. Relevantly, it provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary consideration should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations
THE CHARACTER TEST
Section 501 of the Migration Act deals with the refusal or cancellation of the visa on character grounds. Relevantly, it 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.
Note:               Character test is defined by subsection (6).
…
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); 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
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
There appeared to be no dispute that Mr Markaj did not pass the character test. He was sentenced to a term of imprisonment exceeding 12 months while residing in Italy. Furthermore, having regard to his attempt to enter into Australia on a false passport; providing border protection officials with false information; and, significantly, when found to be an Albanian citizen and not an Italian citizen, failing to disclose his prior criminal offending and sentence in Italy, establishes he is not a person of good character.
Therefore, I must apply the Ministerial Direction to determine whether the preferable decision in Mr Markaj’s case was to refuse his application for a Partner Visa.
PRIMARY CONSIDERATIONS
Part B of the Ministerial Direction is relevant in Mr Markaj’s case. Clause 11 sets out the primary considerations as follows:
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Protection of the Australian community
Regarding the primary considerations, Clause 11.1 provides the following regarding the protection of the Australian community:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct to date
Clause 11.1.1 of the Ministerial Direction relevantly provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct date, decision-makers must have regard to:
(a) …
(b)The principal the crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
…
(d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass the subjective limb of the character test or is not of good character under section 501(6)(c), is considered to be serious;
(e)The sentence imposed by the courts for a crime or crimes;
…
(h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i)Where the offence or conduct was committed in another country, whether that offensive conduct is classified as an offence in Australia.
Mr Markaj made significant preparation in his attempt to enter into Australia illegally. He went to the trouble of obtaining a false Italian passport under a false name. He obtained a visa under a false name. Mr Markaj also obtained a false Italian national ID card and an Italian driver’s licence. He also prepared a letter from a person purporting to be a friend in Adelaide confirming that Mr Markaj was coming to stay for a short period of time. He gave false information to Border Protection officials when he arrived at Melbourne airport. He stated the reason for travelling to Australia was to find work of that he could earn money and pay off his debts. He believed he could easily find work in Melbourne.
Significantly, Mr Markaj did not disclose that he had criminal convictions in Italy. In fact, upon discovery of the criminal convictions and having them put before him, Mr Markaj strongly suggested that he had been convicted on a false basis and that his offending was far less serious than that described by the authorities. The problem is that I had no basis upon which to make any findings regarding the circumstances surrounding his offending other than the explanation offered by Mr Markaj. That evidence is necessarily self-serving and must be given little weight. Furthermore, given Mr Markaj’s propensity to reconstruct factual events and embellish them such that they favour his claims relating to his visa applications, I should treat any uncorroborated evidence with extreme caution. In fact, this is a case where I should exercise restraint in taking into account the circumstances of the offending as described by Mr Markaj. I do not have any objective evidence upon which to base a finding other than the statement of charges and conviction. Care must be taken not to go behind the judgement of a court in such circumstances.
The Full Court of the Federal Court of Australia (Branson, Lindgren and Emmett JJ) in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 dealt precisely with this point where the Tribunal made a finding contrary to what was said by the sentencing Judge, who found that it was SRT who inflicted the fatal stab wound to the heart of his victim. The Court said, at 244 – 245:
Wood J found that it was the respondent who inflicted a stab wound to the heart that was the direct cause of the death of the deceased.
…
It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts.…
To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. …
…
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. …
Justice Branson in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 canvassed the many decisions of the Courts where the issue of going behind the judgment or sentencing has been discussed. That case involved a deportation under s. 200 of the Migration Act on the ground that Mr Ali had been convicted of criminal offences. Her Honour set out five propositions which may be distilled from the case law on this topic. She accepted it was clear beyond argument that an administrative decision maker was entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based. However, her Honour noted, at 325 – 326:
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted…
Fourthly, although the decision-maker under s. 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted …
Fifthly, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of the conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
On the evidence I have before me on the hearing of this matter, I find that Mr Markaj’s offending in Italy was very serious. The offences of which Mr Markaj was convicted in Italy are also serious offences in Australia. The length of the sentence imposed supports my finding.
Furthermore, Mr Markaj’s conduct in attempting to enter Australia on a false passport and, when that was discovered, nevertheless relying on false and misleading information in an attempt to remain in Australia is also serious misconduct. Mr Markaj’s statements regarding the real reason he was in Australia, that is, to seek refuge from harm he believed he faced in Albania, must also be given little weight. I accept the findings made by the RRT particularly as it had before it significant country information regarding Albania. There was no evidence that Mr Markaj’s claimed account of the so-called blood feud had any basis in fact. His account of this was only provided on the day following the discovery that he had arrived at Melbourne airport on a false passport. Had that been his purpose for coming to Australia unlawfully, there is no obvious reason why this would not have been his first explanation for attempting to enter Australia unlawfully.
There is one further matter which I have taken into consideration. While in immigration detention, Mr Markaj married an Australian citizen, Ms Rosa Zea, on 26 February 2012. He came into contact with Ms Zea via the Internet on a site called Badoo, which is a dating and social chat site. On 27 March 2013 the Minister exercised his powers under

s. 195A of the Migration Act granting Mr Markaj a Bridging E visa which permitted him to reside with his wife and family in Melbourne while waiting for the final outcome of his claim for a Protection visa. Mr Markaj claimed that when the RRT decided against his claim for a Protection Visa, he ceased to be eligible for a Bridging E visa and he did not know what to do. He said his family told him to hand himself over to immigration officials but that he felt overwhelmed by shame and guilt. He also referred to a granddaughter, who was then seven years of age, who had been diagnosed with type I diabetes and that her mother needed help and support.
Nevertheless, when immigration officers came looking for him, he said he did not resist, had not been hiding and did not run away. Regardless, between October 2014 when his Bridging E visa expired and 6 November 2014 when he was taken back into immigration detention, Mr Markaj’s presence in Australia was again unlawful.
This adds to the weight of evidence which supports the finding that statements made by Mr Markaj in support of his application for a visa on this occasion must be treated with great caution. Mr Markaj’s conduct in dealing with border protection officials does raise broader questions about his character.
Risk to the Australian community should Mr Markaj reoffend or engage in other serious conduct
Clause 11.1.2 deals with the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Relevant in this case are the following:
(1)…
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)     information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)    evidence of any rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since their most recent offence (noting that decision should not be delayed in order for the rehabilitative courses to be undertaken); and
(iii)   the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
I did not have before me an independent professional opinion regarding whether Mr Markaj posed a risk of reoffending. However, as was submitted by Mr A Cunynghame, a solicitor who appeared on behalf of the Minister, Mr Markaj has a lengthy history of providing false and misleading information to the Department. Those statements were made to border protection officers despite Mr Markaj being cautioned twice by those officers of the criminal consequences which may follow if the statements he made were false and misleading. The offences he committed in Italy, involving narcotics and extortion, are very serious. His involvement with narcotics included him using those substances as well as dealing in them. The three years and four months sentence imposed on him reflects the seriousness of the offences.
Because Mr Markaj was taken into detention shortly after his arrival in Australia, save for about 18 months when Mr Markaj was released into the community on a Bridging Visa, he has been in detention for approximately 4 ½ years. It cannot be said that Mr Markaj has made any significant contribution to the Australian community. A Detention Client Interview – Part C report states Mr Markaj was very calm and cooperative and had a good attitude. He did not wish to make any trouble. He was reported as having been well behaved while at Yongah Hill Immigration Detention Centre. There was no evidence that he was anything but well-behaved while in migration detention. I did not have any evidence which would suggest Mr Markaj was anything but well-behaved in the course of his 18 months out in the community.

It must be said that Mr Markaj has not yet had an opportunity to demonstrate that he would remain completely free of drugs in the future. Time spent in the community and opportunity, as well as necessity are the common drivers of return to a drug habit. It is difficult to determine objectively whether, if circumstances were to change, Mr Markaj represents a real risk of re-offending. I had in evidence a letter from the director of
S & A Piccirillo Paving Pty Ltd, a concreting company, for whom Mr Markaj worked in the 18 month period when he was out in the community. Mr Piccirillo said Mr Markaj was very responsible, trustworthy, respectful and a polite gentleman. He said he was good-humoured and also very reliable employee. He concluded by stating that Mr Markaj was considered an excellent employee and he would always be welcome to return as an employee.
Although I have some concerns about the risk of Mr Markaj re-offending, particularly as he has shown himself to be deliberately manipulative in his attempts to remain in Australia, I accept that his risk of re-offending is likely to be regarded as low. However, should he re-offend, the risk to the Australian community could be significant.
The best interests of minor children in Australia
Clause 11.2 of the Ministerial Direction deals with the interests of minor children in Australia affected by the decision. Relevantly, it includes the following:
(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are persons who already fulfil a parental role in relation to the child;
(f)Any views of the child (with those views being given due weight in accordance with age and maturity of the child);
…
Since his marriage to Ms Zea, Mr Markaj has acquired three stepdaughters and a stepson. All of those children are older than 18 years. This consideration does not apply to them. However, there are numerous grandchildren, by my calculation 11 in total. Mrs Markaj’s eldest daughter has two children, although one of them is older than 18 years. The remaining three children each have three children, all under 18 years of age. Two of those children are about 16 years of age. One of the grandchildren has recently been diagnosed with type I diabetes mellitus.
I had in evidence numerous letters from the grandchildren, some handwritten and a number of them typed. They all express a fondness for Mr Markaj, to whom they refer as their grandfather. It is difficult to know how much weight to give those letters without having heard personally from the children. One of the children refers to Mr Markaj helping him with his homework. However, despite some evidence to the contrary, Mr Markaj claimed not to have strong skills in written English. Otherwise, Mr Markaj’s interaction with the children appears to be limited to playing games with them. There was also no evidence that his contact was in the nature of a parental role. All of the children have contact with at least one parent and at least intermittently, with the second parent. The evidence indicated that all three of Mrs Markaj’s daughters live without their partner or the biological father of their children.
Given that Mr Markaj has only had about 1 ½ years of contact with his grandchildren, it is unrealistic to expect that Mr Markaj’s relationship with them has developed into a constructive and supportive one. Plainly, the grandchildren derive some benefit from the fact that Mr Markaj was earning an income while out in the community. There was no evidence that any of the grandchildren lacked parental care.
The granddaughter which has been diagnosed with type I diabetes requires regular injections of insulin. According to her mother, she is too young to administer that dose herself. Her mother gave evidence that she administered the dose and no doubt that will continue into the future until the child is able to do so safely herself. I see no particular role to be played by Mr Markaj.
Mr G Gilbert, who appeared on behalf of Mr Markaj, submitted I should have regard to the International Covenant on Civil and Political Rights. In particular, Mr Gilbert referred to Articles 23 and 24 which provide:
Article 23
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 24
1. Every child shall have, without discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and State.
As I understood Mr Gilbert’s submission on this point, Mr Markaj does play a parental role regarding the upbringing of the grandchildren. That is because there is no father in three of the four families concerned. Although I accept that Mr Markaj does interact with the grandchildren and particularly so when he had been released in the community, I do not accept that he has a quasi-parental role. Given that there are 11 grandchildren, it is unreasonable to consider Mr Markaj in that role. He simply would not have time, particularly as he was working when in the community. A record of telephone interview conducted on 9 December 2014 with Mr Markaj states that during the week, he would get home from work late, tired and was not much use around the house. His wife did most of the cooking and housework. On weekends he would do some of the work around the house and garden, cutting the grass. On that basis alone, his contact with the grandchildren would appear to be incidental rather than planned. One of the grandchildren resides with Mrs Markaj and therefore would have been at the same house when Mr Markaj was on release in the community. I accept he would have had more contact with that particular grandchild.
While the letters of support written by what appear to be some of the grandchildren expressed sadness should Mr Markaj not be released into the community but rather sent back to Albania, given his separation from those grandchildren for a very significant period of time, I am not convinced that the separation on a permanent basis would result in significant harm to any of the children.
While not a strong claim, I find that the refusal to grant Mr Markaj a Partner Visa is not in the best interests of the grandchildren.
Expectations of the Australian community
Clause 11.3 of the Ministerial Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable 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 of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
The offences of which Mr Markaj has been convicted in Italy are serious. Despite Mr Markaj attempting to state that the quantity of drugs which were found on him when he was arrested were much smaller than stated, and that the amount of cocaine he had on him when caught was for personal use, those statements go behind the conviction found by the Italian court. He suggested 10 g of cocaine for five people. His account of what occurred subsequent to him being found with cocaine in his possession does not suggest that it was a small amount. He spoke of 30 police forcing their way into his home. He also suggested that the case against him was based on the false testimony of another Albanian man who had agreed to implicate him as a drug pusher. Frankly, the description Mr Markaj provided in his statutory declaration speaks of similar embellishment and falsehoods he used when first detained by border protection officers at Melbourne airport. It is Mr Markaj’s propensity for this type of embellished falsehood which must give rise to serious concerns about his character generally.
Further supporting this observation is the fact that when it was discovered his passport was false, Mr Markaj gave an account of why he had come to Australia but made no mention of the fact that he had been convicted of criminal offences in Italy. He made no mention of his claim that he could be killed if returned to Albania. However, following an overnight stay at Maribyrnong immigration detention centre, he returned to Melbourne airport and provided an account of the so-called blood feud in Albania and requested that he be issued with a protection visa. The first application failed. By reason of Ministerial intervention, he was given a second opportunity to apply for a protection visa but that claim also failed. In fact, the RRT found that he was not at risk of physical harm should he return to Albania. The account given by Mr Markaj in relation to the blood feud was inconsistent and highly improbable. The pattern of Mr Markaj’s behaviour from his attempt to enter into Australia unlawfully up to possibly even the hearing of this matter discloses a disregard for the truth and a significant attempt to stay in Australia at all costs.
I have no doubt whatsoever that the Australian community would not expect Mr Markaj to be granted a Partner visa. To do so would be to implicitly excuse his seriously dishonest behaviour in attempting to enter Australia by unlawful means. Serious conduct is defined in Annex B of the Ministerial Direction in the following way:
Behaviour or conduct of concern where a conviction may not have been recorded, or where the conduct may not, strictly speaking, have constituted a criminal offence.
Such conduct may include, for example, involvement in activities indicating contempt or disregard for the law or human rights, or a history of serious breaches of immigration law. It also includes conduct which may be considered under

s. 501(6)(c) and/or s. 501(6)(d).
Mr Markaj showed no respect at all for Australia’s immigration laws or for the border protection officers whose role it is to enforce those laws. Providing false or misleading information to the Department of Immigration and Border Protection, including not disclosing prior criminal offending is serious conduct. As is stated in the Principles set out in the Ministerial Direction, Australia has a low tolerance of any criminal or other serious conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to come to Australia.
OTHER CONSIDERATIONS
Clause 12 of the Ministerial Direction sets out non-exclusive considerations which must be taken into account if they are relevant. Those relevant in Mr Markaj’s case are:
(a)International non-refoulement obligations; and
(b)Impact on family members.
International non-refoulement obligations
Clause 12.1 deals with this consideration. It relevantly provides:
(1)   A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the act.
(2)   The existence of a non-refoulement obligation does not preclude refusal of a non-Citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)   Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s. 501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)   Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
…
As is indicated by the evidence to which I have referred above, Mr Markaj claims the non-refoulement provisions apply to him by reason of his claim to fear of being killed should he be returned to Albania as a result of a blood feud between families. He has made two applications for a protection visa. Those applications were refused and therefore this avenue for being granted a Partner visa on this application has been closed off. I had in evidence the RRT’s decision records in both protection visa applications. Included in those records was a transcript of interview with Mr Markaj. I also had country information dealing with blood feuds and in particular blood feuds or similar revenge killings in Albania. A Department of Foreign Affairs and Trade (DEFAT) report (CX 94926 dated 30 April 2004) stated:
It is not plausible that as a result of marriage to a Catholic, an Albanian woman would be liable to generalised persecution. Albania is tolerant to different religions and there is very little religious fundamentalism – except possibly for some specific areas in northern Albania.
Although the RRT accepted that Mr Markaj was from an area in northern Albania, it nevertheless found that his evidence regarding the claim concerning the blood feud was untrue. In particular, the Tribunal said, at [43 – 44]:
The Tribunal also considered whether the applicant faces a real chance of serious harm on the basis of his Christian (Roman Catholic) religion, noting his claims that his family’s dispute with the Haxhia family was grounded in a dispute about Mario’s failure to convert to Islam. However the Tribunal has not accepted as true any of the applicant’s evidence as to the claimed blood feud, nor has it accepted that the applicant’s family are in dispute with the Haxhia family for religious reasons. The applicant has made no claims to have suffered harm in the past or to fear harm in the future on the basis of his Roman Catholic religion other than in the context of the claimed blood feud with the Haxhia family and the Tribunal does not accept that he has a genuine subjective fear of harm on that basis. Nor is there any evidence before the Tribunal that would indicate that Roman Catholics are targeted for harm in Albanian (sic), nor that the applicant himself would be targeted for harm in Albania on the basis of his Roman Catholic religion.
For these reasons, the Tribunal does not accept there to be a real chance that the applicant will be harmed by any member of the Haxhia family, nor any other person, as a result of a blood feud in which his family is involved or as a result of his Roman Catholic religion of [or] for any other reason. It follows that the Tribunal does not accept that the applicant has a well-founded fear of harm from the Haxhia family or any other person for reasons of a blood feud if he returns to Albania, now or in the reasonably foreseeable future.
In any event, Mr Gilbert submitted that it was incumbent upon the Tribunal to take into account international non-refoulement obligations. He said the matter should now be determined upon the current circumstances which Mr Markaj faces should he be returned to Albania. On the other hand, Mr Cunynghame noted them when this matter was before a delegate of the Minister, Mr Markaj sought to raise new claims or protection on the basis of general violence in northern Albania due to him being perceived as wealthy. The delegate found that it was not open to Mr Markaj to present non-refoulement claims by way of a Protection visa application given that he was prevented by s. 48A of the Migration Act from lodging a further Protection visa application. The delegate noted that country information made it clear that crime and violent incidents were prevalent throughout Albania but particularly in the north, and targeted people of perceived wealth. The delegate referred to extracts from the United States Office of Safety and Crime in support of the crime and violent incidents experienced throughout Albania.
However, as Mr Cunynghame submitted, Mr Markaj failed to raise those claims in his previous two applications for a Protection visa. Furthermore, the RRT in its decision of 3 September 2014 said this at [20]:
For the following reasons, the Tribunal does not accept the applicant to be a witness of truth, rather it considers his claims to be the intended victim of a blood feud in Albania have been manufactured in their entirety for the purpose of enlivening Australia’s protection obligations.
I did not have before me any additional evidence which might support Mr Markaj’s more recent claims regarding fear for his safety should he be returned to Albania. On the country information which was provided to the RRT, I find that on the balance of probabilities, the RRT came to the correct conclusion regarding Mr Markaj’s claimed fear of serious physical harm should he be returned to Albania.
I was referred to the Full Court of the Federal Court of Australia (Flick, Griffiths and Perry JJ) in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (12 June 2015) decision and in particular to what the court said at [28]:
An exercise of the statutory power conferred by s. 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s. 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s “non-refoulement obligations”.
On the other hand, Mr Gilbert referred me to the more recent decision of the Full Court of the Federal Court of Australia (Bromberg, Davies and Mortimer JJ) in BCR 16v Minister for Immigration and Border Protection [2017] FCA 96 (13 June 2017). In that case, the appellant argued, at [14], that the Minister did not give proper, genuine and realistic consideration to a representation that identified a reason as to why the cancellation decision should be revoked. The basis upon which the Minister sought to avoid consideration of that representation (that non-refoulement obligations would necessarily be considered if the appellant made an application for a protection visa) involved a misunderstanding of the Act and its operation. As Mr Cunynghame submitted, Mr Markaj’s case can be distinguished on its facts. In Mr Markaj’s case, two applications, both going all the way to appeal to the RRT, considered in detail the claimed risk of harm to Mr Markaj’s safety. I had no further evidence of that claimed risk. Accordingly, I find that if Mr Markaj should be removed from Australia, his removal to Albania would not constitute a breach of Australia’s obligation regarding non-refoulement. Even if I am wrong about that, given Mr Markaj’s prior connection with Italy and the fact that he has a biological child who is probably an Italian citizen, Italy may be an alternative country to which Mr Markaj could be safely repatriated.
Impact on members of the family

Mr Gilbert, on behalf of the applicant, placed significant emphasis on this consideration. In fact he went so far as to say that in Mr Markaj’s circumstances, this particular consideration should carry more weight than the primary considerations. This submission appears to be based on the very lengthy process undergone by Mr Markaj in his attempts to remain in Australia. However, that has been due to the choices made by Mr Markaj since his unlawful arrival in 2011.
The circumstances of Mr Markaj acquiring a family in Australia are significant as far as this consideration is concerned. On his arrival in Australia, Mr Markaj was a single man. He previously had a partner in Italy with whom he had a child. While Mr Markaj was imprisoned in Italy, he separated from his partner.
While in detention in Australia, Mr Markaj said that he took to chatting with people on the Internet to take his mind off what was happening. Mr Markaj said that he first made contact with Rosa in late 2011. They communicated, apparently, in a mix of Italian and Spanish although Mr Markaj admitted that Rosa did not fully understand everything which was said. In her statutory declaration, Mrs Markaj said they spoke different languages to each other and there were big things which she missed. One of those was that he was in the Maribyrnong immigration detention centre. She nevertheless proceeded with a meeting. Mr Markaj first met Rosa on 30 December 2011. Their conversations by telephone continued and she became a regular visitor at the detention centre. Mr Markaj said that he fully explained the fact that he had a former partner and child in Italy and the circumstances of his coming to Australia. Within one month, Mr Markaj said that at the end of January 2012 he proposed marriage to Rosa. She accepted and they were married at the detention centre on 26 February 2012.
Despite Mr Markaj stating he had told Rosa everything about his past prior to proposing marriage, and a similar statement is made in a statutory declaration made by Rosa in 2014 (although the copy in evidence is undated and not signed), the second affidavit which appears to have been made by Rosa as a sponsor for Mr Markaj’s Partner visa application in 2012 says something quite different. In that statutory declaration, Rosa said:
Lately my husband was given a ‘notice of intention to consider refusal’ of his Partner visa because he fails the “character test”. I know that Elis did time in gaol in Italy, for drug-related offences. I know that, after that, he was deported from Italy and cannot go back there.
Elis told me about all of this around one month after we were married. He did not have to tell me all this, but he did. He said he was telling me to see if she would still accept him.
The statement I have quoted above causes me some concern about Mr Markaj’s bona fides regarding his marriage to Rosa.
Plainly, the circumstances which led to the marriage with Rosa are most unusual. Not only was Rosa aware that Mr Markaj may not be permitted to remain in Australia prior to marrying him, despite the communication difficulties which existed, the parties not having a common language other than English which appears to have not been particularly strong, Rosa must have been aware of the possible consequences of her decision to marry Mr Markaj.
I should make it clear that the circumstances leading to the marriage do not necessarily affect the genuineness of the affection which has been expressed by various family members. Mrs Markaj’s circumstances are plainly very difficult. She had four children from her marriage which took place on 10 October 1998. She became aware that her husband was unfaithful to her but remained in the relationship for the sake of the family. She finally obtained a divorce on 18 December 2006. By that time, three of the children were adults. Her eldest daughter was addicted to drugs and she desperately needed money to sustain her habit. Mrs Markaj refused to provide money. There were also difficulties with the first child of her eldest daughter who was then living at the home of her former husband’s mother. Being unable to cope, Mrs Markaj returned to Mexico to be with her parents. She remained there for five months.
On return to Australia, Mrs Markaj moved in to live with one of her daughters, who at that time was also caring for her son. That daughter no longer lived with her former partner with whom she had at least one child. As best is able to ascertain, the other two daughters are also without partners at the present time. That has obviously created a significant financial burden on the entire family. I have no doubt that the financial contribution which Mr Markaj made while released in the community was most welcome to the entire family. In a further statutory declaration apparently made by Mrs Markaj after her husband was returned to immigration detention following his release into the community, Mrs Markaj explained that the family had done its best to survive.
Despite the dysfunctional nature of the entire family, the evidence discloses Mr Markaj has made a genuine effort to support his wife and extended family. An assessment done by Mr Peter Moore, a social worker, after Mr Markaj was taken back into immigration detention, plainly supports that statement. Whether his relationship with the entire family would continue were he granted a Partner visa remains questionable. Mr Markaj’s record of being untruthful and manipulative remains of serious concern to me.
I had in evidence statements in support made from six extended family members. Each of those statements speaks highly of Mr Markaj and the positive effect he has had on the family. However, I have some concerns about those statements. The reason is that every one of those statements contains a common spelling error. They all use the word off when what was plainly intended was the word of. That indicates that the author of each of those letters was the same person despite purporting to be the statements of six individuals, each having signed the statement. I must give that evidence little weight.
Dr Peter Cook, a clinical psychologist, also examined Mrs Markaj and provided a report dated 15 August 2016. Dr Cook stated he had spoken with Ms Anna Grant, a psychologist who had provided psychological treatment to Mrs Markaj recently. Dr Cook said:
Ms Grant is a Spanish speaker who indicated she has had considerable experience treating individuals of Latin background. She said Mrs Markaj appeared sad and upset in response to her separation from her husband. She did not consider that Mrs Markaj was profoundly depressed or anxious. She said she had attended three appointments in about three months and discussed a wide range of issues.
Dr Cook administered a formal psychological assessment using a Spanish translation of the Depression Anxiety Stress Scale 21. Dr Cook said that the test is accepted as having adequate psychometric properties and is providing a useful measure of depression, anxiety and stress. Dr Cook found the following:
Mrs Markaj endorsed responses indicating extremely severe levels of Depression, Anxiety, and Stress. All items were endorsed with “Severe” or “Extremely Severe” responses. There was some indication that Mrs Markaj was seeking to indicate an extreme level of distress arising from not having Mr Markaj in her life. The level of anxiety and depressive symptoms endorsed was particularly extreme and was not entirely reflected in her presentation and interview.
Dr Cook diagnosed Mrs Markaj as having adjustment disorder with mixed anxiety and depressed mood in accordance with the diagnostic considerations found in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). He was of the opinion that the disorder was related to her separation from her husband and her anxiety about her future. It appeared her condition had become worse since Mr Markaj had been returned to detention.
While I accept that family members in Australia are likely to suffer both emotionally and financially if Mr Markaj were to be removed from Australia, I am not of the view that this consideration forms a strong basis in favour of Mr Markaj being granted a visa.
SHOULD MR MARKAJ BE GRANTED A PARTNER VISA
Mr Markaj deliberately falsified documents in an attempt to come to Australia. When detained at Melbourne airport, he gave false and misleading information to border protection officers. After spending a day or so at the Maribyrnong immigration detention centre and being taken back to the airport, Mr Markaj then had a different account for the reason why he attempted to come into Australia unlawfully. He sought a Protection Visa.
That application was subsequently denied by the RRT. Mr Markaj was granted a second opportunity to apply for a Protection Visa but that was also subsequently denied by the RRT. Mr Markaj then came into contact with Rosa, an Australian citizen. They were married within one month of first contact and Mr Markaj then applied for a Partner (Temporary) (Class UK) visa. That was rejected by a delegate of the Minister on 19 June 2017.
In determining whether the decision made by the delegate of the Minister was the preferable decision, I am required to apply the considerations found in Part B of the Ministerial Direction. In doing so, I have had regard to the principles set out in the Ministerial Direction and the guidance given regarding taking relevant considerations, both Primary and Other into account.
I have found, and I did not understand it to be disputed, that Mr Markaj did not pass the character test because he had a substantial criminal record having been sentenced to a term of imprisonment in excess of 12 months in Italy, and also his past and present general conduct. The conduct which I have taken into account was his attempt at deception of border protection officers when attempting to unlawfully enter Australia on forged documents and the accounts he subsequently gave to DIBP personnel in both applications for a Protection visa. Those accounts were deliberately false and misleading. Furthermore, when he was found out to be in possession of forged documents, Mr Markaj nevertheless did not disclose his criminal offending in Italy. In addition, although Mr Markaj was granted a Bridging E visa while awaiting the outcome of his second Protection visa application, when that visa was refused, Mr Markaj did not voluntarily present himself for further detention but rather waited for border protection officers to find and arrest him.
The first Primary Consideration is the protection of the Australian community from criminal or other serious conduct. I have found that his offending in Italy was very serious. Those offences are also serious offences in Australia. Serious conduct includes conduct which may not have constituted a criminal offence. In particular, serious breaches of immigration law are considered to be serious conduct. Furthermore, the provision of false or misleading information to DIBP as well is failing to disclose prior criminal offending is regarded as serious conduct. This primary consideration weighs heavily against the grant of the visa sought by Mr Markaj.
The second limb of the first Primary Consideration requires assessment of the risk to the Australian community should Mr Markaj reoffend or engage in other serious conduct. There was no formal assessment by a professional of Mr Markaj’s risk of re-offending. His behaviour while in migration detention is unblemished and he has been perfectly well-behaved at all times. However, his propensity to be manipulative and deceitful as demonstrated by his elaborate falsification of documents to enter Australia and his subsequent accounts of why he should be a person to whom Australia owes protection remains cause for concern. I have found that his risk of re-offending is probably low although should he re-offend, the risk to the Australian community is likely to be significant. In my opinion, this consideration should be regarded as weighing in favour of Mr Markaj being granted a Partner visa, although not significantly so given that some serious doubts remain
The second Primary Consideration is the best interests of minor children in Australia. Although Mr Markaj does not have any biological children in Australia, his marriage to Rosa has resulted in him acquiring a large extended family including four stepchildren and their children which are generally described as his grandchildren. It is the grandchildren to which this consideration is directed as, save for two of them, the remainder are under 18 years of age. Given the limited time Mr Markaj has had to spend with the grandchildren, being limited to a period of 18 months, and that since marrying Rosa, he has spent about three years in migration detention, this is not a strong consideration. It is, with respect, not necessarily indicative of an ongoing close relationship with the grandchildren. While I accept that this consideration favours the grant of the visa, it does not carry significant weight.
The third Primary Consideration is the expectations of the Australian community. In attempting to enter into Australia unlawfully, Mr Markaj showed no respect for Australia’s immigration laws or for those persons required to enforce the laws. He also failed to disclose his criminal offending in Italy. I accept that the Australian community has a low tolerance of any criminal or other serious conduct by visa applicants. It would not expect Mr Markaj to be granted a Partner visa after having attempted to unlawfully enter Australia on forged documents. To do so would be to effectively excuse that unlawful conduct. I find that this consideration carries significant weight in favour of refusing Mr Markaj’s application for the Partner Visa.
As for the Other Considerations, the only relevant matters which fall under this category are international non-refoulement obligations and the impact on family members.
Although I accept that Albania may not have the stability and safety which Australian citizens have in this country, the evidence before me does not lend weight to Mr Markaj’s claims that there is a real risk, greater than the risk to which other citizens in Albania are exposed, that he will suffer physical harm if returned to Albania. This consideration does not weigh in favour of or against the grant of a Partner Visa to Mr Markaj.
The final Other Consideration is the impact on members of his family. I believe it is proper to take into account circumstances in which Mr Markaj came to have a family which was permanently resident in Australia. Those circumstances are sufficient to cast some doubt on the durability of Mr Markaj’s claimed close relationship with members of his acquired family. Although I do not dispute the genuineness of his affection for the grandchildren, and their affection for him, I do have some doubt about other members of the family. The family in effect needs Mr Markaj for financial support while Mr Markaj needs the family in order to support his visa application. Given the doubts I have is a consequence of the evidence to which I have referred in respect of this consideration, I am not of the view that this consideration carries significant weight in favour of Mr Markaj being granted a visa.
CONCLUSION
Mr Markaj does not pass the character test and therefore the discretion to refuse to grant him a Partner visa is enlivened. Having taken into account the Ministerial Directions, I have found that the Primary Considerations carry significant weight favouring refusal of a Partner visa. That is despite the fact that I have given some weight in favour of granting the visa due to the best interests of minor children in Australia. As for the Other Considerations, I have found that the non-refoulement considerations are effectively neutral and the impact on members of his family to give some support to the grant of the visa, although not carrying significant weight. Therefore, looking at the considerations which I am required to examine under the Ministerial Direction, I find that the preferable decision is to refuse Mr Markaj a Partner visa.
I find that the decision made by a delegate of the Minister on 19 June 2017 refusing to grant Mr Markaj a Partner (Temporary) (Class UK) Visa was the preferable decision. I affirm that decision.

99. I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

[sgd]........................................................................
Associate
Dated: 20 September 2017

Date of hearing: 14 September 2017

Counsel for the Applicant: Mr G Gilbert

Advocate for the Respondent: Mr A Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	14 September 2017
Counsel for the Applicant:	Mr G Gilbert
Advocate for the Respondent:	Mr A Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers