Markaj and Minister for Immigration and Border Protection (Migration)

This decision concerned an application for a Partner Visa by Mr Markaj, who was seeking to have his application granted by the Minister for Immigration and Border Protection. The dispute arose because Mr Markaj did not pass the character test, which enlivened the discretion to refuse his visa application. The matter was heard by Senior Member Egon Fice.

The legal issues before the Tribunal were whether the preferable decision was to refuse Mr Markaj's Partner Visa application, and specifically, how the primary considerations outlined in Part B of the relevant Ministerial Direction applied to his circumstances. The Tribunal was required to consider the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that Mr Markaj's actions, including obtaining a false passport and identity documents, and providing false information to Border Protection officials, demonstrated significant preparation for illegal entry into Australia. These actions were considered serious conduct under the Ministerial Direction, particularly given the principle that conduct forming the basis for not passing the character test is serious. While the best interests of minor children were given some weight in favour of granting the visa, the Tribunal found that the circumstances surrounding Mr Markaj's family relationships raised doubts about their genuineness and suggested a transactional basis for the relationship, thus diminishing their weight. Ultimately, the Tribunal concluded that the primary considerations weighed significantly in favour of refusing the visa, and therefore affirmed the delegate's decision to refuse the Partner Visa.