Markaj and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1494

Markaj and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1494 (26 May 2021)

Division:GENERAL DIVISION

File Number(s):      2017/3869

Re:Ellis Markaj

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:26 May 2021  

Place:Melbourne

The decision of the Tribunal is to affirm the decision under review.

........................................................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – refusal to grant visa on character grounds – whether discretion to refuse to grant a visa should be exercised – applicant committed serious offences overseas – use of false passport and history of misleading immigration authorities – applicant married whilst in detention – primary considerations of protection and expectations of the Australian community weigh in favour of refusal – primary consideration of the best interests of minor children weighs in favour of granting a visa – non-refoulement obligations not owed – extent of impediments if removed are minimal – links to Australian community because of strong ties to wife and family weighs in favour of granting a visa – weighing up all considerations –  decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673

SECONDARY MATERIALS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction no. 90: Visa refusal and cancellation under section 501  and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)

REASONS FOR DECISION

Deputy President Britten-Jones

26 May 2021

1. This matter has a long history and involves multiple applications and reviews since the applicant first arrived in Australia on a false passport in October 2011. The applicant was immediately put into detention where he married shortly thereafter. He was twice refused a protection visa. This application relates to a partner visa which was refused on character grounds.

2. On 17 November 2014, the applicant, sponsored by his wife, applied for a Partner (Temporary) (Class UK) visa (the visa). On 15 December 2014, a delegate of the Minister refused to grant the visa. The applicant sought review of the delegate’s decision by the former Migration Review Tribunal, which decided, on 8 May 2015, to remit the application to the delegate with directions for it to be reconsidered.

3. By a notice dated 13 May 2016, a delegate of the Minister informed the applicant of her intention to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth)[1] to refuse his visa application, on the basis that the Minister’s Department held information about his criminal history indicating that he had a ‘substantial criminal record’ for the purposes of s 501(7) and, as a result, did not pass the character test under s 501(6)(a). The applicant was invited to respond. The applicant made extensive representations seeking a favourable exercise of the delegate’s discretion under s 501(1), including by representations on 7 November 2016, 21 November 2016, and 19 December 2016.

   [1] All references to legislation are to the Migration Act 1958 (Cth).

4. On 19 June 2017, the delegate decided to refuse the applicant’s visa. The applicant sought merits review of the refusal. On 20 September 2017, the Tribunal affirmed the decision under review. That affirmation was quashed by the Federal Court on 20 October 2020 and the matter was re-heard by the Tribunal on 22 and 23 April 2021.

   THE CHARACTER TEST

5. Section 501 deals with the refusal or cancellation of a 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

   …

6. Section 501(7) is not restricted to sentences imposed in Australia.[2] The relevant custodial sentence for the applicant was imposed in Italy for a period of three years and four months. The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether to exercise a discretion to refuse to grant the visa having regard to the principles and considerations in Direction 90.[3]

   [2] Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, 139 at [93]; [2010] FCAFC 33.

   [3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501   and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

   Direction 90

7. The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

8. The relevant principles that the Tribunal must apply to the task of deciding whether to refuse a non-citizen’s visa are set out in paragraph 5.2 of Direction 90 as follows:

   (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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens 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 by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

   (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. …

9. In making a decision under s 501(1), the following are primary considerations:

   (i)protection of the Australian community from criminal or other serious conduct;

   (ii)whether the conduct engaged in constituted family violence;

   (iii)the best interests of minor children in Australia;

   (iv)expectations of the Australian community.

10. In making a decision under s 501(1), other considerations must also be taken into account, including (but not limited to):

    (i)international non-refoulement obligations;

    (ii)extent of impediments if removed;

    (iii)impact on victims;

    (iv)links to the Australian community, including:

    a)strength, nature and duration of ties to Australia;

    b)impact on Australian business interests

11. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[4]

    [4] Direction 90 at 7.

    THE OFFENDING IN ITALY AND SUBSEQUENT DECEPTIVE CONDUCT

12. The applicant grew up in northern Albania and moved to Italy in 1997 at the age of 17 years old. About 11 years later, he was convicted in Italy of the following crimes:

    (1)two counts of supplying or selling illegal narcotic substances on an ongoing basis

    (2)two counts of illegal transfer of narcotic substances on an ongoing basis

    (3)buying, possessing and selling illegal narcotic substances on an ongoing basis

    (4)attempted extortion acting jointly

    (5)extortion

13. The translation of the Italian penal certificate records that the offending took place over a period from January 2006 to May 2007. The applicant was arrested for possessing cocaine on 17 May 2007. He was remanded in custody and released on bail on 2 July 2007. In about November 2007 the applicant’s home was raided by police and both he and his partner were arrested for a second set of charges and imprisoned. While on remand for the second set of charges, the hearing of the first charges took place in December 2007. He was found guilty and sentenced to serve 11 months and 20 days, taking into account the time already served under house arrest.

14. The hearing of the second set of charges occurred in mid-2008. He was found guilty and sentenced to a total term of imprisonment of three years and four months and fines of €22,000. He was released from prison on 16 November 2010 and transferred into detention and then deported to Albania.

15. Not long after his return to Albania, the applicant became concerned about an increasingly violent feud between his family who were Catholic and another family who were Muslim. He decided to leave Albania and go to Australia using a fake Italian passport. His first attempt to leave Albania was unsuccessful. On the second attempt he managed to get to Istanbul and then transit to Paris.

16. He used the fake Italian passport to get to Australia where he arrived on 30 October 2011. He was questioned at the airport and maintained falsely that he was Italian. After his luggage was searched, his valid Albanian passport was discovered and he admitted that he was not the Italian man named in the fake passport but was in fact Albanian. He did not disclose his criminal history to the authorities and said falsely that he had never lived in Italy.

17. He applied for a protection visa on 2 December 2011 and said that he had lived in Italy from 1997 to January 2011 when he separated from his de facto partner and returned to Albania. The applicant failed to disclose his criminal convictions at any time during the consideration of his first protection visa application including its review by the Refugee Review Tribunal in March 2012.

18. The Department of Immigration and Citizenship made its own enquiries and on 30 October 2012 was advised by the Italian authorities that the applicant did not have permission to reside in Italy as he was deported because of a court decision which sentenced him to three years and four months imprisonment for drug dealing and extortion. This information was provided to the applicant during his second protection visa interview after he had responded to the initial questions about his criminal history and reasons for returning to Albania. The applicant responded to the information by stating falsely that he knew nothing about these matters and the information did not relate to him. The applicant was given a further seven days after the interview to respond and in his response on 24 April 2013 the applicant reiterated his position that he had never committed any crimes in Italy or been convicted of any crimes and he said that he was in the process of obtaining an Italian police certificate.[5]

    [5] See the reasons of the Protection (Class XA) Visa Decision Record dated 17 July 2013 at pages 482 and 488 of G36 exhibit 11.

19. In submissions to the Refugee Review Tribunal dated 23 April 2014, the applicant’s representative stated that the applicant vehemently denied committing any criminal offences in Italy and reiterated that he had never been convicted of any criminal offences. It was not until 21 July 2014 that the applicant acknowledged that he was charged and convicted of drug trafficking and extortion in Italy although he claimed that the charges were baseless.[6]

    CONSIDERATION

    [6] See the reasons for the decision of the Refugee Review Tribunal dated 3 September 2014 at page 504 of G37 exhibit 11.

    Protection of the Australian community – 8.1 of Direction 90

20. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (2)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 – 8.1.1 of Direction 90

21. The applicant was convicted of offences including buying, possessing, selling and supplying drugs on an ongoing basis. The applicant denies supplying drugs except for one offence of possession of 7.2 grams of cocaine which he claimed he purchased for himself and his friends who were at a party together. He admits to drug use but denies he was a dealer and says that the other drug charges were based on the false testimony of an Albanian man.

22. The extortion charges related to the purchase of a motor bike and again the applicant sought to minimise the seriousness of this offending by saying that he signed the appropriate papers and did everything regularly but that there was some problem with the registration.

23. The applicant’s explanation with respect to the offending is inconsistent with the offences for which he was convicted, and I do not accept it. The applicant was legally represented at the hearing but his defences to the charges were not accepted by the Italian Court. The drug offending was not a once off offence and the extortion charge was made out after a contested hearing. The applicant said in his statement of 22 July 2014:

    [37] When the second set of charges were heard some seven to eight months after my arrest, my lawyer managed to discount much of the supposed ‘evidence’ that supported the drug trafficking charges though the judge still accepted some evidence that had been presented by the police. My lawyer attacked the evidence that supported the “extortion” charge as best as she could, but the legal system there is different from what I understand of the legal system here. In Italy, once I was charged, the onus was on me to prove that I was innocent. The police don’t have to defend the integrity of their charges, rather through my lawyer I had to prove that they were baseless. My lawyer did not manage to prove this to the judge’s satisfaction. As a result, I was sentenced to serve four years and six months imprisonment. As it happened, I did not serve the entire sentence – I was released after three years and four months and released on 16 November 2010. I received a discount on my sentence for good behaviour.

24. The applicant has been convicted of serious drug and extortion charges. There were seven separate crimes committed over a period of 16 months. The seriousness of the offending is reflected in the lengthy term of imprisonment of three years and four months plus a significant fine of €22,000.00.

25. I also take into account that the applicant provided false and misleading information to the Department on numerous occasions over a long period starting with his arrival in Australia in October 2011 on a false passport and continuing up until July 2014. Further, I note that the applicant overstayed his bridging visa and therefore was an unlawful citizen who had to be taken into detention by immigration officers. He did not resist but it showed a failure to comply with Australia’s regulations of non-citizens.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90

26. In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also 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 on the risk of the non­ citizen re-offending; and

    ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    Risk to the Australian community

27. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

    [7] (2014) 225 FCR 424; [2014] FCA 673.

    Nature of harm if further criminal or other serious conduct

28. If the applicant were to engage in further similar criminal offending, then the nature of the harm would be extremely serious because supplying drugs has a devastating effect on the community. In addition, there is a general harm to the community caused by those who breach our immigration laws and seek to mislead our immigration authorities.

    Likelihood of further criminal or other serious conduct

29. The applicant contends that he is a low risk of re-offending. I accept that he has not offended since 2007 and he has spent long periods in prison and detention since that time. He has not misbehaved whilst in detention. He did not re-offend during his time of approximately 20 months in the community. His wife gave evidence that he was extremely caring towards her and very involved with her children and grandchildren. He has developed a loving and supportive relationship with his wife and his new family. Since his time in Italy he has stayed away from drugs and those in the community who may take drugs. His changed and positive behaviour is evidence of his rehabilitation and indicates that he is unlikely to engage in further criminal conduct.

1. Whilst I consider that there is a low risk of the applicant committing further crime, I do remain concerned about the other serious conduct of a deceitful nature carried out by the applicant. The applicant has shown that he will maintain deceit until caught such as when his false passport was found in his luggage and his history of offending in Italy was discovered by the Department about three years after he arrived. Another example is that he overstayed his visa in the community until discovered by the authorities. I note that the Refugee Review Tribunal in its reasons dated 3 September 2014 considered that the applicant’s repeated willingness to provide false information to the Department and the Tribunal about his identity, family circumstances and criminal history reflected poorly on his credibility.

2. The applicant also displayed his deceitful character whilst giving evidence to the Tribunal that was inconsistent with the offences for which he had been convicted. He sought to minimise the effect of his criminal conduct by providing false explanations to the Tribunal which had already been rejected by the Italian courts. His deceitful conduct demonstrates a lack of respect for law enforcement agencies and the Tribunal. I consider there to be a real risk of future conduct of the same nature.

   Conclusion as to protection of the Australian community

3. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[8] The applicant committed serious crimes in Italy and has engaged in other serious conduct in Australia of a very deceitful nature over a relatively long period of time.

   [8] Direction 90 at 8.1(1).

4. I take into account that it is now some 14 years since the drug and extortion offending and that he has expressed remorse. I note that he will benefit from a stable and supportive family environment if released. Consequently, I accept that he is a low risk of re-offending but his deceitful nature is a concern. Further, I consider that the nature of the harm of any re-offending is serious. My conclusion as to the protection of the Australian community is that it is a factor that weighs significantly in favour of refusing to grant the visa.

   Family Violence – 8.2 of Direction 90

5. The applicant has not engaged in family violence or any other type of violence and hence this consideration is not relevant to the decision-making task.

   Best interests of minor children – 8.3 of Direction 90

6. I must determine whether refusal of the visa is, or is not, in the best interests of a child who is affected by the decision. In this case, it is the applicant’s wife’s grandchildren and great-grandchild who are under 18 years old who would be affected by the visa refusal. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that I must consider and are relevant to this application include:

   (a)the nature and duration of the relationship between the child and the applicant. 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;

   (b)the extent to which the applicant is likely to play a positive parental role in the future;

   (c)the impact of the applicant’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 applicant would have on a child, taking into account ability to maintain contact in other ways;

   (e)whether there are other persons who already fulfil a parental role in relation to the child; and

   (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

7. The applicant’s wife has three daughters and a son. She has 12 grandchildren and one great granddaughter. Nine of the grandchildren are under 18 years of age.

8. The Tribunal is assisted by a comprehensive report prepared by a social worker, Peter Moore, in February 2015. Mr Moore conducted personal interviews with the three generations of the Markaj family and provided an assessment as follows:

   During the home visit I structured the interviews of the participants such that I initially met with the youngest grandchildren (aged 5-8) independent of parental supervision.

   ·     These children (B, R, K and A) always referred to Mr Markaj as Grandad and described him as a real physical presence in their lives.

   ·     For many of the younger children Mr Markaj was the only grandfather they had known since he had been in their lives for 3-4 years.

   ·     They related how he played with them and bought them treats.

   I then interviewed the older grandchildren aged 13 and 15 (P and A). S had just been diagnosed with Scoliosis and was feeling unwell, although she did join in subsequent sessions during the home visit.

   ·     P and A related how Mr Markaj assisted them with their homework and encouraged them to excel.

   ·     They were particularly upset as they had been playing in the park opposite the house and eating ice creams provided by Mr Markaj (an apparently common activity) when Mr Markaj was removed by immigration officials.

   Mrs M’s daughters (S and A) related how Mr Markaj:

   ·     Made each grandchild feel special (the effects of this I observed in the warmth of how the grandchildren spoke about him).

   ·     Assisted with the care of K when she was diagnosed with diabetes in 2014.

   ·     Organised and took the family on outings (this is relevant in relation to the families history prior to the involvement of Mr Markaj).

   …

   Impact on Family relationship

   The Markaj family is a very close family. Mrs M’s daughters (S and A) live very near to their mother and are in daily contact. The eldest daughter, C has been previously estranged from Mrs M, as related to in Mrs M’s declaration. C’s siblings informed me that C had developed a closer relationship with their mother since Mr Markaj joined the family. Unfortunately I was unable to confirm this with C as she was seriously unwell and recovering from pneumonia on the day of my visit.

   Mrs M’s youngest and only son (J) together with his youngest child (A) and his pregnant wife (K) live with Mrs M. My observation suggests that J was negatively affected by his biological father's abuse, parent's separation and the unstable family life that his mother provided when she was not coping following her divorce. J appeared very young for his age which would be consistent with this history. K (who has lived with the family for five years) related to me how supportive Mr Markaj was of J and provided a much needed father figure to him. In the short time that Mr Markaj has not been there K has observed J "falling apart".

   P, Mrs M’s grand daughter has lived with Mrs M intermittently for most of her life and spoke fondly of Mr Markaj as the only real father figure she has had. This is despite her having lived with several other family members over the years.

   …

   My observations and the evidence before me identify that during the time Mr Markaj has been returned to the detention centre:

   ·     P's stability has been affected by moving between her mother and her aunt's house, her school work has reportable (sic) suffered and her emotional stability has also been affected;

   ·     K’s health appears to be managed but the strong relationship that Mrs M has previously had with her daughter and granddaughter has been detrimentally affected and the Australian Institute for Health and Welfare highlight that strong family support is essential for the care of young children with type 1 diabetes; and

   ·     The family has lost its primary income source (Mr Markaj) and the support that Mr Markaj was providing to in particular J and Mrs M’s daughters to develop employable skills has been withdrawn so that they do not appear to be able to replace this lost income and are now dependent on Government benefits.

9. I accept and adopt the findings in the above report. There is no doubt that since coming into their family in late 2011 the applicant has had a very positive influence on the young grandchildren. Whilst there have been significant periods of separation, the applicant did live with the family for about 20 months in 2013 and 2014.

10. The applicant’s wife gave evidence which I accept about the applicant’s positive role on the grandchildren:

    Ellis loved being a part of the family, and the family all loved him. They all accepted him as their father and grandfather figure very quickly because he is so caring and loving and makes time for everyone. Our family is overly attached to Ellis. He was easy to get along with, they connected with him straight away and formed a bond with him immediately. My grandchildren call him grandpa. When he was outside in the community and my granddaughter was diagnosed with type 1 diabetes, he was there with my daughter in the emergency room before we even found out. That shows to me that he genuinely cares and loves my family as his own.

    ---

    Ellis has been important to my grandchildren because he has been a male paternal figure for everyone as he is very caring and supportive. He is fantastic with the kids; they love him, and they like to spend time with him they care about him. He acts like a grandparent and he sees them as his grandkids, and not just step grandchildren, he takes care of them and spoils them, and it lifts their moods and spirits. He threw my granddaughter her coming of age party at 15 years old which is traditionally done in Mexico by the parents. He bought the cake and made all the arrangements himself. The kids feel bad because they do not think it is fair that he is in the detention. They want to spend time with him. They see how it affects me, and they wonder how it would be different if he was out during this time.

11. The applicant has a strong and loving relationship with the children of the three daughters and I consider that he would play a positive role as a grandfather if he were to be released. Continued separation will impact negatively on all the grandchildren. By supporting his wife and her children, the applicant improved their capacity to parent and contributed to a more stable environment for the grandchildren. The grandchildren miss their ‘grandfather’ and want him to be released. There are numerous letters to this effect from the grandchildren. I accept the respondent’s contention that the son’s three children would be affected less because they live away. I note that the applicant’s wife does not currently have contact with  the second oldest daughter and her three children (two of whom are under the age of 18) and hence less weight should be given to the applicant’s relationship with those children.

12. The granting of a visa to the applicant is in the best interests of each of the grandchildren. This is a factor that weighs heavily in favour of a visa being granted to the applicant.

    Expectations of the Australian community – 8.4 of Direction 90

13. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.[9]

    [9] Direction 90 at 8.4(1).

14. In addition, visa refusal may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be granted a visa.[10]

    [10] Direction 90 at 8.4(2).

15. Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, it will be necessary to assess the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[11] remain apposite to the expectations of the Australian community under Direction 90:

    [97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.

    …

    [102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.

    [11] (2019) 272 FCR 454; [2019] FCAFC 185.

16. I find that the character concerns arising from the applicant’s criminal conduct and his deceitful nature are such that the Australian community would not expect the applicant to be granted a visa. Further to the crimes committed in Italy, the applicant’s deceitful conduct started with his entry into Australia in 2011 and continued when he dealt with immigration officials and the Refugee Review Tribunal in 2012 and 2014, as well as the Administrative Appeals Tribunal in 2017 and 2021. This raises a serious character concern such that the Australian community would expect the Australian Government to refuse his visa. I note that this expectation of the Australian community applies regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.[12] My conclusion as to the expectations of the Australian community is that it is a factor that weighs significantly in favour of refusing to grant the visa.

    [12] Direction 90 at 5.2(3).

    Other considerations

17. In deciding whether to grant the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[13]

    [13] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

18. The applicant has articulated a risk of harm if returned to Albania. I am required to give separate consideration to this claim and I do so below under the heading of non-refoulement obligations.

    International non-refoulement obligations – 9.1 of Direction 90

19. 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.[14]

    [14] Direction 90 at 9.1(1).

20. The applicant has previously made two protection visa applications and both the applications were refused. The applicant says in his statement of issues, facts and contentions that he does not oppose that the Tribunal could find that his claims have been extensively considered on these matters; however, he maintains that he still fears return to his country Albania, due to a supposed blood feud. These reasons were dealt with by the Refugee Review Tribunal (RRT) decision dated 3 September 2014 as follows:

    (a)The RRT did not accept the applicant to be a witness of truth and considered his claims to be the intended victim of a blood feud in Albania to have been manufactured in their entirety for the purpose of enlivening Australia’s protection obligations.

    (2)the RRT did not accept that the applicant’s family are involved in a blood feud with any family in Albania, nor that the applicant himself has ever sought to resolve such a feud. The RRT did not accept that the applicant was ever threatened, harassed or attacked in Italy or Albania by any person on account of the blood feud in which his family is engaged. The RRT did not accept that the applicant went into hiding in Albania prior to travelling to Australia, nor that fear of harm from any person relating to a blood feud formed any part of the reason the applicant left Albania in 2011.

    (3)The RRT did not accept there to be a real chance that the applicant would be harmed by any person as a result of a blood feud in which his family is involved or as a result of his Roman Catholic religion or for any other reason. It followed that the RRT did not accept the applicant had a well-founded fear of harm from any person for reasons of a blood feud if he returned to Albania, now or in the reasonably foreseeable future.

21. The applicant said in oral evidence that he was still afraid to return Albania because of the problem in his village with the other family. I reject this evidence for the same reasons set out in the reasons of the RRT in September 2014.

22. I find that the alleged risk of harm does not give rise to a non-refoulement obligation. Further as a separate consideration to non-refoulement obligations, I reject the applicant’s contention that there is any real risk of harm or that he has genuine fears if returned to Albania. This factor neither weighs for nor against the grant of a visa.

    Extent of impediments if removed to home country – 9.2 of Direction 90

23. Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Albania in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)The applicant’s age and health;

    (b)Whether there are substantial language or cultural barriers; and

    (3)Any social, medical and/or economic support available to him in that country.

24. The applicant was born in Albania in 1980 and lived there before going to Italy aged 17 years old. He is 40 years old and has no significant health issues. He speaks Albanian and Italian. He gave evidence that his mother and father live in the north of Albania and that he has some uncles and cousins there. He could draw upon these family connections if needed. There are no substantial language or cultural barriers. He has not been to Albania for some time and hence he may have some difficulties in establishing himself, but I do not consider these difficulties to be very significant. I accept that he would miss his wife and new family and that it would be very difficult for him to be separated from them, but I do not consider that he would any difficulty maintaining basic living standards in Albania. I give this factor very limited weight in favour of granting a visa.

    Impact on victims – 9.3 of Direction 90

25. There was no evidence in relation to the impact on victims of a decision to grant the visa. Consequently, this consideration neither weighs for nor against the granting of a visa.

    Links to the Australian community – 9.4 of Direction 90

26. I must consider the impact of a visa refusal decision on the applicant’s immediate family members which in this case would include the applicant’s wife and children and grandchildren. Since being in Australia, the applicant has established himself as a good husband, stepfather and step grandfather and he would be missed significantly by his new family.

1. The applicant’s wife is not well and struggles financially and emotionally. She is 58 years old and has serious health issues including osteoporosis, a displaced spine, an adjustment disorder and depression. She takes medicine for her pain. She is awaiting elective surgery for endoscopic procedures of the stomach and small intestines. If the applicant were released from detention, he would provide much needed support to her. She lives alone in a rental unit and struggles to pay the rent and bills from her Centrelink payments. She misses the applicant’s financial and emotional support, and this would be made worse if he is removed from Australia. I accept the very significant impact on her if he is removed.

2. There would also be a significant negative impact on the applicant’s three stepdaughters who are single mothers who have in the past, and would in the future benefit from having the support of the applicant in circumstances where no support is provided by their biological father. I note that the applicant’s stepson would also be impacted as the applicant is a father figure to him. I also take into account the impact upon those grandchildren who are not minors and therefore have not been considered under paragraph 8.3 of Direction 90. I note that the eldest granddaughter lived with her grandmother and the applicant for a time when the applicant was in the community and has a particularly strong relationship with her step grandfather. She has a daughter of her own and wants the applicant to be part of her life.

3. The children and grandchildren have written heartfelt letters in support of the applicant and I have no doubt that they are genuine when they talk of the positive influence he has had on them all and how they would be negatively impacted by his removal. The family members face significant challenges and adversity due to a variety of health and social issues which would be ameliorated if the applicant could be released into the community to take up his role as husband, stepfather, and step-grandfather. The respondent properly acknowledges that a visa refusal will impact on the applicant’s immediate family members in Australia. These strong ties to the family are a factor that weighs very heavily in favour of granting a visa.

   Conclusion as to whether to exercise the discretion to refuse the visa

4. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to determine whether to exercise my discretion to refuse to grant a visa to the applicant.

5. The primary considerations of the protection and expectations of the Australian community both weigh heavily in favour of refusing to grant a visa. The primary consideration of best interests of minor children and the other consideration of links to the Australian community both weigh in favour of granting a visa. I have given very minimal weight to the extent of impediments if removed. This weighing up exercise requires me to consider the criminal and deceitful conduct of the applicant in terms of the protection and expectations of the Australian versus the best interests of the grandchildren and the impact of removal on the balance of the family.

6. I have reached the view that the protection and expectations of the Australian community outweigh the interests of and the impact on the family. Having committed serious crimes of drug trafficking and extortion in Italy, the applicant then engaged in an elaborate fraud to come into Australia on a false passport without declaring his criminal history. He maintained his deceitful conduct over many years when dealing with the immigration authorities and when before the Tribunal. Whilst engaging in that deceitful conduct he met his wife and built up a relationship with his wife and her family. But for that deceit, he would never have developed that relationship. The consequence of not being granted a visa is significant for his wife and new family but this is outweighed by his serious character flaws which underpin the protection and expectations of the Australian community. I take into account that the applicant has participated in, and contributed to, the Australian community for only a relatively short period of time, namely about 20 months in 2013 and 2014.

7. I place significant weight upon the applicant’s later conduct whilst in Australia because it shows that the applicant has a deceitful character and has complete disrespect for important institutions in Australia such as Australia’s immigration and law enforcement framework. Being able to come to Australia is a privilege conferred in the expectation that non-citizens are law abiding and respect important institutions. The Australian community expects that non-citizens will be refused a visa if they engage in conduct that gives rise to serious character concerns. Australia has a low tolerance of any criminal or other serious conduct by visa applicants who have been participating in, and contributing to, the Australian community only for a short period of time.

8. I conclude that the correct or preferable decision is to exercise the discretion to refuse to grant the visa to the applicant. The decision of the Tribunal is to affirm the decision under review.

64.     I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

........................................................................

Associate

Dated: 26 May 2021

Dates of hearing:	22 and 23 April 2021
Advocate for the Applicant:	A. Youssef
Solicitors for the Applicant:	Immi House Legal
Advocate for the Respondent:	C. Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers