Spano and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1537
•8 June 2022
Spano and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1537 (8 June 2022)
Division:GENERAL DIVISION
File Number(s):2020/4510
Re:Mirella Spano
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:8 June 2022
Place:Canberra
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review to refuse to grant the Applicant’s spouse a Partner (Provisional) (Class UF) visa pursuant to subsection 501(1) of the Migration Act 1958 (Cth).
..........................[sgd]..............................................
Member W Frost
Catchwords
Migration – decision of delegate of Minister to refuse a partner visa under section 501(1) of the Migration Act 1958 – Mr P found to fail the character test – Direction No 90 – primary and other considerations – protection of the Australian community – expectations of Australian community – bogus documentation on entry to Australia – credibility and fabricated evidence – best interests of minor children – links to Australian community – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, s 33(1)(c)
Migration Act 1958, ss 36, 116, 103, 189, 500(1), 501(1), 501(6), 424A, 499(2A)Migration Regulations 1994, s 36
Cases
Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534
Briginshaw v Brignishaw (1938) 60 CLR 336
Commonwealth v Snell [2019] FCAFC 57
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Markaj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 120
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (8 March 2021)
REASONS FOR DECISION
Member W Frost
8 June 2022
INTRODUCTION
The Applicant, Ms Mirella Spano, sought review by the Administrative Appeals Tribunal (Tribunal) of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), refusing her spouse, referred to in these reasons as Mr P,[1] a Partner (Provisional) (Class UF) visa (Visa) under subsection 501(1) of the Migration Act 1958 (Act).
[1] Pursuant to a confidentiality order made by the Tribunal (differently constituted) on 15 April 2021.
This matter, and related Tribunal and Court proceedings, have spanned 10 years. In 2012, Mr P, a citizen of Albania, arrived in Australia on a fraudulent Italian passport issued in the name of another person. Mr P subsequently applied for, and was refused, a protection visa, which ultimately led to the High Court of Australia in 2015 dismissing his application for special leave to appeal orders made by the Federal Court of Australia. During this period, and while in the community, Mr P met Ms Spano in June 2014. They married later that year while Mr P was in immigration detention. He was removed from Australia in June 2015.
In July 2015, Mr P applied for the Visa and was sponsored by Ms Spano. In 2016, a delegate refused Mr P the Visa because they were not satisfied there was a spousal relationship between Ms Spano and Mr P. In 2019, a differently constituted Tribunal set aside the delegate’s refusal decision and remitted it to the Minister’s Department on the basis that this criterion was satisfied. However, in 2020, a delegate of the Minister decided to refuse Mr P the Visa on character grounds under subsection 501(1) of the Act. Ms Spano sought merits review of the delegate’s decision and, in 2021, the Tribunal, again differently constituted, affirmed the refusal decision. That decision was quashed by the Federal Court and the matter was re-heard by this Tribunal in March 2022.
BACKGROUND
Ms Spano is 55 years old.[2]
[2] Exhibit 1, T21, page 356.
Mr P is 29 years old and a citizen of Albania.[3]
[3] ibid.
In May 2010, Mr P applied for a student visa to enter Australia.[4] This was refused in July 2010.
[4] Exhibit 1, T10, page 115; T21, page 231; and Exhibit 2, page 2.
In August 2010, Mr P made another application for a student visa.[5] This was refused in December 2010.
[5] Ibid.
On 29 February 2012, aged 19, Mr P arrived at Brisbane Airport.[6] The Border Clearance Referral Report states that Mr P was met at Gate 75 at 1.05am by immigration. He was refused immigration clearance and detained because he presented bogus documents, being an Italian passport in the name of another person and with a substituted photograph, together with a boarding pass and incoming passenger card in that false name.[7] A visitor visa (subclass 976) was cancelled pursuant to section 116 of the Act because of the bogus documentation.[8] The Border Clearance Referral Report states that between 1.20am and 1.30am, Mr P claimed to immigration officials that he did not speak Albanian and said in English that he was Italian.[9] He then admitted that he spoke Albanian because his girlfriend was Albanian. Mr P also denied the passport was fraudulent. The Border Clearance Referral Report further states that at 1.48am, Mr P admitted he was an Albanian national and provided his correct name.[10] It was noted that Mr P had travelled with one of his brothers, referred to in these reasons as Mr EP, who held an Albanian passport; he is now an Australian citizen.[11] Mr P was reported as emotional and nauseous while observing his brother undertaking a baggage examination and personal body search.[12]
[6] Exhibit 1, T9, page 93; T15, page 202.
[7] Exhibit 1, T9, pages 93-94.
[8] Ibid., pages 92-105.
[9] Ibid., page 93.
[10] Ibid., page 94.
[11] Ibid., page 94.
[12] Ibid., page 95.
It was also recorded in the Border Clearance Referral Report that between 2.54am and 3.05am on 29 February 2012, another interview was conducted with Mr P.[13] The Report notes that he advised officials that he was ‘very tired and felt like throwing up’.[14] Mr P refused the offer of food, asked after his brother and ‘advised that he wants to go back to Albania tonight’.[15] Mr P was advised that he would be interviewed after resting, as he requested.[16] This subsequent interview occurred from 7.40am on 29 February 2012, with Mr P recorded as stating that he did not purchase the airline ticket.[17] The price of the passport and ticket was 5,000 Euros, and this money was ‘given to someone’.[18] The Report states that Mr P was uncooperative in providing details of when, where and to whom he gave the money, but that it may have been three weeks beforehand.[19] After recommencing the interview at 8.38am, the Border Clearance Referral Report records Mr P stating that he decided to come to Australia one to one and a half months ago and the purpose of his visit was that he would ‘love to see Brisbane’.[20] It also stated that he told officials that he was talking to ‘someone some time ago’ and someone gave him the false documentation, although he was ‘uncooperative in providing any names or detail’, but that the arrangement occurred in Albania.[21] The Border Clearance Referral Report also noted that Mr P later corrected his earlier statement regarding the monies paid for the documentation and said that he had paid 2,000 Euros and if he was successful in entering Australia was required to pay the 3,000 Euro balance, however he did not have to pay ‘if he gets caught’.[22] Mr P reportedly did not respond to a question about working in Australia to repay this money, but said he may borrow from his family. Mr P also stated that he did not travel on his Albanian passport and obtain an Australian visa on that passport because he was not allowed to travel to Australia on an Albanian passport.[23] When asked about his Albanian passport, Mr P stated that it was in Italy, but he did not respond to a question about whether it was with the person from whom he obtained the falsified passport.[24] Mr P was also asked whether he had attempted to apply for an Australian visa on his Albanian passport. He said no and that the passport has no value. However, the officials noted to Mr P that his travelling companion, Mr EP, being Mr P’s brother, held an Australian visa with an Albanian passport and that Mr P had in 2010 twice unsuccessfully applied for student visas to enter Australia.[25] At 9.45am the interview was suspended to provide Mr P with a requested break.[26]
[13] Ibid., page 95.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid., page 96.
[18] Ibid.
[19] Ibid., pages 96-97.
[20] Ibid., page 97.
[21] ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid.
At 11.06am on 29 February 2012, Mr P’s immigration interview recommenced and he was provided with notice of an intention to consider visa cancellation under section 116 of the Act due to providing a bogus document to an immigration officer on arrival at Brisbane Airport, being a breach of section 103 of the Act.[27] Mr P was advised that if the visa was cancelled he would be held in immigration detention pending removal from Australia and that he may be subject to an exclusion period of 3 years.[28] Mr P was given 10 minutes to consider his response to the notice of an intention to consider visa cancellation, which was subsequently recorded in the Border Clearance Referral Report as being that, ‘I wish I am home now’.[29] The immigration officer decided to cancel the visa under section 116 of the Act.[30] Mr P was informed of this decision and that he was detained pursuant to section 189 of the Act due to being an unlawful non-citizen in Australia.[31] Mr P’s demeanour in response to this was recorded as being ‘marked by joie de vivre expressions’, including asking if someone could take him out in Brisbane and inviting the immigration official to travel to Albania to stay with his family.[32] Mr P also reportedly ‘expressed his enthusiasm to return home to Albania’.[33] Mr P was subsequently provided with the details of a migration agent, whom he telephoned after the conclusion of the interview.[34]
[27] Ibid., page 98.
[28] Ibid.
[29] Ibid, page 99.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] Ibid., page 100.
On 1 March 2012, the day after his arrival in Australia, Mr P stated that he wished to make a claim for a protection visa.[35] He was interviewed at Brisbane airport and returned to immigration detention.[36]
[35] Ibid., page 103.
[36] Ibid.
On 25 May 2012, a delegate of the Minister refused Mr P’s application for a Protection (Class XA) visa.[37] The delegate was not satisfied that Mr P was a person to whom Australia has protection obligations under section 36 of the Act and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Migration Regulations).[38]
[37] Exhibit 2, RBD2.1, pages 1-16.
[38] ibid., page 1.
On 3 September 2012, following an application for review made by Mr P, the then Refugee Review Tribunal (RRT) affirmed the decision not to grant Mr P a Protection (Class XA) visa.[39]
[39] Exhibit 2, RBD2.2, pages 17-71.
In November 2012, Mr P was released into the Australian community and went to live with his brother, Mr EP, in Adelaide.[40]
[40] Exhibit 1, T10, page 109, 114-115; T11, page 133; and T21, page 231.
In March 2013, Mr P was granted a Bridging visa E.[41]
[41] Exhibit 1, T10, pages 114-115; T11, page 133; and T21, page 231.
On 17 September 2013, the then Federal Circuit Court of Australia dismissed Mr P’s application regarding the RRT’s decision to affirm the decision not to grant him a Protection (Class XA) visa.[42]
[42] Exhibit 2, RBD2.3, pages 72-88.
On 18 April 2014, Ms Spano’s marriage of 25 years ended by way of divorce.[43]
[43] Exhibit 1, T11, page 131.
On 21 June 2014, Ms Spano and Mr P met at ‘Lava’ nightclub in Adelaide.[44]
[44] Ibid.
On 24 July 2014, the Federal Court dismissed Mr P’s appeal regarding the orders of the Federal Circuit Court in relation to his claim for a Protection (Class XA) visa.[45]
[45] Exhibit 2, RBD2.4, pages 89-104.
In August 2014, Mr P was taken into immigration detention.[46]
[46] Exhibit 1, T10, pages 109, 114-115; T11, page 133; and T21, page 231.
On 14 December 2014, Ms Spano, then aged 48, and Mr P, aged 22, were married at an immigration facility in Adelaide.[47]
[47] Exhibit 1, T21, page 231; and T41, page 356.
On 6 May 2015, the High Court dismissed Mr P’s application for special leave to appeal against the orders of the Federal Court regarding his claim for a Protection (Class XA) visa.[48] The High Court noted that Mr P sought to raise before it:[49]
relevantly identical arguments alleging bias on the part of the Tribunal. The applicant’s arguments turn on the application of well-established principles to the particular facts of the applicant’s case. The applicant has had the benefit of two tiers of judicial consideration of those facts, and there is no reason to doubt the correctness of the outcome which was reached at both of those tiers.
[48] Exhibit 2, RBD2.5, page 105.
[49] ibid.
On 22 June 2015, Mr P was deported from Australia.[50]
[50] Exhibit 1, T10, pages 114-115; T11, page 133; and T15, page 202.
On 7 July 2015, the Australian Embassy in Belgrade, Serbia, received an ‘Application for migration to Australia by a partner’ made by Mr P based on his marriage to Ms Spano.[51] The partner Visa is the subject of this proceeding.
[51] Exhibit 1, T11, pages 124-144.
On 3 June 2016, a delegate of the Minister refused the Visa because they were not satisfied that Ms Spano and Mr P were in a spousal relationship.[52] This decision was affirmed by a differently constituted Tribunal on 8 June 2017.[53] However, on 3 August 2018, the then Federal Circuit Court remitted the matter back to the Tribunal for reconsideration.[54]
[52] Exhibit 1, T8, page 89; and T21, page 230.
[53] ibid.
[54] ibid.
On 18 March 2019, another differently constituted Tribunal remitted the Visa application to the Minister’s Department for reconsideration with the direction that Mr P met clauses 309.211 and 309.221 of Schedule 2 of the Migration Regulations in relation to the Visa, being that he was and remained the spouse of an Australian citizen, Ms Spano.[55]
[55] Exhibit 1, T21, pages 229-241.
On 23 April 2020, the Minister’s Department sent Mr P a ‘Notice of intention to consider refusal of your visa application under section 501(1) of the Migration Act 1958’, on the basis of information suggesting that he did not pass the character test by virtue of subsection 501(6)(c)(ii) of the Act relating to a person’s past and present general conduct.[56] This information relevantly related to Mr P’s arrival as an ‘Irregular Air Arrival on a fraudulent Italian travel document’ and the presentation of a boarding pass and incoming passenger card under the name of another person.[57] Mr P was invited to comment on the information and provide reasons on why the Visa application should not be refused even if he did not pass the character test.[58] Mr P’s representative made written submissions to the delegate of the Minister in response to this notice.[59]
[56] Exhibit 1, T6, pages 24-71.
[57] Ibid., page 26.
[58] Ibid.
[59] Exhibit 1, T7, page 72; and T27, pages 249-260.
On 16 July 2020, a delegate of the Minister decided to refuse Mr P’s application for the Visa under subsection 501(1) of the Act because they were not satisfied that he passed the character test.[60] The cover letter enclosing the decision noted that Mr P’s sponsor for the Visa, Ms Spano, could apply to have the decision reviewed by the Tribunal.[61]
[60] Exhibit 1, T8, pages 73-91.
[61] Ibid., page 74.
On 27 July 2020, Ms Spano applied to the Tribunal for review of the delegate’s decision to refuse Mr P the Visa.[62]
[62] Exhibit 1, T2, pages 3-10.
On 13 April 2021, the Tribunal, again differently constituted, affirmed the delegate’s refusal decision.[63]
[63] Exhibit 1, pages 699-715.
On 29 September 2021, following an appeal by Ms Spano, the Federal Court made orders by consent quashing the Tribunal’s decision and requiring the Tribunal to determine the application for review of the delegate’s decision to refuse the Visa according to law.[64]
LEGISLATION & DIRECTION
[64] Exhibit 1, pages 717-719.
The Act
Section 501 of the Act relevantly provides that:
(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:
…
(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 current general conduct;
the person is not of good character…
[emphasis in original]
Subsection 500(1)(b) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501 of the Act. Accordingly, the delegate’s decision to refuse Mr P the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body must comply with such a direction pursuant to subsection 499(2A) of the Act.
On 8 March 2021, the Minister made a written direction under section 499 of the Act, being Direction 90 titled, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s501CA, which commenced on 15 April 2021 (Direction 90).
The Preamble to Direction 90 sets out its objectives and principles, relevantly including:
(a)a non-citizen who does not pass the character test is liable for refusal of a visa (paragraph 5.1(1));
(b)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 (paragraph 5.1(2));
(c)where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise the discretion (paragraph 5.1(2));
(d)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 (paragraph 5.2(1));
(e)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 (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should refuse entry to non-citizens 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 (paragraph 5.2(3));
(g)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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4)); and
(h)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 (paragraph 5.2(5)).
Paragraph 6 of Direction 90 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraphs 8 and 9 of Direction 90, where relevant to the decision. Paragraphs 8 and 9 of Direction 90 identify the considerations relevant to making a decision under subsection 501(1) of the Act, including whether to refuse a non-citizen’s visa. They comprise four ‘primary considerations’ and four specified, but non-exhaustive, ‘other considerations’ which must be taken into account in relation to visa applicants.
Paragraph 8 in Direction 90 sets out the four ‘primary considerations’ as follows:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Paragraph 9 in Direction 90 lists ‘other considerations’ that must be taken into account where relevant, which include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Paragraph 7 of Direction 90 states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for the Tribunal to determine in this proceeding are:
(a)whether Mr P passes the ‘character test’ defined in subsection 501(6) of the Act; and
(b)if not, whether the Tribunal should exercise the discretion in subsection 501(1) of the Act to refuse to grant Mr P the Visa.
EVIDENCE
Ms Mirella Spano
Ms Spano provided a written statement to the Tribunal, which relevantly said that:[65]
I have been married for 7 years to [Mr P] who is currently waiting for his visa in Albania. I cannot believe we are still going through courts after so many years so we can be together. The last comments from the minister's Office about [Mr P’s] character makes me sick. I do not understand that to be with someone you need to analyse the whole family. I am madly in love with [Mr P] and so is he with me. I have visited him and his family in Albania 10 times. Since COVID I haven't been able to travel and it's killing me to be apart and not being able to go and see him. The immigration questioned our relationship and we had to go to court to win. Now they are questioning [Mr P’s] character just because he made a mistake long ago. I know [Mr P] is an amazing human being who wouldn't hurt anyone and never be a threat to the Australian Community. I am tired of answering the same questions everytime we go through tribunal hearings or courts. Im not willing to do that any longer. I asked the tribunal to support my application and help us continue with the process to grant [Mr P] the visa so he came and be together. It has been extremely stressful to go all this over and over without any results. If the immigration is still continuing to question [Mr P’s] character or our relationship I'm going to use all other measures to try and expose their ways of bulling and discriminating people. I will go to the media or other means and I will not stop until I am able to bring my husband home. [errors in original]
[65] Exhibit 3.
Examination-in-Chief
Ms Spano gave evidence at the Tribunal hearing by Microsoft Teams from the Tribunal’s Adelaide Registry and confirmed she had instructed her representative to send the above statement to the Tribunal because it was ‘all true’ and if no one is listening to her, she will use all measures to ‘expose immigration’, whom she said were ‘bullying’ Mr P and ‘discriminating’ people. She will go to the media and is ‘not going to stop fighting’ until she has her husband in Australia. Ms Spano was asked about the accuracy of her comment in the statement that ‘it’s killing me to be apart’ from Mr P and she replied, ‘of course it is’; she has not seen Mr P in person for 2 years. Ms Spano confirmed that the Visa application for Mr P was lodged in 2015. She thought the application would take one year to be processed and recalled that someone at a meeting with ‘immigration’ had told her it would take this amount of time.
Ms Spano also confirmed that she met Mr P in June 2014 at ‘Lava’ nightclub in Adelaide and they married in December 2014 at an immigration detention centre. Ms Spano described Mr P’s qualities that led to her falling in love with him, which included his personality and being a great person. She said Mr P has been ‘really good’ to her, ‘very caring’ and ‘loving’. She also said if Mr P did not have these qualities she would not have remained with him for this long. Ms Spano told the Tribunal Mr P had exhibited no aggression and agreed he has treated her with respect and love. They are committed to each other and she has a tattoo of Mr P’s name on her arm. She had always thought she would not get a tattoo, but wanted his name ‘forever with me’. Ms Spano said she got the tattoo because Mr P is ‘very special to me’. She is also very close to Mr P’s family, who have been ‘very good to me’ and ‘very supportive’. They ‘always ring each other’ and Ms Spano is ‘very welcome in the family’ and treated ‘like a family member’.
Ms Spano told the Tribunal she has two adult children, aged 29 and 28, who had always said if their mother was happy then they are also happy and will support her in any way. Ms Spano confirmed she has grandchildren and assists with babysitting one on a weekly basis, but if she moves to Albania will be unable to do so. Two older grandchildren are at school and she does not ‘really babysit them much like I used to’.
Ms Spano was asked whether Mr P had expressed remorse for arriving in Australia on a false passport. She told the Tribunal that he does and knows ‘he’s made a mistake but that was in the past’, he was ‘only a teenager’, everyone makes mistakes and Mr P knows ‘the difference’. Ms Spano was also asked whether Mr P had told her of the events that occurred in Albania which led him to come to Australia. She confirmed he had and said it was ‘because of the problems that he had there’, which were ‘not too good at all’, there were ‘a lot of threats’ and ‘it wasn’t very safe for him at all’. Ms Spano told the Tribunal she feels that Mr P has grown as a person.
Ms Spano visited Mr P approximately ‘every second day’ after he was taken into detention in 2014. She visited so often because she ‘wanted to be with him’, because ‘that’s what you do’ when in love. Mr P was taking ‘a lot of medication’, he was ‘always sad’, but Ms Spano ‘used to make him happy’ when she visited. The effect on Ms Spano of Mr P’s removal from Australia in June 2015 was described by her as being ‘pretty bad’ and ‘really bad’; she thought she would ‘never see him again’ and did not know whether he would be safe in Albania. Ms Spano said this was ‘a really tough time’, she was worried for Mr P’s safety and missed him ‘very much’.
Ms Spano has visited Mr P in Albania 10 times since he departed Australia in 2015. She told the Tribunal she has visited so often because of the ‘love that we have’, and they ‘had to be together’ and they ‘just want to be together’. In order to travel, Ms Spano had to make arrangements to close her hairdressing salon, rearrange appointments and have someone manage the business in her absence. This was financially difficult due to rent and bills. Travelling was ‘a little bit’ expensive, but Ms Spano ‘sacrificed’, saved her income and planned when she wanted to go to Albania. She also said she risked her ‘life’ and ‘safety’ to be with Mr P because of having to travel by plane on her own and going to an unsafe country. Ms Spano was asked whether Mr P took any ‘precautions for safety’ when she visited. She told the Tribunal that when a man is out in public with a woman it is ‘pretty safe’. They were ‘always’ accompanied by Mr P’s friend and were not ‘alone’, however Ms Spano did not know their names. Ms Spano said that she felt safe with Mr P.
Ms Spano was asked whether it was difficult to be separated from Mr P. She replied, ‘Yes, of course, very difficult’. Ms Spano described being apart from Mr P having had an effect both mentally and emotionally; she has ‘been really alone’ since he returned to Albania, especially last year when her father passed away and her son’s marriage broke down. She ‘felt like I was on my own’ without her husband to support her and ‘like my life is on hold’. Ms Spano again told the Tribunal that if Mr P was a ‘bad person’ she would not be with him, they have been together for 7 years and she would not ‘risk my life’ if she knew he was of bad character. Ms Spano said it had been 2 years since she had visited Albania due to the COVID-19 restrictions on international travel. She has found it ‘pretty hard being apart two years’. She last visited Albania in November 2019 and had planned to go in 2020, but had to cancel her flight. Ms Spano said it was ‘very hard’ not being there for New Year’s Eve with Mr P because she had previously travelled to Albania to be with him at this time.
Ms Spano agreed that it would be good for Mr P’s mental health to be with her. She told the Tribunal she does not know why the Visa process has taken so long; it ‘doesn’t make sense’ and ‘everyone makes mistakes’. Ms Spano said what Mr P had done was not ‘a bad crime’, ‘people do worse’ and that she would not be with Mr P if he was a bad person. She said the couple love each other and they want and need to be together.
Ms Spano told the Tribunal that Mr P’s recently deceased father was ‘very caring’ and loved her like a daughter. Mr P was also described as very caring towards his father, the family are all ‘very close’, they ‘support each other’ and there is a ‘lot of love’. She feels that love and said she is ‘very comfortable’ with Mr P’s family and well treated by them.
Ms Spano was asked what the impact on her would be if the Visa remained refused. She told the Tribunal it would be ‘a lot, it won’t be good’, but she will continue to ‘fight as much as I can to have him here because there’s no reason why he should not be here at all’. Mr P has done ‘nothing wrong’ and she will ‘keep fighting’. She said there had been a lot of hearings, which are ‘very stressful’ and expensive, she keeps repeating herself and not getting anywhere. Ms Spano said ‘no one’s listening to my voice’ and she has a right to have her husband, Mr P, with her in Australia.
Cross-examination
By way of cross-examination, Ms Spano confirmed that she currently works, but sold her hairdressing business before the onset of COVID-19. She meets her own living expenses with her ongoing income as a hairdresser. The people she is closest to in Australia are her family and Mr P’s family, including her mother, two sons, three grandchildren and Mr P’s family. Ms Spano said her sons provide her with emotional support.
Ms Spano was referred to her written statement that she is ‘madly in love’ with Mr P. She confirmed that feeling remains, they had been married for seven years and she has visited him in Albania 10 times. She agreed this travel was a financial sacrifice, but she ‘managed’ because of having her own business. Ms Spano was asked what were the ‘top three’ most enjoyable things she had done in Albania with Mr P. She replied, ‘just being together’, ‘going out’ for dinner and visiting his family and friends.
The Minister’s representative referred Ms Spano to two photographs of her with Mr P in Albania.[66] She confirmed the photos were taken near a beach and at a restaurant. Ms Spano was also referred to the statement in the Tribunal’s decision from March 2019 that the couple ‘mainly stayed together at hotels but they have also stayed with [Mr P’s] parents in their village. [Mr P] and Ms Spano have also visited friends of [Mr P] in Albania’.[67] Ms Spano confirmed that this account was correct. She also confirmed a further reference in that Tribunal decision to photos of the couple ‘at various locations’ were of those taken in Albania, but she could not recall whereabouts in that country.[68] The material before that Tribunal also included videos of the couple in Albania.[69]
[66] Exhibit 1, T4, page 17.
[67] Exhibit 1, T21, page 231.
[68] Ibid., page 238.
[69] ibid.
The Minister’s representative also referred Ms Spano to the following evidence she gave to the Tribunal in 2020 about why she would visit Mr P so often in Albania:[70]
Because that’s the only time I knew that I could see him, so it was more easy – I had to go there. We had to be together. We had to see each other and he wanted to see me. We just want to be together, just have that time.
[70] Exhibit 1, page 442.
Ms Spano agreed that this was an accurate summary of her current feelings. She also agreed that her later evidence that she felt empty and lonely without Mr P was accurate.[71] Ms Spano was further referred to a statement she adhered to at the last Tribunal hearing, being:[72]
When I see my husband, I’m happy and alive. When I leave, I feel alone, and empty, and heartbroken, as not knowing when I will see him again. This is the worst feeling. I cry, and cry, and cry. We need to be together. I don’t want to cry anymore. [Mr P] is my husband, my family, my love, my life, and I’m going to fight until the end for us to be together. Even if it means to go back to court.
[71] Exhibit 1, page 446.
[72] Exhibit 1, page 454.
Ms Spano agreed this statement was an accurate summary of her present feelings.
Ms Spano was also referred to her evidence before this Tribunal that she visited Mr P in immigration detention because of their love and her wanting to be with him, that she feels alone and while she has family it is not the same, her life is on hold, she and Mr P love each other and need to be together and the mental health of Mr P would be improved if he was with Ms Spano. She then agreed that Mr P is the most important person in her life and the love of her life. Ms Spano said she would not separate from Mr P if he was refused the Visa and if all such avenues ended she would ‘probably’ move to Albania or visit Mr P ‘as much as possible’. However, Ms Spano has not yet explored the legality of moving to Albania, it is ‘just the thought’, but agreed they are legally married.
Ms Spano also agreed that everything she knows about Mr P’s reasons for leaving Albania in 2012 is based on what he has told her. She told the Tribunal that if this account was untrue it would not affect her commitment to Mr P. Ms Spano again said that Albanian custom meant that a man was safe in public with a woman and that she felt safe with Mr P in that country.
Re-examination
By way of re-examination, Ms Spano told the Tribunal that she would ‘probably’ find work in Albania if she moved to that country because there are always hairdressing jobs and it is a transferrable trade. However, she would ‘probably’ earn a higher income in Australia and was ‘not really sure’ whether it is feasible for her to work as a hairdresser; she has not ‘really thought about workwise’.
When asked whether moving to Albania would affect the time she spent with family in Australia, Ms Spano said that she would visit annually or twice a year, subject to finances, and in response to a question about whether this would impact how often she saw family in Australia, she said it ‘depends’, her children are adults with their own families and ‘when I feel like I want to come down and see them, I will just do that’.
Ms Spano was asked by her representative whether she feels safe when in Albania. She said she does with Mr P, but did not feel safe in Albania on her own. She would not go out in public on her own if she lived in Albania. Ms Spano was referred to a BBC news article from 2017 in which a female teacher in Albania was quoted as saying: ‘If they follow the rules of Kanun…they would not kill children and women. But nowadays neither the Kanun nor the laws of the state are being followed’.[73] Ms Spano confirmed this was her understanding of the customs in Albania.
[73] Exhibit 6.
In response to the Tribunal’s question about Ms Spano’s earlier evidence that Mr P ‘did nothing wrong’, she said that in her eyes ‘he has not done anything wrong’, she does not think ‘it’s a very big crime, just because he came on a false passport’ and ‘a lot of people do worse things than that’. However, Ms Spano accepted that it was wrong for Mr P to travel on a false passport, but ‘he did admit it’ and she is ‘happy with that’ because he admitted wrongdoing and does not feel that this makes Mr P a ‘bad person, as in character’.
Mr P’s Aunt
Mr P’s aunt made a Statutory Declaration dated 14 September 2020, which was filed in this proceeding and considered by the Tribunal in determining this application.
Examination-in-chief
Mr P’s aunt gave evidence at the hearing by video from the Adelaide Registry of the Tribunal and confirmed that she had known Mr P for 27 years. She is married to Mr P’s uncle, who is the brother of Mr P’s late father. Mr P’s aunt told the Tribunal she was aware that he had tried to enter Australia on a false passport, was detained, then ‘let out into the community’, worked for Australia Post, was detained again and ‘then he was deported.’ She confirmed that Mr P was 19 at the time he arrived in Australia.
Mr P’s aunt was referred to her statement that Mr P is an ‘amazing’ person. She told the Tribunal she had known Mr P since he was a ‘little boy’ and that he has grown into an ‘amazing young man’; he is ‘very respectful’, ‘very well-mannered’, ‘generous’, ‘hardworking’ and respectful of, and close to, family. The family ‘all feel horrible’ because Mr P’s father was ‘never given a chance to visit’ the family in Australia. Mr P’s aunt said her nephew is now showing more than ever ‘how much he loves family’. He is said to be supporting his mother even though he is apart from Ms Spano. Mr P’s aunt said she can say ‘nothing’ bad about his character. He was described as the ‘nicest, the most patient, the most respectful, the most appreciative person’ she had ‘ever met’. Mr P’s aunt told the Tribunal that he had ‘been through a lot’, including being held in detention and told to leave Australia, which was 7 years ago. Mr P’s aunt said he had made a ‘mistake’ when he was 19. He ‘went through something back home’ and ‘was trying to come to Australia because he felt threatened and he still, like back home, you know, he stays home’. Mr P’s aunt said he ‘has to be careful wherever he goes’ and ‘hasn’t done anything wrong’, he was a young man and has no criminal record. In this regard, Mr P’s aunt does not know how it is said that Mr P could be said to be ‘not a good character’.
Mr P’s aunt referred to a meeting with ‘immigration’, in which Mr P was apparently told he needed ‘to go back because you can come back in one year’. Mr P’s aunt told the Tribunal that she was present at this meeting with an immigration officer, together with Mr P’s migration agent, Ms Spano and Mr P. Mr P’s aunt said he was ‘lied to’ by immigration.
Ms Spano’s representative asked Mr P’s aunt why Mr P needed to be careful in his hometown. She told the Tribunal that he was threatened by members of the girl’s family who he ‘had trouble with’ and ‘[t]hat’s what [Mr P] told me when he came here’. He was said to be ‘really stressed’ and ‘very, very anxious’ and ‘even when he went back, they had to be careful to drive with the driver’. Mr P’s aunt referred to Mr EP, Mr P’s brother, being ‘attacked’ when he visited Albania. She also said that even when Ms Spano is with Mr P ‘they have to be really careful where they go’.
Mr P’s aunt was asked why she said in her statement that Mr P would never do anything to hurt anyone or be a threat to the community. She said it was ‘because I know [Mr P] and I know what a human being he is’ and that he was ‘so young’ when he ‘made that mistake, but he’s not that kind of person that he would hurt anybody’. Mr P’s aunt said he ‘really, really loves’ Ms Spano and Mr P’s aunt knows how much he has done to support Ms Spano ‘during this time that she couldn’t go’. She said Mr P does not sleep until morning in Albania, because he talks to Ms Spano all night on the telephone. Mr P’s aunt said she had never seen him ‘doing anything wrong to anybody’.
Mr P’s aunt said she saw Ms Spano at the time Mr P was removed from Australia. Ms Spano was described as being ‘broken’, ‘devastated’ and ‘crying’. Mr P’s aunt said Ms Spano is ‘really, really sad’ and she ‘can’t believe this is still going on, really, after all these years’. Mr P’s aunt also told the Tribunal she does not know how much proof is required that he is of good character; Mr P made a mistake when he was young but does not have a criminal record. She said Mr P is not going to be a threat to the community and will work and build a life with Ms Spano in Australia.
Mr P’s aunt said if the Visa remained refused it would have a ‘[d]evastating’ impact on Ms Spano. Mr P’s aunt said she knows how Ms Spano feels about him and it was ‘really, really hard for her’ and she had spent many days attending legal proceedings to bring him to Australia. Mr P’s aunt told the Tribunal that Ms Spano has family in Australia, she loves Mr P and ‘she might be ready to give up everything here and go back there’, to Albania, but asked ‘can you imagine how that is for her?’ Mr P’s aunt said she feels ‘horrible’ for Ms Spano going through these processes to be with her husband and that ‘it’s time immigration understands that this cannot go on like this’.
Mr P’s aunt was asked whether it would be difficult or easy for Ms Spano to establish her life in Albania. She said it would be ‘really hard’; Ms Spano has children and grandchildren in Australia. Mr P’s aunt said she did not know whether it was dangerous for Ms Spano to live in Albania, but that Mr P ‘still feels threatened’ in that country and is ‘very cautious’ when he ‘moves around’ and this would occur when he was with Ms Spano.
Mr P’s aunt was referred by Ms Spano’s representative to the 2017 BBC article[74] and asked whether she agreed or disagreed that, according to ‘Kanun’, being the customary rules or laws in Albania, that women and children should not be killed. Mr P’s aunt agreed, but said that:
it’s happening. They are being killed. They are. We have a woman in our region, actually, that happened a few years ago. She was with her child and, like, a son, which according to the [Kanun] the son gets killed…But in fact they killed the mum.
[74] Exhibit 6.
Mr P’s aunt described family as being ‘very important’ in Albanian culture; they have a ‘very close’ family, who value, respect and support each other. Her husband came to Australia as a refugee when ‘really young’ after escaping the then communist regime and has worked in Australia since arriving, paid taxes and has no criminal record. Mr P’s aunt said she is the same and they contribute to their community. Mr P’s brother, Mr EP, who was said to have arrived on a partner visa, lives and works in Australia, pays taxes and has no criminal record. Mr P’s aunt said the family ‘feel a little discriminated’, because ‘they talk about our family like we’ve done things wrong and we’re not a good family’; they are ‘devastated’ by ‘the immigration’s comments about our family’ and they are a ‘very well respected family’ and supported by the community. Mr P’s aunt was referred to the Minister’s Statement of Facts, Issues and Contentions filed in this proceeding, and confirmed this was the document she was referring to when she said her family had been discriminated against.
Mr P’s aunt was asked what family Mr P has in Australia. She told the Tribunal Mr P has a brother, two uncles, aunties, and a grandfather, together with two nephews and a niece aged 13, 10 and six, plus three cousins. Mr P was described as being ‘very close’ with his nephews and niece; they ‘talk to him on the phone all the time and on Skype’ and stayed in the same house as Mr P when visiting Albania. Mr P’s aunt said it was presently a ‘very difficult time’ due to the recent death of Mr P’s father in Albania and the youngest child in Australia is asking ‘every night’ to speak to her deceased grandfather on the telephone, but the child cannot understand why he is not answering. Mr P ‘has to come on Skype and try and explain to her that she needs to see him on her dreams’. Mr P’s aunt was asked about the impact on these three children if the Visa remained refused. She told the Tribunal that they are a ‘very, very close family’ and Mr P and his siblings are ‘all close’, but the three children will ‘grow without having him around and they’re going to be saddened by that of course’. It is also ‘not easy’ to visit Albania. The children are ‘going to be missing’ their uncle ‘all the time’, especially now with their grandfather having recently passed away.
Mr P’s aunt said she had contact with her now deceased brother-in-law and was close to him; she also said she and her nephew ‘are really close to each other’. She had seen Mr P take care of his father ‘[a] lot’ and described them as being ‘like best friends’. Mr P’s aunt said Mr P and his father would ‘try to support each other’ when ‘either of them were feeling down’ and Mr P helped on the family farm or when his mother was feeling sick; he was ‘there for everything they needed’. Mr P and his late father would go out of their property together because of Mr P’s ‘condition’.
Cross-examination
Under cross-examination, Mr P’s aunt confirmed that he has two nephews and a niece in Australia, that they speak every day on the telephone and have a close relationship. Mr P last saw them in person when they visited Albania in 2018. Mr P’s aunt also confirmed that she has a close relationship with these children and Mr P’s family in Albania, despite living in different countries. Mr P’s aunt thought Mr EP and his children had visited Albania three times and recalled he was there when she was in 2018 and stayed at the family home.
Mr P’s aunt confirmed that he has three siblings, who all live in different countries to each other and none reside in Albania. She confirmed that she and her husband chose to live in Australia instead of Albania. Mr P’s aunt acknowledged that life in Albania ‘can be hard’ and the Australian-based family had provided the family in Albania with money to assist with the ‘horrible time’ in Albania coming out of communism. She told the Tribunal that Albania had ‘changed a lot’ since she left in the mid-nineties, however the ‘Kanun’ tradition had not changed. The economic ‘abilities and financial situation’ of Albania had changed because it had ‘opened the doors to the world and people started migrating’, business was growing, people were able to work and own their own enterprises and it had ‘started becoming like the rest of Europe’.
Mr P’s aunt was asked whether she thought of moving her family back to Albania. She told the Tribunal she had, they get homesick ‘all the time’, they miss their country and culture, but ‘Australia has given us a lot of opportunities and we really appreciate Australia’. Mr P’s aunt said they have ‘built our life here now’, they visit Albania often, but as they get older ‘who knows’. She was asked whether she came to Australia for economic advancement and told the Tribunal it was because she was in love with her husband; they were engaged for two years before she came to this country. Mr P’s aunt said her husband could have been killed and crossed a river near the family’s house to escape because police from the former Yugoslavia were ‘shooting at them’; after escaping the communist regime, he was in a camp and then granted refugee status to come to Australia.
Mr P’s aunt was asked why his late father was unable to get a visa to visit Australia. She said it was because immigration considered that ‘he’s going to overstay’ his visa, but the family tried to convince them that he would not because of his life in Albania, although now he cannot come ‘because he’s gone’. She was further asked whether it was impossible for him to get a visa because he was from Albania. Mr P’s aunt replied, ‘[m]aybe. I don’t know’. She could not remember whether the decisions refusing Mr P’s father a visa referred to him being from Albania and that he would not return to that country. Mr P’s aunt was asked about what she described as the ‘discriminatory’ statement in the Minister’s Statement of Facts, Issues and Contentions in this proceeding. She said it was the reference to the family’s immigration history and Mr P’s ‘implausible denial’ and considered the family were ‘treated not right’. Mr P’s aunt was asked whether she knew of one of his other brothers attempting to come to Australia. She told the Tribunal that ‘I think I read in here that they said he tried to come to Australia’, but it was a long time ago and she did not know whether he tried to enter using fake passports. He lives in Singapore with his immediate family. Mr P’s aunt said this brother had gone to Singapore to study at university. When asked why he had not studied in Albania, she said universities in that country were ‘limited’, he wanted to have more opportunities, the course he wanted to study was not offered in Albania and it was a different system at the time; young people were looking for other opportunities such as studying abroad to increase their employment prospects.
Mr P’s aunt confirmed that his sister lives in Italy because her Albanian-born husband was already living in Italy. She said ‘a lot of people migrated abroad from Albania’ because of the communist ‘system’.
The Minister’s representative put to Mr P’s aunt that her evidence was that a lot of people leave Albania to pursue better opportunities. She said this had previously occurred and Albania cannot pay wages like in the United States of America (USA) or Italy, but a lot of people had chosen to build their lives in Albania; it is ‘different now’. She said ‘[a] lot of people’ now get paid quite good money in Albania and was unsure whether remuneration levels were different from Australia, but said it was true that an IT professional in Albania would not be paid the same as in the USA or Australia. Mr P’s aunt said people were paid in accordance with the living expenses of the country and Albania was ‘cheaper’ than the USA or Australia. Mr P’s aunt acknowledged that people ‘[s]ometimes’ leave Albania for financial reasons, but also for other reasons such as love and to build a family, which was no different to some Australians going abroad. She told the Tribunal she was aware of Mr P’s applications from 2010 to study in Australia.
Mr P’s aunt was referred to her evidence from the previous Tribunal hearing in 2020, that Mr P ‘always was close to me because I’ve known him since he was little and he told me – he will tell me everything’.[75] She agreed with this statement and said ‘it’s been always like that’. She told the Tribunal Mr P had told her about his issues in Albania when he came to Australia and that he was ‘very scared’ and scared that ‘everybody would judge him’. She was unsure whether any family members knew about this issue until Mr P was in Australia. Mr P’s aunt said he told her that he was ‘scared of Albania’ and remembered seeing him ‘panicking’ when she visited him in immigration detention. She said he told her he was afraid of ‘[p]eople, like, trying to harm him because he had a relationship’. Mr P’s aunt said he had told her they ‘could have killed him’. She could not remember whether he said when he started receiving these threats, but that they were by telephone. Mr P’s aunt thought he had changed his phone number, but could not recall the exact conversations.
[75] Exhibit 1, page 558.
The Minister’s representative again took Mr P’s aunt to her evidence from the previous Tribunal hearing in 2020, that:[76]
All I know is that he was in a relationship with [a] Muslim girl and they, like, broke up or something and then he was in trouble. They were looking for him. And that was our main concern, it was we were all scared about his safety.
[76] Exhibit 1, page 561.
She confirmed the reference to ‘we’ in this statement was to ‘[a]ll the family’. Mr P’s aunt was asked what steps were taken to protect him. She told the Tribunal that they tried to ‘avoid his going out’ and making sure he was ‘always’ accompanied. She was unsure whether anyone spoke to Albanian police about this issue, but said that when Mr EP went back to Albania there was an ‘incident’, whereby ‘someone had mistaken his car’ for Mr P’s car and then there was ‘a shooting or something’. It was said that ‘[t]hey went to police’, who tried to investigate, but it was difficult because there were ‘no cameras’. Mr P’s aunt said she thought his father had told police when this incident happened, but she was unsure whether they had been approached before this time and before he came to Australia.
Mr P’s aunt was referred to his statement during an interview for his protection claim that he regularly received threatening calls from a blocked number with a male voice declaring they were going to kill him and ‘cut his head off’.[77] She did not know whether the police were told of these threats, but agreed that she would have told someone if she received such a theat. She does not ‘know many details of that’, but said people make ‘those threats every day in Albania’ when ‘there is blood feuds’. Mr P’s aunt told the Tribunal her understanding was that Mr P’s family was in a blood feud because of this issue. She does not know the surname of the other family, but recalled the girl’s first name. Mr P’s aunt said that in a blood feud the other family will ‘look for the cause’s brother, father, and son’, that is, close family. She told the Tribunal that the two families ‘negotiate and then the[y] decide’ who can be killed. She said her immediate male family members were not at risk, but her understanding is that Mr P’s father and brothers are ‘who they are targeting’. Mr P’s aunt told the Tribunal that one of his brothers, Mr EP, has been to Albania with his own children because he wanted to see his family, but they have ‘protection all the time and it’s in his own risk’. She said her understanding is that Mr EP’s young sons are at risk of execution in Albania and notwithstanding that risk he brought them to Albania, but cars are always ‘accompanying the family’. She was asked about the protection to prevent Mr EP’s sons from being shot. Mr P’s aunt replied that in Albania you can ‘get a car…and a police car or somebody to protect you’, which can be organised before arriving at the airport. She said someone can accompany you to the family home. She was asked whether the assistance of the Albanian police had been used and said it had not, ‘but always there is other people from the family or from the closest family in the village that come and accompany the family, for example, coming from overseas’.
[77] Exhibit 2, RBD2.1, page 6.
The Minister’s representative asked Mr P’s aunt whether Mr EP would arrive at the airport in Albania with his children and there is a security detail to convey them to the family home. She said family members provide this protection. However, Mr P’s aunt told the Tribunal her husband did not have this protection because he was not part of the feud, it is only ‘the close family’ and contained to the household. Mr P’s aunt was unsure whether it was a one-sided feud with the other family wanting to kill her family members and said she is wishing it did not happen but the family has ‘got to learn to live with that’.
Mr P’s aunt was asked whether she thought any of this actually happened and whether it was true that she did not know the identity of the other family. She agreed she did not know the identity or the other family and that everything she does know about Mr P’s relationship with the Muslim girl, Naime, had come from Mr P. When Mr P’s aunt was asked whether anything had happened to her personally in Albania to suggest that the blood feud is real, she said that nothing had occurred to her personally and referred to a separate blood feud involving the killing of one of her cousins. She told the Tribunal that it does ‘happen every day’, they see it on the television news.
Mr P’s aunt was referred to his evidence at the last Tribunal hearing in 2020 where he stated that if someone is threatened in Albania and they report this to the police, they will ‘get executed straight away’.[78] She said it ‘depends’, was ‘not sure’ and then said she did not know, although it ‘does happen every day’. Mr P’s aunt told the Tribunal that she has heard stories about people getting into conflicts for different reasons having made a report to police and then being killed the ‘next day’.
[78] Exhibit 1, page 601.
Mr P’s aunt said it ‘has been difficult’ for Mr P in Albania and also agreed with her evidence at the previous Tribunal hearing that he felt ‘amazing’[79] every time Ms Spano visited. Mr P’s aunt further agreed that, despite the blood feud, Mr P’s time with Ms Spano in Albania is ‘amazing’; she has witnessed this on her own visits to Albania. Mr P’s aunt said she had supported Ms Spano as much as possible since Mr P left Australia and they catch up on a regular basis and agreed this will continue regardless of what happens.
[79] Exhibit 1, page 559.
Mr P’s aunt was asked about Mr P’s positive contributions since he returned to Albania. She said he was working and supporting his late father on the family farm where the homestead is located. Mr P’s aunt agreed the family were working class and not rich, although they now own their land following the end of communism. She also agreed the farm work was hard, but personally rewarding. Mr P’s aunt told the Tribunal the farm has dairy cows and crops. Mr P’s late father had been ‘mainly’ responsible for the farm, with Mr P ‘helping’, together with his mother. Mr P’s aunt was asked whether there was much for young men to do in the village and she said Mr P is friends with some of his male cousins.
Re-examination
In re-examination, Mr P’s aunt was asked about the family farm in Albania. She agreed the home and yards are all walled. Mr P’s aunt said Mr EP would take his children to see the animals on the farm and Albanian custom is that a person cannot be harmed while in ‘your walled home’. She agreed that there are times when it is unsafe in Albania. Mr P’s aunt told the Tribunal that she had heard of ‘quite a few’ Albanians being refused visitor visas to Australia. She also agreed that honour killings were common in Albania, they see it on television and that there are similarities between blood feuds and honour killings, although she was unsure of the difference. Mr P’s aunt told the Tribunal that she was aware of ‘[a] lot of cases’ where people were ‘locked in’ their home because they were afraid to leave and do not want to risk being killed. She was referred to her evidence that her first cousin was killed as part of a blood feud whilst riding a horse and said there were arguments. Mr P’s aunt said that the police cannot protect people in a blood feud. She also said guns are easily available after the fall of communism.
Following re-examination, the Tribunal referred Mr P’s aunt to her earlier evidence that his immediate male relatives were under threat from the blood feud. She agreed with her earlier evidence. The following exchange then occurred:
And that included [Mr EP], did it?---Yes. Yes.
Would it be usual, then, for - if people shot at a car, without killing a person in that car, for them to then speak to the person in the car and not proceed to kill them, knowing that they're a very close relative of the person they wanted to kill?---No, it's not. It happens every day. People go and kill by mistake thinking that it's someone else. We hear it every day.
Yes, well, I suppose I'm asking - - -?---It happens in Albania, like - - -
Yes, but - so there's an alleged incident where [Mr EP] is shot at because he's driving a car, which apparently - - -?---Yes. I think they believed it was [Mr P’s] car.
Apparently, yes. But if [Mr EP] is part of this immediate family, wouldn't the people proceed to kill him, shoot him, rather than speak to him and let him go?---I don't know if they spoke to him. But they tried to shoot the car.
Ms Spano contended that the hardship that she, as an Australian citizen has suffered and will continue to suffer if the decision under review is affirmed, should be an extremely significant factor weighing on the Tribunal’s decision.[169] Additionally, Ms Spano’s family in Australia are said to be eager to welcome Mr P as a family member and are deeply concerned about the stress and hardship on Ms Spano. Mr P’s family in Australia are also said to be deeply impacted by a decision to refuse him the Visa.[170] The Minister accepted that this consideration weighs in favour of granting Mr P the Visa, but submitted that it does not outweigh the primary considerations weighing heavily against granting the Visa.[171]
[169] Applicant’s Statement of Issues, Facts and Contentions dated 17 December 2021, paragraphs 31-32.
[170] Ibid., paragraph 33.
[171] Respondent’s Statement of Facts, Issues and Contentions dated 21 January 2022, paragraph 92.
As set out above in these reasons, paragraph 9.4.1(1) of Direction 90 requires the Tribunal to consider any impact of the decision on Mr P’s immediate family members in Australia. Ms Spano is an Australian citizen. She met Mr P in June 2014 and they married later that year. In mid-2015, Mr P was removed from Australia. Ms Spano has been married to Mr P for almost eight years. She has visited him in Albania 10 times since he was removed from Australia approximately seven years ago, noting that since early 2020 Ms Spano was unable to travel internationally due to the COVID-19 pandemic. Based on the evidence before the Tribunal, it is satisfied that Ms Spano has suffered mental, emotional and financial hardship due to being physically separated from her husband and from the continued uncertainty about the Visa. For the avoidance of doubt, the Tribunal does not dispute the genuine nature of Ms Spano’s relationship with Mr P or the strength of that union. Ms Spano is plainly deeply in love with Mr P and has experienced significant stress at their current situation, including due to the numerous associated Tribunal and court processes. There are of course also substantial costs in relation to these processes, the Visa application and Ms Spano’s travel. The couple have also lost valuable time together since Mr P left Australia almost eight years ago and their desire to be together will likely impact their living arrangements into the future. In this regard, Ms Spano gave evidence that she would consider moving to Albania to live with Mr P if he was refused the Visa or otherwise travel as much as possible to visit her husband. Plainly, this would detrimentally impact Ms Spano, including her established life in Australia and the ability for her to reside in this country without having to travel to, and potentially reside in, Albania. The Tribunal accepts that both of these scenarios would give rise to emotional and financial costs for Ms Spano. For example, if she were to relocate to live in Albania, Ms Spano would leave behind in Australia her mother and adult sons, together with her grandchildren for whom she has caring responsibilities. She would also be faced with life in a country in which she does not speak the language and considers herself unsafe alone in public. Were she to visit Australia from Albania, Ms Spano would not be able to do so with Mr P. This prospective situation would undoubtedly be difficult, but she would have the love and support of her husband were they to live together in Albania. Having regard to all of the relevant factors, the Tribunal is satisfied that a decision not to grant Mr P the Visa would have a significant adverse impact on Ms Spano and finds that this factor weighs heavily in favour of not exercising the discretion to refuse to grant Mr P the Visa.
For completeness, the Tribunal is also satisfied that Ms Spano’s two adult sons, being Mr P’s step-children, will be detrimentally impacted by a decision not to grant Mr P the Visa, although they have not yet met their step-father in person and communicate by electronic means. Most particularly, Ms Spano’s children will be impacted due to the associated impact of an unfavourable decision on their mother and their potential separation from her in the event that she relocated to Albania. As a result, the Tribunal finds that this factor also weighs heavily in favour of not exercising the discretion to refuse to grant Mr P the Visa.
While paragraph 9.4.1(2) of Direction 90 expressly relates to consideration of whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, and does not expressly relate to the refusal to grant a visa, which is applicable in this proceeding, for completeness, the Tribunal considers the strength, nature and duration of any other ties that Mr P has to the Australian community, including how long he has resided in Australia pursuant to paragraph 9.4.1(2)(a) of Direction 90. Mr P resided in Australia between February 2012 and June 2015, a period of three years and four months. However, from his arrival in Australia in February 2012 until November 2012, Mr P resided in immigration detention. He was then released in November 2012 and lived in the Australian community until August 2014, a period of almost two years. From August 2014, Mr P was again in immigration detention in Australia until his removal in June 2015. Mr P does not have a criminal record in Australia or elsewhere. While living in Australia, he has also made modest positive contributions to the Australian community, most specifically through his employment with Australia Post and therefore payment of income tax. The Tribunal also had evidence before it of Mr P attending church and playing a role in the lives of his two nephews while he lived in Australia, noting again that his niece was not yet born when he departed in mid-2015. The Tribunal finds that these factors weigh moderately in favour of not exercising the discretion to refuse Mr P the Visa.
Pursuant to paragraph 9.4.1(2)(b) of Direction 90, the Tribunal also considers the strength, duration and nature of any family or social links Mr P has with Australian citizens or permanent residents. Mr P has an extensive family in Australia, including one of his brothers, Mr EP, and his family living in Australia, including Mr P’s two nephews and niece, together with a grandfather, step-grandmother, uncles, aunties, cousins and members of Ms Spano’s family, including Mr P’s adult step-sons and step-grandchildren.[172] The Tribunal accepts that Mr P’s family are very close and loving and that these links are strong. Mr P’s family continue to provide Ms Spano with support in Australia during this difficult time, they consider her to be family and include her in family gatherings. Furthermore, Mr P’s aunt, who resides in Australia, gave evidence that she is extremely close to her nephew and has known him since he was a child. The Tribunal also had multiple letters or statements of support from family, friends and associates in relation to Mr P, which it has considered in making this decision.[173] To this end, Mr Ognjenovic told the Tribunal that, despite their different backgrounds, he considers Mr P a friend because he is a good person and would offer him employment with his business if Mr P returned to Australia. Despite Mr P’s relatively short time living in Australia, he has strong links to the Australian community, especially his family and that of Ms Spano. The Tribunal accepts that Mr P’s family would be deeply impacted by a decision to refuse him the Visa. It also accepts that Ms Spano’s family will be significantly impacted by an adverse decision. For completeness, the Tribunal is also satisfied that Mr P’s friend, Mr Ognjenovic, would be impacted by an unfavourable decision, although to a lesser extent to Mr P’s and Ms Spano’s families. Having regard to all the evidence, the Tribunal finds that the strength, nature and duration of Mr P’s ties to Australia weighs heavily in favour of not exercising the discretion to refuse to grant him the Visa.
[172] Exhibit 1, T20, pages 223-224.
[173] See, for example, Exhibit 1, T22, pages 242-244; T32, pages 269-273; and pages 395-400.
Impact on Australian business interests
The Tribunal again notes that, between May 2013 and July 2014, while he was living in the community, Mr P worked for Australia Post delivering parcels, including to businesses in Adelaide. Paragraph 9.4.2(3) of Direction 90, set out above in these reasons, relevantly states that an employment link would generally only be given weight where the decision under section 501 of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have such an impact. Accordingly, the Tribunal finds that this consideration is neutral in its decision and is given no weight.
Conclusion: Links to the Australian community
In conclusion, for the foregoing reasons, the Tribunal finds, on balance, that this ‘other consideration’, links to the Australian community, weighs heavily in favour of Mr P and against exercise of the discretion to refuse to grant him the Visa.
CONCLUSION
The Tribunal has found that Mr P does not meet the ‘character test’ as defined in subsection 501(6) of the Act because, having regard to his past and present general conduct, Mr P is not of good character. This failure emanates from Mr P’s attempt to enter Australia with false or bogus documentation and the continuation of his claims to fear for his life in Albania that the Tribunal has found are not genuinely held by Mr P.
Pursuant to subsection 501(1) of the Act, 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. As a result of his failure to pass the character test, Mr P was refused the Visa by a delegate of the Minister in July 2020. Ms Spano, as Mr P’s spouse, applied to the Tribunal for review of that decision. Following this Tribunal’s finding regarding the character test under the Act, the critical issue for determination was whether it should exercise the discretion under subsection 501(1) of the Act to refuse to grant Mr P the Visa. This required a consideration of Direction 90.
The Tribunal is satisfied, based on its assessment of all considerations in Direction 90, that the one relevant listed ‘other’ consideration, together with Primary Consideration 3, regarding the best interests of minor children in Australia, do not outweigh the remaining relevant primary considerations, being Primary Consideration 1, the protection of the Australian community, and Primary Consideration 4, the expectations of the Australian community. That is, the Tribunal has found that Primary Consideration 3 and the other consideration of the ‘links to the Australian community’ both weigh against exercising the discretion to refuse the Visa, with the latter weighing heavily in Mr P’s favour, but they do not outweigh Primary Consideration 1 and Primary Consideration 4, both of which weigh heavily in favour of exercising the discretion to refuse to grant Mr P the Visa. The Tribunal again notes that, pursuant to paragraph 7(2) of Direction 90, primary considerations should generally be given greater weight than other considerations.
The weight attributable to Primary Consideration 1 and Primary Consideration 4 outweighs those in favour of Mr P and the Tribunal not exercising the discretion to refuse to grant him the Visa. Accordingly, Ms Spano’s application is unsuccessful. The Tribunal acknowledges that this decision will be very difficult for both Ms Spano and Mr P. However, based on the evidence and applying the terms of the Act and Direction 90, the Tribunal is satisfied it has reached the requisite correct or preferable decision in this proceeding.
DECISION
Pursuant to subsection 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review to refuse to grant Mr P a Partner (Provisional) (Class UF) visa pursuant to subsection 501(1) of the Act.
I certify that the preceding 242 (two hundred and forty two) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
.........................[sgd]...............................................
Associate
Dated: 8 June 2022
Date(s) of hearing: 24 and 25 March 2022 Date final submissions received:
18 February 2022
Solicitor for Applicant: Mr Sean Kikkert
Solicitor for Respondent:
Mr Samuel Cummings, Sparke Helmore Lawyers
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