Spano and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 855

Spano and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 855 (13 April 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2020/4510
General Division  )
Re: Mirella Spano
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Senior Member Dr N A Manetta
DATE OF CORRIGENDUM:            15 April 2021
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

In the last sentence of paragraph [6], insert the word “ignored” after the word “have”;

In the first sentence of paragraph [29], delete “Ms Le’s” and insert in its place the word “the”;

In paragraph [61], delete “Ms” and insert in its place “Mr”;

On page 17 of the decision, delete “Date of hearing: 26, 27, 29 October; 16, 17 November 2020”; and in substitution, insert “Dates of hearing: 26, 27, 29 October; 16 November 2020”; and

On page 17 of the decision, delete “Advocate for the Applicant: Ms Marion Le, MARION LE CONSULTANCY”; and in substitution, insert “Advocate for the Applicant: Mr Sean Kikkert”.

..................[Sgnd].............................................
Dr N A Manetta
(Senior Member)
Division:GENERAL DIVISION
File Number(s): 2020/4510
Re:Mirella Spano
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr N A Manetta
Date:13 April 2021
Place:Adelaide

The Tribunal affirms the decision under review.
......................[Sgnd]..................................................
Senior Member Dr N A Manetta
Catchwords
MIGRATION – applicant’s spouse refused a partner visa under section 501(1) of the Migration Act 1958 – applicant’s spouse found to fail the character test under s 501(6)(c) – exercise of discretion - Direction No. 79 – primary considerations –applicant had travelled to Australia on false passport some years earlier – applicant’s partner gave evidence that lacked credibility to Tribunal – risk to Australian community – expectations of Australian community – other considerations – genuine marital relationship – decision under review affirmed in the circumstances
Legislation
Migration Act 1958
Cases
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286.
Khodr v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 198.
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774.
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; 68 FCR 422.
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Secondary Materials
Direction No. 79 issued under s 499 of the Migration Act 1958
REASONS FOR DECISION
Senior Member Dr N A Manetta

This is an application by Ms Mirella Spano seeking a review of the decision of the respondent’s delegate dated 17 July 2020. By this decision, the delegate refused Ms Spano’s husband, Mr P, a visa with which to enter Australia. Mr P resides in Albania. Ms Spano has sought review of this decision in the Tribunal and has standing to do so.
I note that the delegate decided first, that Mr P was not of good character at the time of the delegate’s decision, and, secondly, that a visa ought to be refused in the delegate’s discretion under section 501(1) of the Migration Act 1958 (“the Act”).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence before me, I must decide whether Mr P’s application for a visa with which to enter Australia should be refused under s 501(1), or whether the visa should not be refused him under that section. I must decide the matter de novo on the merits. A de novo hearing implies that I may affirm the decision under review notwithstanding an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review notwithstanding the absence of a discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence. At the hearing before me, Mr Kikkert appeared for Ms Spano; Ms Milutinivic, for the respondent.
STATEMENT OF CONCLUSION
I have decided to affirm the decision under review. I now set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
Mr P is a citizen of Albania and was born there in 1992. He admits that he entered Australia unlawfully in February 2012 under a false name and on a false passport (ostensibly issued by the Italian Government). Mr P has admitted that he purchased a false passport on which to enter Australia. In 2010 Mr P had made two legitimate, but unsuccessful, applications under his own name for a student visa with which to enter Australia. It is, in my opinion, a reasonable inference that Mr P decided to obtain a false passport in 2012 as he believed he would not be granted the visa with which he wished to enter Australia under his true identity.
Mr P was detained on his arrival in Australia in late February 2012. He owned up to his deception relatively quickly. He also made an application for a protection visa shortly after his arrival. The application for a protection visa was, in the event, refused. Mr P unsuccessfully sought review of that refusal in the Refugee Review Tribunal (“RRT”). I have read the RRT’s decision (dated 3 September 2012), but I have decided Ms Spano’s application solely by reference to the evidence that was given before me. I have ignored the adverse findings of fact made against Mr P by the RRT.
Relationship between Ms Spano and Mr P
Mr P and Ms Spano met in 2014 at an Adelaide nightclub. A relationship developed, and so strong was their commitment to one another that they married in late 2014 while he was being held in immigration detention pending his removal from Australia. Mr P was later removed from Australia in June 2015.
I note that Mr P’s application for a partner visa had been first refused on the basis, in effect, that his marriage to Ms Spano was not genuine. This decision was initially affirmed by this Tribunal. However, in 2018, the Federal Circuit Court found the Tribunal had erred in law and its decision was set aside. The application was remitted for reconsideration. In 2019, the Tribunal decided that Mr P and Ms Spano have a genuine marital relationship.[1]
[1] The decision is reproduced in Ex R1, at pp 229ff.
For the purposes of my review, I accept the Tribunal’s decision in this regard. For the purposes of my review, I have proceeded, therefore, on the basis that Mr P and Ms Spano are in a genuine marital relationship.
On 16 July 2020, the respondent’s delegate exercised his or her discretion to refuse Mr P a partner visa under s 501(1) of the Act. This section confers a discretion on the Minister to refuse a visa to applicants when they do not satisfy the Minister that they pass the character test. There are two aspects, relevantly, to the operation of this section. First, the discretion to refuse a visa is enlivened if, but only if, the applicant does not satisfy the Minister that he or she passes the character test. Secondly, if that threshold is met, the next question is whether the discretion to refuse the visa should be exercised.
So far as the character test is concerned, the relevant concept for the purposes of my review is set out in s 501(6)(c); that is, a person does not pass the character test if having regard to the person’s past and present criminal conduct (subpara (i)) or general conduct (subpara (ii)) the person is not of good character.
The delegate found that Mr P was not of good character. The delegate further decided that the visa ought to be refused in his or her discretion. In addressing the second question, the delegate applied Direction 79, issued under s 499 of the Act. I, too, am required to apply Direction 79 in my review.
REASONS
Good character
The first question is whether on the evidence before me Mr P is of good character. I note that although the relevant subsection requires that regard be had to both past and present conduct, the question the delegate had to answer was whether Mr P “is” of good character. The present tense - “is” - required the delegate to evaluate Mr P’s character as at the time of his or her decision.
One question that arises is whether this Tribunal, in review, is required to evaluate Mr P’s character at the time of its decision or at the time of the delegate’s decision. This involves a question of statutory construction. Although this Tribunal’s review function is sometimes marked at a point in time, so to speak (that is, the Tribunal must decide what the situation was at an earlier time and not at the time of its decision), determining what sort of review was intended in this Tribunal is finally, as I say, a question of construction of the statutory provision in question. It would be very odd, in my opinion, if I were required in law to ignore events occurring after the delegate’s decision in conducting my de novo assessment of Mr P’s character. I think this applies both to events that favour Mr P and to those that count against him. For example, if Mr P had committed and been convicted of a very serious offence in Albania after the delegate’s decision, I would surely be required in law to have regard to that fact when conducting a de novo assessment of his character. It would be very strange if I were required in law to ignore the offending because it occurred after the delegate’s decision.[2] Accordingly, I proceed on the basis that I must make an evaluation of Mr P’s character at the time of my decision, and that I should have regard to events up to and including the hearing before me.
[2] See also in an analogous context VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 and the authorities therein discussed including the High Court’s decision in Shi v Migration Agents Registration Authority[2008] HCA 31; 235 CLR 286.
The reasons for Mr P’s departure from Albania in 2012 were the subject of evidence before the Tribunal. Mr P’s evidence has proved important in my decision in respect of each of the two questions I have identified as relevant to my review. I now turn to that evidence.
Mr P’s evidence concerning his reasons for departing Albania in 2012
Mr P gave evidence upon affirmation of the reasons for his departure from Albania in 2012. I note that he gave his evidence by phone from Albania. The Tribunal accommodated, as well as it could, the significant time differences between Australia and Albania. Even so, it was necessary for Mr P to give his evidence at very unusual hours. So far as I can, I have made allowance for the fact that Mr P gave evidence at unusual hours and over the telephone and through an interpreter. The circumstances were not easy for him.
The essence of Mr P’s evidence was clear, however. Mr P gave evidence to the Tribunal that he felt his life was under threat in Albania and that it was for this reason that he took the very serious step of obtaining a false Italian passport on which to travel to Australia in 2012. He used that false passport and an assumed identity to obtain a visa from the Australian authorities. The threat to his safety stemmed from events Mr P said had occurred in Albania at an earlier time in his life.
Mr P was initially unclear about dates, but he first said that at some point in 2008, 2009 or 2010 he met a teenage girl of about the same age while they were both at high school together. He said that he believed he was between 16 and 17 years of age, which would place the events in 2008 or 2009 given his birth year of 1992. He later said in his evidence that 2009 was the most likely year. Mr P and the teenage girl began a relationship. She was of the Muslim faith, and he was Christian. The relationship was not disclosed to the girl’s family, nor was it disclosed to Mr P‘s.
Mr P said he and his girlfriend had sexual relations one day in a hotel to which they had resorted for this purpose. He said that this occurred some seven to eight months after their relationship had begun. Mr P said her family must have found out and were furious. From that point on they threatened to kill Mr P. His own family found out about the relationship only after the threats began, Mr P said. Mr P maintained that the girl’s family claimed he had dishonoured their family, and he would be made to pay with his life.
Mr P said he was not entirely sure how her family came to know about the relationship but believes his girlfriend must have said something. The threats he received from the girl’s family came to him on his mobile phone. The caller was male.
As a result of the threats, Mr P said he stopped attending high school for some time but later went back to school. He said he did not tell the school authorities about the threats. His girlfriend left for another school, he said. He said she knew the general locality of his home, but not its exact location.
Mr P attended university after graduating from high school. As noted, he made two legitimate but unsuccessful applications in 2010 to come to Australia on a student visa. Mr P said that in 2012, while attending university, he met someone who was loitering in the vicinity of the university, and he procured a false Italian passport from this man. This cost him several thousand euros, he said. Mr P said he purchased the passport because he feared for his safety.
One very important question of fact I must decide in these proceedings is whether I accept Mr P’s assertion that he feared for his safety. I have decided that his version of events in this regard should not be accepted. I reiterate that I have not based myself on the findings made by the RRT in Mr P’s protection-visa application.
I accept that it is, of course, possible, and far from unlikely, that two teenagers might be attracted to one another and become sexually intimate. I am prepared to assume that this occurred. But I do not accept the rest of Mr P’s evidence in respect of the threat to his safety. I have given him the benefit of a reasonable doubt, but I do not find his version of events credible.
I note that if Mr P felt that his life was under threat and that he had to leave Albania at all costs, he could have applied for a tourist/visitor visa so as to join family members in Australia. He might then have attempted to stay on once he was here. Apart from that, I note that Mr P felt safe enough to attend university in person. I accept that he has indicated that he only attended university from time to time, but it is clear he was not living a secluded life despite what he maintained were death threats against him. I note that it was while he was attending university that he sought out the man who organised the false passport for him.
Moreover, after his failed attempts to obtain a student visa in 2010, some considerable time passed before Mr P came to Australia on a false passport in 2012. That is a quite striking feature of the matter before me. Mr P maintained his life was under threat during the interim, but he made no attempt before 2012 to seek to leave Albania. In addition, I note that he said that he did not change his mobile telephone number, which I find odd since he maintained that he was receiving threats on his phone.
Mr P gave no evidence that he was ever personally attacked while in Albania in the years that followed his relationship, or in the years from 2015 onwards when he was required to return to Albania. Ms Spano did not lead any such evidence in the proceedings before me.[3] I have already indicated that, according to Mr P, his girlfriend knew the general location of his home although not the exact address. Again, it seems odd that no attempt to attack him was made either at his home or at university in all these years. Moreover, if he had genuinely feared for his life, Mr P would, I believe, have taken the more obvious step to flee to a country nearby. It does not make sense to wait until 2012 before deciding to leave Albania for Australia on a false passport.
[3] Mr Kikkert expressly placed no reliance on the assertion by Mr P’s brother that he was attacked in Albania when he was mistaken for his brother: see, for example, the reference in Ms Le’s submission at Ex R1, p 339.
In my opinion, the evidence Mr P gave to the Tribunal was implausible, and I do not accept that he genuinely feared for his safety when he procured the false passport and made an application for a visa to enter Australia under an assumed identity. Mr P has family members in Australia, including a brother. I surmise that it is far more likely that Mr P decided that he wished to live in Australia and he further decided to pursue that objective unlawfully. However that may be, I reject his evidence of fearing for his personal safety.
Evaluation of Mr P’s character
In evaluating Mr P’s character, I accept the submission that Mr P was immature when he made the decision to leave Albania on a false passport. I accept the submission that Mr P regrets his decision to seek to enter Australia unlawfully. I accept also that his entry into Australia unlawfully took place some nine years ago now. It is, of course, a serious matter to seek to enter a country unlawfully, but I bear in mind Mr P’s relative youth and the effluxion of time.
The Tribunal received evidence in respect of Mr P’s good character. I accept that evidence. Ms Spano gave evidence that Mr P is a loving and devoted husband, which I accept. Since his removal from Australia to Albania in 2015, Ms Spano has visited Mr P in Albania several times. I accept that he would be an accepted and valued member of Ms Spano’s family in Australia (were he to return to Australia). I also accept all the references tendered in respect of Mr P’s character. These included a reference from Fr Shinnick (as well as his oral evidence) that Mr P has a strong religious faith and attended mass in Adelaide, and that he belongs to a close-knit family.[4] I accept also that Mr P worked hard and effectively with Australia Post while on release in the community from detention. There is no evidence of any criminal wrongdoing by Mr P while he was in Australia and no evidence of any criminal wrongdoing by him in Albania. I further accept that the debt Mr P owes the Australian Government in connection with his removal in 2015 is being discharged gradually. I do not think it matters that it may be Ms Spano, rather than Mr P, who is paying that debt from her own resources. The important thing is that Mr P is taking steps to ensure that the debt is being repaid. I take all of these matters into account in Mr P’s favour.
[4] Exhibit A4
As a matter of law, it is quite clear that the adverse impact of earlier criminal offending or other misconduct on one’s character may be offset or ameliorated by positive conduct or by the mere passage of time. The law is quite clear in that regard.[5] I fully accept, therefore, that the fact that Mr P might have been otherwise than of good character at an earlier point in his life does not necessarily mean that he is not of good character today. A person who has been of bad character in the past may over time demonstrate positive character attributes and behaviour so that the past misconduct becomes increasingly less relevant in an overall assessment of that person’s present-day character. Very often a person will be found to be of good character notwithstanding criminal conduct at an earlier point in the person’s life.
[5] See, for example, most recently Khodr v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 198 at [26]ff and the discussion of Godley’s case, which I note is referred to in Annex A, section 2, para 5(3) and (4) of the Direction. See also in an analogous citizenship context the well-known authority of Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; 68 FCR 422 at 431-432.

In Mr P’s favour, I take into account the fact that his purchase of a false passport occurred when he was young and relatively immature. Although the true motivation for his entry to Australia has not been disclosed to me, I am prepared to assume that he may well have wished to leave an impoverished country and make a better life for himself with his family in Australia. That is an understandable enough desire. When he was released from immigration detention, I note that he contributed effectively to the Australian community while working with Australia Post. I have already referred to the character references that have been given on his behalf.
All that said, I have decided that Mr P is not of good character as at the time of my decision. As I have already indicated, I do not accept Mr P’s reasons for seeking to enter Australia unlawfully. I think it is a serious matter that counts against Mr P that he chose to give evidence that I have not found credible and which I have, accordingly, rejected. He has chosen, in my opinion, to give this evidence in order to secure for himself an advantage; namely, the success of his visa application. In particular, I make clear that I do not believe there is any reasonable doubt about the falsity of the evidence he gave.
If one sets to one side his unlawful entry into Australia on a false passport and his evidence to this Tribunal, Mr P would be judged, in my opinion, to be of good character today. Furthermore, his entry into Australia on a false passport is, as I have said, nine years old now and was an offence committed by him while he was still a teenager, albeit a teenager who had attained his majority. Although I believe the offence is still relevant to an assessment of his present day character, time has passed and the relevance of the offending has diminished over time. Moreover, there are later, positive features of Mr P’s character that need to be considered. What has proved of considerable weight in my assessment of Mr P’s character is his decision to put forward a version of events to the Tribunal under affirmation that I do not accept as credible. This is a feature of his present conduct to which I believe I should pay careful regard. Mr P is now a mature adult of 28. Even though there are substantial positives in Mr P’s life, I believe his decision as a mature adult to offer a false version of events before the Tribunal when he was required to give evidence under affirmation is a substantial matter counting against him in the assessment of his present day character. As I have said, I do not believe there is any reasonable doubt about that matter.
Conclusion in respect of Mr P’s character
All in all, therefore, I do not assess Mr P to be of good character as at the date of my decision. He does not pass the character test, therefore.
The re-exercise of the discretion
Having made that character assessment on the evidence before me, I must now turn to decide whether to exercise the discretion to refuse Mr P a visa under s 501(1). This requires me to apply de novo Direction 79 issued under section 499 of the Act.[6] I turn now to consider that Direction.
[6] The Direction is entitled: “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”.
The preamble to the Direction (in paragraph 6.1(1)) makes it clear that the object of the Act is to regulate in the national interest the entry into Australia of non-citizens and their presence here. By paragraph 6.1(4) the Direction has the purpose of guiding decision-makers (and this Tribunal on review) in the exercise of their functions under s 501 of the Act in respect of visas.
I note that I am required under paragraph 6.1(2) to exercise the discretion given the specific circumstances of the case. I have followed that guidance.
Paragraph 6.3 sets out certain principles. I shall not set these out, but I have had regard to them. I note that paragraph 7(1) requires the exercise of my discretion to be informed by these principles.
Primary considerations
I turn now to consider Part B of the Direction. There are three primary considerations I must take into account. These should be given greater weight generally than other factors: see para 8(4). I must have regard under paragraph 11(1) to three primary considerations as follows: (a) protection of the Australian community from criminal or other serious conduct; (b) the interests of minor children in Australia; and (c) the expectations of the Australian community.
So far as the protection of the Australian community is concerned, I need to have regard to the principle that the Australian government is committed to protecting the community from harm as a result of criminal activity or other serious conduct by non-citizens. I must have regard to the seriousness of the person’s conduct to date and the risk to the Australian community should the he or she commit further offences or engage in other serious conduct.
In evaluating the nature and seriousness of Mr P’s conduct to date, I am to have regard to a number of factors set out in subparas (a) to (j) of para 11.1.1(1). Of these subparagraphs, (e), (g) and (i) are relevant.
I note that under subpara (e) I am required to consider as serious the conduct that has formed the basis of my view that Mr P fails the character test under s 501(6)(c). The presentation to the Australian border authorities of a false passport is a serious matter. Although Mr P was not convicted of any offence, his presentation of a falsely obtained passport to obtain entry into Australia constituted an offence against s 234(1)(a) of the Act. That offence is a serious one. As I have said earlier, however, the relative youth of Mr P is a matter that counts in his favour in this regard, and this moderates the impact of the conduct in my assessment. Young adults frequently commit serious offences without fully appreciating the gravity of what they are doing.
As I have earlier said, however, of concern to me is Mr P’s offering a version of events in evidence that I do not believe to be credible. Mr P is now 28. This behaviour has formed part of my finding that he is not of good character today. It is relevant to the exercise of my discretion under subpara (e).
So far as subpara (g) is concerned, I take into account the fact that Mr P’s offending was an isolated instance of criminal behaviour. Mr P has not committed other offences. That counts in his favour.
Subparagraph (i) is also relevant because it requires me to take into account misleading information provided to the Department. The use of the false passport to obtain the visa with which Mr P sought to obtain entry to Australia is a serious matter. However, it is important not to double-count these adverse factors under different headings, and I record my caution in this regard specifically.
So far as the risk to the Australian community is concerned, I accept that under para 11.1.2(1), decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct. In evaluating the risks to the Australian community, I must have regard under para 11.1.2(3) to, “cumulatively”, the nature of the harm to individuals or the Australian community should Mr P engage in further criminal or other serious conduct and the likelihood of his engaging in that conduct.
I do not believe that Mr P would commit an offence involving a false identity and documents again. He would have no reason to do so. Of concern to me, however, is the fact that Mr P has shown himself willing to present a false version of events in order to obtain a benefit for himself. He did so in the serious context of giving evidence under affirmation to the Tribunal.
It is not easy to evaluate the likelihood of the risk eventuating in the future, but I believe Mr P could well choose to advance a false version of events in the future to obtain a benefit for himself if it were expedient for him to do so. The circumstances in which this type of misconduct might occur cannot be predicted in advance; but his lack of candour before the Tribunal is, as I have said, of significant concern. I do not exclude the risk, therefore, that Mr P would engage in deception in the future if he perceived that to be in his interest.
In this regard, I note that I do appreciate that from Mr P’s perspective, his desire to join his wife in Australia is of great importance, and this factor no doubt accounts in part for his decision to offer a false version of events. But it is a very serious thing to choose to give false evidence before a Tribunal or a Court, and I do regard this factor seriously.
I must take into account the best interests of minor children. I do not believe any such interests arise in this case.
I must also take into account the expectations of the Australian community under para 11.3(1). In FYBR v. Minister for Home Affairs [2019] FCAFC 185, the full Federal Court held in respect of this consideration that the Tribunal should not seek to evaluate community expectations for itself. Rather, they are to be found in the Direction itself. I accept that this consideration, in so far as it applies to Mr P’s earlier conduct in seeking entry to Australia under a false passport, counts against him; but I take into account the fact that Mr P was an immature adult when he made the decision to seek to enter Australia unlawfully. It is an offence which occurred some time ago and this should be taken into account as well. I note that the community-expectations consideration does not appear to apply in terms to Mr P’s evidence to this Tribunal and so I do not apply it in that regard.
All in all, I find that the primary considerations weigh against Mr P.
Other considerations
I must also consider the so-called “other” considerations: see para 12. There is a non-exhaustive list of four factors given in para 12(1) as follows: (a) international non-refoulement obligations, (b) the impact on family members, (c) the impact on victims, and (d) the impact on Australian business interests.
So far as international non-refoulement obligations are concerned, I note that Mr P resides in Albania and that he is not owed any duty of non-refoulement as such. I have already rejected his evidence that he faces the risk of harm in Albania from his former girlfriend’s family. There is no impact on victims or any impact on Australian business interests I need to consider.
So far as an impact on family members is concerned, I take into account the impact on Ms Spano (as Mr P’s wife) as well as the impact on her family and the impact on Mr P’s family in Adelaide. I also take into account the impact on Mr P himself as the list of factors appearing in the Direction is not exhaustive: the impact on him is highly relevant.
I accept that the impact on Ms Spano if Mr P were not granted a visa would be very severe. It is true that she married Mr P while he was in immigration detention and must have realised that there was a realistic prospect that he would be removed from Australia. But I proceed on the basis that her love for Mr P is genuine as is his for her. Ms Spano has a very strong interest in her life partner being readmitted to Australia. I also accept that she has suffered considerably from the separation and will continue to suffer if Mr P is not granted a visa. I accept that it is not feasible for her to give up her life in Australia to join Mr P in Albania: there would be no economic future for them there. Accordingly, I proceed on the basis that Ms Spano would be indefinitely separated from her husband if he were refused a visa. That is a very serious matter for me to weigh up. I accept also that her family has an interest in Mr P’s return. The family has an interest in welcoming him as a new member and they also have an interest in their mother’s welfare. I accept also that Mr P’s family in Australia has an interest in his being granted a visa. These include close family members who wish to have contact with him.
Mr P himself has a very strong interest in pursuing his marital life here in Australia with his lawful spouse. Marriage is a fundamental relationship in very many people’s lives. It would be extremely hard for Mr P to live without Ms Spano, and vice versa. This is a very strong consideration indeed.
I also take into account Mr P’s strong work ethic as a relevant factor. I do not doubt he would seek to integrate himself in Australia and work hard to provide for himself and his family. He would therefore make an effective contribution to Australian society. I also take into account that Mr P has otherwise been of good character (that is, if one leaves to one side the obtaining of the false passport and his evidence before me).
Weighing of Factors
The weighing of the various factors in the exercise of the discretion has caused me considerable difficulty. In all the circumstances, if Mr P had not given such poor evidence, I might have decided Ms Spano’s application to this Tribunal differently. Mr P’s decision to bolster Ms Spano’s application to this Tribunal by putting forward a version of events I have found not credible has been an important factor in my decision. It is a very serious matter in my opinion. I reiterate that I accept the very strong personal interests that Ms Spano and Mr P both have as spouses in being reunited, but these interests, important as they are, together with the other factors in Mr P’s favour to which I have referred, do not, in my opinion, outweigh the primary considerations I have examined above.
I believe the preferable decision on the evidence before me is to exercise the discretion to refuse Mr P a visa with which to enter Australia.
FORMAL DECISION
The Tribunal will affirm the decision under review.

63.

64.

65.

66.     I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta

   ……………[Sgnd]……………………

Administrative Assistant Legal

Dated: 13 April 2021

Date of hearing: 26, 27, 29 October; 16 November 2020

Advocate for the Applicant: Mr Sean Kikkert

Advocate for the Respondent: Ms Natalia Milutinovic, SPARKE HELMORE

Date of hearing:	26, 27, 29 October; 16 November 2020
Advocate for the Applicant:	Mr Sean Kikkert
Advocate for the Respondent:	Ms Natalia Milutinovic, SPARKE HELMORE