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

This matter concerned an application for review by Ms Spano of the decision to refuse her spouse, Mr P, a partner visa under section 501(1) of the *Migration Act 1958* (Cth). Mr P, a citizen of Albania, had entered Australia unlawfully in 2012 using a false passport and name. He later married Ms Spano while in immigration detention. The delegate had exercised the discretion to refuse the visa on the basis that Mr P failed the character test. The Tribunal was required to hear the application afresh and determine the matter *de novo*.

The primary legal issues before the Tribunal were whether Mr P satisfied the character test, and if not, whether the discretion to refuse the visa under section 501(1) should be exercised. In assessing Mr P's character, the Tribunal considered his unlawful entry into Australia on a false passport, his subsequent marriage to Ms Spano, and the evidence he provided regarding his reasons for leaving Albania. The Tribunal also had regard to Direction No. 79, which outlines considerations for the exercise of the character test discretion, including primary considerations such as risk to the Australian community and expectations of the Australian community, as well as other considerations like the genuineness of the marital relationship.

The Tribunal reasoned that while Mr P's unlawful entry on a false passport occurred some years prior and he was young at the time, and that his marriage to Ms Spano was genuine, these factors were outweighed by his conduct before the Tribunal. Specifically, the Tribunal found Mr P's evidence regarding his reasons for entering Australia to be lacking in credibility. The Tribunal concluded that as a mature adult, Mr P's decision to present a false version of events under affirmation was a substantial matter counting against his present-day character, leading to the conclusion that he did not pass the character test.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the partner visa. Despite acknowledging positive aspects of Mr P's life and the passage of time since his unlawful entry, the Tribunal found that his lack of credibility in giving evidence before it was a significant factor that led to the refusal of the visa.