FEDERAL COURT OF AUSTRALIA

Markaj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 120

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROFE J:

INTRODUCTION

1    The Applicant is a 41-year-old Albanian national and previous resident of Italy, who arrived in Australia on a false passport in 2011 with false Italian identity documents and a false supporting letter from a fictional Australian contact. The Applicant also falsely declared he had no convictions. Since arriving in Australia, the Applicant has spent the majority of his time in immigration detention. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) refused the Applicant’s application for a Partner (Temporary) (Class UK) visa. The Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) affirming the Minister’s refusal to grant a partner visa.

2    During his time in Australia, the Applicant has twice unsuccessfully applied for a protection visa. The Applicant unsuccessfully appealed both refusals to the then Refugee Review Tribunal. The first protection visa application was made on 2 December 2011 and refused by a delegate of the Minister on 20 January 2012. The refusal was affirmed by the Refugee Review Tribunal on 19 March 2012. The second protection visa application was made on 25 March 2013 and refused by a delegate of the Minister on 17 July 2013. The refusal was affirmed by the Refugee Review Tribunal on 3 September 2014. It was not until the second hearing before the Refugee Review Tribunal in 2014 that the Applicant referred to his offending.

3    This proceeding relates to the Applicant’s application for a partner visa made on 17 November 2014. This application has a long procedural history. On 15 December 2014, a delegate of the Minister refused to grant the visa. The Applicant applied for review in the then Migration Review Tribunal, which on 8 May 2015 remitted the application to the delegate for reconsideration. After informing the Applicant of their intention to exercise discretion under s 501(1) of the Migration Act 1958 (Cth) (Migration Act) and the Applicant making a series of representations during November and December 2016, on 19 June 2017 the delegate decided to refuse the Applicant’s visa. The Applicant applied for merits review in the Tribunal which affirmed the delegate’s decision on 20 September 2017. The Applicant applied for judicial review of that decision in this Court, which quashed the Tribunal’s decision on 20 October 2020. The matter was reheard in the Tribunal, and on 26 May 2021 the Tribunal handed down its reasons (the Reasons) which again affirmed the delegate’s decision to refuse to grant the visa to the Applicant.

LEGISLATIVE SCHEME

4    This application relates to the Tribunal’s exercise of discretion under s 501 of the Migration Act, and in particular the application of Ministerial Direction No. 90 (Direction 90).

5    Section 501 of the Migration Act relevantly provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test: s 501(1).

6    Section 501(6) sets out an exhaustive list of circumstances in which a person does not pass the character test. The relevant sub-sections for the current application are set out below:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7));

…

(c)    having regard to either or both of the following:

(i)    The person’s past and present criminal conduct;

(ii)    The person’s past and present general conduct;

the person is not of good character;

7    Section 501(7) defines “substantial criminal record” for the purposes of the character test. A person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.

8    Direction 90 was made on 8 March 2021, for the purpose of guiding decision-makers in performing functions or exercising powers under s 501 of the Act. Specifically, Part 2 of Direction 90 directs decision-makers on exercising their discretion to refuse a visa under s 501.

9    Clause 6 provides that a decision-maker must take into account all of the relevant considerations identified in cls 8 and 9. The considerations in cl 8 are the “primary considerations”, while those in cl 9 are “other considerations”. Clause 7 states that primary considerations are generally to be given greater weight than the other considerations; and that one or more primary considerations may outweigh other primary considerations.

10    The four “primary considerations” identified in cl 8 are:

(a)    protection of the Australian community (8.1);

(b)    family violence committed by the non-citizen (8.2);

(c)    best interests of minor children in Australia affected by the decision (8.3); and

(d)    expectations of the Australian community (8.4).

Further directions are provided in relation to each of the four primary considerations.

11    The “other considerations” in cl 9 which must be taken into account where relevant are:

(a)    international non-refoulement obligations (9.1);

(b)    the extent of impediments if removed from Australia (9.2);

(c)    the impact on victims (9.3); and

(d)    links to the Australian community, including the strength, nature and duration of ties to Australia, and the impact on Australian business interests (9.4).

BACKGROUND

12    The summary of background facts is largely based on the Reasons.

13    The Applicant is an Albanian national, whose parents continue to reside in Albania. The Applicant speaks Albanian and Italian and requires an interpreter for hearings.

14    The Applicant moved to Italy in 1997 when he was 17 years old. Some 11 years later, the Applicant was convicted of the following crimes:

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

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

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

(d)    attempted extortion acting jointly; and

(e)    extortion.

15    The Applicant’s offending took place between January 2006 and May 2007. The Applicant faced two sets of charges in relation to the offending. The hearing for the first set of charges was in December 2007. The Applicant was found guilty and sentenced to serve 11 months and 20 days imprisonment, taking into account time served under house arrest. The hearing for the second set of charges was in mid-2008. The Applicant was again found guilty and sentenced to a total term of imprisonment of three years and four months, as well as fines totalling €22,000.

16    On 16 November 2010 the Applicant was released from prison. From there, he was transferred to detention and then deported to Albania.

17    Once in Albania the Applicant became concerned with a violent feud between his family, who were Catholic, and another family who were Muslim. The Applicant decided to leave Albania and travel to Australia.

18    On 30 October 2011 the Applicant arrived in Australia on a false Italian passport and with false Italian identity documents. Upon questioning at the airport, the Applicant first maintained that he was Italian and that he was in Australia for two weeks to holiday and visit a friend. During a luggage search, his valid Albanian passport was discovered. Once the Albanian passport was discovered, the Applicant stated he had never lived in Italy, and that he had bought the false passport in Paris. He did not disclose his criminal record. The Applicant admitted to having come to Australia to seek a new life and earn some money. The Applicant was taken to immigration detention.

Protection visa applications

19    While this appeal does not relate to the Applicant’s previous applications for a protection visa, the Applicant’s credibility and conduct during the protection visa process was relevant to the Tribunal’s decision regarding the partner visa the subject of this proceeding. It is therefore convenient to briefly set out the relevant facts arising from the protection visa applications.

20    On 2 December 2011 the Applicant applied for a protection visa. The Applicant did not disclose his previous criminal convictions during the protection visa application process, including before the Refugee Review Tribunal in March 2012. During its investigations in October 2012, the Department of Immigration and Citizenship received information from Italian authorities about the Applicant’s offending and imprisonment. The information was put to the Applicant in his second protection visa interview in April 2013. The Applicant was given a further seven days to respond to the information, and through his representative he reiterated that he had not committed or been convicted of any crimes in Italy.

21    On 25 March 2013 the Applicant made his second application for a protection visa.

22    On 23 April 2014, the Applicant’s representative addressed the Refugee Review Tribunal and reiterated that the Applicant denied committing or having been convicted of any criminal offences in Italy.

23    Between March 2013 and November 2014 the Applicant held a bridging visa which enabled him to live in the community. During this period, the Applicant lived with his wife and one of her grandchildren. The Applicant found work as a concreter with a local council. The Applicant did not surrender himself to immigration authorities upon the expiry of his bridging visa and had to be taken back to immigration detention by immigration officers.

Partner visa application

24    As noted above, this proceeding relates to the Applicant’s application for a Partner (Temporary) (Class UK) visa. The Applicant was sponsored by his wife. The Applicant’s wife is a 59-year-old Australian citizen of Mexican background, and her primary language is Spanish. The Applicant’s wife has four children and 12 grandchildren.

25    The Applicant met his wife in late 2011 while in immigration detention, on the online dating site Badoo. Shortly thereafter the pair began corresponding via Facebook. The couple met in person for the first time in December 2011, when the Applicant’s now wife visited the Applicant in detention. These visits became frequent.

26    In late January 2012 the Applicant proposed to his wife. The couple married on 26 February 2012 in the immigration detention centre.

27    On 17 November 2014 the Applicant applied for the partner visa. On 15 December 2014, a delegate of the Minister refused the Applicant’s partner visa application. The Applicant sought review of the delegate’s decision in the Migration Review Tribunal. On 8 May 2015 the Migration Review Tribunal remitted the application to the delegate for reconsideration.

28    By notice dated 13 May 2016, a delegate of the Minister informed the Applicant that they intended to exercise their discretion under s 501(1) of the Migration Act and refuse the Applicant’s visa. The delegate invited the Applicant to make representations as to whether he passed the character test. The Applicant’s representative made submissions on 21 November 2016 and 19 December 2016.

29    On 19 June 2017 the delegate refused the Applicant’s application for the partner visa. The Applicant applied to the Tribunal for review.

30    On 20 September 2017 the previous Tribunal affirmed the delegate’s decision. The Applicant sought judicial review of that decision in this Court.

31    On 20 October 2020, Kenny J quashed the previous Tribunal’s decision and remitted the decision back to the Tribunal.

PROCEEDINGS BEFORE THE TRIBUNAL

32    Before the Tribunal, the Applicant conceded that he did not pass the character test prescribed by s 501 of the Migration Act. Therefore, the only issue before the Tribunal was whether to exercise its discretion to refuse to grant the visa having regard to the principles and considerations in Direction 90.

33    After setting out the background to the application, the legislative provisions and the relevant facts, the Tribunal turned to each of the considerations in Direction 90.

34    The Tribunal considered each primary consideration in turn. It concluded that the primary consideration of the best interests of minor children in Australia (which weighed in favour of granting the Applicant a visa) was outweighed by the primary considerations of protection and expectations of the Australian community, both of which weighed against the grant of a visa.

Protection of the Australian community

35    The Tribunal considered the protection of the Australian community at [20]–[33] of the Reasons.

36    In considering the nature and seriousness of the Applicant’s conduct, the Tribunal noted the Applicant’s convictions and his explanation of the circumstances surrounding his offending. Regarding the drug charges, the Applicant had explained that while he was a drug user, he was not a drug dealer. He admitted to one of the charges but claimed the other drug charges were based on the false testimony of an Albanian gentleman. Regarding the extortion charges, the Tribunal noted that the Applicant sought to “minimise the seriousness” of the offending, by saying the charges only arose from some problem with the registration of a motorbike.

37    At [23], the Tribunal explained that it did not accept the Applicant’s explanations about his offending:

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

38    The Tribunal further noted at [24] that the seriousness of the Applicant’s offending is reflected through the commission of seven separate crimes over a period of 16 months, the three years and four months term of imprisonment, and the significant fine of €22,000.

39    The Tribunal also took into account the several occasions on which the Applicant provided false or misleading information to the Department between his arrival in Australia in October 2011 up until July 2014. Additionally, the Tribunal noted that the Applicant overstayed his bridging visa and had to be taken into immigration detention by immigration officers.

40    In considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal expressed the test for determining “unacceptable risk” established by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 (Tanielu). The Tribunal described this test at [27] as:

[T]o determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

41    In applying this test, the Tribunal first found at [28] that if the Applicant were to engage in further similar drug offences, the nature of the harm would be “extremely serious” due to the effect of supplying drugs on the community. The Tribunal also identified a “general harm” to the community caused by people who breach Australia’s immigration laws and seek to mislead immigration authorities.

42    At [29], the Tribunal found that the Applicant is unlikely to engage in further criminal conduct. However, at [30], the Tribunal expressed concern about the Applicant’s likelihood of engaging in “other serious conduct of a deceitful nature”. The Tribunal identified several examples of the Applicant’s conduct which supported this concern, including:

    The Applicant’s propensity to maintain deceit until caught, evidenced first by his maintenance of a false backstory upon arrival in Australia until his real passport was found; second by concealing his history of offending in Italy until it was discovered by the Department some three years after first arriving in Australia; and third by overstaying his visa in the community until discovered by authorities.

    In 2014, the Refugee Review Tribunal had made adverse findings as to the Applicant’s credibility based on the Applicant’s repeated willingness to provide false information to authorities.

    The Applicant’s evidence before the Tribunal was inconsistent with the offences for which he had been convicted; and the Applicant sought to minimise his offending by providing explanations that had already been rejected in Italian courts.

43    Taking the above into consideration, the Tribunal stated at [31]:

[The Applicant’s] deceitful conduct demonstrates a lack of respect for law enforcement agencies and the Tribunal. I consider there to be a real risk of future conduct of the same nature.

44    Summarising the various findings regarding the protection of the Australian community, the Tribunal concluded at [33] that the factor weighed significantly in favour of refusing to grant the Applicant’s visa.

Family violence

45    The Tribunal found that the Applicant has not engaged in any family violence, and therefore the consideration was not relevant to the decision: Reasons, [34].

Best interests of minor children in Australia affected by the decision

46    The Tribunal considered the best interests of minor children in Australia from [35]. The Tribunal noted that the Applicant’s wife has three daughters and a son, as well as 12 grandchildren (nine of whom are under 18) and one great granddaughter. The Tribunal had in its possession a “comprehensive report” prepared by a social worker in February 2015 who had conducted personal interviews with members of the family.

47    The Tribunal accepted at [40] that the Applicant has had a “very positive influence” on the grandchildren, and would continue to “play a positive role as a grandfather if he were to be released”. Furthermore, the Tribunal found that any continued separation would impact negatively on all of the grandchildren.

48    At [41] of the Reasons, the Tribunal concluded that granting the Applicant’s visa would be in the best interests of each of the grandchildren, and therefore the factor weighs heavily in favour of granting the Applicant’s visa.

Expectations of the Australian community

49    Expressing the expectations of the Australian community at cl 8.4 of Direction 90, the Tribunal stated at [42]–[43]:

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

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

50    At [44] of the Reasons, the Tribunal noted that the expectations of the Australian community are to be assessed as a whole, and the expectations should not be assessed in relation to each particular case. However, in weighing up whether to exercise the discretion to refuse a visa, the Tribunal is required to assess the circumstances particular to the Applicant. The Tribunal set out the following passage of Stewart J from FYBR v Minister for Home Affairs [2019] FCAFC 185 at [97]:

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

51    Given the Applicant’s past criminal conduct and deceitful conduct in dealing with immigration authorities spanning some years following his arrival in Australia, the Tribunal concluded at [45] that the Australian community would not expect the Applicant to be granted a visa. This factor weighed significantly in favour of refusing to grant the visa.

Other considerations

52    As noted above, cl 9 of Direction 90 lists the other considerations that decision-makers must take into account where relevant to the case before it.

53    The Tribunal considered whether any international non-refoulement obligations were engaged from [48]. The Tribunal noted that the Applicant had previously made two unsuccessful protection visa applications, and the Applicant here claimed the same reasons as cited in those applications for his fear of persecution upon return to Albania. The Tribunal therefore rejected the evidence for the same reasons as the Refugee Review Tribunal and found that the alleged risk of harm does not give rise to a non-refoulement obligation.

54    The Tribunal then considered the extent of any impediments to the Applicant if removed from [52]. The Tribunal noted the Applicant speaks Albanian, has family in Albania and would have no substantial language or cultural barriers or other impediments to maintaining basic living standards. While the Tribunal accepted it would be “very difficult” for the Applicant to be separated from his family, the factor overall was given “very limited weight” in favour of granting a visa: Reasons, [53].

55    The Tribunal considered the Applicant’s links to the Australian community from [55]. The Tribunal considered there would be a “very significant impact” on the Applicant’s wife if he were removed from Australia. The Tribunal also found there would be a “significant negative impact” on the Applicant’s three step-daughters, and that many of the family’s challenges would be “ameliorated” if the Applicant were released into the community: Reasons, [58]. The Tribunal concluded at [58] that the “strong ties to the family are a factor that weighs very heavily in favour of granting a visa”.

The Tribunal’s conclusion

56    The Tribunal summed up its weighting of the various considerations at [60]:

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

57    The Tribunal concluded that the factors in favour of refusing to grant a visa outweighed those other factors in favour of granting the visa. The key paragraphs [61]–[62] are set out in full below:

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

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

GROUNDS OF REVIEW

58    The Applicant’s first ground of review relates to legal unreasonableness. Specifically, the Applicant submits that the Tribunal’s findings regarding the Applicant’s “deceitful nature” and “complete disrespect” for authorities lacked an intelligible justification, was illogical or plainly unjust.

59    By the amended originating application dated 20 August 2021 (filed 23 August 2021) (the Amended Originating Application), the Applicant’s first ground of review is put as follows:

The Second Respondent’s decision to affirm the decision of the First Respondent was legally unreasonable by reason of its findings that the Applicant had a “deceitful nature” or had “character flaws” because those findings lacked an evident or intelligible justification, were illogical, or were plainly unjust.

Particulars

(1)    The Tribunal erred in finding that the Applicant had given “false explanations” about his prior convictions when giving evidence to the Tribunal and that this “displayed his deceitful character” because there was insufficient probative evidence about the nature and circumstances of the offences from which to infer or conclude that the Applicant’s explanation was “inconsistent” with his convictions.

(2)    The Tribunal erred in finding that the Applicant had “complete disrespect” for important Australian institutions and authorities despite there being evidence to the contrary, namely his consistent good behaviour with authorities.

60    The Applicant’s second ground is that the Tribunal constructively failed to exercise jurisdiction, or acted unreasonably, by the way in which it addressed the Applicant’s risk to the Australian community by reason of his “deceitful nature”. The Applicant’s complaint largely relates to the Tribunal’s identification of the risk of “general harm” to the community arising from any continued deceitful conduct.

61    The Amended Originating Application sets out the second ground as follows:

The Second Respondent erred in failing to exercise its statutory jurisdiction under s 501 of the Migration Act 1958 in that it misunderstood the nature of its jurisdiction or, alternatively, acted unreasonably in the legal sense, when assessing the risk of harm posed by the Applicant’s conduct to the Australian community.

Particulars

(1)    In assessing the risk posed by the Applicant’s conduct to the Australian community, the Second Respondent was required to assess the nature of the harm of such conduct and the likelihood of its occurrence.

(2)    The Second Respondent found that, if the Applicant committed drug offences in future, the nature of the harm would be “serious”, but that he was a “low risk” of committing similar offending in future and “unlikely” to engage in further criminal conduct.

(3)    The Second Respondent described the nature of the harm posed by breaches of immigration laws and misleading immigration authorities as “general” without further elaboration or identifying the likelihood of the Applicant engaging in such conduct.

(4)    The Second Respondent found that the Applicant’s “deceitful character” was “a concern” and there was a “real risk” of the Applicant engaging in deceitful conduct in future. However, the Tribunal did not specify the nature of the harm posed by such conduct or how his character concerns might manifest.

(5)    Despite not having identified the nature or quality of the harm that the Applicant’s character concerns might pose, the [Second Respondent] erroneously concluded the risk posed by his character outweighed all other countervailing considerations.

62    By his third ground, the Applicant submits that the Tribunal acted unreasonably by failing to properly evaluate the deemed expectations of the Australian community under Direction 90 because it wrongly applied the principles guiding how a decision maker should take the consideration into account.

63    The Amended Originating Application sets out the third ground as follows:

The Second Respondent’s decision to affirm the decision of the First Respondent was legally unreasonable by reason of its failure to properly evaluate the deemed expectations of the Australian community.

Particulars

(1)    The Second Respondent unduly confined the Applicant’s “participation in, or contribution to,” the Australian community to the time he had spent living in the community, and ignored the other contributions the Applicant had made since arriving in Australia.

(2)    In doing so, the Second Respondent misapplied clause 5.2(4) of Ministerial Direction No 90.

CONSIDERATION

64    For the reasons that follow, the Applicant’s grounds of review must fail.

Ground 1

65    A decision will be tainted by unreasonableness, irrationality or illogicality where findings are made without an evident justification or rational foundation. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ identified the question to be asked in determining whether a decision was unreasonable at [135]:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

66    There is a high threshold for making a finding of legal unreasonableness, described as “necessarily stringent” by Kiefel CJ in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] (SZVFW), and a “demanding standard” by Gageler, Nettle and Edelman JJ in TTY167 v Republic of Nauru [2018] HCA 61 at [24]. Further, there is an “area of decisional freedom” afforded to decision-makers and a reluctance of courts to interfere with the exercise of a discretionary statutory power: see SZVFW at [11].

67    Ground 1 essentially challenges two categories of findings:

(a)    Findings about the Applicant’s “deceitful nature” and “character flaws” were not open as there was insufficient information to conclude that there were inconsistencies between the Applicant’s testimony and the General Court Records Certificate; and

(b)    Findings about the Applicant’s “complete disrespect” for Australian authorities and institutions were not open based on the applicant’s good behaviour in immigration detention.

68    I do not accept the Applicant’s submission that the Tribunal’s findings regarding the Applicant’s “deceitful nature” and “character flaws” were tainted by legal unreasonableness, irrationality or illogicality. The impugned findings were available on the material before the Tribunal.

69    The Tribunal had abundant evidence before it on which to base its decision as to the “deceitful nature” of the Applicant. For completeness, I will summarise some of this evidence before the Tribunal that provided a basis for its findings.

70    A document titled “DIBP Inspectors Report” was before the Tribunal. This document contains a record of the Applicant’s arrival in Australia and his initial dealings with immigration authorities. The record of interview shows:

    The Applicant arrived in Australia on a false Italian passport in the name of Fabio Mammoliti. The Applicant also had in his possession a fake Italian identity card and driver’s licence.

    The Applicant made a declaration on his incoming passenger card that he had no prior convictions.

    During questioning, the Applicant maintained a false back story, including that he was Italian, had lived in Italy since birth, did not have any children and was in Australia for a two-week holiday to visit a friend. In support of this final point, the Applicant had provided a fabricated letter and copy of a passport from the supposed Australian contact Gjaneto Babaj.

    Upon discovery of the Applicant’s Albanian passport in a concealed compartment of his suitcase, the Applicant admitted that the Italian passport was fake and that he had purchased it (along with the other fraudulent identity documents) from a Moroccan man in Paris. He also admitted to fabricating the letter and passport of his supposed friend Gjaneto Babaj so that it appeared he had contacts in Australia.

71    In the Applicant’s statutory declaration affirmed on 22 July 2014, the Applicant asserted that:

    He had entered Italy illegally in 1997;

    He could not recall the name of the Albanian man who falsely testified against him in the Italian criminal proceedings;

    The extortion charges were baseless and unfounded; and

    He had arranged and picked up his false Italian passport prior to departing Albania and then travelled to Paris via Turkey.

72    Further evidence demonstrates that the Applicant continued to maintain his position that he had no criminal record until his second protection visa application. At that point he had made positive representations to two tribunals that he had no prior convictions or criminal record. He had instructed his representatives to make similar representations. As the second Refugee Review Tribunal found, the Applicant’s repeated willingness to provide false information to both the Department and the Tribunal about his identity, family circumstances and criminal history reflects poorly on the Applicant’s credibility.

73    The Tribunal also had, and considered, ample material to support its finding at [31] that the Applicant had given “false explanations” as to his convictions and offending.

74    In cross-examination before the Tribunal, the Minister’s representative questioned the Applicant about the offending. The Applicant maintained that the drug charges related to one instance where he and some friends had pooled money to purchase and share cocaine. Police had pulled over the Applicant as he was driving and found the cocaine in the car. When asked about the multiple and “ongoing” drug charges, the Applicant maintained that the other charges were “put on” him and denied any drug dealing. The Applicant further maintained that another Albanian man had provided a false testimony implicating him in the drug charges.

75    The Applicant was also cross-examined on the extortion charges, relating to a motorbike. The Applicant minimised any wrongdoing, saying there must have been a problem with the seller of the motorbike as the purchase was legitimate. The Applicant also referred to being mixed up with the wrong person or people.

76    Further, as the Tribunal noted at [31], these explanations had already been rejected by the Italian criminal courts. It is reasonable for the Tribunal to accept that the Italian court had not accepted the Applicant’s explanations, and make a statement in the terms it did.

77    In oral submissions, counsel for the Applicant submitted that there simply was not enough information on the General Court Records Certificate to conclude that the Applicant’s evidence was false or inconsistent with his convictions before the Italian courts. However, when the Certificate is read alongside the other evidence considered by the Tribunal and considered in light of the Applicant’s cross-examination, it is clear that inconsistencies do arise. For example, the Applicant maintains the drug charges relate to the one-off occasion where he purchased cocaine to share with friends. The certificate, however, shows five separate drug related charges, all with different date ranges and locations:

Supplying or selling illegal narcotic substances on an ongoing basis … committed from 12 January 2007 to 01 March 2007 in Somma Lombardo and Gallarate

Supplying or selling illegal narcotic substances on an ongoing basis… committed from 14 December 2006 to 01 March 2007 in Casorate Sempione, Gallarate and other locations

Illegal transfer of narcotic substances on an ongoing basis… committed from 01 January 2007 to 28 February 2007 in Oggiona con Santo Stefano

Illegal transfer of narcotic substances on an ongoing basis… committed from 03 January 2007 to 10 February 2007 in Casorate Sempione and Gallarate

Buying, possessing and selling illegal narcotic substances on an ongoing basis acting jointly… committed from 01 January 2006 to 17 May 207 in Casorate Sempione and Gallarate

Attempted extortion acting jointly… committed from 26 January 2007 to 12 March 2007 in Gallarate, Casorate Sempione, Cavaria con Premezzo, Somma Lombardo

Extortion… committed on 14 February 2007 in Azzate

78    Even if it is not clear whether the date ranges refer to the ongoing commission of the offences, or a range of dates in which one offence occurred, the Certificate still demonstrates seven charges. The charges were serious enough for the Applicant to be sentenced to 4 years and 6 months imprisonment (of which he served 3 years and 4 months) and to receive a substantial fine.

79    In support of the submission, the Applicant refers to Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 (Splendido). In that case, the Court held that an Australian National Police Certificate was not capable of establishing the Respondent’s likelihood of reoffending. At [71], Mortimer J said:

The bare descriptive information in the National Police Certificate was not capable of establishing, in and of itself, the qualitative likelihood of Mr Splendido re-offending, or what offences it was likely he might, or might not, commit in the future. Dicta from cases dealing with the question whether inferences can be drawn from a person’s record of criminal offences explain the flaws in such a reasoning process, and why more is needed than the bare facts of past offending.

80    As counsel for the Applicant rightly acknowledged, this case is not on all fours with Splendido. The General Court Records Certificate was not used here as a basis to determine the likelihood of reoffending, but rather to establish the mere fact of historical offending. I do not accept the Applicant’s submission that Splendido provides me with any guidance as to the dangers of relying on documents like the General Court Records Certificate. As I have found above, there are inconsistencies between the Applicant’s testimony and the details on the face of the General Court Records Certificate, which were enough to support the Tribunal’s finding as to the Applicant’s “false explanations”.

81    The Tribunal did not ignore relevant findings regarding the applicant’s good behaviour and rehabilitation in detention when it concluded that the Applicant had “complete disrespect for important institutions in Australia such as Australia’s immigration and law enforcement framework”. The Tribunal had regard to the Applicant’s behaviour during his periods of detention, and noted that he has not offended since 2007. Further, references were made in the Tribunal’s reasons to the Applicant’s efforts at rehabilitation and noted that he is unlikely to engage in further criminal conduct: Reasons, [29].

82    It is clear that the Tribunal has considered the applicant’s behaviour since his offending, and his rehabilitation while in detention. I do not consider it illogical for the Tribunal to also conclude that the Applicant has a “complete” disrespect for Australian authorities. The good behaviour does not negate the Applicant’s long history of failing to provide relevant prejudicial information, and providing false information, explanations and fabricated evidence to law enforcement and immigration authorities (including the Refugee Review Tribunal) since arriving in Australia in 2011. It was not unreasonable for the Tribunal to come to this conclusion. At its highest, the use of “complete” may be hyperbolic, but to hold that it was irrational would be to examine the Tribunal’s reasons with an eye keenly attuned to the perception of error: contra Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

83    Based on the above, I consider there to be sufficient probative evidence for the Tribunal to conclude that the Applicant’s evidence before it was inconsistent with his convictions. Furthermore, the finding that the Applicant had “complete disrespect” for Australian law enforcement institutions was open to the Tribunal and cannot be said to be unreasonable, illogical or irrational. As such, I find that Ground 1 is not made out.

Ground 2

84    The second ground of review arises from the Tribunal’s assessment of the risk of harm posed by the Applicant’s conduct in its assessment of the protection of the Australian community primary consideration.

85    The Applicant submits that in concluding that Primary Considerations 1 and 4 outweighed considerations in favour of granting a visa, the Tribunal erred in one of three ways:

(a)    The Tribunal did not make any findings about the nature or quality of the harm posed by the Applicant’s deceitful character, and as such did not meet the requirement in cl 8.1.2(2)(a) of Direction 90, nor apply Tanielu correctly. Even if the court accepts that there was reference to the nature or quality of harm in the Tribunal’s reference to “general harm”, it is unclear what that means and it cannot satisfy the requirements in Direction 90 or Tanielu.

(b)    Alternatively, the Tribunal conflated the gravity of the risk of harm that may manifest if the Applicant were to commit further drug offences with the gravity of the risk of harm posed by his deceitful character. Doing so was illogical as there was no evidence of a causal nexus between the Applicant’s deceitful character and his historical offending.

(c)    Given the absence of findings about the gravity of the risk of harm posed by the Applicant’s deceitful character, or how that harm might manifest, it was not open to conclude that the risk would be unacceptable or so “overwhelming” that the Australian community would not tolerate it.

86    I do not consider the Tribunal was obliged to rigidly apply Tanielu. It has been accepted in relation to Direction 90 (and its predecessors) that there is no prescribed way of evaluating the risk to the Australian community. The Full Court has stated on numerous occasions that it is not necessary for the decision maker to “evaluate the risk of harm in a particular way”: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [44]; Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 at [71].

87    As the Applicant points out, the Tribunal was obliged (by cl 8.1.2 of Direction 90) to consider the risk to the Australian community in its assessment of Primary Consideration 1. The Tribunal referred to Tanielu at [27], stating that the decision provides “guidance” as to measuring the risk to the Australian community. It is not correct to say that the Tribunal erred in first deciding to assess risk through the prism of Tanielu and then in applying the test incorrectly.

88    The first error alleged by the Applicant relates to the identification of the nature of harm posed by the Applicant’s deceitful conduct. The Applicant contends that either the Tribunal did not identify the nature of harm posed by the Applicant’s deceitful nature, or even if it did, the identified “general harm” is not sufficiently clear to provide a rational basis from which to evaluate the risk such conduct might pose.

89    Firstly, I do not accept that the Tribunal’s reference to “deceitful nature” in [30] is confined to separate conduct than the Tribunal’s reference to breaches of immigration laws and misleading of immigration authorities in [28]. The full context of [30] is important. The Tribunal refers to the “other serious conduct of a deceitful nature carried out by the applicant”. The reference to “other serious conduct of a deceitful nature” picks up the immigration laws breaches and misleading of authorities including the Refugee Review Tribunal and the Tribunal. Therefore, the identification of “general harm” applies to the harm posed by “serious conduct of a deceitful nature”.

90    Contrary to the Applicant’s submission, the Tribunal’s identification of “general harm” to the community did in fact address the nature of the harm posed by the Applicant’s deceitful conduct, as previously manifested by his breaches of immigration laws and misleading of immigration authorities including Tribunals.

91    Secondly, while the Tribunal’s term “general harm” is perhaps, as the Respondent conceded, “more amorphous” than the expression used in relation to the drug offences (“the nature of the harm would be extremely serious because supplying drugs has a devastating effect on the community”), there is no inherent error in identifying the harm as such. “General harm” adequately describes the kind of harm caused by those breaching immigration laws or lying to authorities. The precise nature of any future harm is tied to the context in which any reoccurrence of the applicant’s deceitful character manifests. While the harm may not be, for example, physical, economic or psychological harm to individuals, there is clearly some harm to the Australian community posed by non-compliance with immigration laws and lying to authorities.

92    The Applicant’s second argument must also fail. There was no such conflation of harm as the Applicant contends. The Tribunal’s reasons clearly identify first, the two kinds of conduct (the Applicant’s criminal offending and the Applicant’s otherwise deceitful conduct); second, the kinds of harm that would flow from continued conduct (serious harm from criminal offending and general harm from the other deceitful conduct); and third, the risk of further engaging in the conduct (low risk for engaging in further criminal offending, and a “real risk” of engaging in future deceitful conduct).

93    In light of the above, the third argument also fails. The Tribunal had made findings about the nature and seriousness of the risk of harm posed by the Applicant’s deceitful conduct. In its conclusion on the protection of the Australian community factor the Tribunal states at [33]:

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

94    The Tribunal considered the necessary factors and reached a conclusion that was open to it on the facts. While another decision maker might have weighed Primary Consideration 1 differently, in the absence of error it is not for the Court to interfere in a decision made within the bounds of decisional freedom. To do so would amount to impermissible merits review. Ground 2 has not been made out.

Ground 3

95    The Applicant submits that the Tribunal acted unreasonably in unduly applying a narrow interpretation of the Applicant’s participation in and contributions to the Australian community. The Applicant submits that, in applying the principle in cl 5.2(4) of the Direction, the Tribunal only considered the Applicant’s participation in, and contribution to, the Australian community by reference to the time where he was living in the community (rather than his entire time in Australia).

96    One aspect of the Applicant’s argument concerns the use of “generally” in cl 7(2) of the Direction, which states:

Primary considerations should generally been given greater weight than other considerations.

97    The Applicant relies on FYBR v Minister for Home Affairs [2019] FCAFC 185 to support its position regarding the weight given to the expectations of the Australian community. In particular, the following passage of Charlesworth J at [76]–[77] (emphasis in Applicant’s submissions):

The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under [cl 9 of the present Direction]. There may be cases in which it is not appropriate to give the community expectations... any weight at all.

In my view, the degrees of tolerance referred to in [current Ministerial Direction 90] are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.

98    The Applicant relied on this passage to demonstrate flexibility in the decision-making process, and that it is not appropriate to act in accordance with the deemed community expectations in all cases. The Applicant submits that the unduly narrow interpretation of cl 5.2(4) of the Direction meant that the Tribunal did not fully engage with the task before it with regards to whether it was appropriate to give more or less weight to community expectations in this particular case.

99    It is clear that the Tribunal did consider the Applicant’s ties beyond the 20 months spent living in the community, in particular the close ties to his family that had been developed since his arrival in Australia. In the Tribunal’s consideration of the best interests of minor children at [35]–[41] of the Reasons, the Tribunal stated at [38] “there is no doubt that since coming into their family in late 2011 the applicant has had a very positive influence on the young grandchildren”. Further, in the consideration of links to the Australian community from [55]–[58] the Tribunal found “since being in Australia, the applicant has established himself as a good husband, stepfather and step grandfather”. The reference to participation in and contribution to the Australian community went no further than acknowledging that the Applicant had spent a limited time working and living outside of immigration detention. It was both consistent with cl 5.2(4) of the Direction and open to the decision maker to consider time actually spent in the community as a more important factor.

100    The Tribunal also noted at [61] that the Applicant’s ties to the community had been built on an opportunity gained through his deceitful conduct. But for that deceit, the Applicant would never have met his wife and developed any ties to the community.

101    This is not a case that might be contemplated by the principle articulated in cl 5.2(4) of the Direction: that “Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age”. The Applicant was over 30 years old when he first arrived in Australia, and has spent the majority of his time here in immigration detention.

102    The third ground of appeal essentially consists of an attack on the Tribunal’s weighting, asserting that the Tribunal failed to give enough weight to the Applicant’s ties to the community. It was open for the Tribunal to balance the various factors as it did. While reasonable minds may differ as to the ultimate outcome, the Tribunal’s decision was within the bounds of decisional freedom and did not betray legal unreasonableness. The Tribunal had regard to the evidence before it and applied the Direction in coming to its conclusion. To find otherwise would be to stray into merits review of the Tribunal’s decision.

103    The third ground of appeal must also fail.

CONCLUSION

104    For the reasons above, the application is dismissed.

Associate:

Dated:    18 February 2022