Spano v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 28 April 2023
• Neutral Citation: [2023] FCA 389
• Date: 28 April 2023

Federal Court of Australia

Spano v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 389

Appeal from:	Administrative Appeals Tribunal 2020/4510
File number(s):	ACD 26 of 2022
Judgment of:	ABRAHAM J
Date of judgment:	28 April 2023
Catchwords:	MIGRATION – judicial review – application for partner visa – appeal against decision of Administrative Appeals Tribunal – where Tribunal found the visa applicant did not meet the character test in s 501 of the Migration Act – where Tribunal exercised its discretion not to grant a partner visa – whether procedural unfairness, legal unreasonableness or bias amounting to jurisdictional error by the Tribunal. ; HELD – application dismissed – no jurisdictional error by the Tribunal established.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c) Migration Act 1958 (Cth) ss 499(2A), 501(1), 501(6)
Cases cited:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Mailau v Minister for Immigration [2023] FCAFC 12 Minister for Home Affairs v DUA16 [2020] HCA 46; [2020] 95 ALJR 54 Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 Minister of Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 266 FCR 555
Division:	General Division
Registry:	Australian Capital Territory
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	99
Date of hearing:	27 March 2023
Counsel for the Applicant:	Mr H. Heuzenroeder with Mr S. Kikkert
Solicitor for the Applicant:	Masothy Yin
Counsel for the First Respondent:	Ms R. Francois
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting appearance, save as to costs
Solicitor for the Second Respondent:	Christopher Matthies

ORDERS

		ACD 26 of 2022
BETWEEN:	MIRELLA SPANO Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	28 April 2023

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. These reasons concern an application for judicial review of a decision of the Administrative Appeals Tribunal (The Tribunal), made on 8 June 2022: Spano and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1537. That decision affirmed a decision of a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse the applicant’s spouse, referred to in these reasons as Mr P, a Partner (Provisional) (Class UF) visa. The Tribunal’s decision was based on its finding that Mr P did not pass the character test pursuant to s 501(1) of the Migration Act 1958 (Cth) (Migration Act), defined in s 501(6) (the Character Test). The Tribunal also determined it should exercise the discretion in s 501(1) to refuse to grant Mr P the partner visa by reference to the criteria in Direction no. 90 of the Minister.

2. This application is based on eight grounds of review, each alleging that the decision of the Tribunal was affected by jurisdictional error. The applicant sought relief in the form of orders quashing the Tribunal’s decision and remitting the decision for reconsideration by the Tribunal according to law.

3. For the reasons below, the application is dismissed.

Factual background

4. Mr P is a 30-year-old citizen of Albania.

5. On 27 May 2010, Mr P lodged an application for a student visa. On 26 July 2010, that application was refused. On 23 August 2010, Mr P lodged a second application for a student visa. On 14 December 2010, that application was also refused.

6. On 29 February 2012, Mr P arrived in Australia, landing in Brisbane, under a false name and with a fraudulently altered Italian passport, issued in the name of another person. He also presented a boarding pass and incoming passenger card in that false name. Mr P subsequently applied for a protection visa, which a delegate of the Minister refused in May 2012. In November 2012, Mr P was released into the Australian community and lived with his brother. In July 2014, the Federal Court dismissed Mr P’s appeal regarding his protection visa application and in August 2014, Mr P was taken into immigration detention. In 2015, the High Court dismissed his application for special leave to appeal.

7. Mr P met the applicant in June 2014 and they married later that year while Mr P was in immigration detention. He was removed from Australia in June 2015.

8. On 7 July 2015, Mr P applied for a partner visa. On 3 June 2016, a delegate of the Minister refused the application because they were not satisfied Ms Spano and Mr P were in a spousal relationship. Following an appeal to the Federal Circuit Court and remittal to a differently constituted Tribunal, the Tribunal directed the delegate to reconsider the application on the basis Mr P was and remained a spouse of an Australian citizen, Ms Spano.

9. On 23 April 2020, the Department of Home Affairs notified Mr P that it intended to consider refusing his application on the basis he did not pass the Character Test, citing information regarding Mr P’s previous travel to Australia on fraudulent travel documents. Mr P was invited to comment on the information and provide reasons why the visa application should not be refused even if he did not pass the Character Test. Mr P made written submissions to the delegate via his representative responding to this notice.

10. On 16 July 2020, the delegate refused Mr P’s application for a partner visa under s 501(1) of the Migration Act because they were not satisfied that he passed the Character Test.

11. On 27 July 2020, Ms Spano applied to the Tribunal for review of the delegate’s decision to refuse Mr P’s partner visa application. After a differently constituted Tribunal affirmed the delegate’s decision, on 29 September 2021, the Federal Court made consent orders quashing the Tribunal’s decision and requiring the Tribunal to reconsider its review of the delegate’s decision according to law.

12. On 8 June 2022, a differently constituted Tribunal again affirmed the decision of the delegate to refuse Mr P’s partner visa. It is that decision which is the subject of this appeal.

The Tribunal’s reasons

13. The issues for the Tribunal’s determination were whether Mr P passed the Character Test; and if not, whether the Tribunal should exercise its discretion pursuant to s 501(1) of the Migration Act to refuse to grant Mr P a partner visa: at [41].

14. The Tribunal received evidence from Ms Spano being a written statement and oral evidence. Mr P gave oral evidence at the...