Belevski v Minister for Immigration and Multicultural Affairs

[2001] FCA 197

FEDERAL COURT OF AUSTRALIA

Belevski v Minister for Immigration and Multicultural Affairs [2001] FCA 197

KIRIL BELEVSKI and VERA BELEVSKA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V510 of 2000

WEINBERG J
6 MARCH 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V510 of 2000

BETWEEN:

KIRIL BELEVSKI
FIRST APPLICANT

VERA BELEVSKA
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

6 MARCH 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondent’s costs of the hearing of 6 March 2001.

3.There be no order as to costs in relation to costs previously reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V510 of 2000

BETWEEN:

KIRIL BELEVSKI
FIRST APPLICANT

VERA BELEVSKA
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	WEINBERG J
DATE:	6 MARCH 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application to review a decision of the Migration Review Tribunal (“the MRT”) given on 21 June 2000 affirming a decision of a delegate of the respondent made on 30 March 2000 refusing the first applicant a Cultural/Social (Temporary) (Class TE) visa, Subclass 428 (Religious Worker).  The second applicant is the spouse of the first applicant, and her application for review is largely dependent upon the success of the application brought by the first applicant.

   Factual background

2. The first applicant is a 58 year old citizen of the Former Yugoslav Republic of Macedonia.  As noted above, the second applicant is his wife.  On 6 December 1997 they arrived lawfully in Australia with the first applicant holding a Cultural/Social (Temporary) (Class TE) visa, Subclass 428 (Religious Worker) valid until 20 November 1999.  On 30 November 1999, ten days after that visa had expired, the first applicant lodged an application for the grant of a further visa of the same class.  At the time of lodging that application neither he nor his wife held substantive visas.

3. In the application of 30 November 1999 the first applicant specified that the activity that he proposed to undertake in Australia was “religious worker on workcare”.  In answer to a question requesting the name and address of his employer or sponsor he wrote:

   “It was my employer not any more.
   Macedonian Orthodox Community
   512-514 High Street
   Epping 3076”

4. On 30 March 2000 a delegate of the respondent wrote to the first applicant advising him that his application for a Class TE visa had been refused. The delegate found that the first applicant had not lodged a formal sponsorship by a religious organisation in Australia to support his visa application and could not therefore meet the requirements of the Migration Regulations 1994 (“the Regulations”). The delegate referred in particular to Clause 428.222, which is to be found in Sch 2 of the Regulations.

5. Clauses 428.221 and 428.222 provide as follows:

   “428.221   If:

   (a)     the application is made outside Australia; or

   (b)     the application is made in the migration zone and the applicant does not hold a Subclass 428 visa;

   the applicant satisfies the criteria in clauses 428.222 to 428.228.

   428.222The applicant is sponsored by a religious organisation in Australia to undertake work in Australia that directly serves the religious objectives of the organisation, and the sponsorship has been approved by the Minister and the sponsorship fee prescribed in regulation 5.38 has been paid.”

6. In his application for review of the delegate’s decision the first applicant wrote:

   “I can’t get a sponsor because I’ve been hurt at work and am on workcover.  I have mental and physical problems because of it.  I can’t work so I can’t get a sponsor.”  (emphasis added)

7. On 21 June 2000 the MRT affirmed the decision of the delegate.  It found that there was no evidence of any sponsorship of the first applicant by any religious organisation in Australia, including the Macedonian Orthodox Community.  It found accordingly that the applicant did not meet the criteria set out in clause 428.222.

8. The MRT also found that the first applicant did not meet the requirements of clause 3004 which is to be found in Sch 3 of Regulations.  That clause sets out additional criteria applicable to unlawful non-citizens and certain bridging visa holders.  Clause 3004 relevantly provides:

   “3004  If the applicant:

   (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994 …

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

   (d)       there are compelling reasons for granting the visa …”

   a visa of the class sought may be granted.  The MRT concluded that the first applicant had not established that, at the time he made his application, there were “compelling reasons” for granting the visa sought.

9. This latter aspect of the MRT’s decision was not challenged by the applicants in the hearing before me.

10. Decisions of the MRT are “judicially-reviewable decisions” pursuant to s 475 of the Migration Act 1958 (Cth) (“the Act”). The grounds upon which such decisions may be reviewed in this Court are restricted to those contained in s 476(1) of the Act.

    The competing contentions

11. The applicants appeared in person and obviously laboured under severe difficulties in presenting their case.  In substance, the first applicant contended before me, though not, it would seem, before the MRT, that the fact that he was receiving workers’ compensation payments from the Macedonian Orthodox Church in June 2000 when the MRT arrived at its decision meant that that Church, which had been the religious organisation which sponsored him from 1997 to 1999, was still relevantly to be treated as his sponsor. 

12. The first applicant also repeated the submission which he made before the MRT that his physical incapacity, which had been brought about largely as a result of a severe beating which he sustained while engaged in his duties as a priest of the Macedonian Orthodox Church, rendered it impossible for him to continue in his employment, and therefore impossible for him to continue to be sponsored by that Church.  He submitted that in these circumstances the MRT should have held that he satisfied the requirements of Clause 428.222.

13. In reply to these submissions the respondent drew attention to the detailed obligations imposed upon those who sponsor applicants for visas as set out in Div 1.4 of Reg 1.20 of the Regulations. The respondent submitted that it was plain that the applicants had failed to demonstrate before the MRT that they met the requirements of clause 428.222. Those requirements were mandatory. Whatever sympathy one might have for the applicants, having regard to their state of health and impecuniosity, the fact was that they did not meet the criteria necessary to qualify for the visas which they sought.

    Conclusion

14. It is abundantly clear that the first applicant failed to establish before the MRT that he was relevantly sponsored by a religious organisation in Australia.  It may well be that this situation arose because of the injuries which he sustained in the course of his employment, rendering him unfit to continue to act as a priest.  Be that as it may, the requirement of sponsorship by a religious organisation is a necessary prerequisite for the grant of a Subclass 428 visa.  That requirement is not satisfied by proof that the first applicant was relevantly an employee of such an organisation, or that he was receiving workers’ compensation for injuries sustained in the course of his employment.  Sponsorship and employment are separate and distinct concepts.

15. There was no material before the MRT to suggest that the first applicant could satisfy the criteria for the grant of a visa in any other subclass.

16. It follows that no reviewable error in the MRT’s reasons for decision has been demonstrated.  The application must be dismissed and the applicants must pay the costs of this day’s hearing.  They should not, however, be required to pay the costs which were reserved arising out of a notice of motion previously brought by the respondent seeking to have this application summarily dismissed.  That notice of motion did not succeed, and I think justice will be done if the parties bear their own costs thereof. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:            6 March 2001

Counsel for the Applicants:	Mr  K Belevski appeared in person and on behalf of the second applicant
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 March 2001
Date of Judgment:	6 March 2001