Djuric v Minister for Immigration
[2008] FMCA 1223
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DJURIC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1223 |
| MIGRATION – Spousal visa – generic ground with limited particulars – finding of Tribunal that there was no spousal relationship at time of application or hearing – applicant challenged findings of fact – attempt at merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.359A, & 474(2), & 360 Migration Regulations 1994 (Cth) Div. 1.15 |
| SOK v Minister for Immigration and Citizenship [2008] FCAFC 18 SOK v Minister for Immigration and Citizenship [2008] HCA 50 |
| Applicant: | MOMCILO DJURIC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 519 of 2008 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 29 August 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| The Applcant: | In person |
| Counsel for the Respondents: | Ms Hamnett |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 7 May 2008 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 519 of 2008
| MOMCILO DJURIC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By his application, the applicant, who appeared in person (with the assistance of an interpreter), seeks to review a decision of the Migration Review Tribunal (the Tribunal) dated 13 March 2008.
The Tribunal affirmed an earlier decision of the first respondent's delegate not to grant the applicant a Partner (Temporary) (Class UK) visa, or a Partner (Residence) (Class BS) visa.
Pursuant to directions made on 3 June 2008, the applicant was to file and serve an amended application, if any, by 14 July 2008 and contentions of fact and law by 21 July 2008. The applicant failed to file and serve either of these documents. At the hearing before me he was prepared to proceed on the grounds set out in his initiating application and affidavit filed in support.
Background
The applicant is a 60‑year‑old citizen of Bosnia Herzegovina.
He most recently arrived in Australia on 17 September 2005 and on 26 October 2005 applied for a Partner (Temporary) (Class UK) Subclass 820 (Spouse) visa on the basis of a claimed spousal relationship with Ms Nada Zarkovic, who became his sponsor.
On 6 February 2006, the sponsor notified the first respondent's department that she had separated from the applicant on 1 January 2006. The sponsor alleged that the applicant had manipulated her into marrying him and had falsely entered into the marriage. She also claimed that the applicant had mistreated her.
On 2 May 2006, the first respondent's delegate refused to grant the applicant's visa. On 10 May 2006, the applicant applied for a review of that decision, and on 29 January 2007 the Tribunal affirmed the decision of the delegate.
However, because of a failure to provide the applicant with a letter setting out the sponsor's complaints against the applicant, on 28 June 2007 this Court set aside the Tribunal's first decision and remitted the matter back to the Tribunal for reconsideration.
A reconstituted Tribunal then invited the applicant to appear at a hearing, which eventually took place, after some adjournments, on 7 January 2008. The applicant gave evidence at this hearing and was assisted by a Serbian interpreter.
On 9 January 2008, the Tribunal sent the applicant an invitation to comment on, or respond to, information that the Tribunal considered may be the reason, or may form part of the reason, for affirming the decision under review. In particular, the applicant was invited to comment on the following:
i)a Centrelink letter dated 6 February 2006 stating that the applicant had separated from the sponsor on 1 January 2006;
ii)correspondence from the sponsor stating that she had separated from the applicant on 1 January 2006;
iii)correspondence received from a person who stated that the applicant had manipulated the sponsor into marrying him in order to obtain a visa;
iv)correspondence from the sponsor stating that the applicant had mistreated her and had asked her to pretend that they were still in a relationship; and
v)information received from Ms Markovska (the applicant's third wife) stating that the applicant had said he did not need to have a relationship with a woman and only required a woman in order to obtain permanent residence – he wanted a visa, not a wife.
In addition, the applicant was also invited to provide further information pursuant to s. 360 of the Migration Act 1958 (the Act), including evidence that he was in a spousal relationship with the sponsor at the time of his visa application in October 2005, evidence that he was still in a spousal relationship with his former spouse or that he was able to satisfy alternative criteria under the Subclass 820 visa (including evidence of domestic violence).
In response, on 15 February 2008, the Tribunal received from the applicant a statutory declaration which stated:
i)that he had married the sponsor on 15 October 2005;
ii)that he did not know that she drank alcohol to excess and had been seeing a psychiatrist;
iii)that she was physically violent towards him;
iv)that he had tried to make peace with the sponsor to no avail;
v)that the sponsor had suggested to the applicant that he report her for abuse;
vi)that he did not want to report the sponsor for abuse; and
vii)that he subsequently met Ms Markovska who suggested that they get married.
The Tribunal's decision
In the decision of the Tribunal dated 13 March 2008 it found that:
i)the applicant no longer meets the requirements of subclause 820.221(1)(a), which requires the visa applicant to be the spouse of the sponsor at the time of the decision;
ii)the applicant and sponsor are no longer in a spousal relationship and have not communicated with each other for over 22 months and there is no prospect of them doing so in the future;
iii)the sponsor does not have a commitment to a shared life with the visa applicant as husband and wife to the exclusion of all others;
iv)the relationship is not continuing and the parties now live separately;
v)the applicant was committed to the sponsor but he was unable to show that they had a mutual commitment to a shared life as husband and wife to the exclusion of all others;
vi)the sponsor was not, at any stage, generally committed to a shared spousal life with the applicant; and
vii)significantly, for the purpose of this review, on viewing the totality of the evidence in relation to finances, household, social and emotional aspects of the relationship, the Tribunal was not satisfied that the parties were, “at any stage” (my emphasis), in a spousal relationship as defined by the regulations.
The applicant's grounds for review
The applicant's grounds for review, such as they are, are set out in his application filed on 7 May 2008. There is the generic statement that the Tribunal made its decision without jurisdiction or it was affected by an error of jurisdiction. Under the heading "Particulars", the applicant sets out, what might be called, three grounds; namely: ‑
i)the Tribunal, in effect, ignored evidence that demonstrated that there was a mutual commitment by the applicant and the sponsor to a shared life, "even though it had waned in recent times";
ii)that the Tribunal should have assessed the applicant in respect of a claim that the relationship had ceased because of domestic violence; and
iii)further to the earlier ground, the applicant asserts the Tribunal should have assessed the evidence of domestic violence.
In summary, it can be said that the applicant has alleged that the Tribunal reached the wrong conclusion in its findings, particularly in respect of that relating to whether the applicant and respondent were ever in a genuine and committed relationship. Similarly, the applicant's contention is that the Tribunal failed to consider the evidence about a genuine and committed spousal relationship between the applicant and the sponsor and the mutual commitment to a shared life. Finally, the applicant alleges a failure to consider the domestic violence aspect of the relationship he had with the sponsor.
The applicant was invited to expand on the grounds at the hearing before me and to make any contentions pertinent to the issue of whether there has been a want of jurisdiction on the part of the Tribunal in the decision it reached. It is fair to say, however, that the applicant was only able to take issue with findings of fact by the Tribunal and sought, in effect, to agitate a merits review of his application.
The first respondent's contentions
In addition to the grounds as set out above as identified from the application, the first respondent also sought to address two other potential grounds ‑ namely, the possible suggestion that the Tribunal had breached ss. 359A or 360 of the Act.
The first respondent contends, and I agree, that the applicant has sought to agitate a merits review of the Tribunal's decision when it came to the issue of whether or not the Tribunal's finding that the applicant and the sponsor were never in a genuine committed spousal relationship.
A reading of the decision shows that the Tribunal relied specifically on the applicant’s own evidence to found its finding that there was never a spousal relationship. The Tribunal found that, although by implication the delegate had found a spousal relationship at the time of making the application, there was not a spousal relationship at that time. This is a significant and discrete finding of fact which, on a fair reading of the decision, was open to the Tribunal. This Court cannot entertain a merits review of such a finding, and to the extent that the applicant relies on this for a successful prosecution of his review, he must fail.
The first respondent also contends that should the applicant be prosecuting this review on the basis that the Tribunal failed to take into account evidence demonstrative of the mutual commitment to a shared life then the applicant has failed to specify that evidence that the Tribunal failed to consider. On a reading of the Tribunal's decision, it would appear the Tribunal considered at length the evidence presented by the applicant and had due regard to it, including the statutory declaration provided in response to the s. 359A letter sent by the Tribunal.
The Tribunal was required to consider, in reaching its decision, whether the applicant met the requirements of subclauses 820.211 and 820.221. Those considerations required a determination of whether there was a spousal relationship both at the time of the application and time of the decision to grant it. The Tribunal found this not to be so. For the purpose of this review, the finding that no spousal relationship existed at the time of the visa application is fatal to the success of the review. It was a finding, in my view, open to it on the evidence. This was a finding of fact. This Court has no jurisdiction to go beyond that finding.
The Tribunal in determining the issue of the existence of a spousal relationship had to consider whether sub‑regulation 1.15A of the Migration Regulations (1994) was met. That regulation defines "spouse" as a person in a "married relationship" which, in turn, requires the minister’s delegate to be satisfied that the applicant and his sponsor "have a mutual commitment to a shared life as husband and wife to the exclusion of all others." There is also a requirement that the relationship be genuine and continuing. The Tribunal considered the evidence in the context of these requirements and made a finding of fact, as indicated above.
In respect of the allegation by the applicant that he was the victim of domestic violence, I agree with the respondent's submissions in that regard. Simply put, it is evident that the Tribunal considered the applicant's claims in this regard, but, applying the requirements which the applicant must meet under subclause 820.211, the Tribunal found, which was certainly open to it to find, as stated, that the requirement for a spousal relationship at the time of the application did not exist and, therefore, the domestic violence considerations were not enlivened.
In the alternative, the first respondent contended that, should the Tribunal in its assessment of the relationship between the sponsor and the applicant at the time of the application be wrong, it, nonetheless, did not have power to consider claims of domestic violence pursuant to Div 1.5 of the Regulations. In support of that contention reference was made to the Full Court of the Federal Court’s decision in SOK v Minister for Immigration and Citizenship [2008] FCAFC 18. Events, however, have overtaken this contention. On appeal to the High Court the Full Court overturned that decision. (See SOK v Minister for Immigration and Citizenship [2008] HCA 50) The High Court’s decision, in any event, does not effect the outcome of this review because a discrete finding was made, which finding was open to the Tribunal, that there was not a spousal relationship at any time, with the result that the domestic violence provisions were not enlivened.
Conclusion
The decision of the Tribunal is privative clause decision within the meaning of s. 474(2) of the Act and, as such, unless this Court is persuaded that the Tribunal has made a jurisdictional error, it is protected from review.
A fair reading of the Tribunal's decision clearly shows, in my view, that no jurisdictional error has been committed. It is very evident from both the nature of the grounds set out in the application, which were further reinforced by the submissions made before me, that the applicant seeks a merits review of the Tribunal's decision which this Court does not have jurisdiction to entertain.
Accordingly, the application filed on 7 May 2008 should be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date:17 October 2008
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