Ivkovikj v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ivkovikj v Minister for Immigration and Citizenship [2025] FedCFamC2G 1014

File number(s): SYG 2077 of 2020
Judgment of: JUDGE KAUR-BAINS
Date of judgment: 3 July 2025
Catchwords:

MIGRATION - Application for judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant the applicant a Visitor (Class FA) (subclass 600) visa – Tribunal found the applicant in providing spiritual healing was working in breach of a previous visa condition 8101 – meaning of “work” in reg 1.03 as activity that normally attracts remuneration - whether the activity performed by the applicant was such that normally attracts remuneration – no jurisdictional error – application dismissed

PRACTICE AND PROCEDURE – permitted a friend of the applicant to make submissions on her behalf in recognition of the extension of the concept of a Mckenzie friend

Legislation:

Migration Act 1958 (Cth) ss 359, 476

Migration Regulations 1994 (Cth) cl 600.211 of Schedule 2, condition 8101 of Schedule 8, reg 1.03

Cases cited:

BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095

Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472

Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489

Hamod v New South Wales [2011] NSWCA 375

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza (2022) 291 FCR 568; [2022] FCAFC 89

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Nepal v Minister for Immigration and Border Protection [2015] FCA 366; 327 ALR 89

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2

SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445

XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349; [2024] FCAFC 131

Xu v Minister for Immigration and Citizenship [2007] FMCA 285

Division: General Federal Law
Number of paragraphs: 53
Date of hearing: 1 May 2025, 4 June 2025
Place: Sydney
First Applicant: The Applicant in person
Second Applicant: The Applicant in person
Solicitor for the First Respondent: Ms T Jackson of MinterEllison
Solicitor for the Second Respondent: Submitting appearance save as to costs

ORDERS

SYG 2077 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

TODORA IVKOVIKJ

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEWS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KAUR-BAINS

DATE…

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Ivkovikj v Minister for Immigration and Citizenship [2025] FedCFamC2G 1014
Case
[2025] FedCFamC2G 1014
Decision Date

CaseChat Overview and Summary

The case of Ivkovikj v Minister for Immigration and Citizenship involves the applicant, a visitor visa holder, who sought a judicial review of the Administrative Appeals Tribunal's (AAT) decision to refuse her application for a further visitor visa. The applicant had previously been granted a Visitor (Subclass 600) visa with a condition prohibiting her from engaging in work in Australia. She applied for a further visitor visa claiming she intended to stay temporarily in Australia to assist the community through spiritual healing and to complete interviews with the 60 Minutes program. The AAT affirmed the decision to refuse her visa, finding she had breached the condition prohibiting work by providing spiritual healing, which they determined normally attracts remuneration.

The legal issues before the court were whether the AAT made a jurisdictional error in its interpretation of the statutory definition of "work" as an activity that normally attracts remuneration and whether the AAT's finding that healing services are normally remunerated was made without evidence. The court had to determine if the AAT correctly applied the statutory definition to the applicant's activity of providing spiritual healing. Additionally, the court examined if the AAT's finding about the remuneration of healing services was supported by evidence or if it was made without sufficient basis.

The court found that the AAT was aware of the statutory definition of "work" and correctly applied it to the facts of the case. It concluded that the activity of providing spiritual healing, in the circumstances presented, normally attracts remuneration. The court also found that the AAT's determination that healing services are normally remunerated, regardless of their humanitarian nature, was not made without evidence. The court accepted that such a finding could be based on personal or specialised knowledge, or accumulated knowledge within the Department. Therefore, the court dismissed the application for judicial review, finding no jurisdictional error in the AAT's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons set out below, I find the applicant has not demonstrated jurisdictional error.BACKGROUND On 2 February 2018, the applicant was granted a Visitor (Subclass 600) to travel to Australia for 3 months with the visa condition 8101, being that she was not to engage in work in Australia (Court Book (CB) 15).Application for further visitor visa On 12 October 2018, the applicant lodged an application for a further visitor visa based on the following claims (CB 16 to 29):(a)The applicant stated that she would be residing with an acquaintance of her cousin, Mr Zoran Nastevski (Mr Nastevski) and his family. The applicant stated she came to Australia to help the community by healing and that she had assisted sick people. She wished to remain onshore to convey her story and had been in contact with the current affairs program, 60 Minutes, about a news segment (CB 29); and (b)The applicant further stated that she would not be working as she was not paid or hired and that she planned to spend time with family and friends and complete her interviews with 60 Minutes. The applicant claimed that she had an incentive to return to Macedonia where her husband and child reside, that she would be fully supported by her cousin and Mr Nastevski and that she was aware of the conditions on her visa (CB 29). Delegate’s decision On 30 October 2018, a delegate of the Minister refused to grant the applicant a further visitor visa as the delegate was not satisfied that the applicant met cl 600.211 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations), being that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted (CB 47 to 48). On 19 November 2018, the applicant lodged with the Tribunal an application for review of the delegate’s decision (CB 50 to 51). Tribunal’s decision On 3 August 2020, the Tribunal affirmed the decision to refuse to grant the applicant a visitor visa (CB 82 to 88). The Tribunal’s reasons are dealt with below, when considering each of the grounds for judicial review.GROUNDS OF REVIEW The applicant's application dated 3 September 2020 contained the following grounds for judicial review (as per original): 1.The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.Particularsa.The Applicant applied for a review of her decision. There was no way that the Applicant was able to know of the likely time frame to have a hearing allocated by the Second Respondent as there was no consistency.b.The Tribunal failed to provide procedural fairness to the Applicant in circumstances where the Tribunal failed consider how much the applicant has assisted Australian citizens through her spiritual guidance. The applicant has contributed in a great way to Australian society through her gift of healing.c.The Second Respondent did not consider that the applicant had devoted her life to helping people and only wishes to stay longer in Australia to continue to help people through the tough time of Covid-19. 2.The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not consider that the refusal was based on unfounded information from an anonymous source, and that the evidence provided by the applicant was not considered. PROCEEDINGS BEFORE THE COURT

Evidence

Evidence Before The Court

For the reasons outlined at [33] to [36] of this judgment, I find the Tribunal was aware of the statutory definition of “work” and correctly applied that statutory definition to the facts of this case.New ground - whether the Tribunal’s finding that healing services are normally remunerated, regardless of whether they are humanitarian in nature, was a finding made without evidence The applicant contended there was no evidence on which the Tribunal could make the finding at [37] of its reasons, that “it is of the view healing services are normally remunerated, regardless of whether they are humanitarian in nature, conventional treatments, or effective”. Before considering the no evidence ground, it is useful to set out the relevant legal principles applicable to this ground. One of the issues in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 (Keane, Gordon, Edelman, Steward and Gleeson JJ) was whether the Minister was allowed to make findings about conditions in Samoa based on "personal or specialised knowledge, or commonly accepted knowledge" as it was accepted by both parties the findings were not based on any objective evidence (at [7], [17] to [21]). The High Court found the Minister was allowed to make such findings on "personal or specialised knowledge, or commonly accepted knowledge" as they were not "particular or personal findings about an applicant, which could not have been the subject of any pre-existing personal or specialised knowledge (or common knowledge)" (at [20] and [21]). In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza (2022) 291 FCR 568; [2022] FCAFC 89 (Markovic J, Thawley J and Cheeseman J), the Full Court was considering whether a finding about Canadian health and rehabilitation services required "direct evidence" (at [40]). The Full Court of the Federal Court found the finding that Canada has "a comparable standard of health care to that in Australia, in addition to a comparable standard of support for rehabilitation services" was a general finding, not specific to the individual circumstances of the applicant (at [39]). Therefore, the Court found the Tribunal was allowed to make the finding based on "personal or specialised knowledge" or the "accumulated knowledge of the Department… in particular the delegate's decision" (at [41]). The issue in XRZG v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 305 FCR 349; [2024] FCAFC 131 (Markovic, Cheeseman and Horan JJ), was whether a finding of the Tribunal was not supported by any evidence and therefore the Tribunal's decision was legally unreasonable (at [64]). The Tribunal made a finding that drugs were relatively more available in detention than in the community (at [2]). The Full Court found the finding "is not one that suggests any need for empirical evidence… it is clearly directed to matters of a general nature… It is not a "particular or personal" finding about the appellant and his individual circumstances of a kind that could not be the subject of any pre-existing personal or specialised knowledge or common knowledge possessed by the Tribunal, which may therefore need to be supported by some evidence…" (at [53]).

Decision

Reasons for decision

On 19 November 2018, the applicant lodged with the Tribunal an application for review of the delegate’s decision (CB 50 to 51). Tribunal’s decision On 3 August 2020, the Tribunal affirmed the decision to refuse to grant the applicant a visitor visa (CB 82 to 88). The Tribunal’s reasons are dealt with below, when considering each of the grounds for judicial review.GROUNDS OF REVIEW The applicant's application dated 3 September 2020 contained the following grounds for judicial review (as per original): 1.The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.Particularsa.The Applicant applied for a review of her decision. There was no way that the Applicant was able to know of the likely time frame to have a hearing allocated by the Second Respondent as there was no consistency.b.The Tribunal failed to provide procedural fairness to the Applicant in circumstances where the Tribunal failed consider how much the applicant has assisted Australian citizens through her spiritual guidance. The applicant has contributed in a great way to Australian society through her gift of healing.c.The Second Respondent did not consider that the applicant had devoted her life to helping people and only wishes to stay longer in Australia to continue to help people through the tough time of Covid-19. 2.The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness and did not consider that the refusal was based on unfounded information from an anonymous source, and that the evidence provided by the applicant was not considered. PROCEEDINGS BEFORE THE COURT The applicant appeared at the hearing before me as a litigant in person, assisted by an interpreter in the Macedonian language. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant and the Minister’s written submissions. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review, being that: (a)the Court could only set aside the decision of the Tribunal if it found that the decision of the Tribunal was affected by jurisdictional error: ss 474 and 476 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and(b)the applicant for judicial review under s 476 bears the onus of establishing jurisdictional error in the Tribunal’s decision: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [24] per French CJ, Bell, Keane, and Gordon JJ.McKenzie friend

Ratio Decidendi

Legal Principle Established

I will first deal with the above two new grounds for judicial review and then for completeness, I will deal with the grounds raised in the applicant’s application for judicial review dated 3 September 2020. CONSIDERATIONNew grounds for review whether the Tribunal failed to correctly apply the applicable law This ground raises the question of whether the Tribunal failed to correctly apply the meaning of work as defined in reg 1.03 of the Regulations for the purposes of considering whether the applicant breached condition 8101 of her first visitor visa not to engage in work in Australia. In order to consider this ground, it is useful to set out the relevant legal principles. Relevant legal principles In relation to the subclass 600 visitor visa, the Tribunal was required to be satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. Clause 600.211 of the Regulations provided as follows: The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:(a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and (b)whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and (c) any other relevant matter. Condition 8101, that the holder must not engage in work in Australia, was attached to the applicant’s first visitor visa. Regulation 1.03 defines “work” as meaning “an activity that, in Australia, normally attracts remuneration”. In Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489 (Dib), Justice Einfeld was considering the meaning of work as set out in reg 1.03. At [493], his Honour noted that the definition of work in reg 1.03 was inserted on 17 September 1991 to introduce a statutory definition, which was different from the ordinary meaning in common usage of the word “work”. At [494], in Dib, Einfeld J noted that monetary reward is not a necessary component of the statutory definition of “work”, which has a wider meaning in the Act and in support referred to the decisions of Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472. Justice Einfeld at [495] noted that in order to determine whether a particular activity constitutes “work” for the purposes of the statutory definition, “all the facts peculiar to the case are to be taken into account”, including the “commercial, social, domestic or altruistic motivations, may in the context of all the facts of a case, assist in determining whether a particular activity undertaken voluntarily is one that ordinarily attracts remuneration”. In Xu v Minister for Immigration and Citizenship [2007] FMCA 285, the Court was considering the meaning of “work” as defined in reg 1.03 of the Regulations for the purposes of considering whether the applicant breached condition 8101 of the Regulations. The Court relevantly said the following:[9]The concept of “remuneration” was undefined, but neither counsel argued that it should not be given the ordinary meaning of “that which remunerates; reward; pay”, where “remunerate” means “to pay, recompense, or reward for work, trouble, etc” (see Macquarie Dictionary Revised 3rd Edn.).…[19]Critical to the correct application of the definition of “work” is the identification of the particular “activity” of the visa holder which is under consideration. The decision-maker must make an identification of this, before considering whether it is an activity which “normally attracts remuneration”. Absurd and unintended results occur if the applicant’s activity is characterised without reference to its surrounding circumstances. If particular actions in some circumstances “normally attract remuneration”, the same actions in other circumstances may not normally be remunerated. In such situations, the surrounding circumstances in which the visa holder’s activity is undertaken or performed determine whether the activity performed by him or her is one which “normally attracts remuneration”. In these cases, it is legally insufficient for the decision-maker to limit the identification of the activity to a generalisation about the visa holder’s activity detached from its actual circumstances. The failure to take into consideration circumstances relevant to identifying and characterising the applicant’s particular “activity” then reveals a misconception of the relevant legislation, and gives rise to jurisdictional error (cf Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] citing Craig v South Australia (1995) 184 CLR 163 at 179).[20]This point is clearly illustrated in relation to activities which, in some circumstances, have an essentially domestic character and normally are not performed for remuneration; for example, domestic cleaning, caring for children or incapacitated persons, or building maintenance activities. The definition of “work” cannot intend that performance of such an activity should in all cases lead to visa cancellation, merely because the activity is, in some circumstances, performed by persons who are normally remunerated for their services. The definition must, therefore, be construed as meaning “an activity that normally attracts remuneration” to a person performing the activity in the same situation as the applicant. Although the intent of the definition is to allow a finding that a visa holder is “working” even if there is no evidence that they are actually receiving remuneration, it does not intend that the visa holder is to be deemed to be performing an activity in different circumstances from those in which he or she is actually performing the activity.[21]The characterisation of the “activity” of the visa holder therefore requires consideration of its actual surrounding circumstances, including the motivations and agreements which have resulted in the performance of the activity, and the personal and economic context in which the activity is performed, including whether there is evidence of any remuneration actually being received. The definition allows the decision-maker to find that the visa holder is “working” in breach of his or her visa notwithstanding that he or she is not found to have actually been remunerated, but only if “normally” a person in the same situation would receive a return or reward for their services by way of “remuneration”.Tribunal’s reasons