Vojinovic (Migration)

[2019] AATA 6069

Vojinovic (Migration) [2019] AATA 6069 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nevena VOJINOVIC

CASE NUMBER:  1701521

DIBP REFERENCES:  1795555675 / CLF2013/50409

MEMBER:Mireya Hyland

DATE:20 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 20 November 2019 at 8:15pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – genuine spousal relationship – claims to be carer – provided out of date documents – request for current financial records – no persuasive evidence to support joint household – no evidence of correspondence provided – insufficient evidence to support genuine relationship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65. 359(1)
Migration Regulations 1994 (Cth), Schedule 2 cls 801.111, 820.221, r 1.15A(3)

CASES

Dranichnikov v MIMA [2003] HCA 26
He v MIBP [2017] FCAFC 206
M v MIMA (2006) 155 FCR 333
MIMIA v Jing Shan Sun (2005) 146 FCR 498

Sun v MIBP [2016] FCAFC 52

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 January 2017 to refuse to grant the applicant, Nevena Vojinovic, a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Vojinovic applied for the visa on 8 March 2013 on the basis of her relationship with her sponsoring partner, Dusko (Danny) Dragicevic. At that time, Class BS contained one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that she had no information before her at the time of her decision to demonstrate that Ms Vojinovic satisfies cl.801.221.

3. The issue in the present case is whether there is sufficient evidence before the Tribunal for it to be satisfy that Ms Vojinovic is in a genuine spouse relationship with her sponsoring partner, Mr Dragicevic. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Ms Vojinovic was granted a Partner (Temporary) (Class UK) Subclass 820 visa on 17 May 2013 on the basis that she was the spouse of Mr Dragicevic. On 16 January 2015, the Department of Home Affairs (DOHA) wrote to Ms Vojinovic at [State 1][Address 1]. The letter requested that she provide updated information showing that she continued to be the spouse of Mr Dragicevic. Ms Vojinovic did not respond to DOHA’s request. On 31 August 2016, DOHA again wrote to Ms Vojinovic, this time to the email address [details deleted] (the nominated email address).  It requested that she send the necessary information to determine that at the time of the delegate’s decision she was eligible for the Subclass 801 visa because she was the spouse of the sponsoring partner: cl.801.221(2)(c). Ms Vojinovic did not respond to the letter or contact the Department. Therefore, because she did not have any information to support that Ms Vojinovic was still Mr Dragicevic’s spouse, the delegate refused to grant Ms Vojinovic a Subclass 801 permanent residency visa.

   Evidence Before the Tribunal

5. The concept of an ‘onus or burden of proof’ is one that is buried in the practice and procedure of superior courts of law.[1] As a general proposition, it has no application to administrative decision-making.[2] There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[3] Rather, it is a generally-expressed and recognised principle that it is for an applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts.[4] As Kirby J observed in Dranichnikov v MIMA [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100:

   The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal's duties. The function of the Tribunal … is to respond to the case that the applicant advances …[5]

   [1] Sun v MIBP [2016] FCAFC 52 (Sun v MIBP) at [63] per Flick and Rangiah JJ.

   [2] Sun v MIBP at [6] per Logan J and [65] per Flick and Rangiah JJ; SZLVZ v MIAC [2008] FCA 1816 at [24] per Middleton J (SZLVZ v MIAC) citing Yao-Jing v MIMA (1997) 74 FCR 275 at 288.

   [3] Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing Prasad v MIEA (1985) 6 FCR 155 at 170.

   [4] Aporo v MIAC (2009) 113 ALD 46; [2009] FCAFC 123 Spender, Moore and Foster JJ and Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing MIMIA v Lat (2006) 151 FCR 214.

   [5] As cited in Sun v MIBP at [69] per Flick and Rangiah JJ.

6. On 30 January 2017, Ms Vojinovic applied to the Tribunal for review of the decision to refuse to grant her a Subclass 801 visa. The application included: the delegate’s decision and notification letter; a marriage certificate showing Ms Vojinovic married Mr Dragicevic on 7 January 2013; a photocopy of their driver’s licences, both showing [Address 1]; and an undated, unsigned statutory declaration from [Mr A].

7. The Tribunal notes that all the contact with and information received by the Tribunal in relation to Ms Vojinovic’s review, including in response to correspondence sent to Ms Vojinovic, was from Mr Dragicevic either by telephone or (with one exception) from the nominated email address. Since the submissions and evidence in this case were sent from the nominated email address and couched in terms that make clear they are the evidence that Ms Vojinovic is providing in support of her claim to be Mr Dragicevic’s spouse, it is reasonable to conclude that all the information provided was given by Ms Vojinovic (through Mr Dragicevic) for the purpose of the review application.

8. On 30 May 2017, the Tribunal received the following information:

   ·Ms Vojinovic’s statutory declaration dated 16 May 2017;

   ·A photocopy of an unactivated VISA card valid from September 2016 to September 2019 in the name of Mr Dusko Dragicevic (with the words ‘Nevena Vojinovic and’ below the name) and an unactivated VISA card valid from September 2016 to September 2019 in the name of Miss Nevena Vojinovic (with the words ‘Nevena Vojinovic and’ below the name);

   ·The same photocopy of their driver’s licences, Mr Dragicevic’s with an expiry date of 1 August 2018 and Ms Vojinovic’s with an expiry date of 30 December 2018.

   ·The same undated, unsigned statutory declaration made by [Mr A];

   ·Another copy of their marriage certificate;

   ·The email submission states ‘I don’t really have a lot of photos but we both have a facebook with the following links ….’ Included were links to:

   o   Ms Vojinovic’s Facebook page: it is only possible to view that she is the owner of [Company 1] in [Town 1], [State 1] and four photographs, three of them with Mr Dragicevic, but no dates for those photos are available;

   o   Mr Dragicevic’s Facebook page: it is only possible to view that he is a coffee maker at [Company 1] and four photographs, three of them with Ms Vojinovic, but no dates for those photos are available; and

   o   The [Company 1] Facebook page: one photograph of Ms Vojinovic from 2013 can be viewed.

9. On 19 December 2017, the Tribunal wrote to Ms Vojinovic under s.359(1) of the Act at the nominated email address with a standard request for information to support that she and Mr Dragicevic are still in a spouse relationship sent to all applicants before a matter is constituted. The letter explained in detail the four mandatory considerations set out in r.1.15A(3) and provided a list of the different types of evidence that is typically submitted in support of a married relationship. The letter made clear the list was a guide and not definitive. The Tribunal requested that Ms Vojinovic provide the information by 9 January 2018 or if she could not provide the information by that date that she contact the Tribunal to request an extension of time.

10. On 9 January 2018, the Tribunal attempted to call Ms Vojinovic on three different occasions, but did not get any answer. Later that day Mr Dragicevic contacted the Tribunal to say that the request for information had gone to the email spam folder and requested an extension of time to provide the information. The Tribunal extended the time to respond to its 19 December 2017 letter until 30 January 2018.

11. On 30 January 2018, Mr Dragicevic sent the Tribunal an email from the nominated email address. It stated that he was submitting four bank statements and a cheque book with both their names and their licences showing their residential address. The email said that Ms Vojinovic had become a director of an Australian company, Astro Traders Pty Ltd, with Mr Dragicevic’s father, [Mr B], and the holder of an Australian design patent under that company. The submission again stated ‘We do not have a lot of pictures but have been together for 6 years now and live and work together at [Company 1].’ Attached to the email was:

    ·Commonwealth Bank statements for a Business Transaction account in the name ‘Nevena Vojinovic and Dusko Dragicevic TA [Company 1]’ for the periods 4 September to 3 October 2017, 4 October to 3 November 2017, 4 November to 3 December 2017, and 4 December 2017 to 3 January 2018. The statements are addressed to Mr Dragicevic only at [Address 1];

    ·A Commonwealth Bank cheque for the Business Transaction account;

    ·An ASIC application for registration of Astro Traders Pty Ltd dated 30 April 2017 listing Ms Vojinovic as a director and an ASIC certificate of registration for Astro Traders Pty Ltd commencing 30 April 2017;

    ·A provisional patent application made by Astro Traders Pty Ltd dated 12 September 2017, lapsing on 12 September 2018;

    ·Copies of the same driver’s licences expiring in August and December 2018; and

    ·The same Facebook links.

12. On 14 March 2018, Ms Vojinovic’s matter was constituted (differently) and then, when that member became unavailable, reconstituted to the current member on 10 April 2019.

13. On 3 May 2019, after considering all the information before it, the Tribunal sent Ms Vojinovic an invitation to a hearing on 23 May 2019 at its offices in Sydney. The invitation requested that Mr Dragicevic also attend the hearing. On 16 May 2016, Mr Dragicevic rang the Tribunal to advise that they lived 200km from Sydney and because he had fractured his hip in a car accident in April 2000 he could not travel that far. He was asked to forward a request for other arrangements to be made in writing.

14. On 20 May 2019, the Tribunal received an email requesting that alternative arrangements be made for the hearing so that Mr Dragicevic could attend. For health reasons he could not travel or walk long distances to attend the hearing in Sydney and was asking if the Tribunal could conduct the hearing online instead. The email also stated ‘I don’t understand … why we have had [sic] a hearing like this’ and ‘I don’t really know what else to provide in support of this application’.

15. On 21 May 2019, the Tribunal agreed to postpone the 23 May 2019 hearing. It wrote to Ms Vojinovic and informed her that due to the mobility issues associated with her case it was attempting to source video conferencing facilities in [Town 1] and would contact her when a new date for her hearing was available.

16. On 23 May 2019, in light of the 20 May 2019 email, the Tribunal took the unusual decision to explain in more detail to Ms Vojinovic why it was giving her the opportunity to attend a hearing to give evidence and present arguments and further explain what additional evidence she could provide in support of her case. The letter stated that where the Tribunal is unable to make a favourable decision on the information before it, it is required to invite the applicant to a hearing. It informed her that after reviewing all the evidence, the Tribunal had found that she had not yet provided sufficient ‘current’ information for it to be satisfied that the relationship with Mr Dragicevic was continuing. It drew to Ms Vojinovic’s attention that this had been an ongoing problem with her Subclass 801 application since the delegate had requested additional information in 2015. It advised that she had only provided the Tribunal with: a short statutory declaration with general information about the relationship; copies of driver’s licences that had expired in 2018; a statutory declaration from [Mr A] with no date, signature page, or proof of identification; copies of unactivated VISA cards (presumably attached to the business account); and the four bank statements related to [Company 1] from 2017.

17. In its 23 May 2019 letter, the Tribunal again explained that to be satisfied that she and her sponsoring partner continue to be in a genuine relationship at the date of the Tribunal’s decision, it is required by law to consider the ‘current’ financial aspects of the relationship, nature of their household, social aspects of their relationship like who she holds herself out to as married, and their commitment to each other. While it acknowledged the financial information about the business, it pointed out that the information was from 2017 and the Tribunal had no evidence the business was still operating or why it was sufficient on its own to establish that she was in a genuine married relationship with Mr Dragicevic.

18. The Tribunal included a request for additional information under s.359(2) of the Act in its 23 May 2019 letter. It requested information about the couple’s: personal (rather than business) bank accounts for late 2018-2019, including a statement about the use of the bank accounts, debit cards, utility bills, etc.; day-to-day expenses; joint assets/liabilities other than the business; current living arrangements (since her statutory declaration was from two years earlier); household; joint responsibility for care and support of children, relatives, friends, etc.; social lives; joint community/religious activities; interactions with other people as a couple; and life as a couple more generally. Given the claim that Ms Vojinovic was unclear what else she could provide to assist her case, the Tribunal included comprehensive examples of possible submissions for each request for information, as well as attaching its ‘Evidence in Partner Cases’ information sheet sent with its previous request for information.

19. The 23 May 2019 letter stated that the additional information should be provided by 6 June 2019. It made clear in bold and underlined text that if a response was not provided or an extension requested by that date ‘You will also lose your entitlement to a hearing before the Tribunal to give evidence and present arguments: s.359C(1) and s.363A’ of the Act.

20. Ms Vojinovic did not respond to the Tribunal’s 23 May 2019 letter or contact the Tribunal for an extension of time in which to respond.

21. On 17 July 2019, the Tribunal received an email containing four [Business 1] rental receipts for [Address 1] dated 21 and 28 June and 5 and 12 July 2019. According to the receipts rent of $340 per week was received from Dusko Dragicevic and Nevena Vojinovic. There was a request in the email that the Tribunal contact the property manager at [Business 1], [Ms C], and a link to [Business 1] website was provided. The email also included a link to the contacts page for Dangar Medical Practice and a request that the Tribunal call Mr Dragicevic’s doctor, [Dr D] , at that practice. The email did not include what information [Ms C] or [Dr D] would be able to provide in support of the review. The email also included the same links to Ms Vojinovic’s and Mr Dragicevic’s Facebook pages referred to above.

22. On 30 July 2019, the Tribunal wrote to Ms Voljinovic informing her that she had lost her right to a hearing. It explained that on 23 May 2019 it had written to her under s.359(2) of the Act requesting that she provide additional information by 6 June 2019. Because she did not respond to that letter and did not request an extension of time in which to respond, pursuant to s.359C(1) of the Act she was no longer entitled to appear before the Tribunal to give evidence and present arguments. Section 363A of the Act provides that if a provision in Part 5 of the Act states that a person is not entitled to do something, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing. Therefore, once the applicant has lost his or her entitlement to a hearing, the effect of ss.359C(1), 360(3) and 363A is that the Tribunal has no power to invite the applicant to a hearing. In M v MIMA,[6] Tracey J followed the observations of the Full Federal Court in MIMIA v Jing Shan Sun[7] to hold that s.363A precludes the Tribunal from offering an applicant a hearing in these circumstances.[8] Although there has previously been some suggestion that the Tribunal retains a discretion to invite the applicant to a hearing,[9] the weight of current authority is that it does not have the power to do so. Because it lacks the power to hold a hearing, no new hearing invitation could be issued to Ms Voljinovic and she was informed that the hearing could no longer go ahead.[10]

    [6] (2006) 155 FCR 333.

    [7] (2005) 146 FCR 498 at [50].

    [8] M v MIMA (2006) 155 FCR 333 at [46] (M v MIMA). Also see Hasran v MIAC (2010) 183 FCR 413 at [26] confirming the views expressed in M v MIMA and MIMIA v Jing Shan Sun (2005) 146 FCR 498 (MIMIA v Sun); and Lee v MIAC [2007] FMCA 1802 (Cameron FM, 30 October 2007) at [22] although the Court did not refer to Khergamwala v MIAC [2007] FMCA 690 (Riley FM, 19 July 2007), Balineni v MIAC [2008] FMCA 888 (Scarlett FM, 30 June 2008), Singh v MIAC (2009) 108 ALD 593, and Xue v MIAC [2009] FMCA 421 (Nicholls FM, 28 April 2009).

    [9] In Khergamwala v MIAC [2007] FMCA 690 (Riley FM, 19 July 2007), Riley FM held that, where ss.359C, 360(2)(c) and 360(3) apply, the Tribunal still had a discretion to invite an applicant to appear before it despite the s.363A prohibition. Her Honour considered herself bound by Uddin v MIMIA (2005) 149 FCR 1 as the more recent Full Federal Court authority. Riley FM found that the comments in MIMIA v Sun were non-binding obiter observations and the decision in M v MIMA, whilst directly on point, most recent, and plainly correct, was only that of the Federal Court at first instance. It should be noted that, while Uddin is Full Court authority, it did not consider the operation of s.363A and was not referred to in MIMIA v Sun. The preponderance of the most recent authority appears to have followed MIMIA v Sun and M v MIMA rather than Khergamwala. 

    [10] Giri v MIAC [2011] FMCA 282 (Cameron FM, 28 April 2011) at [21] and [29] upheld on appeal: Giri v MIAC [2011] FCA 928 (Greenwood J, 16 August 2011). See also Lokuwithana v MIBP [2017] FCCA 176 (J Jones, 2 February 2017) at [115] – [121] where the Tribunal’s reliance upon evidence given by the applicant at a hearing that it lacked the power to hold operated unfairly against the applicant and resulted in jurisdictional error.

23. In its 30 July 2019 letter, the Tribunal explained to Ms Vojinovic that it must now make its decision on the material that it has before it and drew her attention to its 23 May 2019 letter informing her of the reasons why the material then before the Tribunal was not sufficient for it to be satisfied that she meets the criteria for the grant of the visa. It gave her a further opportunity to provide the Tribunal with information to support her application and again explained that r.1.15A(3) of the Regulations requires the Tribunal to consider the current financial aspects of the relationship, nature of the household, social aspects of the relationship, as well as their commitment to each other at the time of its decision. For her convenience it attached a copy of its 23 May 2019 letter, which it noted provided her with the types of evidence she could give the Tribunal that would assist it in assessing her claims. It informed Ms Vojinovic that it cannot access anything on her or Mr Dragicevic’s Facebook other than the single public Facebook pages. While useful, it put her on notice that the information on those pages does not address most of the issues raised in its s.359(2) letter.

1. The Tribunal told Ms Voljinovic that it would consider any additional information that she provided before it made its decision and undertook not to make a decision before 16 September 2019. It strongly recommended that she consider providing the Tribunal with a statement containing evidence she would have given at a hearing, including a ‘detailed explanation’ of her and Mr Dragicevic’s finances, the day-to-day routines and responsibilities in their household, their social lives, and the history of her relationship with Mr Dragicevic up until now, explaining their commitment to each other.

2. On 16 September 2019, the Tribunal received: a signed statutory declaration from [Mr A] dated 9 September 2019; a signed statutory declaration from [Ms E] dated 11 September 2019; a statement by Ms Voljinovic; a statement by Mr Dragicevic; Mr Dragicevic’s birth certificate and translation; an untranslated document; and an unsigned, undated Application for renunciation of Australian citizenship with Mr Dragicevic’s details. It did not include a detailed explanation of her and Mr Dragicevic’s finances, their day-to-day routines and responsibilities in their household, their social lives, or the history of her relationship with Mr Dragicevic past 2013 explaining their current commitment to each other. In the email it states that this would be the final submission.

3. The Tribunal has received no further information from Ms Vojinovic in support of the review.

   Whether Ms Vojinovic is Mr Dragicevic’s Spouse

4. Clause 801.221(2)(c) of the Regulations requires that at the time of this decision, the applicant is the spouse of the sponsoring partner. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship: r.1.15A(2). This includes evidence of the financial aspects of the relationship and the nature of their household, as well as the social aspects of the relationship and the nature of their commitment to each other: r.1.15A(3). Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered.[11]

   [11] He v MIBP [2017] FCAFC 206.

5. The Tribunal accepts that Mr Dragicevic is an Australian citizen who was specified in the application for Ms Vojinovic’s Subclass 820 (Partner) visa as Ms Vojinovic’s spouse. Therefore, he is Ms Vojinovic’s sponsoring partner: cl.801.111 of the Regulations.

   Are Ms Vojinovic and Mr Dragicevic Validly Married – s.5F(2)(a) of the Act

6. The Tribunal has viewed Ms Vojinovic’s and Mr Dragicevic’s marriage certificate and finds that they were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) of the Act.

   Are Ms Vojinovic and Mr Dragicevic in a Married Relationship – s.5F(2)(b), (c) and (d)

7. Regulation 1.15A sets out arrangements for the purpose of determining whether one or more of the conditions in s.5F(2)(a), (b), (c) and (d) of the Act exist. Therefore, in determining whether Ms Vojinovic and Mr Dragicevic are in a genuine and continuing relationship with a mutual commitment to a shared life as a married couple to the exclusion of all others, and live together or do not live separately on a permanent basis, the Tribunal must consider each matter in r.1.15A(3)(a), (b), (c) and (d), as well as any other relevant circumstances of the relationship under r.1.15A(2) of the Regulations.

8. In her undated statement sent with the 16 September 2019 email, Ms Vojinovic claims that there are photographs attached to the statement. However, there were no photographs attached to the statement or email. The email states ‘I am compiling a photo album in a powerpoint presentation I will have it done later this afternoon’, however no Powerpoint presentation or photographs were received by the Tribunal.

   Financial Aspects of the Relationship

9. In considering the financial aspects of the relationship the Tribunal has looked at things like joint ownership of assets or liabilities, the extent of any pooling of financial resources or sharing of day-to-day and household expenses, legal obligations owed to third parties, and any other evidence of the financial aspects of the relationship that indicates Ms Vojinovic and Mr Dragicevic are in a genuine married relationship as defined in s.5F(2) of the Act.

10. The sum total of the financial evidence before the Tribunal is that Ms Vojinovic and Mr Dragicevic ran a café together, paid for by Mr Dragicevic’s father, from 2013 until April 2019, and Ms Vojinovic and the Dragicevics have another business interest together, although since September 2018 it is unclear what that entails. Ms Vojinovic claims that they share grocery, electricity and phone expenses, but provided no evidence. [Address 1], which was owned by Mr Dragicevic until he sold it to the mines, is rented for $340 per week in both their names, although the evidence supporting this is cursory at best. They claim that currently Ms Vojinovic works two jobs to support them, but provided no evidence that this is the case.

11. The Tribunal has no evidence before it that Ms Vojinovic and Mr Dragicevic have pooled their personal finances or that they share day-to-day and household expenses. It has received little or no: evidence about their personal bank accounts or their use; information about their income; explanation of how that income is banked or used to pay their day-to-day expenses; utility, telephone, internet, or other household bills or an explanation how they are paid to show they are a joint liability or that they are shared or paid from joint funds; evidence or information about when [Address 1] property was sold, and how any mortgage/rent payments were/are made and by whom; or whether there are any liabilities like insurance, car payments, personal loans, credit cards, etc. and, if so, how they are paid.

12. Other than the business, the Tribunal has no evidence of any joint assets or liabilities, legal obligations, or indication that Ms Vojinovic and Mr Dragicevic have financially intertwined their lives in any way. There is no evidence of, or even information about: joint property (e.g. whether Ms Vojinovic had an interest in Mr Dragicevic’s property before it sold, car ownership, etc.); insurance (e.g. beneficiaries in life insurance, on each other’s car insurance, joint medical insurance, etc.); whether they declare each other on their tax returns or Centrelink payments (if any); whether they are the beneficiaries in each other’s will (if any) or superannuation; any assets they own like savings or stocks; or liabilities to third parties like items that are leased or financed (e.g. furniture, appliances, phones, etc.), personal loans, or personal credit cards.

13. In Ms Vojinovic’s statutory declaration dated 16 May 2017 (her 2017 declaration), she claims that she and Mr Dragicevic share a joint bank account and ‘budget together when it comes to grocery, electricity and phone expenses.’ Although she states that she will provide evidence of the joint bank account by including a cheque showing both names on a chequing account, no such evidence was included in the declaration or attached to the forwarding email. Four bank statements and a cheque were provided to the Tribunal on 30 January 2018 (see below), but they are not personal bank statements and the cheque does not relate to a personal joint chequing account. No electricity or phone bills were provided. Nor was there evidence about payment of groceries, i.e. on credit cards or account debits, or an explanation of how groceries are paid for if not through an account, i.e. in cash, etc.

    The Business Relationship

14. In her 2017 declaration, Ms Vojinovic states that she and Mr Dragicevic own a business together, [Company 1] in [Town 1]. They informed the Tribunal in their undated statements sent with the 16 September 2019 email (the 2019 statements) that they sold the business in April this year. The cheque and four bank statements provided to the Tribunal relate to [Company 1] business account in Ms Vojinovic’s and Mr Dragicevic’s names trading as [Company 1]. The Tribunal informed Ms Vojinovic that without some explanation it remained unclear why the business account statements are evidence that she and Mr Dragicevic have pooled their personal finances. It asked her to forward their current personal bank records and/or an explanation about how they pay for their day-to-day expenses together. This information or an explanation were not sent.

15. Setting aside that the bank statements are now two years old and relate to a business that is no longer owned by either Ms Vojinovic or Mr Dragicevic, the Tribunal has reviewed the four statements and found no indication, nor did Ms Vojinovic claim, that they include personal expenditure or day-to-day personal expenses (which the Tribunal notes would be inappropriate in a business account). It also notes that only one card (ending 6175) was used on the account and the statements were sent to Mr Dragicevic alone at [Address 1]. The documents are evidence that Ms Vojinovic and Mr Dragicevic jointly traded as [Company 1], although the Tribunal has taken into account that the money to buy the business came from [Mr B] and, unlike with Astro Traders Pty Ltd, no evidence was provided about Ms Vojinovic’s interest in, or the ownership of the chattels and fixtures associated with, the business. Nor is there any information about what Ms Vojinovic received from the sale of [Company 1] (see below). The business documents do not support that their personal finances are pooled or that they share day-to-day and household expenses.

16. On 30 May 2017, the Tribunal received a photocopy of two VISA credit cards (ending 0508 and 0516) with the ‘Activate and choose a PIN before use’ sticker still on them. From the wording under the names, these cards appear to be attached to [Company 1] business account. They were valid from September 2016 to September 2019, however, the Tribunal has checked the 2017 bank statements and cannot identify any use or payment of the cards. The only card referred to in the statements is the one ending 6175. Nor did the Tribunal receive any VISA accounts showing that the cards had been activated and used despite having identified for Ms Vojinovic in its 23 May 2019 letter that the cards were unactiviated and giving her an opportunity to provide further information. Separate from the fact that credit cards attached to the café business are not evidence of a personal financial relationship, the Tribunal is concerned that Ms Vojinovic provided credit cards that she and Mr Dragicevic clearly did not use as evidence that they do have joint liabilities and have mixed their personal finances. It appears to the Tribunal that this evidence has been contrived to support her case and it raises a question about what other evidence has been contrived for that purpose.

17. Attached to the email dated 30 January 2018 was the registration for Astro Traders Pty Ltd and an application by that company for a patent on a mop bucket invented by [a person] that lapsed on 12 September 2018. While this adds to the evidence that Ms Vojinovic and the Dragicevics had a business relationship, it is unclear how it supports that she and Mr Dragicevic also had, and continue to have, a genuine married relationship. This was raised with Ms Vojinovic in the Tribunal’s letters of 23 May 2019 and 30 July 2019, however, it did not receive any information to clarify why this information supports that their financial relationship is a personal one and not only a business relationship.

18. The Tribunal accepts that Ms Vojinovic and Mr Dragicevic jointly traded as [Company 1] from 2013 when they married until April this year when the business was sold. It accepts that Ms Vojinovic is the director of Astro Traders Pty Ltd and that [Mr B] was a director of that company until he was removed as director because of dementia. However, it finds that it has nothing before it, and Ms Vojinovic did not provide anything, to indicate that any of the information given to it in relation to the business is evidence of Ms Vojinovic and Mr Dragicevic having a personal, rather than just business, financial relationship. In fact, it finds that the VISA cards submitted in support of their relationship undermine their credibility on this question and generally.

    Income and Day-to-Day Expenses

19. The 17 July 2019 email states that Ms Vojinovic is working two jobs to support them because Mr Dragicevic requires a hip replacement and has been unable to work since being hospitalised with cerebral vasculitis and bleeding in the brain in November 2017. Mr Dragicevic’s 2019 statement says that they sold [Company 1] in April 2019, and Ms Vojinovic works for the person who bought the café and at [in another position]. He relies on her two jobs ‘to make ends meet and live off the sale of my store which is $500 a week.’ In her 2019 statement, Ms Vojinovic expends only two sentences on Mr Dragicevic’s serious 2017 hospitalisation, its consequences, and his hip replacement despite the reasonable inference from the other evidence provided that his health since 2017 has led to significant physical and financial difficulties. She does not mention the financial hardship implied in Mr Dragicevic’s 2019 statement and the emails or that he is not working. Her statement only says ‘We have just sold the café and work 25 hours a week for the new owner on a contract basis’, although the Tribunal notes it does say that since April 2019 she has been working two jobs to support them.

20. Ms Vojinovic did not provide any evidence that she shared in, or the extent to which she shared in, the proceeds from the sale of [Company 1]. She did not provide any explanation of where the proceeds are being kept or how they were used, for example joint statements from an investment account, fixed deposit, or mortgage back arrangement with the new owner which might be consistent with Mr Dragicevic’s evidence that it generates $500 per week in income. Unlike Mr Dragicevic, Ms Vojinovic does not mention the $500 a week in income from the sale of the café in her 2019 statement (which the Tribunal notes Mr Dragicevic refers to as the sale of his store). Nor has she provide any payslips, evidence of where her salary is deposited or how it is paid, or how it is used to support herself and Mr Dragicevic, for example in the form of bank accounts showing incoming salary and outgoing household payments. Ms Vojinovic did not even include an explanation of this or similar information in her statement, despite the Tribunal strongly suggesting that she may want to include this type and level of detail in her submission in response to its July 2019 letter.

    Joint Liabilities

21. In her 2019 statement, Ms Vojinovic says that her mother visited in 2017 for 12 months and had to be treated in hospital. Ms Vojinovic states ‘I worked hard and have paid of [sic] over half the bill. Invoices will be attached.’ No invoices were attached to show that this is a joint liability. Nor did Ms Vojinovic explain in her statement why this is evidence to support that the financial aspects of her relationship with Mr Dragicevic are arrangements indicative of a genuine married relationship. The Tribunal has taken account of her language that she has worked hard to pay off the amount owing presumably from her earnings, not that the couple have worked to pay the bill with their income from the business. Mr Dragicevic has never made any reference to this debt even though it is still being paid off out of what Mr Dragicevic has intimated are meagre funds two years later, they were joint sole traders during most of that time supposedly earning a joint income, and Ms Vojinovic has found the debt sufficiently significant for it to be the only financial liability she has raised in her evidence to the Tribunal. It finds this is evidence that Ms Vojinovic and Mr Dragicevic do not view themselves as being, or expect each other to be, responsible for the other’s financial liabilities.

    Conclusion

22. Other than the rental receipts (which for the reasons set out below, the Tribunal only give minimal weight) and Ms Vojinovic’s 2017 declaration (which is uncorroborated, although it was reasonable and should have been straightforward to do so), the Tribunal has no evidence that she and Mr Dragicevic share day-to-day or household expenses. Other than their 2019 statements (which are not entirely consistent on the point) it has no evidence that they are both currently supported by Ms Vojinovic. The Tribunal has no other evidence to support that there is any financial aspect to their personal relationship. Ms Vojinovic and Mr Dragicevic claim to have been in a married relationship for almost seven years. It is reasonable to expect that Ms Vojinovic would have no difficulty compiling financial evidence supporting that that relationship is genuine, particularly since the Tribunal gave her extensive examples of the type of evidence typically submitted and ample opportunity to provide that or other evidence to corroborate her claims.

23. The Tribunal has considered all the evidence cited above separately and together, including the existence of a joint business, and, for the reasons set out, finds it is so lacking that it cannot be satisfied that there is any financial aspect to Ms Vojinovic’s and Mr Dragicevic’s personal relationship. The evidence of the financial aspects of their relationship that is before the Tribunal is insufficient to support that they are in a genuine married relationship.

    Nature of the Household

24. The Tribunal’s consideration of the nature of Ms Vojinovic’s and Mr Dragicevic’s household has included things like the parties’ living arrangements, the organisation of household duties, any joint responsibility for care and support of children or aged relatives, and any other aspects of their household that indicates Ms Vojinovic and Mr Dragicevic are in a genuine married relationship as defined in s.5F(2) of the Act.

    Place of Residence

25. Ms Vojinovic provided two pieces of evidence to support that she lives at [Address 1], driver’s licences and rental receipts. A photocopy of her and Mr Dragicevic’s now expired driver’s licences, both showing [Address 1], were first provided with the application on 30 January 2017. The email dated 17 July 2019 states, Ms Vojinovic and Mr Dragicevic ‘have taken a lease on a property which [Mr Dragicevic] owned and sold to the mines’ (being [Address 1]). Four rental receipts for June and July 2019 were provided. Ms Vojinovic did not provide any other evidence that she resides at [Address 1] like mail addressed to her, official documentation mailed to her at that address, or any of the many other easily obtainable contemporaneous proof that she currently lives there.

26. Photocopies of the licences were again provided on 30 May 2017 and 30 January 2018. In the email dated 30 January 2018 it states that the licences were provided to show that Ms Vojinovic and Mr Dragicevic both reside at [Address 1]. Ms Vojinovic’s licence expired on 30 December 2018. In its 23 May 2019 letter, the Tribunal drew to Ms Vojinovic’s attention that the licence that she had provided as evidence of her current address had expired. It requested up to date information in support of her claims about her relationship with Mr Dragicevic, including details about her residence. The email dated 17 July 2019 again states her licence was provided as evidence that she lives at [Address 1]. Even though Ms Vojinovic was on notice in May and July 2019 that her expired licence was an issue, and she claimed her licence was submitted as evidence of her current address, a current licence showing [Address 1] was not sent to the Tribunal as part of either the July or September 2019 submissions.

1. In her 2019 statement, Ms Vojinovic states that Mr Dragicevic gave her, then paid for, driving lessons so she could get her licence and she has held the licence for about five years, being from around 2014. She started driving Mr Dragicevic after his 2017 hospitalisation. There is a minor inconsistency in the email dated 17 July 2019 which states that Ms Vojinovic got her licence so that she could drive Mr Dragicevic ‘from specialist to specialist’ since he has not been able to drive because of his hip and vasculitis. In either case, Ms Vojinovic must presently hold a valid licence with her current address, but has chosen not send a copy to show that she still lives at [Address 1]. This is despite the fact that the Tribunal explained on multiple occasions that the issue in her case as far back as 2015 is that the information provided is out of date and current information, of where she lives and that she is Mr Dragicevic spouse, is needed for a decision to be made in her favour. Given that she provided her licence as proof of residence, was on notice it had expired and updated information was required, and sending her current licence with the July or September 2019 submissions was an easy and obvious way to address the concern, the Tribunal cannot help but consider that the licence was not sent because it no longer shows [Address 1].

2. On 17 July 2019 the Tribunal received four rental receipts marked as being paid by Ms Vojinovic and Mr Dragicevic. The email also requested that the Tribunal obtain further information from [Ms C]. Ms Vojinovic did not indicate what additional evidence [Ms C] could provide, other than to confirm the genuineness of the receipts, and it is unclear to the Tribunal that the request was intended to do any more than verify their authenticity. That being the case, and since there was ample opportunity to provide a statement from [Ms C] or at least include in the email what probative evidence about the relationship she has, the Tribunal has decided not to contact [Ms C]. It accepts that the rental receipts are genuine, although not that the rental receipts are conclusive evidence that Ms Vojinovic and Mr Dragicevic both currently live at [Address 1].

3. All the Tribunal has is Ms Vojinovic’s name on the realtor’s account for the property. There is no corroborating evidence before it, for instance about when [Address 1] was sold or Ms Vojinovic entered into the lease. Ms Vojinovic did not provide any information about the sale of [Address 1] to allow the Tribunal to establish how long it has been a rental or the tenancy agreement to show that it is a current contract and not expired; if the sale to the mine was recent or it is still during the term of the lease the receipts are persuasive evidence, but if the tenancy is longstanding, operating week to week on an expired contract, [Business 1’s] computers will not necessarily be up to date. While the Tribunal might normally take rent receipts on face value, in light of its concerns about the licence and its finding about the credit cards above, as well as the problematic evidence set out below, it finds that it is conceivable that the receipts, while genuine, are also opportunist or contrived and do not reflect actual circumstances.

4. Just for example, because the Tribunal does not know when the rental started or Ms Vojinovic was put on the lease, and does not know whether there is a current lease or Ms Vojinovic is merely a name on [Business 1] account, even though the receipts are genuine there is no supporting evidence showing Mr Dragicevic is not now living there alone and [Business 1] was simply not told to remove Ms Vojinovic’s name. This is not information [Ms C] could self-evidently assist with and in any event the Tribunal is not required to make Ms Vojinovic’s case for her or uncritically accept any or all of her claims.[12] This is particularly the case since further corroborating evidence would have been easy and reasonable to provide.

   The Nature of the Household

   [12] SZLVZ v MIAC at [25].

5. The Tribunal has no probative evidence before it about Ms Vojinovic’s and Mr Dragicevic’s household. Despite suggesting that she do so, the Tribunal did not receive a detailed account of their daily routines and responsibilities, for instance any typical morning routine (e.g. about getting up, breakfast, leaving the house, etc.), what they do in the evenings, when they are home or at work (e.g. hours they work, regular activities or appointments, etc.), what household duties they have (e.g. maintenance, garden, cleaning, dishes, garbage, etc., who generally does what, and when are they done), when they eat out, etc.

6. In her 2017 declaration, Ms Vojinovic only stated that she and Mr Dragicevic have resided together at [Address 1] since she arrived in Australia, and they were together 24 hours a day, working and living together fulltime. They shared household chores and shopped together, and took turns cooking and washing, although she also claims that Mr Dragicevic regularly does the washing and cooking for her. She says they discuss everything related to the household. To the extent that it sheds any light on their household, it is general and vague, and the Tribunal notes the information is well over two years old, from a time when they ran [Company 1], and before the onset of Mr Dragicevic’s cerebral vasculitis. It now appears inconsistent with the information in later emails about his physical limitations and claims Ms Vojinovic is his carer referred to below. No corroborative evidence to support her claims about the nature of the household was provided.

7. In Mr Dragicevic’s 2019 statement, he states that he relies on Ms Vojinovic working two jobs ‘to make ends meet and live off the sale of my store which is $500 a week.’ An implication that there has been some financial hardship also appears in other evidence provided to the Tribunal, particularly since November 2017 when he could no longer work. Although she does mention that she is working two jobs to support them, none of this financial hardship is reflected in Ms Vajinovic’s 2017 declaration or, more importantly, the 2019 statement. Nor does she refer to the $500 per week from the proceeds of the sale (which may seem a notable amount if you need to work two jobs to make ends meet) in the brief explanation of their household finances in that statement.

   Mr Dragicevic’s Health

8. In the email dated 20 May 2019, it states that Mr Dragicevic had a car accident on 29 April 2000 in which he fractured his hip. His hip pain became more severe over time and his doctor referred him to a specialist about a hip replacement. The email states that Ms Vojinovic is assisting Mr Dragicevic with things like putting on his shoes and socks. He plans to have his hip fixed elsewhere, but in the meantime needs a carer. In Mr Dragicevic’s 2019 statement, he again states that he has severe osteoarthritis and needs a hip replacement. In November 2017 he had a bleed on his brain and ‘[Ms Vojinovic] and her mother … saved [his] life as [he] had had high sugar levels and blood pressure’.

9. The Tribunal was provided with various medical documents related to Mr Dragicevic’s mobility and health issues. The email dated 17 July 2019 requested that the Tribunal contact [Dr D], however there is no indication why or what evidence he could give the Tribunal about the relationship. It appears from the context of the request that it was intended to do no more than substantiate the claims about Mr Dragicevic’s health. Since Ms Vojinovic had ample opportunity to get a statement from [Dr D] if he had probative evidence for the Tribunal about their relationship, or at least explain in the email what evidence he could provide, it has decided not to contact [Dr D] because it accepts the evidence about Mr Dragicevic’s health issues. It does not accept that the material documenting his injuries and health concerns is conclusive evidence that Ms Vojinovic is his carer or that they are in a married relationship.

10. The majority of Ms Vojinovic’s 2019 statement sets out the history of the relationship up until her marriage in 2013. Regarding her life from then to now she refers to her mother’s visits (but not her participation in saving Mr Dragicevic), learning to drive (in about 2014), and the fact that [Mr A] and [Ms E] are close friends who made statutory declarations in this matter. She dedicates only two sentences to Mr Dragicevic’s 2017 serious hospitalisation with vasculitis and bleeding in his brain, its consequences, and his need for a hip replacement. She makes no mention of saving his life, although in her 2017 declaration she does refer to his diabetes in the context of having a child (see below). At no point in her 2017 declaration or 2019 statement does Ms Vajinovic refer to assisting Mr Dragicevic as part of their everyday routine or that an aspect of their relationship is that she is his carer. She only refers to driving him after his 2017 hospitalisation. The tone of her 2019 statement in particular is at odds with the other evidence presented.

11. It seems reasonable that if Ms Vajinovic had the sort of day-to-day carer responsibilities intimated in the emails and Mr Dragicevic’s 2019 statement, it would have appeared, if not in her 2017 declaration, at least in her 2019 statement. The Tribunal made clear in its 30 July 2019 letter that she should include as much information as possible about the nature of their household and relationship in her submission. The help apparently needed by Mr Dragicevic and his disabilities would appear to be significant characteristics that would require some adjustment to and expansion on what was stated in the 2017 declaration about their household. If they share the same household it seems implausible that the impact of Mr Dragicevic’s  deteriorating health, and her need to help him and otherwise compensate for that around the house, would be almost entirely missing from what she sent the Tribunal in response to it informing her that it was unable to give her a hearing.

    Ambit Claims

12. In her 2017 declaration, Ms Vojinovic makes two claims related to the nature of the household that have not been made since. It states that she helped look after ‘my partner [sic] elderly father [Mr B] who is 84 years old and has health issues’. It also states that she and Mr Dragicevic had not been able to have children because of Mr Dragicevic’s accident and were looking into IVF in order to have a child. These are significant claims. Helping to care for a partner’s elderly parent is a significant aspect in the workings of a household and a genuine decision to have a child, particularly through IVF given the necessary commitment and expense, is never made lightly. Yet neither of these claims were ever raised again either in the 2019 statements or in any of the email submission. This is despite the care of elderly relatives and children being specifically identified for Ms Vojinovic as relevant information and details that should be included in her statement, and the fact that [Mr B’s] health has declined with dementia since 2017 to the point where he was removed as a company director. The Tribunal, therefore, finds that these were ambit claims, similar to the credit cards, only put forward to support the claim to be Mr Dragicevic’s spouse and not true. This undermines the claims about the household and her credibility generally.

    Conclusions

13. The 2019 statements did not include any information about the nature of Ms Vojinovic’s and Mr Dragicevic’s household even though the Tribunal gave extensive examples of the type of evidence typically submitted and ample opportunity to provide that or other evidence to corroborate the claims. Other than the rental receipts, which for the reasons above the Tribunal only give minimal weight, and Ms Vojinovic’s May 2017 declaration, the Tribunal has no reliable evidence that she and Mr Dragicevic share a household. On the basis that Ms Vojinovic’s credibility has been undermined by providing unused credit cards and making untrue claims to support her case, for the reasons above the Tribunal does not accept her expired licence is persuasive evidence that she currently lives at [Address 1].

14. The Tribunal finds it of particular concern that on the one hand the evidence shows a significant change in the character of their household starting from November 2017 through the sale of the café to their current financial situation, but Ms Vojinovic’s 2019 statement, sent in response to the request for a detailed explanation about their household, does not reflect any of those changes. It contains no update to the nature of their household from her May 2017 declaration, even though Mr Dragicevic’s mobility and health deteriorated so he could not work or even drive. It seems implausible that no adjustment was necessary to him sharing the physical household chores identified above. More troubling is the bare reference to his physical deterioration or inability to work and the complete lack of any mention by Ms Vojinovic of her role as carer or her assistance to him which it is reasonable to expect would appear in even the most general statement about her day-to-day life and the relationship. The disconnect between the lack of evidence about the household budget in Ms Vojinovic’s 2019 statement and the other evidence provided is also significant, particularly her failure to mention the income from the café sale. All this together leaves the Tribunal with the impression that there is no longer a married household.

15. Ms Vojinovic and Mr Dragicevic were married in January 2013 and since then claim to have undergone significant changes in their lives and household, particularly since 2017. If they were still in a married relationship it is reasonable to expect that Ms Vojinovic’s 2019 statement in response to the Tribunal’s very clear request for just such information would reflect those changes. Therefore, Tribunal has no persuasive evidence to support that there is any joint household. Even if it relied on the rental receipts to give Ms Vojinovic the benefit of the doubt and find they do both live at [Address 1], which the Tribunal doubts, there is scant evidence that they live there in a married relationship.

16. The Tribunal has considered all the evidence cited above separately and together and finds the complete lack of reliable evidence about the current nature of the household means the Tribunal cannot be satisfied that Ms Vojinovic and Mr Dragicevic have a joint household. The evidence of the nature of their household that is before the Tribunal is insufficient to support that they are in a genuine married relationship.

    Social Aspects of the Relationship

17. Social aspects of the relationship considered by the Tribunal are things like whether Ms Vojinovic and Mr Dragicevic represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of their relationship, any joint social activities, and generally anything that indicates that Ms Vojinovic’s and Mr Dragicevic’s social interactions support that they are in a married relationship.

18. In her 2017 declaration, Ms Vojinovic stated that she and Mr Dragicevic had a lot of things in common like the same taste in music and watching movies. When they had a day off they usually went on a picnic or to the beach. She said through [Company 1] they had met people they can socialise with outside the business and they went out for dinner with friends every now and then. While this may have been the situation two and a half years ago, as noted above, the evidence provided to the Tribunal shows a significant change in the character of their circumstances starting from November 2017 through the sale of the café to the current financial situation. Yet despite being given ample opportunity Ms Vojinovic has made no submissions that address the social aspects of the relationship now. Neither of the 2019 statements provide any useful information about their social life even though the Tribunal provided several examples of the type of information that is typically given in support of a partner application. 

19. The email dated 30 May 2017 included links to three Facebook pages which were provided in lieu of photographs, and where Ms Vojinovic in her 2017 declaration said photographs of the couple’s social activities could be found. The Tribunal was able to identify one photograph of Ms Vojinovic with a customer from 2013 on [Company 1] Facebook page. It could see three photographs of Ms Vojinovic and Mr Dragicevic together both on her Facebook page and his Facebook page. There is no indication when or where those pictures were taken. It is clear from the references to [Company 1] on the Facebook pages that they are not kept up to date. Even though the Tribunal informed Ms Vojinovic in its 23 May 2019 letter that it could not access anything on the Facebook pages other than a single public page, other than resending the same links on 17 July 2019, no further information from their Facebook pages was provided.

    Supporting Statutory Declarations

20. In [Mr A’s] undated statutory declaration submitted with the review application on 30 January 2017, it states that he has known Ms Vojinovic and Mr Dragicevic for three years as a customer at [Company 1]. He does not refer to them being married, but describes their ‘personal relationship’ as one of mutual respect, their discussions as ‘inclusive of ideas and ideals they share’, and their ‘long term personal, family and lifetime goals’ as an indication that they will have long term plans for a future together. This could describe close business partners as easily as it could a married couple.

21. In [Mr A’s] statutory declaration dated 9 September 2019 he states that he has now known Ms Vojinovic and Mr Dragicevic for five years as a customer at [Company 1] and, most recently, where Ms Vojinovic ‘currently works’. He also met Ms Vojinovic’s mother when she visited. He claims ‘I see them working together as a married team’. He also sees them in the community shopping and socialising together. [Mr A] states that they speak of each other as life partners and discuss their current and long term plans with him and others. He says their partnership is long lasting and positive ‘and continue to enable Nena and Danny to successfully meet and prosper within the community.’ [Mr A] clearly believes Ms Vojinovic would be a positive permanent addition to his community setting out her many good qualities and ending his declaration with: ‘it would be appropriate for Nena to be recognised as a citizen of this country.’

22. [Ms E] states in her statutory declaration and statement dated 11 September 2019 that she has known Ms Vojinovic and Mr Dragicevic for eight years. She says that they are ‘respectable and hard-working business owners in our community’ and she visits ‘their successful business on a regular basis’. She states that she is a loyal customer and they are now good friends who she sees at least four times a week. She claims that she has no doubt from the time they spend socialising together that Mr Dragicevic ‘adores’ Ms Vojinovic and she is ‘very loving and caring’ towards Mr Dragicevic. In [Ms E]’ opinion ‘Nevena would be a model resident if granted permanent residency into our wonderful country.’

23. The Tribunal notes that [Mr A’s] 9 September 2019 declaration refers to Ms Vojinovic and Mr Dragicevic working together as a married team when it has evidence before it indicating that Mr Dragicevic cannot work (possibly as far back as November 2017) and since selling [Company 1] claims to have relied on Ms Vojinovic’s salaries and proceeds from the sale. Ms Vojinovic also stated in her statement that she has two jobs that support the two of them, although elsewhere she states they both work at [Company 1] for the new owner. [Ms E] in her declaration made in September 2019 states that Ms Vojinovic and Mr Dragicevic are respectable hard-working business owners and she visits their successful business on a regular basis. However, the evidence before the Tribunal is that [Company 1] was sold in April. The Tribunal has taken into consideration the statutory declarations from [Mr A] and [Ms E] in making its decision, although it has also taken into consideration that neither appears to completely reflect the current situation and both seem to be great advocates of Ms Vojinovic and her obtaining permanent residency.

    Conclusions

1. After considering all the evidence cited above separately and together the Tribunal finds that the evidence from [Mr A] and [Ms E] lends some support to there being social aspects to Ms Vojinovic’s and Mr Dragicevic’s relationship. However, the information in those declarations must be weighed against the complete lack of current information about the social aspects of their relationship provided since Ms Vojinovic’s 2017 declaration. So while there is some evidence to support that they are in a genuine married relationship it is not much and it is not strong.

   Nature of the Parties’ Commitment to Each Other

2. When considering the nature of Ms Vojinovic’s and Mr Dragicevic’s commitment to each other the Tribunal has taken into account things like the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, whether they see the relationship as long-term, and anything that would indicate that they in a genuine married relationship as defined in s.5F(2) of the Act.

3. The Tribunal has taken into account the fact that Ms Vojinovic and Mr Dragicevic have been married since January 2013. It has also considered the information on their commitment provided by [Mr A] and [Ms E]. But otherwise there is almost no information about the nature of Ms Vojinovic’s and Mr Dragicevic’s commitment to each other. While there are six photos (taken at an unknown time and unknown place) on their Facebook pages, there is no evidence of correspondence, phone logs, text messages, social media posts, or any other form of day-to-day communication before the Tribunal.

4. In her 2017 declaration, Ms Vojinovic stated that she and Mr Dragicevic draw support from each other because they have lots of interests in common, like the love of food, music and watching movies. On their days off they used to go to the beach or on picnics. They were expanding their interest in the café by purchasing another café at a different location and they had purchased a food bus in her name. She claimed it was a funny feeling when they first met, but after five years they had set boundaries and she was used to having him around. The 2017 declaration states they will be together as long as humanly possible. However, in her 2019 statement, while she sets out the history of the relationship up until their marriage in 2013, she does not include any similar sentiments about their commitment to each other now. Ms Vojinovic only refers to driving Mr Dragicevic and, in conflicting statements, financially supporting him. There is no reference to companionship and emotional support or any other examples of their commitment to each other.

5. The email dated 20 May 2019 refers to the pain in Mr Dragicevic’s hip becoming more severe since 2000 and how lucky he is that he has Ms Vojinovic to assist him. There is evidence that Mr Dragicevic needs Ms Vojinovic as a carer until he gets his hip replaced. In his 2019 statement, he says that he loves her, she helps him by putting on his socks, and she and her mother saved his life in November 2017. Other than claims that they have made plans for a future together, and an expressed interest in leaving Australia, which the Tribunal has taken into consideration, there are no details about how they view their future together.

6. There are problems with some of the evidence going to their commitment to each other. In her 2017 declaration, Ms Vojinovic stated that she and Mr Dragicevic were committed to each other in many ways. She said Mr Dragicevic was there for her when her father died ‘2 years ago’, being 2015, supporting her through the darkest moment of her life. He treated her with respect and took care of her. But, in her 2019 statement she says her mother visited her in 2013 just after her father died. This is the only example of emotional support submitted to the Tribunal making this inconsistency significant. It remains a concern that Ms Vojinovic’s 2019 statement does not appear to support the other evidence and Mr Dragicevic’s focus on there being a carer aspect to the nature of their commitment to each other. Also of concern is the way in which Ms Vojinovic refers to paying off her mother’s hospital bill, that ‘I worked hard and have paid of [sic] over half the bill’. Likewise, that she did not mention the income from the business sale and Mr Dragicevic’s reference to that income being from ‘the sale of my store’ does not reflect a close or committed relationship.

7. Of most concern to the Tribunal is that, as noted above, in her 2017 declaration, Ms Vojinovic stated that although Mr Dragicevic had been ‘a little sick with diabetes’ they were looking into having a child through IVF and she cared for Mr Dragicevic’s father who was 84 years old and had health issues. For the reasons already discussed, the Tribunal has rejected these claims. But for obvious reasons they are the type of claim that is often referred to as compelling evidence of a close commitment to a spouse. That Ms Vojinovic has made these ambit claims (in the case of having a child, specifically in relation to their commitment to each other) in order to bolster the evidence the Tribunal considers pursuant to r.1.15A(3) undermines the credibility of the claim that there is the sort of genuine commitment to each other contemplated in the definition in s.5F(2) of the Act.

8. In emails dated 20 May, 17 July, and 16 September 2019, Mr Dragicevic states that if the delegate’s decision to refuse to grant Ms Vojinovic a permanent residency visa is affirmed he will renounce his Australian citizenship and passport and leave Australia with her. The last email sent to the Tribunal included an unsigned incomplete application for renunciation of Australian citizenship with Mr Dragicevic’s details. Although it was clearly provided for reasons other than as actual evidence in Ms Vojinovic’s case, the Tribunal has nevertheless taken serious note of the claim in its consideration of their commitment to each other. However, in light of all the concerns the Tribunal has with the evidence supporting their claim to be in a married relationship, the Tribunal believes that, like the VISA cards and the ambit claims, the expired licence, and possibly the rental receipts, the incomplete application is artificial evidence contrived to give the impression of a commitment that is not supported by other probative evidence. Therefore, the Tribunal dismisses that these claims as untrue. If Mr Dragicevic leaves Australia it will be for other reasons, including the arrangements he has made to have his hip replaced elsewhere, and it does not believe that he will renounce his citizenship or give up his passport.

9. The Tribunal has considered the length of their marriage, that they ran a business together for six years, have mutual friends, and might live at the same address. However, Ms Vojinovic’s evidence from 2017 that they support each other is two and a half years old and contains a significant inconsistency about when her father died. Mr Dragicevic’s 2019 statement. The evidence in the emails that an apparently large part of their commitment to each other involves Ms Vojinovic as Mr Dragicevic’s carer and that she does more than just drive him around is not supported by the omissions in her 2019 statement referred to above. While there is some evidence of a mutual commitment to each other, it is not persuasive enough or sufficient enough for the Tribunal to be satisfied that the nature of that commitment supports that Ms Vojinovic and Mr Dragicevic are in a married relationship.

   Findings

10. Ms Vojinovic has not provided sufficient evidence of the arrangements set out in r.1.15A for the Tribunal to be satisfied it supports that the conditions in s.5F(2) exist. There is some evidence supporting that the financial aspects, household, social aspects, and commitment to the relationship may indicate a married relationship. But when balanced with the Tribunal’s concerns it is insufficient for the Tribunal to be satisfied that it demonstrates Ms Vojinovic and Mr Dragicevic have a genuine and continuing mutual commitment to a shared life together as husband and wife to the exclusion of all others: r.1.15A(3).

11. Based on the evidence above, even if the Tribunal gives Ms Vojinovic the benefit of the doubt and finds that she and Mr Dragicevic live together, there is insufficient evidence for the Tribunal to be satisfied that Ms Vojinovic and Mr Dragicevic have a mutual commitment to a shared life together as husband and wife and it does not believe that their relationship is either genuine or continuing. Therefore, the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision.

12. Since Ms Vojinovic and Mr Dragicevic are not in a married relationship, Ms Vojinovic does not meet the definition of spouse in s.5F of the Act. Given these findings, she is not the spouse of the sponsoring partner and so does not meet cl.801.221(2)(c) of the Regulations.

13. Furthermore, Ms Vojinovic has not claimed, and there is no evidence before the Tribunal to support, that Ms Vojinovic meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

14. For the reasons above, Ms Vojinovic does not satisfy the criteria for the grant of the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Mireya Hyland
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)whether the persons represent themselves to other people as being married to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).