Vojinovic (Migration)

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Partner (Residence) (Class BS) – Subclass 801 (Spouse) – genuine spousal relationship – claims to be carer – provided out of date documents – request for current financial records – no persuasive evidence to support joint household – no evidence of correspondence provided – insufficient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

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AGLC
Vojinovic (Migration) [2019] AATA 6069
Case
[2019] AATA 6069
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs (DOHA) to refuse Ms. Vojinovic a Partner (Residence) (Class BS) Subclass 801 visa. Ms. Vojinovic had been granted a temporary partner visa based on her spousal relationship with Mr. Dragicevic. DOHA had requested updated information to confirm the genuine and continuing nature of their relationship, but Ms. Vojinovic failed to provide the requested documentation. Consequently, the delegate refused to grant the permanent visa.

The primary legal issue before the Tribunal was whether Ms. Vojinovic had provided sufficient evidence to satisfy the criteria for a Subclass 801 visa, specifically demonstrating that her relationship with Mr. Dragicevic was genuine and subsisting at the time of the delegate's decision. This involved assessing the evidence presented to establish the financial aspects of their relationship and the nature of their household. The Tribunal was required to determine if the applicant had met her evidentiary obligations, given that the onus is on the applicant to provide sufficient detail for the Tribunal to establish the relevant facts in administrative decision-making.

The Tribunal reasoned that Ms. Vojinovic had not provided persuasive evidence to support a genuine spousal relationship. While she claimed to be a carer and provided some documents, these were often out of date or insufficient. For instance, financial records were requested but not adequately supplied, and the evidence regarding a significant personal debt did not demonstrate a joint financial responsibility indicative of a married couple. Furthermore, the provided social media links yielded limited relevant photographs, and the statutory declarations, while supportive, did not conclusively establish the nature of the relationship beyond a professional or business association. The Tribunal concluded that the evidence regarding the financial aspects and the nature of their household was insufficient to satisfy the requirements for a genuine married relationship.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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].

Decision

Reasons for decision

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 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. 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 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

Ratio Decidendi

Legal Principle Established

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 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. 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.’ [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.’