Vojinovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1274
•10 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Vojinovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1274
File number(s): SYG 3461 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 10 June 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) (Subclass 820) and Partner Residence (Class BS) (Subclass 801) visa – whether the finding of the Tribunal was infected by jurisdictional error – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 5CB, 5F, 477, 359, 359B, 360, 363A, 379A.
Migration Regulations 1994 (Cth) cl 801.221(2)(c), reg 1.1 5A, 4.17.
Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67
SZOZGv Minister for Immigration and Citizenship [2011] FCA 756
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
WADD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 56 Date of last submission/s: 22 April 2021 Date of hearing: 22 April 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Kelly appeared on behalf of the First Respondent. ORDERS
SYG 3461 of 2019 BETWEEN: NEVENA VOJINOVIC
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
10 JUNE 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs fixed in the amount of $4000.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Serbia. On 7 March 2013, the applicant applied for a combined Partner (Temporary) (Class UK) (Subclass 820) and Partner Residence (Class BS) (Subclass 801) visa on the basis of her relationship with a Mr Dusko (Danny) Dragicevic (her sponsor). On 17 May 2013, the applicant was granted an 820 visa.
On 16 January 2015, a delegate of the Minister for Immigration (“the delegate”) wrote to the applicant seeking updated information in respect of the applicant’s 801 visa. No response was received to that request, nor to a subsequent letter sent by the delegate. On 12 January 2017, the delegate refused the applicant her 801 visa, as the delegate was not satisfied that the applicant and her sponsor were in a genuine relationship as defined by s 5 and s 5CB of the Migration Act 1958 (Cth) (“the Act”).
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 20 November 2019, the Tribunal affirmed the decision not to grant the applicant her visa.
The applicant now seeks judicial review of the Tribunal’s decision. The Court notes that the application for judicial review was filed a few days out of time and that this issue will need to be considered as a preliminary matter.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal noted that the applicant had been granted a temporary partner visa on 17 May 2013. In 2015, the Department wrote to the applicant seeking updated information as to whether she continued to be the spouse of Mr Dragicevic. No response to that letter was received. On the basis that the Department did not have any information to support a finding that the applicant was still the spouse of Mr Dragicevic, the delegate refused to grant a subclass 801 permanent residency visa.
In seeking merits review at the Tribunal, the applicant attached to her application her marriage certificate to Mr Dragicevic, a photocopy of both of their driver’s licences showing a common address and an undated, unsigned Statutory Declaration from a Mr Mitchell.
All communication and correspondence, with one exception, from the applicant was via Mr Dragicevic. On 30 May 2017, the Tribunal received, via email, additional documentation including a Statutory Declaration from Mr Dragicevic dated 16 May 2017, a photocopy of unactivated Visa credit cards in the name of Mr Dragicevic with the name of the applicant below.
The email also provided links to the applicant’s and her sponsor’s Facebook pages and a link to the Facebook page of Café 45 where it is alleged that the applicant and her sponsor operate a business.
In January 2018, following a request from the Tribunal, additional information was provided in the form of Bank statements for Café 45, an Australian Securities and Investments Commission (“ASIC”) application for the registration of a company listing the applicant as a Director and a provisional patent application by the Company registered by the applicant.
On 3 May 2019, the Tribunal sent an invitation for the applicant to appear before it to give evidence and present argument on 23 May. The sponsor asked that the hearing be held online as he was suffering injuries due to a motor vehicle accident. The hearing was postponed and the Tribunal attempted to source video conferencing facilities in Singleton NSW. The Tribunal made a further request for information pursuant to s 359(2) of the Act. That information was to be provided by 6 June 2019. The following statement was included if a response was not provided or an extension sought prior to 6 June:
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
No response was received to this letter. On 17 July 2019, the Tribunal received an email containing 4 rent receipts for the café for June and July 2019.The email requested that the Tribunal contact the managing agent for the premises as well as the General Practitioner for the sponsor.
On 30 July 2019 the Tribunal advised the applicant that she had lost her right to a hearing and that the Tribunal would now make a decision on the material that was before it. The applicant was invited to provide any additional information that she may wish the Tribunal to consider by 16 September 2019. Further documentation was provide to the Tribunal on 16 September 2019.
The Tribunal, in its decision of 20 November 2019, assessed the information before it by reference to cl 801.221(2)(c) of the Migration Regulations 1994 (Cth) (“the Regulations”) as well as s 5F(2)(a)-(d) of the Act.
At paragraph 29 of its decision, the Tribunal was satisfied that the applicant and her sponsor were legally married to each other. The Tribunal then set about examining each of the requirements set out in reg 1.1 5A of the Regulations as well as other relevant circumstances of the relationship under reg 1.1 5A (2) of the Regulation.
In terms of the financial aspects of the relationship, the Tribunal noted at paragraph 33 of its decision that the sum total of the financial evidence before the Tribunal is that the applicant and her sponsor ran a Café together from 2013 through to 2019 and that they had another business interest together. There was no evidence that the applicant shared grocery, electricity and phone expenses. The premise in which they reside is rented for $340 per week, although the Tribunal noted that the evidence supporting these claims is cursory at best. The Tribunal concluded that they had no evidence that the parties had pooled their financial resources or that they share their day-to-day household expenses.
There was no information before the Tribunal that the parties had any joint assets and liabilities. Although it was claimed that the parties shared a joint bank account, no evidence was provided to the Tribunal in the form of bank statements. Those provided related to a business account not a joint account.
At paragraph 37 through to 41 of its decision, the Tribunal accepted that the parties jointly traded as Café 45 from 2013 until April 2019 when the business was sold. The Tribunal accepted that the applicant is also a director of a company and that Milan Dragicevic (not the sponsor) was a director of that company until he was removed because of dementia. There was no evidence before the Tribunal to indicate that any of the evidence given provided is evidence of the parties having a personal, rather than just a business, financial relationship. Paragraphs 42 and 43 of the Tribunal’s decision deal with income and day-to-day expenses. The applicant stated that she was working two jobs to support herself and her husband, however, the Tribunal noted that no evidence was provided as to the extent in which she shared in, or, to what extent, she may have shared in the proceeds of the sale of Café 45. No evidence was provided of any payslips of the applicant, evidence of where her salary is deposited or how it is paid or how it is used to support herself and her sponsor.
At paragraph 45 of its decision, the Tribunal noted that, other than rental receipts, the applicant provided no invoices or other evidence that she and her sponsor share day-to-day expenses or that they are both currently financially supported by the applicant. The Tribunal found that the applicant and her sponsor did not view themselves as being, or expect each other to be, responsible for the other’s financial liability. Accordingly, at paragraph 46 of its decision, the Tribunal concluded that the financial aspects of the relationship were not sufficient to support a conclusion they are in a genuine married relationship.
Paragraph 47 onwards of the Tribunal’s decision deals with the nature of the relationship between the parties. The Tribunal noted that the applicant and her sponsor’s driving licence showed a common address and that four rental receipts were provided, however, that there was no other evidence that the applicant resides at the address of the sponsor. The rental receipts before the Tribunal show the applicant’s name on the realtor’s account of the property. No corroborating evidence was provided as to the length of time of the lease or when the applicant became the lessee.
No evidence was provided to the Tribunal about the daily activities of the household and who had responsibilities for what duties information. At paragraph 55 of its decision, the Tribunal noted that the information that was provided was general and vague. The Tribunal noted the sponsor’s statement that he relies on the applicant working two jobs “to make ends meet and live off the sale of my store which is $500 per week”. At paragraph 57 onwards of its decision, the Tribunal noted evidence of the car accident involving the sponsor. The Tribunal noted that no evidence had been provided from the sponsor’s treating general practitioner and the material that was provided regarding his injury and health concerns was not evidence that the applicant is his carer or that they are in a married relationship. The Tribunal noted that if the applicant had the sort of day-to-day care responsibilities that was intimated in the various emails the Tribunal received, it would have been evident in the applicant’s 2019 statement.
At paragraph 61 of its decision, the Tribunal noted that in the applicant’s 2017 declaration, the applicant claimed that she had helped look after the sponsor’s elderly father. It was further claimed that the couple had been unable to have children. These claims were never raised in either the 2019 statements or in any subsequent email submission. The Tribunal concluded that these appear to be ambit claims and undermined the credibility of the applicant generally. At paragraph 65 of its decision, the Tribunal noted that it had considered all of the evidence and found a complete lack of reliable evidence about the current nature of the household. The material before the Tribunal was insufficient to support a finding that the parties were in a genuine married relationship.
Paragraph 66 onwards of the Tribunal’s decision deals with the social aspects of the relationship. The Tribunal noted that the statements provided did not contain useful information about the parties’ social life even though the Tribunal provided several examples of the type of information that is typically given in support of a partner application. The Tribunal was provided with links to three Facebook pages, which were provided in lieu of photographs. The Tribunal was able to identify one photograph of the applicant with a customer on the Café 45 Facebook page as well as three photographs of the parties together on their respective Facebook pages, that was all.
In relation to the Statutory Declaration provided by a Mr Mitchell in 2017, the Tribunal noted that he does not refer to the parties as being married, but describes their “personal relationship” as one of mutual respect and, as the Tribunal noted at paragraph 69 of its decision, his description could describe close business partners as easily as it could a married couple. Mr Mitchell’s later Statutory Declaration of 9 September 2019 stated that he sees the parties “working together as a married team”.
A Ms Collins, in a Statutory Declaration dated 11 September 2019, indicated that the sponsor ardours the applicant and she is “very loving and caring” towards him. At paragraph 73 of its decision, after considering all the evidence, including that from Mr Mitchell and Ms Collins, the Tribunal noted some support to the parties being in a relationship, however, weighed against the complete lack of current information, the evidence was not much and was not strong.
Paragraphs 74 through to 81 of the Tribunal’s decision deal with the nature of the parties’ commitment to each other. The Tribunal concluded that it 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 but concluded that there were significant inconsistencies about when the applicant’s father died. The Tribunal found that while there is some evidence of a mutual commitment to each other, it was not persuasive enough or sufficient enough for the Tribunal to be satisfied that the nature of the commitment supported the notion that the parties are in a married relationship.
Considering the totality of the evidence, the Tribunal did not find that the material indicated that the parties were in a married relationship for the purposes of the Act. Accordingly, the Tribunal affirmed the decision not to grant the applicant her visa.
GROUNDS OF JUDICIAL REVIEW
The applicant firstly seeks an extension of time pursuant to s 477(2) of the Act to lodge the application as it was filed 5 days outside the period set by s 477(1) of the Act. The applicant’s grounds for seeking an extension of time are as follows verbatim:
Ground one
Firstly, I as an Australian Citizen and my spouse which I sponsored to come here were unable to attend the hearing due to a hip I will have to have replaced. I was then told by the AAT that my rights as an Australian citizen for a hearing and that I would have to apply to the Federal Circuit Court to review the whole decision.
Ground two
That due to the Xmas break I was not able to get legal advice, I am struggling financially at the moment and went to seek legal aid but was told I could not see any till about the end of February/early March.
Ground three
And that I need to think about how I will look after myself if my partner is forced to leave after paying so much money to Home Affairs and AAT. We have just resigned a new lease on the house I previously sold to Yancoal Australia.
Ground four
There are many more reason I need to get affidavits for from my GP and Specialists to confirm what I have said.
The grounds of judicial review are as follows verbatim:
Ground one
I am appealing this on moral grounds that this decision will leave an Australian Citizen without a job, homeless and probably bankrupt.
Ground Two
That I was not afforded a hearing with the Admin Appeals Tribunal.
Ground three
And that the whole decision that was made will leave me homeless, no job, and no where to live. No licence which was taken of me over 18 months due to vasculitis or an acute stroke.
APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. No interpreter was requested. It was clear to the Court that the applicant spoke fluent English. The Court was satisfied that the applicant was able to participate in the hearing in a meaningful way. The applicant was accompanied by her sponsor husband. Mr Drajicevic is clearly severely disabled from the effects of a stroke. The sponsor was unable to walk easily. The Court allowed him to sit at the bar table and assist the applicant in the presentation of her case.
Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that she had been provided with a copy of the first respondents written submissions. The applicant and her husband were also provided with a pen and paper so that they could take notes during the course of the hearing if they wished to.
At the commencement of the hearing, the Court carefully explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the Court hearing would be conducted.
Despite Court Orders, no written submissions or other material was filed by the applicant in support of her case. The applicant told the Court that she relied upon her husband to file all the necessary documentation with the Department and then the Tribunal as she was working 2-3 jobs to support them both. The applicant stated that when her father died in 2010, her husband paid for the funeral. The applicant also stated that the sponsor paid twice for the applicant’s mother to come to Australia. On the last occasion, the applicant’s mother fell ill and had to undergo surgery. The applicant stated that the couple are still paying off the cost of the surgery and hospital admission at the rate of $25.00 per week to the New England Health Service.
In relation to photos of the couple being together, the applicant stated that while she had a Facebook page, she was a private person and did not put photographs of herself or family on the page. The applicant stated that she believed that they had provided the Tribunal and the Department with all the information that they had and were not sure what more they could have provided. The declarant’s of the Statutory Declarations were a Police officer and a retired school principal. It was submitted by the applicant that surely there statements should be given significant weight.
The applicant stated that she did not understand why they had been denied the opportunity for a hearing before the Tribunal. The Court explained that this was due to the fact that they did not provide further information to the Tribunal within the time specified and the loss of a right to a hearing was due to the operation of the Act.
Following the first respondent’s oral submissions, the applicant was again asked if she wished to say anything in reply. The applicant stated that she could not really add anything as she had provided everything she could.
RESPONDENT’S SUBMISSIONS
In relation to the request for an extension of time, it was submitted by the first respondent that it is well settled that the factors to be taken into account when considering whether an extension of time should be granted include: the extent of the delay; the explanation for the delay; any prejudice the respondent might suffer because of the delay; and, the merits of the proposed grounds: see SZTES v Minister for Immigration and Border Protection [2015] FCA 719. The proposed substantive application should have such prospects of success as to not render the extension of time an exercise in futility: see WADD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]. If an application has no prospect of success, an extension of time, even for short period, may be refused: see SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24].
While the applicant’s delay is relatively short, five days, the applicants had not provided any Affidavit evidence that explained the reasons for the delay. There is no evidence in support of the extension. While there is no specific prejudice to the first respondent beyond the public interest in the finality of administrative decision-making, the mere absence of prejudice cannot of itself justify the exercise of discretion sought by the applicant: see Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67.
In relation to the proposed grounds of appeal, the first respondent submitted that they are simply without merit, even at an impressionistic level: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [598].
In relation to the grounds of judicial review, the first respondent submits that grounds one and three are not proper grounds of review. They are essentially a request of the Court to remit the matter to the Tribunal on the basis of sponsor’s health issues. These grounds do not assert any error in the decision of the process adopted by the Tribunal.
Ground two complains that the applicant was not afforded the opportunity to attend a hearing before the Tribunal. It was submitted that the applicant was properly invited to provide further information pursuant to s 359(2) of the Act. The request, which was provided in writing, meets the requirements of s 359B(1) of the Act. The request was given to the applicant’s authorised recipient via one of the methods specified in s 379A of the Act, namely, by email to the email address provided to the Tribunal in connection with the review. The request further specified the time in which the applicant was required to provide the information requested, being prescribed a period of 14 days from the date the invitation was received: see
s 359B(2) of the Act and reg 4.17(4) of the Regulations.
In circumstances where the applicant did not respond to the Tribunal invitation within the required time, she lost the entitlement to a hearing pursuant to s 359C(1) and s 360(3) of the Act. As the applicant was no longer entitled to a hearing, the Tribunal had no power to permit the applicant to appear pursuant to s 363A of the Act: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40. Accordingly, it was the first respondent’s submission that the Tribunal was correct to proceed in the manner that it did not to permit the applicant to appear before it. The applicant’s complaints do not reveal any arguable error on behalf of the Tribunal.
CONSIDERATION
In terms of whether or not there should be an extension of time for the application, the Court notes that the delay in the filing of the application is only a number of days. The applicant is unrepresented. The Court is not satisfied that the first respondent Minister would suffer prejudice because of the small delay. In these circumstances the Court is satisfied that it is appropriate to grant an extension of time and then deal with the application on its substantive merits.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]. Jurisdictional error will not be present if the Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including adverse credibility findings. See ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]. It is for the applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts ; see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [24].
The Tribunal took considerable care on more than one occasion to provide the applicant with opportunities to provide as much information as possible that might have assisted her in establishing she and the sponsor were in a marriage for the purposes of the Act. This included giving them examples of material that the Tribunal would expect to be provided in support of such a claim: see paragraph 24 of the Tribunal’s decision.
Grounds one and three do not constitute a proper ground of judicial review. They do not assert any error by the Tribunal. The grounds of review simply take issue with the outcome of the decision by the Tribunal. Accordingly, grounds one and three have no merit.
Ground two is a broad assertion that the Tribunal did not afford the applicant the opportunity of a hearing. At best, it can be interpreted as a claim of procedural unfairness. However without particulars, other than there was no hearing, it does not constitute a proper ground for judicial review and can be dismissed for that reason alone: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
An analysis of the actions of the Tribunal indicate that it followed all necessary procedural steps as required by the Act. Having written to the applicant seeking more information, and having not received a response, the applicant lost her entitlement to a hearing. Section 360(3) of the Act makes it clear that the applicant is not entitled to appear before the Tribunal in circumstances where the applicant has been invited to give information to the Tribunal pursuant to s 359C(1) or (2) of the Act and does not do so. This being the case, the Tribunal cannot permit the applicant to appear at a hearing.
Notwithstanding this, the Tribunal gave the applicant a further opportunity to provide additional information to support her application. Had the Tribunal determined to do so, it may have simply determined the matter on the information that was then before it, without seeking any additional information.
The Court is satisfied that all relevant procedural requirements were complied with. The applicant lost her right to a face to face hearing. None of the grounds of judicial review have merit.
As a matter of fairness the Court has perused the Tribunal decision. The Court is satisfied that the Tribunal was entitled to come to the conclusion it did , based on the evidence before it and for the reasons it gave. The decision is not tainted by legal unreasonableness, or extreme illogicality or irrationality such as to justify an intervention by the Court on the basis of jurisdictional error. There is further no other unarticulated jurisdictional error.
Notwithstanding having come to the conclusion that it has, the Court is left with a significant sense of unease that the decision of the delegate and the Tribunal that the applicant and her sponsor are not in a spousal relationship for the purpose of the Act is correct.
Unlike the delegate and Tribunal, the Court had an opportunity to observe both the applicant and her sponsor. There was clear evidence that the applicant worked and left it to Mr Dragicevic to attend to the details of her application for a partner visa. Mr Dragicevic impressed as a forthright but unsophisticated person who clearly struggled with the provision of the sort of detailed information that might have shown the couple were husband and wife for the purposes of the Act. Had the sponsor been assisted by a migration agent or a lawyer, that information may well have been forthcoming. The Court formed a view that Mr Dragicevic clearly was simply unable to deal with a very difficult and detailed administrative process as required by the Department to provide the amount of, and differing, types of evidence required to support a positive outcome.
The interaction between the applicant and Mr Dragicevic at the hearing was very typical of that which exists between a husband and wife. At one point Mr Dragicevic stated if that, if the applicant could not get a visa, that they would just pack up and go back together to Serbia. The care and concern shown by the applicant to Mr Dragicevic was clearly apparent and clearly did not appear to be feigned. It just could not be scripted or put on as a show for the Court. It was much more than that.
The Court was left with a significant sense that the applicant and her sponsor meet the criteria under section 5J of being legally married to each other, having a mutual commitment to a shared life as a married couple and that their relationship is genuine and continuing.
The option of Ministerial intervention is open. However, the applicant will need considerable assistance in obtaining the necessary evidence to support her claims. Absent that, while the review process by this Court may be legally correct, it may well result in a considerable injustice.
CONCLUSION
The application is dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 10 June 2021
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