FEDERAL COURT OF AUSTRALIA

Lumanovska v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1321

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 474

Migration Regulations 1994 (Cth) reg 1.15A, Sch 2 item 801.22

Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 distinguished

Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 referred to

DZEVRIJE LUMANOVSKA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 237 of 2003

GRAY J

2 OCTOBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.           The application be dismissed.

2.           The applicant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant in this proceeding has invoked the jurisdiction conferred on the Court by s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal (‘the Tribunal’).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, ‘the Minister’), refusing to grant to the applicant a visa of the kind known as a General (Residence) (Class AS) visa, subclass 801. 

2                     The Tribunal found that the applicant is a citizen of Albania, although there is material suggesting that she is a citizen of Macedonia of Albanian ethnic origins.  She entered Australia on 17 April 1997, with a visa described as a subclass 676 visa, accompanied by her two sons from a former marriage.  On 23 May 1997, she married Erol Sakir (‘the nominator’), who was born in Australia and is an Australian citizen.  On 13 June 1997, the applicant made an application for a visa, based on her marriage to the nominator.  In accordance with the usual practice, her application was for both a General (Residence) (Class AS) visa and an Extended Eligibility (Temporary) (Class TK) visa.  The scheme of the regulations is that the temporary visa is granted first and the nature of the relationship that
forms the basis for the application for the permanent visa is reviewed, two years or more after the application, so that a decision can be made whether to grant the permanent visa.

3                     The temporary visa was granted to the applicant on 23 June 2000.  More than two years after her application, consideration was given to whether to grant her the permanent visa.  On 28 September 2001, the delegate of the Minister made the decision to refuse to grant the permanent visa.  The applicant applied to the Tribunal for review of that decision.  She put before the Tribunal a quantity of documentary evidence intended to demonstrate the nature of her relationship with the nominator. 

4                     The Tribunal conducted a hearing on 15 January 2003, at which the applicant, the nominator, one of the applicant’s sons, her brother, her uncle and a neighbour all gave evidence.  On 13 March 2003, the Tribunal published its decision and its reasons for decision.  As I have said, it affirmed the decision of the delegate of the Minister, finding that the visa applicant was not entitled to the grant of a General (Residence) (Class AS) visa, subclass 801. 

5                     The criteria for a visa of the kind sought by the applicant are found in subclass 801 in Sch 2 to the Migration Regulations 1994 (Cth) (‘the Migration Regulations’).  Item 801.22 prescribes criteria to be satisfied at the time of the decision.  One of those criteria is found in subitem 801.221(2)(c), namely that the applicant is the spouse of the nominating spouse.  Accordingly, the Tribunal was required to be satisfied that the applicant was the spouse of the nominator at the time when it made its decision. 

6                     The term ‘spouse’ is the subject of an extended definition in reg 1.15A of the Migration Regulations.  Subregulation (3) of that regulation lists a number of factors to which the decision-maker is required to have regard in considering whether two persons are in a married relationship, which is one of the elements of the definition of ‘spouse’.  One of those factors is found in reg 1.15A(3)(d) in the following terms:

‘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.’

7                     There is also in the definition in reg 1.15A an important provision in subreg (5):

‘If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.’

8                     In its reasons for decision, the Tribunal set out at some length an account of the evidence that was before it.  It is unnecessary to summarise all of that evidence.  The reasons of the Tribunal are replete with its account of inconsistencies in the evidence, particularly inconsistencies between the evidence given by the applicant and the evidence given by the nominator as to details of their life and the things that they shared.  An example perhaps will suffice.  In summarising the applicant’s evidence in relation to the house at which she and the nominator lived at the time of the hearing, the Tribunal said this:

‘The review applicant stated that she lived at her uncle’s house for four or five years and she and the nominator wanted to live on their own.  The review applicant stated that she and the nominator drove together around Dandenong looking for a new house to rent and saw a “for rent” sign outside the Kirkham Road house.  She stated that the nominator arranged for the lease, which was handwritten by the landlord, and they moved in on 22 February 2002.  The review applicant stated that she, the nominator, and her two children are the only tenants in the house.  The review applicant stated that the rent is paid sometimes weekly, sometimes fortnightly, and sometimes by her or by the nominator for the house at Kirkham Road, Dandenong South.  She stated that the rent is paid directly to the landlord, who shares the same name as her but is not a relative.  The review applicant stated that the rent is sometimes taken to the landlord in Dandenong and sometimes collected by
him at Kirkham Road.  The review applicant did not know the landlord’s address.’

9                     In summarising the nominator’s evidence the Tribunal said:

‘The nominator stated that he often stays with his friend in Mill Park during the working week because he works long hours, but he returns to the review applicant's home on weekends.  The nominator stated that on work days he leaves home at 4.30 am from Dandenong or at 5 – 5.30 am from Mill Park, returning anywhere from 5.30 pm to 9 pm.  He stated that he sometimes stays with a friend in Lalor when he is working.  The nominator stated that his wages are paid directly into a National Australia Bank account in his name only.  He stated that he does not pay the rent because he is not home and was unable to state who pays other household accounts.  The nominator stated that he does not know the landlord of Kirkham Road, Dandenong South, but later stated that the landlord is his friend.  The nominator stated that he obtained the house because the landlord is his friend.  He stated that he did not find the house by driving past with the review applicant.’

10                  In expressing its findings in relation to the application, the Tribunal did so under a number of headings, which reflect the factors to be found in reg 1.15A(3).  In particular, the following passage appears:

‘Whether the relationship is genuine and continuing (noting that subregulation 1.15A(5) provides that living together at the same address for six months or longer is to be taken to be strong evidence that a relationship is genuine and continuing)

The Tribunal has already found that the parties did not live together as husband and wife at William Street, Dandenong in the four years after the marriage.  Whilst the Tribunal accepts that the nominator has shared a house with the review applicant at Kirkham Road, Dandenong South since February 2002, the Tribunal is not satisfied that the parties currently live together as husband and wife, and would not expect the nominator to remain in the review applicant’s home after the migration issues are resolved.’

11                  The Tribunal then expressed a finding that it was not satisfied that the applicant and the nominator had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that it was not satisfied that the relationship between them was genuine and continuing.  Accordingly, the Tribunal found that the applicant was not the nominator’s spouse, as defined in reg 1.15A, at the time of decision.  She did not therefore satisfy the criterion in subitem 801.221(2) of Sch 2 to the Migration Regulations.

12                  By her amended application to the Court, the applicant raised two grounds, one concerned with an alleged failure to observe proper procedure and the other involving error of law or jurisdictional error.  The second ground had two aspects to it, one being a failure to take account of the evidence provided by witnesses on behalf of the applicant.  Written contentions dealing with these grounds were filed on behalf of the applicant. 

13                  At the hearing, however, Mr Belbruno, who appeared for the applicant, abandoned the first ground and also the first sub-ground of the second ground.  Attention therefore was focused only on the following alleged error of the Tribunal:

‘the Tribunal failed to consider or improperly decided against the effect on the genuineness of the relationship of the applicant’s co-habitation with the nominator since February 2002’.

14                  In her written contentions the applicant submitted that:

‘The Tribunal erred both in interpreting and in applying the law in that it failed to consider the effect on the genuineness of the relationship between the applicant and the nominator of their co-habitation since February 2002, that is, well over the six-month period indicated in the legislation as to be taken as strong evidence of the genuineness of a relationship.

In effect, the Tribunal asked itself the wrong question in that it did not properly consider the nature of the applicants’ [sic] household for the period after February 2002 for which it accepted that they did in fact live together.’

15                  Mr Belbruno expanded on these contentions in oral argument.  He relied on my judgment in Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 at [11] – [13], as cited in my judgment as a member of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 at [16].  The purpose of citing this authority was to contend that the Tribunal had failed to engage in a necessary balancing exercise.  Both Qu and Awan concern different provisions of the Migration Regulations.  The provisions there in issue contained a single criterion, in the application of which the decision-maker was required to take into account a number of factors.  The decision-maker in those cases had treated each of those factors as if it were a separate criterion and had regarded the case as concluded by a failure to satisfy any one of those factors.  It is plain that the Tribunal has not done anything of the kind in the present case.  The Tribunal has considered all the factors that reg 1.15A(3) required it to consider and has addressed itself to the particular criterion, namely, whether the relationship between the applicant and the nominator was such that the one could be described as the spouse of the other at the time when the Tribunal made its decision.

16                  Mr Belbruno also contended that the effect of reg 1.15A(5) was to require the Tribunal to do more than it did in relation to the period of more than six months during which it found that the parties lived together at the same address.  He contended that the Tribunal was obliged to do more than simply ‘tick the box’ for that fact and was required to examine the nature of the relationship between the parties during that period. 

17                  It is plain from an examination of the passage from the Tribunal’s reasons that I have already quoted that the Tribunal did precisely what was required by reg 1.15A(5).  In the heading to that portion of its reasons for judgment, the Tribunal expressly noted that subreg (5) provided that living together at the same address for six months or longer is to be taken to be strong evidence that a relationship is genuine and continuing.  It then proceeded to engage in the balancing exercise to see whether other evidence that it had as to the nature of the relationship outweighed this strong evidence.  It recited that the parties had not lived together as husband and wife in the first four years of their marriage.  While accepting that they had shared a house in Kirkham Road since February 2002, the Tribunal found it was not satisfied that the applicant and the nominator then lived together as husband and wife.

18                  In this respect, it is worth noting that, earlier in its reasons for decision, the Tribunal had commented that it was not apparent on the evidence whether or not the nominator and the applicant lived together as husband and wife.  I take this to mean that they had not discussed in the evidence any details about any intimacy that existed between them.  In some cases, it might have been thought that a reluctance to discuss such details was a matter dictated by cultural background, but in the present case it was also the fact that the parties had given evidence about when sexual intercourse first took place between them.  It is noteworthy that their evidence about that fact was inconsistent.  The fact that they had been prepared to give evidence on that subject suggests that they did not have an overwhelming reluctance to discuss questions of intimacy.  In those circumstances, it was legitimate for the Tribunal to take the view that the lack of any evidence about intimacy was a fact that it could take into account.

19                  Further, in performing its balancing task, the Tribunal made a finding that it would not expect the nominator to remain in the applicant’s home after the migration issues were resolved.  This was a finding no doubt based, at least in part, on the Tribunal’s assessment of the nominator’s demeanour when he gave his evidence to the Tribunal.  The Tribunal did express unfavourable findings about the nominator’s evidence in the course of its reasons.  It found that the nominator became impatient and evasive in response to the Tribunal’s questions.  It also made a finding that the nominator did not share the applicant’s commitment to the success of her migration application and was impatient for his part in the process to be over.

20                  In the circumstances, it is plain that the Tribunal performed its task.  The task of finding the facts was one for the Tribunal and it is not open to the Court to interfere with findings that the Tribunal made, even if the Court were of the view that those findings might have been wrong.  It is necessary for me to make it clear that I have no view that the Tribunal’s findings might have been wrong.  The applicant having failed to establish error on the part of the Tribunal, it is unnecessary to consider whether, if she had succeeded in establishing the error she alleged, that error would have been a jurisdictional error of a kind sufficient to take the case outside the protection of the privative clause in s 474 of the Migration Act 1958 (Cth).

21                  For these reasons, the applicant’s application must be dismissed.  The usual rule that costs follow the event should be applied, and the applicant should be ordered to pay the respondent’s costs of the proceeding.

22                  The orders of the Court will be:

1.           The application be dismissed.

2.           The applicant pay the respondent’s costs of the proceeding.

Associate:

Dated:              18 November 2003