FEDERAL COURT OF AUSTRALIA

Gjonej v Minister for Immigration and Border Protection [2015] FCA 159

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent in the sum of $6,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ

1    This is an appeal from the dismissal by a Federal Circuit Court judge of the application for review of a decision of the Migration Review Tribunal (the Tribunal). The grounds of review were two-fold before the Circuit Court:

(a)    that the Tribunal did not afford the applicant a real and meaningful opportunity to present and argue his case before it, such that no hearing under s 360 of the Migration Act 1958 (Cth) (the Act) in fact took place;

(b)    the Tribunal did not consider an element of the claim made by the applicant that had been articulated to it.

2    The Federal Circuit Court judge dismissed both bases and therefore the application for relief. The appeal before this Court was in the same compass as before the Federal Circuit Court judge. It was argued that the primary judge erred in failing to conclude that there had not been a proper hearing before the Tribunal, and in deciding that the Tribunal had overlooked a significant part of the claim.

3    Both grounds of appeal require an understanding of the facts that were before the Tribunal. Mr Gjonej had applied for a Partner (Temporary) (Class UK) visa on the basis of a de facto relationship with a Ms Minicozzi. The application was made on 21 June 2011. The application was refused by a delegate of the Minister on the basis that the delegate was not satisfied that Mr Gjonej and Ms Minicozzi were in a de facto relationship as defined under the Act. Mr Gjonej sought review by the Tribunal, which conducted a hearing (the subject of the now complaint) on 24 September 2013. He appeared and was present with Ms Minicozzi and Ms Sciacca, a friend. He was represented by solicitors who were also migration agents.

4    It is necessary to understand the legislative framework for Mr Gjonej’s application. Regulation 2.03A was in the following terms:

2.03A    Criteria applicable to de facto partners

(1)    In addition to the criteria prescribed by regulation 2.03, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.

(2)    If a person mentioned in subregulation (1) applies for a visa:

(a)    the applicant is at least 18; and

(b)    the person with whom the applicant claims to be in a de facto relationship is at least 18.

(3)    Subject to subregulations (4) and (5), if:

(a)    a person mentioned in subregulation (1) applies for:

(i)    a permanent visa; or

(ii)    a Business Skills (Provisional) (Class UR) visa; or

(iii)    a Student (Temporary) (Class TU) visa; or

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

(v)    a Partner (Temporary) (Class UK) visa; or

(vi)    a General Skilled Migration visa; and

(b)    the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;

the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

…

5    Two relevant questions flow from reg 2.03A: whether there are compelling and compassionate circumstances for the grant of the visa and whether the parties have been in a de facto relationship for 12 months before the date of the application.

6    The context of the hearing before the Tribunal on 24 September 2013 was important. The hearing had been postponed for a considerable period as Mr Gjonej was hospitalised for a mental illness. The medical report provided to the Tribunal about these postponements described treatment for manic relapse of a bipolar disorder. The importance of this is that the Tribunal was aware of the difficulties, by way of mental illness, of Mr Gjonej. At the commencement of the hearing, it asked him about his current health and his ability to answer questions. It is of some importance to understand that Mr Gjonej did not, on 24 September 2013, seek to terminate the hearing. Nor did his solicitor/migration agent make a submission or complain that he had not had an opportunity to present evidence or arguments by reason of his mental state, though the Tribunal recorded in its reasons that after the hearing Mr Gjonej’s representatives indicated that he was still unwell, was easily tired and was grandiose in his statements to the Tribunal. This assumed Mr Gjonej’s capacity, but sought to persuade the Tribunal as to the need for some leeway in assessing him.

7    Mr Gjonej had some history of migration applications. He had arrived in Australia in June 2009 on a false Italian passport. He lodged a spouse visa application in 2009 on the basis of a relationship with a woman whom he met at Rome airport. This was later withdrawn. He applied in February 2010 for a protection visa, which was refused. He sought intervention of the Minister which was also refused. On 21 June 2011, he lodged the visa application that is the subject of this appeal.

8    The application for the partner visa was supported by statutory declarations by Mr Gjonej and by Ms Minicozzi. In both those declarations, the time of the commencement of the relationship was dealt with. They both said that they started living together on 20 June 2010.

9    It is important to recall, that one of the criteria to be met, pursuant to reg 2.03A(3) was that, at the time of the application for the visa (21 June 2011) the parties had been in a de facto relationship for 12 months (unless they could establish compelling and compassionate circumstances).

10    At the hearing on 24 September 2013, the Tribunal member provided information to Mr Gjonej orally, pursuant to s 359AA of the Act. This was information that would be part of the reason for affirming the decision under review. These matters were set out in para 13 of the reasons as follows:

The particulars of the information were:

•    Information recorded on the Department of Immigration and Citizenship computer records records him as being at 367A Gorge Road Athelstone from 18 February 2010 to 23 November 2010 and from 23 November 2010 at 53 Quondong Avenue Athelston

•    The Department file contains records of contact with Mr Gjonej and notes that as at 12 October 2010 he was required to report by telephone fortnightly, and states that Mr Gjonej is currently in a relationship with an Australian citizen and would be moving in with her shortly. It states the client was reminded he would need to advise the department two days before moving. It also says he referred to his partner as being “Francesca”.

•    Records of the Department dated 29 November 2010 states he contacted Department and said he was no longer with his partner “Francesca”.

11    The Tribunal dealt with how this was addressed at the hearing at paras 14-19 of its reasons, as follows:

14.    Mr Gjonej was advised that this was relevant to the decision as if the Tribunal relied on this information it may find that he did not move in with Ms Minicozzi on 20 June 2010, and that the evidence given in both his and Ms Minicozzi’s statutory declarations regarding when they commenced living together is unreliable. Mr Gjonej was advised this may also result in the Tribunal making adverse findings about both his and Ms Minicozzi’s credibility. Mr Gjonej was advised that if the Tribunal found that he and Ms Minicozzi were not in a defacto relationship, or were not in a defacto relationship for the 12 months prior to the visa application and there were no compelling and compassionate grounds for the grant of the visa, the Tribunal would find they do not meet the requirement to be in a defacto relationship and this would result in the Tribunal affirming the decision under review.

15.    Mr Gjonej said he meet Francesca at night time as he went out and met many women and just because he went to the immigration department with her does not mean anything. He said his relationship with Francesca was nothing and they were together a couple of weeks. He then said he did not want to answer any further questions on Francesca because it was a long time ago, and he just went out and met girls. He again later said he did not want to talk about Francesca and it was making him upset now.

16.    It was put to Mr Gjonej that a concern of the Tribunal was that at the time he was required to report fortnightly and it would therefore expect the address as recorded with the Department to be accurate. He was not recorded as moving into the 53 Quondong Avenue until 23 November 2010 whereas Mr Gjonej and Ms Minicozzi both submitted statutory declarations that stated that he moved in with Ms Minicozzi on 20 June 2010.

17.    Mr Gjonej said he was a good looking boy and maybe he could go outside and meet another one.

18.    Mr Gjonej was provided with further time after the hearing to discuss this with his representative and provide any further submissions. In a further submission, Mr Gjonej said that Mr Gjonej maintained his address with his cousin rather than advising the Department that he was living with Ms Minicozzi. He states that Ms Minicozzi was embarrassed about the age difference and it took her time to overcome this embarrassment.

19.    At the time Mr Gjonej recorded his address and his relationship with Francesca he was required to report fortnightly to the department. The Tribunal would expect that he would accurately record his address and relationship status at the time. The Tribunal does not accept that Mr Gjonej and Ms Minicozzi started living together on 20 June 2010. Ms Minicozzi said in her statutory declaration provided by Mr Gjonej that they instructed Mr Gjonej’s representative to defer lodging the application to establish the twelve month period. On the basis of this statement, the Tribunal finds that 20 June 2010 was chosen to meet the requirement to be in a de facto relationship for 12 months prior to the visa application.

12    The Tribunal then dealt with the question of whether the parties were in a de facto relationship. After traversing the evidence, the Tribunal said at para [35] of the reasons, that, while it had serious concerns about whether Mr Gjonej had a mutual commitment to a shared life with Ms Minicozzi, it accepted, for the purposes of the review, that they had been in a de facto relationship for a period from 23 November 2011, but not before.

13    Given the failure to satisfy the Tribunal that they had been in a relationship for 12 months, it was necessary for the success of Mr Gjonej’s application that the Minister be satisfied that there were compelling and compassionate circumstances for the grant of the visa.

14    In submissions on Mr Gjonej’s behalf, dated 9 July 2013, the solicitor/migration agent said the following as to compelling reasons:

•    Mr Gjonej and the sponsor fear for his safety and wellbeing if he were to depart Australia. Mr Gjonej suffers from a serious medical condition which is being well managed in Australia. If he were removed from his current treatment and supports, he is likely to become very unwell again.

•    Gjonej fears for his safety were he forced to return to Albania continue to cause him considerable stress. He is not able to return to Italy and therefore would have to return to Albania. It is acknowledge that the Refugee Review Tribunal did not accept that Mr Gjonej was a refugee within the meaning of the Refugees Convention. Nevertheless, Mr Gjonej continues to hold fears for his safety if he was return based on the experiences of his uncle, and his previous attack and kidnap attempt. Despite the finding of the RRT it is nevertheless submitted that Mr Gjonej has good reason to fear harm if he returned to Albania.

•    Ms Minicozzi’s son, Enzo, suffers from a severe mental illness and she provides a level of day-to-day care and attention to him. Her involvement is essential to Enzo’s well being and prohibits Ms Minicozzi to depart Australia with Mr Gjonej.

•    Mr Gjonej and Ms Minicozzi have a loving and affectionate relationship. They are a source of mutual support for each other and gain comfort and happiness from each other’s company. They love and respect one another and draw a great deal of companionship and emotional strength from one another. Their relationship has flourished despite significant external stressors.

15    Later, after the hearing, and in submissions dated 4 October 2013, the solicitor/migration agent said the following as to compelling and compassionate circumstances:

•    The fact that Mr Gjonej and Ms Minicozzi are clearly in a genuine and committed relationship and were at the time of application and currently.

•    The fact that Mr Gjonej suffers from a severe mental health condition and that Ms Minicozzi has provided him with a level of love and support and emotional assistance which is essential to his stability and ongoing wellbeing.

Ground 1: Adequacy of the Hearing

16    The gist of Mr Gjonej’s first complaint, elaborated carefully by Mr Ower on his behalf, was that when one looked at the transcript of the Tribunal hearing, one could see a sufficient number of incoherent and non-responsive answers to bespeak such mental illness as meant that Mr Gjonej had not had a proper hearing.

17    There was no debate as to the proper test to be applied. The standard required by s 360 of the Act (or its equivalent provision, s 425, in the context of the Refugee Review Tribunal) has been addressed in a number of cases such as Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 and cases there cited. There must be proven to have been the lack of a real and meaningful opportunity to take part in the hearing before the Tribunal. The submissions of the parties did not point to any failure by the Federal Circuit Court judge to address the correct question in this regard. The complaint by Mr Gjonej was that, after correct citation of the authorities, his Honour failed to appreciate fully the nature of the inadequacies of the transcript, and inappropriately concentrated upon subjective characteristics and attitudes of the persons present at the time.

18    I will not set out the individual passages. Mr Ower helpfully took the me through the totality of the transcript. It is fair to say that, on a number of occasions, Mr Gjonej (who had the assistance of an interpreter of the language of his choice) did not express himself clearly on occasion. That is perhaps an understatement. On occasions, his transcript is incomprehensible. However, those occasions do appear to be when he was faced with difficult questions arising from the adverse material. The adverse material was directed to a relationship that, it appears he accepts, he had in about October 2010 with a woman who was not Ms Minicozzi. As I have earlier said, the Tribunal put adverse material to Mr Gjonej which can be found in para 13 of the reasons. The second and third aspects of that adverse material concerned “Francesca”. Some of the answers which Mr Gjonej gave in relation to this woman were clear; others were not. Further, Mr Gjonej did not address the matter of the different addresses raised in the first part of the adverse information. This was addressed in later submissions by his solicitor/migration agent. It was said that these addresses were those of his cousin, which were kept for reasons of convenience of communication.

19    The matters of consideration given by the Federal Circuit Court judge were contained in [116] – [139] of his Honour’s reasons. Leaving aside the citation of authority, the Federal Circuit Court judge, whilst accepting that Mr Gjonej had not presented his case with “acumen or flair” was not persuaded that he had not had an opportunity to put evidence and submissions. In his discussion of the matter, the Circuit Court judge noted the following, at [123] – [126]:

    The Tribunal was aware of his mental illness and the likelihood that he was going to be experiencing difficulties in the hearing.

    The hearing took place as a consequence of Mr Gjonej’s solicitor informing the Tribunal that he would be well enough to attend.

    He was granted a recess during the hearing on his own application.

    He was able to express himself and his emotions for Ms Minicozzi and provide details of his life he shared with her.

    The hearing proceeded without demur from the applicant or his solicitor.

20    The Federal Circuit Court judge also noted that there was no independent medical evidence to assist him to judge whether or not Mr Gjonej was sufficiently unable to appreciate what was happening on the day.

21    I have carefully examined the whole of the transcript. I do not think it can be concluded from the transcript that Mr Gjonej was not afforded a meaningful hearing. A full review of the transcript reveals that on many occasions, indeed, during most of the hearing, he appears to give rational and coherent answers, either directly or through an interpreter. The occasions when he appeared to be less than clear or incoherent were occasions when he was faced with, what might be thought to be, uncomfortable and difficult questions for him to address – in particular, the relationship with other women. He was not incoherent about other matters. Like the Federal Circuit Court judge, I cannot conclude from the transcript alone that Mr Gjonej was denied a meaningful hearing.

22    In my view, ground 1 fails.

Ground 2: Alleged Failure to Address a Submission

23    As to ground 2, the substance of the complaint is that the Tribunal did not deal with a point raised in the October letter from the solicitor/migration agent. The essence of that point was that if Mr Gjonej were to be refused a visa, he would have to leave the country; that he suffers from a severe mental health condition and that he would lose the love and support and emotional assistance provided by Ms Minicozzi which is essential to his stability and his ongoing well-being. That necessarily assumed Ms Minicozzi would not follow Mr Gjonej. The only reason given by the solicitor/migration agent or Mr Gjonej for that separation in the future was that Ms Minicozzi had a son who suffered from severe mental illness and she provided a level of day-to-day care for him, which would prevent her departing Australia with Mr Gjonej.

24    When one goes then to the reasons of the Tribunal, one sees the various submissions dealt with at paras 39-43 as follows:

39.    In her submissions, Mr Gjonej’s representative submitted the following were compelling and compassionate circumstances:

•    Mr Gjonej and the sponsor fear for his safety and wellbeing if he were to depart Australia.

•    Mr Gjonej is likely to become unwell if removed from his current treatment and support

•    Ms Minicozzi’s son suffers from a severe mental illness and she provides a level of day to day care for him. This would prevent Ms Minicozzi departing Australia to be with Mr Gjonej

•    Mr Gjonej and Ms Minicozzi have a loving and affectionate relationship.

40.    As discussed in his submissions, Mr Gjonej’s application for a protection visa was refused and the Tribunal does not accept his claims regarding his safety if he were to depart Australia.

41.    In regard to his mental health, the Tribunal observes that for considerable periods prior to this hearing Mr Gjonej failed to attend appointments scheduled for him for his mental illness. For example, in an undated medical report of Dr Stephan and the report of 24 October 2011, Dr Stephan reports Mr Gjonej had ceased medication and had failed to attend several appointments. Dr Stephan states that the focus of several of Mr Gjonej’s appointments with him was seeking assistance with his immigration problems. Dr Stephan states that in the context of a level of agitation associated with the idea of deportation it is highly likely that deportation would result in a deterioration of his condition. Dr Stephan states he is not in a position to comment on the quality of health care in Albania.

42.    While the Tribunal acknowledges that deportation may result in a deterioration of Mr Gjonej’s condition, on the basis of the medical reports provided by Mr Gjonej, the Tribunal is not satisfied that Mr Gjonej would seek ongoing treatment in Australia, nor that the treatment he requires is not available in Albania. It is not satisfied that this is a compelling reason for the grant of the visa.

43.    Ms Minicozzi did not provide any additional information to support her assertion that she provides day to day care for her son. Her son does not live with her. The Tribunal is not satisfied that the state of health of Ms Minicozzi’s son or the nature of her relationship with Mr Gjonej amounts to compelling and compassionate circumstances.

25    The submission of Mr Ower was that these paragraphs do not deal with that question of the separation of Ms Minicozzi from Mr Gjonej and her thereby being unable to give him love and emotional support. But the Tribunal does deal with the only reason posited by, or on behalf of, Mr Gjonej that they would be separated: the state of health of Ms Minicozzi’s son. This matter is dealt with. It is not dealt with as an isolated fact, but one relevant to the submissions put before the Tribunal which were that, given the son’s health, she could not travel overseas to be with Mr Gjonej. In my view, the Tribunal must be taken to have dealt with this part of the claim and submission since it was the only reason it would be dealing with the health of Ms Minicozzi’s son.

26    These being the only two grounds for the appeal, and the only two grounds for review, neither is adequate to reveal error in the reasons and approach of the Federal Circuit Court judge.

27    For these reasons, the appeal should be dismissed, with costs.

28    When judgment was delivered, the parties by consent sought that costs be fixed in the sum of $6,000. The orders of the Court have been made accordingly.

Associate:

Dated:    4 March 2015