Koluacik v Minister for Immigration & Multicultural Affairs [2002] FCA 729 (30 April 2002)

Last Updated: 7 June 2002

FEDERAL COURT OF AUSTRALIA

Koluacik v Minister for Immigration & Multicultural Affairs [2002] FCA 729

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) r 1.15A, Sch 2 items 820.211, 820.221

Federal Court Rules (Cth) O 80

Minister for Immigration, Local Government and Ethnic Affairs v Dillon (Federal Court of Australia, 8 May 1990, unreported) referred to

Bretag v Immigration Review Tribunal (Federal Court of Australia, 29 November 1991, unreported) referred to

HAKAN KOLUACIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 727 of 2001

GRAY J

30 APRIL 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 727 of 2001

BETWEEN:	HAKAN KOLUACIK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	30 APRIL 2002
WHERE MADE:	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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 727 of 2001

BETWEEN:	HAKAN KOLUACIK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	30 APRIL 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act") of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), to refuse to grant to the applicant the visas that he sought. Because of the history of the matter, I am required to deal with it in accordance with s 476 of the Migration Act as it stood prior to amendments that came into operation on 2 October 2001.

2 The applicant is a citizen of Turkey. He arrived in Australia on 10 October 1996 on a Temporary Business Entry (Class) UC visa (Subclass 456) (Business (Short Stay)), with permission to stay until 29 October 1996. He was then granted a Long Stay (Visitor) (Class TN) visa (Subclass 686) (Tourist (Long Stay)), which permitted him to stay in Australia until 29 April 1997. The date was subsequently extended to 5 October 1997.

3 On 19 September 1997, the applicant and Kim Liesl Judkins went through a ceremony of marriage. On 2 October 1997, the applicant made application for two visas. One was an Extended Eligibility (Temporary) (Class TK) visa (Subclass 820) ("a subclass 820 visa"). The other was a General (Residence) (Class AS) visa (Subclass 801) ("a subclass 801 visa"). The application was based on his marriage and his spouse was the nominator, as required by the Migration Regulations 1994 ("the Migration Regulations"). On 20 July 1998, the application for the visas was refused by the Department of Immigration and Multicultural Affairs. On 15 October 1998, that decision was affirmed by the Migration Internal Review Office. On 12 November 1998, the applicant lodged an application for review with the Immigration Review Tribunal. On 1 June 1999, amendments to the Migration Act came into operation. The Immigration Review Tribunal ceased to operate and the case was transferred automatically to the Tribunal.

4 On 2 March 2000, the Tribunal affirmed the decision to refuse the visas. The applicant applied to the Court for judicial review of that decision. On 25 July 2000, the Court made an order by consent, setting aside the decision of the Tribunal and remitting the matter to the Tribunal for further consideration according to law. The Tribunal conducted a further hearing. On 22 June 2001, the Tribunal published its decision and its reasons for decision. Again, it affirmed the decision to refuse to grant a visa to the applicant. In the present application to the Court, the applicant seeks judicial review of the decision of the Tribunal made on 22 June 2001.

5 It is normal for a person to apply in one application for both visas. A subclass 801 visa is a permanent visa. Item 801.221(2)(a) in Sch 2 to the Migration Regulations provides that a criterion to be satisfied at the time of a decision whether to grant a subclass 801 visa is that the applicant be the holder of a subclass 820 visa. A subclass 820 visa is a temporary visa. It is usual for a decision-maker to consider the application for a subclass 820 visa first, as the Tribunal did. Item 820.211 in Sch 2 to the Migration Regulations provides for criteria to be satisfied at the time of application for a subclass 820 visa. Relevantly for present purposes, item 820.211(2)(a)(i) requires that the applicant be the spouse of a person who is an Australian citizen. The word "spouse" is defined at length in reg 1.15A of the Migration Regulations. By subregulation (1A):

"Persons are in a married relationship if:

(a) they are married to each other under a marriage that is recognised as

valid for the purposes of the Act; and

(b) the Minister is satisfied that:

(i) they have a mutual commitment to a shared life as husband and

wife to the exclusion of all others; and

(ii) the relationship between them is genuine and continuing; and

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent basis."

6 Subregulation (3) provides for factors that must be considered in forming an opinion as to whether two persons are in a married relationship for the purposes of a subclass 820 visa. Those factors include such things as: joint ownership of real estate or other major assets; joint liabilities; the basis of sharing of day-to-day household expenses; the parties' living arrangements; whether they represent themselves to other people as being married; and the nature of their commitment to each other, including 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, and whether they see the relationship as a long-term one.

7 Item 820.221 in Sch 2 to the Migration Regulations contains criteria to be satisfied at the time of decision whether to grant a subclass 820 visa. Relevantly, under item 820.221(1)(a), one of those criteria is that the applicant continue to meet the requirements of the applicable subclause of item 820.211. In the present case, that meant that, at the time of decision, the applicant was required to continue to be the spouse of an Australian citizen. Under item 820.221(2) and (3), that requirement was relaxed if the nominating spouse had died, if the relationship between the applicant and the nominating spouse had ceased and the applicant had suffered domestic violence committed by the nominating spouse and, in some cases, where there was a child of the marriage.

8 In its reasons for decision, the Tribunal summarised the evidence before it. It is unnecessary for me to set out that summary. The Tribunal quoted the following passage from the judgment of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Federal Court of Australia, 8 May 1990, unreported) at [11] where the Full Court said:

"It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to a material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others."

9 The Tribunal also referred to Bretag v Immigration Review Tribunal (Federal Court of Australia, 29 November 1991, unreported) as authority for the proposition that the Tribunal may have regard to the subsequent history of a relationship for the purpose of testing or determining whether the relationship was genuine at a previous time.

10 The Tribunal made the following findings of fact:

* The applicant and the nominator had not lived together since approximately February 2001 and were divorced on 23 April 2001.

* The applicant had a girlfriend.

* There was no evidence that the applicant and the nominator were jointly sharing their assets.

* Because they were not living together, they did not present as a married couple.

* The nominator and the applicant did not demonstrate any commitment to each other.

11 The Tribunal then said:

"the Tribunal is not satisfied that at the time of decision the visa applicant and the nominator had a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship between them was genuine and continuing, and that they did not live separately and apart on a permanent basis. The Tribunal finds that the visa applicant is not the spouse of an Australian citizen and accordingly does not satisfy subclause 820.221(1)(a)."

12 The Tribunal then found that there was no evidence that the nominator had died, so that the applicant did not satisfy item 820.221(2). Although it found that the relationship between the applicant and the nominator was no longer continuing, the Tribunal found there was no claim or evidence that the applicant had suffered domestic violence and there was no child of the marriage, so that the applicant did not satisfy the requirement of item 820.221(3). In consequence, in the view of the Tribunal, the applicant was not entitled to a subclass 820 visa. Because he did not hold a subclass 820 visa, the Tribunal held that it followed that he was unable to satisfy the requirement of item 801.221. The Tribunal also noted that the applicant did not claim, nor was there any evidence, that he could meet the criteria for other subclasses within the General Residence (Class AS) class of visas. The Tribunal therefore found that the applicant did not meet the criteria for the grant of the visa sought in his application.

13 The application to this Court was filed on 13 July 2001. It was completed in handwriting. The applicant claimed to be aggrieved by the decision of the Tribunal because:

"I have done everything that was requested of me and somethings [sic] were misunderstood or perceived wrongly. Since then I have divorced my exwife [sic] this also played a big part in MRT dicision [sic]. I feel MRT also made dicisions [sic] based on only the negative events, in my exwife [sic] was lying to Immigration which was something I had no control over."

14 The grounds of the application were expressed as follows:

"The grounds that I am applying under, is [sic] I beleave [sic] MRT made dicision [sic] on information that was perceived wrong or untrue which I had no control over. I want to be judged on the truth."

15 The claims of the applicant were expressed as follows:

"The dicision [sic] was based on false information given by as a lior [sic] by Australia [sic]. I want this misconception of me cleared."

16 On 31 August 2001, I made an order by consent for the preparation of the matter for hearing. The order included directions requiring:

"1. The applicant to file and serve any amended application for an order

to review with proper particulars of the grounds relied upon by 28 September 2001;

...

3. The applicant to file and serve contentions of fact and law by 12

October 2001."

17 Pursuant to the Court's legal referral scheme, in O 80 of the Federal Court Rules, I also referred the applicant to a barrister for advice and the preparation of any amended document, if thought fit. The requirements of the order of 31 August 2001 were not complied with.

18 The applicant attended Court today and put submissions to the Court through an interpreter. He drew attention to the fact that he had not had legal representation before the Tribunal and was not able to put his case properly. He stated that his marriage was a genuine one. At each stage of the proceeding the same matters were put against him, he had to explain and repeat his position but that no decision-maker seemed to understand or accept him. He said that he had a joint bank account with his wife. He misread his home phone number because he was anxious and nervous and most often used his own mobile. He said that he was in a bad situation because his marriage had failed and he felt the Tribunal had taken advantage of this.

19 I drew the applicant's attention to the limited nature of the grounds for judicial review in s 476 of the Migration Act. I invited the interpreter, through whom the applicant was making submissions, to translate the whole of s 476 to him while the Court was adjourned for that purpose. On his return from that, the applicant made reference to the ground specified in s 476(1)(d) of the Migration Act, that the decision was an improper exercise of the power conferred by the Migration Act or the Migration Regulations, as limited by subs (3)(c) to a reference to:

"an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case".

The applicant submitted that the Tribunal had made its decision without evaluating the merits of the case as it should have. He said that evidence had not been taken into consideration as it should have been. He raised again, as examples, the questions of the joint bank account and the phone number.

20 It appears that in the first decision of the Tribunal, which was set aside by consent by order of the Court on 25 July 2000, the Tribunal had made a number of findings of fact adverse to the applicant. The Tribunal had then found that the applicant and the nominator did not have a joint bank account. It also found that the marriage between the applicant and the nominator was not a genuine marriage from the outset. The applicant is understandably upset about these findings. He regards his credibility and his standing as a person as having been affected by them. It is necessary to understand, however, that the Court is presently dealing with the second decision of the Tribunal. In that decision, the Tribunal did not make any adverse finding as to the genuineness of the applicant's marriage at the outset. It was not concerned with the question of the joint bank account nor with whether the applicant had been able to recite his home phone number correctly.

21 In its reasons for the decision currently under review, the Tribunal perhaps did not express itself well by using the past tense in the passages I have quoted. Nevertheless, it is clear that the Tribunal was limiting its finding to a finding that, at the time of its decision, the applicant and the nominator no longer had a mutual commitment to a shared life of husband and wife to the exclusion of all others. In his submissions to the Court, the applicant conceded that his marriage had failed by that time.

22 An examination of s 476 of the Migration Act makes it clear that judicial review is not another opportunity for a hearing on the merits. It is apparent that questions of fact are a matter for the Tribunal. The application filed on 13 July 2001 raised no ground specified in s 476(1). The only such ground raised by the applicant in argument was the ground specified in s 476(1)(d). The applicant was unable to make out that ground as confined by subs (3)(c), because he was unable to point to any rule or policy in accordance with which the Tribunal could be said to have been exercising its discretionary power without regard to the merits of the case. Despite my own careful examination of the reasons for decision of the Tribunal, I have been unable to detect any error by the Tribunal that would have brought the case within any of the grounds specified in s 476.

23 The applicant lost his case in the Tribunal on its finding of fact that his marriage to the nominator was no longer continuing. It would not be possible for the Court to overturn that finding of fact. In any event, its correctness was acknowledged by the applicant. I have sympathy for the applicant's position; as he points out, if the first decision of the Tribunal had been correct, it may have granted him a visa on the basis that, at that time, his marriage was continuing. Sadly for him, events moved on and his marriage had deteriorated by the time of the second tribunal hearing. In the circumstances, it is not possible for the Court to overturn the decision of the Tribunal. The application for judicial review must be dismissed.

24 The orders of the Court, then, will be:

1. The application be dismissed.

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

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 6 June 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	P R D Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2002
Date of Judgment:	30 April 2002