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

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 237 of 2003

BETWEEN: DZEVRIJE LUMANOVSKA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 2 OCTOBER 2003

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 237 of 2003

BETWEEN: DZEVRIJE LUMANOVSKA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 2 OCTOBER 2003

PLACE: MELBOURNE

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: