Cardakaris, N. v The Minister for Immigration & Ethnic Affairs

[1985] FCA 261

IN THE FEDEFAL COLPT OF ATlSTFiALIA i

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SOTJTH	h1ALES	D I S T R I C T	R E G I S T R Y	)
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D I V I S I O N	S E N E R A L	i
NICHOLAS CP-RDAKAFIS and
TOTJLA CARDAKARIS

Applicant,

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TKE MINISTEP. FOR IMMIGRATION &

ETf-lNIC AFFAIRS

Respondent

M I N U T E OF ORDER

JTUDGE :	FOX J .
DATE OF ORDER:	11 JUNE 1985
W E R E MADE :	Sydney.

THE COTJRT ORIIEXS THAT:

1. The application be dismlssed.

Note:

Settlement and entry n f orders 1 s dealt with in

Order 36 of the Federal Court Rules.

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GENERAL	n 1 V I S I O N	\
NICHOLAS CARDAK-ARTS and
TOULA CARDAKFXIS
THE MINISTER FOF IMMIC-FATION &
ETHNIC RFFAIFS

aespondent

rORAM: FOX J.

DATE: __ l1 JUNE 1985

PEASONS FOR JUDGMENT

FOX J.

The t w o applicants, husband and wife, seek revlew under

the Administrative Declsions (Judicial R e n e w ) Act 1977 of a

decislon of the delecrate of the respondent to deport the male

applicant as a prohlbited non-citizen.

Mr. Cardakaris is a 24 vear old Creek who arrlved in

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Austral13 in Januarv 19fi4. He was then a seaman, but he deserted the vessel at Albany and travelled to Svdney, where four of hxs hrothers and one slster were living. His parents. twc sisters

31.3 one brother llve in Greece.

The female applicant is an Australian cltizen, who

married the male appllcank on 4 Map 1985. She joins in the

application as heinu a person aqurleved	bp the decislnn of	the
respondent.

A deportatlon order relating to the male applicant was

siqned on 13 September 1984. The case was re-considered after the marriaqe, and the receipt of further evldence. The oricrinal order was revoked on 15 Map 19P5 , and a fresh deportation nrder was

signed on the same day. Tie oricrinal application to thxs Court,

was filed on 14 May. but an amended applicatlon was flled on 73

May, and the decision in question is that of 15 May. The amended

application cites the decision to hold the male applicant in

mstody, and prior conduct as also beinq under challenqe, but

separate arqument has not been addressed to these matters, and It

is sufflcient to examine the challenue to the declsion to issue

the deportation order.

The male applicant stayed with one of his brothers in’

Sydney, and was enqaued In unskilled employment for one of his brothers, and obtained other employment throuqh another brother.

In September 1984 he met his wlfe, the female appllcant. who

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works as a doctor’s receptlonist. The evidence is that they formed a friendship. and that marriage was dlscussed, although the sppllcants’ accounts of this differ sliuhtlp. A Notice of Intention to Xarry was lodqad at the Reui-stry of Elrths Eeaths and Marriaqes on 3 Aprll 1985, which stated that the marrlacre was to take place on 25 Map 1985. The female applicant states that she was aware from the commencement of their relationship that her husband wac a prohiblted non-citlzen.

On 2 May 1985 the male applicant was arrested under the deportation order of 13 September 1984. He has been detained at

the Villawood Detentlon Centre since 2 May. On 4 May the

applicants were married in the Detention Centre by a civll

celebrant. Thereafter, an unsuccessful appllcation was made on behalf of the applicants to the Department of Immlsratlon for the

release of the male applicant from custody.

The applicants orismally applied for reasons from the

delegate under s.13 of the Act. In lieu of reasons and to

facilitate the early hearlng of the appllcation. the Department has provided the applicants with a copy of the file concernincr the male applicant. whlch contains %he submission CO the

dele&&e, and was before the delegate at the tlme the decision to

deport was made. This file 1s in evidence before me.

The applicants contend that the delegate took into

account irrelevant considerations, and 4id not take into account

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relevart conslderatlons In reachinu his decision.

To support this contentlon, the applicants sap that the deleqate did not consider the n-enulneness of the relationship

Setween the appllcants. and evldence of the hardzkip that would

result to the female applicant and nther members of Mr.

rardakaris' family If he were to be deported. It is also said

that the seneral circumstances of the appllcants. and their

prospects of a successful life in Australia. should	have been
considered.

Counsel for the applicants submits that there 1 s a

"flavour of scepticlsm as to the nature of the marriage" in the

submisslon to the deleqate. I do not myself detect this flavour

of scepticism but if there 1s any it is very minor, and does not, neaate acceptance of the basic facts. as they were stated hy the applicants.

The submission expressly refers to the marriaae, stating

that:

"You may accept hat here are some fundamental discrepancies in the statements of Mr Kardakaris Csic7 and MS Dassos cclncerninq their relationship and that, in view of the nature and speed of the developments in the case since Mr Kardakaris' apprehension, it appears that his marriaqe could have been hastened by clrcumstances. Nevertheless, I am of the view that there 1 s insufflcient evldence to cast serious doubt upon the genuineness of the couple's relationship and marriage."

A similar opinion appears In an endorsement on a report

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of the Micri-ant Entry Branch, which was annexed to the submission.

The qfficer of the Migrant Entry Branch had described the

mztrriase as a "marriaue nf convenience".	The endorsement 1 s as
fo l lows :

"The fact that the marriaue appears to have be?n 'hastened' by the serles of events, does not necessarily

brinq into question Its uenuineness - the Intention

seems to have been there for some time - and parents'

objections are relevant to our consideration."

It is not in any event the functim of thls Court to

undertake an eraminatlon of the weiaht that was uiven to various

matters. Findinus relatlng to the personal circumstances of the

applicants are a matter for the relevant declsion maker. In fact

the evidence is t o the effect that the marriaue	Gas ronsidered by
Departmental nfflcers to be aenuine.

In relation to hardshlp, It 1 s submitted that the

deleqate should have taken Into account the f a c t that it would be necessary for husband and wife to separate, at least for a period o f months. Also, the female applicant was no lonuer on amicable terms with her parents, who had opposed the marrlaqe, and she

could nnt continue to live at their home. Her father died the

day after the marriaqe took place. It was submitted that these

were relevant	matters which had not been considered. The
deleuate, it	1 s said, should have had inquiries made to satisfy

himself as to the hardshlp (to use a shorthand term) which would

occur to both applicants, and their families, if the male applicant were fieported. Aaain. I think this submission must

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fail. Before the decision-maker were roples of affidavits sworn by the applicants. which are also evidence in these proceedlngs, as well as records of interviews with the applicants, and the submiss~on Itself referred tn the death of the wife’s father. It seems tn me that there is nothina to indicate That these matters

were not taken Into account. It is true that In the submlsslon

to the delegate, the writer refers only to the hardshlp to be

suffered by the applicant, and not to the positlon of the vlfe, hut that 1 s not. in mv opinlon, sufficient t o found an inference

that the matter was not consldered bp the delegate. The materlal

before the deleuate is before me, and it cannot be inferred that

the deleqate was not aware of the matters raised bv the spplicants (see Kioa v. Minister for Immiqration and Ethnic Affairs, (1984)- 55 A . L . R . 669 at pp. 677, 8 ) . I should add that failure to take Into account some matters regarded as relevant is not of itself an invalidating circumstance. The Court has gften pointed out that invalidity of a decision can only flow from failure to take into account some essential aspect of the case (Sean Investments Ptv. Ltd. v. MacKellar (1981) 38 A . L . R . 3 6 3 ;

Akpan v. Minister for Immiuratlon and Ethnic Affairs ( 1 9 9 2 1 58

F . L . R . 4 7 : Minlster for Immiqration and Ethnic Affalrs 7 7 . Taqle

(1983) 48 A . L . R . 566)

A further matter that was put by the applicants is that the deleqate failed to take into account the eliuibilitp of the

male applicant for the qrant of a temporary entry permit under

s.€.A(l)(b) of the Miuration P.ct 1 9 5 8 . that is. because he was

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then married t o an Australian citizen. Various attempts were made to chronlcle the difficulties whlch the applicants facer! in attempting to place a formal applicatlon before the deleuate, but I do not think that the exridence zhows that the applicants'

position under s.bA(l!(b) was not ccnaidered. Indeed, the report

of the Miurant Entry Branch, to whlch I have referred. was requested for the purpose of considermu the first applicant's eligibility for permanent resident status.

It was contended also that there was a failure to take

into account the first applicant's eliuibllity under s.6A(l)(b)

because of a rule of policy as to the Department's approach t o prohiblted non-citizens forminq attachments with Australian citizens and "queue-jumping" leqitlmate applicants who map have to wait a substantial period of time before acquirlnq resident status. The policy takes into account the fact that they, or

their families, or both, map in the meantime be sufferina

hardship. The fact that- the male applicant was a seaman deserter who had entered the country illegally was also a matter relatinu to the clrcumstances of the firct applicant that the deleuate was entitled to take Into account, and a matter to which the policy related.

It was put that there were no qrounds, apart from that

policy, to deny the applicant a temporary entry permit, but I do

not think that It can be said that there was evidence of any such

policy concerning prohlbited non-citizens being applied to the

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applicant without regard to partlcular factors relevant to his personal situation. The materials would disclose to the deleqate the eligibility of the applicant under s.GA(l)(b). Clearly, yolicy 1s a relevant matter to be considered, and it 1s one factor. amonq others, whlch the declsion maker has a duty to consider. The pollcy relevant here ic plalnly designed, in part at least, for the protection of other potential Immlq-ants. The

weiqht to be given to that pollcy by the decislon maker 1 s a

lfi3.ftFY fZL- k1n1 t lrL- her , and the Court will not interfere unless it

can be shown that policy must have been applied reuardless cf any clrcumstances In favour of the appllcant. That 1 s not the situation here.

Finally, it should be emphasised, unless there be any misunderstanding, that the decision 1 s one for the delegate. It is he who has the responsiblity of examinlng the merlts of the case and determining what should be done. This Court only has jurisdlrtioq to interfere where, to put the matter generally, questions of law arise. It does not have iurisdiction to renew the merits of the case.