Chendeb, Ahmad A v Minister for Immigration and Multicultural Affairs

[1996] FCA 938

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
NEW SOUTH WALES DISTRICT REGISTRY                 )          NG 829 of 1995
  )
GENERAL DIVISION  )

AHMAD A. CHENDEB

Applicant

MINISTER FOR   IMMIGRATION AND   MULTICULTURAL AFFAIRS

Respondent

Coram:           Whitlam J
Place:              Sydney

Date:31 October 1996

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 to review a decision of the Immigration Review Tribunal ("the Tribunal"). The applicant had applied to the Tribunal for review of the decision not to grant his wife, Ms Whide Elzaghir, a Class 100 (spouse) visa. The Tribunal affirmed that decision.

The relevant criteria for such a visa were prescribed by the Migration (1993) Regulations.  Those provisions had the effect of requiring in the instant case that, amongst other things, the decision-maker be satisfied that the marital relationship between Ms Elzaghir and the applicant was genuine and continuing.  The Tribunal was not so satisfied.

The grounds set out in the application allege what are described as errors of law.  The first such error is said to involve an incorrect interpretation of the definition of "spouse" in the Regulations.  This point is futile.  The Tribunal did, in fact, expressly find that Ms Elzaghir was the applicant's spouse.

The next error of law is stated this way: "The respondents made an error of law when they determined that the marriage is not genuine contrary to the decision made by the Overseas Post dated 12 January 1994 which recognised that the marriage is genuine and continuing but due to a technical exclusion period which was applicable then the applicant was invited to re-apply on 8 March 1994."  This hints at an estoppel argument.  However, there is no evidence that the material before the Tribunal included a copy of, or a reference to, any such "decision" on 12 January 1994.  The particulars furnished on behalf of the applicant by his migration agent suggest that there never was a decision which explicitly recognized that the marriage was genuine and continuing.  (The Tribunal did note that Ms Elzaghir's departure from Australia had been "facilitated" due to overstaying a visitor's visa.)  In any event, no such error of law is arguable on the evidence before the Court.

The other "error of law" identified in the application is, according to the particulars furnished, that "justice was denied to the applicant even though the ... requirements for a spouse visa were met".  No elaboration of this ground suggests it to be anything other than a challenge to the facts as found by the Tribunal.

Regrettably, this proceeding was irregularly commenced.  The application was signed by a migration agent, not by the applicant or a solicitor.  The applicant conducted his own
case with the assistance of an interpreter of the Arabic language.  He handed up written submissions in English which had been prepared by his migration agent.  Curiously this document seems to accept that the Tribunal correctly directed itself on what a Full Court of this Court described as the "true test" to determine whether a marriage is genuine.  However, it is submitted that the Tribunal "did not take account of the situation as it existed at the earlier date".  To the extent that this submission purports to identify an error of law, it cannot succeed because the criterion in question must be satisfied at the time of the Tribunal's decision. 

The balance of the submissions on behalf of the applicant concerned material allegedly contained in a file that was not before the Tribunal and further challenges to the Tribunal's findings of fact.  As to the first of these matters, the only indication of the course of proceedings before the Tribunal emerges from its reasons.  There is no other evidence before the Court.  No want of procedural fairness on the part of the Tribunal is alleged, and nothing in its reasons suggests any basis for such an allegation.  Rather it seems to be that the submissions as to the file's contents are an attempt to put additional material before the Court by way of argument to bolster the attack on the Tribunal's findings.  It is not, however, contended that there was an incorrect application of the law to the facts as found by the Tribunal.

It is quite unnecessary to canvass the material before the Tribunal.  It may be difficult for non-lawyers to understand the practical restraints on judicial review.  However, this Court is not permitted to turn a review of the Tribunal's reasons for decision into a reconsideration of the merits of that decision.  The proper role of the Court has yet again
been emphasized by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 70 ALJR 568 at 575.

The member constituting the Tribunal was improperly named as a respondent.  She will be removed as a party, and the application will be dismissed with costs.

I certify that this and the preceding 3 pages are a  true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date: 31 October 1996

The applicant appeared in person

Counsel for the respondent:           B.J. Preston

Solicitor for the respondent:           Australian Government Solicitor

Date of hearing:  26 June 1996

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
NEW SOUTH WALES DISTRICT REGISTRY                 )          NG 829 of 1995
  )
GENERAL DIVISION  )

AHMAD A. CHENDEB

Applicant

MINISTER FOR   IMMIGRATION AND   MULTICULTURAL AFFAIRS

Respondent

Coram:           Whitlam J
Place:              Sydney

Date:31 October 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The second respondent be removed as a party.

1. The application be dismissed with costs.

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