Fardsavar, M. v Minister for Immigration & Ethnic Affairs

Re: MAJID FARDSAVAR
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G18 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA
DISTRICT REGISTRY
GENERAL DIVISION
Forster J.

CATCHWORDS

Administrative Law - Judicial review - Immigration - Refusal to grant resident status to prohibited non-citizen notwithstanding marriage to Australian citizen - marriage not genuine and ongoing - decision to deport - refusal to grant refugee status.

Administrative Decisions (Judicial Review) Act 1977

Migration Act

Minister for Immigration and Ethnic Affairs v. Mayer (1985) 59 ALJR 824.

HEARING

PERTH

#DATE 10:10:1986

ORDER

The applications be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

The applicant sought a review under the Administrative Decisions (Judicial Review) Act of each of three separate decisions of the respondent:

A. That the applicant be deported pursuant to order of 20

February 1986 effective immediately.

B. That the applicant not be granted permanent residence on

refugee status.

C. That the applicant not be granted permanent resident

status despite his marriage to an Australian citizen.

These three decisions impinge upon each other because of course if decision C. had been to the opposite effect decision A. could not have been made. Nevertheless the applicant is clearly a "person aggrieved" by each of the decisions even if the first necessarily includes the third.
The appellant who is an Iranian travelled to Australia from the United States on 25 June 1985 on an Iranian passport issued in Canada endorsed with a visa authorising him to visit Australia. On arrival in Melbourne he was granted a Temporary Entry Permit for two months. On 23 August 1985 he was granted a further Temporary Entry Permit valid until 17 November 1985. He has made no further application and thus became a prohibited non-citizen on the expiry of his Temporary Entry Permit. On 18 September 1985 the applicant married in Perth Vida Behjat-Mohammadi an Australian citizen of Iranian origin. On 15 October 1985 the applicant lodged with the Department of Immigration and Ethnic Affairs (the Department) a resident status enquiry form. Forms for an application for permanent resident status were sent to the applicant on 21 October 1985. These forms had not been lodged by the applicant with the Department by 21 January 1986 and an officer of the Department made contact with him on that day and the applicant said he had not lodged the form because he lacked the means to pay the necessary fees. A form of application for resident status together with fees was never received by the Department. The applicant was interviewed by a Mr O'Rourke a Departmental officer on 28 January 1986. A summary of the applicant's position and facts known to the Department concerning him and recommending his deportation dated 20 February 1986 was forwarded to the delegate of the respondent. The recommendation to deport was approved on the same day and the applicant was arrested on 21 February 1986.
On 24 February 1986 the applicant lodged an application for refugee status. On 18 April 1986 the Determination of Refugee Status Committee unanimously recommended against the grant of refugee status to the applicant and on 29 April 1986 the delegate of the respondent accepted the recommendation of the Determination of Refugee Status Committee and determined that the applicant should not be recognised as a refugee and given status as such. Detailed reasons for this decision dated 20 February 1986 not to grant permanent status to the applicant and to deport him and of the decision dated 29 April 1986 not to grant the applicant refugee status have been given. The present application was taken out on 25 February 1986 on which day the respondent undertook that no step would be taken to deport the applicant until a reasonable time after the application for refugee status had been determined. Although no further formal undertaking appears to have been given, the applicant has not been deported. I completed hearing this matter on 2 October and on 3 October made an order dismissing all three applications and ordered that no step be taken to deport the applicant until seven days after written reasons were published.
In his application for review the applicant sets out many and varied purported grounds grouped under one or other of the grounds set out in s.5 of the Administrative Decisions (Judicial Review) Act. Some of the stated grounds do not fall within the sub-section under which they are listed and many are not grounds at all and there is considerable overlapping. I should also say that the draftsman of the application and the affidavits in support appears to be confused as to the distinction between a matter of law and a matter of fact and to be uncertain of the purpose of an application for review under the Administrative Decisions (Judicial Review) Act. Large parts of the affidavits in support were ordered by me to be struck out on the application of the respondent because facts were deposed to which went to the objective merits of the decision complained of and had no relevance to any of the questions of law which were or could have been raised. Doing the best I can I have distilled from the application which had been amended a number of times the last time being after the hearing had proceeded for one day such grounds as appear to me to be arguable and have disregarded the rest.
I deal first with the decision to deport the applicant which includes the decision not to grant permanent residency status because of the marriage of the applicant. Although as I have said no formal application for permanent residency had been lodged prior to the deportation order being made, the Department and the delegate of the respondent in his reasons dealt with the matter as if such an application had been made.
As a matter of convenience I deal with the question of the applicant's marriage first because at one stage of the hearing it seemed to me at least possible if not probable that grounds for review existed with respect to the marriage. The wife of the applicant was interviewed by a Departmental officer and said that the applicant hurt her, that he made her have an abortion and that when she wanted to leave him he asked her to stay at least until he obtained permanent residency in Australia. She also said and later made a stsatutory declaration to this effect that "because of his behaviour to me I am now positive that he only married me to gain residency in Australia". None of these allegations of hers was ever put to the applicant so that he could answer it and it first seemed to me that this may amount to a denial of natural justice. If this alleged conduct of the applicant had formed any part of the basis for the decision of the delegate then I am inclined to think that the failure to put the allegations to the applicant would have been a reviewable error.
However this appears not to be the case. In paragraph 14 of his reasons for decision the delegate says the following -

"The Applicant is eligible for consideration of the grant of a permanent entry permit under paragraph

6A(1)(b) of the Act on the basis of his marriage to Ms Behjat-Mohammadi. Departmental policy as

stated in section 4.2 of the Grant of Resident

Status Handbook is that permanent resident status

should not be granted solely on the basis of a

marriage to an Australian resident or citizen where the marriage is not genuine or ongoing. The

Applicant's wife has stated that their relationship has ended and that there is no chance of a

relationship starting again. I therefore decided that any application for the grant of resident

status should not be approved."

The delegate here makes no reference to the genuineness or otherwise of the marriage and I have no reason to suppose that he based his decision on any consideration of lack of genuineness of the marriage but on this issue based himself on the fact that the marriage was not still subsisting. In my view on the basis of the wife's statement at interview and her statement in her statutory declaration that "there is definitely no chance whatsoever of my resuming a relationship with my husband" the delegate was quite entitled to come to the view that the marriage was not subsisting. If one party to a marriage says that it is at an end and the parties are physically separated as they were here the only reasonable conclusion is that the marriage is not subsisting. I add to that the fact that counsel for the applicant conceded that the applicant knew at some time before the order for his deportation was made that his marriage was at an end. It is pointed out also that s.6A(1)(b) of the Immigration Act simply provides that an entry permit may be granted to a non-citizen after his entry into Australia if he is the spouse of an Australian citizen.
It was argued by counsel for the applicant that this section meant that provided that an applicant was the spouse of an Australian citizen then it did not matter whether or not the marriage was subsisting in any real sense. He went on to assert that the Minister could not amend or vary the Migration Act by determining that before an entry permit would be granted to an applicant on the ground of marriage, the marriage must be "genuine and ongoing". This argument, I think, entirely mistakes the effect of s.6A and of the Minister's guidelines. Section 6A simply gives a discretion to grant an entry permit to the spouse of an Australian citizen. The Minister's Departmental policy says that this discretion should not be exercised unless the marriage is genuine and ongoing. I am quite unable to see any error in this policy, quite the reverse. I also think it likely that when s.6A(1)(b) refers to spouse it necessarily means genuine and ongoing spouse. I can see no reviewable error in the delegate's decision with respect to the applicant's marriage.
Apart from the question of his marriage the applicant complains that he was denied natural justice with respect to the making of the decision to deport because he was denied an opportunity to explain a statement he made in an interview that it was safe for him to return to Iran. He made this statement in a formal interview with a Departmental officer and it is suggested that someone from the Department should have questioned him further and in effect asked him if he really meant what he said. I am unable to accept this.
It is also complained that the applicant was denied an opportunity to explain his altered circumstances which rendered his visitor's undertaking not to seek permanent residency while in Australia as a visitor "inoperative". I am unable to understand this ground. The applicant undoubtedly broke his undertaking and explained at length to Departmental officers why he had done so. It is also said that the applicant was denied an opportunity to explain his delay and initial failure to lodge his change of status application. The reason however was that he did not have the money to pay the required fee and this was explained by him to Departmental officers. There is, in my view, nothing further to be explained on either of these two matters and no merit in this ground.
It is complained that in making the decision to deport the applicant the respondent took into account irrelevant considerations contrary to s.5(2)(a) of the Administrative Decisions (Judicial Review) Act. These considerations are particularised as - 1(i) the circumstances of the applicant's wife terminating her pregnancy on 24 January 1986, (ii) the applicant's statement on 28 January 1986 in support of a change of status application subsequent on marriage to an Australian citizen that he could return to Iran and, (iii) the circumstances of the marriage breakdown as related by Vida Fardsavar. It is sufficient to say that there is no evidence that the respondent or his delegate took into account (i) and (iii) and that the delegate plainly did take into account (ii) as he should have done.
It is next complained that in making the decision to deport the applicant the respondent exercised his power improperly in that he failed to take into account relevant considerations. Twelve matters are listed. Without setting these out one after the other it is sufficient to say that each is either not relevant or is not satisfactorily established as a fact or is something within the knowledge of the applicant which he has not attempted to put to Departmental officers when being interviewed.
It is next complained that the decision to deport was an improper exercise of power in that it was exercised on policy grounds without regard to the merits of the particular case. There are then listed six matters which it is said that the respondent or his delegate failed to take into account. The first is that the applicant was depressed and required medication and treatment not available in Iran. The fact is that the interviewing officer was made aware that the applicant had been on medication since December 1985 which could make him drowsy particularly in the morning. Despite the opportunity given at the end of the interview on 28 January 1986 the applicant put nothing further to the Department on this issue and can hardly now complain that something which he did not tell them was not taken into consideration. The second is that the applicant's two brothers in Melbourne could give him emotional and financial support which seems to me to be irrelevant. The third is that his marriage broke down because of the avarice of his wife which also even if true seems to me to be irrelevant as also does the fourth that the marriage was genuinely entered into by the applicant. The fifth is that the application for permanent residency was delayed initially due to lack of funds and finally frustrated by the wilful destruction of his application by his wife. The first fact of these was known to the Department. As I have earlier said, the applicant was treated for the purpose of dealing with his deportation as if an application for permanent residence had been made. The sixth matter is the probable detrimental consequences to the applicant should he be deported to Iran. This is answered by pointing out that until he was in custody awaiting deportation the applicant never raised the matter of possible problems for him if he should return to Iran. What is more there was his statement earlier that he had "done nothing in Iran that would prevent me from returning".
Finally it is said by an amendment made on the first day of the hearing that the decision to deport amounted to an error of law. Six matters were listed in particulars supplied. These are either not matters of law at all, for instance that the respondent failed to consider the applicant's application for permanent residency without the fee being paid, or else have been otherwise dealt with or both.
I come now to the complaint about the decision not to grant the applicant refugee status.
The applicant's complaints are put under five headings. First that in making the decision the respondent took into account irrelevant considerations, second that he failed to take into account relevant considerations, third that he made the decision for a purpose other than that for which the power was conferred, fourth that the decision was made at the behest of the applicant's wife and fifth that the decision involved an error of law. The particulars given under the third ground were somewhat wild and entirely unsupported by any evidence as also was the fourth ground. Counsel for the applicant very sensibly withdrew these grounds during the hearing.
It seems that a person may be a refugee "for the purposes of the 1951 Convention relating to the status of refugees or the 1967 Protocol relating to the status of refugees and therefore comes within the provisions of s.6A(1)(c) of the Migration Act if he or she has a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and being outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country" (see Minister for Immigration and Ethnic Affairs v. Mayer (1985) 59 A.L.J.R. 824).
The applicant claims that he is within this definition and the respondent claims that he is not.
The particulars given under the first ground are somewhat perplexing and some are entirely irrelevant to the applicant's refugee status or otherwise. The reference in paragraph (i) to the applicant's mother and her incapacity to support the applicant in Iran are irrelevant as are the references in paragraph (ii) to the applicant's wife's belief as to the applicant's motive for marrying.
Paragraph (iii) deals with a brother of the applicant who lives in Iran. The applicant mentioned this brother in the course of his interview for the purpose of his application to be recognised as a refugee and beyond saying that this brother had lost his job as a teacher in a private school he did not suggest to the interviewer that his brother was being persecuted for reasons of religion, social group or political opinion much less than he the applicant shared whatever disability his brother was said to have vis-a-vis the present government in Iran. In the reaons for decision of the respondent's delegate it is said that this brother "has apparently not been molested" which appears to be literally true. In any event this is hardly an irrelevant consideration which the respondent has taken into account. Regarding the pleading as if it said that the respondent had not taken the applicant's brother's situation in Iran into account well this is just not so. It was taken into account but it failed to convince the respondent. Paragraph (iv) complains that the respondent took into account that the applicant had great difficulties in leaving Iran. This can hardly have been meant to be alleged as an irrelevant consideration. Assuming that what was intended was an allegation that the respondent did not take into account as a relevant consideration that the applicant had great difficulties in fleeing Iran the answer is that this is a reasonable inference from the refugee interview and from the fact that the applicant left Iran holding a valid Iranian passport which after its loss in Canada was replaced by the Iranian Embassy in Ottawa.
Paragraph (v) deals with the statement in the reaons for decision that the applicant's "story at interview appeared to be confused and partly inconsistent". Perusal of the record of the interview indicates that this is an accurate comment and can hardly be said to be an irrelevant consideration.
There is no paragraph (vi). Paragraph (vii) refers to the assertion by the applicant that he resided in Canada for three years and not in the United States of America as mentioned by the respondent's delegate in his reasons for decision. This seems to me to be entirely irrelevant to whether or not the applicant now has "the well-founded fear" referred to above. Paragraph (viii) deals with the likelihood of the applicant being permitted to enter the U.S.A. as a refugee. This seems of doubtful relevance to the holding by the applicant of a "well-founded fear" and the opinion of the respondent's delegate that the applicant had a good chance of being able to return to the United States to live is based fairly on the answers of the applicant in the refugee interview.
I come now to the second ground that the respondent failed to take into account relevant considerations.

Paragraph (i) complains that the respondent received no advice from the Australian Embassy in Teheran as to the Iranian government's attitude to former sympathisers of the late Shah of Iran. The respondent's delegate took into account the applicant's connection with and support for the late Shah. I do not think he was obliged to obtain advice from the Embassy in Teheran.
Paragraph (ii) and (iii) dealing with the repressive nature of the Iran theocracy and the fact that the applicant is not a practising Moslem seem to me to be quite irrelevant. Paragraph (iv) deals with the alleged fact that thousands of former sympathisers of the late Shah have been summarily executed since the 1979 revolution. There is no evidence to support this allegation.
Paragraph (v) deals with the applicant's activity in the anti-revolutionary movement in the U.S.A. The answer to this is that this was specifically taken into account by the respondent.
Paragraph (vi) deals with the circumstances of the applicant's change of domicile in his passport in Canada in 1985 and appears to me to be irrelevant.
Paragraph (vii) deals with the applicant's alleged belief that he will be shot on his return to Iran corroborated by General K. Pasdar and the applicant's brothers Ali and Hamid. The answer to this is that this alleged belief was considered by the respondent's delegate and disbelieved.
Paragraph (viii) deals with the circumstances of the applicant becoming a prohibited non-citizen and is irrelevant.
Paragraph (ix) deals with the applicant's reunion with his brothers in Melbourne and is irrelevant.
Paragraph (x) deals with the Australian Government's obligations under the 1951 United Nations Convention on the Status of Refugees. These were taken into account.
Paragraph (xi) deals with the respondent's failure to obtain advice from the United States Embassy as to the applicant's prospects of repatriation to the U.S.A. and is irrelevant.
Paragraph (xii) deals with the publicity given to the applicant's case in the Western Australian press and seems to me to be irrelevant.
Paragraph (xiii) refers to the practical difficulties of the applicant being assessed for entry into the U.S.A. as a refugee and seems to me to be irrelevant.
Paragraph (xiv) added by amendment at trial deals with the submission of the applicant's solicitors dated 17 April 1986. The letter is addressed to the Determination of Refugee Status committee. It is not clear whether or not this committee received it. I was told from the Bar table that the letter was "faxed" by the Department of Immigration and Ethnic Affairs from Perth to Melbourne. It is complained that although it may have been before the Determination of Refugee Status committee there is no evidence from the reasons for decision that the letter was considered by the respondent's delegate. The matters in the letter relevant to the question of the applicant's refugee status are a paragraph dealing with his delay until four days after arrest as a prohibited non-citizen before applying for refugee status and an assertion on the applicant's behalf "that he strongly believes that he fears for his life if returned to Iran". The first matter was referred to in the reaons for decision given by the respondent's delegate and the second matter was specifically considered by him. In these circumstances if the solicitor's letter of 17 April were not considered by the respondent's delegate this is a matter of little or no weight.
As I have said grounds three and four under this heading were withdrawn so there remains the allegation of error of law. Six paragraphs of particulars of this ground were added at trial said to be relevant to the refusal to grant refugee status.
Paragraph (i) complains that the respondent "failed to appraise itself" of the brother's situation in Iran before concluding that he had apparently not been molested. As pleaded this is not an error of law and in any event the question of the non-molestation or otherwise of the applicant's brother in Iran has been otherwise dealt with.
Paragraph (ii) complains that "the respondent concluded contrary to the only evidence available namely that of the applicant that he had no difficulty in leaving Iran in 1979". The fact is that there was evidence mostly coming from the applicant himself which the respondent was entitled to believe that the applicant had no difficulty in leaving Iran in 1979.
Paragraph (iii) complains that the respondent failed to consider the applicant's evidence of the re-issue of his passport in Canada. This seems to me to be irrelevant to the question of his refugee status.
Paragraph (iv) complains that the respondent's decision wrongly concluded that the applicant's record of interview appeared confused and partly inconsistent. All that need be said about this is that as I have said before in my opinion a reading of the record of interview the applicant confirms the respondent's view there expressed.
Paragraph (v) complains that the respondent wrongly concluded without any facts that the applicant did not have a reasonable fear of serious danger on return to Iran. There was evidence upon which the respondent could so conclude and there is therefore in my opinion no error of law revealed. What the applicant submitted on this issue was considered along with other material and the delegate concluded as he did. There is no reviewable error.
Paragraph (vi) complains that the respondent wrongly concluded without any facts that the applicant had a good chance of being able to return to the United States. The answer to this is in part at least that the conclusion by the delegate was supported by the submission of the applicant's solicitor dated 17 April 1986 and also finds support in the statements of the applicant and is in any event in my opinion irrelevant to whether or not he should be granted refugee status.

[1986] FCA 451

10 OCTOBER 1986