Meggs, L. v Minister for Immigration & Ethnic Affairs

[1986] FCA 413

Re: LISA MEGGS
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G61 OF 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Jackson J.

CATCHWORDS

Administrative Law - application for permanent resident status - marriage to Australian citizen - no cohabitation - application refused - application for order of review - whether error of law - marriage legally valid but entered into solely for the purpose of securing resident status in Australia - other factors relevant to s.6A(1)(b) not considered - undue limitation of factors taken into account.

Administrative Decisions (Judicial Review) Act 1977 ss.5, 13.

Marriage Act 1961 ss.23, 46.

Migration Act 1958 s.6A.

Hyde v. Hyde (1866) LR 2 P&D 130.

Reg. v. Cahill (1978) 2 NSWLR 453.

Minister for Aboriginal Affairs v. Peko-Wallsend Limited and Others (H.C. 31st July 1986 unreported).

HEARING

SYDNEY

#DATE 18:9:1986

Counsel for the applicant: Miss C.C. Simpson with Mr D. Bertin (17 September only)

Solicitors for the applicant: Charles Goldberg & Co.

Counsel for the respondent: Mr C.J. Stevens

Solicitors for the respondent: Australian Government Solicitor

ORDER

The decisions of the authorized officer of 4th December 1985 and 10th February 1986 be quashed.

The applicant's application under s.6A of the Migration Act 1958 be referred to the authorized officer for reconsideration according to law.

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

JUDGE1

The applicant is an Indonesian national who was born in Semarang, Central Java, in 1956. She and members of her family are of the Chinese race. She first entered Australia on 25th January 1975 as a private student pursuant to a temporary entry permit issued on 23rd January 1975, the permit being for an initial stay of 12 months. Subsequent temporary entry permits were granted, with occasional lapses, up to 30th October 1981. On 21st October 1980, the applicant, who had first enquired of the respondent about permanent residence in Australia on 17th September 1980, married one Ian Charles Meggs in Melbourne for, as she deposed in an affidavit in the proceedings, "the purpose of securing resident status in Australia". Meggs was paid $2,500.00 for his participation in the ceremony and the two did not intend to and did not subsequently in fact cohabit.

1. On 23rd October 1980 the applicant lodged an application for permanent resident status, i.e. an application for an entry permit under s.6A of the Migration Act 1958, and in respect of that application she was interviewed by officers of the respondent on 4th December 1980 and 30th April 1981. At those interviews she represented that her marriage to Meggs was subsisting in the sense that she and Meggs had lived and were continuing to live as husband and wife. Between 1981 and May 1984 the applicant took no steps to enlighten the Department as to the true nature of her relationship with Meggs and on the other hand no decision was made on her application in that period. She made no further applications to renew her temporary entry permit but made a number of telephone enquiries of the respondent's officers as to the progress of her application for permanent resident status and was told not to worry. At the time when these enquiries were made, however, they were made to desk officers at the Department and, as I have said earlier, the applicant made no attempt to disabuse the Department of its view as to the relationship which she had with Meggs.

2. It was not until 8th June 1984 that the applicant indicated to officers of the Department the true circumstances as to the marriage.

3. The application was then refused by letter dated 13th May 1985 and requests for reconsideration of it were refused on 4th December 1985 and 10th February 1986.

4. The present application is for an order of review of those decisions under the Administrative Decisions (Judicial Review) Act 1977. Various grounds were argued in support of the application but I shall turn first to the question whether there was an error of law involved in the making of the decisions.

5. The power to grant an entry permit is conferred by ss.6A(2) and 6A(3)of the Migration Act, and it is the latter provision which is relevant in this case. It is as follows:-
   
   

"(3) Subject to sub-section (2), an entry permit shall not be granted to a non-citizen after his entry into Australia otherwise than by -

(a) the Minister; or

(b) an officer authorized by the Minister, by instrument in writing, to be an authorized officer for the purposes of this section."

S.6A(1) imposes restrictions upon the exercise of the power by providing insofar as presently relevant that:-

"(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

1. The approach taken by the authorized officer, as set out in his statement of reasons pursuant to s.13 of the Administrative Decisions (Judicial Review) Act was that he decided that the applicant did not fulfil any condition of s.6A(1) other than s.6A(1)(b). He then went on to note, correctly, that on the admissions made by both parties to the marriage the marriage had broken down and he noted that Government policy required the marriage to be bona fide and ongoing.

2. The authorized officer, it seems to me, was correct in taking the view - implicit in the reasons to which I have just referred - that the requirement of s.6A(1)(b) that the applicant be a spouse of an Australian citizen was satisfied.

3. In this regard it is true that the applicant's marriage to Meggs was hardly entered into with the spirit contemplated by s.46(1) of the Marriage Act 1961 which, reflecting the observations of Lord Penzance (as he later became) in Hyde v. Hyde (1866) LR 2 P&D 130 at 133, states that marriage:-
   
   

".. according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."

1. Such a marriage, however, is not declared to be void by s.23(1) of the Marriage Act, and in my view should be treated as legally valid. It seems right in the present case to draw the inference that, to use the words of Street C.J. in Reg. v. Cahill (1978) 2 NSWLR 453 at 455, it was the purpose of the parties to the marriage that the applicant should "in truth and substance, as well as in legal form, acquire the status of a spouse of an Australian citizen".

2. It was thus, as I have said, correct for the authorized officer to proceed on the basis that the applicant was a person to whom an entry permit might be granted. S.6A, however, does not make it compulsory for an entry permit to be granted to a person who satisfies a requirement of one of the sub-paragraphs of s.6A(1), and one of the factors which may be taken into account is the reality, as a practical matter, of the marriage. In particular, the authorized officer is entitled to take into account, for example, whether the marriage was entered into with a view to the parties living as husband and wife.

3. There is thus no reason why "government policy", assuming that it is not applied to cases without consideration of the merits of so doing, might not require a marriage to be "bona fide and ongoing".

4. In those circumstances the authorized officer might have taken the view that taking into account the other circumstances of the case, such as her long period of residence in Australia, and the difficulties which she might face if she went back to Indonesia, the case was yet one where an entry permit should not be granted.

5. The course taken by the authorized officer in the present case, however, was different. It was that after noting that the marriage had broken down and that government policy required the marriage to be bona fide and ongoing, he then went on immediately, as the statement of reasons shows, to say:-
   
   

"15 However, I accepted that it was possible to grant a temporary entry permit to the Applicant to allow consideration of an application for the grant of a permanent entry permit on the basis that the conditions of section 6A(1)(e) of the Act are fulfilled. Accordingly, I considered whether there were strong humanitarian or compassionate grounds for the grant of a permanent entry permit to her."

1. I should add that paragraph 16 of the authorized officer's affidavit suggests, without elaboration, that the authorized officer, before moving to a consideration of s.6A(1)(e), considered in relation to s.6A(1)(b) whether the policy should be applied. His oral evidence on the point was somewhat conflicting and involved, it seems to me, the application of some hindsight in suggesting that he adopted that course. I am satisfied, having seen and heard his evidence, that the approach in fact taken by him was as he stated in his statement of reasons, namely that he accepted that the marriage was valid, regarded the policy as being thus applicable, treated the particular case as not falling within the policy, and then moved immediately to a consideration of the application of s.6A(1)(e).

2. The adoption of that course meant that in considering whether the case was one to which, if a temporary entry permit were granted, s.6A(1)(e) would apply, the authorized officer was necessarily directing his attention to the question whether there were strong compassionate or humanitarian grounds to the grant of an entry permit to the applicant, and did not direct his attention to the question whether there were other factors which, though not amounting to strong compassionate or humanitarian grounds in terms of s.6A(1)(e), were yet factors relevant to be taken into account in relation to s.6A(1)(b).

3. I am conscious, of course, that s.6A(3) does not enumerate the factors to be taken into account but I think it is clear that, taking into account the "subject matter, scope and purpose of" s.6A in its context in the Act (see per Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Limited and others 31st July 1986, unreported at p 13), there were factors in the present case which might not have amounted to strong compassionate or humanitarian grounds, but which it was appropriate for the authorized officer to consider, the weight to be given to them being a matter for him.

4. Such matters included, but were not limited to, the length of time during which the applicant had in fact resided in Australia, and her situation if she returned to Indonesia.

5. The approach taken by the authorized officer unduly limited the matters to be considered by him, and in my view involved an error of law.

6. In these circumstances the two decisions to which I have referred should be quashed on this ground and referred to the authorized officer for re-consideration in the light of the observations which I have made.

7. It is unnecessary in the circumstances to deal with the other grounds on which reliance was placed by the applicant.

8. I order:-
   
   

1. That the decisions of 4th December 1985 and 10th February 1986 be quashed.

2. That the applicant's application under s.6A be referred to the authorized officer for reconsideration according to law.