Mina, T.G.A.S v Minister for Immigration & Ethnic Affairs
[1986] FCA 314
•16 JULY 1986
Re: TARIK GERGIS AWADALLA SAAD MINA
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G29 of 1986
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION
Beaumont J.
CATCHWORDS
Administrative Law - Migration - application for entry permit under ss. 6 and 6A of Migration Act 1958 - whether wrong policy applied.
Kiao v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321
Minister for Industry and Commerce v. East West Trading Co. Pty. Ltd. (1986) 64 ALR 466
HEARING
SYDNEY
#DATE 16:7:1986
ORDER
Application dismissed.
Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the refusal by the respondent to grant him an entry permit pursuant to ss. 6 and 6A of the Migration Act 1958 (the Act).
The facts are not in dispute. The applicant, a citizen of Egypt, arrived in Australia on 20 May 1984. Upon his arrival, he was granted a temporary entry permit valid for a period of one month. On 24 May 1984, the applicant married Maria Boulos, an Australian citizen. On 8 June 1984, the applicant requested the grant of an entry permit pursuant to ss. 6 and 6A of the Act. By s. 6(5) an entry permit may be granted to a non-citizen, subject to s. 6A, after he has entered Australia. By s. 6A(1), so far as is material -
"(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 . . . of an Australian citizen . . . "
On 14 February 1985 the application for an entry permit was refused. On 7 August 1985, the Immigration Review Panel recommended that the respondent's decision be maintained.
According to the statement of reasons given pursuant to s. 13 of the Judicial Review Act, the applicant's wife first heard of the applicant through his uncle. After a period of correspondence, she invited him to come to Australia to marry her. However, after only several months of marriage, the parties separated.
In his reasons, the respondent said:
"22 I accepted that the Applicant was married to an Australian citizen and therefore eligible for consideration under paragraph 6A(1)(b) of the Act. However, I considered that there was no possibility of a reconciliation between the Applicant and his wife, and as a result that marriage does not meet the resident status policy requirement that the parties genuinely intend to continue living as a married couple in Australia. I concluded therefore that the Applicant's circumstances did not create grounds for setting aside the policy requirements governing applications for resident status based upon the satisfaction of the condition set out in paragraph 6A(1)(b) of the Act."
In challenging the approach taken by the respondent in this passage, the applicant points to two statements of policy issued on behalf of the respondent. First is an extract from Ch. 4 of the "Grant of Resident Status Handbook" -
"4.2 Spouses of Australian citizens or Australian residents
4.2.1 Applicants whose claim to resident status rests on a marital relationship with an Australian resident or citizen are to make statutory declarations in the form shown at Attachment 2. The sponsoring partner is to be asked to complete a similar declaration. Officers should ensure that the declarations are completed correctly and witnessed, as they may be used in prosecution action.
4.2.2 Marriages of convenience (i.e. marriages which are not genuine): If a marriage or de facto relationship has been entered into for the purpose of obtaining resident status, and with no intention of the relationship continuing, the application is to be refused unless there are other compelling circumstances justifying the grant of resident status. The decision of refusal must be confirmed by an authorised officer not below the level of Regional Director or Class 10."
Secondly, the applicant refers to the following extract from Ch. 5 of the "Migrant Entry Handbook" -
"5.2.21 Assessment of relationships (including marriages) as genuine: Ideally, the quality of a personal relationship should not be of concern in administering migration policy. Nevertheless, it is fact that marriages are entered into by some people for the sole purpose of gaining residence in Australia and circumventing the more stringent requirements applying in other categories. Parties to these marriages of convenience have no intention of
maintaining the relationship once they have arrived in Australia. Concern most often arises
where the relationship is of recent origin.
5.2.22 The basic test is whether the parties genuinely intend to continue living as a married couple in Australia.
5.2.23 In assessing the genuineness of a marriage attention needs to be given to cases where there has been a history of previous applications, attempts to circumvent immigration policy, indications of financial or other material gain from the marriage, evidence of collusion, or evidence that the marriage is solely one of convenience.
5.2.24 Final determination of a marriage as one of convenience is not to be taken below Class 10 level. Where so determined the application will be refused."
(It should be noted that although the parties to the proceedings referred in their documentation to the grant of "resident status", it is now accepted that such a status has no statutory foundation: it appears that, for historical reasons, the phrase "resident status" is intended to refer to the grant of an entry permit pursuant to ss. 6 and 6A of the Act. It is also accepted that nothing turns on this misnomer for present purposes).
It was submitted on behalf of the applicant that the respondent fell into error in applying in the present case the statement policy found in the "Migrant Entry Handbook". It was contended that the respondent should have applied what was said to be the less stringent test enunciated in the "Grant of Resident Status Handbook".
It is common ground that, even if one of the conditions specified in s. 6A(1) is satisfied, the respondent still has a discretion under s. 6(5) either to grant or to refuse to grant an entry permit (cf. Kiao v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 per Mason J at p 342) Clearly, the discretion is a broad one. It cannot be fettered by statements of policy or guidelines issued as to the manner in which the discretion will be issued in certain cases (cf. Minister for Industry and Commerce v. East West Trading Co. Pty. Ltd. (1986) 64 ALR 466 per Fox J at p 470)
In my opinion, the applicant has failed to establish that the respondent fell into any error susceptible of judicial review. Having concluded that there was no possibility of a reconciliation, it was clearly open to the respondent, in the exercise of his discretion, to decline to grant an entry permit.
The applicant sought to place much reliance upon the fact that in the expression of his reasoning process, the respondent referred to the "resident status policy requirement that the parties genuinely intend to continue living as a married couple in Australia". It was suggested on behalf of the applicant that the respondent had confused the present case with cases of marriages "of convenience".
There is some force in the argument. However, in my view, when para. 22 of the respondent's reasons is read as a whole, it seems that the respondent regarded the case not as a marriage "of convenience" but rather as analogous to that of a marriage "of convenience" situation.
In my opinion, it was open to the respondent so to regard the case. Given the width of the statutory discretion, it follows that no reviewable error occurred when he declined to grant an entry permit in such circumstances.
I propose to dismiss the application. Because of the lack of clarity in the expression of the respondent's reasons, I will hear argument on costs, if necessary.
I make the following orders:
1. Application dismissed.
2. Costs reserved.
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