Mina, T.G. v Minister for Immigration & Ethnic Affairs

[1986] FCA 486

Re: TAREK GERGIS AWADALLS SAAD MINA
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G343 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Woodward J.
Fisher J.

CATCHWORDS

Administrative Law - judicial review - Minister's discretion to grant resident status - grant of resident status covered by Grant of Resident Status Handbook - whether Minister entitled to rely on criterion from Migrants Entry Handbook in refusing resident status - effect of policy guidelines on administrative discretion.

Administrative Decisions (Judicial Review) Act 1977, s.5

HEARING

SYDNEY

#DATE 22:10:1986

Counsel for the Applicant: Mr B Purves

Solicitors for the Applicant: Messrs John Bettens & Co

Counsel for the Respondent: Mr R B Wilson

Solicitors for the Respondent: Australian Government Solicitor

JUDGE1

This is an appeal from a decision of Beaumont J. given in an application under the Administrative Decisions (Judicial Review) Act 1977. The applicant (the appellant before us) had sought review of a decision of the respondent Minister refusing to grant him what is commonly called resident status. The facts are not in dispute and are set out in his Honour's reasons for judgment. It is unnecessary to repeat them.

1. The appeal is based essentially on the fact that in the statement of the Minister given pursuant to s.13 of the Judicial Review Act he used language found in the Migrants Entry Handbook, a handbook or policy statement relating to persons who are migrating to Australia or are seeking a permit to do so. The applicant was, in fact, in Australia, and married to an Australian at the time he applied for his permanent resident permit. The Department publishes a separate handbook, the Grant of Residence Status handbook, which relates to the situation of such a person.

2. The applicant married four days after entering Australia on a visitor's permit. There is no suggestion that the marriage was not genuine. It has been accepted that the parties then intended to live together as husband and wife. The text from the Handbook used by the Minister, to which I have referred, was as follows:
   
   

"the parties genuinely intend to continue living as a married couple".

This appeared in the Migrants Entry Handbook, but not in the Grant of Resident Status Handbook, which refers to the genuineness of marriage and deals with that in slightly different terms. It is submitted that the former language, used by the Minister in his statement, imposes a more severe test.

1. The appellant and his wife separated some five months after marriage, before the determination now in question was made. The appellant was at that time a prohibited immigrant, his permit having expired.

2. It may be doubted whether the facts which form the basis of the argument are accurately stated. The Minister had before him a statement prepared within the Department for the Immigration Review Panel in relation to the present case and that statement used the same language as the Minister did later.

3. It is difficult to argue that there was error which would lead to the decision being upset and the matter remitted. Policy statements do not, of course, necessarily govern how a decision should be made, and it is difficult to see that the consideration mentioned was not one which the Minister was entitled to take into account. He knew that there had been a marriage, and he was looking at its continuance. It was plain on the evidence that there was no chance of reconciliation. The fact was that neither set of guidelines applied exactly to the situation before him and he used language he thought appropriate to the situation.

4. In my view the appeal should be dismissed.

JUDGE2

In this matter I agree with the order proposed by the learned presiding judge and with his reasons for that order. I merely wish to add a few words of my own. The first point that strikes me about this case is that neither set of guidelines to which our attention has been directed, namely those in the Grant of Resident Status Handbook or in the Migrant Entry Handbook, adequately sets out the approach to be adopted by the decision maker to a short-lived but genuine marriage. I think that is unfortunate.

1. It is true that, in the case of the Migrant Entry Handbook, paragraph 5.2.22 makes a relevant statement which the Minister adopted; but it does so in the context of marriages of convenience, which is not this case. It appears from the Departmental statement to which the the presiding judge has referred, that the two sets of guidelines have been treated together by the Department for present purposes. This is, in my view, a sensible approach for the reasons given in the Departmental statement, namely, that applicants for resident status should at least meet the requirements which would apply to them as migrant entry applicants overseas. Certainly the treating of these two sets of guidelines together for the present purpose was an approach which was well within the Minister's discretion.

2. It seems clear that he did, in fact, adopt the underlying thrust of this Departmental statement which was before him when he made his decision. At the worst it seems to me the Minister has taken a sentence from the Migrant Entry Handbook, without express acknowledgment, and used it to deal with a matter not covered in the Grant of Residence Status Handbook.

3. In my view he was fully entitled to do so. I think that is what his Honour Mr. Justice Beaumont had in mind when he said - towards the end of his judgment - that it seems that the respondent regarded the case not as a marriage of convenience but rather as analogous to a marriage of convenience situation.

4. Finally, I make the point that the Minister's discretion in any event cannot be fettered by the guidelines. In the final analysis, he has properly applied an entirely reasonable principle of his choosing to the facts of the present case. That principle is consistent with the published guidelines and I can see no error in what the Minister has done. For those reasons I agree that the appeal should be dismissed.

JUDGE3

I also agree that the appeal should be dismissed.