Nessim, Alfred v Minister for Immigration & Ethnic Affairs

CATCHWORDS

ADMINISTRATIVE LAW - Migration Act - validity of decision to refuse the grant of resident status - whether irrelevant considerations taken into account - whether relevant considerations not taken into account - whether making of decision an improper exercise of power - error of law - otherwise contrary to law.

Administrative Decisions (Judicial Review) Act 1977:	S .	5.
Migration Act 1958: ss. 6, 6A.

ALFRED NESSIM v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

VG 4 2 0 of 1986

LOCKHART J.

14 AUGUST 1987

MELBOURNE

IN THE FEDERAL COURT	OF	AUSTRALIA	1
1

VICTORIA DISTRICT REGISTRY	1	No. VG 420 of 1986
1
GENERAL DIVISION	1

BETWEEN:

ALFRED NESSIM

Applicant

AND :

MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

JUDGE MAKING ORDER:	LOCKHART J.
DATE OF ORDER:	14 AUGUST 1987
WHERE ORDER MADE:	MELBOURNE

MINUTE OF ORDERS

THE COURT ORDERS

THAT:

1. The application be dismissed; and

2 .

The

applicant,

Alfred Nessim, pay the costs of the

respondent, the Minister f o r Immigration and Ethnic Affairs.

NOTE :

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

the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

1 1

VICTORIA DISTRICT REGISTRY

No.

4 2 0

of 1986

)

GENERAL DIVISION

)

BETWEEN:

ALFRED NESSIM

Applicant

AND :

MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

14 August 1987

REASONS FOR JUDGMENT

LOCKHART J.

Alfred Nessim seeks an order of review under the

Administrative Decisions (Judicial Review) Act 1977 ("the Judicial of Immigration and Ethnic Affairs made on 3 December 1986 pursuant to

ss. 6 and 6A of the Migration Act 1958 ("the Migration Act'') refusing

Mr. Nessim the grant of resident status.

The grounds on which the decision are challenged are, in general, that the decision-maker erred in connection with the making of the decision (para. 5(l)(a) of the Judicial Review Act), that the making of the decision was an improper exercise of the power conferred by the Migration Act (para. 5(l)(e)), that the decision involved an error of law (para. 5(l)(f)) and that the decision was otherwise contrary to law (para. 5(l)(j)). In amplification of the ground of attack that the making of the decision was an improper exercise of the power conferred by the Migration Act it was submitted that the

decision-maker took irrelevant considerations into account (para. 5(2)(a)); failed to take relevant considerations into account (para. 5(2)(b)); and exercised his power in accordance with a policy rule without having regard to the merits of the particular case (para. 5(2)(f))-

A statement of reasons pursuant to S. 13 of the Judicial Review Act was provided by Mr. K.J.F. Macafee, the relevant officer of the Department of Immigration and Ethnic Affairs, who made the decision under challenge. I set out below the relevant portions of the section 13 statement:

"A	MY FINDINGS ON MATERIAL QUESTIONS OF FACT
1	Mr Nessim is a citizen of Egypt.

2 Mr Nessim arrived in Australia on 16 March 1985 to visit his relatives in Australia. He was granted a visa only after signing a declaration that he intended to spend a short holiday in Australia, would not seek resident status while here and would depart within the

period of his authorized stay. On arrival he

was

granted a temporary entry permit valid for 3 months.

3 Mr Nessim sought and was granted a further

temporary entry permit valid until 16 September 1985.

4 M r Nessim lodged a formal application for the grant of resident status on 12 August 1985 and paid the relevant fee. He had made enquiries regarding such an application on 3 June 1985 and had been informed that while it appeared unlikely an application would be successful he may lodge. a formal application if he desired.

5 Mr Nessim's wife and two children reside in Egypt. His wife's father and three siblings reside in Egypt. Mr Nessim's mother and his five siblings reside in Australia.

6 Mr Nessim's application for resident status was

based on the presence of his relatives in Australia, offers of employment, his belief that he and his wife could contribute to Australia as citizens, his concern regarding religious conflict in Egypt, and the effect of this on his children and his assertion that following

7 Mr Nessim was interviewed in the Melbourne office of the Department of Immigration and Ethnic Affairs on 14 November 1985 in order to give him a further opportunity to put his case for the grant of resident status. At interview Mr Nessim raised a further argument for being allowed to remain. He claimed that the law provides in Egypt that where the parents of persons living in rented accommodation die then the remaining occupants are required to vacate premises and find alternate accommodation.

8 On 4 March 1986 Mr William Perry in his capacity of

Director,

Operations in the Regional office of

the

Department of Immigration and Ethnic Affairs in Melbourne determined that Mr Nessim's application for the grant of resident status be refused.

9 The decision of refusal was conveyed to Mr Nessim by letter dated 31 July 1986.

10 On 15 August 1986 a Request for Review by

the

Immigration Review Panel was received from Mr Nessim by the Immigration Review Panel Secretariat. The request substantially reiterated the grounds mentioned in his original application.

11 The appeal was considered by the Immigration Review Panel on 28 November 1986. The unanimous recommendation of the Panel was that the decision to refuse the grant of resident status should be maintained.

12 I noted that Mr Nessim has been offered employment in Australia. Indeed, in the period leading up to 31

July 1986 he had been employed thereby contravening the conditions of his temporary entry permit and in so doing committing an offence under Section 31B(2) of the Migration Act 1958.

B	MATERIAL ON WHICH FINDINGS OF FACT ARE BASED
13	In making the above findings the material before me

was as follows:

a	an Immigration Review Panel Submission under signature of Panel Chairman, W . G . Kiddle and Panel members L. Kouzmin and J. Alberto dated
28 November 1986;

b a departmental case examination report regarding the appeal against the refusal of resident status considered by the Immigration Review Panel;

4 .

C Mr Nessim's request for review to the Immigration Review Panel dated 13 August 1986;

the departmental letter of 31 July 1986 which conveyed to Mr Nessim the decision to refuse the grant of resident status;

a departmental submission under signature of H. Santaltzis regarding Mr Nessim' s application for the grant of resident status

considered by

Mr William

Perry,

Director,

Operations in the Melbourne Regional Office of the Department of Immigration and Ethnic Affairs on 4 March 1986;

a report of the interview conducted with Mr

Nessim by H. Santaltzis in Melbourne on 14

November 1985;

Mr Nessim's application for resident status in Australia dated 29 July 1985;

the Grant of Resident Status Handbook;

the Migration Act 1958.

C	THE REASONS FOR THE DECISION

14 Mr Nessim was unable to meet the conditions of

Section 6A(1) of the Migration Act 1958.

15 In particular Mr Nessim is not a person granted

territorial asylum, is not the spouse, dependent child or aged parent, of an Australian citizen/resident, has not been granted refugee status and was not the holder of a TEP authorizing him to work, and therefore could not satisfy the legal conditions in Section 6A(l)(a), (b), (c), or (d), of the Migration Act 1958.

16 M r Nessim's claimed strong compassionate and

humanitarian grounds for the grant of resident status

were not considered sufficient grounds.

17 M r Nessim's wife and children and all his wife's family reside in Egypt and he is not therefore in the position of being the last remaining family member resident outside Australia.

18 Mr

Nessim's

role as 'head' of the family in

Australia needs to be balanced against his similar obligations in respect to his wife and children in Egypt and the fact his father, the previous 'head' of the family, never resided in Australia. While there are strong family links with Australia, there is no evidence to suggest Mr Nessim has assumed a unique place as 'head' of the family in Australia since his father's death.

19 Mr Nessim admits his wife's family continues to

prosper in their large jewellery business in Egypt. The Nessims have not been the victims of discriminatory application of law or any other persecution or harassment and there are no humanitarian factors of significance to be considered in their case.

20 Mr Nessim's claim that following his father's death he has been obliged to leave his former accommodation was noted. The existence or otherwise of the relevant

Egyptian law has not been tested.

However, Mr Nessim's

wife and children have apparently secured alternative accommodation and there is no suggestion that if the law operates as claimed it does so in a discriminatory manne r .

21 The fact that Mr Nessim has been offered employment in Australia, while a positive factor of some relevance in assessing his potential economic prospects in Australia, is not a compassionate or humanitarian ground for his continued stay.

22 The fact that Mr Nessim and his wife might make

some contribution to the Australian community by their personal involvement in community affairs, while an endorsement of their good character, is not a compassionate or humanitarian ground for his continued stay.

23 After weighing the circumstances of Mr Nessim's

case I concluded he had not established strong compassionate or humanitarian grounds to satisfy the legal condition of Section 6A(l)(e) of the Migration Act

1958 and therefore that the decision to refuse the grant

of resident status should be maintained."

The applicant's application for the grant of resident status was based upon para. 6A(l)(e) of the Migration Act which provides that an entry permit shall not be granted to a non-citizen after his entry into Australia unless 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.

On 4 March 1986 Mr. W. Perry, in his capacity as Director of

Operations in the Regional Office of the Department of Immigration and

Ethnic Affairs in Melbourne, determined that the

applicant's

application for the grant of resident status be refused. The applicant sought a review of that decision by the Immigration Review Panel which heard his appeal and unanimously recommended that the decision of Mr. Perry be maintained. It was after the making of that recommendation by the Immigration Review Panel that Mr. Macafee made the decision under challenge in this case.

The applicant attacked the decision of Mr. Macafee on various

bases. First, it was contended that Mr. Macafee failed t o have any regard, or any proper regard, to the fact that on or about 3 December

1986, when the decision refusing the grant of resident status to the

applicant was made by him, all the members of the applicant's family resided in Australia. If he were obliged to return to Egypt, although his wife and son and his wife's family reside there, there would be no members of the applicant's own family in Egypt. It was said that he

is now "head" of the family in Australia following the death of his

father, who resided in Egypt, after the applicant came to Australia.

The applicant gave evidence by affidavit sworn on 10 April 1987:

114. I t is the custom among Christians in Egypt that a wife on marriage becomes part of the husband's family. The husband does not become part

of the wife's family."

The applicant, his wife and child and members of his family are all members of the Christian faith. It was submitted that Mr. Macafee failed to take into account that, although his wife became part of his family upon their marriage, he did not then become part of his wife's

family. The genesis of this argument lay in paragraphs 5 , 17 and 18 of the section 13 statement.

I have considered not only the section 13 statement but the contents of the Department's file relating to the applicant in this matter including, the findings of the Immigration Review Panel, the applicant's request for review t o the Immigration Review Panel, the submission of the Department under the signature of H. Santaltzis with respect to the applicant's application for the grant of resident status which was considered by Mr. Perry on 4 March 1986 and the applicant's application for resident status of 29 July 1985. I have

referred to the

file generally but I mention these documents in

particular. It is probably correct to say that Mr. Macafee did not take into account as a relevant consideration the fact that it may be the custom among Christians in Egypt that a wife on marriage becomes part of the husband's family and that the husband does not become part of the wife's family. But assuming this be so for the moment it seems to me that it had no significance in the making of the decision under challenge in this case. The decision-maker had regard to the presence in this country of most of the members of the applicant's family and to the fact that his primary commitment was to his wife and child who are presently in Egypt, so that he is not the last remaining member of his family outside Australia when one remembers that his wife and child are of course part of his family. Indeed, I would have thought, they are its foundation. I am not persuaded that the decision-maker fell into error, but even if he did, then the error was of no

significance. It is convenient to mention at this stage the following passage from the judgment of Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 A.L.R. 299 at 309:

'*Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision . . . The limited role of a court reviewing the exercise of an administrative discretion must

constantly be borne in mind. It is not the

function of the court to substitute its

own

decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be statutory indication of the weight to be given to impugned ... It follows that, in the absence of any

various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising

the statutory power . .

.'l

The second submission made by counsel for the applicant, which is related to the first submission, is that the decision-maker in this case failed to take into account, or take properly into account, the fact that the applicant was now the "head" of his family in Australia. What I have said in answer to the first submission really deals with this point also and I need add nothing except to say that it is plain to my mind from a perusal of the documents in the Department's file and the section 13 statement that the decision-maker did take into account the assertion or claim by the applicant that he was now the I1headgf of his family in Australia. In my view no error has been established.

I should add before leaving these two points that in the section 13 statement reference is made to the fact that the applicant has a wife and children in Egypt. In fact, there is only one child of

the applicant and that is a son, aged ten, born to himself and his wife. It is plain from a perusal of the contents of the Department’s file that the decision-maker was aware of the fact that there was only one child of the marriage. In any event no point was taken by counsel for the applicant with respect to this matter.

The third ground of attack on the decision under review was that Mr. Macafee was said to have made a serious mis-statement of fact in the section 13 statement and therefore to have made a serious error of judgment in making the impugned decision. In paragraph 19 of the section 13 statement it is stated that the applicant admits that his wife‘s family continues to prosper in their large jewellery business in Egypt. In fact there was evidence before me to the effect that, although a brother-in-law of the applicant works in a jewellery shop, there is no jewellery business conducted by any member of his wife’s family. The source of the statement in paragraph 19 appears to be a record of interview between the applicant and a departmental officer,

H, Santaltzis, in Melbourne on 14 November 1985 where the officer, in

purporting to record what was said by the applicant through an interpreter, made a statement to substantially the same effect as appears in paragraph 19 of the section 13 statement. Although there is sworn evidence from the applicant that there is no family jewellery business in Egypt I am not satisfied that the record of interview of

14 November 1985 does not

correctly record what was

said by the

applicant to the officer concerned on that occasion. I am, therefore, not satisfied that it was not a proper matter for Mr. Macafee to take into account when making his decision refusing the grant of resident status. However, even if there is an error of fact in paragraph 19 of the section 13 statement it is, in my opinion, insignificant in all

10.

the circumstances of this case.	There is, therefore, no substance in
this ground of attack.

It was then submitted that the decision-maker erred in that he was said to have taken into account as a relevant consideration the view expressed by an interpreter who attended the interview on 14 November 1985 between the applicant and an interviewing officer of the Department. The interpreter, Nadia Akle, swore an affidavit on 11 August 1987 in which she said that at the interview the interviewer said that the applicant had stated that a law was introduced in Egypt a few years before the interview to the effect that if a child was living in rented accommodation with parents and the parents died then the child had to leave to find a place to live of his own and that apparently the applicant was in a similar position in Egypt in view of

his father's death. In her affidavit the interpreter said that she was asked by the interviewer whether Egyptian law was laid down in those terms. She replied that she did not know that this was so. She said that she remembered the applicant making this statement and her being asked the question because her father had died in Egypt some years before. After her father's death her mother and younger brother lived in the same rented premises in which her father had lived with them previously. When her mother died her brother took over the apartment without there being any legal difficulty. She said to the interviewer that perhaps the law had changed since she herself had left Egypt. In paragraph 7 of the S. 13 statement under the heading

"MY FINDINGS ON MATERIAL QUESTIONS OF FACT" Mr. Macafee said:

"He [i.e. the applicant] claimed that the law provides in Egypt that where the parents of persons living in rented accommodation die then the remaining occupants are required to vacate premises and find alternate accommodation."

11.

It was submitted that the decision-maker must have taken into

account a view of Egyptian law said to have been expressed by the

interpreter which was inconsistent with the view of Egyptian law which

the applicant claimed to be in force.

The submission is plainly without substance. There is nothing to suggest that Mr. Macafee took into account any view of the interpreter as expressed in her affidavit of 11 August 1987, nor was there anything to suggest that, even if he had done so, the view that the interpreter expressed was wrong. Indeed, in paragraph 2 0 of the section 13 statement Mr. Macafee said that the applicant's claim about the effect of his father's death upon his right to remain in the same accommodation was "noted". Mr. Macafee went on to say:

"The existence or otherwise of the relevant Egyptian law has not been tested. However, Mr. Nessim's wife and children have apparently secured alternative accommodation and there is no suggestion that if the law operates as claimed it does so in a discriminatory manner."

No evidence has been adduced to suggest that there is anything inaccurate in these statements. This ground of attack on the decision fails.

Then it was submitted that the applicant, being a Christian, would be subjected together wi.th members of his family, who were also Christians, to religious persecution if he returned to Egypt and that this matter was a relevant consideration either not taken into account by the decision-maker or not taken properly into account. In

12.

paragraph 6 of the section

13 statement Mr. Macafee noted the concern

expressed by the applicant "regarding religious conflict in Egypt". Also in paragraph 19 of the section 13 statement, after stating that the family of the applicant's wife "continues to prosper in their large jewellery business in Egypt", Mr. Macafee proceeded to say that the applicant and his family "have not been the victims of discriminatory application of law or any other persecution or harassment ...". There is material in the Department's file from which it appears clearly enough that the applicant claimed that he was

worried about the "Moslem/Christian" conflict in Egypt because he and his family were practising Christians and was concerned that his wife and son could not live in peace in Egypt where they were members of a religious minority. There is no material which would support a finding that the decision-maker did not take into account the concern of the applicant on this question. This argument fails.

An argument was then advanced which found its genesis in paragraph 2 of the section 13 statement where Mr. Macafee said:

"Mr. Nessim arrived in Australia on 16 March 1985

to visit his relatives in Australia. He

was

granted a visa only after signing a declaration that he intended to spend a short holiday in Australia, would not seek resident status while here and would depart within the period of his authorized stay. On arrival he was granted a temporary entry permit valid f o r 3 months."

It was submitted that this paragraph revealed an underlying attitude on the part of the decision-maker that the Department's policy against "queue-jumping" was being applied to the applicant whereas in fact, since he had arrived in Australia, the facts relating to his application had substantially changed and all relevant members of his

13.

family were now in Australia save for his wife and child who, he said in evidence, would follow him if he was given the right to remain in Australia.

In my opinion the statements in paragraph 2 of the section 13 statement upon which reliance is placed are merely a narrative of relevant events and they accurately state the facts. Even if in some way one were to glean a view on the part of the decision-maker that the applicant was "queue-jumping" there was sufficient material before the decision-maker to support the view that the applicant is in essence a "queue- jumper".

Finally, it was submitted that the section 13 statement demonstrated that the decision-maker considered all sorts of matters piecemeal but did not look at all the relevant facts as a whole. It was said that he did not carry out an "overview" of the facts. There is no substance in this submission as there is simply no material to support it.

The application f o r review fails.

The application must be

dismissed with costs.

I certify that this and the

preceding twelve (12) pages are a true copy of the Reasons f o r Judgment herein of the Honourable

Mr. Justice Lockhart.

14.

Counsel and solicitors for	A. Bonnici instructed by Messrs.
the applicant:	Harvey Bruce & Co.
Counsel and solicitors for	K. Bell instructed by the
the respondent:	Australian Government Solicitor
Date of Hearing:	12 August 1987
Date of Judgment:	14 August 1987

[1987] FCA 810

14 Aug 1987