Shameem, A v Immigration Review Panel

[1993] FCA 204

Re: ABDUL SHAMEEM
And: IMMIGRATION REVIEW PANEL and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. SG45 of 1992
FED No. 204
Number of pages - 18
Administrative Law
(1993) 31 ALD 355 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Gummow J (1)

CATCHWORDS

Administrative Law - migration - marriage with Australian citizen - application for resident status - policy guidelines - whether misconstrued - whether error of law - whether denial of procedural fairness.

Migration Act 1958

Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177

Broadbridge v. Stammers (1987) 16 FCR 296

Nikac v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 611

HEARING

SYDNEY, 26 March 1993

#DATE 8:4:1993

Counsel and solicitors Mr M.T. Boylan
for the applicant: instructed by

McDonald and Co.

Counsel and solicitors Miss Singh, instructed
for the respondents: by the Australian

Government Solicitor

ORDER

The Court orders that:

(1) The application be dismissed.

(2) The applicant pay the costs of the respondents.

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

JUDGE1

GUMMOW J This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The application was heard in Adelaide. It concerns the operation of the Migration Act 1958 ("the Act") in the form it took before amendments effective 19 December 1989.

1. The first respondent is described as the "Immigration Review Panel", but it is apparent that the decision in respect of which the order of review under the ADJR Act is sought is that of a Delegate of the Minister, the second respondent, on 26 June 1992 to accept the recommendation of the Panel to maintain the Departmental decision to refuse the applicant a grant of resident status.

2. The Delegate provided a statement of reasons under s. 13 of the ADJR Act, dated 28 October 1992. The powers of the Minister under ss. 6 and 6A of the Act, when exercised by the Delegate, are, for the purposes of the Act, to be deemed to have been exercised by the Minister; see sub-s. 66D (2).

3. The applicant was born in Fiji on 25 November 1969 and is a citizen of that country. On 28 July 1989, he applied, in Suva, and was granted a 2 week visitor's visa to allow him to attend the wedding of his brother in Australia. On arrival in this country on 2 September 1989, the applicant was granted a temporary entry permit, valid to 18 September 1989. On 14 September 1989, he was granted a further temporary entry permit, valid until 1 March 1990.

4. The applicant's affidavit filed in this Court is in English and was sworn by him. In September 1991, a reference was issued by Forever Living Products Australia Pty Ltd certifying that the applicant had been "an active distributor of our products since 5 June 1991" and that he "enthusiastically attends our Meetings and Seminars which are assisting him to progress through the company marketing programme". The evidence before the Court includes written communications in English between the applicant and his wife.

5. The effect of s. 6A of the Act is that an entry permit other than a temporary entry permit shall not be granted to a non-citizen after his entry into Australia unless the applicant fulfils one or more of the conditions spelled out in sub-s. 6A (1). Paragraph (b), so far as is relevant, reads "he is the spouse, child or aged parent of an Australian citizen . . ."

6. The purpose and effect of s. 6A is to make it more rather than less difficult for those who have entered Australia later to gain permanent resident status, in the sense that (a) only if one of the conditions mentioned is fulfilled may an entry permit be granted, and (b) fulfilment of one of those conditions does not oblige the decision-maker to grant an entry permit: Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290 at 296; Kioa v. West (1985) 159 CLR 550 at 565-600.

7. On 15 December 1989, the applicant applied for the grant of resident status. On 13 December, the applicant and Olive Salome Bob, an Australian citizen, born on Thursday Island in 1970, had married in Sydney under Islamic rites. The applicant therefore now answered one of the conditions in sub-s. 6A (1) of the Act, namely he was the spouse of an Australian citizen. As I have indicated, the position of the applicant has been treated as governed by the law as it stood when he made his application on 15 December 1989.

8. The application for the grant of resident status was treated as a request for the grant of the appropriate entry permit under sub-s. 6 (2) of the Act. The Delegate correctly determined that whilst the applicant had satisfied one of the conditions in sub-s. 6A (1), before a grant of resident status might be made she was bound to take into account public interest policy guidelines determined by the Minister in relation to granting resident status. She also considered whether, in any event, there were other factors unique to the particular application which would merit the exercise of a discretion so as to grant resident status.

9. The relevant policy was stated in a handbook entitled "Grant of Resident Status Number 3". Paragraphs 2.3.1 and 2.3.2 of the Policy Guidelines stated:
   

"2.3.1 Once the legal requirements have been established the principal applicant should be assessed against the following policy guidelines: . The Australian citizen/resident spouse should support the application; (this should be indicated by the completion of the relevant section of the application form); . The marriage should not have been contrived for the purpose of obtaining residence in Australia and there should be a genuine intention of maintaining a lasting relationship beyond migration considerations; . The applicant should be living with their spouse and the marriage should not have ended through divorce, separation or death; (emphasis supplied)

. The applicant and spouse should intend to live together on a genuine domestic basis. The preceding three points should be indicated by the Declarations made by the applicant and spouse respectively on the application form (M692) and any additional evidence supplied such as leases, joint bank accounts, wills, childrens' (sic) birth certificates etc. The bona fides of the relationship should be confirmed by referees in items B4 and B5 of the same form.

. The applicant should not have an ongoing marriage or de facto marriage relationship with a person other than the Australian citizen/resident who supports the application. 2.3.2 If doubts on this point or any preceding point are held by the examining officer the applicant and spouse may be asked to attend an interview to resolve these doubts."

1. The applicant and his spouse were interviewed on 26 September and 18 November 1991 by Mr H. Purse, Residents' Assessing Officer with the Minister's Department. The interviews took place at the Sydney office.

2. In his affidavit filed in the present proceeding in this Court, the applicant says that before his first interview friends had told him he should tell the interviewer "that my spouse and I had been living continuously together since marriage otherwise I would not be granted (resident status)". He says he regrets that telling untruths led to discrepancies in his interviews. The applicant also states that his wife returned just before the second interview in November 1991 and that they "have lived together continuously as husband and wife since that time". She had left her husband in Sydney in November 1990 and returned to the Torres Strait Islands where from January 1991 she worked on Sue Island as a clerk for the Council which administers the Island. In May 1992, the couple left Sydney for Adelaide where other members of the applicant's family live.

3. The Delegate later in the s. 13 statement dated 28 October 1992, assessed the results of the two interviews with the applicant in 1991 as follows:
   "The interviews revealed numerous times when
   

contradictory answers were given to questions relating to factual matters or the couple's way of life. At the conclusion of the second interview the inconsistencies were put separately to the applicant and his wife in an effort to give them an opportunity to resolve those inconsistencies. In spite of this opportunity, the applicant and his wife were unable to explain these inconsist-encies. Many of the discrepancies were minor, but their frequency tended to undermine the couple's credibility. There were, however, in my opinion, some significant matters and areas of disagreement which brought into doubt, the nature of the relationship and the claims of the applicant. Of particular concern was the fact that the applicant's wife lives and works in Queensland. At the second interview, Ms Bob stated that she had only been to Sydney three times since she moved back to Torres Strait in November 1990, for periods totalling three weeks. The purposes (sic) of two of the visits to Sydney was to attend immigration interviews. While the applicant and his spouse maintained they were in a genuine marriage the policy requires that the applicant and his wife live together. Therefore the fact that they live approximately 1800 kms apart means that they are unable to satisfy the policy guidelines. . . . After evaluating the information which emerged from the two interviews, I formed the view that the couple had only a superficial knowledge of each other's lives. I was aware that the couple came from different cultures and therefore, may have had different expectations. Cultural differences and differing value systems do not extend to living apart after entering into a marriage nor explain their failure to agree on the more mundane aspects of their married life, or their lack of personal detail or the absence of a shared understanding. Finally, after carefully considering and weighing the information supplied in both interviews and examining the physical evidence on file, I concluded that the applicant was not living with his spouse on a genuine domestic basis and consequently, was unable to satisfy the policy requirements for the grant of resident status under the marriage provisions. . . . When he was given the opportunity, the applicant denied his wife was employed in the Torres Strait Islands and insisted that she spent the majority of the year with him. . . . On balance after weighing all the evidence and arguments, I was not persuaded that the applicant and his spouse were living (on) a genuine domestic basis or that there was a genuine intention of maintaining a lasting relationship beyond migration considerations."

The Delegate then looked to see if there were "other compassionate aspects" which nevertheless might favour the applicant. She dealt with that aspect of the matter in para. 11 of the s. 13 statement, as follows:

"I believed that the applicant preferred to

reside in Australia rather than Fiji especially as he had now been for almost 3 years. I considered that he would have developed ties in Australia since his arrival, especially as he had entered into a marriage with an Australian citizen and has siblings living in Australia. Nonetheless, he was born and raised in Fiji and spent all of his life there until he visited Australia. All of his formative years had been spent in Fiji and that period significantly outweighed his time in Australia. There is no reason to believe that he would be unable to re-adjust to his native society; a society in which he was raised. He indicated in his application that he had siblings in Fiji and so has close family members there should he return. There is no evidence that he would face hardship in Fiji or that he would be unable to seek employment. In his application he indicated that his occupation was family farmer. He has worked in Australia and no doubt gained work experience which would expand his employment possibilities in Fiji."

The grounds of the application for an order of review include the contention that the Delegate fell into error in making certain of the factual findings upon which the decision was based, particularly as to the existence of serious discrepancies in the accounts of the marriage given by the applicant and his wife. In address, counsel for the applicant correctly conceded that the finding that the frequency of the discrepancies tended to undermine the credibility of the couple was one which was open to the Delegate on the material and that, accordingly, the scope for judicial review of the fact finding process was severely limited. Reference was made to passages in the judgments of Mason CJ in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 355-360, and Black CJ in Curragh Queensland Mining Ltd v. Daniel (1992) 34 FCR 212 at 219-225.

1. Accordingly, counsel for the applicant focussed his submissions upon what he said was a misinterpretation by the Delegate of that portion of the Policy Guidelines which in para. 2.3.1 requires that the applicant "should be living with their spouse". The submission was that the expression "living with" as used here does not require that the spouses be living together under the one roof and that they may be living apart by reason of the necessity of employment without altering the nature of the marital relationship for the purposes of the Guidelines. The applicant had contended that he and his spouse had lived apart in the period in question because they could only cope financially if the wife worked and she was able to get a job in the Torres Strait Islands, where she had been born.

2. Counsel for the applicant submitted that the consequence of the misconstruction placed upon the Policy Guidelines by the Delegate was the commission of an error of law. The Guidelines, it is well settled, do not have effect as law. Further, the decision of the Delegate is, as I have indicated with reference to s. 66D of the Act, deemed to have been an exercise of power by the Minister whose policy is in question.

3. Therefore, this is not a case of a delegate who, being obliged by the terms of delegation to have regard to the terms of a written policy of the principal, travels beyond the terms of the delegation (by misconstruing the policy). In those circumstances, the weight of authority in this Court is that misconstruction of the policy does not give rise to an error of law within the meaning of para. 5 (1) (f) of the ADJR Act; see Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 at 191; Broadbridge v. Stammers (1987) 16 FCR 296 at 300; Nikac v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 611 at 621-22. (The position may differ where what is in question is the text of an international obligation accepted by Australia but not positively enacted in municipal law: Minister for Foreign Affairs and Trade v. Magno (Full Court, 26/11/92, unrep.).

4. Nor is this is a case where there was a denial of procedural fairness by a radical and unannounced departure by a decision-maker which took the instant case outside what otherwise was a general policy; see Haoucher v. Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648.

5. The position in England as to judicial review of erroneous application of general policy which does not have the force of law is discussed in the article by Baldwin and Houghton "Circular Arguments: The Status And Legitimacy of Administrative Rules" (1986) PL 239. In evaluating what is there said, it is necessary to appreciate certain developments in Australian administrative law. First, the ground of failure to take into a relevant consideration can be made out only if the decision-maker fails to take into account that which by law he was bound to take into account: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. Secondly, there is not in Australia a free-standing ground of review, independent of the requirements of procedural fairness, which is concerned with fulfilment of "legitimate expectations": Haoucher v. Minister of State for Immigration and Ethnic Affairs supra at 651-2, 658-9, 672, 679-682; cf Beatson and Matthews "Administrative Law Cases and Materials", 2nd ed., 1989, pp 235-9. (But see as to the distinction between expectations as to the existence of facts and as to the exercise of discretion, Roberts v. Repatriation Commission (1992) 111 ALR 436.)

6. Further, and in any event, I am not persuaded that the Delegate fell into error in misconstruing the terms of the Policy Guidelines.

7. Counsel for the applicant referred to the Full Court decision in The Minister for Immigration, Local Government and Ethnic Affairs v. Dhillon (8 May 1990, unrep.). In that case, the decision-maker had found that "there were reasonable grounds to conclude" that the marriage in Malaysia between the applicant and an Australian citizen "had been contrived for the purpose of enabling him of to obtain a visa to migrate to Australia". The Full Court pointed out that this fell short of a finding on the question of contrivance, yet it was on this basis that the decision-maker had discounted the significance of the marriage. In the event, the decision-maker had failed to address what the Full Court described as the true test, namely, whether at the time at which the matter had to be decided it could be said that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others.

8. That decision is of no direct assistance in evaluating the applicant's submissions as to the proper meaning of the statement in the relevant Guidelines that the applicant should be "living with their spouse" and should "intend to live together on a genuine domestic basis".

9. Counsel referred to provisions in various legislation, such as the Family Law Act 1975, the Family Provision Act 1982 (NSW) and the De Facto Relationships Act 1984 (NSW). The authorities included Main v. Main (1949) 78 CLR 636, In the Marriage of Todd (No. 2) (1976) 25 FLR 260, In the Marriage of Pavey (1976) 25 FLR 450, Roy v. Sturgeon (1986) 11 NSWLR 454 and Simonis v. Perpetual Trustee Co. Ltd (1987) 21 NSWLR 677.

10. In Main v. Main, the High Court was concerned with the ground of dissolution in sub-s. 69 (6) of the Supreme Court Act 1935 (WA). This forced upon the spouses having lived "separately and apart" for at least 5 years; cf Matrimonial Causes Act 1959, s. 28 (m). Latham CJ, Rich, Dixon JJ said (at 642) in a passage relied on by counsel for the present applicant:
    "In matrimonial law the expressions like 'live
    

separately', 'separated' and 'separation' are commonly used to indicate that the conjugal relation no longer exists between the parties to the marriage. Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closer association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary."

This passage, and the other authorities and legislation in question do not deal with the same policy concerns as those of the relevant migration policy. The Policy Guidelines are concerned with specifying the requirements to be met by people applying for resident status in Australia on the basis of marriage to an Australian citizen or a person who is the holder of an entry permit. The Policy Guidelines spelled out in para. 2.3.1 are not to be read each in complete isolation from the others. The guidelines are directed first to the question of whether the marriage was contrived for the purpose of obtaining residence in Australia; it is said that there should be a "genuine intention of maintaining a lasting relationship beyond migration considerations". Then, even if the marriage was not contrived for such a purpose, nevertheless the applicant "should be living with their spouse and the marriage should not have ended through divorce, separation or death". Finally, looking to the future, the parties "should intend to live together on a genuine domestic basis".

1. In a case where the decision-maker concluded that the couple had only a superficial knowledge of each other's lives and since the applicant's wife had moved back to the Torres Strait in November 1990, she had returned to Sydney, where her husband lived, only on three occasions, two of them being for interviews with the Department, it was open to the decision-maker to determine that the applicant was not living with his spouse within the meaning of the Guidelines. It is apparent from the s. 13 statement, taken as a whole, that the decision-maker was not construing the requirement that the applicant should be living with his spouse as requiring in absolute terms that they have lived continuously since their marriage under the one roof. It thus is unnecessary to decide whether the Guidelines have such a stringent operation. Rather, the temporal and spatial degree of their separation, together with what was found to be their superficial knowledge of each other's lives and the absence of a shared understanding, was such as to lead the Delegate to conclude that rather than living together the parties were living apart. To approach the matter in this way was not to misconstrue the Guidelines.

2. Further, and in any event, the Delegate went on to consider whether there were other compassionate grounds tending to favour the grant of permanent resident status. By this means what otherwise might be the sharp edges of the Policy Guidelines may be ameliorated in the circumstances of a particular case.

3. The remaining ground which was pressed in counsel's submissions was a denial of procedural fairness in the conduct of the interviews with the applicant. In particular, it was contended that at both interviews the applicant requested an interpreter but was refused this facility on both occasions by Mr Purse. The applicant's evidence, in his affidavit, is in such a form that if objection had been taken it might well have been struck out. As it is, it is not of great weight. The statement is that on both occasions "I asked the interviewer for an interpreter but he refused my request. He told me both times that it was too late to organise an interpreter". The applicant in his affidavit fixes the first interview at 26 October 1991. That was a Saturday. I accept the evidence of Mr Purse that the interview was held on 26 September 1991.

4. Mr Purse was cross-examined upon, but adhered to, the statement in his affidavit that when he telephoned the applicant and asked that he attend for the first interview, he asked him whether he wished an interpreter to be present and that the applicant said that an interpreter would not be required. Mr Purse was well aware of the importance to be attached to requests for a translator in a case such as the present, even where, as here, the applicant appeared to be an English speaker.

5. I accept as the better recollection the fuller account given by Mr Purse in preference to the statement in the applicant's affidavit.

6. The application should be dismissed, with costs.