LALCHWORDS 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 A.L.R. 321 Minister for Industry and Commerce v. East West Trading Co. Pty. Ltd. (1986) 64 A.L.R. 466 TARIK GERGIS AWADALLA SAAD MINA v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS No. G29 of 1986 Beaumont, Jd. Sydney 16 duly 1986 "" + RECEIVED ¥ 460. 1986 Fe woost - Jat OF iA yr - Teer act "y sass are a en e a Ae IN_THE FEDERAL COURT OF AUSTRALIA } } NEW SOUTH WALES DISTRICT REGISTRY ) No. G29 of 1986 y GENERAL DIVISION ) BETWEEN : TARIK GERGIS AWADALLA SAAD MINA Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTES OF ORDER Judge making order: Beaumont, Jd. Date order made: 16 duly 1986 Where made: Sydney THE COURT ORDERS THAT: 1. Application dismissed. 2. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. a7 Siete Prathcheen ar came meet ieee eee remy Rare Vee a ee ema woe rere IN_THE FEDERAL COURT OF AUSTRALIA ) a) NEW SOUTH WALES DISTRICT REGISTRY ) No. G29 of 1986 y GENERAL DIVISTON ) BETWEEN : TARIK GERGIS AWADALLA SAAD MINA Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM Beaumont, J. 16 July 1986 REASONS FOR JUDGMENT 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 AustraIia 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 mae wee a eer te eden epee water weds r Seat talleatat Sih deel neleed acta eae a ae a -Wree oy ty ne ere cen mo as ape ee a er a hae ot wut tls 2. to s.6A, after he has entered Australia. By s.6A(1), so far as is material - "CL 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 Auqust 1985, the Immigration Review Panel recommended that the respondent's decision be maintained. Accordina to the statement of reasons given pursuant to s.13 of the Judicial Review Act, the applicant's wife first heard ef 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 arounds for setting aside the policy requirements governing applications for resident 3. 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 ona 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 Reqional Director or Class 10." Secondly, the applicant refers to the following extract from Ch.5 of the "Migrant Entry Handbook" - "6.2.21 Assessment of relationships (including marriages) as qenuine: 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 => are ae r a 4. 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 qiven 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 ane of convenience is not to be taken below Class 10 Ilevel. 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. ft is also accepted that nothing turns on this misnomer for present purposes}. Tt 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(1l) is satisfied. the respondent still has a discretion under s.6(5) either to qrant or to refuse to grant an entry permit (cf. Kiao v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 per Mason Jd. 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 A.L.R. 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 ofa 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 suaqgested 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 arqument. However, in my view, when para.22 of the respondent's reasons is read asa wie Speers ore eo 7 a ar nr ak ~~. 7 Pn ae hdl _ anaes ew "oo porate ' yy oe fea te whole, it seems that the respondent regarded the case not asa 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. tT make the following orders: 1. Application dismissed. 2. Costs reserved, Counsel and Solicitors Mr. S.M. Littlemore instructed for Applicant: by Grav, Bettens. Counsel and Solicitors Mr. J. Wilson instructed by the for Respondent: Australian Government Solicitor. Date of hearing: 14 July 1986 Date Judgment Delivered: 16 July 1986 co. Try