IN_THE FEDERAL COURT OF AUSTRALIA VEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON CORAM: FOX, WOODWARD & FISHER JJ. DATE: 22 OCTOBER 1986 REASONS FOR JUDGMENT No.G343 of 1986 nd ON_APPEAL from a sinale jiudde of the Federal Court of Australia- BETWEEN : - TAREK GERGIS AWADALLS SAAD MINA Appellant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS - '(EX TEMPORE) This is an appeal from a decision of Beaumont J. caiven in an application under Review) Act 1977. The the Administrative Decistans (Judicial applicant (the appellant before 1s) had soucght review of a decision of the respondent Minister refusing ' ' to arant him what is commonly called resident status. The facts are not in dispute and are _set out in.his Honour's reasons for ' judament. It is unnecessary to repeat them. The appeal is based e¢ssentiallv on the fact that in the statement of the Minister qiven pursuant to s.13 of the Judicial Review Act he used lanqauage found in the Miarants Entrv Handbook. --a handbook or policv statement relating to persons who are miaratinag 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 far 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. The applicant married four davs after entering Australia on a visitor's permit. There is no suagestion that the marriade was not genuine. tt has been accepted that the parties then intended to live together as husband and wife. The text from the Handbook used bv the Minister. to which I have referred, was as follows: "the parties qaenuineliv intend to continue living asa married couple". This appeared in the Miqarants Entry Handbook, but not in the Grant of Resident Status Handbook. which refers to the qenuineness of marriage and deals with that in sliqhtlv different ee ae seen rere wo LS I ye V t i. anneal SOT Sere "~ wd terms. It is submitted that the former lanauage. used bv the Minister in his statement. imposes a more severe test. 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 immiaqrant. his permit having expired. It mav be doubted whether the facts which form the basis of the araument 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. Tk 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, necessarilv qovern howa 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 beena 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 exactlv to the situation before him and he used lanquage he thouqaht approrriate to the situation. In my view the appeal should be dismissed. wom cect ee iva enellipasdetieedc Rubeehar ehaaierenevadinntae ata vo ' nto . Z v WOODWARD J. - In this matter I agree with the order proposed bv the learned presiding judge and with his reasons for that order. I merely wish to adda few words of my own. The first point that strikes me about this case is that neither set of quidelines to which our attention has been directed, namelv those in the Grant of Resident Status Handbook or in the Migrant Entry Handbook. adequatelv sets out the approach to be adopted bv the decision maker to a short-lived but qenuine marriage. I think that is unfortunate. It is true that. in the case of the Miaqrant Entrv Handbook. paraqraph 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. Tt appears from the Departmental statement to which the the presiding judde has referred. that the two sets of quidelines have been treated together by the Department for present purposes. This 1s. in mv view. a sensible approach for the reasons qiven in the Departmental statement, namely. that applicants for resident status should at least meet the requirements which would apply to them as miaqrant entry applicants overseas. Certainly the treating of these two sets of aquidelines toqether for the present purpose was an approach which was well within the Minister's discretion. sone wt yr ee yo ee a a ee - Tt seems clear that he did. in fact, adopt the underlvindg thrust of this Departmental statement which was before_ him when he made his decision. At the worst it seems ta me the Minister has taken a sentence from the Miqrant Entrv Handbook. without express acknowledament., and used it to deal with a matter not covered in the Grant of Residence Status Handbook. In my view he was fullv 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 judament ~ that it seems that the respondent reqarded the case not as a marriage of convenience but rather as analogous to a marriage of convenience situation. Finallv. I-make the point that. the Minister's discretion in anv event cannot be fettered bv the auidelines. In the final analvsis. he has properly applied an entirelv reasonable principle of his choosing to the facts of the present case. That principle is consistent with the published auidelines and I can see no error in what the Minister has done. For those reasons I aaqree that the appeal should be dismissed. cere ee, mre we ee FISHER J. I also aqree that the appeal should be dismissed. Fy el en a TET RE I tt Ne fa Bortite acc Te & Foe : " — pooayareactec er ft _. . ; Wo e meee gee ver mer er a