Re Deny Zoghbi; George Elias Zoghbi; Edmund Elias Zoghbi; Nabil Elias Zoghbi and Shouka Elias Zoghbi v the Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 119; (1992) 27 ALD 205 (Extract) (20 March 1992)

FEDERAL COURT OF AUSTRALIA

Re: DENY ZOGHBI; GEORGE ELIAS ZOGHBI; EDMUND ELIAS ZOGHBI; NABIL ELIAS ZOGHBI
and SHOUKA ELIAS ZOGHBI
And: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. WA G90 of 1991
FED No. 134
Immigration
[1992] FCA 119; (1992) 27 ALD 205 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)

CATCHWORDS

Immigration - application for reconsideration of decision to refuse grant of visa - application refused - whether decision on application involved improper exercise of power and error of law.

Acts Interpretation Act 1901 sub-ss.4(1) and (2); para.48(1)(b)

Administrative Decisions (Judicial Review) Act 1977 paras.5(1)(e), 5(1)(f)

Judiciary Act 1903 s.39B

Migration Act 1958 (prior 19 December 1989) 11A(1) and 11B

Migration Act 1958 sub-ss.24(1) and (2)

Migration Legislation Amendment Act 1989 sub-s.6(4), 11E(1) and (2)

Social Services Act 1947

Migration Regulations 1989 regs.114, 173A; sub-regs.13(2), 173A(1)

Commonwealth of Australia Gazette 18 December 1989

Cecy Aban v. The Minister for Immigration, Local Government and Ethnic Affairs, Unreported (Federal Court of Australia, Full Court, 21 August 1991)

Broussard v. Minister for Immigration and Ethnic Affairs (1989) 98 ALR 180

Comptroller-General of Customs v. Kawasaki Motors Pty. Ltd. [1991] FCA 519; (1991) 103 ALR 661

Curragh Queensland Mining Limited v. Daniel, Unreported (Federal Court of Australia, Full Court, 14 February 1992)

Eskaya v. Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217

Haj-Ismail v. Minister for Immigration and Ethnic Affairs (1981) 36 ALR 516

Mostyn v. Deputy Commissioner of Taxation (N.S.W.) (1987) 73 ALR 396

Clerks' Union of Australia, South Australian Branch [1991] HCA 33; (1991) 65 ALJR 610

HEARING

PERTH
20:3:1992

Counsel for the First and Second Applicants: Mr B.F. Stokes

Solicitors for the First and Second Applicants: B.F. Stokes and Associates

Counsel for the Respondent: Mr D.H. Godwin

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The decision of the delegate of the respondent made 26 July 1991 be set aside.

The matter be returned to the respondent for
consideration and determination according to law.

Respondent to pay applicants' costs to be taxed.

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

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") to review a decision of the Minister of State for Immigration, Local Government and Ethnic Affairs ("the Minister") made by his delegate on 26 July 1991 in which the delegate refused to reconsider a decision made by another delegate of the Minister on 14 November 1990 to reject an application by Mr Fouad Zoghbi ("Zoghbi") for the grant of a visa under the Migration Act 1958 ("the Act") allowing Zoghbi and his family to travel from Lebanon to Australia for the purpose of migration. The applicants in this matter are Zoghbi's son and four of Zoghbi's brothers all residing in Australia.

2. Zoghbi is a resident and a citizen of Lebanon.

3. Apparently Zoghbi and his family, then consisting of Zoghbi, his wife and one child, travelled to Australia from Lebanon in 1969 and resided in Australia as permanent residents between 1969 and 1972. The second child of the family, Dani, (described in the title of these proceedings as Deny) was born in Australia in 1970 and according to the law in force at the date of his birth became an Australian citizen. After the family left Australia in 1972 two further children were born, in Lebanon, in 1972 and 1979.

4. In 1982 Zoghbi was granted a visa to return to Australia to visit two of his brothers who had emigrated from Lebanon and settled in Australia. The period of the visit was two months.

5. In December 1984 Zoghbi applied for approval for the family to return to Australia as migrants. The application was refused. In December 1985 Zoghbi lodged another application to migrate supported by an undertaking by one of his brothers, an Australian citizen, to sponsor the family's resettlement in Australia. That application was refused.

6. In 1986 Dani Zoghbi, then sixteen years of age, left his family in Lebanon to resettle in Australia. In 1987 Zoghbi made application for the grant of a visa to enable him to visit Dani in Australia. That application was refused. In September 1988 Dani lodged an application to sponsor his father and family as migrants to Australia and in October 1988 Zoghbi lodged with the Australian Embassy in Damascus, Syria an application to migrate. Notification that the application had been refused was forwarded to Zoghbi by the Senior Migration Officer at the Australian Embassy at Damascus in a letter dated 30 November 1988. The letter advised Zoghbi that if his sponsor wished to "appeal" he was required to do so on "an approved form" and pay "the required fee". On 24 February 1989 Dani completed and lodged with the Perth office of the Minister's department a form headed "Request for Reconsideration of a Migration Act Decision" accompanied by a fee of $240. I have referred to the uncertain status of this procedure in an earlier decision. (See Eskaya v. Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217 at pp 219-220.)

7. On 26 June 1989 the request for reconsideration of the decision was refused.

8. In about September 1989 an application pursuant to the ADJR Act was lodged in this Court seeking an order to review the decision to reject Zoghbi's application for a visa lodged in Damascus in October 1988.

9. On 14 December 1989 the Minister or a delegate, apparently acting under implied powers, revoked or vacated the earlier decisions and agreed "to make a fresh decision". (See Comptroller-General of Customs v. Kawasaki Motors Pty. Ltd. [1991] FCA 519; (1991) 103 ALR 661 per Beaumont J. at pp 666-667.) By letter dated 2 March 1990 the Minister's department advised solicitors acting for Zoghbi that it was intended that "a new decision" be made on Zoghbi's application to migrate to Australia. It was agreed, on behalf of the Minister, that the decision would be made by considering the policy guidelines in relation to migrant categories in operation as at the date of the original decision in November 1988. Although it is also stated in other papers before the Court that the revoked decision was the decision to refuse the request for reconsideration of the earlier decision to refuse the visa, the history of the matter shows that it was the original decision to refuse the visa that was regarded as no longer operative and that it was understood that a fresh decision was required to be made upon that application. The relevant item of policy was described as "Category 1(B)(2) (Parents)". It read as follows:

"Parents of Working age sub-category (1B2)
... Because they are in an older age group applicants in this
category are likely to have difficulty finding jobs in Australia.
Overseas posts should pay particular attention to this possibility
in assessing applications and sponsorships. It is not a
requirement that working age parents should have jobs arranged in
all cases. However, where it is obvious that the applicant
intends or is likely to work, a job should be arranged. This will
arise where the financial circumstances of the applicant and
sponsor are clearly insufficient to provide support. Officers are
to exercise judgement as to whether the applicant is likely to
work irrespective of the applicant's stated intentions (see
Section 17.2).
... Officers should use discretion in deciding whether an
interview is necessary to determine any of the above points and/or
whether to conduct a settlement assessment. Applicants with
dependent children should be interviewed."

10. In January 1990 two of Zoghbi's brothers, then residing in Australia, and his son Dani each submitted an application to act as the sponsor of Zoghbi's application to migrate. In September 1990 a delegate of the Minister determined that the application be approved "in principle".

11. On 7 September 1990 Zoghbi's solicitors were informed that "the migrant entry of Fouad and his family has now been approved in principle" and that the Australian Embassy in Damascus would resume processing the application and issue a visa subject to the completion of any "public interest requirements".

12. The "public interest requirements" referred to assessments of character and health. The Zoghbi family satisfied the requirements in respect of character and the only matter outstanding as at October 1990 was the completion of medical assessments.

13. Medical examinations were carried out in October 1990 and all members of the family other than Mrs Zoghbi were found to be in good health. On 29 October 1990 the medical examination of Mrs Zoghbi, then aged 41 years, revealed that she was suffering from severe contraction of a heart valve and the examining practitioner considered that cardiac surgery would be required to correct the problem. In mid November 1990 Zoghbi was informed that the application to migrate had been refused on the ground that the health requirements for migration to Australia had not been met. It does not appear in the material submitted to the Court that the sponsors to the application, or Zoghbi, were given prior notice that the Minister considered that Mrs Zoghbi failed to meet a required health standard nor an opportunity to make any submissions or proposals in respect of Mrs Zoghbi's condition before the application to migrate was formally rejected.

14. In February 1991 one of Zoghbi's brothers lodged, at the Perth office of the Minister's department, a form described as "An Application for Reconsideration by the Immigration Review Panel".

15. On 31 May 1990 reg.173A had been added to the Migration Regulations 1989 ("the Regulations"). Sub-regulation 173A(1) provided as follows:

"173A. (1) Where a person whose application under the provisions of
the Act as in force before 19 December 1989 for the grant of a
visa or entry permit has been refused after 18 September 1989:
(a) did not lodge under regulation 29B, 29BA, 29BB or 29BC of
the Migration Regulations as in force before 19 December
1989 a second application for the visa or entry permit; and
(b) is not entitled to apply under the provisions of the
Migration (Review) Regulations for review of the decision;
the person may make one application to the Minister, in a
form approved by the Minister, to reconsider the decision.
..."

16. It was apparently accepted that the application lodged by Zoghbi's brother was to be treated as an application by Zoghbi under reg.173A of the Regulations.

17. The request that the decision to reject the application to migrate be reconsidered was supported by a request that the rejection be revoked and that Mrs Zoghbi be granted a visa and to allow her to travel to Australia to undergo cardiac surgery in a private hospital in Perth at the family's expense and if the operation was successful that Zoghbi be granted the visa to migrate previously approved in principle.

18. In further support of the application for reconsideration of the decision, Zoghbi's brothers submitted details of the arrangements they had made to meet the cost of the operation estimated to be $20,000 to $23,000 and of the arrangements that would be made for Mrs Zoghbi to be admitted to a private hospital in Perth and for a specialist surgeon to carry out the necessary surgery. It was pointed out that it was either extremely difficult or impossible at that time for Mrs Zoghbi to undergo surgery in Beirut or Damascus.

19. On 26 July 1991 the Minister's delegate decided that the decision rejecting Zoghbi's application for a visa to migrate would not be reconsidered and the applicants now seek an order to review the delegate's decision.

20. The principal ground relied upon by the applicants was that the decision of the delegate involved an improper exercise of power. The application relied upon para.5(1)(e) of the ADJR Act and also stated that it was made pursuant to s.39B of the Judiciary Act 1903. No ground was specified for the exercise of the latter jurisdiction. Having regard to the case presented, it may be assumed that an order in the nature of certiorari quashing the decision was sought on the ground that the delegate misconceived her jurisdiction and failed to consider the true question. (See Public Service Association of South Australia v. Federated Clerks' Union of Australia, South Australian Branch [1991] HCA 33; (1991) 65 ALJR 610.)

21. The applicant set out various particulars in the application many of which were abandoned at the hearing or no submissions were made upon them. The essence of the case presented was that the discretion of the delegate had been improperly exercised due to an error of law on the part of the delegate occasioned by a misunderstanding of the true question in issue. Before discussing that question it is necessary to deal with several ancillary submissions made by the applicants.

22. It was submitted by counsel for the applicants that the delegate had failed to take into account a relevant fact, namely, that Mrs Zoghbi was arranging to have cardiac surgery in Europe after which she would resubmit herself for medical assessment. The delegate was said to have been apprised of that fact by information provided by the applicants' solicitor. The delegate denied that she held such knowledge and no evidence was provided by the applicants' solicitor that he had conveyed such information. I accept that the delegate was unaware of that fact at the time of her decision and did not fail to take into account a relevant consideration.

23. It was also submitted that the delegate took into account an irrelevant consideration, namely, that if Mrs Zoghbi were permitted to enter Australia as a permanent resident she would be entitled to have cardiac surgery carried out under, and at the cost of, the public health scheme available in Australia. Alternatively, it was contended that the arrangements Zoghbi and his brothers had made for meeting the cost of that medical treatment and, further, that a discretion vested in the Minister for Health under the Social Services Act 1947 to declare a person ineligible for the receipt of benefits under the Act were relevant matters not duly considered by the delegate according to the reasons for decision provided by the delegate.

24. The relevant passage in the delegate's reasons was as follows:

"c. ... As a permanent resident Mrs Zoghbi would be eligible for
Medicare benefits to support the cost of her surgery in a
public hospital, at taxpayers' expense.
d. A family member in Australia signed a statuary (sic)
declaration agreeing to meet Mrs Zoghbi's medical
expenses by taking a bank loan if she was permitted to
enter Australia. Whilst this indicated a willingness to
provide strong support if the family were allowed to
enter Australia it unfortunately would have little
effect, because permanent residents of Australia have an
inalienable right to Medicare."

25. Although the delegate appeared to be unaware of the discretion available to the Minister for Health, such a lack of knowledge did not vitiate the procedure which led to the delegate's decision. The decision was not based on an erroneous assumption of the fact that the Minister had no such discretion. (See Curragh Queensland Mining Limited v. Daniel, Unreported (Federal Court of Australia, Full Court, 14 February 1992).) The decision was arrived at after the delegate duly weighed the material before her and appeared to accept that the Zoghbi family would meet the cost of medical treatment if Mr and Mrs Zoghbi were given the right to enter Australia for the purpose of permanent residence as the following passage illustrates:

"The family in Australia were willing to provide funds so Mrs
Zoghbi could have the necessary medical treatment, I accepted
the family had demonstrated an awareness of and ability to cope
with this particular health problem."

26. It may be noted, however, that the delegate gave no consideration to this question in the context of a grant to Mrs Zoghbi of a visa approving her travel to Australia for the purpose of undergoing medical treatment under the terms of a temporary entry permit.

27. It was further submitted that the delegate improperly exercised her power by taking into account an irrelevant consideration by assuming that Zoghbi had four siblings in Lebanon and two siblings in Australia when the contrary was the fact. The relevant passage in the delegate's reasons read as follows:

"Mr and Mrs Zoghbi live with three of their four children in
Lebanon, their son Deny lives in Australia. Mrs Zoghbi has her
mother and three siblings in Lebanon and Mr Zoghbi has his
parents and four siblings in Lebanon and two siblings in
Australia. Clearly the majority of the family reside (sic) in
Lebanon."

28. Although knowledge of the true fact may have had some bearing on the weight the delegate attached to certain aspects of this question, not in itself a ground for review, it would still have been the fact as found by the delegate that the majority of the family resided in Lebanon. Any error of fact was not of the type or magnitude to render nugatory the decision-making process undertaken by the delegate.

29. I now turn to the central issue of the application for review.

30. Until 19 December 1989 the Act contained a general power to grant visas undivided into classes. The relevant provisions read as follows:

"11A. (1) An authorized officer may, in accordance
with this section -
(a) grant to a person, upon request by that
person, a visa with respect to travel to
Australia by that person and any person
whose name is included in the visa -
(i) on a single occasion;
(ii) on occasions aggregating not
more than a specified number
of occasions; or
(iii) on any number of occasions,
while the visa remains in force; or
(b) upon request by a person who is residing in Australia, or
has resided in Australia and wishes to return to
Australia, grant to that person a return endorsement with
respect to travel to Australia by that person and any
other person whose name is included in the return
endorsement on any number of occasions while it remains
in force.
'(1A) A request under subsection (1) shall be
taken not to have been made unless:
(a) the request is in writing in accordance with the relevant
form approved by the Minister; and
(b) any fee payable in respect of the request has been
paid.'.
(2) A visa or return endorsement -
(a) shall be in a form approved by the
Minister;
(b) shall come into force on the day on which
it is granted;
(c) shall be expressed to continue in force
until the expiration of a date specified
in it, or of a period specified or
otherwise described in it; and
(d) shall, notwithstanding that it is so
expressed to continue in force cease to be
in force upon cancellation under section
11B.
(3) For the purpose of sub-section (2) and subject to
sub-section (4), where a notation in a form approved by the
Minister as a form of visa or return endorsement is made by an
officer in a passport or other document of identity held by a
person and the notation does not specify the name of any
person as the person to whom it relates, the notation has
effect as if it were expressed to relate to the person holding
the passport or other document.
(4) Where the spouse or child of a person, being a
spouse or child whose name is included in the passport or
document of identity of that person, accompanies that person
to Australia, a visa or return endorsement granted by an
authorized officer to that person and written on that passport
or document of identity shall extend to that spouse or child
if, but only if, the name of that spouse or child is included
in the visa or return endorsement.
(5) An authorized officer shall not grant a return
endorsement to a person who is the holder of a temporary entry
permit.
...
11B. The Minister or an authorized officer may, in his
absolute discretion, cancel a visa or return endorsement at
any time by writing under his hand."

31. With effect from 19 December 1989 the Migration Legislation Amendment Act 1989 repealed provisions of the Act relating to the issue of visas and replaced them with a "Division 1A - Visas" which provided for Regulations to be made to establish different classes of visas and provide for the issue of visas subject to conditions. Furthermore, sub-ss.11E(1) and (2) of the Act (later re-numbered as sub-s.24(1) and (2)) were introduced in the following form:

"11E. (1) This section applies where, and only where:
(a) a person makes an application for a visa of a particular
class in the approved form and in accordance with the
regulations; and
(b) any fee payable in respect of the application is paid.
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant a visa."

32. Regulations known as the Migration (Criteria and General) Regulations, now the Regulations, were prepared pursuant to s.181 of the Act to be inserted by the Migration Legislation Amendment Act 1989 and were notified in the Commonwealth of Australia Gazette ("the Gazette") on 18 December 1989, one day before the amendments to the Act came into effect. Had para.48(1)(b) of the Acts Interpretation Act 1901 applied the Regulations would have taken effect from the date of notification in the Gazette but by virtue of sub-ss.4(1) and 4(2) of the Acts Interpretation Act 1901 the Regulations took effect from 19 December 1989.

33. (See Cecy Aban v. The Minister for Immigration, Local Government and Ethnic Affairs, Unreported (Federal Court of Australia, Full Court, 21 August 1991).)

34. It was agreed that the classes of visas introduced by the Regulations on 19 December 1989 and the powers of the Minister in respect of such visas did not govern the determination of a request under Reg.173A of the Regulations for the reconsideration of decision made in respect of an application for a visa lodged before 19 December 1989.

35. That course was followed in cognisance of the fact that any process of redetermination of the application for a visa consequent upon a decision to revoke the earlier decision would be subject to sub-s.6(4) of the Migration Legislation Amendment Act 1989 which came into effect on 19 December 1989 and which provided as follows:

"In spite of the repeal effected by subsection (1), the provisions
of the Principal Act relating to the granting of visas and entry
permits as in force immediately before the commencement of this
section continue to have effect after that commencement for the
purposes of applications for visas or entry permits made before that
commencement."

36. The application for reconsideration of the decision made in November 1990 was dealt with by the delegate by having regard to the powers available to the Minister under the Act as it stood before 19 December 1989 and to policy guidelines that had been issued by or on behalf of the Minister at that time. In fact, the process of determination of the application was carried out as if it were a review of the earlier decision.

37. However, in making her decision the delegate confused the law applicable to Zoghbi's application for a visa in October 1988 with the law as it stood after the amendments to the Act were effected by the Migration Legislation Amendment Act 1989 and misunderstood the scope of the discretion available to the Minister at the relevant time.

38. The submission on Zoghbi's behalf was that it was appropriate to reconsider the decision to reject the application for a visa by revoking that decision and refraining from making a final decision on that application until Mrs Zoghbi had the opportunity to undergo surgery and satisfy the medical assessment necessary for the grant of the visa to migrate. In support of that request for reconsideration of the decision it was pointed out on Zoghbi's behalf that arrangements had or could be made for Mrs Zoghbi to undergo surgery in Australia and that the cost of the operation had been secured by Zoghbi and his brothers. It was also submitted that it was likely that Mrs Zoghbi would meet the standard of health assessment applied by the Minister if Mrs Zoghbi were granted a visa to travel to Australia for the purpose of undergoing surgery and if the operation were successful.

39. Under the Act as it stood prior to the amendments effected on 19 December 1989 by the Migration Legislation Amendment Act 1989 the Minister had full power to deal with the migrant visa application in the manner proposed by Zoghbi.

40. It was the Minister's case that the application for reconsideration of the decision could not be fairly read by the Minister or his delegate as one containing such a proposal and that it was a request that the decision be reconsidered by waiving the requirement that Mrs Zoghbi satisfy a medical assessment and granting Zoghbi the visa to migrate. I cannot accept that submission. The word "waiver" was used in a letter from Zoghbi's solicitors accompanying the application for review and in a statutory declaration declared by one of Zoghbi's brothers but it was obvious that the use of the word was qualified in both instances and that it was not directed to an abandonment of the medical requirements set out in the policy guidelines but to suspension of the need for compliance with those requirements until Mrs Zoghbi had the opportunity to travel to and enter Australia on a temporary entry permit for the purpose of undergoing surgery after which further consideration of the application for a visa to migrate could proceed.

41. Indeed, the Minister's delegate understood that the request for reconsideration was based upon a proposal that the earlier decision be revoked and that Mrs Zoghbi be granted a visa to travel to Australia for surgical treatment as the following paragraph in her reasons for decision indicates:

"I found that the request for Mrs Zoghbi and family to be allowed
to enter Australia as temporary residents to enable medical
treatment to be undertaken could not be granted as no application
in this visa class had been made. This review was related to
their relative's application for reconsideration of the decision
to refuse them migrant entry visas. There is a special visa class
which allows persons to enter Australia for the specific purpose
of receiving medical treatment and it was open to Mrs Zoghbi to
apply for such a visa and subject to meeting the criteria of this
visa class would be able to travel to Australia for medical
treatment."

42. It should be noted that although the delegate referred to a request that Mrs Zoghbi and family be allowed to enter Australia on temporary entry permits, the principal proposal was for Mrs Zoghbi to travel to Australia for surgery with a further request that to assist her convalescence the other members of the family also be allowed to travel to and enter Australia on temporary entry permits.

43. The delegate apparently believed, erroneously, that the Minister had no power to act as requested. The delegate's reference to the need for Zoghbi or Mrs Zoghbi to make a fresh application for a visa of an appropriate class shows that there was a misunderstanding of the nature of the discretionary power available to the Minister under the law as it stood when the application for a migrant entry visa was lodged by Zoghbi. Consequent upon that misunderstanding the delegate gave no consideration at all to the merits or otherwise of exercising such a power by setting aside the decision to reject and deferring final determination of the application for a visa until Mrs Zoghbi had undergone surgery.

44. Having been previously satisfied that approval in principle should be given to the application for the grant of a visa to migrate subject only to satisfactory assessments of health, it was certainly open to the Minister to defer final approval or rejection of the application pending an opportunity for the applicant to satisfy him that the appropriate standard of health had been met. It was also within the Minister's power to grant a visa to Mrs Zoghbi to allow her to travel to Australia to receive that medical treatment as part of the process of determination of Zoghbi's application for a visa to migrate to Australia. Of course, it was open to the delegate to decide that it was inappropriate to reconsider the earlier decision after giving due consideration to the scope of the Minister's powers available for exercise but the delegate could not arrive at that decision by relying upon a misunderstanding of the law and refusing to consider the exercise of those powers at all.

45. As a matter of interest, the Regulations which came into effect on 19 December 1989 and confined Ministerial discretions which hitherto had been at large, made express provision for similar steps to those proposed by Zoghbi to be followed under the Regulations if a visa to travel to Australia for the purpose of migration had been applied for. Regulation 114 reads as follows:

"114. (1) Where:
(a) an applicant for a visa with respect to travel to
Australia for the purpose of obtaining permanent entry
to Australia, not being an Australian permanent
resident, has satisfied all the prescribed criteria in
relation to the relevant class of visas, other than any
prescribed public interest criteria or health criteria
that are applicable (in this regulation called 'the
remaining criteria'); and
(b) the applicant seeks to travel to Australia before the
remaining criteria have been satisfied;
the applicant is entitled, on satisfying the
criteria prescribed under subregulation (2), to be
granted an emergency (permanent entry) visa.
(2) The following criteria are prescribed in
relation to an emergency (permanent entry) visa:
(a) the Minister is satisfied that the entry to
Australia, before the remaining criteria have been
satisfied, of the person who has applied for the
visa would not be contrary to the interests of
Australia;
(b) the Minister is satisfied that the remaining
criteria will be satisfied by the applicant after
entry to Australia."

46. In its terms reg.114 is intended to operate where there is an application for a visa to migrate which could be said to have reached the point of being approved in principle. The use of the power provided by that regulation does not depend upon any separate or additional application for the grant of a visa under that or any other regulation. It may be noted that under sub-reg.13(2) of the Regulations a visa granted under reg.114 is not to be granted so as to have effect as a permanent entry permit. The grant of a visa under reg.114 is not the grant of a visa to migrate, application for which would remain in abeyance pending the use of a visa granted under reg.114.

47. The delegate's decision on Zoghbi's application for reconsideration of the decision to reject his application for a visa was grounded upon a fundamental misunderstanding of the powers available to the Minister if the decision to reject were set aside. It gave no consideration to the actual issues raised by Zoghbi's request for reconsideration of the Minister's decision. The result of that misapprehension was a constructive failure to consider and determine the request at all and the decision-making process miscarried entirely in respect of that application. As Beaumont J. stated in Mostyn v. Deputy Commissioner of Taxation (N.S.W.) (1987) 73 ALR 396 at 404:

"He assumed, wrongly, that because he could not amend the
assessment, he had no power to remit. There has been a
constructive failure by the respondent to consider, and to
determine in accordance with law, the applicant's request for
remission of the tax. In those circumstances, it is appropriate to
order that the respondent now consider that request and deal with
it according to law."

48. Such an error provides a ground under either para.5(1)(e) or 5(1)(f) of the ADJR Act on which the Court may order that the decision be reviewed. (See Broussard v. Minister for Immigration and Ethnic Affairs (1989) 98 ALR 180 at p 191; Haj-Ismail v. Minister for Immigration and Ethnic Affairs (1981) 36 ALR 516 at pp 534-535.)

49. I am satisfied that it would not be futile to return the matter to the Minister for determination according to law. One of the matters the Minister will take into account in deciding whether the decision to reject the application for a visa should be reconsidered will be the fact that in August 1991, after the ceasefire in Beirut allowed the restoration of some normality to that city, Mrs Zoghbi took the opportunity to undergo surgery in Beirut, apparently successfully. It will be necessary for the Minister to consider whether Zoghbi now satisfies the requirements which remained to be met when approval for the issue of that visa was given in principle in September 1990.

50. The application for an order for review will be granted and an order made that the decision of the Minister by his delegate be set aside and the application by Zoghbi for reconsideration of the decision to reject his application for a visa to migrate be returned to the Minister for consideration and determination according to law.