IN THE FEDERAL COURT	)
OF AUSTRALIA		)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)	No. WAG 63 of 1994
GENERAL DIVISION	)

BETWEEN:			DAVID JOHN CAWDELL IRVING
Applicant

and

MINISTER OF STATE FOR
IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC
AFFAIRS
Respondent

CORAM:	CARR J.
PLACE:  PERTH
DATE:   31 AUGUST 1995

REASONS FOR JUDGEMENT

Introduction

This is an application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for an order of review in respect to two decisions made by the respondent on 3 May 1994. The first decision was to refuse an application made by the applicant, Mr. David John Caldwell Irving, on 7 December 1992 for a Business Visitor (Short Stay) Visa. In summary, the respondent refused that application on the ground that Mr. Irving did not meet the good character requirements of Regulations 2(1) and 4(1) of the Migration Regulations 1989 ("the 1989 Regulations"). The respondent decided also that he would not exercise the power conferred on him by Regulation 143 of those regulations wo waive that requirement, because Mr. Irving had not shown by subsequent conduct that "he is reformed." The respondent's second decision was to refuse Mr. Irving's application, again for a Business Visitor (Short Stay) Visa, made on 3 June 1993. This second application and the decision upon it were made under a different statutory and regulatory regime to the first application and decision. When making the second decision the respondent determined, pursuant to s.180A(2) of the Migration Act 1958 (Cth)("the Act"), that Mr. Irving was not of good character and further that Mr. Irving failed to meet all the requirements of the public interest criterial set out in Schedule 4 of the Migration (1993) Regulations ("the 1993 Regulations"). The second decision also involved a decision not to exercise the discretion to waive the good character requirement.

For the benefit of anyone reading these reasons who is not a lawyer, I think it is appropriate that I should, very briefly, say something about the Court's function in this matter. It is not for the Court, in applications of this type, to decide the merits of the matter in the sense of whether Mr. Irving should be granted a visa. That decision is an administrative one to be made by the executive arm of government. The Court's role is to review the administrative decisions to ascertain whether they were made in accordance with the law, including any procedures which may expressly, or by implication, condition the decision-making process. As part of that process, the Court may have regard to the merits of the matter if the Court is asked to set aside a decision on the basis that the decision was so unreasonable that no reasonable decision-maker could have made it. This is a step which the Court will not take lightly. It proceeds with particular caution when considering a submission to that effect (i.e. of manifest unreasonableness) lest it usurps the administrative function of weighing and balancing the merits of the matter.

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