Centeno, A v Minister for Immigration and Ethnic Affairs

[1993] FCA 784

On 21 August 1990 the applicant applied in Manila for permanent residence in Australia under the "Concessional Family" category (class 105). In support of that application he filled up a form in which he asserted by ticking appropriate boxes that he could 0 speak English with little hesitation and few errors in most work and social situations and was able to write in English more complicated reports and letters in most social and work situations.

Question 25 on the form provided:

"What is your present mar i t a l s t a t u s ?

Married )

Engaged t o be married 0 )

L ~ v i n g i n a de f a c t o marriage r e l a t i o n s h i p 0 ) DAY MONTH YEAR

Widowed 0 ) - From what da te?	/	/
Divorced 0 j

Permanently and l e g a l l y separated 0 )

Temporarily separated 0 )

Never m a r r ~ e d 0 )

In answer to question 25 the applicant ticked the box "never married." Question 26 required the applicant to give details of any previous marriages and any de facto marriage relationships. In the column headed, "Name of previous spouses or de facto

marriage partners" he wrote the words, "not applicable."

Part 3 of the form headed "About your spouse" was prefaced by these words:

"Read t h e explanatory notes Par t 3.

For t h e purpose of t h i s form t h e t e r m "spouse" means a l e g a l l y married

husband o r wlfe, o r a pa r tne r i n t h e de fac to marriage re l a t ionsh ip , o r

a f iance.

I f you do not have a spouse go t o Par t 4."

Under the heading "Part 3, about your spouse," question 29 provided :

"29.	Will your spouse migrate with you?
NO Why not? Not Applicable 0

Yes 0"

In answer to question 29 the applicant wrote the words "not applicable."

No other question in Part 3 was answered. No entry at all was made in Part 4 headed, "About your Family" which inquired whether the applicant or his spouse had any children and sought details:

"For all children of both yourself and your spouse (including those

from previous marriages or relat~onshrps and adoptrons)."

The form concluded with a declaration above the applicant's signature reciting, amongst other things:

"I declare that the information I have supplred in thls form and rn any attachments is correct and up-to-date in every detarl and that I withdraw any previous applicatrons made by me to migrate to Australia. I understand that if I have glven false or misleading information my

applicatron could be refused. I could be refused entry to Australia or	I could be deported after I arrive in Australia. I declare that I have
read and understood the information supplied to, and in particular the informatron contained in the explanatory notes to thrs application."

On the basis of the information supplied in that application form the applicant was granted a concessional family visa and a permanent entry permit. He arrived in Australia on 4 October 1991 and remained here until August 1992 when he returned to the Philippines, as he has deposed, to visit his dying mother. He returned to Australia on 14 September 1992 having married Maria Ana Fajardo in the Philippines on 12 September 1992.

It now appears that in 1983 the applicant commenced a relationship with MS Fajardo as a result of which she has born him three children whose dates of birth are respectively: 20 December 1984, 10 December 1990 and 7 January 1992. On 11 March 1993 she made application on behalf of herself and the three children to migrate to Australia sponsored by the applicant.

It was argued on behalf of the applicant that a serious question to be tried has been shown to be raised by his application under the Administrative Decisions (Judicial Review) Act for a review of the decision to deport him. It is first contended, as I understood the argument, that it was not open on the evidence before the decision-maker to conclude that the application for a concessional family visa embodied a statement that was "false or misleading" within the meaning of s2O()(c)(ii). It is accepted that the falsity or misleading character of a statement is to be determined as a matter of objective fact. That is borne

out by sub-s.20(12) which provides:

a statement that was false or misleading in a material particular is a	"A reference in this section to a person maklng or causing to be made
reference to a person mak~ng or causing to be made such a statement, whether or not the person knew that the statement was false or m~sleading in a material particular."

However, the applicant contends that it was not misleading for him to pass over the box labelled, "living in a de facto relationship" and tick the box, "never married" because his relationship with MS Fajardo could not, in July 1990, when he

filled out the application form, or at any relevant earlier or

later time, be characterised as a de facto relationship.

The applicant has deposed, in his first af fidavit sworn 4 October

"2. In August 1990 I applied for permanent residence at the Australian Embassy, Manilla, Philippines, under the Concessional Family category (class 105). I was not married and had not been marrred to any person and accordingly descrrbed myself as "never married." Nothing was said to me and no attempt was made to explain that marrlage was rntended to include anything apart from being legally married. I was not interviewed at thrs time.

4. From 1984 until my departure in 1991 I had a girlfriend named Maria Ana Fajardo and had a chrld Mark Ahlian with her out of wedlock on 10 December 1984. I was not living with her on a permanent basis

and I cont~nued to resrde wlth my parents at number 922 Mojon Malolos Bulacan. On occasions, however, I d ~ d stay wrth her. We had another child named Mark Angelo, born 20 December 1990 and a third chrld Angeline was born 7 January 1992.

5 . In the Philrppines there is no such relatronship as a de facto relationship. It is either you are marrled or single."

However, the applicant was interviewed on 13 August 1993 by two officers of the Department of Immigration and Ethnic Affairs, one of whom later made a prime facie assessment that sub- s.20(1) (c) (ii) of the Act applied to Mr Centeno. The other interviewing officer, MS Fleming, on 20 September 1993 prepared

a submission recommending the signing of an order for the	deportation of the applicant.
Atyped record of that interview contains the following passages:

"Mr Centeno said that he did not require an interpreter. He said that he had learnt "American" Englrsh at an elementary level. He sard that he knew technical English.

In the Philipprnes he lived at 922 Mo~on Malolos Bulacan. He lived there for 29 years (i.e. all of his life until he mrgrated to Australia) wlth his parents. In October 1983 he began a de facto relationship with his girl friend, Maria Ana Fajardo. She was a neighbour and childhood friend he said rt was best for her to move as her father drank a lot.

Mr Centeno said that he completed the application form (M47) rn his own hand. He said that he understood the form. At t h ~ s point Mr Centeno sard that he had a problem with the form. He said that at the time his sister was sponsorLng him (August 1990) he already had one child, Mark

Ahl~an Centeno d.0.b. 10.12.1984.

He sard that he did not declare that he had a de facto partner on the form because it rs illegal to be in a de facto relatronship in the Philippines.

Mr Centeno said that he was m a de facto relatronship wlth Maria Ana Fajardo from October 1983 unt~l his departure to Australra in October

1990. He sard that he returned to the Phrlippines for a month in August 1992 to see his famrly includrng his dying mother. While he was

there he marrred Maria Ana Falardo on 12 September 1992. He sard that they were married by a judge in a municipal court and showed us the marriage contract. He said that only resident's certifrcates and money are needed to get marrred.

Mr Centeno said that nerther he nor his wrfe had been marr~ed before. Mr Centeno reiterated that he had been lrvina in a de facto relationshrp. When asked to deflne de facto relationshrp he said, we live together as husband and wife, but wlth no certificate.

He said that they lived in that relatronship from 1983 untrl 1991. Mr

Centeno said that he now had three ch~ldren, Mark Ahl~an Centeno, dob 10.12.1984, Mark Angel0 Centeno, dob 10.12.1990, Angeline Centeno, dob 7.1.1992. I asked Mr Centeno why he had not t~cked the box labelled

"liv~ng m a de facto relationship" on the M47 applicat~on form. He

said that he thought that ~mmigratron may have required a certificate showing that he was together with his wife, ie, married, and as he did not have one, he ticked "never married".

Mr Centeno said that he wanted to go to Australia first to see if it was suitable (what the lifestyle was lrke) then bring out the family. He wanted a safe place for hrs family. At first he was unemployed in Australia. He wanted to work first and not rely on hls sister and brother-in-law.

....

I showed Mr Centeno page 7 of the M47 applrcation form where it is

stated that: "For the purpose of thrs form the term "spouse" means a	legally married husband or wife or a partner in a de facto relationship
or a f~ance." I asked him why he wrote "not applicable" at this section. He said that he thought that immigration would take a long time to process his application because he had no evidence of his de facto relationship. I asked Mr Centeno why he had not completed Part 4 of form M47 which asks "about your family" and states that "details of all children from marriages or relationsh~ps and adoptions must be given". Mr Centeno said it was his mrstake that he had not completed the section. He sard that he was worried that his application would have been refused if he had completed thls section. He also said that it would have shown his child to be illegitrmate. Mr Centeno said that his srster, who sponsored him, had not known of his de facto relationship or his child. He said that he drd not want her to find out, that he was scared and ashamed.
When asked why he drd not just get married in the first place, he said that at the time they were too young and that his wife was unsure and scared as her sister had a bad marriage and separated. I asked Mr Centeno why his children's b~rth certrficate states that he married Maria Anna Fajardo on 16.10.1984. He said that his wrfe told the midwrfe that to cut the conversation short, as it is not acceptable to have illegitimate children in the Philippines. He said that the date
was meant to be m October 1983, which was when they started living together.
Mr Centeno said that hrs wife was expecting a child when he lodged his application form in September 1990. He said that another child was being expected after hrs arrival in Australia. Mr Centeno then sard that his famrly has only been supported by him since arriving xn Australra. He was unemployed 10 months (October 91-August 92). From September 92 he has worked as a press operator. Mr Centeno then wrote hrs own versron of reasons and events as he saw them."

In a supplementary affidavit sworn on 4 October 1992 the applicant has sought to discount the significance of that record

of interview by deposing in respect of it:

"Thls document, which 1s supposed to be a record of rntervrew, is in fact a summary and rs extremely misleading and selectrve in what 1s and rs not included. I only recently came to understand what constitutes a de facto relationshrp in Australra when I spoke to my sister last year before I sponsored my wife. Previously I did not understand the meaning of a de facto relationship. The department officers used the word "de facto" at all times when questronrng me. I used the word "de facto" because their quest~ons always referred to me as having been in a de facto relationshrp. The questrons that they asked are not included in the statement summary."

However, the applicant has not referred at all to his own version of events which is noted at the conclusion of the record of interview and was in his own handwriting. That latter document was in these terms:

"I, Angelito Centeno, resident of Australia, need a help of Department
of Immrgratron, Local Government and Ethn~c	Affairs regarding on the

applicatron of my family (wife and three children). I am very sorry of not declaring that I am living in de facto relationship and I have one child on that time because of de facto relationship is not allowed in our country, or in other words, you can lrve w ~ t h your husband/wife but

have no certificate showing that you are legally married.	Then when I
submit my application (47) in the imm~gratron	overseas I am expecting
my second chrld. And f~nally	when my application approved expectrng

again my last and th~rd baby. I am worried because I am not declare my spouse and my dependent children at the trme when completing the form. I love my wife and my children. I want to live them with me as a whole famrly, so please forgrve me to all mistake what I did because I am innocent. Our relationship is genurne, and to prove that I am working hard to grve them a better future here in Australia."

That statement was signed by the applicant and witnessed by one of the departmental officers. It should also be borne in mind that the departmental decision-makers had before them the form completed by the applicant's wife in support of her own application to migrate to this country. That form indicated that she and the applicant had lived together from October 1983 to October 1991 at 922 Mojon Malolos, Bulacan in the Philippines.

The enclosed birth certificates for each child showed the applicant as the father and recited that the parents had been married at Malolos, Bulacan, on 16 October 1984. In my view there was ample evidence before the decision-maker to support a finding of fact that the applicant was living in a de facto relationship, as that expression was used in the department's form, between August 1990 and October 1991. Indeed, the preponderance of the evidence tends to that conclusion. I observe parenthetically that this is not a case like Michalowski v Minister for Immigration, Local Government and Ethnic Affairs

(1992) 35 FCR 265 where Keely J observed at 270:

"In my opinlon rn s.20(2) of the act the words "the person made or particular" do not refer to a person who has only failed to supply further	caused to be made ... a statement that was false or misleading in a material
information to an off~cer a.n relatron to events which occurred four months after the application was lodged."
By contrast, in the present case the presumptively false or misleading statements were embodied in the application for a visa itself. Accordingly, I am not persuaded that there is a serious question to be tried as to whether the characterisation of the applicant as an illegal entrant was infected by some error of law.
It was argued in the second place that even if it were open to
find that the applicant had made a statement which was false or
misleading within the meaning of s.ZO(l)(C)(ii) its falsity or misleading character did not inhere in a material particular. I reject that submission. A material particular is one which a reasonable decision-maker may, not must or will, take into account in arriving at the decision or exercising a discretion with which he or she is entrusted by the statute. Thus a Full
Court of this Court in the M i n i s t e r for Immigrat ion Local
Government and E t h n i c A f f a i r s v Dela Cruz (1992) 34 FCR, 348,
observed at 352:

"s.20(1) does not apply to statements that are merely false or misleading. There is the added requirement that the statement must be false or misleading in a material particular. In the context of s.20(1) a statement wrll be false or misleadrng rn a material particular rf it rs relevant to the purpose for which rt rs made, see Jovcevsks v The Minzster for Immlgratzon Local Government and Ethnic Affairs (unreported, Federal Court, Lockhart J, 12 October 1989). A statement will be relevant to that purpose if ~t may - not only if it must or rf it will - be taken ~ n t o account in making a decision under the Act as to the grant of the visa or entry permit in respect of whlch the statement is made.

For present purposes it rs suffrcient to say that a statement made to an immigration official by a person seekrng to enter Australia whrch conveys a false or misleading impression of the person or of his or her circumstances would be false or misleading in the material particular. Immrgration officials are entitled to seek and to be told the truth about a person applying to enter Australia so that they may be m a

position to evaluate the application made to them. it desrrable to ask further questions about the subject matter of a They may consider	statement made to them and, with answers to further questions, the
statement may be more useful. But it does not follow that without further questions the statement is not material in the sense rn which that word is used in s.20(1).
One of the questions which Mr Dela Cruz was required to complete both on the application for a visa and on the incoming passenger card was the question as to marital status. On both documents, Mr Dela Cruz marked the box "now married". This was false. Each document therefore contarned a false statement and gave a misleading picture of Mr Dela Cruz's circumstances. It is not necessary in the present appeal to consider whether the false statements were made delrberately."
Woodward J, said in Rojas v The Minister for Immigration and Ethnzc Affairs, (unreported Federal Court, 10 November 1986):

"There can be no doubt, in my vrew, that a statement by an intending migrant that he has never been married when in fact he is married with one child and living with his wrfe and chrld, rs a statement which is false in a material partrcular.""

- l0 -

The materiality of a particular piece of information is not circumscribed, as M r Patterson of Counsel for the applicant contended, by the express terms in which criteria for the grant of a specific type of visa are formulated by the Regulations. It may arise indirectly from those terms or, as the Full Court indicated in the passage just quoted, from the need of immigration officials to be apprised of the personal circumstances of an applicant to enter this country. In my view it cannot be said that the existence of a long-standing and continuing emotional and sexual relationship which had produced three children is not material in that sense.

Accordingly, there is no serious question to be tried that the department's finding of falsity or misleading character was limited to something which was not a material particular of the relevant statement. For these reasons the application for interlocutory relief is refused with costs.

I certify that this and the preceding nine (9) pages are a

true copy of the ex tempore

reasons for judgment of his
Honour Mr Justice Ryan

sociate: Qslc W

Date : a% G d d l L J (9q3

Counsel for the applicant:  Mr J Patterson

Solicitor for the applicant: Canda & CO

Counsel for the respondent:  Mr A L Cavanough

Solicitor for the respondent: Australian Government Solicitor