Collector of Customs v Bell Basic Industries

[1988] FCA 371

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT	REGISTRY ) NO. G 1067 Of 1988

)

GENERAL DIVISION )

BETWEEN: ERIC RABANES CACHA

Applicant

AND: THE MINISTER OF STATE FOR

IMMIGRATION AND ETHNIC AFFAIRS

CORAM: Neaves J.

DATE:	15 July 1988
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REASONS FOR JUDGMENT

. - - _ -

On 11 July 1988 Idismissed, with costs, an

application by Eric Rabanes Cacha ("the applicant") for an order staying the operation of a deportation order made against

him on 27 June 1988 pending the hearing and determination of an application under the Admlnlstratlve Decisions	(Judicial
Review) Act 1977 (Cth) ("the Judicial Review	Act"). That

writing for the order so made. What follows are those reasons.

application was for an order of revlew in respect of decisions
made on that date under the Mlgration Act 1958 (Cth) ("the
migration Act") refusing the appllcant a temporary entry
permit, refusing him permanent resident status and ordering his
deportatlon. I then stated that I would publlsh reasons In

The ground on which the applicant proposed to rely In support of the substantlve application is that set out in s.5(l)(a) of the Judiclal Revlew Act,namely that a breach of the rules of natural justice occurred in connection with the making of the decisions. Two partlcular matters were foreshadowed. It was said that at the substantive hearing it would be submitted that the declsion-maker based his decisions to refuse permanent resident status and to order deportatlon upon an inference adverse to the applicant concerning the latter's method of entry into Australia, being an inference that he entered Australia upon production of a passport that

was obtained in the Philippines by false representation,

without having given to the applicant an adequate opportunity to be heard on that question. It was further said that a denial of natural justice occurred by reason of the failure of the decision-maker to furnish to the applicant, as requested, a

statement under s.13 of the Judicial Review Act.

On the hearing of the application, the Court had

before it the affidavit of Elmerito Cacha, the applicant's

father, sworn 6 July 1988 and the oral evidence of the
applicant and of James Williams, an officer	of the Department
of Immigration,	Local Government and Ethnic Affairs ("the
Department").

The applicant is a single man, 19 years of age. He

was born in the Philippines on 28 October 1968. He is a

citizen of that country. He arrlved in Australia with his mother, Elena Cacha, on 9 March 1987. He presented a Phlllppines' passport endorsed wlth an Australian vlsltor vlsa.

The passport was in the name Erickson	Torres. Upon his arrlval
he was granted a temporary entry permlt	permitting his stay In
Australia for 6 months. No further entry permit was	granted to

him so that, unless he was already a prohibited non-citizen by virtue of s.16 of the Mlgration Act, he became such upon the expiration of the temporary entry permit granted to him on 9 March 1987. I did not find It necessary to consider the question whether, by virtue of the operation of s.16, the

applicant was a prohibited non-citlzen during the period when

he was the holder of a temporary entry permit.

The appllcant's father marrled the applicant's mother

In the Phillipines in 1963. They separated in 1967, shortly

before the applicant's birth. The appllcant's father entered Australia on 26 March 1982 as a tourist. He overstayed the period for which he had been granted a temporary entry permlt.

'He subsequently entered into a de facto relationship with one

Pauline Barton. On 13 May 1987 he was granted permanent

resident status. He apparently paid the rent of a flat at an

address in Parramatta where the applicant and his mother lived

after their arrival In Australla.

On 3 May 1987 the applicant was detained as belng, or on suspicion of belng, a prohibited non-citizen. He was interviewed by an officer of the Department on the following day. The appllcant said that his famlly name was "Torres" and his given name "Ericson". He also said that he had used the name "Eric Rabanes", the reason given for its use being stated

as "Not to be caught by Immigration". He further said that he was living with hls mother at an address In Parramatta and that he was supporting her financially. Asked the whereabouts of his father, he said: "He 1 s already dead". ne made no mention of the name "Cacha".

On 23 May 1988, an order was made for the applicant's

deportation. After that order had been slgned, a copy of an application that the applicant be granted permanent resident status was received in the Department from the applicant's

solicitor. It was asserted that he application had been sent to the Department at an earlier date but nothing turned on that for the purpose of conslderlng the application before the Court. That application was in the name "Cacha", as was the applicant's birth certificate. The deportation order made on 23 Nay .l988 was subsequently revoked and the matter reconsidered.

On the same day, 23 Nay 1988, Mr Williams had a telephone conversation with the applicant. Part of what was

then said, as recorded contemporaneously by Mr Williams, was as

follows: 

"Q. Why did you say in your interview on 4

May that your father is dead?

A. When I said it I was confused. I dldn't

know if I should tell the truth.

.	...
Q. In your interview you made no mention of

the name Cacha, hut	I notice you are
using this name	in your appllcation.
Why?

A. Because I didn't know what to do Whether to tell the truth or not."

On 2 4 May 1988, a further telephone conversation took place between the applicant and Mr Williams. Mr Williams' contemporary note of the conversation reads:

"Q.	If your blrth certiflcate is in the name Cacha, why is your passport in the name Torres?
A.	I have no idea. I am just using the wrong name.
Q.	Is the Ericson Torres passport a false passport?
A.	It 1s my grandparents name.
Q.	How did you get that passport in a different name?
A .	In the Philippines we can get a passport.
Q.	Did you give them a false name?
A.	Yes.
Q.	Why did you want to come to Australia in

a false name?

A. I have no idea. My relatives told me to

use a false name."

It was common ground between the parties that a copy of Mr Williams' notes of the conversations with the applicant on 2 3 and 2 4 May 1988 was not furnlshed to the applicant or to his sollcitor.

By letter dated 2 4 May 1988, Mr Williams, on behalf

of the Department, requested the applicant's solicitor to furnish by the close of buslness on 27 May 1988 evidence as to the nature of the applicant's dependency upon hls father. In response to this request a statutory declaratlon made by Pauline Barton was furnished to the Department.

In an interview wlth an officer of the Department on 30 May 1988, the applicant's father, speaking of the applicant, said:

"When he come here he changed hls name to Erlc wife was angry with me when we separated so she forced him to use Erickson Torres. I don't know where 'Torres' comes from." Rabanes. H I S real name is Erlckson Cacha. My

Also in evidence was a submisslon dated 17 June

1988 upon which the decisions were taken to refuse the

applicant a temporary entry permit and permanent resident status and to order hls deportation. The submission had a number of attachments. Most, but not all, of the

attachments were in evidence. It did not appear from the

material before the Court to what extent the decision-maker

purpose of considering the application then before the	had accepted what was said in the submission but, for the
Court, I assumed that he relied upon the whole of that
material in reaching his decisions.

The submission discussed the applicant's

eligibility for the grant of permanent resldent status pursuant to pars (b) and ( e ) of sub-s.6A( 1) of the MlgKatiOn Act and whether it was appropriate to grant hlm a further

temporary entry permit. The submlsslon contained the

following paragraph:

"24. Your attention is also drawn to the fact that M r Cacha assumed a false identlty in order to enter Australia and a further alias to avoid detection subsequent to arrlval. He was aware of the conditions of his vlsa yet commenced employment the day after he arrived in Australia. It is submitted that those factors in favour of the grant of resident status are outweighed by those agalnst and it is recommended that you decide accordingly. Addltionally, if you decide to re~ect the application for resident status, it is open to you to conclude that the grant of permission to work 1 s Inappropriate and you may decide to refuse such a grant.

In a subsequent paragraph (par.27) there was a reference to the applicant having become a prohiblted non-citizen "by entering Australia on a passport that he knew to be In a false name".

The deportation order dated 27 June 1988 recited that the applicant had entered Australia on 9 March 1987 and that he -

"is deemed to be a prohibited non-citizen by
virtue of	sub-section 16(1) of the Mlgration Act

1958, in that he had not, at the tlme of that

entry into Australia, produced to an officer, in

respect of that entry, a passport that was obtained by false representation, and he 1 s not the holder of an entry permit of the kind referred to in that sub-sectlon."

A request for a statement under s.13 of the

Judicial Review Act was made on behalf of the applicant by letter dated 1 July 1988. The statement had not been furnished when the application for a stay of the operation

of the deportation order came before the Court.

In his oral evidence, the applicant agreed that his

correct legal name was Erickson Cacha and that he entered Australia under the name Erickson Torres. He explalned that Torres was the maiden name of his maternal grandmother and that Rabanes was the family name of his maternal grandfather. He said that his mother wanted him to use the family name “Torres” because his father had abandoned them and that he had used that name in the Philippines. He confirmed in cross-examination answers which he had given In the course of the interview with an officer of the Department on 4 May 1988 and answers given to Mr Williams during the telephone conversations on 23 and 2 4 May 1988.

He answered affirmatively a question put to him in

cross-examination that his mother made false representations

in order to obtain his passport.

On the material before the Court I was not

satisfied that there had been shown to be a sufficiently agruable question to be trled that a breach of the rules of natural justice occurred in connection wlth the maklng of the decisions the subject of the substantive application. On the evidence, the applicant clearly had had an opportunity to explain to Mr Williams the circumstances in which hls passport came to be issued in the name "Er1ckson

Torres" . I was unable to accept the submission put on

behalf of the applicant that a denial of natural justice occurred when Mr Williams did not volunteer to the applicant

or his solicitor a copy of his notes o f the telephone

conversations on 23 and 24 May 1988. Nor was I able to accept the submission that the declsion-maker was bound, before concluding that the applicant's passport had been obtained by false representatlon, to inform the applicant or his solicitor o f his intention to draw that conclusion from the material which the applicant had put before him. To have accepted that submission would have run counter to what was said in Sinnathamby v. Minister f o r Immlgration and Ethnlc Affairs (1986) 66 A.L.R. 502 at pp.506, 512-3.

I was also of opinion that the circumstance that a

statement pursuant to s.13 of the Judicial Review Act had not been furnished prior to the matter coming before the Court provided no basis for the submission that, in reaching

the decisions in question, there had been a breach of the

rules of natural justice. Nor, in my view, did the absence

of such a statement provide any basis	for granting a stay of
the operation of	the deportation order pending such a

statement being furnished: see Capello v. Minister for Immigration and Ethnic Affalrs (1980) 2 A.L.D. 1014; Canberra Labor Club Ltd v. Hodgman (1982) 47 A.L.R. 781; Gonaseelan v. Minister for Immlgration and Ethnic Affairs (unreported - Morling J. - 22 February 1985); Alpaslan v.

Minister for Immigration and Ethnic Affairs (unreported -
Keely J. - 23 December 1985).

In exercising the Court's discretion in the matter,

I also had regard to the circumstance that, having regard to

the whole of the material before the decision-maker, ~t was unlikely to be shown that the circumstances of the applicant's entry into Australia were regarded by him as signlficant in view of the fact that, on any view of the matter, the applicant had become a prohlbited non-citizen by overstaying the period for which a temporary entry permit had been granted.

I certify that thls and the preceding 9 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

Dated: 15 July 1988

For the applicant : Mr N.L.A. Barlow

of Barlow fi Co.

For the respondent : MS C. Ceramldas of the

Australian Government

Solicitor's Office

Date of hearing : 11 July 1988

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