Ejueyitsi v Maloney [No 2]

[2007] WASCA 227

EJUEYITSI -v- MALONEY [No 2] [2007] WASCA 227

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 227
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:109/2006	Heard:	13 JUNE 2007
Coram:	McLURE JA PULLIN JA BUSS JA	Delivered:	30/10/07
No of pages:	35	Judgment Part:	1 of 1
Result:	Application to review single judge decision refused
Category:	B
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Parties:	VINCENT BABATUNDE EJUEYITSI JOHN MALONEY
Catchwords:	Criminal law Charge of making a statement that to the appellant's knowledge was false in a material particular pursuant to Migration Act 1958 (Cth), s 234(1)(b) Whether statement was false in a material particular Turns on own facts Criminal law Review of single judge decision Applicable principles
Legislation:	Migration Act 1958 (Cth), s 234(1)(b)
Case References:	BPR v The State of Western Australia [2007] WASCA 41 Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998) Ejueyitsi v Maloney [2006] WASC 146 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Keating v The State of Western Australia [2007] WASCA 98 Lawless v Turner [2007] WASCA 127 Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 Musgrave v Martin [2003] FCA 920; (2003) 130 FCR 546 Revlon Manufacturing Ltd v Commissioner of Taxation (1995) 63 FCR 535 Su v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 681

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EJUEYITSI -v- MALONEY [No 2] [2007] WASCA 227 CORAM : McLURE JA

PULLIN JA
BUSS JA

HEARD : 13 JUNE 2007 DELIVERED : 31 OCTOBER 2007 FILE NO/S : CACR 109 of 2006 BETWEEN : VINCENT BABATUNDE EJUEYITSI

Appellant

AND

JOHN MALONEY
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : WHEELER JA

Citation : EJUEYITSI -v- MALONEY [2007] WASCA 3

File No : CACR 109 of 2006

Catchwords:

Criminal law - Charge of making a statement that to the appellant's knowledge was false in a material particular pursuant to Migration Act 1958 (Cth),

(Page 2)

s 234(1)(b) - Whether statement was false in a material particular - Turns on own facts

Criminal law - Review of single judge decision - Applicable principles

Legislation:

Migration Act 1958 (Cth), s 234(1)(b)

Result:

Application to review single judge decision refused

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr D W L Renton

Solicitors:

Appellant : In person
Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

BPR v The State of Western Australia [2007] WASCA 41
Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998)
Ejueyitsi v Maloney [2006] WASC 146
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Keating v The State of Western Australia [2007] WASCA 98
Lawless v Turner [2007] WASCA 127
Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348
Musgrave v Martin [2003] FCA 920; (2003) 130 FCR 546

(Page 3)

Revlon Manufacturing Ltd v Commissioner of Taxation (1995) 63 FCR 535
Su v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 681


(Page 4)

1 McLURE JA: I agree with the reasons of Buss JA.

2 PULLIN JA: This apparently minor case has serious consequences for the appellant. His conviction means that he will not be able to migrate to, and permanently reside in, Canada. The appeal is from the decision of Wheeler J, who refused leave to appeal against the judgment of Justice Hasluck, who had refused to grant an extension of time to appeal against his conviction on 24 October 2001.

3 The appellant faced two charges:

1. that on 1 April 1999, in connection with an application for a further visa permitting a non-citizen to remain in Australia, he delivered to an officer performing functions under the Migration Act a document containing information that was false in a material particular, namely that in an application to remain permanently in Australia form dated 22 March 1999, he falsely stated that he first met his spouse in July/August 1997; and

2. that on 22 June 1999 he made to an officer performing functions under the Migration Act a statement that to his knowledge was false in a material particular, namely that he had lived at 3/187 Hardey Road, Belmont since 1997,

contrary to s 234(1)(b) of the Act.

The documents containing written answers given by the appellant

4 The document referred to in the first charge is titled 'Application to remain permanently in Australia'. At question 48 in that form the appellant was asked 'when, where and how did you and your spouse first meet?' His answer was 'July/August 1997, met at Perth Casino'. Question 49 read 'give details of ALL the addresses at which you and your spouse have lived together and how long you stayed together at those addresses'. The answer is 'Unit 3/187 Hardy Road, Belmont'. The question asked for details about the period of time and the answer was '/97 to /99'.

5 Question 51 asked for details of his marriage, which he revealed as taking place on 28 February 1999.

6 Another form was also completed by the appellant, dated 22 March 1999 and titled 'Personal Particulars for Character Assessment'. The printing on the form indicated that the information in it 'will be used for assessing your eligibility for a visa to travel to, enter and remain in Australia as applied for and for other purposes relating to the

(Page 5)

administration of the Migration Act'. In this document, following earlier questions which he answered indicating that his spouse was Nola Khan and that his home address was 3/187 Hardey Road, Belmont, he was asked in question 15 for 'previous addresses of the places where you have lived for 12 months or more during the last 10 years (including Australia) you must account for every year (if insufficient space, give details on an attachment)'.

7 He then provided three addresses the details being as follows:

02/97 to 09/97 Cherry Street, McLeod, Victoria.

09/97 to 01/99 Curtin University Hostel

01/99 to present Unit 3/187 Hardy Road, Belmont

By way of comment, it may be observed that the appellant did not here contend that he 'lived' at Unit 3/187 Hardey Road in 1997.

8 Reading the answers in these two forms makes it impossible to assert that the appellant represented that he lived at Unit 3/187 Hardey Road, Belmont since 1997, because the answer to question 15 contradicts that assertion. All that can be said is that there was ambiguity which required clarification.

The interview by Mr Hughes

9 After these forms had been completed, the appellant was interviewed by Mr Hughes, a migration officer on 22 June 1999. Mr Hughes took with him a typed written list of questions with a space after each so he could write down the answers given by the appellant. Mr Hughes produced this document at trial and it became an exhibit. The relevant questions and answers are set out below, and it is to be understood that the answers appear in Mr Hughes' handwriting. The questions and answers read:

Q: What is your current address?

A: 3/187 Hardy Rd Belmont.

Q: How long have you resided at that address?

A: Since 1997.

Q: What is your spouse/partner's name and date of birth?

A: Nola Khan - 13/1/55.

(Page 6)

Q: When and where did you first meet them?

A: At Burswood Casino unable to remember date met each other.

Q: Where you introduced (and if so, by whom) or did you meet by chance?

A: Met by chance.

Q: When and where did you start living together?

A: Claimed in Jan/Feb 99 but was staying there frequently before.

10 It is quite apparent from the last answer that Mr Hughes was not taking down a verbatim answer to all of the questions. This Court has had the opportunity of seeing and hearing from the appellant because he represented himself. He speaks very quickly and is difficult at times to understand. The transcript of the hearing in the Court of Petty Sessions makes it obvious that the transcriber had great difficulty in understanding him.

11 It is again important to interpose in this recital of the facts to note that the appellant was not asked in this interview how long the appellant 'lived' at Unit 3/187 Hardey Road, Belmont. He was asked how long he 'resided' at that address. The significance of this distinction is explained later in these reasons.

12 Mr Hughes' evidence about what happened at the time he was taking down the answers is explained in this passage from the cross-examination of Mr Hughes in the Court of Petty Sessions:

So you interviewed her while he was outside somewhere, or - - ?---Waiting in our public area, yes.

And she went out and he came in, when you interviewed him, or vice versa, whichever way. I notice also when you are reading out the file notes from both of them they were, for example, if I can take you to the file note on the interview with Mr Ejueyitsi, there is a question near the bottom, third question from the bottom, 'When and where did you start living together?'---That's right.

The answer is 'Claimed in January February 1999, but was staying there frequently before'?---That's the response, yes.

MR ROTH: Are those his exact words?---From at the time, I believe they were.

Or did you shorthand what he was saying?---I can't recall exactly.

(Page 7)

You can't recall whether you said - - whether you copied exactly or shorthand. Is it possible Mr Ejueyitsi said that they had been living together from January and February 1999, but he had been staying there frequently before that, so you put down claimed January 1999, but had been staying there frequently?---In - - I would have stated that he claimed in January, February 1999, but was staying there frequently before.

That's pretty much what you wrote down there, isn't it?---Yes.

So when you asked that question, would you agree it's certainly possible Mr Ejueyitsi responded 'Officially been living since January February 1999, but I've been staying there frequently before that'?---Yes.

13 After the interview was over, and later in the day, Mr Hughes received a copy of a letter from the appellant which read:

I had an interview with you this morning and you officially requested, for a statement or duration of stay within me and my wife. Speaking officially, me and my wife started living together after the marriage as stated in the marriage certificate.

Thanks best regards yours sincerely.

14 The magistrate seems to have concluded, or in fact must have concluded, given his finding of guilt, that the appellant met Ms Kahn in 1997 but did not reside, meaning by that permanently live, at Unit 3/187 Hardey Road, Belmont until he married Ms Khan in 1999.

15 The appellant has been convicted of giving a knowingly false answer in relation to the question about where he lived. The conviction relates to an answer given by the appellant to a question Mr Hughes allegedly asked, as will appear from the magistrate's reasons which I set out below. I say an answer 'allegedly' asked, because the magistrate said in his reasons that he falsely answered the question about where he 'lived'. In fact he was not asked by Mr Hughes where he 'lived', but where he 'resided'. Even if attention is initially concentrated on whether the answer given to Mr Hughes was false (leaving the issue about whether it was knowingly false until later), it is clear that the word 'reside' requires a judgment to be made by the person using it or answering questions about residence. This is because the word 'reside', according to the Macquarie dictionary, means:

1. to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill.

In turn the word 'abode' means, according to the Macquarie dictionary:

1. a dwelling place; a habitation. 2. continuance in a place; sojourn; stay.

(Page 8)

What is 'a considerable time' or 'for a time' depends upon the person's circumstances. Similarly 'sojourn' or 'stay' are not words of precise meaning. Some people will employ the word 'reside' about where that person 'stayed' in circumstances where another person in similar circumstances might not use the word.

16 As Buss JA points out, the charge also requires a consideration about whether the answer was 'knowingly' false. This requires a conclusion to be drawn about how the appellant understood the word 'reside'. He was not to be convicted by reference to what Mr Hughes might have meant by the word or what a magistrate or a judge might think the word means.

17 The appellant's evidence at trial in examination-in-chief was as follows:

You wrote that you met Nola Khan in July, August 1997. Do you recall that?---That is true.

Why did you write that on the form?---That's a true date.

Alright. And in a conversation with Scott Hughes, he asked you how long you had been residing at Unit 3/187 Hardey Road, Belmont do you remember him asking you that?---Yes.

MR ROTH: And do you remember what you answered him?---Yes, since 1997 I've lived there.

Why did you answer him that?---I told him that in 1997 when I came to Perth, I lived there. In 1998, when I come to Perth, I live in that same Hardey Road. In 1999 - - when I went to Victoria Park, I was living in Hardey Road. So I … (indistinct) … since 1997 in that place. Immigration agent … (indistinct) … surprised by charging him.

I've no further questions, thank you, Sir.

18 On page 162 and 163 in cross-examination he was asked the following questions:

Okay. Can I just have the exhibit migration form? Thanks. Could you please take a look at that form? It's the application for migration form that you completed?---Yes.

And you'll see that there's a question there that relates to details of addresses, it's question 49, and it reads:

'Give details of all the addresses at which you and your spouse have lived together'

WITNESS: Yes.

(Page 9)

MR BEVILACQUA:

'And how long you stayed together at those addresses',

and the answer there is 'Unit 3/187 Hardey Road Belmont'?---Yes.

And the date after that is from 1997 to 1999?---Yes.

You never lived in Belmont from 97 to 99. I mean, you said in your evidence you were in Melbourne - -

MR ROTH: I'm sorry sir, the person has been questioned should be allowed to answer it first before … (indistinct) …

HIS WORSHIP: Put it to him in a different form I think.

MR BEVILACQUA: Yes, I withdraw that, sir.

(TO WITNESS): You've accepted that you were in Melbourne for part of the time in 1997 and 1998. I think you came first to Perth in June, July of 1997, that's what you're claiming, and again in October 1997, and then in September 1998. That's what you said in evidence?---Yes.

So up till September 1998, apart from those times, you were living in Melbourne, weren't you?---Yes.

Yes. Why didn't you put that down in that question on that form?--- …(indistinct) … to the Honourable Court, that I've cohabited with her in these three places. In 1997, when I came to Perth, I stayed in her place. 1998, when I moved to … (indistinct) … I stayed … (indistinct) … and I stayed in her place again. In 1999, when I move - - when I move to Victoria Park, I stayed in her place. I have cohabited in these three places. The scenario, if I may explain, your Worship - -

19 Later the following passage of questions and answers appear:

And you spoke to Nola about the answers she should be giving, in answers to any questions from Hughes didn't you?---That is not true.

You told her that she had to say that she'd known you since 1997?---That's not true. That is not true.

You told her she had say the relationship was healthy didn't you?---I didn't have to tell her what she had to say.

You lived in Belmont only from 1998, around the time of the marriage until July when you left?---That is … (indistinct) …

That is the only time you lived with Nola?---That is not true.

(Page 10)

20 What is clear is that the appellant sometimes uses the word 'live', sometimes 'stayed' and sometimes 'cohabit' when he describes the time he spent at Unit 3/187 Hardey Road, Belmont. He never used the word 'reside'. What is also apparent from the case is that the prosecution proceeded entirely on the basis that Ms Khan's evidence would be accepted. Ms Khan gave evidence that she had not met the appellant in 1997. Counsel for the prosecution at page 60, during an interchange on an evidentiary point, said:

In relation to the first count the statement that he met Ms Nola Khan back in 1997, again it's the prosecution case that he didn't meet Ms Khan until January of 1998.

21 If the prosecution had succeeded in proving that the appellant had not met Ms Khan, then clearly the appellant had to be convicted in relation to the second charge. However, the magistrate did not accept Ms Khan's evidence. The magistrate expressed suspicion about the accused's evidence but said that he was unable to accept beyond reasonable doubt that Ms Khan's recollection about when she met the appellant was accurate. This was a conclusion reached by reference to her evidence and the evidence of two other witnesses. As a result the first charge was dismissed.

22 Then, in relation to the second charge, the one which is the subject of this appeal, the magistrate said:

In relation to the second count, I am satisfied beyond a reasonable doubt in accepting the evidence of Mr Hughes that he asked the accused the question, 'Where do you live and how long have you resided at that address?' The accused replied, '3/187 Hardey Road Belmont, since 1997.' He was not confused about the questions and answered them unequivocally. He knew that the information was false, being material to the picture he was trying to paint in his attempt to establish the genuineness of his relationship with Khan. I do not accept the accused's contention that he may have been attempting to indicate that he had only stayed at that address on occasions. His actual response was specific and intentional, and constituted a false declaration to his knowledge, which was false and accordingly he will be convicted of the charge.

This passage contains an obvious error. The appellant was not ever asked a question by Mr Hughes 'Where do you live and how long have you resided at that address?'. As I have already indicated, in the 'Personal Particulars for Character Assessment' he said he 'lived' at the Hardey Road address from '01/99 to present'. This did not falsely claim he 'lived' there in 1997. The magistrate should have said that the question asked by Mr Hughes was about how long he had 'resided' at that address. This is

(Page 11)

not some insignificant difference. The charge is about the meaning of a word and the meaning given to it by a person who did not have a perfect grasp of the language.

23 Furthermore, the magistrate failed to examine all of the relevant evidence.

24 The magistrate did not consider at all what meaning the appellant had given to the word 'reside'. After dismissing the first charge, the reasons for convicting on the second charge were cursory and, in my respectful opinion, inadequate. The appellant, by all of his written and oral answers, did not say he lived at Hardey Road and nowhere else since 1997. He had already correctly informed the department, when specifically asked to disclose all the addresses, about where he had lived. He showed three addresses. When he was asked (in the form referred to in charge one) where he had lived with Ms Khan he said at 3/187 Hardey Road from '97 to 99'. That must be because he understood the question to relate to times when he was 'living' with Ms Khan. The other form - the 'Personal Particulars' form expressly stated that he had only lived at 'Unit 3, 187 Hardey Road, Belmont' for 12 months or more from January 1999 to 'the present'. This can only mean he stayed, lived, resided, or had a sojourn at that address for periods less than 12 months before January 1999. I agree that the other part of his answer to question 49 in the first form and the latter answer created confusion, but that is something Mr Hughes attempted to clarify.

25 On 22 June 1997, the appellant knew he was being questioned about his relationship with Ms Kahn. He explained what he meant in the sixth question put by Mr Hughes. His letter of 22 June 1997 also attempted to explain this. His letter explains that he lived 'officially' with Ms Khan from January/February 1999 but that he had stayed there frequently before that. His difficulty with the English language is demonstrated by the content of that letter.

26 The letter reveals his understanding about the meaning 'reside' in his mind. It meant 'stayed for a time'. That is a correct use of the word. The answer was not false and in my opinion it was not knowingly false. What can be said about the combination of questions and answers 48, 49 and 51 in the 'Application to remain permanently in Australia' form, read in conjunction with the answer to question 15 in the 'Personal Particulars for Character Assessment Form', the questions and answers to questions two and six put by Mr Hughes on 22 June, and the letter of 22 June 1997, is that he was telling the truth and intended to tell the truth.

(Page 12)

27 As a result, the magistrate should have dismissed the charges. The magistrate paid no attention in his reasons to all these questions and answers. If he had done so, it would have become apparent what the appellant was saying. The inadequacy of the reasons reveals error. Furthermore, the magistrate's misstatement of the question which was asked by Mr Hughes and the conclusion that the answer, to a question he was not asked, was false reveals appellable error. In my opinion, the application for leave to appeal was not frivolous or vexatious and the appeal had reasonable prospects of success.

28 There was some suggestion made by counsel for the respondent on the hearing of this appeal that the second question and answer put by Mr Hughes should be considered in isolation. That submission has to be rejected. To understand what the word 'reside' means as understood by the appellant it is necessary to consider the matter from the point of view of the appellant's lifestyle and the other answers he had given in the forms. It is clear that the appellant moved from place to place. His view of 'residing' for a time is likely to be quite different from a person who has lived permanently in perhaps only two or three places in their lifetime. In my opinion the word 'reside' in the question asked by Mr Hughes was understood by the appellant to mean, to stay for a time.

29 Counsel for the respondent submitted, as a complete alternative to the first submission, that the questions had to be considered in context, and in particular in the light of the fact that the appellant was trying to establish the genuineness and length of his relationship with Ms Khan. If that was so, however, and if the respondent, by the submission, suggests the appellant was trying to indicate falsely that he had lived with Ms Khan since 1997, then the appellant would not have given the answer that he gave to question six.

30 This was a charge which had to be proved beyond reasonable doubt. In my opinion, the evidence referred to above fell well short of proving beyond reasonable doubt that the appellant had given a knowingly false answer.

31 Wheeler JA said at [20]:

While the proposed grounds of appeal may not be frivolous or vexatious, a close examination of the transcript reveals that they cannot succeed. Further, even if the appellant were correct in the assertion that there was an issue at trial which was not adequately explored, this is plainly not a case in which the Court would be able to substitute its own view. It would be necessary to quash the conviction and to order a re-trial.

(Page 13)

32 I agree that the proposed grounds of appeal were not frivolous or vexatious. That being so, if an extension of time should be granted, the Justices Act required Hasluck J to grant leave and Wheeler JA to allow the application for leave to appeal. With respect to Wheeler JA, it is my opinion that this court is in as good a position as the magistrate to consider the evidence and reach a view about the merits. In any event, the magistrate's reasons for decision are inadequate, contain an obvious error and fail to articulate in accordance with law why it is the appellant was found guilty of the charge.

33 I adopt what Buss JA has said about what has to be established to sustain a conviction under s 234(1)(b) of the Migration Act. As I have already said, if the case was to be proved against the appellant, it was necessary to show that the statement made was objectively false and that the appellant knew it was false. In relation to the first question, it is permissible, as the magistrate thought, as Hasluck J thought and as Wheeler JA thought, to consider the meaning in English the words 'reside' and 'live' as determined by the court. (Buss JA resorted to the dictionary for that purpose and I have done likewise). However, in relation to the second question about whether his answer was knowingly false, it is necessary to take into account all of the answers the appellant had given to the department, to take into account that this appellant clearly has great difficulty with English, and to take into account that, in any event, the word 'reside' is a word of protean meaning even to persons with a good command of English.

34 The magistrate's reasons address none of these points. The critical need to determine what the appellant, with his poor command of English, meant was never dealt with by the magistrate. This error was a serious error which, in my respectful opinion, should have prompted Hasluck J to grant leave to appeal if an extension was appropriate. In my opinion this, and the error in the magistrate's reasons, should in turn have prompted Wheeler JA to grant leave to appeal against Hasluck J's decision.

35 As a result it is then necessary to consider questions of delay.

36 The appellant wished to appeal after he was convicted, took advice and was told that because it was a minor matter it was not worth appealing. The appellant accepted that advice. Of more significance however, is that he could not afford to pay legal fees to commence an appeal. Subsequently he found that the conviction was not a minor matter. It had a very serious consequence when it came to planned migration to another country.

(Page 14)

37 The power to extend time is a broad power to relieve against injustice. The discretion is not readily to be limited by 'judicial fiat'. See FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283. Nevertheless, where there has been a lengthy delay, exceptional circumstances usually have to be shown before an extension of time is granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: BPR v The State of Western Australia [2007] WASCA 41 at [4]; Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998).

38 The factors usually taken into account in relation to an application for an extension of time in which to appeal are the length of the delay, the reasons for the delay, whether or not there is an arguable case and the extent of prejudice.

39 The delay in this case is considerable or gross, but the explanation given for the delay is, to my mind, understandable and sufficient. I have already indicated above that I consider that the appellant not only has an arguable case, but that the appeal should succeed.

40 The extent of prejudice to the appellant is considerable. Wheeler JA concluded that the consequences for the appellant's wish to travel elsewhere 'while unfortunate, are not grave'. It is a matter of opinion, but my conclusion is that the fact that the conviction means that the appellant is now precluded from migrating to, and permanently residing in Canada, which he wishes to do, is a grave consequence.

41 I would therefore uphold the appeal against the decision of Wheeler JA and quash her Honour's decision, and consequently quash the decision of Hasluck J. In lieu I would extend time sufficient to allow the appeal to be entertained, quash the decision of the magistrate and order that the charge should be dismissed.

42 BUSS JA: By application dated 15 January 2007, the appellant applied to review the decision of Wheeler JA, made 10 January 2007, dismissing the appellant's application for leave to appeal against the decision of Hasluck J, who dismissed the appellant's application for an extension of time to appeal.

43 The appellant had sought an extension of time to appeal against his conviction, in the Court of Petty Sessions, in 2001, on a charge, laid pursuant to s 234(1)(b) of the Migration Act 1958 (Cth), of making to an officer performing functions under the Migration Act, a statement that to

(Page 15)

his knowledge was false in a material particular, namely, that he had lived at 3/187 Hardey Road, Belmont since 1997.

Background overview

44 An overview of the background to this proceeding is recorded in the reasons of Wheeler JA:

It was alleged against the appellant that in March and June of 1999 he committed two offences under the Migration Act 1958 (Cth). He was acquitted of one. However, he was convicted after trial on 24 October 2001 in the Court of Petty Sessions at Perth in relation to the complaint alleging that on or about June 1999 he made to an officer performing functions under the Migration Act a statement that to his knowledge was false in a material particular. The statement concerned how long he had resided at a particular address. The question to which it was an answer formed part of an enquiry into the genuineness of his relationship with his wife, and was therefore relevant to his eligibility for a spousal visa.

The appellant was at all relevant times aware of his right to appeal. However, his solicitor advised him that, given the minor nature of the offence and the cost of appealing, it was not worthwhile to do so. Further, the appellant says in his affidavit that he was unemployed at the time of conviction and was unable to afford the fees required to lodge an appeal. He paid the fine of $1000 by instalments.

There the matter rested, until in November 2004 the appellant lodged an application for permanent residency in Canada, and his application was refused because of his conviction. He lodged an application for leave to appeal and for extension of time within which to appeal in January 2005, by which time he was more than three years and two months out of time.

On 4 March 2005, the application for leave to appeal was heard before Miller J, and it appears that his Honour refused both the application to extend time and the application for leave to appeal. The appellant appealed that decision. That appeal was heard before Pullin JA and Murray AJA on 24 October 2005, and their Honours allowed the appeal and remitted the matters to a single Judge, for determination of the extension of time and, if appropriate, the application for leave to appeal. Their Honours took that course, because they identified a potentially arguable ground of appeal, based upon the learned Magistrate's failure to make any specific finding about the date upon which the appellant met Ms Khan, who later became his wife. Because Miller J had considered that there was no detectable ground of appeal, their Honours concluded his Honour's decision was in error. One reason the matter was remitted to a single Judge was because of an issue concerning the applicability of the stricter test for leave to appeal which resulted from the Criminal Appeals Act 2004 (WA). Another reason for the remitter was to allow the respondent the opportunity to raise any

(Page 16)

questions about the grant of an extension of time and of any prejudice that might arise if an extension were granted.

The remitted application came before Hasluck J on 26 July 2006. His Honour refused the application for an extension of time and, as a consequence, dismissed the application for leave to appeal. In careful and detailed reasons, Hasluck J concluded that, notwithstanding the Criminal Appeals Act 2004, the former provisions of the Justices Act 1902 (WA) applied in respect of the appellant's application for extension of time and for leave to appeal. That was the position for which the appellant contended, and I accept it for the purpose of this application [2] - [6].

Proceedings before the Magistrate

45 The appellant appeared before Mr Lawrence SM, in the Court of Petty Sessions, on 22 to 24 October 2001, in respect of, relevantly, two charges laid on 2 November 2000:

(a) 'On or about the 12th day of April 1999 in Perth...[the appellant] in connection with an application for a further visa permitting a non-citizen to remain in Australia, delivered to an officer performing functions under the Migration Act 1958, a document containing information that was false in a material particular, namely in an application to remain permanently in Australia form dated 22 March 1999 he falsely stated that he first met his spouse in July/August 1997, contrary to section 234(1)(c) of the said Act.'

(b) 'On or about the 22nd day of June 1999 at Perth...[the appellant]...made to an officer performing functions under the Migration Act 1958, a statement that to his knowledge was false in a material particular, namely that he had lived at 3/187 [Hardey] Road, Belmont since 1997, contrary to section 234(1)(b) of the said Act.'

A related charge laid on 15 October 2001 was dismissed at the commencement of the hearing upon the prosecutor informing the magistrate that the respondent would not be proceeding with that charge and would not adduce any evidence in relation to it.

46 The magistrate said in his reasons:

(a) The prosecution led evidence that the appellant was a student at Curtin University. The magistrate was satisfied that the appellant resided at the Curtin campus from approximately 9 September 1998 to 12 December 1998. Upon the expiration of that arrangement, the appellant had a discussion with Mr Leslie Blocksun, who managed the residential block at Curtin University,

(Page 17)

and allegedly told Mr Blocksun that he was in a relationship with a lady from Victoria and planned to marry her. The appellant denied ever saying such a thing to Mr Blocksun.

(b) Mr Alanemibuboka Altraide, an acquaintance of the appellant, completed documentation in which he lied about the duration of his association with the appellant, stating that he had known the appellant for 1 1/2 years. In the course of his testimony, Mr Altraide stated 'categorically' that he had not met the appellant between November 1998 and February 1999. The appellant denied that this was the case. Mr Altraide also stated that he had lied about knowing Ms Khan for the same period of time. Mr Altraide said he made these false assertions because the appellant had exerted pressure on him and also because he wished to help the appellant.

(c) Ms Gail McQueen stated that she met the appellant on 25 December 1998, and that they had an intimate relationship until about 22 April 1999. Ms McQueen said that during their relationship the appellant stayed at her place overnight on occasions, and she attended the appellant's residence at Victoria Park on at least a couple of occasions. The relationship subsequently collapsed but was reinstated in about July 1999, when the appellant telephoned Ms McQueen and she went to his residence at Maylands. Their intimate relationship resumed until October 1999. The appellant denied that he had an intimate relationship at any time with Ms McQueen, but stated that they were friends, that it was Ms McQueen who was pressing for the relationship to become more permanent, and that she was the one who wanted to marry him.

(d) Ms Khan (an Australian citizen) stated that she married the appellant on 28 February 1999 and that she had only met him in late January 1999. The appellant's evidence was that he had met her in July or August 1997, and they had 'an ongoing friendship relationship'. Whilst the appellant was in Victoria for a short period, Ms Khan sent the appellant a card which she admitted dating 4 November 1997 (the card was an exhibit before the court). Ms Khan said that she could not have been in a relationship with the appellant in 1997, as she was involved with another man during that time.

(e) Ms Khan admitted presenting information to the Immigration officials in support of the appellant's application for permanent residency (which detailed, amongst other things, her medical

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condition or conditions, her addresses, the fact that she had no fear of the appellant, and that their relationship was a healthy one). However, following the collapse of their relationship, she submitted a statement of separation to the Immigration officials in which she effectively described her marriage to the appellant as a sham, and said that from the moment she met the appellant, she was intimidated, threatened, bullied, and that she acted subject to a 'spell' that the appellant had over her. Ms Khan believed that if she did not act in accordance with his wishes, she would have died. It was in these circumstances that Ms Khan wrote the card and signed the application for permanent residency.

47 The magistrate noted that it was upon Ms Khan's evidence that the respondent primarily relied to secure a conviction in relation to the first count. He found Ms Khan to be an unreliable witness, and consequently acquitted the appellant of that charge. However, the magistrate found the appellant guilty on the second count. He said:

I have no doubt that [the appellant] was intent on achieving a sole purpose of obtaining permanent residency in Australia, and used Miss Khan for that purpose. He made inquiries about the necessary requirements to achieve this purpose and implemented a plan using any method he could to achieve that aim. Having observed the demeanour of Miss Khan, one can conclude she was emotionally traumatised by the overall circumstances of this matter. On occasions, however, it is my conclusion that her emotional state was selective.

She presented herself as a confused witness, who for a variety of reasons, including medication which she stated she ingested at the time, or during this course [sic] - she admitted her memory was unreliable. Her recollection of events clearly supported this admission. Her contention that she'd never met Mr Altraide was clearly incorrect. Her initial contention that she hadn't spoken to Mr Down [the marriage celebrant who married the appellant and Ms Khan] was clearly incorrect.

She consistently had difficulty in recalling events and on occasions changed her evidence during cross-examination. In relation to her suggestion that she was under such pressure, intimidation and threats that she was subject to the control of [the appellant], it is my view it amounts to an exaggeration of her condition at the time, having regard to her explanation as to why she did not disclose the truth to the authorities during the course of her interview in the absence of [the appellant] and the fact that she managed to provide clear evidence concerning her personal circumstances, including her state of health and in particular the state of her relationship with [the appellant].

Although I accept that she may have been influenced by [the appellant], her unconvincing demeanour, her memory of various incidents, having

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regard to the evidence of Brustur [the appellant's flatmate when he resided in Victoria Park], Down and Altraide give rise to a conclusion in my mind that she may be unreliable in her recollection of the time period during which she first met [the appellant]. That is not to say that I don't have grave concerns about the conduct, influence and overall effect that [the appellant] had upon her. I am very suspicious about his testimony, because in effect he was saying that Altraide, McQueen, Khan and Blocksun were all lying, which I do not accept. His overall conduct during the course of his attempts to achieve his purpose at best, were questionable and immoral. Particularly his attitude towards Ms McQueen, who I found to be a convincing and reliable witness.

On the evidence of Mr Altraide, he had an inappropriate involvement in relation to the initial application. However, his testimony revealed he accepted his shortcomings with embarrassment and I accept that he told the truth in his endeavours to clear the air and I accept his evidence in relation to what he says occurred concerning his acquaintance with [the appellant] during the course of these events.

In relation to [the appellant's] evidence, I am very suspicious, but because of my conclusions as - or in relation to the evidence of Khan and on the basis of the evidence of Down and Brustur, I am unable to accept beyond reasonable doubt that her recollection was accurate. Accordingly, albeit that the information was a material particular in his quest for permanent residency, a necessary element being the duration of the relationship, I am not satisfied to the required degree that his statement was false, and accordingly he will be acquitted of that charge.

In relation to the second count, I am satisfied beyond a reasonable doubt in accepting the evidence of Mr Hughes [a case officer in the Department of Immigration] that he asked [the appellant] the question, 'Where do you live and how long have you resided at that address?'. [The appellant] replied, '3/187 Hardey Road Belmont, since 1997'. He was not confused about the questions and answered them unequivocally. He knew that the information was false, being material to the picture he was trying to paint in his attempt to establish the genuineness of his relationship with Ms Khan. I do not accept [the appellant's] contention that he may have been attempting to indicate that he had only stayed at that address on occasions. His actual response was specific and intentional, and constituted a false declaration to his knowledge, which was false and accordingly he will be convicted of the charge.

Application for extension of time and application for leave to appeal against the magistrate's decision (before Miller J)

48 The appellant's application for leave to appeal against the magistrate's decision was heard by Miller J on 4 March 2005. Miller J dismissed the appellant's application at that hearing because the application was too far out of time and the appellant had not shown any

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grounds of appeal that would justify leave being granted. Miller J said that he had looked at all the papers, that the question before the magistrate was one of fact, that the magistrate had found against the appellant, and that there was no question of the decision being reversed.

Subsequent appearances

49 The appellant appealed against Miller J's decision. On 21 April 2005, the appellant appeared before Steytler P and Pullin JA, but the appeal was adjourned to enable the appellant to secure a solicitor. On 9 September 2005 and 23 August 2005, the appellant appeared before McLure JA and Le Miere AJA, relevantly, seeking leave for a certain solicitor to act for him, but their Honours dismissed his application for that solicitor to act because the solicitor was, at that time, suspended from practising as a legal practitioner. The appellant's application for leave to appeal against Miller J's decision was ordered to be listed for hearing at a later date.

Application for leave to appeal against Miller J's decision (before Pullin JA and Murray AJA)

50 On 24 October 2005, the appellant's appeal against Miller J's decision was heard by Pullin JA and Murray AJA. Pullin JA (with whom Murray AJA agreed) delivered reasons ex tempore, allowing the appeal, quashing Miller J's decision and remitting the matter to a single Judge for reconsideration. Pullin JA said, relevantly:

The argument put forward by the appellant is that he understood those to be questions which were directed to when he first stayed at that address with a Ms Khan who became his wife a couple of years later. The evidence is, as it was advanced before the Magistrate, that [the appellant] was originally living in Melbourne but when he came to Western Australia he met Ms Khan and, having met her, he lived with her at 3/187 Hardey Road, Belmont, when he used to come across here and that is what he understood to be conveying by the answers to the questions.

Part of the case was complicated by the fact that Ms Khan gave evidence that she had not even met [the appellant] until 1999, but the Magistrate really made no finding about the conflict between Ms Khan and [the appellant], although he commented on Ms Khan's evidence and commented on it adversely and indicated that she appeared to be uncertain in her evidence.

For my part I would have thought that the Magistrate would, as part of the process towards reaching a decision about whether the answer was correct or not, make a finding about whether or not [the appellant] did in fact meet her in 1999 or 1997.

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If he found 1999, then of course that would have been the end of the matter. The answer that [the appellant] had lived at the Belmont address since 1997 would then clearly be false but it would not necessarily be a deliberately false answer if in fact he met Ms Khan in 1997 and stayed with her each time he came to Western Australia. So when one reads the Magistrate's reasons for decision, it is apparent that no finding has been made about the date when they met, and that of course impacts on the defence which was advanced - that there was a misunderstanding about the points of the question.

In my opinion there was sufficient evidence to warrant the grant of leave to appeal by Miller J when the matter came before him. His Honour did not detect that there was any arguable ground. Doubtless the hearing before his Honour was complicated by the fact that the appellant was representing himself and is at times difficult to understand, but in my opinion there was a detectable ground of appeal, partly reflected by the ground itself and partly by the ground that might have been reformulated in terms that the Magistrate erred in failing to make a finding in relation to a relevant fact and failed to give reasons, adequate at law, to allow the decision to be reviewed on appeal.

So for those reasons I have reached the opinion that Miller J erred in failing to grant leave to appeal and I would uphold the appeal and remit the matter to another Judge for consideration of the application for leave to appeal.

Rehearing of application for extension of time and application for leave to appeal against the magistrate's decision (before Hasluck J)

51 Prior to the hearing before Hasluck J, the appellant had appeared before McKechnie J who ordered, relevantly, that the application for an extension of time and for leave to appeal be heard and determined together with the appeal. On 9 June 2006, the applications and the appeal were heard by Hasluck J, who delivered his judgment and published written reasons on 26 July 2006: Ejueyitsi v Maloney [2006] WASC 146. Hasluck J refused the appellant's application for an extension of time, dismissed the application for leave to appeal, and dismissed the appeal.

52 Hasluck J summarised the relevant evidence:

[The appellant] was represented at the hearing by a solicitor, Mr Paul Roth. The prosecutor relied upon the testimony of various witnesses including that of Nola Khan, who married [the appellant] on 28 February 1999; Scott Brian Hughes, a case officer in the Department of Immigration, and Gail Marie McQueen, who said that in late December 1998 she commenced an intimate relationship with [the appellant] which continued until late April 1999, and was reinstated later in that year.

(Page 22)

A number of other prosecution witnesses gave evidence bearing upon [the appellant's] movements after his arrival in Australia and upon the nature of his relationship with Nola Khan. All of these witnesses were cross-examined by counsel for [the appellant] and he himself gave evidence on his own behalf, and was then cross-examined.

A central feature of the prosecution case as to both charges was evidence given by Mr Hughes that in mid-1999 he had the file concerning [the appellant's] application for permanent residence based on spouse grounds. Mr Hughes was troubled by the evidence produced in support of the application. There were indications that the relationship between [the appellant] and his spouse had broken down, so Mr Hughes decided to interview them both to see if the relationship was genuine and whether it was still ongoing. It was clear from the evidence adduced in support of the prosecution case that at all material times Nola Khan had been living at 3/187 [Hardey] Rd, Belmont, a suburb in the metropolitan area of Perth.

Mr Hughes said that he made notes in the course of both interviews. His evidence included reference to the relevant record of interview concerning [the appellant] dated 22 June 1999. The record of interview consisted of certain printed or typewritten questions on a standard form, followed by the answers. According to Mr Hughes, the handwritten answers on the document were in his hand and recorded the information provided to Mr Hughes by [the appellant] as interviewee in response to the questions put to him.

The first few questions and answers were as follows:


What is your current address? - 3/187 Hardy [sic] Road Belmont.

How long have you resided at that address? - Since 1997.

What is your spouse/partner's name and date of birth? - Nola Khan. 13/1/55.

When and where did you first meet them [sic]? - At Burswood Casino. Unable to remember date met each other.

Were you introduced? If so, by whom, or did you meet by chance? - Met by chance.

When and where did you start living together? - Claimed in January-February 99. But was staying there frequently before.

Are you employed? If so, what do you do? - Not employed at present. Casual employment security. Studying public health.


In the course of his evidence-in chief Mr Hughes confirmed that the questions he posed to [the appellant] included the question concerning his current address. Mr Hughes received the answer '3/187 Hardy [sic] Rd Belmont'. [The appellant] was asked also how long he had resided at that

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address and [the appellant] said 'since 1997'. Mr Hughes went on to say that after the interview he received a letter dated 22 June 1999 signed by [the appellant] and his nominator.

[The appellant's] 22 June letter was received in evidence as an exhibit. It reads as follows (omitting the inessential parts):


I had an interview with you this morning and you officially requested for a statement or duration of stay within [sic] me and my wife.

Speaking officially, me and my wife started living together after the marriage as stated in the marriage certificate.

Thanks, best regards.


Under cross-examination, Mr Hughes agreed that at the time of the interview he had concerns about the legitimacy and genuineness of the relationship between [the appellant] and his wife. Mr Hughes could not say exactly whether the words he wrote on the document were a form of shorthand or the exact words used. This exchange then occurred (t/s 103):

You can't recall whether you said - whether you copied exactly or shorthand. Is it possible Mr Ejueyitsi said that they had been living together from January and February 1999, but he had been staying there frequently before that, so you put down claimed January 1999, but had been staying there frequently? - In - I would have stated that he claimed in January, February 1999, but was staying there frequently before.

That's pretty much what you wrote down there, isn't it? - Yes.

So when you asked that question, would you agree it's certainly possible Mr Ejueyitsi responded 'Officially been living since January February 1999, but I've been staying there frequently before that'? - Yes.


[The appellant's] evidence

[The appellant] gave evidence to the effect that he arrived in Australia in April or May 1997 on a student visa and went first to Melbourne to study social work at La Trobe University. He came to Perth in July or August 1997 on which occasion he met Nola Khan at the Burswood Casino. On the second occasion they met, he stayed the night at her residence at Unit 3/187 [Hardey] Rd, Belmont. He went on to describe a subsequent meeting when he came back to Perth in October 1997 with mention being made of a card that she sent to him dated 4 November 1997 signed by her.

[The appellant] said that he returned to Perth in September 1998 and this led to an arrangement whereby he was staying both at her place and at a hostel linked to Curtin University where he was studying. He said that he

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cohabited with her in the residence (t/s 152) while also being in the hostel and at certain other addresses. They were married eventually on 28 February 1999.

[The appellant's] account of the relationship was challenged by the prosecutor in the course of cross-examination. It was put to [the appellant] that he was keen to migrate to Australia and that at about the time he was proposing marriage to Nola Khan, he had also put a proposal of marriage to Ms McQueen. It was put to [the appellant] that he had coached Nola Khan and another witness to give answers that would assist [the appellant] [7] - [17].

53 Hasluck J interpreted the magistrate's finding in relation to the conviction, as follows:

Thus, it might be said, on a fair reading of the reasons for decision as a whole, that although the learned Magistrate was prepared to accept that the parties might have met in 1997, he was not prepared to accept [the appellant's] evidence or to infer from the evidence given by other witnesses, that they had cohabited or lived together since that time. Having regard to the evidence given by Ms McQueen that she had been with [the appellant] at an address, being an address which appeared to be [the appellant's] place of residence, other than Unit 3/187 [Hardey] Road, Belmont, and after giving some weight to the evidence of Nola Khan, (notwithstanding that her evidence was thought to be somewhat unreliable), it would seem to have been open to the learned Magistrate to infer that [the appellant] consciously made a statement to Mr Hughes which he knew to be false when, on the prosecution case, he said that he had lived at 3/187 [Hardey] Road, Belmont since 1997.

[The appellant's] stance at the hearing before the Magistrate had been that he acted in the belief that Mr Hughes was trying to sort out the various phases of the relationship. Thus, in both his answers to Hughes during the interview and in what he said in his letter written later that day, [the appellant] was simply trying to make clear that he met Nola Khan in 1997, he stayed with her on occasions thereafter, but did not 'officially' start living together until after the marriage on 28 February 1999. However, it is clear that the learned Magistrate was not persuaded to this point of view. The false statement which was found to have been made was that [the appellant] asserted that he lived at the home address of his then girlfriend, later his wife, in 1997, when in fact he was residing elsewhere at the time and did not actually begin living with her until after the marriage in 1999. [The appellant's] letter dated 22 June 1999 appears to be consistent with this conclusion [26] - [27].

54 Hasluck J articulated the grounds of appeal, as he perceived them, at [40] - [48], and made these findings on the grounds:
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It was clearly necessary for the prosecution to satisfy the learned Magistrate beyond reasonable doubt that in the course of the interview, [the appellant] made a statement corresponding to the statement complained of, namely, that he had lived at 3/187 [Hardey] Road, Belmont, since 1997. Evidence to that effect was given by Mr Hughes in the course of confirming that the questions and answers appearing on the record of interview correctly reflected the exchanges between the parties. Having regard to the learned Magistrate's appraisal of the credibility of the witnesses, the Hughes evidence appears to be good and sufficient evidence that an assertion was made by [the appellant] that his current address was 3/187 [Hardey] Road, Belmont, and he had been residing at that address since 1997. Indeed, that appears to be confirmed by the evidence-in-chief given by [the appellant] in answer to questions asked of him by his own counsel (t/s 160) when he said that he remembered being asked the question by Mr Hughes as to how long he had been residing at the subject address and he remembered answering, 'Yes, since 1997, I've lived there.'

I pause briefly to note that a query might possibly arise as to whether an assertion that one has resided at a certain address can be regarded as amounting to an assertion that one has lived at the address in question. The learned Magistrate seems to have proceeded upon the assumption that the two terms were interchangeable. To my mind, the two terms are essentially interchangeable and this is borne out by the fact that [the appellant] himself, in the evidence I mentioned a moment ago, agreed that he conveyed to Mr Hughes that he had been living at the subject address since 1997. Accordingly, the learned Magistrate does not appear to have erred in finding that the statement complained of was made.

It was also necessary for the prosecution to establish beyond reasonable doubt that the statement was false. This was a central issue at the hearing before the learned Magistrate.

To my mind, it does not follow that the prosecution case was bound to fail simply because Nola Khan was found to be unreliable. The evidence of other prosecution witnesses, including that of Ms McQueen, was directly contrary to the evidence given by [the appellant] concerning his movements and living arrangements in the period 1997 to mid-1999. Moreover, the evidence of [the appellant] himself was arguably too vague to be given any real weight. It was certainly open to the learned Magistrate to conclude that there was an element of sophistry or contrivance in [the appellant's] contention that he was residing or living with his girlfriend at the subject address since 1997, because he had spent the night at that address soon after he met Nola Khan in 1997 and had stayed at the address on some occasions thereafter.

After considering the evidence concerning the first or visa application charge, the learned Magistrate was not satisfied that [the appellant] had first met Nola Khan in 1999, shortly before he was married, as alleged by the prosecution. To my mind, for the Magistrate's reasons to be regarded as sufficient, it was not essential for him to make a finding for the

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purposes of the false statement charge as to when exactly they did meet, because it was inherent in his reasoning, having regard to his conclusion on the first charge, that they had met at some stage prior to 1999. The issue before him on the second charge was whether [the appellant] made a false statement in asserting that he had been living at the subject address since 1997. An explicit finding as to when they met might have been useful in regard to resolving that issue, but it was not an essential element of the reasoning process in the context I have described. Accordingly, I am not persuaded that the reasons for decision provided by the learned Magistrate can be characterised as inadequate.

It emerges from earlier discussion that another issue before the Magistrate was the question of whether the record of interview reflected a misunderstanding by [the appellant] as to what was being asked of him about his current address and how long he had been living or residing at that address.

To my mind, the 22 June letter written by [the appellant] after the interview cannot be regarded as compelling evidence that he was unsure of what had been put to him and was trying to get the story straight. The letter is open to the interpretation that he was simply trying to emphasise that there was a genuine relationship; that he and his wife had been living together since their marriage at the end of February 1999. It seems somewhat surprising that, if [the appellant] was truly intent upon setting out the position concerning his place or places of residence fully and accurately, no mention was made in the letter of [the appellant's] statement to Mr Hughes that he had been living at the address in question (that is, 3/187 [Hardey] Road, Belmont) since 1997.

In the end, it was a matter for the learned Magistrate to determine, having regard to the credibility of the witnesses and the whole of the evidence. To my mind, it was open to him to find, as he did, that [the appellant] 'was not confused about the questions'. And to find further that [the appellant] 'knew that the information was false, being material to the picture he was trying to paint in his attempt to establish the genuineness of his relationship' with Nola Khan.

For all these reasons, having regard to the decided cases which demonstrate a reluctance upon the part of Appeal Courts to interfere with findings of fact which depend heavily upon an appraisal of witnesses, I do not consider that the appeal should be allowed on any of the proposed grounds of appeal. I do not consider that there has been a miscarriage of justice.

It is against this background that I turn now to the application for an extension of time. I am not persuaded that [the appellant] has shown that extraordinary circumstances exist which would justify an extension of time being allowed. He was being guided by a professional legal adviser at the time his right of appeal was under notice in the immediate aftermath of his conviction. He decided not to proceed with the appeal after receiving legal

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advice. Moreover, I am of the view that if the appeal did succeed, and the matter was remitted back to a Magistrate for rehearing, the respondent would be prejudiced in that the passage of time is likely to adversely affect presentation of the prosecution case.

It follows from my review of the decided cases that the considerations I have just mentioned cannot be regarded as sufficient of themselves to justify refusal of an extension if it be clear that a miscarriage of justice has occurred, for I accept that the presence of the conviction is a serious matter in the case of a person such as [the appellant] who wishes to pursue an academic, or professional career, and whose status has yet to be determined.

However, for the reasons I have given previously, I am not persuaded that a miscarriage of justice has been demonstrated. In the end, I consider that the learned Magistrate reviewed the evidence carefully and the conclusion he came to concerning the second or false statement charge was open to him on the evidence. Where the case turns upon credibility, as in the present case, an appeal court will generally refuse to intervene. I am therefore of the view that the verdict in the present case should not be disturbed [87] - [98].

Application for leave to appeal from Hasluck J's decision (before Wheeler JA)

55 On 3 November 2006, Wheeler JA heard the appellant's application for leave to appeal against Hasluck J's decision. Wheeler JA delivered her judgment and published written reasons on 10 January 2007, refusing the appellant leave to appeal.

56 I have already set out Wheeler JA's overview of the background to this proceeding. Her Honour adopted, at [9], Hasluck J's summary of the evidence contained in [7] - [17] of his Honour's reasons, which I have also set out above.

57 Wheeler JA, in deciding that leave to appeal against Hasluck J's decision should be refused, said:

Although it is difficult to follow, it seems to me to be reasonably clear from both the cross-examination of Ms Khan on behalf of the appellant, and from the appellant's own evidence, that his response to this complaint was not to assert that he had mistakenly understood Mr Hughes as asking about the date on which he first met Ms Khan. Rather, he understood Mr Hughes to be asking him about his continuous residence with Ms Khan. It was his contention that he had continuously resided with her in the sense that, although he may have been away from the address given at times, he had stayed at her place when they first met, stayed there again when he returned to Perth after some time in Victoria (in October 1997 or

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thereabouts) had again stayed at her place in September 1998 after a further visit to Victoria, and that when he had returned on the second occasion he was 'cohabiting with her' (AB 152). It was his evidence that that was what he had told Mr Hughes; that is, that he had explained to Mr Hughes that he had lived at Hardey Road in 1997 and had lived there again on the various occasions which he mentioned, so that in that sense he was living continuously at that place (Appeal Book 161). I note that it was put to Ms Khan in cross-examination that the appellant would regularly return from Melbourne to stay with her between July 1997 and September 1998 and that in early 1998 he had moved his goods into the Hardey Road address, but she rejected those propositions (AB 142).

It follows from what I have said above, that I accept, as did Hasluck J, that the assertion made by the appellant in response to the first and second questions set out in [11] of Hasluck J's reasons was to be understood, and was intended by the appellant at all times to be understood, as an assertion that he had lived at that address, albeit that he might from time to time have spent time away from it. It was that assertion with which the learned Magistrate dealt.

The learned Magistrate made findings, which were well open to him on the evidence, to the effect that the appellant was 'intent on achieving a sole purpose of obtaining permanent residency in Australia and used Ms Khan for that purpose' (AB 191). The learned Magistrate accepted the evidence of those witnesses whose evidence was not consistent with the appellant's, save that he considered that there was a question about the accuracy of Ms Khan's recollection as to the precise date upon which she met the appellant. That reservation led to the dismissal of the other complaint.

However, it appears to me that the learned Magistrate generally accepted the evidence of Ms Khan as to the state of her relationship with the appellant. The acceptance of the evidence of the witnesses other than the appellant, and the acceptance of aspects of Ms Khan's evidence, led to the learned Magistrate's conclusion that the appellant 'was not confused about the questions and answered them unequivocally. He knew that the information was false, being material to the picture he was trying to paint in his attempt to establish the genuineness of his relationship with Khan'. In the context of the evidence, and of the reasons as a whole, that appears to me to be a conclusion that the appellant was to be understood as saying to Hughes that he had been living at Hardey Road, Belmont, in the sense that I have described above, and that that statement was, to the appellant's knowledge, false. That finding, as I have noted, seems to me to have been well open. The learned Magistrate also dealt with, and rejected, an additional or alternative contention, which appeared at times to emerge from the evidence of the appellant, that he had indicated to Mr Hughes that he had only stayed at Hardey Road on some occasions.

Finally, I should note for completeness that the submission was made to me that there was an inexplicable omission, at trial, of any exploration with the appellant of the question of what he had understood by

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Mr Hughes' questions, and what he had been intending to convey to Mr Hughes. That is not so. He was asked why he had answered Mr Hughes in the way that he had, and his answer was, in effect, that he had been living at Hardey Road since 1997 whenever he was in Perth (AB 161). His answer was not that he misunderstood the question and was intending to indicate when he had first stayed overnight at Hardey Road. His response was, in effect, that the answer he had given was true.

While the proposed grounds of appeal may not be frivolous or vexatious, a close examination of the transcript reveals that they cannot succeed. Further, even if the appellant were correct in the assertion that there was an issue at trial which was not adequately explored, this is plainly not a case in which the Court would be able to substitute its own view. It would be necessary to quash the conviction and to order a re-trial [15] - [20].

58 Wheeler JA then dealt with the issue of the appellant's delay. Her Honour said:

This was a case [which] depended heavily upon questions of credibility, and upon the recollection of a number of witnesses about the precise timing of events which occurred now approximately nine years ago. There would be clear prejudice to the respondent from the passage of time in this case, even assuming that the principal witnesses could be located. The appellant's penalty as a result of his conviction was pecuniary and has long since been paid. The consequences for his wish to travel elsewhere, while unfortunate, are not grave. In those circumstances, even if these grounds of appeal had a reasonable prospect of success, which in my view they do not, it would not be in the interests of justice to grant an extension of time to [the] appellant [23].

59 Wheeler JA therefore decided that Hasluck J's decision was correct, and that the appellant's application for leave to appeal against his Honour's decision should be dismissed.

Section 234(1)(b) of the Migration Act

60 Section 234(1)(b) of the Migration Act provides (and, at all material times, has provided):

(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

…

(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act

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a statement that, to the person's knowledge, is false or misleading in a material particular;

61 As I have mentioned, the count in respect of which the appellant was convicted alleged, relevantly, that he made to an officer performing functions under the Act 'a statement that to his knowledge was false in a material particular, namely that he had lived at 3/187 [Hardey] Road, Belmont since 1997'.

62 The statutory formulation, 'a statement that, to the person's knowledge, is false or misleading in a material particular', embodies, relevantly, three aspects. First, the statement must be 'false or misleading'. Secondly, the statement must be false or misleading 'in a material particular'. Thirdly, the statement must be false or misleading in a material particular 'to the … knowledge' of the person who made the statement.

63 A statement will be 'false' within s 234(1)(b) if it is objectively incorrect. Compare Musgrave v Martin [2003] FCA 920; (2003) 130 FCR 546 [54] - [61]; Revlon Manufacturing Ltd v Commissioner of Taxation (1995) 63 FCR 535, 560 - 561; Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348, 352. A statement will be false 'in a material particular' if it is relevant to the purpose for which it is made. As Emmett J observed in Su v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 681, in the context of s 234 of the Migration Act:

A statement will be relevant to that purpose if it may, whether or not it must, be taken into account in making a decision under the Act as to the grant of a visa [39].

The phrase 'to the person's knowledge' requires that the person who made the statement actually knew, when the statement was made, that it was objectively incorrect and that the incorrectness was relevant to the purpose for which the statement was made.

Application for review of Wheeler JA's decision (before this court)

64 The appellant's application to review Wheeler JA's decision is not a hearing de novo. It is an appeal by way of rehearing, and the appellant must satisfy this court that her Honour made an error in refusing leave to appeal: Keating v The State of Western Australia [2007] WASCA 98 [21]; Lawless v Turner [2007] WASCA 127 [4].

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65 I accept, as Hasluck J concluded, and Wheeler JA also accepted, that notwithstanding the Criminal Appeals Act 2004 (WA), the former provisions of the Justices Act 1902 (WA) apply in respect of the appellant's applications.

66 The appellant's grounds of review comprise 14 pages. It is, however, unnecessary to set out those grounds, because the appellant's contentions may be distilled, in essence, to the following. First, the magistrate should have held that, in giving the answer that he had 'resided' at 3/187 Hardey Road, Belmont since 1997, the appellant meant only that he had stayed (and spent the night) there on occasions in 1997 and 1998, as Ms Khan's boyfriend. The appellant did not intend, by his answer, to convey that he had been living there permanently since 1997. He had only lived at that address permanently after his marriage to Ms Khan in February 1999. Secondly, the magistrate failed to consider the answer in question in the context of all of the answers the appellant gave in the course of the interview with Mr Hughes, and the appellant's letter dated 22 June 1999 which he sent subsequently to Mr Hughes. Thirdly, the magistrate gave inadequate reasons for convicting the appellant.

67 The appellant agreed, during the hearing before this court, that the three matters I have specified were the points he sought to agitate. The appellant also agreed, during the hearing, in relation to his delay, that he took advice on appealing the conviction, he was told it was a minor matter, he could not afford to appeal the conviction at that time, and he did not realise the conviction was not a 'minor matter' until his application for permanent residency in Canada was refused because of his conviction.

68 I have examined the record of the proceedings before the magistrate, the magistrate's reasons, and the reasons of Hasluck J and Wheeler JA. I agree, with respect, with the careful analysis of the evidence which Hasluck J performed and with his Honour's conclusions. Also, in my respectful opinion, Wheeler JA was correct, for the reasons she gave, to dismiss the appellant's application for leave to appeal from Hasluck J's decision. I am unable to detect any material error of law or fact on the part of Wheeler JA.

69 I elaborate upon my conclusions, as follows:

(a) The appellant made an application for permanent residence in Australia based on spousal grounds.

(b) Mr Hughes interviewed the appellant and Ms Khan to ascertain whether their relationship was genuine and ongoing. He was

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concerned to establish whether there was a legitimate basis for the appellant's application.

(c) At all material times, 3/187 Hardey Road, Belmont was Ms Khan's place of residence.

(d) The critical questions and answers during the interview between Mr Hughes and the appellant were these:


What is your current address?---3/187 Hardy [sic] Road Belmont.

How long have you resided at that address?---Since 1997.

What is your spouse/partner's name and date of birth?---Nola Khan. 13/1/55.

When and where did you first meet them [sic]?---At Burswood Casino unable to remember date met each other.

Were you introduced (if so, by whom), or did you meet by chance?---Met by chance.

When and where did you start living together?---Claimed in Jan-Feb 99, but was staying there frequently before.

Are you employed? If so, what do you do?---Not employed at present. Casual employment security, studying public health.


(e) Mr Hughes made a written record of the appellant's answers during the course of the interview. He confirmed in his evidence-in-chief that the appellant had told him that his current address was 3/187 Hardey Road, Belmont, and that he had resided at that address since 1997. Mr Hughes accepted, in cross-examination, that he could not recall whether his written record was a form of shorthand or the exact words used. He also accepted, in cross-examination, that it was 'certainly possible' that the appellant had responded to the question, 'When and where did you start living together?' with 'Officially been living since January February 1999, but I've been staying there frequently before that'.

(f) The appellant's letter dated 22 June 1999 stated, relevantly:


I had an interview with you this morning and you officially requested for a statement or duration of stay within [sic] me and my wife.

Speaking officially, me and my wife started living together after the marriage as stated in the marriage certificate.

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Thanks, best regards

(g) Wheeler JA decided, at [15] - [18], correctly, in my respectful opinion, that the magistrate concluded that the appellant's statement, in relation to the count on which he was convicted, was to be understood as an assertion that he continuously resided with Ms Khan (in particular, during 1997 and 1998) in the sense that, although he may have been away from 3/187 Hardey Road at times, he had stayed (and slept) at that address when they first met, again when he returned to Perth (in or about October 1997) after some time in Victoria, again in September 1998 after a further visit to Victoria, and, upon returning from Victoria on the second occasion, he was cohabiting with her.

(h) Hasluck J held, at [88], correctly, in my respectful opinion, that, in the context of the interview between Mr Hughes and the appellant and the appellant's own evidence, the words 'live' and 'reside' were 'essentially interchangeable'. In my opinion, in the relevant context there was no material difference between the words 'stay', 'live' and 'reside'. See the meanings ascribed to those words in The Shorter Oxford English Dictionary (2002) 1614, 2545, 3012.

(i) The respondent sought to prove that the appellant's statement, in relation to the count on which he was convicted, was objectively incorrect by adducing evidence to the effect that during the relevant period he had lived, stayed or resided at other addresses. It was unnecessary for the respondent to prove when the appellant had lived, stayed or resided at 3/187 Hardey Road.

(j) Hasluck J referred, at [19] - [20], [25] - [26], [85] - [87] and [90], to evidence from Mr Watson (the manager of the residential hostel at the Curtin campus) and Ms McQueen and to other evidence accepted by the magistrate or not in contest, which was capable of establishing that the appellant's statement was objectively incorrect. Also see Wheeler JA's summary of that evidence at [13].

(k) It was reasonably open to the magistrate, based on his credibility findings in relation to the appellant and the evidence of those witnesses whose evidence he accepted wholly or in part, to be satisfied beyond reasonable doubt that the appellant had not, as a matter of objective fact, lived, stayed or resided at 3/187 Hardey Road since 1997, in the sense explained by Wheeler JA at [15] - [18].

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(l) The appellant's statement was unambiguous and did not demonstrate any confusion on his part in relation to the relevant questions asked of him during the interview or his intended response. See Wheeler JA's observations at [15] - [16], [19].

(m) It was reasonably open to the magistrate, based on his credibility findings in relation to the appellant and inferences to be drawn from the evidence of those witnesses whose evidence he accepted wholly or in part, to be satisfied beyond reasonable doubt that the appellant actually knew, when he made the statement, that it was objectively incorrect and that the incorrectness was relevant to the purpose for which the statement was made. It was not in contest that the appellant's statement was material to the purpose for which it was made, namely, in relation to his eligibility for a spouse visa.

(n) It is irrelevant that the appellant was, ultimately, successful in obtaining a spouse visa. The critical issue was whether the respondent had proved beyond reasonable doubt each of the elements of the offence allegedly committed by the appellant under s 234(1)(b) of the Migration Act.

(o) In my opinion, for the reasons which Hasluck J gave at [87] - [91], and Wheeler JA set out at [11] - [18], the magistrate's reasons were adequate. The magistrate's reasons with respect to the count on which the appellant was acquitted must be taken into account, in assessing the adequacy of his reasons for convicting the appellant on the other count, to the extent that those reasons are relevant to both counts.

70 I should note two further pieces of evidence from Immigration forms which the appellant completed and signed on 22 March 1999 (a few months before he was interviewed by Mr Hughes):

(a) On Form 887 (Application to remain permanently in Australia), in response to the question 'Give details of ALL the addresses at which you and your spouse have lived together and how long you stayed together at those addresses', the appellant had answered 'Unit 3/187 Hardy [sic] Road, Belmont 6104, From /97 to /99'.

(b) On Form 80 (Personal particulars for character assessment), however, the appellant completed a section asking for 'Previous addresses of the places where you have lived for 12 months or more during the last 10 years (including Australia). You must account for every year ...', the appellant answered the following:

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From month/year	To month/year	Country	Address
02/97	09/97	Aust	Cherry St, McLeod, Victoria
09/97	01/99	Aust	Curtin University Hostel
01/99	Present	Aust	Unit 3/187 Hardey Rd, Belmont, 6104

71 Even if, contrary to my opinion, any of the appellant's contentions on the merits has a reasonable prospect of success, the appellant's inordinate delay in seeking to challenge his conviction, in circumstances where the issues in the proceeding before the magistrate depended significantly upon questions of credibility, and the recollection of several witnesses about the precise timing of events which are now approximately 9 or 10 years old, militates strongly against granting the appellant's application for an extension of time to appeal, especially where, as I have mentioned at [67] above, he took advice shortly after his conviction in relation to whether he should appeal. In the present case, these public interest considerations outweigh the prejudice to the appellant arising from the rejection of his application for permanent residency in Canada.

72 The appellant has failed to establish any basis for setting aside Wheeler JA's decision. I would therefore dismiss the application to review.