Emrulov, F. v Minister for the Department of Immigration & Ethnic Affairs

[1985] FCA 95

Re: FADIL EMRULOV
And: MINISTER FOR THE DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS
No. G391 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Administrative Law - Judicial Review - interlocutory stay of deportation order - Administrative Decisions (Judicial Review) Act, 1977 s.(5)(1)(g) - fraud - whether arguable case.

HEARING

SYDNEY
#DATE 19:3:1985

ORDER

1. Stay all proceedings under the deportation order made on 20 February 1985 until further order.

2. Costs of this application to be applicant's costs in the proceedings.

JUDGE1

This is an application for an interim stay of an order for the deportation of the applicant made on 20 February 1985 by the Delegate of the Minister of State for Immigration and Ethnic Affairs. The matter arises in the context of an application for final relief in the form of judicial review of a number of administrative decisions under the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act").

1. The stay application, which was brought forward at short notice, was supported by affidavit evidence from the applicant and his brother, Nadzir Kader. The applicant swore two affidavits. In his affidavit sworn 7 December 1984, the applicant said that he was born in Yugoslavia in 1959; that he came to Australia in February 1982 on a two months' visitor's visa to visit his brother; that shortly after his arrival in Australia, he met Sandra Radford, an Australian citizen; that they started living together in a separate room at his brother's house; that shortly thereafter as a consequence of the relationship which began to develop, they decided to marry; that on 6 April 1982, they did marry; that on 7 April 1982, he lodged an application for permanent residence status by virtue of his marriage; that the marriage soon broke up because of, amongst other things, financial hardship.

2. The affidavit then proceeds:
   
   

"7. I state that because of my inability to provide for my wife while waiting for the decision of the Department of Immigration & Ethnic Affairs on my application for permanent residency my wife became very impatient and had on occasions threatened to take whatever action necessary to ensure that the aforesaid Department ensures that I do not remain in Australia. On the 7th March, 1984 I was formally informed by the Department of Immigration & Ethnic Affairs that my application for permanent residency had not been allowed. However, in the meantime my wife had fallen pregnant, accordingly, as soon as I was informed of this decision I returned to the Department of Immigration & Ethnic Affairs and lodged an appeal against the decision as I did not wish to be separated from my wife and in particular, from my child, yet to be born.

8. I state that my wife gave birth to our daughter, Ema, on the 5th July 1984.

9. The Department of Immigration & Ethnic Affairs did not have any regard to these circumstances and requested on the 8th October, 1984 that I leave this country on or before the 4th November, 1984.

10. Despite all my pleadings and further representations to the Department of Immigration & Ethnic Affairs by Mr. Dezelin, an Interpreter, the aforesaid Department is not prepared, so far as I am aware, to change their determination and allow me to stay here with my wife and daughter.

11. The Department of Immigration & Ethnic Affairs in notifying me that I am unable to stay in Australia stated in their reasons that they believed I had contrived the marriage to my wife only for the purposes of getting a permanent resident status by paying her $3,000.00. I strongly deny this allegation and state that the marriage is not a sham but rather a geniune attempt by myself to start a new life and a new family in a new country.

12. I state that I have not worked since arriving in this country and have always been in great financial difficulty. I have never been in a position where I would be able to save $3,000.00. I have not paid nor has anyone paid on my behalf any money to my wife to marry me."

1. By a further affidavit sworn on 18 December 1984, the applicant said that he wished to correct some inaccuracies in his earlier affidavit, saying:
   
   

"4. As to paragraph 8 thereof, I say that the child Emma (sic) could not be my daughter, since my wife and I have not had sexual relations since she moved away from my brother's home. However, it was my belief at all material times that since the child was born to my wife I was responsible as the father of the child.

5. As to paragraph 11 thereof, I say that during our period of co-habitation we lived as man and wife and the marriage was consumated (sic). My intention at all relevant times was to enter into a permanent marriage."

1. In his affidavit, sworn on 18 December 1984, Nadzir Kader corroborated the applicant's affidavit evidence. He said that he was aware of but denied the allegation that he had paid Sandra Radford's boyfriend $3,000.00 in consideration of her marrying the applicant.

2. Neither the applicant nor his brother was cross-examined.

3. The respondent relied on an affidavit by Annemarie Nicholl, a clerk employed in the enforcement section of the Department of Immigration and Ethnic Affairs. She said that a perusal of the Departmental file disclosed that the applicant entered Australia on a temporary entry permit valid until 17 April 1982; that after his marriage on 6 April 1982, the applicant lodged an application for "resident status" in Australia (see The Migration Act, 1958 s.6A(1)(b); that on 18 May 1982 the applicant and his wife were interviewed separately by an officer or officers of the Department with a view to assessing whether the parties genuinely intended to continue living as a married couple; and that during her interview, contrary to the applicant's assertions on the point, the applicant's wife claimed that the marriage was not a genuine one.

4. A statement by Sandra Alison Radford dated 19 May 1982 was annexed to the affidavit. So far as material, it reads:
   
   

"In March 1982 I was in Port Kembla with my boyfriend Chris BOSSEFF when he was approached by two yugoslav men who I heard talking to him in the yugoslav language. After we walked away Chris told me what they had said to him.

Chris Said: 'Those guys just told me that if you marry their friend (Fadil EMRULOV) his brother (Nadzit KADER) will give you $3 000 because he wants him to stay in Australia.'

Because I needed the money, I said to Chris: 'I will do it.'

Three days later I said to Chris: 'Tell your friend I will marry his brother.'

Chris told me a few days later that an appointment had been arranged by Fadil's brother (Nadzit) to see Mr DEZELIN about a civil marriage ceremony.

I Said: 'Maybe I should marry him (Fadil) in the registry office.'

Chris Said: 'No, we can get it done quicker at DEZELIN's office, before his

(Fadil's) visa expires.'

About 3 weeks before the civil ceremony I went with Chris, Fadil and Fadil's brother Nadzit to Mr DEZELIN's office and spoke to Mrs DEZELIN. I saw Mrs DEZELIN complete a 'Notice of Intended Marriage" form which Fadil and myself subsequently signed. The others were speaking in yugoslav and the civil ceremony was arranged with Mrs DEZELIN to take place on 6 April 1982.

I did not see Fadil again until 6 April 1982 when we met outside Mr DEZELIN's office.

Chris, Nadzit, his friend Krste RISTEVSKI and RISTEVSKI's brother all accompanied us to the office. Mr DEZELIN performed the ceremony that day (6 April 1982) and Fadil and myself signed some forms.

After the ceremony we went back to Krste RISTEVSKI's car.

I Said to Chris: 'Ask Nadzit for the money.'

Chris spoke to Nadzit in yugoslav.

I saw Nadzit hand $3 000 to Chris.

Chris and I counted the money.

After we got out of Krste RISTEVSKI's car Chris handed me the money.

I did not see Fadil again except on three occassions when I came with him to the Wollongong Immigration office.

The marriage was never consumated (sic), we never lived together at any stage and have never had intercourse. I have no intentions of ever living with Fadil as man and wife. I only married Fadil because his brother Nadzit paid me $3000."

1. In her affidavit, Annemarie Nicholl described the subsequent Departmental history of the matter as follows. By letter dated 7 March 1984, the Department informed the applicant that his application to remain permanently in Australia had been refused on the ground that his marriage was entered into for the purpose of his gaining "residential status" in this country. The applicant then sought a review of this decision. The applicant's wife was further interviewed by an officer or officers of the Department on 13 March 1984. She re-affirmed that she was pregnant and that the applicant was not the father of the child. She claimed that her parents did not know that she had married the applicant and that the amount of $500.00 was outstanding in payment for the marriage. On 19 September 1984, the Immigration Review Panel recommended that the decision to refuse the applicant's application be affirmed. On 27 September 1984, the Minister's Delegate accepted the Panel's recommendation and disallowed the applicant's appeal.

2. In order to justify the grant of a stay of proceedings under s.15 of the Judicial Review Act, it is necessary for the applicant to show that he has an "arguable" case in the principal application for judicial review (see Faingold v. Zammitt (1984) 1 FCR 87 at p 92). In essence, the case sought to be made by the applicant is that the relevant administrative decisions were induced or affected by fraud (see the Judicial Review Act, s.5(1)(g)). Possibly because the stay application was brought forward at short notice to all concerned, the evidence in support of the stay application, specifically the evidence of fraud, consisted of no more than assertions by the applicant and his brother in their affidavits that their version of the applicant's relationship with his wife was correct and that, on the other hand, her version was not only untrue but was given to the Department with the malicious object of ensuring that the applicant not remain in Australia.

3. There does not appear to be any reported authority on the operation of s.5(1)(g) of the Judicial Review Act. Presumably, the principles applicable to the setting aside a judgment obtained by fraud, including the high onus of proof required, would be available as providing some analogy for present purposes (see Halsburys' Laws of England, 4th Ed. Vol. 26 at p 285; Jonesco v. Beard (1930) AC 298 and see Sykes, Lanham and Tracey, General Principles of Administrative Law, 2nd Ed. para.1306).

4. In the ultimate analysis, the fate of the application for judicial review will depend upon a question of mixed fact and law, namely whether the conduct of the applicant's wife was fraudulent in the relevant sense. The only evidence in this application to suggest she was guilty of fraud is the affidavit evidence of the applicant and his brother described above.

5. It is significant for present purposes that the respondent made no attempt to cross-examine either the applicant or his brother. Nor did the respondent seek any adjournment of the stay application for the purpose of conducting such a cross-examination at a later date. I must therefore accept their evidence except so far as the applicant altered his evidence in his second affidavit. On the affidavit evidence of the applicant and his brother, it is possible that the applicant could make out a case of fraud of the kind contemplated by s.5(1)(g) of the Judicial Review Act. On that material, I am prepared to hold that the applicant has made out an "arguable" case for judicial review at this stage.

6. Understandably, the respondent made no submissions on the balance of convenience. In the result, I propose to grant the stay asked. I make the following orders:
   
   1. Stay all proceedings under the deportation order made on 20 February 1985 until further order.
   2. Costs of this application to be applicant's costs in the proceedings.