Goundar V.L v Minister for Immigration, Local Government & Ethnic Affairs
[1991] FCA 933
•4 Oct 1991
JUDGMENT NO. .Y........ ..r 933 9 )
ADMINISTRATIVE LAW - whether onus of proof in deportation cases - whether analogous to habeas corpus proceedings - duty of court to find facts after statutory action by executive adversely affecting rights
JWIDENCE - applicability to deportation cases of rule in Jones v Dunkel - effect of failure to call obvious witnesses - absence of cross examination on issues sought to be advocated - possibilities of bigamous marriage and conspiracy to contravene Australian law left open by way of submission without either evidence or cross examination
m - cancellation of spouse visa on ground that
mcrriage not "genuine continuing" within regulation 44 or equivalent - nothing on application form concerning quality of marriage or its relationship to application to migrate - materially false or misleading statement - alleged falsity implied by reason of regulation not shown to be known by or drawn to attention of migrant
Inrmiaration Act 1971 (UK)
JudicJarv Act 1903 section 39B
maration Act 1958 section 14, 20(1), 35(2)Kiaration Remlations 1989 regulation 44
Jones v Dunkel [l9591 101 CLR 298
State of Oueensland v m i l l [l9891 90 ALR 611
Einister for Inrmiaration and Ethnic Affairs v Naumovska Full
Court of Federal Court, unreported 5 September 1983
Narish Holdinae Ptv Ltd v Commonwslth of Australia 6 OrsDavies J, unreported 7 December 1988
Bone ~ovcevski v Kinister for Immiaration Local Government & Ethnic Affairs Lockhart J, unreported 14 July 1989
Ilendoza v Kinister for m a r a t i o n Local Government and Ethnic
Affairs Einfeld J, unreported 25 September 1991
4 October 1991 B v Medical Suuerintendent of ilacmarie Hos~ital [l9871 10
NSWLR 440
R v Secretarv of State for the Home DeDartment: Ex Darte Zamir
119801 AC 930
iChawaia v Secretarv of State for the Home Deuartment [l9841 AC74
VIJAY LATCHHI GOUNDAR V MINISTER FOR 1)IIIIGRATION LOCAL
GOVERNMENT h ETHNIC AFFAIRS
Einfeld J
Syaney
JN THE FEDERAL COURT OF AUSTRALIA) No NG 486 of 1991
m NEW 1 BNERAL DIVISION 1
Betweenr -LlHDAR Applicant
And r
CrnRNWENT & ET@ML(;
APPAIRS
Respondent
1. Declare that the Australian visa issued to the applicant and her three children in Suva, Fiji on 30 December 1988 with unrestricted rights of employment, was then and still remains valid.
2. Declare that the permit to enter and remain for residence in Australia issued to the applicant and her three children on 5 January 1989 was then and still remains valid
3. Order that the respondent be restrained from deporting the applicant or requiring her to leave Australia by reason of her having allegedly become an illegal entrant as a result of one or more statements made on or after 11 May 1988 in or in connection with her application to
migrate to Australia.
4. Respondent to pay applicant's costs.
.&?.m: Settlement and entry of orders are dealt with in
accordance with Order 36 of the Federal Court Rules.Einfeld J
Syaney4 October 1991
IN THE F E D E W COURT OF AUSTRALIA) No NG 486 of 1991 NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION 1 Between: VIJAY LATCEMI GOUNDAR
Applicant
And : )LINIS'EgR FOR IMHIGRATIW
NT L E m
APPAIRS
Respondent
Einfeld J Svdnev 4 October 1991 The applicant is a 36 year old Fijian female of Indian extraction. On 10 May 1988, the day after he arrived in Fiji, she married an Australian, Reginald Darrell Harrison, also known as Paul Taylor, whom the applicant knew by the eimple endearment-"Harrison". The couple had first met in Australia in late 1986 while the applicant was here with her three
children after the expiry of a temporary entry permit valid
applying for permanent residency. They lived together in a de for one month from 22 December 1985. At the time she was facto relationship for about 6 months from December 1987 in a flat in Marion Street Leichardt. Having been refused permission to stay, she and the children left Australia on 27 April 1988.
On 11 May 1988, the day after her marriage to Harrison, the applicant went to the Australian immigration office in Fiji to apply to migrate to Australia on the basis of the marriage. It seems that Harrison was with her at the time. Her application form originally gave her maiden name of Latchmi as her family name but this was changed to Harrison in different handprinting. The form was countersigned by Harrison as her spouse, although there is no evidence as to whether this signature, and the name change to Harrison, took place at the same time and place or when the applicant was otherwise present. The evidence established that the applicant signed the migration application in the name of Harrison (misspelt) but that someone else filled it out for her.
In answer to questions 2.26 and 2.27 in Part 2 of the form she stated that she had been married on the previous day. Part 3 of the form headed "About Your Spouse" was ruled through and not answered, even though question 3.2 asks whether the spouse
is an Australian. - Part 8 of the form is headed "Your Intended Occupation In Australia". She replied to question 8.1 that she was applying for migration as the spouse of an Australian. The completed form thus did not disclose to whom her marriage
took place. In Part 11 she declared inter alia that the information given in the form was "correct in every detail" and recorded her
understanding that incorrect statements "may result in ... deportation from Australia after arrival". She also undertook "to advise the Australian Officer Overseas of any changes in my/our circumstances while this application is under consideration". The form imposes no obligation to advise the
department in Australia of any change of circumstance after
the visa is issued and the applicant enters Australia.The applicant said that during and after completing the form she was extensively interviewed by immigration officers in Fiji. As well, Harrison apparently met immigration officials in Fiji and Australia. The absence of any details in the form about the applicant's spouse muat therefore have been accepted as satisfactory. The handprinted change of her family name to Harrison bears striking similarity to the printing of the same name by the Australian immigration officer in Fiji who completed what is called the "Decision Record" on this application on 24 November 1988. This further supports the applicant's assertion that higration officials took her through at least the most important points of the form.
-
During the period of waiting, the applicant and Harrison cohabited in Fiji, first for the initial 6 or 7 weeks following their marriage and then for about 2 months from July
In due course, on 30 December 1988, the applicant was granted 1988. At other times Harrison was apparently in Australia. what is apparently called a "spouse visa" to enter Australia as a migrant. She and her children entered Australia on 5 January 1989, well within the time provided for in the visa, with unrestricted permission for permanent residency and employment.
Almost eighteen months later, on 20 June 1990, her entry permit and visa were peremptorily cancelled and the applicant was arrested and detained in the Villawood Detention Centre until 28 June 1990. She has thereafter been treated as an illegal entrant. Departmental forms indicate the authorities'
belief that there were 'reasonable grounds for supposing' that the applicant was an illegal entrant because she obtained residence in Australia by entering into a contrived marriage. The actual formulation of the illegality, set out in a letter from the respondent's department to the applicant on 21 June 1990, was that in contravention of section 20(l)(c)(ii) of the Migration Act 1958, the applicant had made a statement, false or misleading in a material particular,
to a v i s a - i s s u i n g o f f i c e r wherein you c l a i m e d t h a t
you had e n t e r e d i n t o a genuine marr iage w i t h . . .
Harrison and y o u r f u r t h e r c l a i m t h a t t h e marr iage
was n o t e n t e r e d i n t o p u r e l y f o r t h e purpose o f
o b t a i n i n g r e s i d e n t s t a t u s i n A u s t r a l i a .
I shall assume that the application to migrate may be taken as
because, other than that application, no evidence has been a statement to a visa-issuing officer although, or perhaps produced of any actual statement made by the applicant to a visa-issuing officer or when, where and how it was made. Hence the case for falsity must be considered on the form alone, unassisted by the context or circumstances of anything she actually said to the visa-issuing officer. If a materially false statement was made in contravention of section 2O(l)(c)(ii), section 14 of the Migration Act constitutes the applicant an illegal entrant. By section 35(2), the entry permit of an illegal entrant
shall be taken to have been cancelled when the
person entered Australia.
Thus this cancellation was actually effected by automatic operation of statute on the facts found, or presumed to have been found, by an officer of the respondent's department.
Following an interview with an immigration officer after her arrest, and completion of applications for various forms of entry permit, the applicant was told by letter of 27 July 1990 that she was not eligible for any permit at all and was asked to leave Australia within one week. By arrangement pending these proceedings, she did not leave and is still here. In a letter to the applicant's solicitor dated 14 August 1990, the respondent's department said that it had made no finding on the legality of the applicant's marriage to Harrison but that
she had become an illegal entrant
[dlue to MS Goundar's misrepresentation that the relationship was genuine and ongoing.
The responhent produced no evidence, and did not allege, that any such representation was ever expressly made. In fact, although not mentioned in the letter, this precise allegation seems to be an indirect, and inaccurate, reference to the terms of regulation 44 of the Migration Regulations 1989, to
which I shall return later. The letter does not repeat the earlier reliance on an alleged statement by the applicant that "the marriage was not entered into purely for the purpose of obtaining resident status in Australia". This is possibly because again there was no evidence that such a statement was ever made. On the same day as this letter to the solicitor, the respondent's department told the applicant that she had one week to produce "a confirmed booking to aepart Australia on the first available flight". If this was not done, a deportation order would be sought.
The applicant's eldest child, a girl, is now 18 years of age, and there are two sons aged 13 and 11. The applicant is divorced from their father who lives in Australia and retains contact with the children. Most of their schooling,
especially of the two boys, has been in Australia. The -
applicant's mother, four of her five sisters and her two brothers live in Australia, but her remaining sister has been refused permission to reside here, apparently due to the
Apart from this sister, the applicant has only distant
events surrounding the applicant's present difficulties.
relatives in Fiji. All her friends and close relatives live here. She has been largely supported here by her mother and one of her brothers. Obviously, after spending most of the last six years in Australia, she has no employment in Fiji.
All the evidence led in this case, and its entire conduct, supported the applicant's account of the facts. During the
hearing before me, there was no challenge to the applicant's assertions that she and Harrison had commenced their relationship in a normal social way. No contrary evidence was brought, such as from the estate agent or from the landlord, to suggest that they did not live together, in the name of Harrison, at the Marion Street flat, the lease of which was produced in evidence by the applicant. The applicant was not cross examined on her assertion that she did not ask Harrison to marry her nor that it was he who suggested that they marry in Fiji rather than Australia.
It was also not suggested in evidence that any money had changed hands, that any other benefit had accrued to Harrison to secure the marriage or that Harrison had even been reimbursed for his transnational peregrinations in connection with it. Indeed, no motive of any kind has been suggested for -
Harrison's co-operation with the applicant's presumed fraudulent actions which, if true, could carry major penal consequences for him. Her 1987 application for permanent
residence, before her marriage, was not on the ground of her de facto relationship with Harrison as it might have been. It was not disputed that after the applicant's arrival in Australia in January 1989, she did not live with Harrieon. Her account was that she looked for but could not find him for some time. When she found him, she discovered that he was living with another woman to whom he claimed to be married. This evidence was partly corroborated by a statutory
declaration dated 25 June 1990 of Paul Raymond Taylor (apparently the same person as Reginald Darrell Harrison)
which was admitted into evidence by consent. From what I could understand, Harrison supplied this document to and at the request of the applicant who gave it to immigration officials. In his statutory declaration, if I am permitted to use it as evidence of the facts it contains, Harrison (Taylor) confirmed that he lived with the applicant for 6 months in Leichardt before they married in Fiji; that he waited for the applicant for 6 months after returning to Australia; and that they did not live together as a married couple because he was told that the applicant was divorcing him.
The respondent submitted that the applicant should not be believed on most of her assertions concerning Harrison.
However, if the applicant was lying about her relationship - with Harrison before her marriage, and about the genuineness of their relationship subsequently, as the respondent suggested, I cannot imagine, and the respondent has not
whether they lived together in Sydney in 1989 or why they did proffered a reason, why she would not also have lied about not do so. In particular, it seems inconceivable that she would seek a statutory declaration from Harrison, using a different name, to support her account and produce it to the department and the Court if her story in this regard was a fabrication.
Moreover, the respondent would have an interest to establish whether Harrison's claim of marriage to another woman was a correct statement and if so, whether this union pre-dated or post-dated his marriage to the applicant. Yet, so far as the evidence reveals, no search of the marriage registry appears to have been made or other easily available enquiries undertaken. Harrison appears on the evidence to have at least two daughters but there is no evidence of who ;heir mother is. The status of the applicant's marriage to Harrieon is therefore not entirely clear, yet the respondent did not attempt at the hearing to advance the position taken in pre- trial correspondence that no opinion had been formed on its legality, other than to concede that the couple went through an apparently legal and binding ceremony of marriage.
Facing deportation, the applicant seeks relief under section 39B of the Judiciary Act 1903 in the form of a declaration that her entry permit and visa for permanent residence were and remain valid and an injunction restraining the respondent
Australia on the grounds that she is an illegal entrant. An from deporting the applicant or requiring her to leave earlier series of applications under the Administrative Decisions (Judicial Review) Act 1977 in relation to this matter was abandoned.
This is therefore an unusual case. The withdrawal of the applicant's permission to reside in Australia cannot be justified by guesswork or suspicion. Yet the respondent has
- l0 -
purported to deprive the applicant of her resident status on what the departmental documentation describes as a "supposition" that she unlawfully obtained residence by contracting a marriage that was contrived for that purpose. In essence, although having put no questions to the applicant in cross examination to these ends, the respondent asked for findings that the marriage was undertaken solely to facilitate the applicant's obtaining of Australian residence, and that her alleged representation that her marriage was what the respondent now calls "genuine and ongoing", was false.
The official investigation of her application to migrate took place over a period of 7 months before the residency visa was given. These possibilities were thus presumably subjected to careful scrutiny. Yet not a skerrick of evidence has been
produced to establish either of these serious assertions. -
They were not even supported by a set of suggested probabilities, let alone any in which the respondent was prepared to invest any faith or confidence. The Court was
her conduct and evidence were not credible. simply told that the applicant should not be believed because In fact, by not investigating or arguing one way or the other whether the marriage was legally valid, the respondent left open a possible offence of bigamy that could almost certainly have been definitively established if it were true. This was undoubtedly a matter the respondent would have wished to evidence if possible. If it had been shown that Harrison was not legally able to marry the applicant on 10 May 1988, the respondent's case would have been immeasurably assisted. Yet no explanation was proffered as to why this yawning opportunity to advance the search for truth was ignored, or reason given as to why I should do so, in favour of a regime of speculation, hypothesis and presumption.
The applicant's life has certainly had some complex and troublesome features, and some of her evidence left more questions unanswered than satisfied, but people whose cultural practices, living environment and personal behaviour are of one kind should be wary of testing by their standards the conduct of people with another heritage and a far more threatening existence. It is also necessary not to assume that the behaviour and practices of Australians are easily capable of stereotyping or standardising. I do not myself doubt that the experiences of the applicant are not at all unknown in Australia, without creating a fair suggestion that they thereby involve fraud or pretence.
One of the peculiarities of this case is the way it was argued. The applicant submitted in substance that the case should be decided by reference to the onus of proof. It was put that this matter is analogous to a habeas corpus proceeding where the executive government is required to justify its invasion of the rights of the applicant. It was argued that the making of a materially false or misleading statement in a case such as this is what was described by Lord Scarman in Khawala v Secretarv of State for the Home DeDartment [l9841 AC 74 at 109 as a "precedent fact" or "precedent objective fact" which must be established by its proponent on admissible evidence to the satisfaction of the Court. As the respondent led no evidence to contradict the applicant's assertions concerning her relationship with Iiarrison and the truth of her representations in the application for migration, the applicant claimed an entitlement to succeed. The applicant also submitted that the Court's task, uncommonly for this type of case, is not to determine whether the delegate's finding was open on the material presented, but is to be the primary fact-finder as to whether the so-called "precedent fact" does or does not exist i.e. whether the evidence satisfies the Court that a materially false statement was or was not made.
The respondent firstly submitted that the Court is not empowered to undertake factual enquiries when reviewing administrative action. If correct, this contention would mean
case without being subjected to the constitutional safeguards
that a departmental officer could decide the facts in this
invested in this Court by section 39B of the Judiciary Act. It would also mean, as the respondent conceded in argument,
that the decisions of a Full Court of this Court in Minister for Immiaration and Ethnic Affairs v Naumovska unreported 5 September 1983, which is binding on me, and of Justice Lockhart in Bone Jovcevski v Minister for Immiaration Local
Government & Ethnic Affairs unreported 14 July 1989 and
Justice Davies in Narish Holdinas Ptv Ltd v Commonwealth of
Australia & Ors unreported 7 December 1988 - which I cited
. .
with approval in d v
| - | Wv * unreported 25 September 1991 at pages 28-9 - with both of which pronouncements I respectfully | |
| agree, were wrong. This submission is rejected. | ||
| Whilst agreeing, in accordance with the decision in Jovcevski, that the issue of truth or falsity of a statement in these circumstances is an objective question which the Court is to determine, the respondent alternatively argued that the Khawaia principle is not the law in Australia, at least for judicial review cases. He submitted that it is for this applicant to satisfy the Court that a genuine marriage, meaning one that was not wholly or principally undertaken to achieve Australian residence, took place. It was not disputed that this Lould be a material particular of any statement made in these circumstances. | ||
| ||
| her. He submitted that in accordance with the rule in Jones v | ||
| punkel [l9591 101 CLR 298, I should decide that Harrison, being apparently available to give evidence, was not called by the applicant because his evidence would not assist her case. In my opinion, this is not an appropriate case for the application of the Jones v Dunkel principle. Even if it were, the conclusion called for is somewhat tarnished by the realisation that if it were correct, there would be no reason why the respondent would not have called Harrison as a witness. This is a case about truth or falsity, and the wellbeing, safety and stability of a woman and her three children who have, by official Australian invitation or permission, long since severed their ties with their country of origin. It is not a guessing game, an invitation to indulge the 'trivial pursuits' of lawyers, or a mechanism whereby the possible oppreesion of a person granted Australian residency by the executive government can be effected, with judicial approval, by tactical jousting. | ||
| At the same time, when issues as significant as those involved here are at stake, it is distinctly unappealing to decide them exclusively or mainly by reference to legal technicalities, | ||
| albeit very important in some cases, such as the onus of - | ||
| proof, especially when the evidentiary scene is apparently governed or affected by forensic manoeuvres. Rather, the case should be determined by reference to the facta actually | ||
| ||
| Whatever might be said about the absence of Harrison's evidence, it is extraordinary that the Court has not been supplied by the respondent with the external circumstances of the statement in issue, especially the context and content of what the applicant told the relevant Australian immigration officials in Fiji and the results of their investigation of the case. There simply must have been questions and answers designed to clarify and expand on the relationship between the applicant and Harrison. Some or all of whatever was said could have been checked for possible corroboration. It is not less remarkable that no attempt has been made to prove any of the objective facts about Harrison or the applicant's claimed relationship with him of which I have given some specific examples earlier. Apart from some cross examination and submissions on the applicant's credit, the respondent relied solely on the applicant's answers to questions 2.26 and 2.27 in the migration application form read in the light of regulation 44. | ||
| Although the current regulations did not come into force until | ||
| December 1989, and questions 2.26 and 2.27 were answered 19 | ||
| months earlier, the respondent did not identify a |
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corresponding regulation that existed at the time, as it should and presumably would have done if it had existed. However, in order to deal definitively with the respondent's
that a provision to similar effect clid exist when the argument in this respect, I shall assume for present purposes applicant signed her application for migration. Regulation 44 provides : The additional criterion in relation to a spouse visa is the following criterion, namely, the relationship is a genuine, continuing relationship between the 2 spouses.
The respondent agreed that there is nothing to suggest any independent knowledge in the applicant of the requirements of
such a regulation or that, if something like it did exist, it was drawn to her attention by investigating officials. Nevertheless he submitted that the regulation imposed upon her a condition that the marriage which forms the basis of her application for a spouse visa be genuine and continuing (or
'ongoing'). If so, two matters arise: 1. The testing of whether the statement is true or false can only apply at the time it was made. The respondent's reliance upon the fact that the applicant and Harrison did not live together after 5 January 1989 when she arrived in Australia cannot provide evidence that she made a false statement in answer to questions 2.26 and
2.27 on 11 May 1988, certainly not by itself.
2. If reliance is to be placed upon an adverse
interpretation of her answers to those two questions in
the context of her marriage to Harrison, beyond the
actual words used, the failures to produce to the Court
evidence or information about her interviews with immigration officials in Fiji and to cross examine her on this subject become especially significant. This is because they point to a conclusion that she was putting forward her marriage as the basis for a grant of Australian residence without any knowledge that there may be marriages which do not qualify for residence and what
their characteristics are. In this event, her answers to questions 2.26 and 2.27 cannot bear the interpretation(s) suggested.
The respondent submitted that although the applicant went through a ceremony of marriage and contracted an ostensibly valid marriage, it was, because of regulation 44 or its presumed equivalent, not a marriage which qualified her for a spouse visa to Australia. As the statement alleged by the respondent to be false made no assertion in terms of the regulation, and the respondent correctly accepts that the only representation on which reliance is placed was that the applicant was married to an Australian the day before she made her statement, the statement is therefore clearly not false on its face. In addition the uncontested evidence is that this
couple lived in Fiji as wife and husband for several months - after their marriage, and there is also nothing to contradict the evidence that they intended to continue doing so after her migration to Australia. Thus at the time of the granting of
the visa and the applicant's entry to Australia, there were no grounds for determining the marriage to be an artifice for securing residency status for the applicant and her children. The respondent further submitted "that the Migration Act is based on the reunion of the couple in Australia" and does not "look to the question of the quality of their relationship overseas". Even if true, this lofty philosophy is irrelevant for present purposes. It may even be wrong, as for example
where the couple intend tb live overseas for a lengthy period and the permission to migrate is requested and granted to cover a present short term plan to live here pending departure or provide for a future contingency of Australian residence which due to death or divorce never occurs. It also does not take much imagination to speculate on what the respondent's submiesion would have been if these parties had not lived together in Fiji after their marriage. But the issue here is whether a false or misleading statement was made in the application form. If it was, it cannot be, or cannot alone be, because of what the applicant did or did not do seven months and more after it was made.
The respondent did not cross examine the applicant to establish that at the time of her marriage she did not have
the intention - of contracting and entering a real and continuing relationship. Indeed the respondent said that a statement that a marriage is relevantly genuine may be false
even if at the time it was contracted or when the statement was made, the maker of the statement intended the marriage to
be real and continuing.
I doubt that this is sensible but if
it is, the argument has two major consequences:
1. such a marriage cannot be called "contrived" 2.
many migrants whose marriages break down after arrival in Australia on spouse visas may be unjustifiably susceptible to having their residency permits cancelled
There is no reason for o; public interest in the adoption of an interpretation of the legislation which would lead to such results.
The respondent further argued that even if the applicant intended to contract a true marriage, Harrison did not possess the same intention and therefore the marriage was not genuine within the meaning of regulation 44. There is no evidence that Harrison lacked the relevant intention; if anything, his statutory declaration, for whatever it is worth, suggests the opposite. However, this submission again mistakes the question at issue, which is not whether Harrison did something untoward but whether the applicant made a false statement in answer to questions 2.26 and 2.27 in her migration application form. If she intended the marriage to be real and not contrived, and presumably did not know that Harrison did not share that intention, her statement of facts which reflected her own true intention cannot by itself prove its falsity. Yet in essence this is what the respondent has tried to argue.
In any case, intention is not the matter in issue here. It is the truth or falsity of the alleged statement, if it was made at all. Before these matters can be resolved, assumptions are required that regulation 44 or an equivalent provision existed at the time, that the applicant knew or should be taken to have known its terms, and that the impugned statement contradicts its terms. These assumptions are at best questionable. In particular, it is not easy to see how the
applicant can be taken to have made a false statement about something prescribed by a regulation of which there is no evidence that she had the slightest knowledge at the time the statement was allegedly made. A criminal prosecution or a civil action against her on the basis that the statement was false because it represented a breach of the regulation would in my opinion be bound to fail, unless there is something which imputes to her statement, or deems it to include, the characteristics and content prescribed by the regulation. I can find nothing of this kind here and none was suggested by the respondent.
In support of his submission that the applicant is not to be believed, the respondent also said that her 1987 application for permanent residence demonstrated an intention, perhaps a
determination, to migrate to Australia, and that some peculiar - even inaccurate features of that application cast doubt on her
credibility. The respondent suggested that her 1989 application was preceded by a most odd relationship with
Harrison which, together with the timing of all the relevant events, calls for it to be approached dubiously or with reserve. When coupled with the facts that she began her honeymoon with Harrison in the unlikely romantic haven of the Australian immigration office in Fiji, and that despite being in the same city, they have never lived as a married couple in Australia, the respondent submitted that the whole operation "smacks" of a joint enterprise "which was not completely above board". This gentle euphemism amounts to an allegation of a conspiracy to obtain Australian residency for the applicant and her children in contravention of Australian law. Such a serious offence is certainly possible. The question is whether the evidence establishes this conclusion in a case where, while the presumed intent of the applicant might be obvious, no motlve has been put forward to induce Harrison's complicity; where there is no evidence that either alleged "conspirator" has been asked a single question to that end despite opportunities in and out of Court to do so; and where, so far as the evidence reveals, the respondent has been otherwise unwilling to undertake its proof.
I have heard the applicant give evidence under a lengthy and searching cross examination. There is nothing about her past activities which leads me to disbelieve her. In fact, for a woman with limited skills in the English language, I found her
basic evidence persuasive and convincing. Her 1987
application for permanent residence appears to have been a perfectly proper exercise of legal rights with the adverse and no doubt distressing result of which she fully complied. By not including her then de facto relationship with Harrison as a ground, she even underplayed her chances of success.
I accept her claims that she married Harrison with the intention and for the purpose of contracting a real and
committed marriage. She was no doubt in part motivated, even
attracted, by Harrison's Australian citizenship, and therefore by the prospect that she and her children would be able to live a comparatively safe and stable life in Australia near her family and away from the tragic difficulties being encountered in Fiji by people of Indian ethnic background. But most people decide to marry for a combination of reasons and there is simply no evidence here, and no reason to suppose, that the applicant's rnotivations did not include, as with most people, a major element of true affection for the person she was marrying.
In these factual circumstances, it is not necessary that I try to resolve the issue of whether Khawala is good law in Australia so far as concerns onus of proof in a case such as this. Khawala was a case concerning a Pakistan national who
applied as a student for a visa to enter the United Kingdom. -
Before the application was processed, he went though civil and Muslim marriage ceremonies to a woman who was at that time already married. She later obtained a divorce from her first
processed, Khawaja travelled to the United Kingdom, where he husband. While the visa application was still being told an immigration officer that he was visiting for one month and was granted permission to stay for that period. At the same time, Khawaja's wife was granted unlimited leave to enter the United Kingdom. Subsequently, Khawaja applied for unlimited leave to remain on the basis of his marriage. After enquiries, the application was refused and he was detained as an illegal immigrant. United Kingdom law provides for matters of this kind to be dealt with by way of habeas corpus.
The House of Lords dismissed his appeal against the refusal and detention, holding that "illegal entrant" included any person who had obtained leave to enter the United Kingdom by practising fraud or deception in contravention of the Immigration Act 1971 and was not limited to persons who had entered the country clandestinely. Since Khawaja had deceived the immigration officer as to his marriage, he had entered in breach of the migration laws and was an illegal entrant.
The question arose whether the House of Lords should follow its own decision on the "precedent fact" principle in
Secretarv of State for the Home De~artment: Ex Darte Zamir [l9801 AC 930. Speaking about onus of proof in general in that case, Lord Wilberforce said at 937:
As to the burden of proof, on the return to the writ of haBeas corpus, . . . there is an evidential burden on an applicant to show a prima facie case why his detention is unlawful: for example, by producing stamps on his passport indicating leave to enter. Once he has complied with this burden, however, the burden is on the Secretary of State to satisfy the
court that his detention is lawful. In deciding this issue, the court will always investigate all the facts to see whether the burden has been
discharged or not.
However, In Khawaia the House of Lords came to the conclusion that Zamlr had, for a "precedent fact" case, been wrongly decided. Drawing attention to what he saw as the appropriate errors by reference to the specific observations of Lord Wilberforce in Zamir on that subject, Lord Scarman said at 109:
In r e j e c t i n g the a p p e l l a n t ' s argument based on the
"preceden t f a c t " p r i n c i p l e o f r e v i e w Lord Wilberforce s a i d i n [Zamir a t 9481:
" M y Lords , for the r e a s o n s I have g i v e n I
am o f o p i n i o n t h a t the whole scheme o f the
A c t i s a g a i n s t argument. I t i s t r u e t h a t
i t does not, i n r e l a t i o n t o the d e c i s i o n s
i n q u e s t i o n , u s e such words a s ' i n the
o p i n i o n o f the S e c r e t a r y o f S t a t e ' o r ' the
S e c r e t a r y o f S t a t e mus t be s a t i s f i e d , ' b u t
it i s n o t n e c e s s a r y for such a formula t o
be used i n o r d e r t o t a k e the c a s e o u t o f
the ' p r e c e d e n t f ac t ' c a t e g o r y . The n a t u r e and p roces s o f d e c i s i o n c o n f e r r e d upon
immi gra t i o n o f f i c e r s by e x i s t i n g
l e g i s l a t i o n i s i n c o m p a t i b l e w i t h a n y requ i rement f o r the e s t a b l i s h m e n t o f preceden t o b j e c t i v e f a c t s whose e x i s t e n c e the c o u r t may verify."
H e t h e r e f o r e i m p l i e d i n t o paragraph 9 the words
needed t o b r i n g i t o u t s i d e the " p r e c e d e n t f a c t "
c a t e g o r y o f p r o v i s i o n . M y Lords , i n mos t c a s e s I vou ld d e f e r t o a r e c e n t d e c i s i o n o f y o u r Lordships '
House on a q u e s t i o n o f c o n s t r u c t i o n , even i f I
thought i t wrong. I d o not d o s o i n this c o n t e x t
because f o r r easons which I s h a l l d e v e l o p I am
conv inced t h a t the Zamir r e a s o n i n g gave i n s u f f i c i e n t
weight t o the impor tan t - I would s a y fundamental -
c o n s i d e r a t i o n t h a t we a r e here concerned w i t h , the
scope o f j u d i c i a l r e v i e w o f a power w h i c h i n e v i t a b l y
i n f r i n g e s the liberty o f those s u b j e c t e d t o i t .
T h i s c o n s i d e r a t i o n , i f i t be good, ou twe ighs , i n m y
judgment, a n y d i f f i c u l t i e s i n the a d m i n i s t r a t i o n o f
immigra t ion c o n t r o l to which the a p p l i c a t i o n o f the
p r i n c i p l e m igh t g i v e rise. The Zamir c o n s t r u c t i o n
o f paragraph 9 d e p r i v e s those s u b j e c t e d t o the power
o f t h a t degree o f j u d i c i a l p r o t e c t i o n which I t h i n k
can be show, t o have been the p o l i c y o f o u r l a w t o
a f f o r d t o persons w i t h whose liberty the e x e c u t i v e
1s s e e k i n g t o i n t e r f e r e . I t does t h e r e f o r e , i n my v l e w , t end t o o b s t r u c t the proper deve lopnen t and a p p l i c a t i o n o f the s a f e g u a r d s o u r l a w p r o v i d e s f o r
the liberty o f those w i t h i n i t s j u r i s d i c t i o n .
On the genera l i s s u e o f onus o f p r o o f , Lord Scarman aaid a t 1 1 2 , i n apparent agreement w i t h Lord W i l b e r f o r c e :
Second l y , there i s the problem o f p r o o f . The i n i t i a l burden i s upon the a p p l i c a n t . A t what stage, if at all, is it transferred to the respondent? And, if it is transferred, what is the standard of proof he has to meet? It is clear from the passages cited from Lord Atkin's opinions in
[l9421 A.C. 206 and shuabavi U e k o v Mv-nt of Ni- 119311 A.C. '662 that in cases where the exercise of executive discretion interferes with liberty or property rights he saw the burden of justifying the legality of the decision as being upon the executive. Once the applicant has shown a prima facie case, this is the
law. It was so recognised by Lord Parker CJ in - v Governor of Brixton Prison, Ex w r t e Ahspa [l9691
2 0.8. 222, and by Lord Denninq M.R. in the Court of - - ~ ~ j e a l in v parte Aaam 119741 A.C. 18, 32. And, I would add, it is not possible to construe section 3 of the Habeas Corpus Act 1816, as meaning anything different.
The civil standard of proof was held to be appropriate.
In Naumovska, Justice Lockhart while not expressing a view as to whether Khawala should be followed in Auetralia, commented at 602 that the United Kingdom legislation differs significantly from the Australian model. The implication may be that Khawaia should not automatically apply here. State of Queensland v W w i J J [l9891 90 ALR 611 involved a challenge by
Commissioner into Aboriginal Deaths in Custody that a deceased the applicant government to a finding by the respondent Royal person was an Aborigine. Justice Pincus' view at 619 is suggested as doubting the applicability of Khawala in Australia:
. . . the party challenging the respondent's view as
to a particular deceased person cannot succeed without satisfying the court posi tively that the respondent's view is not merely dubious but wrong.
If to the present point at all, I should have thought that this view might be somewhat supportive of mm. The matter
was also considered in B v Medical Suoe- of Mac- W s ~ i t a l [l9871 10 NSWLR 440, which concerned the Mental Health Act 1983 (NSW), where Kirby P distinguished on the issue of onus of proof. The respondent therefore pointed out that despite Khawale having been decided 7 years ago, no case in Australia has yet followed it.
For myself, if not otherwise constrained by binding authority,
I should not find too much difficulty in adopting the
principles of Khawaia in a case involving habeas corpus or the true liberty of Australian citizens or legal visitors or residents but I have some hesitation in applying it to administrative law generally or to deportation in particular.
Unlike the - rights inherent in the law relating to habeas
corpus and protection from unjustified detention, no non- Australian has the right to migrate to or live in Australia. Only those persons who qualify and receive permission under
Australian law may do so. A person who has obtained permission by fraud is not entitled to be treated as if the fraud had not occurred. Thus Khawaiq might not be thought relevant here. Moreover, the normal means of testing adverse decisions in this country by judicial or supervisory review involves a quite different procedure and statutory framework to habeas corpus. The safeguards for individual liberty built into our system again suggest that a habeas corpus analogy is
neither necessary nor appropriate. Furthermore, my understanding of the trend of judicial pronouncements in judicial review cases is that onus of proof is normally of limited if any assistance in resolving issues.
As I have said earlier and in other judgments, I find its use an unattractive way to resolve disputes on such matters, especially cases involving qualification for residential status. According to the customs of adversarial litigation, albeit long overdue for reform particularly in the context of judicial review of administrative decision-making, the parties may present to the Court, and deprive the Court of, such evidence as they choose. But in deportation cases, distinct and conflicting public interests often clash starkly. Where facts must be found or the fact-finding process is under attack, the Court must try to determine where the truth lies on the evidence brought while taking care not to overlook the possible systemic obstruction of the search for the truth. This case can be so resolved.
I reject the respondent's submission that the applicant is
bound to prove that her marriage was genuine, in order to restore her residential status. Even if the submission were correct, her own evidence is well sufficient to constitute the required proof. The legislation may have permitted or required the executive to cancel her status on suspicion and without proof, but the Court's role is different. In its resolution of the matters in issue, the Court must determine the facts within the confines of and as established by the evidence and available inferences, and then decide what result
the statute provides for the facts so found. This case primarily involves determining whether the applicant made a materially false statement. It is agreed that the alleged statement, if made, was material. I find that the identified statement of the applicant was not false or misleading.
It was not disputed that the categories of relief the applicant is seeking were open and were, in general terms, the appropriate consequences of the Court's ruling in her favour. No discretionary reasons were advanced as to why she should be denied that relief. I therefore declare that the Australian visa issued to the applicant and her three children in Suva, Fiji on 30 December 1988 in the terms:
for initial travel as a migrant before 13 May 1989 and subsequent mu1 tiple return journeys before 13 May 1992 subject to the grant of an entry permit on each arrival
with unrestricted rights of employment, was and remains valid.
residence in Australia issued to the applicant and her three I further declare that the permit to enter and remain for children on S January 1989 was and remains valid. I order that the respondent be restrained from deporting the applicant or requiring her to leave Australia by reason of her having allegedly become an illegal entrant as a result of one or more statements made on or after 11 May 1988 in or in connection with her application to migrate to Australia.
The respondent will pay the applicant's costs. I c e r t i f y that t h i s and the preceding twenty e i g h t ( 2 8 ) pages are a true copy o f the Reasons f o r Judgment herein
of h i s Honour J u s t i c e Einfeld
Dated: 4 October 1991 Aesociate: dud-(?
6 d
Counsel and solicitor Mr T F Roberteon for the applicant instructed by G A Kinsey Counsel and solicitor Miss R M Henderson for the respondents
i n s t r u c t e d b y t h e Australian Government Solicitor
-
Dates of Hearing 12 August 1991
Date of Judgment 4 October 1991
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