Goy, P.B. v Minister for Immigration & Ethnic Affairs
[1995] FCA 69
•24 Feb 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG383 of 1993
GENERAL DIVISION )
BETWEEN: PENG BON GOY
Applicant
AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 24 February, 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The decision made on 29 June 1993 by the respondent's delegate not to grant the applicant an entry permit be set aside.
The applicant's application for grant of an entry permit be determined by the respondent or his delegate according to law.
There be no order as to costs.
(Note:Settlement and entry of order is dealt with in Order 36 of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG383 of 1993
GENERAL DIVISION )
BETWEEN: PENG BON GOY
Applicant
AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 24 February, 1995
REASONS FOR JUDGMENT
Hearing of an application for an order of review in respect of a decision made on 29 June 1993 by a delegate of the respondent not to grant the applicant an entry permit under the Migration Act 1958.
The application for the permit having been made in October 1988, the provisions relating to entry permits of the Migration Act 1958 as in force immediately before the commencement of s.6 of the Migration Legislation Amendment Act 1989 on 19 December 1989 continued to have effect after that commencement, notwithstanding the repeal of those provisions by that section : see s.6(4).
The applicant not being an Australian citizen, and having entered Australia before he applied for the permit, s.6A of the Migration Act 1958 as in force on 18 December 1989
(hereinafter called "the Act") forbad the grant to him of an entry permit unless at least one of a number of conditions stated in sub-section 6A(1) was fulfilled in respect of him. He contended, and the decision maker concluded, that one of the conditions was fulfilled : he was the spouse of an Australian citizen. In exercising the discretionary power, which fulfilment of that condition enlivened, to grant or refuse an entry permit, the decision maker had regard to a statement of Ministerial policy, parts of which are quoted by the Departmental officer whose statement of reasons for his recommendation against grant of the permit has been treated by the parties, and will be treated by me, as the reasons of the respondent Minister's delegate for her decision not to grant the permit. At my request a copy of the statement of Ministerial policy was produced to the court.
The applicant, his parents and his siblings were born in, and have been citizens of, what is now Malaysia. The father died before the applicant came to Australia. His married siblings live in Malaysia or Thailand. Two single brothers live in Melbourne. They are in their forties. The applicant was born in 1959. He arrived in Melbourne in February 1987 with his mother and a sister. During the preceding ten years he had been sentenced in Malaysia to about five terms of imprisonment aggregating about ten years, of which he had served more than six years, for offences which originated in his addiction to heroin, according to his own account, which the delegate accepted. No material casting doubt on that account was before the delegate. All the material before the delegate supported the conclusion, which the delegate appeared to accept, that the applicant has abstained from drug use in this country, where members of his family here procured expert medical and other treatment of his addiction. The sister who accompanied him to Melbourne was killed in a motor car accident in March 1988. His mother and the two single brothers, each of which brothers conducts a business in Melbourne, have been accepted as permanent residents. One brother, now called Peter, was shown by material before the delegate to have been an Australian citizen since 1991. (I was informed from the bar table that the other brother, now called Greg, is also an Australian citizen.)
The applicant was granted a temporary entry permit, as a visitor, for six months when he entered Australia. His application for the permit, signed by him, answered in the negative a question printed on the application form as to whether he had been convicted of a criminal offence in any country. He was granted one extension of his visitor's permit, until November 1987, but he was refused a further extension. He applied on 7 March 1988 for an entry permit according him resident status, claiming that he fulfilled the requirement of s.6A(1)(e) that there be "strong compassionate or humanitarian grounds for the grant of an entry permit to him". The application was based on the applicant's need to remain away from Malaysia where, it was contented, he would be drawn back into indulgence of his heroin addiction, and on his need of the support his brothers and mother were giving him in Melbourne. His convictions were disclosed. When interviewed shortly after his sister's death he said that she had filled in the application form which falsely denied conviction, and that he had been unaware of the question on the form when he signed it. His application on that ground was refused on 1 June 1988. On 19 September he married Heidi Alina Violet Csitkovits, an Australian citizen, in Melbourne. On 17 October 1988 another application for resident status was lodged by him, he claiming that he fulfilled the requirement of s.6A(1)(b) that he be "the spouse .... of an Australian citizen".
The applicant plainly did, and still does, satisfy that latter condition, so that s.6A(1) creates no impediment to the grant of a permit. This the delegate recognised in what I will call her reasons for decision.
It was a ground of appeal that the delegate erred in law because she "considered the applicant's entitlement for permanent residence at the date" when she made the decision "rather than at the date of the original application for permanent residence". The applicant's wife left this country in June 1990 and has not returned. If the delegate's attention had been confined to events which occurred in the months following the lodging of the application in October 1988 she would have been considering the applicant as a man cohabiting with his wife in this country. Reference was made to Chan Yee Kin v. Minister for Immigration and Ethnic Affairs 1989 169 C.L.R. 379 and Lek v. Minister for Immigration Local Government and Ethnic Affairs (No. 2) (1993) 45 F.C.R. 418. Those cases were concerned with the ascertainment, by an administrative decision maker, of historical fact : whether at a particular time a person had a fear of persecution and whether at that time the fear was well-founded. There was a question of law as to whether the relevant time was that at which a claim by the person for that ascertainment was made or that at which the ascertainment was achieved by the decision maker. In the latter case Wilcox J. held that the later time was that which the statute required. This case, on the other hand, is concerned with the exercise of a power to grant or refuse a permit. All facts and other considerations relevant to the exercise of that power must in my opinion be given consideration by the decision maker, whenever they occurred.
Under the ground that there had been a failure to accord the applicant procedural fairness a number of criticisms were made of the course followed in reaching the decision under review. It was submitted that the delegate was under an obligation to seek to gain knowledge of the views, about the marriage and the application, of the applicant's wife. There is no substance in the submission, in my opinion. During much of the time when the application was pending the applicant was known to be represented by a solicitor. The applicant at one time presented in support of his case written communications from the wife to the applicant which gave no basis for a suspicion that she might be unwilling, if asked by the applicant, to communicate those views to the respondent's officers. The delegate's reasons include this paragraph:
"34.At his interview on 25 May 1993, Mr Goy said that he had been separated now from his wife for nearly 3 years, he had not heard from her for over seven (7) months, that there is no proposed reunion at this time and that both he and Mrs Goy are contemplating divorce proceedings."
It was not submitted that that paragraph contained any error. In those circumstances it was in my opinion for the applicant, not the delegate, to determine what communication from the wife would be placed before the decision maker.
It was submitted that the delegate was under an obligation to seek to question the applicant's two single brothers. The submission is rejected. There was no reason to suspect that either brother would fail to communicate with the respondent's officers, if asked by the applicant to do so. And, as will appear, one of the brothers did make a communication to the respondent's officers in May 1992.
It was submitted that procedural fairness required that there be an oral hearing of the application. The applicant was interviewed by one of the respondent's officers on several occasions. On the last occasion, about five weeks before the delegate made her decision, he was asked whether he wished to "advance any information" which should be taken into account in making the decision, and his response was recorded on the file which was before the delegate when the decision was made. He did not ask for any hearing. He informed the interviewer that he had terminated his former solicitor's retainer. In those circumstances I do not consider that procedural fairness included a requirement of a hearing (Cf. Chen Zhen Zi v. Minister for Immigration and Ethnic Affairs (1994) 121 A.L.R. 83.)
It was a ground of the application that the decision was so unreasonable that no reasonable person could have so exercised the power to grant or refuse an entry permit. There was said to have been unreasonableness in the application, to the circumstances of the case, of what in the Ministerial statement are called "policy guidelines". After setting out the legal requirements of s.6A(1)(b) of the Migration Act 1958 the document continues thus:
"2.3 Policy Guidelines
2.3.1Once the legal requirements have been established the principal applicant should be assessed against the following policy guidelines:
.the Australian citizen/resident spouse should support the application; (this should be indicated by the completion of the relevant section of the application form);
.the marriage should not have been contrived for the purpose of obtaining residence in Australia and there should be a genuine intention of maintaining a lasting relationship beyond migration considerations;
.the applicant should be living with their spouse and the marriage should not have ended through divorce, separation or death;
.the applicant and spouse should intend to live together on a genuine domestic basis;
the preceding three points should be indicated by the Declarations made by the applicant and spouse respectively on the application form (M692) and any additional evidence supplied such as leases, joint bank accounts, wills, childrens' birth certificates etc. The bona fides of the relationship should be confirmed by referees in items B4 and B5 of the same form.
.the applicant should not have an ongoing marriage or defacto marriage relationship with a person other than the Australian citizen/resident who supports the application.
2.3.2If doubts on this point or any preceding point are held by the examining officer the applicant and spouse may be asked to attend an interview to resolve these doubts.
3.1Breakdown of the relationship during processing
3.1.1If, during the course of processing, a marriage is found to have:
.ended through divorce or death, the applicant no longer meets the legal requirement under sub-section 6A(1)(b) and the application cannot be approved on the grounds of marriage. In these cases however, careful consideration should be given to the circumstances of the application as it may warrant approval under sub-section 6A(1)(e). ie `Strong humanitarian or compassionate grounds' (See GORS series number 6: Strong Compassionate Grounds).
.broken down irretrievably for any reason, in the absence of other special factors, the application should normally be refused. In considering such cases however officers should give careful consideration to the compassionate aspects arising from the breakdown of the marriage. As the couple are not divorced, the legal requirement is still met and in the light of the individual circumstances, officers may still consider that a case exists for favourable consideration under S6A(1)(b).
3.1.2Parties to a marriage which had broken down during processing who are attempting a reconciliation should be given the opportunity to demonstrate that this reconciliation is genuine and likely to be effective. A period of six months may be allowed for this. A decision on the application should have regard to any evidence of marriage counselling, the circumstances of the relationship (including any children of the relationship) and the duration and number of periods of separation.
3.2 Interviews
Both partners to a marriage should be interviewed separately where the assessing officer considers it necessary: for instance, where there are significant age, socio-economic or cultural differences between the partners, or if the couple met less than two months before the marriage."
The delegate in her reasons set out the four sentences in paragraph 2.3.1 described therein as "policy guidelines", and the second half of paragraph 3.1.1, but omitting all but the last clause of the last sentence thereof. Later in her reasons the delegate wrote, under the heading "Assessment of claims", the following:
"27.As Mr Goy is married to an Australian resident (marriage certificate at folio 66) and there is no evidence at this time that a divorce or death has taken place, I find that he satisfies the legal precondition of Section 6A(1)(b).
28.However, in considering whether the discretion in Section 6(2) should be exercised in Mr Goy's favour I have had regard to the policy requirements for the grant of resident status on marriage grounds as outlined in paragraph 7 above.
29.Ms Csitkovits, the applicant's spouse, supported his original application for GORS and has not indicated in writing that support has been withdrawn although I note that she did not support the application for reconsideration. On balance, I find that the application is supported by the spouse and therefore this requirement has been met.
30.The fact that Ms Csitkovits claimed to be divorced when she departed Australia casts doubt on the genuineness of the marriage. Ms Csitkovits was previously married to Mr Kurt Csitkovits in 1982 and divorced in December 1985. Her description of her marital status could have referred to the termination of her first marriage from which I have formed the view that she accorded little significance to her marriage to Mr Goy. However, there is no evidence to suggest that the marriage was not genuine or that it was contrived for the purpose of obtaining resident status. I therefore find that this requirement has been met.
31.I will add at this stage that I have given no weight to the anonymous allegations at folio 103, concerning Mr Goy's marriage.
31.Ms Csitkovits departed Australia on 13 June 1990 and has not returned. In a letter dated 25 November 1991, Mr Goy's legal representative stated that `Mrs Goy temporarily resides in Austria. Their relationship has inevitably weakened by the lack of physical contact over the time. She has decided that she does not wish to return to Australia at the present moment'. At interview on 27 april 1992 Mr Goy stated that he maintained contact with his wife through letters and telephone calls, that he had spoken to her on the telephone about 10 times and that she wrote to him. He also stated that his wife `insists on staying in Austria for the time being'. At an interview on 25 May 1993 Mr Goy conceded that he and his wife had not lived together for nearly 3 years. On the basis of the sole fact that Ms Csitkovits has not resided in Australia for nearly three years I find that the applicant is not living with his spouse and therefore he does not satisfy the third policy requirement.
33.I now turn to the requirement that the applicant and his spouse `should intend to live together on a genuine domestic basis'.
34.At his interview on 25 May 1993, Mr Goy said that he had been separated now from his wife for nearly 3 years, he had not heard from her for over seven (7) months, that there is no proposed reunion at this time and that both he and Mrs Goy are contemplating divorce proceedings.
35.Given the above, I can only conclude that both Mr Goy and his wife do not intend to live together on a genuine domestic basis and therefore Mr Goy does not satisfy the fourth policy criterion.
36.As Mr Goy does not satisfy all of the policy requirements for the grant of resident status on marriage grounds his application should normally be refused. However, I have also considered whether there are compassionate grounds arising from his separation from his spouse or any other matters which would warrant the grant of resident status outside of policy."
The apparent basis for the assertion as to the normal in the first sentence of paragraph 36 is paragraph 2.1 of the Ministerial statement, which reads:
2.Criteria
2.1Summary: to be granted resident status on the basis of marriage to an Australian citizen, the Applicant and any integral family members included in the application must:
.lodge the correct forms (see Attachment 1) - as required by S6(2A)(a) of the Migration Act 1958;
.pay the correct fee (see GORS series number 16: Fees) - as required by S6(2A)(a) of the Migration Act 1958;
.meet the conditions of S6A(1)(b) by having a legal marriage;
.meet the public interest guidelines of a `genuine' marriage ie. the marriage involves a normal marital relationship;
.meet public interest policy requirement;
-health requirements (see IDIM Subject: Health Requirement);
-meet character requirements (see GORS series number 17: Character Requirement);
-other as relevant."
The "policy guidelines" in paragraph 2.3.1 are presumably "the public interest guidelines of a `genuine' marriage" in paragraph 2.1.
It was submitted, by reference to propositions concerning the remarkable variety and mutability of the relationships between spouses, that the conclusion stated in paragraph 35 of the delegate's reasons was unreasonable. Having regard to paragraph 34 of those reasons, I cannot accept the submission.
It was submitted that the delegate had failed to have regard to the circumstances that the applicant's wife had desired to go to Austria to care for her mother, who was ill in that country, that the applicant had wished to accompany his wife and had appealed, through his solicitor, for a determination of his application before his wife's departure for Austria, which occurred in June 1990, that the long ensuing separation of the applicant and his wife had brought the marriage to the state which is described in paragraph 34 of the delegate's reasons, and that the respondent's officers were responsible for that inordinate delay. The delegate's failure to take those circumstances into account constituted a failure to take into account a consideration relevant to the exercise of the power to grant or deny the permit, it was submitted, and the existence of those circumstances was said to show that the delegate's exercise of the power to deny the permit was so unreasonable that no reasonable person could have so exercised the power.
There is in my opinion no substance in the latter of these two submissions. As to the former, it is not shown, in my opinion, that there was a failure to take into account any relevant circumstance. When in October 1989 the respondent's solicitor wrote concerning the desire of the applicant and his wife to leave Australia he expressed the position thus:
"Mr Goy and his wife wish to travel overseas in Christmas 1989 and I would therefore be pleased if you could ensure that all such facilities are provided to them for this purpose."
When on 28 November 1989 each of the applicant and his wife was interviewed by one of the respondent's officers neither of them was recorded as speaking of overseas travel or of the wife's mother's illness. The applicant is recorded as saying that he believed that his wife would live with him in Malaysia if he were not granted a permit to live in Australia. On 13 November 1991 the solicitor advised one of the respondent's officers that to the best of his knowledge the applicant and his wife were living together. A letter dated 25 November 1991 from the solicitor to the respondent's department included the following:
"I refer to your letter dated the 13th of November, 1991. I note that you have made an appointment for Mr. and Mrs. Goy to attend the Department on Monday the 9th of December, 1991 at 9.00 a.m.
My client instructs me to advise you that he and his wife do not wish to attend the interview. They do not believe that that interview is necessary, given the below mentioned considerations.
They were married on the 19th September, 1988. Mr. Goy made an application for Change of Status on marriage grounds on the 11th of October, 1988 under the old Migration Act. He and his wife were interviewed on the 28th of November, 1989 and the 15th of March, 1990. Both of them have been wanting to travel overseas together and on the 5th of October, 1989 I wrote to you requesting that Mr. Goy's application be dealt with as quickly as possible so that they could both travel overseas.
His wive went overseas in July, 1990 with every intention of Mr. Goy following her as quickly as possible. Mr. Goy intended to wait until his Permanent Residence Application had been approved. In normal circumstances applications
under the old Act would not take over three years to be approved. Most applications on marriage grounds would have been approved at a much shorter period of time. Therefore, their assumptions that he would rejoin her overseas would appear to be reasonable assumptions.Mrs. Goy temporarily resides in Austria. Their relationship has inevitably weakened by the lack of physical contact over the time. She has decided that she does not wish to return to Australia at the present moment."
When interviewed on 27 april 1992 and questioned about his relationship with his wife the applicant said nothing about his wife's mother's health. The wife's failure to return to Australia was explained solely by reference to her unwillingness to leave Austria. The delegate's reasons include advertence to the effect on the marriage of the long separation. I am not persuaded that the circumstances to which counsel for the applicant pointed were not taken into consideration by the delegate.
The delegate's statement of reasons for the decision concluded thus:
"37.Mr Goy has claimed that he needs to remain in Australia to be close to the family support provided by his brother and his mother and to give physical support to his mother who has several disabilities. I note that the Department's movement date base shows that since Mr Goy's mother, Chew Say Mooi was granted Australian residence six years ago, she has spent more than half that time outside Australia.
38.I therefore do not accept that Mrs Chew is solely dependent on Mr Goy or that Mr Goy needs to remain in Australia to be under Mrs Chew's influence. I accept that Mr Goy might be close to his brother Peter and that he may grieve for his sister who died in Australia, and I note that he has several siblings still in Malaysia as well as his mother for approximately half of each year. I am therefore of the view that this claim does not constitute sufficient grounds such that it would be unreasonable to expect Mr Goy to depart Australia.
39.Mr Goy claims that he has had past difficulties in relation to heroin use and addiction and consequent criminal convictions and that residing in Australia is beneficial in avoiding a recurrence of this situation. However, having considered this claim, I do not believe that it constitutes sufficient grounds as to consider it unreasonable to expect Mr Goy to depart Australia.
40.Furthermore Mr Goy made false and misleading declarations on his application for a visa in that he declared that he did not have any criminal convictions and it would appear therefore, that from the moment he entered Australia he became an illegal entrant under Section 20 of the Migration Act 1958 as it applied pre 19 December 1989.
41.I acknowledge that no official evidence about Mr goy's criminal convictions has been provided, however Mr Goy's own account indicates that these convictions and the sentences incurred, are of such a serious nature that they normally would lead to a person being refused Australian resident status.
42.In addition, given that Mr Goy knowingly provided false and misleading declarations to gain entry to Australia, and taking into account that the visa on which he travelled to Australia permitted a temporary stay only, it cannot be said that he held legitimate expectations to remain permanently in this country, even if by this time he has spent 6 years in Australia.
43.In all of the circumstances of this case I find that Mr Goy does not have claims that they would justify the exercise of the discretion in Section 6(2) in his favour. I also find that there are other serious matters in relation to Mr Goy's character which weigh against the grant of resident status to him."
Those and the other reasons which I have also set out above do not justify a conclusion that the decision was unreasonable or, except in one respect, a conclusion that any relevant consideration was overlooked, in my opinion.
It will be observed that Mrs. Chew's dependence on the applicant is considered in paragraph 38 of the statement of reasons, but that otherwise there is no reference to the interest of the applicant's mother or of either of his brothers resident here in the fate of the application for a permit. The paragraphs of the statement which follow paragraph 36 are expressed in terms which strongly suggest that it was only to the interests and needs and expectations of the applicant that the delegate was directing her attention, except for her advertence to the dependence on him of Mrs. Chew, the applicant's mother.
When in May 1992 application was made for reconsideration of the decision made in April 1992 that he be not granted an entry permit, it was supported in writing by the brother called Peter. A statement included in the form of application included the following:
"His sister had insisted on him coming with her and his mother to take him away from the criminal elements and drug related associates and to short circuit the chances of the Applicant being imprisoned again for any drug related offences. Since that date a number of things have happened including the following:
(a) His sister unfortunately was killed in a car accident in March, 1988. This has led to a much greater dependency by his mother upon him to care for her.
(b) The Applicant has been drug free since his arrival in Australia and his opportunities of rehabilitation in Australia have been excellent.
(c) Through his marriage with his wife Heidi he became a settled person and together with the added responsibility of looking after his mother he has become much more strengthened and able to cope.
10. However, if he was forced to return to Malaysia there would not be rehabilitative forces around him such as his mother, his family life in Australia and the support that his brother Peter gives to him.
11. Ever since the applicant was a teenager all his friends had been involved in drugs. If he was forced to go back he believes he would be under enormous pressure to rejoin this group. For 15 years his mother has been watching and worrying about him. Now that he has been in Australia for over five years his mother is an Australian resident and she does not want him to depart because she fears that he will weaken under these pressures and will succumb to drugs again without her presence and to assist him in rehabilitation.
12. As stated previously his mother is likewise dependent on him having poor eye sight and prone to deafness wearing a hearing aid."
A letter dated 4 August 1992 from a Senator for Victoria in the Australian Parliament to the respondent was in the file which was before the delegate. That letter reads:
"I make representations on behalf of Mr Goy of 1/43 Arndt St Pascoe Vale. Mr Goy applied for change of status on marriage grounds. The application was rejected and he appealed with the Migration Internal Review office. The appeal was rejected on the grounds that the circumstances surrounding Mr Goy's relationship to an Australian resident, Ms Csitkovits, were not totally satisfactory.
This is due mainly to the fact that Mr Goy and his wife are physically separated. As I understand it, Ms Csitkovits is living temporarily in Austria. Due to the economic situation in Australia, she was only able to pursue her career through this temporary offer of a job overseas. I have been informed that the couple keep in contact either through correspondence or by phone. I believe they plan to be reunited at a later stage.
Other factors involve Mr Goy's drug addiction which almost led to his death before he came to Australia. While he has been in Australia he was stayed away from drugs. His mother and brother have been very supportive in terms of helping him live a reasonably normal lifestyle. They believe that if he is sent back to Malaysia without the ongoing support of close family relatives and friends, he will go back onto drugs.
As this case has come to the last stage of the process, I would appreciate it if you could review Mr. Goy's claims sympathetically."
There is other material in the file to suggest that the applicant's brothers, or one of them, had procured for him the professional assistance he was given to control his addiction. The file thus discloses a serious concern for the applicant's welfare, if he were to be forced to leave this country, on the part of three Australian residents, at least one of whom is an Australian citizen, and who are his closest living relatives. The two brothers have been long settled in this country. The public interest which the exercise of the power to grant or deny an entry permit is intended to serve in my opinion
includes the interests of persons standing in such a relationship to the applicant as I have described. The applicant himself may have had little claim to consideration of his interests. But those three persons, as members of the Australian community and as close relatives who had supported the applicant in this country for more than six years and had, as the material before the delegate suggests, helped him to control a notoriously destructive addiction during that period, did have such a claim, in my opinion. In his helpful submissions Mr. Cavanough of counsel for the respondent cited authority for the proposition that only a consideration which the Migration Act 1958 requires, expressly or impliedly, to be taken into account may be treated as "a relevant consideration" for the purposes of s.5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977. I accept that. The power here in question is required, in my opinion, to be exercised in the interest of the Australian community. Those of that community with close familial connections to an applicant and a real interest in his welfare which they voice to the decision maker, or which is otherwise obvious, have in my opinion interests which the decision maker is required to take into consideration. And in my opinion a careful reading of the delegate's statement of reasons shows that, except in respect of the mother's suggested dependence on the applicant, those interests were not accorded consideration.
The weight to be accorded the concerns of the three relatives is a matter for the person exercising the power to grant or deny an entry permit, not for the court. But the evidence before the court does not show that consideration of those concerns could not result in the grant of a permit. Accordingly the decision must be set aside and the application for an entry permit decided according to law.
One other matter canvassed during the hearing should be mentioned. The delegate's finding that the false statement concerning convictions was "knowingly" made by the applicant was clearly open to her on the material before her. But her failure to advert to the applicant's denial that the statement was made "knowingly" is, perhaps, disturbing. The denial is not prominently recorded in the file. It is possible that it was overlooked. When the denial was made the applicant's sister could not be questioned, for she had died. The point may be not insignificant : the finding may have provided part of the basis of the conclusion stated in the second sentence in paragraph 43 of the statement of reasons.
I certify that this and the 20 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 24 February, 1995
No. VG383 of 1993
Counsel for the Applicant : Dr. J.A. Scutt
Solicitor for the Applicant : E. Michael Bakhaazi
Counsel for the Respondent : Mr. A. Cavanough
Solicitors for the Respondent : Australian Government Solicitor
Dates of Hearing : 16 and 17 February, 1995
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