Hsiao Yu-Chiung v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 441

Re: HSIAO YU-CHIUNG
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G460 of 1991
FED No. 441
Administrative Law - Migration
(1992) 28 ALD 181 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - Judicial Review - error of law - whether sufficient evidence to justify decision - question of law for Court to determine - objective assessment of material factors

Migration - migration under Business Migration Program - false statement in application form in relation to de facto husband - failure to disclose convictions - deportation order - whether statement made in respect of grant of applicant's visa - whether statement false or misleading in a material particular - matter for objective assessment - de facto and business relationships influential factors in grant of visa - knowledge of falsity irrelevant

Words and Phrases - "material"

Judiciary Act 1903 section 39B

Migration Act 1958 sections 6(2),(16),20(1)(c)(ii),(d)(vi)

Migration Regulations 1989 regulation 4(1)(a)(ii)

Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419

Minister for Immigration and Ethnic Affairs and Anor v Naumovska (1989) 88 ALR 589

Minister for Immigration, Local Government and Ethnic Affairs v Ricardo Dela Cruz (unreported 28 February 1992) Black C.J., Davies and Neaves JJ.

Minister of Manpower and Immigration v Brooks (1973) 36 DLR (3d) 522

HEARING

SYDNEY

#DATE 25:6:1992

Counsel and solicitor for the Applicant: Mr P. Roberts instructed

by Solomon Partners Solicitors

Counsel and solicitor for the Respondent: Mr S.J. Gageler instructed by the

Australian Government Solicitor

ORDER

1. Application dismissed with costs.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under section 39B of the Judiciary Act 1903 to review decisions by the respondent in April 1990 and October 1991 that Ms Hsiao Yu-Chiung (the applicant) was an illegal entrant within section 20(1)(c)(ii) of the Migration Act 1958 (Cth) (the Act) and that she be deported from Australia. It is not disputed that the applicant is aggrieved by the decisions because she has lost the right to remain in Australia.

1. The applicant claims that the decisions involved errors of law in that there was no evidence to justify their making. The applicant seeks an order quashing the decisions, and declarations that section 20 of the Act does not apply to her and that she is entitled to remain in Australia.

2. The relevant facts of the case are as follows:
   

1. The applicant was an equal partner with Mr Pan Tsung Cheng in a metal manufacturing business called Tien Cheng Enterprises established in Taiwan in 1975.

2. She had also lived in a de facto relationship for more than 12 years with Mr Pan and the pair had a son.

3. The couple intended to invest in the metal fabrication industry in Australia with a view to developing a business similar to their business in Taiwan. To this end they applied to migrate to Australia under the Business Migration Program in April 1987.

4. The applicant and Mr Pan do not speak English. They therefore relied on an immigration agent, Mei Chung (the agent), to prepare their application.

5. Between April and October 1987 the applicant and Mr Pan compiled documents in support of their immigration application and forwarded them to the agent.

6. On 20 October 1987 the applicant and Mr Pan attended the agent's office and signed the immigration application form.

7. On 11 May 1989 the applicant and Mr Pan received visas to enter Australia.

8. On 7 July 1989 the applicant and Mr Pan migrated to Australia under the Business Migration Program. After arrival they established a company in Australia called Rolcan Pty Limited.

9. On 30 April 1990, after several interviews with the respondent's department, the applicant was declared an illegal immigrant pursuant to section 20 of the Act.

10. On 10 October 1991 a deportation order was made against the applicant.

1. The issue before the Court is whether the applicant falls within section 20(1)(c)(ii) of the Act which provides, inter alia:
   

(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if;

...

(c) when, or before, a visa was granted or issued on any occasion in respect of the person, he or she: ...

(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular;

1. Although the applicant came to Australia in the category of business migrant under the Migration Act as it existed before section 20 was enacted in 1989, section 20 applies to her by the terms of sub-section (1). If she has infringed the relevant provision of the section, deportation is entitled to follow.

2. The allegation against the applicant is that she made a false statement in the application form completed by her as principal applicant and on behalf of Mr Pan and their child. Question 53 in the immigration application form asked:
   

Have any persons shown ever been convicted of a crime or offence, placed on probation or committed to a place of detention in any country?

1. In answer to that question a cross was placed in the "No" box next to the words "Spouse/De Facto".

2. It is not disputed that the de facto spouse of the applicant, Mr Pan, did have convictions in relation to fraud in 1965, early 1967 and 1975. Therefore it was clearly a false statement to deny such convictions. However, the applicant says that she herself did not make the statement or cause it to be made.

3. According to the applicant, the circumstances surrounding the completion of the application form were as follows:
   

1. When the applicant and Mr Pan attended the agent's office in Taipei on or about 20 October 1987, the agent checked some of the personal written details on the application form with the couple.

2. The questions on the form were not explained or interpreted, and the agent did not ask for answers to those questions. He had already completed the form himself.

3. The agent did not explain or interpret the declaration at the end of the form. In English it says:

I/we declare that the particulars given in the foregoing application for authority to enter and remain in Australia for settlement subject to the Migration Act 1958 are true and correct in every detail. I/we understand that incorrect statements may result in refusal of the application or if not discovered beforehand to my/our being prevented from entering Australia or from remaining in Australia after arrival.

4. The immigration application is a joint form to be completed and signed by two people. The applicant signed the form as Principal Applicant and Mr Pan signed as Spouse/De Facto. Neither of the alternatives provided for the first person declarations was deleted.

1. The applicant argued that because the agent completed the form, the answer to question 53 was not the applicant's answer. Further, it related to Mr Pan, not to her. The applicant submitted that signature by one person of a joint form does not equate to the making or causing to be made by that person of a false statement by the other signatory. Further, the applicant submitted that section 20(1)(c) does not apply to her because the alleged false statement did not, as a matter of law or fact, have any effect on the granting of her visa.

2. There are two questions that need to be asked:
   

1. Was the false statement made by the applicant in respect of the grant of her own visa?

2. If so, was it material to that grant?

For the respondent's decisions to be sustained, both of these questions need to be answered in the affirmative.

APPLICANT'S SUBMISSIONS

First Question

1. The applicant submitted that whether she falls within section 20(1)(c) is a question of law to be determined by the Court: Minister for Immigration and Ethnic Affairs and Anor v Naumovska (1989) 88 ALR 589. In that case a Full Court of this Court (Fox, Franki, Lockhart JJ.) held that it is for the Court to determine whether or not the applicant objectively made or caused to be made a false statement. Franki J said at 597:
   

It is clear that ultimately the question of whether a person is a prohibited immigrant by virtue of the provisions of s 16(1)(b)(ii) of the Migration Act is for a court and that in the appropriate case the Administrative Decisions (Judicial Review) Act vests the necessary power to decide such a question in the Federal Court of Australia.

1. Justice Lockhart was more explicit in his discussion of the matter at 601-602:
   

The applicants' submissions are, in brief, that s 16(1)(b)(ii) should be construed in the light of the fact that it is the policy of the Migration Act to vest in immigration officers the power to decide whether or not to grant an entry permit to an immigrant ... provisions in the Migration Act were pointed to as indicating that the determination of the falsity or misleading character of information in a passenger card are powers which the legislature has vested in the immigration officer who decides to grant an entry permit.

Counsel for the respondent, emboldened by the submission of counsel of the appellants, submitted that s 16(1)(b)(ii) required that the information in a passenger card be false or misleading to the knowledge of the immigrant. Neither view is correct. ... Once a person enters Australia in any of the circumstances mentioned in s 16(1) (including the circumstance that for the purpose of securing entry into Australia he produces to an immigration officer a passenger card that contains information that is false or misleading in a material particular) he becomes by force of the section a prohibited immigrant. No decision by anybody is required to bring about this change of status. It follows as a matter of law once the facts specified in s 16(1) are satisfied. ...

It is for the courts to say whether information in a passenger card produced to an immigration officer by a person for the purpose of securing entry into Australia is false or misleading in a material particular. It is not for immigration officers to determine these matters. Before the Minister may deport a prohibited immigrant he must, of course, conclude on the material before him that the person is a prohibited immigrant, but that is not to say that the determination of the person's status as a prohibited immigrant rests on the Minister's opinion. This status rests on the establishment of objective facts whose existence may be reviewed by the courts.

...

It is for the courts to determine whether it has been established as an objective fact that the passenger card produced by the immigrant to an immigration officer for the purpose of securing entry into Australia contains false or misleading information. The existence of this objective fact is a necessary antecedent to the existence of the status of a person as a prohibited immigrant from which powers of deportation and arrest may follow. Nor is it right that s 16(1)(b)(ii) requires that the immigrant know that the information in the passenger card is false or misleading in a material particular. There is no warrant for construing the sub-paragraph in this way unless its language points plainly and unambiguously in this direction.

1. A Full Court of this Court (Black C.J., Davies and Neaves JJ.) unreported, 28 February 1992, in Minister for Immigration, Local Government and Ethnic Affairs v Ricardo Dela Cruz (now on appeal to the High Court), said at 10:
   

The issue is whether the statements, both of which were made in formal documents required to be lodged by persons seeking to enter Australia, were false or misleading in a material particular. That must be a matter for objective assessment.

1. The applicant submitted that it was an error of law that the respondent declared her to be an illegal entrant on the grounds specified. Following Naumovska and Dela Cruz, the applicant argued that this decision is not for the Minister - whether she falls within section 20 is a matter for the Court.

2. The applicant also submitted that the evidence before the Court upon which the decision should be made is the evidence relating to the completion of the application form. The applicant did not discuss with the agent whether her de facto husband had any convictions, let alone supply any written documentation whereby the answer of 'No' could have been given. Therefore, it was submitted, the answer to question 53 should not be attributed to the applicant.
   Second Question

3. The second question is whether the false statement was material to the granting or refusal of the applicant's visa. The applicant submitted that the wording of the section makes it clear that the materiality must be to the grant of the visa of the person who made the false statement. Because the statement was in relation to Mr Pan and not the applicant, it could not have had the slightest effect in relation to her application for a visa.

4. The applicant submitted that under section 16 of the old Act, the fact that the applicant's spouse was a person of bad character was not a matter that could be taken into account in relation to granting a visa to the applicant. Further, it was argued that there is nothing in the Act or regulations as they now stand which declares or infers that it is material to the grant of a visa to a person that the person's spouse has had criminal convictions. Further, no departmental policy was presented to show that the conviction of the applicant's spouse must preclude the applicant from getting a visa.

5. A minute about the present case written by Mr David Hazlehurst, an officer of the respondent's department, on 16 July 1991 to its Regional Manager, Mr Frank Donatiello, illustrated the departmental reasoning:
   

Having established a false statement it must be shown that the statement was false "in a material particular". Section 20 of the Act is sufficiently similar to s.16 of the pre-19 December 1989 legislation to rely on advice from the Attorney-General's Department (No. 218 of 9 October 1986) interpreting the meaning of "material particular". That advice indicated that a matter was material, where it was capable of affecting a decision. Since 19 December 1989 the only matters relevant to the making of decisions are factors going to the satisfaction of criteria for the grant of a visa or entry permit. Therefore, a particular will only be material where it is capable of affecting a decision on the satisfaction of criteria.

Mr Hazlehurst continued:

Ms Hsiao must satisfy criterion E, establishing that Mr Pan satisfies public interest and health criteria. It is arguable that, within the scope of the public interest criteria, Mr Pan is not a person of good character; his convictions for fraud could be construed to indicate "contempt, or disregard, for the law", in accordance with regulation 4(1) of the Migration Regulations. Assuming this is so, Ms Hsiao's statement was not only false but it also related to a material particular, since her answer was capable of affecting a decision in relation to criterion E.

1. Regulation 4(1)(a)(ii) sets out the criteria A to E pursuant to which a person is taken not to be of good character. They are:
   

(1) For the purposes of these Regulations, a person is to be taken not to be of good character if:

(a) in the case of an applicant for a visa or an entry permit of any class:

(ii) the applicant:

(A) has at any time been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year; or

(B) has at any time been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling not less than one year; or

(C) has at any time been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while the person was of unsound mind; or

(D) has been deported from another country; or

(E) has been excluded from another country in the circumstances prescribed for the purposes of subparagraph 20(1)(d)(vi) of the Act;

Section 20(1)(d)(vi) requires:

(d) when the person entered Australia, the person was: ...

(iv) a person who had been charged with a crime and either:

(A) found guilty of having committed the crime while of unsound mind; or

(B) acquitted on the ground that the crime was committed while the person was of unsound mind;

1. The applicant submitted that Mr Hazlehurst's comments should be rejected for a number of reasons. First, as criterion E has nothing to do with the present case, Mr Hazlehurst must be taken to be referring to criterion B. In any event, regulation 4 is not applicable at all because it is not the applicant who has been convicted so the question of character is not relevant to her. Moreover, Mr Hazlehurst's comments relate to the new Act and regulations which are not relevant in this case. The applicant also said that the minute does not provide evidence from which the Court can infer that a conviction held by an applicant's spouse is material to whether or not the applicant will be allowed a visa to enter Australia. In my opinion, character as such is irrelevant to this case because it was not the basis on which the decisions presently under review were made.

2. The applicant submitted that even if the Court finds against her on the first question, it can still find in her favour on the second question. That is, a finding can and should be made that the statement was not material to the grant of the applicant's visa because there is no provision by which a lie told about a co-applicant by one applicant for a visa can be taken into consideration on the grant of the co-applicant's visa.
   RESPONDENT'S SUBMISSIONS
   First Question

3. The respondent submitted that the application form required completion by two different people. Whilst the agent may have filled out the entire form, the applicant signed the declaration and thus adopted the form. The respondent pointed out that the question was asked on a form which the applicant filled in as principal applicant and that she was legally required to fill in that form to apply for her visa. The respondent submitted that this is sufficient to constitute the statement as one in respect of her own visa.
   Second Question

4. In support of his submission that the false statement about Mr Pan's criminal convictions was material to the applicant's application, the respondent presented two propositions. First, the fact that one of the parties to a de facto relationship, which is for present purposes equivalent to a legal marriage, has disqualified himself from entering into Australia is relevant to whether or not the other party should be granted a visa as the application was to come to Australia as a family unit. It was thus in truth a family particular.

5. Secondly, Mr Pan had a business relationship with the applicant. Indeed, the reason the couple put forward to enter Australia was to set up a business together. It is relevant to the grant of the applicant's visa that her business partner has previous fraud convictions.

6. The respondent submitted that a particular will be material where it is capable of affecting the decision to issue the visa. Since the application was made prior to December 1989, the respondent argued that it is necessary to examine the Act as it stood at the time, the only relevant provision then being section 6(2). That section provided the Minister with a general discretion to grant an entry permit to a non-citizen. According to a Full Court of this Court (Fox, Beaumont and Gummow JJ.) in Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419, the discretion is to be exercised in the public interest. Justices Beaumont and Gummow stated at 428:
   

...the discretion is to be exercised in the light of what, in the judgment of the Minister, is in the best interests of Australia. In deciding what is in the public interest, the Minister will need to balance the competing claims of possible advantage on the one hand and of possible detriment on the other so far as the national interest is concerned:... To determine whether it is in the interests of Australia to grant, or to refuse to grant, a temporary entry permit is essentially a matter for the judgment of the decision-maker: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd

(1986) 66 ALR 299 at 309. As Lord Brightman said in Puhlhofer v Hillingdon London Borough Council (1986) AC 484 at 518: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of the fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

1. There is no discretion involved in section 20; either the applicant made a statement in respect of the grant of her own visa that was false in a particular material to that grant, or she did not. However, the respondent submitted that the consequence of Maitan in the context of section 20 is that the test of materiality is whether the decision-maker may have been influenced by the false particular. The respondent submitted that if the truth had been told about Mr Pan's two previous convictions for fraud, the decision-maker would undoubtedly have been influenced when granting the applicant's visa because it was a relevant and influential factor.
   CONCLUSIONS

2. There is no doubt that the answer in issue was false. Moreover, the applicant signed the declaration. By doing so she made and adopted everything in it including the answer to question 53. I do not believe that a person signing a form can later pick and choose which answers are adhered to. If she was not responsible for this answer, she was equally not responsible for the rest of the answers in the form. If so, she did not complete the required forms for a visa and could not be eligible for it.

3. I acknowledge the applicant's evidence that she did not speak English, did not complete the form herself, did not discuss it with the agent or Mr Pan, and therefore did not know that one of the questions on the form was answered falsely. However, even if these propositions are all accepted as fact, the question of her knowledge of the falsity is irrelevant under section 20. As the Full Court in Dela Cruz stated at 10:
   

The statement may be false or misleading in a material particular whether or not the person knew that the statement had such a character.

1. In this respect, Fox J's comments in Naumovska at 590-91 are conceptually helpful:
   

Following authority (R v Governor of Metropolitan Gaol; Ex parte Di Nardo (1962) 3 FLR 271, to which I would add references to the Canadian cases Minister of Manpower and Immigration v Brooks (1973) 36 DLR (3d) 522 and Re Litas and Minister of Manpower and Immigration (1976) 57 DLR (3d) 304) (the trial judge) was of the view that under s 16(1)(b) of the Migration Act 1958 (Cth) it is not necessary for the authorities to prove that the person entering the country knew that the passenger card contained information "that is false or misleading in a material particular". I agree, with respect, with the philosophy governing the approach of Sholl J in Di Nardo's case and of the judges in the Canadian cases to which I have referred, which recognises how dependent the immigration authorities are on information provided by intending immigrants, and of the need, where there is a selective immigration policy, to make those people responsible for the information supplied by them, or on their behalf.

1. Fox J recognised the law as showing, and I respectfully agree, that immigration authorities must be in a position to depend upon the information that is given in forms by persons seeking to come to Australia.

2. I find that the applicant did make the false statement on the application form for her visa.

3. On the issue of materiality, Laskin J of the Canadian Supreme Court stated in Brooks (referred to by Fox J) at 537-538:
   

I note in this connection that s.20(2) of the Immigration Act requires every person at an examination for entry into Canada to answer truthfully all questions put to him, and his failure to do so is declared to be itself sufficient ground for deportation where so directed by a Special Inquiry Officer. Although the present case concerns an inquiry into deportation and not examination for admission, the emphasis in s.20(2) on the per se effect of the failure to answer truthfully lends support to a construction of s.19(1)(e)(vii) which makes material falsity or misleading information a basis of deportation although no independent ground apart therefrom is established.

1. Materiality is not an express requirement of the Canadian legislation, but in conformity with some United States precedents, it has been read into the legislation.

2. In Dela Cruz the Full Court, in considering the meaning of materiality, stated at 7:
   

The term "material" requires no more and no less than that the false particular must be of moment or of significance, not merely trivial or inconsequential.

1. Their Honours continued:
   

In the context of s.20(1), a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made: see Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs (Lockhart J, 12 October 1989, unreported). A statement will be relevant to that purpose if it may - not only if it must or if it will - be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.

1. Although this quite broad interpretation does not find complete favour in some of the overseas authorities, it is of course binding on me. However, it is not necessary here to consider whether it can or ought to be distinguished in this case. In my opinion, the false answer to question 53 was not a trivial particular. Especially taken in the context of the proposed business enterprise and the family relationship between them, it was a significant factor that the applicant's de facto partner had previous convictions. I am satisfied that the statement was material to the grant of her visa.

2. I find that the respondent's decision that the applicant was an illegal entrant within section 20 of the Act was correct. He is entitled to deport her from Australia on that ground. The application is dismissed with costs.