Hutchesson, B.H. v Senator the Honourable Robert Ray, Minister for Immigration, Local Government & Ethnic Affairs

[1988] FCA 819

JUDGMENT No. ...!$-!2-2-r%$..-

IN THE FEDERAL COURT OF AUSTRALIA )

SOUTH AUSTRALIA DISTRICT	REGISTRY	) NO. G85 Of 1988
GENERAL	DIVISION	)

BETWEEN: BARBEL HERTA HUTCHESSON

Applicant

Respondent

MINUTES OF ORDER

.-	CORAM :	Jenkinson J.
PLACE:	Melbourne

- DATE : 16 December, 1988

THE COURT ORDERS THAT:

1.         The application be dismissed.

2 .          There be no order as to costs.

(NOTE	:	Settlement and entry of orders 1 s dealt wlth in 0.36 of
the Federal Court Rules.)

.

IN THE FEDERAL COURT OF AUSTRALIA	)
SOUTH AUSTRALIA DISTRICT REGISTRY	) NO. G93 Of 1988
GENERAL DIVISION

BETWEEN: BARBEL HERTA HUTCHESSON

Applicant

Respondent

MINUTES OF ORDER

CORAM :	Jenkinson J.
PLACE :	Melbourne
-	DATE :	16 December, 1988
THE COURT ORDERS	THAT:

1. The application be dismissed.

2.          The respondent's costs of the application includlng

reserved costs be paid by the applicant.

( -	NOTE :	Settlement and entry of orders is dealt with In	0.36 of
the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA	)
SOUTH AUSTRALIA DISTRICT REGISTRY	) NO. G93 Of 1988

DIVISION GENERAL )

BETWEEN: BARBEL HERTA HUTCHESSON

Applicant

Respondent

corn	:	Jenklnson J.
PLACE:	Adelaide
DATE :	9 December, 1988
-

REASONS FOR JUDGMENT

Application for an order of review in respect of each of

three decisions by a delegate of the respondent.

On 18 October 1988 the delegate decided to refuse the applicant both an entry permit to remain in Australla for an	indefinite period and a temporary entry permlt, and he declded not
to revoke a deportatiod order which had been made on 19 February 1988. Those are the three decisions in respect of which orders of review are sought.

The applicant 1 s a citizen of the Federal Republic of

Germany who was born in Hamburg on 5 June 1957. She left Europe

L.

in 1985. She entered Australia from New Zealand on 2 November

1985 and was granted on arrival a temporary entry permlt

authorizing her to remain here for six months. On	5 April 1986
she married Wayne John Hutchesson, who was	born on 25 August 1965
at Penola and is an Australian citizen.	On 22 April 1986 the

applicant applied to be allowed to remain permanently in this country. She was subsequently granted a temporary entry permit to remain here until 14 November 1986. Thereafter she has been a prohibited non-citizen. On 19 February 1988 she was refused a permit to remaln in this country and an order for her deportation was made. Applicatlons for orders of review in respect of the decisions made on 19 February 1988 (No. G20 of 1988) were

dismissed by Forster J. on 30 march 1988. An appeal from his

Honour's orders (No. G37 of 1988) was discontinued. On 26 August

1988 the delegate by whom the decisions under present

consideration were made declded not to revoke the deportation

order. An application for an order of review in respect of that decision, and In respect of the decisions of 19 February 1988 to

refuse the applicant's appllcation to remain here permanently and

to deport her, (No. G85 of 1988) was instituted on 20 September

1988 and is pending.	On 23 September 1988 the applicant again
sought resident status and it was	in response to that application

that the decisions	were	made whlch are	under	present
consideration.

The grounds on whlch the decisions are attacked are expressed In the amended appllcatlon thus:

"(a) That the making of the decision was an

improper exercise of the power conferred
by the enactment in pursuance of which it
was purported to be made in that there
was a failure to take a relevant
conslderation into account In the

exercise of that power	and	i
particular:-

........ ........ ........ ........ ........ .

(ii) That the applicant's husband has

since the 7th day of June, 1988 demonstrated hls stated desire to revive the marriage by vislting the applicant twice each week during week days (the applicant has no v~slting rights at weekends) by travelling from Morphett Vale to Northfield on each occasion.

........ ........ ........ ........ ........ .

(iv) That if the applicant is deported
her husband WAYNE JOHN HUTCHESSON,
an Australlan citizen, will suffer
great hardship by either being
separated from his wife or by
having to make an appllcatlon to
migrate to Germany.

(b) That the decision involved an error of law in that the delegate of the Minister either failed to appreclate the relevance

of the renewed matrimonial relationship

between the applicant and her husband o r alternatively failed to give proper consideration to the reconciliation efforts of the applicant and her husband.

(c) The respondent, in deciding -

(i)    That the applicant and her husband were not credible in their claims about continuing their marriage; and

(ii)  That little weight would be attached to the marriage in making his decision about revocation of the deportation order.

exercised his power in a way that was so unreasonable that no reasonable person could have so exercised the power."

The cohabltation of the applicant and her husband after

their marriage did not long endure.	Resumption of cohabitation
has not been possible since	the applicant was taken into custody,
pursuant to s.39	of the Migration Act 1958, shortly after the

deportation order was made. Her husband has been visiting the applicant in the place of her detention since 7 June 1988. But between November 1986 and June 1988 they were living apart and

without any communication. They supported the applicant’s latest application for resident status by the contention that each of them strongly desired to renew and thereafter to maintain their conjugal relationship. The delegate dealt with that contention in

his statement of reasons for his decisions, furnished in

compllance with s.13 of the Administratlve Decisions (Judlcial

Review) Act 1977, in the following paragraphs:

“24. while the matter was under conslderation by the Department the applicant and her husband had made a number of statements (includlng some by way of statutory declaration and some on oath) about their

marriage. There are a number of

inconsistencies within the statements of each of them and between their respective statements. The inconsistencies were so great that I found that neither of them was credible

when they asserted they wished to reconcile.
In view of the strength of	their earlier

denunciations of each other - for example: her
accusing him of of being involved in drugs and
wanting her to work as a prostitute, and his
claim on 25 October 1986 that they had never

lived together as man and wife after they were

married - I found their claims in their

respective affidavits sworn on 22 July 1988 to have unsuccessfully looked for each other to

be implausible and untrue, and I did not

accept Mr Hutchesson’s explanation of his inconsistent statements - namely, that they were the product of frustration and loss of hope.

........ ........ ........ ........ ........ .....

32. In vlew of my finding that nelther the

applicant nor her husband was credlble when
they claimed that they had been reconciled and

that they wanted to re-establish	their
marraige, I gave little welght to	the

continuatlon of the marriage In deciding how to exercise my discretion. I accepted as possible that at some future time they may resume their marriage, even though at present their claims that they wanted to do so were not credible.

........ ........ ........ ........ ........ ......

38. In weighing the merits of the applicant's

application I took into account in her favour, her relationship wlth the Steel family, her continued marriage to M r Hutchesson, that she applied earlier for a resldent entry permlt before her entry permit expired, that she had not attempted to go into hiding, the support

for her application from other people and that

she had been in custody since 30 March 1988. In the light of her false statements to obtain entry to Australla and the clear policy, however, I considered that the matters in her favour were not of sufflclent weight to cause

me to grant the applicant	a resldent entry
permit ."

Although evaluation of the likelihood of a continulng con~ugal relatlonship if the applicant were permitted to reside in this country would not necessarily be determinative of her application for permission to reside here, it was of such great

importance in that determination that, if the evaluation were so	flawed that no reasonable person could have made the evaluation
which the delegate made, it may be that the conclusion would follow that the making of the ultimate decisions was flawed to the extent specified in s.5(2)(g) of the Administrative Decislons (Judicial Review) Act 1977.
As the passages I have quoted from the statement of the delegate's reasons indicate, he found himself unable to accord
credence to the statements either	of the applicant or of her

husband that they wished "to reconcile", because of inconsistencies in statements each had made at different times. It is a question, then, which the ground lettered (c) and the submissions of Mr. Griffin of counsel for the applicant raise, whether the material before the delegate dld disclose

inconsistencies which he might reasonably consider to have

deprived of crediblllty the assertlons of thls married couple as

to their intentions concerning their conjugal relationship.

In May 1987 a solicitor for the applicant sent to the
respondent Minister's predecessor in office a letter which set out

matters the minister was asked to weigh agalnst making an order

for the applicant's deportation. There was nothing in the

material before the delegate to suggest that the contents of the letter were not in accordance with the applicant's instructions to the solicitor. The letter included the following:

"The separation from her husband occurred due

to her husband's insistance that she work as a prostitute. Mrs Hutchesson's husband was in

her to become a prostitute to help him with	financial difficulties in 1986 and expected
his financial situation. She refused to
become a prostitute."

On 26 August 1987 the applicant provided a Departmental officer with information whlch was recorded in a typed document

the contents of which she acknowledged to be true by slgnlng on 10

November 1987. The document included the following:

"MS Hutchesson said she thinks the marriage is

finished because her husband wanted her to be

prosecuted because he wanted money after the marriage. Her husband said what she earned was not enough and wanted her to work as a prostitute to earn more money. According to

MS Hutchesson her husband had said 'why don't

you sell your German body'. She clalms she

has lots of witnesses for that."

On 17 November 1987 the applicant signed a record of another interview with a Departmental	officer. Part of the record
reads:

" 8

Have you engaged In prostltution to
support yourself?

A.

No, that's why I left my husband because he wanted me to do this.

9.

When did the marriage to Mr Hutchesson breakdown?

A.

November last year, when I saw him the last time.

10

Mr Hutchesson has provided a statutory declaratlon that the two of you never cohabited. What do you say to this?

A.

We can prove it wlth the landlord at 28

Standen Street, Kurray Bridge. He signed

the lease, Social Security we went there

twice.

11.

So you are suggesting that your husband

is lying, is this correct?

Yes.

A.

12.	Have you llved together or communicated since the marriage breakup?
A.	No, I moved to Adelaide last year, got a ]ob and set a flat up for us, he was there a few times. Twice he hit me because he wanted money.

13. Do you know where he can be located now?

A. No, I trled to find him but I've been

told he has gone to Western Australia because the pollce are looking f o r him. He was in trouble before with drugs and he is In blg trouble now but It may not be the police. This is why I tried to get him away from Murray Bridge, I dld

everything to keep him away."

In the proceeding No. G20 of 1988 an affidavit sworn 2 4 March 1988 by the applicant was filed. Paragraph 3 of that affidavit reads:

"In or about October 1986 Wayne Hutchesson

disavowed himself of the marriage because I

refused to prostitute myself to earn money for his drug hablt. During the period of Aprll to

October 1986 I was living with Wayne

Hutchesson as man and wife having a sexual relatlonship."

A letter dated 18 May 1988 from the applicant to the

respondent Minister was written in support of her request to be

allowed to remain in thls country. It includes thls passage:

"Approximately four weeks after our marclage,
Mr. Hutchesson informed me about an
'ex-girlfriend' who was pregnant with his
child. He had decided to leave me and go back
to her. He then returned about two weeks

later, stating that he realised what he had

done wrong, that he had been pressured into his actions by his family, and he wanted to come back to me and make a go of our marriage.

At the same tlme he wrote a letter to the

Department of Immigration and Ethnic Affairs,

informing them of the above as they had

learned of our separation.

We decided to move to Adelaide to live, and I

managed to obtain a posltion at 'Tyre

Rubbers', Mile End, Adelaide as a factory

worker before actually leaving Murray Bridge. As I was to commence employment on the Monday

morning, I used the weekend to move to

Adelaide, where I stayed wlth friends of my husband for a couple of days until I was able to rent a flat, then he was to follow me down from Murray Brldge.

That was the last time I was to see of or hear from him for four weeks, when he arrived in Adelaide, telling me that he was in serious trouble and needed $8,000. He wanted to know if I could obtain the funds 'on credit' for him, to whlch I obviously replied 'no'. He then told me that I had better get a job soliciting or he would go to the Department of Immigration and Ethnic Affairs and tell them that our marriage had been a marriage of convenience. I told him that I could not work as a prostitute and he left and returned to

Murray Bridge. All the time I had hoped he

would return and tell me that he did not mean

this, but that was not to be the case."

In early June 1988 the appllcant's husband renewed

contact with her. By letter dated 29 July 1988 to a senior Departmental offlcer the applicant's solicitor requested that the deportation order be revoked, havlng regard to the contents of two copy affidavits, one by the applicant and the other by her husband, which were enclosed wlth the letter. Each was sworn on

22 July 1988 and each was entltled in the proceeding No. G31 of

1988. The applicant's affidavit is in these terms:

"1. I am the appellant hereln.

2 .    I married my husband Wayne Hutchesson in April 1986. We lived in Hurray Bridge.

where I had obtained employment with In about August 1986 I moved to Adelaide

Thyre Rubber. Shortly after moving to

Adelaide I rang my husband's mother

advising her where I was working. Shortly after moving to Adelaide I moved into premises at Bartholomeus Street, Richmond. Soon thereafter I again rang my husband's mother advising her where I

was living. I had hoped that my

husband's mother would tell my husband where I was livlng and working. Unfortunately I did not get on at all

with my mother-in-law and I suspect that

the information was not passed on.

3 .    I continued to live at the Bartholomeus Street address until about the end of

October 1986. I had also been In regular

contact with the Department of Immigration and Ethnic Affairs. I was

required to report weekly to the

department. No officer of the department ever gave me information as to where or how I could contact my husband. Only once did an offlcer of the Department ask me as to the whereabouts of my husband.

4 .    At about the beginning of November 1986 I left the Richmond premises and moved to premises at Leader Street, Rosewater. I continued to live there until being taken into custody in March 1988. I lived there with Leanne Steele and her two children. On two occasions in November 1986 I wlth Leanne Steele went to Murray Bridge looking for my husband. We made various inquiries of various friends and relatives of my husband. No inquires revealed the whereabouts of my husband.

5. I did not make any enquiries of the

police as to the whereabouts of my

husband as I knew that in Australia people did not have to register their address with the police. The situation

here is	different to that in West Germany
where a	person just register their
address.

6.	I resumed contact with my husband Wayne Hutchesson on the 7th of June 1988 when he vlsited me at the Women's Rehabilitation Centre. He continues to see me approximately every second day. From our conversations I believe that Wayne Hutchesson loves me and wishes to resume the marriage. I believe he wishes
believe my husband is sincere and I am to have children from the marriage. I
prepared to give the relationship a chance of succeeding.
l.	At the time I married my husband I was in love and I continued to love my husband.

released	If from the Women S
Rehabilitation Centre I intend to resume cohabitation with my husband.

8.    I know the facts deposed hereln of my own

knowledge. 'l

On 10 August 1988 the appllcant signed a record of an interview held that day with a	Departmental officer, which
included the following:

"Q.	What made you change your mind about your relationship?
A.	It was only arguments that we had before, like every other marriage and then he couldn't find me. At the same time I got a job and moved to Adelaide. His mother did not glve him my address.
Q-	This does not tell me what made you change your mind.
A.	I was waiting for him to come to
Adelaide. We had the argument on a
Friday (can't remember the date) and by Nonday I was in Adelaide to start my new job. He also left the house on that Friday. When he came back on Sunday I was gone & he thought I had left him. I left my address with the boarder there. (I think his name was Pete) but he never
gave it to him.
Q.	So you had never any intentions of
leaving him.
A.	NO.
Q.	Did he know you were going to Adelalde to
work?
A.	Yes but he did not know when.
Q.	Did he know where you were going to work.

A.	I don't know.
Q.	On 4th Nay 87 you told the Department that you did not want to re-~oin your husband?
A.	Yes because I thought he did not want anything to do with me any more.
Q.	You also told the Department on the same day that you only decided to marry when you could not get an extension through any other way.
A.	Yes but I had told the Department that when I made enqulries about an extenslon, I was told I had to marry hlm. I asked for an extension to give us a chance to get to know each other better but I was told that this was not possible and that
I had to marry him before my permit

expi red.

Q. On 13/5/87, 26/8/87 and 17/11/87 you

advised the Department (through your solicitor) that you separated from your husband because he insisted that you work as a prostitute. Can you comment on this?

A.	He said
it Friday because he had during our argument that

some money trouble.

He was sorry he said it. I took it f o r

real because my Engllsh wasn't good then.

Q.	Was it only on that occaslon	that he told
you that.
A.	Yes.
Q-	Was that the only argument you	had?

A.	We had a couple of argument but never so
serious. "
The	inconsistencies between those of the foregolng

statements by, or on the instructions o f , the applicant whlch preceded the renewal of contact between her and her husband in June 1988 and those which followed that renewal would in my

opinion justify a reasonable person's concluding that the

maintain her conjugal relationship could not be given credence. applicant's statements concerning her intention to renew and Wayne John Hutchesson signed a typed document dated 11

June 1986 which was in these terms:

"TO WHOM IT MAY CONCERN

I Wayne Hutchinson would like to clear my

current domestic situation.
Firstly, everyone has been giving me advice
and telling me what to do and I was that
confused I didn't know what to do or where to
go.

All this has disrupted my marriage and upset both myself and my wife.

After my ex girlfriend had a baby I left my wife for nearly two weeks. We got back together and last Tuesday 3 Jun. I packed up and left without telling her as I couldn't handle the pressure of people telling me what to do.

Last night 10 Jun I decided	that I didn't want
to live with my ex girlfriend.	It was for the
baby's sake that I was seeing	her.

I have been living at various places over the

last week as I have had no permanent address.

I'm sick of people saying things about my marriage. I married Barbel because I wanted her as my wife, not just for her to stay in Aust. as people have been saying.

My intentions are to reestablish my marriage, find us accommodation and seek work. I would prefer to seek work In Adelaide to be away from the disrupting influence so we intend to eventually move to Adelalde when work and

accommodation is available.

I MAKE THIS STATEMENT OF MY OWN FREE WILL"

On 25 October 1986 Mr. Hutchesson was interviewed by a Departmental officer at Murray Bridge. Part of the conversation

was recorded by the officer in these terms:

"How did you meet Barbel?

I was at my sisters on a Saturday afternoon, she was a friend of my slster. I was looking

for somewhere to live	and my sister asked if I
could board there. When was that? About Feb. 1986. Did you share a room?
We had separate rooms for a while	and then

another bloke moved in and we shared the same

room.

Did you share the same bed.
Yeah but only for a couple of nights.

when was that.

About a fortnight before we got marrled

because I went working at Yunta.

whose idea was it to marry.

We were sitting talking one day	and she asked
me if I would marry her.	I thought about it
and told her yes a couple of days later.	I
didnt think it would be so quick.	I thought

about a year.

Did she offer any reward to marry her.

NO.

Dld she give you any reward to marry.

No.

Did you llve with her after you married.

Yes but only for a couple of weeks. She was going out with another bloke and I moved out. I saw a lawyer about an anullment - he said not possible - then she went to Adelaide I don't know where.

So you havent seen her.

Not for ages - two months or more easy.
Do you know where she	is now.

NO I haven't got a clue.

I phoned the place where she is working but she has not been there f o r two days.

was the marrlage at any time genuine.

It was a genulne relationship before	we
married but after that she just went off.

As far as you are concerned the marriage is finished now?

Yes. It's finished.

DO you think it ever really existed.

NO. Now I look back I think she married me

just to stay here.
And are you going to seek a divorce?

Yes, as soon as ~t's time."

On 28 September 1987 Mr. Hutchesson made a statutory

declaration in these terms:

. . . . . ' l that I am the legal spouse of Barbel

Herta Hutchesson (nee Lau).

2.    That we have not cohablted as man and

wife since the marriage.

3 . I am not In a domestic relationshlp wlth any other person.

4 . I am not aware of the whereabouts of my wife, Barbel Hutchesson.

5. If I am able to locate her, I would like to seek a reconciliation."

The copy of the affidavit sworn on 22 July 1988 by Mr. Hutchesson, which the applicant's solicitor submitted	with a copy
of her affidavit of that date, is in these terms:

"1. That I am the Husband of Barbel

Hutchesson the appellant herein.

2.    Barbel Hutchesson and I lived as Husband

and Wife after our marriage in April

1986. We only had sexual intercourse on a few occasions due to the fact that I was working as a rouseabout at Yunta for a period after the marriage.

3 .    In about July 1986 Barbel and I had a domestic argument resulting in me leaving

the matrimonial home at Murray Bridge and

staying with my mother for about five

days. I only took some of my clothes when I went to llve with my mother. I

left my other possesslons in the

matrlmonial home. I Intended to return to the matrimonial home and to resume co-habltation with Barbel. Upon my return to the matrimonial home I noticed that Barbel had gone and had taken her personal belongings with her. This was a complete surprise to me. She dld not leave a forwardlng address.

4 .    upon flnding that Barbel had left the matrimonial home I made, over a period of a few months, various enquiries in Murray Bridge as to her whereabouts. I asked friends of Barbel where Barbel was living. I searched generally in the town

of Murray Bridge as well as making

varlous enquiries at the Women's Hostel and the Murray Bridge hospital.. As well I continued to make enquiries when I met persons who knew Barbel. My enquiries did not reveal Barbel's whereabouts.

5.   In about September 1986 I left Murray Bridge to live in Adelaide. I first lived in Morphett Vale with a friend. Prlor to leaving Murray Bridge I had begun making enquiries with the Department of Immigration and Ethnic Affairs at the head office in Adelaide.

To the best of my recollection I went to

the Department about four times between the time Barbel left the matrimonial home

and the time I left Murray Bridge to live in Adelaide. On each occasion I made enquiries at the front desk as to Barbel's whereabouts. On neither occasion was my enquiry answered. Upon

moving to Adelaide I continued vislting the Department of Immigration and Ethnic

Affairs. Indeed I have visited the
Department on a regular basis about once

a week. On one occasion I was told by an

officer of the Department that Barbel had

worked at Thyer Rubber. I made enquiries

at Thyer Rubber the result of my

enquiries at Thyer Rubber being that Barbel Hutchesson no longer worked there

and that an address for her was not

known.

6.   Shortly after moving to Adelaide I borrowed a friend's motor vehicle and searched generally the vicinity of Burbridge Road and Marion Roads. This was after I had been given an address in

Richmond by an officer of the Department. Unfortunately Barbel had already left that address. I thereafter made general searches of the area in a motor vehlcle.

7.    I changed address in Adelaide on a number of occasions and on each occasion I

provided my telephone number to the

Department. I hoped that the Department

would give my telephone number to Barbel
and so establish contact with her.

8.      I resumed contact with Barbel Hutchesson

on the 7th of June 1988 at the Womens'

Rehabilitatlon Centre. I visited her

there after noticing the publicity about

her case in the media. I have continued

to see her on a regular basis at the
Wornens' Rehabilitation Centre.

9.    My Intentions are, if glven the

opportunity, to re-establish the

relatlonship with Barbel and llve as

husband and wife. I value the

relatlonship with Barbel in particular as it has been solemnified by marriage. I

have not formed any long term

relationships since Barbel eft he

matrimonial home in about July 1986. I

believe Barbel also wishes to

re-establish the marriage.

10.	I have made a number of statutory
declarations and made a number of

statements to the Department concerning my relationship with Barbel Hutchesson.

I admit to having made contradictory

statements about our relationship and the
reasons why we established a
relationship. Much of what I said about

Barbel was due to the frustration and

loss of hope after not being able to find

her after a long period. I know that in early 1988 I told an officer of the Department that I was seeking a divorce. That was at a time that I was giving up hope of ever finding Barbel. I admit that at one time I told an officer of the

Department that I was to be paid a sum of money to enter into the marriage with Barbel. That was after I had provided my phone number to the Department and I expected Barbel to have contacted me. I

was upset that she had not. I am

informed by Barbel Hutchesson and verily
believe It to be true that she was never
provided wlth my phone number.

11.   I know the facts deposed to herein of my

own knowledge except where otherwise

appears. "

On 5 August 1988 Mr. Hutchesson was interviewed by a Departmental officer, whose record of the lnterview includes the following:

"Q: What made you visit your wlfe

A:	I don't know I ]ust want the marriage to
go on

Q: Why

A:  Because I am married to her, not much point in belng marrled ~f you don't ever see someone

........ ........ ........ ........ ........ ......

Q:	On 25/10/86 you signed a statutory declaration stating you had 'never lived with Barbel as man and wife after we were married'.
A:	Yes I did sign it.  We only lived as man
and wife for two nights
Q:	We now have an affldavit date 22/7/80
which states you lived as husband and
wife in April 1986 until July 1986
A:	April 86 to July 86

Q:	You realize it is an offence to give false information on statutory declarations
A:	Yes but I was working at Yunta she was in Nurray Bridge whlle I was in Yunta.
Q:	What about her claim that you forced her
to work as  a prostitute.
A:	I did not do that there was three questions on a piece of paper when I came in here and they said did you say that and I said no.
Q:	But she claimed it to us
A:	I didn't say nothing of the sort, thats

.

19.

why I answered no to that question."

During that interview Mr. Hutcesson explained that he had been able to find the appllcant in early June 1988 because there had been press publicatlon of reports of her proceedings against the respondent Minlster.

The inconsistencies between Mr. Hutchesson's copy

affidavit and some of	his earller statements which I have set out
could in my oplnlon	justify a reasonable conclusion that his

statement in the affidavit of his intention to re-establish his

conjugal relationship was not to be belleved.

There was little in the material before the delegate

except the statements of the applicant and her husband to suggest

that they might resume their conjugal relationshlp. It was in my opinion not unreasonable of the delegate to allow little weight to

the fact of the marriage	in making his decisions, if he were
unable to place reliance	on thelr statements. The ground lettered

(c) is in my opinion not sustained.

The ground specified In paragraph (a)(ii), which I have

set out, must rest primarily on the delegate's failure to refer, in the statement of his reasons for his decision, to the husband's

visits.	The fact, and the circumstances, of the visits which are
specified in the ground	were disclosed in the materlal before the
delegate.	I would not be justlfled, in all the circumstances, in

inferring that the delegate	failed to take into consideration	what
the ground speclfies.

.

20.

The ground specified in paragraph (a)(lv) was ampllfied by Mr. Griffin In submission. Even if the delegate's conclusion were accepted that there was no more than a possibility that the conjugal relatlonship would be resumed, yet there had been a

failure by the delegate, Mr. Griffin submitted, to give

consideration to the hardship which deportation would cause the

husband by frustrating the reallsation of that posslbllity.

Further, the delegate should have consldered that hardship on the footlng that his conclusion about the likelihood of a restoration of the conjugal relationship might be wrong, Mr. Griffin argued.

The delegate acknowledged, as circumstances favouring
the applicant's claim to resident status, both the existence of

the marriage and the possibility that it may have a continuing

life. I would not infer that he failed to have regard to the

hardship the husband might suffer by reason of her deportation.

The ground lettered ( b ) cannot be sustained, in my

opinion. NO error of law of a kind specified therein was

disclosed.

The application will be dismissed.

I certify that this and the 19

preceding pages are a true copy of the Reasons for Judgment of Mr. Justice Jenkinson.

Associate

Dated: 9 December, 1988

No. G93 of 1988

Counsel for the Appl cant Mr. M.A. Griffin

Counsel for the Respondent : Mr. J.J. Q'Halloran

Solicitors for the Applicant :  Elston & Gilchrist

Solicitors for the Respondent: Australian Government Solicltor

Dates of Hearing 5 and 6 December, 1988