Hutchesson v Minister for Immigration, Local Government & Ethnic Affairs

[1988] FCA 165

c

~UDGMENT NO. I &%.E

C A T C H W O R D S

Administrative Law - Application to review decision of delegate of respondent Minister - natural justlce - credibility of applicant questioned - whether nature of household an irrelevant consideration - importance of lack of knowledge of delegate of dependancies of applicant as a relevant consideration - grounds insufficient for review.

Administrative Decisions (Judicial Review)	Act 1977
Migration Act 1958
No. G20 of 1988
BARBEL HERTA HUTCHESSON	v. THE HONOURABLE CLYDE HOLDING MINISTER
FOR IMIGRATION, LOCAL GOVERNMENT AND	ETHNIC AFFAIRS
FORSTER, J.
ADELAIDE
7TH APRIL 1988
IN TEE FEDERAL COURT OF AUSTRALIA	)
)
SOUTH AUSTRALIA DISTRICT REGISTRY	No. G20 of 1988

)

GENERAL DIVISION	1
B E T W E E N : BARBEL HERTA HUTCHESSON

Applicant

- and -

THE HONOURABLE CLYDE HOLDING
MINISTER FOR IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE W I N G ORDER	FORSTER J.
WHERE W E	ADELAIDE
DATE OF ORDER	7TH APRIL 1988
THE COURT ORD6RS TEAT:

1. The application for review be dismissed with costs.

Note:  - settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA 1

1

S O W AUSTRALIA DISTRICT REGISTRY No. G20 of 1988

1

GENERAL DIVISION	1
B E T W E E N : BARBEL HERTA HUTCHESSON

Applicant

- and -
THE HONOURABLE CLYDE HOLDING

MINISTER FOR IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS

Respondent

REASONS FOR JUDGMENT

CORAM: FORSTER, J. :

The applicant applied under the Administrative Decisions

(Judicial Review) Act 1977 for a review of two decisions made in

each	case by a	delegate of the	respondent	Minister.	Both
decisions were	made on	19 February 1908.	The	first was	a

decision to order the deportation of the applicant and the second

was to refuse her application	for the grant of a resident	entry
permit which should perhaps logically	be	in the reverse order.

At the end of the hearing I dismissed the application with costs
and said that I would give reasons later which	I now do.

A number of grounds under 6 .5 of the Administrative

Decisions (Judicial Review) Act were put in the application and amplified in the supporting particulars delivered. In the end

three grounds only were persisted in and in the case of the

second and third grounds two matters were put.

The grounds pursued and brief particulars are as

follows:

(i) The applicant was denied natural justice in that the

purpose for the applicant's visit to Australia stated in her

"application to visit Australia" completed in Auckland contained

information not supplied by her which was false and which was

relied upon by the delegate without any opportunity being	given
to the applicant	to contradict the false information.

(ii)      The delegate took into account irrelevant considerations

in that he took into account the fact that the premises at which
the applicant resides had been used as a brothel and that Leanne
Steel one of the adult occupants of the house had pleaded guilty

to keeping a brothel.

(iii) The delegate failed to take into account relevant

considerations in that he did not take into account that Irene

Steel an elderly woman is significantly dependeot upon the

applicant for care comfort	and assistance and that	he did not
take into account that Leanne	Steel's	children are significantly

dependent upon the applicant	for their care comfort and	control
and upbringing.

It is necessary to give a brief background history so

that the grounds may be fully understood.

The applicant is a 31 year old German national. Prior

to 1985 she had applied twice for visas to visit Australia, once

personally, once through an agent. Applications had also been

made on her behalf in various European capitals other than Bonn. All applications were unsuccessful. Her last personal

application was at the Australian Embassy at Bonn in 1985.	This
application was refused.	In October 1985 she travelled by air

to New Zealand where immediately on her arrival in Auckland she went to the Australian Consulate General and applied for a visa to visit Australia. She filled in part only of the application

card in blue ink and the remainder of the card was filled in by a

counter clerk of the Consulate in red ink, A visa was granted.

On 2 November 1985 the applicant arrived in Adelaide.

She was granted	a temporary entry	permit authorising a stay	of
s i x months.	She lived	in Hurray Bridge for a time and	on 4

April 1986 married one Hutchesson there. On 22 April 1986 the

applicant lodged an application for resident status on the basis

of her marriage. On 14 August 1986 she was granted an

unconditional temporary entry permit valid until 14 November

1986. The marriage relationship broke down after six months and since Novembec 1986 the applicant has been living at 38 Leader

Street, Rosewater and has not seen her husband. In April 1987

the applicant's application for resident status was rejected.

Also living in that house were	and	are an elderly widow,	Irene
Steel and her daughter, Leanne Steel	and Leanne's	two	children

aged eight and five. The applicant has become integrated into

the Steel family at 38 Leader Street. She deposes to the fact

that she calls Irene Steel "mother" and Leanne Steel's children

are very affectionate and attached to her.

The applicant admitted that an escort agency had been

run from the premises	at 38	Leader Street until February	1987.
Leanne Steel pleaded guilty to a charge	of	keeping a	brothel.

The time of this plea is not certain but it was said to	be
"recently" on 15 November 1987.

The applicant's application for the grant of a permanent

resident entry permit was based on her marriage to Hutchesson and

was made pursuant to s.6A(l)(b) of the Migration Act 1958 as

Hutchesson is an Australian citizen. The applicant's temporary

entry permits had expired so that when the delegate refused the

permanent resident entry	permit she	simply became a prohibited
non-citizen liable to deportation under	6.18	of the Migration
-	Act.

The following parts of the "application to visit

Australia" filled out in Auckland on 29 October 1985 were written on the form by the applicant in blue ink.

1.         Family name : Lau

2.         Christian or given names : Barbel

5.        Particulars of birth : 05/06/57 Hamburg, Germany

6.	Sex : Female (cross placed in box)

10.       Full postal address : 7820 Titisee Neustadt Kapellenweg 34

11. Passport details - number G3766433

12.       Purpose of intended visit to Australia : Holiday (cross placed in box) : intended address : Marion Douglas 5253 Hurray Bridge, Hannum Road 92.

17. Have you or has any member of your family included in

this application

Suffered from any dangerous contagious disease such as

tuberculosis?

Suffered from any mental illness?

used or been addicted to or trafficked in narcotics? Been convicted of a criminal offence in any country? Been deported or excluded from any country?

(Each of these questions has two boxes opposite it, one

marked "yes" and the other marked "no"). The applicant

placed a cross in each case in the box marked "no".

The form was signed and dated near the foot by the applicant. The applicant swore in evidence that the following parts of the application were filled in by a counter clerk in red ink.

2.         Christian or given name : 'Herta" was added

4.         Previous or alternative names : Lorenz

7.        Marital status : box marked "divorced" ticked

8.        Occupation : Waittress (sic.)

9.        Present citizenship : German

11.       Passport details - place of issue Titisee Neustadt date of issue - 24/1/85 valid until 24/1/90

12.	Purpose of intended visit to Australia Box marked "visit relatives" : name address and relationship marked with a cross and the word "cousin"
added with an arrow pointing to he name "Marion

Douglas" just above

13.       Length of stay - 3 weeks approx.

14.       Proposed dates of departure for Australia : travel when visa issued

15.	Have you or has anyone included in this application ever applied for a visa or travelled to Australia? BOX marked "no" ticked.
In evidence the applicant said that the counter clerk

filled in 2, 4, 7, 9 and 11 from details in her passport. She also said that 8. "waittress" was the only entry in the form made by the clerk in accordance with an answer of hers to a question

by the clerk. She swore that the additions to 12, 13, 14 and 15

were all filled in by the clerk with no reference to or	question
of her.

Having watched and listened to the applicant under

cross-examination and making all proper allowance for possible nervousness and a degree of unfamiliarity with English I find

myself unable to believe the applicant's evidence as to the

circumstances of the filling in of the application form. As is

mentioned later the applicant had tried a number of times to

obtain a visitor's visa to enter Australia but had been

unsuccessful. For the first time in Auckland the reason was

given to visit relatives. My belief is that the applicant

realising that her previous applications had not been strong

enough added this as an extra matter deliberately.

Amongst other things in his reasons for decision given

under 6.13 the delegate "had regard to the evidence that Mrs

Hutchesson tried on a number of occasions	in different countries
to obtain a visitor	visa and was eventually successful when she
stated she was	to visit Mrs Douglas, a "cousin" who in fact was a
travelling companion several years earlier	in Europe and who,

according	to the applicant, endeavoured to establish a	lesbian
relationship".	I consider that the delegate	has hit upon the

reason for the filling in of the form in the way that it was

filled in and I find myself quite unable to believe that a clerk

in the Consulate in Auckland would for some totally unexplained

reason fill in the form in this way.

The applicant now complains that she never said Mrs

Douglas was a cousin and that the information was wrongly

included in the form by the counter clerk in Auckland. She says

that in there circumstances natural justice demands that she be
given an opportunity to deal with the allegation that she falsely

claimed that Mrs Douglas was a cousin which allegation is itself

false.	If I could believe the applicant's evidence that the
clerk for some obscure reason of	her own inserted misleading and
untrue information in the form without any	assistance or urging

l .

from the applicant then there might be something in the complaint of lack of procedural fairness but as I am satisfied that the applicant is lying about the filling in of the form and in fact

gave the information contained in the form, apart from that

originating from the passport, in response to questions from the

counter clerk the natural justice point just does not arise.

The next complaint is that the delegate took into

account irrelevant considerations namely that the house at 38

Leader Street had been used as a brothel and that Leanne Steel

had pleaded guilty to keeping a brothel. The delegate did not

place much emphasis on these facts which had in substance been

admitted by the applicant but rather mentioned them as part of the undoubted history of the premises where the applicant resided

and still resides on terms of strong family bonds and

considerable intimacy with the occupants.	In any event it is my
view that the nature	of the household in which an applicant lives
is a relevant matter for	the delegate to take into account when
considering whether or not the applicant	should be permitted to
become a member of Australian society.

The final complaint which was argued was that relevant

matters were not taken into account by the delegate namely the

great dependency of MrS Irene Steel upon the applicant and also

the great dependency of the children of Leanne Steel upon the

applicant. The answer to this complaint is short and simple. The fact, if it be a fact, and the extent of these dependencies were revealed for the first time in affidavits sworn by the

applicant and Leanne Steel on 24 March 1988 and filed on 25 March

.

.	* a
.	8 .

1988 five days before the hearing.	The applicant never took the
opportunity to refer to	the dependencies during interviews with
departmental officers which occurred from	time to time and the

last of which apparently occurred on 8 December 1987. The delegate did not take the dependencies into account principally,

if not entirely, because he did not know about them and the

reason he did not know about them was that the applicant had not

seen fit to inform the department of them. In these

circumstances the applicant's complaint lacks substance.

For the above reasons I dismissed the applicant's

application for review with costs when	I heard	it on 30 March
1988.

I certify that this and

the 3 preceding pages are a true copy of the Reasons for Judgment of Mr Justice Forster.

Associate:

y"-

Dated: 7 / 4 /g&

Counsel for the applicant : Mr M. David, Q.C.

Solicitors for the applicant : P . N . Waye & Associates

Counsel for the respondent	: Mr J. O'Halloran
Solicitors for the respondent	: Australian Government

Solicitor

Date of hearing : 30 March 1988