Jovcevski, B. v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 563

563% 89

JUDGMENT No ........ ........ ... ..., -

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CATCHWORDS

ADMINISTRATIVE LAW - Immigration - deportation order - application for order of review - motion to stay deportation order pending final hearing - release from custody pending final hearing - whether applicant prohibited non-citizen - whether statements made in application form for resident status false or misleading in a material particular - spent conviction - serious question to be tried.

Administrative Decisions (Judicial Review) Act 1977

Miaration Act 1958: sub-para. 16(1AA)(c)(ii)

BONE JOVCEVSKI v MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT

LOCKHART J.
SYDNEY
14 JULY 1989

AND ETHNIC AFFAIRS

G496 of 1989

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	NO. 496 of 1989
GENERAL DIVISION	)

BETWEEN:  BONE JOVCEVSKI

Applicant

AND:  MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

JUDGE MAKING ORDER:	LOCKHART J.
DATE ORDER MADE:	14 JULY 1989
WHERE ORDER MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The deportation order made on 21 June 1989 against the applicant be stayed until the final hearing of this application or further order on condition that the applicant prosecutes this application for judicial review with all due

diligence and despatch.

1. The applicant be released from custody on the

following conditions:

(a) that he reports thrice weekly on Mondays, Wednesdays and Fridays to the office of the Department of Immigration and Ethnic Affairs, Rockdale Office, 81

Railway

Street, Rockdale, between the hours of 8 . 4 5 am

and 4 . 4 5 pm, to M r Stephen Hood or Mr Roderick (b) that the applicant before he is released from custody inform Mr Hood or Mr Johnson in writing of the residential address which he proposes to adopt upon his release from custody and that the applicant does not change his residential address without prior written permission from the Department of Immigration and Ethnic Affairs and without prior notice by him to the Department of the changed address and telephone number, if any.

Johnson.

3.      The costs of the motion shall be costs in the

proceeding.

The Court gives the following directions:

1. That the applicant file and serve all remaining affidavits

upon which he proposes to rely on or before next Thursday 20
July.

2. That the respondent file and serve all affidavits upon which he proposes to rely on or before 27 July, if any.

1. That the applicant file and serve all affidavits in reply

by 1 August.

4. That leave be given to the applicant to amend the

application, any such amendment to be made on or before 20

July next.

5. Liberty to apply on 24 hours notice.

6. The matter is adjourned to 3 August next for directions and to fix a hearing date.

NOTE :	Settlement and entry of orders is dealt with under S.
36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	1
)
NEW SOUTH WALES DISTRICT REGISTRY	) No. 496 of 1989
1
GENERAL DIVISION	1

BETWEEN:  BONE JOVCEVSKI

Applicant

AND:  MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

14 JULY 1989

REASONS FOR JUDGMENT

LOCKHART J.:

This is an application for an order of review of a number of decisions of the Minister of State for Immigration,

Local Government and Ethnic Affairs of the Commonwealth of	--,
, .
I..'
Australia or his delegate, including decisions made on 21 June this year by the delegate, that the grant of resident status	:..~.
I .
voluntary departure from Australia be refused and an order	to the applicant be refused, that the concession of a	that the applicant be deported.
Some brief narrative of the relevant facts is required. What is before the Court to-day is a motion by the applicant that there be a stay of the deportation order pending the final hearing of this case and that in the meantime the applicant, who is in custody at the Villawood Detention Centre, be released from custody on appropriate conditions.
The applicant was born in Yugoslavia on 2 June 1947. He appears to have been married there and to have a son of that marriage aged about 17. Although the evidence is sparse at this stage on the point, it appears that the marriage in Yugoslavia no longer exists, or is recognised no longer under Yugoslav law.
The applicant arrived in Australia in Melbourne on 20 September 1985 as the holder of a visitor visa. Upon entry he was granted a temporary entry permit valid for a stay of six months. In March of 1986 he applied for a further temporary entry permit on the basis of a proposed marriage to an Australian citizen, but the marriage did not take place, nor, for some reason not revealed by the evidence, was a decision
made on his application until February 1987.	However, on 30

May 1986 the applicant lodged a further application for resident status on the basis of his marriage on 24 May 1986, to a woman who is an Australian citizen to whom he is presently married.

On the application form for the grant of resident status, questions were asked in section 6 as follows. "6.2: Have you ever served a prison sentence?; 6.3: Have you been
convicted in any other country of any offence?	The applicant
answered no to each question.

On 5 February 1987 the applicant was granted a further
entry permit authorising a stay in this country until 5 August

1987. In connection with his application for resident status the applicant produced or arranged for the production to the Department of Immigration, Local Government and Ethnic Affairs of a certificate from the Municipal Council of Bitola, Yugoslavia, Secretariat of Internal Affairs, of 3 June 1987, which stated in part that the applicant "has not been convicted for any offences".

The applicant was granted resident status on 10 December Department and made certain allegations against him, including allegations that his marriage to her was one of convenience, being purely an attempt to secure resident status pursuant to paragraph 6A(l)(b) of the Miaration Act 1958 and that they were separated and had been separated since January 1988.

1987. Thereafter the applicant's wife communicated with the

Thereafter the applicant was interviewed on a number of
occasions by officers of the Department, the first such

applicant, who had voluntarily attended the migration office interview it seems being on 21 November last year. The

to answer questions of migration officers, was on 22 May this year arrested and taken into custody pursuant to S. 38 of the Miqration Act 1958. He still is in custody at the Immigration Detention Centre, Villawood.

Submissions were received from the solicitor for the applicant in support of the applicant's right to remain in this country, and on 9 June 1989 he applied for grant of resident status on grounds of marriage, compassion and humanitarian matters. A report was made by the relevant officers of the Department to the Minister's delegate, and on 21 June 1989 the delegate made the decisions mentioned earlier.

The crux of this case is whether the applicant is a prohibited non-citizen. If he is, then he was lawfully arrested and taken into custody and the basis on which the delegate proceeded with his various decisions, including the decisions of 21 June last, is sound.

If the applicant is not a prohibited non-citizen, then the basis or foundation upon which the relevant decisions of the delegate have been made would appear to be unsound. Hence I do not think it necessary for present purposes to analyse the various submissions that have been made with

respect to the decisions themselves made by the delegate, including those of 21 June 1989.

The question to be asked is whether there is a serious question that the applicant is a prohibited non-citizen. The key provision is subparagraph 16(1AA)(c)(ii) of the Miaration Act 1958. Sub-section 16(1AA) provides, so far as relevant that:

" (1AA) Where

(a)	a further entry permit has, ... been granted to a person authorizing the person to remain in Australia;
(b)	that entry permit was granted while the person was in Australia; and
(c)	the person, in respect of the grant of that entry permit -

(ii)   made, or caused to be made, to the Minister or to an officer a statement that is false or misleading in a material particular.

that person shall ... be deemed to be a
prohibited non-citizen ..."

One then returns to the document signed by the applicant on or about 30 May 1986 when he answered "no" to the two questions to which I have already referred. The evidence suggests that it was his wife who completed the form in her own handwriting. There is a dispute, on the evidence, as to whether the applicant was in fact asked the specific questions

completed the relevant answers.	to which the negative response was given before his wife
The researches of the solicitors for the parties have not revealed any case directly in point in the sense of dealing with that particular provision, though there are authorities dealing with a related provision, namely, paragraph 16(l)(b)(ii) expressed, so far as material, in the same language.
Whether a statement is false or misleading in a material particular within the meaning of the statutory provision must of course be an objective matter. The determination of that question does not rest upon anyone's opinion, including the opinion of the Minister or the relevant officer. What that means in practice is that when these matters fall to be determined by courts, it is for the courts to determine whether the statement is false or misleading in a material particular.
There is a further question whether, in order for a statement to be false or misleading in a material particular, it must be purposely, deliberately, wilfully or intentionally false or misleading in a material particular. There is authority in this Court relating to the earlier provision, paragraph 16(l)(b)(ii), that there is no requirement that a guilty mind accompany the making of the statement - see Naumovska v Minister for Immiaration and Ethnic Affairs, at first instance in the judgment of Sheppard J. (1982) 41 ALR
judgment, unreported, 5 September 1983. The other two members 635 and on appeal to a Full Court of this Court in my
of the Full Court did not advert to the question.
Mr. Justice French considered the matter in the later case of Silva v Minister for Immiaration. Local Government and Ethnic Affairs, unreported, 9 June 1989, and his on our took the view that he was bound to follow the approach of Sheppard J. in Naumovska. As I read h ~ s Honour's reasons his attention
does not appear to have been drawn to the decision of the Full Court of this Court in that same case. It is arguable that
the decision of the High Court in Mur~hv v Farmer (1988) 165
CLR 19 tends in a contrary direction to the authorities to which I have just referred, although French J. distinguished it in Silva. It does, of course, deal with a different Act and a different provision, namely, paragrah 229(1)(i) of the Customs Act 1901, and the language of the relevant provision is substantially different. A majority of the High Court held that the word "false" in the relevant provision meant purposely, deliberately or intentionally untrue.
If a guilty mind must accompany the making of the relevant statement so as to constitute it false or misleading in a material particular, then the evidence at this stage is sparse. What has emerged from the evidence, although admittedly in a limited and not entirely clear form, is that the applicant was convicted in 1974 of an offence of attempted rape and was sentenced to one year's imprisonment and was
released before the end of that year.
It also appears that he was convicted of a later offence involving his driving of a motor vehicle in Yugoslavia which collided with a child who ran across the road. That incident occurred in July 1970. Also, there are later charges made against him in Yugoslavia relating to negligence in industry which apparently involved something to do with his packaging or selling rotten vegetables; but it is common ground that nothing turns on that series of charges, in particular as they were the subject of convictions which were entered in Yugoslavia after the applicant arrived here, so they were heard in his absence.

It also appears that in Yugoslav law the convictions

relating to the attempted rape and the driving offence have been stricken from his record so that they are treated as spent convictions, possibly analogous to the position which is the subject in Australia of the Crimes Leuislation Amendment

1989, Part VIIC division 3 relating to spent convictions. That Act has passed through Parliament and received the Governor-General's assent, though the relevant provisions have not yet been proclaimed, so they are not in operation.

There must, it seems to me, be a real question whether,
even assuming the applicant knowingly said "no" to each of the

two questions relating to prison sentence and conviction in

Yugoslavia, he did so knowing they were false or misleading in	a material particular, assuming for the moment that they did
answer that description. If he in fact knew of Yugoslav law and of the fact that his convictions had been spent, then there must be a real question, whether in those circumstances it could be said that he knowingly made a false or misleading statement about them.
The evidence suggests that perhaps he did know of Yugoslav law because the law relating to spent convictions does not appear to be of automatic application and depends upon application being made to invoke it, presumably therefore by the applicant or someone on his behalf or with his authority. There is a serious question to be tried on that matter. However, there is, I think, a more fundamental question and that is whether in all the circumstances the making of those two negative responses back in 1986 could be said to be the making of statements that are false or misleading in a material particular, irrespective of whether there is the requirement that a guilty mind accompany them.
It is true, as has been pointed out by Mr Hrobat for the Minister, that Yugoslav law is not part of this country's law; but there is a serious question as to whether, in the circumstances of this case, those statements could be said to be false or misleading in a material particular if in fact, in the country where the convictions had been initially recorded they were erased from the record of the applicant, as it
appears they have been.
The applicant is entitled to the benefit of a final hearing in this matter, not only on those issues but on any other issues which he may seek to bring forward. I have dealt only with those matters because they seem to me to be critical to the resolution of the present motion.
Mr Barlow who appears for the applicant made a number of submissions which need not be considered because in the course of dialogue there emerged the crucial questions which I have already mentioned and discussed. It is perhaps regrettable that they are not readily discernable from the terms of the application, but it is better that they emerge from their present shroud, assume a visible form and be clothed with plain English words. The Court therefore will grant leave to the applicant to amend the application.
There remains the question of the custody of the applicant. The principles are well established and they are that the policy of the Miaration Act is that prohibited non-citizens should be held in cutody in the absence of exceptional or special circumstances - see, for example, Piroalu v The Minister of State for Immiaration and Ethnic Affairs 55 FLR 99, Unluaenc v The Minister for Immiaration and Ethnic Affairs, 43 ALR 569, to which I refer to in my own judgment in Shand v The Minister for Immiaration and Thnic
Affairs, unreported, 18 November 1986, at pages 8 and 9.
Prime facie the applicant, as a prohibited non-citizen, should remain in custody pending the resolution of his case. But there is a serious question to be tried as to whether he in fact answers that statutory description.
He was working in Sydney before he was arrested; his wife lives in Melbourne. It appears that he was working in this city, before his arrest, as a labourer with a company and was living alone. He has members of his family in Sydney, namely, three sisters. In Yugoslavia the applicant's brother and son, a teenager, reside.
There is no suggestion that the applicant, if released from custody, would be likely to fail to honour any appropriate conditions as tc reporting and other matters. He has no travel documents; indeed the Minister does not even have them because he is awaiting them from the Yugoslav Embassy. In my view, since the very subject matter in dispute here concerns the applicant's status as a prohibited non-citizen and because I see no risk to the Australian community if he is released from custody, it is right that he be released from custody pending the determination of his case, provided appropriate conditions are imposed.

Accordingly the Court makes the following orders:

1. That the deportation order made on 21 June 1989 against the applicant be stayed until the final hearing of this application or further order on condition that the applicant prosecutes this application for judicial review with all due diligence and despatch.

2. That the applicant be released from custody on the
following conditions:

(a) that he reports thrice weekly on Mondays, Wednesdays and Fridays to the office of the Department of Immigration and Ethnic Affairs, Rockdale Office, 81 Railway Street, Rockdale, between the hours of 8.45 am and 4.45 pm, to Mr Stephen Hood or Mr Roderick Johnson.

(b) that the applicant before he is released from custody inform Hood or Mr Johnson in writing of the residential address which he proposes to adopt upon his release from custody and that the applicant does not change his residential address without prior written permission from the Department of Immigration and Ethnic Affairs and without prior notice by him to the Department of the changed address and telephone number, if any.

3. The costs of the motion shall be costs in the

proceeding.

The Court gives the following directions:

1. That the applicant file and serve all remaining affidavits

upon which he proposes to rely on or before next Thursday 20
July.

2. That the respondent file and serve all affidavits upon which he proposes to rely on or before 27 July, if any.

1. That the applicant file and serve all affidavits in reply

by 1 August.

4. That leave be given to the applicant to amend the application, any such amendment to be made on or before 20 July next.

5. Liberty to apply on 24 hours notice.

6. The matter is adjourned to 3 August next for directions and to fix a hearing date.

I certify that this and the

preceding twelve (12) pages are a true copy of the reasons for

Mr. Justice Lockhart.	judgment herein of the Honourable
Associate Date: 14 July 1989

Solicitors for Applicant:	Barlow and Co.
Solicitors for Respondent:	Australian Government Solicitor
Date of Hearing:	14 July 1989
Date of Judgment:	14 July 1989