Kashem, A v Minister for Immigration, Local Government and Ethnic Affairs

No judgment structure available for this case.

760 1 93

JUDGMENT NO. ...m. .m.m*m. ..11.111111*

IN THE FEDERAT. COURT OF AUSTRALIA )

1 No. NG 640 of 1993

NEW SOUTH WALES DISTRICT REGISTRY )

1

GENERAL DMSION i

BETWEEN :

Applicant

RECEIVED

2 8 OCT 1993 AND : M I N I S T E R F O R

FEDERAL CWRT OF IMMIGRATION, LOCAL

AUSTRAW GOVERNMENT AND ETHNIC
PRINCIPAL
REQISTRY AFFAIRS
Respondent

CORAM: WILCOX J
PLACE : SYDNEY
DATE : 27 SEPTEMBER 1993

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: I think I should immediately indicate my decision on this case. The applicant is in detention and it is desirable the matter be dealt with urgently. I have had the benefit of submissions from both counsel and have reached a firm view as to the proposed result. I do not think it necessary to set out in great detail the facts. It is sufficient for me to refer to the main facts set on a chronology supplied by counsel for the applicant.

It appears that the applicant was born in Bangladesh admitted pursuant to a visitor's visa and an entry permit

in January 1960. He came to Australia on 18 March 1987, being

valid for a period of only one month. Mr Kashem considerably over-stayed this period. On 24 July 1989, he made application to be accorded refugee status. I have no information as to the circumstances in which he came to make that application or the reason why he did not make it earlier. The applicant was interviewed by an officer of the Department of Immigration and Ethnic Affairs on 19 October 1989. The evidence"=ontains no reference to the content of that interview.

The applicant's application for refugee status was not determined until 5 June 1992, almost three years after it was made. The application was refused. The applicant was informed of his right to seek review. On 3 July 1992, he made an application for review. The application for review went before the Refugee Status Review Committee on 5 May 1993, that is, ten months after it was lodged. On 22 June 1993, M r Kashem's applications for refugee status and for a consequential domestic protection temporary entry permit were

re£ used.

At some stage, apparently about the time of refusal of the application, the applicant asked to join in the representative proceeding against the Minister which had been instituted in this Court by Zhang De Yong. Counsel for the Minister informs me that the Minister accepts that the applicant is properly a member of the group on behalf of whom that proceeding is brought. That matter has been heard by

French J. His decision is currently reserved.
Whilst the applicant's application for refugee

status was under consideration, he had apparently been at large. He lived at various addresses. At least since his application was submitted, he has been represented by a solicitor, Adrian Joel. During that time, according to Mr Joel, the applicant regularly notified him of his changes of address. It seems that the Department was content to allow the applicant to remain at large pending finalisation of the matter.

However, the applicant was involved in a motor car accident on 1 July. The details are scanty; but it seems that

a vehicle collided with the vehicle in which the applicant was

riding. He might have been the driver of the vehicle,

although this is not quite clear to me. The applicant asserts

that the accident was not his fault. This seems to be

consistent with the further information that the other driver -

has been charged and the applicant has not. It seems that the damage to the applicant's car was fairly slight. He asserts that the driver of the other car originally agreed to pay for
As a result of this, the applicant went to Manly Police the damage but subsequently refused and liability was denied.

Station on 8 July and made a complaint. Details were recorded. He was asked to go back to the station and give further information that night and did so.
On 13 July he received a telephone call from a
friend who said police were at his residence. He went there

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and was taken into custody by officers of the Department of / 1

Immigration and Ethnic Affairs. He has been in custody since I
,
that time.
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On 14 July 1993 the applicant was interviewed by an officer of the Compliance section of the Department, David

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Collins. A report of interview is in evidence. It seems , ,
apparent from the handwriting that the document was completed
by Mr Collins, although the applicant signed each page. i

Question 3.1 asks "What is your marital status now?". A number of possible answers are then set out: namely "never married", "now married", "de facto relationship", "engaged",
L

"separatedn, "divorced", "widowed". The words "never married"
have been circled. After the words "de facto relationship" a
question mark has been inserted.
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Question 3.4 asks "Do you have any family in Australia (spouse, children, parents, siblings)?". The answer

t . ,
"yes" is circled. Details were then set out. But they refer r
only to the details of the applicant's brother, with his . .

address at Balgowlah. The following question is in similar

terns but refers to family overseas. The answer to this . ,
question refers to three brothers and four sisters and the
applicant's parents, all of whom are said to be in Bangladesh. I

It appears that the applicant has a de facto relationship with a woman known as Lorna Meija who is said to

,-

be a citizen of the Philippines. There is no evidence when this relationship commenced. However, I note that the applicant, according to information which he gave at the interview, lived in the Philippines for some time before he came to Australia in 1987. It is possible that this is when he met MS Meija. Whatever the truth of that supposition, it is clear that MS Meija was included in his application for refugee status in 1989. Accordingly, the relationship must go back at least that far.

On 16 July, Mr Joel wrote to the Department seeking the applicant's release from customs. His letter dealt at some length with the circumstances of the arrest but it included the assertion that Mr Kashem has, over the years, maintained contact with Mr Joel "and hence maintained contact with the Department of Immigration". Mr Collins replied to the letter stating that the custody review officer had considered the request for release and decided to maintain
I

custody of Mr Kashem for a number of reasons. The letter then ! .

set out some reasons and included this paragraph:

defacto wife in Australia at the time of his post "Mr Kashem did not disclose the fact that he had a

location interview and that she is an illegal entrant. Mr Kashem was in Australia for some time before he made any applications for further stay and made no attempt to depart either before or since his applications. He has worked illegally in Australia. Mr Kashem has indicated at interview that he has no cash or bank accounts but has assets of approx $14000 being furniture and a car. He has also indicated that he is living with his brother but there has been no information provided that his brother is able to support him should he be released. It was also noted that there has been no formal offer of a surety should release be considered."

Mr Joel responded to this letter on 4 August. In

his reply, he did not assert that Mr Kashem did disclose at the interview that he had a de facto wife in Australia. Rather he dealt with the matter by referring to the fact that the de facto wife was included in the original refugee application; thereby suggesting that her existence was known to the Department.

In relation to the matter of temporary accommodation and surety, Mr Joel referred to a statutory declaration of Anwar Hussain, the brother of the applicant. In that statutory declaration, Mr Hussain said that he was prepared to arrange a $2,000 surety for his brother, that he was prepared to unreservedly support his brother upon his release from custody, that he would attempt to meet all of his financial needs and that the brother would live with Mr Hussain and his wife at their home at Balgowlah. He said:

"I give my undertaking that Abul will abide by the conditions of his release and full board/lodging

can be/will be provided".

Mr Joel summarised the effect of this declaration in his letter.

The final letter on the matter is the letter of 12 August 1993 which sets out the decision of the custody review officer to maintain custody of Mr Kashem. Mr Collins said this was done for a number of reasons:

"In your most recent request for release you have stated that adverse weight should not be placed on the fact that the A/NPs defacto spouse is in Australia illegally. This was not the case. The weight was applied to the fact that the A/N did not disclose that his defacto was in Australia at the time of his post location interview. This was despite the fact that he had been warned that his answers should be true and correct to the best of his knowledge and belief."

Mr Collins dealt with a number of other matters

raised by Mr Joel in his letter. He turned to the matter of
surety:

"You have included an offer of $2000 surety for the release of the A/N and that you consider this to be a 'significant surety' the Custody Review Officer did not consider this to be the case. Further you have submitted that the A/N's brother is prepared to provide accommodation and will meet all the A/NPs financial needs. Your client has indicated at interview that his brother has helped keep him in Australia and this could be construed as harbouring which carries severe penalties under the Migration Act 1958. There are real doubts that the A/N would make himself available for departure should the Zhang class action fail.
There are real concerns that the A/N would attempt to abscond if released. He has shown his lack of regard for the Migration laws of this country by his continued stay after the expiry of his entry

permit and working illegally and he has also given false and misleading information at interview."

Mr Mark Robinson, counsel for the applicant, argues that the decision not to release his client from custody is a decision under an enactment, namely s.92(9) of the Miaration Act 1958. MS Rhonda Henderson, who appears for the Minister, does not contest this categorisation of the decision.

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Mr Robinson takes a number of grounds of review provided by the Administrative Decisions (Judicial Review) Act

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1977 and contends that the decision is reviewable by reference 1 ,
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to each of them. I do not propose to set out all of the
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grounds or the matters advanced in argument. It seems to me that there are only two aspects of the conduct of the matter on behalf of the respondent that raise a serious question as to the validity of the decision.
The first of these matters concerns the conclusion
that the applicant gave false and misleading information at
his interview on 14 July. It will be recalled chat the letter

of 12 ~&st stated that weight was given to the fact that the applicant did not disclose that his de facto wife was in

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Australia at the time of the post-location interview. This
non-disclosure was treated, in the final sentence of the

passage quoted above, as amounting to the giving of false and -

misleading information at the interview. . . % $

. =

The problem in evaluating this ground is to construe

the interview document. I have already referred to the fact

that the words "never married" were circled. I do not think that this response was incorrect. Mr Kashem has never been legally married. A person may truthfully say that he has never married, even though he is in a long running de facto relationship. The criticism, if any, that may be made about the answer to question 3.1 is the failure also to circle the words "de facto relationship".

I have already remarked on the fact that a question mark appears on the document. If I were satisfied that this question mark was applied at the time of the interview, I would draw the inference that something was said about a de facto relationship at that time. But I cannot be sure that this is what happened. As MS Henderson points out, the document before the Court comes from the Department's file. It was only recently sent to the applicant's solicitor; I am told in the same form as the document in evidence. It is plain that the question mark was applied some time before it reached the applicant's solicitors, but the mark may have been applied by somebody going through the file, perhaps even for the preparation of this case.

It is, I think, significant that the assertion was made, in terms, in the letter of 30 July that Mr Kashem did

not say anything at the post-location interview about his de -

facto wife being in Australia. This assertion was not denied by M r Joel in his letter of 4 August. Pxesumably he obtained instructions from his client before replying. He must have
because he obtained the statutory declaration. If Mr Kashem been in some contact, at least with the applicant's brother,

told Mr Collins at the time of the interview that he had a de facto wife in Australia, I would expect a statement to that effect to have been included in Mr Joel's letter of 4 August. The situation, from an evidentiary point of view, is quite unsatisfactory. I have no clear basis for determining what happened. Bearing in mind that the applicant bears the onus of showing that the decision was unreasonable or tainted by legal error, I have to find that this claim is not made out.

The second matter relates to the invitation, because I think that is what it was, in Mr Collins' letter of 30 July
to provide information regarding support of the applicant if
he is released. It will be recalled that Mr Collins referred
to the fact that the applicant said that he was living with
his brother, but there had been no information provided that
his brother was able to support him should he be released and
there had been no formal offer of surety. I think anybody
receiving this letter would take from it that M r Collins was
saying that the absence of that information, and of a formal
offer of surety, is a reason for continuing to maintain the
detention of the applicant; and that this is something that
ought to be rectified in any future application. Certain it
is that Mr Joel so understood the letter. He immediately -
responded, conveying Mr Hussain's offer set out in a statutory
declaration. Mr Collins understood Mr Joells response in this-
way. He described the reference to the $2,000 surety as an
"significant" surety and said that the custody review officer "offer". He referred to Mr Joel's description of it as a

did not consider this to be the case. Mr Collins did not say what he thought was a "significant" surety. Nor, apparently, did anyone make an attempt to contact Mr Joel and discuss the possibility of a higher figure being offered.

MS Henderson says that it was not the task of the Compliance Section, or the custody review officer, to "bargain" with Mr Joel regarding a suitable figure. I do not agree with this. If the position of the Department was that release with a proper surety was an appropriate course, but the amount offered was inadequate, it seems to me that it would have been only a commonsense course for Mr Collins, or some other officer, to have telephoned Mr Joel to discuss the possibility of a higher figure being offered. It should be remembered that the Departmental officers were dealing with a situation where a person was being held in detention and where a substantial cost was being incurred each day by the Commonwealth in relation to that detention. I note that the cost is stated in the correspondence to be $202 per day. It seems to me that it is part of the job of officers handling that type of situation to explore, quickly and adequately, the possibility of a suitable arrangement being negotiated. This was not done.

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Furthermore, although the Department had invited-

information about the possibility of support by the

aside without any comment upon its adequacy. It will be applicant's brother, when the offer was made it was brushed
recalled that the letter referred to the fact that the applicant had stated at his interview that his brother had helped keep him in Australia and said:

"This could be construed as harbouring which carries severe penalties under the Migration Act 1958. There are real doubts that the AN would make himself available for departure should the Zhang class action fail."
It may be true that the actions previously taken by

Mr Kashem's brother to provide him with some subsidence whilst

his case was being considered amounted to harbouring under the Miaration Act. But the question for the officer was what course ought to be taken during such period as might elapse before the termination of the case, it being noted that the Department had already given an undertaking not to deport Mr Kashem in the meantime. The officer was not concerned with whether or not an offence had previously been committed, but with the practical problem of whether Mr Kashem should be kept in detention for such period as might elapse before the disposal of the litigation - that is, whether he should be released in the meantime and if so on what terms. It seems to me that it was irrelevant to refer to the fact that an offence of harbouring might have been committed in the past. It is not as if the officer was rejecting the suitability of the brother because of general criminal activity or some

inadequacy in the accommodation that he could offer.

The result of all this is that the questions of the adequate amount of surety and the suitability of the brother to provide bed and board for the applicant were not properly addressed. In saying this, I am not referring to any matter

of weight. I am referring to the question whether or not the decision-maker took into account a relevant consideration.

There is no doubt that the applicant's accommodation and the security needed to maximise the chances that he would keep in contact with the Department were matters for consideration by the custody review officer. There was not a proper or genuine consideration of these matters. Consequently, the applicant has made out the ground of failure to take into account a relevant consideration: see s.5(2)(b)

of the Administrative Decisions (Judicial Review) Act. On this ground, I uphold the application. The decision of the custody review officer referred to in the letter of 12 August

1993 should be set aside and the matter remitted to the

custody review officer for reconsideration.

I think it is important that this reconsideration take pIace urgently. The applicant may wish to submit further material to the decision maker. Accordingly, I propose to direct that any further material which is to be submitted in support of the application, and to be taken into account in the reconsideration of the matter ordered by the Court, shall be submitted by close of business tomorrow, 28 September, and

business on Thursday, 30 September. that a decision in respect of the matter be made by close of

The only other comment that I wish to make, before departing from the matter, is to suggest the need for the
Department of Immigration & Ethnic Affairs to reconsider the
use of words like "spouse", "married", "de facto relationship"
etc. in documents that have to be completed by people seeking

visas, entry permits and the like or completing !
questionnaires. I recently heard a matter, in respect of

which I have not yet delivered judgment, where there was a ._
problem about the use of the word "married" or "never married"

where the person was in a de facto relationship. This case I

provides another example of the problem. I have in fact held I
against the applicant in respect of the questionnaire, but

only because of the paucity of the evidence. !

It seems to me that if a questionnaire asks: "DO

you have any family in Australia?" and gives examples such as spouse, children, parents, siblings, the interviewee's mind is likely to turn to legal relationships. This applies even more in a case like the present one where the relationships were stated exhaustively, and not merely as examples.

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If the Department intends that people answer a question like this in such a way as to include de facto

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spouses, this should be made clear in the document. The-

Department ought not assume that the people with whom it deals

have a mastery of the English language, an adequate . .

understanding of the subtleties of meaning of a word such as "spouse" or its connotation in Australia at the present time; or even experience in completing official questionnaires.

Ambiguity in documents like these might not matter if nothing much turned upon the answers. However, as this

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case indicates yet again, the Department understandably puts considerable weight on the way in which official questions are answered. If people are going to be judged on the basis of their answers to those questions, often to their extreme disadvantage, I think the very least that they are entitled to expect is that the meaning, extent and implications of the question be crystal clear. Having regard to the two cases in which I have been involved, and my knowledge of at least one other similar case in this Court, I venture the suggestion that the Department ought to review all its standard documents so as to ensure this sort of problem is removed.

The order of the Court will be that the decision referred to in the letter from the respondent to the applicant dated 12 August, 1993 be set aside, that the application for release of custody be remitted to the decision maker and that the application be considered in accordance with the times set out above.

I think costs should follow the event. Accordingly, I order that the first respondent pay the applicant's costs.

I certify that this and the preceding fourteen (14) pages
are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:

Dated: 27 September 1993

APPEARANCES

Counsel for the Applicant: M A Robinson
Solicitors for the Applicant: Adrian Joel & CO
Counsel for the Respondent: R M Henderson
Solicitors for the Respondent: Australian Government
Solicitor
Date of hearing: 27 September 1993

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Citations

Kashem, A v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 760

Cases Citing This Decision

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Statutory Material Cited

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FEDERAL CWRT OF	IMMIGRATION, LOCAL
AUSTRAW	GOVERNMENT AND ETHNIC
PRINCIPAL
REQISTRY	AFFAIRS
Respondent

CORAM:	WILCOX J
PLACE :	SYDNEY
DATE :	27 SEPTEMBER 1993

re£	used.
At some stage, apparently about the time of refusal of the application, the applicant asked to join in the representative proceeding against the Minister which had been instituted in this Court by Zhang De Yong. Counsel for the Minister informs me that the Minister accepts that the applicant is properly a member of the group on behalf of whom that proceeding is brought. That matter has been heard by
French J.	His decision is currently reserved. Whilst the applicant's application for refugee

consistent with the further information that the other driver	-
has been charged and the applicant has not. It seems that the damage to the applicant's car was fairly slight. He asserts that the driver of the other car originally agreed to pay for
As a result of this, the applicant went to Manly Police	the damage but subsequently refused and liability was denied.
Station on 8 July and made a complaint. Details were recorded. He was asked to go back to the station and give further information that night and did so.
On 13 July he received a telephone call from a friend who said police were at his residence. He went there

Immigration and Ethnic Affairs.	He has been in custody since	I
,
that time.
f ;
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;

On 14 July 1993 the applicant was interviewed by an officer of the Compliance section of the Department, David	i
Collins. A report of interview is in evidence. It seems	, ,
apparent from the handwriting that the document was completed
by Mr Collins, although the applicant signed each page.	i
Question 3.1 asks "What is your marital status now?". A number of possible answers are then set out: namely "never married", "now married", "de facto relationship", "engaged",
L
"separatedn, "divorced", "widowed". The words "never married" have been circled. After the words "de facto relationship" a question mark has been inserted.	:I
. ,
Question 3.4 asks "Do you have any family in Australia (spouse, children, parents, siblings)?". The answer	*t . ,*
"yes" is circled. Details were then set out. But they refer	r
only to the details of the applicant's brother, with his	. .
address at Balgowlah. The following question is in similar
terns but refers to family overseas. The answer to this	. ,
question refers to three brothers and four sisters and the
applicant's parents, all of whom are said to be in Bangladesh.	I
It appears that the applicant has a de facto relationship with a woman known as Lorna Meija who is said to	,-
be a citizen of the Philippines. There is no evidence when this relationship commenced. However, I note that the applicant, according to information which he gave at the interview, lived in the Philippines for some time before he came to Australia in 1987. It is possible that this is when he met MS Meija. Whatever the truth of that supposition, it is clear that MS Meija was included in his application for refugee status in 1989. Accordingly, the relationship must go back at least that far.
On 16 July, Mr Joel wrote to the Department seeking the applicant's release from customs. His letter dealt at some length with the circumstances of the arrest but it included the assertion that Mr Kashem has, over the years, maintained contact with Mr Joel "and hence maintained contact with the Department of Immigration". Mr Collins replied to the letter stating that the custody review officer had considered the request for release and decided to maintain
I

Mr Robinson takes a number of grounds of review provided by the Administrative Decisions (Judicial Review) Act	i
i
1977 and contends that the decision is reviewable by reference	1 ,
- ,
to each of them. I do not propose to set out all of the
0
grounds or the matters advanced in argument. It seems to me that there are only two aspects of the conduct of the matter on behalf of the respondent that raise a serious question as to the validity of the decision.
The first of these matters concerns the conclusion that the applicant gave false and misleading information at his interview on 14 July. It will be recalled chat the letter
of 12 ~&st stated that weight was given to the fact that the applicant did not disclose that his de facto wife was in	I '
-
Australia at the time of the post-location interview. This
non-disclosure was treated, in the final sentence of the
passage quoted above, as amounting to the giving of false and	-

not say anything at the post-location interview about his de	-
facto wife being in Australia. This assertion was not denied by *M r* Joel in his letter of 4 August. Pxesumably he obtained instructions from his client before replying. He must have
because he obtained the statutory declaration. If Mr Kashem	been in some contact, at least with the applicant's brother,
told Mr Collins at the time of the interview that he had a de facto wife in Australia, I would expect a statement to that effect to have been included in Mr Joel's letter of 4 August. The situation, from an evidentiary point of view, is quite unsatisfactory. I have no clear basis for determining what happened. Bearing in mind that the applicant bears the onus of showing that the decision was unreasonable or tainted by legal error, I have to find that this claim is not made out.
The second matter relates to the invitation, because I think that is what it was, in Mr Collins' letter of 30 July
to provide information regarding support of the applicant if
he is released. It will be recalled that Mr Collins referred
to the fact that the applicant said that he was living with
his brother, but there had been no information provided that
his brother was able to support him should he be released and
there had been no formal offer of surety. I think anybody
receiving this letter would take from it that M r Collins was
saying that the absence of that information, and of a formal
offer of surety, is a reason for continuing to maintain the
detention of the applicant; and that this is something that
ought to be rectified in any future application. Certain it
is that Mr Joel so understood the letter. He immediately	-
responded, conveying Mr Hussain's offer set out in a statutory declaration. Mr Collins understood Mr Joells response in this- way. He described the reference to the $2,000 surety as an
"significant" surety and said that the custody review officer	"offer". He referred to Mr Joel's description of it as a
did not consider this to be the case. Mr Collins did not say what he thought was a "significant" surety. Nor, apparently, did anyone make an attempt to contact Mr Joel and discuss the possibility of a higher figure being offered.
MS Henderson says that it was not the task of the Compliance Section, or the custody review officer, to "bargain" with Mr Joel regarding a suitable figure. I do not agree with this. If the position of the Department was that release with a proper surety was an appropriate course, but the amount offered was inadequate, it seems to me that it would have been only a commonsense course for Mr Collins, or some other officer, to have telephoned Mr Joel to discuss the possibility of a higher figure being offered. It should be remembered that the Departmental officers were dealing with a situation where a person was being held in detention and where a substantial cost was being incurred each day by the Commonwealth in relation to that detention. I note that the cost is stated in the correspondence to be $202 per day. It seems to me that it is part of the job of officers handling that type of situation to explore, quickly and adequately, the possibility of a suitable arrangement being negotiated. This was not done.	i '

aside without any comment upon its adequacy. It will be	applicant's brother, when the offer was made it was brushed
recalled that the letter referred to the fact that the applicant had stated at his interview that his brother had helped keep him in Australia and said:

you have any family in Australia?" and gives examples such as spouse, children, parents, siblings, the interviewee's mind is likely to turn to legal relationships. This applies even more in a case like the present one where the relationships were stated exhaustively, and not merely as examples.	, ,
1 ,
If the Department intends that people answer a question like this in such a way as to include de facto	I-
! , .

Department ought not assume that the people with whom it deals
have a mastery of the English language, an adequate	. .
understanding of the subtleties of meaning of a word such as "spouse" or its connotation in Australia at the present time; or even experience in completing official questionnaires.
Ambiguity in documents like these might not matter if nothing much turned upon the answers. However, as this	I -
i
i
i
case indicates yet again, the Department understandably puts considerable weight on the way in which official questions are answered. If people are going to be judged on the basis of their answers to those questions, often to their extreme disadvantage, I think the very least that they are entitled to expect is that the meaning, extent and implications of the question be crystal clear. Having regard to the two cases in which I have been involved, and my knowledge of at least one other similar case in this Court, I venture the suggestion that the Department ought to review all its standard documents so as to ensure this sort of problem is removed.
The order of the Court will be that the decision referred to in the letter from the respondent to the applicant dated 12 August, 1993 be set aside, that the application for release of custody be remitted to the decision maker and that the application be considered in accordance with the times set out above.
I think costs should follow the event. Accordingly, I order that the first respondent pay the applicant's costs.

Counsel for the Applicant:	M A Robinson
Solicitors for the Applicant:	Adrian Joel & CO
Counsel for the Respondent:	R M Henderson
Solicitors for the Respondent:	Australian Government Solicitor
Date of hearing:	27 September 1993

[1993] FCA 760

27 Sep 1993