Kaur, G. v Minister for Immigration, Local Government & Ethnic Affairs

No judgment structure available for this case.

GURINDER KAUR v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. WAG204 of 1992
FED No. 23/94
Number of pages - 14
Immigration - Administrative Law - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
CARR J

CATCHWORDS

Immigration - visa - statements false or misleading in a material particular - disclosure to respondent's officer twelve months after entry - subsequent grant of permanent resident status - whether illegal entrant - whether respondent estopped from carrying out statutory duties or exercising statutory discretions.

Administrative Law - judicial review - immigration - grant of permanent status with knowledge of facts causing grantee to be illegal entrant - whether Minister estopped.

Evidence - Department of Immigration - business records - admissibility to prove statements made to departmental officer.

Migration Act 1958 ss.4(1), 14(2), 20(1), 59, 60, 82

Evidence Act 1905 ss.7A, 7B

Minister for Immigration Local Government and Ethnic Affairs v. Dela Cruz (1992) 34 FCR 348

McElligott v. Minister for Immigration Local Government and Ethnic Affairs (unrep; 12/11/93, Judgment No. 816 of 1993, F.Ct.)

Minister for Immigration Local Government and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193

Perry v. Director of Public Prosecutions (1985) 6 FCR 578

Attorney-General (N.S.W.) v. Quin (1990) 170 CLR 1

Crabb v. Arun District Council (1976) Ch 179

Rubrico v. Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681

HEARING

PERTH, 14 December 1993
#DATE 9:2:1994

Counsel for the Applicant: Mr P.J. Hannan

Solicitors for the Applicant: Mony De Kerloy

Counsel for the Respondent: Mr P. Macliver

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The matter of the decision of the respondent's delegate made on 1 December 1992 refusing the application of the applicant to remain permanently in Australia on the basis of an extended eligibility (family) entry permit (special need relative) lodged on 11 August 1992 be remitted to the respondent for reconsideration according to law.

2. The application be otherwise dismissed.

3. The applicant pay two-thirds of the respondent's costs to be taxed.

4. The respondent pay one-third of the applicant's costs to be taxed.
NOTE: Settlement and entry of Orders are dealt with in Order 36 of the Federal Court Rules.

JUDGE1

CARR J The applicant in these proceedings seeks an Order of Review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of two decisions made by delegates of the respondent. The first, made on 24 July 1992, was to serve a Notice of Status by which, it is said, the applicant was declared to be an illegal entrant. The second, made on 1 December 1992, was to refuse an application for an extended eligibility (family) entry permit (special need relative) under Reg. 127 of the Migration Regulations 1989. Review was also sought under s.6 of the ADJR Act of the respondent's conduct in serving the Notice of Status as being preparatory to or for the purpose of making a decision either to prosecute or deport the applicant on the grounds of her alleged status as an illegal entrant. The applicant also seeks relief under Section 39B of the Judiciary Act 1903 by way of a writ of prohibition to prohibit the respondent from requiring the applicant to leave Australia by reason of her status as an illegal entrant which arose out of allegedly false or misleading information given by the applicant to an officer of the respondent's department at interviews held on 16 May 1988 and 25 May 1988 at Port Louis, Mauritius. Declaratory and other consequential relief is also sought.

Factual Background
2. The applicant who is a citizen of Malaysia was born on 12 May 1956 at Perak Malaysia. Whilst studying for a Bachelor of Science at Poona University in India, the applicant met and on 19 August 1976 married Bijay Kumar Chukowry, a citizen of Mauritius. The applicant and her husband graduated from Poona University in late 1978. In early 1979 they moved to Mauritius and obtained employment as teachers. On 10 January 1981 their first child, a daughter, Simran was born in Mauritius. There were some marital problems and in 1982 the applicant and her daughter moved to Malaysia where they stayed with the applicant's parents for a short period. The applicant then returned to Mauritius and resumed cohabitation with her husband. Further marital problems occurred and in mid-February 1984 the applicant and her daughter again returned to stay with the applicant's parents in Malaysia. Whilst in Malaysia, on 9 April 1984 a second daughter, Gurpreet was born and in June 1984 the applicant and her daughters returned to Mauritius and resumed married life with her husband.

In late 1985 or early 1986 the applicant and her husband applied to the Australian High Commission in Port Louis, Mauritius to migrate to Australia.
In March 1986, whilst that application was still pending, the applicant returned to Malaysia leaving her daughters with her husband in Mauritius. In that month the applicant applied for and obtained from the Australian High Commission in Kuala Lumpur a tourist visa to Australia valid for three months.
The applicant arrived in Australia (the first of her eight entries into Australia) in early March 1986 and stayed in Perth for three weeks during which time she made enquiries about employment and education.
In late March 1986 the applicant returned to Malaysia where she stayed with her parents. In May 1986 the applicant applied for and obtained another tourist visa (this time valid for one month) from the Australian High Commission in Kuala Lumpur, flew to Perth and spent three weeks there during which time she made further enquiries about education and also enquired about immigration. At the end of that stay the applicant returned to Malaysia, spent ten days with her parents and then returned to Mauritius. In September 1986 the applicant and her husband sold their matrimonial home in Mauritius and the applicant, having applied to the High Commission in Mauritius for a tourist visa to Australia (which application was rejected), flew to Malaysia where she obtained a further tourist visa from the Australian High Commission in Kuala Lumpur. The application made in Mauritius was rejected because the applicant told an officer of the respondent's department in Mauritius a lie. The lie was that her father was very sick and had gone to Perth for treatment. On the flight to Malaysia the applicant, with her husband's consent took with her, in Mauritian currency and in contravention of Mauritian foreign exchange law, part of the proceeds of the sale of the matrimonial home. In early September 1986 the applicant flew to Perth with her daughters and applied to "transfer" her tourist visa into a student visa. On being told by officers of the respondent's department that this was not possible the applicant and her daughters returned to Malaysia in November 1986 and again stayed with her parents. Whilst in Malaysia she received notification from two universities in Western Australia that applications to study which the applicant had previously lodged by post from Mauritius were successful. The applicant accepted an invitation to study at Curtin University (near Perth) to enrol in a graduate diploma in business studies. In January 1987 the applicant applied for and obtained from the Australian High Commission in Kuala Lumpur a student visa to study in Perth. In February 1987 the applicant and her daughters arrived in Perth on that student visa. After spending two weeks with a friend, the applicant rented a unit in Victoria Park and shortly thereafter commenced her studies at Curtin University. After commencing her studies the applicant met one Lloyd Martin Jacobsen ("Mr Jacobsen"). In late March or early April 1987 the applicant and her daughters commenced living with Mr Jacobsen at 6 Furl Court, Ocean Reef, a suburb of Perth. In May 1987 the applicant telephoned her husband in Mauritius and told him that their marriage was over. Her husband arrived in Perth two weeks later and stayed until late July 1987. During that period there was a dispute about custody of the children which was resolved by a deed of compromise dated 9 July 1987. Mr Chukowry then returned to Mauritius with the younger daughter for a four month trial period which had been provided for in that deed. The deed was a very short one and recital "C" was in these terms:

"The husband and wife have separated, and have agreed to live separately and apart".

The applicant remained in Perth with Simran and continued living with Mr Jacobsen. Simran spent two months with her grandparents in Malaysia between mid November 1987 and mid January 1988. The applicant, in an affidavit sworn on 28 July 1993 ("her principal affidavit"), affirmed "Lloyd and I had a close personal relationship and were sleeping together." However, in March 1988 the applicant says that she asked Mr Jacobsen whether their relationship was permanent. The applicant's evidence is that Mr Jacobsen's response was that it was not permanent and that he could not give the applicant a commitment of any sort. On 22 April 1988 the applicant flew to Mauritius with Simran and whilst there lived with her husband (and Gurpreet) in a flat which he was renting. Whilst in Mauritius, the applicant remained in contact with Mr Jacobsen both by letter and by telephone without disclosing such contact to her husband.
The applicant's letter dated 27 April 1988 (five days after her departure from Perth) to Mr Jacobsen in which she addressed him as "Darling Lloyd" contained the following passages:-

"I am not exactly miserable I just do not like being around my husband. I am only tense because I have told him that I did not come here to stay." "What I am afraid of now is the arguements (sic). I wonder when they will come. He knows now that he cannot succeed in making me stay. On two occasions we came close to an arguement (sic) but I just kept quiet and kept my peace. I do not want to part as enemies but as friends ..."

"If you do believe it, I do miss you quite a lot and I am longing to see you again. When I come back I'll tell you everything else."

"Give my regards to Peter and family if you see them soon. I'm sure you'll be going fishing often. Fill up the freezer.

Well, I guess I'll end here. It's too early to tell you anything yet. I have told him though that I only came here to settle the kids. I'll see how he goes about accepting that. We have talked a bit, but need to talk a lot more. As things progress, I shall let you know, but right now I am sure that I cannot make a life with him and that I shall be back. Do write soon. I am looking forward to a reply from you. I'd really like to hear from you. Bye till later. I miss you quite a lot. Love Indra".

During April 1988 the applicant made enquiries with the Australian High Commission in Mauritius about returning to Australia and lodged another application for a student visa. She told her husband that she wished to take the children with her to Australia whilst she completed her studies. Mr Chukowry would not agree to this and insisted that if she went to Australia the children should remain with him. The applicant agreed to this. In paragraph 37 of her principal affidavit the applicant deposed as follows:-

"At this stage I intended to obtain my Australian qualifications, travel to Malaysia and apply for permanent residency in Australia, get a job and generally put myself in a position whereby I could bring the children out from Mauritius to Perth and give them a secure home life without Bijay (her husband - my emphasis). I knew Bijay would not allow this to happen but I wanted to put myself in a position both emotionally and financially whereby I could fight for custody of my two daughters through the Australian and Mauritian legal systems."

In relation to her student visa application, the applicant was required to attend two interviews with a Mr Ross Macarthur Greenwood at the Australian High Commission in Port Louis on 16 and 25 May 1988. In the meantime, on 12 May 1988 the applicant's evidence is that her husband took away her passport and beat her severely in front of their children. Her evidence (in paragraph 36 of her principal affidavit) as to this incident continued as follows:-

"As he was strangling me my children implored him to leave me alone and they told him that they would stay with him if he let me go. He had been drinking but appeared to come to his senses and released me."

What took place at the two interviews with Mr Greenwood gave rise to the main factual issues to be decided in this matter.
The respondent's case is that at the first interview the applicant:

. disclaimed that she had any marital problems; . stated that she wished to migrate to Australia in due course with her husband (my emphasis); . stated that she would be living with her uncle in Noranda (a suburb of Perth).

The respondent's case is that these statements were false or misleading in a material particular in that:

. there were problems with the applicant's marriage; . the applicant did not wish to migrate to Australia in due course with her husband; and . the applicant had made no arrangements to stay with her uncle in Noranda.

Between the applicant's first interview with Mr Greenwood on 16 May 1988 and the second interview on 25 May 1988 the applicant received a letter from Mr Jacobsen dated 4 March 1988 but postmarked 5 May 1988. In that letter Mr Jacobsen wrote:

"Indra if once you have settled things down there and still want to come back I will try my best to make a go of it. There are a lot of things we have in common and I think we could succeed if there arn't (sic) the pressures of the past. The thing I would worry about most is how you would be without the kids. It is a decision only you can make."

The respondent's case is that at the second interview with Mr Greenwood the applicant stated that she had no serious romantic attachments in Australia and that that statement was false or misleading in a material particular because the applicant had a close personal relationship with Mr Jacobsen and had lived with him at his house at 6 Furl Court, Ocean Reef between late March or early April 1987 until she returned to Mauritius in April 1988.
Later in these reasons I deal further with the evidence of what took place at these two interviews and my findings of fact on the issues, summarized above, which arise from what took place at the interviews.
To resume the narrative, the applicant in paragraph 45 of her principal affidavit stated that as a result of receiving Mr Jacobsen's letter she telephoned him and told him that there was no possibility that her husband would allow her out of the country with her two daughters and that she would be returning to Australia without them. During the course of that telephone conversation Mr Jacobsen said that he would send her a plane ticket so that she could join him in Perth. It would appear from the manner in which paragraph 45 is expressed that this telephone conversation took place before the applicant obtained the further student visa i.e. before her second interview with Mr Greenwood on 25 May 1988. Mr Jacobsen sent the plane ticket, the applicant was successful in obtaining a student visa and she flew to Perth from Mauritius in June 1988.
It is common ground that on 25 May 1988 immediately after the second interview with the applicant, Mr Greenwood arranged for the issue to her of a student visa to enable her to return to Perth. The formalities for the issue of the visa were completed on 26 May 1988.
Upon her return to Perth in June 1988 the applicant resumed cohabitation with Mr Jacobsen and recommenced studies at Curtin University. However, in about September 1988 the University would not allow the applicant to attend further lectures because of non-payment of her fees and she stopped attending that university.
In November 1988 Mr Jacobsen told the applicant that he would sponsor her if she applied for a grant of permanent resident status on the basis of the de facto relationship which she had with him.
In late December 1988 or early January 1989 the applicant lodged with the Immigration Department at Perth an application for permanent resident status. On presenting the application she was told that because the relationship with Mr Jacobsen had only started in June 1988 (as she had stated in the application form) the application would not be accepted.
In late January 1989 the applicant lodged a fresh application for the grant of permanent resident status with the Immigration Department at Perth and in that application stated that she had been in a de facto relationship with Mr Jacobsen since March 1987.
On 15 May 1989 the applicant and Mr Jacobsen attended an interview with a Mrs Kitching an officer at the Perth office of the Immigration Department. What took place at this interview is relied upon by the applicant as part of her submission that if she is found to have made any false or misleading statement to Mr Greenwood in May 1988 then the respondent is estopped from relying on that fact. Accordingly it is necessary to set out the relevant extract from Mrs Kitching's file note of that interview which reads as follows:-

"3) When asked why she had lead (sic) Pt Louis office to believe in May '88 that divorce was not intended and that there was no romantic involvement on her part in Australia, she said she was afraid of being refused a visa. She was very concerned to be able to complete her studies to increase her migration prospects and she was missing Mr Jacobsen badly. She did mention verbally that she had met more than one man in Australia who had shown interest in her, however, she had not indicated the strength of her relationship with Mr Jacobsen.

4) I queried if Ms Kaur and Mr Jacobsen had actually been unseparated since March 1987 (Folio 75). She stated that this was the case except for when she returned alone to Mauritius from May to early June 1988 to sort out the issue of her children. She had been keeping the older daughter with her and her husband had been keeping the younger daughter under a formal agreement, but the resulting family split-up had been most distressful. She had no success in changing her husband's mind and left the older daughter with him too so as to let the two daughters be together."

In that portion of her principal affidavit which deals with this interview, the applicant exhibits Mrs Kitching's contemporaneously made notes and whilst not expressly disputing the accuracy of those notes gives a slightly different version of what took place. I do not regard the differences as being substantial enough to be material. The applicant acknowledges that she conceded to Mrs Kitching that she had made a comment to Mr Greenwood in Mauritius to the effect that she had no relationship with any Australian male and that "maybe" she had not told Mr Greenwood about her relationship with Mr Jacobsen because had she disclosed this he would not have granted her a student visa. The applicant, in her principal affidavit states that in view of the death two days previously of one of her cousins in Malaysia she was so emotionally distraught at the interview with Mrs Kitching that she really did not care what she said.
As a consequence of that interview the applicant was granted a permit to leave Perth to travel to the funeral of her cousin in Malaysia. She went to that funeral and returned to Perth after about ten days.

By letter dated 29 May 1989 the Department of Immigration advised the applicant that her application for permanent residence in Australia had been granted approval in principle. The applicant subsequently complied with the requirements for medical examinations and character verification and by letter dated 27 November 1990 the Department of Immigration notified the applicant that her application for resident status in Australia had been approved.
During the period of twelve to fifteen months immediately following the grant to the applicant of permanent residency, the applicant's relationship with Mr Jacobsen deteriorated with a series of separations and reconciliations but in late March 1992 they separated more permanently. During that period it would appear that Mr Jacobsen had made contact with the Department of Immigration.
On 15 July 1992 the applicant was interviewed by a Mr S.M. Lanyi of the Department's Perth office. The record of that interview runs to thirteen pages each of which was signed by the applicant. The following are extracts from that record starting with a reference to the applicant's return to Mauritius in April 1988:
"I also thought that for the sake of my children I

would try one more time at keeping the marriage going. When I arrived in Mauritius I realised that marriage could not be saved under any circumstances. I also realised at that point that I loved Lloyd a lot, and that I realised the mistake of not renewing my visa ..."

Q18 "Why did you mislead the Migration Office by not divulging your de facto relationship with Lloyd Jacobsen, given that such a misleading statement may affect your situation in A/A, whereas by admitting to the relationship, you could have sought migration through sponsorship on the basis of that relationship? A. First, I did not know that I could seek immigration through a de facto relationship I was still married to my husband and I was under the impression, or rather, I knew that to seek migration through a relationship with someone in A/A, I had to be their fiance, and not be married to someone else. So I really did not know that there was an avenue. Believe me, if I knew, I would have gone back to Malaysia with my children and saved us all this pain and heartache. I would have been safe there. I would have waited there until my application went through via a de facto relationship I did not divulge the information about a relationship here, because having explained earlier on that I was very desperate to get out of Mauritius alive, and I knew that if I stayed there any longer, my husband would have been provoked by his relatives and friends to kill me or to somehow prevent me leaving the country. Therefore, the fastest and quickest way that I could see in front of me was by not revealing that I had a relationship with Lloyd here, because I knew if I did, I would not be granted a visa."

In her principal affidavit the applicant states that because she was under so much stress during the interview with Mr Lanyi she believes that in some of the answers which she gave she too readily conceded that she had misled the Immigration Department and in particular in relation to her answer to Question 18. She explains that at the time of that interview she had forgotten about the letter which she had received from Mr Jacobsen which was postmarked 5 May 1988. This assertion sits somewhat uneasily with the fact that she mentioned that letter in her answer to Mr Lanyi's Question 17. The applicant exhibited to her principal affidavit a letter dated 6 October 1992 to the Department of Immigration in which she sought to clarify the circumstances of her journey from Perth to Mauritius in April 1988. In that letter she refers to the fact that she asked Mr Jacobsen if he was prepared to make a commitment to a relationship and received a negative answer and therefore left Perth "to try to give my marriage another chance or if that failed at least to try to get my children back". The essence of that letter is that in the applicant's opinion when she was interviewed at Port Louis on 16 May 1988 she did not have a romantic link in Australia.
On 24 July 1992 Mr Lanyi signed a "Notice of Status under Section 20 of the Migration Act 1958" addressed to the applicant, the first two paragraphs of which read as follows:-

"I am writing to you about your status in Australia due to the operation of Section 20 of the Migration Act 1958 ("the Act").

Under sub-section 14(2) of the Act (a copy of which is attached) you are deemed to be an illegal entrant from the date of your entry into Australia. This is because sub-section 20 of the Act applies in your case on account of the false or misleading statement that you made in a material particular to the migration officer in port louis, mauritius (sic) on 16 May 1988 and 25 May 1988."

On 11 August 1992 the applicant applied to the respondent's department for an extended eligibility (family) entry permit (special need relative) pursuant to Regulation 127 of the Migration Regulations. By letter dated 1 December 1992 to the applicant, the Department of Immigration advised the applicant that her application under Regulation 127 had been rejected, that she had a 28 day period of grace but that she must leave Australia by 5 January 1993. By a further letter, dated 3 December 1992 from the Department to the applicant, the date by which she was required to leave Australia was amended to 13 December 1992. Enclosed with that letter was a Notice of Intention to Exercise Powers under the Migration Act advising that at the expiration of seven working days it was intended to refer the applicant's case to the Minister or his delegate to consider the question of exercising powers under s.82(1) of that Act or the making of a deportation order against the applicant. On 9 December 1992 the applicant instituted these proceedings.
The Application for Review
By her substituted application for an order of review, the applicant sought under Section 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") to review what were described as the decisions of the respondent's delegate made on 24 July 1992 that the applicant was deemed to be an illegal entrant from her last entry into Australia pursuant to Sections 14 and 20 of the Migration Act, 1958, that the applicant was not entitled to work in Australia without the written permission of an authorised officer of the respondent and to serve a Notice of Status dated 24 July 1992 on the applicant. Application was also made under Section 6 of the ADJR Act to review the conduct of the respondent in serving the Notice of Status dated 24 July 1992 preparatory to or for the purpose of making a decision either to prosecute or deport the applicant on the grounds of her alleged status as an illegal entrant. The applicant also sought an order under Section 39B of the Judiciary Act 1903 for a writ of prohibition to prohibit the respondent from making any requirement that the applicant leave Australia by reason of allegedly false information given by the applicant on 16 May 1988 and 25 May 1988 at Port Louis. The applicant also sought, in the court's equitable jurisdiction, declarations that the applicant was not an illegal entrant, that the permanent resident status granted to her on 27 November 1990 remains "of full force and effect" and in the alternative that the respondent was estopped from relying on allegedly false information given by the applicant at the interviews on 16 May 1988 and 25 May 1988. Finally the applicant sought an order to review the decision of the respondent's delegate made on 1 December 1992 refusing her application to remain permanently in Australia on the basis of an extended eligibility (family) entry permit (special need relative).
Statutory Framework
Migration Act 1958
Section 14(2) relevantly provides:

"14(2) Where a person to whom subsection 20(1) or (2) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:

(a) remains in Australia;

(b) is not a citizen; and

(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa."

The expressions "properly endorsed valid entry permit" and "properly endorsed valid entry visa" are defined in section 4(1) which provides:

"In this Act, unless the contrary intention appears - . . . . .

'properly endorsed valid entry permit', in relation to a person to whom subsection 20(1) or (2) applies, means:

(a) a valid entry permit granted before the commencement of section 4 of the Migration Legislation Amendment Act 1989 that is endorsed with a statement that the person granting the entry permit recognises the holder of the entry permit to be a person to whom subsection 16(1) or (1AA) of this Act, as in force at any time before that commencement, applies, or

(b) a valid entry permit granted after the commencement of section 4 of the Migration Legislation Amendment Act 1989 that is endorsed pursuant to subsection 20(4) with a statement that the person granting the entry permit recognises the holder of the entry permit to be a person to whom subsection 20(1) or (2), as the case requires, applies for the reasons set out in a section 20 notice referred to in the endorsement, where those are the only reasons for which either of those last-mentioned subsections applies to the person; 'properly endorsed valid entry visa', in relation to a person to whom subsection 20(1) applies, means a valid visa, being an entry visa under section 17, that is endorsed with a statement that the Secretary recognises the holder of the visa to be a person to whom subsection 20(1) would apply, if the person entered Australia, for the reasons set out in a section 20 notice where those are the only reasons for which subsection 20(1) applies to the person;"

No such permit or visa has been granted to the applicant.

Section 20(1) relevantly provides:

"20(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:

(a) . . . . .

(b) . . . . .

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

(i) . . . . . ..

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

Sections 59, 60 and 82 provide as follows:-

"Mandatory deportation of illegal entrants

59. (1) An illegal entrant is liable to deportation if the period of grace for the illegal entrant has ended.

(2) Where the Minister, after following the prescribed procedures, is satisfied that a person is, under subsection (1), liable to deportation, the Minister shall, in writing, order the deportation of the person.

(3) A deportation order made under this section may not be revoked.

(4) A deportation order made under this section in relation to a person shall be taken to revoke any deportation order made under section 60 in relation to the person. Deportation of illegal entrants

60. (1) The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.

(2) In spite of any other provision of this Act, a deportation order made under this section shall not be executed before the period of grace for the person has ended. Minister may require illegal entrant to leave Australia

82. (1) The Minister may, after considering the prescribed matters and no other matters, require a person who is an illegal entrant to leave Australia within the time specified by the Minister, and the person shall comply with that requirement unless, at the end of the time so specified, a departure prohibition order is in force in respect of the person.

Penalty: $5,000 or imprisonment for 2 years, or both."

Objection to Competency
32. The respondent filed a Notice of Objection to Competency which objection he maintained at the hearing of this matter. The respondent objected to the jurisdiction of this Court to try the application for an order to review under the ADJR Act on the grounds that Mr Lanyi's conclusion on 24 July 1992 that the applicant was an illegal entrant was not a decision but a conclusion leading to some ultimate decision and thus not reviewable. A similar submission was made in relation to Mr Lanyi's conclusion that the applicant was not entitled to work in Australia without the written permission of an authorised officer of the respondent. In relation to Mr Lanyi's decision to serve a Notice of Status it was submitted that that was not a decision, but was a procedural determination and hence not reviewable. The respondent relied on the decision of the High Court of Australia in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321. Alternatively in relation to the service of a Notice of Status, it was submitted that it was not Mr Lanyi's decision to serve the notice which constituted a reviewable decision but the actual service of the notice and the case of Whim Creek Consolidated NL v. Colgan (1991) 103 ALR 204 (a decision of the Full Court of the Federal Court of Australia) was cited in support of that proposition.

Counsel for the respondent conceded that in view of the fact that the applicant had invoked Section 39B of the Judiciary Act, his submissions as to the application of the ADJR Act to this matter were somewhat academic and for that reason he made only brief submissions on the jurisdictional matters.
In view of the fact that the applicant relies in the alternative on Section 39B of the Judiciary Act, it is clear that the Court has jurisdiction to determine what are the essential matters in dispute, namely

. whether the applicant made a statement that was false or misleading in a material particular to Mr Greenwood; . whether on the facts of this matter and the application of the abovementioned sections the automatic result is that the applicant is an illegal entrant; and . if so whether the respondent is estopped from performing any relevant statutory duties or exercising any relevant statutory discretions in relation to the applicant by virtue of representations or conduct of the respondent made or engaged in after the applicant supplied the information to Mrs Kitching at the interview referred to above.

In those circumstances, and in view of my findings of fact below, I do not propose to canvass the question whether jurisdiction exists in this matter under the ADJR Act.

Admissibility or Otherwise of Certain Documents
36. At the hearing objection was taken by the applicant to the admission into evidence of certain documents. In relation to the first set of two documents (Mr Greenwood's records of his interviews of the applicant on 16 May 1988 and 25 May 1988) I ruled that the documents were admissible and gave extemporary reasons for that. The first reason was that the documents were already exhibited by the applicant to her principal affidavit and were thus already in evidence as part of the applicant's case. Mr Hannan, counsel for the applicant, whilst accepting that the documents were already in evidence through the tender of his client's principal affidavit and the exhibits thereto argued that the tender was for the point of deposing to where his client took issue with the contents of the documents and not "for relying upon his (the respondent's) version of events". Whilst I accept that the applicant disputes what is contained in these documents I was not cited any authority for the proposition that a party may put into evidence a document as part of her case and then object to the respondent relying upon that document as part of his case. Furthermore, the fact in issue is whether the applicant made the statements which Mr Greenwood recorded contemporaneously, albeit in summary form in the documents concerned. At this stage the issue is not whether the statements were true but simply whether they were made to Mr Greenwood.

In my opinion the documents are admissible under Part IIIA (Admissibility of Business Records) of the Evidence Act 1905. The administration of the Government of the Commonwealth whether carried on in Australia or elsewhere is a "business" within the meaning of s.7A(1)(b) and Mr Greenwood was a servant employed in the "business". In connection with the issue whether the applicant made the statements in question, Mr Greenwood was clearly a "qualified person" within the definition of that expression in s.7A in that he had or may reasonably be supposed to have had personal knowledge of what took place during his interviews with the applicant. The statements in the documents were written down by him and he signed and dated the documents. The documents containing the statements form part of a relevant record made in the course of and for the purposes of the relevant business and in my view fall squarely within the provisions of s.7B. The fact that the records were made contemporaneously with the interview (which is not a requirement of admissibility but in my opinion is a factor which may be relevant to its accuracy as a record of what took place at the interview) is apparent from the dates on the respective documents, from Mr Greenwood's evidence and from the fact that they contain notations in the first document as to interviewing Mr Chukowry the next day and in the second document instructing another officer to issue the necessary visa and it is common ground that the visa was issued on the day following that interview.
Objection was also taken to the reception into evidence of a record of a telephone conversation between Mr Jacobsen and a Ms E. Moses of the respondent's department in Perth. In my view what is contained in that document is not relevant to the matters in issue and is therefore inadmissible.
The next objection was to a document dated 16 July 1991 being annexure "SML 6" to Mr Lanyi's affidavit of that date. SML 6 records an interview between a Mr Templar an officer of the respondent's department and Mr Jacobsen on 16 July 1991. This falls into a different category to the document first mentioned above. In this instance the truth or otherwise of the facts stated in the record is what matters. It does not appear that Mr Templar had or might reasonably be supposed to have had personal knowledge of the facts stated in the document and accordingly he, in my opinion, is not a "qualified person" in respect of the facts stated in that document. It follows that the document is not a business record and in my view is not otherwise admissible.
The same applies, in my opinion, to the next document to which objection was taken namely "RMG 2" annexed to Mr Greenwood's affidavit being notes of an interview held between Mr Greenwood and Mr Chukowry on 17 May 1988. For the reasons stated immediately above I consider that document to be inadmissible.
Next, objection was taken by the applicant to the admission into evidence of a copy of a telex dated 12 May 1988 from the Immigration Department in Perth to its office at Port Louis. The telex, which was in response to a telex dated 3 May 1988 from Mr Greenwood asking whether there was any objection to the issue of a visa to the applicant, expressed doubts about the applicant's application to continue studies in Australia and referred to a letter on file from her husband alleging that the applicant intended to divorce him to marry an Australian resident "just to obtain permanent residence". The telex raised questions as to whether the applicant intended to bring her children and if so whether she could maintain them. It also included a note that during the applicant's previous studies she changed to a part-time course, that she was then instructed to revert to a full-time course and her reasons for changing were not clear. There is also reference to a photocopy of a letter from Mr Chukowry being forwarded by bag. A copy of that letter was also annexed to Mr Greenwood's affidavit and forms the final document in the series of documents objected to by the applicant.

In my opinion the fact that the telex was received by Mr Greenwood prior to his first interview with the applicant is relevant as throwing light on what was likely to have been discussed by Mr Greenwood with the applicant. It seems to me that the fact that Mr Greenwood received a telex referring to the matrimonial problems is relevant to the issue of whether Mr Greenwood asked the questions which he has sworn he asked the applicant at the first interview. I have decided to admit the telex into evidence not in any way as proof of any statements of fact contained in it but as being relevant to what was probably discussed with the applicant on the occasion of her interview with Mr Greenwood on 16 May 1988. Mr Greenwood received the copy of Mr Jacobsen's letter dated 10 June 1987 after the first interview but before the second interview (on 25 May 1988) and for the same reasons and for the same purpose as apply to the telex I admit that document, save that the relevant interview is the second interview.
In respect of each of the abovementioned documents, where I have admitted the documents into evidence I have also admitted into evidence the respective relevant paragraphs or portions of paragraphs in the affidavits to which those documents were annexed. Where I have ruled that any document is inadmissible then to the same extent that ruling as to inadmissibility extends to the relevant paragraphs or portions of paragraphs in the affidavits to which those documents were annexed.
Did the applicant make any false or misleading statements?
I have set out earlier in these reasons the four statements upon which the respondent relies. I shall deal with them individually.

(a) Disclaimer of marital problems
46. The respondent says that at the first interview the applicant disclaimed that she had any marital problems. In his affidavit Mr Greenwood deposed to the fact that he conducted interviews with the applicant on 16 and 25 May 1988 and annexed copies of his handwritten notes in respect of those two interviews. Mr Greenwood was also made available for cross-examination by telephone from the Australian Embassy in Damascus, Syria. This was pursuant to an order, made by consent, pursuant to Order 24 Rule 1A of the Federal Court Rules that the applicant have leave to cross-examine Mr Greenwood by telephone.

In cross-examination Mr Greenwood acknowledged that he did not remember every question which he put to the applicant and every answer given by her and that he could not recall the substance of each question and answer. He acknowledged that without his notes he would not have recalled the detailed thrust of her answers. He acknowledged that it was possible that the applicant may have said words to the effect that she had left her husband in the past, that in a marriage there are always ups and downs. He baulked at accepting that the applicant may have said that her husband occasionally abused her but agreed that she may very well have said that she was unhappy in her marriage.
In her affidavit the applicant admits that Mr Greenwood asked her about the status of her marriage and enquired whether she and her husband were having any problems and whether she had left him in the past. The applicant deposed to the fact that she was "reluctant to speak openly with Mr Greenwood not only because he was a stranger and because the questions which he was asking were very personal, but also because he was in effect the umpire of my student visa application". She went on:

"I tried to satisfy him by explaining that I had left my husband in the past and that in a marriage there are always ups and downs and even conceded that for the most part our marriage was not particularly happy and I was subjected to abuse. However, I qualified that by saying that from what I could tell it seems to be the norm in Mauritius."

In cross-examination the applicant's evidence was as follows:

Q. "And during that first interview you told Mr Greenwood, did you not, that you were not having any marital problems with your then husband? --- I didn't tell him in exact words that I didn't have marital problems. What I did tell Mr Greenwood was that we have fights and we've had fights before. I've left him before but we sorted them out and we have ups and downs. In all marriages, everyone has ups and downs. It was in that context that I told Mr Greenwood. Q. Yes, but you told him, did you not, that at the time of your interview there were no marital problems? --- I didn't say it in those exact words. I indicated to him that we have problems and the problems were continuing but I indicated to him that that was the norm of marriages."

The applicant's attention was drawn to Mr Greenwood's note "disclaims marital problems" and the following exchange took place:

Q. "I put it to you, Ms Kaur, that Mr Greenwood made that note because during this interview you disclaimed that the - at that time, the time of your interview, at the time your application was being considered, you told Mr Greenwood that you did not have any marital problems? --- I did not tell Mr Greenwood that I did not have marital problems. I said we have had problems, we will have problems and we've had ups and downs but I did not say that I did not have - completely did not have marital problems with my husband.

Q. No, I am not saying that you said that you never had marital problems with your husband. And you said that you told him that you'd had problems in the past and that the marriage had ups and downs. What I'm putting to you is that at this interview you told Mr Greenwood words to the effect that, at that time - the time he was interviewing you, you did not have any marital problems? --- I did not use those words, that "I did not at this time have marital problems". Q. Well, I suggest to you that you used words to that effect or conveyed that impression to Mr Greenwood during the interview. --- I - I don't think I deliberately conveyed that. Mr - I mentioned to Mr Greenwood that I've had problems and that we are having problems and we will have ups and downs and we are having our ups and downs like any marriage does."

The applicant's own evidence was that four days prior to this interview her husband had beaten her severely in front of her children and had tried to strangle her. It is also quite clear from the evidence that at this stage the applicant had made up her mind to leave her husband permanently, to take the children to Perth and to fight for their custody through the Australian and Mauritian legal systems.
Apart from her sworn evidence, the matter of the serious incident on 12 May 1988 is described by the applicant in her interview with Mr Lanyi on 15 July 1992 particularly at pages 76-79 of the applicant's principal affidavit, including the statement - "I was very desperate to get out of Mauritius alive ..."
When one compares the evidence as to the relationship between the applicant and her husband as at 16 May 1988, with the applicant's own version of what she told Mr Greenwood it might not be stretching the language too far to characterise even her evidence of what she told Mr Greenwood as in the nature of "disclaiming marital problems". However, I do not believe that the applicant was as forthcoming to Mr Greenwood as she claims in her evidence in chief. The applicant's own evidence included the statement signed by her in which she is recorded as stating that she "was very desperate to get out of Mauritius alive". She could have achieved this simply by returning to Malaysia and staying with her parents as she had done twice before when marital problems arose. Her preference for Australia is demonstrated clearly by her application for a visa to come here. By her answer to Mrs Kitching's questions on 15 May 1989 I believe that the applicant knew when she was in Mauritius in May 1988 that her prospects of obtaining that visa would be enhanced by if not dependent upon giving the impression to Mr Greenwood that she did not have any marital problems other than those which crop up from time to time in most marriages. The Oxford English Dictionary relevantly defines "disclaims" in terms of "refusal to admit" and the concise Oxford English Dictionary defines the infinitive as being "to deny or disown". The Macquarie Dictionary speaks of "to repudiate ... to disavow". I find as a fact that during the first interview with Mr Greenwood on 16 May 1988 the applicant disclaimed her marital problems.
The truth of the matter was that she had very serious marital problems as outlined elsewhere in these reasons. Accordingly, in my opinion her statements disclaiming those marital problems were not only misleading but false.
In fairness to the applicant I must add that it was not her demeanour in the witness box which caused me to find as I have found. I was a little suspicious of her tearful incident during the course of her cross-examination but I concluded that it was the result of the stress of the occasion together perhaps with reliving painful experiences. Nevertheless, I thought that that incident and the otherwise calm manner in which the applicant handled her cross-examination gave me some assistance in deciding the extent to which I could rely on the admissions which she made, for example, to Mrs Kitching and Mr Lanyi on similar stressful occasions. Furthermore, it would have been unfair to rely on the applicant's demeanour as going to credibility in a situation where Mr Greenwood's cross-examination was conducted by telephone. In making this finding and each of the other findings of fact referred to in these reasons I am conscious of the fact that the respondent has the burden of proof on the balance of probabilities and that in accordance with the principles in Briginshaw v. Briginshaw (1938) 60 CLR 336 I should not lightly make this finding and I have not done so. I appreciate fully how strong the evidence must be, see Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 110 ALR 449 (High Court of Australia). Terse as Mr Greenwood's notation was, it was made contemporaneously and I believe it accurately reflects what the applicant told him. That notation, to my mind, was the strongest piece of evidence and one which judged by its consistency with most of the applicant's evidence and the evidence of what transpired before the first interview between the two interviews and at the second interview is most likely to reflect what the applicant told Mr Greenwood about her marriage. In summary, those other pieces of evidence are:

(a) the applicant's letter to Mr Jacobsen dated 27 April 1988;

(b) the circumstances (related by her to Mr Lanyi on 15 July 1991) that on arrival in Mauritius the applicant realised that the marriage could not be saved under any circumstances and that she "loved Lloyd a lot";

(c) the applicant's preparedness to tell her husband and Mr Greenwood one version of her intentions with regard to further cohabitation with her husband when her own evidence as to that then-held intention was to the opposite effect;

(d) the events of 12 May 1988;

(e) the applicant's acknowledged reluctance to speak openly with Mr Greenwood;

(f) her responses (set out above at pp 27-28) to cross-examination on this aspect of the matter.

(b) Whether the applicant stated that she wished to migrate to Australia in due course with her husband.
56. Mr Greenwood's note on this point in annexure RMG 1 to his affidavit reads "wishes to migrate to Australia in due course with husband".

In paragraph 40 of her principal affidavit the applicant deals with this matter in the following terms:-

"I told Mr Greenwood that my plan was exactly as I had related to Bijay - i.e. I wanted to obtain an Australian qualification, leave Australia upon completion of my studies, apply for permanent residency, obtain a good job and generally prepare a home where I could bring out Bijay and my two daughters to start a new life." (my emphasis)

Earlier in the very same affidavit (in paragraph 37) the applicant deposed to her intentions in April 1988 at the time when she had lodged her application for a student visa and was dealing with Mr Greenwood. The passage of her affidavit to which I refer reads as follows:-

"At this stage I intended to obtain my Australian qualifications, travel to Malaysia and apply for permanent residency in Australia, get a job and generally put myself in a position whereby I could bring the children out from Mauritius to Perth and give them a secure home life without Bijay." (again my emphasis)

It should be remembered that paragraph 37 speaks of a time even before the alleged savage assault on the applicant by her husband on 12 May 1988 referred to earlier in these reasons.
When this passage was first put to the applicant in cross-examination her response was to the effect that she did not know what she wanted at that time.
In my view that was not a satisfactory answer. On her own evidence I find that the applicant stated during her interview with Mr Greenwood that she wished to migrate to Australia in due course with her husband and I also find on the basis of the applicant's own affidavit that this was not her intention at the time and that accordingly that statement of her then present intention was false. If it were not false then it was certainly misleading even on the basis of the applicant's evidence in cross-examination.

(c) Whether the applicant stated that she would be living with her uncle in Noranda.
62. Mr Greenwood's note in respect of this alleged statement simply reads "living with uncle".

In paragraph 41 of her principal affidavit the applicant states:-

"At the first interview, I believe that Mr Greenwood asked me where I was going to stay. My recollection is very hazy but I think I may have replied to Mr Greenwood that I intended to stay with my uncle who lived in the Perth suburb of Noranda. The reason why I gave my uncle's address as the place where I intended to stay, was because that was the only place I could really be sure that if worse came to worst I could stay at. I was not at the time of speaking to Mr Greenwood really sure of where I was going to stay."

In her oral evidence the applicant confirmed that she told Mr Greenwood that she said she would be living with her uncle. She added that she also told him that she had other places where she could live but had said that most probably she would be living with her uncle. She admitted that during her fourteen months stay in Perth she did not live with her uncle but used to visit him. The applicant gave evidence that she had asked her uncle whether she could stay with him if she decided to come back and pursue her studies again. No evidence either in affidavit form or orally was given as to the uncle's response. In her principal affidavit the applicant refers to a letter from a friend in Perth (one Sue Green) stating that the applicant was welcome to stay with her. The applicant states that she did not mention Ms Green's name to Mr Greenwood because she had not really made up her mind whether she intended to stay with her. The applicant also gave her reasons for not mentioning the possibility of staying with Mr Jacobsen.
On the applicant's own evidence she had not made up her mind where she would stay in Perth yet, as she concedes, she told Mr Greenwood that she intended to stay with her uncle in the Perth suburb of Noranda. That again is, in my opinion a false statement of her then intentions and if not a false statement then certainly a misleading one.

(d) Whether at the second interview the applicant stated that she had no serious romantic attachments in Australia
66. The evidence from the respondent on this statement includes the following extracts from Mr Greenwood's affidavit:

"... I recall discussing with Ms Kaur at both interviews whether she had any romantic attachments in Perth. This was an issue which I raised with the applicant because of the letter dated 10 June 1987 which the Department had received from the applicant's husband.

I do not now remember the exact details of my conversation with the applicant on 16 May 1988 concerning her romantic attachments in Perth, except that the applicant denied having any serious continuing romantic attachment.

At the second interview I conducted with the applicant on 25 May 1988 the applicant again denied that she had any serious romantic attachments in Australia. I recorded this denial in my handwritten interview notes."

There is nothing in Mr Greenwood's notes in respect of the first interview which expressly refers to the matter of any romantic attachment unless that aspect might be covered by the notation "disclaims marital problems".
In Mr Greenwood's notes of the second interview there is the notation "states has no serious romantic attachments in Australia." In cross-examination Mr Greenwood twice expressed the view that the issue of romantic attachments was discussed at both interviews and recorded in respect of the second interview. However, he acknowledged that he did not have a specific recollection of this but that his general recollection (and this was repeated in re-examination) was that the subject was discussed at both interviews and as he stated in re-examination, it was one of the central matters for consideration in granting the visa.
The applicant's evidence, in paragraph 39 of her principal affidavit, on this issue was as follows:-

"During the course of the first interview with Mr Greenwood (i.e. on 16 May 1988) he asked me whether I had any boyfriends in Perth. I replied to him along these lines: 'I know one or two men. I do not know where my relationship with those two men will go but feel that in respect of one of those men the relationship could develop into something serious.' I explained to Mr Greenwood that if he asked me whether I had a relationship with any male Australian at the moment I would have to answer him, in all honesty: 'no'."

Later in her principal affidavit (paragraph 43) the applicant states:

"I now understand that the Immigration Department is alleging that I had made the statement about not having a permanent relationship with any Australian male at the second interview rather that (sic) the first. This is not the case."

I note that this conflicts with what the applicant swears (in paragraph 53 of the same affidavit) she told Mr Jacobsen in response to his suggestion in January 1989 that she should lodge a fresh application for permanent resident status and in that application she should state that their relationship had commenced in March of 1987 rather than June of 1988. In paragraph 53 her principal affidavit she states

"At this point I told Lloyd that we could not proceed that way because it would be going against what I had told Mr Greenwood in Mauritius at the second interview in May 1988 when I had applied for the student visa."

In cross-examination the applicant was asked:

"In fact you, during that 12 months period, were romantically involved with him (Mr Jacobsen) and had a relationship with him? --- Yes he considered me his girlfriend. Yes, I did have a relationship with him and I used to help him out financially. Q. Now, at your first interview with Mr Greenwood you didn't tell him anything about Mr Jacobsen, did you Ms Kaur? --- He asked me if I had a romantic - any romantic relationship or any romantic ties with anyone in Perth and I told him that I knew one or two gentlemen there, one of them could be quite serious but at this moment I don't have a serious romantic relationship

Q. Well, you didn't tell Mr Greenwood that for the last 12 months, prior to your returning to Mauritius, you had been living with Mr Jacobsen. You didn't tell him that, did you? --- No, he didn't ask me so I didn't answer that.

Q. And you didn't tell Mr Greenwood that, in fact, you were still corresponding with Mr Jacobsen, did you? --- I was corresponding with him, yes. No, I didn't tell Mr Greenwood."

In relation to the second interview the applicant's oral evidence was that Mr Greenwood did not at that interview ask her whether she had any romantic attachments. She stated that Mr Greenwood had asked her about the address 6 Furl Court. That address was Mr Jacobsen's home in Perth.
It will be recalled that by the time of the second interview the applicant had received the letter from Mr Jacobsen postmarked 5 May 1988 and had made the arrangements with Mr Jacobsen to return and resume cohabitation with him. In response to a question as to the reason why the applicant had not told Mr Greenwood at the second interview about the letter from Mr Jacobsen and of her intention to live with him upon her return to Australia the applicant answered:-

"At the first interview I did not tell Mr Greenwood I had a romantic relationship because I did not have one. I came back with this firm opinion in my mind that what was between Lloyd and me had finished because he couldn't cope with my children and my problems. At the second interview I wasn't asked the question, I was asked about the address and I told him what I felt was the truth, that I had lived at that address."

In the record of interview (signed by the applicant) with Mr Lanyi on 15 July 1992 the following passage appears:-

"Q15. I understand that you were interviewed by a migration officer at Port Louis, Mauritius in regard to the student visa that was subsequently issued to you. I have that file here (S88/007) which has a file note dated 25/05/88, in which the migration officer states that you have stated that you have no serious romantic attachments in A/A, that you intend to pursue a migration application after returning to Mauritius at the completion of your studies. The migration officer further states that after explaining the implications of attempting to remain in A/A to you, he was satisfied that you were a bona fide student and was consequently intending to issue the student visa to you that you had requested. Do you agree with that statement?

A. Yes."

Later in the same statement the applicant is recorded as stating:

"I did not divulge the information about a relationship here, because having explained earlier on that I was very desperate to get out of Mauritius alive, and I knew that if I stayed there any longer, my husband would have been provoked by his relatives and friends to kill me or to somehow prevent me leaving the country. Therefore, the fastest and quickest way that I would see in front of me was by not revealing that I had a relationship with Lloyd here, because I knew, if I did I would not be granted a visa."

In a letter dated 6 October 1992 to the Immigration Department the applicant sought to explain away what she told Mr Lanyi during her interview on 15 July 1992 on the basis that she did not have in mind her exchange of letters with Mr Jacobsen in April and May 1988. The truth of the matter is that the letter from Mr Jacobsen was specifically mentioned by her during the course of that interview.
Weighing up all of the evidence and conscious of the strength required of that evidence I find that on a balance of probabilities the question whether the applicant had any serious romantic attachment in Australia was raised at both the first and the second interviews and that the applicant's responses were on each occasion to the effect that she had no serious romantic attachments in Australia. The truth of the matter was that at the time of both interviews the applicant had a serious romantic attachment with Mr Jacobsen. The statements which she made to Mr Greenwood were thus both misleading and false.
Were the above statements false or misleading "in a material particular"?
The test of materiality in this part of the law was laid down in Minister for Immigration, Local Government and Ethnic Affairs v. Dela Cruz (1992) 34 FCR 348 a decision of the Full Court of this Court.
In that case the applicant had entered Australia on a visitor's visa and had stated on his visa form and passenger card that he was married. On arrival in Australia he was granted a temporary entry permit to remain for six months. The truth of the matter was that Mr Dela Cruz was not married. He married an Australian resident and was subsequently granted permanent resident status as the spouse of an Australian resident.
On the question of the interpretation of the expression "false or misleading in a material particular" the joint judgment of the Court reads (at p 352) as follows:-

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

For present purposes, it is sufficient to say that a statement made to an immigration official by a person seeking to enter Australia, which conveys a false or misleading impression of the person or of his or her circumstances, would be false or misleading in a material particular. Immigration officials are entitled to seek and to be told the truth about a person applying to enter Australia, so that they may be in a position to evaluate the application made to them. They may consider it desirable to ask further questions about the subject matter of a statement made to them and with answers to further questions, the statement may be more useful. But it does not follow that, without further questions, the statement is not material in the sense in which that word is used in s.20(1)."

In my view each of the false or misleading statements referred to above falls into the category of statements which may be taken into account in relation to an application for a student visa. Whether an applicant for a student visa has marital problems, whether she intends to migrate in due course with her husband to Australia, where she plans to live in Australia and whether she has any serious romantic attachments seem to me to be matters which a departmental officer may take into account in making a decision as to the grant of a student visa. They are relevant to the likelihood of the applicant being a bona fide would-be student and also to the likelihood that she will comply with the conditions of a student visa.
Whilst referring to Dela Cruz the following passage (at p 353) from that decision clearly has a bearing on this matter:

"The question is not whether the statement in the application for a visa played any part in the decision made at the terminal to grant an entry permit, which it did not, for it was not before the officer. Nor is the question whether that officer was concerned about the marital status of Mr Dela Cruz, who had arrived with a visitor's visa. The issue is whether the statements, both of which were made in formal documents required to be lodged by persons seeking to enter Australia, were false or misleading in a material particular. That must be a matter for objective assessment. So far as the stated knowledge of the maker of the statement is concerned, s.20(11) and (12) makes it clear that the falsity is to be determined objectively. The statement may be false or misleading in a material particular whether or not the person knew that the statement had such a character."

Significance of Grant of Permanent Residence
84. As to the significance of the subsequent grant of permanent resident status the Full Court in Dela Cruz held that the effect of s.22(2) of the Migration Act was that a person who is an illegal entrant under s.14(2) of the Act remains an illegal entrant unless and until that person is granted a "properly endorsed valid entry permit". The applicant in this matter being a person in respect of whom, in my opinion, sub-section 20(1) of the Act applies has not been granted a "properly endorsed valid entry permit" within the meaning of s.4 of the Act and accordingly remains an illegal entrant.

Counsel for the applicant argued that the grant of permanent residence to the applicant removed her illegal status which would otherwise attach to her by virtue of subsection 14(2) of the Act. He acknowledged that the decision of the Full Court in Dela Cruz is authority for the proposition that a person who is an illegal entrant under subsection 14(2) of the Act remains an illegal entrant unless and until that person is granted a properly endorsed valid entry permit or, as counsel for the applicant put it that the grant of a subsequent entry permit does not impinge upon a person's status as an illegal entrant under subsection 14(2) of the Act unless that subsequent permit complies with s.22(2) of the Act. He argued that the abuses of procedure which such a construction allows for and the scope for obtaining "unwarranted" s.20(5) notices are obvious and asked what would be the purpose of provisions such as Regs. 24(1A) and 135(2) if the Minister, even after (for example) Reg. 42(1A) procedure has been gone through, can turn around and change her or his mind? Counsel's submission was that if Parliament had intended such a construction it would have used language similar to the opening words of s.20(1)(ca) - "the person has ever made ..." and that as counsel put it he "very tenuously" made "the impassioned plea" that the decision in Dela Cruz was per incuriam.
The fact that the person who drafted s.20(1)(ca) perhaps as a matter of abundant caution drew the provision in that way does not make the argument good. When section 20(1)(ca) is read with s.24(1A) and 34(1A) it would appear that it was inserted in 1991 as part of a set of provisions relating to the requirement that an applicant make a declaration about his or her character or conduct or both. Section 20(1)(ca) could well have been drafted to put beyond doubt the invalidity of the argument subsequently rejected in Dela Cruz and tentatively advanced by counsel in this matter. I would reject it even were I not bound by the decision in Dela Cruz (which of course I am) to apply the principles decided or adopted in that case to this matter.

Estoppel
87. The applicant submitted as an alternative argument that the respondent was estopped from "taking into account comments made by the applicant in Port Louis in May 1988". This was put on the basis that at the interview with Mrs Kitching on 15 May 1989 the applicant disclosed the history of her relationship with Mr Jacobsen and in particular the times during which the applicant and Mr Jacobsen had lived together, that the respondent nevertheless granted the applicant permanent residency and that the applicant has acted to her detriment by "establishing Australia as a permanent home for herself and her two small children."

A similar argument was raised in the case of McElligott v. Minister of State for Immigration, Local Government and Ethnic Affairs which is unreported but was decided by the Full Court of this Court on 12 November 1993 (Judgment No. 816 of 1993). In that case it was submitted that an estoppel arose by reason of the fact that an entry permit had been issued by one of the respondent's officers when that officer knew of the falsity of the statement in respect of the grant of the visa and that the appellant had relied on that entry permit in remaining in Australia marrying here and becoming the father of an Australian citizen. The unanimous decision of the Full Court on this point was as follows:-

"The operation of subsection 20(1) and of subsection 14(2) is one of law upon the fact of the making of the statement in the specified circumstances, without any action or inaction of the respondent or of any officer of the Commonwealth. No estoppel can arise by reason of the circumstances suggested."

Similar views were expressed in Minister for Immigration, Local Government and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193 at pp 199-201 and 207-211 (another decision of the Full Court of this Court) in which case there is a comprehensive review of the question of the application of estoppel in this area of law and the relevant authorities in Australia, the United Kingdom and the United States of America.
I would like, very briefly, to elaborate on this aspect. First, there may be some doubt whether the grant of permanent resident status to the applicant amounted to a representation that the Minister would not thereafter require the applicant to leave Australia (or cause her to be deported) by reason of her false or misleading statements made at Port Louis in May 1988. I assume for the purposes of argument that this did amount to such a representation.
This case involves the performance by the respondent of a statutory duty or the exercise by him of a statutory discretion in respect of matters where the public interest is involved. This is not a case of a statutory body making decisions relating to its business or "private matters" cf. Crabb v. Arun District Council (1976) Ch 179. This is a case where the administrative functions are being exercised for the public benefit. In Attorney-General (N.S.W.) v. Quin (1990) 170 CLR 1 at p 18 Mason CJ observed that:

"... as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing injustice to the individual who acted on the representation than by detriment to that interest that will arise from holding the Executive to its representation..."

In my view when one reviews the applicant's dealings with the respondent the present case does not fall into that category. The facts in this matter, in my opinion, weigh more strongly against the application of estoppel than those in the very similar situations in Dela Cruz and McElligott. It is helpful also to note that in Quin Mason CJ at pp 17 and 18 referred to Gummow J's reasons for judgment in Kurtovic with apparent approval. In those reasons Gummow J regarded certain remarks made by Lee J in Rubrico v. Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681 at p 703 (which were obiter dicta) as being spoken too widely. The applicant in this matter relied on Rubrico.
Furthermore, even if there were room for an estoppel to arise I do not consider that the applicant has acted to her detriment and in any event the question of estoppel cannot arise in relation to the other three statements referred to under the headings (a) to (c) above because they were not the subject of disclosure to Mrs Kitching on 15 May 1989.

The Application for a permit under Regulation 127
94. On the second day of the hearing, Mr P. Macliver, counsel for the respondent informed me that he had received instructions that morning from his client that the respondent had decided that he would reconsider the applicant's application in respect of her application for a permit under Regulation 127. Mr Macliver submitted that in those circumstances, in relation to that particular decision, the applicant is no longer a "person aggrieved" because the respondent has voluntarily agreed to reconsider the application. (I was told that the Minister will await the outcome of my decision in respect of the remainder of the application before reconsidering the application under Regulation 127.) Reference was made to the decision of Perry v. Director of Public Prosecutions (1985) 6 FCR 578. I think Perry's case can be distinguished upon the basis that the applicant in that matter was not a "person aggrieved" because the magistrate's decision was no longer operative once Bollen J had reviewed the matter in the Supreme Court of South Australia. Here the decision of the respondent's delegate is still operative and because of that in my view the applicant remains a "person aggrieved". Whilst Mr Hannan for the applicant made fairly extensive submissions in relation to the application for a permit under Regulation 127 Mr Macliver, understandably in the circumstances did not do so. As the matter is to be reconsidered by the respondent's delegate, I do not propose to deal with Mr Hannan's submissions on this aspect. I think that the appropriate course in relation to this part of the application is simply to remit it to the respondent for reconsideration according to law as he has already undertaken by counsel to do.

For the reasons set out above I propose to dismiss the application insofar as it is concerned with whether the applicant is an illegal entrant and to remit the Regulation 127 matter to the respondent for reconsideration according to law. In view of the lateness of the respondent's decision in relation to the Regulation 127 application and the costs likely to have been incurred in respect of that matter compared to the other matters in issue matter I am inclined to the view that the applicant should only have to bear two-thirds of the respondent's costs and that the respondent should bear one-third of the applicant's costs. However, I will hear counsel on the question of costs. Subject to what may result from counsels submissions (if any) on costs I propose to make the following orders:

1 The matter of the decision of the respondent's delegate made on 1 December 1992 refusing the application of the applicant to remain permanently in Australia on the basis of an extended eligibility (family) entry permit (special need relative) lodged on 11 August 1992 be remitted to the respondent for reconsideration according to law.

2. The application be otherwise dismissed.

3. The applicant pay two-thirds of the respondent's costs to be taxed.

4. The respondent pay one-third of the applicant's costs to be taxed.

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Citations

Kaur, G. v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 23

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

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[1994] FCA 23

09 FEBRUARY 1994