McElligott, T.P. v Minister for State for Immigration & Ethnic Affairs

[1993] FCA 631

TIMOTHY PATRICK McELLIGOTT v. MINISTER OF STATE FOR IMMIGRATION AND ETHNIC
AFFAIRS
No. SG6 of 1993
FED No. 631
Number of pages - 11
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
VON DOUSSA J

CATCHWORDS

Immigration - whether statements made in application for grants of a visa and entry permit were false or misleading in a material particular - whether knowledge of the falsity of a statement is required - whether the applicant had suffered a mental illness, or a serious medical, physical or mental disability - whether statements about those conditions and about a criminal conviction were material - role of Court where declaration sought under s.39B of the Judiciary Act 1903 as to status of an alleged illegal entrant.

Immigration Act 1958 sub-ss.14(2), 20(1).

Kyung Chol Kim v The Minister for Immigration, Local Government and Ethnic Affairs, unreported judgment of Wilcox J, 26 February 1993 followed

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

HEARING

ADELAIDE, 18 August 1993

#DATE 10:9:1993

Counsel for the applicant: Mr A S Lisacek

Solicitor for the applicant: Lisacek and Co.

Counsel for the respondent: Ms S Singh

Solicitor for the respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. Application be dismissed.

2. Applicant to pay the respondent's costs to be taxed.

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

JUDGE1

VON DOUSSA J The application commencing these proceedings seeks an order of review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 of a decision of a delegate of the respondent made on 25 January 1993. The application describes the decision as being "that the status of the applicant is illegal due to the determination that s.20 of the Migration Act applies to the applicant". Included in the claims for relief is a claim for a declaration that s.20 of the Migration Act 1958 does not apply to the applicant. At trial, counsel for the applicant explained that the declaration was sought pursuant to s.39B of the Judiciary Act 1903. The case has been conducted by the parties on this footing, and counsel were agreed that a declaration whether or not s.20 of the Migration Act applies to the applicant will determine the status of the applicant.

1. Counsel for the respondent contended that the Court should follow the course taken in Kyung Chol Kim v The Minister for Immigration, Local Government and Ethnic Affairs, as yet unreported judgment of Wilcox J delivered 26 February 1993, No. 92 of 1993. Counsel for the applicant did not argue to the contrary. I accept the submission.

2. The respondent asserts that the applicant is an illegal entrant by virtue of sub-s.14(2) of the Migration Act which reads:
   

"(2) Where a person to whom subsection 20(1) 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 applicant remains in Australia. It is admitted that he is a non-citizen, and that he does not hold a "properly endorsed valid entry permit" or a "properly endorsed valid entry visa". These two expressions are defined in s.4. The applicant has not made an application pursuant to sub-ss. 20(4A) or (5) for either class of endorsement. Accordingly paras.(a) to (c) of sub-s.14(2) apply to him. Whether he is an illegal entrant therefore depends on whether he is a person to whom sub-s.20(1) applies. That sub-section 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) when, or before, the person entered Australia on any occasion, 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 that entry, a statement that was false or misleading in a material particular;

(c) when, or before, a visa was granted or issued on any occasion 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;..."

The respondent alleges that the applicant, in an application for a visitor visa in his name presented to the Australian Consulate General in Los Angeles on 16 May 1988, made statements in answer to two questions that were false or misleading in a material particular, so as to invoke sub-para.20(1)(c)(ii); and that after his arrival in Australia the applicant, on 16 August 1988, presented to an officer of the respondent's department an "Application for the grant of Resident Status in Australia" seeking that class of entry permit in which he made a further statement that was false or misleading in a material particular, so as to invoke sub-para.20(1)(b)(ii).

1. In Kyung Chol Kim v The Minister for Immigration, Local Government and Ethnic Affairs it was held that if a person is an illegal entrant under the Migration Act 1958, that is because of the operation of the Act itself. If the conduct of the person does not make that person an illegal entrant pursuant to the Act, no administrative decision can do so. Accordingly, where a declaration is sought pursuant to s.39B of the Judiciary Act, the issue for the Court, in a case such as this, is to determine whether the entrant made a statement that was "false or misleading in a material particular" within the meaning of sub-s.20(1). If so, the status of the entrant is that of an illegal entrant by operation of law. The conclusion of fact reached by the Court determines the outcome of the proceeding. It is not necessary to separately review the decision of the delegate of the respondent who made the administrative decision that the applicant was a person to whom sub-s.20(1) applied.

2. The applicant is a citizen of the United States of America. He was born on 16 January 1955. He is the holder of a United States passport. In the application for a visitor visa in his name signed and presented by the applicant on 16 May 1988 he made the following two statements upon which the respondent now relies:
   

"17. HAVE YOU OR HAS ANY MEMBER OF YOUR FAMILY INCLUDED IN THIS APPLICATION -

Suffered from any mental illness? NO Been convicted of a criminal offence

in any country? NO"

1. On 16 May 1988, on the basis of the application, a visitor visa was granted to the applicant. He arrived in Australia at Melbourne on 9 June 1988 and was permitted to enter Australia with temporary entry status to remain for six months. The purpose of the applicant's visit was to renew an acquaintanceship with a female friend whom he had met some years before. He did so, and married that person in Adelaide on 7 August 1988. On 16 August 1988 he completed an "Application for grant of Resident Status in Australia".

2. In that application he made the following relevant statements:
   

"SECTION 5: Background of applicant

5.3 Have you been convicted in any other

country of any offence? YES 5.8 Have you now or have you ever had any

serious medical, physical or mental

disability? NO"

1. The applicant was granted permission to work in Australia on 23 August 1988. He was employed by several firms as a salesman. He continued to reside with his new wife. On 1 June 1989 the applicant was issued with an entry permit granting him resident status in Australia. On 19 October 1990 his wife gave birth to his daughter. On 7 May 1991 his relationship with his wife broke up, and she left him taking the daughter with her.

2. Before the issue of the entry permit granting the applicant's resident status, the department made enquiries regarding the applicant's criminal record in the USA in light of his answer to question 5.3 given in his application. That enquiry revealed that the applicant had been convicted of "grand theft of property" in Los Angeles on 7 June 1982. He had been placed on two years summary probation and fined $400. This confirmed information which the applicant had given to the Department on 6 September 1988 when questioned about the offence. The offence concerned the theft of a few items of clothing. The delegate of the respondent responsible for issuing the entry permit granting resident status considered the offence to be a "minor crime" and "in view of the nature of crime, no conviction since, time elapsed and relationship with Australian citizen I consider character clear".

3. During 1992 officers of the respondent's department received information to the effect that the applicant had been diagnosed in the USA as having a bipolar affective disorder (an alternative name for manic-depressive psychosis). The information was investigated by officers of the department. The department came into possession of a very poor photostat copy of the patient information records of the County of Orange Health Care Agency in California, a drug abuse and mental health service, relating to the applicant. Those records proved extremely difficult to interpret but suggested that the applicant had presented to the Orange County Health Care Agency in July 1987 when a bipolar disorder was diagnosed, and that the applicant was treated along orthodox lines for such a condition with lithium carbonate as a mood stabiliser, Tegretol as a mood stabiliser; Haldol as a major tranquilliser and Cogentin as an anti-Parkinsonian medication used to counteract side effects from Haldol. The notes recorded that in mid-July 1987 the applicant was extremely angry about his domestic situation as the relationship with his then wife had broken down. The patient records concluded with the following note under the heading "Transition/Discharge Summary":
   

"Patient entered treatment with a complicated history of bipolar like symptoms and poor response to meds. Various regimens were tried and the patient responded very well to a combination of Lithium, Tegretol, Haldol and Cogentin. Patient went back to working Chemical Sales and began doing well. Several attempts were made to lower and discontinue the Haldol but the patient would have a recurrence of violent outbursts and fantasies as well as auditory hallucinations. Re-institution of Haldol removed these symptoms and maintained patient well. Patient moved out of country to Australia."

1. The applicant was interviewed by a delegate of the respondent on 16 October 1992. The applicant gave a lengthy history of having suffered stress as the result of his engagement as a member of a commando unit in the US Navy which conducted a fierce raid into Cambodia in 1975 in which most members of his company, including himself, were shot. He admitted that at the time of domestic distress in the mid-1980s he had received treatment from the County of Orange Health Care Agency. He said that there had been a period at that time when he had suffered from mental stress but that he would not call his condition a mental illness. He confirmed other information which the delegate had received to the effect that at and after the time when his marriage in Australia broke down, the applicant had been consulting a psychiatrist, Dr Peter Furze.

2. At the interview between the delegate and the applicant, the applicant was invited to submit a report from Dr Furze, and any further information that he thought would be relevant to the questions which the delegate had under consideration, namely whether at the time that the application for a visitor visa was completed the applicant had suffered from any mental illness, and whether, at the time when the application for the grant of resident status was completed the applicant had suffered a serious medical, physical or mental disability.

3. On 7 December 1992 the applicant submitted further information to the delegate. The delegate then sought legal advice, and the officer giving that advice in turn sought advice from a medical specialist in the Department of Health, Housing and Community Services. Following legal advice received by the delegate, the delegate on 25 January 1993 concluded that the applicant had, prior to the completion of the applications for the visitor visa, and for the grant of resident status, suffered a mental illness and a serious medical, physical or mental disability. The delegate determined that the answers to the contrary in the applications constituted statements that were false or misleading in a material particular, and that the applicant was a person to whom sub-s.20(1) of the Migration Act applied. The delegate issued to the applicant a notice of status under s.20 on 25 January 1993 informing him that he was an illegal entrant. These proceedings were commenced a few days later.

4. On the trial of the action a number of papers including letters from doctors, and the copy notes from the County of Orange Health Care Agency were tendered by consent. The Court was invited to give such weight as it thought appropriate to the various statements contained in these documents about the applicant's medical condition. If that had been the extent of the evidence it would have been extremely difficult for the Court to make any satisfactory finding about the medical condition of the applicant prior to his arrival in Australia. However that was not the extent of the evidence. An affidavit from Dr Furze was filed by the applicant. The respondent did not seek to cross-examine Dr Furze, and both parties sought to rely upon his assessment of the applicant's medical condition. I accept Dr Furze's assessment as correct. It is based in part upon the written material before the Court which the doctor has had the opportunity of discussing and confirming with the applicant, and partly upon the doctor's own consultations with the applicant who he has been treating for some time in Australia.

5. The history upon which Dr Furze has based his opinion is that the applicant had a relatively normal childhood and early upbringing. However in the course of his service with the US Navy he suffered a brief but traumatic conflict in 1975 in Cambodia. Following his discharge from the Navy in 1978 the applicant was self-supporting and gainfully employed but had a number of difficulties with unstable relationships which led to him seeking counselling from a psychologist in 1985. The psychologist referred him to the Orange County Health Care Agency where he received treatment as an outpatient from a psychiatrist. Contact with the agency continued over 12 to 15 months, initially weekly, then monthly. The drug treatment previously mentioned was undertaken. A formal diagnosis was not made, and the discharge note (set out above) referred to "bipolar-like symptoms". The discharge letter from the Orange County Health Care Agency also noted, in the space reserved for diagnosis, "bipolar-like illness".

6. Dr Furze had been asked by the applicant's solicitor to give his opinion whether the applicant prior to 16 May 1988 suffered from "mental illness". Dr Furze in his report sought to explain the difficulties which exist in a definition of psychiatric illness and noted that "the boundaries are imprecise and the concept lacks definable precision" other than by the description and definition of signs and symptoms. Dr Furze then answered that question, and the further question whether the applicant had suffered a "serious mental disability", in this way:
   

"Insofar as Mr McElligott attended a psychiatric clinic, received treatment and he, the clinic and society in which he lived accepted this as appropriate then he did in the sociological sense have an illness in that he accepted the patient role. It would be difficult to argue that the Orange County Community Mental Health Clinic acted mistakenly and erroneously by treating Mr McElligott on the basis of their notes. I would note that despite their treatment and fifteen months of observation, they were unable to conclude with a diagnosis compatible with the then in use nosology of DSM III; i.e. the diagnosis was not Bipolar Affective Disorder but a vague descriptive statement of Bipolar like illness. (It would be my view that the cause of this problem was that Mr McElligott's problem was Post Traumatic Stress Disorder and not a psychotic disorder, that the treatment given was transiently helpful but did not address the core problems). It is my belief that Mr McElligott did in fact have a psychiatric illness (PTSD) prior to emigrating but that fact was not and could not have been known by Mr McElligott.

In answer to your query regarding the serious mental disability. Mental disability refers to the effect of functional loss as a result of mental illness. In Mr McElligott's case he showed impairment of relationship as a result of his condition, but no impairment of occupational capacity, no limitation of capacity for social interaction, no impairment of capacity for self care. He attended only as an outpatient. If Mr McElligott had been an Australian Serviceman assessed using Department of Veteran's Affairs rating scales for impairment, his condition would have attracted a rating of 25 (range 0 to 70 most severe) which would be classified as moderate with severe impairment starting at 45. On this basis while a disability was almost certainly present its degree would be unlikely to warrant the descriptive term serious, in that 'serious' was used in the sense of causing economic dependence on the state or others."

1. Dr Furze's opinion that the applicant did suffer a psychiatric illness prior to emigrating is, in my opinion, borne out by the patient information record from the County of Orange Health Care Agency, insofar as that record can be interpreted. In my opinion Dr Furze's assessment confirms that in the ordinary sense of the expression, the applicant suffered a "mental illness" prior to emigrating.

2. In the supplement to the Oxford English Dictionary, Volume II, as further examples of the meaning of "mental" the following entry appears:
   

"mental breakdown, deficiency, derangement, disease, disorder, handicap, illness, incapacity, retardation, subnormality, etc.: general terms indicating temporary or permanent impairments of the mind, due to heredity, birth injury, environment, or accident, which usually need special care; mental health, health of mind as distinct from physical health; mental hygiene, mental health; measures directed towards the preservation or improvement of mental health..."

The Oxford Dictionary relevantly defines "illness" to mean "bad or unhealthy condition of the body...; the condition of being ill...; disease, ailment, sickness."

1. In my opinion the evidence before the Court clearly establishes that the applicant prior to 16 May 1988 when he completed the application for a visitor visa had suffered a mental illness. However I do not think that the evidence establishes that, in ordinary language, his mental illness was one causing "serious medical physical or mental disability".

2. Counsel for the applicant did not dispute that the evidence established that the applicant had suffered a "mental illness" prior to completing his application for a visitor visa. However he contended that the applicant's affidavit evidence and that of Dr Furze established that the applicant did not know that the condition which required treatment was a "mental illness". Counsel argued that the denial of a condition which the applicant did not know he suffered did not amount to making a statement that was "false or misleading in a material particular" within the meaning of those words in sub-s.20(1). Thus, the issue on this aspect of the case comes down to a question of statutory interpretation. Sub-section 20(12) provides:
   

"(12) A reference in this section to a person making, or causing to be made, a statement that was false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular."

Counsel contends that sub-s.20(12) should be understood to mean that it does not matter whether the maker of the statement knew that the statement was a material one, but the maker must know that the statement was false or misleading. In other words a reference to a person making, or causing to be made, a statement that was false or misleading in a material particular would include a person who knowingly made a false or misleading statement who did not realise the statement was material, but would not include a person who unwittingly made a false or misleading statement believing it to be correct.

1. I reject this submission. In my opinion it is not possible to draw any sensible distinction of the kind contended. The collocation of words "false or misleading in a material particular" describes a single characteristic of a statement. It is made clear by sub-s.20(12) that knowledge of the falsity or misleading character of the statement by the maker is not required to render a statement "false or misleading" for the purposes of the section. As case law has established, whether a statement is false or misleading in a material particular is a matter to be objectively determined, and there is no requirement that a guilty mind must accompany the making of the statement to which the section refers: see Bone Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs, unreported judgment of Lockhart J delivered 12 October 1989, No. 694 of 1989, and Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 353-354 where a Full Court said, concerning the question whether a statement was 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."

1. The materiality of the answer "No" to the question whether the applicant had suffered from any mental illness is disputed by the applicant. In Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz at 352 the Full Court said:
   

"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)."

There can be no doubt in this case that the answer given by the applicant to the question whether he had suffered a mental illness was one that conveyed a false or misleading impression of the applicant or his circumstances.

1. The applicant however argues that the question in the application form for a visitor visa is directed to ascertaining if the applicant had suffered an illness of the kind and severity that would attract the application of sub-s.20(1) to the entrant under sub-para.20(1)(d)(i). That sub-paragraph provides that sub-s.20(1) applies to a person, being a non-citizen, who has entered Australia, if on any occasion when the person entered Australia, the person was suffering from a prescribed disease or prescribed physical or mental condition. Regulation 7.11 provides:
   

"7.11 For the purposes of subparagraph 20(1)(d)(i) of the Act, each of the following diseases and physical or mental conditions is a prescribed disease or a prescribed physical or mental condition, as the case may be:

(a) tuberculosis or any other communicable disease of a fatal or serious nature which is a threat to public health in Australia;

(b) any other disease or condition which would be likely to endanger the Australian community during the person's intended period of stay in Australia;

(c) any disease or condition which, during the person's intended period of stay in Australia:

(i) would require significant care or treatment; or

(ii) would require care or treatment (or both) involving the use of community resources in short supply; or

(iii) would prevent that person from pursuing an intended occupation in Australia; or

(iv) would result in such a person becoming a significant charge on public funds."

It is by no means clear that the relevant question in the application form for a visitor visa had no other purpose (this issue was not explored in the evidence or in argument), but even if the sole purpose of the question was to ascertain if sub-para.20(1)(d)(i) had application, that does not assist the present applicant. In determining whether sub-para.20(1)(d)(i) had or would have application to a person seeking a visitor visa, it would be material to know if that person had suffered a mental illness. If the relevant question had been answered in the affirmative, the information so conveyed would be important to the evaluation of the application. At the least the answer would be likely to cause further questions to be asked. Clearly the information sought by the question was information that might be taken into account in making a decision under the Act as to the grant of the visa.

1. I conclude therefore that as a matter of fact the applicant made a statement that was false or misleading in a material particular in answer to the application for a visitor visa. That statement therefore attracts the provisions of para.20(1)(c)(ii), and as a matter of law sub-s.20(1) applies to the applicant. By virtue of sub-s.14(2) he was at 25 January 1993, and is at this date an illegal entrant.

2. The respondent seeks to rely also upon the answer given by the applicant in his application for a visitor visa to the question whether he had been convicted of a criminal offence in any country. This question was falsely answered in that application, but was later truthfully answered in the application for the grant of resident status. The applicant contends that the respondent is now estopped from alleging that the failure to disclose his conviction constitutes a false or misleading statement in a material particular in the application for the visitor visa. It is contended that the estoppel arises from the combination of the facts that the respondent, after being informed of the conviction, issued the applicant with an entry permit granting him permanent resident status in Australia, and that the applicant thereafter relied on that entry permit in that he continued to reside in Australia, and fathered a child who was born in Australia and is now the subject of the jurisdiction of the Family Court of Australia which has made orders in respect of the custody and access.

3. The consequence which flows to the applicant from the making by him of a statement which is false or misleading in a material particular arises by operation of law, under sub-s.20(1) of the Migration Act. It is not open to the applicant to allege that the conduct of an officer or officers of the respondent's department can give rise to an estoppel which prevents the enforcement of the statutory provisions of the Migration Act: Howell v Falmouth Boat Construction Co Limited (1951) AC 837 at 849 where the relevant principle was succinctly stated:
   

"But it is certain that neither a minister nor any subordinate officer of the Crown can by any conduct or representation bar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no breach of it."

This is not a case where the status of the applicant depends upon the performance of a statutory duty or the exercise of a statutory discretion by a delegate of the respondent. In any event, the decision of the relevant delegate or delegates of the respondent to take no action against the applicant in respect of the false statement about his conviction when the truth was disclosed must be viewed against the background that at the time the delegate was also erroneously informed that the applicant had not suffered a mental illness. The decision of the delegate may well have been different had there been a complete disclosure of all material information requested in the application for the visitor visa which bore on the character and circumstances of the applicant. Even if this were a case where an estoppel by representation was open to the applicant, this consideration would prevent there being such an estoppel.

1. The information sought as to whether an applicant for a visitor visa had been convicted of a criminal offence in any country was information that could have an important bearing on the character of the applicant and on the assessment of the application. Even if the conviction were for a minor criminal offence, an affirmative answer to the question would be likely to lead to further questions and investigation about the background of the applicant which would be unnecessary in the case of a person with no conviction. Moreover even a conviction for a minor criminal offence, taken with other information that might be available about an applicant, could influence the outcome of the application.

2. The respondent has therefore established that the applicant also made a statement that was false or misleading in a material particular when he answered that he had not suffered a conviction.

3. That conviction was disclosed in the application made on 16 August 1988 for the grant of resident status, and the question then asked relevant to the medical condition of the applicant was correctly answered. It is now established that the later issue of an entry permit granting the entrant resident status in Australia does not alter the status of the entrant as an illegal entrant under s.14 of the Migration Act: Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz. The contrary was not argued by counsel in this case. The entrant remains an illegal entrant unless and until granted a properly endorsed valid entry permit.
   

4. For these reasons the application must be dismissed. It is not necessary to consider whether or not procedural irregularity occurred on the part of the delegate who made the decision on 25 January 1993 as the status of the applicant, as a matter of law, has now been determined by this Court.