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

[1993] FCA 816

TIMOTHY PATRICK McELLIGOTT v. MINISTER OF STATE FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. SG100 of 1993
FED No. 816
Number of pages - 5
Immigration
(1993) 46 FCR 112
(1993) 123 ALR 273

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
JENKINSON, SPENDER AND FRENCH JJ

CATCHWORDS

Immigration - Entry permits - Statement false or misleading in a material particular - Objective determination required of each element of the description of the statement.

Migration Act 1958 - ss. 20(1), 20(2), 22(2)

HEARING

ADELAIDE, 8 November 1993

#DATE 12:11:1993

Counsel for the Appellant: Mr A. S. Lisacek

Solicitors for for Appellant: Lisacek and Co.

Counsel for the Respondent: S. Singh

Solicitors for the Respondent: Australian Government

Solicitor

ORDER

Appeal dismissed.

JUDGE1

JENKINSON, SPENDER AND FRENCH JJ Appeal from the dismissal by a single judge of the court of an application for an order of review in respect of an administrative decision under the Administrative Decisions (Judicial Review) Act 1977. The decision, by a delegate of the respondent, was expressed by that delegate to be a determination that the appellant was a person to whom subsection 20(1) of the Migration Act 1958 applied and that he became an illegal entrant on entry to Australia. Among the claims for relief in the originating application was a claim for a declaration that that subsection does not apply to the appellant. The learned judge, von Doussa J, accepted the proposal that he consider whether the declaration should be made, pursuant to s.39B of the Judiciary Act 1903.

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

........ ........ ........ ........ ........ .......

(b) when, or before, the person entered Australia, he or she: ........ ........ ........ ........ ........ .......

(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 in respect of the person, he or she:

........ ........ ........ ........ ........ .......

(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;"

1. The appellant made, on an application for a visa to enter Australia, a written statement that he had not suffered from any mental illness. The statement was made in Los Angeles in May 1988. Upon that application he was granted the visa in Los Angeles and entered Australia in June 1988, having been granted an entry permit for six months. The learned trial judge found that before the statement was made the appellant had suffered from a mental illness and concluded that the making of the statement satisfied the conditions specified in s.20(1)(b)(ii).

2. Subsection 20(12) provides:
   

"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."

1. There was evidence which might have justified a finding that the appellant did not know that his statement was false. Counsel for the appellant submitted to von Doussa J and to this court that subsection 20(1), on its proper construction, should be read as though the words following the word "is" had been "a reference to a person making, or causing to be made, a statement the person knew to be false or misleading, whether or not the person knew that the statement was in a material particular false or misleading". We agree with von Doussa J that there is no justification for the suggested construction: the subsection requires an objective assessment of the whole of the condition expressed by the adjectival clause, "that was false or misleading in a material particular". We agree also with his Honour's conclusion that the statement was false or misleading in a material particular, and for the reasons which the learned judge gave.

2. Subsection 14(2) provides:
   

"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, which-ever 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."

1. Subsection 22(2) provides:
   

"A person who has become an illegal entrant under subsection 14

(2) for a particular reason stops being an illegal entrant if and when there is granted to the person a properly endorsed valid entry permit, and does not otherwise stop being an illegal entrant."

1. The expressions "properly endorsed valid entry permit" and "properly endorsed valid entry visa" are defined. Section 4(1) 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;"

1. No such a permit or visa has been granted to the appellant. It was suggested by counsel for both parties that the complex scheme ordained by the Migration Act 1958 and the Migration Regulations might not now afford the appellant a means of setting in motion the steps which lead to an endorsement of the kind specified in paragraph (b) of the definition of "properly endorsed valid entry permit". The appellant being now in Australia and desiring to remain here, and s.4 of the Migration Legislation Amendment Act 1989 having commenced on 19 December 1989, counsel for the appellant submitted that subsection 22(2) should be "read down" so as not to apply to a person whose circumstances are of the kind in which the appellant stands. In addition to the circumstances to which reference has already been made, counsel specified other circumstances:
   

1. That the appellant had not understood the materiality of his false statement;

2. That the appellant had married in this country on 7 August 1988 a wife who on 19 October 1990 had borne him a daughter, access to whom by the appellant had been granted by the Family Court of Australia after he and his wife separated in May 1991.

1. The appellant, not being a citizen of this country, is liable to deportation while he remains in Australia. His daughter is an Australian citizen who will be deprived of her father's company while she remains here in her mother's custody after her father has been deported. These considerations, it was submitted, impelled to the "reading down" suggested.

2. In our opinion those circumstances and considerations afford no warrant for giving subsection 22(2) any but its literal meaning. They are circumstances and considerations of a kind which the legislature would have had in contemplation when s.22 was enacted in 1989, after more than 30 years' experience of the operation of the Migration Act 1958.

3. It was submitted that an estoppel arose, against treating the appellant as an illegal entrant, by reason of events which occurred after he had made another statement that was false in a material particular. That statement, made on the same application for a visa in Los Angeles in May 1988, was that he had not been convicted of a criminal offence in any country, whereas he had been convicted of theft in Los Angeles in 1982. In August 1988, after his entry into Australia, he sought an entry permit authorising him to remain in Australia. In his application for that entry permit he disclosed his conviction, of the existence of which the respondent's officers had also received confirmatory information from Los Angeles before the entry permit authorising him to remain here was granted in June 1989. It was submitted to von Doussa J, and to this court, that the estoppel arose by reason of the circumstances that that 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 here and marrying here and becoming the father here of an Australian citizen.

4. 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.

5. The refusal of the declaration sought and the dismissal of the application by von Doussa J was in our opinion correct. The appeal must be dismissed.

6. We wish to make it clear that we express no opinion as to whether the appellant has available to him a means of invoking the exercise of a power, or the performance of a duty, to bring to an end the condition of being an illegal entrant while he remains in Australia.