Mian v MILGEA

Re: FAN YONG MIAN and CHAU AI LIEN
And: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G69 oF 1991
FED No. 381
Immigration
(1992) 28 ALD 165 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J.(1)

CATCHWORDS

Immigration - application for review of decision ordering deportation - statements of genuineness of marriage and place of residence made in respect of a grant of entry permit - whether statements false or misleading in a material particular.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958 ss.6, 6A, 13, 20, 59, 60, 92; sub-ss.14(2), 20(2), 20(3), 59(1), 59(2), 60(1); para35(2)(b)

Migration Legislation Amendment Act 1989 s.6; sub-s.6(4)

Statutory Declarations Act 1959

Migration Regulations 1989 regs 178, 179

Dhillon v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 651

Minister for Immigration and Ethnic Affairs v. Naumovska (1983) 88 ALR 589

Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 103 ALR 307

Minister for Immigration, Local Government and Ethnic Affairs v. Dela

Cruz Unreported (Federal Court of Australia, Full Court, 28 February 1992)

R. v. Cahill (1978) 2 NSWLR 453

HEARING

PERTH

#DATE 4:6:1992

Counsel for the Applicants: Mr B.F. Stokes

Solicitors for the Applicant: B.F. Stokes and Associates

Counsel for the Respondent: Mr P.R. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS AND DECLARES THAT:

1. The application be dismissed.

2. The first applicant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The first applicant ("Fan") and the second applicant ("M/s Chau") seek an order under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") to review a decision of the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") made on 17 July 1991 pursuant to s.60 of the Migration Act 1958 ("the Act"), ordering that Fan be deported from Australia.Fan is a citizen of the Peoples Republic of China ("China"). He entered Australia on 11 June 1988 pursuant to an entry permit which allowed him to stay in Australia for a period of seven months to undertake studies in English. Fan was then 36 years of age and had been the proprietor of several small businesses in China for approximately fifteen years. His status was married at the time he entered Australia but he had been separated from his wife ("M/s Wen") for approximately three months. There were two children of that marriage, a daughter aged 9 years and a son aged 2-1/2.

After arriving in Australia Fan resided with a Mr Chau at 182 Subiaco Road in the Perth suburb of Subiaco. At about the same time Fan was introduced to M/s Chau, Mr Chau's sister-in-law. M/s Chau resided at 158 Subiaco Road and was an Australian citizen.
Fan returned to China on 24 September 1988 after obtaining a visa permitting his return to Australia on or before 24 October 1988. Between 24 September 1988 and 24 October 1988 Fan and M/s Wen were divorced and Fan was given custody of the children of the marriage. Fan placed the children in the care of his brother and returned to Australia on 24 October 1988. On 12 December 1988 Fan married M/s Chau.
On 16 December 1988 Fan signed an application for the grant of an entry permit not limited to a specified period ("resident status"). The application was lodged on 10 January 1989. The ground for the application was "marriage to a resident of Australia". In that application Fan stated that his residential address was 158 Subiaco Road, Subiaco. The application included a declaration that the form of application had been completed for the applicant by Chau Phung Linh of 182 Subiaco Road who further declared that he had faithfully and accurately interpreted the information provided by Fan.
On 27 February 1990 Fan, in the presence of an interpreter, was interviewed by an officer of the Department of Immigration, Local Government and Ethnic Affairs ("the Department"). Fan stated that his current address was 158 Subiaco Road, Subiaco and that he had been residing at that address since September 1988. In answer to a later question in that interview Fan informed the officer that he had taken up residence at that address in December 1988. He explained that before December 1988 sometimes he had "stayed" at 158 Subiaco Road in a separate room but at other times he resided with M/s Chau's brother-in-law.
On 6 April 1990 Fan completed a printed form prepared by the Department in which he stated that between the date of his arrival in Australia and 24 September 1988 he had resided at 182 Subiaco Road, Subiaco and that from 24 October 1988 to the date of completion of the form, he had resided at 158 Subiaco Road, Subiaco. The form contained a declaration by an interpreter that the "certification and requirements of (the) form" had been interpreted for Fan and a further declaration that the completed form contained a faithful and accurate translation of the responses provided to the interpreter by Fan.
On 29 June 1990 Fan made a declaration under the Statutory Declarations Act 1959 on a printed form on which several standard typewritten passages had been endorsed, apparently by the Department. Two of the typewritten passages read as follows:

"2. That I live at (158 Subiaco Road, Subiaco, Perth) with my spouse (Ai Lien Chau).

4. That this marriage has not been entered into for the purpose of gaining permanent resident status in Australia for

(myself)."

The italicized words were handwritten additions that had been inserted in the spaces provided.
No direct evidence was adduced to show how it had come about that Fan had made the declaration or to establish when the declaration came into the possession of the Department. The document produced in evidence was a photocopy of a declaration on which a date of receipt stamp, 2 July 1990, had been endorsed.
Fan is unable to read or speak English and at all material times has required the services of an interpreter. No evidence was given of the steps taken to interpret the contents of the declaration to Fan. The photocopy contained no declaration by an interpreter that the contents of the document had been duly interpreted to the declarant. However, no issue was raised that the document had not been properly interpreted to Fan nor was it contested that items 2 and 4 of the declaration contained statements made by Fan to departmental officers.
On 23 July 1990 Fan was granted resident status.
On 1 July 1991 Fan was arrested by an officer of the Department as a person reasonably suspected of being an illegal entrant under s.92 of the Act and on 17 July 1991 the Minister ordered that Fan be deported. The Minister contended that the two parts of the declaration made on 29 June 1990 described above contained statements that were false in material particulars. The statements were alleged to be false in the following respects, namely that on 29 June 1990 Fan was not "living at 158 Subiaco Road with (his) spouse" and that the marriage with M/s Chau had been entered into for the purpose of gaining permanent residence status in Australia for Fan. Fan denied that the statements were false but through his counsel conceded that if the statements were false each was false in a material particular.
On 19 December 1989 the Migration Legislation Amendment Act 1989 ("the Amendment Act") came into force and s.6 of that Act repealed the provisions of the Act relating to visas and entry permits and substituted new provisions. However, sub-s.6(4) of that Act provided as follows:

"In spite of the repeal effected by sub-section (1), the provisions of the Principal Act relating to the granting of visas and entry permits as in force immediately before the commencement of this section continue to have effect after that commencement for the purposes of applications for visas or entry permits made before that commencement."

The provisions of the Act relating to the granting of entry permits as in force immediately before the commencement of sub-s.6(4) of the Amendment Act were contained in ss.6 and 6A of the Act and in so far as they are relevant to the present matter were as follows:

"6.(1) ...

6.(2) An authorized officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

(2A) ...

(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.

(4) ...

(5) An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part."

(6) ...

6A.(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) ...

(b) he is the spouse, ... of an Australian citizen ...;"

The combined effect of ss.6 and 6A was to make the spouse of an Australian citizen upon application eligible for the grant of an entry permit and to impose an obligation on the Minister, or an officer authorized by the Minister, to consider and decide whether to exercise the discretion to grant an entry permit provided by the Act.

"If an applicant for the grant of an entry permit qualifies for such a grant, being the spouse of an Australian citizen, the decision-maker becomes empowered to and required to exercise a discretion to grant or refuse an entry permit. The grounds for the exercise of that discretion are not detailed in the Act, but they entail consideration of the welfare of the Australian community and consideration of the interests of the Australian citizen's spouse including the interests of any person for whom the citizen may be responsible: see Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at 354; Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (No 2) (1983) 51 ALR 575 at 577." (Dhillon v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 651 at p 665.)

Sub-section 20(2) of the Act in so far as it is relevant to this matter provides as follows:

"(2) 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) after entry, an entry permit has been granted to the person authorising the person to remain in Australia; and

(b) in respect of the grant of that entry permit:

...

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

It was not in issue that a statement had been made, or had been caused to be made, to an officer or person exercising powers or performing functions under the Act nor was it in issue that the statements contained in the statutory declaration made by Fan on 29 June 1990 were in respect of the grant of the entry permit granted on 23 July 1990.
Having regard to the width of matters relevant to the exercise of the discretion to grant an entry permit under the Act as the Act stood before 19 December 1989, it may be accepted that a statement as to Fan's place of residence eighteen months after his marriage would provide a fact relevant to the exercise of that power. The relevance of facts relating to the nature of the marriage entered into by Fan and M/s Chau would be even more apparent. (See Minister for Immigration, Local Government and Ethnic Affairs v. Dela Cruz, Unreported (Federal Court of Australia, Full Court, 28 February 1992 at pp 7-8.)
It also was not in issue that if sub-s.20(2) applied to Fan he had not given to the Secretary of the Department the notice required by sub-s.20(3) of the Act and that at material times Fan was not the holder of a properly endorsed valid entry permit for the purpose of sub-s.14(2) of the Act.
Sub-section 14(2) of the Act reads as follows:

"(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."

By para 35(2)(b) of the Act, if sub-s.14(2) applies to the holder of a valid entry permit the permit is to be taken to have been cancelled when the permit was granted. Therefore, if sub-s.14(2) applied to Fan he became an illegal entrant on 23 July 1990.
The powers of deportation set out in ss.59 and 60 of the Act read as follows:

"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.

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 unless the person consents, in writing, to being deported sooner."

The period of grace referred to in sub-s.59(1) of the Act and defined in s.13 of the Act would have expired twenty-eight days after 23 July 1990 if sub-s.14(2) applied to Fan.
The prescribed procedures referred to in sub-s.59(2) of the Act are contained in reg.178 of the Migration Regulations 1989 ("the Regulations") which reads as follows:

"178. For the purposes of subsection 59(2) of the Act, the following procedures are prescribed to be followed by the Minister in relation to a person referred to in that subsection:

(a) to ascertain whether the person has been granted, or is an applicant to be granted, refugee status or territorial asylum;

(b) to find out from the person whether the person has applied to be granted refugee status or territorial asylum;

(c) to ascertain whether the person:

(i) is an applicant for an entry permit; or

(ii) has applied to a review authority following a decision by the Minister refusing to grant an entry permit;

(d) to verify that the person has not notified the Minister that the person is subject to a court order that is in force affecting the Minister's exercise of the power to order the deportation of the person;

(e) to verify that 2 working days have elapsed after the day on which the person was arrested under section 92 or 93 of the Act, as the case requires, or, if the person applied to the Minister under subparagraph 42(1A)(a)(iv), 7 working days have elapsed after the day on which he or she was so arrested."

The prescribed matters referred to in sub-s.60(1) of the Act are contained in reg.179 of the Regulations which reads as follows:

"179. For the purposes of subsection 60(1) and 82(1) of the Act respectively, the following matters are prescribed to be considered by the Minister in relation to a person referred to in whichever of those subsections is applicable:

(a) whether the person is an illegal entrant;

(b) whether the person has been given in accordance with these Regulations a notice of the intention to refer to the Minister the question of the exercise of the power:

(i) to order the deportation of the person; or

(ii) to require the person to leave Australia; as the case requires;

(c) whether the person has been granted, or is an applicant to be granted, refugee status or territorial asylum;

(d) whether the person:

(i) is an applicant for an entry permit; or(ii)

has applied to a review authority following a decision by the Minister refusing to grant an entry permit;

(e) whether the person is subject to a court order that is in force affecting the Minister's exercise of the relevant power referred to in paragraph (b);

(f) whether 2 working days have elapsed after the day on which the person was arrested under section 92 or 93 of the Act, as the case requires, or if the person applied to the Minister under subparagraph 42(1A)(a)(iv), 7 working days have elapsed after the day on which he or she was so arrested."

The uncertain relationship between the mandatory obligation to order deportation under s.59 and the discretion to order deportation under s.60 has been referred to before. (See Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 103 ALR 307 at p 314.) In fact in respect of Fan all of the prescribed procedures referred to in s.59 and set out in reg.178 of the Regulations were followed by the officer whose recommendation to the Minister that Fan be deported was accepted by the Minister and adopted as his order.
Pursuant to sub-s.60(1) and reg.179 of the Regulations the Minister, before ordering the deportation of an illegal entrant, is to consider whether the person is an illegal entrant. Neither the discretion to order deportation under s.60 nor the obligation to order deportation under s.59 is grounded upon the Minister's satisfaction that the person is an illegal entrant. An order for deportation rests upon whether, in fact, the person is an illegal entrant.

In the present case the statutory consequences set out in sub-ss.14(2) and 60(1) depend upon whether sub-s.20(2) applies to Fan. It is not a state of belief on the part of an officer that makes sub-s.20(2) applicable but the existence of a state of fact. Such a fact has to be established in the ordinary way. (See Minister for Immigration and Ethnic Affairs v. Naumovska (1983) 88 ALR 589 per Lockhart J. at pp 601-602.)
Therefore, part of the hearing of this application included viva voce and affidavit evidence directed to an issue of fact, namely whether Fan had made, or caused to be made, a statement that was false in a material particular in respect of the grant of the entry permit granted on 23 July 1990.
The application of s.20 of the Act has serious consequences and it is a type of law which is to be read with "scrupulous care, and in (its) narrowest, rather than in some wider, sense." (See Sciascia p 315.) Therefore, if a statement alleged to be false carries several meanings the statement must be shown to be false in all respects.
It also follows that if the provisions of s.20 are to be relied upon, the material said to show the existence of facts which attract the operation of the section should be reasonably compelling and show circumstances intended to be included within the scope of the section.
In the present case, the printed statement to be completed by a declarant "I live at ... with my spouse" must be taken to be a statement directed to the question of whether a matrimonial home is maintained by the declarant and his spouse.
Accordingly, the case presented by the Minister was directed to showing that at the relevant time Fan had abandoned his matrimonial domicile at 158 Subiaco Road and had established a place of residence for himself at 15 Leumeah Street, Armadale. With regard to the allegedly false statement that the marriage had not been entered into for the purpose of gaining permanent resident status in Australia for Fan, the hearing was conducted on the understanding that the meaning of that statement was to be taken to be that the marriage had been entered into for the sole purpose of gaining permanent resident status for Fan and that the falsity of that statement was to be demonstrated by showing that the marriage was "not genuine". That is to say, although it was accepted that the marriage was legally valid and effective and that thereunder Fan acquired the status of a spouse of an Australian citizen, it was contended that effectuation of that change of status was the sole purpose of the parties to the marriage and that there was no intention that the usual concomitants of marriage be performed or observed by Fan and M/s Chau. (See R. v. Cahill (1978) 2 NSWLR 453 per Street C.J. at p 455, per Mahoney J.A at pp 466-467).
The burden of proving relevant facts to demonstrate the falsity of the statements made by Fan lay upon the Minister. The existence of such facts grounded the exercise of the statutory power vested in the Minister. This was not a case where a finding of fact was part of the exercise of a statutory power. In the latter circumstance an onus would lie on a party challenging the exercise of that power to show that the finding of fact involved an error of law.
The relevant evidence was as follows:
M/s Chau deposed that after marriage in December 1988 she and Fan commenced to live as husband and wife at 158 Subiaco Road. In respect of the period between December 1988 and November 1989 there was no evidence to contradict that statement.
In August 1989 Fan had sought to take an assignment of a lease of a property on which a business of vegetable farming was conducted at 14 Lake Road, Kelmscott. Fan was advised by solicitors that the lease would not be assigned to Fan as a non-citizen without resident status and only an assignment to Fan and his wife M/s Chau would be considered. Between August 1989 and June 1990 Fan was either employed in or carried on the business of vegetable farming at the Kelmscott property. In about June 1991 a formal assignment of the lease of the Kelmscott property to Fan was executed, the assignment having effect from 1 July 1990. The assignment of lease and correspondence from solicitors relating to the assignment each referred to Fan's place of residence as 158 Subiaco Road. As a result of his income earning activities Fan filed income tax returns. His first return was in respect of the 1990 financial year. The return was prepared on 6 February 1991. In that return Fan inserted in a space headed "Residential Address or Business Address" the words "C/o Lot 14 Lake Street, Kelmscott". No details were inserted in the space headed "Spouse". The return for the 1991 financial year was prepared in November 1991. The same address was inserted and no details of the taxpayer's spouse were included in the space provided in the form. Fan was cross-examined about the returns and stated that as M/s Chau was filing her own taxation returns he considered it unnecessary for her to be involved and, furthermore, he had not been asked to provide any information in that regard by the tax agent who had prepared the return on his behalf. The tax agent conversed with Fan in Cantonese, although it was not suggested that the whole of the contents of the form was separately interpreted to Fan before he signed it.
On 6 January 1990 M/s Wen arrived in Australia and was granted a temporary entry permit for the purpose of undertaking studies in English. M/s Wen was met by Fan when she disembarked at Perth Airport. Between 6 January 1990 and 26 February 1990 M/s Wen resided at the Kelmscott property. In February 1990 Fan assisted M/s Wen to inspect a number of residential properties offered for sale. On 26 February 1990 M/s Wen contracted to purchase a property at 15 Leumeah Street, Armadale. Settlement of the purchase was effected in about April 1990 with the use of funds M/s Wen had forwarded to Fan from China, being funds Fan had settled on M/s Wen at the time of their divorce.
In August 1990 Fan made application to sponsor the migration to Australia of his two children.
Fan's children arrived in Australia in late March 1991. In April 1991 they were enrolled as students at a school in the vicinity of Kelmscott. M/s Chau said that Fan's children resided at the Subiaco address for a short period in March/April 1991 but differences arose between Fan and herself in respect of Fan's children and her child and Fan had taken the children to the market garden property.
According to M/s Chau and Fan they separated on 4 May 1991. It was Fan's evidence that after separation he commenced living at 15 Leumeah Street, Armadale, at the house of his former wife, although Fan said it was not the co-habitation of husband and wife. No evidence was adduced from M/s Wen. When arrested Fan was asked whether the M/s Wen residing at 15 Leumeah Street, Armadale was his former wife and Fan denied that she was. In his evidence to the Court Fan admitted that answer was false. Also, at the time of arrest Fan denied that the person depicted in the photograph in M/s Wen's passport was the same person depicted in a photograph of Fan and his former wife. In his evidence Fan admitted that answer to be false and explained that he had given false answers in fear of the consequences that may result if he told the truth.
When interviewed on 4 July 1991 Fan stated that from about August to September 1989 he had started to spend a number of evenings each week at the Kelmscott property according to how many farm-hands were available to relieve him of early morning duties in the market garden. He stated in that interview that he had moved into 15 Leumeah Street in about April 1991.
Evidence was adduced from persons residing at 13 and 16 Leumeah Street, Armadale who said that when M/s Wen took up residence at 15 Leumeah Street in about April 1990 she shared occupation of the premises with a male person of Asian extraction who drove a white Mitsubishi van. Fan agreed that at all times he was the owner and driver of a white Mitsubishi van but denied that he commenced to reside at 15 Leumeah Street until May 1991.
The neighbours were not asked to identify Fan in Court. The evidence of identification relied upon was, in part, confirmation by the neighbours that a photographic depiction presented to them by an officer of the Department at the time of swearing their affidavits matched a photographic representation shown to them some months previously by a departmental officer and, furthermore, that it depicted the person they had seen residing with M/s Wen. Such a method of identification was obviously unsatisfactory and I was unable to place much weight upon it. However, where the evidence of the neighbours consisted of observations of the movements and pattern of conduct of the driver of the white Mitsubishi van, I am prepared to draw the inference that the observations of the neighbours described the movements and conduct of Fan. Fan did not deny that he was present regularly at 15 Leumeah Street from April 1990 but claims that he arrived in the early morning to take M/s Wen to the market garden property or in the evening to return her to her home.
Evidence to like effect was given by Wen Kun Cheng ("Wen") another citizen of the Peoples Republic of China who arrived in Australia as a student in January 1990 and was granted a temporary entry permit. Wen, not a relative of M/s Wen, had obtained employment at Fan's market garden shortly after his arrival in Australia and commenced living at 15 Leumeah Street soon after M/s Wen purchased the property. Wen stated that he resided at 15 Leumeah Street from April 1990 to October 1990. Although at the conclusion of cross-examination Wen admitted that in his affidavit he had deposed to a wrong flat number as his current address, I found his evidence, as best as one could judge where such testimony is given through an interpreter, to be consistent and apparently truthful and I reject the suggestion put to him in cross-examination that he had not resided at 15 Leumeah Street at any time between April and October 1990. No foundation was laid for the assertion and I accept Wen's denial of it.
However, it does not follow that Wen's testimony is necessarily correct in all respects. He stated that Fan occasionally slept at 15 Leumeah Street but his recollection of the regularity of that event may well have been faulty.
M/s Chau stated that Fan commenced to spend four to five nights a week at Kelmscott from about June or July of 1990. M/s Chau was cross-examined and her credit challenged by confronting her with various documents she had signed and apparently lodged with the departments of government before and after her marriage.In September 1988 M/s Chau had borne a child, the father of whom was another citizen of the Peoples Republic of China who had returned to China at the end of 1987. In support of an application for the grant of a Social Security benefit in respect of that child, M/s Chau had advised the Department of Social Security in November 1988 that she would marry the child's father if he were able to come to Australia or if, in December 1988 she could go to China to meet him. The man concerned did not come to Australia and M/s Chau did not go to China. On 9 December 1988 M/s Chau advised the Department of Social Security that she had discontinued her claim for a benefit stating that she would commence work on 12 December 1988. There was no mention of her impending marriage to Fan on that date, notice of which had already been given to the Registrar of Marriages.
In August 1989 and February 1990 in forms applying for an unemployment benefit M/s Chau stated that her husband did not have permanent residence nor permission to work and stayed at home caring for her child and doing home duties while she looked for employment.
In September 1990 in an application to a State department for a rental subsidy M/s Chau did not include Fan as a person living in the home at 158 Subiaco Road not receiving an income. In a like form lodged in March 1991 M/s Chau again omitted any reference to Fan but the form included an endorsement made by a departmental officer to the effect that Fan was not living in the house at 158 Subiaco Road, had moved into farm accommodation to work at "Lake Street, Armadale" and was receiving no income at that time. Counsel for the applicants expressly consented to the endorsed comment being part of the evidentiary material contained in the document.
In her income tax return for the year ending 30 June 1989, an undated copy of which by consent was produced in evidence, M/s Chau left blank the section of the form which required the insertion of the full name of her spouse and the section which required the insertion of details of the date of marriage if marriage had taken place since the preparation of the last return. The 1988 return was not produced and, therefore, the date of preparation of that return was unknown. M/s Chau was not cross-examined as to the contents of the 1988 return. It appeared to be accepted that the copy of the 1989 return produced in evidence was a true copy of the return lodged with the Commissioner of Taxation by M/s Chau.
Evidence was also adduced from neighbours who resided at 160 Subiaco Road from November 1989. The tenor of their evidence was that after taking up residence they had not noticed Mr Fan nor his Mitsubishi van but the male neighbour had noticed the appearance of such a van in about July 1991.
Having considered the issues raised by the evidence and given close scrutiny to the evidence, I am not satisfied that it has been shown that as at 12 December 1988 Fan and M/s Chau underwent a form of marriage solely for the purpose of changing Fan's legal status. It was agreed that after the marriage M/s Chau received a sum of $10,000 from Fan but it did not appear to be disputed that the sum was applied in providing for the better furnishing of the household at 158 Subiaco Road. It was further submitted that some adverse inference could be drawn from the transfer of a further sum of $10,000 from Fan to M/s Chau in August 1990 by having regard to the grant of resident status to Fan in July 1990 but Fan was not cross-examined about the matter and M/s Chau's statement that the sum was held by her for their joint use was left unchallenged.
The demeanour of M/s Chau did not suggest that she was an untruthful witness although the worth of that assessment may have been lessened by the fact that the major part of her evidence was given through an interpreter. The matters raised in the documents put to her in cross-examination may have suggested some extraordinary elements in the relationship between herself and Fan but her explanations were not entirely unbelievable. However, her evidence may have been directed to assisting Fan's case in stating that it was not until May 1991 that Fan ceased to reside at 158 Subiaco Road. Although I did not conclude that M/s Chau's evidence was unreliable, I am satisfied that in all practical respects Fan had ceased to live at 158 Subiaco Road at a time much earlier than May 1991.
As to Fan's evidence I accept that between September 1989 and April 1990 his attendance at 158 Subiaco Road was intermittent and that most days and nights were spent at the Kelmscott market garden property. But I do not accept Fan's evidence that between April 1990 and July 1990 he continued to reside at Kelmscott and several nights a week at 158 Subiaco Road. I have accepted that the import of the evidence of the neighbours at Leumeah Street is substantially accurate. I have not done so without regard to the caution that has to be exercised in respect of the recollections by neighbours of casual observations. The need for such caution is particularly pertinent where the recollections relate to no more than observations of the presence or absence of a motor vehicle and where there has been no close meeting with, nor introduction to, the person, the subject of those recollections.The weight of the evidence of the neighbours also has to be assessed by having regard to the prospect of those parties relying on more recent observations to support recollections of earlier days but I am satisfied that they had good reason to recall the events in April 1990 when neighbours, well known to them, left and new neighbours arrived. Observation of the regular presence on the property at 15 Leumeah Street after M/s Wen moved in of a van of the type and colour of vehicle owned and driven by Fan behind closed gates at 3 a.m. is a matter of which a neighbour might be expected to retain a memory sufficient for recall. Fan's explanation that he collected M/s Wen before sunrise and slept at the premises on occasions does not accord with the regular presence of the van and of its driver observed by the neighbours.
Having given due regard to the qualifications I have expressed I am satisfied that the only reasonable conclusion open on the material is that Fan had established another place of residence other than the matrimonial home by June 1990. I am satisfied that he took up residence at Armadale in about April 1990 and that as at 29 June 1990 any statement made by him that he lived at 158 Subiaco Road with M/s Chau was either false or at the very least misleading.It follows, therefore, that as at 23 July 1990 Fan was an illegal entrant and became liable to an order for deportation pursuant to the power provided in the Minister by s.60 of the Act.
The application for the order of review contended that the Minister failed to give consideration to relevant matters and gave consideration to irrelevant matters in the course of the exercise of his discretionary power. I am satisfied that the Minister took into account only those matters he was required to consider and indeed to which his consideration was restricted by s.60 of the Act. No ground for review of the Minister's decision on that basis has been demonstrated.
The application further contended that a matter of policy had been applied without regard to the merits of the case but no such rule or policy was identified which deflected the Minister from his statutory task and the ground is entirely without substance.
Further, it was contended that the decision was wholly unreasonable but having found that the statutory requirements were observed, little room for such a contention remains.
It was further contended that the Minister's decision involved an error of law in that the Minister did not have before him all the relevant material necessary for the making of that decision. However, the materials to which that ground referred related to the question of fact whether Fan was an illegal entrant. As a matter of objective fact he was as I have found. The only issue is whether the Minister was able to rely upon enquiries and reports thereon made by officers of his Department as sufficient to satisfy the requirements imposed on the Minister by s.60 and reg.179 of the Regulations. Obviously the Act does not require the Minister to make primary enquiries personally and as long as it is apparent that the enquiries made by the officers and the materials relied upon by them support the reported results of those enquiries the Minister is entitled to consider that material for the purpose of reg.179 of the Regulations.
No ground has been made out for the review of the Minister's decision and the application will be dismissed.

[1992] FCA 381

04 JUNE 1992