Michalowski, E. & S v Gerry L Hand, Minister for Immigration, Local Government and Ethnic Affairs
[1992] FCA 202
•24 APRIL 1992
Re: EVA MICHALOWSKI and STEFAN MICHALOWSKI
And: MR. GERRY L. HAND, MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT
AND ETHNIC AFFAIRS
No. V G350 of 1991
FED No. 202
Administrative Law
(1992) 35 FCR 265
(1992) 27 ALD 751 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Administrative Law - judicial review - application for permanent resident status - construction of s. 20(2) of the Migration Act 1958 - meaning of "made, or caused to be made, to an officer ... a statement that was false or misleading in a material particular" - whether applicant failed to notify respondent's department, before its grant of permanent resident status, of her separation from her husband - whether any such failure could constitute making, or causing to be made, a statement that was false or misleading in a material particular - whether application was a continuing application which required notification of separation - whether any failure by applicant to so notify could constitute causing to be made ... a statement that was false or misleading in a material particular" - whether respondent delegate could have held "the reasonable belief that the applicant was an illegal entrant"
Migration Act 1958 s. 14, s. 20(2)
HEARING
MELBOURNE
#DATE 24:4:1992
Solicitors for firstnamed applicant: Galbally and O'Bryan
Appearing for firstnamed applicant: Mr T. Hurley
Solicitors for respondent: Australian Government Solicitor
Appearing for respondent: Mr R. Downing
ORDER
THE COURT ORDERS THAT:
1. The decision made by the respondent's delegate on 20 November, 1991 to arrest the first applicant be set aside.
2. The respondent pay the costs of the first applicant in respect of the matters dealt with in this decision.
3. The application be adjourned to a date to be fixed.
4. Liberty to apply be reserved to all parties.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
JUDGE1
The applicants seek "to review the following decisions of the respondent:
1. Decision made on or about 19 November, 1991 to arrest
the secondnamed (applicant) pursuant to s92 Migration Act 1958;
2. Decision made on or about 20 November, 1991 to arrest
the firstnamed applicant pursuant to s92 Migration Act 1958;
3. Decision, or alternatively conduct, of the respondent
through his servants or agents on 20 November, 1991 to treat the firstnamed applicant as a person to whom ss20(2)(a), 20(2)(b)(ii) or 20(1)(c)(ii) Migration Act applied;
4. Decision, or alternatively conduct, of the respondent
to consider the deportation of both the firstnamed and secondnamed applicants pursuant to s59 Migration Act 1958."
Counsel for the applicants and the respondent jointly asked the court to defer consideration of the application in so far as it related to the position of the second applicant and the respondent disputed that items 3 and 4 above constituted "decisions". The only decision to be dealt with in these reasons for judgment is that in item 2. above ("the decision").
The decision was made by Mr Phillip Koraitsas ("the delegate"), as a delegate of the respondent Minister. At the request of the first applicant's solicitors, he supplied a statement of reasons for his decision "to arrest and detain the (first) applicant pursuant to Section 92 of the (Migration) Act" ("the Act"). He described it as a "statement setting out my findings on material questions of fact, referring to the evidence or other material on which these findings were based". It in was the following terms:-
"A) My findings on material questions of fact
1. The applicant is a citizen of Poland, born 17 February 1959.
2. The applicant entered Australia on the 28 October 1988 and was granted a temporary entry permit valid until 23 January 1989.
3. On 17 February 1989 the applicant was granted a further temporary entry permit valid until 28 April 1989.
4. On 11 May 1989 Kaczynska married Leszek Krasnicki.
5. On 16 May 1989 Kaczynska applied for the grant of resident status on grounds of her marriage to Krasnicki.
6. On 29 August 1990 Kaczynska was granted permanent resident status on the basis of her continuing ongoing marriage with Leszek KRASNICKI pursuant to S.6(2) of the Migration Act.
7. On 21 February 1991 the applicant received her divorce decree absolute, having filed for divorce as required by law, that she had been separated from Kraznicki
(sic) for no less than 12 months and that this marriage had irretrievably broken down (sic).
8. Stefan Michalowski was married to the applicant on 21 March 1991.
9. The applicant attended the Department's offices at 55 King Street Melbourne for an interview on the 20 November 1991.
10. The applicant was issued with a Notice of Status under Section 20 of the Migration Act 1958 by Amanda Ruckenstuhl on this day.
11. Further conversation took place between the applicant and myself on November 20 1991 in which the applicant advised the following:
(i) that following her marriage to Krasnicki in May 1989 she separated from him four months later in September 1989.
(ii) she did not notify the Department that her marriage had broken down but continued with her application for residence status.
(iii) that she had notified the Department of a change of address.
(iv) she acknowledged that on 5 May 1989 she had signed the certification under Section 7 paragraph 7.7 from M690 which states : "I undertake to advise the Department of any material change in circumstances while this application is under consideration."
(v) that she had known Stefan Michalowski from Poland in late 1984 / early 1985.
(vi) that she had no family or relatives in Australia.
(vii) that she had no funds for her air ticket from Australia and her savings consisted of approximately A$200 in a State Bank account. B) Decision to arrest and detain
1. I considered the operation of s92 of the Migration Act which states that:
"an officer may without warrant arrest a person whom the officer reasonably supposes to be an illegal entrant."
2. I considered the operation of s20(2) of the Act which states:
"This subsection applies to a person, being a noncitizen, 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 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"
3. I considered the operation of S14(2) of the Act.
4. The applicant, by signing the application for grant of resident status (gors) and certifying paragraph 7.7 of the application, owed a duty to inform the Department of any material change in circumstances.
5. The applicant's separation from her spouse was a material particular in her application for grant of resident status under s6A(1)(b) of the old Act.
6. The applicant failed to inform the Department of her separation.
7. The applicant tendered her passport to the Department for the grant of resident status entry permit pursuant to her application under s6A(1)(b) and failed to inform the Department of her separation from her former spouse, thereby making a false and misleading statement to the Department.
8. I considered that the applicant made a false and misleading statement in a material particular to an officer of the Department and therefore s20 came into effect. By the operation of s20 and s14 the applicant was an illegal entrant.
9. I was therefore of the reasonable belief that the applicant was an illegal entrant and should be taken into custody pursuant to s92.
C. Evidence
In making this decision I considered the Department of Immigration file No. V89/12672 in particular the following;
(i) the information obtained from the applicant at her interview on the 20 November 1991.
(ii) the applicant's Section 20 status.
(iii) the applicant's signed certification on form M690.
(iv) divorce / decree nisi of 21 January 1991.
(v) s6A(1)(b) of the old Migration Act.
(vi) s6(2) of the old Migration Act.
(vii) s20, s14, s92 of the new Migration Act. (Signed)
Phillip Koraitsas"
The first applicant was cross-examined at some length by the respondent's counsel, Mr R. Downing, who in his final address submitted that "there must be a real question as to (her) credit". His criticism of her evidence related to a number of matters, including a statement in her second affidavit which sought to correct a statement in her first affidavit. Emphasis was placed upon a conflict between her evidence on oath in this court and a statement, verified by her affidavit, in her application for dissolution of marriage (exhibit 2), filed in the Family Court Registry at Dandenong. Those matters related to the question whether it was she or her first husband who had moved out of the matrimonial home in October 1989.
Having considered her evidence, including reading my notes and the transcript of her evidence, in my opinion the attack upon her credit must be rejected. Her evidence included the following statements, which I accept:
1. In October 1989 the first applicant's husband, Leszek Krasnicki, left the matrimonial home and moved to a separate residence. The first applicant remained in the matrimonial home until February 1990 when she moved to Stud Road, Dandenong.
2. She was "never aware of any obligation to inform the Department of Immigration of anything after completing and lodging the application (for Permanent Resident Status)"
3. Shortly after receiving a letter from the Department, dated 21 June 1990, which had been forwarded by the Post Office to her new address in Stud Road, Dandenong "... I went into the Immigration Department and advised them of my change of address. I had spoken to someone at the counter at the Department about having changed my address and I was asked to write same down. I now exhibit a copy of same which was part of the Department's file forwarded to my Solicitors. I was asked by the woman on the counter why I had changed address, and I advised her that I had separated from my husband. She advised me that this would be noted on my file".
During cross-examination, the first applicant said that, at the first of the two interviews on 20 November 1991, she was asked if she had "advised immigration about the change in (her) situation ... (i.e.) marital circumstances" and that she had replied "No". Asked further questions as to that matter, she made the following statements:-
"I advised them earlier at the time when I changed my address from Princes Highway to Stud Road, I advised them at that time. Subsequently, at the hearing later on, I didn't mention anything because I was under shock and I didn't mention that then, but I had mentioned it earlier. Mr Kyriakis told me I was to come in there and to talk about discussing the situation about my second husband." .... the whole thing was a shock to me, the interview. I had to remember day by day all the things that I did over the three years."
I accept without hesitation her evidence that she was in shock during that interview which, at the request of the delegate, she had attended for the purpose of discussing the situation of her husband - who had been arrested and detained by the respondent's officers. Further, it seems (from A par 10 of the delegate's statement of reasons - set out earlier) that the first applicant was handed "a Notice of Status under Section 20 of the Migration Act 1958" on 20 November 1991 before the first of the two interviews on that day. That notice (exhibit D) contained the following statements (emphases added):-
"... you are deemed to be an illegal entrant from the date of the grant of your entry permit
.... (you have) made or caused to be made to a person exercising powers, ... under this Act, a statement that was false or misleading in a material particular as you did not advise this Department that you separated from your spouse while your application for the grant of resident status was still under consideration.
.... In view of your status you are subject to the government's policy on illegal entrants, a copy of which is enclosed for your information.
....
You should be aware also that your status as an illegal entrant means that you are liable to be prosecuted under the Migration Act. The question of your prosecution will be considered by an authorised officer."
Those statements were calculated to strike fear into the heart of the strongest person; in this case the first applicant was a person whose knowledge of English was poor, whose husband had been arrested and detained and who believed that her visit to the Department's office related to her husband's situation. It is certainly not surprising that the first applicant was in shock after receiving such a notice shortly before the start of the interview; in those circumstances it is not surprising that she made the incorrect statement during that discussion that she had not "advised immigration about the change in (her) situation".
During the cross-examination of the first applicant, reliance was placed upon the handwritten words appearing in paragraph 7 of the first applicant's application (on printed Form 4) for dissolution of her marriage (exhibit 2). However, those words had been drafted by a court official at the Family Court Registry at Dandenong. The first applicant had taken to that Registry an application for dissolution of marriage, which she had filled in with the assistance of a female friend, who spoke English; in that document the first applicant had made a much longer statement - "about ten sentences" - of the circumstances in which she and her spouse had separated.
I accept the first applicant's evidence that she was told by the court official that "this is much too long, it has to be shortened ... this is how it has to be put ...". Asked in cross-examination whether she had checked what the court official had written as to item 7, the first applicant said:-
"If an official working in a court like that tells me that this is the way it should be done, well that was good enough for me."
I accept her explanation as to why the incorrect statement appeared in paragraph 7 of her application for dissolution of marriage.
I also accept her evidence that she had not decided to apply for a divorce until September or October 1990 i.e. after she had been granted permanent resident status on 29 August 1990.
It should perhaps be added that the respondent's counsel did not object to the reception into evidence of the two affidavits sworn by the first applicant, save that he objected, on the ground of hearsay, to the contents of paragraph 8 (other than the first sentence) of her affidavit sworn 27 November 1991. Further, although the first applicant had not succeeded in having Mr Krasnicki, the first applicant's former husband, attend for cross-examination (as required by the respondent's notice to so attend), he did not object to the contents of his affidavit being received in evidence.
On the evidence accepted by the court, the delegate's finding (A par 11(ii)) that the first applicant "did not notify the Department that her marriage had broken down" was wrong. Plainly, the delegate should have been informed by officers of the Department that she had earlier told them of her separation.
Mr Downing, of counsel, on behalf of the respondent, pointed out that the material before the delegate did not include the affidavits and oral evidence before the court. It may be noted that the respondent elected to call no evidence from the delegate or any other person e.g. as to what facts were known to the delegate, actually or constructively. However, in view of the opinion I have formed in this case, it is not necessary to consider in detail the matters referred to by Wilcox J. in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 et seq.
In my opinion, even if, contrary to the conclusion which I have reached on the evidence before the court, the first applicant had "failed to inform the Department of her separation" (delegate's statement of reasons B par 6), it was not open to the delegate, as a matter of law, to conclude, as he did, (B par 8):
"that the (first) applicant made a false and misleading statement in a material particular to an officer of the Department and therefore s20 came into effect. By the operation of s20 and s14 the applicant was an illegal entrant".
The relevant provisions of s.20(2) of the Act are set out in the delegate's reasons (B par 2 - supra). In my opinion, even if the first applicant had not notified the Department of her separation from her first husband, it was not open to the delegate, as a matter of law, to conclude that by her inaction she had "made, or caused to be made, to an officer ... a statement that was false or misleading in a material particular".
In my opinion in s. 20(2) of the Act the words "the person made, or caused to be made, ... a statement that was false or misleading in a material particular" do not refer to a person who has only failed to supply further information to an officer in relation to events which occurred four months after the application was lodged. The sub-section is referring to a "statement" - not to a failure to supply further information at a later time. In that connexion I am unable to uphold Mr Downing's submissions (a) based upon the words "caused to be made" and (b) that her application was a continuing application and that her "uncorrected" application was, as a result, "misleading in a material particular". In my opinion the respondent's submissions were not supported by the reasons for judgment of the Full Court of this court in Minister for Immigration, Local Government and Ethnic Affairs v Ricardo Dela Cruz (unreported - delivered 28 February 1992).
It follows from the foregoing that, as a matter of law, the delegate could not have had "the reasonable belief that the (first) applicant was an illegal entrant" (statement of reasons - B par 9).
In the circumstances it is not necessary to consider the alternative basis advanced by Mr Hurley, of counsel, on behalf of the applicant in support of the amended application; nor with the written submissions by Mr Downing in respect of those amendments. Nor is it necessary to express any opinion as to the wording of the printed departmental form supplied by the Department for use by applicants for permanent resident status e.g. (1) the uncertainty of the meaning of the words "any material change in my circumstances" (par 7.7 of the Form of Application ), (2) whether those words require an applicant to disclose to the Department a "trial separation" or a separation that proved to be short-lived. Other questions which need not be dealt with are whether s. 20(2) could apply to a person (a) who was unaware of any obligation to supply further information to the Department or (b) who did not properly understand the nature and extent of any such obligation because its meaning and significance had not been explained to him.
For these reasons the decision made by the delegate on 20 November 1991 to arrest the firstnamed applicant pursuant to s. 92 of the Act will be set aside and the respondent ordered to pay the costs of the first applicant in respect of the matters dealt with in this decision.
I uphold Mr Downing's submission that this is not an appropriate case for the making of the declaration sought.
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