Minister for Immigration & Ethnic Affairs v Naumovska, Trendafila

[1983] FCA 226

Re: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and JOHN MENADUE
And: TRENDAFILA NAUMOVSKA
No. G91 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Franki J.
Lockhart J.

CATCHWORDS

Administrative Law - Judicial Review - Conduct preparatory to decision to deport - Prohibited immigrant - Passenger card containing false information produced for purpose of securing entry into Australia - Whether knowledge of falsity required - Whether purpose assessed subjectively - Whether false information must in fact secure entry.

Administrative Decisions (Judicial Review) Act 1977 - secns. 5, 6, 10.

Migration Act 1958 - secns. 5, 6, 7, 11, 11A, 16(1), 18, 31, 38, 39, 40, 42, 66D, 67.

Migration Regulations - regs. 3 and 4.

HEARING

SYDNEY

#DATE 5:9:1983

ORDER

1. The appeal be dismissed.

2. The appellants pay the respondent's costs of the appeal.

JUDGE1

This is an appeal from a Judge of this Court (Sheppard J.) exercising jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). Except where necessary to explain my reasons, I shall not repeat the facts or relevant statutory provisions set out in the judgments of Franki J. and Lockhart J.

The case has been argued, here and below, primarily in reliance on s.6 of the Act, on the basis that conduct had been engaged in for the purpose of making a decision to deport the respondent, Mrs. Naumovska. The letter relied upon as evidence of the conduct states that it had been decided that the respondent was a prohibited immigrant, and, quite possibly the case is more appropriately supported by s.5. Nothing turns on this aspect. It can be assumed that the letter is sufficient evidence to support proceedings under the one section or the other.

The learned trial Judge from whom the appeal comes very carefully considered the facts, and I would regard it as a singularly inappropriate case for an appellate court to interfere with his findings.

Following authority (R. v. Governor of Metropolitan Gaol; Ex Parte Di Nardo (1962) 3 F.L.R. 271, to which I would add references to the Canadian cases Minister for Manpower and Immigration v. Brooks (1973) 36 D.L.R. (3d.) 522 and Re Litas and Minister of Manpower and Immigration (1976) 57 D.L.R. (3d.) 304) his Honour was of the view that under s.16(1)(b) of the Migration Act 1958 it is not necessary for the authorities to prove that the person entering the country knew that the passenger card contained information "that is false or misleading in a material particular".

I agree, with respect, with the philosophy governing the approach of Sholl J. in Di Nardo's Case and of the Judges in the Canadian cases to which I have referred, which recognises how dependent the immigration authorities are on information provided by intending immigrants, and of the need, where there is a selective immigration policy, to make those people responsible for the information supplied by them, or on their behalf.

This being so, it might have been thought unlikely that a knowledge was necessary that production of the card was for the purpose of securing entry into Australia. It may have been thought sufficient that the card was produced and that production did have the result referred to. It is indeed difficult to divorce the two aspects of mens rea. What "secures entry" is, one imagines, more within the knowledge of the officials than the person entering. All that most people know is that they are required to complete the cards and hand them (with their passport, or visa (as to which see s.11A of the Migration Act and reg. 4 of the Migration Regulations), or both) to the immigration or customs official at the head of their queue.

I will commence to analyse the case on the subjective basis used by the trial Judge in relation to the purpose of production, but as appears from what I have just said and my further comments, I have found some difficulty with this concept.

The Migration Regulations when dealing with passenger cards do not impose requirements on immigrants only, but on all "overseas passengers" (see reg. 4). The requirement is not expressed as a standing one, but completion, signing and presentation are expressed to be at the discretion of an officer. The furnishing of a card that is false or misleading in a material particular is an offence (s.31 of the Migration Act). The passenger card, it seems, is often used principally for administrative or statistical purposes.

It would seem also to have other purposes. One is to corroborate or elaborate information about the entrant provided on his or her visa and passport. The visa itself does not entitle the immigrant to enter Australia (see s.11 of the Migration Act). It is an "entry permit" which has this effect (s.6). The "entry permit" is commonly stamped on a page of the passport. In this case the visa was for "resident entry" and was "valid for entry subject to grant on arrival of an entry permit . . . ". It was issued in Belgrade, was stamped on the respondent's passport and bore the endorsement, "must accompany mother, holder of visa No. 16178P". She was in her mother's company at the time of entry. When the visa was granted, the applicant (respondent to this appeal) was not married; her marriage took place later, before she left for Australia. Her husband did not accompany her to this country.

The passenger card, after presentation, bore a stamp, and writing: "Permitted to enter and remain for residence . . . " but presumably she did not see this endorsement as the card is retained by the immigration official at the barrier. However, an endorsement in those terms was made on her passport.

According to the evidence the respondent, as at the time of entry, would only have been granted an entry permit (other than a temporary entry permit) on the basis that she was a dependant child of her parents and was not married. A document in standard form is commonly sent to prospective immigrants in the position of the respondent in effect notifying them that approval for immigration is subject to their not being married. There is no evidence that she received any such document and she says she was not given orally any such information. Her inability, or limited ability, to read or understand Serbo-Croatian (she being Macedonian) seems genuinely to have been a problem. This was the view of the learned Judge.

His Honour, accepting that mens rea was only necessary in relation to the purpose of production of the passenger card, came to a conclusion on that matter which he expressed as follows:

". . . it cannot in truth be said that she produced the card, containing as it did a false entry, for the purpose of securing entry into Australia."

For the purposes of the Act, if the person who made the decision applied the law correctly and there was evidence upon which he could reasonably reach the conclusion he did (see secns. 5(1)(h) and 5(3)), the decision is not open to review. It seems to me that the decision maker did look for what I might shortly call a subjective purpose in the respondent in relation to securing entry into Australia and that his Honour accepted that he did. A factor obscuring the test applied by the decision maker is that he was of the view that the respondent was aware of the falsity of the entry respecting her marital situation. In effect he was of the view that there was a deliberate misleading, in order to secure entry into Australia. This involved a finding of the respondent's subjective purpose in producing the card.

His Honour analysed the position differntly. It may be said that what he did was to give different weight to various circumstances and thus arrive at a different conclusion on the facts. In the circumstances it is unnecessary to explore the question whether on the approach adopted by his Honour one of the paragraphs of s.5(1) or s.6(1) was made out. This is for two reasons, to one of which I have already adverted.

It seems to me idle, in a case such as the present, where the card is presented by an immigrant to the authorised immigration or customs officer, to inquire into the question of knowledge of purpose for which it is presented. The short answer is that the card is completed and presented because, pursuant to the regulations, an officer has required this to be done. He, and not the incoming passenger, knows the purpose for which it is required, and what he will do if it is not completed properly, or contains a wrong entry. If "purpose" requires knowledge beyond the obvious, it is not to be expected that the immigrant will have it. The returning Australian citizen, I imagine, does not know why he is asked to complete the same card, and produce it. His knowledge of the purpose for which it is produced is probably no greater than that of Mrs. Naumovska, who, at the most, understood that officialdom required it. This shows the difficulty in treating the two elements, namely false information and production for a purpose as separate elements, with the former not requiring knowledge. The fact is that a distinct requirement of subjective purpose is not very meaningful. What obviously is important is that steps be taken to ensure that intending immigrants clearly and fully understand what they are signing, and for what purpose, and comprehend clearly what is said by people who interview them. Patently, in this case, Mrs. Naumovska was at a disadvantage in relation to the operation of our immigration laws.

The undisputed evidence discloses clearly that had the card been correctly filled in, the respondent would still have been given an entry permit, - but a temporary one. The question that arises is whether any causal connection was necessary between the false information on the card and the entry of the respondent as an immigrant.

It seems to me that the paragraph does require a causal connection, and one which goes beyond any subjective purpose or intent of the immigrant. In sub-paragraph (ii), which is the provision relevant for present purposes, this requirement may be regarded as flowing from the reference to a "material particular", but I think the correct approach is to have regard to the opening words of s.16(1), which refer to a person "who enters or entered Australia", and then the opening words of para. (b), which say "for the purpose of securing entry into Australia produces . . . ". If the false information does not affect the entry into Australia, it is not within s.16(1)(b)(ii). A similar approach has been taken by courts in the United States, although legislation there does require mens rea as to the falsity of the material fact (Corpus Juris Secundum, Vol. 3, pp.953-954, notes 76 and 77).

There seems to be no differentiation made in s.16(1)(b) between entry as a resident and temporary entry, and there appears to be no context which would enable such a distinction to be made for the purposes of that paragraph. The entry referred to is entry as an "immigrant" and the definition of that term in s.5 supports the conclusion I have come to. Nor does there appear to be any scope for construing the language of para. (b) as if "securing entry" refers to entry of such a kind as was sought, when less would have been granted. The relevant matter seems to be "entry" into Australia, whether resident or temporary. If, as in the present case, the intending immigrant would have been granted "entry" if the true facts had been known, any falsity in the passenger card did not lead to the application of s.16(1)(b)(ii) and of her being deemed to be a prohibited immigrant under the section. I decide the case on this ground.

The respondent's husband, who arrived after her, has been granted a temporary entry permit. It will be a matter for the authorities how in the circumstances the matter now proceeds.

The appeal should be dismissed, with costs.

JUDGE2

The appellants, the Minister for Immigration and Ethnic Affairs and Mr John Menadue, have appealed against a decision of a Judge of this Court in relation to an application made to him pursuant to the Administrative Decisions (Judicial Review) Act 1977.

The respondent, Mrs Trendafila Naumovska, came to Australia on 30 March 1980 in the company of her parents. A passport had been issued to her by the Government of Yugoslavia showing that she had been born on 22 November 1956. Before leaving Yugoslavia she had obtained from the Australian immigration authorities a visa which was stamped in her passport. The visa was for resident entry and indicated that she intended to migrate to this country. The visa bore a notation "Must accompany mother holder of visa No: 16178P". The respondent's father had been a resident of Australia until 1977. He had returned to Yugoslavia where he remained until the family left for Australia at the end of March 1980. The family wished to settle in Australia.

The respondent and her mother and father left Yugoslavia in a Yugoslav Airlines aircraft bound for Sydney. About the time the aircraft landed cards described as incoming passenger cards were issued by members of the aircraft crew to all passengers. The printing on the cards is in English. The respondent did not speak or read English; nor did her mother. The father can read very little English. The respondent was assisted by a stewardess to fill out the card. For the most part it is filled out in the respondent's handwriting. In a space numbered 8 she placed an "X" in the square beside the words "Never Married". The alternatives were "Now Married", "Widowed" and "Divorced".

The statement that the respondent had never married was incorrect. On 24 December 1979, she had married one Lupco Naumovska. In her evidence before the trial Judge she said that her husband knew that she was proposing to go to Australia with her family, "and he agreed that I should still go, and that I should make an application to get him to Australia after I arrived". The respondent also said that she was "aware" that husbands and wives could obtain approval for their spouses to come to Australia after they had come to Australia themselves. That statement represented the respondent's belief, but evidence led on behalf of the appellants establishes that under a points system in force at the relevant time it is unlikely that the respondent's husband would have been permitted to enter Australia as a permanent resident. He has been permitted to come to Australia under a temporary entry permit.

The respondent or her father on her behalf, presented to a customs officer, Mr Wright, at the Sydney airport her passport, visa and incoming passenger card. The passenger card was retained. The respondent was issued with an entry permit the effect of which entitled her to remain in Australia indefinitely. She might leave Australia and return provided she returned within three years from the date of her last departure from Australia.

Section 6(2) of the Migration Act 1958 ("the Act") provides:

"An officer may, in accordance with this section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit."

An entry permit may either be what is called a temporary entry permit (s.6(6)) or the entry permit may not be so limited. A temporary entry permit may be cancelled by the Minister under s.7 of the Act.

Section 16 prescribes circumstances where persons entering Australia are to be prohibited immigrants. So far as is relevant to this case, s.16(1)(b)(ii) provides:

"Where . . . a person who enters or entered Australia as an immigrant . . . for the purpose of securing entry into Australia produces or produced to an officer . . . a passenger card that contains information that is false or misleading in a material particular . . . that person shall . . . be deemed to be a prohibited immigrant unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section."

Soon after her arrival in Australia the respondent sponsored her husband for entry into Australia. This was refused and the respondent sought the aid of a Member of Parliament in connection with this refusal and by letter dated 16 November 1981 the Regional Director of the Department wrote to the Member of Parliament saying, inter alia:

"Mrs Naumovska's actions in thus falsely representing her marital status resulted in her being a prohibited immigrant under the Amended Migration Act for the whole time she has been in Australia.
She sponsored her husband for entry soon after her arrival here. However, in view of the deception which took place at her entry, full details of this sponsorship were referred to our Central Office in Canberra for their consideration.
They have now advised that this sponsorship is not one for approval, and that as Mrs Naumovska is a Prohibited Immigrant she is required to leave Australia as soon as possible.
Mrs Naumovska must call into our Residence Control Section, 2nd Floor, Room 1, with details of her departure arrangements within 28 days of the date of this letter.
If she fails to comply with these requirements appropriate action will have to be taken to ensure her departure from Australia.
Provided Mrs Naumovska departs voluntarily from Australia, she and her husband can lodge independent applications for entry under N.U.M.A.S. at the nearest Australian post."

The evidence showed that no steps had been taken to deport the respondent but no undertaking was forthcoming that she would not be deported. On 30 November 1981 the respondent made application to this Court apparently under the Administrative Decisions (Judicial Review) Act entitled:

"Application to review the decisions of the second respondent made on or about the 16th day of November, 1981 that the applicant is a prohibited immigrant and must leave Australia.
Application to review conduct in which the respondent (sic) are engaging or propose to engage by way of enforcement of the decisions of the second respondent."

The grounds of the application were, in substance, that the applicant was not a prohibited immigrant and a declaration to this effect was sought.

The learned trial Judge considered the matter in considerable detail and heard evidence designed to establish whether or not the respondent was a prohibited immigrant. His Honour, after saying that he had not found the resolution of the ultimate question easy, said:

"But I have reached the conclusion that upon the whole of the evidence it cannot in truth be said that she produced the card, containing as it did a false entry, for the purpose of securing entry into Australia. The documents which she produced for this purpose were the passport and the visa. She was a citizen of Yugoslavia who had never before visited this country. She spoke no English. No official from the migration office or the customs office explained to her what was involved or what the purpose of the card was. All she did was to follow instructions from a stewardess on the aircraft to fill out the form in a particular way.
For the reasons I have given I conclude that the applicant is not a prohibited immigrant. She holds an entry permit unlimited in time. She is not therefore liable to be deported."

His Honour considered the meaning of the word "purpose" in s.16(1)(b)(ii) and reached the conclusion that it was to be understood in a subjective sense. It was not sufficient, he held, that the passenger card was handed to an "officer" as defined in s.5 of the Act unless the card not only contained information that was false and misleading in a material particular but also the respondent must have had the subjective purpose in producing the card to secure entry into Australia.

The question of jurisdiction has arisen and the matter was presented to the trial Judge upon the basis of seeking a review of a decision pursuant to s.5 of the Administrative Decisions (Judicial Review) Act or of a review of conduct related to making a decision pursuant to s.6 of that Act. I think it is proper to assume, without so deciding, that a decision was reached that the respondent was a prohibited immigrant and therefore liable to deportation under s.18 of the Act and to the other provisions of the Act applicable to a prohibited immigrant.

The learned trial Judge proceeded to determine whether or not the respondent was a prohibited immigrant and this involved him determining the question of the subjective purpose of the respondent in producing the passenger card. It was submitted by the appellants that the question of whether the respondent was a prohibited immigrant was to be determined by the Minister or some other appropriate officer. The effect of s.16 of the Act is that by operation of that section a person, who, for the purposes of securing entry into Australia, produces a passenger card which contains information that is false or misleading in a material particular, becomes a prohibited immigrant. The question of whether the person is a prohibited immigrant is one which can only be finally determined by a Court. The learned trial Judge took the view that he was entitled to make this determination.

Section 10 of the Administrative Decisions (Judicial Review) Act provides that the powers vested in a Judge are additional to any other rights which the applicant may have. The possible grounds in relation to s.5 might be those in (d), (e), (f) or (h). It is clear that if the attack is made only on the basis that the evidence did not justify the decision, then the provisions of s.5(1)(h) and 5(3) are relevant.

Section 5(1)(h) provides:

"that there was no evidence or other material to justify the making of the decision".

Section 5(3) provides:

"(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless -
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

Similar provisions apply in s.6(1)(h) in relation to conduct related to making decisions. I consider that, so far as is relevant, a decision cannot be attacked under ss.5(1)(h) or 6(1)(h) unless there is no material before the decision maker from which he could reasonably be satisfied that the relevant matter was established or that in a decision based upon the existence of a particular fact that fact did not exist.

I consider that no ground has been established for holding that the decision, or conduct for the purpose of making the decision, can be successfully attacked under ss.5(1)(h) or 6(1)(h) of the Administrative Decisions (Judicial Review) Act.

However, there are other grounds in ss.5 and 6 upon which a decision or conduct for the purpose of making a decision may be attacked. One of these is the ground in s.5(1)(d): "that the decision was not authorized by the enactment in pursuant of which it was purported to be made". A corresponding provision appears in s.6(1)(d). This provision is a broad provision and it seems that the Court may have jurisdiction under this paragraph even if no question of law in a strict sense arose. The provisions of s.5(1)(e) and the corresponding provision in s.6 may also be relevant. Section 5(1)(f) provides a ground that the decision involves an error of law and a corresponding provision appears in s.6(1)(f).

The learned trial Judge considered the submission of counsel for Mrs Naumovska that the "purpose" in s.16(1)(b)(ii) referred to a subjective purpose, and the submission of counsel for the Minister that the test to be applied in relation to "purpose" was an objective one.

In these circumstances I consider, but with some hesitation, that it is proper to take the view that a question of the construction of the Act arose in this case and that the decision or conduct under attack could be reviewed at least on the ground that an error of law was involved.

Section 10 of the Administrative Decisions (Judicial Review) Act makes it clear that the Court has jurisdiction in a proper case under this Act notwithstanding the existence in the Migration Act of ss.38, 39 and 40.

It is clear that ultimately the question of whether a person is a prohibited immigrant by virtue of the provisions of s.16(1)(b)(ii) of the Migration Act is for a Court and that in the appropriate case the Administrative Decisions (Judicial Review) Act vests the necessary power to decide such a question in the Federal Court of Australia.

The learned trial Judge has reached a decision on a question of fact based upon his views of the evidence of Mrs Naumovska. He saw her give evidence. I see no reason to uphold the appeal.

I would dismiss the appeal with costs. This appeal from the judgment of a signal Judge of this Court (Sheppard J.) raises questions concerning the construction and operation of sub-para. 16 (1) (b) (ii) of the Migration Act 1958 ("the Migration Act"). The facts may be briefly stated.

Trendafila Naumovska ("the respondent") is a Yugoslav national, born in Yugoslavia on 22 November 1956. In 1979 she applied in Yugoslavia for an Australian visa which was issued to her on 9 August 1979 for resident entry. It indicated that she intended to migrate to Australia and bore a notation "must accompany mother holder of visa number: 16178p". The respondent's father had resided in Australia for some time before 1977 when he returned to Yugoslavia. He remained there until he left with his wife and daughter - the respondent - for Australia at the end of March 1980. The family wished to settle here. The three of them left Yugoslavia in a Yugoslav Airlines aircraft bound for Sydney. They arrived here on 30 March 1980. About the time the aircraft landed cards described as "INCOMING PASSENGER CARD" were issued by members of the cabin crew to all passengers. The printing on the cards is in English. The respondent does not speak or read English; nor does her mother. The father can read very little English. The native language of the respondent is Macedonian. The respondent was assisted by a stewardess to fill out the card. Most of it is completed in the respondent's handwriting. She placed an "X" in a square beside the words "Never Married" in a space numbered 8. The alternatives were "Now Married", "Widowed" and "Divorced". The statement that the respondent had never married was incorrect because she married one Lupco Naumovska on 24 December 1979 in Yugoslavia.

The respondent, or her father on her behalf, presented to a customs officer, Mr. Wright, at the Sydney Airport, her passport, visa and "INCOMING PASSENGER CARD". The passenger card was retained by the authorities. The respondent was issued with an entry permit which in effect entitled her to remain in Australia indefinitely.

Before turning to the questions involving the construction and operation of sub-para. 16(1)(b)(ii) of the Migration Act there is an antecedent question namely, whether there is a decision (s. 5) or conduct engaged in or proposed to be engaged in for the purpose of making such a decision (s. 6) to which the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") applies.

Where the Minister has decided to order someone's deportation (s. 18) or an officer has decided to arrest someone whom he reasonably supposes to be a prohibited immigrant (s. 38) the identification of the decision generally presents no problem. But here no order has been made to deport or arrest the respondent. What happened was that soon after the respondent arrived in Australia she sought to sponsor her husband for migration to this country from Yugoslavia. The inaccuracy of the statement in the card produced by her to the officer of the Department upon her entry into Australia that she was "never married" came to the Department's attention. Inquiries were commenced by the Department and eventually a letter was written by Mr. C. H. Mead, Director of the relevant Region of the Department, to a member of Parliament who had made representations on behalf of the respondent concerning her sponsorship of her husband. The letter is dated 16 November 1981 and is in the following terms:-

"I am writing in reply to your representations made on behalf of Mrs. Trendafila Naumovska of 2 Truman Street, Hurstville, concerning the sponsorship she has lodged for the entry of her husband, Mr. Lupco Naumovska, from Yugoslavia.
As you are aware, there is provision under present immigration policy for the sponsorship of immediate family such as spouses, fiance (e) s, parents and dependent children.
Mrs. Naumovska was processed for entry with her parents as their single dependent child. In view of her age and lack of employment skills she would not have been eligible in her own right under N.U.M.A.S. (numerical multi-factor assessment system) for entry.
Mrs. Naumovska was informed in writing at the time she obtained her visa that it would be invalid should she marry before her arrival in Australia.
Mrs. Naumovska arrived in Australia on 30 March 1980, and on her arrival she represented herself on her Incoming Passenger Card as a single woman. However on 24 December 1979, approximately three months before her departure she married Mr. Lupco Naumovska.
Mrs. Naumovska's actions in thus falsely representing her marital status resulted in her being a prohibited immigrant under the Amended Migration Act for the whole time she has been in Australia.
She sponsored her husband for entry soon after her arrival here. However, in view of the deception which took place at her entry, full details of this sponsorship were referred to our Central Office in Canberra for their consideration.
They have now advised that this sponsorship is not one for approval, and that as Mrs. Naumovska is a Prohibited Immigrant she is required to leave Australia as soon as possible.
Mrs. Naumovska must call into our Residence Control Section, 2nd Floor, Room 1, with details of her departure arrangements within 28 days of the date of this letter.
If she fails to comply with these requirements appropriate action will have to be taken to ensure her departure from Australia.
Provided Mrs. Naumovska departs voluntarily from Australia, she and her husband can lodge independent applications for entry under N.U.M.A.S. at the nearest Australian post.

Yours sincerely

(sgd.) Lionel Mead
L.H.MEAD
Regional Director"

It may be perhaps that the letter is evidence of a decision of the Minister or an "authorized officer" (an expression defined in sub-s. 5 (1) of the Migration Act) requiring the respondent, on the assumption that she is a prohibited immigrant, to leave Australia within the time mentioned in the letter and that failure to comply with that requirement exposes her to the commission of an offence under s. 31A and a fine or imprisonment. But the case was argued before the learned primary Judge and before this Court on appeal primarily on the ground that the letter was evidence of conduct engaged in or proposed to be engaged in for the purpose of making a decision either to deport the respondent (s. 18) or to arrest her (sub-s. 38 (1)) or both.

The conclusion of the primary Judge was that the Minister (the first respondent) or Mr. Menadue then the secretary of the Department (the second respondent), has engaged, is engaging or is proposing to engage in conduct for the purpose of deciding to deport the respondent or to arrest her. In my opinion that conclusion was correct. Inherent in that conclusion is the assumption that a decision was made that the respondent is a prohibited immigrant and therefore liable to deportation. In my view that assumption should be made. It would be unreal on the facts of this case to do otherwise.

The primary Judge proceeded to determine whether the respondent is a prohibited immigrant and he concluded that she is not after holding that, on presenting her "INCOMING PASSENGER CARD" to the immigration officer at Sydney airport, she did not have the subjective purpose of securing entry into Australia. His Honour reached this conclusion after hearing evidence, including the evidence of the respondent which he accepted. The question arises whether his Honour was entitled to embark at all upon the inquiry into the subjective purpose of the respondent. This turns on an analysis of the grounds available to the respondent for an order of review under sub-sec 6(1) of the Act. Although this question should logically be dealt with now I propose to defer it until later in my judgment as it necessarily involves determining various matters which arise in relation to other issues and are therefore more appropriately considered there.

The submissions of all parties raise important questions as to the construction of sub-para. 16 (1) (b) (ii) and the operation of the Migration Act itself. It is helpful to consider this sub-paragraph in the light of other provisions of s. 16, so I will set out the relevant parts:-

"16. (1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia as an immigrant -
(a) evades or evaded an officer for the purpose of entering Australia;
(b) for the purpose of securing entry into Australia produces or produced to an officer -
(i) a permit, certificate, passport, visa, return endorsement, identification card or other document that was not issued to him or is or was forged or was obtained by false representation; or
(ii) a passenger card that contains information that is false or misleading in a material particular;
(ba) for the purpose of securing a visa or a return endorsement, or an entry permit permitting a person to remain in Australia, produces or produced to the Minister or to an officer a document of a kind referred to in sub-paragraph (i) of paragraph (b); or
(c) at the time of entry is or was a person of any of the following descriptions, namely:
(i) a person suffering from a prescribed disease or a prescribed physical or mental condition;
(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;
(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year;
(iv) a person who has been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while he was of unsound mind;
(v) a person who has been deported from Australia or another country; or
(vi) a person who has been excluded from another country in prescribed circumstances,
that person shall, notwithstanding section ten of this Act, be deemed to be a prohibited immigrant unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section."

The applicants' submissions are, in brief, that sub-para. 16(1)(b)(ii) should be construed in the light of the fact that it is the policy of the Migration Act to vest in immigration officers the power to decide whether or not to grant an entry permit to an immigrant (sub-s.6(2)), that it is an immigration officer who may without warrant arrest a person whom he reasonably supposes to be a prohibited immigrant (sub-s.38(1)) and that the Minister is empowered to order deportation (s.18). These and other provisions in the Migration Act were pointed to as indicating that the determination of the falsity or misleading character of information in a passenger card are powers which the Legislature has vested in the immigration officer who decides to grant an entry permit. Counsel for the appellants recognized the inherent difficulty in this approach namely, that it requires words to be read into sub-para. 16 (1) (b) (ii) so that it would read

"(ii) a passenger card that contains information that in the opinion of an officer is false or misleading in a material particular;".

The emphasis is mine.

Counsel sought to reduce this leap to a step by relying on the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex parte Zamir (1980) A.C. 930 although recognizing that the step became a stride when in 1983 the House of Lords declined to follow Zamir's Case in Khera v. Secretary of State for the Home Department (1983) 2 W.L.R. 321.

Counsel for the respondent, emboldened by the submission of counsel for the appellants, submitted that sub-s. 16(1)(b)(ii) required that the information in a passenger card be false or misleading to the knowledge of the immigrant. He would have us read the sub-paragraph thus:-

"(ii) a passenger card that contains information that is to the knowledge of the person false or misleading in a material particular;".

The emphasis is mine.

Neither view is correct. The sub-paragraph means what it says. There are good reasons for this. The power to grant entry permits to immigrants is vested in the Minister, immigration officers and others (s. 6). The Minister is empowered to cancel temporary entry permits (s. 7). The Minister may delegate any of his powers under the Migration Act to an immigration officer (s. 66D). Once a person enters Australia in any of the circumstances mentioned in sub-s. 16 (1) (including the circumstance that for the purpose of securing entry into Australia he produces to an immigration officer a passenger card that contains information that is false or misleading in a material particular) he becomes by force of the section a prohibited immigrant. No decision by anybody is required to bring about this change of status. It follows as a matter of law once the facts specified in sub-s. 16 (1) are satisfied. He is then liable to various sanctions. He may be deported (s. 18), arrested without warrant (s. 38), compulsorily interrogated (s. 42) and be visited with a penalty including imprisonment if he refuses or fails to answer questions or makes materially false or misleading answers to questions put to him by immigration officers for the purpose of determining whether he is a prohibited immigrant (s. 42).

These considerations give added and powerful weight to the adoption of the construction of sub-para. 16 (1) (b) (ii) which I would anyhow have been disposed to accept. A statute cannot interfere with liberty unless the Legislature unequivocally enacts that it should. To construe the sub-paragraph as the appellants wish would run counter to the safeguards which the law has developed for the protection of the liberty of the individual. In the present case it is true that the respondent is not an Australian citizen, but she has migrated to this country and is entitled to be treated fairly and humanely. It is for the courts to say whether information in a passenger card produced to an immigration officer by a person for the purpose of securing entry into Australia is false or misleading in a material particular. It is not for immigration officers to determine these matters.

Before the Minister may deport a prohibited immigrant he must, of course, conclude on the material before him that the person is a prohibited immigrant, but that is not to say that the determination of the person's status as a prohibited immigrant rests on the Minister's opinion. This status rests on the establishment of objective facts whose existence may be reviewed by the courts.

To support the contrary view, counsel for the appellants relied on Zamir's Case. But this case concerned the Immigration Act 1971 (U.K.) which is very different from the Migration Act in its object, structure, language and provision for appeal and review. Lord Wilberforce's opinion was that the determination of the question whether a person is an illegal entrant to the United Kingdom is not for the courts but for immigration officers, so that the question becomes whether the immigration officer concerned has reasonable grounds for believing a person to be an illegal entrant. His Lordship's opinion was not followed in Khera's Case. Lord Scarman said at pp. 341 and 342:-

"The gloss which the House in Zamir's case put upon the words of paragraph 9 was to read them as meaning not 'where a person is an illegal entrant' but 'where the immigration officer has reasonable grounds for believing a person to be an illegal entrant' he may be removed if not given leave to enter. If it be sought to justify the gloss as a proper construction of the statutory language, there is a difficulty. The gloss requires the introduction into the paragraph of words that are not there . . . "

Substantially the same views were expressed by Lord Fraser of Tullybelton and Lord Bridge of Harwich.

It is for the courts to determine whether it has been established as an objective fact that the passenger card produced by the immigrant to an immigration officer for the purpose of securing entry into Australia contains false or misleading information. The existence of this objective fact is a necessary antecedent to the existence of the status of a person as a prohibited immigrant from which powers of deportation and arrest may follow.

Nor is it right that sub-para. 16(1)(b)(ii) requires that the immigrant know that the information in the passenger card is false or misleading in a material particular. There is no warrant for construing the sub-paragraph in this way unless its language points plainly and unambiguously in this direction. Counsel for the respondent placed some reliance on the judgment of the High Court in Cameron v. Holt (1980) 142 C.L.R. 342 at p. 346. I considered that case in Toy Centre Agencies Pty. Limited v. Spencer, unreported, 10 March 1983 and rejected a similar submission of counsel concerning para. 229(1)(i) of the Customs Act 1901. Cameron's Case does not bear on the construction of sub-para. 16 (1) (b) (ii). It concerned very different facts and statutory provisions.

I turn to the submission of counsel for the respondent that the document relied on by the appellants as answering the description of a "passenger card" within the meaning of sub-para. 16 (1) (b) (ii) did not in fact answer that description. The expression "passenger card" is not defined in the Migration Act, but s. 67 of the Act provides that the Governor-General may make Regulations prescribing all matters which by the Migration Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed. Sub-regulation 4 (1) of the Migration Regulations provides that where an overseas passenger arrives at a Port in Australia an officer may require the passenger to complete a passenger card, to sign it and to furnish it to an officer.

Regulation 3 defines a "passenger card" as meaning a card approved by the Minister for the purpose of facilitating the furnishing by a person of information relating to the person or to another person, being information required for purposes relating to immigration or emigration. There is no form of "passenger card" prescribed by the Migration Act or the Migration Regulations and no prescription of the method of approval of such a form.

Counsel for the respondent submitted that there was no evidence that the card in evidence in this case was one approved by the Minister. Counsel for the appellants submitted that the definition of "passenger card" in the Regulations did not apply here because sub-para. 16(1)(b)(ii) was inserted into the Migration Act by the Migration Amendment Act 1979 (Act No. 117 of 1979, s. 10), and, as the relevant Regulations were already in force when the amending Act was passed, sub-reg. 3 (1) could not be a relevant prescription pursuant to s. 67. Alternatively, it was submitted that the definition in the Regulations of "passenger card" was for the purposes of the Regulations and not the Act and therefore was of no assistance in determining the meaning of that expression in sub-para. 16 (1) (b) (ii).

I do not find it necessary to determine whether the particular Migration Regulations to which I have referred apply to the interpretation of the expression "passenger card" in sub-para. 16 (1) (b) (ii) of the Migration Act. If its meaning is to be determined without the aid of the Regulations then it would be sufficient to answer the description of that expression that the card produced to the migration officer be in a form which has become accepted in practice as a passenger card for the purposes of sub-para. 16 (1) (b) (ii). Whether the expression "passenger card" is construed this way or by reference to the Regulations as a card approved by the Minister within the meaning of Regulation 3, the result is the same on the facts of this case. The card produced to the respondent to the immigration officer upon her arrival in Australia on 30 March 1980 appears to be the card in official use. It is titled:-

"MIGRATION ACT 1958

INCOMING PASSENGER CARD"

It purports to be printed by the Commonwealth Government Printer and otherwise has the form and appearance of an official card for the provision of information relevant to the entry of persons into Australia. In my opinion the inference may properly be drawn that the card was approved by the Minister. I am satisfied that the card involved in this case answers the description of a "passenger card" for the purposes of sub-para. 16 (1) (b) (ii).

The next question for determination is whether the respondent, upon entering Australia as an immigrant, produced to the immigration officer the "passenger card" for the purpose of securing entry into Australia. "Purpose" is a word susceptible of a variety of meanings depending upon the context. No point is served by tracing the many decided cases in which the word has been construed. Its meaning takes its colour from the relevant provision be it statute, agreement or otherwise in which it appears. It was submitted by counsel for the appellants that the word "purpose" should be given an objective meaning and by counsel for the respondent a subjective one. In my opinion it is subjective. It connotes a mental element. The purpose of securing entry into Australia by production to an immigration officer of a passenger card must exist in the mind of the immigrant producing the card.

I find it difficult to conceive what other purpose there could be, in ordinary circumstances, in producing a passenger card to an immigration officer at the immigration counter upon entry into Australia than to secure entry into Australia. However, if an immigrant had more than one purpose in producing the card it would be sufficient to attract the operation of sub-para. 16 (1) (b) (ii) if one of the purposes was to secure entry into Australia. The primary Judge was obviously mindful of these considerations. Yet, after a careful analysis of the evidence touching this question, he concluded as follows:-

"I confess that I have not found the resolution of the ultimate question easy, but I have reached the conclusion that upon the whole of the evidence it cannot in truth be said that she produced the card, containing as it did a false entry, for the purpose of securing entry into Australia. The documents which she produced for this purpose were the passport and the visa. She was a citizen of Yugoslavia who had never before visited this country. She spoke no English. No official from the migration office or the customs office explained to her what was involved or what the purpose of the card was. All she did was to follow instructions from a stewardess on the aircraft to fill out the form in a particular way."

In my opinion it has not been established that his Honour's finding in this respect should be disturbed.

I return now to the question whether his Honour was entitled to embark upon the inquiry as to the subjective purpose of the respondent on presenting her passenger card to the migration officer in Sydney.

Paragraphs 6(1)(e) and (f) of the Judicial Review Act provide as follows:-

"6(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds:
. . . .
(e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;
(f) that an error of law has been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;"

Sub-section 6(2) provides that the reference in para 6(1)(e) to an improper exercise of a power shall be construed as including a reference to certain matters including

"(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
. . . .
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;"

I said earlier that the purpose of securing entry into Australia by production of a passenger card must exist in the mind of the immigrant. The appellants argued before the primary Judge and this Court that the circumstances had to be examined objectively and not by reference to the state of mind of the immigrant. It is clear from the evidence that the conduct of the appellants under challenge in this case proceeded on the same basis and that they did not consider the respondent's "purpose" under sub-para 16(1)(b)(ii) by reference to her actual state of mind. This in itself prima facie entitled the respondent to an order of review under the Judicial Review Act. But it does not necessarily follow that the primary Judge was therefore entitled to himself inquire into the respondent's subjective purpose. The determination of an immigrant's purpose in producing a passenger card upon arrival in Australia ultimately rests with the courts. Where that purpose is necessarily involved in the making of a decision or in conduct for the purpose of making such a decision it is open to the immigrant to challenge the decision or conduct, as the case may be, on one or more of the grounds available in sub-sec. 6(1) including those mentioned in para 6(1)(e) or (f). By hearing evidence and reaching conclusions as to the respondent's subjective purpose the primary Judge acted conformably with this approach.

The primary Judge said:-

"The Minister has to justify his threatened action against the applicant upon the basis of it being demonstrated that she is a prohibited immigrant. It is for him to establish that she is; otherwise his threatened conduct is unlawful."

As it is not necessary for this finding to be considered by me I do not intend to do so and prefer to leave the question open.

In conclusion I would add one observation. Australia is a country to which immigrants travel from all over the world with varying backgrounds, education, training and degrees of familiarity with the English language. The facts here show the desirability of the Australian Government looking closely at the question whether the concept of "purpose" in the context of sub-para. 16(1)(b)(ii) should be retained.

I would dismiss the appeal with costs.