Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz, R

[1992] FCA 104

Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: RICARDO DELA CRUZ
No. G140 of 1991
FED No. 104
Immigration

(1992) 34 FCR 348
(1992) 110 ALR 367
(1992) 26 ALD 663 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Davies(1) and Neaves(1) JJ.

CATCHWORDS

Immigration - misstatements of marital status on visa application form and incoming passenger card - whether false or misleading in a material particular - unnecessary to consider whether false statements made deliberately - whether marital status a relevant fact.

HEARING

SYDNEY

#DATE 28:2:1992

Counsel for the Appellant: Ms M. Beazley QC and Mr B. Knox

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr M.B. Smith

Solicitors for the Respondent: Parish Patience

ORDER

The appeal be allowed.

The orders below be set aside and there be substituted therefor an order that the questions posed for consideration be answered as follows:-
(a) Whether the applicant (Ricardo Dela Cruz) was

granted a permanent entry permit on 29 October 1987? Answer-Yes

(b) Whether, notwithstand ing such entry permit if

granted and absent any estoppel against the respondent (the Minister for Immigration, Local Government and Ethnic Affairs) from contendingto the contrary, the applicant is an illegal entrant by virtue of the operation of sections 14(2) and 20 of the Migration Act 1958?

Answer - Yes.

The Respondent pay the Appellant's costs of the appeal and of the proceedings below.

The matter be remitted to the trial Judge to appoint a directions hearing for the continuance of the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of a single judge of the Court. The proceedings before the learned trial Judge commenced as an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking orders of review to prevent the deportation of the present respondent, Ricardo Dela Cruz, from Australia. The following two questions were set aside for separate determination:-

"(a) Whether the applicant (Ricardo Dela Cruz) was granted a permanent entry permit on 29 October 1987.

(b) Whether, notwithstanding such entry permit if granted and absent any estoppel against the respondent (Minister for Immigration, Local Government and Ethnic Affairs) from contending to the contrary, the applicant is an illegal entrant by virtue of the operation of sections 14(2) and 20 of the Migration Act 1958."

1. When the matter came on for hearing before his Honour, counsel for both parties were agreed that the answer to question (a) was "yes". The trial Judge, in the orders which he made, did not expressly answer that question or question (b) but made orders in the following terms:-
   

"THE COURT DECLARES THAT:

1. The applicant is not an illegal entrant by virtue of having made a statement that he was married on his visa application form and passenger card on entry into Australia.

2. The applicant is entitled to remain in Australia pursuant to the permanent entry permit granted to him on or about 29 October 1987.

3. Pursuant to the Declaration in paragraph 1 above, the applicant is not liable for deportation under Section 60 of the Act."

1. The trial Judge found that Mr Dela Cruz had been born in and was a citizen of the Philippines. On 7 June 1986, he applied in Manila for a visitor's visa to enter Australia. He lodged a written application and was not interviewed by any person of the Australian Embassy in Manila. Mr Dela Cruz completed the application form by indicating that the purpose of his proposed entry into Australia was to "holiday" and that his marital status was "now married". In fact, Mr Dela Cruz was not then and had never been married.

2. On 26 June 1986, Mr Dela Cruz was granted a visitor's visa valid for 6 months and, on 21 July 1986, he arrived in Sydney. On his incoming passenger card he again marked the box alongside the words "now married". He was granted a temporary entry permit to remain for 6 months.

3. On 19 January 1987, Mr Dela Cruz married an Australian citizen, Imelda Escordial, whom he had met in Australia after his arrival. On 21 January 1987, he applied for permanent resident status on the ground that he was the spouse of an Australian citizen. This application was granted on 29 October 1987.

4. Subsequently, officers of the Department of Immigration, Local Government and Ethnic Affairs ascertained that the original application for a visa and the incoming passenger card had both incorrectly stated Mr Dela Cruz's marital state. Once these facts had been ascertained, Mr Dela Cruz was informed that he was an illegal entrant pursuant to ss.14 and 20 of the Migration Act 1958 (Cth) ("the Act").

5. Section 20 of the Act at the relevant time provided, inter alia:-
   

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

...

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

(i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry:

(A) ...

(B) a passenger card containing information that was false or misleading in a material particular; or ...

(c) when, or before, a visa was granted or issued in respect of the person, he or she:

...

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

(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:

(i) the person produced a bogus document, or caused a bogus document to be produced, to an officer or a person exercising powers or performing functions under this Act; or

(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." ...

(11) A reference in this section to a person producing, or causing to be produced, a passenger card containing information that was false or misleading in a material particular is a reference to a person producing, or causing to be produced, such a passenger card, whether or not the person knew that the information contained in it was false or misleading in a material particular.

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

Section 14 provided, inter alia:-

"(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."

Section 22 provided inter alia:-

"(2) A person who has become an illegal entrant under subsection 14(2) for a particular reason stops being an illegal entrant if and when there is granted to the person a properly endorsed valid entry permit, and does not otherwise stop being an illegal entrant."

1. Counsel for Mr Dela Cruz submitted that the subject provisions of s.20 should be construed so as to apply to a person only during the period in respect of which the person remains in Australia pursuant to the entry permit granted in the light of the false information. Counsel submitted that Mr Dela Cruz could be deemed to be an illegal entrant only during the period to which the temporary entry permit applied, that is, for the period of 6 months from 21 July 1986. Counsel submitted that any status which Mr Dela Cruz held as an illegal entrant terminated on the grant to him of the permanent entry permit on 29 October 1987.

2. However, s.22(2) was unambiguous and it provided that a person who had become an illegal entrant under s.14(2) did not cease to be an illegal entrant unless and until there was granted to the person a properly endorsed valid entry permit. No such permit was granted to Mr Dela Cruz. The clear language of s.22(2) left no room for any implication to be drawn, from the separate treatment given by s.20(2) to the grant of a permit after entry, to the effect that s.20(1) is exhausted once a subsequent permit is granted. Section 22(2), through s.14(2), operated indiscriminately in respect of persons in either category. In any event, s.20(1) and s.20(2) dealt with quite distinct situations and it should not be supposed that it was intended that the consequences of making a false or misleading statement before or at the time of entry should cease when, once having gained entry, a person obtained a further permit without, this time, making a false or misleading statement.

3. Counsel for the respondent relied upon Rubrico v. Immigration for Immigration, Local Government and Ethnic Affairs (1989) 23 FCR 208, a decision which the trial Judge followed and applied. However, the legislation considered in that case was differently expressed and the facts were dissimilar in that, in that case, there had been a second and later entry into Australia. We do not consider that case to be a guide to the legislation with which we are concerned or to the factual circumstances of Mr Dela Cruz.

4. The next issue is whether the misstatements by Mr Dela Cruz were misleading in a material particular. The trial Judge held that the question of marital status was not material in relation either to the granting of a visitor's visa or of a temporary entry permit.

5. The expression "false in a material particular" appears in many statutes, both in this country and overseas. It has been discussed in R. v. Lord Kylsant (1932) 1 KB 442, Murphy v. Griffiths (1967) 1 WLR 333; R. v. Mallett (1978) 1 WLR 820; R. v. M. (1980) 2 NSWLR 195; R. v. Brott (1988) VR 1. In the last mentioned case, Brooking J. pointed out that the concept is well understood. As his Honour said at 11:-
   

"an assertion that a document is false is to be taken as an assertion that it is false in a material particular."

The term "material" requires no more and no less than that, the false particular must be of moment or of significance, not merely trivial or inconsequential.

1. Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement must be false or misleading in a material particular. In the context of s.20(1), a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made: see Jovcevski v. Minister for Immigration, Local Government and Ethnic Affairs (Lockhart J., 12 October 1989, unreported). A statement will be relevant to that purpose if it may - not only if it must or if it will - be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.

2. For present purposes, it is sufficient to say that a statement made to an immigration official by a person seeking to enter Australia, which conveys a false or misleading impression of the person or of his or her circumstances, would be false or misleading in a material particular. Immigration officials are entitled to seek and to be told the truth about a person applying to enter Australia, so that they may be in a position to evaluate the application made to them. They may consider it desirable to ask further questions about the subject matter of a statement made to them and, with answers to further questions, the statement may be more useful. But it does not follow that, without further questions, the statement is not material in the sense in which that word is used in s.20(1).

3. One of the questions which Mr Dela Cruz was required to complete both on the application for a visa and on the incoming passenger card was the question as to marital status. On both documents, Mr Dela Cruz marked the box "now married". This was false. Each document therefore contained a false statement and gave a misleading picture of Mr Dela Cruz's circumstances. It is not necessary in the present appeal to consider whether the false statements were made deliberately.

4. Woodward J. said in Rojas v. Minister for Immigration and Ethnic Affairs (unreported, 10 November 1986):-
   

"there can be no doubt, in my view, that a statement by an intending migrant that he has never been married, when in fact he is married with one child and living with his wife and child, is a statement which is false in a material particular."

However, the trial Judge held that the question of marital status was not material to the decisions to grant a visitor's visa and temporary entry permit to Mr Dela Cruz. His Honour reasoned as follows:-

"As is fairly obvious from the form itself, the evidence before me showed that much of the material on incoming passenger cards is not relevant to or used in making immigration and customs decisions. Some is used for statistics. Some may be relevant for other government purposes. Some may have no use at all. As the marital status question is asked of everyone who enters Australia, including Australian citizens returning after vacation or visitors staying overnight on the way to New Zealand, it cannot have a significant meaning solely in relation to migration issues. Furthermore, formal marital status tells an immigration officer very little in terms of an entrant's intentions in relation to departure from Australia. An applicant may be married but separated from or wishing to leave the spouse; the spouse may be in or coming to Australia; divorce proceedings may be under way and the applicant is coming to Australia to look for or secure a new spouse; and there are many other possibilities. The evidence given in this case by Mr Sutherland that the question on the passenger card and the application form for a tourist visa as to marital status gave an indication of the likelihood of an entrant's intention to return home was quite unconvincing in this regard. It might have been more persuasive if further questions of the kind I have posed or otherwise were asked of applicants for entry but I was informed that this was rarely the case. There is certainly no evidence that it was done in this instance."

1. His Honour's reference to the evidence of Mr Sutherland was a reference to evidence given by an officer of the Department of Immigration, Local Government and Ethnic Affairs. Mr Sutherland deposed in an affidavit:-
   

"During my entire career with the Department involving the processing of visitor visa applications, the applicant's marital status has always been considered a material particular in assessing the applicant's bona fides. If the applicant is married he or she is regarded as likely to return home after the proposed visit."

Mr Sutherland did not depart from this evidence in his oral evidence. However, Mr Sutherland conceded in cross-examination that, for the purposes of the grant of a temporary entry permit to a person who held an appropriate visa, the misstatements would ordinarily play little or no part, for the entry permit would ordinarily be granted as a matter of course. Mr Sutherland conceded that, to the officer granting the entry permit to Mr Dela Cruz on his arrival in Australia, marital status would prima facie not be a matter of concern.

1. The oral evidence may have distracted his Honour from the crucial question. The question is not whether the statement in the application for a visa played any part in the decision made at the terminal to grant an entry permit, which it did not, for it was not before the officer. Nor is the question whether that officer was concerned about the marital status of Mr Dela Cruz, who had arrived with a visitor's visa. The issue is whether the statements, both of which were made in formal documents required to be lodged by persons seeking to enter Australia, were false or misleading in a material particular. That must be a matter for objective assessment. So far as the stated knowledge of the maker of the statement is concerned, sub- ss.20(11) and (12) make it clear that the falsity is to be determined objectively. The statement may be false or misleading in a material particular whether or not the person knew that the statement had such a character. In the context of the Migration Act, it could hardly have been intended that the status of an entrant who has made a false or misleading statement, whether knowingly or innocently, would depend in a particular case upon whether the migration officer actually turned his mind to that statement or whether, if he did so, it was thought necessary to seek further information from or about the applicant.

2. The issue is simply whether marital status was a relevant fact - which it was as it concerned a significant aspect of Mr Dela Cruz's personal circumstances and was inquired of both in the application form for the visa and in the incoming passenger card - and whether the statements as to marital status were false and misleading - which in this case they were.

3. It is not necessary for the purposes of the present appeal to consider whether what may be material for the purposes of s.20 is expanded by the power conferred by ss.181(1)(c) and (d) of the Act to make regulations in relation to the furnishing and use of information, a power that has been exercised in the making of reg.148AA of the Migration Regulations; see especially reg.148AA(2) and (3).

4. In the circumstances, the appeal should be allowed. The orders made by the trial Judge should be set aside. The questions posed for determination should both be answered "Yes". The appellant should have the costs of this appeal and of the proceedings below. As there may still be other matters to be dealt with in the proceedings in the Court, the matter should be remitted to the trial Judge to appoint a directions hearing for the continuance of the proceedings.