Mumtaz, K.K. v Newson, M. & Anor Mumtaz, S. v The Minister for Immigration & Ethnic Affairs

[1995] FCA 517

CATCHWORDS

IMMIGRATION - holders of Permanent Resident Entry Permits becoming illegal entrants by reason of having made statements that were "false or misleading in a material particular" in respect of the grant of their entry permits - statement that applicants had transferred to Australia over stated period funds of $782,000 in cash, goods and personal effects - statement that applicants had an asset in form of loan to proprietary company - statement that applicants were in a "solid partnership" with third party - statement that applicants employed three commission agents in New South Wales - statement by female applicant that she had never worked in Australia - onus of proof that statement false or misleading in a material particular - standard of proof required - proof of a negative by Minister - approach to evidence where proof of a negative required.

EVIDENCE - onus of proof - standard of proof - legal burden and evidential burden - proof of negative.

Migration Act 1958 (Cth), ss 14, 20, 35.
Migration Regulation 47

KAURA KAHN MUMTAZ v MIKE NEWSON & ANOR

No NG 934 of 1993

SAEEDA MUMTAZ v THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

No NG 185 of 1994

Lindgren J
Sydney
18 July 1995

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )        No NG 934 of 1993
GENERAL DIVISION                 )

BETWEEN:     KAURA KAHN MUMTAZ

Applicant

AND:

MIKE NEWSON
                   First Respondent

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
                  Second Respondent

No NG 185 of 1994

BETWEEN:     SAEEDA MUMTAZ

Applicant

AND:

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:18 July 1995

MINUTE OF ORDERS

THE COURT IN PROCEEDINGS NO:
NG 934 of 1993
Kaura Kahn Mumtaz & Anor v The Minister for Immigration & Ethnic Affairs.

1. ORDERS that the application be dismissed.

1. ORDERS that the applicant pay the respondents' costs.

NG 185 of 1994
Saeeda Mumtaz v The Minister for Immigration & Ethnic Affairs.

1. ORDERS that the application be dismissed.

1. ORDERS that the applicant pay the respondent's costs.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )        No NG 934 of 1993
GENERAL DIVISION                 )

BETWEEN:

KAURA KAHN MUMTAZ
  Applicant

AND:

MIKE NEWSON
                   First Respondent

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
                  Second Respondent

No NG 185 of 1994

BETWEEN:

SAEEDA MUMTAZ
  Applicant

AND:

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:18 July 1995

REASONS FOR JUDGMENT

NATURE OF PROCEEDINGS

The respective applicants ("Mr Mumtaz" and "Mrs Mumtaz") are husband and wife. On 17 September 1991, when they were already in Australia, each was issued with a "Permanent Resident Entry Permit". This was a permit to remain in Australia for residence. On 25 November 1993 the Department of Immigration, Local Government and Ethnic Affairs ("the Department" - this expression will be used regardless of any change in the name of the Department) gave what was called a "Notice of Status Under Section 20 of the Migration Act 1958" dated 23 November 1993 to Mr Mumtaz. Later it gave such a notice dated 16 March 1994 to Mrs Mumtaz. Each notice advised the recipient that by the operation of s 14 and sub-para 20 (2) (b) (ii) of the Migration Act 1958 ("the Act"), he or she was deemed to be an illegal entrant as from 17 September 1991. This was because, according to the Department's allegation, in respect of the grant of the Permanent Resident Entry Permit on 17 September 1991, the applicant in question had "made, or caused to be made, to an officer or a person exercising powers or performing functions under [the] Act, a statement that was false or misleading in a material particular" (see sub-para 20 (2) (b) (ii) of the Act).

Mr Mumtaz filed his application in this Court on 26 November 1993.  First, his application sought a review of the conduct of the first respondent on 25 November 1993 of arresting and detaining him and demanding that he produce and surrender his passport.  The first respondent has played no active part in the proceedings and submits to such order as the Court may make save as to costs.  Secondly, Mr Mumtaz seeks the following declaratory relief as well as consequential relief which need not be set out:

"2.A declaration that the applicant is the holder of [a resident] entry permit [granted to the applicant on 17 September 1991] ... which entitles him to be in and remain in Australia.

3.A declaration that the notice served on the applicant on 25 November 1993 purportedly pursuant to provisions Sections 20 and 14 of the Migration Act 1958 is of no force and effect."

Mrs Mumtaz filed her application on 31 March 1994, seeking, mutatis mutandis, similar relief.

CASE IN OUTLINE AND LEGAL FRAMEWORK

Mr and Mrs Mumtaz, with their five children, arrived in Australia on 16 November 1987 by the authority of "Temporary Resident Entry Permit - Specialist (Overseas)".  The period of this temporary permit was the subject of successive extensions.

In March 1990 Mr Mumtaz applied for a permanent resident entry permit for himself, his wife and their five children.  The application was made by reference to the Commonwealth Government's "Business Migration Programme" ("BMP").  In order that a "Business (General) Visa" should be issued, certain criteria had to be satisfied by Mr Mumtaz.  These included the "additional criteria in relation to a business (general) visa" referred to in Migration Regulation No 47.  Relevantly, Regulation 47 contained the following:

"47(1)........ ........ ........ ........ ........ ..

(2)The additional criteria are that the applicant:

(a)........ ........ ........ ........ .....

(b)........ ........ ........ ........ .....

(c)has available for transfer to Australia unencumbered personally owned assets in the form of cash, or other unencumbered assets (or both) adequate to establish and conduct the enterprise, and in any case not less than [in the circumstances of the present case] $500,000.

(d)has, in addition to the cash or assets (or both) referred to in paragraph (c), unencumbered personally owned assets in the form of cash, or other unencumbered assets (or both), adequate to finance the costs of establishing himself or herself personally in Australia, and in any case not less than [in the circumstances of the present case] $150,000; ...,

or such lesser amount as the Minister is satisfied would be sufficient to allow the applicant to become established personally in Australia;

(e)...     (f) ...   (g)  ... "

It will have been noted that there was a substantial lapse of time between the making of Mr Mumtaz's application in March 1990 and the grant of the Permanent Resident Entry Permit on 17 September 1991.  At least some part of this period was occupied with the making of requests by the Department for information, and Mr Mumtaz's responses, in relation to the subject matter of Migration Regulation 47.  Paragraphs (c) and (d) of sub-reg 47 (2) had the effect in the circumstances of requiring that Mr Mumtaz have available for transfer to Australia unencumbered personally owned assets in the form of cash or other unencumbered assets (or both) of not less than $650,000. 

On 8 July 1991 Mr Mumtaz sent a three page letter with five pages annexed to the Department and on 9 August 1991 he wrote a further letter to the Department, in both cases with a view to satisfying it that he met the relevant criteria.  The Minister says that these documents contained statements that were "false or misleading in a material particular".

In relation to Mrs Mumtaz, it is said that in her application dated 6 March 1990 for a Permanent Resident Entry Permit, she had falsely stated that she had never worked in Australia. As well, it is put that Mrs Mumtaz's application for permanent residence was dependent on her husband's application; that documents supplied to the Department by Mr Mumtaz in support of his application were also supplied in support of any application dependent on his; and that the statements by Mr Mumtaz are taken to have been made also by Mrs Mumtaz for the purposes of sub-para 20 (2) (b) (ii) of the Act as it applies in her case.

The significance of the making of false statements by applicants for entry permits is made plain in ss 14 and 20 of the Act. Relevantly, sub-para 20 (2) (b) (ii) and sub-s 20 (12) were as follows:

"20(1)........ ........ ........ ........ .....

(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)........ ........ ........ .....; 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.

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

1. 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."

(emphasis supplied)

Sub-section 14 (2) of the Act was as follows:

1. 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."

Finally, sub-s 35 (2) of the Act was as follows:

"35(2)Where, because of the operation of subsection 14 (2), a person is an illegal entrant even though the person holds a valid entry permit, the entry permit shall be taken to have been cancelled:

(a)when the person entered Australia; or

(b)when the entry permit was granted;

whichever is later."

According to the Department's case, both Mr and Mrs Mumtaz are persons to whom sub-s 20 (2) applies, sub-s 14 (2) has the effect that they are both "illegal entrants", and sub-s 35 (2) has the effect that their entry permits are taken to have been cancelled when they were granted on 17 September 1991.

Pursuant to directions of the Court, the Minister gave the following particulars of the statements allegedly "false or misleading in a material particular", which he alleged had been made by Mr Mumtaz:

"1.On or about 8 July 1991 he did falsely state that he had transferred to Australia funds in an amount of $782,000.00 in cash goods and personal effects between 1985 and 1990.

2.On or about 8 July 1991 he did falsely state that he and his wife had an asset in the form of a loan to Talib Australia Pty Ltd in the sum
of $36,000.

3.On or about 8 July 1991 he did state in a letter to the Regional Director, Southern Region, Department of Immigration and Ethnic Affairs that 'we are the sole owners of these companies with solid partnership in Talib Australia', when at that time the business relationship with Talib Australia Pty Ltd had ceased.

4.On or about 9 August 1991 Mr Mumtaz, in answer to a request dated 1 July 1991 that he provide information and documentation concerning the creation and maintenance of employment in Australia including details of salaries and duties of Australian Staff currently employed on a permanent basis, did state that Euro Aussie Enterprises Pty Ltd was employing three commission agents for New South Wales ..."

In relation to Mrs Mumtaz, the Minister at first gave only the following particulars as against her: 

"1.On 6 March 1990 when completing a form 690A, an annexure to form to 690 'application to remain permanently in Australia', she, in response to the question 'Have you ever worked in Australia?', answered 'No', which answer was false."

On the hearing the Minister also alleged that Mrs Mumtaz had "made or caused to be made" the four statements referred to above allegedly made by Mr Mumtaz.

It was common ground that the onus was on the Minister to establish that the statements were made or caused to be made by the respective applicants and that they were false or misleading in a material particular (cf Mian v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 165 (FCA/Lee J) at 169). The question is an objective one, not one as to whether the applicants made or caused to be made the statements knowing them to be false or misleading in a material particular: sub-s 20 (12) of the Act: Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 (FCA/FC) at 353-354.

CHRONOLOGICAL ACCOUNT OF FACTS

It is now convenient to give a more detailed account of the facts in the form of a chronology.

1985 - 1987
In August 1985, Mr Mumtaz was employed full-time by Pakistan International Airlines ("PIA").  He lived and worked in Pakistan.  Sialkot is a place in Pakistan where sporting goods, including hockey sticks and soccer balls, are made.  Mr Mumtaz says that his position with PIA enabled him to act as "an intermediary and/or business catalyst between Talib Australia [see below] and any suppliers and producers of goods in Sialkat [sic] Pakistan".

In August 1985, Talib Australia Pty Ltd ("Talib") of Townsville in Queensland in which Dr S Hussain ("Dr Hussain") was the driving force, entered into a written agreement with Mr Mumtaz for a partnership in a business of sports goods dealers to be carried on at such place or places in Australia,
New Zealand, Hong Kong, the United Kingdom and other countries as the parties might from time to time agree upon.  According to the written agreement, Talib and Mr Mumtaz were to contribute A$15,000 each as capital to the partnership.  According to Dr Hussain, the partnership was to be in respect of the "sporting goods division" of Talib's business, and Mr Mumtaz only ever operated as an "honorary director" in respect of marketing in the United Kingdom.  The evidence is unclear as to whether the parties did contribute the amounts of $15,000 each as and for the capital of the partnership (see later as to Mr Mumtaz's contention in this respect).

September 1985
Mr Mumtaz says that at this time he was transferred to England by PIA.  There is evidence of the opening of a bank account at Lloyd's Bank Plc in England in the name of Talib on which Mr and Mrs Mumtaz were appointed by Talib as signatories.  Perhaps it was this kind of position occupied by Mr Mumtaz in England in relation to Talib that Dr Hussain had in mind when he referred to Mr Mumtaz as having been an "honorary director" of Talib in England. 

In mid 1986 Mr Mumtaz established a family company in England. It was called "Euro Aussie Enterprises Limited".  I will call it "Euro Aussie (UK)".  It opened a bank account on or about 6 September 1986.  A document in evidence suggests that Dr and Mrs Hussain as well as Mr and Mrs Mumtaz were directors. 
However, so far as the evidence goes, it seems to have functioned as the family company of Mr and Mrs Mumtaz alone.  

Mr Mumtaz says that through Euro Aussie (UK) he maintained and developed relationships with suppliers of sporting goods in both Pakistan and the United Kingdom.  He says that Euro Aussie (UK) selected, purchased and paid for sporting goods which were forwarded to Talib in Australia; that Euro Aussie (UK) did very limited selling on its own account; and that the purchasing and shipping of sporting goods by Euro Aussie (UK) for the benefit of Talib over the period from mid 1986 to November 1987 when he and his family came to Australia, was to be treated as giving rise to a "partnership interest" in Talib.  The evidence in this respect is of the nature of general assertion and is unsatisfactory.  Since apparently the Mumtaz family left England on or about 30 September, the period of Euro Aussie (UK)'s activities in England was about 15 months.  As will be seen later, Mr Mumtaz claims to have paid for and caused to be shipped from Pakistan and from the United Kingdom to Talib in Townsville, goods in amounts totalling $86,077.97 down to the time of the family's leaving England for Australia.  The evidence does not show any relationship between this amount and the sum of $15,000 referred to in the written partnership agreement.

Dr Hussain's evidence is that the written partnership agreement governed the parties' relationship in relation to England only and that "[T]he partnership business in England
carried on for almost two years without achieving any satisfactory results".  That period referred to is apparently the period from 1985 to 1987 (clearly Dr Hussain is including the period when Mr Mumtaz was in England prior to the incorporation of Euro Aussie (UK)).  Dr Hussain says that Mr Mumtaz "at no time obtained a partnership 'in' Talib ...".

Dr Hussain says that he was then (in 1987) persuaded that Mr Mumtaz had a keen interest in assisting Talib to establish a hockey stick manufacturing facility in Australia and that Talib should sponsor him to come to Australia for that purpose. 

It is convenient to interpose here a reference to later events.  Mr Mumtaz's evidence is that even after he and his family came to Australia in November 1987 he, through a family company, imported stock into Australia and supplied some of it to Talib.  The family company to which he refers is, no doubt, Euro Aussie Pty Ltd ("Euro Aussie") which he established in New South Wales in February 1988 (see below).  He says that he sold the initial shipment of stock which arrived in March 1988, that there were a few small shipments in the last half of 1988, some 8-10 shipments in 1989, and some 4-5 shipments in 1990, and that there were no requests from Dr Hussain for stock after 1990.  Apart from the two shipments which arrived early in 1988 and which had been dispatched in connection with the family's journey from England via Pakistan and Singapore to Australia in September - November 1987 (see below), these shipments are not supported by any documentary evidence in the case.  Mr Mumtaz says that he has continued since 1990 to import goods and market them throughout Australia on his own (or Euro Aussie's) account.

6 February 1987
On Talib's letterhead, Dr Hussain wrote "TO WHOM IT MAY CONCERN".  In fact, the letter was written in connection with a proposed application by Mr and Mrs Mumtaz to migrate to Australia under the BMP.  The letter advised that Talib was a wholesale trading company dealing in international brands of various sporting equipment and was, for example, the sole agent of "Dita" hockey equipment for Australia, New Zealand and Papua New Guinea.  The letter advised that Talib planned to set up a manufacturing/assembly plant in Australia.  It said that Mr Mumtaz had been assisting Talib as "an Hon. Director" based in Bradford in the United Kingdom since December 1985.  The letter continued as follows:

"His marketing and management experience at senior level international positions, his success in establishing and operating Euro-Aussie Enterprise Ltd in the U.K. and various successful business deals that he has undertaken on our behalf, have enabled us to expand our export potential from Queensland to New Zealand, PNG, and more recently to Canada.  It is largely due to his inputs that this year our business has grown three times to what it was in 1985-86.

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

Based on the above facts, we are pleased to offer Mr Mumtaz a full partnership in our Company and would be looking forward to his arrival in Australia to help setting up and then manage our new office in Sydney."

Mr Mumtaz says that the basis on which it was agreed between him and Dr Hussain that Talib would sponsor him is that he would (a) "arrange and supervise for Talib" the building and running of the hockey stick manufacturing plant in Australia, and (b) continue to bring sporting goods to Australia in the same way that he had done when operating at first in Pakistan and then in England.  As will be seen, Mr Mumtaz's case is that the proposal to establish the factory did not come to fruition because Dr Hussain was unable to obtain funding from the Commonwealth Government, that the plan was abandoned by July 1988, and that he (Mr Mumtaz) remained of a mind to implement the plan if he "could obtain permanent residence here [in Australia]".

15 February 1987
Mr and Mrs Mumtaz made an "Immigration Application" to the Department attaching the "TO WHOM IT MAY CONCERN" letter from Talib, and stating that their assets were as follows:

How much of this amount    
______________________________________________
  is it intended to transfer      
House, land, other property   £50,000 
______________________________________________   to Australia?                 

Bonds, shares, etc.  £10,000    1) Over £30,000 transferred   
______________________________________________
  already in Business          
Cash (including bank balances)  £10,000 
______________________________________________   2) FURTHER £50,000 - AFTER

Other assets        IN PAKISTAN      RS 1 MILLION
______________________________________________   Is it readily transferable?    

TOTAL          £70,000   Yes  a¨  No  ¨           
______________________________________________

Deduct outstanding debts, mortgages, etc.          NIL 
______________________________________________ 

BALANCE      £70,000   

+RS 1 MILLION 

What is the significance of the amounts stated in foreign
currencies?  The date 15 February 1987 was a Sunday.  The exchange rate between the Pakistani rupee and the English pound was, at the time, on a view favourable to Mr Mumtaz, of the order of 25 Rs to the £1, with the result that the figure of Rs 1 million was, on a view favourable to Mr Mumtaz, of the order of £40,000.  The total value of Mr and Mrs Mumtaz's assets was therefore represented to be of the order of UK £110,000, as at Sunday 15 February 1987.  At that time the exchange rate between the pound and the Australian dollar was, on a view favourable to Mr Mumtaz, of the order of A$2.27 to the English pound, with the result that the representations in the document were that the couple's assets were of a value of the order of A$249,700 (say A$250,000), that Mr Mumtaz had already transferred to Australia over $68,100 (= over £30,000) and that a further $113,500 (=£50,000) of the $250,000 was readily transferable, leaving $136,500 ($250,000 - $113,500) of the couple's existing assets not readily transferable.

Both Mr Mumtaz as "principal applicant" and Mrs Mumtaz as his spouse signed the Immigration Application form.  There is no reason to think that it understated the nature and values of their assets.  I accept that it did not do so.  As will be seen later, this statement, made only nine months before they came to Australia, assumes importance in the case. 

The form also contained the following material:

"Only Business partners in:

1. MS TALIB AUSTRALIA PTY Ltd
            44 FULHAM ROAD, TOWNSVILLE QLD
            4812  AUSTRALIA

1. MS EURO AUSSIE Ent Ltd (UK)
            TO BE SET UP IN SYDNEY
            WITH PRODUCTION/ASSEMBLY PLANT FOR
            SPORTS GOODS AND ALLIED MERCHANDISES"

23 February 1987
Michael Edward James, who was then employed by the Department in its Manchester UK office, interviewed Mr Mumtaz and told him that he did not satisfy the financial criteria associated with the BMP.  According to Mr James they discussed the possibility of the family's migration to Australia under the Employer Nomination Scheme ("ENS") instead of under the BMP.

15 April 1987
Mr James telexed the Townsville office of the Department advising that Mr Mumtaz had been interviewed on 23 February 1987 regarding a "proposed BMP" but was "rather vague in detail".  The telex continued as follows:

"Might have 170,000 dollars available subject disposal of assets here.  Intends partnership in existing company in Australia which already appears to be extension of his company in UK.  It appears that Mumtaz is required in Australia primarily for his marketing expertise rather than capital investment.

While not totally dismissing possibility of BMP we foresee difficulties and suggested consideration of ENS as alternative.  Grateful your impressions that end after discussion with Talib Australia Pty Ltd., 44 Fulham Rd., Townsville (Phone 752953)."

Mr James deposed that Mr Mumtaz was not accepted for the ENS (the ENS also provided for a grant of permanent residence). However, he said that Mr Mumtaz was granted a Temporary Residence Visa for a stay of two years only based upon a sponsorship by Talib.  He said that he told Mr Mumtaz this:

"If your circumstances change while in Australia and you are able to satisfy the Business Migration Program criteria you would be able to apply for entry under the Business Migration Program again upon your return to the UK."

Mr James was not cross-examined.

10 June 1987
On this date, on the letterhead of Euro Aussie (UK), Mr Mumtaz wrote to the Australian Consulate at Manchester about his "BMP application" and supplied the following information as to his financial position (throughout these reasons I include spelling, typing and other errors from the quoted writings of Mr Mumtaz without calling attention to them individually in the conventional way):

"a)Initial investment of over £30000 already been made in Talib Australia the Proposer of the project. Bank transfers and payments made on behalf of Talib Australia Pty Ltd necessary evidences can be porduced;

b)Minimum amount of A$150000 will be made available before the grant of BMP visa;

c)An other amount of A$100000 will be transferable from my ancestral property after grant of nationality;

d)Services and resources of our offices abroad along with family man-power are immediately available for promotion and marketing of Australian made goods."

The "initial investment of over £30,000 already been made in Talib Australia" referred to in para (a) is apparently the amount of "over £30,000 transferred already in Business" referred to in the Immigration Application of 15 February 1987 referred to earlier.  The amount of A$150,000 referred to in para (b) is somewhat higher than the amount of £50,000 (A$113,500) which had been referred to in that application as readily transferable.  The amount of $100,000 referred to in para (c) as the value of the ancestral property in Pakistan which would be transferable "after grant of nationality" is generally consistent with the amount of Rs 1 million (say £40,000 which (at £1 = A$2.27 = A$90,800) which had been referred to in the earlier application. These amounts mentioned are still substantially less than the threshold sum of $650,000 referred to in Migration Regulation No 47.

20 August 1987
Talib, through Dr Hussain, signed a sponsorship form in respect of Mr Mumtaz's entry to Australia with his wife and five children for temporary residence for two years.  The form stated that Mumtaz's proposed employment in Australia was "in charge manufacturing plant & operations manager" in Sydney. The form was forwarded to the Department's Townsville office under cover of a letter also dated 20 August 1987, although Mr Mumtaz's application was being processed by the Manchester, UK Office.  The covering letter said that Talib's purpose was to establish a hockey stick manufacturing plant in Sydney and that Mr Mumtaz had the expertise to undertake this task over the two year period.

28 September 1987
The ANZ Bank in London referred Mr and Mrs Mumtaz, as customers, to the Business Migration Division of the ANZ Bank in Sydney.  The letter of introduction recorded that Mr Mumtaz had advised that he was a 50% partner in Talib in Townsville and would be setting up a Sydney office of that company.  The letter advised that the Mumtaz family planned to leave the United Kingdom on 30 September and visit Pakistan until about the end of November, then travel to, and settle in, Sydney.

11 October 1987
Documentary evidence shows that Downard Pickfords Pty Ltd consigned a container (TRIU 2230155) of "used household effects" from Felixstowe, England to Sydney, the bill of lading having been accepted on this date.  The bill of lading records that the goods were "shipped on board" on 10 November 1987, that the vessel was "Hyundai No 23" (Voyage No 003), and that it was due to arrive in Sydney on 2 January 1988.

An Australian Customs Service form records that on 2 January 1988 the same container arrived in Sydney.  This form refers to the contents as "soccer balls leather/synthetic" having a customs value of $735.00, cricket balls having a customs value of $113.68 and "unaccompanied household effects" having a customs value of nil.

7 November 1987
Documentary evidence shows that Mr Mumtaz consigned 14 packages of "old and used household effects" from Karachi to Australia having a customs value of $848.00.  The bill of lading shows that the vessel was the "Mulbera" (Voyage No 01).  One of the 14 packages was apparently a "cardboard box" containing "toys, balls, shoes" but there is no suggestion that the "balls were stock for re-sale in Australia, and even if they were, as but a part of one of 14 packages, they must have been small in value indeed.  The port of discharge was Sydney.  The goods were loaded on 7 November 1987.  Freight and charges of $638.31 were payable at destination.

16 November 1987
The Mumtaz family arrived in Australia as temporary residents, having, according to the evidence of Mr and Mrs Mumtaz, travelled from England, via Pakistan and Singapore.

26 November 1987
Mr Mumtaz purchased a Camira car registered number MMH-528 for $8,310 at a motor auction at Rockdale.

27 November 1987
As at this date, Mr and Mrs Mumtaz had a credit balance of
$10,190 in an ANZ Savings Bank account at Martin Place.

February 1988
Mr and Mrs Mumtaz acquired the two subscribers' shares in Euro Aussie which had been incorporated in New South Wales on 12 February 1988 under a different name as a "shelf company".

26 February 1988
The "Senior Business Migration Advisor - NSW" of the ANZ Bank at Martin Place wrote to the manager of the Bank's Hurstville branch, introducing Mr Mumtaz as a customer and advising that a "cheque account, Term Deposit, Access and High Performance Passbook" at the Martin Place branch would be transferred to the Hurstville branch.  The letter also advised that Mr Mumtaz's intention was to set up a Sydney office for "his company Talib Australia Pty Ltd to manufacture sporting goods" and that he had experience in this field and had been "an honorary director in the UK for this company since 1985". 

14 March 1988
Kenneth Norman, then the branch manager of the Hurstville branch of the ANZ Bank, had a meeting with Mr Mumtaz in which Mr Mumtaz said to Mr Norman:

"I have available to me $50,000.00 for the purpose of establishing my company, Euro Aussie Enterprises Pty Ltd."

At the same meeting, Mr Mumtaz requested the ANZ Bank to
establish two lines of credit for the purpose of enabling Euro Aussie to import goods from Pakistan.  On the basis of unlimited guarantees from Mr and Mrs Mumtaz supported by the security of two term deposits, the Bank established such credit line facilities.  Mr Norman's diary note for 14 March 1988 included the following:

"The Directors of the company are Mr Mumtaz and his wife Saeeda.

$50,000 has been made available to set up the company. 

Mr Mumtaz has requested 2 DOC L/C's to be set up in order to import from Pakistan.

The following are the amounts in Australian Dollars and terms.

$ 7,906TERMS SIGHT    EXPIRY DATE   25.4.88

$35,30990 days       "         5.5.88

To secure these facilities Mr and Mrs Mumtaz have signed an unlimited guarantee supported by 2 Term Deposits as follows over which charges have been taken.

1. I.N.D  KK S Mumtaz               $28,000

2. I.N.D. Euro Aussie Enterprises

   Pty Limited  $20,000

DOC Credit limits will be recorded as follows:-

DOC/CR $44,000 to expire 5.5.88. The limit can be reduced 25.4.88 to $36,000."

The amounts of the facilities sought thus totalled $43,215 and the value of the two deposits constituting security totalled $48,000.

Mr Norman was not cross-examined on his affidavit.  It was submitted that this evidence was relevant, as was much of the evidence relied on by the Minister, to show that the business activity of Euro Aussie and of Mr and Mrs Mumtaz was on a small scale, and as therefore contributing to show that it is improbable in the extreme that by the end of 1990, less than three years later, they had transferred into Australia $782,000 over the period 1985 to 1990.   

The subsequent history of the dealings between Mr Mumtaz and the ANZ Bank lend support to this submission.  There were numerous requests for and grants of financial accommodation on a small scale to enable Euro Aussie to pay its way, and in particular, to pay for goods coming from overseas.  Its operations were always on a small scale and it never seems to have had substantial cash.

31 March 1988
Mr Mumtaz prepared a handwritten summary of payments allegedly made by him to or on account of Talib over the period 23 January 1986 to 18 January 1987.  The amounts totalled US$11,331.75 and £8,910.35.

On the same date he prepared a summary of payments allegedly made by him by way of transfers of funds to Talib.  These totalled £15,982.34 which he converted to A$38,837.09 (at an exchange rate of £1 = A$2.43).  Dr Hussain gave evidence that Talib had repaid virtually the whole of this amount: $20,000.00 upon the setting up of Euro Aussie and $17,541.00 in about July 1988 (see later).

18 April 1988
An ANZ "statement of financial position as at 18/4/88" records Mr and Mrs Mumtaz's financial position as being as follows:

Access/savings accounts.  $ 10,000.

Other (term deposits etc.)           $ 50,000.

1984 Camira motor car.  $ 11,000.

Furniture and household effects.     $ 10,000.

50% share in Talib.                  $100,000.

$181,000.

If one were to assume, in favour of Mr and Mrs Mumtaz, that every cent of this represented funds transferred from overseas, and that the Rs 1 million in Pakistan referred to earlier was yet to be brought to Australia, the maximum which Mr and Mrs Mumtaz could ever say that they had brought to Australia would still be less than $300,000.

30 June 1988
Euro Aussie's unaudited financial statements for the period from its incorporation on 12 February 1988 to 30 June 1988 show that it had made an operating loss of $8,676 which, after allowing for tax, came down to $4,425; that as at 30 June 1988 it had a "shareholders' equity" of $2, total assets of $76,019 and total liabilities of $80,442 giving a negative figure for net assets of - $4,423.  However, the major part of the company's liabilities, in fact $79,933, was in the form of unsecured loans by the directors.

15 July 1988
Talib (Dr Hussain) wrote to Mr and Mrs Mumtaz advising that it had been decided, as said to be desired by Mr and Mrs Mumtaz, that Talib's "sister or subsidiary company Euro Aussie" be expanded and that that company, rather than Talib, start manufacturing and importing and marketing sports goods.  The letter advised that "a substantial part" of Mr and Mrs Mumtaz's investment in Talib (said to be A$17,541) had been transferred into their account in the first week of July.  The letter advised that in addition to $20,000 already paid into Euro Aussie, Talib would transfer additional funds so that Dr Hussain and Mr and Mrs Mumtaz could build Euro Aussie as a solid base in Sydney.  The letter went on to advise that in the light of this, Talib would reduce its own expansion in the sports goods area and rely more on Euro Aussie for supplies.  It said that for this reason it would not be appropriate to expand the board of directors of Talib by appointing Mr and Mrs Mumtaz as directors.

Early May 1989
David Michael Morrison was engaged by Mrs Mumtaz at this time to work for Euro Aussie.  He worked for it for three days.  The agreement was that he was not to be paid a wage but was to be paid a commission of 10% of sales.  He said that he saw that the garage of Mr and Mrs Mumtaz's Hurstville residence was stacked with a large quantity of sporting goods, e.g. balls, gloves, bats and hockey sticks, and that similar goods were stored in the house.  Annexed to his affidavit was a letter dated 4 May 1989 signed by Mrs Mumtaz as "director admin & accounts" on the letterhead of Euro Aussie setting out the terms of his engagement.  Mr Morrison's evidence was relevant to show again the small scale of Euro Aussie's business, and, as well, that Mrs Mumtaz had an active role in it.

30 June 1989
Unaudited accounts of Euro Aussie show that for the first full year of operation, the year ended 30 June 1989, its business had resulted in an operating profit of $8,925 (after allowing for income tax, an operating profit of $4,577).  As at 30 June 1989 there was a "shareholders' equity" of $154.  This was, according to the company's accounts, analysed as being derived from share capital of $2 and retained profits of $152, and was represented by total assets of $213,588 less total current liabilities of $213,434.  The liabilities included directors' loans of $209,980. 

Mr Mumtaz asserted that this last figure had been $309,980 and that $100,000 of this had been applied in payment for 100,000 shares in the company issued to him and his wife.  But this cannot be correct as the issue of shares occurred subsequently on 24 November 1989 (see below).  Moreover, there is no satisfactory evidence that the directors' loan accounts were ever as high as $309,980 and I do not accept that the value of Euro Aussie's assets was ever as high as that amount.

23 August 1989
Dr Hussain wrote on Talib's letterhead to Mr Mumtaz stating that his two years' temporary residence was due to expire on 15 November 1989 and advising that if Talib was to apply for an extension, certain substantiated information would be necessary.  The letter asked for a progress report on the setting up of the office and manufacturing plant in Sydney.  The letter advised that since all work in Sydney had been in the name of Euro Aussie, it was necessary to show the Department that that company was a "sister company" of Talib, and so particulars of the shareholdings would be necessary. As well, the letter requested a copy of Euro Aussie's annual accounts.

15 November 1989
Dr Hussain wrote to the Department's Townsville office enclosing a progress report on Talib's "subsidiary company set up in Sydney, established to undertake the tasks for which Mr K K Mumtaz was sponsored to come to Australia."  The letter said that Euro Aussie was now ready to embark on the setting up of the manufacturing plant in Sydney and asserted that the progress report demonstrated this to be the case. 

The "progress report" had been prepared by Mr Mumtaz and was signed by him.  It was an exercise in extravagant self aggrandisement which seems to have had little connection with reality.  For example, it said that Euro Aussie had created "almost full time jobs for various sales representatives and added many agents in the country"; had achieved "commendable results and unparallel [sic] marketing ends"; and had made a "[g]ross profit of A$68,000 ... for the year ending June 1989" (Euro Aussie's accounts showed an operating profit of $8,925 for the year ended 30 June 1989).  The progress report asserted that the company was still committed to set up the hockey stick manufacturing plant and that this would happen once an "industrial plot" was obtained.  It included a "request" for an extension for a further two years of the period of the permission for Mr and Mrs Mumtaz to stay in Australia.

24 November 1989
There is evidence that on this date one share in the capital of Euro Aussie was allotted to Talib, and a further 49,999 shares were issued to each of Mr and Mrs Mumtaz, so that  following the allotment, and taking into account the two "subscribers' shares" which had been transferred to Mr and Mrs Mumtaz (one to each), there were 100,001 shares issued of which all but one were held, in equal shares, by Mr and Mrs Mumtaz.  There is other evidence that the issue was of 50,000 shares to each of Mr and Mrs Mumtaz and one share to Talib, with the result that following the allotment there were, in all, 100,003 shares issued, all but one of which were held in equal shares by Mr and Mrs Mumtaz.  Nothing turns on the difference. 

28 November 1989
Mr Mumtaz wrote to Dr Hussain enclosing a copy of the Return of Allotment of Shares in respect of the 100,000 shares.

30 November 1989
Dr Hussain wrote to Mr Mumtaz advising as follows:

"The present situation appears to be that Euro Aussie is not a subsidiary of Talib Australia: the business being undertaken by Euro Aussie has been solely for the two directors and that the tasks for which Talib Australia sponsored your initial two years stay in Australia have been overlooked.

In view of the above and the loss suffered by Talib Australia both in time and business by curtailing its activities, Talib Australia seems not responsible for any of your activities in Australia.  Any requests to Immigration for further stay are not of Talib Australia's concern."

4 December 1989
Mr and Mrs Mumtaz were granted permission to remain in Australia until 16 March 1990.

4 December 1989
Dr Hussain wrote to Mr Mumtaz concerning the allotment of shares in Euro Aussie.  He asserted that from the time of incorporation down to 23 November 1989, Euro Aussie had been the "wholly owned company" of Mr and Mrs Mumtaz and that the allotments on 24 November had not altered this position.  He complained that Talib had been given to understand that Euro Aussie had been run as its "subsidiary and sister company" and that it had now transpired that this was not the case and that Euro Aussie had in fact operated in the interests of Mr and Mrs Mumtaz alone.  The letter concluded by advising that any extension of Mr and Mrs Mumtaz's stay in Australia would depend on the Immigration authorities' receiving "clarification" and suggesting that this be provided urgently.
The letters of 30 November and 4 December marked the parting of the ways between Dr Hussain and his company Talib in Townsville and Mr and Mrs Mumtaz and their company Euro Aussie in Sydney.

4 December 1989
Talib advised the Department's Townsville office that it no longer supported Mr and Mrs Mumtaz.

23 January 1990
The Townsville office of the Department forwarded its file relating to Mr and Mrs Mumtaz to the Department's Rockdale office.  By the covering note, it advised that Dr Hussain, the sponsor of the original entry on a temporary basis, had advised the Townsville office that he no longer supported any application for a further stay.  The memo enclosed a copy of Dr Hussain's letter dated 4 December 1989 to Mr Mumtaz.  The memo said that since Mr Mumtaz resided in Sydney, any approach regarding permanent entry (which would lack the support of the original sponsor) should be dealt with by an appropriate Sydney office.

It is convenient to interpose in this chronological account the following observation:  It is clear that from the end of 1989 following their being "disowned" by Dr Hussain, if Mr and Mrs Mumtaz were to remain in Australia, they would have to find some ground for doing so which did not include his support.  Yet early in 1987 they had not satisfied the financial criteria of the BMP, a fact which they must have known the Department's records would reveal.

6 March 1990
Mr Mumtaz applied on form 690 ("Application to Remain Permanently in Australia") for "permanent residence" for himself, his wife and their five children, Mrs Mumtaz and the five children being "included" in Mr Mumtaz's application as his "dependants".  Mrs Mumtaz stated in answer to a question in form 690A also dated 6 March 1990, which was an attachment to form 690, that she had never worked in Australia.

Mr Mumtaz wrote to the Department seeking "permanent residence/citizen status on the basis of BMP".  The letter advised that he was financing and managing the affairs of Euro Aussie and had been doing so since 1987 in association with his sponsor, Talib.  The letter outlined the work which, according to him, Euro Aussie had undertaken to date.  The letter advised that it was 100% owned by him and his family.

13 March 1990
Mr Mumtaz provided to the Department a document headed "How I Meet the Business Requirements"  This included the following:

"c.We have at the moment over equivivalent assets/cash and movable shareholdings in EURO AUSSIE owned and run by MUMTAZ family worth of over A$650,000 to meet the projected cost of the venture;

d.Have adequate arrangements for settling down in Australia by having our own residential properties;

e.Originally had applied for BMP from UK but due to immediate availability of the present visa the application was held in abeyance ..."

Paragraph (e) was inconsistent with the evidence of Mr James noted above that the reason why the previous BMP application in early 1987 was not pursued was that Mr and Mrs Mumtaz did not satisfy its financial criteria and that they "might have [only] 170,000 dollars available".  I do not accept that para (c) or (d) was correct either.

Early March 1990 must have been a worrying time for Mr and Mrs Mumtaz.  The current period of their temporary entry period was about to expire; they had recently been rejected by Dr Hussain and were "on their own" in dealing with the Department; yet the Department knew that their previous application under the BMP had not been proceeded with because they had not had personally owned assets available for transfer to Australia remotely approaching the $650,000 figure.

19 March 1990
Grant of resident status under s 47 of the Act was, in an internal Departmental document, recommended for approval subject to health, character and any other requirements being met.

3 April 1990
The Department advised Mr Mumtaz that his application was one which might meet the requirements for the grant of resident status subject to further processing and that certain specified medical tests and examinations were required to be attended to.  Apparently the tests and examinations took place in April and May 1990.

30 June 1990
The unaudited accounts of Euro Aussie for the year ended 30 June 1990 (signed by Mr and Mrs Mumtaz, each as a "director"), are not encouraging.  They show that the company's business of "importing and wholesaling of sporting goods, leather gloves, hardware, health and fitness items" had resulted in an operating loss of $2,583 (after allowing for income tax, an operating loss of $1,576).  The balance sheet shows that as at 30 June 1990 there was a "shareholders' equity" of $98,579.  However, this does not give a true picture of the company's worth for present purposes, since the major indebtedness is "directors' loans".  It seems fair, however, to say that if the company had been liquidated, Mr and Mrs Mumtaz could fairly have hoped to receive a figure in the region of $200,000.

9 January 1991
Mr Mumtaz wrote to the Department advising that his son Adnan Mumtaz had married an Australian citizen.  The Department apparently told him that the effect of this was that the son could no longer be included in Mr Mumtaz's application which therefore continued as an application in respect of Mr Mumtaz, his wife and four remaining children.

30 January 1991
The Department wrote to Mr Mumtaz regarding his application for a "Permanent Entry Permit After Entry".  The letter requested, inter alia, evidence that certain requirements under the BMP had been met, including particulars of "funds already transferred to Australia and details and anticipated dates of other funds still to be transferred from overseas" and "details and positions of all full-time and part-time employees."  The letter advised that Mr Mumtaz's son, Adnan, having now married an Australian citizen, was no longer considered to be Mr Mumtaz's dependant and that he must lodge a separate application.

26 February 1991
Mr Mumtaz wrote a long letter to the Department in reply enclosing numerous documents directed to showing that, for example, Mr and Mrs Mumtaz had assets as at 31 December 1990 amounting to $1,038,163 and no liabilities, and that they had transferred assets and money from abroad in the period 1985 to 1990 of $782,000.  It is not, however, the statements in these documents that are relied by the Minister on as statements "false or misleading in a material particular" for the purpose of these proceedings.

In passing, the following may be noted in relation to Mr Mumtaz's credit.  On 26 February 1991 he told the Department that he and his wife held assets in Australia having a value of $778,163 and assets in Pakistan having a value of $260,000, making a total of $1,038,163.  He summarised these as follows:

"1.AUSTRALIAN ASSETS:  AUS $

Investment in shares valued at Net-Asset-

Backing basis: EuroAussie Enterprises

Pty Ltd:192153.00

Loans to EuroAussie Enterprises P/L:         384712.00

Loans to Talib Australia Pty Ltd (Qld):       36298.00

Loans to EuroAussie Travel Pty Ltd:           15000.00

Personal Assets in Australia:                 60000.00

Furniture & fittings:  30000.00

Cash in Hand & Advances:  15000.00

Jewelery & Valuables:  20000.00

Works of Arts  25000.00

---------

Total in Australia  = 778163.00

2.OVERSEAS ASSETS:

Properties in Pakistan:

Residential land at Karachi Valued at:       100000.00

Rural Land Values at (25 ACRES):             150000.00

Other Ancestral Valuables:  10000.00

----------
  TOTAL  = 260000.00
  ----------
  TOTAL ASSETS: 1038163.00

3.FAMILY OR company liabilities as date:            NIL"

The statement was an outrageous exaggeration of Mr and Mrs Mumtaz's wealth and is inconsistent with every other statement of the family's financial worth in the case.

As part of the same communication Mr Mumtaz gave the Department particulars of "Payments & Transfers for Purchases of Goods Talib Australia Pty Ltd (Qld) & EuroAussie Pty (NSW)" totalling $156,032, and covering items dated from 14 November 1985 to 9 July 1987.  Some of these did not re-appear in the case sought to be made by Mr and Mrs Mumtaz in the proceedings.

1 July 1991
The Department (Mr T J Lynch, Regional Director of the Department's Rockdale office) wrote a letter to Mr Mumtaz requesting further clarification and documentation in accordance with an attachment to the letter, the material parts of which are as follows:

"Please provide the following information and documentation in as much detail as possible.  All copies need to be certified by a Justice of the Peace.

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

.Creation and maintenance of employment in Australia

-details of salaries and duties of Australian staff currently employed on permanent basis

-details on planned expansion to 5-10 permanent staffing including proposed timetable, duties and salaries of staff.

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

.Transfer of unencumbered funds of A$500,000 for the business enterprise and in addition A$150,000 for settlement costs.

-provision of bank statements showing initial transfer of a total of A$650,000.

-certified accountants statement that these funds are unencumbered.

.Establish that the business is not a joint venture.

-certified documents relating to the shareholdings and registration of the business.

......... ........ ........ ........ ........ ......"

8 July 1991
Mr Mumtaz says that he drafted a reply on this date, took it to the Department's Rockdale office on 9 July and spoke to a Departmental officer there about it, subsequently amended it in the light of the discussion, then delivered it in final form (still bearing date 8 July) with annexures to the Department's Rockdale office on 11 July 1991.   This is the material which contained three of the four statements by Mr Mumtaz relied on by the Minister.

9 August 1991
Mr Mumtaz made a statement in a letter of this date to the Department that Euro Aussie was employing three commission agents on a part-time basis "for" New South Wales.  This is the fourth statement by Mr Mumtaz relied on by the Minister.

16 September 1991
Mr Mumtaz was interviewed by Mr John Lynch, the Regional Director of the Rockdale office of the Department and Ms Newton, a senior officer of that office.

17 September 1991
The subject Permanent Entry Permits were granted covering Mr and Mrs Mumtaz and children.  I will not refer to the position of the children henceforth, as no separate issue arises in relation to them.  The entry permit issued to Mr Mumtaz was number 6680077114T1, and that issued to Mrs Mumtaz was number 6680077117G3.

14 October 1991
A "statement of financial position as at 14/10/91" of the ANZ's Hurstville branch gave the following as the assets of Mr and Mrs Mumtaz:

Present

AssetsValue     Bank Use

ANZ bank accounts and deposits.       $597        $597

Investment trust.  -      $2,886

Stall at Flemington Market.       $17,000     $10,000

Two properties in Karachi,

Pakistan.  $125,000           -

1984 Camira motor car.             $6,000      $5,000

Furniture & household effects.     $20,000           -

1984 Toyota Hi-ace.                $8,000      $7,000

Interest in Talib Pty Ltd.        $20,000     $20,000

Goodwill of Euro Aussie

Enterprises Pty Ltd and Euro
       Aussie Travel.                 $700,000     $100,000

Jewellery.   $25,000     $15,000

$901,597     $186,465

There was no expert evidence as to the value of the goodwill of Euro Aussie (there was no evidence as to the significance of "Euro Aussie Travel").  Euro Aussie's poor performance as revealed by its balance sheets and profit and loss accounts has been noted previously.  By 14 October 1991, Mr Mumtaz had stated to the Department that he had transferred to Australia from 1985 to 1990 funds of $782,000.   Where were those funds reflected in any assets of the family in Australia?  Perhaps this line of inquiry influenced him in assigning the figure of $700,000 to the goodwill of Euro Aussie and Euro Aussie Travel.

13 December 1991
On behalf of Mr and Mrs Mumtaz, Ferriers, solicitors, wrote to Dr Hussain and his wife demanding to receive accounts of the partnership "sporting goods business" conducted by Mr Mumtaz and Talib since August 1985.  The letter requested that Dr and Mrs Hussain provide all accounts and financial records of the partnership in respect of each year ended 30 June since 1985.

Early 1992
Gregory George Reid, then a senior electoral officer in the electoral office of Mr Ted Grace MP, Federal Member for the seat of Fowler, had a conversation with Mr Mumtaz about progress of an application by Mr Mumtaz for Australian citizenship.  According to Mr Reid's evidence, the conversation included the following:

Reid"You can't expect the Department of Immigration to be concerned about the University fees of your children.  You must have known when you applied under the BMP that this could happen.  Didn't you set aside money for their education?  You brought
money here, surely you must have money put aside."

Mumtaz:"You would know that I have only said that for the Immigration.  I can't afford $14,000.00."

(emphasis supplied)

Mr Reid was not cross-examined, but in his own affidavit Mr Mumtaz denied that the conversation had taken place in the terms alleged by Mr Reid, and gave his own version which did not include any reference to his children, their university fees or money.  But as will be seen later, I found Mr Mumtaz to be most unimpressive as a witness.  I accept the evidence of Mr Reid.  The conversation constitutes a damning admission by Mr Mumtaz.

November 1992
Mr and Mrs Mumtaz sold a plot in Karachi for $40,000.

3 November 1993
The Department advised Mr Mumtaz that the application for Australian citizenship was "on hold".

25 November 1993
Mr Mumtaz was arrested and the "Notice of Status under s 20 of the Migration Act 1958" was served.

26 November 1993
Mr Mumtaz filed his application in proceedings No NG 934 of 1993.
16 March 1994
A similar notice was served on Mrs Mumtaz.

31 March 1994
Mrs Mumtaz filed her application in proceedings No NG 185 of 1994.

THE ALLEGED STATEMENTS FALSE OR MISLEADING IN A MATERIAL PARTICULAR:

The first three of the statements particularised as against Mr Mumtaz are said to arise from a letter dated 8 July 1991 from him to Mr J T Lynch, Regional Director of the Department, and the annexures to that letter.  That letter was written in reply to Mr Lynch's letter dated 1 July 1991 to Mr Mumtaz enclosing the request for further information and documentation noted earlier which the covering letter said were required in order that the decision maker could be satisfied that all requirements of reg 47 were met, and so "make a lawful decision".  Mr Mumtaz's letter dated 8 July 1991 replied by reference to headings in that attachment.

First statement particularised (Mr Mumtaz)

"1.On or about 8 July 1991 he did falsely state that he had transferred to Australia funds in an amount of
$782,000.00 in cash goods and personal effects between 1985 and 1990."

Mr Mumtaz's letter said:

"4.TRANSFER OF FUNDS

The funds were not transferred in one or two transactions but these continued coming in since 1985 for partnership in  Talib Australia in shape of cash and goods. Later on when I got my visa we transferred directly to our accounts and subsequently, these have been coming in for EURO AUSSIE through Transfers, goods and friends/acquaintses. The details of all phases have been submitted alongwith documents and bank statements etc. The accounts have been workedout and reports have been prepared Chartered Accountants for Euro Aussie Enterprises P/l and EURO AUSSIE TRAVEL also by Auditors & Accountants. The financial STATEMENTS from 1987/88 till 1989/90 have already been submitted.  All the CAPITAL INVESTMENTS have been made by me & my family and we are the sole owners of these companies with solid partner-ship in Talib Australia."

There was annexed to Mr Mumtaz's letter a sheet setting out the following:

"Detail Of Funds Transfered To Australia In Shape of Cash, Goods & Personal   Effects from 1985 till 1990
     -----------------------------------------------------------------

1. Funds transfered through goods by paying

the suppliers.  A$ 156,000.00

1. Transfers Through Banks, T.T'S, etc                A$ 100,000.00

1. Transfer through Travel Cheques,Cash,via

Foriegn currencies brought in by self

/family/Friends & business friends from Pakistan,
    UK $ USA. Under the then Marshall Law Regime in
    Pakistan.  (Paricularly from Pakistan no
    currency could be taken abroad) From 1985-90         A$ 376,000.00

1. Transfers of personal effects,Valuables,            A$ 150,000.00

Jewellery,gifts,Work of Arts, Tools/Equipment
    & commercial merchandises from UK (Full
    container) & from Pakistan (Half container)          _____________

A$ 782,000.00"

In my opinion the letter and annexure, read in light of Mr Lynch's letter dated 1 July 1991, support the proposition that Mr Mumtaz was making a statement to the effect of the first statement particularised.

The figure of $782,000 supplied on 8 July 1991 noted above had also been supplied by Mr Mumtaz to the Department on 26 February 1991.

I digress to note how Mr and Mrs Mumtaz sought to support this amount.  In an affidavit sworn on 24 June 1994, Mr Mumtaz deposed to "particulars" of the cash, goods and personal effects which he claims he transferred to Australia.  In effect this was a summary of the case which he wished to make in these proceedings in support of the veracity of the representation which he had made to the Department.  The particulars were cross-referenced to supporting paragraphs in his affidavit.  In respect of some items, he annexed to his affidavit lists giving more particulars.  The particulars deposed to in his affidavit can be summarised in the following table:

TABLE

Description	Paras in Affidavit	Annexure	Amount as per para 72 of Mr Mumtaz's affidavit & Annexures as explained below
1.  Moneys allegedly brought from overseas to Australia through the banking system from 20 December 1985 to 28 March 1990.	43-45	"N"  11 items	$131,347.97
2.  Hard cash in various currencies brought by Mr Mumtaz, his wife and children from Pakistan over a period from 23 November 1987 to 24 September 1990, sometimes kept at home for periods of time before being deposited into bank accounts.	46-50	"O" 13 items	$179,529.65
3.  Payments made by Mr Mumtaz between August 1985 and November 1987 for shipments of goods from Pakistan and the United Kingdom to Talib, the payments having been made from funds which Mr Mumtaz had in the United  Kingdom and in Pakistan.           $US31,445.00                  + £23,907.00	1,2,3,4, 51-58	"P" 11 items	$86,077.97
4.  Shipments of sporting goods and some household effects when the family came to Australia in November 1987.	6,59-61	"Q" 5 items	$35,834.45
5.  Further goods purchased by Mr Mumtaz or Euro Aussie (UK) and shipped to Australia from 23 May 1988 to 3 December 1990 and (a) sold in Australia;  $156,891.39 (b) still on hand (estimated on stock take done).      $9,000.00	62-65	"R" 27 items	$165,891.39
6.  Jewellery brought to Australia when the family originally arrived and when members of the family visited Pakistan ($72,195 having been brought down to 8 July 1991 and $6,695 subsequently) - valuation for insurance purposes by Pontifex Jewellers.	66-67	"S" 24 items	$72,195.00
7.  Works of art, antiques and items of religious art brought to Australia ($25,000 as per annexure less $5,000 estimated to have been brought by Mrs Mumtaz in 1992) - value estimated by Mr Mumtaz.	68-69	"T" 32 items	$20,000.00
8.  Household and electrical goods, personal effects carpets shipped and brought to Australia in November 1987 from England, Pakistan and Singapore - purchase prices as recalled by Mr Mumtaz.	70	Nil	$30,000.00
9.  Nine hand-woven carpets made in Pakistan and brought from Pakistan - purchase price as recalled by Mr Mumtaz.	71	Nil	$15,000.00
TOTAL OF 1 TO 9	$735,876.43

Some of the categories in the table call for comment as follows:

Category 1
The amounts in Annexure "N" total $131,347.97, but the amounts in paras 43-45 of Mr Mumtaz's affidavit total only $121,723 (apparently a rounding off of the figure of $121,722.97).  On the hearing Mr and Mrs Mumtaz conceded that an item of $9,625.00 dated 18 July 1988 had been included in Annexure "N" by error.  Omission of it will, in effect, reduce the amount of Annexure "N" to $121,722.97 (and see under "Total of categories 1 - 9" below.

Category 2
The 13 deposits referred to in Annexure "O" total $179,529.65.  In annexure "O", Mr Mumtaz deducted "interest earned in Australia" of $605.54 to arrive at an amount claimed of $178,924.11.  I see no reason for the deduction if all 13 deposits represented the Australian dollar deposits of hard cash in foreign currencies brought into the country as alleged.  I have therefore shown the amount in the Table as the sum of $179,529.65 in accordance with Annexure "O" but without the deduction of $605.54.

Category 3
Annexure "P" contains five items expressed in US dollars totalling US$31,445.00 and 16 items expressed in UK pounds totalling £23,906.68.  In para 72 of his affidavit he states the total claimed as being A$86,077.97.  How has he arrived at this amount?
In paras 51-58 of his affidavit, he says that he sent goods totalling $81,371.66 in value of which Talib paid him US$15,000 while he was in the United Kingdom, leaving a net claim of $58,571.66 after deducting from the $81,371.66 the Australian equivalent of US$15,000 (Mr Mumtaz must have used an exchange rate of US$1 = A$1.52 and I will, for ease of calculation, use that rate throughout these reasons).  Further, in those paragraphs he says that while he was in the United Kingdom he paid amounts for "travelling expenses, freight charges, interest on overdrafts and insurance liabilities" totalling $27,506.31 which he claims to be a debt owed to him "by the partnership".  But, he says, $20,000 of this amount was repaid to him by Talib upon his arrival in Australia, leaving a balance of $7,506.31 outstanding.

It is impossible to relate all to this to the amount of $86,077.97 claimed by Mr Mumtaz in para 72 of his affidavit in respect of this category, and to know by what exchange rates the totals in Annexure "P" of US$31,445 and UK£23,906.68 give that amount of $86,077.97.  As will be seen, I have been able to resolve this case without solving these mysteries.

Category 4
This category comprises one item of US$15,932.50 and four items totalling UK£4,546.79.  Again, Mr Mumtaz does not say by what exchange rates these figures give rise to his claim for $35,834.45.
Total of Categories 1 - 9
In para 72 of his affidavit Mr Mumtaz gave the total as $726,270.89.  He had not included the amount of $9,000 forming part of Category 5 and had deducted interest of $605.54 in Annexure "O" as noted earlier.  I have shown the total including that $9,000 as $735,876.43.  The total of $735,876.43 of Categories 1 - 9 is, in any event, less than the represented figure of $782,000 by $46,123.57.  When the acknowledged further overstatement of $9,625.00 in Category 1 is taken into account, the total by which Mr and Mrs Mumtaz acknowledge that the represented amount of $782,000 was an overstatement is $55,748.57.

Second statement particularised (Mr Mumtaz)

"2.On or about 8 July 1991 he did falsely state that he and his wife had an asset in the form of a loan to Talib Australia Pty Ltd in the sum of $36,000."

There was attached to Mr Mumtaz's letter dated 8 July 1991 a sheet headed "Statement of Assets Held By Mr & Mrs K K Mumtaz As On 30/06/91."  This included the following item:

"3.Loans to Talib Australia Pty Ltd     A$ 36,000.00."

In my view this was a statement to the effect of the second statement particularised.
Third statement particularised (Mr Mumtaz)

"3.On or about 8 July 1991 he did state in a letter to the Regional Director, Southern Region, Department of Immigration and Ethnic Affairs that we are the sole owners of these companies with solid partnership in Talib Australia when at that time the business relationship with Talib Australia Pty Ltd had ceased."

The relevant passage occurs in  Mr Mumtaz's letter dated 8 July 1991.  The relevant part responded to that part of the attachment to the Department's letter dated 1 July which said "Establish that the business is not a joint venture", and was as follows:

"5.BUSINESSES NOT AS JOINT VENTURES

We as a family are the sole owners of these businesses and this has been reflected in     Companies Financial Reports submitted the CORPORATE AFFAIRS DEPARTMENT eversince the operation."

In my view this passage and the passage from paragraph 4 ("Transfer of Funds") quoted earlier amounted to a statement that Mr Mumtaz and members of his family were the sole owners of the issued shares in "Euro Aussie Enterprises P/L" and "Euro Aussie Travel" (what, if anything, the latter signifies is not revealed by the evidence), and that he and/or the members of his family and/or those companies also had an interest in a subsisting partnership with Talib Australia Pty Limited which was "solid" in the sense of something on which the Department might rely as having value.  I therefore think that the third statement particularised is supported.

Fourth statement particularised (Mr Mumtaz)

"4.  On or about 9 August 1991 Mr Mumtaz, in answer to a request dated 1 July 1991 that he provide information and documentation concerning the creation and maintenance of employment in Australia including details of salaries and duties of Australian Staff currently employed on a permanent basis, did state that Euro Aussie Enterprises Pty Ltd was employing three commission agents for New South Wales ..."

The relevant part of the Department's request dated 1 July 1991 was as follows:

"Creation and maintenance of employment in Australia

-details of salaries and duties of Australian staff currently employed on permanent basis

-details on planned expansion to 5-10 permanent staffing including proposed timetable, duties and salaries of staff"

The reference to "salaries ... of Australian staff currently employed on permanent basis" made it clear that the request would not be satisfied by provision of details of, for example, persons who had previously been employed or were yet to be employed in the future or by details of persons employed only on a temporary basis.  It was in response to this that in a letter of 9 August 1991 on the letterhead of Euro Aussie Enterprises Mr Mumtaz listed the "detail of STATE AGENTS/DISTRIBUTORS."  In relation to agents for New South Wales it stated:

"7. NSW: For NSW we are employing 3 commission agents we are working on part time basis.  One of them is now in Uni and other is working as sports Minkey Hockey Development Officer. The 3rd in entirely working with our goods". 

Read in the light of the Department's request, this was a statement that Euro Aussie was currently employing on a part-time basis only three agents for New South Wales who were paid by commission.  The statement supports the formulation propounded by the Minister, provided that that formulation is understood as a statement that Euro Aussie was currently employing for New South Wales three commission agents on bases, whether full-time or part-time or both.

Fifth statement particularised (Mrs Mumtaz)

1. "On 6 March 1990 when completing a form 690A, an annexure to form to 690 'application to remain permanently in Australia', she, in response to the question 'Have you ever worked in Australia?', answered 'No', which answer was false."

On page 4 of her form 690A statutory declaration dated "6/3/90" in response to question 21 "Have you ever worked in Australia?" Mrs Mumtaz ticked the "No" box.  Clearly, the making of the fifth statement particularised is supported.

ORAL EVIDENCE

The oral evidence extended over three days.  Helpful submissions in writing were provided by both counsel.

The cross-examination of Mr Mumtaz occupied almost all of the hearing time.  He was a most unimpressive witness.  He did not apply his mind to answering the simplest of questions; answered in sweeping generalisations; evinced feelings, real or apparent, of moral outrage; and generally sought to advance, with single-minded determination, his own cause.  He would concede virtually nothing. 

I formed the impression that he was unwilling to confront simple and direct questions, preferring to engage in an exercise of obfuscation.  Even after allowing for his awareness of the serious implications for him, his wife and children of a failure in the proceedings and a desire to press his case earnestly, unfortunately I have concluded that Mr Mumtaz was being calculatedly evasive because he knew that straightforward truthful answers which confronted the questions asked would damage his case.  He gave the impression of a man who had much to hide.  I do not accept his evidence except where it is corroborated or where  there is other evidence which persuades me to do so.

REASONING

General observations as to onus

If the onus rested on Mr and Mrs Mumtaz to establish that the statements which they made were not false or misleading in a material particular, I would unhesitatingly hold that they had not discharged that onus. But the onus rests on the Minister. What is the applicable "standard of proof"? Two points should be noted. First, although the Minister need not establish fraud and need establish only that the statements particularised were objectively false or misleading in a material particular, the consequences for Mr and Mrs Mumtaz and their children are most serious: They will be liable to be deported (s 60 of the Act) or to be required to leave Australia (sub-s 82 (1)) and may not work in Australia without permission (sub-s 83 (2)).

The family has not just now arrived in Australia.  The application by Mr Mumtaz which gave rise to the issue of the Permanent Resident Entry Permits on 17 September 1991 was made as long ago as March 1990.  During the period of some 18 months which elapsed between the making of the application and the granting of the permits, Mr Mumtaz supplied "particulars" to the Department in response to its requests. 

It may be surprising, in view of the scrutiny to which Mr Mumtaz's case has been subjected in this litigation, that the Department was satisfied by September 1991 that the BMP criteria were met.  The "particulars" supplied to the Department might well strike a reader as shallow and suspect.  But the Department was satisfied.  Two years later, in November 1993, the Department became convinced that statements false or misleading in a material particular had been made.  This has necessitated a review in the course of the hearing in late 1994 and early 1995 of events covering the period 1985 to 1990 which, as I have said, the Department had had under investigation from March 1990 to September 1991.

Mr and Mrs Mumtaz and their children have been living in Australia since 16 November 1987, a period of some seven and a half years.  For the last three and a half years they have been living here as permanent residents pursuant to the now impugned Permanent Resident Entry Permits issued as long ago as 17 September 1991.

The evidence is, in my view, to be assessed against the above background of the effect on Mr and Mrs Mumtaz of findings adverse to them.

Secondly, although a statement may be "false or misleading in a material particular" for the purposes of sub-s 20 (2) (b) (ii) of the Act without having been made dishonestly, the way in which the Minister has put his case, at least in relation to the transferring of the funds of $782,000, is that Mr Mumtaz's statement was grossly false. It is difficult to see how I can accept the Minister's case in the way in which it was put unless I am prepared to find that Mr Mumtaz has acted dishonestly. This is relevant to para 77 (1) (c) of the Act which made a non-citizen who became an illegal entrant under sub-s 14 (2) because of the operation of, inter alia, sub-s 20 (2) "in relation to dishonest action taken by the person ..." guilty of an offence against the Act punishable on conviction by fine or imprisonment or both.

In the light of all the foregoing, although the standard of proof which the Minister must satisfy is the civil one of the "balance"  or "preponderance" of probabilities,  I will find a statement by Mr and/or Mrs Mumtaz to have been false or misleading in a material particular only after exercising great care and caution and only if I am persuaded to that effect by "clear" or "cogent" or "strict" proof: cf Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-344 (Latham CJ), 362, 368-369 (Dixon J); Helton v Allan (1940) 63 CLR 691 at 701, 711; Rejfek v McElroy (1965) 112 CLR 517 at 521-522; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450 (Mason CJ, Brennan, Deane and Gaudron JJ); Beach Petroleum NL v Johnson (1993) 115 ALR 411 (von Doussa J) at 435; Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570 (FCA/Wilcox J) at 572-573.

On the other hand, Mr and Mrs Mumtaz have put forward the substance of what is their only case for the truth and non-misleading nature of their statements.  It follows that if I find that the funds were not transferred from overseas to Australia as claimed by them, it can not be said that the Minister must nonetheless fail because he has not negatived the possibility that the funds were transferred to Australia in ways not encompassed by the case advanced by Mr and Mrs Mumtaz.

Aspects of the evidence in general

The evidence can be considered in general and in detail.  Generally, it is improbable in the extreme that funds of any amount remotely approaching $782,000 or even $650,000 were transferred to Australia from 1985 to 1990.  The documentary evidence relating to Mr and Mrs Mumtaz's assets prior to the falling out with Dr Hussain in December 1989 stands in striking contrast with that which has been asserted by them since that time, that is to say, since it became clear to them that the only way in which they could lawfully remain in Australia was by satisfying the criteria of the BMP.

First, it will be recalled that as at 15 February 1987, Mr and Mrs Mumtaz told the Department that the totality of their wealth was of the order of $250,000 (£110,000).  There is no reason to think that they then had funds in excess of what they represented: it was in their interests then not to understate the position.  They stated that over $68,100 (£30,000) represented assets already transferred to Australia. If one accepts for the purpose of argument that all of the family's overseas wealth as at 15 February 1987 was ultimately to be transferred to Australia, the amount of it was of the order of only $250,000.  If one adds to this the amount of "over" $68,100 allegedly previously transferred, the maximum amount which could possibly be said to have been transferred in the period 1985 to 1990 is of the order of $318,100 or a little "over".

As will be seen later, Mr Mumtaz swore to "particulars" of individual transactions on which he relied as constituting the transfers of funds down to 15 February 1987.  If one were to accept at face value such "particulars", they total A$6,283.00 + UK£16,905.28 (=A$38,374.99 at £1 = A$2.27) + US$31,445.00 (=A$47,796.40 at US$1 = A$1.52).  This total of A$92,454.39 substantially exceeds the amount of A$68,100 (=£30,000) but not nearly sufficiently, if substituted for that amount, to make it possible for Mr Mumtaz to have transferred to Australia an amount remotely approaching the $782,000 represented or even the $650,000 threshold.

From the time of the making of that Immigration Application on
15 February 1987 to his leaving England on 30 September 1987 (a period of seven months), Mr Mumtaz continued working for PIA and, "on the side", importing and selling sporting goods, as well as arranging and paying for the shipment of sporting goods to Talib.  The total of all the items in annexures "N", "P" and "Q" bearing dates between 15 February 1987 and the time of the family's arrival in Australia on 16 November 1987 (a period of some nine months) is A$65,842.29 + UK£9,157.32 (=A$20,787.12 at £1 = A$2.27) a total of A$86,629.41.

If one accepts, for the purpose of argument, that every one of these items did indeed represent funds of his transferred to Australia and that somehow Mr Mumtaz was enabled to acquire the funds the subject of those transfers without any depletion of his existing assets, the maximum amount which he could have transferred to Australia between 1985 and 1990 could then be shown as follows:

Funds transferred down to 15 February 1987: A$92,454.39

All assets anywhere in the world as at 15

February 1987:   A$250,000.00

Funds transferred between 15 February

1987 and 16 November 1987:                 A$86,629.41

A$429,083.80

Thus, even accepting Mr Mumtaz's claims at face value, it follows from acceptance of his statement to the Department on 15 February 1987 as a fair statement of his then assets, that the only way in which Mr Mumtaz could have transferred to Australia between 1985 and 1990 an amount of the order represented, would be if he acquired overseas after arriving in Australia, substantial new funds which did not involve any depletion in his existing funds.  There is no evidence whatever that this occurred.

Secondly, on 14 March 1988 Mr Mumtaz told Mr Norman at the ANZ Bank that he had $50,000 available to establish Euro Aussie.  Even if this is to be treated as $50,000 in addition to the two term deposits of $28,000 and $20,000 referred to in Mr Norman's diary note and to the asset ("equity" or "debt") which he had "in" Talib arising out of the shipment of goods (on which he was to put a figure of $100,000 on 18 April 1988), the total is only $198,000 - of the order of only one quarter of the amount of $782,000. 

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 82.

5.12"12.12.88  Sale of $5,350.25 worth

soccer balls and gloves to

Sportscene and Work-Out World;

Cash sale of $900.00 worth

of sports goods at stalls in

markets.A$6,250.25"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 pp 83-85.

5.13"12.1.89   Sale of bicycle gloves to

Super Auto.A$2,068.50"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 pp 86-88.

5.14"6.2.89    Sale of sports goods.         A$4,467.57"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 pp 89-90.

5.15"10.2.89   Sale of $1,000.00 [sic $10,000.00]

worth of soccer balls and volley

balls to Beropac Pty Ltd; Sale of

$481.95 worth of soccer balls

to ODM International Pty Ltd. A$10,481.50"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 91.

5.16"10.3.89   Sale of $5,000.00 worth of

volley balls to Volley Ball

Association of NSW; Sale of

$513.50 worth of soccer balls

to Northern District Sports.   A$5,513.50"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 92.

5.17"3.4.89    Sale of $5,000.00 worth of

belts, gloves, soccer balls to

Vanblack Pty Ltd, trading as

Sportscene Seven Hills.       A$5,000.00"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 93.

5.18"3.5.89    Sale of $5,000.00 worth of

volley balls to Stacks

Warehouse; Sale of $57.60 worth

of hockey sticks to Castle

Hill Club NSW.                A$5,057.60"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 94.

5.19"22.6.89   Sale of Soccer balls, volley

balls to Stacks Warehouse.     A$3,000.00"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 95.

5.20"23.10.89  Cash sale of $300.00 worth of

sports goods at the stalls in

markets; Sale of $3,022.61

worth of balls and gloves to

Stacks Warehouse at Lidcombe

Sale of $4,000.00 worth of

balls and gloves to Stacks

Rockdale; Sale of $466.65

worth of soccer balls, belts

and gloves to Gillmans Sports,

Goulburn; Sale of $576.00

worth of bike gloves to Such is

Life, Katoomba.               A$8,365.26"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 96.

5.21"19.1.90   Sales of $6,150.00 worth of

Dimple Hockey balls to

Pakistan International

Airlines, Lahore; Sale of

$1,000 worth of sporting

balls to Sportscene,

Leichhardt.A$7,150.00"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 97.

5.22"19.4.90   Sale of $332.66 worth of volley

balls to David Jones; Sale of

$1,156.24 [sic $1,156.25] worth

of gloves to Muscle Magic; Sale

of $5,712 worth of hockey balls

to Stacks, Rockdale; Cash sale of

$500 worth of balls, bats, gloves

at the stalls in the markets.  A$7,700.91"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 98.

5.23"24.5.90   Sales of $5,000 worth of soccer

balls, volley balls and gloves

to Stacks, Fairfield.         A$5,000.00"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 99.

5.24"18.6.90   Cash sale of $1,200 worth of

sporting balls and gloves at

the stalls in the markets;

Sale of $2,210.42 worth of

sporting balls, belts and

gloves to Stacks, Penrith;

Sale of $164.74 worth of belts

and gloves to Paul Ellis

Agencies, Tasmania.           A$5,025.16"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 100.

5.25"2.11.90   Sale of $7,500.00 worth of

sporting balls, gloves and

belts to Stacks, Lidcombe;

Sale of $292.28 worth of

volley balls to David Jones;

Cash sale of $1,508.00 worth

of sporting balls at the

stalls in the markets.        A$9,300.28"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 pp 101-102.

5.26"27.11.90  Sale of $6,000.00 worth of

sporting balls to Stacks,

Lidcombe; Sale of $767.25

worth of gloves, belts to

Peter Wynns Store, Parramatta. A$6,767.25"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 103.

5.27"3.12.90   Cash sale of $870.00 worth of

sporting balls, at the stalls

in the markets; Sale of $141.10

worth of gloves to Exagym; Sale

of $942.01 worth of soccer balls

and volley balls to David Jones;

Sale of $550.00 [sic $5,550.00]

worth of gym bags, belts to Fitness

Generation, Melbourne.        A$7,503.11"

Evidence: KKM (24.6.94) paras 61-65; Ex KKM5 - A1 p 104.

Result in relation to Category 5 (Annexure "R")

The result in relation to Category 5 Annexure "R" is simply that I find that probably the whole of the amount of $165,891.39 does not represent funds that Mr Mumtaz transferred to Australia (finding 1).

6.  Annexure "S" jewellery brought to Australia when the family originally arrived and when members of the family visited Pakistan - $72,195.00.

Evidence: KKM (24.6.94) paras 66-67; tr nil.

There is in evidence a valuation by Pontifex Jewellers for insurance purposes of certain jewellery.  The valuation is dated 10 March 1994 and is addressed to Mrs Saeeda Mumtaz.  The total of all items is $78,890. 

Apart from the evidence of Mr and Mrs Mumtaz there is no evidence that they own this jewellery or that they brought it from overseas.  Mr Mumtaz says that all except $6,695 was brought from overseas down to 8 July 1991.  This date does not accord with the dates referred to in the first statement particularised (1985 to 1990), but I do not find it necessary to resolve the question whether, as claimed, jewellery to the
extent of $72,195 was brought from overseas to Australia from 1985 to 1990 (finding 4).

7.  Annexure "T" works of art, antiques and items of religious art brought to Australia - $20,000.00.

Evidence: KKM (24.6.94) paras 68-69; tr nil.

Annexure "T" gives particulars of 32 items.  The figure of $20,000 is an estimate of Mr Mumtaz.  Although I am not persuaded to believe Mr Mumtaz, I need not decide whether he probably did not bring any or some of these goods to Australia and if he did whether $20,000 represents their value (finding 4).

8.  Household and electrical goods, personal effects, carpets, shipped and brought to Australia in November 1987 from England, Pakistan and Singapore - $30,000.00.

Evidence:  KKM (24.6.94) para 70; tr 186-187.

In para 70 of his affidavit sworn on 24 June 1994, Mr Mumtaz said that the family brought with them to Australia, or he caused to be shipped to Australia, on the occasion of the family's journey to Australia in September-November, the
following goods:

"1 microwave oven purchased in United Kingdom;

1 Pioneer Hi-Fi stereo set purchased in Singapore;

1 NEC video cassette recorder purchased in Singapore;

4 radio cassette recorders purchased in Singapore;

A large sofa set which included two three-seater lounges, four single lounges, a large teak wood coffee table with four side tables, all purchased in Singapore;

One Pentax camera and another camera of a brand I cannot remember also purchased in Singapore;

Fifteen Samsonite suitcases;

Clothing items for all family members which included at least twelve men's suits, mostly from the United Kingdom, and traditional Pakistani saris with golden embroidery;

One full Wedgewood dinner set purchased in the United Kingdom, for a setting of eight;

One Noritake dinner set purchased by me personally in Japan and brought from England;

Various items of furniture, including tea trolley and side boards from Pakistan;

Various other items of value from Pakistan in particular being figurines, small ornaments and small works of art."

I discussed the question of the shipment of household goods to Australia at the time of the family's journey here, earlier in the context of the discussion of Category 4 (Annexure "Q").  For the reasons there given, I do not think that a further $30,000 worth of household and electrical goods, personal effects and carpets were shipped and brought to Australia in
November 1987 from England, Pakistan and Singapore.  I am satisfied that probably none of this sum of $30,000 represents further funds transferred from overseas to Australia (finding 1).

9.  Nine hand woven carpets made in Pakistan and brought from Pakistan - $15,000.00.

Evidence:  KKM (24.6.94) para 71; tr nil.

Although I do not believe the evidence of Mr Mumtaz in this respect, I need not resolve the matter (finding 4).

SUMMARY

It is possible to summarise the effect of my findings that certain items probably do not represent funds transferred by Mr Mumtaz to Australia in a table as follows.  It will be clear from what I have already said, but I now emphasise again, that the balance as shown in the right hand column do not represent amounts which I have concluded probably do represent funds transferred by Mr Mumtaz to Australia (the total of the "finding 2" amounts is $127,954.24).  Rather, they represent the maximum possible amounts of the amounts claimed that could possibly be so described.

Category	Annexure	Amount Claimed	Amounts conceded or proved probably not to represent funds of Mr Mumtaz transferred to Australia (finding 1)	Balance
1	N	131,347.97	62,665.68	68,682.29
2	O	179,529.65	95,840.58	83,689.07
3	P	86,077.97	63,178.92	22,899.05
4	Q	35,834.45	24,834.45	11,000.00
5	R	165,891.39	165,891.39	Nil
6	S	72,195.00	Nil	72,195.00
7	T	20,000.00	Nil	20,000.00
8	H	30,000.00	30,000.00	Nil
9	I	15,000.00	Nil	15,000.00
TOTAL	735,876.43	442,411.02	293,465.41

It follows from the above that even without resort to the prima facie position arising from a consideration of the evidence in general, a close consideration of the individual items satisfies me that probably Mr Mumtaz transferred to Australia an amount of between $127,954.24 and $293,465.41 and no more, and that the first statement was therefore false.  The falsity is substantial.  The very maximum which, according to my findings, on any reckoning and without reliance on the prima facie conclusion arising from a consideration of the evidence in general, could have represented funds transferred by Mr Mumtaz to Australia is not only substantially less than the $782,000 the subject of the statement but is also substantially less than the $650,000 threshold.  In my view the statement was clearly false "in a material particular"; cf Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 (FCA/FC) at 352.

SECOND STATEMENT PARTICULARISED (MR MUMTAZ) -

"On or about 8 July 1991 he did falsely state that he and his wife had an asset in the form of a loan to Talib Australia Pty Ltd in the sum of $36,000".

In a departmental document, this amount was referred to as a loan of $36,298.  Mr Mumtaz's case is that this "loan" arose from a transfer of goods to Talib.  According to the books of Talib, the amount owed by Talib to Mr Mumtaz as at the end of 1987/1988 was only $25,453 of which $17,541 was in fact paid to Mr Mumtaz in July 1988.  That amount of $17,541 was deposited to the joint personal account of Mr and Mrs Mumtaz on 8 July 1988.  In relation to the remaining $7,912, it must be remembered that Talib was apparently not reimbursed for trading stock supplied by Talib to Euro Aussie in 1988, so that there were apparently monies owed to Talib by Mr Mumtaz/Euro Aussie in excess of that balance of $7,912.

Dr Hussain gave evidence that Mr Mumtaz had never lent $36,000 to Talib.  As noted earlier, Dr Hussain said that by payments of $20,000 at the time of the setting up of Euro Aussie and $17,541 in July 1988, Talib had paid off its indebtedness to Mr Mumtaz arising from purchases made by Mr Mumtaz on Talib's account.
I accept, in general, Dr Hussain's evidence.  The evidence relating to "payment" of the balance of $7,912 referred to above is less than clear, but even if that amount remained outstanding, it is far less than $36,000.

I am satisfied that as at 30 June 1991 and as at 8 July 1991, Mr and Mrs Mumtaz probably did not have an asset in the form of a loan to Talib of $36,000.

THIRD STATEMENT PARTICULARISED (MR MUMTAZ) -

"On or about 8 July 1991 he did state in a letter to the Regional Director, Southern Region, Department of Immigration and Ethnic Affairs that 'we are the sole owners of these companies with solid partnership in Talib Australia', when at that time the business relationship with Talib Australia Pty Ltd had ceased."

In addition to the letter written by Dr Hussain to Mr Mumtaz on 4 December 1989, Dr Hussain wrote an earlier letter of 30 November 1989 to Mr Mumtaz.  That letter which is in very similar terms to the later letter concluded: "[i]n view of the above and the loss suffered by Talib Australia both in time and business by curtailing its activities, Talib Australia seems not responsible for any of your activities in Australia.  Any requests to Immigration for further stay are not of Talib Australia's concern".

Further, Dr Hussain, while admitting there had been a partnership in relation to their United Kingdom operations, denied that there was a partnership between Mr Mumtaz and Talib in respect of Talib's activities in Australia.  He said "Mr Mumtaz came to Australia as an employee of Talib Australia Pty Ltd and did not have any directorship of Talib Australia ..."

I see no reason not to accept this evidence of Dr Hussain and see positive reasons to accept it.  No doubt the possibility of Mr Mumtaz's becoming a shareholder in Talib may have been contemplated at some stage but this did not eventuate.  If, contrary to this view, some sort of partnership or joint venture had existed between Talib and Mr Mumtaz in respect of business in Australia, the letters dated 30 November 1989 and 4 December 1989 from Dr Hussain on Talib's letterhead referred to earlier make it clear that it came to an end long before July 1991 when the third statement by Mr Mumtaz was made.  The parties had abandoned any idea of a partnership or joint venture between them long before that time.

FOURTH STATEMENT PARTICULARISED (MR MUMTAZ) -

"On or about 9 August 1991 Mr Mumtaz, in answer to a request dated 1 July 1991 that he provide information and documentation concerning the creation and maintenance of employment in Australia including details of salaries and duties of Australian Staff currently employed on a permanent basis, did state that Euro Aussie Enterprises Pty Ltd was employing three commission agents for New South Wales ..."

Mr Mumtaz gave affidavit evidence as follows:

"36.In my letter to the Department dated 9 August 1991, I stated that:

'For NSW we are employing 3 commission agents.'  This was in fact true.  The agents at that time were:

(a)John and Mary Lovell of Lovell Agencies, who originally worked with our goods in Queensland and later also in northern New South Wales.  I had visited them in October 1990 to discuss a business arrangement under which John Lovell would act as a distributor or agent for commission.

Shipments started in October 1990 and five (5) shipments were supplied to him.  One of these shipments, it may have been the last one, was sent around May 1991.  It was not until early 1992 that Mr. Lovell informed me that the company had ceased operation in December 1991 due to his illness.  In so far as my beliefs are relevant to these proceedings, I believed that John Lovell was in fact working as our company's agent in July and September 1991.  He still holds some of our samples.

(b)Mr Peter Bartcewicz (Peter Bardo) was appointed by us as a Euro Aussie representative/commission agent in April 1991.  Annexed hereto and marked 'L' is a copy of that letter of appointment.  Mr. Bardo collected samples from us on 11 April 1991 and the intention was that he would sell on a commission basis as well as directly to the public (eg. at Parklea markets).  However, the relationship was not a successful one and Mr. Bardo has never returned the goods he took from us, which I estimate to be valued at about $2,000.00.

In July 1991 Mr. Bardo was still engaged as a commission agent and it was not until some time later in the year that I contacted him and asked him to make payments to the company or to return the goods.  He said that he would do this.

(c) Denis Hutchen of Ampro Golf Supplies approached us in mid 1989 regarding the purchase of golf gloves.  He placed
several orders with us over 1989 and 1990.  He also agreed to act as representative of Euro Aussie for the sale of our other sporting products.  Some of the accounts were not settled until late 1991.  Annexed hereto and marked 'M' is a copy of one of the orders from Mr. Hutchen, with my handwritten notes regarding our verbal agreement that he would represent us."

The present issue was not touched on in the oral evidence.  The Minister submitted simply that Mr Mumtaz's statement was misleading in a material particular.  The case to which Mr Mumtaz commits himself is that revealed in paras (a), (b) and (c) above.  He does not submit that if his statement was, on the facts alleged in them, misleading in a material particular, I should nonetheless hold that for other reasons the statement should not be so characterised.

The Department's inquiry of 1 July 1991 emphasised permanence not only by the use of the word "permanent" but also by the reference to "salaries".  Mr Mumtaz's reply had said that of the three part-time commission agents, one was at University, a second was a "Sports Minkey Hockey Development Officer" and the third was working exclusively with Euro Aussie goods.  This drew attention to the part-time nature of the employment.  Moreover, the reference to "commission agents" suggests that the persons being referred to are or may be paid if and when they sell.  It is difficult to relate this statement to the case shown in para 36 quoted above, but the Minister has not satisfied me that that case shows that the statement was
misleading in a material particular.

MRS MUMTAZ
FIFTH STATEMENT PARTICULARISED (MRS MUMTAZ) -

"On 6 March 1990 when completing a form 690A, an annexure to form to 690 'application to remain permanently in Australia', she, in response to the question 'Have you ever worked in Australia?', answered 'No', which answer was false."

Mrs Mumtaz, was a shareholder in, and director of, Euro Aussie, and was "named in the documents as the Secretary of this company."  While maintaining that she spent most of her time "looking after the family as a housewife and mother" she also says that she "occasionally answered the telephone and the front door to business callers and [that she] did some filing and typing."  She states that she never received money for these tasks, and that the things she "did took very little of [her] time."

In her income tax return for the year ended 30 June 1988, her occupation was shown as "businesswoman".  In a tax agent's form for the year ended 30 June 1990, she stated her occupation as "director".  She was, according to the documents, paid $4,500 as directors' fees by Euro Aussie for the year ended 30 June 1989.

There were in evidence two letters on Euro Aussie letterhead.  One is to Mr Stokes dated 29 September 1988 which Mrs Mumtaz
signed her name above "S MUMTAZ Manager/Director".  The other letter, to Mr Morrison dated 4 May 1989 setting out the terms of his engagement, was signed by Mrs Mumtaz above "S. MUMTAZ Director Admin. & Accounts".  Further, there was a copy of an advertisement contained in the Sports Link Diary 1991 for Euro Aussie which described Mrs Mumtaz as "Secretary/Director".

Mrs Mumtaz says, and the evidence supports, the proposition, that she signed as a director "formal documents", such as Euro Aussie's financial statements, but she says that this was done only at her husband's request.  She also signed as "public officer" income tax returns of Euro Aussie.

The evidence shows that expenses were paid by Euro Aussie for business trips of hers on its behalf to Pakistan "to negotiate with overseas suppliers in Pakistan and to check quality of goods to be purchased and testing samples" and, on another occasion, "to negotiate with overseas suppliers in Pakistan and to source their products as well as checking quality of goods to be purchased".  Mrs Mumtaz said that she undertook minor tasks while visiting her family in Pakistan.  The work was done "in Pakistan", not "in Australia".

Whether Mrs Mumtaz has worked in Australia seems to me to turn on the tasks of occasional answering of the telephone and the front door to business callers, and filing and typing; there was no evidence to contradict Mrs Mumtaz that she was not paid for this work.  There is no evidence that if she had not undertaken it, Euro Aussie would have had to pay someone else to do so.

I do not think that the evidence shows that Mrs Mumtaz's statement that she has never "worked in Australia" was false or misleading in a material particular.

However, Mrs Mumtaz was not the principal applicant and success of her application for permanent residence was dependent upon the success of her husband's application. She signed form 690A which was attached to the application (from 690) signed by her husband, and in which she was described as being "included in" Mr Mumtaz's application. The statements provided by Mr Mumtaz were provided for the purpose of securing permanent residence for Mrs Mumtaz as well. In my opinion, Mrs Mumtaz must be taken, for the purposes of para 20 (2) (b) (ii) of the Act, to have made or caused to be made the statements which were in fact made by Mr Mumtaz: see Wong v Minister for Immigration, (1994) 53 FCR 376 (FCA/FC).

CONCLUSION

In relation to Mr Mumtaz, the Minister has satisfied me that the first three of the statements particularised by Mr Mumtaz were false in a material particular.  In relation to Mrs Mumtaz, I am of the view that for present purposes the first three statements made by Mr Mumtaz are also to be taken as having been made or caused to be made by her.

It follows that both applications must be dismissed with costs.

I certify that this and the preceding 121 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:18 July 1995

Heard:         7, 8, 9 December 1994; 13 February 1995

Place:         Sydney

Decision:      18 July 1995

Appearances:    Mr R B Wilson of counsel instructed by Vickovitch & Associates appeared for the applicants.

Mr P Roberts of counsel instructed by The Australian Government Solicitor appeared for the respondents.