Nam Jin Kim v Minister of State for Immigration, Local Government and Ethnic Affairs

[1993] FCA 120

rao \ 4 9 3

JUDGMENT No. ........ ........ .. ,....,.....

IN THE FEDERAL COURT OF AUSTRALIA )	1 No. NG386 of 1992
1
GENERAL DIVISION	1

BETWEEN :	NAEI JIN KIM
Applicant
AND :	MINISTER OF STATE FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC
AFFAIRS Respondent

CORAM:	WILCOX J
PLACE :	SYDNEY
DATE :	19 FEBRUARY 1993

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:	I think I ought not to accede to the application
set out in the notice of motion.	I have referred during the

course of discussion to the problems. There is a difficulty caused by the fact that, not only was the decision taken back in June, but there has been a prior application which was abandoned, apparently on legal advice. However, I think that, having regard to the significance of the matter from the applicant's point of view, if that had been the only element in the case I would not have been disposed to refuse to exercise a discretion in her favour; provided she was able to take steps to ensure that there would not be an undue costs burden on the Minister.

That matter has not been explored; because, during

the adjournment, I re-read the file of the previous matter and also refreshed my recollection of the evidence that Mrs Kim gave in the application by Kyung Chol Kim ("Albert Kim"), which I heard on 21 and 22 December last. As it seems to me, there are sevri-?l material statements in the applicant's application for permanent residence which are inconsistent

with the sworn evidence that she gave on 22 December last.

She gave her evidence by telling her version of her relationship with Albert Kim and Joseph Rivet, her husband. At the time, I thought that she understood what she was saying. Her evidence was given in a comprehensive and comprehensible way. I also believed that the evidence that she gave, at least for the most part, was accurate. The evidence that she then gave is inconsistent with a claim that, at 28 February, 1989, when she completed her application for permanent residence, she had a continuing matrimonial relationship with Mr Rivet. No doubt she saw Mr Rivet from time to time. Apparently he sometimes stayed over in the

and her two children, the house having been bought by Albert	house at Greenacre in which she was living with Mr Albert Kim
Kim with moneys contributed by the present applicant. But it would be quite unreal to treat the relationship with Joseph Rivet as being a continuing matrimonial relationship, or to deny that they were separated; yet this is the effect of the answers she gave.
I think it is also significant that she did not disclose the presence, in the house, of Albert Kim. That was
clearly material. Had it been disclosed, it may have caused the Department to make further inquiries, almost certainly leading to a refusal of the application. On the basis of the evidence she previously gave, a;-.: Judge would have to conclude that the applicant gave false information in support of her application for permanent residence, that information being material. It would follow that s.20(2) of the Miaration Act 1958 would apply, with the automatic result under S. 14(2)(a),
that the applicant is an illegal entrant and liable to deportation. I emphasise the automatic nature of the position. If a decision by a delegate was required, it would not automatically follow that the false statements would result in illegality. That would have to be determined by a delegate. I bear in mind that the determination that was actually made does not depend on the matters to which I have referred. The delegate determined that the marriage was contrived, a view which I would not accept. I think that the marriage with Mr Rivet was genuine, although rather unusual.
But if I am right in my view, that the consequence of false statements is that the person is automatically an illegal
entrant and liable to deportation, there is no need for a decision on that question. There would be no point in the matter being remitted for a fresh decision to be taken.

I do not lack sympathy with Mrs Kim. She has had a

fairly hard life in many respects and has obviously come to enjoy living in Australia. I bear in mind that the children have been here for eight years and no doubt have become thoroughly acclimatised to Australia. But, with all sympathy to her, I think that the result of my exercising discretion in her favour would simply be to commit her to litigation which must fail, and which would only result in further delay and wasted expenditure on both sides. Accordingly, the only

proper course is for me to dismiss the notice of motion.	That
I do.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.
Associate:
Dated:	19 February 1993

APPEARANCE S

Counsel for the Applicant:	M Gelbert
Solicitors for the Applicant:	Vandeness & Scott
Counsel for the Respondent:	D Rowland
Solicitors for the Respondent:	Australian Government Solicitor

Dates of hearing:  19 February 1993

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IN THE FEDERAL COURT OF AUSTRALIA	1	!
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NEW SOUTH WALES DISTRICT REGISTRY	1	NG 3094 of 1991	I
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1
GENERAL DMSION	1	i -
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BETWEEN:	TREVOR HENLEY TAYLOR AND ANNElTE	I
JENNIFER TAYLOR TRADING AS MODULEC ENGINEERING	I
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Applicants	1
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AND:	FREDERTCK JAMES POWELL	1 ,
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Respondent

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CORAM: Davies J.	!,
PLACE: Sydney
DATE .	11 March 1993
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CORRIGENDA

The following amendments should be made to the Judgment of Davies J.:

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Paee 18 , .

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Solicitors for the Applicants:	Michell Sillar	I .
McPhee Meyer
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Solicitors for the Respondent:	Slattery Jurd	&
Co.

Lucinda Jones

Associate to Davies J.

FEDERAL COURT OF

16 March 1993	A U W U A
PRlNClPAL
REGISTRY