Nolan, M.E. v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 504

JUDGMENT No.

GENERAL DISTRIBUTION NOT REOUIREQ

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) No. VG 65 of 1992
)
m E R A L DIVISION	1
B E T W E E N :

MARY ELIZABETH NOLAN

Applicant

A N D :

MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS 0 F T H E

C O M M O N W E A L T H	O F
AUSTRALIA

Respondent

JUDGE MAKING ORDER:  KEELY J .

DATE ORDER MADE:	14 JULY, 1992
PLACE ORDER MADE:	MELBOURNE

MINUTES OF ORDER

=E COURT ORDERS THAT:

3.	The respondent pay to the applicant her costs of and
incidental to the lodging and the hearing of the respondent's objection to competency.

1.    The decision by the respondent on 19 February 1992 that the applicant be deemed to be or regarded as an illegal entrant from 16 September 1989 be set aside.

2.    The decision of the respondent cancelling the grant of permanent resident status to the applicant be set aside.

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

THE FEDERAL COURT OF -	A	)
)

VICTORIA DISTRICT R E G I S W	)	No. VG 65 of 1992
)
mNERAL DIVISION	)

B E T W E E N :

MARY ELIZABETH NOLAN

Applicant

A N D :

MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS 0 F THE

C O M M O N W E A L T H	0 F
AUSTRALIA

Respondent

14 JULY, 1992 KEELY ACJ.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT)

In view of the matters raised by me this morning with the

respondent's counsel this case does not call for any extensive

reasons. The central question is whether the court should	find, on all the material before it, that the applicant made
false or misleading statements in her application for resident status, dated 14 September 1988.
I appreciate the difficulty which the respondent's department was faced with by reason of statements in the statutory declarations, made both by the applicant and by her friend Mr. Fitzpatrick on 10 February 1990, which statements were inconsistent with statements made by her on 14 September
1988. There is a conflict between the earlier statements and the later declarations, a conflict which understandably led to an action being taken.
The question before the court is not (except in so far as it may affect costs) whether the department acted r sonably.
It is whether, on all the evidence before the court a false T' f
or misleading statement was made by the applicant on 14 1
September 1988.
I have considered this matter very carefully overnight. I have read the transcript of the submissions advanced yesterday so that they are all quite clear to my mind at this time. It is sufficient for me to say that, having read all that the applicant has sworn in her three affidavits in evidence before this court, I find that her statements in her application on 14 September 1988 were not false and were not misleading. That conclusion has been reached after considering her sworn explanations as to her understanding of
the meaning of words and her explanations for using the words in her statutory declaration on 10 February 1990. She was not
cross-examined by the respondent and no evidence was placed before the court as to what explanations, if any, were given by her when intenriewed by an officer of the department on 19 February 1992 and served with a S. 20 notice of status.
There are aspects raised by the matter that are not easy, in particular the question of what constitutes a de facto

I

relationship. I am unable to accept the submission put by Mr. Downing of counsel on behalf of the respondent yesterday (p.

53 of the transcript) - the one to which I referred earlier today - which was that it was "a semantic argument to say that

there is any difference between live-in boy f riend/girl friend relationships and a de facto relationship, and, if the applicant did not know what the expression "de facto" referred to in the application, in my submission it was something that she had a duty, given certification, to inquire as to what that term meant before she executed the certification".

My view is that, if she had inquired as to the meaning of

the expression, either from a dictionary or from the

department (if it be relevant - and I think Mr. Downing

submits it is not), she would have received an answer which would have supported what she in fact stated on 14 September 1988 in her application, namely, that she was not married and (impliedly) that she did not have a de facto husband; on her sworn evidence that situation changed in January 1989 from

having a "live-in boy friend" to having a de facto husband.

I do not think I need say more about it. In view of my conclusion that the applicant's statements in September 1988 were not misleading, it has been unnecessary to consider the alternative submission put by Mr. Barlow, on behalf of the applicant, that even if the statements were false and misleading, they were not false or misleading "in a material particular". As I have not heard Mr. Downing on that matter,

obviously I should not express any opinion upon it.

Mr. Barlow has asked for costs. . Downing has opposed

that application on the ground that, as he put it, the existence of these proceedings is "entirely of the applicant's

own making" - as a result of her making a statutory

declaration in February 1990 which was inconsistent with what she had said in her application in September 1988. I accept Mr. Downing's submission, subject to one qualification.

I think the proper course is that there should be no order as to costs except in respect of the respondent's filing of, and pursuing, a notice of objection to competency. That objection was decided - and if I may say so, with respect, correctly decided - against the respondent. Lodging an

objection to competency was a step open to the respondent, and there is no criticism of him for taking it; however it was a step that was unsuccessful and it added to the costs of these proceedings. I believe that it is proper in those

circumstances that the respondent should have to pay the	applicant's costs of and relating to the filing and hearing of
the objection to competency.

It follows that the orders of the court will be:

1. That the decision by the respondent on 19 February 1992 that the applicant be deemed to be or regarded as an illegal entrant from 16 September 1989 be set aside.

2.    That the decision of the respondent cancelling the grant of permanent resident status to the applicant be set aside.

1. That the respondent pay to the applicant her costs of and incidental to the lodging and the hearing of the respondent's objection to compeL--v.

I certify that this and the preceding four pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Keely as recorded in the draft transcript and revised by his Honour on 14 July 1992.

Associate:  hiL&t-"ch- .

Date:  15 July, 1992

BTTACHMENT 4

Dates of Hearing 13 and 14 July, 1992

Date of Judgment	: 14 July, 1992
Solicitor for Applicant	Barlow & Associates
Appearing for Applicant	. N. Barlow
Solicitor for Respondent	Australian Government Solicitor
Appearing for Respondent	Mr. R. Downing