Re Maria Politis v Commissioner of Taxation

[1988] FCA 446

. LIMITED CIRCULATION

CATCHWORDS

Applicant issued temporary entry permit at airport passport

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examination line - refusal to grant applicant endorsed

temporary entry permit - allegatlon that applicant's visa was ,-

obtained on false representation - whether applicant was

lawfully placed in custody - refusal of application for

refugee status - allegation that applicant's visa was

obtained on false representation - decision that applicant be
refused refugee status made on false premise that applicant

not then holder of temporary entry permit.

Administrative Decisions (Judicial Review)	Act 1977
Migration Act 1958:	ss . 5, 6, 7, 16, 36, 36A, 38.
SYDNEY

KANAGARANTNAM RAVEENDRAN v THE MINISTER OF STATE FOR

IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

G842 of 1988

LOCKHART J.

8 JULY 1988

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LIMITED CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA 1 1

NEW SOUTH WALES DISTRICT REGISTRY	) No. G842 of 1988
1
GENERAL DIVISION	1

BETWEEN:  KANAGARATNAM RAVEENDRAN

Applicant

AND :

-	THE MINISTER OF STATE FOR
IIIIMIGRATION, LOCAL
GOVERNMENT A D THNIC
AFFAIRS

Respondent

JUDGE MAKING ORDER:	LOCKHART J.	I .
DATE OF ORDER:	8 JULY 1988
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WHERE ORDER MADE:	SYDNEY	I .

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.    The applicant be released from custody in respect of

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which he has been held pursuant to sub-s. 36A(3) of the I

Migration Act 1958.

2 .    The first respondent pay the costs of the applicant of this proceeding, including any reserved costs.

3 .    The exhibits tendered in the proceeding nay be returned to the first respondent.

4. The operation of those orders be stayed until 4 pm

today.

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- NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	)
1 I

9 ,

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G842 of 1988	!
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1

DIVISION GENERAL )

BETWEEN:  KANAGARATNAM RAVEENDFAN

Applicant

AND :

-	THE MINISTER OF STATE FOR
IMMIGRATION, LOCAL
GOVERNMENT A D THNIC
AFFAIRS

Respondent

8 JULY 1988

1

REASONS FOR JUDGMENT

LOCKHART 3. l

This is an application under the Administrative I '

Decisions (Judicial Review) Act 1977 ("the Judicial Review	1-
-	Act")	in which the applicant challenges decisions of the Minister of State for Immigration Local Government and Ethnic	i
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Affairs ("the Minister") and of certain officers of the

Department of Immigration, Local Government and Ethnic ' ,.

Affairs ("the Department") relating to the applicant and to
the determination of his status under the Migration Act 1958
("the Act").
The Facts

The applicant is a citizen of Sri Lanka, and is of Tamil

ethnicity. He was born in 1964 in Sri Lanka; he was a

student there, and he asserts that more than once durlng 1986

he was detained by Sri Lankan army personnel, interrogated,

and maltreated. He arrived at Kingsford Smith Airport on Air I

India flight 404 shortly after 8 a.m. on 31 July 1987. On ..

arrival he presented a Sri Lankan passport issued at Colombo

in 1985, which was then still current.

The passport contained a visitors visa for entry into

Australia which purported to have been issued at the

Australian High Commission, Kuala Lumpur, on 27 July 1987 and

to be valid for one journey to arrive befor5 1 August 1988

allowing the visitor to remain in Australia for a stay of

some thr6e months. The applicant held a return ticket to

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Singapore on an Air India flight departing on 4 August 1987,

and a Singapore Airlines ticket for travel from Singapore to

Columbo.

At the time of his arrival, the applicant presented to immigration officers an incoming passenger card indicating
that he was holidaying in Australia for some six days.	At
the passport examination line	a temporary entry permit, valid

for three months, was issued to the applicant on the basis of

his visa. Shortly after the issue of that temporary entry

permit to the applicant, customs officers drew certain

matters to the attention of	the second respondent, Georgina
Clark, an officer of the Department who was then	o duty at
Kingsford Smith Airport.

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MS. Clark then or shortly thereafter made a note of

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matters that subsequently occurred. That note is in

evidence, and I will take certain statements from the note.

Ms. Clark records that the applicant "claimed to have no

relatives nor even friends here, and was at a loss to explain why he had a V12 visa." The reference to a "V12 visa" is to a particular class of visa issued solely for the purpose of permitting visits to relatives legally in Australia.

Clark records that the applicant indicated that he

intended a five day stay in Australia "as a tourist", but
noted that the applicant apparently "knew nothing of Sydney

MS.

or Australia and had no	idea	of what	he would see or do
here."

Ms. Clark records that, because of the absence of what

appeared to her to be "any valid or acceptable reasons" for
the applicant's being in Australia and because of what she
perceived as an inconsistency between the applicant's account

of the reasons for his presence and the nature of his visa,	a
telephone call to Kuala Lumpur was undertaken to establish

certain matters relating to the visa. As a result of what

Ms. Clark was told then or shortly thereafter as to matters

relevant to the visa interpreter was sought and obtained.

The interpreter assisted in the subsequent questioning of the

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applicant at the airport.

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S I 4.

MS. Clark then communicated certain matters to a Mr.

Peters, an officer of the Department.	Mr. Peters decided to
refuse to grant to the applicant an endorsed entry permit	or
an endorsed temporary entry permit pursuant to ss. 6(2)	and

16 of the Act respectively and directed the second respondent

to place the applicant in custody pursuant to S. 36A(3) of

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the Act.

Mr. Peters also directed that a notice be served on the

Station Manager of Air India requiring the applicant's

removal from Australia in accordance with sub-s. 36A(4) of

the Act. A statement of reasons provided to the applicant

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under S. 13 of the Judicial Review Act indicates that in

making his decision, Mr. Peters took the vie,w that if the

applicant entered Australia he would be a person described in

sub-s. 16(l)(b)(i) of the Act, being a person who entered

Australia and was not at the time of entry an Australian

citizen and who at the time of or prior to entry into

Australia produced to an officer in respect of that entry	a
permit, certificate	or visa that was not issued to the person

or was obtained by false representation. Mr. Peters also

considered that if he did not direct the removal of the

applicant under sub-s. 36A(4) of the Act the cost of his

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removal would have to be borne by the Australian government.

The applicant was then taken into custody at the

airport, and has remalned in custody In the Immigration

Detention Centre at Villawood since that time. Not long

after he was taken into custody, the applicant had access to

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legal advice from the Legal Aid Commission of New South

Wales. His legal advisers assisted him to complete an

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Application for Refugee Status which was forwarded on	or
about 14 August 1987 to the Determination of Refugee Status	: '
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Committee ("D.O.R.S. Committee").

On 8 October 1987, the Department informed the applicant that his application for refugee status had been examined	by	i
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the D.O.R.S. Committee and that the Committee had recommended	I
against the granting of refugee status. The applicant was advised that he Minister had accepted the D.O.R.S. Committee's recommendation and decided that the application
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for refugee status in Australia must be refused.	._

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It appears that in November 1987, Amnesty International

requested the D.O.R.S. Committee reconsider to the

application for refugee status. On 2 February 1988, the

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legal adviser of the applicant	was	informed by Amnesty
International that the	D.O.R.S.	Committee had refused to

reconsider the application for efugee status. On 16

February 1988, the Legal Aid Commission sent a letter to the

Department enclosing an application for permanent residence

made on humanitarian and compassionate grounds and an

application for a further entry permit. The Legal Aid

Commission was informed by the Department on 7 April 1988

that those applications had been refused.

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There is in evidence what is called a Policy Control
Instruction issued by the Department, being number PC1330,

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.	which provides guidance to officers of the Department in relation to various forms of application for status under the Act made by Sri Lankan nationals. It appears that Policy Control Instruction PC1330 is intended to apply, not when an
application for refugee status is made by a Sri Lankan

national, but when such an application has been unsuccessful

and the person concerned then seeks an entry permit pursuant

to S. 6A(l)(b) of the Act. i

The Decision Under Challenge

Various decisions are challenged by the applicant in this proceeding. Three decisions relate to the events of 31 July 1987, and they are described in the Amended Application

for an Order of Review as (1) the decision of the second

respondent, Ms. Clark, of 31 July not to grant to the

applicant an entry permit under sub-s. 6(2) of the Act; ( 2 )

the decision of the second respondent of the same date to
take the applicant into custody pursuant to sub-s. 36A(3) of

the Act; and (3) the decision of the second respondent of 31

July 1987 not to endorse the applicant's entry permit and to

regard the temporary entry permit as of	no force or effect
under sub-s. 16(1) of the Act.

Challenge is also made to what is described in the

Amended Application as the decision of the Minister or his

delegates of 8 October 1987 and 23 January 1988 that the

applicant be refused refugee status and residency status.
Finally, challenge is made to the decision of the third

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respondent, an officer of the Department, of	4 March 1988 to
refuse the applicant a	temporary entry permit and residency

pursuant to sub-s. 6A(l)(e) of the Act.

I had the benefit of careful and helpful submissions

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from counsel for the applicant and the respondent which has

assisted me to decide the matter on an ex tempore basis.

The question to which I shall turn first is whether

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sub-s. 36A(3) of the Act authorised the taking of the

applicant into custody on 31 July 1987 at Kingsford Smith

Airport. The respondents do'not rely upon any source of

power	other	than	S .	36A(3),	whether	sub-s.	36A(2)	or
otherwise,	to	support	the	taking	of	the	,applicant	into

custody. Subsection 36A(3) provides:

"(3) Where a person, not being a person exempted, I

by instrument under the hand	of the Minister, from	I .
the requirements of	Division lA,	who travels by

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aircraft from a place outside Australia to a
proclaimed airport has sought and been refused an

entry permit at that airport or at any other

airport in Australia at which he has called in the

course of that travel, he may, if an authorized officer so directs, be taken into custody at that

first-mentioned airport by an officer and kept in

such custody, either at hat first-mentioned

airport or elsewhere, as an authorized officer

directs until such time as he is removed from

Australia in accordance with sub-section (4) or until such earlier time as an authorized offlcer directs."

In fact, the applicant had on 31 July 1987 sought an

entry permit and had been granted an entry permit valid for

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three months at the passport examination line. It was argued
by the respondents that in law no valid entry permit had been
granted to the applicant because of the combined operation of
sub-s. 36A(3) and sub-para. 16(l)(b)(i)(A) of the Act. The

latter provision provides, so	far as is presently relevant,
that where a person enters Australia who	is not at the time

of entry an Australian citizen and who at the time of or

prior to his entry into Australia produces or causes to be

produced to the Minister or to an officer in respect of that

entry a permit, certificate, passport, visa, return

endorsement, identification card or any other document that

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was not issued to the person, is forged	or was obtained by
false representation, that person shall be deemed to be	a
prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the gerson granting
that permit recognizes him to be	a person referred to in
sub-S. (1) of S. 16.

The respondent submitted that there was an evident

statutory scheme that the entry permit to which sub-s. 36A(3)

is directed is one that permits the person who enjoys its

benefit to in fact enter Australia. Entry into Australia is

defined by sub-s. (5)(2) of the Act so far as is relevant as

leaving the airport at which the person arrived.

It was submitted on behalf of the respondent that since

the issue of the entry permit to the applicant at	the
passport examination line on 31 July was based on the visa	I
obtained in Kuala Lumpur in Malaysia, it can be disregarded on the basis that the visa was obtained by a false

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l	representation. It followed, on this submission, that the
applicant never had the right to enter Australia, or if he
had such a right it was but momentary as he immediately
thereafter became a prohibited non-citizen by virtue of the deeming provisions of sub-para. 16(l)(b)(i)(A).
The respondent then submitted that the applicant never entered Australia within the meaning of that expression in
sub-s. 16(2) of the Act since he was taken into custody at
Kingsford Smith Airport and thence taken to the Villawood Detention Centre where he has remained. Sub-section 36A(8)
of the Act provides that a person shall not, for the purposes
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of the Act, be deemed to have entered Australia by reason
only of his having been taken from a proclaiqed airport f o r
the purpose of being kept in custody at a place outside a
proclaimed airport pursuant to sub-ss. 36(1), 36(2) or 36(3).
On this submission, the applicant was t all material times a
prohibited non-citizen who has never entered Australia.

On the respondent's argument, the applicant as a

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prohibited non-citizen has therefore been outside the scope

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of the Minister's obligation under Policy Control Instruction	l
PC1330 to take into account the fact that he is of Tamil	I
ethnicity in considering his various applications in suit.	I .
If that policy instruction had applied to the case of the
applicant, it would have required inter alia that those to
whom it is directed treat all applications for resident	I .

status from	Sri Lankans sympathetically	on a	case by case
basis.

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The evidence points to the conclusion that the relevant

officers of the Department involved in the events of 31 July 1987 at Kingsford Smith Airport believed that the applicant had arrived in Australia on the basis of a visa obtained by false representations in Kuala Lumpur, and that they believed

that doubt also surrounded the authenticity of the

applicant's passport.

The issue for this Court to determine is, however, not

whether officers of the Department held certain beliefs but
whether the applicant's visa was in fact obtained by false
representation. There is no evidence of any probative value
before this Court to support such a finding. ,In particular,

the second respondent's notes relating to the events of	31
July could not substantiate the requisite finding.

It is certainly possible that the applicant did in fact obtain his visa by false representations made to officers of

the Australian High Commission in Kuala Lumpur. It is true

that the applicant said to the second respondent, in effect,

that he had no relatives in Australia, but there is no

evidence that he was specifically asked if he or others on his behalf had made false representations to the Australian High Commission in Kuala Lumpur or what was otherwise said or

done by him or on his behalf in order to obtain the visa. It

is possible that the visa was issued in favour of the
applicant by mistake, or through confusion, or for some other
reason falling short of false representations made by the

applicant to officers of the High Commission. No officer of

the High Commission gave evidence, and indeed there was no
direct evidence placed before the Court which went to or was

capable of supporting the finding of misrepresentation.

The allegations made against the applicant ultimately

are founded only upon the second respondent's notes of events

following the applicant's arrival at Kingsford Smith Airport.

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Those notes are, in my view, too insubstantial a basis to

support a finding by this Court that the applicant's visa was

obtained by false representation. I do not suggest for one

moment that the second respondent did not hold the belief

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that the applicant's visa was obtained by false

representation, but there is simply no evidqnce capable of

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supporting the serious finding which the Court is asked to
make if the respondents are to succeed in upholding the

legality of the decisions under review.

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Doubtless the temporary entry permit issued at the . 1

passport line at Kingsford Smith Airport could have been

cancelled by the Minister or his delegate pursuant to sub-s.

7(1) of the Act, but it is common ground that the entry

permit issued to the applicant on his arrival t the passport line was not in fact cancelled by the Minister or his duly authorised delegate under that provision. Although there was

a purported cancellation of the temporary entry permit by

officers of the Department, which is noted in the passport of

the applicant, no reliance is or could have been placed upon

that cancellation by the respondents. In the result, the

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applicant was not refused an entry permit at Kingsford Smith

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Airport on 31 July 1987, within the meaning of sub-s. 36A(3), , >

j	and was therefore taken into custody unlawfully.
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The later decision of the Minister or his delegate of 8

October 1987, that the applicant be refused refugee status

was therefore made on the false premise that the applicant

I	was not then the holder of a valid temporary entry permit. Subsequent decisions of the Minister or his delegate that the grant of resident status and that further entry permits be refused were made on the assumption that the applicant had	,
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not entered Australia and that consequently officers of the Department were not bound to apply Policy Control Instruction
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PC1330 in considering the application. Officers of the

respondent relied for that assumption on Osman-Lloyd v - The

Minister for Immigration and Ethnic Affairs, an unreported

judgment of French J. of 5 June 1987, in which his Honour

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held that Policy Control Instruction PC1330 did not apply to

persons who were deemed not to have entered Australia

pursuant to S. 36A(8). However, since on my findings the

applicant had been taken into custody unlawfully and had

entered Australia within the terms of the definition in

sub-s. 5 ( 2 ) of the Act, the factual basis for the

respondent's reasoning has not been established.

In view of my findings, it is not necessary to consider

the submissions of the parties relating to questions of
natural justice. The result is that the applicant succeeds
in the application.

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Conclusion

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It is important in the interests of the -applicant and in

the interests of the proper administration of Australian
migration laws that the ultimate status of the applicant in
this country and under those migration laws be determined as
soon as possible. The applicant has been in Australia for

almost twelve months and has been in custody throughout that

period. Where that custody has been found to have been

unlawful, it has obviously been an infringement of the

applicant's rights and liberty, although the alternative of
deportation may have resulted in greater hardship. On the

other hand, the due enforcement of Australia's,migration laws

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and policies is of high importance. It follows from the
Court's decision in this matter that proper consideration

should be given to the question whether the applicant should

i	be given refugee status or resident status, although the
applicant is now a prohibited non-citizen since his temporary
entry permit has expired. The question of the grant to the

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applicant of	resident status should be considered in the
light of Policy Control Instruction PC1330	so that his being

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of Tamil ethnicity will receive the attention required by the	I . .
policy. The conclusion which the Minister or his delegate reaches following such consideration 1s of course entirely a matter for him, subject to the decision belng one that is properly made in law.

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In this connection, I would observe that if the Minister

I seeks assert to that the applicant's visa w s improperly

obtained or issued on the basis of a false representation, or

that the passport of the applicant was improperly tampered
with, then the facts relating to those matters should be

ascertained as soon as possible. Obviously those matters are

relevant and important considerations in processing any

application of the applicant as to his status in this

country. Once the facts have been ascertained they should be

squarely put to the applicant so that he may have the .*

opportunity of responding to any allegation made against him.

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I propose to order that the applicant be released from custody in respect	of which	he has been held pursuant to
sub-s. 36A(3).	I	do not propose to make any orders for

reconsideration of the decisions previously made. The

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parties may take whatever lawful course they deem appropriate

in determining the proper status of the applicant under the

! migration laws and applicable policies. As the applicant is a prohibited non-citizen, given the expiry of his temporary

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entry visa by effluxion of time, the Minister will doubtless

wish to give careful and immediate consideration to his
future.	I propose, therefore, to stay the operation of these
orders until	4 pm today at which time they shall commence to
operate.

Accordingly, the orders of the Court are that the

applicant be released from the custody in respect of which he

has been held pursuant to sub-s. 36A(3); that the first

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-	'	respondent pay the costs of the applicant of this proceeding,
including any reserved costs and that the exhibits may be
returned to the first respondent. :-.

The operation of the Court's orders is stayed until	4 pm	!
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today.	.	.
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I certify that this and the preceding

fourteen (14) pages are a true copy of

the reasons for judgment herein of the

Honourable Mr. Justice Lockhart.

Associate

- Date: 8 July 1988

Counsel	for	the	Applicant:	Mr.	G. Scragg	!
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Solicitors for the Applicant:	Legal Aid Commission of New South Wales
Counsel for the Respondents:	Mr. R. Greig

Solicitors for the Respondents: Australian Government

Solicitor

Date of Hearing:

Date of Judgment:

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