Sergio Buschmann Silva v Minister for Immigration, Local Government & Ethnic Affairs
[1989] FCA 298
•09 JUNE 1989
Re: SERGIO BUSCHMANN SILVA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WAG 79 of 1989
FED No. 298
Immigration - Statutory Interpretation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Immigration - deportation - false or misleading statements in visa application - deemed prohibited non-citizen - whether necessary that statements be knowingly false or misleading - whether discretion to deport exercised under direction - natural justice whether migrant not revealing his whereabouts is entitled to have Departmental case put through his solicitor - Chilean political activist - purpose of visit to Australia to raise funds for armed action against military government - purpose of visit on visa application "holiday".
Statutory Interpretation - Migration Act 1958 s.16(1)(ba)(ii) statement false or misleading in a material particular - whether required to be knowingly false.
Migration Act 1958 s.16
Administrative Decisions (Judicial Review) Act 1977 s.13
U.S. v Vargas D.C.N.Y. 380 F Supp 1162, 1168
U.S. Ex Rel Johanson v Phelps D.C.Vt., 14 F 2d 679, 682
U.S. v Rodriguez D.C. Cal 182, F Supp 479
Schubert v Minister for Immigration and Ethnic Affairs (1987) 73 ALR 461
Naumovska v Minister for Immigration and Ethnic Affairs (1982) 41 ALR 635
R v Governor of Metropolitan Gaol; Ex parte Di Nardo (1962) 3 FLR 271
Murphy v Farmer (1988) 79 ALR 1
Kioa v West (1985) 1 CLR 550
Ridge v Baldwin (1963) 1 QB 539
Furnell v Whangarei High Schools Board (1973) AC 660
Russell v Duke of Norfolk (1949) 1 All ER 109
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Salemi v MacKellar (No. 2) (1977) 137 CLR 396
HEARING
PERTH
#DATE 9:6:1989
Counsel for the Applicant: Mr E. Heenan QC with Mr R. Cullen
Solicitors for the Applicant: Dwyer Durack
Counsel for the Respondent: Mr S. Owen-Conway
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The application be dismissed.
By consent the respondent be restrained from continuing to hold the applicant in custody subject to the following conditions:
(i) the applicant shall immediately after leaving this Court, travel by the shortest practicable route to the home of Ian Christopher Alexander referred to in his affidavit of 6 June 1989 and subject to this order remain there until he is deported from Australia;
(ii) the applicant shall report to a nominee of the Regional Director, Department of Immigration, Local Government and Ethnic Affairs in Perth between 12.30 pm and 1 pm on Mondays to Fridays inclusive, and after so reporting in each case, shall return by the shortest practicable route to the home of Ian Christopher Alexander;
(iii) the applicant shall report to the counter officer at the Central Police Station, Hay Street, East Perth between 12.30 pm and 1 pm on Saturdays and Sundays; and
(iv) the applicant shall make himself available for deportation.
The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Sergio Buschmann Silva, better known as Sergio Buschmann, is a citizen of Chile, who presently resides in Stockholm, Sweden. He is a vocal opponent of the military government of Chile led by General Augusto Pinochet. On 21 May 1989 he entered Australia at Melbourne with a visitor's visa issued in Stockholm and valid for a period of two months. Upon entry he was granted a temporary entry permit for that period. While in Australia he has spoken publicly against the Chilean Government. The purpose of his visit to this country, he has said, is "to do work in solidarity with the struggle of the people of Chile". According to the Regional Director of the Department of Immigration, Local Government and Ethnic Affairs, and his officers, that fact was not disclosed when he applied for his visitor's visa in Sweden. They say that Buschmann misrepresented his visit as being for the purpose of a holiday. Further, they say, he did not disclose, as required on his application form, that he had been barred from entry into Switzerland for a period of three years. For these reasons it is said, he is a prohibited non-citizen by force of s.16 of the Migration Act 1958.
On 1 June 1989 the Regional Director of the Department, as delegate of the Minister for Immigration and Ethnic Affairs, signed an order for Buschmann's deportation. On 3 June 1989 he reviewed that initial decision in the light of representations made on behalf of Buschmann and decided not to revoke it. Buschmann now applies to this Court for orders in effect requiring review of those decisions.
Before I turn to the merits of the application it is important to make this point. There is little doubt that Buschmann is a controversial figure in Australia. Strong statements have been made about him by leading figures in this country. There have been allegations that he is a terrorist, ultimately opposed to the democratic process in Chile. These suggestions have been rejected by some of those who support him. Whether he is a terrorist or a democrat is not in issue in this Court. More importantly, the Court does not sit at the Minister's desk or that of his delegate and substitute its own decision on the question of deportation for theirs. In substance, all that the Court has authority to do is to consider whether the decision to deport was made in accordance with law and with the basic requirements of rationality and fair procedure. It is against that background that I turn to the facts of the case.
Factual BackgroundIt is not in dispute that on 9 May 1989 at the Australian Embassy in Stockholm, Mr Buschmann made application for a visitor's visa. A visa is not an entry permit and does not entitle its holder to enter Australia or to be granted an entry permit - see s.11 Migration Act 1958. Traditionally it has been seen as a recognition by the country granting it of the validity of the passport issued by the country from which the applicant wishes to travel - U.S. v Vargas D.C.N.Y. 380 F Supp 1162, 1168; U.S. Ex Rel Johanson v Phelps D.C.Vt., 14 F 2d 679, 682; U.S. V Rodriguez D.C. Cal 182, F Supp 479, 484. Amendments to the Migration Act in 1979 mean that a visa issued by Australian officials is also an authority to a carrier to bring its bearer into Australia - Schubert v Minister for Immigration and Ethnic Affairs (1987) 73 ALR 461.
Section 11A of the Act which provides for the issue of visas, requires that a request for a visa shall be in writing in accordance with the relevant form approved by the Minister. On the form of Application for Visa completed by Buschmann in Stockholm on 9 May there are a number of parts which provide for information to be given. One of those parts numbered 12, is set out as follows:
"12. PURPOSE OF INTENDED VISIT TO AUSTRALIA Holiday:Intended address... Business:Address of business contact... Visit Relatives: Name, address and relationship...
Medical Treatment: Name, address of doctor/hospital....
Other: Specify..."
In the form completed by Buschmann the box "Holiday" bore a cross. A name and address were written next to the cross, that being "LUIS ZUNIGA 7/31 PALMERSTONE ST, CARLTON VIC 3053". No other box was marked and no other entry made in that part of the application form.
Part 17 of the form was as follows: "17. HAVE YOU OR HAS ANY MEMBER OF YOUR FAMILY INCLUDED IN THIS APPLICATION Suffered from any dangerous contagious disease such as tuberculosis? YES NO Suffered from any mental illness? YES NO Used or been addicted to or
trafficked in narcotics? YES NO Been convicted of a criminal offence in any country? YES NO Been deported or excluded from any country? YES NO IF "YES" TO ANY OF THE ABOVE GIVE DETAILS"
The answer given to each of those questions was "NO".
The form concludes with a declaration which was signed by Mr Buschmann and which included the following:
"I FURTHER DECLARE THAT ALL QUESTIONS HAVE BEEN ANSWERED AND THE PARTICULARS PROVIDED BY ME ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND ABILITY".
Buschmann says, in an affidavit sworn in these proceedings, that when he applied for his visa on 9 May he was asked by the interviewing officer what was the purpose of his visit. He says he does not speak English and so used the services of an English speaking friend, Constanza Gerding, to tell the officer that he was going to do "work in solidarity with the struggle of the people of Chile". The officer, he says, told him that the form did not contain any category of that nature and that he should state he was visiting friends on a holiday and supply a name and address. He returned the next day and gave the name and address of a friend in Australia. His evidence in this respect is supported by an affidavit sworn by Constanza Gerding. The affidavit is irregular in form, having been sworn before a Member of the Swedish Parliament and not a Notary Public, but was not objected to in these proceedings. It bears the observation that Notaries in Sweden do not sign such documents.
As to his answers to the question in Part 17 of the form relating to deportation or exclusion from any other country, Buschmann recalls an incident in which he was detained by Swiss Police in Geneva and placed on a plane to Stockholm. According to his affidavit he had been travelling by car with friends to a meeting of the United Nations Human Rights Commission in Geneva when their vehicle broke down. They left the vehicle with a repairer who required a deposit which exhausted their available funds. They caught a train the rest of the way to Geneva after explaining to the conductor that they had no money but would be met by friends at the station and that these friends would pay the fare. However, when they arrived in Geneva he was immediately detained by police, held for a time and then placed on a plane to Stockholm. According to Buschmann, when he filled out his visa application he did not believe he had been deported from Switzerland, nor had he been told that he had been barred from re-entering that country for a period of three years. The first time he became aware of that fact, he says, was when he was so informed by a departmental officer in Perth. His conversation with Swiss authorities had taken place with the help of a Portuguese interpreter and it was suggested that there may have been some difficulty in translation. Buschmann concluded his affidavit by pointing out that he is a public figure in Europe, where he has travelled freely and extensively. When so travelling he has performed the same sort of activities as he has been undertaking in Australia. He regularly gives press interviews and his photograph has appeared in newspapers throughout Sweden and the rest of Europe. He came to Australia "to promote the cause of the Chilean people". He has not, he says, sought to hide that fact and denies that he tried to or did in fact mislead the official to whom he spoke when applying for the visa.
According to a statement of reasons in support of the delegate's deportation decision, Buschmann, although a citizen of Chile, holds a Swedish aliens passport which enables him to re-enter Sweden. After his entry into Australia it is said he addressed rallies and gave a number of lectures at which he publicly stated his intention to raise money to buy arms to oppose the Government in Chile. These activities, according to the delegate, brought him to the notice of the Department and showed him to be a person to whom its policy on controversial visitors should apply. Attached to the reasons was a memorandum to the Minister for Immigration, Local Government and Ethnic Affairs from Ms. Sue Kirby, Assistant Secretary Analysis and Compliance. The memorandum which does not bear a legible date was a response to a ministerial request for "an update on recent developments in the Buschmann case". The memorandum noted that in his application for a visa Buschmann had failed to disclose that he had been invited to come to Australia by a group consisting of Parliamentarians, the Uniting Church and a Trade Union organisation and failed to disclose that he had been excluded from Switzerland and is the subject of an entry ban to that country until 1992.
It was said in the memorandum that:
"The Departments of Foreign Affairs and Trade, the Attorney General's and ourselves are increasingly concerned at his continued presence in Australia, particularly given the press reports that he is hoping to raise funds to buy arms. Foreign Affairs have briefed their Minister on this activity as being totally unacceptable to the Australian Government. Any steps to persuade Mr Buschmann to depart voluntarily are almost certain to result in strong representations from the group who invited him to Australia for him to stay. In any event, he is unlikely to leave voluntarily and may apply for ..." (the next word is left out).
Ms. Kirby went on to say that under the Controversial Visitors Policy, Buschmann would not have been issued with a visitor visa had it been known that the purpose of the visit was to raise money to buy arms for violent action in Chile. Her memorandum continued:
"A possible course of action would be to invite Mr Buschmann to interview and explain that we believe his presence in Australia is in contravention of our controversial visitors policy because he has publicly stated his intention to raise money to buy arms to oppose the elected Government in Chile. We would also explain that we believe he is a prohibited non-citizen under s 16(1) because he failed to disclose exclusion from Switzerland and the true purpose of his visit to Australia. Mr Buschmann would then be offered two days to show cause why his temporary entry permit (TEP) should not now be cancelled and a deportation order be effected on him. It would of course be open to Mr Buschmann to depart Australia voluntarily within the two day period rather than await the cancellation of the TEP and deportation. A possible time frame for the course of action suggested is for Mr Buschmann to be called to interview on Monday 29 May.
The question of extradition to Chile is not addressed in this Minute as it is a matter for your colleague the Attorney General."
The Minute concluded with the recommendation that the Minister agree to Buschmann being interviewed to clarify his status under the Migration Act. Also attached to the reasons for decision was a facsimile message by way of advice from the Australian Embassy in Berne dated 25 May 1989 to the Entry Liaison Section of the Department in Canberra in the following terms:
"A three year entry ban (until March 1992) was placed upon A/N by Swiss authorities on 13th March 1989, the same time as he was required to leave Switzerland.
He was caught travelling by train without a ticket and without any money to pay for a ticket. He was handed over to the Police who arranged his departure from Switzerland and the imposition of the entry ban. He was advised of the entry ban and its meaning."
Mr Buschmann, it is said, was invited through his solicitor, to attend an interview at the Perth Office of the Department at 1 pm on 31 May 1989 to discuss his immigration status in Australia. Although it is not so stated in the reasons, this would appear to have been an invitation issued pursuant to the recommendation contained in the Memorandum from Ms. Kirby to the Minister. He failed to attend the interview and further appointments were arranged for 2.30 pm on 31 May 1989 and 9.30 am on 1 June 1989. He attended at neither of those but on the latter occasion a deputation turned up on his behalf. It consisted of his solicitor, Mr Stubbs, a member of the Legislative Assembly, Dr Ian Alexander, and Mr Clive Brown, Secretary of the Trades and Labor Council of Western Australia.
According to a handwritten memorandum from Mr P.D. Watt, the officer in charge of the Compliance Section of the Department, members of the deputation said that Buschmann had not attended as arranged and that they were there to establish why the Department was interested in him and the type of questions to be put to him. After establishing those facts it was said they would discuss with Buschmann whether he should personally present himself. It was not their intention not to make him available to the Department, but his safety was of much concern to them and they wanted to ensure his interests were protected. The group was then told that the Department had received information that Buschmann may have furnished untrue information in his application for a visa at Stockholm and that it was that matter on which the Department wanted to question him. Depending on the information to be provided by him, a decision on his status in Australia would be made. If he were deemed to be a prohibited non-citizen, then it was likely he would be asked to depart Australia as soon as possible.
Stubbs asked to know the specific questions the Department wanted answered so that he could counsel his client accordingly. He was told he would not be given the specifics as the issues needed to be put directly to Mr Buschmann, not to his solicitor. Stubbs asked if it would be acceptable for his client to continue with his visit and depart as planned in a few weeks time. Assurances would be provided if necessary to guarantee the departure in fact did occur. It was, however, pointed out that if the Department decided his client was a prohibited non-citizen, departure would have to take place as soon as practicable. If that presented problems, they could be formally put to the Department. The meeting concluded, according to Watt, on the basis that the group would link up with Buschmann and inform him of their discussions. They left the Department's office at 10.50 a.m.
At about 1.45 on the afternoon of the same day, Mr Stubbs returned to the Department without Buschmann. He was asked by Ms K.M. Berryman where Buschmann was. He said he did not know his whereabouts at that time. He was asked but declined to say where Buschmann had been when he had last spoken to him. He indicated that he would convey information regarding the visa application and said that he could answer any questions on the matter which they wished to put. He had with him an annotated copy of a blank visa application form and read through the details which Buschmann indicated that he had provided. Berryman noted that the answers were the same as those provided on the actual form in all material particulars. Stubbs repeated Buschmann's account of the conversation with the issuing officer at the Stockholm Embassy. Berryman asked him whether Buschmann had indicated that there might be an error in any of the other answers, but Stubbs did not say that this was the case. He said again he was prepared to answer any specific questions or to convey any information from Mr Buschmann that the Department wanted.
Berryman advised Stubbs that she considered Buschmann had made a false statement on his visa application and that he was a prohibited non-citizen by virtue of s.16 of the Migration Act. When questioned on the basis of this decision, Watt and Berryman indicated that it was made on information available to them, including that which he had or had not provided. Following further discussion she asked Stubbs to wait and then conferred with the State Director and Mr Keith Owen, who confirmed their view. She then told Stubbs that Buschmann was deemed to be a prohibited non-citizen under s.16 of the Act and would be required to report to the office by 3 pm otherwise a submission recommending deportation would be put before the Minister's delegate.
It is evident that at this stage the allegation that Buschmann had made a false statement concerning exclusion from Switzerland was not put to his solicitor. Stubbs' own affidavit is substantially consistent with the account given in the memoranda prepared by Watt and Berryman respectively.
The delegate's reasons for decision go on to note that the 3 pm deadline was extended to 5 pm pending an approach to be made "to Canberra". But there was no evidence that any such approach was made and Buschmann did not attend as requested. In the light of the history of the case, the delegate concluded that Buschmann had made false or misleading statements on his application for a visa. In particular, he formed the view that the visit to Australia had been pre-arranged with the purpose of giving lectures and engaging in meetings aimed at promoting the overthrow of the Pinochet Government in Chile. The evidence was, he found, that these activities were contrary to the Government's policy on controversial visitors which seeks to exclude persons who plan, participate in, or promote politically motivated violence. In relation to the alleged exclusion from Switzerland, he accepted, in the absence of any evidence to the contrary, the advice from the Australian Embassy in Berne that Buschmann had been excluded on 13 March 1989. Given the finding that false or misleading statements had been made in the visa application, he concluded that Buschmann was a prohibited non-citizen under sub-s.16(1) of the Migration Act. It was within his discretion to regularise his continued presence in Australia by authorising the grant of an endorsed temporary entry permit. He was, however, satisfied that the consideration of such a grant would not have been appropriate at that stage. Buschmann's solicitor had been informed that his client was deemed to be a prohibited non-citizen, but no application to regularise his stay had been lodged by him or on his behalf and he had not come forward to place any claims in this respect before the Department even though the opportunity to do so had been given. He referred to the Australian Government's policy on illegal immigrants, part of which says that the process of removing an illegal immigrant from Australia should start as soon as his or her presence is known by the Department. It is not necessary to wait upon the arrest or physical location of the person concerned. The policy also says:
"Illegal immigrants located by the Department should have an opportunity to present matters to be taken into account on their behalf. The time for them to take advantage of this opportunity is not unlimited. As a general policy, 48 hours is a reasonable period to allow. Refusal by, or disinclination of, illegal immigrants to take up these opportunities, or any lack of co-operation, does not constitute reason to delay or defer the decision-making process."
The delegate found that Buschmann had failed to attend at the Department's offices when requested and had concealed his whereabouts from the Department. In all the circumstances he considered a deportation order appropriate on the basis of the material then before him, in the knowledge that when Buschmann was located the decision would be reviewed in the light of his circumstances and statement at that time.
That order was reconsidered with a view to possible revocation on 3 June 1989. Reasons for that decision have also been provided pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977. In those reasons the delegate recorded that on 2 June Buschmann attended an interview at the Department and at that interview it was explained that he was deemed to be a prohibited non-citizen pursuant to s.16 and that he had made false statements on his application for a visa relating both to the purpose of his intended visit to Australia and to the question of his deportation and exclusion from Switzerland. The findings of fact in the delegate's reasons for decision summarise Buschmann's responses which were similar in effect to his affidavit which has already been referred to. It is perhaps notable that according to the delegate, Buschmann said that at the time of his removal from Switzerland he was told by Swiss officials that he would be deported and that he had 90 days in which to appeal against that decision if he wished. However he elected not to pursue the matter. He maintained however, that he did not know that he had been banned from re-entering Switzerland for three years. If he had known this he would have appealed as he needed to visit Geneva regularly, it being the headquarters of the Human Rights Commission. In relation to his activities in Australia since arrival and proposed activities if he were permitted to remain, it is said that Mr Buschmann told the Department that since arrival he had been attending public meetings and giving press conferences to highlight the barbarities perpetrated by the present regime in Chile. He was booked to depart on 15 June 1989 and would wish to stay until then. He was on a diplomatic mission for his country and wanted to be able to talk with anyone who wanted to talk to him. What he had to say had not always been accurately reported in the press and he had complained of this to the West Australian Newspaper which had agreed to print a retraction. It was put to him that from newspaper reports, it would appear that some of the matters being said at public meetings went beyond what could be considered acceptable. He replied that the Australian Government had the right to decide what could or could not be said by a visitor to the country and should any conditions be imposed on him, he would be prepared to abide by them. If he were not permitted to talk to anyone about Chile, he would leave Australia immediately. When asked whether he would leave Australia voluntarily rather than by deportation if not permitted to remain, he initially stated he was not prepared to depart voluntarily. He had a set of engagements to fulfil and was not prepared to leave until they had been met. It was pointed out that this was inconsistent with what he had said earlier. He responded that he would go the following day but would tell the press why. After further consultation with his lawyer he said he would be willing to leave Australia voluntarily but not immediately, preferably in a weeks time out of Melbourne. Stubbs then made the following points on Buschmann's behalf.
1. That he answered questions as truthfully as possible.
2. The Department did not have a first hand knowledge of what had been conveyed to him by the Swiss authorities. There had been a problem with interpreters, nothing had been placed in his passport so the Department should give him the benefit of the doubt.
3. Buschmann was adamant that he had explained fully the purpose of his visit to an Embassy employee in Stockholm. He was a person of high public profile, he had a witness with him at the time and had been forthright in these discussions. It would be difficult not to accept his account of the events leading to his visa issue.
In considering, notwithstanding these submissions, that s.16 of the Act applied to Buschmann, Jolly accepted as true information given to him by the Senior Visa Officer of the Stockholm Embassy, Mr Kurt Nielsen. Nielsen he said was a person he knew by reputation as one of the Department's most experienced and respected local employees. He had remembered Buschmann in the waiting room at the Embassy, said he seemed to speak quite good English and Swedish and gave voluntarily all the information required on the application form. He had given no indication that his visit to Australia was "to show solidarity with the Chilean people". Jolly accepted that Nielsen's assessment of Buschmann's proficiency in English may not have been correct, but his knowledge of Swedish was apparently good. He also rejected the contention that Buschmann was unaware that he had been deported or excluded from Switzerland on 13 March 1989 given that he had admitted being put on the plane back to Sweden and given a 90 day period in which to appeal. Having regard to his prominence and experience as a traveller, the delegate found it to be an unlikely claim that he was unaware of the significance of what had happened to him. Jolly said he considered the grant of an endorsed temporary entry permit. He considered in that context media reports on the visit and in particular a report in the Age of 26 May 1989 in which Buschmann is quoted as saying that the purpose of his visit was "to explain and substantiate why we argue that the Chilean people do have the right to armed struggle to defend outselves in the face of the barbaric practices of the regime". Jolly's reasons then went on:
"I considered carefully the information given by and on behalf of Mr Buschmann, together with information obtained by me by phone from the Senior Visa Officer, Australian Embassy Stockholm, the submission and attachments of 1 June relating to the recommendation for his deportation and the records of interview with Mr Buschmann on the afternoon of 2 June. I concluded that he was as originally determined, a prohibited non-citizen pursuant to section 16 of the Migration Act, I refused him the grant of an endorsed temporary entry permit and concluded that the basis for the deportation order was confirmed."
It appears that there was some discussion about voluntary departure and according to Jolly, Buschmann would have been allowed to depart voluntarily by the earliest international flight from Perth on 3 June 1989. However through his interpreter, his solicitor and the union official, Buschmann told him he was not prepared to depart on that flight. He had been advised by a Senior Officer of the Department and in general discussion that he would have 48 hours to leave and the time now given was much less. He wished to travel to Adelaide on Saturday, 3 June, to take part in a concert there and would then leave from Melbourne on Sunday 4 June. He had been willing to depart voluntarily in that way. In the end, Jolly in considering whether he should revoke the deportation order and allow a voluntary departure, decided that in view of the serious nature of his activities in Australia, the difficulties experienced in persuading him to attend for interview even at pre-arranged times and the fact that his whereabouts had consistently been concealed, the offer of voluntary departure had represented a substantial concession. In relation to Buschmann's counter proposal, he noted that the later would involve an appearance at a public gathering which, although it had been described as a concert, he had good reason to believe would be highly political in nature and a continuation of activities which had led him to conclude that he should not be allowed to remain in Australia. On this basis he decided not to revoke the order for deportation and to authorise Buschmann's detention.
The Statutory FrameworkSection 18 of the Act provides:
"The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act."
Section 16 in the parts relevant for present purposes provides:
"16(1) Where, after the commencement of this Part...a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who -
.
(ba) at the time of, or prior to, the grant of a visa or a return endorsement in respect of the person, the person -
.
(ii) makes or made, or causes or caused to be made, to the Minister or to an officer, in respect of the grant of that visa or return endorsement, a statement that is false or misleading in a material particular; or .
that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section."
The power to arrest a person who is the subject of a deportation order is contained in s.39 of the Act.
The Grounds of Application
The application in essence seeks review of the decision of 1 June 1989 to deport the applicant and the decision of 3 June not to grant an endorsed temporary entry permit. The latter decision is, of course, bound up with the decision not to revoke the original deportation order. No point is taken about the formal distinction between these two classes of decision.
There are some six stated grounds of review which it is unnecessary to set out in full here as I propose to deal with them sequentially.
Ground 1. The Respondent erred in law in deciding that the Applicant had made or caused to be made to an officer in respect of the grant of a visa to enter Australia a statement that is false or misleading in a material particular.The threshold question that arises is whether false or misleading statements were made. That is a question of fact, not a question of law. There is no doubt and no dispute that the stated purpose of the visit as "holiday" was false. Nor can there be any doubt that it was false in a material particular. Even an acceptance of the applicant's account that he merely complied with the officer's direction in crossing the "holiday" box on the form, does not deprive the statement made of its falsity. It may be that an argument could be mounted that it was not misleading because of the circumstances in which it was made, but that does not save it from falsity in this regard. If an officer did direct Buschmann, as he claims, then it may mean that the circumstances in which he made the statement were morally blameless. It does not alter the legal effect of the statement. And as to that I think I am bound to follow the view adopted by Sheppard J. in Naumovska v Minister for Immigration and Ethnic Affairs (1982) 41 ALR 635 that no element of guilty knowledge is required in relation to false or misleading statements in s.16(1). The decision followed an earlier decision of Sholl J. in R v Governor of Metropolitan Gaol; Ex parte Di Nardo (1962) 3 FLR 271 which as his Honour said had stood for some 20 years. And I accept the force of the observation in that judgment that any interpretation of the paragraph requiring a subjective element in relation to the matters with which it deals would not only be opposed to the obvious purpose of the legislation, it would be opposed to commonsense and render the administration of a very important Federal statute thoroughly impracticable. And in this connection I also have regard to the recent judgment of the High Court in Murphy v Farmer (1988) 79 ALR 1 dealing with s.229(1)(i) of the Customs Act 1901 which provided for forfeiture to the Crown of:
"All goods in respect of which any entry, invoice, declaration, answer, statement or representation which is false or wilfully misleading in any particular has been delivered, made or produced..."
The provision there in question did, of course, contain the word "wilfully" qualifying the term "misleading" and the word "false" which was the subject of construction was held to be latently ambiguous on whether the statement or representation in question was known to its maker to be false. It being a quasi- penal provision, the ambiguity was resolved in favour of the subject. In this case without wishing to understate the importance of the application of s.16 to the individual and his liberty, it is not in terms a penal provision but is regulatory in character. The term "wilfully" does not appear in the relevant part. In the circumstances the judgment of the High Court in connection with another provision of different wording and different purpose would not justify me in departing from the longstanding authority of the decisions of Sholl and Sheppard JJ.
I conclude therefore, that the statement concerning the purpose of the visit, having been false, whether made innocently or otherwise, attracted the application of s.16. Similarly the answer to question 17 concerning deportation or exclusion from another country, was plainly false. Whether or not one accepts Buschmann's explanation of the basis upon which he gave the answer that he did, it too will attract the operation of the section for the reasons I have already given. This finding disposes of the second ground that the respondent erred in law in deciding that the applicant is deemed to be a prohibited non-citizen under the provisions of s.16. It also removes the basis of the third ground which alleges excess of power on the part of the respondent in ordering the applicant's deportation. So far as the exercise of that power is conditioned upon the characterisation of the deportee as a prohibited non-citizen that condition was met. Ground 4. That the decision to issue a deportation order was an improper exercise of power in that a) an irrelevant consideration the briefing note to the Minister was taken into account; b) the decision-maker exercised a personal discretionary power at the direction or behest of another.
The reference to the briefing note is a reference to the memorandum to the Minister from Ms. Kirby. It is listed in relation to each of the decisions as part of the "evidence or other material" on which the delegate's findings were based. The note contains matters of factual background, opinion and suggested courses of action which were put to the Minister. It was part of the historical background to the decision that Jolly had to make and there is nothing about the reasons to indicate that he made any improper use of it. And to the extent that it contained opinions by an officer of the Department about appropriate courses of action, he was, in my view, entitled to take those into account. And there is nothing in the evidence to support the view that he was compelled by some other officer to take the approach that he did. Another memorandum signed by a Mr A. Faubels, to which reference was made in argument, is not, on the evidence, from a superior officer, nor can it be suggested that it bound Jolly or that he regarded himself as bound by it in either of the decisions that he made. Ground 5. That a breach of the rules of natural justice occurred in the making of the decision that the applicant had made a statement that was false or misleading in a material particular and that the Applicant was deemed to be a prohibited non-citizen in that the Respondent failed to allow the Applicant to answer the allegation that he was excluded from Switzerland.
Having regard to the view that I have adopted of the operation of s.16 of the Act, the applicant's explanation of how he came to make the false statement in answer to question 17 could not have affected his status as a prohibited non-citizen. It is, however, plainly relevant to whether the Minister should exercise the power to deport under s.18 and given that it concerned a matter personal to him would have attracted the rules of natural justice - Kioa v West (1985) 1 CLR 550 at 586 (Mason J). The rules of natural justice have been variously described as "fair play in action" - Ridge v Baldwin (1963) 1 QB 539 and "fairness writ large and juridically" - Furnell v Whangarei High Schools Board (1973) AC 660, 679. In a much quoted passage from the judgment of Tucker LJ in Russell v Duke of Norfolk (1949) 1 All ER 109, 118 it was said:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." - see also University of Ceylon v Fernando (1960) 1 WLR 223; Mobil Oil Australia Pty Ltd v The Commissioner of Taxation
(1963) 113 CLR 475, 504 and R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 552-553.
The application of the rules may vary from case to case even where it is the same power that is being exercised - National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 316 (Gibbs CJ); Salemi v MacKellar (No. 2) (1977) 137 CLR 396 at 444 (Stephen J.).
The question of fairness in the case so far as the first decision is concerned reduces to the question whether the Department should have put to Buschmann's solicitor the precise allegation that he had made a false statement concerning his deportation and exclusion from Switzerland. In my opinion, there is no basis for suggesting that Buschmann who initially refused to come forward, was entitled to insist as a matter of fairness that the Department should put its allegations to him through his solicitor. In any event those allegations were put to him with precision when he finally came forward after the deportation order was made. Whether the decisions are taken individually or together, there is no ground for the allegation that there was a breach of the rules of natural justice by reason of failure to fairly put to the applicant the allegations that he had made false or misleading statements in his application for a visa.
The final ground also asserts a breach of the rules of natural justice in that the press clippings referred to in Jolly's decision were not put to him. I am satisfied that the general thrust of the material part of the press clippings relating to the raising of money for arms was put to the applicant. In particular, when asked whether he had been raising money for use against the Chilean Government his solicitor suggested it would not be appropriate for any response to this question to be given. A fortiori, he would have advised his client to respond in the same way to a question concerning the raising of money to purchase arms for use against the Chilean Government.
The political rights and wrongs of the decision to deport Mr Buschmann can no doubt be debated at length and the Minister through his delegate, must take responsibility for that essentially political decision. That responsibility is not avoided by virtue of the fact that the decision is grounded upon his status as a prohibited non-citizen. And it does not necessarily send him from this country either discredited or a fraud. For the foundation upon which his status as a prohibited non-citizen rests, does not involve any finding of fraud or deceit on his part. The false statements made in support of the visa application may have been made as he claims, in all innocence and good faith. As to that the Court makes no finding.
The application will be dismissed and the stay order will be discharged. I will hear the parties as to the appropriate form of orders.
0