Tarasovski, C. & Ors v Minister for Immigration, Local Government & Ethnic Affairs Tarasovska, S. & Ors v Minister for Immigration, Local Government & Ethnic Affairs

CANE TARASOVSKI; SUZANA TARASOVSKA; ILCE TARASOVSKI and TOMICE TARASOVSKI v.
MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Nos. NG220 and NG311 of 1993
FED No. 877
Number of pages - 15
Immigration
(1993) 45 FCR 570

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WILCOX J

CATCHWORDS

Immigration - Alleged illegal entrants - Whether or not applicants made, or caused to be made, false statements to an officer exercising powers or performing functions in respect of entry into Australia - Determination of factual issues - Meaning of "bogus document" - Necessity for causal relationship between the making of a false representation and the issue of the document.

Migration Act 1958, ss.14 and 20.

HEARING

SYDNEY, 30 August - 1 September 1993

#DATE 28:10:1993

Counsel for the Applicants: G T Johnson

Solicitors for the Applicants: Goldsmiths

Counsel for the Respondent: J S Hilton

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The applicants pay the respondent's costs of the proceeding, these costs to be taxed on the basis of a joint hearing of matters NG 220 of 1993 and NG 311 of 1993.

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

JUDGE1

WILCOX J Two matters have been heard together, by consent. They involve four applicants, Cane Tarasovski, a citizen of the Macedonian Republic of the former State of Yugoslavia, his wife, Suzana Tarasovska, and their children Ilce and Tomice Tarasovski. The respondent to each application is the Minister for Immigration, Local Government and Ethnic Affairs.

One proceeding focuses on the position of Mr Tarasovski, the other on that of his wife. In each case the question is the same: is the person an illegal entrant to Australia because of conduct falling within s.20 of the Migration Act 1958? Section 20 states circumstances in which non-citizens become illegal entrants. Subsection (1) concerns events that occurred before the person entered Australia, or at the time of entry; subs.(2) events after entry. Some of the circumstances listed in the section have no relevance to these cases, so it is not necessary to refer to them. The circumstances relied on by the Minister in these cases are those set out in s.20(1)(b)(i), (ii), and s.20(2)(b)(ii). Those provisions read:

"20.(1) 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) ...

(b) when, or before, the person entered Australia, he or she:

(i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry:

(A) a bogus document; or

(B) a passenger card containing information that was false or misleading in a material particular; or

(ii) made, or caused to be made, to an officer

or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular;

(c) when, or before, a visa was granted or issued in respect of the person, he or she:

(i) ...

(ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular; or

(d) ...

(1A) ...

(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) ...

(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; or

(iii) ..."

Subsections (10) to (15) contain a number of defining provisions. Subsection (15) defines a "bogus document", in relation to a person, as an entry permit, visa or other document that was not issued to the person, was forged or fraudulently altered or was obtained by the making of a false or misleading representation. Subsection (10) says that a reference to a person producing, or causing to be produced, a bogus document applies whether or not the person knew that the document was a bogus document. Subsection (11) makes a similar rule in relation to passenger cards and subs.(12) says that a reference to a person making, or causing to be made, a false or misleading statement applies whether or not the person knew that the statement was false or misleading.
The consequences of conduct falling within s.20(1) or (2) are serious. There is provision for the Secretary of the Department of Immigration and Ethnic Affairs to place a special endorsement on the person's visa or entry permit where good reasons exist: see s.20(4) and (5). The visa or entry permit then becomes a "properly endorsed valid entry visa" or "properly endorsed valid visa", as the case may be. However, subject to this exception, where the person has entered Australia, he or she is an illegal entrant while in Australia and not a citizen (s.14(2)) and is liable to be deported (ss.59 and 60). It follows that a court should find that the person has contravened s.20 only where the evidence establishes that proposition to a high degree of satisfaction: see Briginshaw v Briginshaw (1938) 60 CLR 338 at 361-362, Rejfek v McElroy (1965) 112 CLR 517 at 521-522.

The evidence: Mr Tarasovski comes to Australia
5. Both Mr and Mrs Tarasovski were born in Bitola, Macedonia; he on 9 October 1954, she on 15 December 1960. They married on 17 October 1979. Their son Ilce was born on 30 July 1980. In 1981, Mr Tarasovski visited Australia. He came again in 1985. At that time he visited his sister, Slobodanka Gulabovska, who lived at Berkeley near Wollongong. The evidence does not disclose the exact date of his 1985 visit but it does establish that, on 27 November 1985, Mr and Mrs Tarasovski were divorced in Macedonia.

It appears that, after their marriage, Mr and Mrs Tarasovski lived with his parents in an apartment known as "23A Klenovac". "Klenovac" is apparently the name of the street. The building contained four apartments. The others were known as "23 Klenovac", "25 Klenovac" and "27 Klenovac". Despite the numbering system, all four apartments were in a single building and accessible through the same street door. There is no evidence as to when Mrs Tarasovska left the parents' apartment. I assume this happened at about the time of the divorce. There is evidence, from both Mr and Mrs Tarasovski, that she lived with Ilce in the upstairs apartment, number 23 Klenovac, in the period immediately before Mr Tarasovski left for Australia in April 1989. Until then he continued to live with his parents in number 23A. He paid maintenance for Ilce and Mr and Mrs Tarasovski saw each other frequently. But they both claim that the contact arose only casually, because they were living in the same building.
On 18 April 1989, through a Bitola travel agent, Mr Tarasovski made application for an Australian visitor visa. The completed application form is in evidence. It was printed in English and Serbian. Mr Tarasovski says that he could not then read or write either language; he did not understand the form; he signed it in blank and left it to be completed by the travel agent.
The form required disclosure of the applicant's marital status. It provided four boxes, one for each of the possibilities: "Never married", "Now married", "Widowed" and "Divorced". The person who completed the application form crossed the box marked "Now married". The other boxes, including the box marked "Divorced", were left unmarked. An accompanying questionnaire asked the name of the applicant's spouse. This question was answered: "Suzana". When asked during his evidence how this came about, Mr Tarasovski said that he gave his divorce papers to the travel agent. His suggestion is that the agent took the spouse's name from the divorce papers and made a mistake in marking the "Now married" box rather than the "Divorced" box. Mr Tarasovski denied the suggestion of counsel for the Minister, Mr J Hilton, that he believed it would be easier to get a visa if he was thought to have a wife in Macedonia to whom he might be expected to return.
The Australian Embassy in Belgrade issued a visa to Mr Tarasovski. He arrived in Australia on 10 October 1989. Upon arrival he was granted a temporary entry permit valid for six months. Mr Tarasovski went to stay with his sister, and her husband and children, in their home at Berkeley, Wollongong.
Shortly after his arrival at Berkeley, Mrs Gulabovska introduced Mr Tarasovski to a young Macedonian woman who lived nearby, Danijela Sekuloska. Mrs Sekuloska had migrated to Australia in March 1988 with her husband. On 18 April 1988, she gave birth to a son, Denis. In about June 1988, Mr and Mrs Sekuloski separated. Thereafter, apparently, she and Denis lived alone. Mrs Sekuloska had been granted the right to reside permanently in Australia.
The evidence of Mrs Sekuloska is that Mrs Gulabovska told her about her brother, Cane; she said he was divorced and suggested that the two of them go out together. Mrs Sekuloska says that Mr Tarasovski came to her house and helped fix a door. He was kind to her and Denis and she agreed to go out with him. Although Mr Tarasovski says that, in about mid-November, he commenced to live with Mrs Sekuloska in her house, she insists this is incorrect and that it would have been damaging to her reputation in the local Macedonian community to have lived with Mr Tarasovski before they were married.
The question whether the two people lived together before they were married has some bearing upon an ultimate issue. Mr Tarasovski's version tends to support his case that the marriage they ultimately contracted, on 26 March 1990, was a genuine marriage for reasons of love. More importantly, perhaps, the issue gives guidance regarding the comparative credit-worthiness of Mr Tarasovski and Mrs Sekuloska, a significant matter because they are in conflict on numerous matters. It is unlikely that either person would make a mistake about a matter like this. One of them must be lying. For these reasons, it is appropriate to say that I accept Mrs Sekuloska's evidence on this point. I was impressed by Mrs Sekuloska. I thought her a truthful and reliable person whereas I thought Mr Tarasovski to be the opposite. Secondly, there is acceptable evidence that Mr Tarasovski had a room in a local hotel, the Commercial Hotel, Port Kembla, between 1 January 1990 and 22 March 1990. The hotel manager, who is also of Macedonian extraction, was aware that Mr Tarasovski used the room during this period, although he was understandably unable to say that he slept there every night. Thirdly, in an application for permanent residency prepared by Mr Tarasovski and Mrs Sekuloska on 29 March 1990, three days after their wedding, Mr Tarasovski listed the places where he had resided during the previous twelve months. He gave his sister's address for the period from "10/10/89 to 3/90" and Mrs Sekuloska's address "from 3/90".

The evidence: the marriage
13. On 26 March 1990, Mrs Sekuloska and Mr Tarasovski were married at the Registry in Wollongong. Neither Mrs Gulabovska nor her husband attended. Mrs Gulabovska says they both had to work. The witnesses to the wedding were two friends of Mr Tarasovski. Mrs Sekuloska says that she had not previously met them and has not seen them since. Mr Tarasovski disputes this. He says that Mrs Sekuloska met the two witnesses at a restaurant in Wollongong on approximately four occasions before the wedding and that the witnesses subsequently visited them in Mrs Sekuloska's house.

Mr Tarasovski and Mrs Sekuloska agree that they lived together in Mrs Sekuloska's house at 45 Massey Street, Berkeley between the date of the wedding and 19 April 1990. They also agree that, three days after the wedding, they completed an application for permanent residence by Mr Tarasovski. Mr Tarasovski's six month temporary entry permit was about to expire. In the application Mr Tarasovski gave his residential address as "45 Massey Street, Berkeley". He stated his marital status as "Now Married", gave marriage as the ground of his application and ticked the "yes" box for the question: "Do you and your partner intend to maintain a lasting marriage/de facto marriage relationship?" He gave a negative answer to the question: "Was your marriage/de facto marriage relationship contrived to enable you to obtain resident status in Australia?" His application was supported by a nomination form completed by Mrs Sekuloska that contained similar answers.
Mrs Sekuloska says that, on 19 April, the day after her son's birthday, Mr Tarasovski left the house. Before he left he said that he was going to Melbourne to look for a job; when he was settled, she could join him. She says that thereafter they spoke by telephone from time to time and in May he asked her to visit him in Melbourne. She did so, travelling by bus with Denis. They stayed for a week in a friend's house but Mr Tarasovski sent her back to Wollongong because his friend was returning and he had to leave the house. Mrs Sekuloska says that, shortly after her return to Wollongong, a letter addressed to Mr Tarasovski arrived at the local post office from the Department of Immigration, Local Government and Ethnic Affairs. This letter asked them both to attend an interview in Wollongong on 25 June 1990. She says that she telephoned Mr Tarasovski and he said he would come back. She claims that he arrived two or three days before the interview and visited her each day; he had meals at her house but stayed each night at the Commercial Hotel.
Mr Tarasovski's version of these events is quite different. According to him, he lived with Mrs Sekuloska in her house throughout the whole period from November 1989 until after the interview on 25 June. In support of one aspect of his version, it is fair to note that the hotel manager had no record of his having taken a room at the hotel in late June 1990. However, this is not conclusive. The evidence is that Mr Tarasovski was a friend of the proprietors. There were vacant rooms at that time. It is possible that he was allowed to use a vacant room without this being formally recorded in the Guest Book.
Mr Tarasovski and Mrs Sekuloska attended the Department's Wollongong office on 25 June. They were interviewed separately. The interviewing officer was satisfied of the genuineness of their relationship. According to Mrs Sekuloska, on the evening of the interview they had dinner together but Mr Tarasovski then returned to the Commercial Hotel. She says that, the next morning, Mr Tarasovski announced his intention of returning to Melbourne and left that day. Before he left, he gave her his return airline ticket from Sydney to Belgrade and asked her to send it to her father in Macedonia so that he could obtain a refund and remit the money to Australia. She did not do this.
Mrs Sekuloska says that, a few weeks after his departure for Melbourne, Mr Tarasovski's passport arrived in the post. The passport is in evidence. It bears an endorsement, dated 23 July 1990, stating that Mr Tarasovski is permitted to remain in Australia for residence. Mr Tarasovski had evidently previously surrendered his passport for endorsement. The evidence also includes a covering letter from the Department dated 24 July 1990. This letter states that, if Mr Tarasovski wished to travel overseas, it would be necessary for him to apply for a resident return visa before leaving Australia.
Mrs Sekuloska says that, when the letter arrived, she informed Mr Tarasovski by telephone. He asked her to come to Melbourne, bringing the passport and the return airline ticket. She agreed. Mr Tarasovski arranged for a friend, Bajram Bajramovski, to drive Mrs Sekuloska to Melbourne. Mr Bajramovski corroborated Mrs Sekuloska's evidence that he drove her to Melbourne on one occasion, though he thought this occurred about April or May. This date is not consistent with the evidence of either Mr Tarasovski or Mrs Sekuloska. Mr Bajramovski was vague about the date and is probably wrong.
Mrs Sekuloska says that, on this second occasion also, she stayed in Melbourne for about a week. Once again, they lived in a friend's unoccupied house. At the end of the week, Mr Tarasovski told her that his friend was returning and she would have to return to Wollongong. She says that she protested that this was the last time she would go back without him; she told him either to find a job in Melbourne, in which case she would come to live in Melbourne, or else return to Wollongong - she was not going to live in Wollongong and have him living in Melbourne.
Mrs Sekuloska returned to her home at Berkeley. She did not hear from Mr Tarasovski. So she tried to contact him by telephoning his friends. No one would speak to her. She spoke to Mrs Gulabovska. But she said she did not know where her brother was. Mrs Sekuloska subsequently found that he had returned to Macedonia.
Once again, Mr Tarasovski has a very different version of events. He denies that he stayed at the Commercial Hotel at the time of the interview. He says he remained at Mrs Sekuloska's house until about the middle of August. He was at the house when the passport arrived, he says, and remembers the postman handing the envelope to him. According to Mr Tarasovski, he went to Melbourne to look for work after Mr Bajramovski told him he had located several potential jobs. Mr Tarasovski says that Mr Bajramovski drove Mrs Sekuloska to Melbourne about 26 August, that she stayed for about 10 days and returned home in order to pay the rent on her house. While in Melbourne, he says, Mrs Sekuloska told him that she had spoken to her parents in Macedonia, that they had suggested that "we" return to Macedonia and try to find work there and that her father had already found her a job.

The evidence: the divorce
23. In his first affidavit, Mr Tarasovski said that he left Melbourne on 17 September; that, when he arrived in Macedonia, he stayed with his parents in Bitola; that Mrs Sekuloska arrived about two weeks later and they stayed with his parents for a further two weeks after which they travelled to Ohrid to visit her parents. Ohrid is a city about 80 kilometres from Bitola. Mr Tarasovski said that, until this time, the marriage had been generally happy; but, after they went to Ohrid, Mrs Sekuloska's mother urged her to stay in Macedonia. He said that Mrs Sekuloska's parents had found her a job; she wanted to take it and stay in Ohrid. Mr Tarasovski had no employment in Macedonia. He says he wanted her to return to Australia with him, but she refused; so they agreed that the marriage was over and they should divorce.

In a later affidavit, Mr Tarasovski said that he travelled to Macedonia "in October 1990" and met Mrs Sekuloska on her arrival at Ohrid airport. Mr Tarasovski said that he and Mrs Sekuloska stayed at her grandmother's house for two days, there being insufficient room at her parents' home. They then travelled to Bitola to visit his parents, but their relationship quickly deteriorated and they decided to divorce. In oral evidence the two day stay became a week.
Mr Tarasovski's passport bears an endorsement for resident return to Australia issued on 28 August 1990. The endorsement is valid for multiple travel until 23 July 1993. It permits indefinite stay after subsequent arrivals subject to the grant of an entry permit each time. On Mr Tarasovski's story, the endorsement was made only two days after Mrs Sekuloska joined him in Melbourne. On her story, the permit was dated about one week after she returned to Wollongong.
Mr Tarasovski's passport also reveals that he departed Australia, leaving from Melbourne, on 17 September 1990. I am puzzled about his subsequent movements. The passport contains what appear to be Yugoslavian entry stamps dated 30 October 1990; but, so far as I can discern, nothing earlier, after 17 September. October 30 was only 13 days before the divorce. Yet the parties have fought the case on the basis that Mr Tarasovski was already in Macedonia when Mrs Sekuloska arrived "sometime in October". Two things are clear. First, although Mr Tarasovski attributed to Mrs Sekuloska the suggestion that they should return to Macedonia, he did not travel with her and Denis. He left Australia first. Second, he did not tell her he was leaving. Mr Tarasovski's explanation for going on ahead is that Mrs Sekuloska had to return to Wollongong to pay the rent. He did not say why she did not do so by mail. He said that he had to leave before 10 October, when his return ticket would expire; the travel agent he consulted in Melbourne had a seat available and told him it would be risky to wait. This explanation is difficult to accept, given the frequency of flights between Australia and Europe and the time of year. He travelled by Qantas Airlines. But it beats the explanation of the second matter, which is non-existent. Mr Tarasovski offered no explanation whatever as to why he failed to tell Mrs Sekuloska that he was leaving the country.
Mrs Sekuloska's version of events is that, after she realised that Mr Tarasovski had returned to Macedonia without telling her, she telephoned her father and told him the position. She had not previously discussed with her parents the possibility of returning to Macedonia. No job was offered, or available, to her. Mrs Sekuloska's father purchased an airline ticket for her. She and Denis travelled to Macedonia "sometime in October". They went to Ohrid. They were met by her parents and stayed with them until their return to Australia in February 1991. Mrs Sekuloska visited Bitola only to attend court on 13 November. She stayed with a cousin. She did not see Mr Tarasovski's parents on this visit; indeed, she has never met them. Mrs Sekuloska says that, after she arrived in Ohrid, she telephoned Mr Tarasovski in Bitola. He agreed to come to her parents' house on the following day. The next day, a car arrived at the house. Mr Tarasovski remained in the car but a woman, who said that she was a friend of Mr Tarasovski and whom Mrs Sekuloska later discovered to be his first wife, Suzana, came to the door of the house and said: "Cane is in the car". Mrs Sekuloska went to the car and had a conversation with Mr Tarasovski during which, according to her, Mr Tarasovski said:

"I went to Australia previously on a couple of occasions to obtain permanent residency but was not successful." "All the time I was in Australia I kept in contact with my wife. We are back together now. We were divorced a while ago but it was only on paper. I always intended to bring my wife and son to Australia and that is how I want it now. I couldn't tell you the truth because you wouldn't help me."

Mrs Sekuloska says that she was shocked and angry. She did not know what to do. Some time later, Mr Tarasovski asked her for a divorce. She agreed. Mr Tarasovski made the arrangements. She attended court in Bitola on 13 November. The divorce was granted. Mrs Sekuloska says that Mr Tarasovski never met her parents, or even spoke to them on the telephone.
An English translation of the divorce court's decision is in evidence. It refers to the parties' "mutual agreement to divorce because conditions for keeping it did not exist anymore, because they had different points of view on marriage". There was a reference to "frequent disagreements" resulting in "extremely a bad relationship in the marriage, (sic) so five months ago the marriage has stopped existing". It is not clear who told the court this last matter. Mr Tarasovski says that he does not recollect either Mrs Sekuloska or himself doing so and denies that the statement is true.
Mrs Sekuloska says that she had no contact with Mr Tarasovski after the divorce until about September 1992 when he told her that the Australian Federal Police had been to see him and that he would pay her $2,000 to tell the police that the divorce was her idea, that they married for love but she no longer wished to live with him. She says that she refused to do this or take his money.
Mr Tarasovski says that he re-met his wife, Suzana, in Bitola about the end of September when he visited his son. He says that, in the period of two or three weeks before the divorce hearing, he saw Suzana every couple of days and "found some comfort in her company".
In evaluating the competing versions of events immediately before the divorce hearing, it is relevant to note that immigration records show that Mrs Sekuloska departed Australia on 28 October 1990 on a Yugoslav Airlines flight. Presumably, it was bound for Belgrade. The time of departure is not recorded, but Mrs Sekuloska could not have reached Macedonia until very late on 28 October (local time) or, more probably, some time on 29 October. This was just 14 days before the divorce hearing. There was insufficient time between her arrival and the divorce hearing for Mr Tarasovski's first account to be correct. The second version, which has Mrs Sekuloska arriving at Ohrid rather than Bitola and staying at her grandmother's home for either two days or a week, would be theoretically possible. But it involves accepting that, within two weeks, the parties went from a position of wishing to retain a generally happy relationship to a mutual decision to abandon it and also took all steps, with all delays involved, necessary to get into the divorce court. This version strains credulity. I think it much more likely that Mr Tarasovski had already decided the course he wished to follow and that he announced this to Mrs Sekuloska immediately after her arrival in Ohrid, as she claims.

The evidence: the re-marriage
33. Mr and Mrs Tarasovski commenced to live together not later than about the time of the divorce hearing. In their affidavits they each put the date of commencement of cohabitation as 13 November - the same day as the divorce hearing. In their oral evidence, they each said they commenced to live together about nineteen months after the hearing. They also said that, sometime after they commenced to live together, they decided to go together to Australia, this being in Ilce's best interests. About 5 November - coincidentally, she says and without any intention of using it to go to Australia - Mrs Tarasovska applied for a passport. It was issued on 12 November - the day before the divorce hearing. The passport stated her address as 23A Klenovac. On 20 November Mrs Tarasovska applied for an Australian visitor visa. If this application was made after Mr and Mrs Tarasovski commenced living together, that event must have occurred very soon after the court hearing, if not before. It does not really matter when they started to live together. What does matter, according to counsel for the Minister, is that the visa application gave Mrs Tarasovska's marital status as "married". The visa application form that Mrs Tarasovska used was different to that used in Mr Tarasovski's application nineteen months earlier. It offered six choices: "Never married", "Married", "Separated", "Widowed", "De facto/common law" and "Divorced". The person who dealt with marital status marked "Married" and rejected the boxes for "De facto/common law" and "Divorced", either of which might be regarded as correct. Mrs Tarasovska says that she was not aware of this error; she did not understand the form, she signed it in blank and left it to the travel agent to complete. Mrs Tarasovska says that she gave the travel agent her divorce certificate. It will be apparent that, on her story, the agent - a different person in a different agency - made exactly the same mistake as the agent who assisted Mr Tarasovski in April 1989. In considering this explanation, it is also relevant to observe that some - but, I think, not all - the writing on the application form is in the same hand as the writing on the incoming passenger card to be mentioned in a moment.

On 27 December 1990, entry visas were issued to Mrs Tarasovska and Ilce by the Australian Embassy in Belgrade. Mr and Mrs Tarasovski decided to travel to Australia unmarried and remarry in Australia. Their reason is unclear but I gather that the Tarasovski-Sekuloska divorce had not yet become final. They departed from Macedonia, with Ilce, on 17 January 1991 and arrived at Melbourne on 23 January.
During the flight to Australia, Mr and Mrs Tarasovski were asked to complete incoming passenger cards. These cards required information on a number of matters including marital status. In relation to that subject, they offered passengers a choice of four boxes, marked respectively: "Never Married", "Now Married", "Widowed" and "Divorced". On the cards completed by, or on behalf of, both Mr and Mrs Tarasovski the "Now Married" boxes were crossed. In cross-examination, Mrs Tarasovska said that she did not understand her card so she gave it to the stewardess to complete on her behalf. It was a Yugoslav Airlines flight. She spoke to the stewardess in Macedonian. Mrs Tarasovska said that the stewardess asked for her passport; she handed it over; the stewardess completed the card and she (Mrs Tarasovska) signed it. Mrs Tarasovska said that the stewardess retained the completed card and also those for Mr Tarasovski and Ilce. The cards were not returned to them at any stage. Mrs Tarasovska was unable to explain how, without incoming passenger cards, they passed the airport immigration barrier.
When Mrs Tarasovska gave her evidence about the completion of the card, I drew counsel's attention to the fact that the name at the top of the card, said to have been written by the stewardess, was obviously written by the same person as the signature at the bottom, said to have been written by Mrs Tarasovska. The same comment may be made about the word "Jugoslavija", which appears twice on the card, as country of citizenship and country of birth; Mrs Tarasovska's passport number and date of birth; and her intended address in Australia. This last information, was not, of course, contained in the passport. There may be some writing in the stewardess' hand - the word "Jugoslavia", where appearing as the passenger's country of residence and place of boarding the flight, and the flight number. But I am satisfied that Mrs Tarasovska played a greater part in completing the card than she cares to admit.
On their arrival in Australia, Mrs Tarasovska and Ilce were admitted on one month temporary entry permits. They took up residence in Melbourne. Mr and Mrs Tarasovski re-married on 2 February. Nine days later Mrs Tarasovska made applications, on behalf of herself and Ilce, for permanent entry permits. The ground of the applications was Mrs Tarasovska's marriage to an Australian permanent resident. She was interviewed in August 1991 but no immediate decision was made.
On 9 March 1992, Mr and Mrs Tarasovski had another son, Tomice. But their cases came under notice. On 13 and 15 October 1992, they were interviewed. Christina Santos, a delegate of the Minister, determined that their conduct fell within s.20 of the Migration Act and they were illegal entrants to Australia. They were arrested, but then released from custody. On 29 October 1992, another delegate of the Minister, C Popov, refused Mrs Tarasovska's application for permanent residence.
Mrs Tarasovska's one-month temporary entry permit has expired. On any view of her case, she is now in Australia illegally. Nonetheless, it is important to determine whether she is an "illegal entrant", within the meaning of s.14 of the Act, because s.59 requires mandatory deportation of illegal entrants once their period of grace has expired. Legal aspects: Cane Tarasovski
I have already indicated the portions of s.20 of the Migration Act relied upon by Mr Hilton, on behalf of the Minister. It is necessary to relate those provisions to particular statements or documents and to consider separately the case of each applicant. The application of s.20 to a person depends upon that individual's conduct; nobody is condemned by the conduct of another. In relation to Mr Tarasovski, counsel relies on three statements or documents; in relation to Mrs Tarasovska, two.
The first document mentioned by Mr Hilton is Mr Tarasovski's application for a visitor visa dated 18 April 1989. It will be recalled that this document showed that Mr Tarasovski was "Now married" and that his spouse's name was "Suzana". Neither of these statements was correct. According to Mr Tarasovski's evidence, he had no marital relationship - legal or de facto - on 18 April 1989. He had been divorced from Suzana more than three years. According to him, he saw Suzana infrequently; and only because they lived in the same building. This is not a case of a person using the term "now married" to describe a current de facto relationship.
Mr Hilton argues that, in completing the form in this way, Mr Tarasovski made to an officer exercising powers under the Migration Act - "a statement that was false or misleading in a material particular": see s.20(1)(b)(ii). He adds that, because the statement was made before a visa was issued and was made to an officer performing functions under the Act in respect of the grant of the visa, the statement also offended s.20(1)(c)(ii). Counsel says that, if it be accepted that Mr Tarasovski did not himself complete the application form, this makes no difference; both these sub-paragraphs extend also to statements that the person "caused to be made". He submits that a person who adopts the answers placed on an application form by somebody else, intending that the other person will submit the form to a person performing functions under the Migration Act, causes the answers to be made to that person. I think this is correct; Mr G T Johnson, counsel for the applicants, does not suggest otherwise. As Einfeld J demonstrated in Hsiao Yu-Chiung v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 25 June 1992 at 16-17) the submission accords with both principle and authority. A person who adopts answers written by someone else may not be aware that they are false or misleading. However, in the present context, that does not matter. For the purposes of s.20, it is immaterial whether or not the person knew the statement was materially false or misleading: see s.20(12).
Mr Hilton also argues that the effect of the false statements in the visa application was that the visa issued in response to it was a "bogus document", within the meaning of s.20(1)(b)(i)(A) of the Migration Act, with the result that Mr Tarasovski fell within that sub-subparagraph when he presented the visa on his arrival in Australia on 10 October 1989. I do not accept that submission. The term "bogus document" is defined by s.20(15) so as to include a document that "was obtained by the making of a false or misleading representation": see (para.(c)). So a visa is a "bogus document", for the purposes of s.20, if issued because of a false or misleading representation. But it is not enough that the visa was issued following the making of a false or misleading representation. In order to bring the case within para.(c) of the definition of "bogus document", the Minister must establish a causal, not merely temporal, relationship between the making of the statement and the issue of the document. In the present case, there is no evidence that the false statements made in the application affected the Belgrade officer's decision to issue the visa. Section 20(1)(b)(i)(A) adds nothing to the Minister's case; whether or not Mr Tarasovski's conduct falls within s.20(1), in relation to the visitor visa, has to be determined by reference to sub-para.(ii) of paras.(b) and (c).
Not every false or misleading statement brings a person within sub-para.(ii) of these paragraphs. The statement must be false or misleading in a material particular. Although Mr Johnson submits to the contrary, arguing that a visitor visa might have been granted to Mr Tarasovski just as readily if he had been believed to be a single man as one believed to be married, it seems to me that the statement in the application concerning Mr Tarasovski's marital status was false or misleading in a material particular. As the Full Court pointed out in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352, a statement is false or misleading in a material particular if it is relevant to the purpose for which it is made. The Full Court said that it is:

"relevant to that purpose if it may - not only if it must or it will - be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made".

The Court went on to say that:

"a statement made to an immigration official by a person seeking to enter Australia, which conveys a false or misleading impression of the person or of his or her circumstances, would be false or misleading in a material particular".

The Court held that the respondent in that case fell within s.20 because he falsely stated his marital status on a visa application and on an incoming passenger card.

The effect of Dela Cruz is that a false statement about the marital status of an applicant for a visa or entry permit must be regarded as a false statement in a material particular, except in a case where it is proved that marital status would not be taken into account in determining the application. There is no such evidence in this case.
The major submission of Mr Johnson, in relation to this aspect of the case, is that there is no evidence that Mr Tarasovski made the statement, or caused it to be made, to an officer exercising powers, or performing functions, under the Act. Mr Johnson says that the evidence shows only that Mr Tarasovski signed the application form, the contents of the form and that a visitor visa was thereafter issued. He says this leaves a fatal gap in the Minister's case; the Minister has not proved that the application form reached a relevant officer.
I do not think this submission is sound. The subject application form has a section marked "Official use". This section contains a heading: "Decision". Underneath the heading are two printed boxes, one marked "Approved" and the other "Not approved". A handwritten tick has been placed in the "Approved" box. After the printed word "Approved" there are handwritten initials and a date "24/4/89". The visitor visa on which Mr Tarasovski travelled is endorsed in his passport. The visa states that it was issued in Belgrade on 24 April 1989. The evidence does not suggest that Mr Tarasovski made more than one visa application in April 1989. The inference is irresistible that the visitor visa was issued in response to the application containing the false statements about marital status and spouse. There is no evidence, it is true, of the powers or functions of the person who issued the visa, and before whom the application must have been placed. However, the presumption of regularity applies. In the absence of evidence to the contrary, it must be presumed that the person issuing the visa had power to do so; and, consequently, that the person was exercising powers, or performing functions, under the Migration Act when he/she received the application.

The false statements in his visa application of 18 April 1989 bring Mr Tarasovski within s.20(1)(b)(ii) and (c)(ii) of the Migration Act.
This conclusion renders it strictly unnecessary for me to deal with Mr Hilton's second and third complaints. But, as the situation in relation to those matters has been argued, and may be thought important in determining any application for a properly endorsed valid entry permit or properly endorsed valid visa, I will set out my findings about them.
Mr Hilton's second complaint relates to Mr Tarasovski's application for permanent residency on 29 March 1990; in particular the section of the form marked "690B" that contains personal particulars. He argues that Mr Tarasovski made a false statement in claiming (question 2.7) that he intended to maintain a lasting marriage and denying (2.12) that the marriage was contrived to enable him to obtain resident status. Mr Hilton puts the theory that Mr Tarasovski came to Australia in 1989 hoping to marry a person having permanent resident status, which marriage would enable him to obtain a right of permanent residence for himself that he could exploit for the benefit of his first wife and their son; and that he married Mrs Sekuloska only for that reason. Mr Hilton accepts that, from Mrs Sekuloska's point of view, the marriage was genuine.
I have hesitated as to whether or not I should accept the theory advanced by Mr Hilton, bearing in mind the consequences of imputing to Mr Tarasovski this course of deliberate deception. It is true that Mr Tarasovski visited Australia twice before his 1989 trip and that, despite the divorce, he maintained some contact with his first wife, Suzana, and Ilce. It is also true that Mr Tarasovski married Mrs Sekuloska only five months after they met. But this is not particularly significant. It is common enough for people, genuinely in love and planning to stay together, to marry as soon as this. Once Mrs Sekuloska's divorce became final, there was no reason to delay. A more significant matter, in my opinion, is the failure of Mrs Gulabovska and her husband to attend the wedding. When Mr Tarasovski met Mrs Sekuloska, she was a friend of Mrs Gulabovska. There is no evidence that they had fallen out. Under those circumstances, if the marriage was genuine, one would expect her to attend the wedding. Many people in her position would have taken time off work. Her failure to do so excites suspicion that she thought the marriage not genuine, at least from her brother's point of view; presumably because of something he had said to her. However, I do not think I should put much weight on this matter. When Mrs Gulabovska gave her explanation, the matter was allowed to rest. Counsel asked no questions about Mrs Gulabovska's work situation or financial circumstances, the answers to which might have assisted in evaluating her reason. If the evidence established only the foregoing matters, I would decline to find that Mr Tarasovski gave false answers in his permanent residency application.
The main support for Mr Hilton's theory comes from events after 29 March; in particular, Mr Tarasovski's decision to leave Berkeley on 19 April (as I accept he did, despite his denials), his unannounced departure from Australia in September and his conduct in Macedonia. As to the first matter, it seems to me doubtful that a man who had entered into a marriage intended to be a lasting relationship would decide, three weeks later and without consulting his bride, to move to a distant city seeking work. However, although this behaviour is curious, Mr Tarasovski did not then abandon Mrs Sekuloska. He told her that she should join him in Melbourne when he was settled. In May, he invited her to visit him in Melbourne. She did so and they apparently lived together as husband and wife for the duration of her visit.
The second and third matters mentioned above show that, at least by September, Mr Tarasovski had no intention of maintaining a lasting marital relationship. It does not follow that he previously lacked that intention. It is necessary to be cautious in ascribing later attitudes to an earlier time. In the field of personal relationships, feelings may suddenly change. Ardour may quickly turn into dislike or indifference.
However, notwithstanding this caveat, I have reached the conclusion that Mr Hilton's theory should be accepted. In the first place, it is supported by direct evidence. According to Mrs Sekuloska, Mr Tarasovski told her at Ohrid that this is what he had done. Mrs Sekuloska's evidence is not corroborated. By its nature, it is evidence easily capable of manufacture. On one view of the case, although not that presented by Mr Tarasovski, Mrs Sekuloska has reason to dislike Mr Tarasovski. Nonetheless, I accept the evidence. I do so partly because, as I have said, I was impressed by Mrs Sekuloska; in particular, I thought that she gave her evidence in a straightforward manner and without malice towards anyone. I do so, also, because the evidence is consistent with the known objective facts; in particular, that Mr Tarasovski left Australia without telling Mrs Sekuloska and that only 14 days elapsed between Mrs Sekuloska's arrival in Macedonia and the divorce hearing. A relationship may suddenly deteriorate; but there is no evidence in this case of a quarrel or other deterioration in the relationship between Mr Tarasovski and Mrs Sekuloska. Mr Tarasovski would have the Court believe that this was initially a genuine and loving marriage and that there was no incident or quarrel that changed this. Yet he was prepared to leave Australia without even telling his wife of his departure; and, according to him, when in Macedonia they for the first time discussed their future, he was so acquiescent in her wish to stay there that they divorced within two weeks of her arrival in the country. There is no evidence corroborating Mr Tarasovski's assertion, denied by Mrs Sekuloska, that she was offered a job in Macedonia. The assertion is difficult to reconcile with the fact that, despite the divorce, she returned to Australia early in 1991.
Having given the matter careful consideration, I am persuaded that this was never a genuine marriage, from Mr Tarasovski's point of view. I think he undertook the marriage to procure a right of permanent residence in Australia. It is significant that, as soon as he achieved this right, Mr Tarasovski applied for a return resident visa and promptly left Australia.
It follows from this finding that the answers given by Mr Tarasovski in respect of questions 2.7 and 2.12 in his permanent residency application were false. Those answers were statements made after Mr Tarasovski's entry into Australia and in respect of the permanent entry permit granted to him. Mr Tarasovski's conduct fell within s.20(2)(b)(ii) of the Migration Act.
The third matter raised by Mr Hilton concerns the Department's interview with Mr Tarasovski on 25 June. There is little evidence about this interview. The tendered documents contain a note by a Departmental officer that Mr Tarasovski and his spouse were interviewed separately about their marital relationship and that they "agreed on all points raised". The officer commented: "Therefore I have no reason to doubt the bona fides of their relationship".
There is no evidence as to the questions asked of Mr Tarasovski or his answers. So the answers do not assist the Minister's case. However, Mr Tarasovski provided evidence as to documents tendered at the interview. He said in his affidavit that, on 25 June, he and Mrs Sekuloska "provided proof in the form of two Statutory Declarations, five photographs of Mrs Sekuloska and myself together and ten greeting cards addressed to Mrs Sekuloska and myself". The photographs and greeting cards say nothing about the nature of the relationship on 25 June. They merely provide evidence of the parties' past association. But Mr Hilton emphasises the two statutory declarations. He argues that, by tendering these declarations to the officer, Mr Tarasovski adopted their contents; so any false statement in the declarations was a false statement by him.
One statutory declaration purports to be made by Mrs Gulabovska. After identifying herself, Mrs Gulabovska says that Mr Tarasovski and Mrs Sekuloska "are now living together in 45 Massey Street, Berkeley". The other declaration is that of Sedina Saric, a person who describes herself as a friend of Mrs Sekuloska and her babysitter. It is to the same effect. Mr Hilton argues that Mr Tarasovski made a false statement in tendering these declarations. He says that the parties could not properly be described as "living together". Mr Tarasovski had been away in Melbourne for most of the previous two months; when he returned to Wollongong for the interview, he elected to sleep at the Commercial Hotel.
A difficulty about this argument lies in the words "living together". A couple may properly be described as "living together" despite absences from the matrimonial home, even frequent and lengthy absences, of one or both of them. The term says more about the nature of a couple's relationship than their physical whereabouts. However, if I am right about Mr Tarasovski's attitude to the marriage when contracted, that conclusion determines this point. Nothing had happened to improve the parties' relationship, or to change Mr Tarasovski's attitude to it, since March. He had not been physically present during most of the preceding two months. Given that fact, if his attitude during that time was that he did not intend the marriage to last, there was no basis upon which he could truthfully assert that he and Mrs Sekuloska were "living together". In relation to this matter, also, Mr Tarasovski's conduct fell within s.20(2)(b)(ii).

Legal aspects: Suzana Tarasovska
61. Both matters put against Mrs Tarasovska arise out of her journey to Australia in early 1991. First, Mr Hilton places reliance on her application for a visitor visa. In that application, it will be recalled, Mrs Tarasovska gave her marital status as "Married", notwithstanding the available alternatives of "Divorced" (her true legal status) and "De facto/common law" (her factual condition). The statement that she was married was clearly a false statement in a material particular.

Mr Johnson puts the same submissions in connection with Mrs Tarasovska's visa application as those put in respect of her husband's visa application. The same answers apply. The application form bears a stamp "Australian Embassy Belgrade Migration Registry, 5 Dec. 1990"; so this form evidently reached an appropriate officer. The entry visa endorsed on Mrs Tarasovska's passport was issued in Belgrade on 27 December 1990.
I am of the opinion that the false statement as to marital status made by Mrs Tarasovska in her visa application was conduct falling within s.20(1)(b)(ii) and (c)(ii) of the Migration Act. For the same reasons as apply to her husband's case, the false statement did not result in her visa being a "bogus document".
The second matter put against Mrs Tarasovski relates to the passenger card for her entry into Australia on 21 January 1991. I reject, as a fabrication, her evidence about the stewardess completing and retaining the card. But there is a question whether the card contained a false statement. In contrast to the visa application form, the card did not offer the category "De facto/common law". Passengers were given only four choices: "Never Married", "Now Married", "Widowed" and "Divorced". The first and third categories were clearly inappropriate to Mrs Tarasovska. It would have been correct for her to say she was "Divorced"; that was still her legal status. However, by that date, she had been living in a de facto marital relationship with Mr Tarasovski for more than two months. She probably regarded herself as again married. In the absence of the option "De facto", I do not think that Mrs Tarasovska made a false statement in crossing the "Now Married" box.
The view just expressed coincides with that of Spender J in Hand v Karas (unreported, 31 March 1993). That was an appeal against a finding of the Immigration Review Tribunal that two people living in a de facto relationship had not made false statements in ticking the "Now Married" box on their incoming passenger cards. The only right of appeal from the Tribunal's decision was on a question of law. Spender J held that the Tribunal's decision was not erroneous in law. In discussing the matter, his Honour pointed out that the Migration Act contains no definition of "marriage" or "spouse" but that the Migration Regulations, under which passenger cards are issued, define "marital relationship" in such a way as to include a de facto relationship and "spouse" as including "a de facto spouse". In taking that course, the regulations reflect contemporary usage. Nowadays couples commonly live together in committed relationships having all the incidents of marriage except a marriage certificate. They think of themselves as married. They are so regarded by others. A bureaucratic authority that needs to distinguish between those whose relationship is sanctified by law and those whose relationship is not, must put a question that makes the distinction clear. The visa application form that Mrs Sekuloska completed did this, by offering the alternative "De facto/common law" to "Married". The incoming passenger card did not. A person in a de facto relationship might reasonably regard "Married" as the description, out of these offered by the card, most appropriate to his/her condition. I reject the argument that Mrs Tarasovska fell within s.20 because of the way she completed the incoming passenger card.

Orders
66. The Minister has made good his claim that Mr and Mrs Tarasovski each brought themselves within s.20 by their manner of completing their visitor visa and/or permanent entry permit applications. Both Applications should be dismissed. The applicants must pay the Minister's costs, but costs should be taxed on the basis of a joint hearing of the two matters.

[1993] FCA 877

28 OCTOBER 1993