Trent, H.c. v Minister for Immigration Local Government and Ethnic Affairs

[1990] FCA 530

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

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I	VICTORIA DISTRICT REGISTRY	1	NO. VG 263 OF 1990
I	1
GENERAL DIVISION

B E T W E E N :

HARVEY CLAY TRENT

Applicant

A N D :

M I N I - S T E R F o R IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

JUDGE MAKING ORDER:  KEELY J .

DATE ORDER MADE:	15 OCTOBER, 1990
PLACE ORDER MADE:	MELBOURNE  RECEIVED

FEDERAL COURT OF

MINUTES OF ORDER AUSTRALIA PRINCIPAL RECilSTRY

THE COURT ORDERS THAT:

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1.    The applicant be granted leave to amend his application for review to accord with that set out in the draft amended application for review attached to his notice of motion filed 8 October, 1990.

2.   The Deportation Order dated 30 August 1990 be stayed until fourteen days after the determination of the

i	application for review herein or further order.
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3.    The order of Northrop J. made on 20 September 1990 be varied by deleting the words "furnishing to the applicant of reasons for the decision to make the deportation order dated 30th August, 1990 being Exhibit "ER10" to the affidavit of Erskine Rodan sworn 10 September, 1990" and substituting therefor the words "determination of the Application for an order to review or further order".

4.    The costs of each party be reserved.

5.   Liberty to apply reserved to both parties.

(Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.)

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY NO. VG 263 OF 1990

1

GENERALt DIVISION	1
B E T W E E N :

HARVEY CLAY TRENT

Applicant

A N D :

M I N I S T E R F O R IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

15 OCTOBER, 1990 KEELY J.

REASONS FOR JUDGMENT

Harvey Clay Trent ("the applicant") on 7 September 1990 filed an application for an order of review in respect of four decisions made by the Minister for Immigration, Local	Government and Ethnic Affairs ("the respondent"), or by one of
his delegates. The four decisions were (1) to refuse the
applicant's application for an Extended Eligibility Temporary Entry Permit (2) to deport the applicant ("the deportation order") (3) to arrest and detain the applicant and (4) to further detain the applicant.
By consent the court on 7 September restrained the respondent from seeking to deport the applicant from Australia

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until 4.15 on 14 September 1990. On 14 September Jenkinson J. ordered that the deportation order "be stayed until 14 days after the furnishing of reasons for the decision to make [that] order ... or further order".

On 20 September 1990 Northrop J., after a hearing occupying almost a full day, ordered that the "applicant be released from the respondent's custody until the expiration of fourteen days after the furnishing to the applicant of reasons for the decision to make the deportation order ... on the following conditions ...". The file does not contain any record of any reasons for the orders made on 14 September and 20 September respectively.

On Friday, 12 October 1990, the applicant moved, on notice, the court as presently constituted to make five orders. The first, which was unopposed, was that he have leave to amend his Application to accord with a draft amended Application for an order to review. Leave is granted subject

to the correction of the draft as to the following:

1.     the spelling of "August" in the first line on page 4.

2. the word "October" in - paragraph (d) (ii) on page 6

should read "August".

3.     in the 3rd line of the new paragraph 8A, on page 7, the word "and", appearing before the words "error of law", should read "anu.

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The motion for the second order was not pursued as the respondent had already complied.

The third order sought was an order that "each of the Orders made ... on 7 September 1990 staying the Deportation Order, and on 20 September 1990 releasing the Applicant from custody upon conditions, be extended until the final determination of this matter, or further order". Counsel for both parties made a careful examination of the material before the court and advanced detailed submissions as to the issues raised by the motion before the court. As the motion seeks interlocutory orders it is not necessary to deal with every one of the substantial number of submissions advanced by the applicant's counsel.

Having considered over the weekend the transcript of the submissions of both counsel, and the material to which they relate, I have come to the conclusion that there is a serious question to be tried and that the third order sought

the orders staying the deportation order and the release from	should be made i.e. the order relating to the continuation of
custody, upon conditions, of the applicant.
The orders made by Jenkinson J. on 14 September 1990 and by Northrop J. on 20 September 1990 both cease to have effect today. Because of the short time available I shall confine these reasons for judgment to one matter, relevant to both of the decisions challenged, in respect of which I

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consider that there is a serious question to be tried; it does not follow that the other matters relied upon by the applicant failed to show additional serious questions to be tried.

As to the first decision, that of Mr. Smits on 13 August 1990 (statement of reasons dated 19 September 1990), in my opinion there is a serious question to be tried (see draft amended Application ground 5(a)) as to whether he "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 was false or misleading in a - - material particular". In his reasons for decision (paragraph 7) Mr. Smits "considered that ... [the applicant] failed to declare that he had used other names and that he had criminal convictions other than that which he listed". Mr. Smits "therefore found that Mr. Trent ... [had made] a statement which was false or misleading in a material particular".

As to the finding that the applicant "failed to declare that he had used other names" the following observations may
be made: -
(a)	The single page form, headed "Application to Visit Australia", which was an essential part of the delegate's finding, contained 17 questions. Questions 1 and 2 asked as to his "Family Name" and "First or Given Names" and were answered correctly. Question 3 was inapplicable and Question 4 enquired as to

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"Previous or Alternative Names". The applicant

answered "None".

(b)	In my opinion it is plainly arguable that the question as to "Previous . . . Names" enquired as to the applicant's correct (not false) name at some earlier time e.g. the maiden name of a married woman or the "previous" name of a person who had legally changed his name; if so, the answer to Question 4 was arguably not false or misleading.
(C)	In my opinion it is also plainly arguable that the words (in the application form) "Alternative Names" enquired as to whether, at or about the time of sianinq the application form, the applicant (i) had another name or (ii) was currently using another name or (iii) was currently known by another name; if so, the answer was arguably not false or misleading.

(d)	The delegate considered that the applicant had "failed to declare that he had used other namesu. But the form did not expressly ask whether he had ever (i) used another name or (ii) used an alias or (iii) given a false name to some authority.
(e)	In my opinion it is plainly arguable that Question 4 did not require the applicant to disclose that he had given a false name to the authorities on 2 or 3

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occasions, the latest being in 1981.

The finding that the applicant "failed to declare that

. . . he had criminal convictions other than that which he

listed" is open to the following observations:-

(i)    The relevant question (Question 17) asked:

"Have you or has any member of your family
included in this application -

Suffered from any dangerous or

contagious disease such as

tuberculosis	Yes	No
Suffered from any mental illness	Yes	No

Used or been addicted to or

trafficking 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"

(ii)  The applicant answered "No" to the first, second and fifth questions; no issue arises as to those answers. He answered "Yes" to the third question, whether he had "used ... narcotics". He also answered "Yes" to the fourth question, whether he had "been convicted of a criminal offence in any country".

(iii) The (fourth) enquiry was as to 2 "criminal offence" - not as to any criminal offences.

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(iv)  At the end of Question 17 the form stated "If yes to any of the above give details". The space provided for "details" was extremely small. It dld not contain any statement such as "If space insufficient attach a separate sheet". It did contain any statement to the effect that "Full details must be given of all criminal offences".

(V) The applicant's answer to the question seeking

"details" was "12 years ago possession of amphetamines

U.S.A. L.A.". On the material presently before the . -

court it appears that he was not asked any (oral) questions seeking elaboration of his answers as to "narcotics" and "a criminal of fence"; he was not asked if that was the only criminal offence of which he had ever been convicted; nor was he asked whether any imprisonment was ordered (cp. definition of "crime" in S. 20(15) of the Migration Act 1958); nor was he asked any other questions as to whether the offence was a

serious one.

Further, although the form expressly contemplated the possibility of an "interview", no such interview was sought by the Department, although the applicant has given evidence that the completed form was taken to a more senior officer before his application was approved.

In my opinion it is seriously arguable that Mr. Smits'

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decision was fatally flawed to the extent that it was based upon his "finding" that Mr. Trent "made . . . a statement which was false or misleading in a material particular" and that, as a result, he "was a person to whom sub-section 20(l)(c)(ii)

... applied ...".

In my opinion it is also seriously arguable that it was not open to Mr. Smits, as a matter of law, to find (paragraph 7 of his statement of reasons), on the material before him, that the applicant "was a person to whom . . . section 20(l)(d)(iii), applied ... because he was a person who has been convicted of two or more crimes ...". In this connexion I am referring to the contention of the applicant's counsel that there was no evidence that the applicant had been convicted of a second "crime", within the meaning of that word as defined in S. 20(15) of the Migration Act i.e. "an offence punishable ... by death ... or ... by imprisonment for a maximum period of at least 6 months" (see also ground S(e)(ii)

of the draft amended Application).

As to the second decision, that of Mr. Heath on 30 August 1990 (statement of reasons dated 1 October 1990), in my opinion serious questions to be tried are raised by grounds 6(a) and 6(b) of the draft amended Application.

As to ground 6(a), in his reasons for decision Mr.
Heath stated (paragraph 11) that he "concluded that as the
applicant did not declare his aliases on his visa application

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. . . and as he had not revealed his full criminal history, . . .

the applicant had made a false and misleading statement in a material particular within the meaning of section 20(1) (c)(ii)".

For the reasons given earlier, in dealing with Mr. Smits' decision, including my comments in sub-paragraphs (a), (b), (c), (d) and (e) and in sub-paragraphs (i), (ii), (iii), (iv) and (v), in my opinion there is a serious question to be tried as to whether Mr. Heath's decision was fatally flawed to the extent that it was based upon his conclusion (paragraph 11) "that the applicant had made a false and misleading statement in a material particular within the meaning of section 20(l)(c)(ii)".

Again, in my opinion there is a serious question to be tried as to whether it was open to Mr. Heath, as a matter of law, to be satisfied, on the material before him, that the applicant was :

14(2) of the Migration Act 1958 in that he was,	"an illegal entrant by virtue of sub-section
at the time of that entry, a person who had been convicted of 2 or more crimes and sentenced to imprisonment, within the meaning of section 20 of the Act, for a period totalling at least one year" (see deportation order - Exhibit ER10).

I have referred earlier, in dealing with Mr. Smits' decision,

to the contention by counsel for the applicant that there was no evidence that the applicant had been convicted of a second "crimew within the meaning of that word as defined in S.

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20(15) of the Migration Act.

It has been noted that Mr. Heath's statement of reasons (paragraph 11) expressed the finding somewhat differently. He "was satisfied that the list of criminal convictions, one of which carried a sentence of 365 days, carried the consequence that the applicant was an illegal entrant ...". However, that passage, read in the light of S. 20(l)(d) (which it cites), appears to convey that Mr. Heath was satisfied (as was Mr. Smits - see his paragraph 7) that the applicant was "a person who had been convicted of 2 or more crimes [as defined in S. 20(15)] and sentenced to imprisonment for a period totalling at least one year" - see S. 20(l)(d)(iii).

The above reasons are, in my opinion, sufficient to warrant a stay of the deportation order agalnst the applicant until the determination of the Application for an order to review or further order. However, as stated earlier in these reasons, the court is not to be taken as rejecting the other

contention that there are serious questions to be tried; it	submissions made by the applicant's counsel in support of his
has not been necessary to form an opinion as to those other submissions.
I should add that, although I have decided this case as if the applicant were required to show that there is a serious question to be tried, I have not rejected the submission of the applicant's counsel (transcript p. 60) that his task is less onerous, citing v The Minister (unreported, delivered 16 June 1988). As at present advised, I am inclined to adhere to the opinion that I expressed in m that an applicant seeking a stay of the operation of a deportation order must show at least some material to suggest an entitlement to relief. That decision cited the opinion expressed by Forster, Woodward and Wilcox JJ. in Aboriainal Development Commission v Ralkon Aqricultural Co. Ptv. Ltd. (1987) 74 ALR 505 at 510. I agree with the opinion expressed by Jenkinson J., in Dallikavak v Minister (1985) 61 ALR 471 at 481, that, in exercising the general discretionary power conferred by S. -.- - 15 of the Judicial Review Act, it is desirable to remember the dictum of Dawson J. in A & Ors. v Havden [No. 11 (1984) 56 ALR 73 at 79, namely, "a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete justice in the cause" (see also McLelland J. in A D D ~ ~ O ~ Papers Inc. v Tomasetti PaDer Ptv.
Ltd. (1983) 50 ALR 428 at 434-6).
After deciding that the deportation order should be stayed until the determination of the Application, or further order, I have considered whether it is proper to make the remaining order sought, as to release from custody. The appropriate order in my opinion is that the order of Northrop J. on 20 September 1990 be varied by deleting from paragraph 1 thereof the following words "furnishing to the applicant of reasons for the decision to make the deportation order dated 30th August, 1990 being Exhibit "ER10" to the affidavit of

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Erskine Rodan sworn 10 September, 1990" and substituting for them the words "determination of the Application for an order to review". In reaching that conclusion I have taken into account:

the likely hardship for the applicant;
the likely hardship for the applicant's wife;
the fact that his wife is an Australian citizen;
the absence of any suggestion that their marriage "was
not a genuine marriage" - see Kaur-Bonicelli v The
Minister per Northrop J. at p. 11 (unreported,
delivered 26 April 1990);
the statement by the applicant's counsel that there is
no suggestion that the applicant has failed to observe
the conditions imposed upon him by Northrop J. on 20
September 1990;
the likelihood that the applicant will continue to
observe those conditions if his release be extended;

the tentative view which I have formed as to the

strength of the applicant's case;

the part played by the respondent's Department in the events leading to the decisions under challenge, including:

(i)  the quite inadequate nature of the Department's form ( "Application to Visit Australia") - particularly in the wording of Questions 4 and 17 and the restricted space available for details;

(ii)  the failure of the Department to inform the applicant, either orally or in writing, that it required him to supply full details of

convictions (no matter how trivial and how long ago they occurred and no matter what was the penalty imposed - if that was the Department's intention) ;

(iii) the failure of the Department to seek any oral elaboration by him as to the answers given by him to Question 17 on the form;

(iv)  the failure of Question 4 on the form to make any express reference to "aliases" or to state clearly that he was required to give information as to any false names that he had ever given to any person in authority - even 8 or more years

ago.

I hereby certify this and the twelve preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 15 October, 1990.

Associate:
Date: 15 October, 1990.

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ATTACHMENT A

Date of Hearing	: 12 October, 1990
Date of Judgment	: 15 October, 1990
Solicitor for Applicant	: Erskine H. Rodan
Counsel for Applicant	: Mr. B. Keon-Cohen
Solicitor for Respondent	: Australian Government

Solicitor

Counsel for Respondent : Mr. R. R. S. Tracey