Waqaliva, A.T. v Minister for Immigration & Ethnic Affairs

[1986] FCA 340

IN THE FEDERAL COURT OF AUSTRALIA )

!	PUEENSLAND DISTRICT REGISTRY	)	QLD G86 of 1986
GENERAL DIVISION	1

BETWEEN: ANE TERESIA WAOALIVA

First Applicant

m: JONE OWULOA WAOALIVA

Second Applicant

m: THE MINISTER FOR IMMIGRATION AND FTHNIC AFFAIRS

Respondent

!

!, '	I -1
! a

MINUTES OF ORDER

MAKING JUDGE ORDER: PINCUS J

DATE OF ORDER:	2 3 JULY 1986
WHERE MADE:	BRISBANE

THE COURT ORDERS, IN RESPECT OF FACH APPLICANT, THAT:

(1) The deportation order made on 7 March, 1986 3e stayed !,

untll the hearing and determlnation of the application !

for an order of revlew filed on 15 July 1986 or	further
earlier order.

( 2 ) The costs of today's Proceedings be costs in the

principal proceedings.

( 3 )	On or before 13 August 1986 the person who furnished the
s.13 statement dated 16 April 1986, namely, Mr. Richard
Henderson, furnish to the applicants an additional
statement under s . 1 3 ( 7 ) of the Administratlve Decisions
(Judicial Revlew) Act containing further and better
particulars m relation to the following matters with
respect to the findings of the sald Mr. Henderson on

material questions of fact relevant to the decision

mentioned in the document of 16 April 1986:

b .

!

(a) the findings wlth respect to the matters mentioned

in par.6 of the reasons;

(b) findings with respect to the matters mentioned in

par.7 of the reasons;

(c) any other findings not mentioned in the reasons.

(4) The respondent file any material on which he proposes to

rely on or before 13 August, 1986.

( 5 )	The applicant file any materlal in reply	on o r before 27
August, 1986.

(6) The matter be set down for hearmg on a date to be fixed

by the Registrar on	his being satisfied that	it is ready
to be heard.

NOTE :	Settlement and entry of orders	1 s dealt wlth in Order 36
of the Federal Court Rules.

I .

IN THE FDERAL COURT OF AUSTRALIA	)
OUEENSLAND DISTRICT REGISTRY	) QLD GB6 of 1986
GENERAL DIVISION	)

BETWEEN: AME TERESIA WAOALIVA

First Applicant

AND: JONE OWULOA WAOALIVA

Second Applicant

m: THE MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

PINCUS J. 2 3 July 1986 t

EX TEMPORE R-dSONS FOR JUDGMENT

I

l ,.

These applicants are Fi~ians against whom deportation !

orders have been made. They seek to have the orders stayed to

enable them to pursue proceedings to review them under the

Judlclal Review Act. It 1s convenient to deal with the applicants

in the order in which they appear in the proceedings.

I-

i'

The first applicant was born in Suva in 1963, but her

parents separated when she was a baby and she was sent to live

wlth her mother's younger sister, who later became Mrs. George.

The first applicant lived with Mrs. George, as I shall call her,

until she went to boarding school at the age of 13. In the

meantime, her putatlve mother, as she is called in the papers, had

married an Australian citizen, Colin George.

2 .

Mr. and Mrs. George came to live in Australia about the

time the first applicant went to boarding school, and I infer that

the two events were connected. During the tlme the first

applicant was at the boarding school, she retained some

substantial contact with Mrs. Georqe, who visited Fiji and also

I .

wrote regularly to the first applicant. I ,

The flrst applicant says that it had "always been

!

t : .

decided" that she would live	with	Mrs. Georqe when she finished	i
L ,

school; In fact, she did not do so immediately, but stayed with

her maternal grandmother for about elght months, and then came to

Australia In 1981 and lived wlth	Mrs. Georqe as she had done, of
course, for most of her childhood.

The flrst applicant says that about two months after she

arrived, she went with Mr. George to the Immlqration Department and obtained a visa which was subsequently extended. She clafms

that she was told by Mr. Georqe that everythmg was all right and

she could stay. Durlnq her contacts with the department, she wzs

accompanied by Mr. Georqe, and says that	he	did most	of	the	1.:
l '
l

talking. She understood that Mrs. Georqe was an Australian j

cltizen, and when she flrst came to Australla she thought that she

would be	an Australian citizen because of the status	of	Mrs.
Georqe.

It appears, however, that the first applicant has had no

entry permit since 16 May 1982. She is, therefore, and has been

now for some four years, a prohibited non-citizen, although she

asserts that she was until recently, unconscious of having

3 .

attained that status. Her case 1s that she understood from Mr.

George that all matters relative to her "being either an

Australian citizen or permanent resident had been satisfied."

She applied to the Sydney Hospital at Glebe, and was

accepted, as a student nurse and completed a one-year course as a

..

nurse's aide. She then started nursing at Ashfield and continued

to work full-time as a nurse until she married the second

applicant in	July, 1984.	There is	one chlld of the marriage,
Valaml.

! .

The flrst applicant says that she is fluent in Engllsh

and 1 s asslmllated into the community and wishes to remain in

Australia. Mr. Boccabella, who appears for the applicants, refers

to the statement of reasons given by the delegate dated	16 April	;
!

1986 and says that legal error In it is manifest. He points out " '

that in paragraph 9 of the reasons it is sald, in effect, that the

applicants concealed themselves from the department, and in

paragraph 11, that they used false identities.

As to those matters, the first applicant says in her

L '

affidavit that she has used the name George, for obvlous reasons,

and slnce marriage has used her husband's name. She says, "At no

!

time was I ever queried by anyone	or department regarding the use
of my name."

Mr. Boccabella's point is not that the assertions of

concealment and use of a false identity are false, although he

says that they are in fact false, but that these matters were, on

i

. 4.

the uncontradicted evldence, never put to the first applicant and

he refers to	the decision of the	High Court in	v. West	60
A.L.J.R. 113.

I ,'

It seems to me unnecessary at thls stage to decide

whether the declsion in 1 s applicable to circumstances of

!

this sort, bur; on the face of It, there seems to be substantial

l

reason	for	believing	it	to	be.	That	is,	the	circumstances	i
I .
._

mentioned by the delegate seem to have had an impact upon his . .,

decision to deport the first applicant; they were matters personal

to the first applicant whlch, as I find for the purposes of these

interlocutory proceedlngs, were not put to her	and, at least prima
facie, should have been.

Mr. O'Gorman, who appears for the respondent, points out

that in the passages relied upon by the first applicant, the

delegate was directing hls attentlon to the question whether the

l '

first applicant should be deported rather than allowed to depart

voluntarily. It does not seem to me, however, thac this is a

sufficient answer when the deportation is challenged. There is a prima facle case of Illegality attaching on the basls of Kioa's case.

Other aspects of the matter were raised by Mr.

Boccabella, but it seems to me unnecessary to discuss them. I am

satisfied that there is a sufficient case of the order's being t

affected by a vitiatlng procedural error	to	justify my	giving	.	.	,
' _
interlocutory relief.	I	/
! -

5.

The case of the second applicant is somewhat more

difficult. The most substantial point, as it seems to me, which is able to be taken on his behalf is that, whereas the delegate

said he had used a false identity (meaning, according to the

second applicant's counsel, in a way relevant to hls immigration

status), the	false identity in question was concerned with his	! I
employment.	.. .

The passage In question in his affidavit reads as

follows :

"As to the assertlon that I have used a false

identity I say I was working for Sunbeam

Corporation as John Waqaliva and I applled for a

posltion with Electric Power Transmission. I

thought that if the new company checked. up and

found that I was already workmg I would have less chance of getting the second job. Therefore I

adopted the name Holdlng. I have continued to use

the name Holding In any employment however I did

Inform the Taxation Department that I had changed

my name from Waqaliva to Holding. In everything

else I use the name Waqaliva. I dld not use the

name Holding to avold the Immigration Department.

At no time was I ever queried about my name or

asked to make any explanation regarding the use of

the name Holding."

Mr. Boccabella's point is that, readlng the reasons as a whole, it

seems to have gone against the second applicant to some extent

i ..

that he used a false identity, and, according to counsel, that was

taken against him in forming	the conclusion that he had concealed
himself.

It seems to me that there is, on this material, no

reason to doubt that the second applicant used a false identity in

relation to Electric Power Transmission and no doubt, in a sense,

6.

with a deceptive intention. Nevertheless, it seems to me to be

reasonably arguable that the delegate should have explained to the

second applicant that the view was being taken, as it apparently

was, that his false identity, adopted in the circumstances I have

mentioned, had something to do with concealment from the

immigration authorities.

I

The second applicant adds the contention that	he did not	I-
,.
I

in fact attempt to conceal himself and that may well be so, but it i I

1 s unnecessary to reach a concluslon on the argument foreshadowed

I. .

I .

by Mr. Boccabella that there was no evidence of concealment from	i
the department.	It
,. ,

There 1 s a l s o to be taken into account the balance of

convenience and justice. It would	be, I	think, a slightly odd	4 ..
!

result if the wife's interlocutory application were to succeed and

not the husband's, although there is no legal obstacle to that

result. I think In all the circumstances it is better, and more

lust, that both applicants be permltted to stay pending the final

resolution of their application under the Judicial Review Act.

The order will be, In respect of each applicant, that

the deportation order made on 7 March 1986 be stayed until the

hearing and determination of the application for an order of

review filed on 15 July 1986 or further earlier order.

The costs of today's proceedings will be costs in the

principal proceedings.

1 .

i

Mr. Boccabella has also raised the questlon of the

adequacy of the reasons given under s.13.

As to that I make the following order: I direct that on

or before 13 August 1986 the person who furnished the 5-13

statement dated 16 April 1986, namely, Mr. Richard Henderson,

furnish to the applicants an additional statement under s.13(7) of

the Administrative Declsions (Judicial Review) Act containing

further and better particulars in relation to the following

matters with respect to the flndings of the said Mr. Henderson on

material questions of fact relevant to the decision mentloned in

the document of 16 April 1986:

(a) the findings wlth respect to the matters mentioned in

i

par.6 of the reasons;

(b) findings wlth respect to the matters mentioned in par.7 of the reasons;

(c) any other findings not mentloned in the reasons.

I will order that the respondent file any material on which he

proposes to rely on or before 13 August 1986; that the applicant

file any material in reply on or before 27 August 1986; the matter

be set down for hearing on a dzte to be fixed by the Registrar on

hls being satisfied that it is ready to be heard.

cerrify tba+ thls and The 6 preceding

pales are a trua copy of rhe reasons for

Judgment hcrein of His Honour

Mr Justice Pincus W+ Associate

Dated 2.3 &-&- / ~ S C