Wong, D.H.K. v Minister for Immigration & Ethnic Affairs

[1994] FCA 954

DOMINIC HO KANG WONG v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No G340 of 1994
FED No. 954/94
Number of pages - 4
Immigration
(1994) 53 FCR 376

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
DAVIES, FOSTER AND CARR JJ

CATCHWORDS

Immigration - entry permit - whether a child who was included in an application for a visa was an applicant - whether the child, having signed the application form, made a false or misleading statement - whether the declaration of correctness of information in Form 47 extends to information therein supplied by other persons - distinction between 'applicant' and 'principal person' for purposes of Reg 108 of the Migration Regulations.

Migration Act 1958 (Cth) - s 20(2)
Migration Regulations - Regs 51 and 108

Tuiqilai v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 287

HEARING

SYDNEY
#DATE 19:9:1994
#ADD 12:5:1995

Counsel for the appellant: Mr S Gageler

Solicitors for the appellant: Ray Turner and Co

Counsel for the respondent: Mr P Roberts

Solicitor for the respondent: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES, FOSTER AND CARR JJ This is an appeal from a judgment of a judge of the Court, Whitlam J. The issue before his Honour was whether the appellant, Dominic Ho Kang Wong, was a person to whom s 20(2) of the Migration Act 1958 (Cth), as the sub-section then stood, applied. Section 20(2) (ii) provided:-

"(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:

...

(b) in respect of the grant of that entry permit: ...

(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."

1. Section 20(12) read:-
   

"(12) A reference in this section to a person making, or causing to be made, a statement that was false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular."

1. The learned trial judge found that, in an application for a visa lodged on 19 September 1990, the appellant had made or had caused to be made a statement that was false in a material particular. The appellant's father had been seeking to migrate to Australia with his wife, his son the appellant, and his daughter. He applied for a visa in respect of himself under reg 51 of the Migration Regulations, which provided for an employer nominated visa applicable to a person who is highly skilled and is nominated by an employer. The application form as lodged showed the father to have specialist knowledge and experience in the marketing and promotion of cosmetic products. This was a gross deception as the father had, in fact, been an officer employed in the prison service in Hong Kong.

2. Regulation 108 provided that a spouse and dependent children may be included in such an application for a visa. The regulation read, inter alia:-
   

"108 (1) In this regulation, 'principal person' means a person:

(a) who is:

(i) an applicant for a visa or an entry permit; or

(ii) the holder of:

(A) a valid temporary entry permit; or

(B) an entry visa operating as a temporary entry permit; ...

...

(2) This regulation applies to an applicant who is a member of the family unit of a principal person and who applies for a visa or entry permit of the same class as that held, or applied for, by the principal person, where:

(a) the principal person has satisfied the prescribed criteria for the relevant class of visa or entry permit; and

(b) the applicant:

(i) is included in the principal person's application; or

(ii) applies at the same time as the principal person; or

...

(3) Subject to subregulations (5) and (6), in spite of any prescribed criteria for a visa or entry permit of the class applied for, or held, by the principal person in relation to an applicant to whom this regulation applies, that applicant is, upon satisfying the criteria prescribed under subregulation (4), entitled to be granted a visa or entry permit of that class.

(4) The following criteria are prescribed for an application under this regulation for a visa or entry permit, namely, the applicable public interest criteria, the applicable prescribed criteria in relation to health and any other criteria applicable to the applicant.

(5) Where a member of the family unit of a principal person is entitled to be granted a visa or entry permit under subregulation (3), the visa or entry permit must not be granted unless a visa or entry permit of the same kind has already been granted to the principal person."

1. The effect of this regulation was that the principal person and all other persons who were joined in the application were applicants for a visa. The term "applicant" is distinguished from "principal person", as subregs (2) (3) and (4) of the regulation make clear: Tuiqilai v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 287.

2. The mother, the appellant and his sister were included in the father's application. Each was an applicant for a visa and the success of the application was dependent upon the success of the father's application for a visa under reg 51.

3. The appropriate form was Form 47. Such a form was filled out by Mr R H Ramsay, a migration agent who acted on behalf of the family. The form as completed was expressed to be an application for the father, the mother, the appellant and his sister to migrate to Australia.

4. Many questions on the form were expressed to be directed to the principal person and referred to "you" or "your spouse" or "your children" and so on. However, part 12 of the form, which was headed "Declaration", was required to be:-
   

"signed by the applicant, spouse and all persons aged 18 years or over included in the application."

1. The declaration which followed, read, inter alia:
   

"I declare that the information I have supplied in this form, and in any attachments, is correct and up-to-date in every detail . . .

1. Part 12 of the form was signed by the father, the mother and the appellant but not by his sister who was not 18 years of age at the time. Accompanying the form were Forms 47A which gave details of the appellant and of his sister. These forms were required to be and were signed only by the principal person, the father.

2. It appears that the Form 47 may have been blank when signed by the appellant who deposed in an affidavit:-
   

"At the time I signed the form I was in England . . . The form was sent to me from Hong Kong by my father. I signed it in about June 1990 and sent it back to him. I do not recall whether the information concerning my father's employment history contained in part 7 of the form was on the form when I signed it."

1. The submission of Mr S Gageler, counsel for the appellant, was that the appellant did not supply any of the information in Form 47 or the Forms 47A, certainly not the information as to his father's employment history. Mr Gageler submitted that the words in the declaration, "the information I have supplied in this form", referred only to information which the declarant had actually contributed to the form or had specifically authorised to be included therein. Mr P Roberts, counsel for the Minister, submitted, however, that each of the persons who signed the Form 47 thereby adopted its contents and authorised its lodgment with the Department of Immigration and Ethnic Affairs. Mr Roberts submitted that all the information in Form 47 and in the Forms 47A was supplied to the Department by each of the applicants on the lodgment of the forms. Mr Roberts submitted that each of the signatories took responsibility for the whole of the information in the forms supplied to the Department on his or her behalf.

2. We prefer the submissions presented by Mr Roberts. As the forms lodged constituted applications by each of the persons included therein, not only of the father, and as the applications of the wife and of the children were dependent upon that of the father, the signatures of the mother and of the appellant adopted the whole of the material on the forms lodged and declared it to be correct.

3. For these reasons we are satisfied that the appellant, in his application for a visa, made or caused to be made a statement that was false in a material particular. The appeal should be dismissed with costs.