Re Gitsadalan Gaillard v the Minister of Immigration and Ethnic Affairs [1983] FCA 4 (21 January 1983)

FEDERAL COURT OF AUSTRALIA

Re: GITSADALAN GAILLARD
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. ACT G1 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative Law - prohibited immigrant - application to stay deportation order following cancellation of entry permit - application for release from custody pending final determination of order of review - matters to be considered - whether "arguable" or "prima facie" case made out

Administrative Decisions (Judicial Review) Act 1977 ss. 5, 15

Migration Act 1958 ss. 6, 7, 18

HEARING

SYDNEY
21:1:1983

ORDER

1. The application for an order staying the order of the respondent that the applicant be deported from Australia and for an order that the respondent be restrained from detaining her in custody pending the hearing of her substantive application for an order of review be dismissed;

2. The applicant pay the respondent's costs of the application.

DECISION

This is an application by Gitsadalan Gaillard ("the applicant") pursuant to s. 15 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order staying an order of the Minister for Immigration and Ethnic Affairs ("the respondent") that the applicant be deported from Australia. The stay is sought pending the hearing of the substantive application of the applicant for an order of review under the Judicial Review Act. The applicant also seeks an order that the respondent be restrained from detaining her in custody pending the hearing of the lastmentioned application.

The facts may be briefly stated. The applicant is a citizen of Thailand. She was born on 9 March 1960 in Thailand. She went through a ceremony of marriage with a Thai national in about 1977, and a baby girl was later born to them. She lived with her husband for a year, then they separated and she came to Australia leaving her daughter in Thailand with her husband where she is cared for by him and his relatives.

The applicant came to Australia for the purpose of taking up a position as a domestic servant in the household of the Thai attache in Canberra. Before she left Thailand for Australia she signed an undertaking written in both the English and Thai language acknowledging that her temporary stay in Australia was approved by the Australian Government on strict conditions including a condition that she would be employed on domestic duties in the household of the Thai attache and that she undertook to depart from Australia only in accordance with the travel arrangements made for her by or on behalf of her diplomatic or consular employer upon the cessation of her employment for any reason, and that she would not be eligible to remain in Australia as a resident or in any other capacity.

The applicant arrived in Australia on 5 January 1979 and was granted an unconditional temporary entry permit valid for 12 months which entitled her to work here. Later temporary entry permits were issued to her, the last being a permit granted on 30 October 1982 to expire on 30 January 1983. The applicant worked as a domestic servant for the Thai attache in Canberra, a Mrs. Rakbancha, upon her arrival in this country. She lived in the attache's residence. She married Robert Andre Gaillard, an Australian citizen, on 29 July 1982 in Canberra. They first met some months earlier. Mr. Gaillard is 23 years of age. He is a taxi driver employed by a Mr. Sanchai Israbhadki of Canberra who owns four taxis, a gift shop at Belconnen Mall and a restaurant at Phillip.

The applicant left the residence of the Thai attache on the day of her marriage and ceased then to work for her. Since then she has been employed in Mr. Israbhadki's gift shop and restaurant.

There is no evidence whether the ceremony of marriage entered into in Thailand in 1977 constituted a valid marriage under Thai law or not. It seems that the marriage was not registered with the relevant civil authorities in Thailand. The applicant is a Buddhist. She swore that her marriage, although in accordance with Thai customs, was "without a certificate" and therefore did not prevent her from remarrying provided she first separated from her husband.

The applicant and Mr. Gaillard both swore that the relevant facts relating to her earlier marriage in Thailand were disclosed to the Registrar of Marriages in the Australian Capital Territory before he married them last year. The records of the Australian Capital Territory Registry of Marriages apparently show that the applicant recorded her status as "spinster" at the time of her marriage to Mr. Gaillard. I have no idea whether the applicant was free to marry Mr. Gaillard in 1982 or not but I have a real doubt as to the validity of that marriage. It is possibly bigamous, but whether it is or not I do not know. The evidence does not enable me to form any such conclusion nor would it be appropriate in an application of this nature for me to do so.

The Registrar of Marriages was not called as a witness so I do not know if he denies the sworn statements by the applicant and her husband that the details of the Thai marriage and separation were disclosed to him. The fact that the Registrar was not called to give evidence does not in all the circumstances support or corroborate the evidence of the applicant and her husband about the disclosure to the Registrar of facts relevant to the Thai marriage because this evidence only emerged in the course of crossexamination of the applicant and her husband. They both swore affidavits without any suggestion in them that the applicant had been previously married. Indeed, the applicant swore in her affidavit:-
"5. I am married to Robert Andre Gaillard. We were married on the 29th July, 1982 in Canberra. I have not been married before. . . "

Nor did the applicant disclose in her affidavit the fact that she had a child by her earlier marriage. She swore in her affidavit:-
"4. . . . I have nothing to return to in Thailand, my parents are both dead."

As the evidence about her earlier marriage and the child of that marriage was elicited only in cross-examination by counsel for the respondent and as this application was heard by me as an urgent matter in vacation and seeks in substance interlocutory, not final, relief and as the evidence of the applicant and her husband was generally unsatisfactory the applicant gains no support from the fact that the Registrar was not called to give evidence.

Notwithstanding the sworn protestations by the applicant and her husband of their love for each other, they have not otherwise demonstrated the affection that husband and wife usually display towards each other. After their marriage they did not live together under the same roof although they saw each other reasonably frequently, but generally at the applicant's place of work. Mr. Gaillard swore in his affidavit:-
"4. After our marriage, my wife and I did not live together in the normal sense but we did spend a lot of time in each others company because at that time I did not want to change my life style. I would frequently see my wife."
Mr. Gaillard swore during cross-examination that he and the applicant in effect agreed not to live together at least for the time being because he was the lessee of a town house in Canberra where he lived with two other people and his dog. Both those persons were his friends and he did not think it right to inconvenience them by asking them or one of them to leave so that he and his wife, the applicant, could live together. He could not live elsewhere because he was the lessee of the town house. He denied that he was asked to marry the applicant by his employer, Mr. Israbhadki.

Mr. Israbhadki swore an affidavit but was not cross-examined. The applicant admitted in cross-examination that Mr. Israbhadki had given her a considerable number of presents over the last two years including two diamond rings. A sports model Datsun motor car is registered in the joint names of the applicant and Mr. Israbhadki but the applicant asserted that she has driven it once only. She denied any beneficial interest in the vehicle and said that Mr. Israbhadki paid for it himself.

The applicant denied that she and Mr. Israbhadki had a sexual relationship. Mr. Israbhadki swore in his affidavit that he had known the applicant for three years since she first came to Australia. He said he was present at the marriage registry in Canberra when the applicant and Mr. Gaillard married, and was a witness to the wedding. He said that if the applicant is released from custody he will continue to employ her.

I mention these matters, not to support any finding about a relationship between the applicant and Mr. Israbhadki - especially as he was not cross-examined, but the circumstances revealed in the evidence surrounding the marriage of the applicant and Mr. Gaillard together with other matters were relied on by the respondent, when deciding to deport the applicant, as pointing strongly to the probability that the marriage between the applicant and Mr. Gaillard was contrived to entitle the applicant to apply for permanent resident status in Australia.

Section 6A of the Migration Act 1958 provides so far as is relevant:-
"6A. (1) An entry permit shall not be granted to an immigrant after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say. . .
(b) he is the spouse, child or aged parent of an Australian citizen. . . "

The circumstances surrounding the marriage in Australia of a person against whom a deportation order has been made may be considered by the respondent in deciding whether to deport that person: Safedi v. Minister for Immigration and Ethnic Affairs (1981) 38 A.L.R. 399 per Mr. Justice Franki (at p. 403) and my own decision in Unlugenc v. Minister for Immigration and Ethnic Affairs, 13 August 1982 (at p. 11).

The circumstances surrounding the marriage of the applicant and Mr. Gaillard are relevant also as to their credit. Their evidence about these matters was unsatisfactory.

Taking all the evidence into account and the impression I formed of the applicant and her husband in the witness box, I do not accept the applicant as a witness of truth and I have considerable reservations as to the veracity of the evidence of her husband. The applicant swore in her affidavit:-
"1. I believe I have not been given a proper opportunity to make an application to the Minister for Immigration & Ethnic Affairs to be permitted to say in Australia permanently. It was my intention from early last year to apply and I did on the 2nd day of August attend the said Department's office in Canberra. At that office I was told I needed my Passport and that there was no rush because I had a current visitor's permit that would expire at the end of January, 1983.
2. I have not been permitted to hold my Passport at any time. I was born on the 9th day of March, 1960 in Thailand and was 18 years of age on arriving in Australia. I believe my Passport was held at all times by Mrs. Watcharee Rakbancha of 7 McNichol Street, Hughes in the Australian Capital Territory. I had issued to me, a Thai Passport prior to my departure from Bangkok. This Passport was valid for 2 years. Another Thai Passport was issued to me through the Thai Embassy in Canberra. Both these Passports were organised by Mrs. Rakbancha.
3. I believe my Passport is now in the custody of the Immigration Department and I have been advised by my solicitors that applications to the Minister of Immigration & Ethnic Affairs, for a further entry permit and for resident status in Australia, have been lodged with the Immigration Department in Canberra.
4. My application to the Minister has, I believe, strong compassionate grounds. I was not given any hearing about my entry permit being cancelled and the first that I knew of it being cancelled was when I was detained by Immigration officers on the 11th January, 1983. I have nothing to return to in Thailand, my parents are both dead."

That evidence is not denied although one aspect of it is curious, namely the reference in paragraph (1) of her affidavit to the fact that in August 1982 she then had a current visitor's permit to expire at the end of January 1983. It is common ground that a temporary entry permit was granted to the applicant on 30 October 1982 to expire on 30 January 1983, in which case it would be curious if in August 1982 the temporary permit then held by the applicant expired at the end of January 1983. However, no challenge was made to her evidence in this respect, and I do not think anything turns on it, so I draw no conclusions adverse to her from it.

The appropriate officer of the Department of Immigration and Ethnic Affairs presented to the respondent a submission dated 23 December 1982 reviewing the circumstances relating to the applicant and recommending that the respondent cancel the applicant's temporary entry permit and order her deportation from Australia. On 10 January 1983 the respondent approved the recommendation, cancelled the applicant's temporary entry permit and ordered her deportation.

The applicant was arrested by officers of the Department on 11 January 1983. She has been held in custody since then at the Belconnen Remand Centre. On 13 January 1983 the applicant filed an application in this Court for an order of review under the Judicial Review Act.

The application was listed for a directions hearing and for a hearing of the applicant's claim for interlocutory orders on 17 January 1983. On that day it was stood over to 18 January, and the respondent gave an undertaking to the Court by his solicitors that he would not deport the applicant from Australia pending the hearing and determination of the application without first giving to the applicant or her solicitors three days' notice in writing of his intention to do so. This undertaking is still on foot.

I gave directions on 18 January and fixed 19 January for the hearing of the application to stay the deportation order and for the release of the applicant from custody.

The application for an order of review in substance seeks orders quashing the deportation order and cancelling the applicant's temporary entry permit. The application specfies a number of grounds on which the respondent's decisions are challenged, but in essence they are:-
(a) that the decisions were not authorized by the Migration Act (para. 5 (1) (d) of the Judicial Review Act); and
(b) that the making of the decision was an improper exercise of the power conferred by the Migration Act, (para. 5 (1) (e) of the Judicial Review Act).

Counsel for the applicant told me that the only matters relied on by the applicant in this case were that in making his decision
(1) the respondent took into consideration an irrelevant matter namely, the fact of the marriage of the applicant in Thailand and,
(2) that the respondent acted in bad faith in that:-
(i) he was aware that the applicant had a temporary entry permit effective until 30 January 1983;
(ii) he was aware that the applicant had on 29 July 1982 married Mr. Gaillard, an Australian citizen;
(iii) he was aware his officers had suggested that the marriage of the applicant was one of convenience only for the purpose of grounding an application for permanent residence;
(iv) he was aware of the whereabouts of the applicant and that there were no grounds to suggest that the applicant would absent herself or in any way attempt to avoid apprehension;
(v) he, by the terms of the temporary entry permit, gave the applicant the legitimate expectation that she had until its expiry to apply for permanent residence as complying with conditions (b) and (e) of sub-s. 6A (1) of the Migration Act;
(vi) he was aware that if he cancelled the applicant's temporary entry permit, the applicant would not thereafter bring herself within the conditions in para. 6A (1) (e) of the Migration Act on an application by her for permanent residence;
(vii) he was aware that if the applicant applied for permanent residence the decision on that application would involve the question whether the marriage of the applicant was genuine;
(viii) he, by making the decision against the applicant using her maiden name and not her married name, has indicated that he does not believe the marriage is genuine;
(ix) he was aware that if before the expiry of the temporary entry permit he ordered the applicant to be deported and that order were executed promptly he would avoid the applicant having a proper opportunity to apply for permanent residence and obtain a decision and, if unfavourable to the applicant, the opportunity on review to establish that her marriage is genuine.

For the applicant to obtain orders staying the operation of the deportation order and for release from custody pending final determination of the application for an order of review, she must show at least some reasonable prospects of success in her substantive application for an order of review and reasons why the stay and release should be ordered.

I agree with the following passage from the judgment of Bowen C.J. in Collins v. Minister for Immigration and Ethnic Affairs, 26 November 1982 (at p. 4):-
"I do not think that the standards imported from other areas of the law are necessarily applicable in the administration of this Act. Whether s. 15 requires an applicant to make out a prima facie case in the sense laid down in Beecham Group Limited v. Bristol Laboratories Pty. Limited [1968] HCA 1; 118 C.L.R. 618 or whether it is sufficient to show an arguable case as mentioned in Capello v. Minister for Immigration and Ethnic Affairs [1980] FCA 152; (1980) 2 A.L.D. 1014 might be a question. Each case I think will depend upon its own circumstances in the exercise of discretion.
The Court will naturally be concerned to see whether there are any prospects of success in the application; if the prospects of success are very high the Court will be more concerned to try and hold the position by way of a stay, if it can do so, than it will be if there appear to be virtually no prospects of success."

See also Piroglu v. Minister for Immigration and Ethnic Affairs, a judgment of Northrop J., 18 June 1981, unreported; Simsek v. Minister for Immigration and Ethnic Affairs [1982] HCA 7; (1982) 40 A.L.R. 61, per Stephen J. (at p. 65) and my own decision in Unlugenc v. Minister for Immigration and Ethnic Affairs (supra).

The argument that the fact of the marriage in Thailand was an irrelevant consideration for the respondent to take into account when he decided to cancel the temporary entry permit and to deport the applicant may be disposed of briefly.

The applicant first submitted that the respondent not only took into consideration the fact of the earlier marriage in Thailand, but concluded that the marriage in Australia of the applicant and Mr. Gaillard was bigamous. However, this argument was abandoned by counsel in view of the submission made by the Department to the respondent from which it is plain that it is only the possibility of the Australian marriage being bigamous that was considered by the respondent. The Migration Act does not define particular matters which the respondent must or may take into account when considering the deportation of a prohibited immigrant. His power is discretionary and wide. It seems to me that the Thai marriage is a very relevant matter for the respondent to take into account, so there is no substance in this argument.

I turn to the remaining argument of counsel for the applicant that the applicant held a temporary entry permit due to expire on 30 January 1983 and was told (in effect) by an officer of the Department in August 1982 that she need not bother to apply for permanent resident status in a hurry because her permit did not expire until the end of January 1983. This was said to give rise to a legitimate expectation that she had until 30 January 1983 to apply for permanent resident status, thus enabling her to comply with paragraph 6A (1) (e) of the Migration Act.

There is no substance whatever in this argument or any refinement or variation of it. The mere holding of a temporary entry permit and a statement by a departmental officer, such as was made here, could not possibly fetter the respondent's power to cancel the permit or order the deportation of the applicant. The Minister may, in his absolute discretion, cancel an entry permit at any time - see sub-s. 7 (1) of the Migration Act and he may order the deportation of a person who is a prohibited immigrant under any provision of the Migration Act (s. 18).

It is important to see what the respondent had before him when he decided to cancel the interim entry permit and order the deportation of the applicant. The Department's submission to the respondent on 23 December 1982 is in evidence and was presumably considered by the respondent before he approved the recommendation contained in it. I do not propose to recite all the matters contained in that submission; nor is it evidence of the truth of its contents, but it contains a great deal of information about the applicant, including the circumstances surrounding her marriage in Thailand, her life in this country and her marriage to Mr. Gaillard.

In summary what the submission said is as follows:

1. The applicant was nominated for temporary residence in Australia for the purpose of taking up a position as a domestic servant in the household of the Thai attache in Canberra; the nomination was approved after the applicant signed an undertaking in respect of her entry and temporary stay in Australia, to which I have already referred. She arrived in Australia on 5 January 1979 and was granted an unconditional temporary entry permit, valid for 12 months, which entitled her to engage in employment. Subsequently her continued stay was authorized and the last temporary entry permit issued to her was due to expire on 30 January 1983.

2. On 28 July 1982 Mrs. Rakbancha, the attache of the Royal Thai Embassy, Canberra, contacted the Department of Foreign Affairs. She was worried that the applicant was planning to abscond from her employment. The applicant had apparently removed most of her personal belongings from the residence and information had come to the notice of Mrs. Rakbancha that the applicant had devised a plan, with the help of a Thai person, to enter into a marriage of convenience with an Australian citizen.

3. On 2 August 1982 Mrs. Rakbancha called at the Department of Foreign Affairs and presented a formal Thai Embassy Note, which stated:
"Miss Gitsadawan has run away from Mrs. Rakbancha's residence on Thursday 29 July 1982."

On 23 August 1982 the Department of Foreign Affairs received a further formal note from the Thai Embassy. The Embassy sought the cancellation of the applicant's authority to remain in Australia and that she be directed to leave Australia.

4. The Thai attache called at the regional office in the Australian Capital Territory of the Department on 6 October 1982, accompanied by another lady. The lady provided, amongst other things, the following information: the applicant is romantically attached to Mr. Sanchai Israbhadki, who has provided her with accommodation and employment. Mr. Israbhadki, who came to Australia 20 years ago as the adopted son of a former Thai Ambassador, is currently involved with three ladies, including the applicant. Mr. Israbhadki owns four taxis, a house in Canberra and is a part-owner of the Thai restaurant in Phillip. Mr. Israbhadki arranged a marriage of the applicant to Mr. Gaillard, an Australian citizen, on 31 July 1982. Mr. Gaillard, who is employed by Mr. Israbhadki as a taxi driver, does not live with the applicant. Mr. Israbhadki arranged the marriage so that the applicant could remain in Australia to be one of his lovers.

5. A record of interview between the relevant officer of the Department and the applicant on 2 December 1982 provided a deal of information including the following: that her parents were deceased; that in Thailand she has two sisters and a half brother; that she married in Thailand in accordance with local custom, in that she claims she married "without certificate" and therefore can be divorced "without certificate" according to local custom. She was then 18 years of age. There is a daughter of the union. The daughter is now 5 years of age and is in the care of the father in Thailand.

6. During her employment with Mrs. Rakbancha, the Thai attache, she was poorly paid - $20 to $40 per week - and her freedom was restricted. She had disagreements with Mrs. Rakbancha over various minor matters. She met Mr. Gaillard between September and December 1981 and their relationship developed in March 1982. She married on 29 or 30 July 1982 - she was unsure of the exact date. They did not have a honeymoon and he never took her out. She does not live with him because they do not know each other well. Mr. Gaillard lives with friends in a group house. He has a dog, which cannot be kept in a flat. Mr. Gaillard visits her occasionally.

7. The submission records the fact that Mr. Gaillard was interviewed by an appropriate officer of the Department on 2 December 1982 separately from the applicant. He said he married the applicant because he knew that she would otherwise be required to leave Australia and that he "felt something" for the applicant. Mr. Gaillard had in fact moved into new premises on 29 November 1982 without telling the applicant of his new address. Departmental officers invited him to attend the Department again on 3 December 1982 with or without a solicitor. He came alone. He was counselled in his own best interests that he should detail the circumstances of his courtship and subsequent marriage. It was explained to him that if the relationship was genuine then the Department wished to consider the question of the grant of citizenship. It was also explained to Mr. Gaillard that if the relationship was not genuine and the marriage was contrived solely to enable the applicant to become eligible for the grant of resident status, then he might be liable for prosecution. He remained silent.

8. Towards the end of the statement there is a section headed "Summary" reading as follows:-
"Ms. Potikum was admitted to Australia to be a domestic in Canberra at the home of a Thai Attache and was authorised to remain in Australia for that purpose until 30.1.83. She absconded from her employment on 29.7.82 and married an Australian citizen on 31.7.82. The couple do not live together and the statements made by both parties point strongly to the probability that the marriage was contrived solely to enable Ms Potikum to remain in Australia as a resident, although she has not actually made an application for resident status on the basis of marriage. In any event Ms Potikum has admitted to a 'husband' and child in Thailand which indicates there may be a possibility that the marriage to Mr Gaillard may be bigamous. Certainly Ms Potikum makes it plain that she is not about to leave Australia voluntarily."
The final paragraph is headed "Recommendation":
"In all the circumstances, I recommend that you sign the attached form of cancellation of the temporary entry permit issued to Ms Potikum and that you sign the attached order for her deportation to be invoked as soon as practicable."

Except for the argument that the respondent should not have taken into account the fact of the Thai marriage, it was not submitted that the Department's report contained irrelevant matters or that for any other reason that should not have been considered by the respondent.

There is no substance in any submission made on behalf of the applicant. The applicant has no prospects of success on a final hearing and that weighs heavily against making the orders sought today, if it does not indeed conclude the matter.

However, having considered all the evidence and the relevant circumstances I would not in any event, be disposed to make the orders sought. Also, the applicant has the benefit of the undertaking of the respondent mentioned earlier.

As to the application for release from custody pending the final hearing of the application for an order of review, I adhere to the views expressed by me in Unlugenc v. Minister for Immigration and Ethnic Affairs (supra) and need not repeat them.

In The Queen v. Mackellar; Ex parte Ratu [1977] HCA 35; (1977) 137 C.L.R. 461, Mason J. said (at pp. 478 and 479):
"The making of a deportation order under s. 18 therefore provides lawful authority for the removal from Australia against his will of a person who has no right to remain here. It is not the case that the order terminates his right to remain; nor can it be said in the ordinary case that it deprives him of a legitimate expectation that he will be allowed to remain here. Deportation, for which the order provides, is then but a consequence of the prohibited immigrant's failure to depart when he has no right to remain."
In Piroglu's Case (supra) Northrop J. said (at p. 11):-
"The policy of the Migration Act is clear. Prohibited immigrants should not be left at large in the community pending deportation unless the Minister or an authorized officer exercises his discretion in accordance with s. 39. . . I consider this type of case to be very different from the normal "bail" case. In those cases a person has been arrested and charged with a criminal offence but has not been convicted. He is being held in custody pending trial and, prima facie, is entitled to bail. In the present case the applicant has not been charged with any criminal offence. He is a prohibited immigrant and under the Migration Act prima facie should be held in custody. Time limits are imposed by s. 38 of the Migration Act and once a deportation order has been made a deportee, prima facie, should be held in custody until deported, s. 39 Migration Act. The Court should not interfere with that policy except in exceptional circumstances."

I agree with those views of Northrop J.

In my view, no exceptional circumstances exist in the present case. Accordingly I decline to order the release of the applicant from custody.

The Court orders that the application for an order staying the order of the respondent that the applicant be deported from Australia and for an order that the respondent be restrained from detaining her in custody pending the hearing of her substantive application for an order of review be dismissed; and that the applicant pay the respondent's costs of the application.