Re Jarint Kunakool v His Worship Mr Boys SM; Ronald Leslie Whittick and His Worship Mr Simpson SM [1987] FCA 199 (16 June 1987)

FEDERAL COURT OF AUSTRALIA

Re: JARINT KUNAKOOL
And: HIS WORSHIP MR BOYS S.M.; RONALD LESLIE WHITTICK and HIS WORSHIP MR
SIMPSON S.M.
Nos. WAG23 and 25 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.

CATCHWORDS

Administrative Law - committal proceedings - conspiracy to prevent or defeat the execution or enforcement of a law of the Commonwealth - review only in exceptional cases - committal complete - no intricate consideration of evidence required - important question of statutory construction - case proper for review - construction of Crimes Act 1914 s.86(1)(b) - ordinary meaning of words - "prevent", "defeat", "execution", "enforcement" - application to officer exercising statutory discretion - concomitant exercise of statutory duty - agreement to make false statements affecting exercise of statutory discretion - defeat execution of law - relationship of statutory conspiracy to common law conspiracy to defeat Act of Parliament - requirement for dishonesty or fraud - conspiracy to effect public mischief - conspiracy to affect statutory discretion by false statements within section - irrelevant that discretion exercised by reference to policy guidelines in manual - applications dismissed.

Migration Act 1958 s.6, s.11A

Administrative Decisions (Judicial Review) Act 1977

Crimes Act 1914

Judiciary Act 1903 sub-s.68(2)(b) and (3)

Schubert v. Minister for Immigration and Ethnic Affairs (unrep. 29/5/87 French J.)

Lamb v. Moss (1983) 49 ALR 533

R. v. Corak (unrep. NSW CCA 24/11/67)

R. v. Cahill (1978) 22 ALR 361

Forsyth v. Rodda (unrep. 1/4/87 Jackson J.)

HEARING

PERTH
16:6:1987

Counsel for the Applicant: Mr J.M. Walters instructed by Jamieson & Johnston

Counsel for the Respondents: Mr J.A. Scholz instructed by the Director of Public Prosecutions

ORDER

The application is dismissed.

The Applicant pay the Respondents' costs.

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

DECISION

Jarint Kunakool has been committed to stand trial on two counts of conspiracy to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely the Migration Act 1958.

2. He applies to this Court to set aside the committal orders for error of law.

3. One of the orders was made on 27 January 1987 by His Worship Mr Simpson S.M. on the complaint of Ronald Leslie Whittick, an officer of the Australian Federal Police that:-

"Between the 1st September 1985 and the 18th day of
October 1985 at Perth and other places within and
outside the State of Western Australia (he) did conspire
with ANTOINETTE PERSON and divers other persons to
prevent or defeat the execution or enforcement of a law
of the Commonwealth to wit the Migration Act 1958
contrary to S.86(1)(b) of the Crimes Act 1914."

4. The other order was made on 22 January 1987 by His Worship Mr Boys S.M. on Whittick's complaint that:-

"Between the 1st February 1986 and the 30th day of June
1986 at Perth and other places within and outside the
State of Western Australia (he) did conspire with
REBECCA JANE BARRY and divers other persons to prevent
or defeat the execution or enforcement of a law of the
Commonwealth to wit the Migration Act 1958 contrary to
S.86(1)(b) of the Crimes Act 1914."

5. The prosecution case on the first charge was that in September 1985 Kunakool agreed with Antoinette Person, a New Zealand citizen resident in Australia, that she would go to Thailand, there go through a form of marriage with a Thai citizen, Anurat Dhammawong, and sponsor his migration to Australia.

6. A similar agreement with another woman Rebecca Barry, underlies the second. The Thai citizen in this case was one Chanintorn Siri.

7. Kunakool has made application under the Administrative Decisions (Judicial Review) Act 1977 to review both of the committal decisions.

8. Before passing to the grounds for his applications, it is convenient to outline the evidence taken at the committal hearings. This resume summarises only the prosecution case. The applicant, as is often the case at this early stage in the proceedings, did not adduce any evidence.

Evidence at Committal Hearings

(a) The First Conspiracy

9. Antoinette Person, the applicant's alleged co-conspirator, was called as the principal witness for the prosecution.

10. She is a citizen of New Zealand and a divorcee. She works as a cook although on some immigration forms she described herself as a clinical psychologist. She first met the applicant in February 1985.

11. Towards the end of July or early in August 1985 Kunakool told her that he was planning to establish a business to bring Thai businessmen to Perth to gamble at the casino. He wanted a particular Thai man who worked in a travel agency in Thailand to come to Australia and help him run the business.

12. He asked Mrs Person if she knew any woman who would like a free holiday in Bangkok and would be prepared to marry the Thai so that he could come to Australia.

13. She made enquiries, but they were fruitless.

14. She was then asked by Kunakool if she would go to Thailand herself and marry the prospective business associate.

15. She agreed to do so but on the basis that she would neither consummate the marriage nor live with her husband as man and wife. There was discussion with Kunakool about getting a divorce within a year or so of the marriage.

16. He travelled to Thailand ahead of Mrs Person.

17. On 20 September 1985 she flew to Bangkok using a ticket provided by Kunakool's wife. He met her at the airport and introduced her proposed husband, Anurat Dhammawong.

18. She stayed with Kunakool's brother-in-law in Bangkok.

19. During the next few days she went around to many offices with him and signed many forms.

20. On 24 September she went through a form of marriage with Dhammawong.

21. The ceremony did not make a very powerful impression on Mrs Person. Of it she said:-

"At the time I did not know which day I married
Dhammawong, it was very confusing because most things
were being conducted in Thai; since then I now know I
married on 24 September 1985."

22. After their marriage, but prior to her return to Perth on 28 September, Mrs Person went with Dhammawong to the Australian Embassy. She thinks there were two such visits. Various forms had to be filled out to secure the issue of a visa for Dhammawong to enter Australia.

23. Prior to attending the Embassy she agreed with Kunakool and Dhammawong that she and Dhammawong would say that they had met each other on her previous visit to Thailand.

24. Kunakool suggested that she should say his sister had introduced her and Dhammawong at his mother's home.

25. He also suggested that they should say that she and Dhammawong had met again at Koh Sumui and that there she had agreed that she would return with a view to marrying him.

26. Mrs Person was interviewed by an embassy official and handed over a certificate of her marriage to Dhammawong.

27. She completed a form entitled "Sponsorship for Immigration to Australia".

28. Over her signature on that form were three undertakings, none of which she had any intention of honouring at the time that she signed the form:-

"1. I agree to provide information and advice to assist
my relatives in settling in Australia.

2. I agree to ensure that adequate accommodation is
available for my relatives on arrival in Australia
or if necessary to provide accommodation for up to
12 months from arrival in Australia.

3. To provide such financial assistance as is required
to meet their reasonable living needs for up to 12
months from arrival in Australia if necessary."

29. The personal information given in the form and another form headed "Application for Entry for Settlement" was otherwise correct.

30. When interviewed at the Embassy, Mrs Person told the interviewing officer that she and Dhammawong had met earlier that year in Thailand and following on from that meeting and exchange of correspondence, they decided to marry.

31. She said that they had met and fallen in love and that she had returned to Thailand specifically to get married. She said they had spent a lot of time together on her earlier and first visit to Thailand when they met.

32. She said also:-

"I told the person who interviewed me this because I had
told Gerry that I would get Anurat to Australia and that
was the only way to do it. I did it that way because it
was the way Gerry had told me to do."

33. Dhammawong went with Mrs Person to the Embassy but was not with her when she was interviewed. He was interviewed separately later.

34. On 28 September she flew back to Perth. The last time she saw Dhammawong in Thailand was at Bangkok Airport.

35. She expected to see him in Australia because he had become a friend and was a friend of Kunakool and his family.

36. Since her return to Australia Mrs Person has seen Dhammawong 3 times. They have not consummated their marriage nor have they lived together.

37. The prosecution also called as a witness Linda Laurel Trigg, the Second Secretary (Immigration) at the Australian Embassy in Bangkok, whose duties include the consideration and processing of applications by persons wishing to migrate to Australia.

38. She explained that under the "Family Migration Programme", it is necessary that there be a sponsorship form lodged by a resident of Australia and an application lodged by the person seeking to migrate.

39. Where the sponsor is married to the prospective migrant, supporting documentation in the form of proof of the identity of the parties and of their marriage is required.

40. Lodgment of the documentation is followed by an interview at the Embassy.

41. If satisfied that the applicant qualifies for a visa for entry into Australia as a resident, the Embassy arranges for health and character clearance from local authorities.

42. Depending on the clearances being obtained, a visa will be issued.

43. When considering an application on the part of an Australian resident the embassy staff assess the genuineness of the relationship.

44. Unless satisfied that the marriage were genuine, Miss Trigg would recommend that the application be refused.

45. In her approach to such applications Miss Trigg would rely upon a book called the "Migrant Entry Handbook" which is issued by the Department of Immigration and Ethnic Affairs and sets out policies and requirements in relation to the migrant programme.

46. In the assessment of the spouse relationship, reliance is placed on the applicant's statements in conjunction with proof of the fact of marriage. The interviewer would also elicit the circumstances in which the couple met, the duration of their relationship and perhaps an indication of the applicant's feeling for the spouse.

47. When satisfied that the application is in order Miss Trigg issues to a spouse/applicant a visa for permanent residence in Australia. On arrival in Australia the prospective migrant with a visa for permanent residence is generally issued with an entry permit at the point of entry. It is of some importance to note that the issue of a visa is a statutory function conferred by s.11A of the Migration Act 1958 upon authorised officers. The issue of entry permits is also a statutory function under s.6 of that Act.

48. Miss Trigg remembered interviewing both Dhammawong and Mrs Person.

49. She was very impressed with what Mrs Person told her about the relationship with Dhammawong. She remembered her as "articulate and sincere".

(b) The Second Conspiracy

50. Rebecca Barry, the alleged co-conspirator on the second count, is a 24 year old flight attendant now living in Melbourne but originally from Perth. She gave evidence for the prosecution and told His Worship Mr Boys, that she met Kunakool in 1985 through her association with Antoinette Person.

51. Early in 1986 and following an approach from Person, she went to Kunakool's house in Perth.

52. Kunakool told her that he had a friend in Thailand, Chanintorn Siri, who wanted to come to Australia to live.

53. He asked if she would be prepared to go to Bangkok and marry Siri so that he could live in Australia.

54. Kunakool told her that there would be no further involvement with Siri after the Bangkok trip and there would be little difficulty in getting a divorce a year or so later.

55. She had never before met or heard of this person.

56. Kunakool told her that he would pay for her airfares and pay her $800.00. She would be met at the airport and would stay with Siri's family.

57. Miss Barry agreed to co-operate and took 7 days off from work commencing 6 April 1986. She flew direct from Perth to Bangkok. Kunakool who had gone ahead, met her at the airport with Siri and they went to his parents' house where she stayed.

58. Kunakool instructed Miss Barry to spend as much time as possible with Siri exchanging information about family backgrounds and their respective likes and dislikes.

59. This, she was told, would ensure that when they were asked questions at the Australian Embassy they would have sufficient information to answer them.

60. Kunakool also told Miss Barry that they would have to convince officials at the Embassy that she and Siri had known each other previously.

61. She and Siri were married on 8 April 1986 at a Registry Office in Bangkok. Miss Barry said that she did not realise that she was getting married at the time of the ceremony as it was carried out in the Thai language by Thai officials. She and Siri had already collected sponsorship and settlement application forms from the Australian Embassy and these were completed and lodged on the occasion of a second visit on 9 April 1986.

62. Miss Barry received money from Kunakool as she needed it during her week in Bangkok. The total she received amounted to about $800.00.

63. The Saturday after she arrived in Bangkok she flew back to Perth and has had no contact with Siri since then.

64. She does not consider herself married to him and has instructed a solicitor to endeavour to have the marriage annulled.

65. In completing her sponsorship form which was lodged at the Australian Embassy in Bangkok, Miss Barry signed the same three undertakings as Mrs Person had signed on her form.

66. In his Application for Entry for Settlement, Siri claimed to have a job arranged in Australia in a restaurant. He named his prospective employer as Peter Morris of an address in East St. Kilda in Victoria. This was a name and address given to Siri by Miss Barry. Morris is a friend of hers but he was not in a position to offer Siri any employment.

67. It does not appear from the evidence that Miss Barry was interviewed at the Australian Embassy.

68. When Siri was interviewed there on 23 May 1986 she had already returned to Australia. Evidence of the interview with him was given by Andrew Thomas Macguire who, like Miss Trigg mentioned in relation to the earlier complaint, occupied the position of Second Secretary (Immigration).

69. He gave evidence of the general procedures adopted by the Embassy in processing applications for visas to visit or live in Australia. It was in much the same terms as that given by Miss Trigg.

70. Macguire stressed the importance of the sponsorship undertakings and said, that had they not been signed by Miss Barry, Siri's application for migration would not have been approved. It can no doubt be inferred from this, that a permanent resident visa would not have issued.

71. In the event, Siri's application was approved and he left Thailand for Australia.

Grounds of Review

72. The applicant seeks to review the decisions upon the following stated grounds in each case:-

1. That the decision involved an error of law;

2. That there was no evidence or other material to
justify the making of the decision.

73. Particulars of the grounds of review of the decision of Mr Simpson S.M. were filed on 23 March 1987 and were as follows:-

"The First Respondent was wrong in law and in fact in
holding that the evidence then before him was sufficient
to put the Applicant upon his trial for an offence of
conspiring to prevent or defeat the execution or
enforcement of a law of the Commonwealth, to wit, the
Migration Act 1958, contrary to s.86(1)(b) of the Crimes
Act 1914, for the following reasons:-

(a) the marriage between the witness ANTOINETTE PERSON
and ANURAT DHAMMAWONG which took place in Bangkok,
Thailand on the 24th day of September 1985 ("the
marriage") was legally valid and effective;

(b) the object or purpose of the marriage was
irrelevant;

(c) whether the said ANTOINETTE PERSON ("PERSON") and
the said ANURAT DHAMMAWONG ("DHAMMAWONG") wilfully
misled an officer or officers of the Australian
Embassy in Bangkok was irrelevant;

(d) if (which is not admitted) the Applicant agreed
with PERSON and DHAMMAWONG that:-

(i) PERSON and DHAMMAWONG would enter into the
marriage; and

(ii) PERSON and DHAMMAWONG would wilfully mislead
an officer or officers of the Australian
Embassy in Bangkok in relation to details
regarding their relationship and the marriage,

then such an agreement did not affect and could not
have affected the execution or enforcement of the
Migration Act;

(e) if (which is denied) the agreement referred to in
paragraph (d) hereof (the existence of which is not
admitted) had or could have had an effect upon the
execution or enforcement of the Migration Act, then
the said agreement did not have and could not have
had the effect of preventing or defeating the
execution or enforcement of the said Act."

74. The particulars of the grounds for review of the decision of Mr Boys S.M. were expressed in identical terms except that the names of Rebecca Barry and Chanintorn Siri were substituted for the names Antoinette Person and Anurat Dhammawong respectively.

75. In the end however, the applicant's case as expressed by his counsel in relation to each of the committals reduces to the following:-

"...The core of the applicant's submission is that if
there was an agreement to do anything there was an
agreement to prevent or defeat the execution or
enforcement of migration policy, which is a different
thing from the Migration Act. In other words, it is an
element of the offence alleged that there be an assault
upon the execution or enforcement provisions of the
Migration Act and there was no such assault in this
case."

76. Related to this submission was the proposition that an agreement affecting the exercise of a statutory discretion was not within the paragraph.

Reasons for the Decisions

77. No copy of the reasons for the decision of Mr Simpson S.M. were available. They were evidently delivered orally and were neither tape recorded nor typed.

78. This fact lends emphasis to the duty owed by counsel to client to take as complete a note of oral reasons for decision as is possible. In that way error, if error there is, may be more readily identified.

79. In the case of the decision of Mr Boys S.M. a transcript of the learned magistrate's reasons was put in evidence.

80. After dealing with the test to be applied in the decision whether to commit a defendant for trial, His Worship went on to consider whether the evidence was sufficient for that purpose.

81. He referred to the decision of the New South Wales Court of Criminal Appeal in R. v. Corak (unrep. 24/11/67) and the decision of the New South Wales Court of Appeal in R. v. Cahill (1978) 2 NSWLR 453 which are discussed later in these reasons.

82. He was satisfied that the facts in the case before him bore a marked similarity to those in Corak and that there was therefore sufficient evidence to commit the applicant for trial for the offence of conspiracy. He said:-

"The Migration Act is the statutory instrument by the
application of which citizens of other countries gain
admission to Australia, and status. Those who seek to
avail themselves of the legislation, and to that end
conspire to deceive for the purposes of advantage as
here, aim at defeating the execution or enforcement of
the law. The intention of the conspirators was summed
up, I think, by Barrie (sic) quite succinctly when she
said, in effect, that, "We couldn't tell the truth
because that would defeat the purpose"."

Statutory Framework

83. The relevant statutory provisions are to be found in the Migration Act 1958 and the Crimes Act 1914.

84. Section 6 of the Migration Act regulates the entry of non-citizens into Australia by imposing a requirement that each such person be the holder of an entry permit. Officers of the Department of Immigration and Ethnic Affairs are empowered to issue such permits which may be permanent or temporary:-

"6(1) A non-citizen who, not being the holder of an
entry permit that is in force, enters Australia
thereupon becomes a prohibited non-citizen.

(2) An officer may, in accordance with this section
and at the request or with the consent of a
non-citizen, grant to the non-citizen an entry
permit.

(3) An entry permit shall be in a form approved by the
Minister and shall be expressed to permit the
person to whom it is granted to enter Australia or
to remain in Australia or both.
.
.
.
(5) An entry permit may be granted to a non-citizen
either upon his arrival in Australia or, subject to
section 6A, after he has entered Australia (whether
or not that entry took place before, or takes
place after, the commencement of this Part)."

85. The evidence taken from Miss Trigg indicates the administrative practice whereby an entry permit will generally be issued upon entry to Australia to the bearer of a permanent resident visa.

86. Issue of the visa is not in any statutory sense a sufficient condition for the issue of an entry permit.

87. Indeed the Act expressly declares that the issue of a visa confers no right of entry into Australia:-

"11(1) A document or notation to which this section
applies issued to a person on behalf of the
Commonwealth shall not be deemed to be an entry
permit and does not entitle that person to enter
Australia or to be granted an entry permit.

(2) A document or notation to which this section
applies is -

(a) a visa or return endorsement granted under
this Act; or

(b) a visa or similar notation, or a form of
provisional authority to enter Australia,
issued, before the commencement of this
section, on behalf of the Commonwealth."

88. The power to issue visas is conferred upon authorised officers pursuant to s.11A of the Act:-

"11A(1) An authorised officer may, in accordance with
this section -

(a) grant to a person, upon request by that
person, a visa with respect to travel to
Australia by that person and any person whose
name is included in the visa -

(i) on a single occasion;

(ii) on occasions aggregating not more than a
specified number of occasions; or

(iii) on any number of occasions,

while the visa remains in force;
.
.
.
(2) A visa or return endorsement -

(a) shall be in a form approved by the Minister;

(b) shall come into force on the day on which it
is granted;

(c) shall be expressed to continue in force until
the expiration of a date specified in it, or
of a period specified or otherwise described
in it; and

(d) shall, notwithstanding that it is so expressed
to continue in force, cease to be in force
upon cancellation under section 11B."

89. Section 11C makes it an offence for the master, owner, agent or charterer of a vessel (including aircraft) to bring to Australia a person who is not a citizen and who is not in possession of a visa or return endorsement applicable to his travel to Australia on that occasion or who is not otherwise exempted.

90. The direct statutory effect of the visa is to authorise the carriage to Australia of the non-citizen to whom it applies.

91. The evidence indicates that the visa plays now, as it did before the introduction of ss.11A to 11C into the Act, an administrative role of some significance in that an entry permit will generally not be granted to a non-citizen who arrives in Australia without a visa - see generally Schubert v. Minister for Immigration and Ethnic Affairs (unrep. 29/5/87 French J.) .

92. Thus the securing of a visa from the Australian Embassy in Thailand was a vital step towards the acquisition of a permanent entry permit.

93. The deception or misleading of any person authorised to exercise powers under the Act constitutes an offence by virtue of s.65 which provides:-

"65. A person shall not obstruct, hinder, deceive or
mislead the Minister or an officer in the exercise
of his powers or the performance of his duties
under or for the purposes of this Act or the
regulations."

94. In the present case the applicant was charged under s.86(1)(b) of the Crimes Act 1914. The section provides in the relevant parts:-

"86(1) A person who conspires with another person -

(a) to commit an offence against the law of the
Commonwealth;

(b) to prevent or defeat the execution or
enforcement of a law of the Commonwealth;

(c) to effect a lawful purpose by means that are
unlawful under a law of the Commonwealth,

shall be guilty of an indictable offence."

95. For completeness it may be said that the learned magistrate, who is first respondent to the application, derives his authority to conduct the committal proceeding from sub-s.68(2)(b) and (3) of the Judiciary Act 1903:-

"68(2) The several Courts of a State or Territory
exercising jurisdiction with respect to -

(a) the summary conviction; or

(b) the examination and commitment for trial on
indictment; or

(c) the trial and conviction on indictment;

of offenders or persons charged with offences
against the laws of the State or Territory, and
with respect to the hearing and determination of
appeals arising out of any such trial or conviction
or out of any proceedings connected therewith,
shall, subject to this section and to section 80 of
the Constitution, have the like jurisdiction with
respect to persons who are charged with offences
against the laws of the Commonwealth.

(3) Provided that such jurisdiction shall not be
judicially exercised with respect to the summary
conviction or examination and commitment for trial
of any person except by a Stipendiary or Police or
Special Magistrate, or some Magistrate of the State
or Territory who is specially authorised by the
Governor-General to exercise such jurisdiction."

96. The decision to commit or not is made in accordance with the requirements of the Justices Act 1902 which in ss.106 and 107 provides:-

"106. When, on a preliminary hearing, all the evidence
offered upon the part of the prosecution against a
person charged with an indictable offence, as such,
has been heard, if the justices then present are of
opinion that it is not sufficient to put the
defendant upon his trial for any indictable
offence, the justices shall forthwith order the
defendant, if he is in custody, to be discharged as
to the complaint then under inquiry.

107. If there is no preliminary hearing and the
defendant has pleaded not guilty or if, on a
preliminary hearing in the opinion of the justices,
the evidence is sufficient to put the defendant
upon his trial for an indictable offence, then they
shall order him to be committed to take his trial
for the offence before some court of competent
jurisdiction, and in the meantime shall, by their
warrant, commit him to gaol, to be there safely
kept until the sittings of the court before which
he is to be tried, or until he is delivered by due
course of law or admitted to bail as hereinafter
mentioned."

97. So the decision to commit in this case was made pursuant to the Judiciary Act. It is an administrative decision made under a law of the Commonwealth and therefore reviewable under the Administrative Decisions (Judicial Review) Act 1977 - Lamb v. Moss (1983) 49 ALR 533.

98. The power conferred upon the Court to review such decisions is to be exercised with restraint.

The Discretion to Review

99. It is only in exceptional circumstances that the Court will exercise its discretion to review decisions made in committal proceedings - Lamb v. Moss (supra) at 564.

100. That was a case which involved interlocutory decisions made in the course of a committal hearing. It is apparent that the restraint principle is at its strongest with respect to that class of decision - see also Cheng Kui v. Quin (1986) 67 ALR 231 at 233, 236 and 243; Fermia v. Hand (1984) 53 ALR 731 at 733; Young v. Quin (1984) 56 ALR 168 at 171-172; Seymour v. Attorney-General (Cth) (1984) 57 ALR 68 at 74.

101. The principle nevertheless applies both to review of the conduct of incomplete proceedings and to review of the ultimate decision - Wong v. Evans (1985) 59 ALR 392 at 399; Foord v. Whiddett (1985) 60 ALR 269 at 279.

102. In particular the court will decline to review the committal decision where such review would involve an intricate consideration of the sufficiency of the evidence - Souter v. Webb (1984) 54 ALR 683 at 689; Foord v. Whiddett (supra) at 280.

103. The court may intervene, even in the case of an interlocutory ruling, where review requires construction of a statutory phrase and no dispute or doubtful fact is to be established in the process of review.

104. There may, in such a case, be a general public interest in resolving the question of construction which could arise in other proceedings - Shepherd v. Griffiths (1985) 60 ALR 176 at 183.

105. Questions of a preliminary nature going to jurisdiction will also attract a greater readiness to intervene - Clyne v. Scott (1983) 52 ALR 405 at 409; Seymour v. Attorney-General (Cth) supra at 74.

106. Where committal proceedings have been completed and the decision to commit is challenged on grounds which go essentially to the construction of a statute, raise an important question of law, and do not involve any intricate consideration of the evidence, then there will in the language of the Full Court in Lamb v. Moss (supra), be "additional considerations" which favour review.

107. The present case does in my opinion, raise a question of construction of some importance, namely the scope of the class of agreement that is caught by s.86(1)(b) of the Crimes Act 1914.

108. It is an area in which there is little authority and as will appear, the question which falls for consideration has not, so far as I am aware, been decided previously. Nor does its determination involve any intricate analysis of the evidence given at the hearing.

The Applicant's Contentions

109. The applicant submits that what the evidence shows is, at most, an agreement to prevent or defeat the enforcement or execution, not of laws but of policies with respect to migration.

110. The fact of marriage to an Australian citizen does not, it was submitted, confer any right upon the non-citizen to the issue of a visa or an entry permit. And that, so far as it goes, is correct.

111. Counsel noted that on the evidence, the application for a visa of a non-citizen seeking entry to Australia by reason of marriage to an Australian citizen would be determined by reference to the Migrant Entry Handbook, a policy manual.

112. To mislead an official into misapplication of that policy was not, he said, to prevent or defeat the execution or enforcement of a law.

113. Associated with these submissions was the proposition that the exercise of a statutory discretion does not constitute the "execution" or "enforcement" of the statute within the meaning given to those words in s.86(1)(b) of the Crimes Act.

114. It is to the question of construction that I will now turn.

The Meaning of Section 86(1)(b)

115. Read according to the ordinary meaning of its words, paragraph (b) protects the "execution" and "enforcement" of laws of the Commonwealth.

116. The word "execution" can be taken to bear the primary meaning given to it in the Shorter Oxford English Dictionary, namely:-

"The action of carrying out or carrying into effect."

117. Applied to a law, this term will include the conduct of an official discharging a statutory duty.

118. It is well established that if the occasion for the exercise of a statutory discretion arises, a failure to exercise it will constitute a failure on the part of its repository to discharge a statutory duty - Water Conservation and Irrigation Commission (NSW) v. Browning [1947] HCA 21; (1947) 74 CLR 492, 505; R. v. Anderson; Ex Parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 189; Murphyores Inc. Pty Ltd v. Commonwealth [1976] HCA 20; (1976) 136 CLR 1 at 17-18; R. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1976) 144 CLR 45, 49; De Smith Judicial Review of Administrative Actions 4th Edition at 124-125, 285 and 543.

119. It follows that when the discretion is exercised the official exercising it discharges a statutory duty. In doing that he carries out the law in a sense which is within the primary meaning of the term "executes".

120. In particular an offical exercising the discretion under s.11A of the Migration Act 1958 to issue or refuse to issue a visa is executing the provisions of that Act.

121. The word "enforcement" refers to the action of compelling fulfilment of the law (Shorter Oxford English Dictionary), a definition which includes compelling compliance with obligations imposed by law.

122. It does not seem apposite to the exercise of a discretion to grant or withhold the grant of a statutory privilege. I note however, that it was thought to be appropriate in the somewhat analogous case of R. v. Corak (supra).

123. That case was concerned with an agreement to arrange sham marriages to enable Chinese men, who were otherwise obliged to leave Australia at the expiry of their temporary entry permits, to apply for and obtain permanent entry permits.

124. Absent the grant of permanent permits they would have been compelled to leave Australia. In that context it can be understood why the charge was framed in terms of a conspiracy relating to the "enforcement" of the Act.

125. Isaccs J. in that case was of the view that the words "execution" and "enforcement" as used in s.86(1)(b) are not mutually exclusive but may and do overlap in their scope and meaning.

126. I respectfully agree. It may be that the term "execution" is the larger of the two and incorporates enforcement as a special case.

127. But that having been said, I do not consider that the present case is one involving an agreement to engage in conduct affecting the enforcement of the law.

128. Having determined that what is in issue is the "execution" of the law, it is necessary to consider whether the conspiracy alleged was directed to "prevent" or "defeat" that execution.

129. It was open on the evidence that the agreements said to constitute the conspiracies in which the applicant participated contemplated that his alleged co-conspirator in each case would be involved in making false statements of some kind to relevant officials in Bangkok in support of an application for the grant of a visa and ultimately an entry permit necessary before the respective spouses could enter Australia. Indeed Mr Boys SM found as much in his reasons for decision.

130. On that basis the relevant construction question is whether the making of a false statement to an official charged with the exercise of a statutory discretion on matters affecting the exercise of that discretion can amount to "preventing" or "defeating" the execution of the law.

131. This leads to a consideration of the concepts of "preventing" and "defeating" as used in s.86(1)(b).

132. To "prevent" a course of conduct by someone is to "stop, keep or hinder" that person from doing the thing in question.

133. Where the proposed conduct is the execution of a law by the exercise of a discretion it will be prevented if the discretion is not exercised.

134. That sense of the word "prevent" does not conform with the idea of submitting false information to a decision maker as a basis for the exercise of a statutory discretion. The discretion is still exercised.

135. Again the word "prevent" rather than "defeat" was used in R. v. Corak (supra) but that usage must be seen against the background of an agreement to prevent the otherwise obligatory departure or removal of Chinese men from this country at the expiry of their temporary entry permits.

136. In the meanings applicable for present purposes the word "defeat" has the connotation of "unmake, undo or destroy"; "to frustrate"; "to render null and void".

137. Without resorting to a consideration of the legal effect of fraud upon the exercise of a statutory discretion, it is, I think, sufficient in this case to rely upon the concept of frustration.

138. The exercise of the discretion is frustrated if it is misdirected by false factual material supplied to the decision maker. The decision rests upon a false foundation. It may well be also, that having been obtained by fraud, the decision is null and void in any event.

139. This usage of the term "defeat" is consistent with the way that conspiracies to give false testimony in judicial proceedings have been characterised as conspiracies to defeat the ends or the course of justice - R. v. St. Jean and Death (1903) 20 WN (NSW) 211; R. v. Griffiths (1904) St.R.Qd. 143; R. v. Sharpe (1938) 1 All ER 48.

140. In the latter case, the indictment alleged conspiracy to defeat the ends of justice. However the judgment of the Court of Criminal Appeal delivered by Du Parcq J. seems to have treated the words "obstruct" and "prevent" as synonyms for "defeat".

141. Nothing turned on any distinction between the terms, the question at issue being whether the offence could exist where there were no judicial proceedings pending at the time the conspiracy was entered into.

142. Another case of reliance upon the use of the word "defeat" in an analogous context, albeit at common law, is R. v. Bishop, Grantway and Trichter (1918) 1 KB 310.

143. The three prisoners were convicted of conspiring to defeat the provisions of the Military Service Act 1918, they having agreed to give one Bennett the sham appearance of heart disease by the administration to him of the thyroid glands of sheep. The object of the exercise was to deceive a military tribunal before whom he would appear so that it would form the opinion that he was unfit for military service.

144. The question of the full extent of the common law offence and whether it is confined by a requirement for some element of dishonesty will be considered below.

145. However, as a matter of statutory construction based on the ordinary meaning of the words in s.86(1)(b), the scope of the offence thus defined is broad enough to encompass a conspiracy to affect the exercise of a statutory discretion by the provision of false information to the decision maker.

146. There are only three judicial decisions in Australia of which I am aware, dealing with offences charged under this paragraph of sub-s.86(1).

147. The first is R. v. Corak to which some reference has already been made. As noted the appellant in that case had conspired with other persons to arrange a series of marriages between Chinese men temporarily in Australia on entry permits and Australian women, some of whom were already married.

148. The scheme had regard to the policy of the Department of Immigration (as it was then known) to favour the grant of permanent residency to non-Europeans who had married Australian citizens.

149. The appellant was charged with conspiring to prevent the enforcement of a law, to wit, the Migration Act 1958.

150. The appeal was brought upon the ground that the trial judge should have directed an acquittal on the basis that the evidence did not establish that the conspiracy relied upon amounted to an unlawful agreement to prevent the enforcement of the Migration Act.

151. At page 2 of the Reasons for Judgment McClemens J., with whom the other two members of the court, Moffatt and Isaccs JJ agreed, said:-

"This being a charge of conspiracy, the gist of the
charge is the agreement: agreement either to do an
unlawful act or a lawful act by unlawful means. This
particular case, of course would fall into the first
category."

152. The definition originates with Lord Denman in R. v. Jones (1832) 110 ER 485 and, although later repudiated by him as an exhaustive definition in R. v. Peck (1839) 112 ER 1372 and R. v. King (1844) 115 ER 683, it has been much cited.

153. Its invocation in R. v. Corak suggests that the statutory offence was regarded as an expression of the common law.

154. The trial judge in his direction to the jury had made express reference to evidence that, in support of applications for naturalisation by the husbands so they could remain in Australia, some of the parties had told "a pack of lies" at the behest of the accused. This conduct he referred to as part of the overt acts from which the conspiracy could be inferred.

155. In relation to the arrangement by the accused of such of the marriages as were lawful and not bigamous, his Honour said that was not the matter of the charge, it was the question of telling lies about them and misleading officers.

156. The contemplation by the conspiracy of dishonest acts seems to have been regarded by the trial judge as an essential element of the offence charged.

157. The judgment of McClemens J. does not in any way criticise that approach.

158. In his own analysis his Honour said at page 5 of the reasons:-

"If one turns now from that to a brief analysis of the
Migration Act; a reference to ss.6, 7, 10 and 18 - it is
not necessary to go beyond those sections - will show
that there is a power in the Minister to deport persons
whose entry permits have ceased to be in force, no
matter from what cause, and there are provisions there
dealing with the length of time that an entry permit
will be current and for its cancellation. All those
sections are directed to one thing, namely the
enforcement of the Act. It may be that s.18 is the
ultimate sanction, the act of forcible deportation but
short of that there are other sanctions which are part
of the enforcement provisions of the Act and it was to
prevent these enforcement provisions from coming into
existence, in other words to prevent the enforcement of
the Act, that this plan on the evidence was entered
into."

159. It is, in my respectful opinion, clear that the decision in Corak turned upon the fact that the agreement in question contemplated dishonesty by way of misrepresentation to the relevant official to secure the favourable exercise of a discretion.

160. The second case on s.86(1)(b), R. v. Cahill (supra), lacked that element.

161. In that case, three Australian women agreed to marry three Chinese men to enhance the men's prospects of avoiding deportation orders.

162. The marriages to which they agreed were valid and lawful.

163. There was no active misrepresentation on the part of those involved.

164. Each of the men and women were convicted of conspiracy to prevent the enforcement of a law of the Commonwealth, namely the Migration Act 1958.

165. The case went to the New South Wales Court of Appeal on a case stated. The case stated raised the question whether the trial judge was correct to direct the jury that they could find that the agreement in question contemplated conduct so offensive to public morality that it could be said to be unlawful.

166. The court held that the case should not have been allowed to go to the jury. The verdicts of guilty were set aside and verdicts of not guilty substituted.

167. Street CJ, before even addressing the stated case, held that it was and always had to be permissible to bring about circumstances which will create a climate favourable to the person concerned in respect of a statutory discretion which might be exercised for or against his interests. The revenue field was one example of that proposition.

168. For these reasons his Honour regarded the conviction as unfounded.

169. He distinguished R. v. Corak on the basis that in that case misleading statements had been made to immigration officials. However his Honour reserved the point whether active misrepresentation in the context of the facts before him could lead to a conviction of the offence charged.

170. As to the question raised in the case stated, his Honour took the view that the purpose and motives for which people enter into a marriage are too variable to render it possible for the criminal law to classify some as unlawful.

171. Reynolds JA regarded the trial judge's direction as erroneous because it posed a question to the jury which was irrelevant to the crime charged.

172. His Honour went to the words of s.86(1)(b) which had the effect he said of providing that the preventing or defeating of the execution or enforcement of a law of the Commonwealth is an unlawful purpose. He saw it as akin to the common law conspiracy to pervert the cause of justice.

173. The relevant question was whether the evidence could support a finding that an accused agreed to effect the unlawful purpose of preventing the enforcement of the law of the Commonwealth.

174. His Honour defined the issue at 371 as follows:-

"The question here is whether it can properly be said
that persons being free to marry, by agreeing to marry
(and if it be relevant agreeing that others should do
likewise) for the purpose only of providing additional
facts for presentation to the Minister when he came to
exercise his discretion as to making a deportation
order, were thereby preventing the enforcement of a law
of the Commonwealth. To my mind, the answer must be in
the negative. What they agreed to do did not prevent or
even impede the Minister from exercising his powers
under the Act."

175. Mahoney JA at 373, like Street CJ, did not regard the bringing into existence of a state of affairs apt to increase the prospect of a favourable exercise of a statutory discretion as preventing the execution or enforcement of the statute.

176. Even assuming that the agreement to marry for the purpose of attracting a favourable exercise of the statutory discretion were offensive to public morality, the entry into such a marriage did not thereby become a "preventing" of the execution or enforcement of the Act.

177. On the question of deception however his Honour said at 374:-

"Had it been established that the conspiracy involved
the deception of the Minister or the relevant officer in
this way, arguably there would have been a conspiracy to
prevent the enforcement of the Act or, more likely, its
"execution". Arguably, where a Minister or an officer
is under the Act to make a decision involving the
exercise of a discretion, a conspiracy to deceive him as
to the truth concerning a relevant matter will be a
conspiracy to prevent him carrying out the duty which
the Act imposes upon him and will therefore involve
preventing him executing the Act: cf R. v. Corak (Court of
Appeal, 24 November 1967, not reported). On this I
express no concluded view. It is a case which was not
left to the jury and I do not think that it is open to
support the conviction upon that basis."

178. The decision is, in my opinion, authority for the proposition that an agreement to do that which is lawful for the purpose of attracting the favourable exercise of a statutory discretion will not constitute a conspiracy to prevent or defeat the execution or enforcement of the statute.

179. Further, the fact that the marriages might have been entered into in a way offensive to public morality does not render the purpose of the agreement unlawful, nor "preventing" in the sense relevant to s.86(1)(b).

180. In Forsyth v. Rodda (unrep. 1/4/87 Jackson J.), the Court set aside a decision to commit the applicant for conspiracy to defraud the Commonwealth and for conspiracy to prevent or defeat the execution or enforcement of the Income Tax Assessment Act 1936. The applicant, a senior counsel at the Melbourne bar had given advice on a tax avoidance scheme involving the donation of art works to a gallery located on Norfolk Island.

181. It is not necessary to further review the facts, save to note that the committing magistrate was said to have proceeded upon the assumption that the offence could have been commited even if the scheme in fact operated to make deductions to the Gallery allowable.

182. In relation to the case under s.86(1)(b) Jackson J. took an approach similar to that enunciated in the Cahill (supra) decision, when he said at 19:-

"The Commonwealth's rights under the Income Tax
Assessment Act are measured by the terms of that Act and
if their effect is to permit a taxpayer to adopt a
particular course having taxation consequences defined
by the Act, the adoption of such a course cannot amount
to defeating or preventing the execution or enforcement
of the Act. That that is so is well illustrated by Reg
v. Cahill (1978) 2 NSWLR 453......"

183. The approach there disclosed is, with respect, logically consistent with the proper construction of s.86(1)(b).

184. As in Cahill (supra) the question of conspiracy involving active misrepresentation was left open.

185. In Forsyth v. Rodda (supra) it did not arise. The magistrate's reasoning was not based upon any view that the scheme was a sham or that any misrepresentation was involved.

186. The Corak case supports the view that a conspiracy to affect the exercise of a statutory discretion by the provision of false factual information to the decision maker, can contravene s.86(1)(b).

187. The other two cases leave the question open, expressly so in Cahill.

188. In relation to that question, it is helpful to consider the provisions of s.86(1)(b) against their common law background.

The Common Law Offence

189. Although spoken of as a common law crime, conspiracy was born out of 13th century statutes dealing with malicious prosecution. It was later generalised by the Star Chamber which, in the words of Lord Reid in Shaw v. DPP [1961] UKHL 1; (1962) AC 220 at 272 citing the 17th Edition of Kenny's Outlines of Criminal Law:-

...recognised its possibilities as an engine of
government and moulded it into a substantive offence of
wide scope whose attractions were such that its
principles were gradually adopted by the common law
courts."

190. It has been said on many occasions that the offence is committed if two or more persons agree to commit any unlawful act or a lawful act by unlawful means.

191. This formulation, known as the "Denman antithesis" is attributed to Lord Denman in R. v. Jones (1832) 4 B & Ad 345, 110 ER 485. It does not appear however, that he intended to lay down a definition of criminal conspiracy - R. v. Peck (1839) 9 Ad and E 686, 112 ER 1327 and R. v. King (1844) 7 QB 782, 115 ER 683. Indeed in R. v. Peck he said in answer to counsel's citation of his formulation:-

"I do not think the antithesis very correct."

192. In spite of that fact, the looseness of the formula, its evident surplusage and stringent academic criticism, it has received wide judicial acceptance.

193. It has found statutory expression in sub-sections 543(6) and (7) of the Criminal Code of Queensland, sub-sections 560(6) and (7) of the Criminal Code of Western Australia and in the Crimes Act (1914) (Cth) in sub-sections 86(1)(c) and (d).

194. Sir Samuel Griffiths' letter of 1897 accompanying the draft Criminal Code of Queensland referred to Part VII, which contains these provisions, in the following terms:-

"This Part contains principally statements of unwritten
law. I believe they are accurate statements of the
existing law of Queensland; with the exception of the
definition of an unlawful conspiracy to prevent or
obstruct the free exercise of a lawful trade or calling,
in which the existing law is qualified by the limitation
(in accordance with the English Law of 1875) of the
object of the conspiracy to acts which would be
themselves offences if committed by an individual."

195. In the draft Code, conspiracy to "prevent or defeat the execution or enforcement of any law" was treated in a separate section, although the 1899 Report of the Royal Commission into the proposed Criminal Code for Queensland brought it into the same section as the other conspiracies that now form part of s.543.

196. The marginal comment against the original section in the 1897 draft Code was "misdemeanour at common law".

197. The equivalent provisions in the Crimes Act 1914 are modelled on those in the Griffiths Code.

198. So one finds in these statutes conspiracies expressed in terms of the Denman formulation and standing in pari materia with other classes of conspiracy which at common law were apparently seen as special cases of that formulation.

199. There is much force in Professor Howard's observation in the 4th Edition of his text on Criminal Law at 273 where he says of the Code provisions:-

"It is submitted that subsections (1) to (5) should not
at the present day be construed in any wider sense than
the general unlawfulness rule stated in subsections (6)
and (7)."

200. It is evident from the marginal comment to the draft Queensland Code, that conspiracy to prevent or defeat the execution or enforcement of a law was, in 1897, thought to be an offence at common law.

201. However a classic text on the subject, The Law of Criminal Conspiracies and Agreements by R.S. Wright, published in 1873, contains no express reference to a conspiracy so described.

202. It does recognise a class of events named in the text as "combinations against the Government".

203. Its origin was traced back by Wright to the case of Starling (1663), 1 Sid 174, 82 ER 1039, in which brewers were convicted of a conspiracy to depouperate farmers of the excise and so make them incapable of rendering revenue to the King.

204. Quoting Lord Holt in Daniell (1704) 6 Md 99, Wright observed that the offence was "directly of a publick nature and levelled at the Government, and the gist of the offence was its influence on the publick".

205. Professor Goode in his helpful review of the Common Law in Criminal Conspiracy in Canada, included the Starling case under the general head of "Conspiracy to Commit a Public Mischief" and the special sub-class of "Conspiracy to Dishonestly injure the Government or a Governmental Function".

206. He observed of Starling's case that it involved both public and dishonest elements.

207. The existence of a common law conspiracy to defeat a statute law does not appear to be much in doubt.

208. What is of importance is the apparent requirement at common law that such a conspiracy involve the use of dishonesty or the use of fraudulent devices.

209. Such was the case in R. v. Bishop,Grantway and Trichter (supra).

210. In R. v. Newland (1954) 1 QB 159, the appellants were charged with conspiracy to effect a public mischief and contended that no such offence was known to the law.

211. Their agreement involved, inter alia, making false declarations to circumvent a statutory order of the Board of Trade restricting the sale of decorated domestic pottery other than for export.

212. The Court of Appeal held that it was too late in the day to contend that there was no such offence as a conspiracy to effect a public mischief.

213. However in a passage from the judgment of the Court delivered by Lord Goddard, their offence was characterised as conspiracy to defeat a statute. At 166 his Lordship said:-

"The particulars sufficiently allege a common law
misdemeanor, namely conspiracy, and whether the matter
is looked at simply as a conspiracy to effect an
unlawful purpose or a conspiracy by dishonest devices to
defeat the clear intention and purpose of an Act of
Parliament or to work to the prejudice of the State in
our opinion they disclose offences which have long been
known to the common law of this country."

214. In DPP v. Withers (1975) A.C. 842 at 859, Viscount Dilhorne thought it clear that Lord Goddard regarded the reference to public mischief as of little importance and indeed as surplusage.

215. The importance of the element of dishonesty in such conspiracies was emphatically asserted in the judgment of Lord Diplock with whom the rest of their Lordships agreed in R. v. Bhagwan (1972) AC 60 at 80:-

"My Lords, I know of no authority which would justify
your Lordships in holding it to be a criminal offence
for any person, whether or not acting in concert with
others, to do acts which are neither prohibited by Act
of Parliament nor at common law, and do not involve
dishonesty or fraud or deception, merely because the
object which Parliament hoped to achieve by the Act
may be thereby thwarted."

216. The passage already cited from the judgment of Lord Goddard in R. v. Newland (supra) was criticised by Lord Diplock only in so far as it might have been taken to suggest that the requirement for dishonest devices did not extend to a conspiracy to work to the prejudice of the State as well as to a conspiracy to defeat the intention of an Act of Parliament.

217. As to the generic classification of conspiracy to effect a public mischief, that was found in DPP v. Withers (supra) not to disclose any offence known to the law.

218. Viscount Dilhorne with whom Lord Reid agreed, said at 992 that the description had been applied in the past to a number of cases which might have been regarded as coming within the well known heads of conspiracy, as for example, conspiracy to defraud, and conspiracy to pervert the course of justice.

219. In that connection it is interesting to note the comment of Lord Simon at 872:-

"I am not prepared to endorse the statements in Newland
that a criminal conspiracy embraces an agreement to
effect an unlawful purpose (without further definition-
see, e.g., Kamara (1974) AC 104) or by dishonest means
to defeat the clear intentions of an Act of Parliament
(unless a conspiracy to defraud is established - cf
Bhagwan (1972) AC 60)."

220. In the light of the limitation on the common law conspiracy to defeat the intention of an Act of Parliament that it must involve dishonesty, there is a real question whether it might be treated as no more than a species of conspiracy to defraud.

221. Where the conspiracy involves deflecting a public official from the discharge of his statutory duty by dishonest means, it is clear that it may be so characterised.

222. In R. v. Horsington (1983) 2 NSWLR 72 at 75 Glass JA with whom Street CJ and Lusher JA agreed, said:-

"A conspiracy to defraud may also be made out on proof
of an agreement by fraudulent means to cause a public
official to act contrary to his public duty even though
no question of economic loss is involved."

223. His Honour cited Scott v. Metropolitan Police Commissioner [1974] UKHL 4; (1975) AC 819 at 841; DPP v. Withers (1975) AC 842 at 860, 862 and 877.

224. From the preceding I conclude that to establish the common law conspiracy to defeat the clear intention of an Act of Parliament, it is necessary to establish as an element of the relevant agreement, reliance upon dishonest or fraudulent devices.

225. It is not necessary for present purposes, to determine whether the statutory offence under s.86(1)(b) is similarly limited.

226. What emerges however both from the semantic analysis and by reference to the common law, is that where the agreement in question proposes by fraudulent misrepresentation to affect the exercise of a statutory discretion by a public official, then the offence is made out.

227. It may be that there are other categories of agreement which might involve some non-fraudulent interference with the discharge of statutory duty and yet fall within the paragraph.

228. It is sufficient for present purposes to say that the scope of s.86(1)(b) may not be limited to that of its common law equivalent but appears to incorporate it.

CONCLUSION

229. The applicant submitted that the agreement in each case affected only the application of an official policy and not the execution or enforcement of a statute.

230. That proposition is untenable.

231. The policy to be considered and applied is plainly conceived as a guide ultimately to the exercise of a statutory discretion to give or withhold visas for permanent residence in Australia.

232. Whether or not the official in question has read the provisions of the Migration Act is neither here nor there, in determining whether the decision making process involves the exercise of a statutory discretion.

233. The determination whether or not to issue a visa is the exercise of the discretion conferred under s.11A of the Act.

234. In exercising that discretion, the official discharges a statutory duty.

235. Where the exercise of that duty is misdirected by the provision of false information then the execution of the statute is defeated.

236. There was, in my opinion, sufficient evidence to sustain a finding that the applicant's agreement with each of the women involved contemplated that it would be necessary to misrepresent to the relevant officials the nature and origins of the relationship with her Thai husband and her present intention with respect to their future life together.

237. On this analysis, it is not necessary to consider the validity or invalidity of the marriages.

238. In the circumstances the application will be dismissed and the applicant will be required to pay the respondents' costs.