Re Ricardo Dela Cruz v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 57; 52 Migration 100 ALR 534 (28 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: RICARDO DELA CRUZ
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G21 of 1990
FED No. 52
Migration
100 ALR 534

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Migration - whether applicant an illegal entrant under section 14 by virtue of the operation of section 20 of the Migration Act 1958 - whether supply of false information regarding marital status is a "material particular" - circumstances where section 20 applies - whether appropriate circumstance in section 20 to one application is without more entitled to be considered in later application - whether causal link necessary between false statement and issue of visa or permit.

Migration Act sections 14(2), 20(1), 22(2)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Re Bolton and Anor; Ex Parte Beane [1987] HCA 12; (1986-87) 162 CLR 514

Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681

Naumovska v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 589

Percy Rojas v Minister for Immigration and Ethnic Affairs and John Davidson Woodward J, unreported 10 December 1989

Bone Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs Lockhart J, unreported 12 October 1989

HEARING

SYDNEY
28:2:1991

Counsel and solicitors for Mr M.B. Smith instructed by
the applicant Parish Patience

Counsel and solicitor for Mr B. Knox instructed by Australian

the respondent Government Solicitor

DECISION

This is an application for judicial review of a decision of the respondent made on or about 18 August 1989 that the applicant is a prohibited non-citizen by virtue of being a person to whom section 16 of the Migration Act 1958 (as in force at that time) referred. In formal terms, by reason of amendments to the Act in December 1989, this now becomes a consideration of the status of the applicant as an illegal entrant under section 14. There is no relevant substantive difference between these tasks.

2. In a directions hearing on 30 March 1990, Justice Davies ordered that the following questions be set aside for separate hearing and determination:

(a) Whether the applicant was granted a permanent entry permit on
29 November 1987.
(b) Whether, notwithstanding such entry permit if granted and
absent any estoppel against the respondent from contending to
the contrary, the applicant is an illegal entrant by virtue of
the operation of section 20 of the Migration Act 1958.

3. It was envisaged by the parties that if the issue is resolved in favour of the applicant, final relief will be given by way of declarations and injunctions and the proceedings will thus be concluded. Justice Davies left the question of estoppel to a later hearing if I decided against the applicant on these two issues. Counsel for both parties agreed that I have jurisdiction to make the declarations and injunctions sought in relation to the questions posed by Davies J by reason of section 39B of the Judiciary Act.

4. There is no significant dispute between the parties as to factual matters. In fact, during the course of the hearing, question (a) posed by Davies J did not arise as a real dispute between the parties. Other than that both parties agreed that the date referred to in that question should read 29 October 1987, the submissions were confined to question (b). There seems no doubt that question (a) as so varied must be answered yes.

5. The applicant was born in the Philippines. On 7 June 1986 he applied, in Manila, for a visitor's visa for Australia. This was the only occasion upon which he applied to enter Australia. The applicant took the necessary forms to the counter at the Australian Embassy in Manila and did not talk to anyone. Neither then nor at any other time did the applicant attend an interview. The applicant indicated that the purpose for the proposed entry to Australia was to 'holiday'. On the application form he marked the box 'now married' in answer to the request for his marital status. This was incorrect because at that time he was not married. In fact, the applicant had never been married before coming to Australia.

6. On 26 June 1986 the applicant was granted a visitor's visa valid for 6 months and on 21 July 1986 he arrived at Sydney. Again, on the incoming passenger card he incorrectly marked the box alongside the words 'now married'. Upon arrival he was granted a temporary entry permit to remain for 6 months.

7. On 19 January 1987 the applicant married an Australian citizen, Imelda Escordial, whom he said in evidence he had met one month after his arrival. On 21 January 1987 he applied for permanent resident status on the grounds that he was the spouse of an Australian citizen. This application was granted on 29 October 1987 and he has lived here ever since. On 11 January 1990 the applicant was informed that he was an illegal entrant pursuant to sections 14 and 20 of the Migration Act (the Act).

8. Question (b) as stated by Justice Davies arises out of the applicant's incorrect marking of his visa application and incoming passenger card. The relevant sections of the Act are:

14(2) Where a person to whom subsection 20 (1) or (2) applies has
entered Australia (whether before or after the commencement
of this section) then, at and after that commencement, or
that entry, whichever is later, the person is an illegal
entrant at any time while he or she:
(a) remains in Australia;
(b) is not a citizen; and
(c) does not hold a properly endorsed valid entry permit
or a properly endorsed valid entry visa.
20(1) This subsection applies to a person, being a non-citizen,
who has entered Australia, whether before or after the
commencement of this section, if:
(a) ...
(b) when, or before, the person entered Australia, he or
she:
(i) produced, or caused to be produced, to an officer or a
person exercising powers or performing functions under
this Act, in respect of that entry:
(A) ...
(B) a passenger card containing information that
was false or misleading in a material
particular; or
(ii) made, or caused to be made, to an officer or a person
exercising powers or performing functions under this
Act, in respect of that entry, a statement that was
false or misleading in a material particular;
(c) when, or before, a visa was granted or issued in
respect of the person, he or she:
(i) ...
(ii) made, or caused to be made, to an officer or a
person exercising powers or performing
functions under this Act, in respect of the
grant of that visa, a statement that was false
or misleading in a material particular;
......

9. Section 14 thus operates upon those individuals who fall within one of the categories enumerated in section 20, making them illegal entrants unless their entry permit or visa carries an "endorsement" by a departmental officer that the permit/visa has been given notwithstanding that the person was or would have been an illegal entrant. The applicant's permanent residency permit does not carry such an endorsement.

10. The respondent alleged that the applicant fell within three of the categories described in section 20. It is not disputed by the applicant that a false answer was entered on his passenger card and (subs (1)(b)(i)B)), that he made a false statement when he presented a passenger card with a false answer (subs (1)(b)(ii)) and that he gave a false answer on his visa application form (subs (1)(c)(ii)). It is agreed that none of these categories requires any element of intent or knowledge of the falsehood on the part of the applicant. No issue, therefore, arises in this case as to the mental state of the applicant at the time of completing and presenting these forms: see the decision of Lockhart J in Bone Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs, 12 October 1989 unreported at page 7.

11. The issue which does arise in relation to each of these categories is whether the supply of a false information regarding marital status satisfies the test in section 20 that the falsehood be a "material particular".

12. An issue of construction also arises. In what circumstances does section 20 apply? Is a causal link necessary between the false statement and the issue of the visa/permit? Do the relevant sub-sections of section 20 apply to all subsequent permits issued or only to the one in relation to which the erroneous statement was made?
CONSTRUCTION ISSUE

13. It is logical to deal with the construction question first. The applicant submitted that section 20 (1) applies only in relation to the permit which is affected by one of the stated events and not to entry permits granted subsequent to the happening of one of the events. The applicant's counsel submitted that there is no evidence that the applicant's current, i.e. permanent, entry permit was in any respect affected by the conduct that is relied on in relation to the first, temporary, permit. Therefore, counsel submitted, no endorsement is required in relation to the applicant's present permanent residency permit.

14. In Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681 Lee J said at 699:

Having regard to all these matters, I have concluded that
the preliminary issue should be determined as follows,
namely, that the correct interpretation of s 16(1) in its
present form and context is that the endorsement required by
the sub-section applies to any entry permit which has been
issued in consequence of a false or misleading statement or
production of a false document and not to any subsequent
entry permit the issue of which was unaffected by such conduct.

15. The present section 20 is a re-enactment of section 16 in the pre-December 1989 legislation. The applicant argued that the very re-enactment itself is a confirmation of the Parliament's agreement with Justice Lee's construction. He further submitted that in a case such as this, a construction favourable to the liberty of the person in Australia should be favoured. In support of this submission he relies on a recent decision of the High Court of Australia in Re Bolton and Another; Ex parte Beane [1987] HCA 12; (1986-87) 162 CLR 514 at 523 where Justice Brennan stated:

The law of this country is very jealous of any infringement
of personal liberty and a statute or statutory instrument
which purports to impair a right to personal liberty is
interpreted, if possible, so as to respect that right.

16. The respondent said that once the requirements of section 20 are brought into operation, all subsequent permits or visas must carry the endorsement. He argued that section 22(2) was inserted in the new Act to overcome the effect of Rubrico. This provision is as follows:

(2) A person who has become an illegal entrant under subsection 14
(2) for a particular reason stops being an illegal entrant if
and when there is granted to the person a properly endorsed
valid entry permit, and does not otherwise stop being an
illegal entrant.

17. In support of this argument the respondent pointed to what he says is a distinct difference between the old section 16(1) and new section 22(2) in that the old provision provided for one endorsement only. I am unable to accept a construction of section 22(2) which would suggest that an endorsement is required each time a new permit is granted. If so, a person who gained an endorsement of a first permit and later became entitled to a second or different category of permit which for some reason was not endorsed would be unlawfully in Australia. This cannot be the effect of the legislation.

18. In my view, the applicant's argument is correct. It seems to me clear that section 20 applies to the particular entry with which the falsehood was connected. The statute prescribes a temporal connection between the falsehood and the permission to enter Australia and implies that the latter was brought about by the former. It would be strange indeed if permanent entry, granted on the basis of marriage to an Australian citizen, could be impeached or revoked because a previously false assertion of existing marriage had misled the authorities. If the previous assertion had been correct, except in a case of bigamy, either the second application would have been false or there would have had to be a time when he was not married to anyone. Yet this did not bring about a refusal of permanent entry for making a false application or for failing to advise of a change of marital status. I think that the intention of the legislation is that each decision is to be judged on the information supplied at that time and for that purpose.
MATERIALITY ISSUE

19. In light of my conclusion on the construction issue, it is not strictly necessary to decide this question. This is because the respondent conceded that the permanent entry permit was not separately affected by any of the criteria of section 20 such as would separately render the applicant an illegal entrant pursuant to section 14 or require an endorsement. However, as it was fully argued, it is appropriate to express my views with a view to limiting further litigation of this dispute in due course.

20. The applicant submitted that the respondent must establish that the false information was given of a material particular: Naumovska v Minister for Immigration and Ethnic Affairs (1989) 88 ALR 589, and that the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 applied so that the graver the consequences, the heavier such an onus is. The applicant argued that the requirement of "materiality" meant that the false statement had to be causally relevant to the action the officer took, and that in fact marital status was not relevant to the granting of residency status.

21. The respondent's submission was that statements regarding marital status are material to the decision to grant entry to Australia. He stated that the two factors which are important in relation to the granting of a visitor's visa are that the applicant intends a genuine visit and intends to depart. In this context, it was submitted, marital status is a significant indicator of ties to the home country, making an intention to return home more likely.

22. In Jovcevski Mr Justice Lockhart held in relation to the then section 16:

Whether a statement is false or misleading in a material
particular for the purposes of that statutory provision, of
course, must be objectively determined. The determination
of that question does not rest upon the formation by anybody
of an opinion, including the Minister or the relevant
officer of the Department.

23. Mr Sutherland, an officer of the respondent, testified that an entry permit is fairly automatically granted upon the issue of a visa but that the consistency between the visitor's visa and the passenger card is important. This was the way he finally put the decision-making process in this case (sic - at transcript pp 56-7):

The customs officer would have made a decision on the basis
of the information available in the visa, other information
available in the passport as to the identification of the
applicant and of course his or her assessment of the
passport being a genuine and valid passport and on the basis
of information contained in the passenger card. Now for
example there was no apparent conflict in this case between
the visa and the passenger card because it was clearly
identifiable to the primary officer as a tourist visa and on
the passenger card as I recall from when I saw the card or a
copy of it the applicant did not state that he was visiting
any relatives and I think indicated that he was staying at a
hotel so all of the information was consistent and on the
basis of that without any evidence to suggest that it was
referred to an immigration inspector on the basis of that
the assumption is that the primary officer decided to grant
the entry permit.

24. This and other earlier evidence of the same witness left me with the clear impression that except in the most general way, the marital status of an applicant for a temporary entry permit was of little or no significance in whether the permit is granted.

25. However, notwithstanding Mr Sutherland's evidence, the respondent submitted that an entrant's marital status is crucial to the operation of the entire immigration system and migration authorities need to rely on it. In effect, he urged the Court to consider the question of what was a "material particular" from the standpoint of decision makers to whom the false statements were made (i.e. the customs officer in Sydney and the Embassy officer in Manila). Even doing so, the evidence here poses great difficulty in drawing the conclusions advocated by the respondent.

26. Percy Rojas v Minister for Immigration and Ethnic Affairs and John Davidson (Woodward J unreported 10 December 1986) concerned a person who applied to migrate to Australia and told the department's officers he was not married when in fact he was. He was accepted as a migrant and entered Australia with a migrant's visa. He was then granted a permanent entry permit. Woodward J said:

However there can be no doubt, in my view, that a statement
by an intending migrant that he has never been married, when
in fact he is married with one child and living with his
wife and child, is a statement which is false in a material
particular.

27. In Jovcevski Justice Lockhart was considering the question of materiality in relation to a false answer to the questions in the form of application for the grant of residency status:

"Have you ever served a prison sentence?" and "Have you been
convicted in any other country of any offence?" (p 7)

28. His Honour held that these questions "go to the very heart of migration matters" (p 9) and at p 11 wrote:

It is to my mind obvious that it is relevant for the
migration authorities here to know whether a person has in
fact served a term of imprisonment or whether he has in fact
been convicted in any other country. That must have a
bearing upon his suitability for acceptance here as a
resident, whether the country of his origin regards
convictions as spent or otherwise. There are no legislative
indicia to the contrary in the Migration Act or in any other
Act to which I have been referred ...

29. It appears that evidence of the kind given by Mr Sutherland was not led in either Rojas or Jovcevski and that their Honours were expressing their own opinions. In the light of the evidence led in this case, I feel bound to find that in Mr Dela Cruz's case, the question of marital status was not material to the decision to give him a temporary entry permit.

30. As is fairly obvious from the form itself, the evidence before me showed that much of the material on incoming passenger cards is not relevant to or used in making immigration and customs decisions. Some is used for statistics. Some may be relevant for other government purposes. Some may have no use at all. As the marital status question is asked of everyone who enters Australia, including Australian citizens returning after vacation or visitors staying overnight on the way to New Zealand, it cannot have a significant meaning solely in relation to migration issues.

31. Furthermore, formal marital status tells an immigration officer very little in terms of the an entrant's intentions in relation to departure from Australia. An applicant may be married but separated for or wishing to leave the spouse; the spouse may be in or coming to Australia; divorce proceedings may be under way and the applicant is coming to Australia to look for or secure a new spouse; and there are many other possibilities. The evidence given in this case by Mr Sutherland that the question on the passenger card and the application form for a tourist visa as to marital status gave an indication of the likelihood of an entrant's intention to return home was quite unconvincing in this regard. It might have been more persuasive if further questions of the kind I have posed or otherwise weer asked of applicants for entry but I was informed that this was rarely the case. There is certainly no evidence that it was done in this instance.

32. The evidence disclosed that the applicant's incorrect declarations of his marital status were not relevantly false in a material particular, either in relation to the granting of the visitor's visa or the temporary permit to enter Australia. Thus, even if my conclusion on the construction issue is wrong, the permanent entry permit granted on 29 October 1987 is unaffected by those falsehoods. The answer to question (b) posed by Justice Davies is no.

33. In accordance with the request of the parties, I will list the matter for further directions and the making of formal orders after these reasons for judgment have been published.