Re Mary Elizabeth Nolan v the Minister of Immigration and Ethnic Affairs of the Commonwealth of Australia [1992] FCA 259; (1992) 27 ALD 755 (Extract) (3 June 1992)

FEDERAL COURT OF AUSTRALIA

Re: MARY ELIZABETH NOLAN
And: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS OF THE
COMMONWEALTH OF AUSTRALIA
No. V G65 of 1992
FED No. 357
Administrative Law - Immigration
[1992] FCA 259; (1992) 27 ALD 755 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.(1)

CATCHWORDS

Administrative law - judicial review - whether reviewable decision - notice that holder of entry permit to be treated as illegal entrant - self operating provision.

Immigration - entry permit - whether holder became illegal entrant - alleged false or misleading statement to procure permit - whether notice that provision operated a reviewable decision.

Words and phrases - "decision" - "conduct".

Administrative Decisions (Judicial Review) Act 1977 s.5, sub-ss. (1)(h), (3), s.6.

Migration Act 1958 ss. 14(2), 16, 35(2), 60.

Customs Act 1901 s. 229.

Social Services Act 1947 s.140.

Income Tax Assessment Act 1936 s.260.

Whim Creek Consolidated NL v. Colgan [1991] FCA 467; (1991) 103 ALR 204.

Director-General of Social Services v. Hangan [1982] FCA 262; (1982) 45 ALR 23.

Director-General of Social Services v. Hales [1983] FCA 81; (1983) 47 ALR 281.

Minister for Immigration and Ethnic Affairs v. Naumovska (1983) 88 ALR 589.

Bailey v. Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214.

HEARING

MELBOURNE
3:6:1992

Counsel for the applicant: G. Herbert

Solicitors for the applicant: Barlow and Co.

Counsel for the respondent: R. Huttner

Solicitors for the respondent: Australian Government Solicitor

DECISION

The applicant in this case, Mary Elizabeth Nolan, was born in Ireland. She arrived in Australia in November 1987, at which time she was qualified to be a registered nurse. On 14th September 1988, she signed an application for resident status in Australia, relying on occupational grounds.

2. In the application form, there appeared the following:
"2.9 Marital Status (Write NEVER MARRIED, NOW

MARRIED, WIDOWED, DIVORCED, SEPARATED, ENGAGED
OR DE FACTO, as appropriate)".

These words were followed by a delineated space, in which it was intended that an applicant should fill out the appropriate phrase. The applicant wrote, "NEVER MARRIED". On the basis of her application, she was granted an entry permit entitling her to reside permanently in Australia.

3. On 1st August 1989, the applicant left Australia temporarily. She did so with a visa entitling her to return to Australia, subject to the grant of an entry permit on arrival. She did return on 16th September 1989, and received a further entry permit, permitting her to reside in Australia.

4. Gerard Anthony Fitzpatrick was also born in Ireland. He first came to Australia in 1986. On 10th February 1990, Mr Fitzpatrick completed an application for an extended eligibility temporary entry permit, relying on the ground that, since his arrival in Australia, he had become the de facto spouse of an Australian resident. His application named the applicant as his partner, and disclosed that he and the applicant had lived together from 20th June 1988 at an address in North Fitzroy and subsequently at two addresses in Brighton. The application contained the sentence, "we commenced our de facto relationship on 20 June 1988, at 87 Rushall Crescent, North Fitzroy, Melbourne".

5. Mr Fitzpatrick's application was supported by a declaration of the applicant, made on 10th February 1990. In this declaration, the applicant stated that she and Mr Fitzpatrick had lived together at the North Fitzroy address from 20th June 1988. In response to the question, "When and where did you commence living in this relationship", the applicant stated, "20 June 1988 - at 87 Pushall (sic.) Crescent, North Fitzroy".

6. Mr Fitzpatrick and the applicant each made a statutory declaration on 10th February 1990, in support of Mr Fitzpatrick's application. Each declaration contained a statement that the declarant "commenced a de facto marriage relationship" with the other declarant in June 1988 at the North Fitzroy address. Further, there were statutory declarations of two other persons that each had personally observed since 20th June 1988 that Mr Fitzpatrick and "the de facto spouse" (named as the applicant) shared social activities together, were not separated, and were known to the declarant as husband and wife.

7. On 19th February 1992, the applicant and Mr Fitzpatrick attended an interview with an officer of the Department of Immigration, Local Government and Ethnic Affairs, Mr Nick Liakopoulos. At the end of the interview, Mr Liakopoulos informed the applicant that she had misled the department concerning her marital status when she lodged her application for an entry permit, by describing herself as "never married", rather than "de facto", and that by virtue of s.20 of the Migration Act 1958 she was therefore an illegal entrant. She was subsequently given a letter, signed by Mr Liakopoulos and dated 19th February 1992, in the following terms:

"NOTICE OF STATUS UNDER SECTION 20 OF THE
MIGRATION ACT 1958
This is to confirm the verbal advice given to you today
about your status in Australia due to the operation of
Section 20 of the Migration Act 1958 ("the Act").
Section 20 of the Act applies to you for the following
reasons:
20(2)(b)(ii) after entry, an entry permit was granted
to you in the form of a permanent entry
permit, authorising you to remain in
Australia and in respect of the grant of
that entry permit, you made, or caused to
be made, to an officer or a person
exercising powers or performing functions
under the Migration Act, a statement that
was false or misleading in a material
particular, that being your marital
circumstances.
20(1)(c)(i) when, or before a visa was granted or issued to
you, you produced or caused to be produced, to
an officer or a person exercising powers or
performing functions under the Migration Act, in
respect of the grant of that visa, a `bogus'
document as defined in sub-section 20(15)(c), in
the form of your permanent entry permit which
was obtained by the making of a false or
misleading representation.
20(1)(b)(i)(A) when, or before you entered Australia, you
produced, or caused to be produced, to an
officer or a person exercising powers or
performing functions under the Migration
Act, in respect of that entry, a `bogus'
document as defined in sub-section
20(15)(c), in the form of your resident
return visa which was obtained by the
making of a false or misleading
representation.
Under Subsections 14(2) and 35(2) of the Act you are an
illegal entrant from the 16 September 1989 (which was the
date of your last entry to Australia) as your entry permit
was cancelled by operation of sub-section 35(2) of the Act.
So that the question of your stay in Australia can be
considered, you will be interviewed by a departmental
officer, in order to discuss your circumstances and your
intentions.
Following the interview, and if your (sic.) are legally
entitled to do so, you will be given and (sic.) opportunity
to make an application for an entry permit to enable the
consideration of regularisation of your status in Australia.
If your (sic.) are legally entitled to apply for an entry
permit you will be invited to complete a notice to the
Secretary of the Department in which you will be required to
specify the reasons as to why you have cone (sic.) within
the scope of Section 20 of the Act. You should note that if
you do not submit this notice, you will be precluded from
the grant of a properly endorsed entry permit if eligible.
If a permissible entry permit application is validly made,a
decision will be made on whether;
(1) to issue you with an endorsed entry permit which sill
(sic.) allow you to legally remain in Australia
either temporarily or permanently; or
(2) if your entry permit application is unsuccessful, or
if your (sic.) do not validly make a permissible
application, a decision will be made on whether to
allow you to depart Australia voluntarily of (sic.) to
deport you.
You should be aware that your status as an illegal entrant
means that you are liable to be prosecuted under the
Migration Act. The question of your prosecution will be
considered by an authorised officer.
In addition, your status as an illegal entrant means that
you are not entitled to work in Australia without the
written permission of an authorised officer. It is an
offence under Section 83 of the Migration Act for an illegal
entrant to work without permission and the penalty imposed
may be a fine up to $5000."

The relevant portions of s.20 of the Migration Act 1958 are as follows:

"20(1) This subsection applies to a person, being a
non-citizen, who has entered Australia, whether before
or after commencement of this section, if:
...
(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) a bogus document;
...
(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) produced, or caused to be produced, to an
officer or person exercising powers or
performing functions under this Act, in respect
of the grant of that visa, a bogus document;
...
(3) A person:
(a) to whom subsection (1) would apply if the person
entered Australia; or
(b) to whom subsection (1) or (2) applies;
may give to the Secretary a notice in the prescribed form
stating that the person is, for reasons specified in the
notice, a person to whom the subsection concerned would
apply, or applies as the case requires.
(4) Where:
(a) a person has given the Secretary a section 20
notice; and
(b) a visa is granted to the person;
the person granting the visa must endorse the visa with a
statement that he or she recognises the holder of the visa
to be a person to whom subsection 20(1) applies or would
apply for the reasons set out in the section 20 notice.
(5) Where:
(a) a person gives the Secretary a section 20
notice; and
(b) an entry permit is granted to the person;
the person granting the entry permit shall endorse the entry
permit with a statement that he or she recognises
the holder of the entry permit to be a person to whom subsection
20(1) or (2), as the case requires, applies for the reasons
set out in the section 20 notice.
...
(10) A reference in this section to a person producing, or
causing to be produced, a bogus document is a reference to a
person producing, or causing to be produced, a bogus
document whether or not the person knew that the document
was a bogus document.
...
(12) A reference in this section to a person making, or
causing to be made, a statement that was false or misleading
in a material particular is a reference to a person making,
or causing to be made, such a statement, whether or not the
person knew that the statement was false or misleading in a
material particular.
...
(15) In this section:
"bogus document", in relation to a person, means an entry
permit, certificate, passport, visa, identification card or`
any other document that:
...
(c) was obtained by the making of a false or misleading
representation;
...".

8. On 2nd March 1992, the applicant filed in this Court an application for an order of review, in reliance on s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). In her application, she specified that she was seeking to review the decision that, "the Applicant be deemed to be an illegal entrant from 16 September 1989 pursuant to s.20 of the Migration Act 1958". The date of the decision was specified as 19th February 1992. The ground under s.5(1) of the ADJR Act which the applicant then invoked was that specified in para (h), namely "that there was no evidence or other material to justify the making of the decision". Reference was made to s.5(3), and the proposition advanced that there was no evidence or other material on which the decision maker could reasonably be satisfied that the applicant had made a false statement concerning her marital status. In her affidavit, accompanying the application, the applicant sought to explain her relationship with Mr Fitzpatrick at the time of her application for an entry permit. Although they were living together from June 1988, she claimed that they had none of the "legal documents" which the department requires to prove the existence of a de facto relationship. She maintained that her choice of the description "never married" was more apt than "de facto". She also said that, at the time of her application, she and Mr Fitzpatrick had not agreed to a permanent commitment.

9. Also on 2nd March 1992, the applicant filed a notice of motion, seeking a stay of consideration and determination of the making of any deportation order against the applicant, and an order that no further action be taken in respect of the notice served on the applicant in relation to s.20 of the Migration Act 1958, until the determination of the proceeding. On 20th March 1992, the applicant filed an amended application, in which she also sought to review what was described as an "(Anticipated) Decision" that the applicant be considered for deportation.

10. On 16th March 1992, the respondent filed a notice of objection to competency. This was subsequently amended, to take account of the applicant's amended application. In substance, the notice contained an objection to the jurisdiction of the Court to try the amended application, on the grounds that the applicant's status of illegal entrant arose by operation of s.20 of the Migration Act 1958 and not as a result of any decision of the respondent, and that an "(Anticipated) Decision" was not a "decision" within the meaning of the ADJR Act.

11. The applicant's notice of motion and the respondent's objection to competency both came on for hearing before me on 25th March 1992. Counsel for the applicant applied for an adjournment on the ground that the applicant's solicitor wished to argue the questions involved himself, and had been unable to obtain a seat on an aeroplane from Sydney to Melbourne in time for the interlocutory hearing. When I indicated that I would be prepared to adjourn the matter, on the basis that the applicant's solicitor should attend on the adjourned date, prepared to respond to the proposition that he should pay the costs of the adjournment personally, counsel for the applicant obtained further instructions and indicated his desire to proceed with the interlocutory hearing. After hearing argument, I pronounced orders: (1) dismissing the respondent's objection to competency; (2) giving the applicant leave to file and serve a further amended application and further affidavits; (3) adjourning the matter for further directions; (4) until the hearing and determination of the proceeding or further order, restraining the respondent, his servants, agents and delegates from taking any action, including signing any deportation order, in respect of the applicant, in reliance on any alleged false or misleading representation made by her in her application for resident status in Australia dated 4th September 1988; and (5) reserving costs. I then reserved my reasons for judgment, which reasons I now give.

12. At the heart of the argument put on behalf of the respondent were the provisions of s.14(2) of the Migration Act 1958, which are as follows:

"(2) Where a person to whom sub-section 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."

13. It was contended that s.14(2) had the effect of automatically making the applicant an illegal entrant, because of the application of s.20(1) to her, in the manner set out in the letter dated 19th February 1992. The status of illegal entrant was said to have been acquired automatically, without any action on the part of anyone in the respondent's department, or the respondent. All that was accomplished by the letter of 19th February, and by the oral advice of Mr Liakopoulos on the same day, was to inform the applicant of her situation.

14. Counsel for the respondent sought to call in aid by analogy the law relating to forfeiture under s.229 of the Customs Act 1901. It has been established by a number of authorities that forfeiture follows directly from the existence of facts falling within s.229 and does not involve a decision. The authorities are collected conveniently in the judgment of O'Loughlin J. (which was the judgment of the Full Court) in Whim Creek Consolidated N.L. v. Colgan [1991] FCA 467; (1991) 103 ALR 204, at pp 210-211. The analogy is not particularly helpful in the present case. The automatic operation of a provision under which goods are forfeited to the Crown is of little practical importance unless and until some official does something in reliance on it. It was made clear in Whim Creek that action taken to seize forfeited goods involved a "decision" for the purposes of the ADJR Act.

15. There are numerous authorities in which it has been held that a "decision" is involved when an official makes it known to a person that the official regards a self-operating provision of a statute as applicable to that person. Two Full Courts so held in relation to s.140 of the Social Services Act 1947, under which a debt is created if certain circumstances exist. See Director-General of Social Services v. Hangan [1982] FCA 262; (1982) 45 ALR 23, at pp 25-26 per Fox J., 31 per Toohey J. and 43-44 per Fitzgerald J. and Director-General of Social Services v. Hales [1983] FCA 81; (1983) 47 ALR 281 at pp 307-308 per Lockhart J. and p 318 per Sheppard J. More importantly, in Minister for Immigration and Ethnic Affairs v. Naumovska (1983) 88 ALR 589, the Full Court held that the provisions of s.16(1)(b) of the Migration Act 1958, as they then stood, under which an immigrant who produced a passenger card containing information that was false or misleading in a material particular was deemed to be a prohibited immigrant, could be the subject of a proceeding under the ADJR Act in a particular case. At p 590, Fox J. pointed out that the case had been argued primarily in reliance on s.6 of the ADJR Act, on the basis that conduct had been engaged in for the purpose of making a decision to deport the immigrant concerned. His Honour expressed the view that a letter, in which it was stated that it had been decided that the immigrant was a prohibited immigrant, made it possible that the case was more appropriately supported by s.5 of the ADJR Act. At pp 595-596, Franki J. assumed, without deciding, that a decision was reached that the immigrant was a prohibited immigrant and therefore liable to deportation. At p 605, Lockhart J. seems to have treated the matter as involving "conduct" for the purposes of s.6 of the ADJR Act. The provisions of s.16 of the Migration Act 1958 considered in that case are indistinguishable from the current provisions of s.20, for relevant purposes. Reference should also be made to the judgment of Barwick C.J. in Bailey v. Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214, at p 217, in relation to the self-operating provisions found in s.260 of the Income Tax Assessment Act 1936.

16. In my view, the letter of 19th February 1992 amounted to, or was evidence of, a "decision", for the purposes of s.5 of the ADJR Act. It evidenced that an officer of the Department of Immigration, Local Government and Ethnic Affairs had determined that s.20 of the Migration Act 1958 applied to the applicant. This in turn involved a determination that the applicant had made a false or misleading representation of a kind to which s.20 related, and had thereafter made use of documents obtained by the making of that false or misleading representation. The determination had serious practical consequences for the applicant. In the first place, she was treated as having become an illegal entrant, by the operation of s.14(2) of the Migration Act 1958. She was called upon to give to the secretary of the department a notice pursuant to s.20(3), on pain of being "precluded from the grant of a properly endorsed entry permit if eligible". The form which she was invited to submit for this purpose required that the applicant admit that she was a non-citizen who had entered Australia, to whom s.20(1) applied and to admit the reason for the application of that sub-section. In effect, this would have required the applicant to admit that she had made a false or misleading representation, and had used bogus documents. These are the very things which she denies having done. Further, if the applicant did not submit the notice, or if for any reason she were not granted an endorsed entry permit under s.20(5), she would be liable to deportation under s.60 of the Migration Act 1958. These consequences would not have been visited upon the applicant without a determination by an officer of the department that she should be treated as a person to whom s.20 applied. For these reasons, I took the view that the Court had jurisdiction under s.5 of the ADJR Act to hear the applicant's challenge to the validity of the action of the departmental officer in giving the applicant the letter dated 19th February.

17. Even if my conclusion that there was a decision were incorrect, I took the view that there had nevertheless been "conduct for the purpose of making a decision", within the meaning of s.6 of the ADJR Act. It was open to the applicant to challenge the validity of such conduct. Although she had not invoked s.6 of the ADJR Act in her application, this was a matter which could have been cured by amendment, and did not go to the jurisdiction of the Court to deal with the proceeding.

18. For those reasons, I dismissed the respondent's objection to the competency of the proceeding.

19. During the course of argument, there were tendered in evidence Mr Fitzpatrick's application and the declarations of the applicant and the other persons in support of it. These documents made it clear that the applicant would have no hope of succeeding at the trial of her application for an order of review on the ground which she had specified. That ground was the one referred to in s.5(1)(h) of the ADJR Act, namely that there was no evidence or other material to justify the making of the decision. It was plain that the officer of the Department of Immigration, Local Government and Ethnic Affairs, who determined that the applicant should be treated as a person to whom s.20 of the Migration Act 1958 applied, had before him a considerable amount of evidence suggesting that the applicant had made a false or misleading representation in her own application for an entry permit. Nevertheless, counsel for the respondent conceded that, if he should fail in his objection to the competency of the Court, a serious question existed as to whether the applicant would succeed at the trial. This concession disposed of any need for me to consider whether the applicant might have available to her grounds other than that which her legal advisers had chosen to rely upon. The inapplicability of the ground which had been chosen made it obvious that further amendment of the application was necessary.

20. It was also obvious that the balance of convenience favoured the applicant. Her position could only worsen if she were required to give a notice under s.20(3) of the Migration Act 1958, or if any step were taken towards deporting her, on the footing that she was an illegal entrant. No detriment would appear to be suffered by the respondent from delaying these steps pending the hearing and determination of the application for an order of review.

21. It was for those reasons that I made the orders which I made on 25th March 1992.