Re Honourable Gerald Leslie Hand Mp, Minister of Immigration, Local Government and Ethnic Affairs v Steve Karas In His Capacity As A Senior Member of the Immigration Review Tribunal; Catharina Francina Jacoba Ferreira and Hendrik Johannes [1993] FCA 139 (31 March 1993)

FEDERAL COURT OF AUSTRALIA

Re: THE HONOURABLE GERALD LESLIE HAND MP, MINISTER OF STATE FOR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: STEVE KARAS IN HIS CAPACITY AS A SENIOR MEMBER OF THE IMMIGRATION REVIEW
TRIBUNAL; CATHARINA FRANCINA JACOBA FERREIRA and HENDRIK JOHANNES KOORTS
Nos. ACTG19 and 20 of 1991
FED No. 216
Number of pages - 20
Administrative Law
(1993) 42 FCR 349
(1993) 30 ALD 815 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)

CATCHWORDS

Administrative Law - judicial review - decision of Immigration Review Tribunal - avenues of appeal from Tribunal's decision - prohibited non-citizens - whether ticking 'now married' box on passenger card a false or misleading statement in a material particular - husband living in a de facto relationship with former wife - no provision for 'de facto' on passenger card - 'decision' of Tribunal - whether statement false or misleading a question of fact unless no evidence to support the finding - no legal error found - new grounds of appeal raised at hearing - statements made by husband prior to immigration - whether visa obtained by 'false representation' or statements made 'in respect of the grant of that visa'.

Administrative Decisions (Judicial Review) Act 1976, s. 5

Migration Act 1958 ss. 20, 138

Migration Act 1958-1988 s. 16

Migration Legislation Amendment Act 1989 s. 6

Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321

Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147

Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321 CLR 589

R. v. Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54

Department of Industrial Relations v. Forrest (1990) 91 ALR 417

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

Hardcastle v. Commissioner of Police [1984] FCA 105; (1984) 53 ALR 593 McVeigh v. Willarra Pty Ltd (1984) 6 FCR 587

R. v. Thames Magistrates' Court; Ex parte Polemis (1974) 1 WLR 1371

Henderson v. Henderson (1843) 3 Hare 115 (67 ER 319)

Minister for Immigration, Local Government and Ethnic Affairs v. Ricardo Dela Cruz (unreported judgment of the Full Court of the Federal Court of 28 February 1992)

Eva Michalowski v. Mr Gerry L. Hand Minister of State for Immigration, Local Government and Ethnic Affairs (unreported judgment of Keely J of 24 April 1992)

Alice Benlot v. The Minister for Immigration, Local Government and Ethnic Affairs (unreported judgment of Davies J of 13 March 1992)

Ren v. Immigration Review Tribunal (unreported judgment of Neaves J of 18 December 1991).

HEARING

BRISBANE, 5 March 1993
31:3:1993

Counsel for the applicant: Mr R. Tracey QC with Mr C. Erskine

Instructed by: Australian Government Solicitor

Solicitors for the first
respondent: Phillips Fox

Counsel for the second and

third respondents: Miss J. Dalton

Instructed by: Janssen and Janssen

ORDER

THE COURT DECLARES THAT:
Hendrik Johannes Koorts, Cornelia Johanna Koorts and their three children were not prohibited non-citizens on or before 18 December 1989.

THE COURT ORDERS THAT:
The appeal and the application for an order of review are dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

SPENDER J This is an appeal pursuant to s. 138 of the Migration Act 1958 and also an application for an order of review made under the Administrative Decisions (Judicial Review) Act 1976 ('the ADJR Act') in respect of a decision of the Immigration Review Tribunal ('the Tribunal') constituted by Mr Steve Karas, Presiding Member, made on 15 March 1991.

2. On 19 February 1991 Catharina Francina Jacoba Ferreira of Toowoomba, Queensland lodged an application to the Immigration Review Tribunal for a review of a decision made by an authorised officer of the Department of Immigration, Local Government and Ethnic Affairs ('the Department') in Brisbane on 11 February 1991 refusing her brother, Hendrik Johannes Koorts of Redbank, Queensland, a December 1989 (temporary) entry permit. The matter was not considered by the Migration Internal Review Office and came directly to the Immigration Review Tribunal.

3. Regulation 9 of the Migration (Review) Regulations is headed "Jurisdiction of the Tribunal" and relevantly provides:

" 9. (1) Subject to subregulation (2), the Tribunal is to
review an IRT (Immigration Review Tribunal) reviewable
decision if an application for review of the decision is
made in accordance with these Regulations.
(2) In the case of a decision to refuse to grant a
December 1989 (temporary) entry permit or a December 1989
(permanent) entry permit, subregulation (1) applies only if
the applicant for the permit:
(a) was a prohibited non-citizen on or before 18
December 1989; and
(b) had not been arrested under section 92 or 93 of
the Act:
(i) on or after 10 December 1990; and
(ii) before lodgment of the application for the
permit.
(3) The Tribunal is to review a decision in respect of
which a prescribed application is referred to it under
regulation 29. "

4. The notice of appeal in Proceedings No. ACT G19 of 1991 is said to be an appeal from the decision of the Immigration Review Tribunal constituted by Steve Karas, Senior Member, given on 15 March 1991 at Brisbane whereby the Tribunal:

" (a) found that Hendrik Johannes Koorts and his family were
not prohibited non-citizens on or before 18 December
1989; and
(b) affirmed the decision under review. "

5. The question of law said to be raised on the appeal is "whether the Tribunal was correct in law in finding that Hendrik Johannes Koorts was not a prohibited non-citizen: on or before 18 December 1989". The notice of appeal sought a declaration that Mr Koorts was a prohibited non-citizen on or before 18 December 1989, an order quashing the decision, and an order remitting the decision to the Immigration Review Tribunal to be decided according to law.

6. The grounds on which the appeal is said to be made are:

" (a) the Respondent erred in law in finding that Hendrik
Johannes Koorts and his family were not prohibited
non-citizens on or before 18 December 1989;
(b) the Respondent failed to take into account relevant
considerations, namely -
(i) that Hendrik Johannes Koorts had made a false or
misleading statement in a material particular to the
Counsellor, Consular Affairs, at the Australian Embassy in
Pretoria, South Africa, in June 1988, in respect of the
grant of a visa, that he was still married to Cornelia
Johanna Koorts when he was in fact married at that time to
Althea Gertrude Koorts, and
(ii) that Hendrik Johannes Koorts had made a false or
misleading statement in a material particular to an officer
exercising powers under the Migration Act 1958 at Sydney
Airport on 26 February 1989, that he was still married to
Cornelia Johanna Koorts when he was in fact divorced from
her at that time;
(c) there was no evidence or other material to justify the
making of the decision
(d) the decision was so unreasonable that no reasonable
person could have come to it. "

7. The original parties to appeal No. G19 of 1991 were the Minister of State for Immigration, Local Government and Ethnic Affairs ('the Minister') as applicant and Catharina Francina Jacoba Ferreira as respondent. Mrs Ferreira is the sister of Mr Koorts and had sponsored his application to migrate to Australia with his family. At an earlier directions hearing, I granted leave to Mr Koorts to be joined as a further respondent to that appeal.

8. A matter of continuing concern nonetheless is the position of Cornelia Johanna Koorts, (to whom I will refer as Mrs Koorts) and the position of Mr and Mrs Koorts' three children (all born in South Africa), namely, Magdalena Koorts born 30 November 1976, Hannelie Koorts born 7 October 1979 and Carine Koorts born 16 July 1986. The position of Cornelia Koorts and each of the three children is a matter which requires careful consideration in the context of the issues raised in these two applications.

9. In Proceedings No ACT G20 of 1991 the Minister, as applicant, seeks an order of review in respect of the decision of Mr Karas made on 15 March 1991 (a) finding that the third respondent, Hendrik Johannes Koorts, and his family were not prohibited non-citizens on or before 18 December 1989 and (b) affirming the decision under review. The grounds of the application for an order of review are exactly the same as the grounds advanced in Proceedings No G19 of 1991, and the Minister seeks the same orders as in the previous application.

10. The factual circumstances of this case are unusual to say the least. The matter is further complicated because the case sought to be made out before this Court is not the case as determined by departmental officers nor the case sought to be made out before the Immigration Review Tribunal. The significance of this circumstance will have to be considered later.

11. Mr Koorts is a secondary school teacher by occupation and was born in South Africa on 11 November 1949. He has a Bachelor of Commerce degree from the University of Port Elizabeth. He and Cornelia Johanna Koorts were married on 7 July 1973 and had been so married for a period of thirteen years prior to an application to migrate to Australia. In the course of that marriage they had three children born in South Africa, namely Magdalena, Hannelie and Carine earlier referred to.

12. In 1986, Mr and Mrs Koorts made an application to emigrate to Australia. Prior to receiving a reply to that application, Mr Koorts and Cornelia Koorts were divorced on 29 February 1988 and Mr Koorts, on 5 March 1988, married Althea Gertrude DeWitt. Mr Koorts says the reason for his divorce was due in part to the fact that he had developed a relationship with Ms DeWitt, as a result of which she was expecting his child. Mr Koorts did not want the child to be born illegitimate so he married Ms DeWitt on 5 March 1988. The son of that relationship, Johann Heinrich Koorts, was born on 15 July 1988.

13. Mr Koorts and his second wife, Althea Gertrude DeWitt, divorced on 29 September 1988 and Mr Koorts returned to his first wife, Cornelia, and resumed a marital relationship with her, but he did not re-marry her.

14. On about 17 October 1988, after Mr Koorts had resumed his marital relationship with his first wife, the Australian Embassy advised them by letter that their application for immigration had been approved, provided that Cornelia Koorts and Mr Koorts were to arrive in Australia by 26 February 1989. Cornelia Koorts and Mr Koorts arrived in Australia on 25 February 1989 with their three children and continued to live together.

15. The family returned to South Africa on 17 March 1989 and came back to Australia on 15 October 1989. The recommendation which lead to the decision refusing a December 1989 (temporary) entry permit records that Mr Koorts arrived at Brisbane Airport on 15 October 1989, and his visa had been issued at Pretoria on 6 December 1988. The recommendation further states "Entry permit: Granted permanent residence on arrival." A file note of 12 December 1990 states "At the time of their arrival (referring to 15 October 1989) they were holders of migrant visas for multiple travel before 26 February 1992."

16. On the occasion of their arrival on 15 October 1989, on their incoming passenger cards both Mr and Mrs Koorts stated that they were "now married". There was no provision on the cards for "de facto" status.

17. The Migration Act 1958 was substantially amended in 1989, the amendments taking effect from 19 December 1989. As the Koorts family entered Australia on 26 February 1989 and re-entered on 15 October 1989, the relevant section of the Act for the purposes of determining their status is s. 16 before the amendments in 1989. Section 16(1) then relevantly provided:

" (1) Where,...a person who enters or entered Australia is not, or
was not, at the time of that entry, an Australian citizen and who
-
...
(b) at the time of, or prior to, that person's entry into
Australia, the person -
(i) produces or produced, or causes or caused to be
produced, to the Minister or to an officer, in
respect of that entry -
(A) a permit, certificate, passport,
visa...identification card or any other document
that was not issued to the person, is forged or
was obtained by false representation; or
(B) a passenger card that contains information that
is false or misleading in a material particular;
or
(ii) makes or made, or causes or caused to be made, to the
Minister or to an officer, in respect of that entry,
a statement that is false or misleading in a material
particular;
(ba) at the time of, or prior to, the grant of a visa...in
respect of the person, the person -
(i) produces or produced, or causes or caused to be
produced, to the Minister or to an officer, in
respect of the grant of that visa...a document of the
kind referred to in sub-sub-paragraph (b)(i)(A); or
(ii) makes or made, or causes or caused to be made, to the
Minister or to an officer, in respect of the grant of
that visa...a statement that is false or misleading
in a material particular,...
that person shall...be deemed to be a prohibited non-citizen
unless he is the holder of an entry permit endorsed with a
statement that the person granting that permit recognizes him to
be a person referred to in this sub-section. "

18. The claim by the Department was that Mr and Mrs Koorts both made false or misleading statements on their passenger cards in that they stated they were married when in fact they were divorced. It was said that that false or misleading statement was false or misleading in a material particular and that "both Mr and Mrs Koorts became prohibited non-citizens on entry to Australia under sub-sub-paragraph 16(1)(b)(i)(B) of the pre 19/12/89 provisions of the MA". It was said that they are now illegal entrants under the current provisions of the Migration Act by virtue of s. 6(2) of the Migration Legislation Amendment Act 1989 and are also illegal entrants under s. 20(1)(b)(i)(B) of the current provisions of the Migration Act.

19. The position of the Department is made plain by, amongst other things, a minute of 29 November 1990 by an officer of the Department in the Legislation and Review Branch. An earlier minute of 3 September 1990 records:

" Neither Hendrik nor Cornelia notified the A.E. Pretoria
(referring to the 'Australian Embassy') of the changes in
their marital circumstances because it was their intention
to stay together after resuming cohabitation. They did not
feel the necessity of formalising their relationship through
remarriage. They claim to have lived as a family unit since
arrival. (Evidence of cohabitation provided); "

The same minute notes:

" The family departed Australia less than a month later on
17/3/89 and returned almost 7 months later on 15/10/89.
Accompanying them was Althea and child Johann both on visitor
visas; "

20. Both Mr and Mrs Koorts swore a statutory declaration on 16 August 1990 to the effect that on the resumption of cohabitation between them subsequent to 29 September 1988 when Mr Koorts divorced his second wife, Althea, they had continued in a genuine relationship as husband and wife notwithstanding that their relationship was not formalised by remarriage.

21. The Queensland Department file Q90/2273 evidences that Mr and Mrs Koorts lived with their children as a family in rented premises at Redbank. The telephone was connected at that address in the name of Mr J and Mrs J Koorts. There is evidence of a six month agreement for tenancy of residential premises executed in the R.E.I.Q. form and that Mr Koorts was employed as a full-time secondary school teacher at the Goodna Christian School.

22. When the family re-entered Australia on 15 October 1989, Althea Gertrude DeWitt and the child Johann Heinrich Koorts came on the same QANTAS flight. Both Ms DeWitt and the child entered Australia on visitors' visas and Ms DeWitt applied for an extension of her and her son's temporary entry permits on 11 April 1990 under the name Althea Gertrude Koorts, and an extension was granted allowing them both to stay until 15 October 1990. Ms DeWitt and the child Johann then returned to South Africa.

23. Some time in 1990 Mr Koorts appears to have approached the Department about the possibility of marrying Ms DeWitt. It was this inquiry which led to the Department's ascertaining that he and Cornelia were not in fact legally married but cohabiting in a de facto relationship at the time of their last entry into Australia in October 1989. As the Immigration Review Tribunal wryly noted:

" Given the sequence of events since Mr Koorts approached the
Department in April 1990, he must now be regretting his
initial inquiry. "

24. Section 138 of the Migration Act provides:

" (1) An appeal lies to the Federal Court, on a question of
law, from any decision of the Tribunal made on a review
under this Part.
(2) An appeal may be instituted by:
(a) the applicant for review by the Tribunal; or
(b) the Minister.
(3) An appeal shall be instituted within 28 days after the
appellant is notified under section 135 of the decision
concerned.
(4) The Federal Court shall hear and determine the appeal
and may make such order as it thinks appropriate because of
its decision.
(5) Without limiting the generality of subsection (4), the
orders that may be made by the Federal Court on an appeal
include:
(a) an order affirming or setting aside the decision of
the Tribunal; and
(b) an order remitting the matter to be reviewed and
decided again, either with or without the taking of
further evidence, by the Tribunal in accordance with
the directions of the Court. "

25. In my opinion, there is much to be said for the view that the avenue of appeal or review from a decision made by the Immigration Review Tribunal is to be found in s. 138 of the Migration Act and nowhere else. Counsel for the Minister drew my attention to the Department of Industrial Relations v. Forrest (1990) 91 ALR 417 which was an application for an order of review under the ADJR Act of a decision by the Administrative Appeals Tribunal under provisions of the Freedom of Information Act 1982 excluding an applicant for access to a document held by the Department of Industrial Relations but not his legal representatives from a hearing relating to an inclusive certificate under the Freedom of Information Act. The proceedings in the Federal Court were not brought pursuant to s. 44 of the Administrative Appeals Tribunal Act.

26. Also in Hardcastle v. Commissioner of Police [1984] FCA 105; (1984) 53 ALR 593, the appellant had been found guilty of five breaches of the Australian Federal Police (Discipline) Regulations by the Australian Federal Police Tribunal. The appellant appealed to the Full Federal Court as provided by the Complaints (Australian Federal Police) Police Act 1981 and also applied to the Federal Court under the ADJR Act for an order of review of the Tribunal's decision and appealed from the decision of the primary judge refusing relief.

27. Finally, in Ren v. Immigration Review Tribunal judgment No. 828 of 1991 of Neaves J delivered on 18 December 1981, the applicant was out of time for making application under s. 138 of the Migration Act and made application for an extension. Neaves J found that there was no power to grant an extension to appeal under s. 138 of the Migration Act but granted an extension of time in which to entertain an application for order review pursuant to the ADJR Act.

28. It is unnecessary to determine the question whether the sole avenue of appeal is s. 138 of the Migration Act because in this case the questions, the grounds and the relief sought are the same.

29. I turn now to the case as it was before the Immigration Review Tribunal.

30. Subsequent to the approach of Mr Koorts to the Department on 19 April 1990 and his inquiry about marrying Ms DeWitt, Mr and Mrs Koorts were interviewed in detail on 11 December 1990.

31. In both reports of interview with Mr Koorts and Mrs Koorts, in response to the question "What is your marital status now?" they have deleted the options "Never married", "Now married", "engaged", "separated", "widowed" and have circled the two options "de facto relationship" and "divorced". Each of them was asked the question:

" Do you believe you are in Australia with or without the
authority of the Australian Government and why? "

and in each case the reply was:

" Up until today I thought I was here legally as a permanent
resident. I have since been informed that I am an illegal
entrant and the reasons why I have attained this status. "

32. I have earlier referred to statutory declarations of Mr Koorts and Mrs Koorts on 16 August 1990 concerning the assertion on which the Department relied to conclude that they were illegal entrants. Mr Koorts had said in that statutory declaration:

" As my children and my first wife continued to be known under
the surname, Koorts, we did not feel it necessary to
formalize our relationship by marriage. As far as we were
concerned our relationship had been resumed and we were
living as husband and wife and were prepared to come to
Australia to commence a new life together in a new country.
It is for that reason that we did not notify the Australian
Immigration Authorities of our relationship as we felt that
we were married and were travelling as husband and wife and
would continue to live as husband and wife. "

33. There is a file note of 21 August 1990, where, having referred to the matrimonial history, the following appears:

" I question whether children are section 20. However they
could possibly be as dependants included on same visa as
parents. "

34. On 3 September 1990, an internal minute to the Advisings Section, Legal Branch seeking advice concerning the immigration status of Mr and Mrs Koorts and their three children was forwarded to the Department in Canberra. The officer for Entry Control and Compliance said in the second page of that minute:

" After the resumption of the first marriage he recieved (sic)
advice of the approval of his family's migration application
in a letter dated 17/10/88. The family arrived on 26/2/89
on their migrant visas and were granted permanent entry
permits. The Movements data base indicates that both
Hendrik and Cornelia described their marital status as
married on arrival. (It does not appear that there is
provision for 'de facto' status on the Incoming Passenger
Card);

Then follows the paragraph earlier referred to.

35. The report from the Legislation and Review Branch, Canberra, to the Officer-in-Charge of Entry Control and Compliance, Brisbane is dated 29 November 1990. The report seems to be directed to the arrival on 26 February 1989, rather than the later arrival on 15 October 1989, reflecting the above information contained in the request for advice. That report baldly states, inter alia:

" Mr and Mrs Koorts both made false or misleading statements
on their passenger cards. They stated that they were
married when in fact they were divorced. As there was no
provision for de facto status on the passenger cards their
correct status was 'divorced'. "

36. After discussing the question of materiality of a particular, the advice continued:

" If it is decided that marital status was material then the
(sic) it follows that the Koorts made a false or misleading
statment (sic) and that both Mr and Mrs Koorts became
prohibited non-citizens on entry to Australia under
sub-subparagraph 16(1)(b)(i)(B) of the pre 19/12/89 provisions
of the MA. They are now illegal entrants under the current
provisions of the MA by virtue of subsection 6(2) of the
Migration Legislation Amendment Act 1989 (MLAA).

37. The same letter addressed the status of the Koorts children. The view was expressed:

" It would seem that the children are probably not illegal
entrants. "

Section 38(2) of the Migration Act was referred to, which provides that where a child is included in the passport or other document of identity of a parent and the child enters Australia in the company of the parent, the child should be taken to be included in the entry permit granted to the parent unless the contrary is stated in the entry permit. It was said that "(i)f the Koorts children were not given individual entry permits but are taken to have been included in their parents' entry permit(s) and their parents became illegal entrants on entry into Australia then the children will be illegal entrants as their parents' entry permit(s) would be taken to have been cancelled on either entry to Australia or grant of that entry permit (see subsection 35(2))".

38. The minute expressed the caveat that the advice was premised on the information given. It stated:

" No information regarding the migrant visa was provided; it
is possible that Mr Koorts gave an undertaking to advise of
any change of circumstances that took place between his
migrant application and the grant of the migrant visa. If
that was the case then he may have made a false or
misleading statement in relation to the grant of that visa."

39. The file Q90/2273 contains poor quality photocopies of five incoming passenger cards, bearing visa numbers V605 06850C, V605 06851G, V605 06851G2, V605 06851G3, and V605 06851G4 respectively. Each bears the date 15 October 1989. The last three referred to relate to Magdalena, Hannelie and Carine Koorts respectively, and so far as can be determined do not contain any false or misleading statement; at least the "never married" box appears to be ticked, and with what appears as a left handed tick. The card for Mr Koorts and the card for Mrs Koorts each have the "now married" box ticked with a left handed tick, and both cards appear to be signed by the person named in it.

40. Not only does there appear to have been confusion at the relevant date of entry by the Department, but the existence and significance of these incoming passenger cards for the children does not appear to have been considered in any of the material, or before the Tribunal. It was not referred to, or made the subject of submissions by counsel for the applicant in this Court.

41. After the interviews of 11 December 1990, which included the questions outlined above where they had been told that they were illegal entrants, on 18 December Mr Koorts completed an application to remain permanently in Australia. The application form comprehends an application for an extended eligibility temporary entry permit on the basis of compassionate grounds as well as an application for permanent entry permit on the same grounds. The form commences with the statement:

" You should complete this form ONLY if you were illegally in
Australia on or before 18 December 1989. "

On the same day Mr Koorts signed a 'SECTION 20 NOTICE'. This printed form contains a paragraph:

" Subsection 20(1) of the Migration Act 1958 applies to me for
the following reasons:
...
(2) When or before I entered Australia, in respect of that
entry:
(a) I produced to an officer or a person exercising
powers or performing functions under that Act a
passenger card containing false or misleading
information. " (This paragraph is ticked.)

42. Notwithstanding that form, attached to it is a statement of circumstances which commences:

" I strenuously deny that I have given false or misleading
information on the Incoming Passenger Card when I arrived in
Australia on 15 October 1989 as is claimed by officers of
the Department of Immigration, Local Government and Ethnic
Affairs. "

That statement also importantly says:

" In connection with my case some reference has also been made
to the fact that I did not notify the Australian Embassy in
Pretoria of my changed marriage circumstances. "

In respect of this matter Mr Koorts stated:

" The 'Application for Entry Settlement', Form M47, that I
lodged in July 1986 at Cape Town contained a Declaration
that was signed by myself and wife, Cornelia Johanna Koorts.
That declaration did not require me or my wife to notify the
Australian Immigration authorities of any changes in my
circumstances. The information contained in that
application is correct. Therefore I claim I was not in
breach of Section 20(1) of the Migration Act 1958. "

The declaration to which Mr Koorts refers is in these terms:

" I/we declare that the particulars given in the foregoing
application for authority to enter and remain in Australia
for settlement subject to the Migration Act 1958 are true
and correct in every detail. I/we understand that incorrect
statements may result in refusal of my application or if not
discovered beforehand to my/our being prevented from
entering Australia or from remaining in Australia after
arrival. "

43. On 4 February 1991, an officer of the department, Ms McKarzel recommended to the "Officer-in-Charge, Residence" of the Operation and Administration Branch of the Department in Brisbane, that she refuse the application for a December 1989 (temporary) entry permit under Regulation 131A to Hendrik Johannes Koorts and his dependants. That recommendation was accepted on 11 February 1991 by Ms J Brooks, an authorised officer under s. 34(4) of the Migration Act 1953. That recommendation included the statement:

" Advice from the Department's legal branch has deemed the
applicant and his dependants to be illegal entrants pursuant
to s. 20(1)(b)(i)(B) of the Migration Act 1958 (as amended).
Hence the application is made under Regulation 131A because
of the family's status as illegal entrants at the time of
lodgment. (my emphasis)

That recommendation makes it plain that the decision was based on the Departmental file no. Q90/2273 as well as the Migration Act, Migration Regulations and the Procedures Advice Manual, but there is nothing to indicate that what has been termed the 'South Africa file' was before the decision maker. The assessment stated:

" The applicant meets the requirements of Regulation
131A(1)(a), (b) and (c) in that he was a prohibited
non-citizen before 18 December 1989, he has not left Australia
since 18 December 1989 and he applied for the entry permit
before 19 December 1993. "

The assessment contained the comment:

" It should be noted that the applicant has full review rights
to the Immigration Review Tribunal in the event of refusal
of the application. "

44. On 19 February 1991 Mrs Ferreira applied for review of the decision.

45. In an important letter dated 28 February 1991, the Tribunal wrote to the Secretary of the Department and to Mr Koorts in the following terms:

" RE: H J KOORTS (APPLICATION FOR REVIEW NO. RQ91/00058)
With reference to the above application for a review of a decision
refusing the grant of a December 1989 (temporary) entry permit,
the Tribunal invites your submission with respect to the effect of
regulation 131A(1)(a) of the Migration Regulations and section
16(1)(b)(i)(B) of the pre-December 1989 Migration Act 1958.
That regulation indicates that the Tribunal needs to be satisfied
that the 'applicant for the entry permit was a prohibited
non-citizen on or before 18 December 1989'. Therefore, the Tribunal
believes it is in order for it to examine that question to reach
its own conclusions in this regard.
The Tribunal feels it is obligated to consider whether the
applicant was or was not a prohibited non-citizen pursuant to
section 16 (now section 20 - although there is some difference in
wording) of the Migration Act 1958 as it stood prior to 18
December 1989.
The Tribunal therefore invites submissions on these issues. "

46. The Department informed the Tribunal by telephone on 7 March 1991:

" (T)he Department will not be providing further submissions
in regard to the Koorts' case. "

47. Solicitors on behalf of Mr Koorts on 8 March 1981 made comprehensive submissions over some nine pages. The substantive part of that submission commenced:

" We note that you have invited submissions in relation to the
threshold issues of whether Mr H. J. Koorts and Mrs C.J.
Koorts or their children have been properly classified as
'prohibited non-citizens'. We note that in that regard, the
position as regards the children may in strict legal theory
turn out to be different to that of the parents because the
ground pursuant to which the classification was made related
specifically to section 20(1)(b)(i)B (the then Section 16)
of the Migration Act. As you are aware, that section refers
to persons producing materially false or misleading
passenger cards. Although it will be our submission that
both Mr and Mrs Koorts have not contravened that section and
therefore should never have been classified as 'prohibited
non-citizens', the position of the children, in our
submission, is much more secure insofar as they could not
have been said to have produced passenger cards that were
false or misleading in a material particular. Accordingly,
as a secondary submission in relation to the status of the
parents, it will be argued that if the children are still
Australian residents, then the parents of those children
would be entitled to make the appropriate application
(presuming they are unsuccessful in this review) to have a
temporary entry permit as parents of Australian permanent
residents. "

48. The reasons for decision of the Tribunal recited the marital history of Mr Koorts and referred specifically to a number of communications between Mr Koorts and the Australian Embassy in South Africa. The Tribunal then turned to the determination by the Department that Mr Koorts and Mrs Koorts were not in fact permanent residents of Australia but illegal entrants pursuant to sub-paragraph 20(1)(b)(i)(B) of the Migration Act in that they produced to an officer a passenger card containing information that was false or misleading in a material particular in respect of their entry into Australia.

49. Those cards contain in part 8 four boxes regarding a person's marital status: they are "never married", "now married", "widowed" and "divorced". Both Mr and Mrs Koorts ticked the box "now married". The incoming passenger card does not contain a box for de facto relationships. The Tribunal in its reasons continued:

" The couple have applied for an entry permit under regulation
131A of the Migration Regulations. Given that one of the
criteria for the issue of a December 1989 (temporary) entry
permit is that 'the applicant was a prohibited non-citizen
on or before 18 December 1989', this is the reason why the
Tribunal believes that it must consider whether that
criteria is met. "

50. The Tribunal referred to its invitation to Mr Koorts and the Department to make submissions in relation to their views on s. 16 of the Migration Act, and noted that the invitation was not taken up by the Department. The Tribunal also noted that the question whether or not a person is deemed to be a prohibited non-citizen pursuant to s. 16 is a question to be decided on the establishment of objective facts and not the subjective opinion of an officer of the Department, and further noted that knowledge of the false or misleading character of any statement in an incoming passenger card was not a requirement of the section, relying on Minister for Immigration and Ethnic Affairs v. Naumovska (1989) 88 ALR 589.

51. Having dealt with the question of whether any statement would be a statement in respect of a material particular, the Tribunal made the finding:

" ...given their relationship and cohabitation together on a
domestic basis, and the absence of a provision for a 'de
facto relationship' on the incoming passenger card, in this
case the appropriate box to mark was that of being 'married'
rather than 'divorced'. "

52. It is clear by Regulation 9(2) of the Migrant (Review) Regulations that the Immigration Review Tribunal has jurisdiction to review a refusal to grant a December 1989 (temporary) entry permit only if the applicant was a prohibited non-citizen on or before 18 December 1989. The Tribunal principally addressed the question of whether Mr Koorts and his wife were prohibited non-citizens by virtue of the presentation of their marked incoming passenger cards and found against the Department's contention in that regard. It then said:

" Consequently, the Tribunal finds that they were not
prohibited non-citizens on or before 18 December 1989 for
the purposes of regulation 131A. It therefore follows that,
in view of the Tribunal's conclusion above, the principal
did not need to lodge an application pursuant to regulation
131A in relation to his and his family remaining in
Australia. "

53. It was for those reasons that the Tribunal affirmed the decision "in a formal sense" because as the Tribunal said:

" the principal and his family had not become prohibited
non-citizens or illegal entrants but remain permanent residents
of Australia, which was the legal status granted to them on
their last arrival in this country on 15 October 1989. "

54. The Tribunal found it unnecessary to deal with the existence of compassionate grounds in the light of its findings about jurisdiction, but expressed the preliminary finding that the grounds would not be made out. Should it be the case that for any reason the Tribunal would have to consider the question of compassionate grounds, the position of the children and Mrs Koorts would have to receive separate and particular attention.

55. So far as the challenge to the decision by the Tribunal on what I might term the narrow ground is concerned, namely that the Tribunal had erred in concluding that neither Mr Koorts nor Mrs Koorts made a false and misleading statement in ticking the box "now married" on their incoming passenger cards, the answer in my opinion is clear. No error has been shown in the reasoning and decision of the Tribunal.

56. As to the meaning of "decision", Mason CJ said in Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321 at 337:

" ...a reviewable 'decision' is one for which provision is
made by or under a statute. That will generally, but not
always, entail a decision which is final or operative and
determinative, at least in a practical sense, of the issue
of fact falling for consideration. A conclusion reached as
a step along the way in a course of reasoning leading to an
ultimate decision would not ordinarily amount to a
reviewable decision, unless the statute provided for the
making of a finding or ruling on that point so that the
decision, though an intermediate decision, might accurately
be described as a decision under an enactment. "

At 340-1 his Honour said:

" If the statute requires or authorizes the decision-maker to
determine an issue of fact as an essential preliminary to
the taking of ultimate action or the making of an ultimate
order, then it would follow from what has already been said
that the determination of the issue of fact would be a
reviewable decision.
...
However, in ordinary circumstances, a finding of fact,
including an inference drawn from primary facts, will not
constitute a reviewable decision because it will be no more
than a step along the way to an ultimate determination. Of
course an ultimate determination which depends upon a
finding of fact vitiated by error of law or made without
evidence is reviewable:...In such a case the finding of fact
may be challenged as an element in the review of the
ultimate determination. But the point remains that
ordinarily a finding of fact will not be susceptible to
review independently of the ultimate decision. "

And later at 341:

" To expose all findings of fact, or the generality of them,
to judicial review would expose the steps in administrative
decision-making to comprehensive review by the courts and
thus bring about a radical change in the relationship
between the executive and judicial branches of government.
Amongst other things, such a change would bring in its train
difficult questions concerning the extent to which the
courts should take account of policy considerations when
reviewing the making of findings of fact and the drawing of
inferences of fact. "

57. The essence of the Immigration Review Tribunal's decision was as follows:

1. The word 'married' on the passenger card includes a de
facto marriage.
2. At the time of their entry into Australia, the Koorts were
in a de facto marriage relationship.
3. Ticking the 'now married' box on the passenger card at the
time of entry did not amount to making a 'false or
misleading statement'.
4. The Koorts therefore were not prohibited non-citizens via
the operation of s.16(1)(b)(i)(B).
5. The Department's decision to refuse a temporary entry
permit under regulation 131A should be formally affirmed
because the necessary precondition to the grant of such a
permit in regulation 131A(1)(a) was not satisfied.

58. In my opinion, the question of whether a statement made on the passenger card is a "false or misleading" statement is a question of fact. While it may be argued that the meaning of the word "married" involves some legal principles, once the meaning of the word is ascertained, a decision on whether ticking the "now married" box on the passenger card amounted to a false or misleading statement, simply involves a consideration of the relevant facts.

59. There is no definition of "marriage" or of "spouse" in the Migration Act nor any definition of "de facto spouse" or "de facto marriage", but in the Migration Regulations 1989 "marital relationship" includes a de facto relationship and "spouse" includes "...a de facto spouse". The meaning of ordinary English words is a question of fact: McVeigh v. Willarra Pty Ltd (1984) 6 FCR 587 at 598.

60. Whether or not a statement is false can only be a question of fact. The finding that ticking the box "now married" was not the making of a statement that was false or misleading is a question of fact and not amenable of appeal or review, unless there was no evidence to support the finding: see s. 5(1)(h) of the Administrative Decisions (Judicial Review) Act.

61. As a matter of construction, the first finding seems the correct conclusion to draw. Therefore, even if this a question of law and not fact, no error of law is involved at this level.

62. The second and third finding (and, because no further legal analysis is involved, the fourth also) involve questions of fact only. They are therefore reviewable only in accordance with the principles expounded by Mason CJ in Australian Broadcasting Tribunal v. Bond (supra) at 355-360. Those principles were considered by Peter Bayne in an article at (1992) 66 ALJ 96. Here, the Immigration Review Tribunal's decisions are free from attack, as evidence clearly existed to support them, and they are not so perverse or unreasonable that no reasonable decision-maker could have arrived at them. A similar conclusion was reached in Alice Benlot v. The Minister for Immigration, Local Government and Ethnic Affairs (unreported judgment No. 110/92, 13 March 1992, Davies J, Sydney). In that case, a decision of a delegate of the Minister to refuse an extended eligibility (spouse) entry permit turned on whether Mrs Benlot was in a de facto marital relationship, and, if so, whether the relationship was genuine and continuing. His Honour said, at 3;

" The issue which (the decision maker) had to consider was an
issue of fact. It is not for this Court to review findings
of fact. The determination of facts is committed to the
decision-maker and his view must stand unless the
determination was so perverse or unreasonable that no
reasonable decision-maker could have arrived at it. See
Mason CJ in Australian Broadcasting Tribunal v. Bond
[1990] HCA 33; (1990) 170 CLR 321 at 358-359. "

63. While it is of no significance in either the application for an order of review or appeal, in my respectful opinion the factual determination by the Tribunal that there was no false or misleading statement made by Mr and Mrs Koorts in describing their condition as "now married", was correct.

64. Subject then to the possible operation of s. 16(1)(b)(ii) and s. 16(1)(ba), in my opinion no legal error has been shown to have infected the Tribunal's decision or reasoning.

65. I turn now to consider the wider basis propounded on behalf of the Minister in his appeal and application for an order of review.

66. It was asserted on behalf of the Minister that in respect of three matters there was the making by Mr Koorts of false or misleading statements in connection with his immigration to Australia.

67. The first is a letter by Mr Koorts to the Australian Embassy in South Africa on 30 May 1988 wherein Mr Koorts said:

" I include the birth certificates of myself, my wife and my
three children for emigration purposes. "

The certificate enclosed was that of Cornelia Johanna Marais, his first wife. At 30 May 1988 Mr Koorts was divorced from Cornelia and married to Althea Gertrude DeWitt.

68. The second statement said to be false or misleading is the sending by Mr Koorts to the Australian Embassy on 23 July 1988 of a completed sponsorship form which identified both him and Cornelia Johanna Koorts in a section described as "marital status". The box "now married" is marked with a cross, while the other boxes "never married", "divorced", "de facto relationship", "engaged", "separated" and "widowed" are unmarked. It was said that this was an assertion that he was married to Mrs Koorts at the time of sending that letter.

69. The third matter which is said to be a false or misleading statement is contained in a letter of 24 October 1988 by Mr Koorts to the Australian Embassy which says, inter alia:

" The acceptance of my application to emigrate to Australia is
deeply appreciated.
I hereby enclose mine and my wife's passports for the issue
of our visas. "

It is said that referring to Cornelia Koorts as his "wife", when they were in a genuine de facto marital relationship is the making of a false statement.

70. The visas were stamped in the passports of Mr and Mrs Koorts on 6 December 1988.

71. It appears from the reasons for decision of the Tribunal that the South African file was available to the Tribunal because Mr Karas quoted from documents to be found only in that file.

72. It is first to be observed that what is submitted in argument in this Court is different from what are said to be the "relevant considerations" not taken into account in the notice of appeal, and in the application for an order of review. There is simply no evidence as to what is alleged in ground b(ii) of each document, and that ground fails.

73. The only basis relied on as grounds for appeal or review in those documents, on which it is claimed that Mr Koorts and his family were prohibited non-citizens, apart from the question of incoming passenger cards, is the assertion:

" (T)hat Hendrik Johannes Koorts had made a false or
misleading statement in a material particular to the
Counsellor, Consular Affairs, at the Australian Embassy in
Pretoria, South Africa, in June 1988, in respect of the
grant of a visa, that he was still married to Cornelia
Johanna Koorts when he was in fact married at that time to
Althea Gertrude Koorts, "

74. That matter seems not to be any of the three matters the subject of submissions by counsel for the Minister.

75. The requirement that grounds for an appeal, or grounds for an order of review, be specified is a necessary part of a fair judicial system.

76. At page 47 and following of the transcript of the proceedings in this Court, Mr Tracey QC, senior counsel for the applicant, identified what were "the matters that are relied upon in relation to the South African representations".

77. The position is simply that the grounds for the appeal and for an order of review, on which it was claimed that the finding that Mr Koorts and his family were not prohibited non-citizens as at 18 December 1989, was erroneous, are not made out.

78. Mr Tracey conceded that these three matters had never before been particularised, and agreed that it followed that they had never been the subject of submissions by the respondent to this appeal. Further, these three matters assert the making of statements by Mr Koorts. Mrs Koorts or the three children have not been given any opportunity to answer them or be heard in respect of any disqualifying consequence of them, if the statements have the characterisation which it is now said those statements have.

79. I have earlier referred to Mr Koorts' response in his statement of circumstances of 18 December 1990, to the suggestion that he was under some obligation to advise the Australian Embassy of any change in his marital status while his application to emigrate was being considered. I am satisfied that there was no such obligation. Further, I respectfully agree with the judgment of Keely J in Eva Michalowski v. Mr Gerry L Hand Minister of State for Immigration, Local Government and Ethnic Affairs (unreported judgment No. 202/92, 24 April 1992, Melbourne) that any failure to supply information did not constitute the making of a "statement". (The present s. 24(9) of the Migration Act has no application in the matters I am considering.)

80. As to the letter of 17 October 1988 from the Australian Embassy approving "your application to migrate to Australia", the letter said "This approval is subject to conditions which will be identified in your visa". The conditions included "that there is no change in your marital status or that of persons in this approval".

81. This condition is ambiguous, in that it might refer to the question of change in marital status between application and grant of approval, or it might refer to any change between grant of approval and migration to Australia. The verb used is "is", and not "has been".

82. It cannot be suggested that any change of the latter kind arose. Concerning the former possible meaning, the Tribunal in its reasons for decision referred to the Migration Entry Handbook, and said:

" The old Migrant Entry Handbook which described Department
policy in force at the time of their approval to migrate to
Australia and at the time of their last entry into this
country expressly states at paragraph 4.5.1 that:
' For the purposes of migration, a de facto marriage
relationship has the same value as a marriage, and
genuine de facto relationships are to be treated as if
the partners are formally married.' "

83. In my opinion, the alteration from a "de jure" marital relationship to a "de facto" marital relationship does not involve a change of marital status. In the same way, if two people in a genuine de facto marital relationship marry, their marital status in each situation is still properly to be described as "married".

84. The three 'South African representations' are new in the sense that they were not raised by the Department before the Tribunal, notwithstanding the letter of the Tribunal to the Secretary dated 28 February 1991. The Department deliberately chose not to make "further submissions in regard to the Koorts' case".

85. Further, they are new in the sense that they are not covered in the grounds of appeal (or the grounds for an order of review), and there has been no application to amend these grounds. In my opinion, that is the end of the matter.

86. Natural justice would demand that if these three matters are to be considered in relation to the status of Mr Koorts, Mrs Koorts and the three children, each of them has a right to be heard, which means a proper right to be heard in the sense of R. v. Thames Magistrates' Court, Ex parte Polemis (1974) 1 WLR 1371, and not having to deal 'on the run' with allegations made without notice.

87. To remit the matter back to the Tribunal to enable that to be done would be to permit the applicant to secure an advantage by his unreasonably standing by and have the opportunity of several, and serial, bites at the cherry.

88. In Minister for Immigration and Ethnic Affairs v. Naumovska (1983) 88 ALR 589, Lockhart J at 601 said:

" Once a person enters Australia in any of the circumstances
mentioned in s. 16(1)...he becomes by force of the section a
prohibited immigrant. No decision by anybody is required to
bring about this change of status. It follows as a matter
of law once the facts specified in s. 16(1) are satisfied. "
(my emphasis)

His Honour noted:

" It is for the courts to say whether information in a
passenger card produced to an immigration officer by a
person for the purpose of securing entry into Australia is
false or misleading in a material particular. It is not for
immigration officers to determine these matters.
...
This status rests on the establishment of objective facts
whose existence may be reviewed by the courts. "

89. This is not the case to consider whether the estoppel of the type found by the High Court in Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 might properly arise in respect of hearings by administrative tribunals. There is no doubt that such a principle applies in proceedings in the Federal Court. The rationale of the doctrine is to be found in the principle expressed by Sir James Wigram VC in Henderson v. Henderson (1843) 3 Hare, at 115 (67 ER at 319):

" where a given matter becomes the subject of litigation in,
and of adjudication by, a Court of competent jurisdiction,
the Court requires the parties to that litigation to bring
forward their whole case, and will not (except under special
circumstances) permit the same parties to open the same
subject of litigation in respect of matter which might have
been brought forward as part of the subject in contest, but
which was not brought forward, only because they have, from
negligence, inadvertence, or even accident, omitted part of
their case. The plea of res judicata applies, except in
special cases, not only to points upon which the Court was
actually required by the parties to form an opinion and
pronounce a judgment, but to every point which properly
belonged to the subject of litigation, and which the
parties, exercising reasonable diligence, might have brought
forward at the time. "

90. Gibbs CJ, Mason and Aickin JJ noted in Port of Melbourne Authority v. Anshun Pty Ltd at 598:

" Although it has been said that the principle operates so as
to extend the doctrines of issue estoppel as well as res
judicata, its application to cases of issue estoppel is to
be treated with caution. "

91. It seems to me that it was incumbent on the applicant in the present proceedings to bring forward his whole case as to why the finding as to jurisdictional fact by the Immigration Review Tribunal, namely, the finding that Mr Koorts and his family were not prohibited non-citizens as at 18 December 1989, should be disturbed or reviewed. Having regard to the grounds on which the present application and appeal have been brought, that has not been done.

92. As to the proceedings before the Tribunal, it has to be recognised that the Tribunal is a body independent of the Department of Immigration, Local Government and Ethnic Affairs, and it is entitled to expect no less from the Department than it expects from any other party before it. It is no part of the duty of the Tribunal to make the case for the Department or for any other applicant.

93. I now turn to look in some detail as to what is now said to constitute false and misleading statements by Mr Koorts.

94. It seems to me that none of these allegations can in any way affect the conclusion of the Tribunal that Cornelia Johanna Koorts was at the date of her last entry into Australia, namely 15 October 1989, not a prohibited non-citizen. A fortiori it seems to me that there is no basis on which the three Koorts children are prohibited non-citizens. Mrs Koorts and her three children remain permanent residents of Australia.

95. It is no part of the Court's function to make findings of fact, even findings of jurisdictional fact, in the absence of hearing from parties who are entitled to be heard on those matters. What I will do is examine whether the findings now urged, relying on paras. 16(1)(b)(i) and 16(1)(ba) of the Migration Act, might reasonably be able to be made, or might have been reasonably able to be made. I am here conscious of the observations of Fullagar J in R. v. Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 at 90-2, and his statement at 92:

" If the jurisdiction was not shown before the inferior
tribunal but was shown before the superior tribunal, the
latter would, I should think, apart from very special
circumstances, refuse the writ (of mandamus) and leave the
prosecutor to make another application to the inferior
tribunal. "

96. I note that the first two representations were made at a time before any question of the grant of a visa was a live matter, since the application for entry for settlement had not at that time been approved. The third statement is alleged to be made after that approval, at which time the grant of a visa was reasonably in contemplation.

97. Concerning the first matter, it is open, in my opinion, to conclude that Mr Koorts made a statement that was false or misleading. The letter of 30 May 1988, it might be concluded, contains a statement that Cornelia Koorts was then his wife, the true position being that he was then married to Althea DeWitt.

98. The second matter is less clear. The sponsorship form is signed by the sponsors, not by Mr or Mrs Koorts. It does represent that Hendrik Koorts and Cornelia Koorts are "now married". I think that it is open to conclude that that statement is false. Having regard to the judgments in the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v. Ricardo Dela Cruz (Black CJ, Davies and Neaves JJ, unreported, 28 February 1992, Sydney), I think it is also open to conclude that the statement is false in a material particular. It is, however, open to argument whether Mr Koorts made that statement or that he caused it to be made.

99. Notwithstanding those matters, it seems to me that it would not be open to the Tribunal to conclude, having regard to the time at which those two statements were made, that Mr Koorts' visa was obtained by "false representation" as required by s. 16(1)(b)(ii) of the Migration Act or that the respective statements were made "in respect of the grant of that visa". At the time of the making of those statements Mr Koorts was the person who had applied for settlement to Australia. The question of the grant of a visa to him was hypothetical. In my opinion the statements lack the capacity to be statements made in respect of the grant of Mr Koorts' visa.

100. There is a further evidentiary deficiency in that s. 16(1)(b)(ii) requires that a visa produced in respect of an entry into Australia be "obtained by false representation". The requirement that the visa be "obtained" requires, not that there be a temporal connection between the making of a false representation and the issuing of a visa, but that there be a causal connection.

101. The matters to which I have just referred do not apply in respect of the third allegation on behalf of the Minister, namely, that relating to the letter of 24 October 1988 where Mr Koorts enclosed "mine and my wife's passports for the issue of our visas" and tendered those passports.

102. At this time the position was that Cornelia Koorts and Mr Koorts were living in a de facto relationship with their children and had received approval to settle in Australia and were in the process of obtaining visas for that purpose. I think in this instance the statement, if it be false or misleading in a material particular, is a statement "in respect of the grant of a visa" and it might be possible to infer that the visa was "obtained by false representation", if the representation or statement in fact be false. However, I do not regard it as open to say that to describe one's de facto spouse as one's wife is a false statement.

103. While these matters were not the subject of submission to the Tribunal, the matter of the response by Mr Koorts to the request of 4 May 1988 for the full birth certificates of his wife and his three children was referred to, as was the letter advising approval to migrate to Australia of 17 October 1988 and the conditions therein, and specific reference was also made to the letter dated 24 October 1988 by Mr Koorts wherein he referred to his "wife's passport" for the issue of their visas.

104. There is a passage in the Tribunal's reasons for judgment which has a relevance to these present matters, and I set it out in full:

" For the sake of completeness, the Tribunal will deal briefly
with the applicant's failure to notify the Australian
Embassy and the Department of a change in his marital status
prior to the issue of the visa as requested in the Embassy's
letter to Mr Koorts on 17 October 1988. In Mr Koorts'
response to this letter, he remained silent about the change
in marital status. Indeed, he continued to refer to
Cornelia Koorts as his wife. Under the current Migration
Act (section 24(9)), an applicant who fails to respond to a
notice requiring him or her to notify the Minister of
changed circumstances is taken to have notified the Minister
that there has been no such change. However, this provision
has no application to events that took place under the law
as in force prior to 19 December 1989. For all intents and
purposes, the parties presented to the world as if there had
been no change in their marital status in the long period
between their application to migrate and their approval.
This failure to notify of their changed marital status could
not form the basis for them being declared prohibited
non-citizens for the purposes of the Act and their application
under regulation 131A. "

105. In my opinion, none of the three matters relied on in argument by the applicant are capable of satisfying the provisions of s. 16(1)(b)(ii) and s. 16(1)(ba) of the Migration Act. Even if they could properly be considered by the Court (and I have found that they cannot), they would not avail the applicant.

106. For the reasons which I have given, I am of the opinion therefore that the Tribunal was right in concluding that Mr Koorts, Mrs Koorts and the three children were not prohibited non-citizens on or before 18 December 1989 and was right in concluding that there was no need for Mr Koorts to lodge an application pursuant to Regulation 131A in relation to him and his family remaining in Australia.

107. Having regard to s. 138(4) of the Migration Act, I think it right, given the history of this matter, to declare that Hendrik Johannes Koorts, Cornelia Johanna Koorts, and their three children were not prohibited non-citizens on or before 18 December 1989.

108. I note that Mr Tracey, on behalf of the Minister, said that in the event that he was successful, no order for costs was sought. However, for the reasons that I have given the appeal and application for an order of review should each be dismissed with costs and I make the declaration earlier referred to.