Re Kyung Chol Kim v the Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 60; (1993) 30 ALD 859 (Extract), (1993) 44 FCR 75 (26 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: KYUNG CHOL KIM
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G396 of 1992
FED No. 92
Immigration
Number of pages - 27
[1993] FCA 60; (1993) 30 ALD 859 (extract)[1993] FCA 60; , (1993) 44 FCR 75

COURT

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

CATCHWORDS

Immigration - Applicant alleged to be an "illegal entrant" because of false statements in a material particular in application for temporary entry permit - Legal significance of circumstance that Act makes this status dependent upon the existence of particular facts rather than the exercise of a statutory discretion - Whether statements were false - Effect of failure to answer a question - Materiality of answers.

Migration Act 1958, ss.14, 20, 35 and 60.

HEARING

SYDNEY, 21 and 22 December 1992
26:2:1993

Counsel for the Applicant: Miss E. Wilkins

Solicitor for the Applicant: Garry Penhall

Counsel for the Respondent: P. Roberts

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The Application be dismissed.

2. The applicant pay to the respondent his costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

WILCOX J. The amended Application filed in this proceeding seeks two different types of relief: review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 of a decision made by a delegate of the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, on 3 June 1992 and declarations pursuant to s.39B of the Judiciary Act 1903. In the view I take, the decision is legally inconsequential. This is not a case where the applicant's status arises out of the exercise adversely to him of a statutory discretion. If the applicant is an illegal entrant under the Migration Act 1958, that is because of the operation of the Act itself. If the conduct of the applicant does not make him an illegal entrant pursuant to the Act, no administrative decision can make him so. It may be useful, before turning to the facts, for me to explain why I understand the position in this way.

2. The applicant, Kyung Chol Kim, is a Korean national who has resided in Australia since September 1985. On 12 April 1990 he applied for an Extended Eligibility Temporary Entry Permit ("EETEP") on the basis of an alleged de facto marriage relationship with Nam Jim Kim, a Korean-born woman who had recently been granted the right of permanent residence in Australia. Although the Minister's delegate determined that the applicant was an illegal entrant because, contrary to the declaration made in his EETEP application, there was never a genuine de facto relationship between himself and Ms Kim, this case is not now pressed. Nonetheless, the Minister puts the submission that the applicant is an illegal entrant. His contention is that the application contained specific statements which were "false or misleading in a material particular". The Minister argues that the case falls within s.20(2) of the Migration Act. That subsection reads:

"(2) 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) after entry, an entry permit has been granted to the person
authorising the person to remain in Australia; and
(b) in respect of the grant of that entry permit:
(i) the person produced a bogus document, or
caused a bogus document to be produced, to
an officer or a person exercising powers
or performing functions under this Act; or
(ii) the person made, or caused to be made, to
an officer or a person exercising powers
or performing functions under this Act, a
statement that was false or misleading in
a material particular; or
(iii) the person made, or caused to be made, a
false or misleading statement in a
declaration covered by subsection 34(1A)."

3. Section 14(2A) of the Act provides:

"(2A) If:
(a) because of the production of a bogus document, or the making
of a statement, in respect of the grant of an entry permit,
subsection 20(2) applies to a person who has entered
Australia (whether before or after the commencement of this
section); and
(b) subsection 20(1) does not apply to the person;
then, at and after:
(c) that commencement; or
(d) the grant of that permit;
whichever is later, the person is an illegal entrant at any time while
he or she:
(e) remains in Australia; and
(f) is not a citizen; and
(g) does not hold a properly endorsed valid entry permit or a
properly endorsed valid entry visa."

4. This subsection requires explanation. Section 20(1) sets out a miscellany of circumstances which may result in a person becoming an illegal entrant. It is common ground that none of them apply to the present applicant, so para.(b) of s.14(2A) is satisfied. The terms "properly endorsed valid entry permit" and "properly endorsed valid entry visa" each have a technical meaning. They are the subject of definitions set out in s.4 of the Act. Those definitions make clear that the terms refer to more than a regularly issued entry permit or entry visa, as the case may be. They refer to an entry permit or entry visa endorsed pursuant to s.20(4A) or s.20(5) with a statement that the issuing officer recognises the person to be a person to whom s.20(1) or (2) applies, but nonetheless considers that the person ought to be allowed to hold the permit or visa. The endorsement, in effect, recognises the person's contravention of the migration legislation but absolves him or her from the usual consequence of that conduct, the status of illegality. The present applicant has not sought such an endorsement. It is common ground that, at least at this stage, he falls within para.(g). He also falls within paras.(e) and (f). The only question is whether para.(a) applies to him. If the applicant is an illegal entrant, his entry permit is deemed to have been cancelled on issue (s.35(2)) and he is liable to deportation (s.60).

5. The Minister does not suggest that the applicant produced a bogus document or that there was a s.34(1A) declaration. The critical question is whether the applicant made a statement that was false or misleading in a material particular in connection with either of two applications. That matter is in issue. So it is necessary to refer to the relevant facts.

The facts
6. The applicant was born in Korea in 1962. He arrived in Australia on 17 September 1985 and was granted a visitor's entry permit valid for one month. He did not depart Australia at the end of the month but commenced work as a contract cleaner, apparently in association with others.

7. A few months after his arrival in Australia, apparently at about Christmas 1985, the applicant met Ms Kim. Ms Kim was not related to the applicant. She had entered Australia on 25 September 1985 with her two daughters, then aged five years and four years. It appears that Ms Kim came to Australia with her husband, who had been granted a twelve-month student's visa. But, almost immediately after their arrival, she was deserted by him. Ms Kim also held a one year visa. She decided to remain in Australia, at least for the time being. Soon afterwards, she met the applicant. About six weeks after they met, apparently in about early February 1986, the applicant commenced to live with Ms Kim in a de facto relationship. They lived, with Ms Kim's two daughters, in rented premises at Allan Street, Canterbury.

8. At about this time the applicant commenced to work as a cleaner for Ace Catering at Mortdale. During the course of that employment he met a man named Joseph Rivet. Mr Rivet was born in Mauritius. But he has lived in Australia for a long time and is - and was, in 1986 - an Australian citizen. He was unmarried. The applicant became friendly with him. From time to time he invited him home to Allan Street. There Mr Rivet met Ms Kim. But it is common to the evidence of the applicant, Ms Kim and Mr Rivet that, at that stage, there was no emotional interest between Ms Kim and Mr Rivet. He was simply a workmate whom her de facto husband occasionally brought home for meals.

9. Early in 1987 the applicant changed his work. He became a self-employed truck driver doing contract driving. It seems that, after the change, he lost contact with Mr Rivet.

10. It is clear that, throughout 1986 and 1987, the applicant and Ms Kim carried on an active sexual relationship. Sometime during 1987 Ms Kim had an abortion, the foetus having been fathered by the applicant. The applicant and Ms Kim wished to marry. But the applicant's parents, who remained in Korea, strongly opposed this idea, apparently because Ms Kim had previously been married. Both the applicant and Ms Kim gave evidence of telephone conversations between the applicant and his parents during which he begged them to consent to the marriage; all to no avail. And despite his age and residence in another country, the applicant was not willing to defy his parents.

11. At the beginning of 1988 the applicant and Ms Kim purchased a take-away food business at 1043 Canterbury Road, Lakemba. They leased the premises in their joint names. The shop occupied the ground floor. On the first floor were two bedrooms. Ms Kim slept in one of them with her two daughters. The applicant slept in the other. It seems that, initially, the sleeping arrangement did not reflect any break-down in their relationship. It was simply a matter of convenience. The applicant was working extremely long hours. Apparently he helped Ms Kim in the shop, continued his contract truck driving and also worked an evening shift at Franklins' Chullora warehouse. For a long time he must have been getting no more than 3-4 hours sleep each night.

12. Approximately three months after the applicant and Ms Kim took over the business, Mr Rivet came into the shop. The applicant renewed his friendship with him. He discovered that Mr Rivet was living in unsatisfactory conditions at a hotel. It seems that Mr Rivet had long been a heavy drinker. When the contact was renewed, Mr Rivet was in a dirty and dishevelled condition. Notwithstanding this, the applicant offered him the opportunity of work in the shop and a bed upstairs in his room. Mr Rivet accepted. In about April 1988 Mr Rivet moved into the upstairs room and commenced to help Ms Kim in the shop. Apparently he made an effort to clean himself up and stay off alcohol. He succeeded in doing so for several months.

13. Mr Rivet's arrival in the household did not immediately affect the relationship between Ms Kim and the applicant. They slept in different rooms. But both claim that they maintained their sexual relationship; contact being limited by the applicant's working hours and the sleeping arrangements. But, according to Ms Kim, after a month or two a relationship began to develop between her and Mr Rivet. She described the situation in this way:

"Whose idea was it that you marry Mr Rivet?---Mr Kim introduce him and I
used to stay with him at the shop because we were working together, me
and Joseph and we were close and he said I'm very good lady and we goes
good and when I decide to marry him I ask him - I ask Mr Kim. I don't
which idea maybe my idea and his idea.
Why did you marry Mr Rivet?---Because I need husband.
Why did you need a husband?---It's better.
Better for what?---Better for the company, you know, when you're lonely
it's good. Somebody protecting us.
Did you ever have sex with Mr Rivet?---Yes."

14. This account of the matter is consistent with the evidence of the applicant. He said in evidence that, about one or two months after Mr Rivet moved into the premises, Ms Kim told him (the applicant) that she wanted to marry Mr Rivet, explaining: "He is lonely and he needs help to care for him." The applicant said he was "very shocked and upset by this news" and went out and got drunk. But eventually, he said, he told Ms Kim that it was up to her. She asked him whether he wished to move out but he did not do so. He had nowhere else to go and was working such long hours that he only needed a place to sleep.

15. The applicant attended the wedding. He said he was depressed about the situation but did not wish to stop Ms Kim doing what she thought best for herself and the two children.

16. Mr Rivet's version of the marriage was rather different. In an affidavit he said that, "about one and a half years" - this estimate is clearly wrong - after he moved into the take-away shop, the applicant asked him to marry Ms Kim. Mr Rivet knew the applicant as "Albert", his adopted Australian name. He called Ms Kim "Rosemary". Mr Rivet claimed that the applicant said to him: "If you marry Rosemary, it will be good for her and the kids, because she will become an Australian citizen through the marriage". In cross examination Mr Rivet elaborated:

"So, you married Rosemary to help her with her two children, is that
right?---That's right.
You were very pleased that you married Rosemary, were not you?---
Pleased, it's just sort of doing the right thing at the right time. You
just married her and tried to get her to stay in Australia with the
kids. That's what it was."

17. In his affidavit Mr Rivet claimed that the applicant offered him a one-third interest in the take-away food business. He went on:

"7. The marriage took place in June 1988 in the back yard of the
premises in Lakemba. A marriage celebrant was there, with Albert
and a friend, and of course myself and Rosemary, but not the kids.
8. Nothing changed after the marriage. I didn't move into Rosemary's
room. I continued to share the room with Albert. I didn't get
the partnership promised although I continued to get food and rent
free. This continued for some six months or so after the
marriage."

18. In oral evidence, Mr Rivet said that he never asked the applicant when he was going to get his one-third share in the business. He said he never had sex with Ms Kim.

19. Despite the differences in these accounts of the background to the marriage, two things are clear. First, there is no doubt that the wedding took place at Lakemba on 19 June 1988. The marriage certificate is in evidence. Secondly, it is apparent that the marriage did not last long. It seems that, shortly after the wedding, Mr Rivet resumed his drinking habit. He took to absenting himself from the home. In about November he went to Melbourne to attend the wedding of his niece. He was away for some weeks. At about this time, the applicant and Ms Kim decided to sell the business. They thought it was not making enough money. According to their evidence, they had not yet resumed their sexual relationship, which had been disrupted by the marriage. Nonetheless, they wished to continue living in the same place. They decided to purchase a house at 51 Juno Parade, Greenacre. The purchase was made in the applicant's name, but both the applicant and Ms Kim regarded the house as being their joint property. They invested $30,000 in the purchase, this money being the proceeds of sale of the business. The balance of the purchase price came from a bank loan.

20. The dates are hazy, on the evidence. But it seems that the take-away business was sold in about November 1988 and that the applicant, Ms Kim and the two children moved into Juno Parade in about January. At some stage, Mr Rivet reappeared. He said in evidence that they were all still at the shop when he returned from Melbourne and that he had never been to Juno Parade. (This last statement is clearly wrong. It is contradicted by the declaration made by Mr Rivet in connection with Ms Kim's application for permanent residence.) The applicant and Ms Kim thought they were already at Juno Parade when Mr Rivet returned from Melbourne, they having taken his belongings with them when they left the shop. Ms Kim said that Mr Rivet visited Juno Parade occasionally, between about January and March 1989; sometimes staying the night but sleeping in a back room with the applicant. The applicant also spoke of visits by Mr Rivet. His evidence conveyed to me an impression of longer visits than those suggested by Ms Kim; but neither witness was precise. On any account of the matter, there was no husband-wife relationship between Mr Rivet and Ms Kim at any time after his departure for Melbourne.

21. On 28 February 1989, Ms Kim made an application for resident status. The basis of her application was her marriage to Mr Rivet. That application was successful, permanent resident status being granted to her on 13 February 1990. (A delegate of the Minister has since decided that the decision to grant resident status was influenced by a material falsehood and that Ms Kim is an illegal entrant into Australia. An Application challenging that view was filed in this Court but the action was discontinued shortly before the projected hearing. Whilst judgment in the present case was reserved, Ms Kim made an application for leave to file a fresh Application. Leave was necessary because she sought review of the delegate's decision under the Administrative Decisions (Judicial Review) Act. I refused leave, partly because of the history of the matter but primarily because it seemed to me that the case Ms Kim sought to make was hopeless. Her evidence in the present proceeding had clearly established the falsity of several of the material statements she made in her application for resident status.)

22. It is not clear when Mr Rivet finally departed the scene, but it seems to have been about March 1989. According to the applicant, thereafter he and Ms Kim "gradually got back together again". He said that their de facto relationship continued from that time to 17 January 1992. Ms Kim's account is not inconsistent with this claim. Certainly, the sexual relationship resumed. During 1989 and 1990 Ms Kim had three abortions (in July 1989, January 1990 and August 1990). She said that, in each case, the foetus was fathered by the applicant. There is no reason to doubt her claim.

23. About two months after Ms Kim was granted permanent residence, the applicant made an EETEP application. He apparently regarded this as a necessary first step towards obtaining permanent residence. It seems that this perception was well-founded, that, once an EETEP issues, a grant of permanent residence is a mere formality.

24. The truthfulness of the applicant's EETEP application is at the heart of this case. So it is necessary to descend to some detail. The application was in the "spouse" class of EETEP. The applicant identified his partner as Nam Jim Kim. He said that he met her on 25 December 1987 at the Korean Church at Campsie and that they had lived together at 1043 Canterbury Road, Lakemba "from 12/87 to 4/89" and at 51 Juno Parade, Greenacre "from 5/89 to - ". In answer to another question: "when and where did you commence living in this relationship?" he answered: "1/88 Friend's birthday party". The applicant ticked a box affirming that he and his partner intended "to maintain a lasting marriage/de facto marriage relationship" and denied any relationship with anyone else. He identified (and enclosed) documents relating to joint assets.

25. Two forms were completed by the applicant. They contained two significant deficiencies. Each form contained a printed section intended to be signed by the applicant's partner. But each of these sections was completed by the applicant, repeating the information previously given. Although Ms Kim seems to have signed the forms as "interpreter or person assisting the applicant", nowhere did she herself provide any information about her relationship with the applicant or verify what he said.

26. The second deficiency in the forms was the lack of any supporting evidence. The main form (853B) requires an applicant to supply statutory declarations from two friends stating how long they have known the applicant and the partner, confirming that they are not separated, stating what they know of their common interests, activities and responsibilities and providing "any other information they can provide that would establish that the relationship is genuine". A space for the declarations was offered on form 853. In fact this space was used by the applicant to make the following short statement: "We intend to get married on this year after our parent coming this country". No supporting statutory declarations were provided.

27. I do not think that these omissions sprang from sinister intent. Ms Kim was aware of the application and was prepared to assist. There is no reason to think she would have been unwilling to provide information or that the applicant would have had difficulty in finding two people to vouch for his relationship with Ms Kim. I think that the forms were completed in this way in error. Perhaps that is not surprising; the forms are lengthy and fairly complex, especially for people having an imperfect command of English. What is surprising is that the Justice of the Peace before whom the documents were completed failed to pick up the omissions. However, they were picked up by the Departmental officer who processed the application. The Department sought evidence about the relationship. Several statutory declarations were supplied in mid-1991, along with other documentary evidence, and an EETEP was granted on 10 January 1992.

28. The applicant changed his address while the application was under consideration. In January 1991 he moved, with Ms Kim and the children, to a rented unit in Rome Street, Canterbury. In evidence, the applicant explained that the Juno Parade home was larger than they needed and that he could rent it out to Korean students for a total rent greater than he needed to pay in Rome Street.

29. One of the students who eventually went to live in Juno Parade was a young woman called Ji Hyeon Lee. It seems that the applicant was one of a group of Korean residents who assisted Korean students arriving in Australia. In this way he met Ms Lee, apparently early in 1991. She later went to live, with other students, at Juno Parade. In early November 1991, according to the applicant, a sexual relationship developed between himself and Ms Lee. Almost immediately, she fell pregnant. The applicant knew this because he went with her to the doctor in mid-December. Ms Lee asked the applicant to marry her. He telephoned his parents who told him he should do so. But, according to his evidence, he did not wish to marry Ms Lee; he wanted to stay with Ms Kim. He told Ms Kim about Ms Lee, including that she was pregnant to him. There was a quarrel. Ms Kim left the Rome Street unit, taking her daughters with her. She moved into a house in Sproule Street, Lakemba. But the applicant found out where she was. A day or so later he went to the house. He effected some sort of reconciliation with Ms Kim and moved into the house with her. The Ms Lee problem was left unresolved.

30. In the midst of this emotional turmoil, the EETEP application made 21 months earlier was granted. The applicant was notified of that fact on 10 January 1992. He immediately attended at the Department and made application for permanent residence. In the form he completed, he gave the address "2/16 Rome Street, Canterbury". This answer was not necessarily incorrect. Although he had been sleeping at Sproule Street for the last couple of weeks, he apparently had kept on the lease of Rome Street.

31. The permanent residency application was made on the basis of his de facto relationship with Ms Kim. In response to the question: "when and where did you and your partner first meet", he replied: "we met at the church on 85". The box requiring details of the addresses at which the partners had lived was completed accurately, as to addresses. But no dates were given. The applicant ticked the box which denied that the de facto marriage was contrived to enable him to obtain permanent residence. The section designed for completion by the partner was left incomplete. Notwithstanding this omission, the application was granted four days later.

32. At about the time that the applicant was granted the right of permanent residence, he decided to travel to Korea with Ms Lee to resolve his relationship with her. His evidence was that, when he left Australia, he had no intention of marrying Ms Lee; but he thought they should both discuss the position with both sets of parents. This is apparently what he told Ms Kim. She was unhappy about his decision to go to Korea. There was another quarrel. On 17 January, the applicant left Sproule Street. On 23 January, he travelled to Korea with Ms Lee. When they arrived at Seoul, according to the applicant, he learned that a church had been booked for a wedding four days later. Both sets of parents wished the applicant and Ms Lee to marry. They did so, the marriage taking place on 27 January. The applicant and Ms Lee subsequently returned to Australia where their baby was born on 30 August 1992.

33. In the meantime the applicant had come under notice of the Department. Apparently in anger about being supplanted, Ms Kim had approached the Department and suggested, in effect, that there was never a genuine de facto relationship between herself and the applicant. Mr Rivet was interviewed. On 1 June 1992 the applicant was arrested and taken into custody. Two days later the Minister's delegate determined that he was an illegal entrant. On 9 June 1992 the applicant was released from custody subject to certain conditions. On 16 June this proceeding was commenced.

The legal issues
34. The original Application merely sought review of the Minister's decision that the applicant was an illegal entrant. However, the applicant's advisers realised that it was not enough to impugn the decision. If the requisite facts were found, the Act would operate regardless of the appropriateness of the decision-making process. Accordingly, they amended the Application and the case has been conducted on the basis that the Court will determine for itself, on the evidence, whether the conduct of the applicant was such as to constitute him an illegal entrant.

35. Counsel for the Minister relies on several matters in support of his contention that the applicant is a person falling within s.20(2) of the Migration Act. One contention is based on a statement made by the applicant during the course of an interview with a Departmental officer on 3 June 1992. The officer put to the applicant the suggestion that he "arranged" the marriage between Ms Kim and Mr Rivet "for the purpose of her securing permanent residence". The applicant replied: "I do not know how my de facto wife got her residence because when I came to Australia I was by myself and I met my de facto wife and we started living together". Part of this answer was true, of course, but the applicant admitted under cross examination that he did know how Ms Kim got her permanent residence. He sought to excuse his answer by referring to the way he was being treated at the time of the interview and the stress this caused him.

36. Whatever the reason for his answer, it was wrong for the applicant to state that he did not know how Ms Kim got her permanent residence. He knew that she applied on the basis of her marriage to Mr Rivet. He had signed a statutory declaration as to her relationship with Mr Rivet. But the applicant's false response on 3 June 1992 does not take the applicant into s.20(2). That subsection applies to a non- citizen who has entered Australia, and to whom an entry permit has been granted, where a false statement is made "in respect of the grant of that entry permit". The false statement must relate to the person's own entry permit; it is not enough that it be a false statement in connection with someone else's permit.

37. Turning to the applicant's own permits, counsel relies on three matters. The first two arise out of the EETEP application, the third out of the application for permanent residence.

38. The last matter may be disposed of immediately. During the course of his cross examination of the applicant, counsel for the Minister drew his attention to the fact that he had failed to tick either the "no" box or "yes" box in answer to the question: "Do you and your partner intend to maintain a lasting marriage/de facto marriage?". He then asked the applicant whether he had intended, at that time, to maintain a lasting relationship with Ms Kim. The applicant asserted that he had. Notwithstanding this answer, counsel submits that I should find that the applicant did not have such an intention at that time (10 January 1992) and hold that the submission of his application, in that form, constituted the making of a "statement that was false or misleading in a material particular". He refers to Steinberg v Commissioner of Taxation [1975] HCA 63; (1975) 134 CLR 640 at 694 wherein Gibbs J commented upon the inference that may sometimes be drawn from the fact that a witness has told a false story; but I must say that I do not see much relationship between what was there under discussion and the present case.

39. There may be circumstances under which the submission of an application in incomplete form will constitute the making of a false or misleading statement. Everything would depend upon the circumstances of the case. Compare the decisions concerning the significance of silence in connection with misleading conduct under s.52 of the Trade Practices Act 1974: Rhone-Poulenc Agrochimie S.A. v Ulm Chemical Services Pty Ltd (1986) 12 FCR 477; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40; (1988) 79 ALR 83; Winterton Constructions Pty Limited v Hambros Australia Limited (Hill J, 30 November 1992, not yet reported.) It is not necessary to consider whether this is such a case. I am not satisfied that, on 10 January 1992, the applicant lacked an intention to maintain a lasting de facto marriage relationship with Ms Kim. He said in evidence that, at that time, "I intended to stay with Rosemary". He was asked when he decided not to stay with her. He answered: "Before I got married", and went on to explain that he was referring to the day of marriage itself. The applicant gave evidence of the pressure he encountered upon his return to Seoul. I accept this evidence. I think that the applicant had a strong attachment to Ms Kim and would rather have stayed with her. But he was placed under enormous pressure and yielded to it; I think at the last minute. On 10 January the applicant was in a quandary. He may have felt confused and uncertain about his future. I think he is fundamentally a moral person. He probably felt guilt at the situation he had created and some sense of obligation towards Ms Lee. But his behaviour over the previous couple of weeks demonstrates that he preferred to be with Ms Kim. A person may, of course, intend to maintain a lasting relationship notwithstanding present difficulties and future uncertainties.

40. Turning to the EETEP application, counsel for the Minister relies on three misstatements, as they undoubtedly are. The first of them is the date of meeting. The applicant gave this date as 25 December 1987. The correct date was about Christmas 1985. The misstatement was apparently deliberate; it was repeated elsewhere in the form. I gather from his evidence that the applicant believed that the Department considered it necessary for a person depending on a de facto marriage only to demonstrate a two-year relationship. Accordingly, he did not bother to go back to the beginning but took the Christmas which was slightly more than two years before the application. Consistently with that selection, he gave the date of commencement of co-habitation variously as December 1987 and January 1988. The true date was, of course, January or February 1986.

41. Counsel for the applicant puts two submissions in response to the Minister's reliance on these misstatements. In the first place, she points out that the application for permanent residence gave the meeting date as 1985. So, she argues, any misapprehension was corrected before permanent residence was granted. But this circumstance furnishes no answer to the claim that the EETEP was procured by a misstatement; that permit issued before the application for permanent residence was lodged. Besides, the application for permanent residence contained no information about dates of co-habitation. The statement that co-habitation commenced in December 1987 or January 1988 was never corrected.

42. Counsel's other argument is that the misstatements were not "false or misleading in a material particular". To have correctly stated the dates, she argues, would have been only to strengthen the EETEP application. The true dates would have indicated a longer relationship than those stated; thus fortifying the conclusion that this was a genuine and lasting de facto marriage.

43. In Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348 a Full Court of this Court considered the meaning of the words "false or misleading in a material particular" appearing in s.20(1) of the Act. At 352 the Court pointed out that the phrase "false in a material particular" appears in many statutes and commented that the term "material" requires no more and no less than that the false particular "be of moment or of significance, not merely trivial or inconsequential". Their Honours went on:

"Section 20(1) does not apply to statements that are merely false or
misleading; there is the added requirement that the statement must be
false or misleading in a material particular. In the context of
s.20(1), a statement will be false or misleading in a material
particular if it is relevant to the purpose for which it is made: ...
A statement will be relevant to that purpose if it may - not only if it
must or if it will - be taken into account in making a decision under
the Act as to the grant of the visa or entry permit in respect of which
the statement is made."

44. Applying this test, I think it impossible to say that a misstatement, to the extent of two years, about the date of commencement of co-habitation is not "false or misleading in a material particular". The task of determining whether a relationship between two people is properly to be regarded as a "de facto marriage" is a particularly difficult one. It involves the making of a judgment about a matter of considerable importance to the affected persons that depends upon the circumstances of the particular case. Those circumstances will often include matters of a personal nature about which people are usually reticent. Moreover, a question of degree is involved. Every marriage is different. No two de facto relationships follow the same pattern. It would be wrong to make a judgment on this complex issue by reference to assumptions derived from what might be regarded as the typical case. All aspects of the relationship need to be considered before a conclusion is reached. If this is to to be done, it is essential that reliable information be placed before the decision-maker; especially upon such objective and basic subjects as the commencement and duration of co-habitation. I do not think it matters whether disclosure of the true facts would have helped or hindered the application. Once it be accepted that the date of commencement of co-habitation is a matter that may properly be taken into account in determining whether a particular relationship is a genuine de facto marriage, a false statement about that matter (other than a merely trivial or inconsequential error) must be regarded as "false or misleading in a material particular". A two year misstatement of the date of commencement of co-habitation cannot be regarded as a trivial or inconsequential error.

45. There is one other aspect of the answer that requires mention. In response to the request for information as to the addresses "at which you and your partner have lived together and how long you have stayed together at those addresses" the applicant listed 1043 Canterbury Road, Lakemba with the dates "from 12/87 to 4/89". The closing date is almost certainly wrong, but I do not think this much matters. The answer correctly indicated that co-habitation at Juno Parade immediately followed that at Canterbury Road. But the answer in relation to Canterbury Road was only correct if they had "lived together" during the whole of the identified period. It is true that the applicant and Ms Kim both regarded the Canterbury Road premises as their place of residence throughout the relevant period. But, in their context, I think the words "lived together" meant more than residing in the same premises. The question was one of a series of questions designed to elicit information about the extent and nature of the partners' relationship. In that context, I think the words "lived together" were intended to mean - and would normally be understood to mean - "lived together in a husband-wife relationship". This does not necessarily imply a significant sexual relationship. But I think it does imply that, at the relevant time, each partner had some dependency on the other and regarded the other as being his or her primary domestic partner. It misrepresents the position to say that Ms Kim and the applicant "lived together", in this sense, during the period immediately following the marriage of Ms Kim to Mr Rivet. According to the evidence of both the applicant and Ms Kim, there was little contact, and no sexual relationship, between the two of them during this period. By contrast Ms Kim spent a lot of time with Mr Rivet. She not only worked with him; according to her, she also had a sexual relationship with him. I thought Ms Kim an honest witness and I accept her evidence on this point. In doing so, I do not overlook the fact that Mr Rivet gave evidence to the contrary. But I am unable to place reliance on any aspect of Mr Rivet's evidence. Although he was sober when he gave evidence, it was obvious that alcoholism has seriously affected his memory and intelligence.

46. If I am right in thinking it was incorrect for the applicant to state that he "lived with" Ms Kim during the period immediately following her marriage, the materiality of the misstatement can hardly be disputed. If the applicant had disclosed the true position between himself and Ms Kim during 1988, he might still have been successful in asserting that there was a genuine de facto relationship in April 1990; as I think there was. But the picture that would have been conveyed by that application would have been very different to that actually disclosed. It would, at least, have revealed matters requiring investigation.

47. My conclusion is that the information given by the applicant in relation to co-habitation was "false or misleading in a material particular". It follows that s.20(2) applies to him, with the result that he is an illegal entrant pursuant to s.14(2). It makes no difference to my conclusion that, since the grant of the EETEP, the applicant has received a permanent residence permit; although this, no doubt, is a matter the Secretary could take into account, along with any other mitigating factor, if the applicant chose to make an application to him under s.20(5) of the Act for a properly endorsed valid entry permit. Section 14(2) provides that a person falling within s.20(2) is an illegal entrant at any time when he or she remains in Australia, is not a citizen and does not hold a "properly endorsed" valid entry permit or entry visa. That is the applicant's current position.

48. The Application will be dismissed. The applicant must pay the respondent's costs.