Rith Rath Singh v Minister for Immigration & Multicultural Affairs [1998] FCA 92 (20 February 1998)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION LAW - review of decision of Immigration Review Tribunal affirming decision of respondent to cancel visa of applicant - whether Tribunal erred in its finding that the marriage was contrived - whether the Tribunal erred in finding that the applicant made false and misleading statements in his visa application.

Migration Act 1958 (Cth), ss 20, 107-109, 115, 476

Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Full Federal Court, 8 May 1990, unreported), applied

RITH RATH SINGH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 297 of 1997

BRANSON J

SYDNEY

20 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 297 of 1997

BETWEEN:	RITH RATH SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE(S):	BRANSON J
DATE OF ORDER:	20 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 297 of 1997

BETWEEN:	RITH RATH SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	BRANSON J
DATE:	20 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a "judicially reviewable decision" within the meaning of s 475 of the Act. The relevant decision is that of the Immigration Review Tribunal ("the IRT") whereby the IRT affirmed a decision of a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") to cancel a transitional (permanent) visa held by the applicant. So far as the application in this matter purports to seek direct review of the decision of the delegate of the Minister, it is invalid: such decision is not itself a judicially reviewable decision (see ss 475(2) and 476 of the Act).

STATUTORY BACKGROUND

Subdivision C of Division 3 of Part 2 of the Act, which is comprised of ss 97-115, is headed "Visas based on incorrect information may be cancelled." Sections 101-103 provide that non-citizens must fill in application forms and passenger cards in such a way as to answer all questions correctly and must not place reliance on documents upon which they are not lawfully entitled to place reliance. Sections 104-105 require a non-citizen to advise of material changes in his or her circumstances and of answers which he or she becomes aware were incorrect when given.

Sections 107-109 provide as follows:

"107(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104, or 105 or subsection (2) in response to a notice under this section, the Minister may give the holder a notice:

(a) giving particulars of the possible non-compliance; and

(b) stating that, within 14 days, the holder may give the Minister a written response to the notice that:

(i) if the holder disputes that there was non-compliance:

(A) shows that there was compliance; and

(B) in case the Minister decides under section 108 that, in spite of the statement under sub-paragraph (A), there was non-compliance - shows cause why the visa should not be cancelled; or

(ii) if the holder accepts that there was non-compliance:

(A) gives reasons for the non-compliance; and

(B) shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:

(i) if the holder gives the Minister oral or written notice, within the 14 days mentioned in paragraph (b), that he or she will not give a written response - when that notice is given; or

(ii) if the holder give the Minister a written response within those 14 days - when that response is given; or

(iii) in any other case - at the end of those 14 days; and

(d) setting out the effect of sections 108, 109, 111 and 112; and

(e) informing the holder that the holder's obligations under section 104 or 105 are not affected by the notice under this section.

(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108 The Minister is to:

(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b) decide whether there was non-compliance by the visa holder in the way described in the notice.

109(1) The Minister, after:

(a) deciding under section 108 that there was non-compliance by the holder of a visa; and

(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c) having regard to any prescribed circumstances;

may cancel the visa.

(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled."

Section 115 of the Act is concerned with the application of Subdivision C of Division 3 of Part 2 of the Act. For present purposes, the relevant subsection of s 115 is subsection (3) which is in the following terms:

"This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:

(a) this Subdivision had applied to:

(i) the application for the visa; and

(ii) passenger cards filled in before that date; and

(b) the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and

(c) for the purposes of sections 107 to 114, non-compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder."

Section 20 of the Act as in force immediately before 1 September 1994, so far as is here relevant, provided as follows:

"(1) ...

(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) ...

(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 ..." .

The only grounds upon which an application may be made for review of a judicially reviewable decision are listed in s 476 of the Act. The grounds upon which the application purports to be made are as follows:

"1. The Respondent did not take into proper consideration the evidence and facts presented before it as the decision involved an error of law under section 476(1)(d) of the Migration Act 1958.

PARTICULARS

1.1 The Second respondent relied on statements made by Ms Maria Joy Tomasi statements that were not tested by the applicant and were not made available to the applicant to respond to.

2. The respondent involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found: Section 476(1)(e) Migration Act 1958.

PARTICULARS

2.1 The second respondent rejected findings of the Magistrate at St. James Local Court and substituted his views on whether to believe evidence stated by the applicant at the said court.

3. The Respondent did not take into proper consideration the merits of the case.

To the extent (if any) that ground 3 seeks a review on the merits of the decision of the IRT, it goes beyond the grounds provided for by s 476 of the Act. Section 476(1)(d) of the Act lists the ground "that the decision was an improper exercise of the power conferred by the Act or the regulations". The ambit of this ground is limited by subsections 476(2) and (3) which provide as follows:

"(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)."

Section 476(1)(e) of the Act lists the ground "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."

BACKGROUND FACTS

This outline of facts is taken largely from the statement of decision and reasons for decision of the IRT which has not, in this respect, been challenged.

The applicant was born in Fiji on 2 November 1968 and arrived in Australia as the holder of a visitor's visa on 26 April 1989. A temporary entry permit held by him expired on 26 May 1989.

In January 1990, the applicant lodged an application for refugee status which was refused on 27 September 1991. This refusal was affirmed on review on 11 June 1992.

In the meantime, on 23 July 1990, the applicant underwent a ceremony of marriage with Marina Joy Tomasi ("Ms Tomasi"). Ms Tomasi is also known as Marina Langlands. On 8 August 1990, the applicant lodged an application for an extended eligibility temporary entry permit (class 820), based upon his having become the spouse of Ms Tomasi.

On 1 December 1992, the applicant lodged an application for a December 1989 entry permit in the category of spouse, again based upon his relationship with Ms Tomasi. A temporary entry permit and a permanent entry permit (after entry) was issued to the applicant on 15 March 1994.

In his form of application for a December 1989 entry permit, the applicant answered various questions either by ticking "yes" boxes or "no" boxes or by inserting certain information as required by the form. Question 39 on the form asked: "When and where did you and your partner first meet?" The answer given by the applicant was that "I met Marina Joy Tomasi in February 1990 in a nightclub "Alexandria" in Liverpool, NSW." Question 40 asked: "Give details of ALL the addresses at which you and your partner have lived together and how long you stayed together at those addresses?" The applicant inserted certain dates and addresses that indicated that he and Ms Tomasi had lived together from July 1990 until the date of the application. Question 41B asked: "Where and when did you start living in a defacto marriage?" The applicant's inserted answer was: "We agreed to live together after our wedding 23/7/90 ... ." In answer to question 43, "Do you and your partner intend to maintain a lasting marriage/defacto marriage?", the applicant ticked the "yes" box. In answer to question 46, "Was your marriage/defacto marriage contrived to enable you to obtain permanent residence in Australia?", the applicant ticked the "no" box.

On 17 May 1995, the applicant was interviewed by an officer of the Department of Immigration and Ethnic Affairs. The interviewer put to him allegations that his application for his entry permit contained false information in that his marriage to Ms Tomasi had been contrived for the purpose of his being able to remain in Australia. Departmental officers had obtained statements from Ms Tomasi and her mother ("Ms Langlands") to that effect, both dated 20 April 1995. Subsequently, Departmental officers obtained additional statements relevant to the applicant's relationship with Ms Tomasi and certificates issued by the Road Traffic Authority disclosing residential addresses at different times of the applicant and of Ms Tomasi respectively.

The reasons of the IRT disclose that, on 23 October 1995, a notice under s 107 of the Act was issued to the applicant. This notice referred to certain statements made by the applicant in his application for a December 1989 entry permit as follows:

"I believe that section 20(2)(a)(b)(ii) of the Migration Act 1958, as in operation before 1/9/94 ... applied to you because on 01/12/92 you completed an Application to remain Permanently in Australia under Concessions for Persons illegally in Australia on the basis of your marriage to Marina Joy TOMASI dated 23/07/90.

In that application at Section A you made the following statements:

Q39 When and where did you and your partner first met? [sic]

a: I met Marina Joy Tomasi in February 1990 in a night club "Alexandria" in Liverpool NSW.

Q40 Give all details of ALL the addresses at which you and your partner have lived together and how long you stayed together at those addresses?

a: 3/13 Speed St Liverpool 7/90 - 8/90

3/28 Charles Street Liverpool 8/90 - 12/91

11/90 Copeland St Liverpool 12/91 to present

Q41 Where and when did you start living in a de facto marriage?

a: We agreed to live together after our wedding 23/7/90 at 3/13 Speed St Liverpool.

Q43 Do you and your partner intend to maintain a lasting marriage/de facto marriage?

a: Ticked the "Yes" box.

Q46 Was your marriage/de facto marriage contrived to enable you to obtain permanent residence in Australia:

a: Ticked the "No" box.

Q47 Will you inform the Department if your marriage/de facto marriage ends in divorce, separation or death before this application is decided?

a: Ticked the "Yes" box.

On 21/2/94 the Department wrote to you requesting two Statutory Declarations and your valid passport. You responded by forwarding a statutory declaration from (1) Joyce Langlands, (2) Marina your wife and yourself which all contained false and misleading statements in a material particular these been [sic];

1. Statutory Declaration supplied by Joyce Langlands:

Part A I have known Rith Raj Singh for 4 years

Part C I say that I believe the relation of Rith Raj, my son-in-law, and my daughter is genuine as I have constant contact with them and have observed their love, and concern for each other.

Part D I pray that their application be granted, as my daughter is affected by the uncertainty and wants to start a family.

2. Statutory Declaration supplied by Marina Joy Singh:

Part B I say we continue in a bona fide marriage relationship, I further say our marriage is not contrived to get Raj a visa, or to defeat the provisions of the Immigration Act.

Part C I continue to sponsor him, and endorse his application.

3. Statutory Declaration supplied by yourself:

Part B I say we are still in a bona fide marriage with my wife and I say this application is genuine. I love and live with Marina. My marriage has not been contrived for purposes of getting a visa or circumventing the Immigration Act.

I believe your marriage was contrived for Immigration purposes and that you made several false or misleading statements in a material particular in connection with your application."

By letter dated 24 November 1995, the applicant was advised that his visa had been cancelled. The applicant applied to the IRT for review of the decision to cancel his visa. The hearing of the application for review was adjourned to await the outcome of certain criminal proceedings against the applicant in which he was charged with three offences pursuant to s 81(1)(b) of the Act as it then was. Section 81(1)(b) at that time provided as follows:

"(1) A person shall not, in connexion with the entry, or proposed entry, of a non-citizen (including that person himself or herself) into Australia or with an application for an entry permit or a further entry permit permitting a non-citizen (including that person himself or herself) to remain in Australia:

...

(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; ... ".

By letter dated 15 July 1996, the applicant's solicitor advised the IRT that the criminal proceedings against his client had concluded on 12 July 1996 and that his client had been found guilty. Ms Tomasi and Ms Langlands in a separate proceeding each pleaded guilty in relation to providing false information in support of applicant's application for his December 1989 entry permit.

The IRT had before it audio tapes of the proceedings before the magistrate of the criminal proceedings against the applicant. Ms Tomasi gave evidence against the applicant in the criminal proceedings against him. She said that in July 1990, she had been asked by a friend whether she would do a "false marriage" for money, and that later that month she with her friend and two other women travelled to Sydney where they met a man named "Billy". They were introduced to various men, including the applicant. Ms Tomasi said that she participated in a wedding ceremony with the applicant for which she was paid $800 by Billy. Photographs were taken of the wedding.

Ms Tomasi further gave evidence that about a week later, she again went to Sydney where she met Billy and drove to the applicant's flat where she completed a number of forms on Billy's instructions and further photographs were taken. She said that on the same day, she and the applicant went to a real estate agency, where they signed a lease agreement, and to a justice of the peace who witnessed their signatures on an application form dated 3 August 1990 whereby the applicant sought an Extended Eligibility Temporary Entry Permit.

Ms Tomasi's evidence was that she had no contact with the applicant from that time for approximately two years when Ms Langlands told her about an advertisement in a newspaper by which a solicitor acting on the applicant's behalf sought to contact her. Subsequently, Ms Tomasi and Ms Langlands met the applicant and Ms Tomasi signed some further documents relating to the applicant's application for permanent residence. Another joint bank account was opened in the names of Ms Tomasi and the applicant.

Ms Tomasi gave evidence that she had never gone out socially with the applicant, never discussed the future with him, never lived with him and never gone on holidays with him. Ms Langlands gave evidence broadly consistent with that of Ms Tomasi.

Before the magistrate on his criminal hearing, the applicant conceded that he had not met Ms Tomasi in July 1989; he said that he had met her at the "Alexandria" nightclub in February 1990. He maintained, however, that their marriage was a true marriage and that, in effect, the marriage had lasted until some time during 1992 when they split up because Ms Tomasi was seeing another man. When Ms Tomasi refused to see him at this time, he decided to get a divorce and return to Fiji. To this end his solicitor placed an advertisement in the newspaper which led to his re-establishing contact with Ms Tomasi and Ms Langlands, and he and Ms Tomasi subsequently lived together at Wollongong until Ms Tomasi got another boyfriend.

Certain witnesses gave evidence before the magistrate that they had seen the applicant and Ms Tomasi together and believed that they were parties to a genuine marriage.

The applicant gave oral evidence to the IRT to the effect that his marriage to Ms Tomasi had

been genuine and that they had lived together until March 1994. He gave a dispute between him and Ms Tomasi arising out of their separation as to property as being the reason why she might lie about the nature of their relationship. He suggested that Ms Tomasi gave false residential addresses to the Road Traffic Authority for purposes related to social security.

REASONS OF THE IRT

The IRT noted that one was entitled to doubt Ms Tomasi's credibility for a number of reasons, but that her evidence was corroborated in a number of significant respects. The IRT also noted that, in some respects, the applicant's version of events lacked credibility.

The IRT concluded that it was satisfied "to a high degree of satisfaction" on the evidence before it that the marriage between the applicant and Ms Tomasi "had been contrived". It also found that each of the answers referred to above given by the applicant in his application for the December 1989 entry permit was false.

CONSIDERATION

The applicant does not challenge the finding of the IRT that Subdivision C of Division 3 of Part 2 of the Act has application to the transitional (permanent) visa held by the applicant by reason of the grant to him of a December 1989 entry permit. Such entry permit, from 1 September 1994, became a transitional (permanent) visa (see reg 6 of the Migration Reform (Transitional Provisions) Regulations).

The applicant identifies the central issue on this review as being whether the marriage between the applicant and Ms Tomasi was contrived in the sense that its sole purpose was to enable the applicant to remain in Australia. The applicant points out that parties to a marriage may have different intentions, motives and purposes and that Ms Tomasi's purposes in going through a ceremony of marriage with the applicant are not to be equated with the applicant's purposes in going through the same ceremony. It is contended by the applicant that the IRT erred in attributing the intentions, motives and purposes of Ms Tomasi and Ms Langlands to the applicant.

In Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Full Federal Court, 8 May 1990, unreported), the Full Court said at 10-11:

"It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both marriage parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others."

It may be a matter of regret that forms produced for the purposes of the Act invite an answer to a question in terms of whether a marriage or defacto marriage was "contrived to enable you to obtain permanent residence in Australia" rather than in terms of the test identified by the Full Court in Dhillon's Case. Nonetheless, in this case, the IRT accepted Ms Tomasi's version of the nature and history of her relationship with the applicant. Its finding in this regard cannot be successfully challenged before this Court under s 476 of the Act. There was plainly evidence before the IRT upon which it could reach this decision. Acceptance of Ms Tomasi's version of events necessarily involved rejection of the applicant's evidence as to his relationship with the applicant. Acceptance of Ms Tomasi's version of events and rejection of the applicant's evidence as to his relationship with Ms Tomasi led necessarily to the IRT's findings that the applicant made false statements in his application for the December 1989 entry permit.

There is, in my view, no reason to conclude that the IRT rejected findings of the magistrate who heard the criminal proceedings against the applicant and substituted therefore its own views. Even if it had, that would not amount to a ground of review under s 476 of the Act.

It is not suggested on behalf of the applicant that if the IRT's relevant findings of fact must stand, which in my view they must, that the ultimate decision of the IRT is open to challenge.

The application will be dismissed.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:

Counsel for the Applicant:	Dr G Woods QC
Solicitor for the Applicant:	Johnston Vaughan
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 October 1997
Date of Judgment:	20 February 1998