JUDGMENT No. 16S 78S CATCHWORDS Administrative Law - Application to review decision of delegate of respondent Minister - natural justice - credibility of applicant questioned - whether nature of household an irrelevant consideration - importance of lack of knowledge of delegate of dependancies of applicant as a relevant consideration - grounds insufficient for review. Administrative Decisions (Judicial Review) Act 1977 Migration Ac No. G20 of 1988 BARBEL HERTA HUTCHESSON v. THE HONOURABLE CLYDE HOLDING MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS FORSTER, J. ADELAIDE 7TH APRIL 1988 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. G20 of 1988 wee GENERAL DIVISION BETWEEN: BARBEL HERTA HUTCHESSON Applicant - and - THE HONOURABLE CLYDE HOLDING MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Respondent MINUTE OF ORDER JUDGE MAKING ORDER : FORSTER J. WHERE MADE 3 ADELAIDE DATE OF ORDER : 7TH APRIL 1988 THE COURT ORDERS THAT: 1. The application for review be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY No. G20 of 1988 GENERAL DIVISION BETWEEN: BARBEL HERTA HUTCHESSON Applicant - and - THE HONOURABLE CLYDE HOLDING MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Respondent REASONS FOR JUDGMENT CORAM: FORSTER, J. : The applicant applied under the Administrative Decisions (Judicial Review) Act 1977 for a review of two decisions made in each case by a delegate of the respondent Minister. Both decisions were made on 19 February 1988. The first was a decision to order the deportation of the applicant and the second was to refuse her application for the grant of a resident entry permit which should perhaps logically be in the reverse order. At the end of the hearing I dismissed the application with costs and said that I would give reasons later which I now do. A number of grounds under s.5 of the Administrative Decisions (Judicial Review) Act were put in the application and amplified in the supporting particulars delivered. In the end three grounds only were persisted in and in the case of the second and third grounds two matters were put. 2. The grounds pursued and brief particulars are as follows: (i) The applicant was denied natural justice in that' the purpose for the applicant's visit to Australia stated in her "application to visit Australia" completed in Auckland contained information not supplied by her which was false and which was relied upon by the delegate without any opportunity being given to the applicant to contradict the false information. (ii) fhe delegate took into account irrelevant considerations in that he took into account the fact that the premises at which the applicant resides had been used as a brothel and that Leanne Steel one of the adult occupants of the house had pleaded guilty to keeping a brothel. (iii) The delegate failed to take into account relevant considerations in that he did not take into account that Irene Steel an elderly woman is significantly dependent upon the applicant for care comfort and assistance and that he did not take into account that Leanne Steel's children are significantly dependent upon the applicant for their care comfort and control and upbringing. It is necessary to give a brief background history so that the grounds may be fully understood. The applicant is a 31 year old German national. Prior to 1985 she had applied twice for visas to visit Australia, once 3. personally, once through an agent. Applications had also been made on her behalf in various European capitals other than Bonn. All applications were unsuccessful. Her last personal application was at the Australian Embassy at Bonn in 1985. This application was refused. In October 1985 she travelled by air to New Zealand where immediately on her arrival in Auckland she went to the Australian Consulate General and applied for a visa to visit Australia. She filled in part only of the application card in blue ink and the remainder of the card was filled in by a counter clerk of the Consulate in red ink. A visa was granted. On 2 November 1985 the applicant arrived in Adelaide. She was granted a temporary entry permit authorising a stay of six months. She lived in Murray Bridge for a time and on 4 April 1986 married one Hutchesson there. On 22 April 1986 the applicant lodged an application for resident status on the basis of her marriage. On 14 August 1986 she was granted an unconditional temporary entry permit valid until 14 November 1986. The marriage relationship broke down after six months and since November 1986 the applicant has been living at 38 Leader Street, Rosewater and has not seen her husband. In April 1987 the applicant's application for resident status was rejected. Also living in that house were and are an elderly widow, Irene Steel and her daughter, Leanne Steel and Leanne's two children aged eight and five. The applicant has become integrated into the Steel family at 38 Leader Street. She deposes to the fact that she calls Irene Steel "mother" and Leanne Steel's children are very affectionate and attached to her. 4. The applicant admitted that an escort agency had been run from the premises at 38 Leader Street until February 1987. Leanne Steel pleaded guilty to a charge of keeping a_ brothel. The time of this plea is not certain but it was said to be "recently" on 15 November 1987. The applicant's application for the grant of a permanent resident entry permit was based on her marriage to Hutchesson and was made pursuant to s.6A(1)(b) of the Migration Act 1958 as Hutchesson is an Australian citizen. The applicant's temporary entry permits had expired so that when the delegate refused the permanent resident entry permit she simply became a_ prohibited non-citizen liable to deportation under s.18 of the Migration Act. The following parts of the "application to visit Australia" filled out in Auckland on 29 October 1985 were written on the form by the applicant in blue ink. 1. Family name : Lau 2. Christian or given names : Barbel 5. Particulars of birth : 05/06/57 Hamburg, Germany 6. Sex : Female (cross placed in box) 10. Full postal address : 7820 Titisee Neustadt Kapellenweg 11. Passport details — number G3766433 12. Purpose of intended visit to Australia : Holiday (cross placed in box) : intended address : Marion Douglas 5253 Murray Bridge, Mannum Road 92. 17. Have you or has any member of your family included in this application Suffered from any dangerous contagious disease such as tuberculosis? Suffered from any mental illness? Used or been addicted to or trafficked in narcotics? Been convicted of a criminal offence in any country? Been deported or excluded from any country? (Each of these questions has two boxes opposite it, one marked "yes" and the other marked "no"). The applicant 5. placed a cross in each case in the box marked "no". The form was signed and dated near the foot by the applicant. The applicant swore in evidence that the following parts of the application were filled in by a counter clerk in red ink. 2. Christian or given name : "Herta" was added 4. Previous or alternative names : Lorenz 7. Marital status : box marked "divorced" ticked 8. Occupation : Waittress (sic.) 9. Present citizenship : German 11. Passport details - place of issue Titisee Neustadt date of issue - 24/1/85 valid until 24/71/90 12. Purpose of intended visit to Australia Box marked "visit relatives" : name address and relationship marked with a cross and the word "cousin" added with an arrow pointing to the name "Marion Douglas" just above 13. Length of stay - 3 weeks approx. 14. Proposed dates of departure for Australia : travel when visa issued 15. Have you or has anyone included in this application ever applied for a visa or travelled to Australia? Box marked "no" ticked. In evidence the applicant said that the counter clerk filled in 2, 4, 7, 9 and 11 from details in her passport. She also said that 8. "waittress" was the only entry in the form made by the clerk in accordance with an answer of hers to a question by the clerk. She swore that the additions to 12, 13, 14 and 15 were all filled in by the clerk with no reference to or question of her. Having watched and listened to the applicant under cross-examination and making all proper allowance for possible nervousness and a degree of unfamiliarity with English I find myself unable to believe the applicant's evidence as to the circumstances of the filling in of the application form. As is 6. mentioned later the applicant had tried a number of times to obtain a visitor's visa to enter Australia but had _ been unsuccessful. For the first time in Auckland the reason was given to visit relatives. My belief is that the applicant realising that her previous applications had not been strong enough added this as an extra matter deliberately. Amongst other things in his reasons for decision given under s.13 the delegate "had regard to the evidence that Mrs Hutchesson tried on a number of occasions in different countries to obtain a visitor visa and was eventually successful when she stated she was to visit Mrs Douglas, a "cousin" who in fact was a travelling companion several years earlier in Europe and who, according to the applicant, endeavoured to establish a lesbian relationship". I consider that the delegate has hit upon the reason for the filling in of the form in the way that it was filled in and I find myself quite unable to believe that a clerk in the Consulate in Auckland would for some totally unexplained reason fill in the form in this way. The applicant now complains that she never said Mrs Douglas was a cousin and that the information was wrongly included in the form by the counter clerk in Auckland. She says that in these circumstances natural justice demands that she be given an opportunity to deal with the allegation that she falsely claimed that Mrs Douglas was a cousin which allegation is itself false. If I could believe the applicant's evidence that the clerk for some obscure reason of her own inserted misleading and untrue information in the form without any assistance or urging 7. from the applicant then there might be something in the complaint of lack of procedural fairness but as I am satisfied that the applicant is lying about the filling in of the form and in fact gave the information contained in the form, apart from that originating from the passport, in response to questions from the counter clerk the natural justice point just does not arise. The next complaint is that the delegate took into account irrelevant considerations namely that the house at 38 Leader Street had been used as a brothel and that Leanne Steel had pleaded guilty to keeping a brothel. The delegate did not place much emphasis on these facts which had in substance been admitted by the applicant but rather mentioned them as part of the undoubted history of the premises where the applicant resided and still resides on terms of strong family bonds and considerable intimacy with the occupants. In any event it is my view that the nature of the household in which an applicant lives is a relevant matter for the delegate to take into account when considering whether or not the applicant should be permitted to become a member of Australian society. The final complaint which was argued was that relevant matters were not taken into account by the delegate namely the great dependency of Mrs Irene Steel upon the applicant and also the great dependency of the children of Leanne Steel upon' the applicant. The answer to this complaint is short and simple. The fact, if it be a fact, and the extent of these dependencies were revealed for the first time in affidavits sworn by the applicant and Leanne Steel on 24 March 1988 and filed on 25 March 8. 1988 five days before the hearing. The applicant never took the opportunity to refer to the dependencies during interviews with departmental officers which occurred from time to time and the last of which apparently occurred on 8 December 1987. The delegate did not take the dependencies into account principally, if not entirely, because he did not know about them and the reason he did not know about them was that the applicant had not seen fit to inform the department of then. In these circumstances the applicant's complaint lacks substance. For the above reasons I dismissed the applicant's application for review with costs when I heard it on 30 March 1988. I certify that this and the ¥ preceding pages are a true copy of the Reasons for Judgment of Mr Justice Forster. Associate: OIF Fea Dated: 7/4 /¥S5 oe Counsel for the applicant Mr M. David, Q.C. Solicitors for the applicant : P.N. Waye & Associates Counsel for the respondent : Mr J. O' Halloran Australian Government Solicitor Solicitors for the respondent 30 March 1988 Date of hearing