Cacha, E.R.V. v Minister of Immigration & Ethnic Affairs [1988] FCA 371

Federal Court of Australia|1988-07-15|Before: Neaves J

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 1067 of 1988 ) )

AND: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS

On il July 1988 I dismissed, with costs, an application by Eric Rabanes Cacha ("the applicant") for an order staying the operation of a deportation order made against him on 27 June 1988 pending the hearing and determination of an

Review) Act 1977 (Cth) ("the Judicial Review Act"). That application was for an order of review in respect of decisions made on that date under the Migration Act 1958 (Cth) ("the Migration Act") refusing the applicant a temporary entry permit, refusing him permanent resident status and ordering his deportation. I then stated that I would publish reasons in

writing for the order so made. What follows are those reasons.

The ground on which the applicant proposed to rely in support of the substantive application is that set out in s.5(1)(a) of the Judicial Review Act, namely that a breach of the rules of natural justice occurred in connection with the making of the decisions. Two particular matters were foreshadowed. It was said that at the substantive hearing it would be submitted that the decision-maker based his decisions to refuse permanent resident status and to order deportation upon an inference adverse to the applicant concerning the latter's method of entry into Australia, being an inference that he entered Australia upon production of a passport that was obtained in the Philippines by false representation, without having given to the applicant an adequate opportunity to be heard on that question. It was further said that a denial of natural justice occurred by reason of the failure of the decision-maker to furnish to the applicant, as requested, a

On the hearing of the application, the Court had before it the affidavit of Elmerito Cacha, the applicant's father, sworn 6 July 1988 and the oral evidence of the applicant and of James Williams, an officer of the Department of Immigration, Local Government and Ethnic Affairs ("the

The applicant is a single man, 19 years of age. He was born in the Philippines on 28 October 1968. He is a citizen of that country. He arrived in Australia with his

mother, Elena Cacha, on 9 March 1987. He presented a

Philippines' passport endorsed with an Australian visitor visa. The passport was in the name Erickson Torres. Upon his arrival he was granted a temporary entry permit permitting his stay in Australia for 6 months. No further entry permit was granted to him so that, unless he was already a prohibited non-citizen by virtue of s.16 of the Migration Act, he became such upon the expiration of the temporary entry permit granted to him on 9 March 1987. I did not find it necessary to consider the question whether, by virtue of the operation of s.16, the applicant was a prohibited non-citizen during the period when

The applicant's father married the applicant's mother in the Phillipines in 1963. They separated in 1967, shortly before the applicant's birth. The applicant's father entered Australia on 26 March 1982 as a tourist. He overstayed the period for which he had been granted a temporary entry permit. 'de subsequently entered into a de facto relationship with one Pauline Barton. On 13 May 1987 he was granted permanent resident status. He apparently paid the rent of a flat at an address in Parramatta where the applicant and his mother lived

On 3 May 1987 the applicant was detained as being, or on suspicion of being, a prohibited non-citizen. He was interviewed by an officer of the Department on the following day. The applicant said that his family name was "Torres" and his given name "Ericson". He also said that he had used the

Mame "Eric Rabanes", the reason given for its use being stated

as "Not to be caught by Immigration". He further said that he was living with his mother at an address in Parramatta and that he was supporting her financially. Asked the whereabouts of his father, he said: "He 1s already dead". He made no mention

On 23 May 1988, an order was made for the applicant's deportation. After that order had been signed, a copy of an application that the applicant be granted permanent resident status was received in the Department from the applicant's solicitor. It was asserted that the application had been sent to the Department at an earlier date but nothing turned on that for the purpose of considering the application before the Court. That application was in the name ""Cacha", as was the applicant's birth certificate. The deportation order made on 23 May .1988 was subsequently revoked and the matter

On the same day, 23 May 1988, Mr Williams had a telephone conversation with the applicant. Part of what was then said, as recorded contemporaneously by Mr Williams, was as

"Q. Why did you say in your interview on 4 May that your father is dead?

A. When I said it I was confused. I didn't know if I should tell the truth.

Q. In your interview you made no mention of the name Cacha, but I notice you are using this name in your application. Why?

Because I didn't know what to do. Whether to tell the truth or not."

If your birth certificate is in the name Cacha, why is your passport in the name Torres?

Why did you want to come to Australia in a false name?

I have no idea. My relatives told me to use a false name."

copy of Mr Williams' notes of the conversations with the

applicant on 23 and 24 May 1988 was not furnished to the

By letter dated 24 May 1988, Mr Williams, on behalf

furnish by the close of business on 27 May 1988 evidence as to the nature of the applicant's dependency upon his father. In response to this request a statutory declaration made by

In an interview with an officer of the Department on 30 May 1988, the applicant's father, speaking of the

"when he come here he changed his name to Eric Rabanes. His real name is Erickson Cacha. My wife was angry with me when we separated so she forced him to use Erickson Torres. I don't know where 'Torres' comes from."

Also in evidence was a submission dated 17 June 1988 upon which the decisions were taken to refuse the applicant a temporary entry permit and permanent resident status and to order his deportation. The submission had a number of attachments. Most, but not all, of the attachments were in evidence. It did not appear from the material before the Court to what extent the decision-maker had accepted what was said in the submission but, for the purpose of considering the application then before the Court, I assumed that he relied upon the whole of that

The submission discussed the applicant's eligibility for the grant of permanent resident status pursuant to pars (b) and (e) of sub-s.6A(1) of the Migration

Act and whether it was appropriate to grant him a further

temporary entry permit. The submission contained the

"24. Your attention is also drawn to the fact that Mr Cacha assumed a false identity un order to enter Australia and a further alias to avoid detection subsequent to arrival. He was aware of the conditions of his visa yet commenced employment the day after he arrived in Australia. It is submitted that those factors in favour of the grant of resident status are outweighed by those against and it is recommended that you decide accordingly. Additionally, if you decide to reject the application for resident status, it is open to you to conclude that the grant of permission to work 1s inappropriate and you may decide to refuse such a grant.

In a subsequent paragraph (par.27) there was a reference to the applicant having become a prohibited non-citizen "by entering Australia on a passport that he knew to be ina

The deportation order dated 27 June 1988 recited that the applicant had entered Australia on 9 March 1987 and

"is deemed to be a prohibited non-citizen by virtue of sub-section 16(1) of the Migration Act 1958, in that he had not, at the time of that entry into Australia, produced to an officer, in respect of that entry, a passport that was obtained by false representation, and he 1s not the holder of an entry permit of the kind referred to in that sub-section."

A request for a statement under s.13 of the Judicial Review Act was made on behalf of the applicant by letter dated 1 July 1988. The statement had not been furnished when the application for a stay of the operation

In his oral evidence, the applicant agreed that his correct legal name was Erickson Cacha and that he entered Australia under the name Erickson Torres. He explained that Torres was the maiden name of his maternal grandmother and that Rabanes was the family name of his maternal grandfather. He said that his mother wanted him to use the family name "Torres" because his father had abandoned them and that he had used that name in the Philippines. He confirmed in cross-examination answers which he had given in the course of the interview with an officer of the Department on 4 May 1988 and answers given to Mr Williams during the telephone conversations on 23 and 24 May 1988. He answered affirmatively a question put to him in cross - examination that his mother made false representations

On the material before the Court I was not satisfied that there had been shown to be a sufficiently agruable question to be tried that a breach of the rules of natural justice occurred in connection with the making of the decisions the subject of the substantive application. On the evidence, the applicant clearly had had an

opportunity to explain to Mr Williams the circumstances in

which his passport came to be issued in the name "Erickson Torres". I was unable to accept the submission put on behalf of the applicant that a denial of natural justice occurred when Mr Williams did not volunteer to the applicant or his solicitor a copy of his notes of the telephone conversations on 23 and 24 May 1988. Nor was I able to accept the submission that the decision-maker was bound, before concluding that the applicant's passport had been obtained by false representation, to inform the applicant or his solicitor of his intention to draw that conclusion from the material which the applicant had put before him. To have accepted that submission would have run counter to what

was said in Sinnathamby v. Minister for Immigration and

Ethnic Affairs (1986) 66 A.L.R. 502 at pp.506, 512-3.

I was also of opinion that the circumstance that a statement pursuant to s.13 of the Judicial Review Act had not been furnished prior to the matter coming before the Court provided no basis for the submission that, in reaching the decisions in question, there had been a breach of the rules of natural justice. Nor, in my view, did the absence of such a statement provide any basis for granting a stay of the operation of the deportation order pending such a statement being furnished: see Capello v. Minister for

Immigration and Ethnic Affairs (1980) 2 A.L.D. 1014;

Canberra Labor Club Ltd v. Hodgman (1982) 47 A.L.R. 781;

Gonaseelan v. Minister for Immigration and Ethnic Affairs

(unreported - Morling J. - 22 February 1985); Alpaslan v.

Minister for Immigration and Ethnic Affairs (unreported - Keely J. - - 23 December 1985).

In exercising the Court's discretion in the matter, I also had regard to the circumstance that, having regard to the whole of the material before the decision-maker, 1t was unlikely to be shown that the circumstances of the applicant's entry into Australia were regarded by him as significant in view of the fact that, on any view of the matter, the applicant had become a prohibited non-citizen by overstaying the period for which a temporary entry permit

I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

Ms C. Ceramidas of the Australian Government Solicitor's Office

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Legislation Cited (2)