Comnercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd

Federal Court of Australia|1994-12-06|Before: Sackville J, French J

The applicant initially sought orders under the Administrative

Decisions (Judicial Review) Act 1977 (the "ADJR Act") to review

what was said to be the decision of the respondent, made on 21 April 1994, that the applicant was deemed to be an illegal entrant into Australia. In the course of the hearing the issues between the parties were refined. In the result, the applicant did not rely on the ADJR Act. Rather he sought declaratory and injunctive relief against the respondent, as an officer of the Commonwealth, pursuant to s.39B of the Judiciary Act 1903. Section 39B provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition, or an

injunction is sought against an officer of the Commonwealth.

In his amended application, the applicant seeks a declaration

-2- that he is not a person to whom s.20 of the Migration Act 1958 ("the Act") applies. Section 20 applies, inter alia, to persons who provide false statements or fabricate documentary evidence in connection with entry permits. The applicant also seeks an injunction to restrain the Minister from acting upon his determination, dated 21 April 1994, to cancel the applicant's permanent residency, and in particular to restrain him from deporting the applicant from Australia, until he determines the application according to law. In a case where injunctive relief is sought under s.39B, appropriate declaratory relief may be awarded under s.21 of the Federal Court of Australia Act 1976:

Dhillon v_ Minister for Immigration (1994) 48 FCR 107 (FCA/Full Court), at 127, per French J.

The applicant is a Malaysian citizen, born on 11 April 1969. His status is in question because the Minister's representative advised, by letter dated 21 April 1994, that he came within s.20(2)(b) of the Act. The sub~section applies (so it was said) because the applicant provided false statements and declarations and presented fabricated documentary evidence, in connection with an application made by him in December 1991 to remain permanently

in Australia. As will be seen, the statements said to be false were to the effect that the applicant had lived together, or had a de facto marriage, with Ms Lisa Lipman as from September 1990, at 85 Bronte Road, Bondi Junction. The letter stated that the applicant had become an illegal immigrant from 27 July 1993, the

date he was granted permission to remain in Australia. The

-3- letter also specified that this consequence flowed from s.14(2) of the Act. The letter went on to advise that, under s.35(2) of

the Act the applicant's entry permit had been cancelled.

Counsel appeared to agree upon the version of s.20 of the Act (insofar as relevant) that applied to the circumstances of the case. Section 20(2)(b) and the relevant definitions in s.20,

were not altered in any material respect from December 1989 until

the Migration Legislation Amendment Act 1994 took effect on 1 September 1994. It was this version that was accepted by the

"20(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

(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 ina Material particular...

(12) A reference in this section to a person making, or causing to be made, a statement that was false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular .

"bogus document", in relation to a person, means an entry permit, certificate, passport, visa, identification card or any other document that:

Counsel did not specifically direct attention to the precise form

of 8.14 of the Act that was applicable to the case. From

December 1989 until the Migration Amendment (No.2) Act 1991, which took effect on 15 January 1992, s.14(2) of the Act provided

"14(2) Where a person to whom subsection 20(1) or (2) applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time he or she

As from 15 January 1992, s.14(2) was amended by deletion of "or

(2)" and a new s.14(2A) was added. It reads as follows:

(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

whichever is later, the person is an illegal entrant

-5 - at any time while he or she: (e) remains in Australia; and (£) is not a citizen; and (g) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa." It was not suggested by either party, nor does it appear, that it makes any difference to the applicant's position whether

8.14(2) or s.14(2A) applies, asguming that one or other of the

Section 35(2) remained in the same form from December 1989 until the 1994 amendments. "35.(2) Where, because of the operation of subsection 14(2) ..., a person is an illegal entrant even though the person holds a valid entry permit, the entry permit shall be taken to have been cancelled:

(a) when the person entered Australia; or (b) when the entry permit was granted;

Section 35(2), after s.14(2A) became operative, was not amended to refer to s.14(2A), although of course it continued to refer to s.14(2). The reason for this apparent omission is not clear. In any event, even if s.14(2A) is the sub-section that the Minister should have relied upon, I do not think it makes any difference to the analysis that follows. If the Minister was entitled to rely on s.14(2A) the effect would still have been that the applicant became an illegal entrant from the date he obtained the entry permit because of the making of a false or

The parties were in broad agreement as to the nature of the Court's jurisdiction and (toa certain extent) the principles on which it was to be exercised in the present case. The question of whether a non-citizen committed any of the acts specified in 8.20(2)(b) of the Act, as it stood at the relevant times, is not dependent on the state of mind of the Minister or his officers.

Rather it is a matter for objective assessment, on the evidence

before the Court: Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 (FCA/Full Court), at 353. A person who made a false statement to an officer in respect of the grant of an entry permit is, by virtue of s.14(2) or s.14(2A), an illegal entrant. Under the provisions then in force, an illegal entrant, among other things, would be liable to deportation (s.60) or to be required to leave Australia (s.82(1)), and would not be permitted to work in Australia without permission (s.83(2)). In these circumstances, the status of the person rests on the establishment of objective facts, the existence of which can be reviewed by the Court: Minister for

Immigration and Ethnic Affairs _v Naumovska (1983) 88 ALR 589 (FCA/Full Court), at 601-602.

It follows that the formation of an opinion by an officer or the Minister that a non-citizen was a person to whom s.20(2)(b) of the Act applied, although administratively necessary before the consequential powers can be exercised, was not a "decision" under the Act. Such an opinion is therefore not reviewable under the

ADJR Act: Dhillon v Minister, at 125; Da Sousa v Minister for

-7- Immigration, Local Government and Ethnic Affairs (1993) 114 ALR 708 (FCA/French J.), at 710. However, as already noted, s.39B of the Judiciary Act 1903 confers jurisdiction on the Court to determine an application for injunction and declaratory relief against the Minister. Accordingly, the Court can determine the applicability of s.20(2) to an applicant in the course of such

In determining the applicant's entitlement to relief, the Court decides for itself, on the evidence, whether the conduct of the

applicant was such as to constitute him or her an illegal

entrant: Kim v_ Minister for Immigration Local Government and Ethnic Affairs (1993) 44 FCR 75 (FCA/Wilcox J.), at 83. This

approach was adopted by von Doussa J. in McElligott v Minister for Immigration and Ethnic Affairs, 10 September 1993, unreported

"where a declaration is sought pursuant to s.39B of the Judiciary Act, the issue for the Court, in a case such as this, is to determine whether the entrant made a statement that was "false or misleading in a material particular" within the meaning of sub- s.20(1). If so, the status of the entrant is that of an illegal entrant by operation of law. The conclusion of fact reached by the Court determines the outcome of the proceeding. It is not necessary to separately review the decision of the delegate of the respondent who made the administrative decision that the applicant was a person to whom sub-s.20(1) applied."

The decision of von Doussa J. was affirmed on appeal and nothing was said to cast doubt on the approach taken by his Honour: see

McElligott v Minister for Immigration, Local Government and Ethnic Affairs (1993) 46 FCR 112 (FCA/Full Court).

Because of gaps in the evidence in this case, the onus of proof is of some significance. On-this question the parties differed. Ms McCallum submitted, correctly in my opinion, that the burden lies upon the Minister of proving the facts demonstrating the falsity of the statements made by the applicant. Lee J. so held in Mian v Minister for Immigration Local Government and Ethnic Affairs (1992) 28 ALD 165 (FCA/Lee J.), at 169. His Honour pointed out that it is the existence of those facts that grounds the exercise of the statutory power of deportation. The finding of fact is not part of the exercise of a statutory power; in such a case the onus would be on the party challenging the exercise

of power to show error: see also Dhillon v Minister, at 128.

I should record that Ms Henderson, for the Minister, submitted at one stage that I should not follow Mian v Minister, but she put forward no reason in principle or authority why I should take such a course. She did refer to Minister for Immigration v Naumovyska. A majority of the Full Court there held that it was not necessary for the Minister to demonstrate, when relying on the predecessor to s.20(2)(b), that the person concerned knew that the statements were false or misleading in a material Particular. That holding does not bear, in my opinion, on the question of which party has the onus of establishing the falsity

Not only is the onus of establishing the facts on the Minister,

but in applying that onus it is necessary to consider the serious

-9- consequences of falling within s.20(2). As Wilcox J. said in Tarasovski_ v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FER 570 (FCA/Wilcox J.), at 572-573,

"a court should find that the person has contravened

Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362;

Rejfek v McElroy (1965) 112 CLR 517, at 521-522." Moreover, where a statement is reasonably capable, in context, of at least one construction which is not false or misleading then, in the absence of evidence that it carried the false or

misleading construction, the Court should not find that it was

false or misleading: Dhillon v Minister for Immigration, at 128.

By the same token, as I have noted, it is not necessary for the Minister to prove that the person making a statement knew that it was false or misleading in a material particular: Minister for Immigration v_ Naumovska, at 601-602; Minister for Migration v Dela Cruz, at 353-354. The policy underlying this approach to the construction of s.20 of the Act (and its equivalents) is that the immigration authorities are dependent upon information provided by intending immigrants. Such people should be responsible for the information provided by them or on their behalf: Minister for Immigration v Naumovska, at 601-602, per Fox J., followed in Hsiao v_ Minister for Immigration, Local Government and Ethnic Affairs (1992) 36 FCR 330 (FCA/Einfeld J.), at 337-338.

The applicant first arrived in Australia on a visitor's visa, on 30 December 1986. He seems to have stayed in Australia thereafter. On 18 October 1989 he signed an application for grant of residential status. The basis of his application was that he was married to a resident of Australia, Angeline Singh, nee Lal. Section 6A(1)(b) of the.Act, as it then stood, provided that one ground for granting an entry permit to a non-citizen, after entry into Australia, was that he or she was the spouse of an Australian citizen or the holder of an entry permit. The applicant did not dispute that he had married Angeline Lal for the purpose of gaining residence in Australia and had never lived with her. Indeed, in December 1991 he provided a statutory

On 9 December 1991, shortly before making the admission concerning his marriage to Angeline Lal, the applicant applied to remain permanently in Australia. The application was made under concessions for persons illegally in Australia on or before 18 December 1989. One ground for an entry permit under the concessional provisions was that, on 15 October 1990 and continuously until the Minister decided to grant, or not to grant, the entry permit, "the applicant [had] a genuine and continuing

relationship as the spouse of an Australian citizen or

of an Australian resident" Migration Regulations (veg.131A(1)(d)(i)).

The term "spouse" was defined to include a "de facto spouse".

The parties appeared to be in agreement that the definition of

"a person who is living with another person of the opposite sex as the spouse of the other person on a genuine domestic basis although not legally married to the other person". (Migration Regulations, reg.2(1)).

However, that definition was deleted by Statutory Rule No. 60 of

1991, which came into effect on 15 April 1991, and the following

"3A(1) For the purposes of these Regulations, a person is the de facto spouse of another person if, at the time when an application for a visa or entry permit is made by either of the persons, they:

(a) have lived together, for the whole of the immediately preceding 6 months (or such lesser period as is specified in a particular case, under subregulation (2)), on a genuinely domestic basis as spouses without being legally married to each other; and

Minister may, on written application, specify a period

(a) there are exceptional circumstances affecting the persons; and

(b) there are compelling reasons for specifying that lesser period."

It does not appear that anything turns on the terms of the

substituted definition as far as this case is concerned.

The applicant made a statutory declaration that the information supplied on his form was complete, correct and up to date. Section A of the form, under the heading "Grounds of marriage or

de facto marriage", included the following questions and answers:

"39. Where and when did you and your partner first meet?

We met through friends, at a party as she was working at an Indian restaurant in Christmas

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

85 Bronte Road, Bondi Junction 9/90 8/91 1/20 George Street Manly 8/91 Present

41B Where and when did you start living in a de facto marriage?

What financial assets or undertakings do you have in both your names (for example joint bank accounts, property, leases, rent receipts, insurance policies, wills)?

The application was supported by Ms Lipman as "nominator".

It should be noted that nowhere on the form was any explanation given of the phrase "de facto marriage" (which is not employed in the Act or regulations), nor of the term "living together". There was no evidence adduced to suggest that the indicia of a de facto marriage, as understood by the Department, had been communicated to the applicant. It is, however, appropriate to infer from the fact that assistance was available to him from an immigration agent in completing the form, since the application was submitted under cover of a letter from a firm of "immigration

The applicant enclosed with his application a _ statutory

13 - declaration made by him on 4 December 1991, together with six rent receipts. The statutory declaration was in the following terms: - "I, Jasbeer Singh of 1/20 George Street, Manly in the State of New South Wales, do solemnly and sincerely declare as follows: I am living with my girlfriend Lisa Lipman at the above address and declare that we have lived together

I declare that Lisa and I will be getting married in a couple of years when we have saved enough money."

"7 Aug 90, received from Jasbeer the sum of $130 for 2 weeks rent of premises 85 Bronte Road, Bondi Junction. Fol.42

23 Aug 90, received from Jasbeer Singh the sum of one hundred and thirty dollars for 2 weeks rent of premises 85 Bronte Road, Bondi Junction. Fol.43

19 Sep 90, received from Jasbeer Singh & Lisa, the sum of one hundred and thirty dollars for 2 weeks rent of premises 85 Bronte Road, Bondi Junction. Fol.40

4 Oct 90, received from Jasbeer & Lisa, the sum of two hundred and sixty dollars for 4 weeks rent of premises 85 Bronte Road, Bondi Junction. Fol.44

5 Dec 90, received from Lisa & Jasbeer, the sum of one and thirty dollars for 2 weeks rent of premises 85 Bronte Road, Bondi Junction. Fol.41

13 Feb 91, received from Lisa the sum of one hundred and forty dollars for two weeks rent. Fol.45".

On 6 April 1993 a departmental officer approved the grant of resident status to the applicant. The officer's assessment noted that the applicant had presented evidence that he had been living in a de facto relationship with Ms Lipman and had made a

commitment to marry her. The assessment also referred to the

14 - fact that the applicant had relatives in Australia and specifically noted that he had previously breached migration law, by relying on a marriage of convenience in an attempt to gain resident status. The officer concluded that the applicant had satisfied the legal requirements of s.6A(1)(b) of the Act (before the amendments of December 1989) in that he had established a de facto relationship that was genuine and ongoing. However, the officer also found (rather curiously in the light of his other findings) that the applicant did not satisfy the "policy requirements" that the relationship be genuine and ongoing. Nonetheless, the officer found that the grant of resident status was justified on compassionate grounds as contemplated by s.6A(1)(e) of the Act (which permitted the grant of an entry permit where there were "strong compassionate or humanitarian grounds" for doing so). On 27 July 1993 the applicant was advised that a resident entry permit had been endorsed on his

A Change of Decision On 23 March 1994 Ms Lipman, who had previously supported the

applicant's claim for grant of resident status, changed her position, a change of mind apparently prompted by the termination of her relationship with the applicant. She advised a departmental officer that she did not start living with the applicant until September 1991. She stated that the rent receipts were false and that she and the applicant had never lived at 85 Bronte Road, Bondi Junction. She claimed to have

previously supported the applicant's story because they were

-15 - living together in December 1991 and at that time he was facing deportation. Ms Lipman repeated these claims in a statutory declaration of 12 April 1994, supplied to the Department. The departmental file (which was in evidence) also includes a statutory declaration from a Ms Gore-Jones, stating that Ms Lipman lived with her, at Fairlight, from July 1990 to August

Not surprisingly, in view of Ms Lipman's change of heart, the applicant was interviewed. This took place on 19 April 1994. In the course of the interview, the following exchange took place, as recorded in the departmental file (although there is nothing in the file to indicate that the applicant acknowledged

receipts folios 40-45. Who signed those receipts? A. My sister. She managed the restaurant. The

I have reason to believe neither you nor Ms Lipman lived at that address.

I have stat decs to say Ms Lipman did not live at that address.

A. She was sort of like a girlfriend then. She used to come to stay there occasionally with me but she didn't leave her clothes there.

I put it to you Mr Singh that she never lived there with you or even visited you there.

A. She was living at Fairlight but sometimes she visited me there.

relationship with you when you were in the Bronte Road address. JI put it to you again Mr Singh that you did not live with Ms Lipman at 85 Bronte Road, Bondi Junction.

I would ask you to look at the stat dec you completed folio 47 which states you lived together since September 1990.

<I want you to look at:the application to remain permanently in Australia which you completed particularly the back of folio 67. In Q40 you stated you lived with Ms Lipman at the Bronte Rd address from 9/90 to 8/91. In Q41B you state you started living in a defacto marriage from September 1990. These statements are false aren't they?

A. It was genuine. The relationship. I was in dove with her. We did live together.

i5. I put it to you Mr Singh you didn't commence living with Ms Lipman until September 1991 & that you falsified the date you started a defacto relationship because you knew you had to be ina relationship on or before 15 October 1990 to qualify for a Dec 89 entry permit. A. I had a defacto relationship with her. She

hurt me, she cheated on me. Her brother & boyfriend beat me up."

On this material, the Minister's delegate determined that s.20(2)(b) of the Act applied because the applicant had provided false statements and declarations and presented fabricated documentary evidence. On 30 May 1994 the Minister's delegate ordered, pursuant to s.60 of the Act, that the applicant be

On the material before the Department one might have expected

17 - hotly contested factual issues to be explored through cross- - examination of the applicant and other witnesses at the hearing. However, this was not the course taken in the proceedings. The applicant relied on affidavits from the applicant and Ms Lipman, neither of whom were cross-examined. Ms Lipman reversed herself yet again in giving her account on oath of her relationship with the applicant. It appears that by the time she swore her

affidavit she had resumed the relationship with the applicant.

Ms Lipman stated in her affidavit that she and the applicant were "living together" at 85 Bronte Road, Bondi Junction, beginning in the "summer of 1990". In oral evidence she explained this as a reference to the beginning of 1990. At that time, she was living with Ms Gore-Jones at Fairlight. Initially she spent one or two nights a week at the applicant's house, but this increased until it became "most of the week". She said that the reason she left her belongings and kept paying rent at Ms Gore-Jones' unit, and chose not to be "up front" about her relationship with the applicant, was that she did not want to upset her relationship with Ms Gore-Jones, who was a devout Christian. Ms Lipman swore that she, too, was a member of a "born again Christian church" and did not wish to appear to be flouting the church's rules. She swore that she paid only nominal rent at 85 Bronte Road and that the applicant paid the balance. This state of affairs

Ms Lipman gave brief oral evidence in chief. Her evidence

"MISS MCCALLUM: From September 1990, what was the arrangement between you and JaSbeer Singh, in terms of seeing each other?---I was living with a lady that I went to the church with and I continued to pay rent there. I had a room ef my own but I spent a great deal of my time with him, with Jasbeer.

When you say a great deal of my time, in terms of each week, how many nights a week would he spend at your place?

HIS HONOUR: Would you please identify exactly the time you are talking about?---From September.

MISS McCCALLUM: From September 1990. HIS HONOUR: Until when?

MISS McCALLUM: I think you moved in together in August 1991, to a single residence?---Yes.

Between September 1990 to August 1991 when you moved in together, how many nights a week would Jasbeer spend at your place?-~--Maybe just on the weekend to - not as many as I would stay at his place because it was uncomfortable, being with the lady there.

It was uncomfortable?---Being under the roof with the lady there who stipulated no relationships were to occur under her roof.

How many nights a week would be spend at his place during that period, from September 1990 to August 1991?---I'd say, four, five, most of the week during the week.

How many nights a week would you spend alone during that period?---Not a great deal. Saturday nights I was always there at the house to go to church on the Sunday. HIS HONOUR: Your house, you mean?---Yes, at my house in Fairlight. But he would often be there with me as well on that Saturday night so I didn't generally spend much time alone at all." The applicant, in his affidavit, said that he first met Ms Lipman at a party on Christmas Day 1988. They began going out as friends, shortly thereafter. However, the applicant said that

at this stage the relationship was not a sexual one, because of

Ms Lipman's religious beliefs. During this period the applicant

19 - and Ms Lipman saw each other on weekends and sometimes during the week. In the "summer of 1990" (which the applicant also explained in oral evidence~meant the beginning of 1990), Ms Lipman began staying over with him a few nights per week. At this stage a sexual relationship began between them. The applicant said he would also visit Ms Lipman at her house, by sneaking into her room without .the knowledge of the landlady (presumably Ms Gore-Jones). This arrangement continued until August or September 1990, when he asked Ms Lipman to spend more time at this Bondi Junction flat. At this point Ms Lipman began staying over "a few more nights per week", and on "the other night of the week" the previous arrangement (involving deception of the landlady) continued at the Fairlight house. The applicant also stated that "around this time" he and Ms Lipman planned to save money and eventually to get married. In September or October 1991 he and Ms Lipman moved into a two bedroom apartment,

The applicant also gave brief oral evidence in chief, including

"MISS McCALLUM: What was the arrangement in relation to your relationship with Lisa Lipman as at September 1990?---From September?

Yes?---Well, from September - we had been living together. She used to stay in another place and I used to stay in my place at Bondi Junction and then sometimes she would come and spend time with me after work and sometimes I used to go after work to her place and spend the night with her up there.

When you say sometimes, how many nights a week on average would you spend at her place, from September 1990 onwards?~--~I maybe would spend two or three nights a week up in Manly and she would spend three or

four nights with me in Bondi Junction, so we would just sort of swap here and there.

On average from September 1990, how many nights would you spend alone without+ her?---Alone?

Yes?---Maybe one or two nights, sometimes one night,

sometimes we would go a full seven days and then maybe ten days with one or two days break, and then we would

go on again." As I have noted, counsel for the.Minister did not cross-examine

The only other affidavit evidence relevant to the factual question was that of Ms Gore-Jones, whose affidavit was read in the Minister's case. Ms Gore-Jones deposed that she had known Ms Lipman for a number of years, through membership of a church. From about July 1990 Ms Lipman commenced to share her residence at 139 Sydney Road, Fairlight and paid $60 weekly rent. Ms Gore- Jones stated that, shortly after moving to the Fairlight address, Ms Lipman "commenced to spend a considerable amount of time away from the residence". This situation, so Ms Gore-Jones thought, started about September 1990. She was aware, at the time that Ms Lipman commenced spending the majority of her time elsewhere, that Ms Lipman was seeing the applicant. Ms Gore-Jones also deposed that at about this time she was aware that Ms Lipman would give the impression of going to bed at the Fairlight house, but would then leave through the bedroom window to spend time with the applicant. Ms Lipman had explained to Ms Gore-Jones that she had kept the relationship with the applicant secret

21 - There was no cross-examination of Ms Gore-Jones by counsel for the applicant. It is fair to say that Ms Gore-Jones' evidence was not inconsistent with the affidavit and oral evidence of the

Counsel for the Minister argued that, on this state of the evidence several statements made by the applicant to an officer performing functions under the Act were false or misleading in

a material particular. These were identified as follows:

(i) The answer to Q40 in the application was false or misleading in a material particular, because it was not true that the applicant and Ms Lipman had lived together at 85 Bronte Road, Bondi Junction from

(ii) The answer to Q41 was false or misleading in a material particular, because the parties had not started living together in a de facto marriage in

(iii) The statutory declaration was false or misleading in a material particular, because it was not true that

the applicant and Ms Lipman had lived together since

One of the difficulties that can be presented by a case in which there is a dispute as to whether a "de facto marriage" has existed, or the parties have "lived together", is that these concepts are themselves conclusory terms. Of course both terms are in everyday usage and some cases of a claimed "de facto marriage" will present straightforward factual issues. For example, in a particular case the factual issue may be whether the parties ever shared accommodation, rather than whether the sharing of accommodation could be regarded, with other factors, as constituting a "de facto marriage". But in cases where the characterisation of the relationship is unclear, a court or tribunal must reach a conclusion based on appropriate indicia or criteria, as applied to the primary facts. In Roy v Sturgeon (1986) 11 NSWLR 454 (S Ct NSW/Powell J) for example, Powell J. identified ten factors relevant to ascertaining whether two people were "living together as husband and wife in a bona fide domestic relationship" for the purposes of the De Facto Relationships Act 1984 (NSW). I refer to these factors shortly. His Honour referred to the task of the Court as involving a "value judgment", having regard to the factors (among others) identified by him. (Roy v Sturgeon has been overruled on an issue not affecting this aspect of the case: see Dwyer v Kalijo

(1992) 27 NSWLR 728 (NSW CA); cf Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 (S Ct NSW/Kearney J.), at 685.)

The starting point must be the primary facts. At one point in

her argument, counsel for the Minister appeared to acknowledge

23 - that I had no choice but to accept the unchallenged evidence given on oath by the applicant and Ms Lipman. Elsewhere, she seemed to resile from this position, pointing out that both Ms Lipman and the applicant, on their own accounts, had lied to the Department. She also pointed to the interview held with the applicant in which he is recorded as having made statements that could be regarded as inconsistent with his evidence on oath. However, Ms Henderson did not identify which parts of the evidence given by the applicant and Ms Lipman should be rejected. It is true that there was material in the departmental file that might have provided fruitful grounds for cross-examination of both the applicant and Ms Lipman. It is also not unreasonable to suggest that there were grounds for suspicion about the claims made by them in their affidavits and oral evidence. But nothing was put to either witness to suggest that their account on oath was inaccurate. It is, of course, a fundamental principle, arising from common fairness and the proper administration of justice, that a person must be confronted with the suggestion that his or her case is false: Ghazal _ v Government Insurance Office of NSW (1992) 29 NSWLR 336 (S Ct NSW/CA), at 344-345;

Furthermore, this was not a case where there was an inconsistency between witnesses, none of whom were cross-examined. In sucha case the Court may simply have to choose between competing accounts. But there was nothing in Ms Gore-Jones' evidence that was inconsistent with the evidence given by the applicant or Ms

Lipman. In these circumstances, I consider that I have no

24 - reasonable alternative but to accept the evidence given on oath by the applicant and Ms Lipman as to the nature of their relationship before and during the period September 1990 to

Nonetheless, Ms Henderson contended that, on the applicant's own evidence, the relationship could not be characterised as a "de facto marriage". Nor could it be said that the parties were "living together" during the relevant period. In her submission, the evidence showed only that the parties had a_ sexual relationship, as boyfriend and girlfriend. The clandestine nature of the relationship fell short of a "de facto marriage", or of parties living together. In this connection, she referred to the indicia for determining whether, for the purposes of the Social Services Act 1947 a woman was "living with a man as his wife on a bona fide domestic basis", as expressed by the Administrative Appeals Tribunal in Re RC and Director-General

of Social Services (1981) 3 ALD 334 (AAT), at 348-349:

"Because of the infinite variety of circumstances in which husbands and wives live together, it is impracticable to lay down specific criteria which can be applied to identify the specified relationship. It is a relationship which is recognisable but which is so varied that it is not susceptible of definition by criteria.

Yet, there are indicia which can be looked to as guides to the required relationship. In Tulk v Tulk [1907] VLR 64, Cussen J in speaking of the matrimonial relationship referred to "marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation", and said... that

"the weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties". A similar view was expressed by Evatt CJ, Demack and Watson JJ in In the Marriage of Pavey (1967) 10 ALR 259 where their Honours said at 263:

"The constituent elements of the marital relationship were referred to in Todd's case in these words (9 ALR at 403): 'Marriage involves many elements some or all of which may be present in a particular marriage - - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.'

To this general statement we wish to add but one phrase, 'the nurture and support of the children of the marriage'."

To this might be added the observation of Powell J. in Roy v Sturgeon. His Honour (at 458) emphasised that, just as human personalities and needs vary markedly, so do the various aspects of their relationship that lead one to hold that a man and woman are living together as husband and wife on a bona fide basis. The

criteria he identified (which were not intended to be exhaustive)

the nature and extent of the common residence;
whether or not a sexual relationship existed;

the degree of financial interdependence, and any arrangements for support, between or by the parties;

the ownership, use and acquisition of property; the procreation of children;

. the degree of mutual commitment and mutual support;

reputation and "public" aspects of the relationship."

Ms Henderson also submitted that the Minister was entitled to

26 - rely on the absence of evidence relating to other indicia of a "de facto marriage" or of parties "living together". In her submission, it was not for the Minister to fill in the gaps in

In my view, these submissions .understate the effect of the unchallenged evidence that I have accepted. They also fail to take sufficient account of the fact that the onus lies on the Minister to demonstrate, to an appropriate degree of satisfaction having regard to the seriousness of the consequences for the applicant, the falsity or misleading character of the statements

Although cryptic and incomplete, the evidence went beyond showing that the parties had a mere sexual relationship as boyfriend and girlfriend. The evidence, once accepted, shows that the parties' relationship developed over a period of time, commencing in 1988. By September 1990 they were together all but about one or two nights per week. Most of their time together - three or four nights per week - was spent at the Bondi Junction unit. This was not a case where the parties spent only three or four nights per week together; they were together all but one or two nights, although they spent time at two places. The applicant and Ms Lipman, around this time, planned to save money and eventually to get married. Thus there was at least a private commitment between them. The parties' relationship was not ephemeral ~- it

continued in the manner described by them from September 1990

until August 1991, and thereafter at the new address, where it was not disputed that they lived together.

Ms Lipman contributed to the rent at Bondi Junction, albeit that she only provided a "nominal amount". The applicant specifically said in evidence that they were both "living together" from September 1990 - a statement that, as I have noted, went unchallenged on behalf of the Minister. An explanation was provided by the parties as to why an attempt was made by Ms Lipman in particular to keep the relationship secret and why she left her belongings at the Fairlight house. Thus the evidence addressed the reasons for the parties' apparent failure to hold themselves out as de facto partners. There was of course nothing

in the sworn evidence before me to refute the truth of that

Ms Henderson submitted that the evidence was inconsistent with the existence of a de facto marriage. On the contrary, I think that the evidence is consistent with the existence of a de facto marriage, and with the parties having lived together at the Bondi Junction address, from September 1990. The evidence suggests that some of the criteria or indicia of a de facto relationship (to use a convenient phrase), articulated in the cases, were met. They did share accommodation; they had a sexual relationship; there was discussion of marriage; there was some, albeit limited, financial inter-relationship; the relationship was not ephemeral; a reason was given for not publicly acknowledging their

relationship. It must also be remembered that there is ample

28 - authority to suggest that parties may be in a de facto relationship even though they do not always live together under the same roof, and indeed maintain separate residences: Weston v_ Public Trustee (1986) 4 NSWLR 407 (S Ct NSW/Young J.); Roy v Sturgeon, at 458. A de facto relationship may exist even though one of the parties also lives with another person: In Re Fagan, Deceased (1980) 23 SASR 454 (S Ct SA/Jacobs J.). Of course, in the present case, although the parties maintained two residences,

they shared accommodation at each of the residences.

It is perfectly true that the applicant did not adduce evidence on other aspects of the relationship relevant to its character. These include the extent to which, if at all, the parties pooled financial resources (other than rent) or shared household tasks. The absence of such evidence may well have created difficulties for the applicant if he were required affirmatively to prove the existence of a de facto marriage as from September 1990. But it was the Minister who bore the burden of proving that the statements made by the applicant were false or misleading at the time they were made. It is not enough that there are doubts as to the character of the relationship or that the evidence is equally consistent with the parties living together in a de facto marriage, and with having a different kind of relationship. On the material available to me I am not satisfied, to the appropriate standard, that any of the statements made by the applicant and relied on by the Minister were false or misleading. To put the matter another way, I do not think that the evidence

29 - (i) Ms Lipman and the applicant did not live together at 85 Bronte Road, Bondi Junction from September 1990 to

(ii) the parties did not start living together in a de facto marriage in September 1990 at the Bondi Junction

(iii) the applicant and Ms Lipman had not lived together

I appreciate that it was open to the applicant to adduce further evidence on some of the indicia of a de facto relationship. Although neither party referred to it, there is authority that inferences should not be drawn in favour of a party who fails to ask crucial questions of a friendly witness who has knowledge of the particular facts in issue: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (S Ct NSW/CA), at 418-419 (aff'd (1993) 176 CLR 332); R. v Beserick (1993) 30 NSWLR 510 (S Ct NSW/CA), at 532. But here it is not the applicant who asks that inferences be drawn in his favour; rather it is the Minister who must affirmatively establish facts that show the statements made by the applicant were false or misleading. It may be that the failure to ask questions of a witness in chief on some topic can constitute "some evidence" that examination in chief would have exposed facts unfavourable to the party: Commercial Union Assurance Co of Australia Ltd v

Ferrcom Pty Ltd, at 418. But this was not a case where the

30 - principal witnesses adduced no evidence of the nature of the relationship. Among other things, the applicant said that he and Ms Lipman were "living together". Even if an inference of the kind to which I have referred could be drawn on some issues not explored in evidence, those inferences would have to be set against the affirmative evidence consistent with the parties having been in a "de facto marriage" or having lived together. As I have said, it was for the Minister to satisfy me that the statements made by the applicant were false or misleading in accordance with the standard identified in Tarasovski v Minister for Immigration. On the whole of the evidence, even taking into account any inferences that may be drawn from failure of the applicant to explore some issues in chief, I am not satisfied to the required standard that the statements made were false or

In my opinion, the conclusion I have expressed can also be supported independently by considering the context in which the applicant gave the challenged answers. Ms Henderson submitted, correctly in my view, that the character of the answers should be assessed in their context. She emphasised that questions were asked on the form under the heading "Grounds of marriage or de facto marriage". While that is true, the questions asked on the form employ phrases that are ambiguous in their meaning and notoriously difficult to apply to the circumstances of particular cases. No guidance was given on the form or otherwise to the applicant in answering the questions. No information was sought

from the applicant on such matters as public reputation, sharing

31 - of household tasks, pooling of financial resources (except for assets in both names) or the degree of mutual commitment. The series of questions on the* form rather suggest that "living together" and "being in a de facto marriage" mean much the same thing. Indeed, the very fact that the parties were asked where they had lived together in a section concerned with "de facto marriage" suggests that the two concepts are very similar if not identical. As Ms McCallum pointed out, Question 41B can be interpreted as assuming that a de facto marriage must commence with the parties living together at a single address. I do not think the fact that the applicant had available the services of a migration agent detracts from the fact that the form required him to answer questions that were ambiguous and difficult to apply to particular factual circumstances largely unexplored on

As I have previously noted, the authorities indicate that an answer that is capable of a construction that is not false or misleading should not be found to be false or misleading. In my view, the answers given by the applicant to the particular questions are capable of accurately describing the circumstances shown by the evidence to have existed from September 1990 to August 1991. This is not necessarily the only meaning that the answers bear, but it is one that is reasonably open in the circumstances in which they were provided. Of course, the statutory declaration was not submitted as an answer in response to a specific question. However, the only relevant statement

made by the applicant in the statutory declaration was that "we

-~ 32 - have lived together since September 1990". I think that it is not an unreasonable construction of that answer to interpret it as describing the circumstarces of the parties' relationship as

At a glance

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Judgment (220 paragraphs)

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Cases Cited (20)

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