Gaillard, Gitsadalan v. The Minister for Immigration and Ethnic Affairs [1983] FCA 3

Federal Court of Australia|1983-01-21|Before: Lockhart J

Administrative Law - - prohibited immigrant - application to stay

deportation order following cancellation of entry permit - application for release from custody pending final determination of order of review - Matters to be considered - whether "arguable" or "prima facie" case

Adminrstrative Decrsions (Judicrat Revrew) Act 1977 ss, 5, 15

GITSADALAN GATLLARD v. THE MINISTER FOR -IMMIGRATTON AND ETHNIC AFFAIRS

The application for an order staying the order of the

respondent that the applicant be deported from Australia

and for an order that the respondent be restrained from

detaining her in custody pending the hearing of her

substantive application for an order of review he dismissed;

2, The aoplicant pay the respondent's costs of the application,

NO. A.C.T. G. 1 OF 1983 DISTRICT REGISTRY 0. A.C.T. G F

Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

EX TEMPORE 21 JANUARY 1983 LOCKHART J. This is an application by Gitsadalan Gaillard ("the

applicant") pursuant to s. 15 of the Administrative Decisions (Judicial

Review) Act 1977 ("the Judicial Review Act") for an order staying an order of the Minister for Immigration and Ethnic Affairs ("the respondent") that the applicant be deported from Australia, The stay is sought pending the hearing of the substantive apolication of the applicant for an order of review under the Judicial Review Act, The applicant also seeks an order that the respondent be restrained from detaining her in custody pending the hearing of the lastmentioned application,

The facts may be briefly stated, The applicant is a citizen of Trarland, She was born on 9 March 1960 in Thailand, She went through a ceremony of marriage with a Thai national in about 1977, and a baby girl was later born to them. She lived with her husband for a year, then they separated and she came to Australia leaving her daughter in Thailand with

her husband where she 1s cared for by him and his relatives,

The applicant came to Australia for the purpose of taking up a position as a domestic servant in the household of the Thai attache in Canberra, Before she left Thailand for Australia she signed an undertaking written in both the [nglisn and Thai language acknowledging that her temporary stay in Australia was approved by the Australian Government on strict conditions including a condition that she would be employed on domestic duties in the household of the Tha2z attache and that she undertook to depart from Australia only in accordance with the travel arrangements made for her by or on behalf of her diplomatic or consular emplover upon the cessation of her employment for any reason, and that she would not be eligible to remain in Austraila as a resident or in any other capacity.

The applicant arrived in Australza on 5 January 1979 and wag granted an unconditional temporary entry permit valid for 12 months which entitled her to work here, Later temporary entry permits were 1ssued to her, the last being a permit granted on 30 October 1982 to expire on 30 January 1983, The applicant worked as a domestic servant for the Thai attache un Canberra, a Mrs, Rakbancha, upon her arrival in this country. She lived un the attache's residence, She married Robert Andre Gaillard, an Australian citizen, on 29 July 1982 in Canberra. They first met some months earlier, Mr. Gaillard 1s 23 years of age. He 1s a tax1 driver employed by a Mr. Sanchai Israbhaaki of Canberra who owns four taxis, a gift shop at Belconnen Mall and a restaurant at Phillip.

The applicant left the residence of the Thai attache on the day of her marriage and ceased then to work for her, Since then she has been

employed in Mr. Israbhadki's gift shoo and restaurant.

There 1s no evidence whether the ceremony of marriage entered into in Thazland in 1977 constituted a valid marriage under Thai law or not.

It seems that the marriage was not registered with the relevant civil authorities in Thailand, The applicant is a Buddhist, She swore that her marriage, although in accordance with Thai customs, was "without

a certificate" and therefore did not prevent her from remarrying provided she first separated from her husband,

The applicant and Mr. Gaillard both swore that the relevant facts relating to her earlier marriage in Thailand were disclosed to the Registrar of Marriages 1n the Australian Capital Territory before he married them last year. The records of the Australian Capital Territory Registry of Marriages apparently show that the applicant recorded her status as "spinster" at the time of her marriage to Mr. Gaillard, I have no idea whether the applicant was free to marry Mr. Gaillard in 1982 or not but I have a real doubt as to the validity of that marriage. It is possibly bigamous, but whether 1t 1s or not I do not know, The evidence does not enable me to form any such concl&sion nor would it be appropriate in an application of this nature for me to do so.

The Registrar of Marriages was not called as a witness so I do not know 1£ he denies the sworn statements by the applicant and her husband that the details of the Thai marriage and separation were disclosed to him, The factthat the Registrar was not called to give evidence does not in all the circumstances support or corroborate the evidence of the applicant and her husband about the disclosure to the Registrar of facts relevant to the Thai Marriage because this evidence only emerged in the course of cross- examination of the applicant and her husband. They both swore affidavits without any suggestion in them that the applicant had been vreviously

Married. Indeed, the applicant swore in her affidavit: -

"5, TI am married to Robert Andre Gaillard. We were married on the 29th July, 1982 in Canberra, I have not been married before..." Nor did the applicant disclose in her affidavit the fact that she had

a child by her carlier marriage, She swore in her affidavit; -

"4....I have nothing to return to in Thailand, my parents are both dead,"

As the evidence about her earlier marriage and the child of that Marriage was elicited only in cross-examination by counsel for the respondent and as this application was heard by me as an urgent matter in vacation and seeks in substance interlocutory, not final, relief and as the evidence of the applicant and her husband was generally unsatisfactory the applicant gains no support from the fact that the Registrar was not called to give evidence,

Notwithstanding the sworn protestations by the applicant and her husband of their love for each other, they have not otherwise demonstrated the affection that husband and wife usually display towards each other, After their marriage they did not live together under the same roof although they saw each other reasonably frequently, but generally at the applicant's place of work, Mr, Gaillard swore in his affidavit:-

a lot of time in each others company because at that

would frequently see my wife," Mr. Gaillard swore during cross~-examination that he and the applicant in effect agreed not to live together at least for the time being because he was the lessee of a town house in Canberra where he lived with two other people and his dog. Both those versons were his friends and he did not think it right to inconvenience them by asking them or one of them to

leave so that he and his wife, the applicant, could live together. He

could not live elsewhere because he was the lessee of the tawn house. He

denied that he was asked to marry the applicant by his employer, Mr. Israbhadki,

Mr, Israbhadki swore an affidavit but was not cross-examined, The applicant admitted in cross-examination that Mr. Israbhadk1 had given her a considerable number of presents over the last two vears including two diamond rings. A sports model Datsun motor car 1s registered in the joint names of the applicant and Mr. Israbhadki but the applicant asserted that she has driven it once only, She denied any beneficial interest in the vehicle and said that Mr. Israbhadk1 paid for 1t himself,

The applicant denied that she and Mr. Israbhadki had a sexual relationship, Mr. Israbhadki swore in his affidavit that he had known the applicant for three years since she first came to Australia, He said he was present at the marriage registry in Canberra when the applicant and Mr, Gaillard married, and was a witness to the wedding. He said that if the applicant 1s released from custody he will continue to employ her,

I mention these matters, not to support any finding about a relationship between the applicnat and Mr. Israbhadki - especially as he was not cross-examined, but the circumstances revealed in the evidence surrounding the marriage of the applicant and Mr, Gaillard together with other

matters were relied on by the respondent, when deciding to deport the

applicant, as pointing strongly to the probability that the marriage between

the applicant and Mr, Gaillard was contrived to entitle the applicant to

apply for permanent resident status in Australia. Section 6A of the Migration Act 1958 provides so far as 1s relevant:-

"6A. (1) An entry permit shall not be granted to an immigrant after his entry unto Australia unless one or more of the following conditions 1s fulfilled in respect of him, that is to sav...

(b) he is the spouse, child or aged parent of an Australian citizen,.."

The circumstances surrounding the marriage in Australia of a person against whom a deportation order has been made may be considered by the respondent in deciding whether to deport that person: Safedi v.

Minister for Immigration and Ethnic Affairs (1981) 38 A,L.R. 399 per

Mr, Justice Franki (at p. 403) and my own decision in Unlugenc v. Minister

for Immigration and Ethnic Affairs, 13 August 1982 (at vo, 11).

The circumstances surrounding the marriage of the applicant and Mr. Gaillard are relevant also as to their credit, Their evidence about these matters was unsatisfactory.

Taking all the evidence into account and the impression I formed of the applicant and her husband in the witness box, I do not accept the applicant as a witness of truth and I have considerable reservations as to

the veracity of the evidence of her husband, The applicant swore in her affidavit:-

"l. I believe I have not been given a proper opportunity to make an application to the Minister for Immigration & Ethnic 4ffairs to be permitted to say in Australia permanently, It was my intention from early last year to apply and I did on the 2nd day of August attend the said Department's office in Canberra, At that office I was told I needed my Passport and that there was no rush because I had a current visitor's permit that would expire at the end of January, 1983,

2, I have not been permitted to hold my Passport at any time, I was born on the 9th day of March, 1960 in Thailand and was 18 years of age on arriving in Australia. I believe my Passport was held at all tines by Mrs, Watcharee Rakbancha of 7 McNichol Street, Hughes in the Australian Capital Territory. I had issued to me, a Thai Passport orior to my departure from Bangkok, This Passport was valid for 2 years, Another Thal Passport was 1ssued to me through the Thai Fmbtassy in Canberra, Both these Passports were organised by "rs, Rakbanche.

I believe my Pissport 1c nov an tae custody of the Immigration Department and T bave been advised by ny My solicitors tnat applications to the Minister of Imnigration shthnic Affairs, Sor a furt!er entry

permit and for resident status in Australia, nave been lodged with the Immigration Department in Canberra,

4, My application to the Minister has, I believe, strong compassionate grounds, I was not given any hearing about my entry permit being cancelled and the first that I knew of it being cancelled was when I was detained by Immigration officers on the lith January, 1983, I have nothing to return to in Thallard, my Parents are both dead,"

That evidence 1s not denied although one aspect of it 18S curious, namely the reference in paragraph (1) of her affidavit to the fact that in August 1982 she then had a current visitor's permit to expire at the end of January 1983, It is common ground that a temporary entry permit was granted to the applicant on 30 October 1982 to expire on 30 January 1983, in which case 1t would be curious if in August 1982 the temporary permit then held by the applicant expired at the end of January 1983, However, no challenge was made to her evidence in this respect, and I do not think anything turns on it, so I draw no conclusions adverse to her from it.

The appropriate officer of the Department of Immigration and Ethnic Affairs presented to the respondent a submission dated 23 December 1982 reviewing the circumstances relating to the applicant and recommending that the respondent cancel the applicant's temporary entry permit and order her deportation from Australia, On 10 January 1983 the respondent approved the recommendation, cancelled the applicant's temporary entry permit and ordered her deportation,

The applicant was arrested by officers of the Department on 1l January 1983, She has been held in custody since then at the Belconnen

Remand Centre, On 13 January 1983 the applicant filed an application

in this Court for an order of review under the Judicial Review Act.

The application was listed for a directions hearing and for a hearing of the applicant's claim for interlocutory orders on 17 January 1983, On that day it was stood over to 18 January, and the respondent gave an undertaking to the Court by his solicitors that he would not deport the applicant from Australia pending the hearing and determination of the application without first giving to the applicant or ber solicitors three days' notice in writing of his intention to do so, This undertaking 1s st11l on foot, I gave directions on 18 January and fixed 19 January for the hearing of the application to stay the deportation order and for the release of the applicant from custody. The application for an order of review in substance seeks orders quashing the deportation order and cancelling the applicant's temporary entry permit, The application specfies a number of grounds on which the respondent's decisions are challenged, but 1n essence they are:- {a) that the decisions were not authorized by the Migration Act (para. 5 (1) (@) of the Judicial Review Act); and

(b) that the making of the decision was an improper exercise of the power conferred by the [ligration Act, (para. 5 (1) (e) of the Judicial Review Act). Counsel for the applicant told me that the only matters relied on by the applicant in this case were that in making his decision (1) the respondent took into consideration an irrelevant matter namely, the fact of the marriage of the applicant in Thailand and,

(2) that the respondent acted in bad faith in that:- (1) he was aware that the applicant had a

of grounding an application for permanent residence;

he was aware of the whereabouts of the applicant and that there were no grounds to suggest that

he, by the terms of the temporary entry permit, gave the applicant the legitimate expectation that she had until its expiry to apply for permanent residence as complying with conditions (b) and (e) of sub-s, 6A (1) of the Migration Act; be was aware that if he cancelled the applicant's temporary entry permit, the applicant would not thereafter bring herself within the conditions

he was aware that 1£ the applicant applied for permanent residence the decision on that application would involve the question whether the marriage

(vi11) he, by making the decision against the applicant using her maiden name and not her married name, has indicated that he does not believe the Marriage 1s genuine; (1x) he was aware that 1f before the expiry of the temporary entry permit he ordered the applicant to be deported and that order were executed promptly he would avoid the applicant having a proper opportunity to apply for permanent residence and obtain a decision and, if unfavourable to the applicant, the opportunity on review to establish that her marriage 1s genuine, For the applicant to obtain orders staying the operation of the deportation order and for release from custody pending final determination of the application for an order of review, she must show at least some reasonable prospects of success in her substantive application for an order of review and reasons why the stay and release should be ordered, I agree with the following passage from the judgment of Bowen C.J.

aun Collins v. Minister for Immigration and Ethnic Affairs, 26 November

"IT do not think that the standards imported from other areas of the law are necessarily applicable in the administration of this Act, Whether s. 15 requires an applicant to make out a prima facie case in the sense

laid down in Beecham Group Limited v. Bristol Laboratories Pty. Limited 118 C,L.R,. 618 or whether it 1s sufficient to show an arguable case as mentioned in Cavello v. Minister for Inmigration and Ethnic Affairs (1980) 2 A.L.D. 1014 might be a question, Fach case I think will depend upon 1ts own circumstances in the exercise of discretion,

The Court will naturally be concerned to see whether there are any prospects of success in the application; 1£ the prospects of success are very high the Court will

be more concerned to try and hold the position by way of a stay, 1£ 1t can do so, than it will be if there appear to be virtually no prospects of success,"

See also Piroglu v. Mimister for Immigration and Ethnic Affairs,

a judgment of Northrop J., 18 June 1981, unreported; Simsek v. Minister

for Immigration and Ethnic Affairs (1982) 40 A.L.R. 61, per Stephen J.

(at p. 65) and my own decision in Unlugenc v. Minister for Immigration

The argument that the fact of the marriage in Thailand was an irrelevant consideration for the respondent to take into account when he decided to cancel the temporary entry permit and to deport the applicant may be disposed of briefly.

The applicant first submitted that the respondent not only took into consideration the fact of the earlier marriage 1n Thailand, but concluded that the marriage in Australia of the applicant and Mr, Gaillard was bigamous. However, this argument was abandoned by counsel in view of the submission made by the Department to the respondent from which it is plain that 1t is only the possibility of the Australian marriage being bigamous that was considered by the respondent, The Migration Act does not define particular matters which the respondent must or may take into account when considering the deportation of a prohibited immigrant. His power 1s discretionary and wide, It seems to me that the Thai marriage 1S a very relevant matter for the respondent to take into account, so there 1s no substance in this argument,

I turn to the remaining argument of counsel for the applicant that the applicant held a temporary entry permit due to expire on 30 January. 1983 and was told (1n effect) by an officer of the Department in August

1982 that she need not bother to apply for permanent resident status in a

Furry because her permit did not expire until the end of January 1983,

This was said to give rise to a legitimate expectation that she had

until 30 January 1983 to apply for permanent resident status, thus

enabling her to comply with paragraph 6A (1) (e) of the Migration Act,

There 1s no substance whatever in this argument or any refinement or variation of it, The mere holding of a temporary entry permit and a statement by a departmental officer, such as was made here, could not possibly fetter the respondent's power to cancel the permit or order the deportation of the applicant. The Minaster may, in his absolute discretion,

cancel an entry permit at any time - see sub-s. 7 (1) of the Migration Act

and he may order the deportation of a person who 1s a prohibited immigrant under any provision of the Migration Act (s. 18 ).

It 15 amporant to see what the respondent had before him when he decided to cancel the interim entry permit and order the deportation of the applicant, The Department's submission to the respondent on 23 December 1982 1s 1n evidence and was presumably considered by the respondent before he approved the recommendation contained in it, I do not propose to recite all the matters contained in that submission; nor is 1t evidence of the truth of its contents, but it contains a great deal of information about the applicant, including the circumstances surrounding her marriage in Tha2zland, her life in this country and her

1, The applicant was nominated for temporary residence in Australia for the purpose of taking up a position as a domestic servant in the household of the Thai attache 1n Canberra: the nomination wes approved after the applicant signed an undertaking in respect of her entry and

temporary stay in Australia, to which T have already referred, She

arrived in Australia on 5 January 1979 and was granted an unconditional temporary entry permit, valid for 12 months, which entitled her to engage in employment. Subsequently her continued stay was authorized and the last temporary entry permit issued to her was due to expire on 30

2, On 28 July 1982 Mrs, Rakbancha, the attache of the Royal Thai Embassy, Canberra, contacted the Department of Foreign Affairs. She was worried that the applicant was planning to abscond from her employment, The applicant had apparently removed most of her personal belongings from th residence and information had come to the notice of Mrs, Rakbancha that the applicant had devised a plan, with the help of a Tha1 person, to enter into a marriage of convenience with an Australian citizen,

3, On 2 August 1982 Mrs, Rakbancha called at the Department of Foreign Afiairs and presented a formal Tha1 Embassy Note, which stated:

"Miss Gitsadawan has run away from Mrs, Rakbancha's residence on Thursday 29 July 1982,"

On 23 August 1982 the Department of Foreign Affairs received a further formal note from the Thai Embassy. The Embassy sought the cancellation of the applicant's authority to remain in Australia and that she be directed to leave Australia.

4, The Thai attache called at the regional office in the Australian Capital Territory of the Department on 6 October 1982, accompanied by another lady. The lady provided, amongst other things, the following ifformation: the applicant 1s romantically attached to Mr. Sancha1 Israbhadki, who has provided her with accommodation and employment, Mr. Israbhadki, who came to Australia 20 years ago as the adopted son of a former Thai Ambassador, 1s currently involved with three ladies, including the applicant. Mr. Israbhadki owns four taxis, a house in Canberra and is

a part-owner of the Thai restaurant in Phillip, Mr, Israbhedki arranged

a Marriage of the applicant to Mr, Gaillard, an Australian citizen,

on 31 July 1992, Mr. Gaillard, who 1s employed by Mr. Israbhadki as

a taxi driver, does not live with the applicant. Mr, Israbhadki arranged the marriage so that the applicant could remain in Australia to be one

A record of interview between the relevant officer of the Department and the applicant on 2 December 1982 provided a deal of unformation including the following: that her parents were deceased; that in Thailand she has two sisters and a half brother; that she Married in Thailand in accordance with local custom, in that she claims she married "without certificate" and therefore can be divorced "without certificate" according to local custom, She was then 18 years of age. There 1s a daughter of the union, The daughter 1s now 5 vears of age and is in the care of the father in Thailand,

6, During her employment with Mrs, Rakbancha, the Thai attache, she was poorly paid - $20 to $40 per week - and her freedom was restricted, She had disagreements with Mrs. Rakbancha over various minor matters. Ske met Mr. Gaillard between September and December 1981 and their relationship developed in March 1982, She married on 29 or 30 July 1982 - she was unsure of the exact date, They did not have a honeymoon and he never took her out, She does not live with him because they do not know each other well. Mr. Gaillard lives with friends in a group

house, He has a dog, which cannot be kept in a flat. Mr. Gaillard visits

7, The submission records the fact that Mr. Gaillard was interviewed by an appropriate officer of the Department on 2 December 1982 separately from the applicant, He said bo married the applicant

because he knew that she would other:ise be required to leeve Australia

and that he "felt something" for the applicant. Mr. Gaillard had in fact moved into new premises on 29 November 1982 without telling the applicant of his new address, Departmental officers invited him to attend the Department again on 3 December 1982 with or without a solicitor. He came alone. He was counselled in his own best interests that Fe should detail the circumstances of his courtship and subsequent marriage, It was explained to him that if the relationship was genuine then the Department wished to consider the question of the grant of citizenship. It was also explained to Wr. Gaillard that 1f the relationship was not genuine and the marriage was contrived solely to enable the applicant to become eligible for the grant of resident status, then he might be liable for prosecution, He remained silent,

8, Towards the end of the statement there 1s a section headed "Summary" reading as follows:~

and was authorised to remain in Australia for that purpose until 30,.1.83. She absconded from her employment on 29,7,82 and married an Australian citizen on 31.7.82. The couple do not live together and the statements made by both parties point strongly to the probability that the marriage was contrived solely to enable Ms Potikum to remain in Australia as a resident, although she has not actually made an application for resident status on the basis of marriage, In any event Ms Potikum has admitted to a 'husband' and child in Thailand which indicates there may be a possibility that the marriage to Mr Gaillard may be bigamous. Certainly Ms Potikum makes it plain that she 1s not about to leave Australia voluntarily."

"In all the circumstances, I recommend that you sign the attached form of cancellation of the temporary entry permit 1ssued to Ms Potikum and that you sign the attached order for her deportation to be invoked as soon as practicable."

Exceot for the argument that the respondent should not have taken unto account the fact of the Thai marriage, 1t was not submitted that the Department's report contained irrelevant matters or that for any other reason that should not have been considered by the respondent.

There 1s no substance 1n any submission made on behalf of the applicant. The applicant has no prospects of success on a final hearing and that weighs heavily against making the orders sought today, if it does not indeed conclude the matter,

However, having considered all the evidence and the relevant circumstances I would not in any event, be disposed to make the orders sought. Also, the applicant has the benefit of the undertaking of the

respondent mentioned earlier. As to the application for release from custody pending the final

hearing of the application for an order of review, I adhere to the views

expressed by me in Unlugenc v. Minister for Immigration and Ethnic Affairs

(supra) and need not repeat them, In The Queen v, Mackellar; Ex parte Ratu (1977) 137 C.L.R, 461, Mason

"The making of a deportation order under s, 18 therefore provides lawful authority for the removal from Australia against his will of a person who has no right to remain here, It 1s not the case that the order terminates his right to remain; nor can it be said in the ordipary

case that 1t deprives him of a legitimate expectation that he will be allowed to remain here, Deportation, for which the order provides, 1s then but a consequence of the prohibited immigrant's failure to depart when he has no right to remain,"

In Pirogiu's Case (supra) Northrop J, said (at p. 11):-

"The policy of the Migration Act 1s clear. Prohibited immigrants should not be left at large in the community pendira deportation unless the Minister or an authorized

officer exercises his discretion 1n accordance with

s. 39...I consiGer this type of case to be very different

from the normal "bail" case, In those cases a person

has been arrested and charged with a criminal offence

but has not becn convicted Fe is being beld in custody

pending trial and, prima facie, 1s entitled to bail,

In the present case the applicant has not been charged with any criminal offence, He 1s a prohibited immigrant and under the Miqration Act prima facie should be held in custody. Time limits are imposed by s. 38 of the Migration Act and once a deportation order has been made a deportee, prima facie, should be held in custody until deported, s. 39 Magration Act. 'The Court should not interfere with that policy except in exceptional circumstances,"

In my view, no exceptional circumstances exist 1n the present case.

?ecordingly I decline to order the release of the applicant from custody,

Thre Court orders that the application for an order staying the

order of the respondent that the applicant be deported from Australia

and for an order that the respondent be restrained from detazning her

un custody pending the hearing of her substantive application for an order

of review be dismissed; and that the applicant pay the respondent's costs

At a glance

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Judgment (138 paragraphs)

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