George Weston Foods Ltd v Brownes Dairy Pty Ltd [1981] FCA 66

Federal Court of Australia|1981-05-27|Before: Sheppard J, Toohey J, Toqhey J

Trade Practices - Copyright - Interlocutory injunction Similar products - similarity of packaging and television advertising - breach of Copyright Act - breach of Trade Practices Act - Relevant market under Trade Practices Act. Copyright Act 1968 (Cth.), ss. 10, 32, 35, 77, 115, 117 Trade Practices Act 1974 (Cth.) ss. 52, 80, 82

GEORGE WESTON FOODS LIMITED v. BROWNES DAIRY PTY. LIMITED

IN THE FEDERAL COURT ) OF AUSTRALIA ) No. WA G20 of 1981 GENERAL DIVISION )

Limited v. Brownes Dairy Pty. Limited, S.A. No. G33 of 1981.

I adopt the reasons for decision just delivered by me in that matter. For those reasons the application will be

Immigration and aliens - immigrant produces to customs officer passenger card containing a false statement - whether immigrant to be deemed to be a prohibited immigrant - whether circumstance that she believed card_ to be correctly filled in is a relevant consideration - whether immigrant produced card for purpose of securing entry into Australia - whether question of whether immigrant a prohibited immigrant for the Minister or the Court - onus of proof - Migration Act 1958, ss.16, 31 and 67; Migration Regulations, regs. 3 and 43; Administrative

TRENDAFILA NAUMOVSKA v. THE MINISTER FOR IMMIGRATION AND

NEW SOUTH WALES DISTRICT REGISTRY No. G 179 of 1981 GENERAL DIVISION

THe MINISTER FOR IMMIGRATION AND STHNIC AFFAIRS AND JOHN MENADUE ~

By her application in this matter the applicant seeks the review, pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of a decision said to have been made by the Minister to deport her from Australia. Alternatively the applicant seeks the review, pursuant to s.6 of the Judicial Review Act,in respect of conduct on the part of the Minister said to have been engaged in for the purpose of making a decision to deport the applicant. In the result it was the latter claim which the applicant pursued, 1f not to the exclusion of the former, then almost so.

The applicant arrived in Australia on 30 March, 1980.

She was in the company of her parents. There had been

issued to her by the government of Yugoslavia a passport showing that she had been born on 22 November, 1956. Before leaving Yugoslavia she had obtained from the Australian immigration authorities a visa which was stamped in her passport. The visa was for resident entry and indicated that she intended to migrate to this. country. The visa bore a notation, "Must accompany mother holder of visa No: 16178P", The applicant's father had been a resident of Australia until 1977. He had returned to Yugoslavia where he remained until the family left for Australia at the end of March 1980. The family wished to settle in Australia.

The applicant and her mother and father left Yugoslavia in a Yugoslav Airlines aircraft bound for Sydney. About the time the aircraft landed cards described as incoming passenger cards were issued by members of the aircraft crew to all passengers. The printing on the cards is in English. The applicant did not speak or read English; nor did her mother. The father can read very little English. The applicant was assisted by a stewardess to fill out the card. For the most part it is filled

out in the applicant's handwriting. In a space numbered

8 she placed an "X" in the square beside the words "Never Married", The alternatives were, "Now Married", "Widowed" and "Divorced",

The statement that the applicant had never married was incorrect. On 24 December, 1979, she had married one Lupco Naumovska. In her evidence she said that her husband knew that she was proposing to go to Australia with her family, "and he agreed that I should still go, and that I should - _ make an application to get him to Australia after I arrived". The applicant also said that she was "aware" that husbands and wives could obtain approval for their spouses to come to Australia after they had come to Australia themselves. That statement represented the applicant's belief, but evidence led on behalf of the respondents establishes that under a points system in force at the relevant time it is unlikely that the applicant's husband would have been permitted to enter Australia as a permanent resident. He has been per- mitted to come to Australia under a temporary entry permit.

The applicant, or her father on her behalf, presented to a customs officer, Mr. Wright, at the Sydney airport her passport, visa and incoming passenger card. The passenger card was retained. The applicant was issued with an entry permit the effect of which entitled her to remain in Australia indefinitely. She might leave Australia and return provided she returned within three years from the

Before referring to more of the evidence it is necessary to mention some of the provisions of the Migration Act 1958 ("the Act"), Section 6(2) of the Act provides that an officer (which expression includes a customs officer such as Mr. Wright) may, in accordance with the section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit. Section 6(2A) provides that the Minister may, in accordance with the section and at the request or with the consent of an immigrant who has entered Australia, grant to the immigrant an entry permit other than a "temporary entry permit", Temporary entry permits are provided for in s.6(6) of the Act and are permits expressed to authorise the persons to whom they relate to remain in Australia for specified periods only. Section 6(1) provides that an immigrant who, not being the holder of an entry permit that 1s in force, enters Australia thereupon becomes a prohibited immigrant. As I have mentioned the entry permit granted the applicant was not a temporary one. Subgect to what follows she is therefore entitled to remain in Australia indefinitely. However, s.16(1) of the Act provides for a number of circumstances in which a person,

notwithstanding s.10 of the Act, shall be deemed to be a

prohibited immigrant. It 1s not material to refer to

after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia as an immigrant -

for the purpose of securing entry into Australia produces or praduced to an officer -

(i) a permit, certificate, passport, visa, return endorsement, identification card or other document that was not issued to him or is or was forged or was obtained by false representation; or

(11) a passenger card that contains information that 1s false or misleading in a material particular;

for the purpose of securing a visa or a return endorsement, or an entry permit permitting a person to remain in Australia, produces or pro- duced to the Minister or to an officer a document of a kind referred to in sub-paragraph (i) of paragraph (b); or

at the time of entry 1s or was a person of any of the following descriptions, namely:

(i) a person suffering from a prescribed disease or a prescribed physical or mental condition;

(ai) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;

(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year;

(iv) a person who has been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while he was of unsound mind;

"(v) a person who has been deported from Australia or another country; or

(vi) a person who has been excluded from another country in prescribed circum- stances,

that person shall, notwithstanding section ten of this Act, be deemed to be a prohibited immigrant unless he is the holder of an entry permit endorsed with a state- ment that the person granting thet permit recognizes - him to be a person referred to in this sub-section." The immediately relevant provision of s.16 is s.16(1)(»b)(1i) which in effect provides tnat a person is deemed to be a pro- hibited immigrant if, for the purpose of securing entry into Australia, he produces to an officer a passenger card that contains information that is false or misleading in a material particular. It is the respondents' contention that the applicant 1s to be deemed to be a prohibited immigrant because she produced to Mr. Wright the incoming passenger card earlier referred to on which was contained the false or misleading information that she had never married. With s.16 should be compared s.31 of the Act which makes

1t an offence to present or produce forged or false documents

or to make false representations. The provisions of s.31(1)

"31.(1) A person shall not, in connexion with the entry, or proposed entry, of an immigrant (including that person himself) into Australia or with an application for an entry permit or a further entry permit permitting an immigrant (includinz thet person himself) to remain in Australia -

(a) present to the Minister or to an officer a docu- ment wnich is forged or false;

(b) falsely represent to the Minister or to an officer that he or another person 1s the person named in a document;

"{c) produce a document to the Minister or to an officer with intent to deceive or mislead him; or

otherwise furnish for official purposes of the Commonwealth, a document containing a statement or information that is false or mis- leading in a material particular."

There is no definition in the Act of the expression "passenger card". Nor is there any express provision - dealing with its prescription by regulation. But,

s.67 of the Act contains the usual provision that the Governor-General may make regulations prescribing all matters which by the Act are required or permitted to be prescribed

or which are necessary or convenient to be prescribed. Reference to passenger cards is to be found in the regulations made pursuant to the Act. Regulation 4(1) provides that where an overseas passenger arrives at a port in Australia

an officer may require the passenger to complete a passenger card, to sign the passenger card and to furnish the passenger card to an officer. The regulation contains other provisions concerning passenger cards to which it is unnecessary to refer. "Passenger card" is defined in regulation 3 to mean a card approved by the Minister for the purpose of facilitating the furnishing by a person of information relating to the person or to another person, being information required for purposes

However, paragraph (b) of s.16(1) was inserted into the Act by the Migration Amendment Act 1979 (Act No.117 of 1979, s.10). The regulations to which I have referred were already in force when the amending Act was passed. It follows that, notwithstanding the provisions of s.67 of the Act earlier referred to, the regulations in question could not be a relevant prescription pursuant to that section because they were in force prior to the amendment to the Act which introduced the expression "passenger card" into the legislation for the first time.

Nevertheless I am prepared to conclude that the legis- lature intended to refer to a card of the kind provided for in the regulations. But there remains a difficulty.

There is no evidence that the card here was in a form which had been approved by the Minister. That has led the applicant to submit that I cannot be satisfied that the card upon which the relevant entry appears was a passenger card for the purposes of the relevant sub-paragraph of

I should next say something about the course of the hearing. The primary submission relied upon by the Minister was that, upon the material before him, he was justified in his determination that the applicant was to be deemed to be a prohibited immigrant because she had produced to an officer a passenger card containing information that

was false or misleading in a material particular, In the

submission of the applicant that was an irrelevant consideration. The question of whether the applicant was a prohibited immigrant was to be decided upon objective considerations. In other words, it was for the Court to determine for itself whether she was guilty of conduct which contravened sub-paragraph (b)(ii) of s.16(1) of the Act.

The evidence closed without there being any account of what had occurred after the applicant left the aircraft. Her evidence was silent on her encounter with the customs officer who was in fact Mr. Wright. Mr. Wright was not initially called to give evidence. The evidence was in that state when the cases of both parties closed and addresses commenced. The fundamental difference in approach of counsel for the parties was then revealed. It became clear that the Minister through his counsel rested his case entirely on the proposition that there was material before him justifying the conclusion that the applicant was to be deemed to be a prohibited immigrant because of the operation of s.16(1)(b)(ii) of the Act. So confident were the Minister and those advising him that this was the case that reliance was not sought to be placed upon any other argument.

After discussion during the addresses the respondents'

counsel and those instructing her thought the better of

to re-open the respondents' case for the purpose of leading evidence as to what had transpired at the immigration counter at the Sydney airport on the morn- ing of 30 March, 1980. I said I would consider the application when it was properly supported by an affidavit or affidavits and adjourned the matter so that these affidavits might be filed. The hearing resumed on 19 March, 1982.

For reasons which appear in the transcript I refused the application to re-open the respondents' case and counsel continued their addresses. In the course of the address of counsel for the applicant I raised with him the question of whether any adverse inference should be drawn against the applicant because she herself had not given evidence of what transpired when she produced her passport and visa and the passenger card. He decided then to make an application to re-open his case for the purpose of leading this evidence. His application was not opposed provided the respondents were allowed to call evidence in reply to the fresh evidence. Counsel for the applicant agreed to the imposition of that condition. The matter was further adjourned. The applicant and her

father gave further evidence. Mr. Wright was called to

give evidence of his recollection of the events of the day in question. Despite the delays the benefit which the course

expected Mr. Wright had no particular recollection of

the applicant but was able to give an account of what

must have transpired by reason of the system which was

also accept the evidence given by the applicant and her

father, It is not in conflict with that of Mr. Wright.

It is next necessary to refer to some of the detail

of the evidence. In her original affidavit the applicant

described the circumstances in which she came to place a

cross in the square opposite the words, "Never Married".

She said: "I arrived in Australia by aircraft with my mother and father, On that plane we were given forms to fill in and I remember a woman who spoke Serbo- Croation trying to assist us to complete the forms. I had great difficulty understanding her. I remember some forms, which were in English, and I think there were some Serbo-Croation also, but I couldn't read either in English or Serbo-Croation. I think the lady was a stewardess on the plane which was of the Yugoslav Airlines JAT. As best as I can remember, she asked me in Serbo-Croation what I thought to be "Are you alone' and I told her 'No, I am with my parents' and pointed them out to her.

She then showed me where to mark the form, Nobody esked me whether or not I was married. If anyone

"had asked me I would have told them I was married. At no time did I intend to deceive or mislead anyone and I do not believe that I did mislead or deceive anyone."

I should mention at this point evidence given by the applicant that her native language is Macedonian. The interpreter was sworn to interpret the applicant's evidence _ from the Macedonian language into the English language.

The interpreter did say that the applicant at times used some Serbo-Croation words. Nevertheless I accept the applicant's evidence that she does not speak or understand the Serbo-Croation language very well.

The applicant was cross-examined about a number of the aspects of her evidence for the purpose of attempting to persuade me that I should not accept her evidence of the circumstances in which she came to place a cross beside the words "Never Married" on the passenger card, It was sub- mitted that I should infer that she knew full well, when she filled out the card, that she was making a false state- ment. I reject that submission. I do so because I formed a favourable impression of the applicant as a witness. It is true that she gave evidence with the aid of an inter- preter and that this made it more difficult to form an

impression of her credibility. But I thought that she was

very frank 1n the answers which she gave. One matter that

impressed me very much was the fact that she obviously saw nothing wrong in what she had done. She visited the department soon after her arrival in Australia for the purpose of making application for an entry permit or visa for her husband. It was this visit which led to enquiries being made as to the circumstances under oo, which the applicant had entered Australia and eventually to her being declared a prohibited immigrant.

Other evidence to which I should refer is concerned with the material which was before the Minister when he made his decision. There 1s some evidence that when the applicant applied for and was granted the visa in Yugoslavia she was furnished with documents which made it clear to her that she was to inform the Australian migration office if she were to marry before leaving Yugoslavia. The difficulty about giving tnis material any great weight is that the documents were written either in English or Serbo-Croation or both and the applicant has sworn that she did not under-

Finally, in relation to the evidence, I was asked, upon the basis of answers to questions put to the applicant when cross-examined upon the fresh evidence which she gave, to conclude that she knew when sne produced the card to Mr. Wright at the airport thet she was doing so for the purpose of securing entry into Australia. I have read the questions and answers a number of times and am unable to be satisfied that that was so. I think, as I indicated to counsel for the respondents at the time, that there 1s a real question as to whether the applicant understood the import of the questions. This was not counsel's feult, She did her best to draw the applicant's attention to the matter she wished to investigate. But,despite the presence of an interpreter, the barriers o> language, the obvious anxiety of the applicant about her predicament anc the applicant's intellect worked together to make it quite unsafe for the conclusion contended for by counsel to be drawn. That 1s not to say that upon the whole of the evicence I ought not to infer that the applicant was aware when she produced the card that she was doing so for the purpose of securing entry into australia. That is a matter to which I shall return.

Since the conduct of the Minister was threatening the

applicant's right to remain in Australia and also her

show that his threat of arrest and deportation were Justified 1n law.

He could only do so by establishing, as an objective fact, that the applicant was a prohibited immigrant.

In order for that to be established the Minister had oo to prove that the applicant produced a document which was a passenger card within the meaning of s.16(1)(b)(11) of the Act to an officer, that such card contained information that was false or misleading in a material particular and that the card was produced ty the applicant for the purpose of securing entry into Australia.

There was no evidence or other material which established that the card in question was a passenger card for the purposes of the paragraph in question,

In order for it to be established that the applicant was a prohibited immisrant it had to be shown that she knew when she produced the card that it contained a false entry and that she was producing it for the purpose of securing entry into Australia - in other words mens rea was an element in the series of facts which had to be established before she was to be deemed to be a prohibited

taken of the word "purpose" in the provision. This imported a subjective element, Even if there was

no requirement to establish mens rea, nevertheless one had to be satisfied that the applicant had the requisite purpose before 1t could be said that she

If, contrary to earlier submissions, the respondents bore no onus, the evidence positively established that the applicant did not produce the card, containing as it did the false or misleading information, for the

Tne question of whether tne applicent was a prohibited immigrant was for the Minister and not for the Court. The Court's only task was to enquire into the question of whether the Minister had reached his conclusion that the applicant was a prohibited immigrant on the basis

of adequate material and reasonable grounds. Alternatively it was for the applicant to establish that the conduct in which the Minister was engaging was unlawful. I could not be satisfied upon the evidence

that she was unaware that the passenger card contained

a misleading statement or that it was not produced by her for the purpose of securing entry into Australia.

Alternatively, the evidence plainly established that the applicant was a prohibited immigrant. The test was an objective one; no consideration of her state of mind was relevant to be taken into account. If, contrary to this submission, her state of mind was a relevant consideration the evidence established that she was aware, when she produced the passenger card, that 1t contained a misleading statement concerning her marital status. It also established that the applicant produced the card for the purpose of secur-

I propose to proceed by resolving at the outset the question raised by the respondents' first submission. The distinction between cases where a question such as that in 1ssue here - did the applicant produce a passenger card containing false or misleading information for the purpose of securing entry into Australia? - is for the executive and cases where such a question is for the Court was referred to in the speech of Lord Wilberforce in Zamir v. Secretary of

State for the Home Department (1980) A.C. 930. His Lordship said (p.948):

Act of 1971, is, he (counsel for the appellant) submitted, not a case of an administrative

decision reviewable on grounds applicable to such decisions, but is a case where the exercise of power, or jurisdiction, depends upon the precedent establishment of an objective fact. In such a case it is for the court to decide whether that precedent requirement has been satisfied. That this distin- ction exists is clear enough: it is vouched by

such well known authorities as Eshugbayi Eleko v. _ Government of Nigerza (1931) A.C. 662 and Rex v. ecretary of State for Home Affairs, Ex parte Greene at p.108." The authorities to whicn his Lordship referred show that the answer to the question depends upon the true con- struction of the relevant statute or statutory instrument. In the present case I have reached the conclusion that the question should be decided adversely to the respondents. I have reached that conclusion principally because of the way in which s.16 of the Act is expressed. There 1s no reference to the Minister or to his being satisfied or being of opinion that one or other of the states of affairs mentioned in sub-section (1) exists. It should be remembered that a person granted an entry permit, temporary or otherwise, acquires a right of residence. If he becomes a prohibited immigrant, the consequence may be deportation. That may involve not only removal from this country but a period of detention before that can take place. One would not

lightly infer, in the absence of clear words, that power to

deprive any member of the community of his liberty was intended by parliament to be vested in the executive without power of adequate review by the court. I make that statement not unmindful of the fact that that was the outcome of Zamir's case which was strongly relied upon by counsel for the respondents. But the legis- lation which there concerned the House of Lords was in very different terms from that in question here. That is the explanation for the different result reached in Zamir's case.

It is next necessary to deal with the respondents' submission that the applicant bears an onus of proof.

The submission is based upon what was said by the Court

of Appeal in England in Rex v. Secretary of State for Home Affairs; ex parte Greene (1942) 1 K.B. 87 (a case cited

by Lord Wilberforce in Zamir's case), concerning the prima facie effect of a deportation order. There the Court

said that an onus of showing that such an order was invalid rested on the applicant - see, for example, per MacKinnon L.J. at p.108. The order was a sufficient warrant to gustify the Home Secretary and the applicant's gaoler for having the applicant in custody. This matter was alluded to by Evatt J. in the High Court in R. v. Carter; ex parte Kisch (1934) 52 C.L.R. 221. Evatt J. said that the general

onus as to the legality of detention is upon the respondent (p.227). The respondent was the master of a vessel upon which the applicant for a writ of habeus corpus was held prisoner. His Honour went on to say:

disputed point". The legislative provision which was in question was s.3(gh) of the Immigration Act 1901-1930. The section prohibited the immigration into the Commonwealth of any person declared by the Minister to be in his opinion, from inform- ation received from the government of the United Kingdom or of the governments of other countries referred to in the section, undesirable as an inhabitant of, or visitor to, the Commonwealth, The order merely referred to "another part of the British Dominions", That was held by the Court not to be a sufficient specification for the purposes of the section, It may be that the dictum from the judgment of Evatt J. which I have quoted should be

read as saying no more than that the deportation order was

invalid on this ground. That was the submission of counsel

Honour intended what ne said to be restricted in this

follow what he has said, obiter though it may be, rather than follow the explicit statements in Greene's case earlier referred to. However, I have reached the con- clusion that I may leave the question open for two reasons. Firstly, there 1s here no deportation order which could

gustify the threatened taking into custody ane deportation

of the applicant. The Minister has to justify his threatened action against the applicant upon the basis of it being demonstrated that she is a prohibited immigrant. It is for him to establish that she is; otherwise his threatened conduct is unlawful. Secondly, because eventually all relevant evidence was led, the matter will not be decided upon any onus of proof. The evidence is clear. It is a question of what flows from my findings of fact. That was the approach also of Evatt J. in Kisch's case (p.227).

The evidence plainly establishes that the passenger card was marked by the applicant 1n such a way as to indicate that she was unmarried. It further establishes

that at the time she put a cross in the relevant square

She did because that was what the stewardess indicated that she should do. Her innocent state of mind is established, I am satisfied, as I have earlier said, because within a very short time of her arrival she naively went to the department in Sydney to seek a visa for her husband upon the basis that she herself was lawfully here and that he, as her husband, should be allowed to follow her. She produced her passport and visa, the passport then also stamped with her entry permit, 1n support of the application and thus set in motion the very train of enquiries which have led to her present problems.

No one at the Sydney airport told her that when she passed through the immigration counter she would be required to produce the passenger card along with her passport and visa, although it is reasonable to infer that she would have expected to hand it over. No one told her, let alone explained to her, that when she pro- duced the card, she would (or could or might) be taken to be doing so for the purpose of securing entry into

The competing submissions of the parties concerning the applicant's state of mind ranged over a wide area. Considerable discussion took place concerning the circum- stances in which the Court will anfer that parliament intended an offence to be established notwithstanding absence of evidence of a guilty mind on the part of the accused, Much reliance was placed by counsel for the applicant upon the provisions of s.31 providing for offences where conduct similar to that specified in s.16 has been committed. Counsel for the respondents, on the other hand, submitted that there was not necessarily any parallel to be drawn between the two provisions. Some conduct having the effect of making a person a prohibited immigrant in s.16 had no counterpart in s.3l1. I instance that specified in s.16(1)(c) which makes a person a prohibited immigrant if that person is suffering from a prescribed disease or a prescribed physical or mental condition.

I have reached the conclusion that the submission of counsel for the respondents 1s to be preferred. One cannot put aside the purpose and obgect of the legislation which

is to protect the Australian community from having amongst

its citizens people whom the legislature, for one reason or another, regards as undesirable. That was the view of the similar provision then in force taken by Sholl J. 1n R. v. Governor of Metropolitan Gaol; ex parte Di Nardo (1962) 3 F.L.R. 271. The relevant - provision was one which made a person a prohibited immigrant where, for the purpose of securing entry into Australia, he produced to an officer, inter alia, a visa which was forged. Upon entering Australia the applicant produced a forged visa. The Minister for Immigration ordered his deportation as a prohibited immigrant. The respondent held the applicant in custody pending his deportation. His Honour held that ignorance of the forgery was immaterial. He said (p.275): "There is no element of guilty knowledge required by s.16(1)(b). The legislation does not use, nor does its language imply, any words such as 'knowing it to be forged', or 'with intent to defraud'. So long as an immigrant, for the purpose of securing entry into Australia, produces to an officer a document of the kind described in par.(b), which was in fact (whether he knew it, or not) - (1) not issued to the applicant, or (2), forged, or (3),

obtained by false representations (whether of the applicant or anyone else), he falls within the para-

graph. Any interpretation of the paragraph requiring

a subjective element in relation to those matters would not only be opposed to the obvious purpose of

the legislation; it would be opposed to commonsense,

and render the administration of a very important federal statute thoroughly impracticable."

It was submitted by counsel for the applicant here that I should not follow his Honour in the views which he has expressed in that passage. But his Honour's decision is 20 years old. The Act has been amended on a number of occasions during that period.

I should therefore follow his decision unless I am satis- fied that it is plainly wrong. On the contrary I am clearly of opinion that what his Honour said is right. His remarks are in accordance with the view of the law

Before proceeding I should say that nothing I have said is intended to indicate any opinion one way or the other as to whether guilty knowledge is required to be established where a person is charged with an offence under s.31 of the Act. That 1s a matter which I leave open.

There remains the question, however, of whether the evidence establishes that the applicant produced the passenger card for the purpose of securing entry into Australia. That 1s a different question from the question of whether she knew that the entry concerning

her marital status was false. It was not a question

nevertheless the submission of counsel for the respondents that the circumstances had to be looked at obgectively rather than subjectively from the standpoint of the applicant. The word "purpose" is used in a variety of

statutory provisions, some providing for offences if acts are done for particular purposes and some not at all in the field of criminal law. I have read a number of authorities and looked at standard dictionaries where gudicial definitions of words are collected. In the end it is a question of the construction of the statute which is immediately in point. For reasons earlier given I do not think that this matter should be looked at with there being present in mind any of the overtones of the criminal law, Nevertheless the most assistance which I have obtained from a reading of the authorities is in a dictum from the speech of Lord Devlin in Chandler v. Director of Public Prosecutions (1964) A.C. 763. His Lordship said (pp.804-805):

for both sides have relied on this word in differ- ent senses. Broadly, the appellants contend that it is to be given a subjective meaning and the Crown an objective one.

I have no doubt that it is subjective. A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the

by the contemplated act, or it can be used to desig- nate those objects which he knows will probably be achieved by the act, whether he wants them or not.

I am satisfied that in the criminal law in general, and in this statute in particular, its ordinary sense is the latter one. In the former sense it cannot

in practice be distinguished from motive which is. normally irrelevant in criminal law. Its use in that_ sense would make this statute quite inept."

I refer also to the judgment of the Privy Council in Newton v. Commissioner of Taxation (1958) A.C. 450, where the Board quoted with approval what nad been said by Williams J. in tne High Court (p.465). His Honour had said:

" The purpose of a contract, agreement or arrange- ment must be what 1t is intended to effect and that intention must be ascertained from its terms. Those terms may be oral or written or may have to be inferred from the circumstances but, when they have been ascertained, their purpose must be what they effect."

96 C.L.R. at p.630. I mave referred also to Sweet _v. Parsley (1970) A.C. 132 which was referred to extensively in argument. It was a case involving the criminal law,

In approaching the question of construction which is involved it would seem to me that I should caution myself against taking too much from cases involving the criminal

law, that I should be careful to distinguish motive from

purpose, that 1t is sufficient if a purpose of the applicant

was to secure entry into Australia and that I should take the view that if from the evidence it might reasonably be inferred that one of her purposes in producing the card was to secure that entry, she will come within the provisions of the section upon which the respondents rely. Nevertheless one cannot put aside the fact that it is her purpose which is in question and that for her to have the relevant purpose she must be seen to have addressed her mind to the question of what was required for her entry into Australia.

I confess thet I have not found the resolution of the ultimate question easy. But I have reached the con- clusion that upon the whole of the evidence it cannot in truth be said that she produced the card, containing as it did a false entry, for the purpose of securing entry into Australia. The documents which she produced for this purpose were the passport and the visa. She was a citizen of Yugoslavia who had never before visited this country. She spoke no English. No official from the migration office or the customs office explained to her what was involved or what the purpose of the card was. All she did was to follow instructions from a stewardess on the

For the reasons I have given I conclude that the applicant is not a prohibited immigrant. She holds an entry permit unlimited in time. She is not therefore liable to be deported.

My conclusion makes it unnecessary to deal with the further submission of counsel for the applicant that there is no evidence that the card filled out by the applicant was a passenger card for the purpose of the section. That is a matter upon which I express no opinion.

I do not propose to make final orders now. The matter will be stood over for a short period to enable counsel to consider what I have said. When the matter is again in the list counsel for the applicant is to bring in

short minutes of order to give effect to my decision.

At a glance

Court

Decision date

Before

Source

Judgment (150 paragraphs)

Cited By (4)