KANAGARANTNAM RAVEENDRAN v THE MINISTER OF STATE FOR

obtained on false representation - decision that applicant be refused refugee status made on false premise that applicant

Administrative Decisions (Judicial Review) Act 1977

KANAGARANTNAM RAVEENDRAN v THE MINISTER OF STATE FOR

NEW SOUTH WALES DISTRICT REGISTRY ) No. G842 of 1988 ) )

BETWEEN: KANAGARATNAM RAVEENDRAN Applicant AND: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Respondent JUDGE MAKING ORDER: LOCKHART J. DATE OF ORDER: 8 JULY 1988 WHERE ORDER MADE: SYDNEY

The applicant be released from custody in respect of which he has been held pursuant to sub-s. 36A(3) of the Migration Act 1958.

The first respondent pay the costs of the applicant of this proceeding, including any reserved costs.

The exhibits tendered in the proceeding may be returned to the first respondent.

Settlement and entry of orders is dealt with in Order

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G842 of 1988 ) )

BETWEEN: KANAGARATNAM RAVEENDRAN Applicant AND: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Respondent

Decisions (Judicial Review) Act 1977 ("the Judicial Review

Act") in which the applicant challenges decisions of the Minister of State for Immigration Local Government and Ethnic Affairs ("the Minister") and of certain officers of the Department of Immigration, Local Government and Ethnic Affairs ("the Department") relating to the applicant and to the determination of his status under the Migration Act 1958

The applicant is a citizen of Sri Lanka, and is of Tamil ethnicity. He was born in 1964 in Sri Lanka; he was a student there, and he asserts that more than once during 1986 he was detained by Sri Lankan army personnel, interrogated, and maltreated. He arrived at Kingsford Smith Airport on Air India flight 404 shortly after 8 a.m. on 31 July 1987. On arrival he presented a Sri Lankan passport issued at Colombo in 1985, which was then still current.

The passport contained a visitors visa for entry into Australia which purported to have been issued at the Australian High Commission, Kuala Lumpur, on 27 July 1987 and to be valid for one journey to arrive before 1 August 1988 allowing the visitor to remain in Australia for a stay of some thrée months. The applicant held a_ return ticket to Singapore on an Air India flight départing on 4 August 1987, and a Singapore Airlines ticket for travel from Singapore to

At the time of his arrival, the applicant presented to immigration officers an incoming passenger card indicating that he was holidaying in Australia for some six days. At the passport examination line a temporary entry permit, valid for three months, was issued to the applicant on the basis of his visa. Shortly after the issue of that temporary entry permit to the applicant, customs officers drew certain matters to the attention of the second respondent, Georgina Clark, an officer of the Department who was then on duty at

Ms. Clark then or shortly thereafter made a note of matters that subsequently occurred. That note is in evidence, and I will take certain statements from the note. Ms. Clark records that the applicant "claimed to have no relatives nor even friends here, and was at a loss to explain why he had a V12 visa." The reference to a "Vi2 visa" is to a particular class of visa issued solely for the purpose of

permitting visits to relatives legally in Australia.

Ms. Clark records that the applicant indicated that he intended a five day stay in Australia "as a tourist", but noted that the applicant apparently "knew nothing of Sydney or Australia and had no idea of what he wauld see or do

Ms. Clark records that, because of the absence of what appeared to her to be "any valid or acceptable reasons" for the applicant's being in Australia and because of what' she perceived as an inconsistency between the applicant's account of the reasons for his presence and the nature of his visa, a telephone call to Kuala Lumpur was undertaken to establish certain matters relating to the visa. As a result of what Ms. Clark was told then or shortly thereafter as to matters relevant to the visa interpreter was sought and obtained. The interpreter assisted in the subsequent questioning of the

Ms. Clark then communicated certain matters toa Mr. Peters, an officer of the Department. Mr. Peters decided to refuse to grant to the applicant an endorsed entry permit or an endorsed temporary entry permit pursuant to ss. 6(2) and 16 of the Act respectively and directed the second respondent to place the applicant in custody pursuant to s. 36A(3) of the Act.

Mr. Peters also directed that a notice be served on the Station Manager of Air India requiring the applicant's removal from Australia in accordance with sub-s. 36A(4) of the Act. A statement of reasons provided to the applicant under s. 13 of the Judicial Review Act indicates that in making his decision, Mr. Peters took the view that if the applicant entered Australia he would be a person described in sub-s. 16(1)(b)(i) of the Act, being a person who entered Australia and was not at the time of entry an Australian citizen and who at the time of or prior to entry into Australia produced to an officer in respect of that entry a permit, certificate or visa that was not issued to the person or was obtained by false representation. Mr. Peters also considered that if he did not direct the removal of the applicant under sub-s. 36A(4) of the Act the cost of his

removal would have to be borne by the Australian government.

The applicant was then taken into custody at the airport, and has remained in custody in the Immigration Detention Centre at Villawood since that time. Not long

after he was taken into custody, the applicant had access to

legal advice from the Legal Aid Commission of New South Wales. His legal advisers assisted him to complete an Application for Refugee Status which was forwarded on or about 14 August 1987 to the Determination of Refugee Status

On 8 October 1987, the Department informed the applicant that his application for refugee status had been examined by the D.O.R.S. Committee and that the Committee had recommended against the granting of refugee status. The applicant was advised that the Minister had accepted the D.O.R.S. Committee's recommendation and decided that the application

It appears that in November 1987, Amnesty International requested the D.O.R.S. Committee to reconsider the application for refugee status. On 2 February 1988, the legal adviser of the applicant was informed by Amnesty International that the D.O.R.S. Committee had refused to reconsider the application for refugee status. On 16 February 1988, the Legal Aid Commission sent a letter to the Department enclosing an application for permanent residence made on humanitarian and compassionate grounds and an application for a further entry permit. The Legal Aid Commission was informed by the Department on 7 April 1988

There is in evidence what is called a Policy Control

Instruction issued by the Department, being number PC1330,

which provides guidance to officers of the Department in relation to various forms of application for status under the Act made by Sri Lankan nationals. It appears that Policy Control Instruction PC1330 is intended to apply, not when an application for refugee status is made by a Sri Lankan national, but when such an application has been unsuccessful and the person concerned then seeks an entry permit pursuant

Various decisions are challenged by the applicant in this proceeding. Three decisions relate to the events of 31 July 1987, and they are described in the Amended Application for an Order of Review as (1) the decision of the second respondent, Ms. Clark, of 31 July not to grant to the applicant an entry permit under sub-s. 6(2) of the Act; (2) the decision of the second respondent of the same date to take the applicant into custody pursuant to sub-s. 36A(3) of the Act; and (3) the decision of the second respondent of 31 July 1987 not to endorse the applicant's entry permit and to regard the temporary entry permit as of no force or effect

Challenge is also made to what is described in the Amended Application as the decision of the Minister or his delegates of 8 October 1987 and 23 January 1988 that' the applicant be refused refugee status and residency status.

Finally, challenge is made to the decision of the third

respondent, an officer of the Department, of 4 March 1988 to refuse the applicant a temporary entry permit and residency

I had the benefit of careful and helpful submissions from counsel for the applicant and the respondent which has

assisted me to decide the matter on an ex tempore basis.

The question to which I shall turn first is whether sub-s. 36A(3) of the Act authorised the taking of the applicant into custody on 31 July 1987 at Kingsford Smith Airport. The respondents do not rely upon any source of power other than s. 36A(3), whether sub-s. 36A(2) or otherwise, to support the taking of the applicant into

"(3) Where a person, not being a person exempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other airport in Australia at which he has called in the course of that travel, he may, if an authorized officer so directs, be taken into custody at that first-mentioned airport by an officer and kept in such custody, either at that first-mentioned airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs."

In fact, the applicant had on 31 July 1987 sought an entry permit and had been granted an entry permit valid for

three months at the passport examination line. It was argued

by the respondents that in law no valid entry permit had been granted to the applicant because of the combined operation of sub-s. 36A(3) and sub-para. 16(1)(b)(i)(A) of the Act. The latter provision provides, so far as is presently relevant, that where a person enters Australia who is not at the time of entry an Australian citizen and who at the time of or prior to his entry into Australia produces or causes to be produced to the Minister or to an officer in respect of that entry a permit, certificate, passport, visa, return endorsement, identification card or any other document that was not issued to the person, is forged or was obtained by false representation, that person shall be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in

The respondent submitted that there was an evident statutory scheme that the entry permit to which sub-s. 36A(3) is directed is one that permits the person who enjoys its benefit to in fact enter Australia. Entry into Australia is defined by sub-s. (5)(2) of the Act so far as is relevant as

It was submitted on behalf of the respondent that since the issue of the entry permit to the applicant at the passport examination line on 31 July was based on the visa obtained in Kuala Lumpur in Malaysia, it can be disregarded

representation. It followed, on this submission, that the applicant never had the right to enter Australia, or if he had such a right it was but momentary as he immediately thereafter became a prohibited non-citizen by virtue of the

The respondent then submitted that the applicant never entered Australia within the meaning of that expression in sub-s. 16(2) of the Act since he was taken into custody at Kingsford Smith Airport and thence taken to the Villawood Detention Centre where he has remained. Sub-section 36A(8) of the Act provides that a person shall not, for the purposes of the Act, be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport pursuant to sub-ss. 36(1), 36(2) or 36(3). On this submission, the applicant was at all material times a

prohibited non-citizen who has never entered Australia.

On the respondent's argument, the applicant as a prohibited non-citizen has therefore been outside the scope of the Minister's obligation under Policy Control Instruction PC1330 to take into account the fact that he is of Tamil ethnicity in considering his various applications in suit. If that policy instruction had applied to the case of the applicant, it would have required inter alia that those to whom it is directed treat all applications for resident status from Sri Lankans sympathetically ona case by case

The evidence points to the conclusion that the relevant officers of the Department involved in the events of 31 July 1987 at Kingsford Smith Airport believed that the applicant had arrived in Australia on the basis of a visa obtained by false representations in Kuala Lumpur, and that they believed that doubt also surrounded the authenticity of the

The issue for this Court to determine is, however, not whether officers of the Department held certain beliefs but whether the applicant's visa was in fact obtained by false representation. There is no evidence of any probative value before this Court to support such a finding. ,In particular, the second respondent's notes relating to the events of 31

It is certainly possible that the applicant did in fact obtain his visa by false representations made to officers of the Australian High Commission in Kuala Lumpur. It is true that the applicant said to the second respondent, in effect, that he had no relatives in Australia, but there is no evidence that he was specifically asked if he or others on his behalf had made false representations to the Australian High Commission in Kuala Lumpur or what was otherwise said or done by him or on his behalf in order to obtain the visa. It is possible that the visa was issued in favour of the applicant by mistake, or through confusion, or for some other

reason falling short of false representations made by the

applicant to officers of the High Commission. No officer of the High Commission gave evidence, and indeed there was no direct evidence placed before the Court which went to or was

capable of supporting the finding of misrepresentation.

The allegations made against the applicant ultimately are founded only upon the second respondent's notes of events following the applicant's arrival at Kingsford Smith Airport. Those notes are, in my view, too insubstantial a basis to support a finding by this Court that the applicant's visa was obtained by false representation. I do not suggest for one moment that the second respondent did not hold the belief that the applicant's visa was obtained by false representation, but there is simply no evidence capable of supporting the serious finding which the Court is asked to make if the respondents are to succeed in upholding the

Doubtless the temporary entry permit issued at the passport line at Kingsford Smith Airport could have been cancelled by the Minister or his delegate pursuant to sub-s. 7(1) of the Act, but it is common ground that the entry permit issued to the applicant on his arrival at the passport line was not in fact cancelled by the Minister or his duly authorised delegate under that provision. Although there was a purported cancellation of the temporary entry permit by officers of the Department, which is noted in the passport of the applicant, no reliance is or could have been placed upon

that cancellation by the respondents. In the result, the

applicant was not refused an entry permit at Kingsford Smith Airport on 31 July 1987, within the meaning of sub-s. 36A(3),

The later decision of the Minister or his delegate of 8 October 1987, that the applicant be refused refugee status was therefore made on the false premise that the applicant was not then the holder of a valid temporary entry permit. Subsequent decisions of the Minister or his delegate that the grant of resident status and that further entry permits be refused were made on the assumption that the applicant had not entered Australia and that consequently officers of the Department were not bound to apply Policy Control Instruction PC1330 in considering the application. Officers of the

respondent relied for that assumption on Osman-Lloyd v_ The

Minister for Immigration and Ethnic Affairs, an unreported

judgment of French J. of 5 June 1987, in which his Honour held that Policy Control Instruction PC1330 did not apply to persons who were deemed not to have entered Australia pursuant to s. 36A(8). However, since on my findings the applicant had been taken into custody unlawfully and had entered Australia within the terms of the definition in sub-s. 5(2) of the Act, the factual basis for the

In view of my findings, it is not necessary to consider the submissions of the parties relating to questions of natural justice. The result is that the applicant succeeds

It is important in the interests of the applicant and in the interests of the proper administration of Australian migration laws that the ultimate status of the applicant in this country and under those migration laws be determined as soon as possible. The applicant has been in Australia for almost twelve months and has been in custody throughout that period. Where that custody has been found to have been unlawful, it has obviously been an infringement of the applicant's rights and liberty, although the alternative of deportation may have resulted in greater hardship. On the other hand, the due enforcement of Australia's, migration laws and policies is of high importance. It follows from the Court's decision in this matter that proper consideration should be given to the question whether the applicant should be given refugee status or resident status, although the applicant is now a prohibited non-citizen since his temporary entry permit has expired. The question of the grant to the applicant of resident status should be considered in the light of Policy Control Instruction PC1330 so that his being of Tamil ethnicity will receive the attention required by the policy. The conclusion which the Minister or his delegate reaches following such consideration 1s of course entirely a matter for him, subject to the decision being one that is

In this connection, I would observe that if the Minister seeks to assert that the applicant's visa was improperly obtained or issued on the basis of a false representation, or that the passport of the applicant was improperly tampered with, then the facts relating to those matters should be ascertained as soon as possible. Obviously those matters are relevant and important considerations in processing any application of the applicant as to his status in this country. Once the facts have been ascertained they should be squarely put to the applicant so that he may have _ the

opportunity of responding to any allegation made against him.

I propose to order that the applicant be released from custody in respect of which he has been held pursuant to sub-s. 36A(3). I do not propose to make any orders for reconsideration of the decisions previously made. The parties may take whatever lawful course they deem appropriate in determining the proper status of the applicant under the migration laws and applicable policies. As the applicant is a prohibited non-citizen, given the expiry of his temporary entry visa by effluxion of time, the Minister will doubtless wish to give careful and immediate consideration to his future. I propose, therefore, to stay the operation of these orders until 4 pm today at which time they shall commence to

Accordingly, the orders of the Court are that the applicant be released from the custody in respect of which he

has been held pursuant to sub-s. 36A(3); that the first

respondent pay the costs of the applicant of this proceeding, including any reserved costs and that the exhibits may be

The operation of the Court's orders is stayed until 4 pm

today. I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart. Associate A, Blok, - . Date: 8 July 1988 Counsel for the Applicant: Mr. G. Scragg Solicitors for the Applicant: Legal Aid Commission of New South Wales Counsel for the Respondents: Mr. R. Greig Solicitors for the Respondents: Australian Government Solicitor Date of Hearing: 7 July 1988