Administrative Decisions (Judicial Review) Act 1977 s.15, paras. 5(1)(e), 5(2)(b), 16(1)(a), 16(1)(c)

Migration Act 1958 ss. 5, 7, 11, 18, 31A, 55 sub-ss.7(4), 8(1), 9(1), 16(1AA), 27(2A), 31B(2), paras. 6A(1)(b), 6A(1)(e), 11A(1)(a), 11A(1)(b), 16(1)(a), 16(1)(c), 27(1)(ab), 27(1)(c), 55(1)(g), sub-paras 16(1)(b)(ii), 16(1)(ba)(ii), 27(1)(c)(ii)

Acts Interpretation Act 1901 s.8(c), sub-s.8(2)

Migration Amendment Act 1983 s.14 sub-ss. 8(1), 8(2), 38(2), 38(5)

Migration (Miscellaneous Amendments) Act 1983

Australian Citizenship Act 1948 sub-ss.25(7), 25(7A)

Palko v. Minister for Immigration and Ethnic Affairs (1987) 77 A.L.R. 125

R v. Liveris; Ex parte da Costa (1962) 3 FLR 249

R v. Commissioner of Police; Ex parte Ivusic (1973) 20 FLR 412

Ex parte Lee Yum Bo; Re Morony (1964) 6 FLR 235

Griffin v Wilson [1935] HCA 16; (1935) 52 CLR 260

Williamson v. Ah On [1926] HCA 46; (1926) 39 CLR 95

Maher v. Young [1931] NSWStRp 17; (1931) 31 SR(NSW) 363

Ah You v. Gleeson [1930] HCA 25; (1930) 43 CLR 589

Ah Hing v. Hough (1926) 28 WALR 95

Southend-On-Sea Corporation v. Hodgson (Wickford) Ltd (1962) 1 QB 416

Brickworks Limited v. The Council of the Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568

Wyong Shire Council v. Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114

Robertson v. Minister of Pensions (1949) 1 KB 227

Howell v. Falmouth Boat Construction Co. Ltd (1951) AC 837

Wormald v. Gioia (1980) 26 SASR 237

Wells v. Minister of Housing and Local Government (1967) 1 WLR 1000

Gowa v. Attorney-General (1985) 1 WLR 1003

Kioa v. West [1985] HCA 81; (1985) 159 CLR 550

Politis v. Commissioner of Taxation Unreported (Federal Court of Australia, Lockhart J., 20 December 1988)

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 66 ALR 299

Issam Wahab Hindi v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia; Sheppard J., 30 September, 1988)

Solicitors for the Applicant: Messrs. B.F. Stokes and Associates

Solicitor for the Respondent: The Australian Government Solicitor

The deportation order signed by the respondent's delegate on 15 April 1988 be quashed.

The decision of the authorized officer of the respondent made on 15 April 1988 not to grant an entry permit to the applicant be set aside.

The decision of the authorized officer of the respondent made on 15 April 1988 not to permit the voluntary departure of the applicant from Australia be set aside.

The matter be remitted to the respondent for reconsideration according to law.

The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") seeking orders to review various decisions made by an officer ("the decision-maker") of the respondent's Department ("the Department"), either as an officer authorized by the Migration Act 1958 ("the Act") to make such decisions or as an officer to whom the power to make such decisions had been delegated by the respondent under the Act. The decisions concerned the refusal of an entry permit and an order that the applicant be deported from Australia.

2. It is necessary to set out the facts of the matter in some detail before dealing with any questions of law raised by those facts.

3. The applicant is a Filipino citizen born on 15 January 1956 and until May 1981 she resided in the Philippines.

4. In September 1980 the applicant accepted a proposal of marriage from an Australian resident, Bradley, who thereupon made application to sponsor her migration to Australia as his intended spouse.

5. In October 1980 the applicant signed a statement confirming that the information provided by her in her application for permission to migrate to Australia was correct in every respect and that there were no omissions of information or incorrect or misleading statements contained therein. The statement contained an acknowledgement that if the information were found to be misleading she may be required to depart from Australia. In an interview conducted by an officer of the respondent's Department in Manila in October 1980, the applicant advised the officer that she was a spinster and had no children.

6. The applicant arrived in Australia as a migrant in May 1981 and was granted an unconditional entry permit. The applicant and Mr Bradley were married in Perth on 19 September 1981.

7. In October 1981, the applicant made an application for the grant of Australian citizenship. Apparently the Department did not process that application because the applicant's period of residence was insufficient for a grant of citizenship. However, in that application the applicant disclosed that she was the mother of a three year old child residing in the Philippines whom she wished to include in her application for citizenship. A copy of the application was not amongst the papers perused by the decision-maker, although he referred to it in his reasons for decision.

8. In December 1981, the applicant left Bradley because she could not cope with the stress imposed by her husband's conduct. A reconciliation was attempted but achieved nothing. On 14 March 1983, the Family Court of Western Australia issued a decree dissolving the marriage from 15 April 1983. The material before the decision-maker indicated that the applicant had endeavoured to make the marriage work. Bradley's sister and his sister-in-law each confirmed that Bradley had ill-treated the applicant and throughout the marriage the applicant had been subjected to physical and emotional abuse.

9. Material held on departmental files compiled by a social worker employed by the Department and placed before the decision-maker, confirmed the problems the applicant experienced in her marriage to Bradley. The file also set out details of the employment the applicant had obtained.

10. After lodging her citizenship application in October 1981, the applicant visited her family in the Philippines on two occasions, firstly, between 28 June and 21 September 1982, and secondly between 10 May and 7 June 1983. Pursuant to sub-s.9(1) of the Act as it then read, an entry permit granted to an immigrant ceased to be of force or effect if such a person departed from Australia. Accordingly, on each re-entry it was necessary for the applicant to be granted a new entry permit. The applicant was granted an unconditional entry permit on each occasion.

11. In November 1983, the applicant lodged another application for the grant of Australian citizenship. In that application, she again stated that she had a child, Jhouaney Gay Rubrico, born 3 July 1978 who resided in the Philippines. The applicant stated that the applicant's surname was Makahekung and that her former name was Rubrico and she signed the application as Honey Rubrico Makahekung.

12. After lodging that application for citizenship in November 1983, the applicant visited her family in the Philippines on two occasions - between 14 and 30 January 1985, and 27 June and 1 August 1986. After 2 April 1984 s.9 of the Act provided that an entry permit granted to a non-citizen ceased to be of force or effect if that person departed from Australia. The applicant was granted an unconditional entry permit upon her return to Australia on each occasion.

13. In February 1984, the applicant sought and obtained permission from the Department to use the surname Rubrico.

14. The decision-maker 's reasons for decision state that the applicant was interviewed in the Perth office of the Department on 10 February 1984, but no record of that interview was included amongst the papers referred to by the decision-maker.

15. On 7 May 1984 a telephone call to the Department reported certain information relating to the applicant. The information appears to have been provided by a person with whom the applicant had shared a de facto relationship between November 1982 and January 1984. No action was taken in respect of that information.

16. On 19 June 1985, the applicant was interviewed by an officer of the Citizenship and Control Division of the Department, apparently to clarify matters raised in the applicant's application for a grant of citizenship made in November 1983.

17. In that interview the applicant stated that Makahekung was her father's name and Rubrico the maiden name of her mother. She further stated that she had entered an arranged marriage in 1971 at the age of fifteen years. The marriage was not consummated. The applicant left her spouse the day after the marriage. She stated that her spouse was killed in the course of his employment as a security guard in 1974. The applicant stated that she considered herself as single rather than a widow.

18. She stated that at twenty-two years of age she had given birth to a daughter on 3 July 1978 as a result of a relationship she had formed with a twenty-eight year old man, Antonio Dumaguing, who had left her when she was three months pregnant because his parents were opposed to the marriage of their son to a person with her background of poverty.

19. A statutory declaration was prepared as a result of this interview and in that declaration the applicant stated that Dumaguing was a member of a wealthy family and had refused to marry her.

20. On 7 January 1986 the applicant attended the Perth office of the Department for interview by an officer of the Enforcement Division. The officer had a prepared list of type-written questions. The content of thos questions indicated that some of the information provided by the applicant on a previous occasion was regared as misleading. In that interview the applicant confirmed her previous statements about the details of her name. She stated that she did not have a birth certificate, but remembered enquiring of a priest of her parish in Manila in respect of her baptism. She again stated that her only marriage since the death of her spouse from the arranged marriage was her marriage to Bradley in September 1981. She stated that she had not been married to the father of her child but his name was shown as the family name of the child on the birth certificate.

21. One of the prepared questions was: "Why have you misled the Department?". The recorded response to that question was that the applicant felt ashamed about her illegitimate child and did not consider her arranged marriage to be a real one. She stated that Bradley knew of her previous marriage, but not the name of her former spouse at the time of the application to migrate to Australia. He also knew of the applicant's child. The applicant stated that it was Bradley's idea not to disclose these matters to departmental officers at the Australian Embassy in Manila. She stated that Bradley had given her the answers to provide to the Embassy staff. She was asked whether she had any other husband or de facto spouse apart from her first husband, the father of her child, and Mr Bradley. The applicant advised that she had a de facto relationship with a person for about one year in 1982/83 and now had a "boyfriend", Frank Evangelista. She stated that she was hoping to marry and raise a family and perhaps bring her daughter to Australia if her mother, with whom the child resided, would allow it. At the conclusion of the interview she was asked to supply a copy of the marriage certificate of the arranged marriage and a copy of the death certificate of the deceased spouse, a copy of the birth certificate of her daughter and a copy of the applicant's baptismal certificate.

22. By 2 July 1986 those documents had not been provided and a letter was forwarded to the applicant by the Department requiring production of the documents within fourteen days. At that time the applicant was visiting her family in the Philippines and did not return until 1 August 1986. On 16 September 1986, a departmental officer contacted the applicant at her place of employment requesting her to attend at the Perth office for further interview. The following day the Department was contacted by a solicitor whom the applicant had consulted for advice. The solicitor advised that the applicant would attend the Perth office on 22 September 1986 and she wished to tell the truth.

23. The applicant was interviewed on 22 September 1986. In that interview the applicant stated that her full maiden name was Honey Rubrico and that her mother's maiden name was Cruz. She confirmed again that there was no record of her birth. She explained the fact that she had a passport in the name of Makahekung. As stated in the previous interview she had a male cousin by the name of John Makahekung. She had travelled to Bali with him when she resided in Manila and obtained a passport for that travel by presenting a forged marriage contract made out in their names. She had never been married to Makahekung.

24. She also stated that the letter from the parish priest, dated 29 October 1980, presented to officers of the Australian Embassy in support of her application to migrate, was not a genuine letter; it had been obtained for her by an uncle who worked at the parish church.

25. The applicant further advised that her marriage to Bradley had been her third marriage. On 15 March 1978, she had married Antonio Dumaguing, a medical practitioner. She was pregnant to him when they married. The applicant supplied a copy of the "marriage contract" at the interview. She stated that Dr. Dumaguing's parents were hostile to her and she had left him about three months after marriage. She had not seen him since, but understood that he had remarried. She stated that she now had a boyfriend, Frank Evangelista, whom she had known for two years. She stated that they had plans to marry in the future and she was seeking guidance from a tribunal of the Catholic Church in Perth as to what steps she could take to be able to marry Mr Evangelista.

26. The interviewer asserted to the applicant that when she married Bradley and made application to migrate to Australia, she was still legally married to Dr. Dumaguing and the applicant accepted that proposition. The interviewer also asserted that the applicant had made false statements about her marital status to obtain a permit to enter Australia. The applicant responded that she had been told by Bradley what to say at the interview and she had done what he had told her, and did not know what the outcome would be. The document described in the record of interview as a "marriage contract" was not a document perused by the decision-maker. No certificate of marriage was produced. One year later, in October 1987, with the assistance of the Catholic Marriage Tribunal in Perth, the applicant was able to obtain and supply to the Department a copy of a certificate of marriage celebrated between Dumaguing and another according to the rites of the Roman Catholic Church and the law of the Philippines on 23 September 1978. According to that certificate Dumaguing was single at the date of marriage. Upon the production of that certificate and in the absence of any certificate in respect of the marriage of Dr. Dumaguing and the applicant, the marital status of the applicant in 1980 may have become a matter of doubt, irrespective of the applicant's understanding of it. The marriage certificate before the decision-maker showed that Dr. Dumaguing was free to marry in September 1978 and it raised a question as to whether the marriage the applicant had understood she had entered with Dr Dumaguing in March 1978 was valid or had been dissolved.

27. In that interview the applicant supplied a copy of the birth certificate of her child as previously requested. The requested baptismal certificate could not be supplied for the reason provided in the interview. Her father had told her she had been baptized, but she did not know where. In the interview conducted on 7 January 1987, the applicant had explained that although she would contact relatives to obtain copies of the certificates of her arranged marriage and of the death of her spouse from that marriage, she was only fiften or sixteen years old at the time and could not recall the date of the marriage. She could only recall that it occurred in 1971. When interviewed in September 1986, the applicant informed the interviewing officer that the marriage may have been in 1970 or 1971 and she thought that her husband died in 1974, but his family would not tell her anything about it.

28. In that interview it was asserted to the applicant by the interviewer that "most of the details" she had given at the interview conducted on 7 January 1986 were false to which the recorded response was: "Yes, I was so confused I lied because I did not want to go to gaol." In his reasons for decision, the decision-maker appears to have accepted the truth of the interviewer's proposition, but an analysis of the interview conducted on 7 January 1986, as recorded in the questions and answers transcribed and retained on the file, shows that the interview covered a number of topics in thirty-eight questions and the accuracy of her answers was uncontested in most respects. The subsequent interview on 22 September 1986 did disclose that previously she had not given truthful answers in respect of her name and her father's name and in stating that she had been married only once after the death of her husband by the arranged marriage and that she had not been married to Dr. Dumaguing. The interview also revealed that the applicant had failed on the previous occasions to disclose the false nature of the letter in the name of her parish priest presented to the Australian Embassy in Manila in 1980.

29. In his reasons for decision, the decision-maker purported to set out an account of this interview with the applicant. He recited a number of matters that had not been discussed at that interview. The matters so included were part of the record of the interview conducted on 7 January 1986. The material erroneously included gave the appearance that the applicant had provided inconsistent answers in the course of her interview on 22 September 1986.

30. On the following day, 23 September 1986, the applicant was interviewed again by a departmental officer. The printed form on which the interview was recorded was one intended to be used for the interview of a person regarded as a "prohibited immigrant". In that interview the applicant stated that she and Mr Evangelista intended to marry. She claimed that she was entitled to have the grant of an entry permit considered pursuant to the provisions of para.6A(1)(e) of the Act.

31. Having claimed to be eligible for the grant of an entry permit, questions enquiring whether the applicant was prepared to make a voluntary departure from Australia did not require answer according to the terms of the form on which the questions were printed and pursuant to which the interview was conducted, however, the questions were put and the applicant responded that she was prepared to make a voluntary departure. She provided evidence that she had paid a deposit on an airline ticket to make a departure from Australia on 4 November 1986. The applicant stated, however, that she considered Australia to be her home and did not wish to depart. She stated that she was able to care for her family from Australia and had nothing to go to in the Philippines. She wished to remain in Australia because of her relationship with Mr Evangelista.

32. On the same day, 23 September 1986, Mr Evangelista was interviewed by the officer who had interviewed the applicant. Mr Evangelista confirmed that he was an Australian citizen and that he and the applicant intended to marry provided that they received a dispensation from the Catholic Church enabling them to do so. Mr Evangelista advised the interviewer that the relationship was serious and permanent. He advised that they had been living in a "semi-de facto manner since September 1986" (sic) and jointly shared household expenses. He stated that deportation of the applicant would cause him considerable distress.

33. In addition to the information provided in the interview, several days later the applicant submitted a lengthy letter providing further details of her history and setting out circumstances she wished to be taken into account in consideration of her case. In that letter the applicant confirmed that she and Mr Evangelista had been together for two years, had a loving relationship and intended to marry and raise a family. Mr Evangelista also wrote to the Department at that time confirming his concern for and attachment to the applicant. He stated that it was their wish to marry according to the Catholic faith which required the applicant to receive a dispensation from the Church in respect of her marriage to Bradley before a marriage between Mr Evangelista and the applicant could be solemnized in that Church. Mr Evangelista also pointed out that the applicant had lived in Australia for many years and had made Australia her home. He asked that they be allowed to live their lives together in Australia.

34. At the same time, the Department received a letter from a Mr and Mrs Hammond which stated that the writers had known the applicant since April 1984. Mr Hammond was the master to whom Mr Evangelista had been apprenticed and Mr and Mrs Hammond had met the applicant through Mr Evangelista. The letter was very supportive of the applicant.

35. It appears that no further action was taken in the matter until 13 February 1987 when the applicant was again interviewed at the Perth office of the Department by the same officer who had conducted the interviews on 7 January 1986 and 22 September 1986. The purpose of the interview was to obtain personal details of the de facto relationship shared by the applicant and Mr Evangelista.

36. Apparently, in the course of the interview conducted on 22 September 1986, the applicant had been instructed to cease her employment. No notation of that instruction was made and no memorandum was prepared stating what ground had been relied upon by the interviewing officer to support the oral instruction that the applicant cease her employment (See sub-s.31B(2) of the Act) The instruction was not confirmed by letter. The applicant had obtained employment to support herself after her separation from Bradley in 1981 and was described in material on the Department's file as a conscientious and hardworking person.

37. On 13 February 1987, the interviewer recorded that the applicant had confirmed that he had instructed her in the previous interview to cease employment "because of her illegal immigrant status" (sic). The applicant said that she had ceased to work as instructed for a period of four or five weeks, but she had been forced to resume employment to be able to provide for herself. On 18 February 1987 the applicant requested permission to return to her employment. At first permission was refused, but eventually was granted on 25 March 1987.

38. At the conclusion of the interview the applicant was directed to report weekly to the office of the Department "until (a) decision (was) made".

39. The content of the questions put to the applicant and the manner in which the interviewer expressed his observations in the record of interview placed on the Department's file indicate that there was no rapport between the applicant and the interviewer.

40. On the same day that officer also interviewed Mr Evangelista who had attended the Perth office with the applicant. No record was made of that interview.

41. On 23 February 1987 Mr Evangelista forwarded his account of the interview to ensure that a record of it would be placed on the Department's file. Mr Evangelista stated that he had not seen any notes of the interview being made and he wanted to make sure his views were properly recorded. On 10 November 1987 the officer who had interviewed Mr Evangelista was asked to comment on Mr Evangelista's record of the interview and in his response that officer failed to take issue with Mr Evangelista's account in any specific way.

42. The purpose of the interview appeared to be to assess the nature of the relationship between the applicant and Mr Evangelista. Mr Evangelista confirmed that he and the applicant intended to marry and that he shared a "semi-de facto" relationship with the applicant as he had advised the interviewer in September 1986.

43. In his reasons for decision the decision-maker noted that after that interview a member of the Ombudsman's office had contacted the Department on 17 February 1987 with regard to the applicant's situation. There was no memorandum of that attendance from which the decision-maker could obtain that information and it appears that the decision-maker adopted an account recited in a Minute prepared for him by another officer. According to that account the Ombudsman's representative drew attention to the applicant's argument that the re-marriage of Dr. Dumaguing before the applicant's migration to and marriage in Australia indicated that she was free to enter a lawful marriage when she married Bradley. In his reasons for decision the decision-maker recorded that the departmental response was a statement that the applicant's failure to disclose the existence of her daughter made the provisions of s.16 of the Act applicable. Presumably, the officer contended to the Ombudsman's representative that the applicant was a prohibited non-citizen.

44. In eary March 1987 the Department received a letter from Mr Bradley's sister-in-law, Mrs Bradley, which was most supportive of the applicant and confirmed that the applicant and Mr Evangelista had a strong, loving relationship, both parties being known to Mrs Bradley. At the same time the Department received a letter from Mr Bradley's sister deprecating her brother's conduct during his marriage to the applicant and supporting the applicant's request to remain in Australia.

45. By letter dated 25 March 1987, the applicant advised the Department that she was making enquiries about the validity of her marriage to Dr. Dumaguing and would supply to the Department such information as she could obtain from the Philippines in that regard. She also advised that she was seeking advice about obtaining a divorce from Dr. Dumaguing through the Family Court of Western Australia if such a step were necessary.

46. Thereafter the applicant continued in her regular employment and apparently reported weekly to the Department's Perth office.

47. In October 1987 the applicant wrote to the Department advising that she was unable to ascertain whether Dr. Dumaguing had been a married man when he purportedly married her on 15 March 1978. A copy of the certificate recording the marriage of Dr. Dumaguing on 23 September 1978, to which reference has been made earlier in these reasons, was forwarded to the Department together with a copy of a decree dissolving the marriage between Dr. Dumaguing and the applicant made in the Family Court of Western Australia on 28 August 1987.

48. In November 1987 a departmental officer discussed the applicant's case with a member of the Catholic Marriage Tribunal who confirmed that the applicant had sought annulment of her marriage to Bradley to enable her to be married in the Catholic Church. The officer was advised that the Tribunal would make enquiries into the nature of the applicant's marriage to Bradley and part of those enquiries would entail a consideration of whether the applicant had married Bradley to gain residence in Australia. In the event of all enquiries being satisfactory, a dispensation would be granted and at the time of interview such dispensation appeared probable.

49. On 15 January 1988 the applicant was briefly interviewed once more by a departmental officer when she confirmed that her marriage to Bradley had been annulled and she was now free to marry in the Catholic Church. She advised that she and Mr Evangelista were planning to build a house in which they could live after their marriage and that marriage could take place later in the year when Mr Evangelista was able to take his holidays. The officer contacted Mr Evangelista by telephone and received confirmation that the applicant and Mr Evangelista planned to marry later in the year.

50. Several months later in March 1988, the applicant wrote to the Department advising that she and Mr Evangelista were engaged and would be married on 15 January 1989.

51. The applicant continued to report to the Department's office each week.

52. In a letter to the Department one year before, 26 March 1987, the applicant had stated that she had applied in September 1986 for a "change of status on humanitarian grounds" after being advised to do so by an officer of the Department. The applicant stated that in the course of the interview on 22 September 1986, the interviewing officer had told her that he thought she was an "illegal immigrant" (sic). The applicant stated that she had not received a reply to her request. It does not appear that any reply was made to that letter.

53. However, on 14 April 1988 a departmental officer prepared a recommendation on the question of deportation which included consideration of the grant of an entry permit. That officer recommended that the grant of an entry permit be refused and that the applicant be deported. Those recommendations were accepted and an order for deportation was signed by the decision-maker on 15 April 1988.

54. On 20 April 1988 the applicant reported to the Department's offices on her weekly visit and was arrested. Apparently arrangements had been made to deport the applicant by placing her on board an aircraft to leave at 3.30 pm the following day. She was taken to her flat which she held under tenancy agreement and was permitted to collect some personal items. She was then taken to the detention centre at Perth airport to await deportation.

55. An urgent application seeking orders for interim relief under s.15 of the ADJR Act was filed on the applicant's behalf on 21 April 1988 and orders were made suspending the operation of decisions to arrest, to detain in custody and to deport.

56. After release from custody, the applicant and Mr Evangelista arranged with their Church for the date of their marriage to be advanced and the couple married on 11 June 1988.

57. Before the application for review of the decisions to refuse the grant of an entry permit and to deport came on for hearing, the applicant had lodged a further application for the grant of an entry permit based upon her eligibility for the grant of such a permit pursuant to the provisions of para.6A(1)(b) of the Act as the spouse of an Australian citizen. (See Palko v. Minister for Immigration and Ethnic Affairs (1987) 77 ALR 125.)

58. In view of the fact that fresh decisions had to be made upon that application, it may appear that there was little value in continuing the hearing of these proceedings. However, the respondent considered that the determination of questions of law raised by this application would provide guidance for the respondent or his delegate in dealing with the subsequent application and, therefore, he wished to see the hearing continued.

59. The questions of law the respondent seeks to have answered arise out of the interpretation of s.16 of the Act.

60. The relevant parts of s.16 are as follows:

"16.(1) Where, after the commencement of this Part

or before the commencement of this Part but after

the commencement of the Immigration Restriction Act

1901, a person who enters or entered Australia is

not, or was not, at the time of that entry, an

Australian citizen and who -

(a) evades or evaded an officer for the purpose of

entering Australia;

(b) at the time of, or prior to, that person's

entry into Australia, the person -

(i) produces or produced, or causes or caused

to be produced, to the Minister or to an

officer, in respect of that entry -

(A) 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; or

(B) a passenger card that contains

information that is false or

misleading in a material particular;

or

(ii)makes or made, or causes or caused to be

made, to the Minister or to an officer,

in respect of that entry, a statement

that is false or misleading in a material

particular;

(ba)at the time of, or prior to, the grant of a

visa or a return endorsement in respect of the

person, the person -

(i) produces or produced, or causes or caused

to be produced, to the Minister or to an

officer, in respect of the grant of that

visa or return endorsement, a document of

the kind referred to in sub-sub-paragraph

(b)(i) (A); or

(ii) makes or made, or causes or caused to be

made, to the Minister or to an officer,

in respect of the grant of that visa or

return endorsement, a statement that is

false or misleading in a material

particular; or

(c) at the time of entry is 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;

(ii) 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

circumstances,

that person shall, notwithstanding section 10, 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 this

sub-section."

61. In his reasons for decision the decision-maker recited the provisions of sub-para.16(1)(ba)(ii) as the relevant part of the Act applying to the applicant's circumstances. The decision-maker went on to identify the statement that was false or misleading in a material particular made at the time of, or prior to, the grant of a visa or a return endorsement as a statement made by the applicant regarding the non-existence of children.

62. The deportion order made by the decision-maker to which his reasons relate, was in the following form:

"WHEREAS HONEY RUBRICO also known as HONEY RUBRICO

MAKAHEKUNG being a non-citizen, entered Australia

on the first day of August 1986

AND WHEREAS the said HONEY RUBRICO is deemed to be

a prohibited non-citizen by virtue of sub-section

16(1) of the Migration Act 1958, in that, she was

not, at the time of that entry, an Australian

citizen and who, at the time of the grant of a

return endorsement in respect of herself, made to

an officer, in respect of the grant of that return

endorsement, a statement that was false in a

material particular, and she is not the holder of

an entry permit of the kind referred to in that

sub-section

NOW I, JOHN BRUCE MACHIN, Senior Assistant

Secretary, Migration Operations Task Force,

Department of Immigration, Local Government and

Ethnic Affairs, and delegate to the Minister of

State for Immigration, Local Government and Ethnic

Affairs, DO HEREBY ORDER, pursuant to section 18

of the Migration Act 1958, that the said HONEY

RUBRICO be deported from Australia

Dated this Fifteenth day of April 1988

Delegate of the Minister of

State for Immigration, Local

Government and Ethnic Affairs

and Authorised Officer

pursuant to section 6A of the

Migration Act 1958"

63. The respondent was directed to supply particulars of the matters relied upon to support the respondent's contention in the deportation order that the applicant was a prohibited non-citizen by virtue of sub-s.16(1) of the Act.

64. In those particulars the respondent recited four events in October 1980 that were said to be statements made, or caused to be made, by the applicant that were false in a material particular apparently in respect of her entry into Australia in May 1981, and referred to a return endorsement granted to the applicant prior to her entry into Australia on 1 August 1986 and alleged that a statement false in a material particular had been made in respect of that return endorsement, namely the statement that "she was a resident of Australia". That statement was not the statement relied upon by the decision-maker as the ground for his decision to deport.

65. The question of law involving the interpretation of sub-s.16(1) and whether it authorized the respondent or his delegate to issue a deportation order against the applicant was argued as a preliminary issue in the course of the hearing of the application.

66. Counsel for the respondent did not attempt to argue that the statement which was false in a material particular and made to an officer in respect of the grant of a return endorsement referred to in the deportion order was a statement relating to the non-existence of children being the statement relied upon by the decision-maker. He sought to support the exercise of the deportion power on different facts and argued that it was immaterial that the decision-maker may have misunderstood why the applicant was a prohibited non-citizen pursuant to sub-para.16(1)(ba)(ii) of the Act. It was submitted that it was sufficient for the respondent to show that there had been a false or misleading material statement in respect of the return endorsement referred to in the deportion order, notwithstanding that the facts relied upon were other than those relied upon by the decision-maker. There is some authority for the respondent's argument: R. v Liveris; Ex parte da Costa (1962) 3 FLR 249 at p 265. See also R. v. Commissioner of Police; Ex parte Ivusic (1973) 20 FLR 412 at p 422.

67. Counsel for the respondent contended that the false statement made to an officer in respect of the grant of a return endorsement was a statement made on 9 January 1986 by the completion of a printed card prepared by the Department for such applications. The alleged false statement was a declaration by the applicant that she had permission to remain in Australia without any limitation as to time imposed by law.

68. The card was not before the decision-maker and it was not a matter to which he turned his mind.

69. The argument continued that, notwithstanding that the applicant was the holder of an unconditional entry permit as at 9 January 1986 issued on her re-entry to Australia on 30 January 1985, and notwithstanding that the applicant may have believed on that day that she had permission to remain in Australia without limitation as to time, as a matter of law the applicant did not have permission to remain in Australia because from 2 April 1984, upon the provisions of paras.16(1)(b) and (1)(ba) becoming operative, as introduced by the Migration Amendment Act 1983 ("the Amendment Act"), the applicant was deemed to be a prohibited non-citizen.

70. It was argued for the respondent that as at 2 April 1984 the applicant did not hold an entry permit endorsed in the manner required by sub-s.16(1), the applicant being a person who had made, so it was argued, a statement, that was false in a material particular, to an officer of the Department in respect of her entry into Australia on 19 May 1981 (i.e. sub-para.16(1)(b)(ii)). The alleged statements on which counsel relied were statements made on 20 October 1980 in applications lodged at the Australian Embassy in Manila and in an interview on 28 October 1980 with a departmental officer to the effect that she had not married and had no children.

71. It may be seen that the reliance upon the provisions of sub-para.16(1)(ba)(ii) to ground the deportation order was dependent upon the application of the provisions of sub-para.16(1)(b)(ii).

72. It was, therefore, necessary for the respondent to show that sub-para.16(1)(b)(ii) applied to the applicant's circumstances before there could be any argument that the respondent or his delegate or authorized officer had any power of deportation to exercise under the Act.

73. I will return to this argument later in the reasons.

74. The decision-maker did not rely upon any statements in respect of marriage for his determination that the applicant was a prohibited non-citizen under the Act and apparently refrained from reaching any conclusion in that regard, being aware that it may not have been demonstrated that the applicant was not free to marry at the time she migrated to Australia in 1981 and although there may have been falsity in the statement that she had "never married", that may not have been false in a material particular for the purposes of para.16(1)(b) if, in fact, she was of divorced or widowed status and free to marry, that being the relevant matter for consideration when assessing her request to enter Australia in 1981 as an intended spouse of an Australian citizen.

75. Although the respondent in argument sought to rely on alleged false statements relating to both marriage and children, it would be inappropriate for the Court to make any findings as to the operation of s.16 of the Act to the applicant's circumstances in respect of the applicant's alleged false statements in respect of marriage when the respondent's delegate has not treated the alleged falsity as being established in making his decisions and has not sought to prove any facts to demonstrate falsity and materiality on the hearing of this application.

76. In addition to inserting paras. 16(1)(b) and (1)(ba), the Amendment Act (sub-s.8(1)) also amended s.7 of the Act by repealing sub-s.7(4) which had provided that a person who became a prohibited immigrant by expiration or cancellation of a temporary entry permit, ceased to be a prohibited immigrant at the expiration of a period of five years from the date on which that person became one unless a deportation order in relation to that person was in force at the expiration of that period. The Amendment Act (see sub-s.8(2)) contained a clear statement of the legislature's intention to resurrect and apply disqualifying provisions to persons who had been prohibited immigrants by providing that a person who had been a prohibited immigrant but was not a prohibited immigrant immediately before the Amendment Act, would become a prohibited non-citizen after the commencement of operation of the Amendment Act if that person had not taken the step of obtaining citizenship or an entry permit and had relied solely upon the provisions of sub-s.7(4) for his or her right to remain in Australia. Such a person became liable to deportation after 2 April 1984 and lost the protection formerly provided by sub-s.7(4) of the Act, although he or she could continue to rely on the provisions of sub-s.7(4) as a defence to a prosecution under para.27(1)(ab) of the Act for the offence of becoming a prohibited immigrant by expiration of a temporary entry permit. (See sub-s.38(5) of the Amendment Act.)

77. Counsel for the respondent argued that pursuant to sub-para.16(1)(b)(ii) of the Act, as inserted by the Amendment Act, a person who had made a statement in respect of his or her entry into Australia that was false in a material particular would be deemed to be a prohibited non-citizen, notwithstanding that he or she was the holder of an entry permit validly issued on the occasion of his or her re-entry prior to the introduction of the Amendment Act. It was argued that the term "entry" in s.16 included "re-entry" pursuant to the definition of the term in s.5 of the Act and that s.16(1) was intended to operate by requiring any entry permit, whenever issued, held by a person who at one time had acted in a manner now the subject of sanction in sub-para.16(1)(b)(ii) of the Act, to be endorsed with a statement that he or she was such a person, notwithstanding that the particular entry permit may have been duly issued on the occasion of re-entry without any suggestion of it being obtained by any material misrepresentation or false statement. In the absence of such an endorsed permit, that person would be liable to deportation under s.18 as a prohibited non-citizen. In short, such a notation was to be applied to each and every entry permit issued to that person thereafter.

78. It is difficult to accept that this argument as to the interpretation of s.16 accurately reflects the legislature's intent.

79. The matters set out in paras.16(1)(a)-(1)(c) refer to events or circumstances that apply at the time of entry in respect of that entry. The remaining words in sub-s.16(1) are intended to make it clear that the issue of an entry permit on the occasion of that entry will not create a recognized entry permit for the purposes of s.10 of the Act unless the permit is endorsed with a notation that it is recognized that some part of paras.16(1)(a)-(1)(c) applied at the time of entry.

80. As has been referred to above, if a non-citizen who is the holder of an entry permit leaves Australia, the entry permit has no force or effect after departure from Australia and such a person must obtain the grant of a new entry permit to re-enter Australia. The grant of such a permit would require a decision on the facts existing at the time of entry. It may be that a statement, false or misleading in a material particular, made in respect of a prior entry and resulting in the grant of an entry permit on that occasion, may be implicitly adopted or expressly repeated at the time of re-entry and thereby become a false or misleading statement in a material particular in respect of the re-entry. The respondent argues that an entry permit granted on re-entry when no false or misleading statement has been made in respect of that entry, but after a false or misleading statement had been made in respect of a prior entry, must bear an endorsement that the entrant is a person to whom sub-s.16(1) applies.

81. If that were the case it may be expected that such a requirement would be expressed as an item of para.16(1)(c) of the Act. That paragraph lists matters of default on the part of the entrant regarded as being sufficiently serious to require them to be the source of an endorsement on each and every entry permit issued to such a non-citizen. If the making of a false statement to an officer in respect of an entry into Australia were intended to be regarded as such a circumstances, it would have been a simple matter to have included such a provision in para.16(1)(c).

82. Furthermore, the interpretation propounded by the respondent's argument may lead to strange results. For example, if a non-citizen to whom an entry permit with a right of permanent residence had been granted, disclosed, or the respondent became aware, that a statement false or misleading in a material particular had been made in respect of that entry and a decision were made by the respondent that neither deportation of the non-citizen under s.18 of the Act nor a requirement that the non-citizen leave Australia pursuant to s.31A of the Act was justified or warranted, that person, if he or she left Australia some time later for a short vacation or business trip and prior to departure obtained a visa or return endorsement, would be in the same position as a deportee on the occasion of his or her re-entry and in a worse position than a person who had been required to leave Australia under s.31A. Pursuant to s.16(1)(c) of the Act, a deportee is required to have an entry permit endorsed in the manner required by sub-s.16(1), but a person required to leave Australia pursuant to s.31A is not a person to whom para.16(1)(c) applies and the requirement to leave Australia would not be a ground for an endorsement under sub-s.16(1) to be applied to any subsequent entry permit issued to that person.

83. Similarly, the introduction of para.16(1)(ba) by the Amendment Act shows an intended connection between the false or misleading statement, or the production of a false document, and the issue of an entry permit dependent upon such falsity or misleading statement. Paragraph 16(1)(ba) contains similar provisions to those of para.16(1)(b), but relates to the grant of a visa or a return endorsement providing authority to travel to Australia or return to Australia after departure therefrom. (See paras. 11A(1)(a) and (1)(b).) A visa or return endorsement is not an entry permit (s.11), but the possession of such a document may be the foundation for the formation of a decision to grant an entry permit to that person upon arrival in Australia. An expired visa would be irrelevant to such a decision. On the respondent's argument, a visa, or a return endorsement granted after production of a document or the making of a statement of the type referred to in para.16(1)(ba), but expired and not utilized, would still require any subsequent entry permit issued to that person to bear an endorsement under s.16, notwithstanding that such an entry permit had been granted untainted by any false or misleading statement or false document made in respect of that entry or in respect of the grant of the current visa which enabled that person to travel to Australia for the purpose of that entry.

84. If the interpretation contended for by the respondent were correct it would introduce an unwieldy element into the system of granting entry permits at places of entry and may introduce the risk of unfairness. Unlike the matters referred to in para.16(1)(c) which are capable of immediate and objective assessment, the requirement of an endorsement in paras.16(1)(b) and 16(1)(ba) in circumstances where a statement is made which is "false or misleading in a material particular" is a circumstance of imprecise definition which necessitates some subjective evaluation on the part of the person granting the permit. It is not unlikely that different officers would have different perceptions of "materiality" of false or misleading statements made, in some cases, many years previously.

85. There is authority, however, to support the interpretation submitted by the respondent. In Ex parte Lee Yum Bo; Re Morony (1964) 6 FLR 235 it was held by McClemens J. that s.16, as it then stood, was to be construed as a deeming provision which operated if the requirements of the section were not satisfied. His Honour did not analyse the section but adopted the arguments of counsel which appeared to contend that the requirements were without limit and required each and every entry permit to carry the endorsement provided by s.16 and that the provisions of the section would operate notwithstanding that an unendorsed entry permit, attracting the operation of the section, had been issued by the Commonwealth with full knowledge of the circumstances which required an endorsement to be placed on the entry permit.

86. If the matter were free of authority I would readily hold that the section should be interpreted by limiting the requirement for endorsement to apply to the entry permit which issued as a result of the false or misleading statement or false document. However, the interpretation applied in Lee Yum Bo is longstanding and as far as I can discover has not been disapproved nor distinguished in any way since its pronouncement. The legislature has retained and amended the provisions with the benefit of that interpretation and that may be some guide to parliament's intent. The explanatory memorandum circulated at the time of passage of the Amendment Act provides no assistance in that regard.

87. Before the introduction of the Act in 1958 and the repeal of prior legislation, the Immigration Act 1901-1949 (s.3) expressly provided that the immigration of certain persons therein described was prohibited. The Immigration Act 1901-1949 operated to control immigration by the legislative device of a dictation test (s.3(1)(a)), by the nomination of classes of persons who were prohibited immigrants (s.3(1)(b)-(gh)) and by the proclamation of prohibition of any immigrants in excess of a prescribed quota (s.3K).

88. A system of entry permits was not then employed as a control mechanism, although certificates of exemption could be issued by the Minister to a prohibited immigrant, or to an immigrant who may be required to pass a dictation test, to allow such a person to enter and remain in Australia for a limited period (s.4).

89. Under the Immigration Act 1901-1949, a person who entered Australia as a prohibited immigrant contravened the Act and was liable to be deported if convicted of that offence (s.7). Similarly, any person who was not a prohibited immigrant at the time of entry but became a prohibited immigrant offending against the Act by failing a dictation test was liable to deportation upon conviction for that offence (s.5).

90. Section 5 of the Immigration Act 1901-1949 which applied to a person who had evaded an immigration officer (s.5(1)(a)), or obtained entry by production of credentials or documents obtained by false representations (s.5(1)(b)) operated by requiring such a person to pass a dictation test and failure to do so led to that person being deemed to be a prohibited immigrant offending against the Act. The dictation test to establish that such a person was a prohibited immigrant and an offender against the Immigration Act 1901-1949 could be administered at any time.

91. Section 5(1) of the Immigration Act 1901-1949 was in the following form:

"5(1) Any immigrant who -

(a) evades or has, since the commencement of the

Immigration Restriction Act 1901, evaded an

officer;

(b) enters or has, since the commencement of the

Immigration Restriction Act 1901, entered the

Commonwealth at any place where no officer is

stationed;

(c) obtains or has, since the commencement of the

Immigration Restriction Act 1901, obtained

entrance or re-entrance into the Commonwealth

by means of any permit, certificate, passport,

credentials, identification card or other

document which was not issued to him or is

forged, or has been obtained by false

representations;

(d) has been admitted temporarily into the

Commonwealth in pursuance of any special

arrangement between the Commonwealth

Government and any other Government and fails

to observe the conditions of his admission; or

(e) has been admitted into the Commonwealth as an

indentured labourer for service in the

pearling industry and is deemed by the

Minister to be an undesirable person,

may, if at any time thereafter, he is found within

the Commonwealth, be required to pass the dictation

test, and shall, if he fails to do so, be deemed to

be a prohibited immigrant offending against this Act."

92. Section 5(1)(c) was directed at an immigrant found in the Commonwealth after he had obtained entry by means of false documents and it provided that such a person could be required to submit to a dictation test irrespective of the date of his entry into Australia, provided that the entry had occurred after the commencement of the Immigration Restriction Act 1901. The use of the words "if at any time thereafter, he is found" indicated that the sub-section was concerned with the discovery of an immigrant who had made an improper entry and not with the discovery that an immigrant lawfully resident in Australia had made an improper entry on a prior occasion (See Griffin v Wilson [1935] HCA 16; (1935) 52 CLR 260 per Dixon J. at p 266).

93. Upon the repeal of the Immigration Act 1901-1949 by the enactment of the Migration Act 1958, a person became a prohibited immigrant if he entered Australia without holding an entry permit (s.6(1)).

94. The system of describing classes of persons as prohibited immigrants to Australia was abolished.

95. Section 16(1)(c) of the Act provided that persons within some of those former classes of prohibited immigrants would be deemed to be prohibited immigrants if they were within such a class at the time of entry and entered Australia without holding an entry permit bearing the endorsement required by s.16(1).

96. Under paras.16(1)(a) and (b) of the Act a person who evaded an officer for the purpose of entering Australia, or for the purpose of obtaining entry produced documents or credentials obtained by false representation, was deemed to be a prohibited immigrant unless he held an entry permit endorsed in the manner required by sub-s.16(1).

97. The means of establishing prohibited immigrant status for such persons was altered from the failure of a dictation test to the failure to hold a suitably endorsed entry permit. The Act continued to apply to any entry effected after the commencement of the Immigration Restriction Act 1901.

98. There is no legislative history to support the interpretation contended for by the respondent and indeed the words of s.16 as it now stands, indicate more clearly that the event upon which the section is to operate is the entry by a non-citizen which involves infringement of the section. The section refers to a person who at the time of entry was not an Australian citizen and who at the time of that entry and in respect of that entry made a statement that was false or misleading in a material particular.

99. If the respondent's contention that the section intended that an errant entry stigmatised all subsequent entries were correct, the same interpretation would have to be applied to s.16(1)(c)(i). Any person who suffered from a prescribed disease or condition upon entry into Australia, would be required to be the holder of an entry permit bearing a s.16(1) endorsement if he re-entered Australia on a later occasion when not suffering from the prescribed disease or condition. Such an interpretation would be contrary to commonsense. The remaining provisions of s.16(1)(c) refer to constant conditions that would apply to each and every entry in any event.

100. The Act is not concerned with the ready identification of people who have contravened the Act on a past occasion, but is concerned with ensuring that a person does not acquire a right of residence from an entry gained by misleading or false statements or false documents produced at or prior to the time of entry. The departure from Australia and the grant of an entry permit upon return are fresh events. If the Act intended some further disability to be attached to persons re-entering Australia who were not then involved in evasion or false or misleading conduct but had been so involved on a previous occasion, the appropriate place for it to be inserted in the Act was para.16(1)(c).

101. Having regard to all these matters, I have concluded that the preliminary issue should be determined as follows, namely, that the correct interpretation of sub-s.16(1) in its present form and context is that the endorsement required by the sub-section applies to an entry permit which has been issued in consequence of a false or misleading statement or production of a false document and not to any subsequent entry permit the issue of which was unaffected by such conduct.

102. The respondent also argued that the provisions of sub-paras.16(1)(b)(ii) and (1)(ba)(ii) inserted by the Amendment Act had retrospective effect upon becoming operative on 2 April 1984 and converted the status of the applicant from non-citizen to prohibited non-citizen on that day. On the particular facts of this case where after 2 April 1984 the applicant departed and re-entered Australia on two occasions and was granted new entry permits, the retrospective effect of the amended Act is immaterial. However, the submission has important ramifications and it is appropriate to express some views upon it.

103. The respondent argued that upon the introduction of sub-para.16(i)(b)(ii), the applicant thereupon became a prohibited non-citizen being a person who had made a statement to an officer in October 1980 that was false or misleading in a material particular, namely a statement that the applicant had no children.

104. Without deciding whether such a statement was capable of being false or misleading in a material particular in relation to the applicant's application to enter Australia made in October 1980, I am unable to accept that the amendments to s.16 of the Act, introduced by the Amendment Act were intended to be of retrospective operation with an intended consequence that a non-citizen holding a validly issued entry permit with a right of permanent residence would lose that right of residence on 2 April 1984.

105. Such a consequence would require express words to be used in the amending legislation. (See Acts Interpretation Act 1901 s.8(c).) By way of contrast, express words have been used in sub-s.8(2) of the Amendment Act to provide that certain persons who had ceased to be prohibited immigrants prior to 2 April 1984 became prohibited non-citizens after that date upon repeal of sub-s.7(4) of the Act. That sub-section had been in the Act since its inception in 1958.

106. There are other indications that the provisions of sub-para.16(1)(b)(ii) were not intended to be retrospective in operation. The express transitional provisions contained in sub-s.38(2) of the Amendment Act state that a person deemed to be a prohibited immigrant under sub-s.16(1) of the Act before it was amended was deemed to be a prohibited non-citizen under sub-s.16(1) of the Act as amended by the Amendment Act on 2 April 1984. Such a transitional provision was a recognition that the amending provision of the Amendment Act which repealed and substituted part of sub-s.16(1) had a prospective operation only and that transitional provisions were necessary for prohibited immigrants to become prohibited non-citizens upon the amended provisions becoming operative on 2 April 1984.

107. In addition, a person who became a prohibited non-citizen as a consequence of the repeal of sub-s.7(4) of the Act and the express provisions of sub-s.8(2) of the Amendment Act, became an offender against para.27(1)(ab) of the Act on 2 April 1984. The Amendment Act further amended s.27 by inserting a substituted sub-s.27(2A) to provide that it was a defence to such a prosecution of a non-citizen for that person to show that a further entry permit had been obtained after becoming a prohibited non-citizen (i.e. after 2 April 1984). Transitional provisions in respect of offenders against para.27(1)(ab) as it stood before substitution were set out in sub-s.38(5) of the Amendment Act.

108. The treatment of a person who became a prohibited non-citizen pursuant to s.16 was quite different. The Amendment Act inserted a substituted para.27(1)(c) in which it was an offence for a person to become a prohibited non-citizen by producing a false document or making a false statement after 2 April 1984. The Amendment Act may have intended to distinguish prohibited non-citizens under the provisions of s.16(1) of the Act in its amended form by limiting the prohibited non-citizens who may be prosecuted under para.27(1)(c) of the Act to those who entered Australia, or obtained an entry permit in Australia, after 2 April 1984 and by refraining from including as offenders persons who entered Australia or obtained entry permits in Australia before that date and became prohibited non-citizens merely by operation of the Amendment Act. If so interpreted, the amended Act would display an inconsistent approach to the circumstances of those who may have been lawfully resident in Australia for many years by application of sub-s.7(4) of the Act and became prohibited non-citizens on 2 April 1984 by operation of s.8 of the Amendment Act and those who became prohibited non-citizens on that day by operation of s.14 of the Amendment Act which repealed and substituted paras.16(1)(b) and 16(1)(ba) of the Act.

109. Furthermore, in conjunction with the Amendment Act the Migration (Miscellaneous Amendments) Act 1983 came into operation on 2 April 1984 and made consequential amendments to various Acts as a result of the amendments to the Migration Act effected by the Amendment Act. In particular s.25 of the Australian Citizenship Act 1948 was amended by substituting two new sub-sections (sub-ss.25(7) and (7A)) which provided that neither a person who entered Australia after the commencement of Part II of the Act (1 June 1959) but before the commencement of the Amendment Act (2 April 1984) and at the time of entry was a prohibited immigrant; nor a person who entered Australia after 2 April 1984 and at the time of entry was a prohibited non-citizen was to become an Australian citizen under that Act. If the Amendment Act operated to make lawfully resident non-citizens prohibited non-citizens from 2 April 1984, such persons were not prohibited from becoming Australian citizens under the Australian Citizenship Act 1948. It follows that the Amendment Act and the Migration (Miscellaneous Amendments) Act 1983, which operated in tandem, did not contemplate or intend that persons lawfully resident in Australia and holding unconditional entry permits prior to 2 April 1984 would become prohibited non-citizens after that date by virtue of a retrospective operation of sub-paras.16(1)(b)(ii) and (1)(ba)(ii) of the Act as then amended.

110. There is some support for a contrary interpretation in sub-s.16(1AA) which was also inserted in the Act by the Amendment Act. The sub-section expressly refers to an entry permit granted before the commencement of the sub-section and, therefore, must be addressing conduct that occurred before that date because the conduct has to relate to the grant of the entry permit.

111. The abolition of vested rights and the rendering of a person liable to arrest without warrant pursuant to ss.38 and 39 of the Act and to deportation pursuant to s.18 of the Act all require clear and express words to be found in the amending legislation before it should be construed to have a retrospective operation that could provide such results. Those words are absent and indeed, as set out above, the framework and context of the amending provisions indicate otherwise. The amendments to the Act made by the Amendment Act by the insertion of sub-paras.16(1)(b)(ii) and 16(1)(ba)(ii) affected substantive rights and were not merely matters of procedure such as the facilitation of the proof of previously defined disqualifying events. (See Williamson v. Ah On [1926] HCA 46; (1926) 39 CLR 95 per Rich and Starke JJ. at p 129; Ah You v. Gleeson [1930] HCA 25; (1930) 43 CLR 589 at pp 594-595; Ah Hing v. Hough (1926) 28 WALR 95 at pp 98 and 104).

112. If the question were to be determined in these proceedings, I would conclude that sub-paras. 16(1)(b)(ii) and 16(1)(ba)(ii) were not intended to have retrospective effect.

113. However, the applicant left Australia after 2 April 1984 to visit her family in the Philippines in 1985 and 1986 and new entry permits had to be issued on her return on each occasion. The respondent contended that the provisions of s.16 of the Act, as amended, then applied to the entry permits issued to the applicant on each re-entry and in particular to the entry permit issued on 1 August 1986. As set out earlier, the respondent contended that on 9 January 1986, when the applicant made application for a return endorsement, she made a false statement by applying her signature to the declaration printed on the application card by which she sought the return endorsement and the entry permit had to be endorsed in the manner required by s.16(1). The declaration was in the following form:

"I, the applicant, declare that the above details

are true and correct and that I have permission to

remain in Australia without any limitation as to

time imposed by law."

114. At that time the applicant held an entry permit which gave her permission to remain in Australia without any limitation as to time. The respondent argued that because of the operation of sub-para.16(1)(b)(ii), the entry permit granted to the applicant on her return to Australia on 30 January 1985 had to be endorsed under s.16(1) because of her false or misleading statement as to the non-existence of children made in October 1980. In the absence of that endorsement, it was argued, the applicant was deemed to be a prohibited non-citizen and, therefore, did not have permission to reside in Australia without limitation as to time imposed by law. The respondent, therefore, contended that pursuant to sub-para.16(1)(ba)(ii) the entry permit issued to the applicant on 1 August 1986 upon her return to Australia required endorsement in respect of a false statement made on 9 January 1986 and not being so endorsed it meant the applicant was a prohibited non-citizen thereafter.

115. The respondent's argument follows such a course because the deportation order was made on those grounds. If the respondent's argument as to the interpretation of sub-s.16(1) were correct, a contention I have rejected, it would have been enough for the respondent to assert that the applicant was not the holder of an entry permit endorsed as required by sub-s.16(1), being a person who had made a statement false or misleading in a material particular in October 1980 in respect of her entry in May 1981. The deportation order was not so grounded and the respondent did not submit his case in that way.

116. Furthermore, the respondent did not contend that any of the alleged statements made in October 1980 were statements false or misleading in a material particular made by the applicant in respect of her entry into Australia on 1 August 1986.

117. In view of the fact that the applicant when interviewed on 7 January 1986 had stated for a fourth time that she was the mother of a child residing in the Philippines, it is hard to accept that the completion by her of a printed form two days later in which she stated that she had permission to remain in Australia without limitation as to time could have been a statement false in a material particular when the alleged limitation as to time purportedly arose out of the non-disclosure of her parental status in October 1980, a matter first disclosed more than four year before the application for the return endorsement. Furthermore, the applicant's stay in Australia was without any limitation as to time imposed by law. On the respondent's argument she may have been deemed to be a prohibited non-citizen which event made available to the respondent discretionary powers under the Act, but it did not, as a matter of law, impose a limitation as to time and did not convert the completion of a printed application form requesting the issue of a return endorsement into a document containing a false statement.

118. The respondent made the decision to deport upon the specific ground that the applicant had made a false statement in respect of an application for a return endorsement. There was no foundation for that ground and any reliance upon it for the power to deport involved a fundamental error in the exercise of that discretion. Furthermore, as I have already stated, if the respondent's officer had purported to ground the power to deport upon an opinion that s.16(1) of the Act required each and every entry permit issued to the applicant to bear an endorsement in the terms provided by s.16(1), it would have involved an erroneous application of that sub-section.

119. The provisions of s.55 of the Act, relating to a deemed proof of certain statements contained in a deportation order, are of no assistance to the respondent when the issue is not one of fact but a question of interpretation of the Act. Paragraph 55(1)(g) was not amended by the Amendment Act which removed para.16(1)(b) and para.16(1)(ba) from the Act and replaced them with substituted provisions which removed the need to show that false representation or document had been produced "for the purpose of" securing entry or securing a visa or a return endorsement and by adding the provisions contained in sub-paras.16(1)(b)(ii) and 16(1)(ba)(ii) relating to the making of statements that were false or misleading in a material particular. Paragraph 55(1)(g) does not extend to the false and misleading statements added in sub-paras. 16(1)(b)(ii) and 16(1)(ba)(ii) by the Amendment Act and relates only to a statement in a deportation order that a return endorsement obtained by a false representation was produced for the purpose of securing entry into Australia.

120. Although it was not argued before me, I would observe that in a case such as this it may have been possible for the applicant to contend that the respondent was estopped from relying on the deeming provisions of sub-s.16(1) when the respondent, through his officers, had issued an entry permit without endorsement, the Department possessing full knowledge of the circumstances which the respondent now contends required an endorsement to be applied to the entry permit pursuant to sub-s.16(1). If estoppel were to be raised, of course, it would be necessary for it to be shown that the applicant had suffered some detriment by acting on the representation.

121. It is well settled that an estoppel by representation may not be argued where the effect of such an estoppel would be the prevention of the performance of a statutory duty or exercise of a statutory discretion. (See Southend-On-Sea Corporation v. Hodgson (Wickford) Ltd. (1962) 1 QB 416.) But the argument does become available where the words or conduct of the authority involved a representation that the duty had been performed or the discretion exercised. (See Brickworks Limited v. The Council of the Shire of Warringah [1963] HCA 18; (1936) 108 CLR 568 per Windeyer J. at p 577; Wyong Shire Council v. Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114 at p 142.) Such an estoppel is capable of extending to a Minister of the Crown or his delegate. (See Robertson v. Minister of Pensions (1949) 1 KB 227.)

122. The application of an estoppel in this case would not involve the endorsement of acts that would otherwise be beyond power (Howell v. Falmouth Boat Construction Co. Ltd. (1915) AC 837) nor would it involve interference with an exercise of power or performance of a duty (Wormald v. Gioia (1980) 26 SASR 237). The act of issuing an entry permit may be distinguished from circumstances where no conduct or representation on the part of the Crown will bar it from enforcing a particular statutory prohibition or entitle the person who breached the prohibition to maintain that there had been no breach. (See Howell v. Falmouth Boat Construction Co. Ltd. (supra))

123. In the applicant's case the duty to consider the applicant's position and the discretion to grant or refuse an appropriate permit was exercised. If the respondent contended that the applicant's statement in October 1980 that she had no children attracted the operation of sub-s.16(1) of the Act after 2 April 1984 and required any entry permit issued to the applicant after that date to bear the endorsement required by s.16(1), then on each occasion entry permits were granted to the applicant after 2 April 1984, namely 30 January 1985 and 1 August 1986 the respondent possessed knowledge of the matter which, on the respondent's argument, required sub-s.16(1) to be applied. That information was supplied to the respondent by the applicant in October 1981 and November 1983 and was confirmed in interview on 19 June 1985 and 7 January 1986. On 9 January 1986 a return endorsement was issued and on 1 August 1986 an unconditional entry permit was granted.

124. The relevant matters having been disclosed, the respondent, through his officers, had a duty to determine whether an entry permit with an endorsement should be granted or an entry permit refused. The effect of sub-s.16(1) is to nullify any entry permit issued without such an endorsement and it follows that the respondent, though his officers, should make an appropriate determination under the Act whether it is necessary for a permit to be so endorsed. In effect, the respondent has contended that a discretionary power remained available to the respondent because of the absence of an endorsement on the entry permit issued on 1 August 1986. Had such an endorsement been applied to the permit, the applicant would not have been a prohibited non-citizen under the Act and no question of deportation could have arisen whilst the permit remained in force.

125. If the respondent took the view that the applicant's statement in October 1980 that she had no children attracted the operation of sub-s.16(1), officers of the respondent's Department had a duty to apply the necessary endorsement to any entry permit issued to the applicant thereafter. By subsequently issuing an entry permit which on its face gave the applicant the right to remain in Australia permanently, the respondent held out that it had considered her disclosure and had determined that the provisions of sub-s.16(1) did not apply.

126. The grant of an entry permit that is not subject to conditions is a decision conferring an irrevocable benefit unless the non-citizen leaves Australia. The Act makes no provision for an entry permit to be revoked or cancelled other than an entry permit issued on conditions (see s.7). The issue of an entry permit without the endorsement required by sub-s.16(1) after knowledge has been obtained of circumstances which require such endorsement to be applied, is a matter that is solely within the control of the Department. A determination that an entry permit, not subject to conditions and not bearing a sub-s.16(1) endorsement, should issue, is a representation that the lack of a sub-s.16(1) endorsement will not be relied upon as a disqualifying provision in respect of the permit that has been issued. It amounts to the waiver of a procedural requirement and not the failure to fulfil a statutory duty in respect of which no estoppel can arise. (See Wells v. Minister of Housing and Local Government (1967) 1 WLR 1000.)

127. The public interest in the due administration of the Act would not be stultified by the application of an estoppel in such a case. The due administration of the Act is to be found in decisions being made by the respondent's officers as to the action to be taken after knowledge is acquired of any circumstance which attract the operation of sub-s.16(1).

128. If such knowledge is held it would not be due performance of the provisions of the Act to issue an entry permit without the endorsement required by sub-s.16(1) with an intent that a decision as to deportation may be made at a later time and reservation of that power to deport may be effected by withholding the required endorsement.

129. In the circumstances of this case there would appear to be scope for the argument that the respondent was estopped from denying that, through his officers, it had been decided that the provisions of sub-s.16(1) did not apply and that no endorsement on the entry permit was necessary. Alternatively, if the respondent considered that the relevant facts attracted the operation of sub-s.16(1), but proceeded to issue an entry permit without the endorsement required by the Act, a declaration may be made that the respondent had a duty to apply the necessary endorsement under sub-s.16(1) and that that duty remains to be performed upon presentation of the entry permit to the respondent for that purpose. (See Gowa v. Attorney General (1985) 1 WLR 1003.)

130. In Gowa the House of Lords expressed some diffidence towards, although not disapproval of, the finding of estoppel against the Crown made in the Court of Appeal. The House of Lords described the matter of estoppel as a difficult question. (See Hotop, Principles of Australian Administrative Law (6th Edition) pp 242-245; Garner and Jones, Administrative Law (6th Edition) pp 119-122; Foulkes, Administrative Law (6th Edition) pp 184-190.) In Gowa the respondents, treated as non-citizens under the British Nationality Act 1981, had previously applied for registration as citizens of the United Kingdom in 1951 under the British Nationality Act 1948 repealed and replaced by the British Nationality Act 1981. In response to that application, a government officer advised the parents of the respondents by letter that they and the respondents were already citizens of the United Kingdom and no registration under the Act was required. That advice was mistaken in so far as the respondents were concerned. The Court of Appeal held that by virtue of that letter the respondents were to be treated as citizens of the United Kingdom under the British Nationality Act 1948 at all material times thereafter. The House of Lords preferred to replace that declaration with a declaration that the appropriate authority should forthwith consider the application made in 1951 and determine it pursuant to the provisions of the British Nationality Act 1948 notwithstanding the repeal of that Act.

131. Having found that the deportation order was fundamentally flawed, it is necessary to determine whether the applicant has established grounds on which orders to review may be issued in respect of the decisions made by the respondent's delegate or authorized officer to refuse the grant of an entry permit and to refuse to allow the applicant to make a voluntary departure from Australia.

132. The hearing was conducted by considering the reasons for decision of the decision-maker and the documents perused by him in reaching his decision.

133. Although both parties filed affidavits in preparation of the matter for hearing, none of those affidavits was considered relevant to the issues of the application and none was formally adduced in evidence on the hearing of the application. Neither party adduced viva voce evidence nor cross-examined the deponent of any affidavit, although the applicant gave notice of intention to cross-examine an officer who had interviewed the applicant. That deponent was not available for cross-examination and the applicant amended her application to delete the matters to which the deponent's affidavit had relevance.

134. The essence of the decision-maker's decision is contained in paragraphs 50-53 of his reasons for decision and they are set out below. It is convenient to consider the grounds of the application as argued by counsel as they arise in the course of analysing those paragraphs of the decision-maker's reasons:

"50 I took into account the following facts in

favour of the applicant's request to remain

permanently:

(a) she has a defacto relationship of considerable

duration with an Australian citizen, Mr

Evangelista. It is claimed they are engaged

and intend to marry later in January 1989 now

that Ms Rubrico is free to marry. Mr

Evangelista has a block of land in his name

upon which they are planning to build a house

after they are married;

(b) Ms Rubrico maintains that Mr Bradley

encouraged her to give false information to

the embassy in Manila. It would seem that his

prompting gave rise to an opportunity for Ms

Rubrico to break from complicated social and

family circumstances in the Philippines. This

is reflected in her written statement of 25

September 1987;

(c) she supports her family in the Philippines

through her employment in Australia;

(d) she would face shame and humiliation if she

had to return to the Philippines and now

considers Australia as her home;

(e) both Mr Evangelista and Ms Rubrico could be

expected to be aggrieved by a decision to

refuse permanent residence because it would

cause their separation. Mr Evangelista has

said he is prepared to sponsor her return to

Australia if he has to leave and arguably this

presents as further evidence of the

genuineness of his feelings for Ms Rubrico;

and

(f) in the event of her voluntary departure or

deportation, the applicant would have an

embargo of either three or five years imposed

on her return.

51 I decided not to grant resident status as I

have more weight to the following factors:

(a) Ms Rubrico and Mr Evangelista have both

described their relationship as

'semi-defacto'. He claims to visit her, on

average, four days per week, remain until the

early hours of the morning and then return to

his parents' home. This pattern is confirmed

by the applicant who recently claimed she sees

Mr Evangelista 'virtually every night' but he

still lives at his parents' house while she

stays in her own flat. The length of their

association remains uncertain and has proved

difficult to pinpoint, as has a number of

inconsistencies in their individual accounts

of the relationship, even with the benefit of

several interviews. I accepted however, that

Ms Rubrico and Mr Evangelista do share a

genuine relationship and have known each other

for more than three years, but in the absence

of the usual hallmarks of a defacto

relationship, such as joint tenancy, shared

property or assets, joint bank accounts etc, I

gave their relationship somewhat less weight

than it would deserve if they were living as

man and wife. Throughout the latter period of

their relationship I considered that, insofar

as marriage is concerned, neither person

appeared willing to commit him or herself to a

time other than 'later in the year', even when

Ms Rubrico found she was at liberty to marry.

It now appears they intend to marry in January

1989 and while that is a matter which I took

into account, of itself that factor did not

afford her any more access to Section 6A of

the Act than her present relationship;

(b) regardless of the applicant's claim of being

encouraged by Mr Bradley, she was a knowing

and willing party to deception designed to

achieve entry into Australia as a permanent

resident. her illegal immigrant status flows

from this duplicity and it would be

unreasonable for her to claim anything other

than full responsibility for her status;

(c) having achieved entry into Australia the

applicant attempted to maintain the deception

by supplying forged references and variously

making misleading and false statements to the

Department;

(d) the applicant has committed offences under the

Migration Act in becoming a prohibited

non-citizen and by working without permission,

even after having been instructed to cease

employment;

It is espoused in policy that:

'It is an acceptable principle of justice and

fairness that people should not derive benefit

from an illegal act they have committed.

Illegal immigration is no exception'.

I considered that the applicant set upon a course

of deception which worked for quite some time.

Through her contrivances and transgression of

migration law she managed to secure the benefits of

over six years in Australia.

52 Insofar as voluntary departure is concerned I

noted that the applicant had stated in the past

that she would prefer voluntary departure and at

one time she lodged a deposit on a return ticket to

the Philippines. Current evidence did not show if

she could afford her fare to the Philippines but

she has been in steady employment, she said, and

while she has made it plain she does not want to

return to Manila at all, she would most likely

prefer to do so voluntarily in lieu of deportation.

I considered however that deceptions and less than

satisfactory immigration history outweighed the

factors in support of the grant of concession of

voluntary departure.

53 In the light of all the circumstances I

decided to order the applicant's deportation."

135. The decision-maker accepted that he should consider whether there were strong compassionate or humanitarian grounds for the purposes of para.6A(1)(e) of the Act, notwithstanding that the applicant was not the holder of a temporary entry permit. The decision-maker properly acknowledged that it was within his power to issue a temporary entry permit for the purposes of providing eligibility for the grant of an unconditional entry permit if he were to determine that strong compassionate or humanitarian grounds existed. (See Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 per Gibbs C.J. at pp 560-561 and per Mason J. at p 582.)

136. Apparently the decision-maker proceeded to find that there were not strong compassionate or humanitarian grounds. Such a conclusion is not in itself open to review under the ADJR Act unless any decision based upon it is shown to have been affected by such an error in law as to cause the decision to have miscarried. (See Politis v. Commissioner of Taxation, Unreported (Federal Court of Australia, Lockhart J., 20 December 1988 at p 9).

137. Normally such a conclusion would be made after the decision-maker had allocated such weight as he saw fit to the material placed before him and the conclusion would be beyond challenge. (See Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 66 ALR 299 pp 309-310.) However, if the reasoning process by which the weighing of the material was carried out displayed an error of the type to which s.5 of the ADJR Act refers, the decision may be subject to an order for review under that Act.

138. In the present case various errors of that type are displayed in para.51 of the decision-maker's reasons.

139. Firstly, the decision-maker appears to have proceeded upon the principle that in assessing compassionate or humanitarian considerations a de facto relationship necessarily carried greater weight than a formal betrothal based upon a longstanding loving relationship. The task before the decision-maker was not to assess whether the applicant and Mr Evangelista conducted a fully fledged de facto relationship, but to assess the compassionate or humanitarian considerations that arose out of the relationship that they did enjoy. That relationship had existed over several years and apparently involved the company of each other to the exclusion of others and involved the Catholic Church, of which they were members, obtaining an annulment of marriage for the applicant and preparing the applicant and Mr Evangelista for marriage in the faith. In addition, the parties had entered a formal engagement for marriage and had set a date for that ceremony to be conducted by their Church.

140. It is obvious that an assessment of the relationship between the parties was a task the decision-maker was bound to carry out in exercising his discretion to grant or refuse an entry permit under para.6A(1)(e) of the Act. No doubt, experience would have taught the respondent's delegate or authorized officer to examine carefully any evidence proffered in support of such a relationship.

141. However, if in carrying out that assessment, the decision-maker failed to properly consider any elements of that relationship, the result could not be explained as a distribution of such weight to the material before him as was perceived to be warranted by the decision-maker. It would involve a failure to properly consider the relationship at all and, therefore, the failure to duly consider a relevant consideration. That error is displayed in para.51(a) of the reasons.

142. Para.51(b) suggests that the decision-maker has erred in a similar respect.

143. In her submission to the respondent's Department, the applicant had maintained that she had been instructed by Bradley to make the statements made in Manila in October 1980. If the decision-maker had said that the carrying out of such instructions would not prevent sub-s.16(1) of the Act applying to the applicant's circumstances, his statement would be unexceptionable. However, in so far as para.51(b) is a statement of matter taken into account in deciding how to exercise his discretion, it would appear that the decision-maker has stated that the circumstances in which the applicant became a prohibited non-citizen were irrelevant to the exercise of that discretion. The failure to consider those circumstances when assessing whether strong compassionate or humanitarian grounds existed, would signal the omission of a relevant consideration. It would be a matter for the decision-maker to attach such weight as he saw fit to the evidence of circumstances of mitigation in weighing the strength of the compassionate and humanitarian circumstances. (See Issam Wahab Hindi v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Sheppard J., 30 September 1988 pp 33-34.) It would have been important for the decision-maker to consider the likelihood of the applicant being instructed to make those statements. The decision-maker had some material before him from Bradley's sister and sister-in-law indicating their belief from their long experience of Bradley that the applicant's contention was true. Furthermore, the decision-maker had to consider that in aranging for the applicant's migration to Australia, Bradley was seeking to gain a particular benefit for himself as a result of which the applicant, according to the records before the decision-maker, suffered emotional and physical abuse. Paragraph 51(b) of the decision-maker's reasons indicates that the discretion has been improperly exercised in that a matter germane to the decision-maker's consideration of compassionate or humanitarian grounds, and not merely peripheral or incidental thereto, has been excluded from consideration, thereby attracting the provisions of paras.5(1)(e) and 5(2)(b) of the ADJR Act.

144. Paragraph 51(c) of the reasons displays further error on the part of the decision-maker. There was no material at all before the decision-maker to allow him to state that the applicant had supplied forged references after her entry into Australia and to permit him to take such a matter into a consideration when exercising his discretion to refuse or grant an entry permit. Furthermore, the statement that the applicant attempted to maintain "the deception" by "variously making misleading and false statements to the Department" reveals that the material before the decision-maker had not been duly analysed. The decision-maker treated the applicant as a prohibited non-citizen after forming the view that statements that the applicant had made in Manila in October 1980 regarding the non-existence of children were false and misleading in a material particular. If that alleged deception was a material aspect of the applicant's entry into Australia, its falsity was disclosed by the applicant within five months of her arrival in October 1981 and no statement to the contrary was made by her after her arrival in Australia. No other statements were alleged to be false or misleading in a material respect and the decision-maker does not define what deception was being fostered. In September 1986 the applicant disclosed that she had been untruthful in previous statements relating to a previous marriage, her surname and her baptism. As is set out above, when the applicant was first interviewed in June 1985 she did disclose that Dumaguing was the father of her child and stated that he had refused to marry her. In her interview on 7 January 1986, the applicant repeated that she and Dumaguing had not married. She stated, however, that the birth certificate for the child stated that she and Dumaguing had been married. In September 1986 the applicant disclosed that she and Dumaguing had gone through a ceremony of marriage in March 1978. The applicant had used the surname of a cousin, Makehekung, whilst a resident of the Philippines to obtain a passport in that name. She had used the names Honey Rubrico Makahekung at the time of migration. In an interview in June 1985 she had indicated that her father's name was Makahekung and her mother's maiden name Rubrico and did not disclose that her father's surname was Rubrico and that she was born Rubrico until the interview of 22 September 1986. In addition to the above the applicant admitted in interview on 22 September 1986 that the letter relating to baptism, presented in October 1980 in Manila, had been obtained by her uncle and was not genuine. That letter is not amongst the papers before the decision-maker and nor is it referred to in any of the application forms completed in Manila in 1980. It was probably presented in Manila because the applicant's birth was not recorded and she could obtain no official birth certificate.

145. Given that the statement with regard to non-existence of children was abandoned within five months of her arrival in 1981, that the validity of her marriage to Dumaguing was not regarded as an established fact, that the use of the surname Makahekung was not given great significance, and that the matter of baptism was of peripheral relevance, the statements in para.51(c) of the reasons indicate that the erroneous belief that forged references had been tendered by the applicant seriously coloured the further belief that various false and misleading statements had been made by the applicant and contributed directly to the formation by the decision-maker of the following firmly expressed opinion in the final words of para.51:

"I considered that the applicant set upon a course

of deception which worked for quite some time.

Through her contrivances and transgression of

migration law she managed to secure the benefits of

over six years in Australia."

146. It is apparent that the opinion expressed was central to the exercise of the decision-making power and that that power was improperly exercised in that the decision-maker formed a view of events by taking into account an irrelevant consideration, namely an erroneous belief that the applicant had "supplied forged references" after entry into Australia.

147. Paragraph 51(d) of the reasons recited by the decision-maker contained further error. As is set out earlier in these reasons, the grounds relied upon by the decision-maker to support a conclusion that the applicant was a prohibited non-citizen were incapable of establishing an offence under sub-para.27(1)(c)(ii) of the Act and the statement by the decision-maker that the applicant was such an offender and that it was a matter to be considered in deciding to exercise his discretion against the applicant involved an error of law. In addition, the reference in that paragraph to the applicant working without permission as an adverse circumstance worthy of consideration is surprising. In the circumstances it bordered on the trivial. It could not be argued that it was a matter upon which the decision-maker could allocate such importance as he saw fit. The applicant had been supporting herself for approximately five years before such a direction was issued and throughout that time she held an entry permit with entitlement to obtain employment. She was breaching no condition of an entry permit by being in employment. The oral direction by a departmental officer to cease employment may have been invalid in any event, but as the applicant stated in the interview held on 13 February 1987, although she had ceased work pursuant to that direction for four or five weeks, she had to return to work to obtain money to support herself. Indeed the need, if not the right, for her to return to work was recognised by the permission granted in March 1987. To allow such a matter to influence a decision on the merits of the applicant's case was to allow an irrelevant consideration to be included in the exercise of the decision-maker's discretion.

148. The decision-maker's consideration of the question of voluntary departure, as outlined in para.52 of the reasons, shows a miscarriage of the discretion. The consideration of this decision was equally tainted by the errors that bore upon the decisions to refuse the grant of an entry permit set out above, but it displayed further error. Firstly, the reference to a "less than satisfactory immigration history" could only be an accurate statement if it referred to misleading material statements which were matters to which the decision-maker had already given attention. In fact, the only material before the decision-maker indicated that the applicant had migrated as the wife of an Australian citizen, had endeavoured to make that marriage work, had melded into the Australian community and had been a self-suporting member thereof after the failure of her marriage in circumstances that involved no fault on her part. Furthermore, the decision-maker could have been in no doubt that the applicant would have effected her own departure if required to so do rather than suffer deportation, a matter he acknowledged in that paragraph of his reasons. Above all, in September 1986 in the interview in which full disclosures were made, the applicant provided evidence that she would be able to leave Australia on 4 November 1986 if required to do so. She was allowed to remain in Australia for a further eighteen months whilst she made arrangements to gain an annulment from the Catholic Church of her marriage to Bradley to enable her to marry an Australian citizen. The respondent's Department was made aware by the applicant and Mr Evangelista of the existence of the relationship and of their intention to marry. To allow a further eighteen months to elapse whilst such arrangements were made and the relationship developed and have the applicant duly report weekly to the respondent's Department over a period of 14 months after February 1987 and then decide that the applicant be deported, and not be requested to depart, defies any suggestion that the discretion has been properly exercised particularly when no adverse matters were raised against the applicant in that period according to the decision-maker's statement of reasons and the material before him.

149. For the reasons set out above the decision to deport, which on the face of the deportation order was made on the ground that the applicant had made a statement false in a material particular in respect of the grant of a return endorsement, should be quashed in that it involved an error of law in the application of an erroneous interpretation of sub-s.16(1) of the Act and, furthermore, in that it was made when there was no evidence or material to support the ground for the decision that the applicant had made a statement false in a material particular in respect of the grant of a return endorsement.

150. Furthermore, for the reasons set out above, the decisions to refuse the grant of an entry permit, and to refuse to permit the applicant to depart Australia voluntarily were each decisions in respect of which orders to review under the ADJR Act should issue and in respect of which orders should be made setting aside each of the respective decisions and an order made returning the applicant's request for the issue of an entry permit to the respondent or his authorized officer for further consideration according to law.