Administrative Decisions (Judicial Review) Act 1977 s.s.13

Migration Act 1958 s.s.6,38

Solicitor for Appellant: Australian Government Solicitor

This is an appeal by the Minister for Immigration, Local Government and Ethnic Affairs against a decision of a Judge of this Court (Lee J.) granting relief in an application brought under the Administrative Decisions (Judicial Review) Act 1977 by Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon. His Honour set aside decisions of David Jolly, the delegate of the Minister, to refuse the grant to Mr Dhillon of a permanent entry permit under s.6 of the Migration Act 1958, to refuse to permit the voluntary departure of Mr Dhillon from Australia and to deport Mr Dhillon.

2. In our opinion the orders made by the learned primary Judge were correct. As comprehensive findings of fact were made by his Honour, we are able to state our conclusions compendiously and without traversing the facts in detail.

3. Mr Dhillon is a citizen of Malaysia. Mrs Dhillon is Australian. The couple were married in Malaysia on 9 November 1987. On the following day Mr Dhillon lodged an application to migrate to Australia. Four days later Mrs Dhillon returned to Australia. She supported her husband's application to migrate. This application was successful and, on 28 May 1988, Mr Dhillon arrived in Australia, travelling on a migrant visa. However, on his arrival officers of the Department of Immigration, Local Government and Ethnic Affairs developed some suspicions regarding his position with the result that he was issued with a temporary entry permit valid for only two weeks. Mr and Mrs Dhillon were each interviewed but no immediate decision was made. In the meantime, on 25 July 1988, Mr Dhillon being still in Perth, Mrs Dhillon made a statutory declaration to the effect that her marriage to Mr Dhillon was a marriage of convenience to enable him to gain resident status in Australia. She also stated that she was pregnant and that Mr Dhillon was not the father of her child. At this time Mrs Dhillon produced to immigration officers a copy of a letter which her husband had written to his parents in which he referred to a possible separation from her. Shortly after this date the department also received statutory declarations from three friends of Mrs Dhillon each stating that she had informed the department that the marriage was merely one of convenience.

4. As a result of the receipt of this material, on 2 August 1988, a departmental officer visited the house where he and Mrs Dhillon resided. He arrested Mr Dhillon pursuant to s.38 of the Migration Act and took him into detention. Three days later Mrs Dhillon forwarded to the department a further declaration in which she retracted her earlier allegations, which she explained as having been "motivated by a desire for vengeance" consequentially upon her discovery of the letter from her husband to his parents. She said that she arranged for her three friends to corroborate her statements but that they were simply repeating what she had told them. Mrs Dhillon described her present position in this way:-

arrested and taken into custody on Tuesday the 2nd of

August, 1988. I spoke with him by telephone several

times. On Wednesday and Thursday afternoons I

visited him for several hours. We talked about our

future together, what went wrong with our marriage

and the lack of communication, which led to doubt and

mistrust. A full reconciliation has been effected.

As soon as GAMDUR is released we intend resuming

cohabitation and raising our family together. We

intend having several children together and living as

husband and wife on a permanent basis. We intend

renewing our marriage vows in Australia before a

civil celebrant so my family and friends can attend

and witness our marriage.

17. I support my husband's application for

permanent residence filed herewith. I am presently

unemployed. We have no savings to speak of. Whilst

GAMDUR's grant of permanent residency is being

considered I would greatly appreciate it if he could

be given permission to work on a temporary basis so

he can support me and we can prepare financially for

the baby."

5. Mr Dhillon made a statutory declaration to similar effect and two of the three friends each made statutory declarations in which they, in effect, withdrew their previous statements. One friend, who lived in the same house as Mr and Mrs Dhillon, said this:-

"3. I stated in my said statutory declaration that

MARCELLE and GAMDUR were not having sex. This is

what MARCELLE had told me. I now believe this to be

false.

4. I believe that the reason for GAMDUR refusing

to assist with household bills and dating other women

twice through a dating club, was MARCELLE's

domineering personality. I believe she pushed GAMDUR

too hard.

5. MARCELLE and I have had a long talk. I believe

she and GAMDUR have genuinely reconciled and wish to

resume cohabitation on a permanent basis. I support

GAMDUR's application for permanent residency."

6. An officer of the department, Mr P.D. Watt, prepared a submission to Mr Jolly in which he recommended the refusal of resident status and consequential orders. In his submission Mr Watt expressed the opinion "that it is reasonable for you to find that the marriage was contrived for the purpose of enabling Mr Dhillon to obtain a visa for the purpose of migrating to Australia."

7. The findings made by Mr Jolly, the decision maker, are set out in a statement made under s.13 of the Administrative Decisions (Judicial Review) Act which was treated as evidence before his Honour. In para 43 of that statement Mr Jolly referred to a statement made by the Minister in October 1985 in regard to illegal immigrants, and, in particular, to a reference in that statement to marriage with an Australian citizen. Mr Jolly expressed the opinion that this policy should be applied to the instant case. He went on:-

"45. In examining those circumstances I considered

the factors in Mr Dhillon's favour to be:

. He was married to an Australian citizen and

evidence had been produced to suggest that the

marriage was ongoing and not entered into for

the purpose of gaining resident status in

Australia.

. His statement that if deported he "would be

permanently separated from my wife who is

unwilling and unable to live in Malaysia and I

would be deprived of the love and affection of

my child".

. Similarly his wife would be deprived of the

love and affection of her husband, and the

child denied the love and support of its

father. He said that his wife "would be

without any financial, emotional and

psychological support prior to the birth of our

child".

. His wife and child would be deprived of his

financial support.

. He applied for and was granted a migrant entry

visa by the Australian High Commission, Kuala Lumpur.

. He had a sister permanently resident in Western

Australia; and

. He had an offer of permanent employment.

46. Against the above matters I took the following

into account:

. There was considerable conflict in the evidence

concerning the marriage of Gamdur Dhillon to

Marcelle Lievense. Statements had been made by

Marcelle and three of her friends, Vera Takach

De Duka, Sarah White and Marina Paul, attesting

to the fact that the marriage was contrived to

secure permanent resident status in Australia

for Gamdur Dhillon.

. Marcelle Lievense and Vera De Duka had

subsequently retracted their statements.

Marina Paul had not retracted her statement and

when contacted and asked if she had been

approached to do so she said that Marcelle did

not request her directly, but the matter was

discussed. Marina re-iterated being Marcelle's

best friend over a period of eleven odd years,

and that she was placed in a difficult position

in not wishing to create discord in their

relationship, at the same time not wishing to

lie.

. Gamdur Dhillon and Marcelle Lievense had both

stated that they met in Kuala Lumpur in

November 1982 and that by October 1987 they had

falled in love. The records of the Department

suggest that Marcelle did not travel to Kuala

Lumpur in 1982. She had departed Perth on a

flight to Bali on 14 September 1982, indicating

that she would stay in Indonesia for eight

days, then returned to Perth on a flight from

Bali on 22 September 1982 indicating on return

that she had stayed eight days in Indonesia.

The records had also showed that Ms Lievense

travelled to Malaysia between 3 December 1983

and 17 December 1983 and it was therefore

conceivable that the couple had both made an

error in recollecting the month and year in

whcih they met.

. The co-incidence of Ms Lievense having met

Gamdur Dhillon in 1982 and having established a

close relationship with him, then meeting his

sister at their common place of employment in

1986-87. The statutory declaration signed by

Marcelle on 25 July 1988 was a more plausible

account of their meeting. That is that she met

Ghamdur in 1986 (sic) throught his sister Devi

Dhillon, whom she had met at Bristiles. Marina

Paul and Sarah White both supported the account

of their meeting in August 1987.

. Dhillon and his wife had both made statements

to the effect that they had had a very close

relationship since August 1987. Their

statements were supported by statements from

third parties and with telephone accounts

confirming that they maintained contact whilst

separated after their marriage.

. In respect of these claims I thought it

pertinent that Mr Dhillon had made no mention

of any romantic attachments when located in

unauthorised employment in October 1987; that

the marriage had been arranged within one day

of Marcelle arriving in Kuala Lumpur and that

she had then departed one week later; that her

statutory declaration of 25 July 1988 stated

that she received quite a few phone calls from

Gamdur asking her to see the Immigration

Department so he could get to Australia

quicker; that she was not at the airport to

meet him on arrival; and that Gamdur had

written to his family and said, amongst other

things, "anyway if everything goes well I will

be separated from her by December". I did not

consider that the tone of his letter expressed

his later claim that he was angry and "had had

a gut full of my parents".

. Dhillon had, during his visit to Perth in 1987,

worked contrary to his conditions of entry and

had been directed to leave Australia.

. According to Marcelle the child she was

carrying was due in mid December 1988. It is

therefore reasonable to conclude that the child

had been conceived after her marriage to

Dhillon but prior to his arrival in Australia.

This would strongly suggest that Dhillon is not

the father of the child.

47. I found, after taking into account the

inconsistencies, and the conflicting statements made

by Mrs Dhillon, that there were reasonable grounds to

conclude that the marriage between Gamdur Dhillon and

Marcelle Lievense had been contrived for the purpose

of enabling him to obtain a visa to migrate to

Australia. I considered that the claims of deprived

love and support should be seen also against the

conflicting statements and Mr Dhillon's earlier lack

of support for his wife or knowledge about her

background.

48. The marriage in the above circumstances, while

a factor to be considered, attracted rather less than

paramount importance in my overall consideration of

the merits of Mr Dhillon's case. Having afforded

reduced weight to Mr Dhillon's marriage in my

consideration I found that he had not advanced other

factors including compassionate or humanitarian facts

that sufficiently weighed in his favour to sway me to

approve the grant of resident status. I therefore

decided to refuse the grant of resident status to Mr

Dhillon."

8. A number of comments should be made about these paragraphs. Firstly, Mr Jolly recognised at the outset the relevance of the question whether "the marriage was ongoing". He rightly pointed out that evidence had been produced to the Department to suggest that the marriage was ongoing. But nowhere in his reasons did Mr Jolly consider whether or not he should accept that evidence and conclude that the marriage was in truth ongoing. On the contrary, the burden of the reasons was a recapitulation of the various claims made in respect of the history of the relationship and the circumstances surrounding the parties' entry into marriage. These matters were relevant to the ultimate question: whether the marriage was, at the time of the delegate's consideration of the case, properly to be regarded as a genuine ongoing marriage. But, by their very nature, they could not be determinative of that matter. It is perfectly possible for parties, or one of them, to enter into a marriage without a genuine intention of living together as man and wife indefinitely and yet, a few months later, for each of them to have that intention. Although the factors noted by Mr Jolly were such as reasonably to excite some suspicion about the nature of the relationship, they could not determine the critical question.

9. Secondly, a number of the matters noted by Mr Jolly as factors against the case put by Mr Dhillon could not logically be so regarded. Mere conflict in the statements made by Mrs Dhillon and her friends upon the question whether the marriage was contrived could not cut down the claim of a genuine marriage. That claim could only be cut down by a finding that, when it was entered into, the marriage "was contrived to secure permanent resident status" for Mr Dhillon. The doubt as to the date of meeting could hardly be regarded as affecting the matter of contrivance, still less the status of the marriage in September 1988. But, thirdly and more importantly, Mr Jolly did not make a finding even on the matter of contrivance. He merely found that, after taking into account the inconsistencies and conflicting statements made by Mrs Dhillon "there were reasonable grounds to conclude that the marriage ... had been contrived for the purpose of enabling (Mr Dhillon) to obtain a visa to migrate to Australia." It was on the basis of that finding that, in para 48, Mr Jolly discounted the significance of the marriage in this case.

10. It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subseqently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence. Only if this is done is it possible for the affected person to understand precisely the reason why the decision went as it did. Only if this is done it is possible for a judicial reviewer to determine whether there was evidence before the decision maker to support the finding. In making the above observations we bear in mind that there may be cases, for example risk assessment in the case of a suspected terrorist, where the relevant finding is that a risk exists. If that fact be found it may be proper to be influenced by it. But, of course, motions of risk assessment have nothing to do with this case.

11. The primary judge referred in his reasons to the concept of marriage in Australian law, citing the remarks of Street C.J. in R. v. Cahill (1978) 2 NSWLR 453 at p 458. As his Honour there pointed out, people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. Mr Jolly never addressed that question. Accordingly, it seems to us that he failed to take into account a relevant consideration. This was the view of the learned primary judge, his Honour concluding that Mr Jolly "did not duly consider the nature of a marriage relationship and misdirected himself as to the nature of the discretion to be exercised by him."

12. Lee J. made other criticisms of Mr Jolly's decision: his failure to consider the possibility of testing the marriage relationship by granting a temporary entry permit for a period before reaching a final decision and his failure to consider allowing a voluntary departure rather than insisting on deportation. Having regard to our view on the principal question, it is unncessary for us to deal with these matters. It is enough for us to say that we agree that the decisions were vitiated for failure to give consideration to a material factor. The orders made by his Honour were plainly right. The appeal must be dismissed with costs.

13. The effect of the orders made by Lee J., which we uphold, is that Mr Dhillon's application for permanent residence remains undetermined. That application should be determined on the basis of the present situation, including - importantly - the nature of the present relationship between the respondents. Having regard to the time which has elapsed, the obligations of natural justice will require the person who now determines the matter to give to Mr and Mrs Dhillon a reasonable opportunity to put before him or her up to date material on that matter.