Evidence - presumption of regularity - statutory presumptions - s.108 and s.111(1)(c)(i) Migration Act 1958 - irregularity of administrative procedures - s.7E Evidence Act 1905 (Cth). - absence of witnesses - rule in Jones v Dunkel

Migration Act 1958 (Reprint No. 2) ss.5(1), 6, 6A

Migration Act 1958 (Reprint No. 3) ss.108, 111(1)(c)(i)

Migration Legislation Amendment Act 1989 s.6(4)

Administrative Decisions (Judicial Review) Act 1977 s.5

Brickworks Limited v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568

R v Wright (1871) VLR (L) 204

Hardess v Beaumont [1953] VicLawRp 46; (1953) VLR 315

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Refjek v McElroy [1965] HCA 46; (1965) 112 CLR 517

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Earle v Castlemaine District Community Hospital [1974] VicRp 86; (1974) VR 722

Payne v Parker (1976) 1 NSWLR 191

Minister for Immigration v Kurtovic [1990] FCA 22; (1990) 92 ALR 93

Rubrico v Minister for Immigration [1989] FCA 90; (1989) 86 ALR 681

Solicitors for the Applicant: M.M. Chakera and Associates

Solicitors for the Defendant: Australian Government Solicitor

In September 1990 the applicant went to the Sunshine office of the Department of Immigration, Local Government and Ethnic Affairs ("the Department") and was there given a document bearing the description "Entry Permit Card" which stated that the applicant was "permitted to remain in Australia for residence". However on 22 January 1991 he was arrested. The Department took the view that there had not been a valid entry permit issued to the applicant. On 12 February 1991 a decision was made not to grant him an entry permit to remain in Australia. A deportation order was made against him on 19 February 1991. In these proceedings the validity of that deportation order is challenged.

2. The issues which have emerged in these proceedings are agreed by counsel to be:

1. Has there been a grant to the applicant of an entry permit to

remain in Australia under s.6(2) of the (old) Migration Act

1958?

2. If no, is the respondent estopped from denying that there has

been such a grant?

3. If no, was the decision made on 12 February 1991 not to grant

to the applicant an entry permit to remain in Australia

unlawful and void by reason of any ground specified in s.5 of

the Administrative Decisions (Judicial Review) Act 1977?

3. If the applicant succeeds on any of these issues, it is accepted that the deportation order cannot be enforced. If successful on the first or second issue, the applicant will effectively be entitled to permanent resident status. Success on the third issue will necessitate the matter being referred to the respondent for further consideration.

4. The applicant is a citizen of Fiji, having been born in that country on 13 February 1961. He first arrived in Australia on 12 March 1988. The purpose of his visit was to undergo a course of studies in computer science at the Secretarial Diploma College at Frankston. He had been granted an entry permit which expired on 12 December 1988.

5. However, within a few days of his arrival at the college, he was asked by those in charge for a payment of $1,000. He had already paid $1,000 in advance before leaving Fiji and his understanding was that a further $1,000 would only be payable after he completed the course in three months time. It may be that there was a misunderstanding and that the course had already been under way for some time. In any event, he did not pay the amount demanded and left the college. Not long after leaving the college he met Miss Kimberley Jane Eckhardt, an Australian citizen. On 27 August 1988 the applicant and Miss Eckhardt married. On the same day the applicant made an application for resident status. On 31 August 1988 the applicant and his wife were interviewed at the City office of the Department. He then handed his Fijian passport to the Departmental officer.

6. On 7 November 1988 he commenced working for Wrightcel Australia Limited in East Hawthorn as a printer's assistant. Although this was a breach of the terms of his temporary entry permit, he was apparently successful at his job. In October 1990 he was promoted to Supervisor of the Ink Room. In a letter to the Department dated 24 January 1991 his employer states that the applicant "has been an excellent employee and has displayed a commendable attitude to his job. He is highly regarded by both management and employees".

7. On 15 December 1988 the applicant was granted a further entry permit for the period to 15 March 1989.

8. On 28 December 1988 the applicant went to Fiji and returned to Australia on 16 January 1989. The purpose of this visit was to obtain his "provident fund money" which was "the same as what we have superannuation in Australia". But he was told in Fiji that he could not have the money because he did not have permanent residence in Australia. He had originally proposed to take his wife, but she could not obtain leave from her work. For the purpose of this travel he obtained his passport back again from the Department with an appropriate re-entry visa.

9. On 6 June 1989 the applicant attended with his wife at an interview at the City office of the Department. The Departmental file contains a memorandum:

"Information on folio 10 considered in view of i/v on 6.6.89.

Couple appear to have bona fide marriage.

In view of still being together after approx. 10 months of

marriage, application to proceed." (Underlining on memorandum)

10. The applicant says that he and his wife were "interrogated at length" at that meeting, which might be expected since the Departmental file contains, as folio 10, a note made at the time of the initial application on 31 August the previous year which includes a comment by the Departmental officer:

"I have doubts about the bona fides of this relationship."

together with some reasons for that doubt. However the file contains no details of the interview of 6 June 1989 other than that stated.

11. Up until the middle of 1989 the applicant and his wife had been living at 18 Miller Street, Highett, the home of the wife's parents. In July 1989 they moved to Flat 5, 115 Devonshire Road, Sunshine. In his affidavit sworn 28 March 1991 the applicant deposes:

"Then in July, 1989 we moved to Sunshine and my wife wrote to

the Department about the change of address and I believe that

the letter also advised them to transfer the file to the

Sunshine branch of the Immigration Department... The said

letter has been sighted by me in the Immigration file, when I

was being interviewed at the Detention Centre but my solicitor

has advised me that when he looked at the Immigration (sic)

under the Provision of Freedom of Information Act (sic) that

the letter said letter (sic) was not there."

12. However during the hearing before me counsel for the respondent did produce a letter in the following terms:

"23rd June 1989

2/115 Devenshire (sic) Road

Sunshine 3020

Melbourne Victoria

The Department of Immigration Ethnic Affairs

Sunshine

Melbourne Vic

Ref: V88/17259

Dear Sir/Madam,

We wish to inform the Department that we now reside at

the above address and not at our previous address which was:

18 Miller Street

Highett 3190

Melbourne Vic

We would be very gratfull (sic) if the Department can

direct all our mail to our new address in Sunshine.

Thanking you in anticipation.

Yours faithfully,

(Signed)

Satendra Prasad (Mr)

(Signed)

Kimberley Jane Prasad (Mrs)"

13. The letter bears a received date stamp of 26 June 1989. It was said by counsel for the respondent that the letter never reached the Departmental file and that it had been produced from part of a separate "investigation file". No point was made at the trial of the difference between the number of the Sunshine flat as stated in the affidavit (5) and in the letter (2). The applicant says that the purpose of their move to Sunshine was to seek employment for his wife who was a hairdresser. However no job was found at Sunshine and after four weeks they returned to 18 Miller Street, Highett.

14. In February 1990 the applicant and his wife separated. The applicant then moved to Flat 11, 41 Carol Crescent, Glen Iris where he lived with a friend. He deposes:

"I did not inform the Department as I thought my wife had

already told them that we had split up and that I had moved

out."

15. In his evidence he said that his wife spoke in anger at this time. In passing, the comment might be made that it seems not improbable that a wife separating from a husband in circumstances of some unhappiness where the wife has supported the husband's application for permanent residence might state with a degree of vehemence that she would report the break-up to the Immigration Department, and that the husband might reasonably believe that this threat would be carried out.

16. The applicant did not hear anything further from the Department for some time, so he wrote them a letter on 1 September 1990. Before writing that letter he telephoned the Department offices at Sunshine, the City and Dandenong to inquire where his file was. He was told by the Sunshine office that they did not have his file and the City office and Dandenong office told him he should write to Dandenong. After writing the letter he moved from the address in Glen Iris to Flat 5, 7 Gordon Street, Footscray with a friend, Colin Brough. Since he was aware that Footscray came within the area of the Sunshine office of the Department, he telephoned the Department at Sunshine and spoke to a woman officer telling her of his change of address and also giving her his work telephone number. He says he asked her if he had to inform the other offices of the Department. She said he did not and that as he lived in Footscray the file would be handled at Sunshine.

17. Some time in early September he received a telephone call at his work from the Sunshine office of the Department. The caller told him that:

"My entry card was approved some time back but my passport was

misplaced and I should obtain a new passport and forward it to

the Sunshine office."

18. He made arrangements through his family in Fiji to obtain a new passport. This was done with great urgency. He received the new passport and sent it to the Department in Sunshine by mail with his work telephone number and address. A few days later, this being late September or early October, he received another telephone call from the Department at Sunshine saying that his entry permit was ready to be collected and that he was to bring "an I.D." with him. In his affidavit he deposes:

"I went to the Sunshine office, attended the service counter,

presented my I.D. to the man (a white Australian) and told him

that I was to collect some documents. He gave me an envelope

with my name on it which contained an entry permit card and my

passport with re-entry endorsed."

19. In his evidence he said that he did not open the envelope until he got home. There was no covering letter with the two documents.

20. The entry permit card is a folded piece of cardboard 18cm by 12.5cm when opened out. It has come apart at the fold and is now in two pieces. On the front (when folded) is the Australian Coat of Arms and underneath that the words:

Department

of

Immigration

Local Government and

Ethnic Affairs

Entry Permit Card

On the left hand side (when opened out) are printed words:

Migration Act 1958

The Entry Permit embodied in this document

is issued to

.....................................

Pursuant to the Migration Act 1958

.........................

Issuing Officer

21. Immediately above the first dotted line there is hand printed the words "PRASAD. SATENDRA." Immediately above the second dotted line there is the imprint of a round rubber stamp with the words "Department Immigration and Ethnic Affairs Melbourne". In the middle is the Australian Coat of Arms and under that a figure which is somewhat blurred but appears to be either 36 or 86. Over the stamp there is a handwritten initial or cypher. It could be IL or JL.

22. On the right hand side (when opened up) is the imprint of an octagonal rubber stamp with the words:

Immigration Australia

permitted to remain in Australia

for residence

on 24 Oct 1989

This permit has no force or

effect after the holder leaves

Australia

Sunshine 1

Across the bottom of this stamp there is a blue adhesive strip bearing the number "679 01843T".

23. The passport bears a stamp indicating it was issued in Suva, Fiji on 10 September 1990. To one page there is adhering an Australian visa printed on watermarked paper and numbered E303730. Elsewhere (at three different places on the visa) appear the numbers and letters V679 79047A.

Australian Visa Sunshine Resident Return

Name Work

1. PRASAD. S.R. Unrestricted

Issued on 18 Sep 90 for Multiple Travel before

18 Sep 92 for stay indefinite subject to

grant of entry permit on each arrival.

The name and the two dates are hand printed and the remainder is typed.

25. On 22 January 1991 the applicant was arrested and subsequently interviewed by Departmental officers and Federal police. Allegations were made to him that the permanent resident permit and the re-entry on the passport "were placed with stamps which were stolen from the Immigration Department at Sunshine". The applicant denied any knowledge of any wrong doing. On 19 February 1991 a deportation order was made in the following terms:

DEPORTATION ORDER

WHEREAS SATENDRA PRASAD being a non-citizen, entered Australia

on the twelfth day of March 1988.

AND WHEREAS the said SATENDRA PRASAD is an illegal entrant by

virtue of sub-section 14(3) of the Migration Act 1958 in that

he was the holder of a valid entry permit or entry visa which

has expired and no further valid entry permit applicable to him

came into force upon that expiration or has been granted to him

since

NOW THEREFORE I, IAN CRAWFORD HEATH, a delegate of the Minister

of State responsible for administering the Migration Act 1958,

DO HEREBY ORDER, pursuant to section 60 of that Act, that the

said Act (sic) SATENDRA PRASAD be deported from Australia

Dated this NINETEENTH day of February 1991

...............Ian Heath..............

Delegate of the Minister of State

responsible for administering

the Migration Act 1958

26. The foregoing account is to a substantial degree dependent on uncorroborated evidence of the applicant. He gave evidence before me and was cross-examined. There was nothing in his demeanour which to my mind cast doubt on his truthfulness. Criticism was levelled at some of his evidence on the basis of his account being inherently improbable, for example that, having obtained an envelope at the Sunshine office said to contain documents of great importance to him, he would have opened it there and then and not waited until he got home. But it was not put to me by way of submission that he was a witness unworthy of belief. Moreover (and this point will be seen later as important for other reasons) it was not put to him that he was concocting a false story to cover his participation in a racket for the obtaining of forged immigration documents. Were this the case, much of the applicant's evidence, and in particular his account of various contacts with the Sunshine office, must have been an elaborate invention.

27. In one respect, his letter of 23 June 1989, he was prepared to go on oath in an affidavit as to his recollection even though his solicitor advised him the letter was not on the Department's file. This confidence in his own recollection was vindicated by the unexpected production of the letter at trial. Generally I accept his evidence as truthful and accurate.

28. The legislation governing migration was very substantially altered by the Migration Legislation Amendment Act 1989 but the Migration Act 1958, as amended by the 1989 legislation, is still called the Migration Act 1958, even though the numbering of most sections is now completely different. Thus there are two quite different pieces of legislation, each called the Migration Act 1958. If there is a reason for inflicting this confusing regime on those who have to work with migration legislation, it is not readily apparent to me. The legislation in force prior to the 1989 amendments is, for present purposes, contained in reprint number 2. I shall refer to this as the (old) Migration Act 1958. The present legislation, which came into effect on 19 December 1989, I shall call the (new) Migration Act 1958.

29. Counsel for the respondent contended that because the applicant's application was not determined at the commencement of the (new) Migration Act 1958 it is, by virtue of s.6(4) of the 1989 Act, to be considered under the (old) Migration Act 1958 and in particular ss.6 and 6A thereof. However if I were to conclude that there was not a valid entry permit, the question of his deportation has to be considered under the (new) Migration Act 1958. This contention was accepted by counsel for the applicant and I shall accordingly consider the first and second of the issues identified at the commencement of this judgment under the provisions of the (old) Migration Act 1958. Sections 6 and 6A of that Act relevantly provide as follows:

"6. (1) A non-citizen who, not being the holder of an

entry permit that is in force, enters Australia

thereupon becomes a prohibited non-citizen.

(2) An officer may, in accordance with this section

and at the request or with the consent of a

non-citizen, grant to the non-citizen an entry permit.

(3) An entry permit shall be in a form approved by

the Minister and shall be expressed to permit

the person to whom it is granted to enter

Australia or to remain in Australia or both.

(4) For the purposes of sub-section (3), where a

notation in a form approved by the Minister as

a form of entry permit is made by an officer in

a passport or other document of identity held

by a person and the notation does not specify

the name of any person as the person to whom it

relates, the notation has effect as if it were

expressed to relate to the person holding the

passport or other document.

(5) An entry permit may be granted to a non-citizen

either upon his arrival in Australia or,

subject to section 6A, after he has entered

Australia (whether or not that entry took place

before, or takes place after, the commencement

of this Part).

(6) An entry permit that is intended to operate as

a temporary entry permit shall be expressed to

authorize the person to whom it relates to

remain in Australia for a specified period

only, and such a permit may be granted subject

to conditions.

(6A) Without limiting the conditions subject to which

an entry permit referred to in sub-section

(6) may be granted, such a permit may

be granted subject to a condition imposing

restrictions with respect to the work that may

be performed by the holder in Australia,

including restrictions on performing any work,

or work other than specified work or work of a

specified kind, without the permission, in

writing, of an authorized officer.

(7) .....

(8) .....

6A. (1) An entry permit shall not be granted to a

non-citizen after his entry into Australia unless

one or more of the following conditions is

fulfilled in respect of him, that is to say -

(a) .....

(b) he is the spouse, child or aged parent

of an Australian citizen or of the

holder of an entry permit;

(c) .....

(d) .....

(e) .....

(2) .....

(3) Subject to sub-section (2), an entry permit

shall not be granted to a non-citizen after his

entry into Australia otherwise than by -

(a) the Minister; or

(b) an officer authorized by the Minister,

by instrument in writing, to be an

authorized officer for the purposes of

this section.

(4) .....

(5) .....

(6) .....

(7) .....

(8) ....."

"5. (1) In this Act, unless the contrary intention appears -

"non-citizen" means a person who is not an

Australian citizen;

"officer", in relation to the exercise of any

power or the discharge of any duty or function

under this Act, means -

(a) an officer of the Department;

(b) .....

(c) .....; or

(d) any other person who is, or who is

included in a class of persons who

are, authorized by the Minister to

exercise that power or to discharge

that duty or function;"

31. Section 6(2) gives an officer power, subject to compliance with certain pre-conditions, to "grant to the non-citizen an entry permit". The noun "permit" is here used in the sense of "a written order granting leave to do something" or "an authoritative or official certificate of permission" (Macquarie Dictionary) or "a written order giving permission, a warrant, a licence" (Shorter Oxford English Dictionary). Thus what s.6(2) is concerned with is the document itself, as distinct from some decision which may be evidenced by a document. Note in this regard the detailed provisions of s.6(3) and (4) concerning the form of the document which is to constitute the permit.

32. The contrast just referred to is illustrated by a case which fell on the other side of the line. In Brickworks Limited v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568 the High Court was concerned with provisions of a planning scheme ordinance, the effect of which was to forbid the extraction of clay and shale from land without the consent of the responsible authority. A document was provided by the respondent to the appellant which stated that:

"The Council of the Shire of Warringah as the responsible

authority under the County of Cumberland Planning Scheme

Ordinance hereby consents to the abovementioned land being used

for the following purpose:

Extraction of clay and shale for brick making subject

to the following conditions:

(there then followed a number of conditions)"

It was dated 22 April 1960 and signed by the Shire President. Owen J. said (at p 582):

"It will be noticed that the document purports to be a grant of

consent but counsel rightly treated it as a notice that consent

had been given. Under s.87 of the Local Government Act the

President of a Shire Council is declared to be the chief

executive officer of the Council and is required to give effect

to the provisions made by or under the Act and to any

resolution which has been passed by the Council. The President

was therefore a person who might properly sign the document,

assuming of course that the Council had consented to the use of

the land for the purposes set out in it."

33. The case turned on the question whether the Council had in fact consented, that being, in the view of the High Court, a question of fact. Owen J. said (at p 588):

"The issue of the document of 22nd April over the signature of

the President gave rise to a presumption that the Council's

consent had been given and that presumption was greatly

strengthened by the Council's subsequent actions. The only

material in rebuttal consisted of the meagre and unsatisfactory

oral evidence and the fact that no record of a minute granting

consent appeared in the Council's minute book."

34. In the present case the entry permit card which the applicant received from the Sunshine office in September 1990 was a form used by the Department. The form as such is not prescribed by the Act or any regulations, as far as I was informed. It was referred to by witnesses from the Department as an "M 56" - this being a reference to a printed identification number on the card. There was no direct evidence as to whether the form was or was not "approved by the Minister" for the purpose of s.6(3), but in the light of evidence of its actual use by the Department and in the absence of any suggestion to the contrary I conclude that the reasonable inference is that it was so approved.

35. There is no doubt that the permit, if granted, was granted at the request or with the consent of the applicant and that he was at all times a non-citizen. Was it granted "in accordance with" s.6?

36. Although one would expect the granting of permits to be something done in the context of established administrative practices and procedures and usually in accordance with them, the statute does not make compliance with any particular administrative process a pre-condition of the valid exercise of the power. The only applicable requirements of s.6 seem to be:

(a) That it is in a form approved by the Minister - s.6(3). This

has been satisfied for the reasons mentioned above.

(b) That it is expressed to permit the person to whom it is granted

to remain in Australia - s.6(3). This the permit does on its

face.

(c) That, being granted to a non-citizen after he has entered

Australia, the requirements of s.6A are complied with - s.6(5).

This is satisfied in that he met the requirement of s.6A(1)(b)

whether the relevant date be the date of the stamp (24 October

1989. or the date he received the permit (September 1990). Of

course at the later date he had become separated from his wife,

it would seem permanently, but the marriage still subsisted in

law and the essential legal pre-conditions to the exercise of

power under s.6A (as distinct from any matters which might be

taken into account in the exercise of discretion) were

satisfied.

37. This then seems to be the remaining, and critical, question. Counsel for the applicant accepted that she bore the ultimate onus on this issue. In essence the applicant's case rests on the presumption of regularity. It is said that the applicant obtained the entry permit at the office of the Department, that the permit was regular on its face and that it is to be presumed that no offence in the nature of forgery has been committed, unless evidence is adduced to the contrary. Reference was made to R v Wright (1871) 2 VLR(L) 204 and Hardess v Beaumont [1953] VicLawRp 46; (1953) VLR 315.

38. In Wright the accused was charged with forgery of a bill of lading. To prove that the purported signature of the ship's Master on the bill was a forgery, the Crown called a Customs officer who produced a ship's manifest purporting to be signed by the same Master. The witness did not see that document signed and was not acquainted with the person by whom it purported to be signed, or with his handwriting. The document was received in evidence and the handwriting compared with that on the bill of lading. The objection was taken that the signature on the manifest had not been proved. Sir Redmond Barry, speaking for the Full Court, said (at p 208):

"We are of opinion that, without violating any of the rules of

evidence, this document can be received as an original. It was

signed by a person ostensibly performing the duty of passing

entries at the Custom-house in the ordinary way of business. As

far as regards officers of the Customs, the doctrine of omnia

praesumuntur rite esse acta applies; and though it does not

apply with equal force to persons who are not officers of the

Customs, yet we are not to presume that a person went to the

Custom-house representing the captain, and that such person

wrote the name of the captain to the document. In the absence

of evidence to show that such was the fact, there is nothing

here to lead to the belief that the signature was not that of

the captain, and that the document was not genuine. That being

established, the comparison became admissible."

39. The respondent's case relied partly on statutory presumptions and partly on evidence that there was not within the records of the Department evidence of the permit having been granted regularly, or indeed at all. There was for example no record of it on the Departmental file and no entry in the data base. It was also said that there was no evidence that the file was at the Sunshine office prior to September 1990. There was hearsay evidence, in the form of a note dated 13 February 1991 on the Departmental file, stating that:

"In July 1990 Departmental auditors found that P.R. stamp

bearing the no. "Sunshine 1" was missing. Also missing was

Dilgea official seal no. 36 (a number has been crossed out) and

VIT as well as the permanent residents register for approvals

and rejections for the period 15/12/88 - 6/11/89. (This was

referred to the Internal Investigation Section)."

40. Section 108 of the (new) Migration Act 1958 relevantly provides:

108. (1) In any proceedings before a Court in which the

validity or application of a deportation order

is in issue, the production of that order, or

of a document certified under the hand of the

Minister to be a copy of the deportation order,

if it contains a statement, in relation to the

person to whom the order relates that -

(a) .....

(b) .....

(c) .....

(d) .....

(e) He or she was not, at the time he or

she entered Australia or at any other

specified time, the holder of, or a

person included in, a valid entry

permit;

(f) He or she was the holder of a

temporary entry permit which has

expired or has been cancelled;

(h) .....

shall, in the absence of proof to the contrary,

be deemed to be proof of that statement.

(2) Proof to the contrary for the purposes of

sub-section (1) on behalf of the person to whom the

deportation order relates shall be by the

personal evidence of that person, with or

without other evidence.

(3) .....

(4) .....

(5) .....

(6) Nothing in this section shall be construed as

placing on a party the onus of proving any matter

of which evidence may be given under this section

by which a prior production of a deportation

order or of a copy of a deportation order."

41. I doubt whether the form of the deportation order in this case is such as to satisfy the requirements of s.108(1). There is of course no question that as at 19 February 1991 the applicant was "the holder of a valid entry permit... which has expired", that is to say the permit which expired on 15 March 1989. But the deportation order does not, in terms, state that the applicant was not, as at the date of the deportation order, the holder of a valid entry permit. It was said that the same consequence follows from the statement that "no further valid entry permit applicable to him came into force upon that expiration or has been granted to him since" but that is not a statement of the kind on which s.108(1)(e) confers evidentiary effect. It is rather an assertion of fact from which the existence of a fact of the kind mentioned in s.108(1)(e) may be inferred. Put another way, the respondent's argument requires the introductory words of s.108(1) to be read as though they said "if it contains a statement... that, or from which the inference may be drawn that". In my opinion, statutory provisions which require courts, upon receipt of a document prepared by one of the parties, to treat as fact something which may or may not be a fact are to be strictly construed.

42. But in any case, even if I am wrong on this, s.108 does not establish a conclusive presumption. It is only a deeming "in the absence of proof to the contrary". While as part of that proof there must be the personal evidence of a person such as the applicant (ss.(2)), whether there is proof to the contrary turns on a consideration of the totality of the evidence, including all inferences which may be drawn in accordance with the law of evidence. Section 108(6) only makes it clear that reliance on the section does not shift the ultimate onus. In this case, as the applicant accepts, that onus rests on him in any event.

43. Reliance was also placed on s.111(1)(c)(i) of the (new) Migration Act 1958 which relevantly provides:

"111. (1) In migration proceedings -

(a) .....

(b) .....

(c) A certificate signed by an officer

stating that:

(i) at a time, or during a period

specified in the certificate a

specified person was, or was

not, the holder of, a valid

visa or a valid entry permit;

(ii) .....

(iii) .....

is prima facie evidence of the matters

stated in the certificate."

44. Under this section the respondent sought to rely on a certificate by Mr Stefan Mirenda, an officer of the Department. The certificate is dated 26 March 1991. Paragraphs 1, 2 and 3 of it relate to the granting of the temporary entry permits valid to 30 December 1988 and 15 March 1989 and the applicant's return to Australia on 16 January 1989, on which date he was granted a temporary entry permit valid until 15 March 1989. All of this of course is common ground. Paragraph 4 states:

"4. No Departmental record exists of any other grant of a

valid entry permit to the applicant."

45. Quite apart from the fact that the applicant is not specified in the certificate by name, there being only reference to "the applicant", I think that the certificate does not meet the criterion of s.111(1)(c)(i). Whether or not a Departmental record exists is a different question from that which the statute contemplates being proved by certificate viz. whether at some time a specified person was or was not the holder of a valid entry permit. But, as with s.108, the certificate would only be prima face evidence and the applicant carries the ultimate onus of proof in any event.

46. As I have said, the respondent relied on the lack of any recording of the grant of the temporary entry permit which would have been expected had ordinary administrative procedures been carried out. Reliance was placed on s.7E of the Evidence Act 1905 which is as follows:

"7E. (1) Where, in any proceeding:

(a) the happening of an event of any

description is in question; and

(b) in the course of a business, a system

has been followed to make and keep a

record of the happening of all events

of that description;

oral or other evidence to establish that there

is no record of the happening of the event in

question is admissible to prove that the event

did not happen.

(2) Where evidence is, or is proposed to be,

tendered under this section, the Court may:

(a) require that the whole or a part of

the record concerned be produced; and

(b) if the whole or a part of the record

required to be produced is not

produced - reject the evidence or, if

it has been received, excluded."

47. "Business" is defined to include the administration of the government of the Commonwealth: s.7A(1)(a).

48. In my view this section does no more than render admissible what probably would have been admissible at common law anyway, on the basis that the lack of any record of an event where the ordinary practice would be to record such an event is some evidence that the event did not happen. Similar reasoning was applied in Brickworks, 108 CLR at pp 588-589. I do not question the relevance or admissibility of such evidence, but it is only part of the total evidentiary picture. Experience of the world shows that the files and other records of even the best run organisations, government and private, large and small, can usually not be treated as infallible. This very case provides some examples. The applicant's letter of 23 June 1989 never found its way onto the file, although clearly it was received by the Department. It was also asserted that the applicant's account that he had been told that his old passport was missing could not have been right because the file disclosed no evidence of the passport having been missing. The short answer to that is that the passport (ie. the old passport) is not on the file now, it had for some time, before being tendered in evidence, been with the police for the purpose of investigations. Yet the file itself shows no indication of that. Also, it appears from the file note of 13 February 1991 that the permanent resident register for approvals and rejections for a period including October 1989 was found in July 1990 to be missing. I take it that this is a record which would have shown the grant of a entry permit in October 1989. So the respondent's case falls short even on its own terms. It does not show that all relevant records show no trace of the permit being granted. One of the relevant records is simply missing.

49. As Mr Mirenda conceded in cross-examination, a document like the entry permit card which is in evidence is not the sort of document that somebody creates by accident. In my view, there are only two conclusions open on the evidence. Either the card was stamped and signed by an officer authorised to grant such permits, albeit in contravention of ordinary Departmental administrative procedures and practices, or the entry card is a fraud and a forgery. If the latter, the applicant is a beneficiary of the fraud and, since the card bears his name, it is inconceivable that the fraud would be carried out without his knowledge and his provision of some financial or other reward for those who perpetrated the fraud. An important feature of this case in my view is that the respondent expressly eschewed any allegation of fraud against the applicant. So it is not even a case of applying the rule in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Refjek v McElroy [1965] HCA 46; (1965) 112 CLR 517, as to the "clarity" of proof required having regard to the gravity of the fact to be proved. The allegation is just not made at all.

50. A Departmental officer said in evidence that at an office of the Department such as the Sunshine office there would at any time have been officers authorised to grant such permits. The evidence did not disclose how many such officers there would have been at Sunshine either in October 1989 or September 1990 but, having regard to the fact that it is a power with serious consequences conferred by the Statute on the Minister in the first instance, it seems unlikely that there would be a large number. It would seem an obviously relevant and important matter for the respondent to call each such officer to say that he or she did not grant the permit. This is particularly so when the document in question bears stamps with numbers on which presumably is a further method of identification of persons who had access to the stamps and, most importantly of all, there is an initial or cypher which on its face purports to have been the personal identification of the officer who affixed the stamp to the permit. Was there an authorised officer at Sunshine with the initials IL or JL? Are those his or her initials on the entry permit card? The evidence produced by the respondent does not attempt to answer these questions. Also in the case of the re-entry visa there are several numbers appearing on it which presumably are also there, inter alia, for the purpose of tracing the persons who placed it on the applicant's passport.

51. In my opinion, the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 applies. Although it was suggested in argument by counsel for the respondent that the applicant could by some interlocutory process have discovered the names of the officers who held the relevant authority and then called them as witnesses at trial, I think realistically this is plainly a case where the witnesses were not equally available to both parties but were in the camp of the respondent: Earle v Castlemaine District Community Hospital [1974] VicRp 86; (1974) VR 722. See also Payne v Parker (1976) 1 NSWLR 191 at pp 201-202, Cross on Evidence (Third Australian Edition) pp 35-38.

52. There was no attempt in evidence to explain the absence of such witnesses. I think therefore that I can more readily draw the inference that the documents in question, having been obtained in the way described by the applicant from the Sunshine office of the Department, were in fact what they purported to be.

53. In my opinion there has been a grant to the applicant of an entry permit to remain in Australia under s.6(2) of the (old) Migration Act 1958. It is therefore not necessary to consider the question of estoppel which has recently been comprehensively reviewed in the context of administrative decisions by a Full Court of this Court: Minister for Immigration v Kurtovic [1990] FCA 22; (1990) 92 ALR 93; see also Rubrico v Minister for Immigration [1989] FCA 90; (1989) 86 ALR 681 at p 703 per Lee J.

54. However I think it is appropriate that I should record relevant findings of fact in case this issue is canvassed on any appeal. I find that the applicant at all times after collection of the documents from the Sunshine office believed that they were genuine and effective. I find that in reliance, at least in part, on that belief he continued to stay in Australia and contested the deportation order by the issue of these proceedings. I think it can be reasonably inferred that in contesting these proceedings he suffered the anxiety and stress which inevitably accompanies litigation when the personal stakes are high: see Commonwealth v Verwayen (1990) 64 ALJR 540, at p 562. However the evidence does not enable me to make any finding as to whether he has made any and if so what financial expenditure or incurred any financial commitment in relation to this litigation. The evidence does not disclose any other matters which might amount to detriment suffered by the applicant, if that be an essential element in making out an estoppel in an administrative law context.

55. Administrative Decisions (Judicial Review) Act 1977 It follows that it is not necessary to decide the third issue, namely whether the refusal of the entry permit on 12 February 1991 was infected by any of the errors referred to in s.5 of the Administrative Decisions (Judicial Review) Act 1977.

1. Declare that on 24 October 1989 the applicant was granted an

entry permit under s.6(2) of the Migration Act 1958 as then in

force.

2. Declare that the entry permit is the document exhibit "D" in

these proceedings.

3. Declare that the entry permit is not a temporary entry permit.

4. Order that the decision made on 19 February 1991 to issue a

deportation order against the applicant be quashed.

5. Order that the respondent, by his servants and agents or

howsoever otherwise, be restrained from deporting the applicant

or engaging in any conduct to remove him from Australia.

6. Order that the applicant and Mohammed Iqbal of 18 Isaac Smith

Crescent, Endeavour Hills, be released from their undertakings

to this Court respectively dated 22nd March and 20th March

7. Order that the respondent pay the applicant's costs of these

proceedings to be taxed, including reserved costs.

8. Reserve liberty to apply.