COURTCWDS IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY GENERAL DIVISION HEEREY J HRNG Immigration - judicial review - deportation - allegedly false or misleading representations in migration application forms - failure to disclose child's autism - no knowledge that representations were false - objective test - construction of question
Migration Act 1958 (Cth) ss 14(2), 20 Migration (1993) Regulations rr 2.3, 7.15, Schedule 6 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(e),(2)(f) Judiciary Act 1903 (Cth) s39B Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 Water Board v Moustakas (1988) 77 ALR 193 Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 ORDER PERTH, 16 and 17 November 1994
#DATE 21:12:1994 MELBOURNE Counsel for the applicant: Mr I Marshall Solicitor for the applicant: Tan and Tan Counsel for the respondent: Ms C Wheeler Solicitor for the respondent: Australian Government Solicitor JUDGE1 The Court orders:
1. The decision and deportation orders dated 22 April 1994 be quashed. 2. The respondent pay the costs of the applicants, including reserved costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. HEEREY J The applicants Mr Siu Kee Wong and his wife Mrs Yolanda Lai Chi Wong seek an order of review in respect of a decision made on 22 April 1994 to issue and serve deportation orders on themselves and their two children.
2. The basis of the deportation orders were false representations said to have been made in relation to the condition of Mr and Mrs Wong's second child Louis at the time of their application for permission to migrate to Australia. After arrival in Australia Louis was diagnosed as autistic. The Court's Function 3. The legal background of this case has been complicated by the amendments to the Migration Act 1958 (Cth) (the Act) which came into effect on 1 September 1994 and produced the effect that there is no longer such a thing as a deportation order. It is not necessary to go into detail, because counsel accepted that there was jurisdiction in this Court to review the deportation orders in question under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). 4. In the course of discussion at the outset of the hearing counsel for both parties agreed that the question was to be decided on administrative law grounds, and on such of the grounds in s 5 of the AD(JR) Act as were referred to in the application for review. Many of such grounds assume that an administrative decision may be legally valid even if it discloses factual error or want of logic: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. However, in the course of written submissions filed after the conclusion of the hearing, counsel for the respondent referred to Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589, a case concerning threatened deportation as a result of a false statement on an incoming passenger card. It was submitted on behalf of the Minister that the Act as it then stood made the determination of the falsity of the information in the card a matter for the immigration officer who decides to grant an entry permit. Lockhart J said (at 601): "It is for the courts to say whether information in a passenger card produced to an immigration officer by a person for the purpose of securing entry into Australia is false or misleading in a material particular. It is not for immigration officers to determine these matters. Before the Minister may deport a prohibited immigrant he must, of course, conclude on the material before him that the person is a prohibited immigrant, but that is not to say that the determination of the person's status as a prohibited immigrant rests on the Minister's opinion. This status rests on the establishment of objective facts whose existence may be reviewed by the courts." See also per Franki J at 597. 5. The provisions of the Act as applicable to the present case, and in particular ss 14, 20 and 60, appear to me to be indistinguishable from those considered by Lockhart J and I shall adopt the approach indicated by his Honour. The Migration Application Forms 6. The making of the orders turned on what were said to be false answers in forms signed by Mr and Mrs Wong for the purposes of their migration. There were two forms. I shall use the term "migration application forms" as referring collectively to both. The first was a Form 47 "Application for Migration to Australia" signed by Mr and Mrs Wong in Hong Kong on 17 November 1990. Question 69 of that form was as follows: 69. Have you, your spouse, or any of your children or dependent family members ever suffered from: A serious contagious, transmissible hereditary disease or condition No Yes A serious condition or disability which requires regular medical attention, hospital treatment or special care No Yes Give details below A physical disability or mental retardation No Yes Do any of these people require regular medical attention, hospital treatment or special care? No Yes Full Name Nature of the condition, illness or disease All the "no" boxes were ticked. 7. At the end of the form there was a declaration which included the following: "I declare that the information I have supplied on this form, and any attachments, is complete, correct and up-to-date in every detail ... I understand that if I have given false or misleading information, my application may be refused. I may be refused entry to Australia, or I may be deported after I arrive in Australia." 8. The second answer was given on 12 April 1991 in a Form 26 "Medical Examination on an Applicant for Visa/Entry Purposes into Australia" in respect of Louis. Question 10 asked: "10. Do you have any physical or mental disabilities which may affect your ability to earn a living or take full care of yourself?" Again the "no" box was marked. The form was signed by Mr Wong as parent of a child under 16. 9. Section 20(1)(b) and (c) of the Act as it stood prior to 1 September 1994 had the effect that a non citizen became an "illegal entrant" if, amongst other things, "(b) When, or before, the person entered Australia on any occasion, he or she: (i) produced or caused to be produced to an officer or a person exercising powers or performing functions under this Act, in respect of that entry: (A) A bogus document ... or (B) ... ; or (ii) made or caused to be made to an officer or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular; (c) When or before a visa was granted or issued on any occasion in respect of that person, he or she (i) ... (ii) made or caused to be made to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular." 10. Section 20(15)(c) defined a "bogus document" in terms which included a visa or other document that "(c) was obtained by the making of a false or misleading representation". Section 20(10) provided that a reference to a person producing a bogus document was a reference to a person producing a bogus document "whether or not the person knew that the document was a bogus document". 11. Section 20 (12) provided: "A reference in this section to a person making, or causing to be made, a statement that was false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular." The Wong Family in Hong Kong 11. Louis was born on 3 May 1985. He had an elder sister who was then aged three. Louis was born with a cleft lip and palate. In August 1985 and May 1986 he underwent operations to repair that disorder. 13. Some time in July 1987 Mr and Mrs Wong were told by a friend who was a child psychologist that Louis was maintaining little eye contact. 14. On 2 September 1987 Louis was assessed by Dr D S Tang, Lecturer, University Paediatric Unit Child Assessment Centre, Duchess of Kent Children's Hospital, Sandy Bay, Hong Kong. Dr Tang referred Louis to the Speech Therapist in charge at the hospital noting that the following problems were assessed: "Developmental delay with autistic features (Merrill Palmar 19m, Bailey 17m, Vineland 20m at chronological age 29m)". (The references to Merrill Palmar etc are to various psychological tests.) 15. On 21 September 1987 Louis was examined by Dr T L Kwok of Queen Mary Hospital, Hong Kong and found to have "mild autistic features". He was referred to Dr S L Loke of the same hospital, who examined Louis on 23 September and told Mr and Mrs Wong that Louis "had some behavioural problem (which he) suspected may be related to autistic features". No mention was made by Dr Loke of mental retardation or any need for institutional care. No medication was prescribed. In a report subsequently provided on 25 October 1993 Dr Loke said of the 1987 assessment that Louis was "... considered attentive and intelligent. There was a suggestion of mild autistic features, but no conclusive diagnosis could be possible during that time. Special institutional care was not necessary. The mother was advised to attend with the child some training sessions in home supervision and lesson on managing behavioural problems. Without a definite diagnosis, the parents have been reassured that (Louis) should not be considered mentally retarded, and improvement could be possible. During the following few months, there appeared to be objective improvement and he was subsequently able to attend normal kindergarten in Hong Kong. However, I did not know of his condition after he has immigrated to Australia." 16. Mrs Wong had not heard the term "mild autistic features" before and did not know what it meant. She believed that the two operations Louis had undergone (which took four and five hours respectively) had resulted in some developmental delay. Dr Tang told Mr and Mrs Wong that "most children have such characteristics and that they can grow out of it." 17. In November 1987 Louis attended an audiology test. He was not co-operative during the test and it was recommended he be tested again in a year's time. 18. In 1988 Mrs Wong and Louis attended some training sessions in home supervision and lessons on managing behavioural problems once a week for about four to eight weeks. Also at the doctors' suggestion Louis was sent to a speech therapist from July 1988 to May 1992. 19. In 1988 he attended another audiology test. He showed good response to various sounds generated from a testing instrument and was not required to attend any follow-up. 20. On 1 November 1989 Louis started at Lady Trench Training Centre and Day Nursery and attended every weekday. 21. On 7 November 1990 Mr and Mrs Wong lodged their application for migration to Australia and completed the Form 47. On 12 April 1991 Dr S H Chan conducted a medical examination as required by the Department of Immigration and Ethnic Affairs. The examination for all members of the family took a total of about two hours. Louis co-operated fully. The Form 26 was signed by Mr Wong. The application for entry to Australia was approved on 24 May 1991. 22. At the time of the application for migration in November 1990, according to Mrs Wong (whose evidence in this and all other respects I accept), Louis had been a normal healthy child. He could feed himself very well and had been using chopsticks since age three, was healthy and slept well, could dress himself and bathe with little assistance, could ride a bicycle, had walked from aged 10 months and was toilet trained at age three. He could understand commands or directions, could remember matters like where the car was parked when the family went shopping and, in Mrs Wong's words, "he started to develop good social habits after being taught by me, eg every day after school when he returned home he could put his shoes in the shoe cabinet, school bag in his room and the socks in the laundry basket." 23. He could solve some alphabet and number puzzles and speak short sentences comprising about six words in Cantonese. 24. In August 1991 Louis completed his time at the kindergarten in Hong Kong where he had attended for two years. During the half yearly parent/teacher meetings, the teachers informed Mrs Wong that Louis was "active, sometimes unco-operative in class, sometimes throwing tantrums" but she never received any complaint that he was disruptive. The teachers occasionally gave Louis "training/individual education program on a 'one-to-one basis' to correct his behavioural problems". 25. On the advice of Louis' kindergarten teacher, Mrs Wong then sent him to the Tsui Tsin Tong School, a school for mild or moderate grade mentally handicapped children, to develop and improve the developmental delay in his speech and develop his confidence before the family's migration to Australia. The Family in Australia 26. After two shorter visits to Western Australia for the purpose of buying a house and having a holiday, the family arrived to settle permanently in July 1992. Mr and Mrs Wong bought a house in Hillarys. They have since acquired a restaurant business in Albany. Mr Wong (aged 43) is a Project Co-ordinator with the Chinese Academy of Science. Mrs Wong (aged 37) is qualified as a nurse. 27. Louis was assessed by the Education Department and it was suggested that he attend Burbridge School. Burbridge School, whose principal Mr Edward Kelley gave evidence, is a State Government school for students with disabilities. The students range in age from four to eighteen years. Their disabilities range in various forms, physical, intellectual, sensory etc from mild to severe or profound. In Mr Kelley's words, "... all the students for one reason or another can't quite cope in a regular school setting." 28. Most of the staff of the school have special educational qualifications. Also attached to the school are two physiotherapists, two occupational therapists, a speech pathologist, a registered nurse and two enrolled nurses. Diagnosis of Autism 29. Because of settling into an unfamiliar country with a different language, and some difficult living conditions, Louis became very frustrated and his behaviour worsened. Mrs Wong took him to a local doctor who referred him to Dr Peter Chauvel of Princess Margaret Hospital in Perth. Dr Chauvel has had experience with autistic children for over 25 years as a Developmental Paediatrician. Since 1986 he has been head of the Developmental Paediatrics and Rehabilitation Unit at the Princess Margaret Hospital. According to his report dated 31 July 1992, Dr Chauvel found on examination that Louis had "... a number of autistic features. He relates to people poorly, lacks response to mother's moods, but may cry if his sister cries. If he is hurt he will hit his chest but does not come to his mother for comfort. His play tends to be rough and socially inappropriate and he has no friends. If annoyed he will actually crack his right hip joint in an awful way. Language is limited. Mother says if forced he will say a word, but likes to be mainly by himself. His eye contact is very poor but mother says this is better. He has no real speech that I could detect. There are stereo-typic movements of his hands. He has some preference of objects, especially a container that he can shake making a noise. He does not have any particular routine or sameness. Certainly he has a restricted range of interests." 30. Dr Chauvel suspected that Louis was autistic or else had an intellectual handicap with autism. He referred Louis to the Mildred Creak Centre for speech and psychology assessment. 31. Louis was assessed at the Burbridge School by Dr Peter Rowe, Paediatric Registrar, on 9 September 1992. Dr Rowe's conclusion then was that "Louis exhibits features today which appear most consistent with autism, although a differential diagnosis of developmental delay with autistic features obviously must be entertained. The situation will be delineated once a formal assessment has been performed at the Mildred Creak Centre." 32. Subsequently Louis was assessed by Ms Kate Ollier, a psychologist at Mildred Creak Centre. There was an undated report from Ms Ollier in evidence but it is directed mainly at the appropriateness of Mr and Mrs Wong's answers in the migration application forms in the light of their knowledge at the time rather than the assessment of Louis in 1992. However Ms Ollier does say in her report "... given that Louis demonstrates a capacity to learn, has an estimated level of intellectual functioning above the 'intellectual disability range' and demonstrates some functional communication (impaired by his cleft palate), his prognosis is considered to be fair. Based on current skill level it is estimated that he will require minimal but ongoing support for independent living. The support required for work is more difficult to predict, and is likely to depend on the nature and level of structure and routine associated with the work." 33. In December of 1992 Dr Chauvel told Mrs Wong that Louis had been diagnosed as autistic after assessment at the Mildred Creak Centre and as result of assessment by a team of specialists from Princess Margaret Hospital. Dr Chauvel told her that Louis had intellectual disability and needed special care. Mrs Wong then completed an application for child disability allowance which had been given to her earlier by Dr Rowe. On 14 January 1993 Mrs Wong was told that this disability allowance for Louis would be granted with effect from 23 July 1992. 34. In an affidavit filed on behalf of the applicants Dr Chauvel deposed: "6. It is my opinion that Louis Wong is autistic. I formed that opinion on the 31st day of July 1992 and explained that diagnosis to his parents. 7. Autism is a developmental disorder. In order to make a diagnosis of autism there are nineteen criteria. In my assessment of Louis there were eight positives. 8. As a general proposition one would expect symptoms in an autistic child before the age of three but it is rare to have the autistic child present for diagnosis prior to the age of five or six. Since autism is a disorder that affects mental development, symptoms look very different at different ages. More behavioural differences become evident as the child becomes older, and diagnosis becomes easier. Symptoms at a younger age are necessarily less conclusive. 9. Autism varies from low to high grade. A typical autistic child would show symptoms such as poor vocal communication, stereotyped behaviour, poor social interaction, ignoring people and preferring to be alone, lack of eye contact and lack of facial expressions and emotions. 10. Where there is a complicating factor, such as a hearing deficit or a speech disorder due to another cause, as was the case with the surgical remedy of a cleft palate, the autistic features can be masked. 11. A child having 'mild autistic features' is not the same as a child having been diagnosed as autistic. It is merely a convenient label where it is too early to make a prognosis. 'Mild autistic features' means that some of the behavioural criteria of a patient are associated with autism and that may give rise to concern. Generally, a child showing such features will be followed up at a later date. 12. I am aware that declarations were made by the parents in relation to the health of the family upon their immigration to Australia. Given the absence of a diagnosis of autism and given the absence of treatment in the significant period of 1988 to 1990 prior to their declarations, it is consistent with their reasonable belief that the child was not autistic at the time the declarations were made. 13. It is a fact that the infant is autistic and I have been able to make a firm diagnosis. However, Louis was seven when this diagnosis was made and of course it is a lot easier to diagnose a seven year old who is autistic rather than someone who is younger. 14. I would characterise Louis as someone who is towards the lower end of the scale of autism and a measure of that is the fact that he is positive to only eight of the nineteen indicators rather than to more. 15. As to the prognosis, it is difficult to say. If Louis can learn to talk he will do a lot better. Some autistic people can live almost independently, with some supervision in group housing. As to working, it is likely that his working capacity would be to the extent of working in a sheltered workshop. It is unlikely that Louis would be able to compete in the open labour market for a job."