COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)

CWDS
  Administrative Law - judicial review - decision of Immigration Review
Tribunal - avenues of appeal from Tribunal's decision - prohibited
non-citizens - whether ticking 'now married' box on passenger card a false or
misleading statement in a material particular - husband living in a de facto
relationship with former wife - no provision for 'de facto' on passenger card
- 'decision' of Tribunal - whether statement false or misleading a question of
fact unless no evidence to support the finding - no legal error found - new
grounds of appeal raised at hearing - statements made by husband prior to
immigration - whether visa obtained by 'false representation' or statements
made 'in respect of the grant of that visa'.
  Administrative Decisions (Judicial Review) Act 1976, s. 5
  Migration Act 1958 ss. 20, 138
  Migration Act 1958-1988 s. 16
  Migration Legislation Amendment Act 1989 s. 6
  Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321
  Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147
  Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 CLR 589
  R. v. Blakeley; Ex parte the Association of Architects, Engineers, Surveyors
and Draughtsmen of Australia (1950) 82 CLR 54
  Department of Industrial Relations v. Forrest (1990) 91 ALR 417
  Minister for Immigration and Ethnic Affairs v. Naumovska (1983) 88 ALR 589
  Hardcastle v. Commissioner of Police (1984) 53 ALR 593 McVeigh v. Willarra
Pty Ltd (1984) 6 FCR 587
  R. v. Thames Magistrates' Court; Ex parte Polemis (1974) 1 WLR 1371
  Henderson v. Henderson (1843) 3 Hare 115 (67 ER 319)
  Minister for Immigration, Local Government and Ethnic Affairs v. Ricardo
Dela Cruz (unreported judgment of the Full Court of the Federal Court of 28
February 1992)
  Eva Michalowski v. Mr Gerry L. Hand Minister of State for Immigration, Local
Government and Ethnic Affairs (unreported judgment of Keely J of 24 April
1992)
  Alice Benlot v. The Minister for Immigration, Local Government and Ethnic
Affairs (unreported judgment of Davies J of 13 March 1992)
  Ren v. Immigration Review Tribunal (unreported judgment of Neaves J of 18
December 1991).

HRNG
BRISBANE, 5 March 1993
#DATE 31:3:1993
  Counsel for the applicant:          Mr R. Tracey QC with Mr C. Erskine
  Instructed by:                      Australian Government Solicitor
  Solicitors for the first
respondent:                           Phillips Fox
  Counsel for the second and
third respondents:                    Miss J. Dalton
  Instructed by:                      Janssen and Janssen

ORDER
THE COURT DECLARES THAT:
  Hendrik Johannes Koorts, Cornelia Johanna Koorts and their three children
were not prohibited non-citizens on or before 18 December 1989.
THE COURT ORDERS THAT:
  The appeal and the application for an order of review are dismissed with
costs.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
SPENDER J   This is an appeal pursuant to s. 138 of the Migration Act 1958 and
also an application for an order of review made under the Administrative
Decisions (Judicial Review) Act 1976 ('the ADJR Act') in respect of a decision
of the Immigration Review Tribunal ('the Tribunal') constituted by Mr Steve
Karas, Presiding Member, made on 15 March 1991.
2.  On 19 February 1991 Catharina Francina Jacoba Ferreira of Toowoomba,
Queensland lodged an application to the Immigration Review Tribunal for a
review of a decision made by an authorised officer of the Department of
Immigration, Local Government and Ethnic Affairs ('the Department') in
Brisbane on 11 February 1991 refusing her brother, Hendrik Johannes Koorts of
Redbank, Queensland, a December 1989 (temporary) entry permit.  The matter was
not considered by the Migration Internal Review Office and came directly to
the Immigration Review Tribunal.
3.  Regulation 9 of the Migration (Review) Regulations is headed "Jurisdiction
of the Tribunal" and relevantly provides:
     "  9. (1)  Subject to subregulation (2), the Tribunal is to
        review an IRT (Immigration Review Tribunal) reviewable
        decision if an application for review of the decision is
        made in accordance with these Regulations.
           (2)  In the case of a decision to refuse to grant a
        December 1989 (temporary) entry permit or a December 1989
        (permanent) entry permit, subregulation (1) applies only if
        the applicant for the permit:
              (a)   was a prohibited non-citizen on or before 18
                    December 1989; and
              (b)   had not been arrested under section 92 or 93 of
                    the Act:
                    (i)   on or after 10 December 1990; and
                    (ii)  before lodgment of the application for the
                          permit.
           (3)  The Tribunal is to review a decision in respect of
        which a prescribed application is referred to it under
        regulation 29.  "
4.  The notice of appeal in Proceedings No. ACT G19 of 1991 is said to be an
appeal from the decision of the Immigration Review Tribunal constituted by
Steve Karas, Senior Member, given on 15 March 1991 at Brisbane whereby the
Tribunal:
      " (a)   found that Hendrik Johannes Koorts and his family were
              not prohibited non-citizens on or before 18 December
              1989; and
        (b)   affirmed the decision under review. "
5.  The question of law said to be raised on the appeal is "whether the
Tribunal was correct in law in finding that Hendrik Johannes Koorts was not a
prohibited non-citizen: on or before 18 December 1989".  The notice of appeal
sought a declaration that Mr Koorts was a prohibited non-citizen on or before
18 December 1989, an order quashing the decision, and an order remitting the
decision to the Immigration Review Tribunal to be decided according to law.
6.  The grounds on which the appeal is said to be made are:
     "  (a)  the Respondent erred in law in finding that Hendrik
        Johannes Koorts and his family were not prohibited
        non-citizens on or before 18 December 1989;
        (b)  the Respondent failed to take into account relevant
        considerations, namely -
        (i) that Hendrik Johannes Koorts had made a false or
        misleading statement in a material particular to the
        Counsellor, Consular Affairs, at the Australian Embassy in
        Pretoria, South Africa, in June 1988, in respect of the
        grant of a visa, that he was still married to Cornelia
        Johanna Koorts when he was in fact married at that time to
        Althea Gertrude Koorts, and
        (ii) that Hendrik Johannes Koorts had made a false or
        misleading statement in a material particular to an officer
        exercising powers under the Migration Act 1958 at Sydney
        Airport on 26 February 1989, that he was still married to
        Cornelia Johanna Koorts when he was in fact divorced from
        her at that time;
        (c) there was no evidence or other material to justify the
        making of the decision
        (d) the decision was so unreasonable that no reasonable
        person could have come to it. "
7.  The original parties to appeal No. G19 of 1991 were the Minister of State
for Immigration, Local Government and Ethnic Affairs ('the Minister') as
applicant and Catharina Francina Jacoba Ferreira as respondent.  Mrs Ferreira
is the sister of Mr Koorts and had sponsored his application to migrate to
Australia with his family.  At an earlier directions hearing, I granted leave
to Mr Koorts to be joined as a further respondent to that appeal.
8.  A matter of continuing concern nonetheless is the position of Cornelia
Johanna Koorts, (to whom I will refer as Mrs Koorts) and the position of Mr
and Mrs Koorts' three children (all born in South Africa), namely, Magdalena
Koorts  born 30 November 1976, Hannelie Koorts born 7 October 1979 and Carine
Koorts born 16 July 1986.  The position of Cornelia Koorts and each of the
three children is a matter which requires careful consideration in the context
of the issues raised in these two applications.
9.  In Proceedings No ACT G20 of 1991 the Minister, as applicant, seeks an
order of review in respect of the decision of Mr Karas made on 15 March 1991
(a) finding that the third respondent, Hendrik Johannes Koorts, and his family
were not prohibited non-citizens on or before 18 December 1989 and (b)
affirming the decision under review.  The grounds of the application for an
order of review are exactly the same as the grounds advanced in Proceedings No
G19 of 1991, and the Minister seeks the same orders as in the previous
application.
10.  The factual circumstances of this case are unusual to say the least.  The
matter is further complicated because the case sought to be made out before
this Court is not the case as determined by departmental officers nor the case
sought to be made out before the Immigration Review Tribunal.  The
significance of this circumstance will have to be considered later.
11.  Mr Koorts is a secondary school teacher by occupation and was born in
South Africa on 11 November 1949.  He has a Bachelor of Commerce degree from
the University of Port Elizabeth.  He and Cornelia Johanna Koorts were married
on 7 July 1973 and had been so married for a period of thirteen years prior to
an application to migrate to Australia.  In the course of that marriage they
had three children born in South Africa, namely Magdalena, Hannelie and Carine
earlier referred to.
12.  In 1986, Mr and Mrs Koorts made an application to emigrate to Australia.
Prior to receiving a reply to that application, Mr Koorts and Cornelia Koorts
were divorced on 29 February 1988 and Mr Koorts, on 5 March 1988, married
Althea Gertrude DeWitt.  Mr Koorts says the reason for his divorce was due in
part to the fact that he had developed a relationship with Ms DeWitt, as a
result of which she was expecting his child.  Mr Koorts did not want the child
to be born illegitimate so he married Ms DeWitt on 5 March 1988.  The son of
that relationship, Johann Heinrich Koorts, was born on 15 July 1988.
13.  Mr Koorts and his second wife, Althea Gertrude DeWitt, divorced on 29
September 1988 and Mr Koorts returned to his first wife, Cornelia, and resumed
a marital relationship with her, but he did not re-marry her.
14.  On about 17 October 1988, after Mr Koorts had resumed his marital
relationship with his first wife, the Australian Embassy advised them by
letter that their application for immigration had been approved, provided that
Cornelia Koorts and Mr Koorts were to arrive in Australia by 26 February 1989.
Cornelia Koorts and Mr Koorts arrived in Australia on 25 February 1989 with
their three children and continued to live together.
15.  The family returned to South Africa on 17 March 1989 and came back to
Australia on 15 October 1989.  The recommendation which lead to the decision
refusing a December 1989 (temporary) entry permit records that Mr Koorts
arrived at Brisbane Airport on 15 October 1989, and his visa had been issued
at Pretoria on 6 December 1988.  The recommendation further states "Entry
permit: Granted permanent residence on arrival."  A file note of 12 December
1990 states "At the time of their arrival (referring to 15 October 1989) they
were holders of migrant visas for multiple travel before 26 February 1992."
16.  On the occasion of their arrival on 15 October 1989, on their incoming
passenger cards both Mr and Mrs Koorts stated that they were "now married".
There was no provision on the cards for "de facto" status.
17.  The Migration Act 1958 was substantially amended in 1989, the amendments
taking effect from 19 December 1989.  As the Koorts family entered Australia
on 26 February 1989 and re-entered on 15 October 1989, the relevant section of
the Act for the purposes of determining their status is s. 16 before the
amendments in 1989. Section 16(1) then relevantly provided:
    "  (1) Where,...a person who enters or entered Australia is not, or
       was not, at the time of that entry, an Australian citizen and who
       -
       ...
       (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...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...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...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...a statement that is false or misleading
                   in a material particular,...
       that person shall...be deemed to be a prohibited non-citizen
       unless he is the holder of an entry permit endorsed with a
       statement that the person granting that permit recognizes him to
       be a person referred to in this sub-section. "
18.  The claim by the Department was that Mr and Mrs Koorts both made false or
misleading statements on their passenger cards in that they stated they were
married when in fact they were divorced.  It was said that that false or
misleading statement was false or misleading in a material particular and that
"both Mr and Mrs Koorts became prohibited non-citizens on entry to Australia
under sub-sub-paragraph 16(1)(b)(i)(B) of the pre 19/12/89 provisions of the
MA".  It was said that they are now illegal entrants under the current
provisions of the Migration Act by virtue of s. 6(2) of the Migration
Legislation Amendment Act 1989 and are also illegal entrants under s.
20(1)(b)(i)(B) of the current provisions of the Migration Act.
19.  The position of the Department is made plain by, amongst other things, a
minute of 29 November 1990 by an officer of the Department in the Legislation
and Review Branch.  An earlier minute of 3 September 1990 records:
     "  Neither Hendrik nor Cornelia notified the A.E. Pretoria
        (referring to the 'Australian Embassy') of the changes in
        their marital circumstances because it was their intention
        to stay together after resuming cohabitation.  They did not
        feel the necessity of formalising their relationship through
        remarriage.  They claim to have lived as a family unit since
        arrival. (Evidence of cohabitation provided); "
The same minute notes:
    " The family departed Australia less than a month later on
      17/3/89 and returned almost 7 months later on 15/10/89.
      Accompanying them was Althea and child Johann both on visitor
      visas; "
20.  Both Mr and Mrs Koorts swore a statutory declaration on 16 August 1990 to
the effect that on the resumption of cohabitation between them subsequent to
29 September 1988 when Mr Koorts divorced his second wife, Althea, they had
continued in a genuine relationship as husband and wife notwithstanding that
their relationship was not formalised by remarriage.
21.  The Queensland Department file Q90/2273 evidences that Mr and Mrs Koorts
lived with their children as a family in rented premises at Redbank.  The
telephone was connected at that address in the name of Mr J and Mrs J Koorts.
There is evidence of a six month agreement for tenancy of residential premises
executed in the R.E.I.Q. form and that Mr Koorts was employed as a full-time
secondary school teacher at the Goodna Christian School.
22.  When the family re-entered Australia on 15 October 1989, Althea Gertrude
DeWitt and the child Johann Heinrich Koorts came on the same QANTAS flight.
Both Ms DeWitt and the child entered Australia on visitors' visas and Ms
DeWitt applied for an extension of her and her son's temporary entry permits
on 11 April 1990 under the name Althea Gertrude Koorts, and an extension was
granted allowing them both to stay until 15 October 1990.   Ms DeWitt and the
child Johann then returned to South Africa.
23.  Some time in 1990 Mr Koorts appears to have approached the Department
about the possibility of marrying Ms DeWitt.  It was this inquiry which led to
the Department's ascertaining that he and Cornelia were not in fact legally
married but cohabiting in a de facto relationship at the time of their last
entry into Australia in October 1989.  As the Immigration Review Tribunal
wryly noted:
     "  Given the sequence of events since Mr Koorts approached the
        Department in April 1990, he must now be regretting his
        initial inquiry. "
24.  Section 138 of the Migration Act provides:
     "  (1)  An appeal lies to the Federal Court, on a question of
        law, from any decision of the Tribunal made on a review
        under this Part.
        (2)  An appeal may be instituted by:
        (a)   the applicant for review by the Tribunal; or
        (b)   the Minister.
        (3)  An appeal shall be instituted within 28 days after the
        appellant is notified under section 135 of the decision
        concerned.
        (4)  The Federal Court shall hear and determine the appeal
        and may make such order as it thinks appropriate because of
        its decision.
        (5)  Without limiting the generality of subsection (4), the
        orders that may be made by the Federal Court on an appeal
        include:
        (a)   an order affirming or setting aside the decision of
              the Tribunal; and
        (b)   an order remitting the matter to be reviewed and
              decided again, either with or without the taking of
              further evidence, by the Tribunal in accordance with
              the directions of the Court. "
25.  In my opinion, there is much to be said for the view that the avenue of
appeal or review from a decision made by the Immigration Review Tribunal is to
be found in s. 138 of the Migration Act and nowhere else.  Counsel for the
Minister drew my attention to the Department of Industrial Relations v.
Forrest (1990) 91 ALR 417 which was an application for an order of review
under the ADJR Act of a decision by the Administrative Appeals Tribunal under
provisions of the Freedom of Information Act 1982 excluding an applicant for
access to a document held by the Department of Industrial Relations but not
his legal representatives from a hearing relating to an inclusive certificate
under the Freedom of Information Act.  The proceedings in the Federal Court
were not brought pursuant to s. 44 of the Administrative Appeals Tribunal Act.
26.  Also in Hardcastle v. Commissioner of Police (1984) 53 ALR 593, the
appellant had been found guilty of five breaches of the Australian Federal
Police (Discipline) Regulations by the Australian Federal Police Tribunal.
The appellant appealed to the Full Federal Court as provided by the Complaints
(Australian Federal Police) Police Act 1981 and also applied to the Federal
Court under the ADJR Act for an order of review of the Tribunal's decision and
appealed from the decision of the primary judge refusing relief.
27.  Finally, in Ren v. Immigration Review Tribunal judgment No. 828 of 1991
of Neaves J delivered on 18 December 1981, the applicant was out of time for
making application under s. 138 of the Migration Act and made application for
an extension.  Neaves J found that there was no power to grant an extension to
appeal under s. 138 of the Migration Act but granted an extension of time in
which to entertain an application for order review pursuant to the ADJR Act.
28.  It is unnecessary to determine the question whether the sole avenue of
appeal is s. 138 of the Migration Act because in this case the questions, the
grounds and the relief sought are the same.
29.  I turn now to the case as it was before the Immigration Review Tribunal.
30.  Subsequent to the approach of Mr Koorts to the Department on 19 April
1990 and his inquiry about marrying Ms DeWitt, Mr and Mrs Koorts were
interviewed in detail on 11 December 1990.
31.  In both reports of interview with Mr Koorts and Mrs Koorts, in response
to the question "What is your marital status now?" they have deleted the
options "Never married", "Now married", "engaged", "separated", "widowed" and
have circled the two options "de facto relationship" and "divorced".  Each of
them was asked the question:
     "  Do you believe you are in Australia with or without the
        authority of the Australian Government and why? "
and in each case the reply was:
     "  Up until today I thought I was here legally as a permanent
        resident.  I have since been informed that I am an illegal
        entrant and the reasons why I have attained this status. "
32.  I have earlier referred to statutory declarations of Mr Koorts and Mrs
Koorts on 16 August 1990 concerning the assertion on which the Department
relied to conclude that they were illegal entrants. Mr Koorts had said in that
statutory declaration:
     "  As my children and my first wife continued to be known under
        the surname, Koorts, we did not feel it necessary to
        formalize our relationship by marriage.  As far as we were
        concerned our relationship had been resumed and we were
        living as husband and wife and were prepared to come to
        Australia to commence a new life together in a new country.
        It is for that reason that we did not notify the Australian
        Immigration Authorities of our relationship as we felt that
        we were married and were travelling as husband and wife and
        would continue to live as husband and wife. "
33.  There is a file note of 21 August 1990, where, having referred to the
matrimonial history, the following appears:
     "  I question whether children are section 20.  However they
        could possibly be as dependants included on same visa as
        parents. "
34.  On 3 September 1990, an internal minute to the Advisings Section, Legal
Branch seeking advice concerning the immigration status of Mr and Mrs Koorts
and their three children was forwarded to the Department in Canberra.  The
officer for Entry Control and Compliance said in the second page of that
minute:
     "  After the resumption of the first marriage he recieved (sic)
        advice of the approval of his family's migration application
        in a letter dated 17/10/88.  The family arrived on 26/2/89
        on their migrant visas and were granted permanent entry
        permits.  The Movements data base indicates that both
        Hendrik and Cornelia described their marital status as
        married on arrival.  (It does not appear that there is
        provision for 'de facto' status on the Incoming Passenger
        Card);
Then follows the paragraph earlier referred to.
35.  The report from the Legislation and Review Branch, Canberra, to the
Officer-in-Charge of Entry Control and Compliance, Brisbane is dated 29
November 1990.  The report seems to be directed to the arrival on 26 February
1989, rather than the later arrival on 15 October 1989, reflecting the above
information contained in the request for advice. That report baldly states,
inter alia:
     "  Mr and Mrs Koorts both made false or misleading statements
        on their passenger cards.  They stated that they were
        married when in fact they were divorced.  As there was no
        provision for de facto status on the passenger cards their
        correct status was 'divorced'. "
36.  After discussing the question of materiality of a particular, the advice
continued:
     "  If it is decided that marital status was material then the
        (sic) it follows that the Koorts made a false or misleading
        statment (sic) and that both Mr and Mrs Koorts became
        prohibited non-citizens on entry to Australia under
        sub-subparagraph 16(1)(b)(i)(B) of the pre 19/12/89 provisions
        of the MA.  They are now illegal entrants under the current
        provisions of the MA by virtue of subsection 6(2) of the
        Migration Legislation Amendment Act 1989 (MLAA).
37.  The same letter addressed the status of the Koorts children. The view was
expressed:
     "  It would seem that the children are probably not illegal
        entrants. "
Section 38(2) of the Migration Act was referred to, which provides that where
a child is included in the passport or other document of identity of a parent
and the child enters Australia in the company of the parent, the child should
be taken to be included in the entry permit granted to the parent unless the
contrary is stated in the entry permit.  It was said that "(i)f the Koorts
children were not given individual entry permits but are taken to have been
included in their parents' entry permit(s) and their parents became illegal
entrants on entry into Australia then the children will be illegal entrants as
their parents' entry permit(s) would be taken to have been cancelled on either
entry to Australia or grant of that entry permit (see subsection 35(2))".
38.  The minute expressed the caveat that the advice was premised on the
information given.  It stated:
     "  No information regarding the migrant visa was provided; it
        is possible that Mr Koorts gave an undertaking to advise of
        any change of circumstances that took place between his
        migrant application and the grant of the migrant visa.  If
        that was the case then he may have made a false or
        misleading statement in relation to the grant of that visa."
39.  The file Q90/2273 contains poor quality photocopies of five incoming
passenger cards, bearing visa numbers V605 06850C, V605 06851G, V605 06851G2,
V605 06851G3, and V605 06851G4 respectively.  Each bears the date 15 October
1989.  The last three referred to relate to Magdalena, Hannelie and Carine
Koorts respectively, and so far as can be determined do not contain any false
or misleading statement; at least the "never married" box appears to be
ticked, and with what appears as a left handed tick.  The card for Mr Koorts
and the card for Mrs Koorts each have the "now married" box ticked with a left
handed tick, and both cards appear to be signed by the person named in it.
40.  Not only does there appear to have been confusion at the relevant date of
entry by the Department, but the existence and significance of these incoming
passenger cards for the children does not appear to have been considered in
any of the material, or before the Tribunal.  It was not referred to, or made
the subject of submissions by counsel for the applicant in this Court.
41.  After the interviews of 11 December 1990, which included the questions
outlined above where they had been told that they were illegal entrants, on 18
December Mr Koorts completed an application to remain permanently in
Australia.  The application form comprehends an application for an extended
eligibility temporary entry permit on the basis of compassionate grounds as
well as an application for permanent entry permit on the same grounds.  The
form commences with the statement:
     "  You should complete this form ONLY if you were illegally in
        Australia on or before 18 December 1989. "
On the same day Mr Koorts signed a 'SECTION 20 NOTICE'.  This printed form
contains a paragraph:
     "  Subsection 20(1) of the Migration Act 1958 applies to me for
        the following reasons:
        ...
        (2)  When or before I entered Australia, in respect of that
        entry:
              (a)   I produced to an officer or a person exercising
                    powers or performing functions under that Act a
                    passenger card containing false or misleading
                    information. "   (This paragraph is ticked.)
42.  Notwithstanding that form, attached to it is a statement of circumstances
which commences:
     "  I strenuously deny that I have given false or misleading
        information on the Incoming Passenger Card when I arrived in
        Australia on 15 October 1989 as is claimed by officers of
        the Department of Immigration, Local Government and Ethnic
        Affairs. "
That statement also importantly says:
     "  In connection with my case some reference has also been made
        to the fact that I did not notify the Australian Embassy in
        Pretoria of my changed marriage circumstances. "
In respect of this matter Mr Koorts stated:
     "  The 'Application for Entry Settlement', Form M47, that I
        lodged in July 1986 at Cape Town contained a Declaration
        that was signed by myself and wife, Cornelia Johanna Koorts.
        That declaration did not require me or my wife to notify the
        Australian Immigration authorities of any changes in my
        circumstances.  The information contained in that
        application is correct.  Therefore I claim I was not in
        breach of Section 20(1) of the Migration Act 1958. "
The declaration to which Mr Koorts refers is in these terms:
     "  I/we declare that the particulars given in the foregoing
        application for authority to enter and remain in Australia
        for settlement subject to the Migration Act 1958 are true
        and correct in every detail.  I/we understand that incorrect
        statements may result in refusal of my application or if not
        discovered beforehand to my/our being prevented from
        entering Australia or from remaining in Australia after
        arrival. "
43.  On 4 February 1991, an officer of the department, Ms McKarzel recommended
to the "Officer-in-Charge, Residence" of the Operation and Administration
Branch of the Department in Brisbane, that she refuse the application for a
December 1989 (temporary) entry permit under Regulation 131A to Hendrik
Johannes Koorts and his dependants. That recommendation was accepted on 11
February 1991 by Ms J Brooks, an authorised officer under s. 34(4) of the
Migration Act 1953.  That recommendation included the statement:
     "  Advice from the Department's legal branch has deemed the
        applicant and his dependants to be illegal entrants pursuant
        to s. 20(1)(b)(i)(B) of the Migration Act 1958 (as amended).
        Hence the application is made under Regulation 131A because
        of the family's status as illegal entrants at the time of
        lodgment.  (my emphasis)
That recommendation makes it plain that the decision was based on the
Departmental file no. Q90/2273 as well as the Migration Act, Migration
Regulations and the Procedures Advice Manual, but there is nothing to indicate
that what has been termed the 'South Africa file' was before the decision
maker.  The assessment stated:
     "  The applicant meets the requirements of Regulation
        131A(1)(a), (b) and (c) in that he was a prohibited
        non-citizen before 18 December 1989, he has not left Australia
        since 18 December 1989 and he applied for the entry permit
        before 19 December 1993. "
The assessment contained the comment:
     "  It should be noted that the applicant has full review rights
        to the Immigration Review Tribunal in the event of refusal
        of the application. "
44.  On 19 February 1991 Mrs Ferreira applied for review of the decision.
45.  In an important letter dated 28 February 1991, the Tribunal wrote to the
Secretary of the Department and to Mr Koorts in the following terms:
   "  RE: H J KOORTS (APPLICATION FOR REVIEW NO. RQ91/00058)
      With reference to the above application for a review of a decision
      refusing the grant of a December 1989 (temporary) entry permit,
      the Tribunal invites your submission with respect to the effect of
      regulation 131A(1)(a) of the Migration Regulations and section
      16(1)(b)(i)(B) of the pre-December 1989 Migration Act 1958.
      That regulation indicates that the Tribunal needs to be satisfied
      that the 'applicant for the entry permit was a prohibited
      non-citizen on or before 18 December 1989'.  Therefore, the Tribunal
      believes it is in order for it to examine that question to reach
      its own conclusions in this regard.
      The Tribunal feels it is obligated to consider whether the
      applicant was or was not a prohibited non-citizen pursuant to
      section 16 (now section 20 - although there is some difference in
      wording) of the Migration Act 1958 as it stood prior to 18
      December 1989.
      The Tribunal therefore invites submissions on these issues. "
46.  The Department informed the Tribunal by telephone on 7 March 1991:
     "  (T)he Department will not be providing further submissions
        in regard to the Koorts' case. "
47.  Solicitors on behalf of Mr Koorts on 8 March 1981 made comprehensive
submissions over some nine pages.  The substantive part of that submission
commenced:
     "  We note that you have invited submissions in relation to the
        threshold issues of whether Mr H. J. Koorts and Mrs C.J.
        Koorts or their children have been properly classified as
        'prohibited non-citizens'.  We note that in that regard, the
        position as regards the children may in strict legal theory
        turn out to be different to that of the parents because the
        ground pursuant to which the classification was made related
        specifically to section 20(1)(b)(i)B (the then Section 16)
        of the Migration Act.  As you are aware, that section refers
        to persons producing materially false or misleading
        passenger cards.  Although it will be our submission that
        both Mr and Mrs Koorts have not contravened that section and
        therefore should never have been classified as 'prohibited
        non-citizens', the position of the children, in our
        submission, is much more secure insofar as they could not
        have been said to have produced passenger cards that were
        false or misleading in a material particular.  Accordingly,
        as a secondary submission in relation to the status of the
        parents, it will be argued that if the children are still
        Australian residents, then the parents of those children
        would be entitled to make the appropriate application
        (presuming they are unsuccessful in this review) to have a
        temporary entry permit as parents of Australian permanent
        residents. "
48.  The reasons for decision of the Tribunal recited the marital history of
Mr Koorts and referred specifically to a number of communications between Mr
Koorts and the Australian Embassy in South Africa.  The Tribunal then turned
to the determination by the Department that Mr Koorts and Mrs Koorts were not
in fact permanent residents of Australia but illegal entrants pursuant to
sub-paragraph 20(1)(b)(i)(B) of the Migration Act in that they produced to an
officer a passenger card containing information that was false or misleading
in a material particular in respect of their entry into Australia.
49.  Those cards contain in part 8 four boxes regarding a person's marital
status:  they are "never married", "now married", "widowed" and "divorced".
Both Mr and Mrs Koorts ticked the box "now married".  The incoming passenger
card does not contain a box for de facto relationships.  The Tribunal in its
reasons continued:
     "  The couple have applied for an entry permit under regulation
        131A of the Migration Regulations.  Given that one of the
        criteria for the issue of a December 1989 (temporary) entry
        permit is that 'the applicant was a prohibited non-citizen
        on or before 18 December 1989', this is the reason why the
        Tribunal believes that it must consider whether that
        criteria is met. "
50.  The Tribunal referred to its invitation to Mr Koorts and the Department
to make submissions in relation to their views on s. 16 of the Migration Act,
and noted that the invitation was not taken up by the Department.  The
Tribunal also noted that the question whether or not a person is deemed to be
a prohibited non-citizen pursuant to s. 16 is a question to be decided on the
establishment of objective facts and not the subjective opinion of an officer
of the Department, and further noted that knowledge of the false or misleading
character of any statement in an incoming passenger card was not a requirement
of the section, relying on Minister for Immigration and Ethnic Affairs v.
Naumovska (1989) 88 ALR 589.
51.  Having dealt with the question of whether any statement would be a
statement in respect of a material particular, the Tribunal made the finding:
     "  ...given their relationship and cohabitation together on a
        domestic basis, and the absence of a provision for a 'de
        facto relationship' on the incoming passenger card, in this
        case the appropriate box to mark was that of being 'married'
        rather than 'divorced'. "
52.  It is clear by Regulation 9(2) of the Migrant (Review) Regulations that
the Immigration Review Tribunal has jurisdiction to review a refusal to grant
a December 1989 (temporary) entry permit only if the applicant was a
prohibited non-citizen on or before 18 December 1989.  The Tribunal
principally addressed the question of whether Mr Koorts and his wife were
prohibited non-citizens by virtue of the presentation of their marked incoming
passenger cards and found against the Department's contention in that regard.
It then said:
     "  Consequently, the Tribunal finds that they were not
        prohibited non-citizens on or before 18 December 1989 for
        the purposes of regulation 131A.  It therefore follows that,
        in view of the Tribunal's conclusion above, the principal
        did not need to lodge an application pursuant to regulation
        131A in relation to his and his family remaining in
        Australia. "
53.  It was for those reasons that the Tribunal affirmed the decision "in a
formal sense" because as the Tribunal said:
     "  the principal and his family had not become prohibited
        non-citizens or illegal entrants but remain permanent residents
        of Australia, which was the legal status granted to them on
        their last arrival in this country on 15 October 1989. "
54.  The Tribunal found it unnecessary to deal with the existence of
compassionate grounds in the light of its findings about jurisdiction, but
expressed the preliminary finding that the grounds would not be made out.
Should it be the case that for any reason the Tribunal would have to consider
the question of compassionate grounds, the position of the children and Mrs
Koorts would have to receive separate and particular attention.
55.  So far as the challenge to the decision by the Tribunal on what I might
term the narrow ground is concerned, namely that the Tribunal had erred in
concluding that neither Mr Koorts nor Mrs Koorts made a false and misleading
statement in ticking the box "now married" on their incoming passenger cards,
the answer in my opinion is clear. No error has been shown in the reasoning
and decision of the Tribunal.
56.  As to the meaning of "decision", Mason CJ said in Australian Broadcasting
Tribunal v. Bond (1990) 170 CLR 321 at 337:
     "  ...a reviewable 'decision' is one for which provision is
        made by or under a statute.  That will generally, but not
        always, entail a decision which is final or operative and
        determinative, at least in a practical sense, of the issue
        of fact falling for consideration.  A conclusion reached as
        a step along the way in a course of reasoning leading to an
        ultimate decision would not ordinarily amount to a
        reviewable decision, unless the statute provided for the
        making of a finding or ruling on that point so that the
        decision, though an intermediate decision, might accurately
        be described as a decision under an enactment. "
At 340-1 his Honour said:
     "  If the statute requires or authorizes the decision-maker to
        determine an issue of fact as an essential preliminary to
        the taking of ultimate action or the making of an ultimate
        order, then it would follow from what has already been said
        that the determination of the issue of fact would be a
        reviewable decision.
        ...
        However, in ordinary circumstances, a finding of fact,
        including an inference drawn from primary facts, will not
        constitute a reviewable decision because it will be no more
        than a step along the way to an ultimate determination.  Of
        course an ultimate determination which depends upon a
        finding of fact vitiated by error of law or made without
        evidence is reviewable:...In such a case the finding of fact
        may be challenged as an element in the review of the
        ultimate determination.  But the point remains that
        ordinarily a finding of fact will not be susceptible to
        review independently of the ultimate decision. "
And later at 341:
     "  To expose all findings of fact, or the generality of them,
        to judicial review would expose the steps in administrative
        decision-making to comprehensive review by the courts and
        thus bring about a radical change in the relationship
        between the executive and judicial branches of government.
        Amongst other things, such a change would bring in its train
        difficult questions concerning the extent to which the
        courts should take account of policy considerations when
        reviewing the making of findings of fact and the drawing of
        inferences of fact. "
57.  The essence of the Immigration Review Tribunal's decision was as
follows:
     1.  The word 'married' on the passenger card includes a de
         facto marriage.
     2.  At the time of their entry into Australia, the Koorts were
         in a de facto marriage relationship.
     3.  Ticking the 'now married' box on the passenger card at the
         time of entry did not amount to making a 'false or
         misleading statement'.
     4.  The Koorts therefore were not prohibited non-citizens via
         the operation of s.16(1)(b)(i)(B).
     5.  The Department's decision to refuse a temporary entry
         permit under regulation 131A should be formally affirmed
         because the necessary precondition to the grant of such a
         permit in regulation 131A(1)(a) was not satisfied.
58.  In my opinion, the question of whether a statement made on the passenger
card is a "false or misleading" statement is a question of fact.  While it may
be argued that the meaning of the word "married" involves some legal
principles, once the meaning of the word is ascertained, a decision on whether
ticking the "now married" box on the passenger card amounted to a false or
misleading statement, simply involves a consideration of the relevant facts.
59.  There is no definition of "marriage" or of "spouse" in the Migration Act
nor any definition of "de facto spouse" or "de facto marriage", but in the
Migration Regulations 1989 "marital relationship" includes a de facto
relationship and "spouse" includes "...a de facto spouse".  The meaning of
ordinary English words is a question of fact: McVeigh v. Willarra Pty Ltd
(1984) 6 FCR 587 at 598.
60.  Whether or not a statement is false can only be a question of fact.  The
finding that ticking the box "now married" was not the making of a statement
that was false or misleading is a question of fact and not amenable of appeal
or review, unless there was no evidence to support the finding: see s. 5(1)(h)
of the Administrative Decisions (Judicial Review) Act.
61.  As a matter of construction, the first finding seems the correct
conclusion to draw.  Therefore, even if this a question of law and not fact,
no error of law is involved at this level.
62.  The second and third finding (and, because no further legal analysis is
involved, the fourth also) involve questions of fact only. They are therefore
reviewable only in accordance with the principles expounded by Mason CJ in
Australian Broadcasting Tribunal v. Bond (supra) at 355-360.  Those principles
were considered by Peter Bayne in an article at (1992) 66 ALJ 96.  Here, the
Immigration Review Tribunal's decisions are free from attack, as evidence
clearly existed to support them, and they are not so perverse or unreasonable
that no reasonable decision-maker could have arrived at them.  A similar
conclusion was reached in Alice Benlot v. The Minister for Immigration, Local
Government and Ethnic Affairs (unreported judgment No. 110/92, 13 March 1992,
Davies J, Sydney).  In that case, a decision of a delegate of the Minister to
refuse an extended eligibility (spouse) entry permit turned on whether Mrs
Benlot was in a de facto marital relationship, and, if so, whether the
relationship was genuine and continuing.  His Honour said, at 3;
     "  The issue which (the decision maker) had to consider was an
        issue of fact.  It is not for this Court to review findings
        of fact.  The determination of facts is committed to the
        decision-maker and his view must stand unless the
        determination was so perverse or unreasonable that no
        reasonable decision-maker could have arrived at it.  See
        Mason CJ in Australian Broadcasting Tribunal v. Bond
        (1990) 170 CLR 321 at 358-359. "
63.  While it is of no significance in either the application for an order of
review or appeal, in my respectful opinion the factual determination by the
Tribunal that there was no false or misleading statement made by Mr and Mrs
Koorts in describing their condition as "now married", was correct.
64.  Subject then to the possible operation of s. 16(1)(b)(ii) and s.
16(1)(ba), in my opinion no legal error has been shown to have infected the
Tribunal's decision or reasoning.
65.  I turn now to consider the wider basis propounded on behalf of the
Minister in his appeal and application for an order of review.
66.  It was asserted on behalf of the Minister that in respect of three
matters there was the making by Mr Koorts of false or misleading statements in
connection with his immigration to Australia.
67.  The first is a letter by Mr Koorts to the Australian Embassy in South
Africa on 30 May 1988 wherein Mr Koorts said:
     "  I include the birth certificates of myself, my wife and my
        three children for emigration purposes. "
The certificate enclosed was that of Cornelia Johanna Marais, his first wife.
At 30 May 1988 Mr Koorts was divorced from Cornelia and married to Althea
Gertrude DeWitt.
68.  The second statement said to be false or misleading is the sending by Mr
Koorts to the Australian Embassy on 23 July 1988 of a completed sponsorship
form which identified both him and Cornelia Johanna Koorts in a section
described as "marital status".  The box "now married" is marked with a cross,
while the other boxes "never married", "divorced", "de facto relationship",
"engaged", "separated" and "widowed" are unmarked.  It was said that this was
an assertion that he was married to Mrs Koorts at the time of sending that
letter.
69.  The third matter which is said to be a false or misleading statement is
contained in a letter of 24 October 1988 by Mr Koorts to the Australian
Embassy which says, inter alia:
     "  The acceptance of my application to emigrate to Australia is
        deeply appreciated.
        I hereby enclose mine and my wife's passports for the issue
        of our visas. "
It is said that referring to Cornelia Koorts as his "wife", when they were in
a genuine de facto marital relationship is the making of a false statement.
70.  The visas were stamped in the passports of Mr and Mrs Koorts on 6
December 1988.
71.  It appears from the reasons for decision of the Tribunal that the South
African file was available to the Tribunal because Mr Karas quoted from
documents to be found only in that file.
72.  It is first to be observed that what is submitted in argument in this
Court is different from what are said to be the "relevant considerations" not
taken into account in the notice of appeal, and in the application for an
order of review.  There is simply no evidence as to what is alleged in ground
b(ii) of each document, and that ground fails.
73.  The only basis relied on as grounds for appeal or review in those
documents, on which it is claimed that Mr Koorts and his family were
prohibited non-citizens, apart from the question of incoming passenger cards,
is the assertion:
     "  (T)hat Hendrik Johannes Koorts had made a false or
        misleading statement in a material particular to the
        Counsellor, Consular Affairs, at the Australian Embassy in
        Pretoria, South Africa, in June 1988, in respect of the
        grant of a visa, that he was still married to Cornelia
        Johanna Koorts when he was in fact married at that time to
        Althea Gertrude Koorts, "
74.  That matter seems not to be any of the three matters the subject of
submissions by counsel for the Minister.
75.  The requirement that grounds for an appeal, or grounds for an order of
review, be specified is a necessary part of a fair judicial system.
76.  At page 47 and following of the transcript of the proceedings in this
Court, Mr Tracey QC, senior counsel for the applicant, identified what were
"the matters that are relied upon in relation to the South African
representations".
77.  The position is simply that the grounds for the appeal and for an order
of review, on which it was claimed that the finding that Mr Koorts and his
family were not prohibited non-citizens as at 18 December 1989, was erroneous,
are not made out.
78.  Mr Tracey conceded that these three matters had never before been
particularised, and agreed that it followed that they had never been the
subject of submissions by the respondent to this appeal. Further, these three
matters assert the making of statements by Mr Koorts.  Mrs Koorts or the three
children have not been given any opportunity to answer them or be heard in
respect of any disqualifying consequence of them, if the statements have the
characterisation which it is now said those statements have.
79.  I have earlier referred to Mr Koorts' response in his statement of
circumstances of 18 December 1990, to the suggestion that he was under some
obligation to advise the Australian Embassy of any change in his marital
status while his application to emigrate was being considered.  I am satisfied
that there was no such obligation.  Further, I respectfully agree with the
judgment of Keely J in Eva Michalowski v. Mr Gerry L Hand Minister of State
for Immigration, Local Government and Ethnic Affairs (unreported judgment No.
202/92, 24 April 1992, Melbourne) that any failure to supply information did
not constitute the making of a "statement".  (The present s. 24(9) of the
Migration Act has no application in the matters I am considering.)
80.  As to the letter of 17 October 1988 from the Australian Embassy approving
"your application to migrate to Australia", the letter said "This approval is
subject to conditions which will be identified in your visa".  The conditions
included "that there is no change in your marital status or that of persons in
this approval".
81.  This condition is ambiguous, in that it might refer to the question of
change in marital status between application and grant of approval, or it
might refer to any change between grant of approval and migration to
Australia.  The verb used is "is", and not "has been".
82.  It cannot be suggested that any change of the latter kind arose.
Concerning the former possible meaning, the Tribunal in its reasons for
decision referred to the Migration Entry Handbook, and said:
     "  The old Migrant Entry Handbook which described Department
        policy in force at the time of their approval to migrate to
        Australia and at the time of their last entry into this
        country expressly states at paragraph 4.5.1 that:
      ' For the purposes of migration, a de facto marriage
        relationship has the same value as a marriage, and
        genuine de facto relationships are to be treated as if
        the partners are formally married.'  "
83.  In my opinion, the alteration from a "de jure" marital relationship to a
"de facto" marital relationship does not involve a change of marital status.
In the same way, if two people in a genuine de facto marital relationship
marry, their marital status in each situation is still properly to be
described as "married".
84.  The three 'South African representations' are new in the sense that they
were not raised by the Department before the Tribunal, notwithstanding the
letter of the Tribunal to the Secretary dated 28 February 1991.  The
Department deliberately chose not to make "further submissions in regard to
the Koorts' case".
85.  Further, they are new in the sense that they are not covered in the
grounds of appeal (or the grounds for an order of review), and there has been
no application to amend these grounds.  In my opinion, that is the end of the
matter.
86.  Natural justice would demand that if these three matters are to be
considered in relation to the status of Mr Koorts, Mrs Koorts and the three
children, each of them has a right to be heard, which means a proper right to
be heard in the sense of R. v. Thames Magistrates' Court, Ex parte Polemis
(1974) 1 WLR 1371, and not having to deal 'on the run' with allegations made
without notice.
87.  To remit the matter back to the Tribunal to enable that to be done would
be to permit the applicant to secure an advantage by his unreasonably standing
by and have the opportunity of several, and serial, bites at the cherry.
88.  In Minister for Immigration and Ethnic Affairs v. Naumovska (1983) 88 ALR
589, Lockhart J at 601 said:
     "  Once a person enters Australia in any of the circumstances
        mentioned in s. 16(1)...he becomes by force of the section a
        prohibited immigrant.  No decision by anybody is required to
        bring about this change of status.  It follows as a matter
        of law once the facts specified in s. 16(1) are satisfied. "
        (my emphasis)
His Honour noted:
     "  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.
        ...
        This status rests on the establishment of objective facts
        whose existence may be reviewed by the courts. "
89.  This is not the case to consider whether the estoppel of the type found
by the High Court in Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147
CLR 589 might properly arise in respect of hearings by administrative
tribunals.  There is no doubt that such a principle applies in proceedings in
the Federal Court.  The rationale of the doctrine is to be found in the
principle expressed by Sir James Wigram VC in Henderson v. Henderson (1843) 3
Hare, at 115 (67 ER at 319):
     "  where a given matter becomes the subject of litigation in,
        and of adjudication by, a Court of competent jurisdiction,
        the Court requires the parties to that litigation to bring
        forward their whole case, and will not (except under special
        circumstances) permit the same parties to open the same
        subject of litigation in respect of matter which might have
        been brought forward as part of the subject in contest, but
        which was not brought forward, only because they have, from
        negligence, inadvertence, or even accident, omitted part of
        their case.  The plea of res judicata applies, except in
        special cases, not only to points upon which the Court was
        actually required by the parties to form an opinion and
        pronounce a judgment, but to every point which properly
        belonged to the subject of litigation, and which the
        parties, exercising reasonable diligence, might have brought
        forward at the time. "
90.  Gibbs CJ, Mason and Aickin JJ noted in Port of Melbourne Authority v.
Anshun Pty Ltd at 598:
     "  Although it has been said that the principle operates so as
        to extend the doctrines of issue estoppel as well as res
        judicata, its application to cases of issue estoppel is to
        be treated with caution. "
91.  It seems to me that it was incumbent on the applicant in the present
proceedings to bring forward his whole case as to why the finding as to
jurisdictional fact by the Immigration Review Tribunal, namely, the finding
that Mr Koorts and his family were not prohibited non-citizens as at 18
December 1989, should be disturbed or reviewed. Having regard to the grounds
on which the present application and appeal have been brought, that has not
been done.
92.  As to the proceedings before the Tribunal, it has to be recognised that
the Tribunal is a body independent of the Department of Immigration, Local
Government and Ethnic Affairs, and it is entitled to expect no less from the
Department than it expects from any other party before it.  It is no part of
the duty of the Tribunal to make the case for the Department or for any other
applicant.
93.  I now turn to look in some detail as to what is now said to constitute
false and misleading statements by Mr Koorts.
94.  It seems to me that none of these allegations can in any way affect the
conclusion of the Tribunal that Cornelia Johanna Koorts was at the date of her
last entry into Australia, namely 15 October 1989, not a prohibited
non-citizen.  A fortiori it seems to me that there is no basis on which the
three Koorts children are prohibited non-citizens. Mrs Koorts and her three
children remain permanent residents of Australia.
95.  It is no part of the Court's function to make findings of fact, even
findings of jurisdictional fact, in the absence of hearing from parties who
are entitled to be heard on those matters.  What I will do is examine whether
the findings now urged, relying on paras. 16(1)(b)(i) and 16(1)(ba) of the
Migration Act, might reasonably be able to be made, or might have been
reasonably able to be made.  I am here conscious of the observations of
Fullagar J in R. v. Blakeley; Ex parte the Association of Architects,
Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90-2,
and his statement at 92:
     "  If the jurisdiction was not shown before the inferior
        tribunal but was shown before the superior tribunal, the
        latter would, I should think, apart from very special
        circumstances, refuse the writ (of mandamus) and leave the
        prosecutor to make another application to the inferior
        tribunal. "
96.  I note that the first two representations were made at a time before any
question of the grant of a visa was a live matter, since the application for
entry for settlement had not at that time been approved.  The third statement
is alleged to be made after that approval, at which time the grant of a visa
was reasonably in contemplation.
97.  Concerning the first matter, it is open, in my opinion, to conclude that
Mr Koorts made a statement that was false or misleading. The letter of 30 May
1988, it might be concluded, contains a statement that Cornelia Koorts was
then his wife, the true position being that he was then married to Althea
DeWitt.
98.  The second matter is less clear.  The sponsorship form is signed by the
sponsors, not by Mr or Mrs Koorts.  It does represent that Hendrik Koorts and
Cornelia Koorts are "now married".  I think that it is open to conclude that
that statement is false.  Having regard to the judgments in the Full Court in
Minister for Immigration, Local Government and Ethnic Affairs  v. Ricardo Dela
Cruz (Black CJ, Davies and Neaves JJ, unreported, 28 February 1992, Sydney), I
think it is also open to conclude that the statement is false in a material
particular.  It is, however, open to argument whether Mr Koorts made that
statement or that he caused it to be made.
99.  Notwithstanding those matters, it seems to me that it would not be open
to the Tribunal to conclude, having regard to the time at which those two
statements were made, that Mr Koorts' visa was obtained by "false
representation" as required by s. 16(1)(b)(ii) of the Migration Act or that
the respective statements were made "in respect of the grant of that visa".
At the time of the making of those statements Mr Koorts was the person who had
applied for settlement to Australia. The question of the grant of a visa to
him was hypothetical.  In my opinion the statements lack the capacity to be
statements made in respect of the grant of Mr Koorts' visa.
100.  There is a further evidentiary deficiency in that s. 16(1)(b)(ii)
requires that a visa produced in respect of an entry into Australia be
"obtained by false representation".  The requirement that the visa be
"obtained" requires, not that there be a temporal connection between the
making of a false representation and the issuing of a visa, but that there be
a causal connection.
101.  The matters to which I have just referred do not apply in respect of the
third allegation on behalf of the Minister, namely, that relating to the
letter of 24 October 1988 where Mr Koorts enclosed "mine and my wife's
passports for the issue of our visas" and tendered those passports.
102.  At this time the position was that Cornelia Koorts and Mr Koorts were
living in a de facto relationship with their children and had received
approval to settle in Australia and were in the process of obtaining visas for
that purpose.  I think in this instance the statement, if it be false or
misleading in a material particular, is a statement "in respect of the grant
of a visa" and it might be possible to infer that the visa was "obtained by
false representation", if the representation or statement in fact be false.
However, I do not regard it as open to say that to describe one's de facto
spouse as one's wife is a false statement.
103.  While these matters were not the subject of submission to the Tribunal,
the matter of the response by Mr Koorts to the request of 4 May 1988 for the
full birth certificates of his wife and his three children was referred to, as
was the letter advising approval to migrate to Australia of 17 October 1988
and the conditions therein, and specific reference was also made to the letter
dated 24 October 1988 by Mr Koorts wherein he referred to his "wife's
passport" for the issue of their visas.
104.  There is a passage in the Tribunal's reasons for judgment which has a
relevance to these present matters, and I set it out in full:
     "  For the sake of completeness, the Tribunal will deal briefly
        with the applicant's failure to notify the Australian
        Embassy and the Department of a change in his marital status
        prior to the issue of the visa as requested in the Embassy's
        letter to Mr Koorts on 17 October 1988.  In Mr Koorts'
        response to this letter, he remained silent about the change
        in marital status.  Indeed, he continued to refer to
        Cornelia Koorts as his wife.  Under the current Migration
        Act (section 24(9)), an applicant who fails to respond to a
        notice requiring him or her to notify the Minister of
        changed circumstances is taken to have notified the Minister
        that there has been no such change.  However, this provision
        has no application to events that took place under the law
        as in force prior to 19 December 1989.  For all intents and
        purposes, the parties presented to the world as if there had
        been no change in their marital status in the long period
        between their application to migrate and their approval.
        This failure to notify of their changed marital status could
        not form the basis for them being declared prohibited
        non-citizens for the purposes of the Act and their application
        under regulation 131A. "
105.  In my opinion, none of the three matters relied on in argument by the
applicant are capable of satisfying the provisions of s. 16(1)(b)(ii) and s.
16(1)(ba) of the Migration Act.  Even if they could properly be considered by
the Court (and I have found that they cannot), they would not avail the
applicant.
106.  For the reasons which I have given, I am of the opinion therefore that
the Tribunal was right in concluding that Mr Koorts, Mrs Koorts and the three
children were not prohibited non-citizens on or before 18 December 1989 and
was right in concluding that there was no need for Mr Koorts to lodge an
application pursuant to Regulation 131A in relation to him and his family
remaining in Australia.
107.  Having regard to s. 138(4) of the Migration Act, I think it right, given
the history of this matter, to declare that Hendrik Johannes Koorts, Cornelia
Johanna Koorts, and their three children were not prohibited non-citizens on
or before 18 December 1989.
108.  I note that Mr Tracey, on behalf of the Minister, said that in the event
that he was successful, no order for costs was sought. However, for the
reasons that I have given the appeal and application for an order of review
should each be dismissed with costs and I make the declaration earlier
referred to.