Ashok Kumar v Minister for Immigration & Ethnic Affairs [1997] FCA 339 (8 May 1997)

CATCHWORDS

IMMIGRATION - application to review decision of the Immigration Review Tribunal - whether refusal of entry permit would cause "extreme hardship" to an Australian citizen - whether "extreme hardship" is hardship that is of the magnitude of a character or kind farthest removed from the ordinary or average - whether distraction from the legislative text - extreme hardship is not an absolute standard.

Migration (1993) Regulations sch 2 pt 812.72

Minister for Immigration and Ethnic Affairs v Teo (1995)

57 FCR 194, applied

Prasad v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 104; (1993) 30 ALD 856, cited

Pavlavi v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 18 August 1992) cited

Man Ki Kim v Minister for Immigration and Ethnic Affairs [1995] FCA 1088; (1995) 37 ALD 481, cited

Abdul Ayub v Minister for Immigration & Ethnic Affairs (unreported, 13 December 1996), cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, cited

ASHOK KUMAR v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No VG 253 of 1996

Tamberlin J

Sydney (heard in Melbourne)

8 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIAN DISTRICT REGISTRY ) No. VG 253 of 1996

GENERAL DIVISION )

BETWEEN: ASHOK KUMAR

Applicant

AND: THE MINISTER FOR

IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

(Heard in MELBOURNE)

DATED: 8 MAY 1997

MINUTE OF ORDERS

The Court orders:

1. The application be allowed with costs.

2. The decision of the tribunal be set aside and the matter remitted for decision in accordance with law.

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

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIAN DISTRICT REGISTRY ) No. VG 253 of 1996 GENERAL DIVISION )

BETWEEN: ASHOK KUMAR

Applicant

AND: THE MINISTER FOR

IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

(Heard in MELBOURNE)

DATED: 8 MAY 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

This is an application to review a decision of the Immigration Review Tribunal ("the tribunal") made on 28 March 1996, constituted by Ms Dollis.

The tribunal affirmed a decision refusing to grant a class 812 (December 1989 (permanent)) entry permit to the applicant ("Mr Kumar"), an Indian citizen.

Mr Kumar arrived in Australia on 22 May 1989 having deserted the vessel MV Ethnos. He has remained in Australia since that time but has not been issued with an entry permit. On 25 November 1993 Mr Kumar applied for a class 812 entry permit nominated by his Australian citizen friend, Mr Narad, and another friend and distant relative, Mr Chand Dugg ("the nominators"). The application was based on the existence of compassionate grounds deriving from the applicant's relationship with his nominators and friends.

There have been important changes to Australian migration law since 1989 but for the purposes of this judgment it is not necessary to refer to them.

Part 812.72 of Schedule 2 to the Migration (1993) Regulations is concerned with the criteria to be satisfied at the time of application for an entry permit after entry. Relevantly it provides:

"812.723(6) An applicant satisfies the requirements of this subclause if, .... :

(a) there was, on 15 October 1990 any compassionate ground ... for the grant to the applicant of an entry permit, to the effect that refusal to grant the grant permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and

(b) the compassionate ground continues to exist." (Emphasis added)

In the present case the relevant question is whether refusal of the entry permit sought would have caused extreme hardship to an Australian citizen or Australian permanent resident at the specified date.

The tribunal decision

The tribunal decision referred to the above provision of Part 812. It noted that there was no definition of "extreme hardship" in the Regulations but that the expression had been considered in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, a decision of the Full Federal Court; and Ali v The Minister for Immigration and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144, a decision of Heerey J.

In Teo the Court at 206-207 said:

"There is no reason to give a 'broad and generous construction' to reg 131A. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. These include the view taken by other branches of government and reflected in the legislative text, being the statute and the regulations, of the social and material interests of the country as a whole in relation to the entry and settlement of aliens, and of the conditions which should be attached to permission to enter and stay in Australia...."

The tribunal also referred to the statements of von Doussa J in Palwinder Singh v Minister for Immigration and Ethnic Affairs and Immigration Review Tribunal (unreported, 31 January 1996), par 35 where his Honour said:

"Feelings of concern and distress which one family member would naturally feel when separated from another, heightened in this case by a concern about the level of safety in the region of the world where the other family member might possibly live after he left Australia. These are natural human emotions of a kind experienced from time to time by many people in this and other communities. They are part of the common experiences of life that many people are required to live with. They do so without suffering a level of distress which affects their ability to carry on their normal daily activities, or which leads to illness."

The tribunal then went on to consider the expressions "compassion" and "extreme hardship" and the meanings which had been attributed to those terms in decisions of the tribunal and the Federal Court. Reference was also made to the Macquarie Dictionary. The relevant expressions referred to and set out in the decision included:

"(1) 'compassion' includes a feeling of sorrow or pity for the suffering or misfortune of others.

(2) 'extreme' means, among other things, of a character or kind farthest removed from the ordinary or average.

....

(5) 'extreme' need not always mean 'long term or permanent' ..."

There then followed a careful consideration of the evidence including the Departmental file and statutory declarations by the nominators which detailed their relationship with the applicant and described their concerns should the applicant be forced to return to the Punjab and the caste system in India. The tribunal held a preliminary meeting with Mr Kumar and his advisers. Subsequently there was a hearing in which oral evidence was taken from Mr Kumar and Mr Narad. Evidence was also taken by telephone from Mr Chand Dugg. The documentary and oral evidence was then summarised.

The findings of the tribunal are succinct and important. They read as follows:

"FINDINGS

The applicant became a prohibited non-citizen on 22 May 1989 when he left the ship Elmnos in Newcastle, without any authority to do so. The Tribunal is satisfied that he meets the threshold criteria for a Class 812 (December 1989 (permanent)) entry permit.

The Tribunal considered the evidence and circumstances of the respective nominators' relationships with the applicant separately.

Relationship with Mr Nirmal Chand Dugg

On the basis of the oral evidence of the applicant and his nominator, Mr Chand Dugg, the Tribunal finds that the first two met in September or October 1990. In the absence of any further documentary evidence, the Tribunal is unable to conclude in which month the two parties met. At best, it could be said however, that the parties were able to establish a relationship over a number of weeks, by 15 October 1990.

The Tribunal accepts that the relationship between the applicant and Mr Chand Dugg, has been made stronger by the sharing of a common, highly-stigmatised caste in India, and a common religion and may have accelerated the rate at which the relationship developed.

The Tribunal accepts that Mr Chand Dugg and his family would experience distress at the applicant's departure, and that they would also feel the loss of the applicant's practical support now. The Tribunal is not satisfied however that the effect of the applicant's departure at 15 October 1990 until the present time, would cause extreme hardship that it is of the magnitude 'of a character or kind farthest removed from the ordinary or average'. Nor does the Tribunal believe that the injury or detriment that Mr Chand Dugg and his family would experience as a result of the applicant's departure either at 15 October 1990 until the present time would cause irreparable prejudice in the sense of being of a irreversible nature or being irreparable.

Relationship with Mr Rajash Narad

The Tribunal finds that the applicant and his nominator, Mr Narad, first met some time before June 1990, when the applicant visited the Footscray Chandler's store to purchase a television. The Tribunal accepts the oral evidence of the applicant and his nominator that a friendship evolved, sufficiently close for the Narads to seek and obtain guidance and support from the applicant, at a time when they had no family in Australia available.

The Tribunal accepts that the applicant is a trusted friend of Mr Narad and his family. The Tribunal accepts that the nominator and his wife would have experienced loss of support and assistance at a critical time had the applicant been required to depart at 15 October 1990, however the Tribunal is of the view that neither the loss of this assistance at 15 October 1990 until the present time, would form the basis of a compassionate ground sufficient to cause the 'extreme' hardship envisaged by the Regulations. Nor does the Tribunal consider that the loss to be felt by the Narads at the applicant's forced departure at either 15 October 1990 until now would be of the nature to cause irreparable prejudice.

In conclusion, the Tribunal is unable to find that the loss of the applicant's presence in Australia and the associated distress experienced by either of his nominators satisfies the requirements of the Regulations." (Emphasis added)

Applicant's submissions

Essentially the applicant claims that there are two errors of law in the test as applied by the tribunal. These are said to be:

(1) The tribunal has taken a wrong approach because it characterises the hardships (ie distress and lack of support) and then asks whether these are ordinary consequences of the applicant being forced to return to the Punjab. The tribunal in effect has determined that loss of support and distress will ordinarily be present and therefore such matters are not of a kind which could constitute "extreme hardship". In other words the submission is that the expression "extreme" has been wrongly used and applied in a qualitative sense to delimit the categories of distress or detriment which may give rise to hardship.

(2) Alternatively, if the tribunal was imposing a "benchmark" then it is clear that it chose one, namely ordinary or average hardship, which distracted it from the correct question. It is incorrect to assume an average or ordinary person in the position of the nominators and then ask what level of hardship such a person would suffer for the purpose of creating a benchmark. Reference is made to Ali's case 38 FCR at 150 and to Man Ki Kim v The Minister for Immigration and Ethnic Affairs [1995] FCA 1088; (1995) 37 ALD 481 at 487.

Case law

The language of Part 812.723(6) on its face is simple and direct and requires an answer to two questions. The first is whether as at 15 October 1990 the refusal of the permit would have caused hardship to an Australian citizen or permanent resident. The second is whether that hardship is of such a degree that it could properly be categorised as "extreme".

In Teo the tribunal has determined that "mere hardship" was not enough and that there needed to be a "very high degree" of hardship which would be experienced by the Australian parties. The Full Court (57 FCR at 204) expressed the view that the expression "very high degree" was not apt to describe the content of the adjective "extreme". The Court held that it was an error of law to require satisfaction to a "very high degree" (57 FCR at 205-206). The Court there said:

"The phrase 'a very high degree of hardship or prejudice' is a distraction from the legislative text, as well as involving a conflation of distinct concepts."

As Kitto J cautioned in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 633:

"... fallacy lurks in paraphrase"

"Extreme hardship" must, of course, be read in the context that what is caused by refusal of the permit must constitute a compassionate ground (Prasad v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 104; (1993) 30 ALD 856 at 858 per Jenkinson J which was applied in Teo 57 FCR at 204-205).

In Pavlavi v Minister for Immigration Local Government and Ethnic Affairs (unreported, 18 August 1992) Keely J, in relation to the expression "extreme hardship" said:

"The delegate's duty was to consider the case before him in the light of the words in the regulation. Those who draft policy should remember the danger that lies in using different words to those used in the regulation."

In Pavlavi the tribunal was found to have complicated the words of the regulation by importing a restriction from a Policy Control Instruction to the effect that the criterion of "extreme hardship" was designed to ensure that the concession to regularise the status of illegal entrants should be used sparingly. Keely J rejected the introduction and application of extraneous language. That approach was adopted by Heerey J in Ali (38 FCR at 150).

In Man Ki Kim v Minister for Immigration and Ethnic Affairs [1995] FCA 1088; (1995) 37 ALD 481, Foster J considered the application of the expression "extreme hardship". At 487 his Honour said:

"... I consider that the application of the word 'extreme' must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any particular individual. 'Trivial', 'minor', 'moderate' are adjectives which spring to mind as conveying such varying degrees. Clearly enough, 'extreme' hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, 'extreme hardship' means, in effect, a particular point on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description 'extreme'. Within that area there may be varying degrees of burden, one less than another, but each meriting the description...

The proper application of cl 812.723(6) requires a focussed consideration of the situation of the applicant on 15 October 1990. This involves an evaluation of the evidence relating to that date with a view to making careful findings of fact...." (Emphasis added)

Lindgren J in Abdul Ayub v Minister for Immigration and Ethnic Affairs (unreported, 13 December 1996) held there was no error in law where the tribunal characterised the hardship as emotional and then addressed the question whether it was "non extreme" in the sense that it might be expected to describe any "migration within a family". However, the focus of the tribunal in that case was on the correct touchstone, namely whether the hardship was extreme or non-extreme.

When considering the reasons of an administrative tribunal it is necessary to bear in mind what the High Court recently confirmed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, namely, that the reasons of such a tribunal are meant to inform and not to be scrutinised upon over zealous judicial review by seeking out inadequacies in the form of expression used. Mere infelicitous phrasing is not a ground of review in circumstances where, in substance, the correct test had been applied. The Court is not charged with a review on the merits.

For the Minister it was submitted in the present case that the tribunal had not erred in referring to and adopting a dictionary definition of the word "extreme" as an aid in interpreting the phrase "extreme hardship". This, it is said, is in accordance with statements in Choi v Minister for Immigration and Ethnic Affairs [1992] FCA 605; (1992) 29 ALD 826 (affirmed on appeal (1993) 33 ALD 335), and Ayub (supra). It was submitted that the expression "utmost" was approved as a synonym for "extreme" by the Full Court in Choi and by O'Connor J in Kakuleni v Minister for Immigration Local Government and Ethnic Affairs (1993) 35 ALD 399 at 401.

Moreover, it is submitted that there is no error in the selection by the tribunal in the present case of a "benchmark" such as "ordinary", "average" or "normal". By using such an expression in contrast to "extreme" content can be given to the notion of "extreme hardship".

Reasoning

The task of the tribunal was to decide whether the departure of Mr Kumar considered as at 15 October 1990 would have caused "extreme" hardship to an Australian citizen or permanent resident and whether that compassionate ground continued to exist.

What the tribunal did was to adopt one of the definitions in the Macquarie Dictionary and to substitute that definition for the language of Part 812. Although not perfectly clear it seems that it then applied that definition to its findings in this case.

The question formulated by the tribunal was in substance whether the tribunal is satisfied that:

"the effect of the Appellant's departure at 15 October 1990 until the present time, would cause extreme hardship that it (sic) is of the magnitude 'of a character or kind farthest removed from the ordinary or average '"?

This formulation involves a substantial and significant departure from the language of Part 812 and juxtaposes a number of notions not mentioned in the regulation. The difficulties with this approach are:

* the formulation is in terms of an absolute test. It calls for hardship of the "farthest" removal. This imposes a more stringent requirement than is called for by the notion of "extreme hardship", which in my view, covers a range of degrees of hardship. In this respect, I respectfully agree with the observations and approach of Foster J in Man Ki Kim (37 ALD at 487). His Honour there referred to an "area within which the burden may fall and which may properly merit the description 'extreme'".

* it incorrectly runs together concepts of degree and quality when it refers to the words "of the magnitude of a 'character'" of a kind farthest removed.

* it introduces the notion of "removal" from average hardship or ordinary hardship. This is not warranted by the language.

* the notion of "farthest removed" taken from the Macquarie Dictionary (which definition does not appear in the Shorter Oxford Dictionary) is perhaps more apposite to the use of "extreme" in the spatial sense of "extremity" or an outermost point rather than to the extent of "hardship".

The words "extreme hardship" call for no paraphrase or substitution.

If, on the authority of Teo (57 FCR at 204-205), it is erroneous to substitute the words "satisfaction to a very high degree" for "extreme", then a fortiori, the complex collocation of words formulated and applied by the tribunal in this matter was an error of law.

The paraphrasing exercise undertaken by the tribunal in relation to the relatively simple question of whether hardship can be classed as "extreme" serves to illustrate the problems inherent in the use of a dictionary definition in place of the statutory language.

Conclusion

The tribunal erred in law with respect to its interpretation and application of the test of "extreme hardship". The appeal should therefore be allowed with costs. The decision of the tribunal should be set aside and the matter remitted for decision in accordance with law.

I certify that this and

the preceding thirteen (13)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 8 May 1997

Counsel for Applicant: Mr R M Niall

Solicitors for Applicant: Wisewoulds

Counsel for Respondent: Mr P R D Gray

Solicitors for Respondent: Australian Government Solicitor

Date of Hearing (Melbourne): 9 April 1997

Date Judgment Delivered: 8 May 1997