Waisake Tokaduadua v Minister for Immigration & Ethnic Affairs [1997] FCA 63 (14 February 1997)

CATCHWORDS

CITIZENSHIP AND MIGRATION - entry permit - compassionate grounds

ADMINISTRATIVE LAW - administrative appeals - whether error of law by tribunal

Migration Act 1958 (Cth) s 476

Migration Regulations 1989 (Cth) reg 131A(1)(d)(v)

Migration (1993) Regulations 1992 (Cth) subcl 812.723(6) of Schedule 2

Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24

Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194

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

Raj v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Davies J, 18 July 1996

WAISAKE TOKADUADUA v

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. NG250 of 1996

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 14 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG250 of 1996

GENERAL DIVISION )

BETWEEN: WAISAKE TOKADUADUA

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 14 FEBRUARY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The decision of the Immigration Review Tribunal is affirmed.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG250 of 1996

GENERAL DIVISION )

BETWEEN: WAISAKE TOKADUADUA

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 14 FEBRUARY 1997

REASONS FOR JUDGMENT

INTRODUCTION

This is an application pursuant to s476(1) of the Migration Act 1958 (Cth) ("the Act") for review by the Court of a decision of the Immigration Review Tribunal on the ground specified by s476(2)(e) of the Act, namely -

"that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."

On 22 November 1993 the applicant (also known as Isaac Haines) applied for a class 812 (December 1989 (permanent)) entry permit. The applicant's wife and his three children were included in the application. A delegate of the Minister for Immigration and Ethnic Affairs made a decision refusing the application on 4 July 1995. On 9 August 1995 the applicant sought review by the Immigration Review Tribunal ("the IRT") of the decision refusing his application. By a decision dated 28 February 1996 the IRT affirmed the decision not to grant a class 812 (December 1989 (permanent)) entry permit to the applicant. It is this decision of the IRT which is the subject of the present application for review.

The issue before the IRT was that of whether the applicant satisfied the requirements of subcl 812.723(6) of Schedule 2 of the Migration (1993) Regulations. Subclause 812.723(6) provides, so far as here relevant, as follows:

"(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 entry 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."

FACTUAL BACKGROUND

The following facts are taken principally from the reasons for decision of the IRT. I do not understand them to be in dispute.

The applicant was born in Fiji in 1963. He arrived in Australia on 10 June 1982 as the holder of a visitor visa. He was issued on arrival with a temporary entry permit which was valid until 10 September 1982. No extensions of this permit were granted and he became a prohibited non-citizen after that date.

The applicant's wife ("Mrs Haines"), also a citizen of Fiji, came to Australia in 1982 and became a prohibited non-citizen on the expiration of her entry permit. The applicant and Mrs Haines were married in Sydney on 14 October 1987. They have three children all born in Australia.

The applicant came to Australia from Fiji to join the family of his nominator Virisila Ranadi Haines ("Mrs Haines snr."). Mrs Haines snr. had cared for the applicant in Fiji when he was a child. From 1982 the relationship between Mrs Haines snr. and the applicant has been that of adoptive mother and son.

On 15 October 1990 Mrs Haines snr. was living with her husband (Mr Haines snr."), her mother ("Mrs Lacabuka"), her sister ("Mrs Scott") and her sister's husband ("Mr Scott"). At that time neither of the natural children of Mrs Haines snr. lived at home. One of them, James Haines, lived in Queensland from where he visited his parents every few years. The other, William Haines, lived in Sydney but apart from his parents. As he worked night shifts he was only able to see his parents on the weekends. Each of the above members of the extended family of Mrs Haines snr. was in October 1990 an Australian citizen or an Australian permanent resident.

The IRT found that at 15 October 1990 Mrs Haines snr. was taking medication for blood pressure but was working as a chef: Mr Haines snr. was experiencing trouble with his knees but was working in the building trade. It was not until January 1991 that osteoarthritis of the knees caused Mr Haines snr. to stop work. As at 15 October 1990 Mrs Scott was working as a casual cleaner and Mr Scott was taking medication for a heart condition.

The findings of the IRT as to the assistance which the applicant provided to Mrs and Mr Haines snr. and their household are set out in the following extract from the reasons for decision of the IRT (p. 15):

"The Tribunal finds that in October 1990 the Applicant was living with his wife and their two small children and was working at Brambles. The Applicant and his wife would visit the Nominator [Mrs Haines snr.] and her household a couple of times a week, the Applicant would assist with shopping, lawn mowing and other tasks around the house as well as driving the Nominator or her husband to medical appointments, the Applicant's wife would help with household tasks if the Nominator's blood pressure was up. They would also see each other on the weekends, driving the Nominator and her husband to church and sometimes having lunch together. The Applicant would also assist the Nominator by providing small sums of money, such as $20.00, $40.00 or in one case $150.000, if she was having trouble meeting household expenses."

THE DECISION OF THE IMMIGRATION REVIEW TRIBUNAL

On the central issue of whether there was on 15 October 1990 any compassionate ground for the grant to the applicant of an entry permit on the basis that refusal of such entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident, the IRT concluded as follows:

"The Tribunal finds that at 15 October 1990 the Nominator would not have suffered extreme hardship if the Applicant and his family had had to depart. She would not have suffered financial hardship as she and her husband were in employment and sums of money provided by the Applicant were very small. She would not have suffered physical hardship as she was able to care for herself and work and her son William was available to assist if necessary. The Tribunal finds that at 15 October 1990 the Nominator would not have suffered irreparable prejudice if the applicant had had to depart. The Tribunal understands that she would have been saddened by his departure but as she would remain living with her husband, her mother and her sister as well as having one son William able to visit at least on the weekends and another son, James, in Queensland and able to visit during his holidays, the Tribunal considers that this sadness would not have amounted to extreme hardship or irreparable prejudice sufficient to arouse compassion in others.

For similar reasons the Tribunal finds that Mr Henry Haines would not have suffered extreme hardship or irreparable prejudice if the Applicant had had to depart. The Tribunal understands that osteo- arthritis of the knees was causing him discomfort as at 15 October 1990 but he was still in employment and William would be able to assist with physical tasks in the home and driving etc. He would have remained living with his wife, with his son William visiting regularly and his son James visiting from Queensland during some holiday seasons.

The Tribunal finds that Mrs Scott and her husband would not have suffered extreme hardship or irreparable prejudice if the Applicant had departed at 15 October 1990. Mrs Scott was in casual employment and not being assisted financially by the Applicant. While her husband was not well they had had a daughter Priscilla who would have been able to assist and comfort them and in addition they were living with the Nominator and her husband.

The Tribunal finds that Ms Lacabuka, the Nominator's mother, would not have suffered extreme hardship or irreparable prejudice if the Applicant had departed at 15 October 1990. There is no evidence before the Tribunal to suggest that Ms Lacabuka's physical or emotional well being would have been affected adversely by the Applicant's departure.

The Tribunal finds that Mr William Haines would not have suffered extreme hardship if the Applicant had departed at 15 October 1990. Mr Haines was employed and living independently. Mr Haines would have had to find more time to assist his parents, however the Tribunal does not consider that working night shift and sometimes doing a double shift, would have prevented him providing his parents with the level of assistance they required or that providing such assistance would have caused him great inconvenience. The Tribunal finds that Mr William Haines would not have suffered irreparable prejudice if the Applicant had departed at 15 October 1990. While it could be expected that Mr Haines would feel sad at the departure of the Applicant whom he regarded as a brother, such emotional hardship does not amount to extreme hardship or irreparable prejudice. His parents and brother James would have remained in Australia.

The Tribunal finds that the Applicant is unable to satisfy 812.723(b) [sic] and is therefore unable to satisfy the requirements for a Class 812 (December 1989 (permanent) entry permit)."

CONTENTIONS OF THE APPLICANT

The principal contention made on behalf of the applicant was that the approach of the IRT to the issue of whether a "compassionate ground" within the meaning of subcl 812.723(6) existed as at 15 October 1990 involved an error of law. In particular it was submitted that -

"(a) The Tribunal failed to consider or properly consider that as at 15 October 1990 the Applicant's adoptive father suffered from 'severe hypertension/complicated by Cerebellar Dysfunction and is on maximum therapy' ... which conditions are long-term progressive illnesses, and would suffer extreme hardship or irreparable prejudice if the Applicant and his family were forced to leave Australia;

(b) The Tribunal failed to consider or properly consider that as at 15 October 1990 the applicant's adoptive mother suffered hypertension ... - a medical condition with her blood pressure - which condition was a long-term progressive illness, that the applicant would assist with shopping, lawn mowing and other tasks and provide financial support to the Australian citizen who would suffer extreme hardship or irreparable prejudice if the applicant and his family were made to leave Australia, ..."

Paragraph (a) of the above submission places reliance on a medical certificate dated 17 January 1996 provided by Dr Kam P. Young. The certificate in full reads as follows:

"This is to certify that I am attending Mr Henry Haines, Disability Pensioner. Osteoarthritis - for the past 7 yrs. In addition he suffers from severe hypertension/complicated by Cerebellar Dysfunction and is on maximum therapy - Gopten 4mg daily, Natrilix. In view of his medical condition and especially the poor mobility and poor co-ordination he is in constant need of supervision especially relatives support. At present Isaac Haines in [sic] providing this care and this is a support letter."

Paragraph (b) of the above submission apparently places reliance on the following passage from the evidence of Mrs Haines snr. before the IRT:

"How is your own health? --- Not 100 per cent.

Do you want to tell me a bit about that --- I had a history of blood pressure, high blood pressure, unfortunately my doctor was a Malaysian doctor and he is not here anymore and then I went to Fiji what's that in 1990, in Fiji we have this Fiji medicine so I took some, and it helps me a little bit.

And are you still getting treated for the blood pressure? --- Not for a while yet."

On behalf of the applicant reliance was placed on certain passages from the judgment of Hill J in Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24 at 28 in which his Honour gives consideration to reg 131A(1)(d)(v) of the Migration Regulations 1989 (Cth). As his Honour there points out, the wording of reg 131A(1)(d)(v) is not identical to that in subcl 812.723 of the Migration (1993) Regulations 1992 (Cth). Regulation 131A(1)(d)(v), as his Honour held, required consideration of whether, as at 15 October 1990, it was more probable than not that the refusal would, in the future, bring about extreme hardship or irreparable prejudice to an Australian citizen of an Australian permanent resident. It was worded in terms of a refusal that "would cause extreme hardship or irreparable prejudice ...". By contrast subcl 812.723(6) is worded in terms of a refusal that "would have caused extreme hardship or irreparable prejudice ...". It, in my view, does not invite a finding as to what the future would bring, but rather a finding as to what would have been the effect in October 1990 of a hypothetical refusal then of the entry permit sought.

A finding as to what would have been the effect in October 1990 of a hypothetical refusal then of an entry permit may involve some consideration of future matters. For example, in circumstances in which an Australian citizen was suffering early symptoms of a serious progressive illness, it would be open to a tribunal of fact to find that such citizen would have been caused hardship in the nature of alarm and anxiety by learning that he or she was to lose his or her only likely future care provider. It would be for the tribunal to determine whether such hardship was appropriate to be characterized as "extreme". The ultimate issue under subcl 812.723(b) remains, however, that of whether a refusal would have caused extreme hardship in October 1990.

APPLICATION OF SUBCLAUSE 812.723(6)

There is, in my view, no reason to conclude that the expressions "extreme hardship" and "irreparable prejudice" are used in subcl 812.723(6) with different meanings than those which the authorities have held them to have in reg 131A. The Full Court of this Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 204 said of the two expressions as follows:

"We agree with the way in which the matter was put by Heerey J in Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144 at 148:

'I think "irreparable" is used in reg 131A in the ordinary meaning of "not reparable, incapable of being rectified, remedial or made good" (Macquarie Dictionary). Words in statutes are presumed to have some function to fill: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414. The Tribunal failed to consider as a separate issue requiring its attention, whether there was prejudice which was irreparable. Thus the Tribunal said (at p 15):

"One of the questions for the Tribunal in this matter is to decide whether in the circumstances of this case the 'hardship' or 'prejudice" that would be caused to Nadeem is of sufficient degree or extent to come within the qualifying words 'extreme' or 'irreparable'.

This seems to involve a lumping together of the two concepts of hardship and prejudice. Not only are prejudice and hardship two distinct criteria, but inquiry as to the degree or extent of prejudice by no means necessarily poses the question whether that prejudice can be remedied or rectified. There may be great prejudice which is reparable and small prejudice which is not.'

Of course, each expression 'extreme hardship' and 'irreparable prejudice' is to be considered in the light of the requirement that what is caused by the refusal of the permit should constitute a 'compassionate ground'."

The Full Court went on to express approval of a passage in the judgment of Jenkinson J in Prasad v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 104; (1993) 30 ALD 856 at 858 where his Honour spoke of the requirement of reg 131A -

"that the postulated hardship or prejudice be of such a degree as to excite compassion, in the sense of that word which is given second in The Oxford English Dictionary (2nd ed):

'the feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour'."

The same requirement is to be fund in subcl 812.723(6) and, in my view, it bears in subcl 812.723(6) the same meaning as it bore in reg 131A.

CONCLUSIONS

Having regard to the evidence before the IRT, I do not consider that either the reasons for decision of the IRT or the decision at which it arrived indicate any express or implied incorrect interpretation of the applicable law or any incorrect application of the law to the facts as found by the IRT.

In particular I do not accept the submission made on behalf of the applicant that in assessing whether there was in October 1990 a ground such as to excite compassion in others for the grant to the applicant of an entry permit to the effect that refusal to grant such a permit would have caused irreparable prejudice to Mr and Mrs Haines snr., the IRT made an error of law in not looking to the medical and lay evidence of the actual medical history of Mr and Mrs Haines snr. since October 1990. In assessing whether there was such a ground in October 1990 it was, in my view, appropriate for the Tribunal to consider only such material as was, or perhaps could have been, known in October 1990. Such material could include medical prognoses, but prognoses are different from subsequent medical history.

The submissions made on behalf of the applicant significantly overstate the effect of the evidence before the IRT as to the respective medical conditions of Mrs and Mr Haines snr. as at October 1990. The findings of the IRT as to their respective medical conditions are set out above and have not been challenged. No incorrect application of the law to the facts as so found has been demonstrated.

As to the submission that the role of the IRT was an inquisitorial one such that it was obliged to look at possibilities and investigate issues of concern, it is sufficient for me to refer to Raj v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Davies J, 18 July 1996) in which Davies J made it clear that the IRT is under no duty to go out and make inquiries of its own, and, indeed, for it to do so "would be quite inconsistent with the general principles of procedural fairness which are applied in this country".

The decision of the IRT is affirmed.

I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of the Honourable Justice Branson.

Associate:

Date:

Counsel for the applicant: Mr M.P. Newman

Solicitors for the applicant: Newman & Associates

Counsel for the respondent: Mr R. Beech-Jones

Solicitor for the respondent: Australian Government

Solicitor

Hearing day: 10 December 1996