COURTCWDS IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION BRANSON J HRNG Immigration Review Tribunal - Appeal - Review of decision - December 1989 (permanent) entry permit (Class 812) - whether "extreme hardship or irreparable prejudice" - whether citizens or residents other than the nominator to be considered - Policy direction - Natural Justice
Migration Act 1958 s 138 Migration (1993) Regulations R 2.27; Sch 2 cl 812.723 Collector of Customs v Pozzolanic Enterprises P/L (1993) 43 FCR 280 Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 Yong Min Jung v Minister for Immigration (Moore J, 16 November 1994, unreported) Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 33 ALD 441 JUDGE1 PERTH, 13 December 1994
#DATE 20:12:1994 Counsel for the Applicant : Mr P Tottle Solicitors for the Applicant : Clayton Utz First Respondent : No appearance Counsel for the Second Respondent : Mr M W Odes Solicitors for the Second Respondent : Australian Government Solicitor BRANSON These two matters were heard together. The first is an appeal brought pursuant to section 138(1) of the Migration Act 1958 ("the Act"). This section provides for an appeal to the Federal Court on a question of law from any decision of the Immigration Review Tribunal ("the Tribunal") made on a review under Part 3 of the Act. Such an appeal is heard in the original rather than the appellate jurisdiction of the court. In the second matter the applicant (who is the appellant in the first matter) applies for a review of the decision of the Tribunal whereby the Tribunal affirmed a decision made by a delegate of the Minister for Immigration and Ethnic Affairs not to grant a Class 812 (December 1989 (permanent)) entry permit to Mr Fu Sang Cheng ("the Principal"). The same decision of the Tribunal is involved in each matter.
2. The appellant/applicant ("Mrs Yim") is the mother of the Principal and the nominator of the Principal with respect to his application to remain permanently in Australia. 3. The Principal was born on 26 December 1949 and is a citizen of Hong Kong. He arrived in Australia on 10 February 1986 on a visitor's visa. The expiry date of the last entry permit granted to him was 10 August 1986. Thereafter the Principal has remained in Australia as an illegal immigrant. 4. The Principal applied for the grant of a Class 812 (December 1989 (permanent)) entry permit in Sydney on 16 November 1993. A decision refusing the application was made by the delegate of the Minister for Immigration and Ethnic Affairs on 26 April 1994. The application for review was made to the Tribunal in or about June 1994 by Mrs Yim. The Tribunal conducted a hearing on 3 August 1994 and on 22 August 1994 affirmed the primary decision not to grant the Principal the entry permit sought by him. 5. Section 33 of the Act provides for the making of regulations in relation to the granting and refusal of entry permits. Section 4 of the Act defines 'entry permit' to mean permission to enter or remain in Australia. For present purposes the relevant regulation is regulation 2.27(1) of the Migration (1993) Regulations ("the Regulations"). It provides as follows:- "Subject to Division 3 of Part 2 of the Act and to this Division, an applicant is entitled to be granted an entry permit of a particular class if the person satisfies the prescribed criteria in relation to that entry permit." 6. The various classes of entry permit and the prescribed criteria are found in Schedule 2 of the Regulations. 7. To obtain an entry permit of the type sought by the Principal it was necessary for him to satisfy certain criteria at the time of his application and also at the time of the decision. Relevantly for present purposes at each such time he was required to satisfy the requirements of clause 812.723 of Schedule 2. The requirements of this clause can be met by an applicant satisfying the requirements of subclause (2), (3), (4), (5) or (6) of the clause. 8. By his application the Principal placed reliance on subclauses (5) and (6). He contended that at all relevant times he was both a "remaining relative" and a "special need relative" of a settled Australian citizen or of a settled Australian permanent resident within the meaning of subclause (5). He further contended that he satisfied the requirements of subclause (6) which provides, so far as is here relevant, as follows:- "An applicant satisfies the requirements of this subclause if ..... : (a) there was on 15 October 1990, any compassionate ground (other than the grounds mentioned in subclauses (1)-(5)) 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." 9. For present purposes it is not necessary to give further consideration to the contention that the Principal satisfied the requirements of subclause (5). The only question of law said to arise on the appeal is- "whether the Tribunal performed its functions and exercised its powers under the Migration Act 1958 in accordance with the policy direction ("the Policy Direction") issued by the Second Respondent on 29 January 1993, pursuant to section 179 of the Migration Act 1958, relating to the existence or otherwise of compassionate grounds upon which entry permits into Australia might be granted." 10. The Policy Direction is considered further below. As to the application for judicial review, the grounds of the application are as follows:- "(a) There was a breach of the rules of natural justice as follows: (i) the Tribunal did not allow the Applicant the opportunity to adduce expert psychiatric evidence from a Cantonese speaking psychiatrist on the issue of the prejudice which a refusal to grant the entry permit would cause the Applicant and other members of her family; (ii) the Tribunal did not convene a preliminary meeting in accordance with paragraphs 8 and 9 of its published practice notes thereby depriving the Applicant and her advisers of the opportunity of discussing with the Tribunal the need to adduce expert psychiatric evidence of the nature described in sub-paragraph (a) and in particular whether the Tribunal would arrange for the collection of such evidence. (b) In conducting the review in the manner alleged in the preceding paragraph the Tribunal failed to have regard to obligations imposed upon it by section 123 of the Act to provide a mechanism of review which was fair and just. (c) The Tribunal failed to take into account a matter which it was bound to take into account namely whether a refusal to grant the entry permit would cause hardship or prejudice to (a) member of the Applicant's family other than the Applicant who were Australian citizens. (d) In failing to take into account the matter referred to in the preceding paragraph the Tribunal erred in law." 11. In its Reasons for Decision under the heading "FINDINGS" the Tribunal gave the following consideration to subclause 812.723(6) of Schedule 2 of the Regulations:- "'Extreme hardship or irreparable prejudice' The Tribunal has considered whether any compassionate grounds exist which would satisfy clause 812.723(6), and is satisfied on the material available that no such grounds exist. In considering this ground, the Tribunal has taken into account the policy direction issued by the Minister for Immigration, Local Government and Ethnic Affairs on 29 January 1993 pursuant to section 179 of the Act as it is obliged to: see the decision of the Federal Court in Ali's case. As has been pointed out in a number of Tribunal decisions (see, for example, Re Jackson, IRT Decision 38, 17 December 1990, and Re Kwang Soo Kim, IRT Decision 294, 4 September 1991) the test for what might constitute 'extreme hardship' or 'irreparable prejudice' as required by the relevant legislation is quite severe. Justice von Doussa has stated in Roser v Immigration Review Tribunal (1991) 25 ALD 443 that 'mere hardship or prejudice ..... is not enough. There must be a very high degree of hardship or prejudice'. The hardship or prejudice, moreover, must be experienced by the Australian party - not the Principal - and there must be a causal relationship between such hardship or prejudice and the departure from Australia of the non-Australian party (see Kwang Soo Kim as above). As on many occasions, given the severity of the legislative criteria discussed above, the Tribunal finds that the hardship or prejudice that would be experienced due to the love and affection they have for each other does not meet the requirements of clause 812.723(6). The Tribunal has already found that the emotional, financial and psychological assistance provided by the Principal to the Applicant can reasonably be obtained from other family members here in Australia. In light of this finding, any hardship which she may suffer cannot be described as 'extreme' and nor can any prejudice be described as 'irreparable'." 12. In considering the Tribunal's reasons I have sought not to be concerned with "looseness" of language nor with "unhappy phrasing of the Tribunal's thoughts" nor to construe such reasons "minutely and finely with an eye keenly attuned to the perception of error" (see Collector of Customs v Pozzolanic Enterprises P/L (1993) 43 FCR 280 at 287 per the Court). 13. It was put to the Tribunal that the Principal's twin brother was an Australian citizen who would suffer extreme hardship or irreparable prejudice if the Principal were refused an entry permit. Evidence was led before the Tribunal that the twins were very close and that over their 44 year lives they had only spent two years apart. This aspect of the Principal's case was not explicitly addressed by the Tribunal and no reasons were given for its rejection (see Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh and Anor (1989) 18 ALD 77 at 80 per the Court). I accept the submission made on behalf of Mrs Yim that in considering subclause 812.723(6) the Tribunal focussed exclusively on the hardship or prejudice that would be suffered by Mrs Yim should there be a refusal to grant the entry permit sought by the Principal. The relevance of this finding appears below. 14. Section 179 of the Act provides as follows:- "(1) A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing. (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given." 15. It was accepted before me, and it appears before the Tribunal, that a policy directive reissued by the Minister on 29 January 1993 constituted general directions given to relevant decision makers pursuant to section 179. This policy directive states in paragraph 5 under the heading "RELATIONSHIP TO AN AUSTRALIAN PARTY" as follows:- "An assessment of the hardship and/or prejudice that would be suffered by Australian citizens or residents should take into account the hardship that will be suffered by any Australian citizens or residents who are likely to be affected. It is expected that those affected would usually be in a familial or other close emotional relationship with the applicant. However, hardship and/or prejudice may arise from other relationships, for example, economic or commercial. Officers should keep in mind that the hardship and/or prejudice must be of sufficient degree or duration to be seen as being extreme or irreparable. As long as 'extreme hardship' or 'irreparable prejudice' is likely to occur, any Australian citizens or residents who are likely to be affected should not be excluded from consideration. Hardship or prejudice that is unlikely or fanciful should be excluded." (emphasis added) That is, the policy directive looks to any Australian citizens or residents who are likely to be affected, not just to the nominator. 16. Evidence was placed before the Tribunal as to the likely impact on other members of the Principal's family, particularly his identical twin brother, of a refusal to grant the entry permit sought by the Principal. It was argued on behalf of the second respondent that I should find that the Tribunal did give consideration to such evidence. As stated above I do not read the Tribunal's reasons this way. 17. It was put in the alternative on behalf of the second respondent that "it has been held that the Tribunal should have regard to the hardship and prejudice upon the (Nominator) only." Reference was made to the unreported decision of Moore J of 16 November 1994 in Yong Min Jung and Anor v Minister for Immigration. It was not expressly argued that the policy directive, which is quoted in part above, is in its terms inconsistent with the Act and regulations (see s 179(2)). However it seems to me that this must be the effect of this alternative argument. 18. Consideration of this argument requires further reference to Part 812 of Schedule 2 of the Regulations. Clause 812.722 of Schedule 2 prescribes as a criterion to be satisfied by an applicant at the time of application for an entry permit, that the applicant - "has been nominated by the relevant related person referred to in clause 812.723 (2), (3), (4), (5) or (6), as the case requires." 19. It is accepted that in this case Mrs Yim is the Principal's only nominator. I note that subclause 812.711(1) provides, so far as is here relevant, that the application for this class of entry permit "must be made in accordance with approved form 903." No complaint has been made of the form upon which the Principal's application was made: it purports to be a form issued by the Department of Immigration, Local Government and Ethnic Affairs and it bears the number 903. I assume that the form upon which the application was made is the approved form 903. Although such form allows for the application to be based upon one or more of the relevant criteria it makes allowance for only one nominator. 20. In Yong Min Yung and Anor v Minister for Immigration and Ethnic Affairs (supra) Moore J gave consideration to regulation 131A of the Migration Regulations (i.e. Statutory Rules 1989 No. 365 as amended), the predecessor regulation to Part 812 of Schedule 2 of the Regulations. As His Honour noted regulation 131A gave no statutory basis to the departmental form. He was therefore able to find that the applicant in that case had been informally nominated by his brother who had written a letter in support of the application, albeit without expressly purporting to be a nominator. Another party had in that case formally nominated the applicant. 21. I note that the current Migration Regulations which commenced on 1 September 1994 contain in regulation 1-13 a definition of "nominator". Subject to certain exceptions the term is defined to mean a person who puts forward on the relevant approved form the name of the applicant as an applicant for a visa of a particular class. There was no such definition included in the regulations considered by Moore J in Yung's Case or in the regulations here under consideration. 22. Under the 1993 regulations, which are the relevant regulations in this case, the departmental form No. 903 does have a statutory base. The form provides for only one nominator and includes a statutory declaration to be made by the nominator. It also provides for certain information to be provided by the nominator. 23. In my view the criterion set out in clause 812.722 of Schedule 2 of the Regulations is ambiguous. Prima facie it could require that the applicant be nominated by "the relevant related person referred to in clause 812.723 (2), (3), (4), (5) or (6), as the case requires" but that once nominated by such a person no further nominations are necessary. Alternatively it could require nomination by all relevant related persons referred to in the clause. On this latter interpretation real difficulties might arise if any such persons were young children or otherwise lacked the capacity sensibly to express sponsorship or support (see Hamilton and McMurray v Minister for Immigration and Ethnic Affairs - unreported decision of the Full Federal Court delivered 26 October, 1994) or, indeed, make a statutory declaration. It does not appear that either the Minister's delegate or the Tribunal interpreted the criterion in this latter way. First, neither of them adverted to this issue. Secondly had either of them taken the view that only hardship or prejudice to the nominator could be taken into account he or she would have dismissed evidence of hardship and prejudice to the Principal's twin brother as irrelevant. Neither of them expressly did so. 24. I accept the reasoning of Moore J in Yung's Case that "the relevant related person" referred to in clause 812.722 need not be a relative of the applicant. As His Honour pointed out there is no reason indicated by the context in which the word is found to depart from the ordinary meaning of the word "related" which is not restricted to familial relationships. 25. Clauses 812.722 and 812.723 of Schedule 2 of the Regulations are together intended to advance the interests of Australian citizens and Australian permanent residents by making circumstances of compassion to them criteria for the grant of entry permits to others. The Court has adopted a liberal approach to the construction of such migration regulations. In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 at 430 Burchett J said that such a regulation "should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains." 26. I consider that a liberal approach to the interpretation of clause 812.722 requires that it be construed in the first of the alternative ways set out above. That is, that it should be understood as requiring a nomination from a relevant related person but not as requiring that every relevant related person should separately nominate the applicant. Nor that for each criterion of eligibility referred to in subclause 812.723(1) there should be a nominator who is a relevant related person. It is not necessary here to consider a circumstance in which the only relevant related person might be a young child or otherwise of limited capacity. 27. I therefore find that the policy directive reissued by the Minister on 29 January 1993 comprises general policy directions validly given by the Minister pursuant to section 179 of the Act. The Tribunal rightly recorded in its reasons that it was obliged to exercise its powers in accordance with such directions. However, in my view, as stated above, I consider that the Tribunal did in fact exclude from consideration an Australian citizen who is likely to be affected - that is the Principal's twin brother Mr Wah Sang Cheng. Was it justified in doing so on the basis that, on the material before it, any hardship or prejudice to him was "unlikely or fanciful"? 28. The submission which accompanied the Principal's application for an entry permit, whilst not ideally expressed, made it clear that the application was based in part upon the Principal's relationship with his twin brother. The submission included the following paragraph:- "In addition, we believe there are significant compassionate grounds which would create extreme hardship or irreparable prejudice to this applicant in that he has an identical twin brother of the same age who is a resident (and citizen) of Australia. (Please see a photo of the brother also enclosed). He lives with the twin brother and his parents and has done so for the duration of his time in Australia, and asking him to depart Australia at this stage would create deep concern and psychological hardship to the complete family unit. He is extremely close to his brother because they are twins and is required to remain here to provide both him and the parents with emotional, financial and psychological assistance. Evidence of that relationship is included in the form of photographs and significant other evidentiary materials can be provided if so required." 29. Further a letter was provided to the Tribunal from Rev. Fr. Paschall Chang O.F.M. of the Chinese Catholic Pastoral Centre which included the statement - "Were (the Principal) be asked to leave Australia, this would have a devastating effect spiritually, psychologically and emotionally on the complete family unit and particularly on his mother, father and twin brother." 30. While the absence of evidence showing that the author of this letter was qualified to express the expert opinion contained in it significantly reduces its evidentiary weight, the provision of the letter to the Tribunal confirmed that Mrs Yim and the Principal regarded the relationship between the Principal and his twin as an important factor with respect to the application. 31. Further when the Tribunal asked the Principal's migration agent at the close of the Tribunal's questioning of the Principal whether there was "anything you wish to bring out?", the agent put to the Principal a series of questions concerning his relationship with his twin brother. The first such question was:- 'And do you have any special relationship with your twin brother - is there anything about the relationship that could be called "special"? ' 32. The Principal's answer to this and subsequent questions on the same topic emphasised his closeness to his twin brother from whom he has only been separated for two years of his life. 33. The transcript of the review hearing reveals that the Principal's twin brother was questioned only by the Tribunal and that the Principal's migration agent was not invited to supplement such questioning. He was not questioned as to his relationship with the Principal. 34. The Principal's migration agent was allowed the opportunity to make submissions to the Tribunal at the close of the evidence. He emphasised the closeness of the family unit and referred to supporting written evidence from a social worker. He went on:- "What we would like to obtain, if possible, is a full psychiatric assessment on the effect of any enforced split in the family as a result of this application. This, we believe, should be for Madam Yim and for Cheng Wah Sang - the twin brother - in particular. We've had considerable difficulty obtaining a Cantonese speaking psychiatrist in Sydney and we'd like the tribunal's guidance on that issue if you agree." 35. The response of the Tribunal to the above statement is recorded in the transcript of the hearing as follows:- "Well it's a bit late for that, I'm afraid. The person giving that psychiatric report would need to attend the Tribunal to give evidence." 36. In addition the Tribunal is recorded as saying:- "Well, you've just left your run a little bit too late. The taking of evidence is now completed. The witnesses, in accordance with normal practice, have left the room and been called as required. The psychiatrist would have the benefit of knowing all of the evidence that's been given." 37. It appears from the above passages from the transcript that the Tribunal did not give any real consideration to the question of whether or not an opportunity to obtain psychiatric evidence ought to have been allowed. 38. Counsel for the second respondent pointed out that such evidence ought to have been obtained earlier. However, it does not appear that the Tribunal sought to explore the nature of the difficulties which had been experienced in identifying an appropriate psychiatrist, or to balance those factors which would weigh against allowing further time for psychiatric evidence to be obtained (possibly from an English speaking psychiatrist assisted by a Cantonese/English interpreter) with such factors as would weigh in favour of allowing such time. It appears that the Tribunal considered the issue foreclosed by the fact that any psychiatrist subsequently instructed would be likely to learn of the evidence given to the Tribunal. I am unable to understand why this was regarded by the Tribunal as a relevant factor. In the ordinary course one would not expect an expert witness such as a psychiatrist to be included in an order excluding witnesses from a hearing room. 39. The Tribunal is required by section 123 of the Act in carrying out its functions under the Act, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. There is likely to be tension between these various requirements. Pursuit of the statutory objective does not justify a denial of natural justice to affected persons (Chen Zhen Zi and Ors v Minister for Immigration and Ethnic Affairs (1994) 33 ALD 441). 40. In arguing that the refusal of the Tribunal to entertain the possibility of allowing psychiatric evidence to be called at a later time amounted by itself in the circumstances to a denial of natural justice, counsel for Mrs Yim called in aid the fact that the Tribunal did not in this case convene a preliminary meeting in accordance with paragraphs 8 and 9 of its published practice notes. He argued that had such a meeting been convened the issue of further psychiatric evidence could have been canvassed there, and appropriate arrangements made to obtain the psychiatric evidence prior to the date of the actual hearing. 41. I do not accept the submission made on behalf of the second respondent that it was inappropriate for the Principal's migration agent to look to the Tribunal for possible guidance with respect to such psychiatric evidence. First the powers of the Tribunal extend to requiring its Secretary to arrange for the making of medical examinations that the Tribunal thinks necessary with respect to the review (s 132(1)(d) of the Act). Secondly the resources of the Tribunal itself might not unreasonably be thought likely to include knowledge of the existence within New South Wales of any psychiatrists with the language skills sought. In my view it was reasonable in the circumstances for efforts to be made to obtain psychiatric evidence from a Cantonese speaking psychiatrist and for the migration agent to seek advice in this regard from the Tribunal. 42. I am not satisfied that the published practice notes of The Immigration Review Tribunal or any correspondence between the Tribunal and the Principal, the Principal's migration agent or Mrs Yim, as the case may be, raised any legitimate expectation of a preliminary meeting at which matters of evidence could be canvassed with the Tribunal. However, the fact that there had been no such meeting was a factor which the Tribunal would have been entitled to weigh in the balance at the hearing in considering whether or not to allow time for such evidence to be obtained. It may be noted that by letter dated 28 July 1994 the Principal's migration agent wrote to the Tribunal in terms which included the following:- "Will you please note that we are currently trying to seek a psychiatric assessment of the mother's situation, however, are having difficulty obtaining Cantonese speaking psychiatrists. We wish to discuss this issue in particular at the hearing on the 3rd August." 43. No response was apparently received to this letter, nor was there a warning given at the commencement of the hearing that the calling of evidence on that day would preclude the later obtaining of psychiatric evidence. 44. In all of the circumstances I conclude that the Tribunal was not justified in excluding from consideration hardship or prejudice to the Principal's twin brother, Mr Wah Sang Cheng, which would be caused by a refusal to grant the entry permit sought by the Principal. 45. Further I conclude that the Tribunal failed to give proper consideration to the issue of whether the hearing before it should be adjourned to allow psychiatric evidence to be obtained as to the hardship or prejudice that would be suffered by Mrs Yim and Mr Wah Sang Cheng as a consequence of a refusal to grant the entry permit sought by the Principal. Such failure amounted in the circumstances to a denial of natural justice.