Ayub, Abdul v Minister for Immigration & Ethnic Affairs
[1996] FCA 1093
•13 DECEMBER 1996
CATCHWORDS
IMMIGRATION - application for judicial review of decision of Immigration Review Tribunal - application for permanent entry permit on compassionate grounds - Migration (1993) Regulations cl 812.723 (6) - whether the applicant's father would suffer "extreme hardship or irreparable prejudice" if the applicant were refused permanent entry - whether emotional suffering may constitute "extreme hardship".
Migration Act 1958 s 476 (1) (e), (g)
Migration (1993) Regulations cl 812.723 (6)
ABDUL AYUB v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
No NG 226 of 1996
Lindgren J
Sydney
13 December 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 226 of 1996
GENERAL DIVISION )
BETWEEN:
ABDUL AYUB
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentGABRIEL FLEMING, CONSTITUTING THE IMMIGRATION REVIEW TRIBUNAL
Second Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:13 December 1996
MINUTE OF ORDERS
THE COURT ORDERS:
THAT the application be dismissed.
THAT the applicant pay the respondents' costs.
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 NG 226 of 1996
GENERAL DIVISION )
BETWEEN:
ABDUL AYUB
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentGABRIEL FLEMING, CONSTITUTING THE IMMIGRATION REVIEW TRIBUNAL
Second Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:13 December 1996
REASONS FOR JUDGMENT
INTRODUCTION
By his amended application filed on 28 November 1996, the applicant, Mr Abdul Ayub in exercise of the right given to him by sub-s 476 (1) of the Migration Act 1958 ("the Act"), applies to the Court for review of a decision of the Immigration Review Tribunal ("the IRT") made on 20 February 1996. The IRT's decision affirmed a decision of the delegate of the first respondent ("the Minister") made on 27 March 1995 by which Mr Abdul Ayub's application for the grant of a Class 812 (December 1989 (Permanent)) Entry Permit was refused.
The second respondent filed a Notice of Appearance, submitting to such order as the Court might make, save as to costs.
Mr Abdul Ayub was born on 18 April 1947 in Fiji. His father is Mr Abdul Wahab and his mother is Mrs Kariman Wahab. Mr Abdul Ayub's father was born on 16 October 1922 and his mother was born on 1 January 1927. Accordingly, at the date of the IRT's decision on 20 February 1996 Mr Abdul Ayub was aged 48 years, his father was aged 73 years, and his mother was aged 69 years. At the time of the hearing before the IRT, all three of them lived with Mrs Soofia Abbas, her husband and their three children. Mrs Soofia Abbas is Mr Abdul Ayub's sister.
Mr Abdul Ayub arrived in Australia on 1 October 1987 as a visitor. The temporary entry permit issued to him on his arrival was valid for six months until 1 April 1988. He was nominated for the Class 812 (December 1989 (Permanent)) Entry Permit by his father.
RELEVANT LEGISLATION
The applicable regulations are the Migration (1993) Regulations ("the Regulations"). These provide for classes of visas and entry permits and prescribe criteria which must be satisfied if an applicant is to be entitled to a visa or entry permit. The criteria for a Class 812 (December 1989 (Permanent)) Entry Permit are set out in Part 812 of Schedule 2 of the Regulations. In order to be entitled to an entry permit of that class, Mr Abdul Ayub had to satisfy certain criteria at the time of his application and certain criteria at the time of the decision on his application. So far as relevant, he was required to satisfy, at the time of his application, sub-clause 812.723 (5) or 812.723 (6). Sub-clause 812.723 (5) was, relevantly, as follows:
An applicant satisfies the requirements of this subclause if on 15 October 1990 and continuously since that date, the applicant was: ...
(c)a special need relative; ...
of a settled Australian citizen or of a settled Australian permanent resident." (emphasis supplied)
The expression "special need relative" is defined in the Regulations as follows:
"... special need relative", in relation to ... an Australian permanent resident usually resident in Australia, means a relative who is willing and able to provide substantial and continuing assistance to the ... resident if:
(a)the ... resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the ... resident personally, or a member of his or her family unit; and
(b)the assistance:
(i)cannot reasonably be obtained from any other relative of the ... resident, being a relative who is an Australian citizen or an Australian permanent resident; and
(ii)cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia;"
It has not been in dispute that Mr Abdul Ayub is a "relative"
in relation to his father or that his father is a "settled Australian permanent resident".
Sub-clause 812.723 (6) was, relevantly, as follows:
"(6)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) to (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 permanent resident; and
(b)the compassionate ground continues to exist." (emphasis supplied)
By clause 812.732, Mr Abdul Ayub was also required, at the time of the decision on his application, to continue at that time to satisfy, relevantly, sub-clause 812.723 (5) or (6). Accordingly, it was necessary that the "special need relative ground" or the "compassionate ground" have existed as at 15 October 1990, continuously from that date down to the date of the application, and continuously from the date of the application down to the date of the decision on it.
Mr Abdul Ayub's case was that he satisfied: (a) sub-clause 812.723 (5), in that on 15 October 1990 and continuously since that date, he had been a "special need relative" of his nominator, his father; and (b) sub-clause 812.723 (6), in that there was on 15 October 1990 and had been continuously since that date, a compassionate ground to the effect that refusal to grant the entry permit would have caused "extreme hardship" or "irreparable prejudice" to his nominator, his father.
Sub-section 476 (1) of the Act provides that application may be made for review by this Court of a decision of the IRT on any one or more of the grounds specified in the sub-section. The grounds relied upon by Mr Abdul Ayub are those referred to in paras 476 (1) (e) and (g) which are as follows:
"(e)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;
(f)........ ........ ........ ........ ........ .....;
(g)that there was no evidence or other material to justify the making of the decision."
Sub-section 476 (4) elaborates upon the ground of review referred to in para 476 (1) (g) as follows:
"(4)The ground specified in paragraph (1) (g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
Clearly, s 476 closely defines and confines the grounds on which review may be sought and granted.
The amended application identifies the grounds of Mr Abdul Ayub's application for review as follows:
"1.The Respondent did not take into proper consideration the evidence and facts presented before it as the decision involved an error of law under section 476 (1) (e) and (g) because the respondent failed to correctly interpret the words `extreme hardship or irreparable prejudice' as the applicant's departure would lead to extreme hardship and irreparable prejudice to Australian citizen due to strong ties between the family especially the applicant who does not have immediate relatives in Fiji.
2.The Respondent failed to fully comprehend the actual situation of the applicant's parents who are physically, psychologically and morally interdependent with the applicant and the Australian citizen will face extreme hardships as per their religion, society and cultural values.
3.The Respondent accepted the relationship between the applicant and his parents but concluded that his departure would render the parent extremely sad rather than prejudice them. The sadness which is accepted by the Respondent leads to extreme hardship and irreparable prejudice to Australian citizen due to the critical health of the parents which was accepted but not fully considered by the Respondent."
On the hearing, I granted Mr Abdul Ayub leave to have Mr Toufic Laba Sarkis sit at the bar table with him and present
submissions which Mr Abdul Ayub adopted.
THE REASONS FOR DECISION OF THE IRT
Prior to, and at the hearing before the IRT on 18 October 1995, Mr Abdul Ayub was represented by Corby Levingston, solicitors. They had written to the IRT on 5 April 1995 advising that their client's claim was that if he were obliged to leave Australia, his father would suffer "extreme hardship" or "irreparable prejudice". The reference was to the "compassionate ground" provided for in sub-clause 812.723 (6). On 11 October 1995, they wrote to the IRT a lengthy letter making out a case that Mr Abdul Ayub was a "special need relative" of Mr Abdul Wahab, that is to say, the ground provided for in sub-clause 812.723 (5). At the hearing on 18 October 1995, there must have been discussion of the compassionate ground provided for in sub-clause 812.723 (6), because on 11 December 1995, Corby Levingston wrote to the IRT, referring to the hearing which had occurred on 18 October and to a "direction made by the Member to adduce evidence of the emotional bond between the applicant, Abdul Ayub, (the son) and the nominating father Wahab Abdul [sic]". Among other things, the letter said this:
"I am instructed, in order to assist the Tribunal in determining the application before it, to make the following concession:
The health of the parents, although parlous, was not of sufficient gravity as at 15 October 1990 to successfully ground an application claiming extreme hardship or irreparable prejudice.
2.During the period between 15 October 1990 up to and including the date of the determination of the application the parents, Wahab Abdul [sic] and Kariman Wahab, travelled internationally to Mecca in Saudi Arabia and Fiji. Their respective journeys are logged on the international movements data base and are before the Tribunal."
Finally, the letter enclosed statutory declarations and made submissions directed to supporting a case of "emotional hardship". On 18 December 1995, Corby Levingston forwarded to the IRT further statutory declarations by members of Mr Abdul Ayub's family.
Accordingly, it seems clear that Mr Abdul Ayub had come to rely primarily on the compassionate ground provided for in sub-clause 812.723 (6), and, in particular, on a case that Mr Abdul Wahab would have been caused "extreme hardship" or "irreparable prejudice" on 15 October 1990 and continuously since that date, by the disruption of the emotional bond between him and his son, if his son had ceased to reside in Australia.
The IRT's Reasons for Decision begin by discussing "THE RELEVANT LAW". They discuss, by reference to decided cases and The Macquarie Dictionary, the meanings of the expressions "extreme hardship" and "irreparable prejudice", and refer to a Policy Direction dated 29 January 1993 issued by the Minister which had addressed those expressions.
The IRT next gives an account of the "EVIDENCE". Importantly, the IRT notes in this section, among other things, that Mr Abdul Wahab had been outside Australia on eight occasions between 17 August 1990 and 4 September 1994 and that the eight occasions included two trips to Mecca and travel to Fiji. Of course, Mr Abdul Ayub had not accompanied his father. The trips were as follows (approximate periods of time in square brackets have been added by me):
17 August 1990 - 16 November 1990 [from 11 October, approx 1 month];
18 December 1990 to 9 May 1991 [approx 5 months];
28 September 1991 - 6 December 1991 [approx 2 months];
19 February 1992 - 11 April 1992 [approx 2 months];
22 May 1992 - 1 July 1992 [approx 1 month];
3 December 1992 - 17 December 1992 [approx ½ month];
18 September 1993 - 15 October 1993 [approx 1 month];
10 August 1994 - 4 September 1994 [approx 1 month]."
The IRT observed that Mrs Kariman Wahab had also travelled outside Australia, although not as extensively as her husband.
The IRT gives an account of the evidence as to Mr Abdul Ayub's parents' state of health, the availability of their other children to care for them, and cultural and religious considerations relevant to the case. It is appropriate to note that, according to the evidence, Mr Abdul Ayub's sister, Mrs Soofia Abbas, works full-time to supplement the income of her husband so that they can support themselves, their three children, her two parents and her brother, and that her brother cares for their parents at home while Mrs Soofia Abbas is at work.
The "FINDINGS" section begins with a reference to the first of the two concessions which Mr Abdul Ayub had made in the letter dated 11 December 1995 from Corby Levingston noted earlier. This led the IRT to find that Mr Abdul Ayub was not a "special need relative" as defined. The reason given by the IRT was that "his parents did not, at that time [15 October 1990], have a `permanent or long term need for assistance'". On the hearing of the present application for review, Mr Abdul Ayub does not attack this conclusion.
The IRT proceeded to consider the "compassionate ground" provided for in sub-clause 812.723 (6). It accepted that Mr Abdul Ayub's parents "would be extremely sad if their son left Australia". However, it noted that they had three other children living in Sydney; that they were living with their daughter Mrs Soofia Abbas (as well as with Mr Abdul Ayub); and that Mrs Soofia Abbas was involved in looking after them, although to a less degree than Mr Abdul Ayub. The IRT noted that despite the fact that she has her own young family, Mrs Soofia Abbas accommodates her parents and shops and cooks for them.
The IRT noted that Mrs Soofia Abbas's two sisters were also in contact with the family, appeared to be caring and supportive, and lived within a short distance of their parents; that there was no evidence before the IRT that these forms of support would have been removed if Mr Abdul Ayub had left Australia in October 1990; and that this situation had continued, although the health of the parents had subsequently deteriorated, causing them to need more day-to-day assistance than they had done in 1990.
The IRT observed that from 1990 until the date of its decision (19 February 1996), Mr Abdul Ayub's parents had been separated from him on several occasions when they had travelled overseas, and that on some of those occasions the separation was for months. The IRT expressed the opinion that it was not unreasonable to expect that the contact which had been maintained between parents and son on those occasions through other means, would be maintained if Mr Abdul Ayub ceased to reside in Australia.
The IRT concluded that extreme hardship or irreparable prejudice would not have been or be suffered by Mr Abdul Ayub's parents if he had been refused permission to stay in Australia from October 1990 to date.
REASONING ON THE PRESENT APPLICATION FOR REVIEW
As noted earlier, Mr Abdul Ayub did not submit that any ground for relief had been made out in respect of the IRT's conclusion that he was not a "special need relative" as defined in the Regulations.
In relation to the "compassionate ground" provided for in sub-clause 812.723 (6), Mr Abdul Ayub first submits that the IRT erred in law by failing to recognise that the "extreme hardship" to which the sub-clause refers might be emotional. In support of this submission, he draws attention to the following passage in the IRT's Reasons for Decision:
"On the evidence before the Tribunal, the `hardship' which Mr Wahab [sic] would suffer if Mr Ayub [sic] left Australia would primarily be emotional. He has other family members around him who could assist him with other aspects of his life. There is no evidence of whether he may be able to enlist community services in relation to assistance with domestic chores and the Tribunal makes no finding in relation to this. While the Tribunal accepts the Nominator's and the entire family's sadness at the thought of Mr Ayub's [sic] departure, it finds that this sadness is commensurate with the emotions which are normally linked to the experience of migration within a family.
The Tribunal finds that neither Mr or Mrs Wahab [sic] would suffer `extreme hardship' if Mr Ayub's [sic] permission to stay in Australia had been refused from October 1990 until today."
In my view, this passage does not show that the IRT took the view that emotional hardship could not constitute "extreme hardship" for the purpose of sub-clause 812.723 (6). Rather, in the passage quoted, the IRT noted that the kind of hardship established by the evidence was "emotional" in character and then addressed the distinction between "extreme [emotional] hardship" which could satisfy the demand of sub-clause 812.723 (6) and "non-extreme" emotional hardship, such as might be expected to characterise any "migration within a family", which could not. I detect no error of law in this approach to the matter. Other passages in the Reasons make it clear that the IRT accepted that the disruption of a strong emotional bond could constitute extreme hardship or irreparable prejudice for the purposes of sub-clause 812.723 (6), as does the fact that the IRT had afforded to Mr Abdul Ayub the opportunity of furnishing further evidence after the hearing of the emotional bond between him and his father.
A second "error of law" which Mr Abdul Ayub propounds is that in view of the uncontradicted evidence from Mr Abdul Wahab and other members of the family which was before the IRT, the only conclusion at which the IRT was entitled to arrive was that Mr Abdul Wahab would have been caused either "extreme hardship" or "irreparable prejudice" or both, on and since 15 October 1990, if Mr Abdul Ayub had not been permitted to reside in Australia. The IRT accepted that Mr Abdul Wahab would be caused some "hardship" and "prejudice" by the departure of his son but did not accept that the hardship would have been "extreme" or that the prejudice would have been "irreparable". In support of these conclusions, the IRT referred to various matters revealed by the evidence. These included the "extensive travels since 1989" of Mr Abdul Ayub's parents; the support available to Mr Abdul Wahab from his daughters; the fact that the increasing problems of ill-health and age had created greater physical and emotional dependence of Mr Abdul Wahab on Mr Abdul Ayub over only recent times; and the facts that Mr Abdul Ayub does not regularly go to the Mosque with his father or even take him there, and that he is not involved in any religious or cultural activities with his father. The IRT concluded as follows:
"In the light of all the circumstances the Tribunal is of the view that this claim is not of such veracity that Mr Wahab and Mrs Wahab [sic] would suffer extreme hardship or irreparable prejudice because of it if the application were refused."
The IRT identified and assessed separately the "extreme hardship" and "irreparable prejudice" issues (cf Teo v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 194 at 205), and asked itself whether the hardship established by the evidence was "extreme", and whether the prejudice established by the evidence was "irreparable". On the hearing before me, Mr Abdul Ayub did not submit that the IRT erred in approaching the matter in this way, and in my opinion it did not.
The words "extreme" and "irreparable" make clear that, as a matter both of language and of substance, something more than "some hardship" and "temporary prejudice" must be shown. The notions of "extreme hardship" and "irreparable prejudice" pose questions of fact and degree, and involve elements of opinion and evaluation. No doubt, different minds may engage in those processes with different results on the same facts. The limited nature of the grounds on which this Court may review decisions of the IRT makes it clear that the legislature intended that the IRT's opinion and evaluation, rather than those of this Court, be given effect.
I do not think that the conclusion arrived at by the IRT is shown to be one at which it was not entitled to arrive. The IRT did not incorrectly interpret the applicable law or incorrectly apply the law to the facts as found by it, and there was evidence before it to justify the decision which it made.
One can, of course, only understand the sadness which Mr Abdul Wahab and Mrs Kariman Wahab would experience upon their son's leaving Australia and have sympathy for them in this respect, but neither of the grounds of review provided for in para 476 (1) (e) and (g) of the Act is made out.
CONCLUSION
The application must be dismissed with costs.
I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:13 December 1996
Heard: 2 December 1996
Place: Sydney
Decision: 13 December 1996
Appearances: The applicant appeared in person.
Mr R Beech-Jones of counsel instructed by the Australian Government Solicitor appeared for the first respondent.
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