Ben Hur v Minister for Immigration & Ethnic Affairs
[1994] FCA 575
•26 August 1994
BEN HUR AND OH SUN KWON v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G204 of 1994
FED No. 575/94
Number of pages - 10
Immigration
(1994) 35 ALD 425 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LINDGREN J
CATCHWORDS
Immigration - appeal from decision of the Immigration Review Tribunal on questions of law - December 1989 (temporary) entry permit - Regulation 131A of the Migration Regulations - whether "extreme hardship" or "irreparable prejudice" established - requirement that the compassionate ground existed continuously from 15 October 1990 - adequacy of the Tribunal's investigation.
Migration Act 1958
Migration Regulations r.131A
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418
HEARING
SYDNEY, 11 August 1994
#DATE 26:8:1994
Mr C.R. deRobillard of counsel instructed by Star Carver and Co, solicitors appeared for the Applicants.
Mr M.A. Robinson of counsel instructed by the Australian Government Solicitor appeared for the Respondent.
ORDER
1. The application be dismissed.
2. The applicants pay the respondent's costs.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
NATURE OF THESE PROCEEDINGS
LINDGREN J By a notice of appeal bearing date 11 April 1994 and fi led on that date, the first applicant ("Mr Hur") appealed from a decision of the Immigration Review Tribunal ("the Tribunal") constituted by Ms K Ross given on 3 March 1994 and notified to Mr Hur on 14 March 1994, by which the Tribunal affirmed a decision of a delegate of the respondent not to grant a December 1989 (temporary) entry permit to the second applicant. Section 138 of the Migration Act 1958 ("the Act") allows an appeal to the Court on a question of law from any decision of the Tribunal made on a review under Part. 3 of the Act, as was the Tribunal's decision. Mr Hur had been the applicant for review by the Tribunal, and so had standing to institute the present appeal: sub-s. 138 (2). The time for the institution of such an appeal is 28 days after the appellant is notified of the decision concerned. Mr Hur was notified of the Tribunal's decision in the present case on 14 March 1994, and the appeal was instituted on the 28th day after notification and was therefore within time.
Sub-s. 138 (4) of the Act provides that the Court is required to hear and determine the appeal and to make such order as it thinks appropriate because of its decision. Sub-s. 138 (5) provides that without limiting the generality of sub-s. (4), the orders that may be made by the Court on an appeal include an order affirming or setting aside the Tribunal's decision, and 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. In the present case the orders sought in the notice of appeal were as follows:
"(i) That the decision of the Tribunal be set aside;
(ii) That the matter be remitted to the Tribunal to be determined according to law and any directions of the Court;
(iii) That the respondent pay the applicant's costs of the proceedings."
On 13 May 1994 it was ordered that the second applicant ("Mr Kwon") be added as such.
BACKGROUND
4. Mr Kwon is a Korean national who has never married and has no dependants. He entered Australia on 15 July 1987 with a two-month visitor's visa. He has been granted no further entry permits or any work permit.
On 15 October 1990, the Minister announced a proposal to amend the Regulations to allow certain individuals who were in Australia illegally before 19 December 1989, to regularize their status. For that purpose, there was to be created a special entry permit. The criteria for the grant of it were to be based on the policy governing the grant of resident status which had applied before the amendments to the Migration Act 1958 made by the Migration Legislation Amendment Act 1989 which, relevantly, had commenced on 19 December 1989.
Section 33 of the Act allows for the provision in the Migration Regulations of conditions for the granting or refusal of entry permits. Regulation 131A sets out the criteria in relation to a December 1989 (temporary) entry permit. Although the Migration Regulations were repealed by Statutory Rules No.367 of 1992 and replaced by the Migration (1993) Regulations as from 1 February 1993, the savings provision in para 8.2 of those Rules stipulates that the Migration Regulations continue to apply to the review of a decision on an application for a visa which was lodged prior to the commencement of the new Regulations.
As a person who was illegally in Australia on or before 18 December 1989, Mr Kwon made an "Application to Remain Permanently in Australia under Concessions for Persons Illegally in Australia" dated 6 August 1991.
Relevantly for present purposes, one of the criteria which he had to satisfy was set out in sub-para.(d)(v) of sub-regulation 131 A(1). Sub-regulation 131 A(1) provided that the criteria specified therein were prescribed in relation to a "December 1989 (temporary) entry permit" and included criteria that the applicant was a prohibited non-citizen on or before 18 December 1989, had not left Australia after that date, applied in accordance with the Regulations before 19 December 1993 for the entry permit, and, inter alia, that
"(d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:
(i) ........ ....
(ii) ........ ....
(iii) ........ ....
(iv) ........ ....
(v) there (was) any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident; ..."
By his application dated 6 August 1991 to the Department of Immigra tion, Local Government and Ethnic Affairs ("the Department"), Mr Kwon identified Mr Hur as the Australian citizen who would be caused extreme hardship or irreparable prejudice by the refusal to grant the entry permit. In his letter accompanying his application, Mr Kwon said this:
"I began working for Mr Hur's restaurants in July, ...
If I were to return to Korea, I would like to think that Mr Hur would suffer greatly as he will have difficulty of running and managing his restaurants as smooth as I was in charage (sic) as he is venturing into a new import/export business. Also, he has recently been elected to be president of the Korean Sports Association which is affiliated with the Korean Government, he would not be able to devort (sic) his full attention to his business."
In terms of sub-paragraph (d) (v) of sub-regulation 131A(1), Mr Kwon was asserting that he relied upon a compassionate ground to the effect that a refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to Mr Hur in the latter's business. It is convenient to note here that the reference to restaurants is a reference to a take-away restaurant at Circular Quay, Sydney and the Nul-Bum Japanese-Korean restaurant in Macquarie Place, Sydney.
Mr Kwon's application was determined by a "Decision Record" dated 4 June 1993 refusing the grant of a December 1989 (temporary) entry permit, a December 1989 (permanent) entry permit and a resident return visa. The grounds of decision given were firstly, that it was required by sub-paragraph (d) (v) of sub-regulation 131A(1) in its application to the facts of the case as put to the Department that Mr Kwon should have been employed by Mr Hur on 15 October 1990 and that the decision-maker was not satisfied that he had been, and secondly, that although there was evidence that the two men had been friends as early as 15 October 1990 there was no evidence of such a relationship that at that time or at the time of the decision Mr Kwon's departure would have caused or would cause extreme hardship or irreparable prejudice to Mr Hur or to his wife.
By application dated 4 July 1993 (received by the Department on 5 July 1993) Mr Kwon applied for a review of the Department's decision. The Tribunal conducted an oral hearing on 27 January 1994 and subsequently received a letter dated 1 February 1994 from Soon Hur, Mr Hur's wife, in support of her husband's application for review. On 3 March 1994 the Tribunal gave its decision, affirming the Departmental decision. The primary reason given for its doing so was that there was "contradictory" evidence as to the exact nature of the relationship between Mr Kwon and Mr Hur, and as to the length of that relationship; that "the documentary evidence" pointed to a commencement of Mr Kwon's involvement in the management of Mr Hur's restaurant in July 1991 whereas there was oral evidence before the Tribunal that he had been purchasing produce for Mr Hur's business back in December 1990; and that on balance the Tribunal preferred the documentary evidence.
The Tribunal went on to say that if Mr Kwon had in fact begun to play a role in Mr Hur's restaurant business prior to 15 October 1990, it did not accept that as at that time Mr Kwon's absence from the business would have had such an adverse effect on Mr Hur that he would have suffered extreme hardship or irreparable prejudice as a result.
In summary, the Tribunal was not satisfied that Mr Kwon had been employed by Mr Hur as early as 15 October 1990, but even if he was, the Tribunal was not satisfied that Mr Kwon's involvement as at that time was such that his absence would have caused Mr Hur extreme hardship or irreparable prejudice.
On the appeal, the applicants abandoned the first question of law and the first ground of appeal, leaving the following questions of law and the following grounds of appeal:
"2. THE QUESTIONS OF LAW raised in the appeal are: The Tribunal erred in:
(a)
(b) being manifestly wrong in its consideration of the evidence;
(c) failure to provide the applicant procedural fairness."
"4. GROUNDS
(a)
(b) The Tribunal erred when it equated the number of hours worked by the Principal with the degree and significance of the Principal's contribution to the running of the business. The fact that the Principal worked five to six hours only per day does not necessarily mean that his contribution to the business was not essential
(c) The Tribunal failed to properly consider the importance of the relationship of trust between the Principal and the Applicant in a 'cash business' such as a restaurant.
(d) The Tribunal made adverse findings as to credit without providing the applicant with a proper opportunity to explain any purported discrepancy in the evidence as interpreted by the Tribunal.
(e) The Tribunal's finding that there was contradictory evidence as to the exact nature and length of the relationship between the Principal and the Applicant was manifestly wrong."
THE HEARING ON 11 AUGUST 1994
16. On the hearing of the appeal, Mr C.R. deRobillard of counsel appeared for the applicants and Mr M.A. Robinson of counsel appeared for the respondent. There was no fresh evidence on the hearing before me (a letter dated 19 February 1993 from the Department to Mr Kwon was included by consent as page 46A in the Appeal Book).
SUBMISSIONS
17. The applicants accepted that it was necessary that the compassionate grounds to one of the two effects referred to in sub-paragraph (d)(v) of sub-regulation 131A(1) must have existed on 15 October 1990 and must have existed continuously thereafter until the Minister decided to grant, or not to grant, the entry permit sought. They relied on "not so much extreme hardship but irreparable prejudice" to Mr Hur.
They submitted that the Tribunal had resolved the factual issues in the case in an impermissible way. They levelled the following criticisms at the Tribunal's decision:
(a) the Tribunal did not address the question whether there were grounds of "compassion" arising out of "irreparable prejudice";
(b) the facts before the Tribunal compelled it to look further in the interests of the first applicant than it had done;
(c) the Tribunal misapprehended the evidence;
(d) the Tribunal failed to find facts necessary to support its decision;
(e) in relation to the alternative ground, the Tribunal drew from the facts inferences which it was not entitled to draw.
The respondent submitted:
(a) that it was not enough that an explanation might be available as to why the "documentary evidence" pointed to the commencement of the second applicant's employment by the first applicant much later than October 1990, and that in order to sustain an appeal in this respect it was necessary for the applicants to lead evidence that there was indeed such an explanation;
(b) that by the time of, and during, the hearing before the Tribunal, the applicants were aware that an issue in the case was whether the compassionate ground to the effect that a refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to Mr Hur had existed on 15 October 1990 and existed continuously thereafter.
REASONS
20. The applicants did not suggest that there was not evidence before the Tribunal that Mr Kwon's employment by the first applicant commenced much later than 15 October 1990. Their submission was that there was also contradictory evidence that it had begun as early as that date, and that in all the circumstances the way in which the Tribunal resolved this conflict was not permissible at law. The evidence on which the Tribunal relied was in the form of writing signed by one or other of the applicants, whereas the other was oral evidence given at the hearing.
The documentary evidence before the Tribunal was as follows:
(a) In the application dated 6 August 1991 (which took the form of a statutory declaration), both applicants referred to Mr Kwon's employment as a manager by Mr Hur in the latter's "Nul-Bum Restaurant" as having been for the period from July 1991 - a period of, at most, one month down to the time of the making of the application.
(b) By a letter dated 5 August 1991 signed by Mr Hur on the letterhead of Korpacific Pty Ltd to the Department of Immigration which accompanied the application, Mr Hur said this: "Mr Kwon whom I have knwon (sic) personally for the past 3 years or so began working for me since July, and I have come to rely on him very much as I trust his efficiency and hard working capability."
The ordinary meaning of this statement is that although the personal knowledge referred to extended back for the preceding three years or so, the employment relationship which gave rise to the reliance and trust began in July 1991, that is to say, very shortly indeed prior to the making of the application to the Department, and that Mr Hur's reliance on Mr Kwon had developed since then.
(c) By a letter dated 4 August 1991 from Mr Kwon to the Department which was annexed to the application, he advised the Department as follows:
"I began working for Mr Hur's restaurants in July, and I have enjoyed immensely of this opportunity of working for such a nice person and a restaurant with a good reputation.
I had worked at various jobs such as in building industry and the engineering company, but I find this the most satisfying as I was able to show my managerial ability of running a business."
On its ordinary meaning, and particularly when read with the employment history in the application (which showed that Mr Kwon had been employed as a fitter in an engineering business in 1988, a tiler in a building business in 1989, and a fitter in the engineering business again in 1990), this was to be read as a statement that his employment by Mr Hur for the period from some date in July 1991 down to the writing of the letter (4 August 1991) was to be contrasted with his employment in previous years in Australia.
(d) The Department wrote a letter to Mr Kwon dated 19 February 1993 requesting a written statement from his nominator, Mr Hur, giving detailed information as to, inter alia, "Actual commencement date with the company". This expression may have left something to be desired in terms of clarity, but Mrs Hur, at least, understood it as referring to her husband's employment of Mr Kwon, as is shown by a letter in response to the Department dated 15 March 1993 signed by her as "nominator's spouse" which, relevantly, was as follows:
"We propose to employ the nominee as from the 1st. of April 1993."
This statement implies that Mr Kwon was not employed as at the date of the letter, 15 March 1993. Other references in the letter to the matter of Mr Kwon's employment by Mr Hur were also expressed in the future tense.
(e) Under cover of a letter dated 7 June 1993, the Department forwarded to Mr Kwon a copy of the Department's Record of Decision which was described in the letter as setting out "in full, the findings of fact and the reasons for the refusal of (the) application". The Record of Decision specified that the decision-maker was not satisfied that Mr Kwon was employed by Mr Hur on 15 October 1990. In particular, the Record of Decision mentioned the references by both applicants to July 1991 and Mrs Hur's reference to April 1993. The Record of Decision also mentioned that although there was evidence that Mr Hur had known Mr Kwon for three years, there was no evidence to indicate that they had been anything other than friends prior to July 1991.
The passages in the Record of Decision to which I have referred would have brought home to the mind of anyone able to read and understand ordinary English the issues on which the application had failed. Neither Mr Hur nor Mr Kwon was fluent in English: their various writings in English demonstrate this, and both were aided by an interpreter in the oral hearing before the Tribunal (see later).
(e) Annexed to the Application for Review dated 4 July 1993 of the Department's decision was a statement of reasons why Mr Hur wanted the Department's decision to be reviewed. This showed that Mr Hur understood that a reason for the refusal of the application was the recency, as the Department understood it to be, of Mr Kwon's employment by Mr Hur. The statement included the following: "I have known the nominee for many years socially and professionally and at the time that the restaurant Nul Bom was opened in July, 1990, I seriously considered him to be the manager of restaurant, but unfortunately, I had to discover that he was illegal to work. I then was put in a very difficult situation that I attempted to find a person employed as a manager. Despite of the attractive award for the job was advertised through local community papers, I was not able to find a right person, therefore, I and my wife had to assist each other in various duties which were all extremely hard for us to handle. And although it was pitiful that Mr Kwon was not able to assist me as a full-time employee, he did assisted me for the business from time to time as the business was at times short of professional hands. As I was confirmed of his capability in managing restaurants, we both agreed upon making an application to the Department in order to be legalised in August, 1991 when my restaurants were booming and about that time in late 1991, I began to plan a business in Vietnam which made me to travel from time to time for establishment there. When the original application was prepared, it was mentioned that the employment of the nominee was placed in July, 1991, but somehow there was assumed to be some kinds of misunderstanding in English words or gramatical (sic) mistakes which led to the wrong information. It was meant to be that he would be engaged with the full-time manager employee once the Department granted him with the permission for working.
I must admit that there were many occasions that he filled in my position as a manager to handle the duties while I was away in overseas
The actual full-time employment position for the manager has been in open since 1990 and it is yet to be filled in and in about the month of March, 1993 when he was asked to present further informations concerning the relationship with the nominator, I mentioned that the full-time position for a manager would be offered to him in April if the application was decided in favour of the nominee."
The meaning of the passage quoted is that, contrary to what he and Mr Kwon had stated in the original application, he had not engaged Mr Kwon as a full time employed manager even as early as July 1991 and would do so only once the application was granted, although there had been "many occasions" when Mr Kwon had "filled in" as a manager in place of Mr Hur himself when Mr Hur had been overseas.
Before the Tribunal on 27 January 1994 there was oral evidence from Mr Hur, that Mr Kwon had first begun to help him in business in around April or May, 1989 when Mr Hur was in Vietnam on business; that when Mr Hur was in Australia Mr Kwon's role was one of purchasing commodities for the restaurants and providing other assistance in the running of the business; that when Mr Hur was not in Australia, Mr Kwon spent 5 to 6 hours a day taking his place; that Mr Hur had been overseas in 1990-1991 for 3 to 4 months, in 1991-1992 for 4-5 months, and in 1992-1993 for 12-18 weeks; and that there were no records establishing when Mr Kwon began working for Mr Hur because he had understood that it was illegal for him to employ Mr Kwon other than on a part-time basis and that he had employed him on a part-time basis without keeping a record of it.
There was oral evidence from Mr Kwon that he had started to help Mr Hur in his business in 1990 although not on a full-time basis; that as at the time of the hearing before the Tribunal, Mr Kwon was working for Mr Hur "unofficially" for which he was supplied with meals in Mr Hur's restaurant and given other assistance; that the extent and nature of the work were 5 hours a day 6 days a week buying the vegetables for the restaurants; and that although there was much other work which he had the capacity to undertake for Mr Hur, he could not do it (because, by implication, of his illegal status).
In the course of the hearing, the Tribunal afforded ample opportunity to Mr Hur and to Mr Kwon to provide evidence as to precisely what employment Mr Kwon had had since coming to Australia in 1987, and more particularly, as to precisely what work he had undertaken for Mr Hur. It is true that it would have been possible to read some of the evidence as indicating that both Messrs Hur and Kwon had been and still were "holding back" on revealing the full extent of Mr Kwon's employment by Mr Hur because of Mr Kwon's illegal status. However, I do not think that it was incumbent on the Tribunal to go further than it did.
Mr Hur gave evidence that he opened his first restaurant (at Circular Quay) on 2 September 1982 and the second one (in Macquarie Place) on 3 or 4 September 1990. The Tribunal asked him how much time he had spent outside Australia since the second restaurant opened (AB 67M) and said (when both Mr Hur and Mr Kwon were in the hearing room),
"The tribunal is required to look at the period from 15 October 1990 when these laws came into existence, to the time of decision. Is there anything else?"
(AB 75P)
An opportunity was afforded to Mr Hur to submit further evidence in the form of a letter from his wife after the hearings. Such a letter, being dated 1 February 1994, was received and was before the Tribunal but added nothing on the question of the involvement of Mr Kwon as early as 15 October 1990 in Mr Hur's businesses.
In its Reasons for Decision the Tribunal said that the oral evidence had limited the scope of Mr Kwon's work to the purchase of produce and had extended the period in which he had been doing this back to December 1990, whereas the documentary evidence had pointed to his having been involved in management as well as in purchasing produce, but limited the period of that more extensive involvement to a time commencing in July 1991. The critical finding of the Tribunal on this part of the case was expressed in the following terms:
"On balance, the Tribunal considers the documentary evidence to be more credible and finds that Mr Kwon has had a significant role in management of the restaurant business but that his involvement with the business began in 1991."
In my opinion, on the evidence before the Tribunal, it was entitled to find the documentary evidence more credible and to make this finding of fact.
Counsel for the applicant referred to Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 at 432 as authority for the proposition that the Tribunal is bound not to obstruct the use of the Regulations. Counsel argued that by failing to draw to the Applicant's attention the evidentiary contradiction then accepting one set of facts in preference to the other, the Tribunal has "hindered" or "trapped" the Applicant. I do not think that the case cited can properly be applied so as to lead to the result contended for. Nor do I think that any other principle of law required the Tribunal to do more than what it did here.
The Tribunal proceeded to consider the case on the alternative basis that Mr Kwon had begun to play a role in Mr Hur's restaurant business prior to 15 October 1990. It noted that the evidence of both Mr Hur and Mr Kwon was that the early involvement of Mr Kwon was limited to 5 or 6 hours per day. The Tribunal said that whether that involvement was limited to the purchase of produce or extended to include managerial and other activities, it did not accept that the absence of Mr Kwon "at any time from 15 October 1990 would have had such an adverse effect on the Applicant that it could be said that he would suffer extreme hardship of (sic - or) irreparable prejudice as a result" (AB 81M). Again, I think that the Tribunal was entitled on the evidence before it, so to hold. On any view, Mr Kwon was not fulfilling a managerial role while Mr Hur was in Australia. The Tribunal was entitled not to be satisfied that the compassionate ground to the effect of "extreme hardship" or "irreparable prejudice" would have existed continuously from 15 October 1990 had Mr Kwon not been available to the business during the times when Mr Hur was overseas.
The Tribunal's ultimate conclusion was that it was not satisfied that Mr Hur would have suffered extreme hardship or irreparable prejudice if Mr Kwon had been required to leave Australia at any time throughout the period on and from October 1990. In my opinion the Tribunal was entitled to reach this conclusion in the light of the evidence before it. Indeed, it is difficult to see how the Tribunal could have been so satisfied on that evidence.
It would only be if there was an obligation on the Tribunal to go beyond the evidence before it that there might be scope for saying that its decision was vitiated. In my opinion, where, as in this case, there was no reason for the Tribunal to think that the applicant for review misunderstood the issues and where every opportunity was afforded to him to lead further evidence relating to the issues, there was no such obligation on the Tribunal.
CONCLUSIONS
34. For the foregoing reasons the Application will be dismissed and the applicants will be ordered to pay the respondent's costs.
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