Chaudhary v Minister for Immigration and Ethnic Affairs

[1994] FCA 158

ASHOK KUMAR CHAUDHARY v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG781 of 1993
FED No. 158/94
Number of pages - 4
Migration
(1994) 49 FCR 84
(1994) 33 ALD 437

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WILCOX, BURCHETT AND FOSTER JJ

CATCHWORDS

Migration - discretion to grant entry permit - Australia's interests - strong compassionate ground involving child with cerebral palsy and spastic quadriplegia - whether national interest could validly be equated with material interest in avoiding cost of care - whether, if application was rejected on strong compassionate ground, another ground need not be examined because the one had been satisfied although it had not led to grant of an entry permit.

Migration Act 1958, s. 6A(1)(d) and (e)

Ates v. Minister of State for Immigration and Ethnic Affairs (1983) 67 FLR 449

Fuduche v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418

Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (Burchett J, unreported, 25 November 1993)

Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177

HEARING

SYDNEY, 14 February 1994
#DATE 30:3:1994

Counsel for the Appellant: Mr G.T.W. Miller Q.C. with

Mr J. Young

Solicitors for the Appellant: Messrs Newman and Associates

Counsel for the Respondent: Mr J.J. Spigelman Q.C. with

Ms R.M. Henderson

Solicitor for the Respondent: Australian Government

Solicitor

ORDER

The Court orders that:

1. The appeal be allowed and the orders made at first instance be set aside.

2. In lieu of the orders made at first instance, it be ordered that the decision under review be set aside, and that the matter be remitted to the Minister to be determined by him or by a different delegate according to law.

3. The respondent pay the costs of the appellant, both of the appeal and at first instance.

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

JUDGE1

WILCOX, BURCHETT AND FOSTER JJ This is an appeal from the dismissal by a judge of an application for judicial review of a decision denying applications for permanent residence made by the appellant on behalf of himself, his wife and two children. The applications were made on 15 August 1988 and 10 May 1989. The grounds were "strong compassionate grounds" under s. 6A(1)(e) of the Migration Act 1958 and the occupational ground provided by s. 6A(1)(d).

1. So far as the former ground is concerned, the facts may be briefly stated. Eshna, the elder of the applicant's two children, who were born on 15 September 1982 and 29 December 1983 in Fiji, is a victim of cerebral palsy involving spastic quadriplegia and epilepsy. She is not toilet trained, and will probably never achieve toilet training; if she ever does, the devotion to that objective of years of expert assistance will be required. Her speech, the trial judge has noted, "is described as 'babble' with gesturing". She is apparently not yet able to feed herself independently, although improvement is looked for in this respect. She will never be able to live independently, or without supervision. Control of her epilepsy is maintained by daily administration of the anti-convulsant drug Tegretol, the level of which must be monitored, through the testing of blood samples, at six-monthly intervals. Eshna presently attends a special school for severely handicapped children where, if allowed to remain in Australia, she would continue until the age of eighteen. Occupational and speech therapy are provided at the school. Eshna is a profoundly handicapped child.

2. An issue in the appellant's application was the difference between the facilities available for Eshna's care and training in Fiji, and in Australia. It has been pointed out that the expertise to perform tests for monitoring the administration of Tegretol is lacking in Fiji, but blood samples can be sent to New Zealand. The Suva Crippled Children's School is not open to children who are not toilet trained, and in any case neither occupational therapy nor regular speech therapy is available there. The reasons set out in a recommendation which was adopted by the decision-maker contain the acknowledgment:
   

"It is clear that Australia's medical facilities and standard of medical care and other assistance is superior to those in Fiji. It is also apparent that her drug treatment in Australia is better monitored here and is possibly cheaper for the applicant here. Indeed, the administration and monitoring of the drug Tegretol is not as satisfactory in Fiji (it is monitored in NZ) as in Australia and there is a possibility of danger to Eshna's health in the monitoring process. The very fact of Eshna's disability and lifelong dependence on professional and possibly institutionalised care is a strong compassionate factor."

The comment may perhaps be allowed that graphic confirmation of the difference departure, in order to return to Fiji, would probably make is to be found in the fact that when Eshna came here, and was admitted to her special school, the progress made in the first six months was considered "amazing", and she is still progressing, although more slowly.

1. It was in this situation that the appellant relied on s. 6A(1)(e), as well as on s. 6A(1)(d), of the Migration Act. Section 6A(1) relevantly provides:
   

"6A(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

. . .

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

1. The adopted reasons accept that s. 6A(1)(e) was satisfied upon the facts. They then proceed to consider the exercise of the ultimate discretion, to grant or not to grant an entry permit. In doing so, they elaborate upon the cost of Eshna's care and treatment, which is said to be "difficult to assess", but to amount to "a significant drain on public resources". It is acknowledged the appellant has a "history of paying for aspects of his daughter's treatment in Australia". Reference is made to various social service provisions upon which Eshna might be or become a charge. The discussion is predicated upon the existence of "compassionate grounds" or "compassionate aspects". But it sets against them the economic cost of Eshna's presence in Australia, and does so in terms that identify Australia's economic interests with Australia's interests, which are then taken, almost inevitably, to be adverse to a grant of resident status.

2. The proposition that Australia's interests are adverse to the application, and are to be set against the factors which favour it, is both a recurring theme and the ultimate conclusion. Quite early in the reasoning, there is a mention of "the Australian community's interests", of which the comment is made that "these interests are strongly in favour of the family's return to Fiji". Later, it is said:
   

"Compassionate aspects must also be weighed against the cost to the community should Eshna be granted permanent residence in Australia. Such compassionate aspects relate to her physical and mental condition and it is difficult to weigh her condition and the compassion which it invokes, against the cost she represents to the Australian community."

Finally, the lines of decision converge in the concluding paragraph of the reasons, as follows:

"The present and future potential cost to the community should Eshna be allowed to remain permanently in Australia is not the sole factor to be considered when considering the discretion to grant an entry permit. As stated above there are compassionate aspects which must be considered and weighed. Nonetheless when all factors are taken into account and weighed, I believe that the interests of the Australian community outweigh all of the other factors. I recommend that an entry permit not be granted to the applicant and family."

1. The terms of this conclusion make it plain that the interests of the Australian community are taken to represent a wholly adverse factor outweighing the powerful compassionate ground which had been shown. That approach could only be adopted by equating Australia's interests with the avoidance of a material burden. The principal issue in the appeal is whether it was an error of law to see the national interest in such narrow terms; or, to put the same point in another way, whether to do so was to omit from consideration matters which could not be overlooked in a valid decision.

2. In Ates v. Minister of State for Immigration and Ethnic Affairs (1983) 67 FLR 449 at 455-456, Smithers J said:
   

"The law must be administered by the Minister in the best interests of Australia. So to do extends to Australia's interests broadly regarded and embraces, on occasion and according to circumstances, the taking of decisions by reference to a liberal and even compassionate outlook appropriate to a free and confident nation and conscious of its reputation as such."

Similarly, in Fuduche v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 at 426, "Australia's true interests" were taken to include recognition of "Australia's moral obligations, particularly to its own people, and Australia's national interest in behaving in a civilised manner." And in Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (Burchett J, unreported, 25 November 1993), the judgment includes the following:

"It has repeatedly been said that the discretions conferred by the Migration Act must be exercised in the interests of Australia. Those interests are not to be understood in a narrow sense. They include Australia's good name. They include that Australia should not be seen as a country which adopts a migration programme for its own purposes, but allows applicants, including applicants who have married Australian citizens, to become integrated into Australian society while it fails to deal definitively with their applications, and finally, after a lengthy period of procrastination, rejects them without taking into account, as a relevant consideration, the length of the delay or the factors that have led to it."

1. All of these passages give Australia's interests a far wider meaning, and we think a more realistic meaning, than is suggested by a mere concentration upon economics. It was only in the bitterness of war that Napoleon's celebrated jibe about "a nation of shopkeepers" was born. True national interest has a concern for Australia's name in the world, and may at times involve a measure of generosity. Certainly, it is in Australia's best interests to be seen as civilized and compassionate; as an advanced nation equipped with an advanced and available medical technology; and as willing to accept some of the responsibilities of a leading country in our area of the Pacific. Parliament's adoption of the "strong compassionate ground" is evidence that these issues were not absent from its intentions. Nor could an assessment of where Australia's interests lay in the present matter ignore the negative impact in our region of a decision to put material cost so far ahead of human values in relation to a gravely disabled child who has now been resident here for a number of years, and is likely not only to be denied whatever chances of progress she has, but also to be condemned to regression, if thrown back on the limited resources of Fiji.

2. The extent of the failure of the decision to take full account of human values, and of the significance of human, as distinct from material, endowments, is indicated by a separate ground of appeal. It is pointed out that the applicant had relied also on the ground in s. 6A(1)(d), under which his own value to the Australian community, as a skilled industrial arts teacher, was in issue. That ground the original decision-maker (whose decision had been brought before an Immigration Review Panel) "did not consider it necessary to turn my mind to", having accepted that s. 6A(1)(e) was satisfied; and the recommendation, taking the same approach, asserted it was "not necessary to consider" this aspect of the matter. But had s. 6A(1)(d) been looked at and found to be satisfied, that must have been a further reason to regard the presence of the applicant as a benefit to Australia. If it were otherwise, s. 6A(1)(d) would not have been inserted into the Act. The point is made in Pattanasri (supra):
   

"(I)t must have been relevant, ... to the exercise of discretion which was ultimately required of the delegate, to know whether the applicant was qualified to receive a grant of resident status on more than one basis."

1. The true position is that consideration of a second alleged ground will be unnecessary where an application is granted upon another ground. But where the decision-maker is not satisfied it should be granted on the one ground, considered alone, an alternative ground must be weighed in order to decide, if both be made out, whether the application should then succeed. Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177, which was cited, says nothing to the contrary of this.

2. On both grounds, this appeal must succeed. The decision under challenge must be set aside and the matter be remitted to the respondent for reconsideration by him or by a different delegate according to law.