Choi J v Minister for Immigration Local Government and Ethnic Affairs

[1992] FCA 990

Re: JONG-SANG CHOI and SI-KOON KIM
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS and ANOTHER
No. N G519 of 1992
FED No. 990
Number of pages - 11
Immigration
(1992) 29 ALD 826 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Immigration - compassionate ground for entry permit - whether "extreme hardship or "irreparable prejudice" to Australian citizen or resident - whether Minister's direction complied with - whether breach of natural justice.

Nadeem Ali v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 14 September 1992)

Re Drake and the Minister for Immigration (No.2) (1979) 2 ALD 634

Drake v Minister for Immigration Local Government and Ethnic Affairs (1979) 24 ALR 577

Green v Daniels (1977) 51 ALJR 463

Luu v Renevier (1989) 91 ALR 39

Minister for Health v Thompson (1985) 60 ALR 701

HEARING

SYDNEY

#DATE 8:12:1992

Counsel for the applicant: Mr M Smith

Solicitor for the applicant: Addisons

Counsel for the respondent: Miss Rhonda Henderson

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application will be dismissed with costs, including reserved costs.

JUDGE1

HEEREY J. This is an appeal under s.138 of the Migration Act 1958 (the Act) from a decision of the Immigration Review Tribunal constituted by Mr J Metledge.

1. The second applicant Si-Koon Kim (Mr Kim) is a citizen of the Republic of Korea, having been born in that country on 4 June 1950. He arrived in Australia on 9 April 1983, holding a temporary resident visa. An entry permit was granted to him valid to 31 August 1983. No further entry permit was granted to him and he consequently became an illegal entrant. On 28 March 1991 he lodged an application for a December 1989 (temporary) entry permit under reg.131A of the Migration Regulations. That regulation prescribes a number of criteria. The one relevant for present purposes is that on 15 October 1990 and continuously until the Minister decides to grant or not to grant the entry permit:
   

"there is 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." (Reg 131A(1)(d)(v))

1. The Australian citizen to whom it is said refusal to grant the entry permit would cause extreme hardship or irreparable prejudice is the first applicant Jong-Sang Choi (Mr Choi). Mr Choi and Mr Kim are equal shareholders in a company called Milagold Pty Limited. The company, amongst other things, sells deer velvet and makes herbal tea out of deer velvet. Deer velvet consists of fine shavings from the horns of deer which are processed to give a distinctive colour and texture. The shavings are considered a great delicacy by Koreans and are also used for medicinal purposes.

2. The case put to the Tribunal was in substance as follows. There are special skills involved in cutting and making deer velvet. Mr Kim acquired those skills in Korea. He has worked for two years with Mr Choi and is now an equal partner in the business. If Mr Kim were to leave Australia the business would decline by 40 per cent because the quality of the product would be affected. Also, Mr Choi would have to pay Mr Kim for his share of the business. Each of the two men has put $50,000 into the business.

3. The Tribunal dealt with the essence of the case put to it in these terms (Mr Choi being referred to as "the Applicant" and Mr Kim as "the Principal"):
   

"The claim of the Applicant is that if the Principal leaves Australia, it would not be possible to replace the Principal with a person of his skills and ability in the deer velvet business. The Tribunal does not accept this claim. There is no evidence that the Applicant tried to replace the Principal or to train someone adequately to take his place. There is evidence that an employee is currently being trained but he is not yet up to the required standards. The Applicant has not tested the labour market by advertising this position. Moreover, the evidence is that there is no formal course of training for this job and the skill is simply acquired on the job.

Regarding other hardship or prejudice, the evidence is that the Applicant has invested $50,000 in the company which is now operating profitably. If the Principal departs, the Applicant will purchase his share and then will retain 100% of the profits. There is no claim that the company will be wound up or liquidated. On the contrary, the evidence is that the company will continue to trade although at a reduced profit. This cannot amount to extreme hardship or irreparable prejudice to the Applicant although it may cause him some hardship and some prejudice."

1. The attacks made on the decision of the Tribunal and which were said to disclose errors of law were as follows.

Mis-construction of Criteria
7. In its reasons the Tribunal referred to a number of dictionary definitions of the words "hardship", "extreme" and "prejudice". It then referred to the policy direction dated 18 August 1991 of the Minister given under s.179 of the Act which also dealt with the expressions "extreme hardship" "irreparable prejudice". The Tribunal then said:

"Accordingly, to meet the criteria of reg.131A any hardship or prejudice suffered must be of the utmost nature and beyond repair."

1. It was said that in defining and explaining the criteria in this way the Tribunal erroneously combined into one test what were two requirements and imposed an erroneously excessive requirement in relation to the criteria of hardship.

2. I agree that reg.131A(1)(d)(v), establishes two distinct criteria and not one: see Nadeem Ali v Minister for Immigration Local Government and Ethnic Affairs (unreported, 14 September 1992) at 8. However, I do not think that the Tribunal treated the criteria in any other way. The sentence referred to, I think, has to be read as though it concluded with the word "respectively". The adjectival phrase "utmost nature" refers to "hardship" and the phrase "beyond repair" to "prejudice". As a matter of syntax it is like saying (to use an example which was mentioned in argument) "crops or stock harvested and slaughtered". If there remains any doubt about the matter, it is resolved by the passage already quoted where the Tribunal reviews the effect of the evidence and considers whether it establishes a case of "extreme hardship or irreparable prejudice to the applicant". Therefore I do not think this attack succeeds.

3. Nor do I think the use of the word "utmost" as a synonym for "extreme" shows any fatal misunderstanding of the concept that is contained in the regulation. One of the definitions of "extreme" given in the Macquarie Dictionary is "utmost or exceedingly great in degree". This seems to be a fair use of the ordinary English word "extreme" and one which is consistent with the context in which the phrase appears in the regulations.

Minister's Direction
11. There was criticism of the way in which the policy direction was used. It was said that the Tribunal erred by considering that it was obliged to apply the direction. Criticism was made of the Tribunal's reasons where it was said that the direction was "not strictly binding" but "the law is clear that ordinarily they [ie directions of this kind) should be followed unless there are cogent reasons to the contrary".

1. Reference was made to Re Drake and the Minister for Immigration (No.2) (1979) 2 ALD 634 at 645. However I do not think that the Tribunal misstated in any substantial way the law as it was formulated by Brennan J. in Drake (No.2). Perhaps more importantly though, the direction under consideration is not the type of general ministerial policy direction which was considered in Drake (No.2) but rather a direction which has its own statutory footing in s.179 of the Act.

2. As I said dealing with the same direction in Nadeem Ali at 9:
   

"Since the legislation itself authorised the formulation of the principles contained in the PCI, the decision-maker and the Tribunal were obliged as a matter of law to apply those principles: cf Octet Nominees Pty Ltd v Grimes (1986) 68 ALR 571 at 583 per Jenkinson J. (affirmed on appeal (1987) 73 ALR 107). The PCI stood on a different footing from general statements of policy as to the exercise of administrative decisions, like the one considered in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, which do not spring from express legislative authority."

1. If anything, the Tribunal in the present case seemed to put a construction on the direction which was more favourable to the applicant than the law strictly required.

2. Nor do I think that there was any use of the policy direction to, as counsel for the applicants contended, "substitute or modify the proper construction of the criteria prescribed in the regulations". Reference was made to Green v Daniels (1977) 51 ALJR 463 at 467 where Stephen J., speaking of the determination by the Director-General of Social Security of eligibility for unemployment benefits, said:
   

"The Director-General is not concerned, in his administration of s.107, with the carrying out of any policy. No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer. He must, no doubt, for the benefit of his delegates and in the interests of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction. But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant's compliance with the criteria will be vitiated."

1. In the presence case all the policy direction does is to discuss and expand upon the criteria of "extreme hardship" and "irreparable prejudice". It does not, to my mind, give any direction which is inconsistent with the meaning of those expressions as they are found in the regulation.

2. In an earlier part of the direction there is a reference to the power to grant permits as something to be "used sparingly". I held in Nadeem Ali that this was invalid and inconsistent with the regulations themselves. Keely J. in Palavi v The Minister for Immigration, Local Government and Ethnic Affairs (unreported, 18 August 1992) at 10, came to the same conclusion. However, that part of the policy direction played no part in the reasoning of the Tribunal in the present case. Indeed, generally I think there is something to be said for the submission of counsel for the respondent that the direction itself does not seem to have played any decisive role at all in the reasoning of the Tribunal. That is not to say, of course, that the Tribunal ignored the direction. It was obliged by s.179 to give effect to it. But I cannot see any specific instance in which the reasoning of the Tribunal applied the terms of the policy direction explicitly and certainly not in a way which disclosed an error of law.

3. There was another complaint that the policy direction was made on 18 August 1991 which was after the date of the application, 21 March 1991, with the result, it was said, that the Tribunal contrary to reg.34A(1) did not apply the prescribed criteria "as applicable" at the time of the application. However, I think the answer to this is that there was no change to the criteria effected by the issue of the policy directions nor, of course, could such change be validly made; see s.179(2).

Findings of Fact
19. It was said that the Tribunal erred in refusing to accept the claim that it would not be possible for Mr Choi to replace Mr Kim in the business and that this was unreasonable and in the face of contradicted evidence.

1. I do not accept this contention. At best it raises a factual argument and not a question of law. The Tribunal is not obliged by law to accept any evidence, whether uncontradicted or not. The Tribunal was entitled in reviewing the evidence to point as it did to the absence of evidence of attempts to replace Mr Kim or to train somebody in his place or to test the labour market by advertising the position. It was not suggested that there was evidence which contradicted the validity of the Tribunal's comment on these matters.

2. It was also said that the Tribunal had wrongly set up a criteria that no hardship could be suffered until the company was wound up or liquidated. Again, what happened was not the establishment of any criteria, but rather a comment made on the evidence which was valid in itself and logically bore on the question of whether the hardship that was suffered was extreme.

Natural Justice
22. It was argued that there was an unreasonable failure to investigate further concerns the Tribunal might have had about the absence of evidence showing an attempt to replace Mr Kim and allowing further evidence to be presented; see Luu v Renevier (1989) 91 ALR 39 at 50.

1. In this context I would refer to what was said by Beaumont J. in Minister for Health v Thompson (1985) 60 ALR 701 at 713:
   

"The submission of the respondent is tantamount to saying that the rules of natural justice insist that the committee should not proceed to a conclusion until it had first shown a draft of its report to the respondent and invited his comments thereon. In my opinion the applications of notions of fairness in the present circumstances do not require such an extreme step."

1. In any case the transcript shows that the Tribunal did bring home quite clearly to Mr Kim and Mr Choi, who were represented by a solicitor and who gave evidence through a Korean interpreter, that it was concerned about the central issue of the applicants' case, namely the alleged indispensability of Mr Kim's skills to the business.

2. This appeared on a number of occasions in the transcript, for example, in the following passage where the Tribunal said:
   

"All I'm trying to see is to determine what sort of harm you will suffer if this man leaves because on the deer cutting I'm not inclined to find in your favour, because it's not getting through to me that you can't train someone in this country to cut deer velvet. Sorry, but it's not coming through."

That was translated into Korean and the Tribunal then said:

"I am sure your solicitor will advise and explain that to you."

That was also translated. Again, in the course of some discussion with the solicitor, the Tribunal said:

"But there's no evidence of that, that's what I'm saying to you. Where's the advertising, where's the attempts by Mr Choi to get a replacement? There's nothing. Where has he tried to get a replacement and failed? Has he tried to train someone? Has he trained half a dozen people to no avail?"

And the solicitor responded:

"Sorry, it wasn't made clear."

1. The solicitor then went on to speak about an employee, some of whose handiwork was in evidence, who had been with the company for seven months learning his trade.

2. I think the hearing was conducted quite fairly, and the Tribunal in a clear and informal way, as it was required to do by the legislation, made very plain to the solicitor for Mr Choi and Mr Kim what the principal concern was, a concern which was not answered and which was subsequently reflected in the reasons the Tribunal gave.

3. The applicants did rely on a passage at the end of the transcript of the proceedings before the Tribunal in which the following exchange took place.
   

Solicitor: Which brings me to the next question: you were asking about company searches, tax returns, more acceptable evidence. Tribunal: Only to substantiate the claim.

Solicitor: More acceptable evidence. What would you like to do about that. Would you like to give, for him to be given time to. Tribunal: That would depend on whether I find for your client or not. Obviously if I'm not going to find for him even if you provide me with that evidence there's no need to put you to the ordeal as it were. You will be advised one way or another. In fact the only reason I'd need it if I was going to find for him. And that evidence may be in the file anyway. That sort of evidence, leading in the same sort of direction. There may be other evidence actually.

Solicitor: I seem to recall, in terms of the company, copies of returns filed at the Corporate Affairs Commission which would profile the errors.

Tribunal: And it's pretty hard to get up under this sub-section, you've probably gathered that already.

1. It was put that this passage showed a refusal to allow the applicants to bring more evidence on the indispensability issue. I think however, fairly read, it is plainly not concerned with that issue at all, but with the question of verification of the financial aspects of the case through company searches and tax returns.

2. The application will be dismissed with costs, including reserved costs.