Choi v Minister for Immigration Local Government and Ethnic Affairs

[1993] FCA 564

JONG-SANG CHOI and SI-KOON KIM v. MINISTER FOR IMMIGRATION LOCAL GOVERNMENT
AND ETHNIC AFFAIRS and MR J METLEDGE (CONSTITUTING THE IMMIGRATION REVIEW
TRIBUNAL)
No. G996 of 1992
FED No. 564
Number of pages - 2
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), O'Connor(1) and Whitlam(1) JJ

CATCHWORDS

Immigration - compassionate ground for entry permit - extreme hardship or irreparable prejudice - whether direction by Minister inconsistent with regulation.

Migration Act 1958, s 179

Migration Regulations 1989, reg 131A(1)(d)(v)

Policy Control Instruction 1787

Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144

Palavi v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Keely J, 18 August 1992)

HEARING

SYDNEY, 21 May 1993

#DATE 20:8:1993

Counsel for the appellants: Mr M. Smith and Ms Fehring

Solicitor for the appellants: Addisons

Counsel for the respondents: Mr Paul Roberts

Solicitor for the respondents: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the costs of the respondents.

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

JUDGE1

KEELY, O'CONNOR AND WHITLAM JJ This is an appeal from the judgment of a single Judge of the Court (Heerey J), delivered on 18 December 1992, which dismissed an appeal under section 138 of the Migration Act from a decision of the Immigration Review Tribunal ("the Tribunal").

1. The main submission advanced by the appellants' counsel was expressed compendiously in their summary of argument as being that the Tribunal's decision was tainted by "the invalid Direction". Those words referred to paragraph 2 of a policy statement ("paragraph 2") dated 18 August 1991 by the then Minister. Paragraph 2, and the passage immediately preceding it, were in the following terms:
   

" The following policy guidelines are provided for decision-makers on the use of the criterion relating to applicants who were illegally in Australia on or before 18 December 1989. Regulation 131A(1)(d)(v) prescribes the following criterion for the grant of a December 1989 (temporary) 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 '; 2 It should be noted that the qualified wording of the criterion (ie 'extreme' hardship and 'irreparable' prejudice) is designed to ensure that this concession (to regularise the status of illegal entrants) be used sparingly. "

1. The appellants' counsel submitted that paragraph 2 was an invalid part of a Ministerial direction. Counsel for the respondent Minister drew attention to the introductory words in paragraph 2, namely, "It should be noted that . . ." and contrasted them with words, such as "should take into account" and "should have regard to", appearing in other paragraphs of the policy statement. We accept his submission that paragraph 2, construed in its context, was not a policy statement that the power of the Departmental decision makers was to "be used sparingly" in deciding whether there was "any other compassionate ground for the grant of an entry permit" (sub-regulation 131A(1)(d)(v)) ("the sub-regulation"). We accept his submission that paragraph 2, read in its context, was a statement that, by reason of the words "cause extreme hardship or irreparable prejudice", the criterion in the sub-regulation was likely to be found to exist "only in a few cases because it is so hard to establish the facts that are required".

2. The Minister's counsel accepted that paragraph 2 could be misread and that if it were so construed by the Tribunal it would have had regard to an irrelevant consideration. The appellant's counsel relied upon the decisions in Ali v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 150-151 and Palavi v. The Minister (unreported, 18 August 1992, Keely J) which was cited in Ali. However, those two decisions must now be read in the light of the opinion which we have expressed in these reasons as to the correct construction of paragraph 2 of the policy statement.

3. We accept the submission of counsel for the Minister that paragraph 2 should not be so construed. We also accept his submission that the Tribunal, in reaching its decision did not act upon a wrong construction of paragraph 2 and accordingly its decision was not tainted by an invalid direction as contended by the appellants' counsel.

4. We are unable to uphold the alternative (ground 10) submission of the appellants' counsel that "the Tribunal erred in law by failing to give adequate reasons as to its construction of (the sub-regulation) and its consideration of the Ministerial Direction".

5. For reasons which will be briefly stated, the remaining grounds of appeal can not be upheld.

6. Under grounds 2 and 3 the appellants' counsel submitted that his Honour should have held that the Tribunal erred in law by treating the words "extreme hardship or irreparable prejudice" appearing in the sub-regulation, as prescribing a single test and not distinct alternatives. In our opinion his Honour correctly held that the Tribunal had not treated the sub-regulation as prescribing a single test. We also reject the alternative submissions that the Tribunal's "conclusion was at least ambiguous as to whether the Tribunal thought there were two tests for consideration" and that "its decision should be set aside for the unsatisfactory nature of the reasons of the Tribunal".

7. Under ground 4 it was contended that his Honour should have held that the Tribunal erred in deciding that the word "extreme" in the sub-regulation meant "utmost" rather than "of a high degree". We agree with his Honour's view that the Tribunal did not misunderstand the concept of the words "extreme hardship" appearing in the sub-regulation.

8. Ground 11 was that his Honour "erred in holding that the Tribunal did not deny procedural fairness by failing to allow the appellants an opportunity to provide further material relevant to the issue of whether it would be possible (for Mr Choi) to replace Mr Kim". Having considered the submissions advanced by the appellants' counsel and examined the transcript of the proceedings before the Tribunal, we are satisfied that there was no such failure to accord procedural fairness. We agree with his Honour that, on a fair reading of the transcript, including the particular passages upon which the appellants sought to rely, the Tribunal was referring to the possibility of further evidence on "the question of verification of the financial aspects of the case through company searches and tax returns"; it was not referring to the applicant's claim before the Tribunal that it would not be possible to replace Mr Kim with a person of his skills and ability in the deer velvet industry.

9. The appeal will be dismissed with costs.