Fuduche v Minister for Immigration, Local Government and Ethnic Affairs
[1993] FCA 736
•18 OCTOBER 1993
PIERRE HENRI FUDUCHE v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND
ETHNIC AFFAIRS
No. NG243 of 1993
FED No. 736
Number of pages - 20
Administrative Law - Immigration Law
(1993) 117 ALR 418
(1993) 45 FCR 515
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT J
CATCHWORDS
Administrative Law - immigration - Wednesbury unreasonableness - position of lay decision-maker faced with medical evidence of a responsible medical practitioner - irrationality of substituting lay theories for expert opinion - discussion of error in interpretation of regulation which may have led to unreasonable conclusion - effect of finding unsupported by evidence.
Immigration Law - discussion of meaning of definition of "special need relative" - discussion of "compassionate ground ... to the effect that refusal ... would have caused extreme hardship or irreparable prejudice to an Australian citizen" - broad and generous construction of beneficial provisions in interests of citizens to be benefited and Australia's good name - Migration Act should not be construed as authorizing a decision upon an irrational basis - distinction between "extreme hardship" and "irreparable prejudice" - need for right of independent appeal - right of Australian citizens to a genuine and fair application of provisions of the law made for their benefit.
Administrative Decisions (Judicial Review) Act 1977, ss. 5(2)(g) and 6(2)(g)
Migration (1993) Regulations, reg. 1.3 and para. 812.723
Bushell v. Repatriation Commission (1992) 175 CLR 408
Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Luu v. Renevier (1989) 91 ALR 39
Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 ALR 666
Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321
HEARING
SYDNEY, 6 October 1993
#DATE 18:10:1993
Counsel for the Applicant: Mr G. Drake
Solicitors for the Applicant: Messrs Adrian Joel and Co.
Counsel for the Respondent: Miss E.A. Wilkins
Solicitor for the Respondent: Australian Government
Solicitor
ORDER
The Court orders that:
1. The decision under review be set aside.
2. The matter be remitted to the Minister to be determined by him or by a different delegate according to law.
3. The Minister pay the costs of the applicant.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BURCHETT J This is an application for judicial review of a decision of a delegate of the Minister. The grounds include that the delegate failed to take relevant matters into account; that he took irrelevant matters into account; that the statutory duty required by law to be performed was not performed insofar as genuine separate consideration was not given to a principal ground of the application which was before the delegate as required by law; and - and this is the principal ground argued at the hearing - that the decision was unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 229-233).
The applicant, who was born in France on 15 June 1962, had first come to Australia in 1969 when his family migrated here, but was taken back to France by his parents upon their deciding to return in 1974. He had come to Australia again on a visitor's visa on 19 August 1984, making a visit to a sister who had been left behind when the family departed, a Mrs Elizabeth Longhurst. The applicant's entry permit expired on 19 February 1985, and no further permit was issued. There were subsequent applications, but they were unsuccessful for reasons that are not now relevant. A deportation order was signed on 22 March 1991, pursuant to which the applicant was apprehended and detained in custody on 19 March 1993. He made, within time, an application to remain permanently in Australia under a concession for persons illegally here on or before 18 December 1989. Two grounds specified in this application were that he was a special need relative of his sister Mrs Longhurst, and that there existed compassionate circumstances "to the effect that refusal to grant (an) entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen", Mrs Longhurst.
For a proper understanding of these grounds, it is necessary to set out, first, the definition, as it stood at the relevant time (i.e. before 17 August 1993), in reg. 1.3 of the Migration (1993) Regulations of a special need relative, as follows:
"1.3 In these Regulations, unless the contrary intention appears:
. . .
'special need relative', in relation to an Australian citizen usually resident in Australia or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b) the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; or
(ii) welfare, hospital, nursing or community services in Australia."
(An amendment notified by Commonwealth of Australia Gazette of 19 August 1993 appears to have been made for technical reasons, and probably does not have any substantial effect.) Part 812 of the Migration (1993) Regulations then provides for an entry permit called a "class 812 (December 1989) (permanent) entry permit". Paragraph 812.723(5) specifies:
"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; or . . .
of a settled Australian citizen or of a settled Australian permanent resident."
An alternative to subcl. (5) is provided by subcls. (6) and (7), which state:
"(6) An applicant satisfies the requirements of this subclause if, subject to subclause (7):
(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 citizen or an Australian permanent resident; and
(b) the compassionate ground continues to exist.
(7) For the purposes of subclause (6), 'compassionate ground' does not include a circumstance that results directly from an event of a political nature only that occurred in the applicant's country of citizenship or of usual residence."
It is unnecessary to trace through subcls. (1) to (4), or the complex of regulatory provisions by which subcls. (5) and (6) may be said to be determinative of the applicant's application. There is no dispute about that. The questions in the present case concern the way in which the delegate of the Minister dealt with the issues arising under the latter two subclauses.
There was placed before the delegate a large quantity of information including a report from a consultant psychiatrist, voluminous hospital notes, and statutory declarations made by the applicant, by Mrs Longhurst, and by Mrs Longhurst's husband, a barrister. There is no reference in the reasons adopted by the delegate (which were actually drafted by some other officer as a recommendation to him) to any document or other source of information casting any doubt on the matters of fact set out in these documents. What emerges from them is a story of Mrs Longhurst's childhood so sad and extraordinary as to evoke recollections of the bizarre public humiliation in which the little girl Pearl grew up in the famous American novel, "The Scarlet Letter". It was described by the Minister's counsel at the hearing before me as "horrendous", and in the medical records of Wollongong Hospital as "horrific". Unfortunately, coloured words of that kind become bleached of their meaning, unless the facts they describe are exposed in a little detail. Neither "horrendous" nor "horrific" is suggested by the bland summary appearing in the reasons for the decision. But a reading of the original material would leave most persons of normal understanding and humanity in a state not very far from tears.
It is necessary to give a brief account. Mrs Longhurst, who has made two suicide attempts and has been under regular psychiatric treatment since June 1990, including admission to a psychiatric unit from 8 March 1991 to 10 April 1991, suffers, according to Dr Robert Kaplan, consultant psychiatrist, "from chronic depression requiring on-going support and treatment with medication". Dr Kaplan has seen her regularly over the whole of the period since June 1990. He expressed in his report the opinion (as to which he had "no doubt") that the cause of her condition was the "enormous deprivation and abuse in her family life, largely at the hands of her mother", which she had suffered in her childhood. I shall return to the doctor's report after outlining the story of her life, but I note here that the doctor must have taken a history long before the applicant's arrest, or the raising of any question under the Migration Act 1958 about either the origins of her illness or the importance to her mental and emotional health of her brother, the applicant; for he has treated her, as I have said, since June 1990.
The cause of Mrs Longhurst's ghastly childhood, according to the material, must be traced to events before her birth. Her mother, a married woman with children (there were ultimately 12 of them), had an affair which led to the break-up of her then marriage. Mrs Longhurst's birth was the result. Whether the mother was overwhelmed by remorse or resentment, her reaction appears to have been one of total rejection of the child. Mrs Longhurst does not know who her father was, but the mother remarried and there were further children. The one child stigmatized in the family as illegitimate was Mrs Longhurst. Her mother repeatedly forbade the other children to speak to her, either at home or at school. She was physically mistreated, left without food, denied proper footwear and even deprived of presents at Christmas when the other children received them. She was quite often locked in a cupboard, and she suffered severe beatings. In France, she was at one stage placed in a home for neglected children, and was there at the time the decision was made by the family to migrate to Australia. Her stepfather told her she was only allowed to go because her grandmother insisted. Promptly after their arrival in Australia, her mother arranged for her to stay with a French family in another street nearby, and forbade contact between her and the other children. She was not allowed to go to her mother's house. After some time, she was sent to an aunt's house in Sydney (the family was living near Wollongong). Her step-father brought her back for a short period, and then she was placed in foster care during consideration of her case by Wollongong Childrens' Court, which declared her a ward of the State, apparently on the ground that she was a neglected child. Arrangements were made through the Child Welfare Department for her to go to a convent school at Ashfield, near Sydney. There was no contact from the family during the period she was there, between about the ages of 14 and 17. When she left the school, she travelled to Wollongong and caught a bus to Warilla, where the family had last been living. In a statutory declaration under the Oaths Act 1900 (NSW), she says she went especially to see Pierre, the applicant. She certainly had no reason to expect anything good from her parents. She got off the bus to find the family had gone - back to France, her parents having left without a word to her. They had simply abandoned her in Australia.
In her statutory declaration, Mrs Longhurst recounts an incident which occurred during her childhood, at a time when she and Pierre were attending the same school, although he was a number of years younger. Both of them had been forbidden to talk to each other, and she was also required to walk home on her own and apart from her brothers and sisters. She and Pierre, however, had found a place at the school where they could be alone, and they used to go there. Pierre also shared his lunch with her, because she was never given either lunch or lunch money by her mother. Their mother went to the school and discovered that they were talking together. When they got home, both of them were severely beaten, and Mrs Longhurst's head was banged against a corner of the kitchen sink, so that her eye was blackened. Her mother also tortured her (there is no better expression) by forcing her to drink water containing a large amount of chilli, until her mouth and throat were burned. She was then locked in a cupboard for the rest of the day.
Mrs Longhurst's statutory declaration repeatedly refers to the relationship between herself and her brother Pierre. There is nothing improbable about a close relationship between an older sister, subjected to the appalling treatment from which she suffered, and a particular younger brother. She was in desperate need of someone's sympathy. She says he stole food for her; provided her with some of his own socks; when she was separated from the rest of the family in a strange country, though only in the next street, came and visited her despite the mother's instructions; and shared with her in her deprivation.
When, after she left the convent school, Mrs Longhurst found herself alone in Australia, she went to work and saved money for a trip to France to try to find her family, and especially Pierre. After a few years, when she was 21, she did go to France, and did find out about her family. She discovered that Pierre had also ended up in a home for neglected children. She visited him there. He too was now cut off from the rest of the family, and at one stage he ran away from the home to try to come to her.
After she returned to Australia, Mrs Longhurst kept in contact regularly with Pierre, and he with her, by mail. She advised the Department, in her statutory declaration, that she had kept some of the letters, although there were many others which she had not kept. There is no indication in the reasons that the implicit offer to produce letters in confirmation of her story was ever taken up. As I have already indicated, there is indeed nothing to suggest that any doubt at all was cast upon her story, which had been accepted by professional psychiatrists - Dr Kaplan and others at the hospital. Presumably, therefore, it was thought unnecessary to ask for any of the letters.
Mrs Longhurst says too that after her return to Australia, she made enquiries with a view to sponsoring her brother Pierre to come to Australia, but without success. Eventually, he arrived in 1984. Thereafter, they visited each other, and "spoke to each other on a regular basis on the phone and we were quite supportive of each other from an emotional point of view". With reference to her depressive illness, she states that "Pierre has been of great help to me. Pierre and I are very close and he is my only real contact with family in this country." There is one sister who lives in Newcastle, but the material indicates that Mrs Longhurst and her sister do not have much contact with each other. She says that
"quite often I turn to Pierre for help when I am feeling at a low ebb and he is able to talk me round. The very fact that he is able to be contacted readily and is near at hand is something from which I derive great comfort. ... I find it difficult to come to terms with the fact that I might be separated from my brother once again and have a very real fear that this may trigger off my depression. I do not want to go back to the serious depression that I had when I made my suicide attempt. ... If my brother and I are separated as I previously stated I have great fears of my ability to cope with my medical condition."
She also says:
"We talk on the phone on a protracted basis regularly. He has occasionally visited and stayed with me, particularly during the periods subsequent to my depression."
The applicant, Pierre Fuduche, confirms by statutory declaration the consistent rejection which Mrs Longhurst suffered from their parents, and her abandonment by them in what was for her at that time an alien country. He declares that since his return to Australia she and he "have maintained close and continuous contact".
Mrs Longhurst's husband (they married in 1980, and are living in Wollongong with their three very young children) has also made a statutory declaration. As a barrister, he risks more serious penalties than many other persons would if that declaration is untrue. There has been no suggestion that it is untrue. In it, he states that virtually from his first meeting with his wife, in 1976, she has suffered episodes of depression affecting her ability to cope. She has appeared to "retreat from normal life". Since 1990, she "has been constantly using prescribed anti-depressants". He does not himself have "a close family support infrastructure" and he and his wife
"have had to do our best without significant support from others, but for Pierre. ... I wish to indicate that in recent years, certainly well prior to October 1990, Pierre's help and guidance has been absolutely irreplaceable. I am aware that Elizabeth has a sister Louise in Newcastle, however to the best of my knowledge she has not been able to provide significant help in any sense when one compares to that offered constantly by Pierre. ... Pierre has always been prepared to come to Wollongong to be with Elizabeth at any time required. He has also visited over the years on numerous occasions, and under the circumstances has always been and remains a most welcome friend to me."
None of this material from Mr Longhurst is mentioned at all in the reasons for the decision, although its relevance and importance are beyond question.
Even if there had been no medical evidence in the case, it would be difficult to believe that the circumstances did not raise on 15 October 1990 a compassionate ground for the grant to the applicant of an entry permit to the effect (in the quaint phrase of the regulation, which is far from "plain English") that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen. In ordinary human experience, and apart from any medical opinion, the further forcible separation of these two people, linked by such shared experiences, one of whom has become so vulnerable, cannot but cause extreme anguish. Why is that not extreme hardship? And how can the prejudice be repaired if Mrs Longhurst must lose this brother?
But there is also medical evidence from the specialist psychiatrist, Dr Kaplan. That evidence demonstrates the extent of the hardship and prejudice. Dr Kaplan, following the diagnosis I have already quoted, states:
"Her relationship with her brother Pierre has played a part in her emotional stability. He is two years younger than her (sic - he seems to be six years younger in fact) and she has had the closest relationship with him of all her siblings. It was devastating for her when they were separated at a young age by a social worker and placed in separate homes. Special visits had to be arranged so she could maintain some contact with him. She has told me of her distress when they were still in Australia and she went to the home he was living in Sydney (sic - it was actually Warilla, unless this is some earlier occasion than the one I have already mentioned), only to find they had moved on without telling her. After the family returned to France, Elizabeth went back for a visit and saw him in another home he had been placed in.
Since he came to Australia in 1984, Elizabeth and Pierre have maintained their contact with regular phone calls and visits.
From our discussions, I believe that this relationship has played a significant part in providing her with some emotional stability by allowing her to maintain some sense of family continuity and bonding.
Should this relationship be disrupted now, I believe her depression will be adversely affected. For both of them, another enforced separation will bring back painful memories of earlier disruptions and losses. I cannot exclude the possibility that she may regress and require more intensive treatment.
I have no hesitation in stating that I believe it is in the interests of Elizabeth's emotional stability for Pierre to continue to live in Australia."
Quite apart from the inherent probability that Mrs Longhurst's "horrific" childhood experiences and deprivations would make such family ties as she has been able to salvage uniquely important to her, and quite apart from the inherent probability that a chronic depression which has been medically diagnosed as having been caused by those childhood experiences would be exacerbated by a further forced separation from a loved brother, Dr Kaplan's report provides expert evidence from a highly qualified specialist that the relationship has been of "significant" benefit to her medically, and that its disruption would be likely to affect her depression adversely, and might even cause a regression requiring more intensive treatment.
It is difficult to imagine on what basis the opinion of Dr Kaplan to which I have just referred could possibly have been rejected. The relationship between depressive illness (and it is certain that neither Dr Kaplan's statements of his conclusions nor the medical notes in relation to Mrs Longhurst's period in hospital were speaking of depression in merely the lay sense) and factors having a causal relationship with it, or factors exacerbating it, must plainly be a medical problem. So must its prognosis, and the question whether a particular event in the future would be likely to have an effect upon the illness. In this case, the event which the doctor considers would adversely affect her depression is an event which any lay person might well conclude would cause her great anguish. There is certainly no inconsistency between the lay conclusion of anguish and the medical conclusion that depressive illness would be adversely affected. We are, after all, not speaking of a person whose vulnerability is in doubt - Mrs Longhurst has already twice attempted suicide. And the hospital notes expressly state that after the second attempt she was thought to be at high risk of becoming a victim to yet another attempt.
Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own. See Adelaide Stevedoring Company Limited v. Forst (1940) 64 CLR 538 at 564, 569-570; and cf. Bushell v. Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430):
"Although s. 120(3) entrusts the determination ... to the decision-maker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner ... ."
Relevantly to the present question, the recommendation which the delegate accepted without any comment at all contained a number of statements. It said:
"For the purposes of this assessment and based on the evidence of the statement of the nominator (i.e. Mrs Longhurst) and the psychiatrist, I accept that some form of a relationship between the two parties existed on the relevant date of 15 October 1990 ... ."
(This seems somewhat grudging - surely a brother and sister would have, without more, "some form of a relationship"]) It also said:
"I read with sympathy that Mr Fuduche's sister, Ms Longhurst, was admitted to the acute psychiatric unit of Illawarra Area Health Service between 08/03/91 and 10/04/91 for major depression, and personality disorder problems. She was referred by Dr Kaplan for admission. She had been seeing Dr Kaplan for six months for depression and was brought to Accident and Emergency (unit) by her husband. While in the hospital, she was found by staff in the bathroom attempting a suicide by cutting her left wrist. Her condition has stabilised since then - requiring on-going support and treatment with medication. Ms Longhurst's cause of depression was due to her experience of deprivation and abuse in her family life since childhood. She was subject to verbal and physical abuse, constant denigration and humiliation, rejection and abondonment (sic). She was married in 1980 and has had three children. I accept Dr Kaplan's opinion that her relationship with her brother, Mr Fuduche, has played a part in her emotional stability, and disruption of the relationship will have adverse effects on her. However, I cannot justify that without Mr Fuduche, Ms Longhurst would not be able to cope with the depression, given the support she has from her immediate family - husband, and three children; and the independent lives both she and Mr Fuduche lead."
Pausing here, I note that the adopted recommendation accepts Dr Kaplan's opinion that Mrs Longhurst's relationship with her brother has played a part in her emotional stability, and disruption of the relationship will have adverse effects on her. Given that her depressive illness and the extreme experiences from which it arose were also accepted, one might have thought no more would be required to make out both the grounds which were in question. But the writer of the recommendation goes on to assert that he "cannot justify that without Mr Fuduche, Mrs Longhurst would not be able to cope with the depression". This is somewhat bewildering. If the word "cope" is used in the sense that the writer expects Mrs Longhurst will have no real problem, the statement reads like an arrogant preference for a personal speculation over the clearly stated professional opinion, based on medical findings, of the treating specialist. If, as is perhaps more likely, the word is used in the sense that it is expected Mrs Longhurst, though suffering adverse effects upon her depression, a return to painful memories of earlier deprivations, and possibly a regression of her illness requiring more intensive treatment, will nevertheless somehow survive, it is very hard to see how that conclusion was thought to be relevant. Such Spartan concepts (which might also conceal a certain arrogance) have no place in a consideration of special need, extreme hardship, or irreparable prejudice, as grounds for the exercise of some administrative benevolence on behalf of Australian citizens, and in Australia's true interests. After all, an understanding of the regulations here in question should not overlook that they focus on the needs of Australian citizens and residents, rather than those of would-be migrants. They also recognize Australia's moral obligations, particularly to its own people, and Australia's national interest in behaving in a civilized manner.
However, the writer of the recommendation proceeds to justify his irrelevant conclusion at considerable length, as follows:
"While Mr Fuduche may maintain regular contacts with his sister/s, I do not accept that the relationship between him and Ms Longhurst was in any way exceptional or that any assistance rendered by him contributed significantly to her well being. I consider the following points relevant to the nature of the relationship. The hundreds of pages of the medical and social workers (sic) reports regarding Ms Longhurst's admission to the psychiatric unit between 08/03/91 - 10/04/91 has
(sic) made no mention about Mr Fuduche playing a part in her emotional welfare/problems, but the support from her immediate family - husband, and 3 children - was enormous. Ms Lomghurst (sic) seemed to have come out of her depression, leading an ordinary family life with the support she has from her husband and children. I note in particular the comments that Ms Longhurst's depression problem was aggrevated (sic) at, and revolving around, the birth of each child, and that she has had problems with her mother-in-law, given the bad experience she had with her own family during childhood. Mr Fuduche claimed he is the closest, amongst the 12 siblings, to Ms Longhurst. I note, however, it was another sister, Ms Louise Josephine GILL (nee Fuduche) who provided the support for him in his application for the grant of resident status made in 1988. Ms Gill was the one who completed the form 'sponsorship for migration' for him - though irrelevant to that application. (What this has to do with Mrs Longhurst's feelings towards Mr Fuduche is not at all apparent.)
Mr Fuduche has been in, at the very least 2, de facto relationships and has never lived with, or within the residential proximity, to (sic) either of his sisters - Louise or Elizabeth. There are (sic) ample evidence, given the above and that Mr Fuduche has entered into a business venture, to indicate that the siblings lead independent lives. The core of the relationship, it appears, is the contacts maintained with each other whenever it was possible - through telephones, and visits. I cannot conclude that the applicant's ability, capacity and willingness to meet the need was suitable (sic) in this case that he would not be able to do the same if he was not physically in Australia.
There is no doubt it would be a lot more convenient for Ms Longhurst to have Mr Fuduche around to rely on for some emotional support. I accept that it is only natural that Ms Longhurst would prefer to have her brother available for contacts, instead of the community support services, which are the normal and sometimes only course open to other Australian citizens; however, these services are available for Ms Longhurst to gain access to, quite readily. Ms Longhurst also has her husband and three children to provide the support she needed. I feel it is difficult to justify Mr Fuduche's presence to maintain the regular contacts to be vital to her welfare, given the availability of other avenues which she may gain the assistance/support she needs. I do not consider Mr Fuduche a special need relative to his sister, Ms Elizabeth Longhurst."
It will be noticed that this passage, while acknowledging "Mr Fuduche may maintain regular contacts with his sister", then commences by asserting that the writer does not accept "that the relationship between (Mr Fuduche) and Ms Longhurst was in any way exceptional". The astounding thing about this statement is that its author had only a couple of paragraphs before accepted that Mrs Longhurst's "major depression" was caused by deprivation and abuse in her family since childhood, and he nowhere expresses any doubt about the purely factual history of these two persons, which included repeated indications of a bond from their earliest years, cemented in the mutual suffering of parental abuse, Pierre Fuduche also being a victim of rejection and ending up in a home for neglected children in France, from which he ran away to be with Mrs Longhurst. Is it possible to think of their relationship, by any ordinary measure, as not in any way exceptional?
The author of the recommendation then goes on to say that neither does he accept "that any assistance rendered by (Pierre Fuduche) contributed significantly to her well being". This is a direct contradiction of the professional opinion of the consultant psychiatrist, who stated: "I believe that this relationship has played a significant part in providing her with emotional stability". The rejection of the expert is not based on any contrary expert opinion. It appears to be based on facts which were all well known to Dr Kaplan, who treated Mrs Longhurst on a regular basis over a period of three years, and which must have been taken into account by him in reaching his opinion. The applicant's case demands an answer to the question how any unqualified person, however senior in the department, could, merely upon reading the material, discard the psychiatric assessment in this way. It would be different if the doctor were regarded as a charlatan, or if his views were contested by some other medical expert. The hospital notes make it clear that those in charge of a significant public hospital regarded Dr Kaplan as an expert colleague, and there is not the slightest suggestion of any conflict of medical opinion in this matter. He was not introduced as a professional witness to support a case; he was the treating specialist, who had seen his patient regularly for three years. What the author of the recommendation has done, in his attempt to reduce the impact of Dr Kaplan's medical assessment, is to assemble a short list of known circumstances, which appear to have impressed him as having some significance, although they did not impress the expert in the same way.
The recommendation refers to the lack of mention of Mr Fuduche in the hospital notes for the period 8 March 1991 to 10 April 1991. It is not known where Mr Fuduche was during that month, because the question was not asked. It is known that his place of abode was in Sydney, and that Mrs Longhurst became acutely ill and attempted suicide. Plainly, no support, whether from Mr Fuduche, her husband, her treating doctor or anyone else, was able to meet her need at that particular time. It does not at all follow that none of these "contributed significantly to her well being"; she had in fact survived some eight years since her previous suicide attempt, and after the month in hospital she managed again to achieve some adjustment to living. If a layman were to speculate about medical matters, it might be thought significant that during almost all of the eight years since the previous suicide attempt, which had occurred before Pierre Fuduche arrived back in Australia, he, having returned, was in contact with her and she had managed to avoid any such acute crisis as eventually overtook her in March 1991. But that is really a matter for medical assessment, and Dr Kaplan has made such an assessment. The recommendation appears to draw a contrast between the lack of mention of Mr Pierre Fuduche in the hospital notes and the references to Mrs Longhurst's husband and three children, whose support is described as "enormous". That her husband should, at the time of her acute illness, be the one to visit her at a hospital near where they lived, and bring their very young children with him, is hardly surprising. Nor would it be surprising that in the crisis, and indeed at any time, her husband and children might be much more important to her than anyone else. None of this denies the psychiatrist's view that her brother has played a significant part in providing her with emotional stability. During that month in hospital, plainly she had lost her emotional stability, and desperately needed the hospitalization and drug treatment she in fact received. But she also needed help when she came out of hospital, and it is her statement in her statutory declaration that, "particularly during the periods subsequent to (her) depression", her brother "stayed with (her)". That is supported by her husband, who says "I firmly believe without the support, the help, both practical and emotional of her brother Pierre, my wife would not have been able to attain the level of stability which she has."
The author of the recommendation then plunges further into his own medical analysis of the patient's condition, making an obvious reference to post-partum depression. Dr Kaplan, in his report, had stated:
"Unfortunately, the pregnancies were followed by post-partum depression, which exacerbated the chronic depression she was suffering from."
In the eyes of the author of the recommendation, this becomes transmuted into the proposition that "Ms Longhurst's depression problem was aggrevated (sic) at, and revolving around (emphasis added), the birth of each child". It is perfectly plain that this is not Dr Kaplan's opinion, and there is just no basis for elevating the doctor's comment to such a finding.
There is next an extraordinary comment that Mrs Longhurst "has had problems with her mother-in-law, given the bad experience she had with her own family during childhood". Searching for the relevance of "problems" with a mother-in-law (there is no suggestion of anything serious), one can only conclude that once again the author of the recommendation is indulging in amateur psychiatry, proffering his own explanation of Mrs Longhurst's depression - an explanation virtually devoid of evidence, the only point of which seems to be that it involves a relationship unconnected with Mr Fuduche.
There follow comments about Mr Fuduche's relationship with another sister, and about de facto unions in which he has lived. None of this seems to have even a faint relevance to the report of Dr Kaplan or the statutory declarations on which the applicant relies. A close relationship with Mrs Longhurst does not imply coldness towards another sister, nor, certainly, celibacy. However, the author of the recommendation draws the conclusion that the "core of the relationship ... is the contacts maintained with each other whenever it was possible - through telephones, and visits". On this basis, he thinks Mr Fuduche would "be able to do the same if he was not physically in Australia"; it is a mere matter of convenience for Mrs Longhurst "to have Mr Fuduche around to rely on for some emotional support". Then he asserts that "community support services" are available "quite readily" to Mrs Longhurst, "which are the normal and sometimes only course open to other Australian citizens". These statements are their own best refutation. I will only add that it seems to have entirely escaped notice, when the last comment was written, that the vast majority of other Australian citizens have not suffered the "horrific" childhood deprivations which have left Mrs Longhurst in a state of chronic depression; and it seems further to have escaped notice that the persons who did provide hospital and psychiatric services to Mrs Longhurst themselves placed reliance on a consultant psychiatrist whose report makes it plain that, in Mrs Longhurst's case, access to those services is not enough to ensure her mental stability if she is to be separated once more from her brother.
The final comment in this section of the recommendation ("I feel ... she may gain the assistance/support she needs") again elevates the author's feeling about a psychiatric problem above specialist medical opinion. Even if it were not a psychiatric problem, in ordinary human terms, the conclusion that the maintenance of regular contact with a loved brother is not vital to a woman so much traumatized as Mrs Longhurst is quite incomprehensible. But it is a medical and psychiatric problem. On that basis, to decide by accepting the delegate's (or the recommender's) lay views is in this case to decide irrationally. The statute must not be construed as authorising a decision arrived at upon no relevant evidence, upon a "feel(ing)", or by some other irrational process.
It is appropriate to observe that the definition of "special need relative" is largely concerned with medical issues. There must be a need, not necessarily permanent but at least long-term, for some form of assistance because of death, disability, prolonged illness or other serious circumstances. (The last matter, of course, need not be medical, unless the earlier words create a genus, which would be a very restrictive view to take of a beneficial provision under the broad rubric of "special need", particularly as there cannot be a genus of medical conditions of the citizen or resident to be assisted, since the first condition is death). There must then be an inability to obtain "the assistance" from the other sources mentioned. I have emphasized the definite article because it may be the delegate overlooked it in the present case. Certainly, the reference to "the assistance/support she needs" is a reference to what the author of the recommendation has decided she needs - not the substantial and continuing assistance Mr Fuduche is willing and able to provide. That would explain what is otherwise inexplicable - his rejection of Mr Fuduche's claim to be a "special need relative" of Mrs Longhurst on the ground, apparently, that assistance is "quite readily" available to her from "community support services". But the assistance with which the regulation is concerned is the assistance the relative is able to provide. If that is mowing lawns, of course others may do it. The more complex and personal it is, the less can this be so. Indeed, such cases are probably at the heart of the benevolent intent of the regulation which, on ordinary principles, as I have already indicated, should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains. Where what is involved is the personal support of a particular brother, whose every word of encouragement must have the meaning of their shared experiences packed into it, that support is plainly irreplaceable, whatever inferior (or even very valuable) substitutes might be sought.
There is also another aspect to this consideration. The definition of "special need relative" does not ask only whether the particular assistance the relative can give is in fact replaceable. It also asks whether it can "reasonably" be obtained elsewhere. From that point of view, no one would suggest it would be reasonable to expect a person suffering from psychiatric illness of the severity here in question to obtain the same support and encouragement from uninvolved strangers (however professional) as that available from her loved brother. The finding to the contrary is unreasonable in the Wednesbury sense, or else it is tainted by error of law in the interpretation of the regulation, for the reasons I have been discussing. A situation of this kind was regarded by Mason CJ in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388-391 as falling within the ground of unreasonableness referred to in ss. 5(2)(g) and 6(2)(g) of the Administrative Decisions (Judicial Review) Act 1977, on the basis that, either way, the conclusion was unreasonable.
I should emphasize that none of these matters has anything to do with the exercise of discretion which would follow the establishment of a ground. If a discretion had been exercised, the delegate could not properly have left out of account the indirect effects of his decision upon the husband and three young children of Mrs Longhurst, all of whom must suffer (the children probably very greatly) if her depressive illness is significantly aggravated. I have been concerned with the assessment of the facts (medical and other), upon which the delegate acted. That assessment is so at variance with the material before the delegate as to fall within the rare category of cases to which the principle of Wednesbury unreasonableness applies. It is not a question of mere error in findings of fact, a form of error that would not disclose any legal defect in the decision. Here, no reasonable person could have come to such conclusions. Indeed, counsel for the Minister was constrained to concede in argument that, although the recommendation at one point professes to accept Dr Kaplan's opinion, and nowhere acknowledges that it is really departing from the doctor's views, "the decision-maker doesn't accept it (i.e. Dr Kaplan's opinion) to the extent that Dr Kaplan states, because if he had he'd have come to a different opinion (i.e. he would have reached a conclusion in favour of the applicant)." In other words, the decision was admittedly unreasonable, on the basis of the doctor's report. Yet there was no evidence upon which it was open to the delegate to make medical findings different from those suggested by the report.
Having dealt in the manner I have indicated with the question of special need, the recommendation disposed of the question of "extreme hardship or irreparable prejudice" in one sentence, as follows:
"For similar reasons and arguments as for the special need relative grounds, I do not accept that it has been established that there is a relationship on 15 October 1990 of such a nature that refusal to grant the entry permit to Mr Fuduche would have caused extreme hardship or irreparable prejudice to Ms Longhurst, an Australian citizen."
Bearing in mind that no single statement in the material is refuted as untrue, and that most of it is expressly accepted, although in general terms, it is impossible to regard this statement as other than so unreasonable that no reasonable person could have reached it: see Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (supra) at 388-389, 391, 400, 408, 416-417, 433-434. One may fairly ask what circumstances could constitute extreme hardship or irreparable prejudice if separation from her brother should not be regarded as having either of these effects in the case of Mrs Longhurst.
In putting the matter in this way, I have simply compared the expressions in the regulations with the circumstances. Just as it is not wise to attempt to explain "reasonable doubt", so I do not think anything is to be gained by seeking synonyms for the words in question. There may be value, however, in pointing out, what the language itself certainly conveys, that while "extreme hardship" looks to the severity of an effect, "irreparable prejudice", provided there is some prejudice, tests it simply by whether it can be remedied so as to remove it. The two expressions are real alternatives; they do not have the same meaning. Although the facts of the present case fit both, in many cases one might apply, but not the other.
For a number of reasons, it was submitted by counsel for the applicant that there had also been error of law by failure to take account of matters required to be taken into account (such as the observations and views of Mrs Longhurst's husband), and by the taking into account of irrelevant matters. But because the rejection of each of the grounds to which I have referred was wholly unreasonable in the statutory sense, I do not find it necessary to explore these questions.
I was referred to Luu v. Renevier (1989) 91 ALR 39. The joint judgment of Davies, Wilcox and Pincus JJ in that case (at 47) contains the following:
"The effect of a finding of fact by a decision-maker which is unsupported by the evidence must depend upon the significance of that finding. ... But where the finding is critical to the ultimate decision, it is impossible to sustain the decision."
Cf. the observations of Deane J in Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 ALR 666 at 688-690, which he reaffirmed in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 366-368, though see also the comments of Mason CJ in the same case at 356-357. Here, the whole tenor of the conclusion upon each ground is not only unsupported by the evidence, but directly contrary to it. And the qualification suggested by Mason CJ is inapplicable, since a reviewable decision is based on the conclusion. The matter indeed provides a strong illustration of the need for a Wednesbury unreasonableness ground of review by the Court, so as to provide a remedy for a case of glaring injustice. That such cases should occur is very unfortunate; it would be doubly unfortunate if they went unchecked for lack of an adequate right of independent appeal.
The facts of this case also compel the observation that when an Act of the Parliament, or a regulation promulgated under the authority of the Parliament, makes some provision for persons who have applications to submit, it is the duty of those charged with the administration of the Act to implement its provisions, and not to obstruct their use. It should need no emphasis that the Australian citizens for whose benefit the regulations here in question were made are entitled to a genuine and fair application of those provisions where they apply. That no proper case should be rejected is at least as important as that an inappropriate one should not succeed.
The decision should be set aside and the matter should be remitted to be determined according to law by the Minister or a different delegate. The respondent must pay the costs.
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