Jung, Y.M. v Minister for Immigration & Ethnic Affairs

[1994] FCA 857

YONG MIN JUNG AND DONG-GON CHOI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG356 of 1994
FED No. 857/94
Number of pages - 10
Immigration
(1994) 54 FCR 176

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
MOORE J

CATCHWORDS

Immigration - appeal from Immigration Review Tribunal - application for concessional entry permit - construction of reg131A(1)(d)(v) - whether person suffering extreme hardship or irreparable prejudice must be nominator - whether nomination must be made at time of application - what constitutes nomination - whether error of law material - relevance of expression of opinion not necessary to decision - whether opinion renders error immaterial

Migration Regulations 1989, reg131(A)(1)(d)(v) and (g)

Hakim v Minister for Immigration and Ethnic Affairs, 2 May 1994 unreported, Wilcox J
Kuar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 44 FCR 380, (1994) 48 FCR 343
Fuduce v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418
Hamilton and McMurray v Minister for Immigration and Ethnic Affairs, 26 October 1994, unreported, Full Court of Federal Court
Wade v Burns (1966) 115 CLR 537
King v Goussetis (1986) 5 NSWLR 89
Daphne Teo v The Minister for Immigration and Ethnic Affairs, 25 October 1994 unreported, Burchett J
Prasad v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 856
Waterscheid Australia Pty Ltd v Collector of Customs (1987) 7 AAR 555
Conway v Repatriation Commission (1988) 9 AAR 397
Cavell v Repatriation Commission (1988) 9 AAR 534
BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 254

HEARING

SYDNEY, 26 October 1994
#DATE 16:11:1994

Counsel for the Applicant: Mr N J Williams

Solicitor for the Applicant: Gibsons, Solicitors

Counsel for the Respondent: Ms R M Henderson

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision of the Immigration Review Tribunal of 9 May 1994 affirming the primary decision not to grant the second applicant a December 1989 (temporary) entry permit be set aside.

2. The matter be remitted to the Tribunal, differently constituted, to be determined according to law.

3. The respondent pay the applicants' costs.

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

JUDGE1

MOORE J This is an appeal, so styled, under s138 of the Migration Act 1958 ("the Act") against a decision of the Immigration Review Tribunal ("the Tribunal") of 9 May 1994 affirming a decision of a delegate of the Minister for Immigration and Ethnic Affairs not to grant Mr Dong-Gon Choi ("the second applicant") a December 1989 (Temporary) entry permit.

The background
2. The second applicant is a citizen of Korea and entered Australia in November 1987, and was able to remain in Australia until April 1989, as a result of temporary entry permits granted to him as a student. After April 1989 he remained in Australia as a "prohibited non-citizen". He made application for the December 1989 (Temporary) entry permit on 30 April 1991 on grounds which included the hardship that would be caused to an Australian citizen or permanent resident if he were required to leave Australia. The application was made on a departmental form which, when completed, identified as the nominator of the second applicant, Mr Yong Min Jung ("the first applicant"). Particulars concerning the first applicant were provided in the completed form. The form also included a statutory declaration signed by the first applicant as nominator. Accompanying the application was a letter from the second applicant's brother, Mr Dong-Jean Choi. I will deal with some of these matters in more detail later.

Legislation
3. An application for an entry permit of the type sought by the second applicant had to be assessed by reference to the Migration Act 1958 (Cth) ("the Act") and the regulations made under the Act. Those regulations have been repealed by the Migration (1993) Regulations (Statutory Rules 367 of 1992). However the 1993 regulations preserve the operation of the earlier regulations in relation to any application for an entry permit or visa made prior to the 1993 regulations coming into force (viz. on 1 February 1993) both when considering the application and any review of it (reg8.2). The regulation prescribing criteria for the entry permit is reg131A of the 1989 Migration regulations which is in the following terms:

"131A.(1) The following criteria are prescribed in relation to a December 1989 (temporary) entry permit:

(a) the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;

(b) the applicant has not left Australia after December 1989;

(c) the applicant applies, in accordance with these Regulations, before 19 December 1993 for the entry permit;

(d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:

(i) the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or

(ii) the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or

(iii) the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or

(iv) the applicant is:

(A) an aged dependent relative; or

(B) an orphan relative; or

(C) a special need relative; or

(D) a remaining relative within the meaning of regulation 9;

of a settled Australian citizen or settled Australian permanent resident; or

(v) 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;

(e) if:

(i) the applicant satisfies the criterion specified in paragraph (d) only be reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph

(d)(i), (ii) or (v); and

(ii) in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support; an assurance of support satisfactory to the Minister has been given;

(f) if the applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph (d)(iii) or (iv) - an assurance of support satisfactory to the Minister has been given;

(g) the applicant has been nominated by the relevant related person referred to in paragraph (d);

(h) the applicant notifies the Department, without unreasonable delay, of each change of his or her residential address.

(2) In this regulation, "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that has occurred in the applicant's country of citizenship or of usual residence."

It can be seen that the prescribed criteria in reg131A(1)(d)(v) call for consideration of the hardship or prejudice to an Australian citizen or resident and another criterion, found in reg131A(1)(g), requires that the applicant has been nominated.

1. I should also refer to reg34A(1) which provides:
   

"34A. (1) Subject to subregulation (2) and any other provision of these Regulations, an applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or the entry permit (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at the time."

It can be seen that, subject to the prefatory words in reg34A(1), the applicant must satisfy the prescribed criteria at the time of application.

The Tribunal's decision
5. The Tribunal reviewed the personal circumstances of the second applicant and his relationship with both his brother and the first applicant. The Tribunal concluded that any hardship that might be caused to the brother was not relevant to its consideration of the application as the brother was not the nominator of the second applicant. It went on to consider the nature of the relationship between the second applicant and the first applicant on the basis that the first applicant was the nominator. The Tribunal concluded that the first applicant would not suffer the requisite hardship or prejudice identified in reg131A(1)(d)(v) and accordingly concluded that the applicant had not satisfied the criteria in reg131A. Notwithstanding the view the Tribunal had earlier expressed in its decision that the circumstances of the brother were not relevant, the Tribunal went on to indicate in the penultimate paragraph of its decision:

"The evidence in relation to the principal's brother establishes that at 15 October 1990 and up until the date of his marriage break up in March 1991 he received limited emotional support from the principal and as a consequence, the principal cannot rely upon this fact to establish compassionate grounds. Accordingly the requirements of regulation 131A(1)(d)(v) are not met."

The issues
6. The appeal raises four issues. The first is whether the hardship or prejudice referred to in reg131A(1)(d)(v) is hardship or prejudice suffered by the nominator. The second is whether the regulations require the nomination to be made at the time the application for the entry permit is made. The third is whether there had been a nomination by the brother at the time the application was made. The fourth is whether, if any error is established, it was material.

Whether the prejudice or hardship identified in reg131A(1)(d)(v) is only that of the nominator
7. The applicants submit that the requirement in reg131A(1)(g) that an applicant has been nominated by the related person referred to in par(d), does not require an applicant to demonstrate the hardship or prejudice referred to in reg131A(1)(d)(v) is suffered by the nominator. It may be suffered by any person of the class referred to in subparagraph(v), namely an Australian citizen or permanent resident. In my opinion, the requirement in reg131A(1)(g) that "the applicant has been nominated by the relevant related person referred to in paragraph (d)" is a requirement attaching to each of the subparagraphs in par(d) with the consequence that the nominator must be the person that is said to satisfy the description in one of the subparagraphs of par(d). Paragraph (g) is expressed in terms that do not suggest its application to each of the subparagraphs in par(d) is qualified. The expression in par(g), "related person", is a reference to the person with whom the applicant has a relationship of the type identified in any one of the subparagraphs (i) to (v) irrespective of the character of the relationship. Subparagraph (v) identifies a relationship which is, unlike those in subparagraphs (1) to (iv), not a familial one. It is a relationship between the applicant and another party of such a character that extreme hardship or irreparable prejudice would be caused to the other party if the applicant was to leave because the entry permit was refused. The other party must be an Australian citizen or permanent resident remaining in Australia. The construction of the words "related person" as including the other party to the relationship referred to in subparagraph (v) is consistent with the ordinary meaning of the word "related" which includes: "1. associated; connected. 2. allied by nature, origin, kinship, marriage etc.", see the Macquarie Dictionary (revised edition). Plainly the applicant and the other party must be related in the sense of "connected" or "associated" for there to be a relationship between them, the disruption of which would give rise to the requisite hardship or prejudice. The combined effect of reg131A(1)(d)(v) and (g) is, for present purposes, that the criteria in pars(d) and (g) are satisfied only if the nominator suffers the requisite hardship or prejudice.

The time at which the nominator must nominate
8. The second issue is whether it is necessary for the applicant to have been nominated at the time the application is made. The applicants submit it is not. Regulation 34A generally requires that the applicant satisfy the prescribed criteria at the time of application. One of those is that found in par(g) that "the applicant has been nominated". The terms of both reg34A and par(g) would suggest that the nomination has to occur at the time the application is made: see Hakim v Minister for Immigration and Ethnic Affairs, 2 May 1994 unreported, Wilcox J. The applicants seek to avoid this construction of reg131A by referring to the correspondence of language in pars(e), (f) and (g) where each includes the words "has been". It is clear from the context in which the words "has been" appears in par(e) and (f) that they refer to something done after the application is made and that the paragraphs identify criteria that may be satisfied after the time of the application. Thus those two paragraphs attract the operation of the opening words in reg34A(1) namely, "subject to ... any other provision of these regulations...". However the subject matter of par(g) does not similarly suggest that that criterion might be satisfied at a time after the application is made. The use of the words "has been" in par(g) is really equivocal. Those words would be apt whether the nomination was required at the time of the application or after it. It is the subject matter of par(e) and (f) and not the use of the words "has been" that indicate that the satisfaction of these criteria can occur after the application is made. There is nothing I discern in the language of par(g) or its subject matter that displaces the requirement arising under reg34A(1). The applicant must be nominated at the time the application is made.

Whether the brother nominated the applicant at the time the application was made
9. At issue is whether the letter from the brother constitutes nomination by him at the time the application was made, notwithstanding the fact that the completed printed departmental form identified another nominator. The applicants submit it did. There is no evidence to suggest that the departmental form had any statutory basis nor did the respondent submit that it did. I proceed on the basis that it simply provided a convenient means of identifying the information required to be considered by the Minister in assessing the application. Paragraph (g) requires that the applicant has been nominated and accordingly the nomination has to be in terms that identifies the nominator and the fact of nomination. The letter from the brother accompanying the application was in the following terms:

"22 Feb, 1991 Dear Sir/Madam :

My brother, Dong-Gon Choi, had grown-up with me in a family and he is honest, diligent and capable man who is highly educated up to B.A. degree. However, complications between his present wife and his parents gave him the hardship of his life, and that despair seems to lead him to present situations.

During being in Australia, he adapts himself very well and he looks happy with his life, especially, as he has his daughter few months ago.

As his brother, I wish that he and his family could stay here without going back and being troubled, even though I know that the normal procedure is to invite them as a brother after their going back.

If they are granted to stay, I would happily help them mentally, financilly (sic) to become good residents who could contribute their society.

So, please, take a good decision to their application to remain in Australia.

Thank you.

Yours sincerely, Dong-Jean Choi"

1. That letter does not plainly state that the brother is acting as a nominator. Indeed an inference might be drawn from the fact that another nominator was identified in the application itself, that the brother was not a nominator. I nonetheless consider that an applicant should enjoy the benefit of any uncertainty as to how the regulation is intended to operate, not because of his interests, but because of the interests of the nominator whose circumstances are intended to be addressed by par(d)(v): see Kuar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 343 at 345.8. The Court has adopted a liberal approach to the construction of migration regulations that are designed to benefit Australian citizens or residents. As Burchett J said in Fuduce v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 at 430:
   

"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."

1. I see no reason why a similar approach should not be adopted in determining how the regulation was intended to apply particularly given that, as appears to be common ground, there is no provision in the regulations identifying the manner in which a nominator should disclose that he or she is nominating an applicant. Nor is there an express requirement that there be only one nominator. I note that the delegate of the Minister who made the original decision treated the brother as a co-nominator.

2. The respondent handed up a copy of a media release of the Minister for Immigration, Local Government and Ethnic Affairs dated 15 October 1990 outlining a proposal to make regulations, one of which was to become reg131A, and the reasons for doing so. The media release was relied upon to show that the regulations were not intended to have a wide or liberal application. Even if it is within the class of material comprehended by s15AB of the Acts Interpretation Act 1901, the media release is in sufficiently general terms to be of no real assistance in ascertaining the meaning and effect of reg131A.

3. What constitutes nomination has recently been considered by a Full Court of the Federal Court in Hamilton and McMurray v Minister for Immigration and Ethnic Affairs, 26 October 1994, unreported. The leading judgment was that of Davies J, who addressed the question of what constitutes nomination in the following passage:
   

"An expression of the sponsorship or support would seem to be essential. A nomination, in this context is a positive act proposing, sponsoring or supporting an applicant for the entry permit sought. See Hakim v Minister for Immigration and Ethnic Affairs (Wilcox J, 2 May 1994, unreported)."

1. The brother's letter makes clear that he had an interest in the second applicant's application succeeding. He indicates his support for the application. His English is imperfect though his use of the word "wish" and the letter as a whole conveys an emotional attachment to the second applicant that might have suggested to those processing the application that the circumstances of the relationship between the brother and the second applicant, satisfy the requirements of reg131(A)(1)(d)(v).

1. In my opinion the letter of the brother was a nomination. The Tribunal erred in law in failing to treat the letter of the brother as a nomination and the brother as having nominated the second applicant at the time of the application.

Materiality of error
16. The conclusion I have just reached means the circumstances of the brother are relevant as is the question of whether the refusal to grant the entry permit to the second applicant would cause the brother extreme hardship or irreparable prejudice. Notwithstanding that it was unnecessary for the Tribunal to do so having regard to the construction it adopted of reg131A, it considered this matter and concluded that the relevant hardship or prejudice would not have been caused to the brother for the entire period between 15 October 1990 and the time the application was refused. No submission was made that reg131(1)(d)(v) does not require the relevant hardship or prejudice to have existed for the entire period identified in the opening words of par(d), namely 15 October 1990 to the time the application was refused.

1. The applicants submit that the conclusion of the Tribunal concerning the hardship or prejudice that might be caused to the brother should be disregarded. They rely on the approach adopted by a number of members of the High Court in Wade v Burns (1966) 115 CLR 537. In that case the High Court had to consider whether mandamus should issue requiring a mining warden to deal with an application in circumstances where the warden had erroneously believed there was a statutory prohibition against granting the application. It was argued it should not because in dealing with the application, the warden had volunteered that if he had had a general discretion to refuse the application, he would have done so. Thus, it was argued, to issue mandamus would be futile as the application would be refused having regard to the warden's remarks. However Barwick CJ at 555.9, Menzies J (with whose reasons Taylor J agreed) at 563.3 and Owen J at 568.9 express the view that the writ should issue notwithstanding those remarks having been made by the warden.

2. Barwick CJ expressed the view that "the anticipatory comments are of no present consequence". Menzies and Owen JJ appear to have thought it appropriate that the warden reconsider the application so that the precise nature of the discretion could be considered by the warden and then exercised: see also King v Goussetis (1986) 5 NSWLR 89 at 95 per McHugh JA.

3. The respondent submits that a distinction can be drawn between the indication of how a broad discretion might be exercised and a finding of fact. It further submits that the assessment made by the Tribunal of the likely effect on the brother of the refusal to grant the entry permit to the second applicant was such a finding. However the applicants rightly point out that reg131A(1)(d)(v) really involves a subjective judgment: see Kuar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 44 FCR 380 at 390.1 per Lockhart J. In the present case, it was a subjective judgment made in circumstances where material had been submitted to the Tribunal on the basis that the brother was a nominator which included psychiatric evidence about the brother. Indeed the brother completed a departmental form as a nominator and submitted it on or about 11 June 1993.

4. However the Tribunal's conclusion was reached in circumstances where it had earlier expressed the view that the brother's position was not relevant. There is only limited material which indicates the extent to which and the care with which the Tribunal addressed the position of the brother. It did not consider separately both of the criterion in reg131A(1)(d)(v), namely that concerning extreme hardship and that concerning irreparable prejudice. Its analysis of the brother's position is a superficial one. The observation of the Tribunal that the brother received only limited emotional support from the second applicant from 15 October 1990 to the breakdown of his marriage in March 1991 appears to be a repetition of the conclusion the delegate of the Minister had earlier reached on more limited material.

5. The evidence provided to the Tribunal was to the effect that the brother when in the Korean army had suffered considerably at the hands of other military officers in Korea with significant psychological consequences. The lengthy written opinion of a psychiatrist which was provided to the Tribunal discusses the obligations an older brother, from the cultural background of the second applicant's brother, has to his siblings. The opinion suggests, against the background of the brother's experiences in the army, that if the brother, who is an older brother, is unable to discharge this obligation to his siblings (including the second applicant) it may lead to him taking his own life. There are also observations in the written opinion that suggest the brother was not in a state of emotional equilibrium from when he first came to Australia until his marriage failed and that the marriage in fact failed because he was unable to express emotions.

6. In a recent judgment of Burchett J in Daphne Teo v The Minister for Immigration and Ethnic Affairs, 25 October 1994 unreported, his Honour discussed the two criteria in s131A(1)(d)(v). After referring to Prasad v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 856, Burchett J said:
   

"The difficulty with the view that there is reflected upon the expression "irreparable prejudice" the concept of gravity involved in the expression "extreme hardship" is that it overlooks the alternative nature of what is conveyed by the total expression "extreme hardship or irreparable prejudice". One alternative does limit the hardship with which it is concerned by reference to its gravity; the other does not, and instead, limits the prejudice with which it is concerned by reference to the question whether it is irreparable. But the ground, in either case, must be an "other compassionate ground". The prejudice must be more than a small prejudice, since, given that it is irreparable, it must be enough to excite compassion in the sense indicated by his Honour, and, as I have pointed out, in a sense reasonably commensurate with the compassion involved in the earlier grounds with which the drafting of the regulation associates it."

1. In Teo, supra, his Honour was considering the relationship between a brother, the applicant for a concessional entry permit, and a sister who was an Australian citizen and said in relation to them:
   

"That being so, the question was not whether the prejudice she would suffer from the denial of an entry permit to her brother was "extreme", or any synonym for that word. The criterion would be met if her plight would excite compassion, as that concept must be understood in the sub-paragraph, where it is associated with other compassionate grounds referring to the consequences of the rupturing of relationships of a familial kind."

1. In this matter I am not satisfied that the Tribunal gave adequate consideration to the effect on the brother of the second applicant being denied an entry permit having regard to the material before it and what is comprehended by the expression "irreparable prejudice".

2. In saying this, I am not expressing the view that the Tribunal was wrong in the conclusion it reached. Rather I am considering whether the error it made was material to its decision. Davies J said in Waterscheid Australia Pty Ltd v Collector of Customs (1987) 7 AAR 555 at 566:
   

"The Court will not necessarily set aside a decision simply because an error of law in the reasoning process has been identified. It will not set aside the decision if it is satisfied that the error was immaterial and did not affect the decision in a material way, then the decision ought to be set aside."

See also Conway v Repatriation Commission (1988) 9 AAR 397 at 409, Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 and BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 254.

1. The error the Tribunal made, caused it initially to describe the position of the brother as "not relevant". Its later analysis in its decision of the brother's position is not an adequate one. Accordingly, there is a real prospect that its conclusion on the relevance of the brother's situation distracted it from any proper consideration of it. I am unable to conclude that the error was immaterial and did not affect the ultimate decision. The decision should be set aside and the matter remitted to the Tribunal, differently constituted. The respondent should pay the applicants' costs.