Kakuleni, A v Minister for Immigration, Local Government & Ethnic Affairs

[1993] FCA 1049

l099 j 9 3

JUDGMENT NO. ...oow.....ews. rnmrw

C A T C H W O R D S

Ih4MIGRATION - December 1989 (temporary) entry permit - whether compassionate grounds for entry permit properly considered - circumstances supporting an appllcatlon as a "special needs relative" - applicat~on of the Minister's policy direction.

Mjeration Act 1958, s138

Migration Reeulations 1989, reg 131A(l)(d)(iv) g:	(v)
Policy Control Instruction, 26 November 1992

.All v Minister for Immieration. Local Government and Ethnic Affairs

(1992) 38 FCR 144

Prasad v Minister for Immipratlon. Local Government and Ethnic Affairs

(unreported) Federal Court, Jenkinson J, 22 March 1993

Tonaa v Immleration Review Tribunal (unreported) Federal Court, Beaumont J,

30 August 1993

No. NG 173 of 1993

REOlSTRY

O'CONNOR J

SYDNEY

3 DECEMBER 1993

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

? . .

RAT. COURT OF AUS- 1 1

NEW	S	O	u	m	~	s	m	1	No G173 of 1993
1

GENERAL DIVISION 1

On appeal from the Immigration Review Tribunal constituted by MS Maree Turner.

BETWEEN:

ATILUA KAKULENI

First Applicant

KAUFOOU LAFITANI

Second Applicant

AND:

MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND ETHNIC AFFAIRS

First Respondent

IMMIGRATION REVIEW TRIBUNAL

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER O'CONNOR J

WHERE MADE	SYDNEY
DATE OF ORDER	3 DECEMBER 1993
THE COURT ORDERS THAT:
The Appeal be dlsrnlssed w t h costs.

,' . ~ o t e : Settlement and entry of orders is dealt wth m Order 36 of the Federal Court

. . - Rules.

COURT OF AUSrXiALIB	1 1
) No. G173 of 1993

~ E W SOUTH WALPS DISTRICT REGISTRY

1

M W	SOUTH WALFS DISTRICT RFmSm'I[	1
1

N - 1

BEIWEEN:  ATILUA

First Applicant

r(AUFOOuLAl?lTANI

Second Applicant

AND:

M I N I S T E R F O R IMMIGRATION. LOCAL G O V E R N M E N T A N D ETHNIC AFFAIRS

First Respondent

IMMIGRATION REVIEW

TRIBUNAL

Second Respondent

CORAM:  O%onnor J

DATE:  3 December 1993

REASONS FOR JUDGMENT

Thls is an application for ~udiclal review of a declsion of the Immigration Review Tribunal ("the Tribunal") pursuant to s138 of the Migration Act 1958 ("the Act"),

affirming the decision of the Minister to refuse the second applicant ("the Principal")

a December 1989 (temporary) entry permit.

Eligibility for the entry permlt in questlon requlres the applicant to satlsfy the criteria

contained in regulation 131A of the Migrat~on Regulahons and certain other criteria

not in dispute in the present case.

Regulation 131A(l)(d) specifies the prescribed crlter~a	for ellgibllity and, in so far as
it is relevant, states:

"December 1989 (temporary) entry permit

13lA (1) The following crlter~a	are prescribed m relatlon to a December 1989
(temporary) entry permlt:
(a) ...
(b) ...
(C) ...

(d) on 15 October 1990 and continuously until the Minister dec~des to grant,

or not grant, the entry permlt: (1) ... (li) ... (in) ... (IV) the applicant is:

(A> .. (B) ...

(C) a special need relatlve; or

(D) ...

of a settled Australran citlzen or settled Australian permanent resldent; or

entry permlt, to the effect that refusal to grant the entry permit would (v) there 1s any other compassionate ground for the grant of an

cause extreme hardship or Irreparable prejudice to an Australian cltlzen

or Australlan permanent resldent;"

Special need relatlve 1s defined m Regulation 2:

"'spec~al need relatlve', In relat~on to an Australlan citlzen or an Australian permanent resldent usually resldent In Australia, means a relative who 1s willlng and able to give substantial continuing assistance to the citizen or resident where:

the citlzen or resident has a permanent or long-term need for

(a)	assistance because of death, disability, prolonged illness or other serious
clrcumstances affecttng the cituen or resldent personally, or a member of his or her family unit;
(b) the assistance cannot reasonably be obtalned from:

any other relative of the cltlzen or resident, belng a

(i) relative who is an Australian citizen or an Australian permanent

resident; or

(11) welfare, hospital, nursing or community services m

Austraha;"

The words "extreme hardshlp" and "irreparable prejudice" in regulatlon 131A(l)(d)(v) are also the subject of a Mi~ustertal Policy Direction dated 26 November 1992. It is convenient to set out the relevant portions.

"COMPASSIONATE GROUNDS

2          For the purposes of this crlter~on, regulatlon 131A(d) provides that the compasslonate grounds must have existed at the tlme of (the Minister's) announcement of thls concession (15 October 1990) and continue to exlst at the ttme of the declsion.

3          The cornpasslonate grounds would generally be characterised by clrcumstances based on the long-term or permanent situatton of the Australian party affected by the declsion. However, there may be cases of extreme hardship falllng wthln the concession which are not long- term.

RELATIONSHLP TO AN AUSTRALIAN PARTY

4          An assessment of the hardshlp andfor prejudice that would be suffered by Australtan cltlzens or residents should take into account the hardship that will be suffered by any Australian cittzens or residents who are likely to be affected. It 1s expected that those affected would usually be In a famlllal or other close emotional relationship wlth the appltcant. However, hardshlp andlor prejudice may arise from other relationships, for example, economlc or commerc~al. Officers should keep m mind that the hardshlp andfor prejudice must be of sufficient degree or duratlon to be seen as bang extreme or irreparable. As long as "extreme hardshlp" or "irreparable prejudlce" 1s llkely to occur, any Australian citlzens or residents who are likely to be affected should not be excluded from consideration. Hardship or prejudlce that is unllkely

or fal.:lful should be excluded.

EXTREME HARDSHIP

5          In assessing the "extreme hardship" aspects of the cr~terion, decision makers should have regard to the following:

*	the hardship may be financial, emotional or physlcal but must be substantial and quantified where possible;
*	links with family members should be investigated to ascertain whether they can provide assistance or support to lessen the hardship;
*	the existence and availability of other general community support services which the Australian party could reasonably access should be explored to assess whether these could be used to lessen the hardship.

IRREPARABLE PREJUDICE

6          It is accepted that some disadvantages will be caused to an Australian party dlrectly affected by the departure of an lllegal entrant with whom a close and long term relationship has exlsted. It is the degree and extent of the disadvantages that have to be assessed. An application should be approved only when the disadvantages amount to an Irreparable prejudlce. In assesslng applications, the following factors will be taken Into account:

S

all cla~ms should be examined and the nature of the prejudice

claimed and any potential remedles should be identified;

*

the reasons why the claimed prejudice cannot or is unlikely to be

remedled in the long term are to be tested;

* the prejudice should be long term or permanent.

GUIDING FACTORS

7          In assessment of matters above, the followmg factors should guide decislon makers:

*

claims of irreparable prejudice should be based on the long term

or permanent needs of the affected Australian party;

*

assessment is to be made of:

-

the nature and substance of links with legally resident
relatmes, or other legal residents or citizens,

. the financial, emotlonal and physical effect of refusal on those links;

the extent of difficulties arising to the Australian party in the

event of refusal should be determined;

*	whether the case has an unusual, unforeseen or other feature which 1s desening of a favourable response m the splnt of the compassionate provision should be assessed;
k	the health of the Australian citizen or resident dependent on the applicant, with the following considerahons:
-

if the applicant is required to leave and the Australian

party remains, the fmanclal dependency of the Australian and how loss of that support may Impact on the treatment of any disease or medical condition,

- if the Australian party goes with the apphcant, the availability of treatment in the applicant's country of usual or alternative residence."

The application for review relies on three maln grounds. These are that the tribunal erred in conflating the two grounds of "extreme hardship" and "irreparable prejudice"; that the Tribunal applied an ~ncorrect test in relation to circumstances that may support an appllcatlon as a "spec~al needs relat~ve"; and that the Tribunal erred in its application of the Minister's Pollcy Control Instruction.

The "Com~assionate Grounds"

The first issue concerns the so called compassionate grounds of "extreme hardship"

and "nreparable prejudice". Counsel for the applicant submitted that the Tr~bunal

had erred by conflatlng these two dlscrete grounds, with the consequence that

insufficient considerat~on was given to the latter ground. The basis for the submission

- 6

is that the Tribunal's reasons included the view that the legislature intended these

grounds to apply "only in extreme circumstances". The use of the word "extreme" in

relation to both concepts is said to indicate that the Trlbunal did not turn its mind to a proper interpretation of "irreparable prejudice" whlch has, it was submitted, a lower threshold and is thus an easler test to satisfy.

The critical paragraph at page 10 of the Tribunal's reasons states:

"The phrases 'extreme hardship' and 'irreparable prejudice' are strong phrases which indicate that the legislature intended them to find application only m extreme circumstances. According to the Concise Oxford Dictionary, 'hardship' concerns 'Hardship of fate or circumstance; severe suffenng or privation' and 'extreme' means 'having some characteristic in the utmost degree' as in farthest and utmost. Sundarly, 'prejudice' means 'injury' or 'detriment' and 'irreparable' means and (sic) injury or detriment 'that cannot be rectified or made good'. It appears from the evidence that any hardshlp that may be suffered is not 'extreme'. In this case, the prejudice suffered cannot be said to be 'irreparable'."

There is no doubt that hardshlp and prejudice are to be treated as separate concepts, as Heerey J stated in Ali v Minlster for Imm~~ration. Local Government and Ethnlc Affairs (1992) 38 FCR 144 at 148:

"Not only are hardship and prejud~ce two distinct criteria, but inquiry as to the

degree or extent of prejudice by no means necessarily poses the question whether that prejudice can be remedied or rectified. There may be great prejudice which is reparable and small prejudice which is not."

It may also be the case that "irreparable prejudice" imposes a less onerous threshold test. In Prasad v Mlnister for U r a t ~ o n . Iacal Government and Ethnic Affair5

(unreported) Federal Court, Jenlunson J, 22 March 1993, his Honour said, at page 14:

"It may be a mistake to think that the proper construction of the e~pression
'irreparable prejudice' is to be mfluenced by the gravity which the expression
'extreme hardship' connotes. But the construction of the former expression is
in my ~;inlon to be considered in the hght "f the requirement that what is to
be caused by the refusal of the permit should constitute a 'compassionate

ground'!'

There is nothing m the Tribunal's statement of reasons to indicate that the Tribunal

was unconscious of the d~fference between the cr~teria or faded to consider both criteria separately. In fact, the Tribunal took pains to d~fferentlate between the two in resorting to dictionary definitions for assstance.

The Tribunal's choice of the word "extreme" may have been infelicitous in the

circumstances, but I do not accept that its use was intended to convey anything other than its ordlnary meaning, which is given in the same paragraph. That is, the two

compassionate grounds are ~ntended	to apply in situations of "the utmost degree".
In the recent case of (unreported) Federal

Court, 30 August 1993, at page 10, Beaumont J rejected an argument that the

Tribunal's paraphrasing of the law was ~rnpermissible to the polnt of error, when his

Honour accepted that it was a means of "emphasaing the d~fficulty of meeting the

particular threshold laid down by the legislat~on". I would respectfully adopt his

Honour's reasoning m the present case.

Neither do I accept the proposition, put by counsel for the appllcant, that the Tribunal's "methodology" was wrong to the polnt of being an error of law. This

submission suggested that the Tribunal has a duty to identify the particular hardships or prejudices likely to be suffered by the applicant and then determine how the hardship might be mitigated or the prejudice repalred. This argument drew on the wording of the Minister's Policy Direction, also called the Policy Control Znstrucbon ("PCI"), dated 26 November 1992 which, it was said, required the decision-maker to make particular investigations.

The PC1 is expressed to requlre the decision-maker to "have regard to" certaln factors

and the reasons dlsclose that the Trlbunal did turn its mlnd to those factors. It is enough, under the legislation, for the Tr~bunal to find that the hardship or prejudice 1s not of a sufficient degree to warrant the grant of a permlt on compassionate grounds. The Tnbunal set out the evldence and its findings in the reasons and drew its

conclusions on that bass. In my view, the reasons could have d~sclosed more clearly the nexus between the statement of facts and the findlngs made about them, but it

cannot be sald that the facts provlde no basis for the conclus~ons drawn.

"Snec~al Need Relative"

In a further submlss~on, counsel for the appllcant cla~med that the Tribunal failed to

take account of relevant considerations when it rejected evldence concerning the medlcal conditions of the applicant's family. Thls subm~ss~on was to the effect that a

e

person may be a "special need relative" on and from the 15 October 1990, but the

reasons supportlng the special need appllcation may vary during the relevant period.

The Tribunal found that the Principal could not meet the criterion in relation to the applicant herself as she was not a permanent resident at 15 October 1990, but allowed a new application, pursuant to s121 of the Act, on the basls that the Principal met the criterion for "special need relative" in relation to her brother Kalafitoni Pouvalu. Mr Pouvalu's wife suffers a current medical condition and the youngest child is prone to fits and needs supervision. In the course of its determination, the Tribunal found that

the medical conditions suffered by Mrs Pouvalu were not manifest at the 15 October 1990 and thus could not support an appllcation on the compassionate grounds

spec~fied in regulation 131A(l)(d).

Counsel submtted that the only requirement under the regulation was for the

Principal to be a "spec~al need relative" for the specified durat~on, and the medical

evldence could and should go to supportlng the appllcation during the period the medlcal condition was manifest. Other eligbillty criteria, he said, could operate in

favour of the applicant at different tlmes, wlth the aggregation providing the necessary	cont~nuity.
I do not accept this submission. For a person to qualify as a special need relative "continuously", as required by the section, there m11 need to be a continuous set of circumstances which supports the eligibility, whether that be a medlcal condition or some other circumstance. There may conceivably be more than one interrelated

U

condition operating. But, as counsel for the respondent submitted, quite correctly, an

interpretation whlch accepted that a series of dlscrete conditions affecting different

family members at different times could aggregate to satis@ the continuity

requirement may potentially lead to absurdities and injustices.

Policv Control I n s t r u c t i ~

Counsel for the applicant also attacked the Tribunal's reasons over its application of

the Policy Control Instruction. It was submitted that the PC1 was partly invalid in so far as it requires "irreparable prejudlce" to the Australian party to be "long term or

permanent" (see paragraphs 3, 6 and 7 of the PCI). This requirement was said to be inconsistent with the regulation which specifies only that the "ureparable prejudice" exlst continuously from 15 October 1990 to the date of the Minister's deasion.

I am not convinced that the expression of the PC1 is necessarily inconsistent w th the

regulation. The word "irreparable", to my mind, Imports a quality of permanence slnce it means something "that cannot be rectified or made good". In any event, the

prejudice. Tribunal's reasons do not appear to have been coloured by the need to find long term

U

Accordingly, I am unable to conclude that the Tribunal's reasons are infected by

deficiencies which have led to error. I order the application dismissed with costs.

I certify that this and the 10 preceding pages are a true copy of the Reasons for Judgment of Justlce O'Connor

Associate: G-

Counsel for the applicant	Mr D Smallbone
Solicitor for the applicant	P K Slmpson & CO
Counsel for the respondent	MS R Henderson
Solicitor for the respondent	Australian Government Solic~tor
Date of hearing	22 November 1993