Kam, Soh Hah (aka Michael Kam) v Immigration Review Tribunal
[1998] FCA 965
•6 AUGUST 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - Application for class 812 (December 1989 (permanent)) entry permit - no evidence at relevant date of any action by relevant related person to nominate applicant capable of satisfying reg 812.722(d) - Migration (1993) Regulations (Cth) regs 812.722 and 812.723
Migration (1993) Regulations (Cth) - regs 812.722 and 812.723
Migration Act 1958 (Cth) - ss 34, 55 and 56
Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349, applied
Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176, applied
Scurr v Brisbane City Council (1973) 133 CLR 242, followed
Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8, followed
SOH HAH KAM (aka MICHAEL KAM) v IMMIGRATION REVIEW TRIBUNAL
QG 1 OF 1998
DRUMMOND J
6 AUGUST 1998
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 1 of 1998
ON APPEAL FROM THE IMMIGRATION REVIEW TRIBUNAL
BETWEEN:
SOH HAH KAM
(AKA MICHAEL KAM)
APPLICANTAND:
IMMIGRATION REVIEW TRIBUNAL
RESPONDENT
JUDGE:
DRUMMOND J
DATE OF ORDER:
6 AUGUST 1998
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondent’s costs of and incidental to the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 1 of 1998
ON APPEAL FROM THE IMMIGRATION REVIEW TRIBUNAL
BETWEEN:
SOH HAH KAM
(AKA MICHAEL KAM)
APPLICANTAND:
IMMIGRATION REVIEW TRIBUNAL
RESPONDENT
JUDGE:
DRUMMOND J
DATE:
6 AUGUST 1998
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application to review the decision of the Immigration Review Tribunal given on 4 December 1997, whereby the Tribunal determined to affirm the decision under review by it, which refused the grant of a class 812 (December 1989 (Permanent)) entry permit to the applicant. The relevant legislation is contained in the Migration (1993) Regulations (Cth). Regulation 812.72 provides criteria to be satisfied at the time of application. Regulation 812.722 requires that:
The applicant:
(a)was a prohibited non-citizen on or before 18 December 1989; and
(b)was in Australia on, and has not left Australia since, 18 December 1989; and
(c)applies before 19 December 1993 for the entry permit; and
(d)has been nominated by the relevant related person referred to in clause 812.723 (2), (3), (4), (5) or (6), as the case requires; and
(e)notifies Immigration, without unreasonable delay, of each change of the applicant’s residential address.
Regulation 812.723(1) requires that the applicant satisfy the requirements of subclause (2), (3), (4), (5) or (6), and subclause (6) of that regulation provides that an applicant will satisfy the requirements of this subclause if:
(a)there was, on 15 October 1990, any compassionate ground ... for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have cause extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident and
(b) the compassionate ground continues to exist.
Regulation 812.73 goes on to deal with the criteria to be satisfied at the time of the making of the decision whether to grant this particular class of entry permit. Regulation 1.3 provides that in these Regulations, unless the contrary intention appears, “nomination” means “a nomination in accordance with the relevant approved form”. The form here relevant is form 903, which Mr Kam lodged with the respondent on 17 November 1993.
Mr Kam was born on 30 March 1937 in Malaysia and is a citizen of that country. He arrived in Australia in April 1982 as a visitor and was granted a temporary entry permit allowing him to stay in Australia for three months. It appears no further entry permit was granted to him, so, on expiration of his entry permit in July 1982, he became a prohibited non-citizen and consequently an illegal entrant. He has not left Australia since coming here. His application was, as I have mentioned, lodged in November 1993 and a decision refusing the application was made by the delegate of the Minister on 14 May 1997.
In those sections of his form 903 dealing with the criteria in regs 812.722(d) and 812.723(6), Mr Kam wrote the letters “n/a”. There was no nomination of Mr Kam in the form by a person who answered the description referred to in reg 812.732(6); nor did this form contain any reference at all that touched on the possible existence, at application date, of a nomination of the kind referred to in reg 812.722(d).
Information provided to the respondent subsequent to the lodging by Mr Kam of his application for the entry permit and then in more detail, on behalf of Mr Kam, to the Tribunal suggests that at the time of application, Mr Kam may in fact have been able to satisfy criterion reg 812.723(1), at least in part, that is, in so far as he may then have been able to point to a Mr Leong as a person satisfying the requirements of reg 812.723(6)(a) by reason of Mr Leong’s reliance in October 1990 on Mr Kam for financial support. But it is clear that there was no evidence before the Tribunal that would have entitled it to find that any such reliance by Mr Leong on Mr Kam as may have existed in October 1990 continued to exist in November 1993, when Mr Kam made his entry permit application. There was therefore no evidence before the Tribunal that would have entitled it to find that Mr Kam then satisfied the criterion in reg 812.723(6)(b).
I reject the construction sought to be placed on reg 812.723(6)(b) by counsel for Mr Kam. Counsel suggested that, because Mr Leong would, in 1990, have faced a financial catastrophe but for Mr Kam’s assistance given at that time, it could be said that even though there had been no reliance by Mr Leong on Mr Kam for support for some years between October 1990 and November 1993, subclause 6(b) of the regulation was satisfied: Mr Leong could be said to have still then been in receipt of an on-going benefit he got from Mr Kam’s support in 1990, as a result of being able to avert financial catastrophe. But what subclause (6)(b) of the regulation requires in the present context, at the very least, is the existence in November 1993 of the need by Mr Leong for financial support from Mr Kam. There was no evidence before the Tribunal to suggest that that was the situation in November 1993. Subclause (6)(b) is not satisfied because the Australian citizen who was, in October 1990, reliant on an applicant for an entry permit in a way sufficient to satisfy subclause (6)(a) still receives the benefit of that reliance at permit application date, even though his or her reliance on the applicant has in fact ceased prior to the application date.
The application for review must be dismissed on the ground that there was no evidence before the Tribunal to show that Mr Kam satisfied reg 812.723(6)(b).
Further there was, in my opinion, no evidence before the Tribunal from which it could conclude that Mr Leong may have taken any action by the application date that could amount to his having then nominated Mr Kam sufficiently for the purposes of reg 812.722(d). In Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349, Davies J said, at 358, in relation to a different regulation, but in words which are, in my opinion, equally applicable to the regulation now under consideration:
A nomination, in this context is a positive act proposing, sponsoring or supporting an applicant for the entry permit sought.
The decision in Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176 is entirely consistent with this approach to what is meant by the concept of a nomination of the kind referred to in reg 812.722(d): see particularly page 181.
The application form itself, as I have said, contains nothing that could be said to constitute a nomination by Mr Leong of Mr Kam. In reliance on the definition of “nomination” in reg 1.3 to which I have referred, the Tribunal held that this particular deficiency in the application was fatal to Mr Kam’s claim to entitlement to the entry permit he sought. The expression in reg 813.722(d) is “has been nominated by”. Regulation 1.3 only purports to define the term “nomination.” It is not necessary to determine if the Tribunal’s construction of the regulations was correct, having regard to the view I have taken as to the absence of any evidence that Mr Leong had, in fact, done anything by application date that could entitle the Tribunal to find that he had then nominated Mr Kam sufficient for the purposes of reg 812.722(d).
The appellant’s counsel argued that Mr Kam complied substantially with the requirements of reg 812.722(d), notwithstanding the fact that his application failed to make any reference to his having a person capable of meeting the requirements of reg 812.723(6)(a). Reference was made to ss 55 and 56 the Migration Act 1958 (Cth), and to departmental practice, followed here, of seeking from the permit applicants further information, here, information with respect to the existence of Mr Leong, by the Department’s letter of 27 March 1997.
But if regs 812.722 and 812.722(d) properly construed require a statement of nomination in form 903, no question can arise as to whether that particular requirement is directory or mandatory. On either view, the criterion is not complied with if there is no nomination statement at all set out in the form: see Scurr v Brisbane City Council (1973) 133 CLR 242 at 256.
Section 55 of the Act can be accepted as applying to the decision-maker when he came to deal with Mr Kam’s application for the entry permit, even though that application was made prior to the coming into effect of s 55. Its terms are such as to make that clear, and it is unnecessary to determine whether the characterisation of s 55 as procedural or substantive is of any relevance. But even though s 55 can be taken as having applied to the decision-maker when a determination was made upon Mr Kam’s application, that section cannot operate to permit the Minister to relieve Mr Kam of obligations to comply with a statutory criterion that can only be satisfied if there is in existence a certain set of factual circumstances at the application date. Either there exists in fact at that date action by Mr Leong or someone else capable of amounting to his or her nomination of Mr Kam that is sufficient for the purposes of reg 812.722(d) or there is, in fact, a statement of nomination in form 903 (if that is what is required).
Nor can any question arise as to whether the respondent has waived the requirement imposed by reg 812.722(d), for example, by the Department sending its letter of 27 March 1997 to Mr Kam soliciting more information from him, or by the receipt by the decision-maker, subsequent to the making of the application, of information indicating that at the time Mr Kam made his application he may have been able to satisfy the requirements of reg 812.723(6), at least in part. Waiver on the part of the grantor of an option cannot arise to justify the conclusion that the grantee has effectively exercised the option: either the grantee has taken all the steps prescribed by the option agreement for its exercise or he has not. See Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8 at 17 and 18. So waiver cannot arise here where the regulations prescribe requirements of the kind contained in reg 812.722(d) that must be satisfied at the time of application for the entry permit if the applicant is to be entitled to the grant of a permit: either the applicant has satisfied those requirements or he has not. There is nothing that can be waived.
On any view, the application must be dismissed.
The Tribunal rejected an argument that Mr Kam was entitled to an absorption visa under s 34 the Migration Act 1958 (Cth). It appears clear that, at the relevant date, Mr Kam was a prohibited immigrant and so could not qualify for such a visa. But even so, his circumstances, so far as they are revealed by the evidence before me which I recognise may well be incomplete, indicate that the result of this case may be considered to be a harsh one. Mr Kam has been resident in Australia continuously since 1982. In 1986 he made application to the Department for authorisation of his residence. At that time it appears that the Department took possession of his Malaysian passport and it was never returned to him. And notwithstanding what happened in 1986, so far as the evidence before me indicates, there is nothing to suggest that the Department took any action thereafter to remove Mr Kam from Australia. Moreover, there is evidence before me that he has paid income tax regularly. It matters not whether he did that because that was simply the obligation imposed by law. The fact that he did make the payments and that the Commonwealth did accept those payments, if indeed they were made as he says, over such a long period, is another factor that bears upon the harshness of the Commonwealth now taking action to remove Mr Kam from the country, if that is what occurs.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.
Associate:
Dated: 6 August 1998
Counsel for the Applicant: L Boccabella Solicitor for the Applicant: Hawthorn Cuppaidge & Badgery Counsel for the Respondent: CE Holmes Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 August 1998 Date of Judgment: 6 August 1998
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