Kuar, R. & Anor. v The Honourable Nick Bolkus, Minister of State for Immigration, Local Government and Ethnic Affairs

RAJ KUAR and ASHWANI SINGH v. THE HONOURABLE NICK BOLKUS, MINISTER OF STATE
FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G260 of 1993
FED No. 613
Number of pages - 18
Immigration Law
(1993) 44 FCR 380

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LOCKHART J

CATCHWORDS

Immigration Law - review of decision of Minister refusing December 1989 (temporary) entry permit - extension of time for bringing application sought - whether compassionate ground relating to extreme hardship or irreparable prejudice to Australian citizen exists - whether failure to give proper consideration to applicants' hardship - whether Minister should have made enquiries directly of applicants - interpretation of Migration Regulations and Policy Control Instruction No. PC 1810.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

HEARING

SYDNEY, 13, 27 August 1993

#DATE 3:9:1993

Counsel for the Applicants: N J Williams

Solicitors for the Applicants: John McEncrowe and Company

Counsel for the Respondent: C Simpson QC and P I Lakatos

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. Leave to extend time for lodging the application by Raj Kuar and Ashwani Singh seeking review of a decision of the respondent made on 12 June 1992 refusing to grant a "December 1989 (temporary) entry permit" to the first applicant be granted.

2. The application be dismissed.

3. There be no order as to costs of any party.

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

JUDGE1

LOCKHART J This is an application by Raj Kuar (Mrs Kuar) and her daughter Ashwani Singh (Mrs Singh) seeking review of a decision of the respondent, the Minister of State for Immigration, Local Government and Ethnic Affairs made on 12 June 1992 refusing to grant a "December 1989 (temporary) entry permit" to Mrs Kuar. The application for review is based partially upon the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"); but it has been brought out of time, so leave to extend the time for lodging the application is required under s. 11(1)(c) of the ADJR Act.

Mrs Kuar is an Indian Fijian citizen. She was born on 7 October 1946. She arrived in Australia on 12 December 1987 on a visitor's visa which expired on 16 March 1988. She has remained in Australia illegally since then. She is divorced and has four children, three of whom reside in Australia. Her eldest daughter, who is also divorced, lives in Fiji where she supports three children. They live in poverty.
Mrs Singh arrived in Australia from Fiji in May 1987. She is 24 years of age. She separated from her first husband in January 1988, that is some six or seven months after arrival in this country. She is divorced from her first husband. She became an Australian citizen in November 1989 and married her present husband on 30 April 1990. Her present husband came to Australia in August 1990, also from Fiji. She has a young daughter by her first marriage who was naturalized as an Australian citizen on 30 November 1989. Mrs Singh lives with her husband in Green Valley, New South wales.
Mrs Kuar has a son, Aditja Diwakar, who lived in Fiji until he came to Australia on 3 October 1992.
The fourth child of Mrs Kuar is a teenage daughter. She lives with her father, the former husband of Mrs Kuar, also in or about Sydney.
Mrs Kuar has lived with her daughter, Mrs Singh, since she (Mrs Kuar) arrived in Australia. Mrs Singh looks after her mother.
Apart from Mrs Kuar's brother-in-law who lives in Fiji, all her relatives have migrated to Australia, Canada or America.
Mrs Singh and her husband are both employed and are away from home during much of the day. Mrs Kuar helps look after her granddaughter (Mrs Singh's daughter) while Mr and Mrs Singh are at work.
Evidence was given by Mrs Singh, Mr Diwakar, Mrs Diwakar, Dr V K Goyal and Mr S Singh. This evidence was led by counsel for the applicant in support of the motion for leave to bring the ADJR Act application out of time and for a declaration of right that Mrs Kuar falls within regulation 131A(1)(d)(v) of the Migration Regulations and is entitled to the grant of a December 1989 (temporary) entry permit. Regulation 131A(1)(d)(v) applies if there are compassionate grounds for the grant of an entry permit, to the effect that refusal to grant it would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident. Certain of this evidence is admissible in support of the motion for extension of time, and some of the evidence would be admissible in support of the declaration of right. The determination of the question whether the applicants are entitled to such a declaration is a matter which I decided to determine in my judgment and not during the hearing. I therefore allowed this evidence to be given subject to objection and relevance. This course did not cause inconvenience or injustice to any party. Indeed, Mrs Kuar anticipated this approach because the affidavits prepared and filed on her behalf dealt mainly with evidence of this kind. As I have concluded, for reasons to be given later in this judgment, that the applicants have no basis in law for the declaration of right which they seek, the evidence is rejected as inadmissible. In case the matter goes further I shall state my findings of fact with respect to this evidence.
Both Mrs Singh and her brother, Mr Diwakar, gave evidence as to what would happen if their mother was obliged to return to Fiji. Mr Diwakar gave evidence that he is happily married in Australia. Although he is unemployed at present, he is looking for a job and hopes to find one. He sees his life as being in this country especially as he is now a permanent resident and he would not return to Fiji to look after his mother, though he would do whatever he could from Australia by way of financial assistance and otherwise whenever he was able to do so.
Mrs Singh gave evidence that if her mother was required to return to Fiji, either she or her brother would have to return there with their mother to look after her because there is nobody else there to do so.
In my opinion if Mrs Singh was obliged to return to Fiji it is unlikely that her son would leave Australia to accompany her, but it is likely that he would do whatever he could, though his means would be very limited at present, to assist her in Fiji. Although Mrs Singh said that she would be obliged to return to Fiji to look after her mother, it is apparent from the evidence that it is most unlikely that her husband will return to Fiji. Mrs Singh would thus be placed in the dilemma that if she returned to Fiji with her mother, probably she would not have her husband with her and possibly not even her daughter; but if she stays in Australia she will retain both her husband and her daughter. I have no doubt that if Mrs Kuar has to go back to Fiji, Mrs Singh will do whatever she can to look after her, but any financial assistance will be limited. I do not accept that the probability is that Mrs Singh will return to Fiji to look after her mother on any permanent basis. Mrs Singh will not run the risk, by returning to Fiji, of breaking up her marital life and possibly risk not having her daughter with her in Fiji. In addition, it is essential for both Mr and Mrs Singh that they have joint income in order to live, and Mrs Singh's return to Fiji would deprive her of her ability to earn income or at least income of the same order which she derives in Australia. She gave evidence that if she returns to Fiji, her husband will be unable to repay the mortgage by himself from his own income, so the house will have to be sold.
I sympathize with Mrs Singh and her predicament as plainly she does not want her mother to go back to Fiji, but I cannot accept that she will return there with her. She would be unemployed in Fiji as an Australian citizen and would be unable to provide financial support for her mother, let alone herself, her mother and her daughter if she returns to Fiji.
Mr Diwakar, Mrs Kuar's son, is 23 years of age. He applied to migrate to Australia on 25 May 1992 and arrived here on 3 October 1992. On his arrival he joined his wife and since that date they have lived together. He has cared for his mother and taken her to doctors, purchased medicines and provided her with emotional and financial support. Whilst in Fiji he was employed as a sound recordist in a broadcasting house in Suva. He has not been able to secure employment here, but he has accepted casual work employed as a disk jockey to help support his wife and himself. He married his wife on 26 January 1992 in Fiji. His wife is an Australian citizen and her family lives in Sydney. Plainly, if Mrs Kuar is obliged to return to Fiji, her son will be upset by being separated from her.
Natalina Diwakar is the wife of Mr Aditja Diwakar. They visit Mrs Kuar on a very regular basis. Mrs Diwakar graduated in Arts from Macquarie University in 1992 and is at present studying a speech pathology course as a post graduate student at Sydney University which she intends to complete three years hence. She works on a casual basis and attends lectures 24 hours a week. Mr and Mrs Diwakar both stay with Mrs Kuar in the evenings until Mrs Singh returns home after work.
Evidence was given by Dr V K Goyal of Liverpool, a medical practitioner. Mrs Kuar has been a patient of Dr Goyal since 5 September 1992. He has seen her on five or six occasions since then. Since 5 September 1992 Mrs Kuar has suffered from cervical spondylosis, arthritis mainly in the right shoulder, migraine headaches, hypertension and fainting attacks. She has also suffered a bout of influenza. It appears that Mrs Kuar faints from time to time and it is something of a chronic problem. Her hypertension, however, is mild, the highest reading being on 16 June 1993 when the blood pressure level was 140/95 and mild hypertension tablets were prescribed for her. The doctor is of the view that she needs to have a specialist cardiovascular investigation.
Plainly Mrs Kuar is not a well woman; but I am satisfied that, none of her health problems appear to be of a serious nature, except her consistent fainting attacks. If she returns to Fiji, however, I am satisfied that the health care which she will receive is likely to be of a fairly limited kind.
It is clear from the evidence including that of Sukhendra Singh (who was employed until about 1987 as a Senior Administrative Officer in the Public Service Commission of the Government of Fiji), that Fiji does not provide welfare facilities of the same kind as are provided in Australia. If Mrs Kuar returns to Fiji she will find considerable difficulty in obtaining assistance from any government agency and will have to rely to a fairly considerable extent upon whatever financial or emotional support her children will give her. There are public hospitals in Fiji and outpatient care can be provided to her.
This completes my findings on the evidence admitted subject to objection and relevance.
Mrs Kuar lodged her application for a December 1989 (temporary) entry permit on 1 June 1991. The ground on which the application was based was that she was able to satisfy the requirements of reg. 131A of the Migration Regulations. Section 34 of the Migration Act 1958 ("the Migration Act") provides, so far as relevant, that where it appears to the Minister that the applicant is under the Regulations entitled to be granted an entry permit of the relevant kind, the Minister shall, subject to Division 3 of Part 2 of the Migration Act, grant the applicant such an entry permit (s. 34(3)). Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit (s. 34(4)).
An applicant for an entry permit must satisfy the prescribed criteria in relation to the relevant class of entry permit at the time of application and as applicable at that time (Reg. 34A(1)).
A person is entitled to be granted an entry permit (subject to certain immaterial exceptions) if the person satisfies the prescribed criteria in relation to that entry permit (Reg. 42(1)).
Regulation 131A prescribes the criteria in relation to a December 1989 (temporary) entry permit which is the relevant permit and to which I shall refer as "the entry permit". Regulation 131A prescribes, amongst other things, that the criteria to be satisfied in order to gain an entry permit are that the applicant for the permit was a prohibited non-citizen on or before 18 December 1989, the applicant was in Australia on and has not left Australia since 18 December 1989, the applicant has applied in accordance with the regulations before 19 December 1993 for the entry permit and:

"...

(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 satisfied 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; ..."

Regulation 131A(2) provides that "compassionate ground" within the meaning of that regulation 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.
The Minister was satisfied that Mrs Kuar satisfied the criteria mentioned in Reg. 131A(1)(a), (b) and (c). He decided that Mrs Kuar did not fall within the requirements of Reg. 131A(1)(d)(i) or (ii). The Minister decided that Mrs Kuar is aged 45 and cannot fall within reg. 131A(1)(d)(iii) or (iv). It is not suggested that the decision in this respect was erroneous. The Minister then proceeded to consider the application on the basis of reg. 131A(1)(d)(v).
Before turning to the relevant determination of the Minister, it is important to note that reg. 131A(1)(d)(v) relates the compassionate grounds for the grant of the entry permit to the effect refusal to grant it would have, not on the applicant for the entry permit, but on an Australian citizen or an Australian permanent resident.
Mrs Kuar's application of 1 June 1991 was in a standard form. It contained information referring to Mrs Singh as an Australian citizen on whom Mrs Kuar was dependant; her dependency was defined as being:

"Accommodation provided. As is food and any other assistance including medical, financial and emotional support. These are not available to me in Fiji."

The form of application was sent to the Department of Immigration and Ethnic Affairs by Mrs Kuar's solicitors by letter dated 21 May 1991. The letter enclosed the form of application and a number of documents in support of it which are not relevant for present purposes. The application was acknowledged by the Department as having been lodged on 1 June 1991. A letter was then written by the Department to Mrs Kuar care of her solicitors asking for certain further information including:

"Other; (1) evidence of dependency on your daughter Ashwani Singh and (2) details of extreme hardship or irreparable prejudice that would be caused to your nominator if you were required to leave Australia ..."

Mr Singh was her mother's "nominator". Mrs Kuar's solicitors wrote to the Department by letter dated 6 November 1991 noting that the Department requested further evidence of Mrs Kuar's dependency on Mrs Singh and details of hardship or prejudice that would be caused to Mrs Singh, and answered the request for further particulars as follows:

"1. Dependency, her daughter Ashwani Singh a. Mrs Kuar is an aged person and has no formal education. b. Mrs Kuar has no relatives in Fiji as they are now living in countries other than Fiji. c. Accordingly, Mrs Kuar would have no where to live in Fiji. d. As she is aged, has no education or formal qualifications she would be unable to locate work and would be destitute.

e. We are further instructed that Mrs Kuar has no friends to rely on in Fiji for housing or financial assistance.

Mrs Kuar is dependant on her daughter Ashwani Singh who provides herewith accomidation (sic), food and other care when required. We are instructed that this would not be available should Mrs Kuar be required to return to Fiji.

2. Prejudice and Hardship of Ashwani Singh a. Ashwani Singh would be most concerned for her mother as her mother would not have any where to live nor anyone to rely upon. b. A strong caring relationship exists between Mrs Kuar and her daughter Ashwani Singh.

c. Mrs Kuar looks after her grand daughter, that is the daughter of Ashwani Singh, thereby enabling her to work full time. Ashwani Singh would be unable to afford full time child minding thus if her mother was unable to look after her daughter then it would eventuate that Ashwani Singh would most likely be required to leave her employment in order to look after her daughter. This would cause extreme hardship to Ashwani Singh as she will be unable to meet her financial committments (sic) and would be forced to rely on assistance from the Department of Social Security. It is our respectful submission that there are sufficient evidence to support our client's Application to remain in Australia, and in particular evidence of dependency upon her daughter Ashwani Singh and details of the extreme hardships and prejudice that would be caused to Ashwani Singh if Mrs Kuar was required to leave Australia.

Should you require any further information or clarification of any of the above points, please do not hesitate to contact the writer."

Officers of the Department prepared a submission to the Minister's delegate as the decision maker, which stated as follows:

"ASSESSMENT OF CLAIMS

...

3. It is understandable that Mrs Kuar's daughter and other family members might feel some concern if she had to return to Fiji and re-establish herself at age 45 after an absence of 5 years. It seems reasonable to expect however that she might eventually become settled once more and that her daughter's fears about her mother's welfare might diminish, especially if they choose to keep in touch with each other. It is also not impossible that Mrs Kuar's 2 sons and 2 daughters might between them consider the possibility of providing her with some financial assistance, at least initially, until she becomes settled. I therefore did not conclude that the level and extent of concern that Mrs Kuar's departure might give rise to could be said to amount to extreme hardship or irreparable prejudice.

4. I concede that Mrs Kuar's daughter would feel very sad if her mother had to depart Australia, given their close relationship. They would still however be able to maintain their relationship at a distance if they chose and it seems reasonable to believe that this contact could play some part in alleviating her daughter's unhappiness. Although I did not attach too much importance to this fact, it appears that Ashwanti's father, brother and sister are in Australia at present and it may be that their presence here could assist her to come to terms with her mother's absence. And although this point was not central to my consideration of the application, it may also be worth noting that in the event that these other family members are required to return to Fiji, they might then be in a position to provide some emotional support for Mrs Kuar. Therefore, although I could concede that Mrs Kuar's daughter would feel a sense of loss at the departure of her mother, I did not reasonably conclude that this could cause her to suffer extreme hardship or irreparable prejudice.

5. It is understandable that Mrs Kuar's daughter would prefer to work full-time rather than receive social security benefits and I agree that she could be disadvantaged if, as a result of her mother's departure, Ashwanti did in fact have to give up work and rely on social security benefits in order to mind her child. There was nothing in the material I had before me however to indicate that the disadvantage she might suffer as a result would amount to extreme hardship or irreparable prejudice. D. RECOMMENDATION

10. Following my findings on material questions of fact at 1-4 above, and my assessment at 5-9 above, I conclude that the applicant fails to meet the legal and policy requirements for the grant of a December 1989 (temporary) entry permit under Regulation 131A of the Migration Regulations.

11. The applicant is also not eligible for any other class of entry permit, and therefore cannot be granted an entry permit under Section 34 of the Migration Act 1958.

12. Hence, I recommend the application be refused. I also recommend that the application for a Processing Entry Permit at f.27 be refused."

The delegate approved the recommendation and refused the application for an entry permit on 12 June 1992.

Mrs Kuar was notified of the decision refusing her the entry permit by letter dated 15 June 1992.
This is the factual matrix in which this proceeding is brought.
The first matter to which I shall turn is the motion by Mrs Kuar under s. 11(1)(c) of the ADJR Act for an extension of time within which to lodge her application for an order of review under that Act. The principles governing the exercise of this discretion are well established. The Court should not surround the exercise of its discretion with unnecessary constraints; rather "it is best left to the good sense of the judge hearing each case": see Hickey v Australian Telecommunications Commission (1983) 73 FLR 291 per Lockhart J at 297; Wedesweiller v Cole (1983) 71 FCR 256 per Sheppard J at 259-60; Pozniak v Minister for Health, unreported decision of Burchett J, 14 March 1986.
Mrs Kuar arrived in Australia, as mentioned above, on 21 December 1987 on a visitor's visa which expired on 16 March 1988. She applied for the entry permit on 1 June 1991, the application was refused on 12 June 1992, the refusal was communicated to her by letter dated 15 June 1992 which I assume reached her within two or three days thereafter (the contrary is not suggested) and therefore had a right to apply for review within 28 days thereafter. Mrs Kuar applied on 9 July 1992 to the Migration Internal Review Office for review of the decision refusing her the grant of an entry permit. This application was refused on 25 August 1992 but on a technical ground, namely, that an application by persons illegally in Australia on 18 December 1989 for permanent residence is not reviewable by the Migration Internal Review Office except for one category which was not relevant. The letter stated to Mrs Kuar that any relevant review right would have been to the Immigration Review Tribunal. On 16 September 1992 application was made to the Immigration Review Tribunal for review of the decision refusing the entry permit. On 23 September 1992 the Immigration Review Tribunal wrote to Mrs Singh requesting certain further information relevant to the application for review then before the Tribunal. On 11 December 1992 the Immigration Review Tribunal informed Mrs Singh that the application to the Tribunal for review could not be accepted because it was out of time.
On 24 December 1992 further application was made by Mrs Singh, the precise nature of which is not easy to glean from the evidence. The application included a request for a refund of the fees paid in respect of earlier applications by herself or her mother to the Department. On 30 March 1993 the Department decided that Mrs Kuar was not eligible to reapply for an entry permit in Australia which had already been refused, and rejected the further application. On 2 April 1993 this refusal was communicated to Mrs Kuar.
On 30 April 1993 the application for judicial review was filed.
I am satisfied that in all the circumstances the considerable delay that elapsed from the time of the making of the decision of the delegate of 12 June 1992 refusing Mrs Kuar's application for the entry permit to the date of the filing of the motion for extension of time to lodge the application for judicial review, namely, almost ten months, is sufficiently explained from the recital of the facts which I have made and that in all the circumstances the time in which to lodge the application for judicial review should be granted.
I turn to the grounds of challenge to the Minister's decision of 12 June 1992.
I shall consider first the argument of counsel for the applicants that they are entitled as of right to a declaration that they are persons to whom reg. 131A(1)(d)(v) apply. This basis of the Court's jurisdiction to make such a declaration was said to be the Court's accrued jurisdiction. Section 39B of the Judiciary Act was also relied on.
It was argued that it is for the Court on the evidence before it, not merely the evidence that was before the Minister, to determine whether or not there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant it would cause extreme hardship or irreparable prejudice to Mrs Singh as an Australian citizen.
The question arises whether the Court is entitled to take into account material which was not before the decision-maker. The question has received consideration in the context of review under the ADJR Act: see, for example, Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 and as to s. 39B see Davies J in Narish Holdings Pty Limited v Commonwealth (unreported, 7 December 1988) referred to in Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 at 417. See also Pincus J's decision in Textron Pacific Ltd v Collector of Customs (Qld) (1987) 17 FCR 305. See also Naumovska v Minister for Immigration, Local Government and Ethnic Affairs (1982) 41 ALR 643 and (1989) 88 ALR 589 at 597 and 602 and see Kyung Chol Kim v Minister for Immigration, Local Government and Ethnic Affairs, Wilcox J, unreported, 26 February 1993, p 1. Although the criteria specified in reg. 131A are not expressed (except in relation to paragraph (e)) in terms of the Minister's discretion or opinion, the Migration regulations must be read in the light of ss. 33 and 34. Section 34, so far as relevant, provides that where it appears to the Minister that the applicant for an entry permit is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to the relevant Division, grant the applicant such an entry permit (s. 34(3)). Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit (s. 34(4)).
Section 33(1) provides that, without limiting the generality of s. 181, the regulations may make provision in relation to the grant and refusal of entry permits on conditions or otherwise and for the recording and evidencing of entry permits in relation to the effect and operation of entry permits and in relation to their cancellation (s. 33(1)). Section 33(2) provides that regulations made under sub-s. (1) may provide for different classes of entry permits and that subject to ss. 40 and 45 a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class (s. 33(2)(b)).
The criteria that may be proscribed include, but are not limited to, the criterion that the applicant receive the necessary score when assessed as provided by s. 41 (s. 33(3)). Section 33(4) specifies certain of the conditions subject to which temporary entry permits may be granted pursuant to regulations.
Regulation 42(1) echoes the language of s. 33(2)(b) of the Act by providing that, subject to ss. 40 and 45 of the Act, a person is entitled to be granted an entry permit referred to in the regulations if the person satisfies the proscribed criteria in relation to that entry permit.
In my opinion it is plain, especially from the terms of s. 33(3) and (4), that Parliament has vested in the Minister the power and duty of determining whether an applicant for an entry permit is under the regulations entitled or not entitled, as the case may be, to be granted an entry permit of the relevant class. The Minister must make his determination in accordance with law. I do not glean from the Act any legislative intention that it is the courts in which Parliament has reposed the task of determining as an objective matter of fact whether applicants for entry permits meet the statutory criteria. If an applicant is dissatisfied with the decision of the Minister then the decision may be reviewable, but only upon the usual grounds of administrative review or under s. 39B of the Judiciary Act.
The Parliament has provided for more than 30 different types of entry permits, each having its own prescribed criteria. Some of the criteria involve reference to objectively ascertainable facts, others to subjective judgments of manifold descriptions.
It is true that regulation 131A when prescribing various criteria does not, with the exception of reg. 131A(1)(e) refer expressly to the words "in the opinion of the Minister"; but that is because the whole of the regulation proceeds on the assumption that it is governed by ss. 33 and 34, in particular s. 34(3) and (4), namely, that it is for the Minister to determine whether it appears to him that the applicant for an entry permit is under the regulations entitled to be granted or refused such an entry permit.
Hence, it is for the Minister to determine whether regulation 131A(1)(d)(v) has been established, namely, whether there is any other compassionate ground for the grant of an entry permit to the effect that refusal to grant it would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident.
I therefore reject the argument that the applicants are or either of them is entitled to apply to the Court for a declaration of rights and that it is for the Court to determine on objectively ascertainable evidence before it that the terms of regulation 131A(1)(d)(v) apply.
Next, I shall consider the submissions made by counsel for the applicants based on the ADJR Act.
It was argued on behalf of the applicants that the decision-maker failed to take a relevant consideration into account in that there was no proper or genuine and realistic consideration given to the merits of the case, in particular to the effect of refusal of the application for entry permit upon Mrs Singh. The relevance of Mrs Singh's hardship arises from the terms of reg. 131A(1)(d)(v). Reference was made to Hindi v Minister for Immigration (1988) 20 FCR 1; Khan v Minister for Immigration (unreported), Gummow J, 11 December 1987; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184; Chumbairux v Minister for Immigration and Ethnic Affairs 74 ALR 480 at 495-6. Counsel for the applicant conceded that the terms of the recommendation to the decision-maker, which are extracted above, recognize certain of the matters of fact relevant in considering compassionate grounds under Reg. 131A(1)(d)(v); but, it was argued that the decision-maker failed to investigate the family links of Mrs Singh (that is to say, that she was married with a working husband, had a daughter of the marriage and had a brother, Mr Diwakar) and did not therefore ascertain that a decision might have to be made that either Mrs Singh or her brother or both of them return to Fiji with their mother if she was required to return to Fiji. In the circumstances it was argued that there was a failure to give proper consideration to the question of Mrs Singh's hardship.
It is clear that the material put before the delegate, including the application of Mrs Kuar and the subsequent correspondence from her solicitors to the Department, was all taken into account. In particular the delegate took into account the concern that Mrs Singh and other family members might feel if Mrs Kuar had to return to Fiji and re-establish herself at the age of 45 after an absence of five years. Consideration was given to the possibility of financial assistance being given by Mrs Kuar's "two sons and two daughters". This is obviously a mistake because Mrs Kuar has one son and three daughters, one daughter living in Fiji, one daughter being Mrs Singh, one daughter being a teenager and her son, Mr Diwakar. Consideration was given to feelings of sadness which Mrs Singh would feel upon her mother's departure; but it was stated that the two women would be able to maintain their relationship at a distance, if they chose, which might alleviate the daughter's unhappiness to some extent. Consideration was also given to the fact that Mrs Singh's father, brother and sister are in Australia at present and their presence here might assist her in coming to terms with her mother's absence. The delegate took into account the fact that there would be experienced by Mrs Singh a sense of loss at the departure of her mother, but concluded that it could not reasonably be said that this could cause her to suffer extreme hardship or irreparable prejudice. The delegate also took into account the fact that Mrs Singh preferred to work full time rather than receive social security benefits, and that if her mother returned to Fiji she might have to give up work and rely on social security benefits to mind her child. This was not considered a circumstance which, together with the other facts, would amount to extreme hardship or irreparable prejudice.
In the absence of an obligation by the Minister to make enquiries directly of Mrs Singh, in my opinion no error of the kind alleged by counsel for the applicant was made. Obviously decisions of this kind are difficult. The delegate recognized the difficulty, and balanced the emotional and other difficulties that would confront Mrs Singh if her mother returned to Fiji, but on balancing all the facts did not conclude that they constituted extreme hardship or irreparable prejudice. I am not satisfied that grounds have been shown to demonstrate the unreasonableness of that decision.
The question whether the Minister should have made enquiries directly of Mrs Singh raises a different matter. A person is entitled to be granted an entry permit of the requisite kind if that person satisfies the prescribed criterion in relation to that permit. Hence, if refusal to grant the permit would cause extreme hardship or irreparable prejudice to an Australian citizen (which constitutes a compassionate ground for the grant of the permit), the permit must issue. It is the hardship or irreparable prejudice to the Australian citizen, not the applicant for the permit, that is the critical question. It is plain from the documents that accompanied the application for the grant of a permit together with the form of the application itself, that it was Mrs Singh who was stated to be the relevant Australian citizen for this purpose. Whether Mrs Singh would have stated any more to officers of the Department if she had been written to or spoken to directly by them rather than through the solicitor for the applicants is a matter of conjecture.
Reliance was placed by counsel for the applicant on a policy direction, Control Instruction No PC 1810 ("the policy control instruction") which provides in paragraph 6:

"In assessing the 'extreme hardship' aspects of the criterion, decision makers should have regard to the following:

...

. links with family members should be investigated to ascertain whether they can provide assistance or support to lessen the hardship;"

The policy control instruction was a general direction given by the Minister pursuant to his powers under s. 179 of the Act, namely, a power conferred upon the Minister not to be exercised inconsistent with the Act or the Migration Regulations, to give general directions with respect to the performance of functions and exercise of powers by persons under the Act.
The role of policy control instructions has been considered in a number of cases, including Octet Nominees Pty Limited v Grimes (1986) 68 ALR 571 per Jenkinson J at 583 (affirmed on appeal in Octet Nominees Pty Limited v Minister for Community Services (1987) 15 FCR 199); and Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 150-1 where Heerey J considered policy control instruction no. 1787 relating directly to the factors to be taken into account by decision makers when assessing applications for entry permits of the kind with which this case is concerned. See also Re Drake v The Minister for Immigration (No. 2) (1979) 2 ALD 634 per Brennan J at 645 and (1979) 24 ALR 577; Choi v Minister for Immigration Local Government and Ethnic Affairs, Heerey J, 8 December 1992, unreported; and on appeal to a Full Court of the Court, 20 August 1993, unreported.
It was argued on behalf of the applicants that the terms of the policy control instruction required the Minister to make enquiries directly of Mrs Kuar's family members, in particular Mrs Singh.
When the central ground of the relevant criteria is the compassionate ground relating to extreme hardship or irreparable prejudice to an Australian citizen, in many cases it would be the duty of the relevant officers to make enquiries directly of the Australian citizen concerned, a requirement recognized by the terms of paragraph 6 of the control instructions.
In this case, however, the application for the entry permit was lodged by Mrs Kuar's solicitors who stated that they had been instructed to act for her in relation to her application for permanent residence. Mrs Singh signed a number of the documents that relate to Mrs Kuar's application for permanent residence. Mrs Singh signed the form of application for permanent residence in more than one place and in particular she signed it as the nominator of her mother for her application for residence.

The Department's letter which acknowledged Mrs Kuar's application lodged on 1 June 1991 was, as I mentioned earlier, sent to the solicitors for Mrs Kuar and specifically asked for the information of evidence of the dependency of Mrs Kuar upon her daughter, Mrs Singh, and the details of extreme hardship or irreparable prejudice that would be caused to her nominator if she had to leave Australia.
The letter of 6 November 1991 sent by Mrs Kuar's solicitors to the Department in reply provided the further evidence of dependency of Mrs Kuar upon Mrs Singh and the details of "irreparable prejudice".
It is obvious that much of the material furnished by the solicitors came from Mrs Singh. In all the circumstances I do not think it can be said that the Department acted unreasonably or contrary to law in not making enquiries itself directly of Mrs Singh or any other members of Mrs Kuar's family.
I have the clear impression from the whole of the evidence that Mrs Singh was directly involved in providing much of the material that comprised the form of application for residence and that she was the person who gave instructions to the solicitors on her mother's behalf.
In the circumstances of this case it cannot be successfully argued that the Minister failed to investigate "links with family members" to ascertain whether they could provide assistance or support to lessen any relevant hardship.
I turn to the argument of counsel for the applicants that the delegate took an irrelevant consideration into account, namely, that she speculated as to whether other family members of Mrs Kuar may be required to return to Fiji. This submission is based upon a portion of paragraph 4 of the reasons of the officer who made the recommendation to the delegate, the terms of which are set out above, which at the risk of repetition I will repeat:

"Although I did not attach too much importance to this fact, it appears that Ashwanti's father, brother and sister are in Australia at present and it may be that their presence here could assist her to come to terms with her mother's absence.

And although this point was not central to my consideration of the application, it may also be worth noting that in the event that these other family members are required to return to Fiji, they might then be in a position to provide emotional support to Mrs Kuar."

It is this last sentence which is challenged. At the time of the decision under challenge in this case, Mrs Kuar's son, Mr Diwakar, was not a permanent resident in Australia; so under Australian migration law what the officer of the Department was saying was that Mr Diwakar and his teenage sister and Mrs Singh's father may be obliged to return to Fiji in which case they would be there to provide some emotional support for Mrs Kuar, thereby alleviating emotional stress of Mrs Singh to some extent. It is arguable whether this is an irrelevant consideration. On balance I think it probably is, but the officer has said that the point was not central to her consideration of the application, and I do not regard it as an important aspect of her consideration of the matter.
The submission was then made by counsel for the applicants that the decision-maker took into account another irrelevant consideration, namely, paragraph 2 of the written policy directions of the Minister which is part of the policy control instruction. Paragraph 2 should be considered together with paragraph 1, the two of which read as follows:

"1. The following policy guidelines are provided for decision-makers on the use of the criterion relating to applicants who were illegally in Australia on or before 18 December 1989. Regulation 131A(1)(d)(v) prescribes the following criterion for the grant of a December 1989

(temporary) entry permit: 'there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident';

2. It should be noted that the qualified wording of the criterion (ie 'extreme' hardship and 'irreparable prejudice') is designed to ensure that this concession (to regularise the status of illegals) be used sparingly."

Paragraph 2 of the control instruction no. 1758 which is cast in the same terms as paragraph 2 of the policy control instruction relevant to this case was considered by Heerey J in Ali at 150-1. A similar paragraph was contained in an earlier policy control direction was considered by Keely J in Palavi v Minister for Immigration Local Government and Ethnic Affairs, unreported, 18 August 1992. Keely J said that the words in the policy control instruction:

"this discretion (should) be used sparingly and only in the most compelling cases"

were not consistent with the provisions of Reg. 131A(1)(b)(v). His Honour said:

"In my opinion a delegate, when considering whether the refusal to grant an entry permit 'would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident', is required by the regulation to consider the material before him as to the circumstances of the particular case, including the degree of the hardship likely to be caused and the question of what prejudice, if any, would occur and whether it would be irreparable.

The Policy Control Instruction PC 1758 expressly stated that 'the wording of the criterion (in reg 131A) is designed to ensure that this discretion ... be used sparingly and only in the most compelling cases'. I am unable to accept the respondent's submission that the words in the regulation justify the words in the policy 'be used sparingly'; nor do they justify the words 'only in the most compelling cases'. In my opinion the words 'be used sparingly' were likely to lead the delegate to be frugal or grudging in making his decision. The words 'only in the most compelling cases' were likely to distract the delegate from his task of considering the circumstances of the particular case before him, including the degree of likely hardship and the nature of any prejudice; they might well lead him to consider whether the hardship or prejudice, in the case before him, could be properly held to be such as to make it a 'most compelling case' when compared with the hardship or prejudice in other cases considered by him.

The delegate's duty was to consider the case before him in the light of the words in the regulation. Those who draft policy should remember the danger that lies in using different words from those used in the regulation. They should heed the warning given by Kitto J, who, in Federal Broom Company Pty Ltd v Semlitch

(1964) 110 CLR 626 at 633, said 'But fallacy lurks in paraphrase'.

The delegate, in having regard to that policy, had regard to an irrelevant consideration and failed to properly perform his duty in accordance with the criteria prescribed by reg 131A(1)(d)(v)."

Heerey J agreed with Keely J and said that his Honour's reasons applied equally to Ali. Each judge therefore held that the delegate in each case had regard to an irrelevant consideration and failed properly to perform his duty in accordance with the criteria prescribed by reg. 131A(1)(d)(v).
Regulation 131A(1)(d)(v) was considered again by Heerey J in Choi, decided by his Honour a few months after he had decided Ali. Although his Honour followed what had been said by him in Ali, he decided that the relevant part of the policy control instruction to which reference has already been made played no part in the reasoning of the Tribunal in the case before him. He could see no "specific instance" in which the reasoning of the Tribunal applied the terms of the policy control direction explicitly and certainly not in a way which disclosed an error of law. Indeed, his Honour said that the direction itself "does not seem to have played any decisive role at all in the reasoning of the Tribunal".
On appeal from Heerey J's judgment in Choi a Full Court of this Court held on 20 August 1993 (unreported) with respect to paragraph 2 of the relevant policy control direction (the same language as paragraph 2 of the policy control direction with which the present case is concerned):

"We accept his (i.e. counsel for the Minister) submission that paragraph 2, construed in its context, was not a policy statement that the power of the Departmental decision makers was to 'be used sparingly' in deciding whether there was 'any other compassionate ground for the grant of an entry permit' (sub-regulation 131A(1)(d)(v)) ('the sub-regulation'). We accept his submission that paragraph 2, read in its context, was a statement that, by reason of the words 'cause extreme hardship or irreparable prejudice', the criterion in the sub-regulation was likely to be found to exist 'only in a few cases because it is so hard to establish the facts that are required'.

The Minister's counsel accepted that paragraph 2 could be misread and that if it was so construed by the Tribunal it would have had regard to an irrelevant consideration. The appellant's counsel relied upon the decisions in Ali .... and Palavi ..... which was cited in Ali. However, those two decisions must now be read in the light of the opinion which we have expressed in these reasons as to the correct construction of paragraph 2 of the policy statement. We accept the submission of counsel for the Minister that paragraph 2 should not be so construed. We also accept his submission that the Tribunal, in reaching its decision, did not act upon a wrong construction of paragraph 2 and accordingly its decision was not tainted by an invalid direction contended by the appellant's counsel."

It follows from the judgment of the Full Court in Choi that the direction by the Minister to officers of his Department expressed in paragraph 2 is not upon its proper construction a direction that the power of the decision-maker is to be used sparingly in deciding whether there are any other compassionate grounds for the grant of an entry permit within the meaning of regulation 131A(1)(D)(v); but is simply a statement that to satisfy the terms of the criterion that refusal to grant the entry permit would cause "extreme hardship or irreparable prejudice", it is likely that the criterion will be met "only in a few cases because it is so hard to establish the facts that are required".
To the extent that statements are made by single judges of the Court in the previous cases of Palavi, Ali and Choi which are inconsistent with the pronouncements of the Full Court in Choi, they must be taken to be overruled.
In the present case the delegate specifically referred to the policy control instruction as being part of the material which she had before her when making her findings. In the light of this observation it seems to me that it could not be reasonably concluded that the delegate did not have regard to policy control instruction no. 2 which refers to the fact that the qualified wording of the criterion (ie. extreme hardship and irreparable prejudice) is designed to ensure that the concession be used sparingly was not taken into account by the decision maker. But I discern nothing in the material which was before the delegate to support a finding that she misread paragraph 2 as in effect a fetter upon the power which it was her duty to exercise.
This attack upon the decision of the delegate therefore fails.
The applicants have failed to establish their case, so the application must be dismissed.
The Court was informed by counsel for the Minister that in the event that the application be dismissed, the Minister does not seek costs against the applicants.
The orders of the Court are as follows:-
1. That leave to extend time for lodging the application by Raj Kuar

and Ashwani Singh seeking review of a decision of the respondent made on 12 June 1992 refusing to grant a "December 1989

(temporary) entry permit" to the first applicant be granted.

2. The application be dismissed.

3. There be no order as to costs of any party.

It is for the respondent to decide the fate of Mrs Kuar. Among the factors which it is to be hoped the respondent will take into account will be that Mrs Kuar has four children, only one of whom resides in Fiji and who appears to be in stringent circumstances with no apparent means of assisting her mother. Three of Mrs Kuar's children live in Australia. Her daughter (Mrs Singh) is an Australian citizen and her son is a permanent resident married to an Australian citizen. The third daughter is a teenager living with her father in Australia. Mrs Kuar's granddaughter, the daughter of Mrs Singh, presumably is also an Australian citizen.
Mrs Kuar is divorced and has no apparent means of support except those which her family in Australia can give her, and they are limited. She has problems with her health and is 45 years of age. The relationship between Mrs Kuar, her daughter (Mrs Singh) and her son (Mr Diwakar) is close; and, especially in the case of Mrs Singh, the close relationship will be severely strained if Mrs Kuar is obliged to return to Fiji.
Doubtless the respondent will take these and other matters into account when balancing them against the public interest considerations of people remaining in Australia who enter here on temporary entry permits which have long since expired and who are illegally in this country.
The balancing process is essentially a matter for the respondent to be carried out in accordance with law. It is not for this Court to assume the function of the respondent. But the matters mentioned above reveal a sad case.

[1993] FCA 613

03 SEPTEMBER 1993