Kuar, R v Bolkus, N
[1994] FCA 60
•24 FEBRUARY 1994
RAJ KUAR and ASHWANI SINGH v. THE HONOURABLE NICK BOLKUS, MINISTER OF STATE
FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G763 of 1993
FED No. 60/94
Number of pages - 5
Immigration Law
(1994) 48 FCR 343
(1994) 33 ALD 741 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAUMONT, FOSTER AND DRUMMOND JJ
CATCHWORDS
Immigration Law - review of decision of Minister refusing December 1989 (temporary) entry permit - whether declaration of right should have been made - whether compassionate ground relating to extreme hardship or irreparable prejudice to Australian citizen exists - whether failure to give proper consideration to alleged hardship.
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958
Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 cons.
Kyung Chol Kim v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Wilcox J, 26 February 1993) cons.
HEARING
SYDNEY, 24 February 1994
#DATE 24:2:1994
Counsel and Solicitors Mr. N.J. Williams instructed by
for the Appellants: John McEncroe and Company
Counsel and Solicitors Mr. J. Basten QC instructed by
for Respondent: the Australian Government Solicitor
ORDER
THE COURT ORDERS:
Appeal dismissed, with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BEAUMONT, FOSTER AND DRUMMOND JJ This is an appeal in a migration matter in which Lockhart J dismissed an application for judicial review of the 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 the first appellant, Raj Kuar ("Mrs. Kuar"). The second appellant, Ashwani Singh ("Mrs. Singh"), is the daughter of Mrs. Kuar. Relief was sought at first instance pursuant to the Administrative Decisions (Judicial Review) Act 1977 and pursuant to s.39B of the Judiciary Act 1903. The Court's accrued jurisdiction was also relied upon.
THE FACTS FOUND AT FIRST INSTANCE
2. The material findings of fact made by Lockhart J may be summarised as follows.
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. At the time of the hearing at first instance, she was 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. Kuar has lived with her daughter, Mrs. Singh, since she (Mrs. Kuar) arrived in Australia. Mrs. Singh looks after her mother.
THE HISTORY OF THE FIRST APPELLANT'S APPLICATION
5. Mrs. Kuar lodged her application for an entry permit on 1 June 1991. Subsequently a letter was written by the Department to Mrs. Kuar care of her solicitors asking for further information including evidence of dependency on Mrs. Singh and details of extreme hardship or irreparable prejudice that would be caused to her nominator if she were required to leave Australia. (Mrs. Singh was her mother's nominator.) Mrs. Kuar's solicitors wrote to the Department on 6 November 1991 answering the request for further particulars. The matter was then considered by the Department and, as has been noted, on 12 June 1992, the Minister's delegate approved a recommendation that the application for an entry permit be refused.
THE LEGISLATIVE SCHEME
Mrs. Kuar's application was for the grant of a "December 1989 (temporary) entry permit". Provision is made for the grant of such a permit by reg. 131A of the Migration Regulations to which reference will be made shortly.
Section 33(1) of the Migration Act 1958 ("the Act") provides that the regulations may make provision, inter alia, in relation to the granting and refusal of entry permits. By s.33(2)(b), it is provided that, subject to certain provisions not here material, 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.
By s.34 of the Act, it is provided as follows:
"34. (1) This section applies where, and only where:
(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and
(b) any fee payable in respect of the application is paid.
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant an entry permit.
(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.
(4) 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."
By reg.34A(1) it is provided that 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.
By reg.42(1), subject to certain exceptions presently immaterial, a person is entitled to be granted an entry permit if the person satisfies the prescribed criteria in relation to that entry permit.
Regulation 131A prescribes the criteria in relation to a "December 1989 (temporary) entry permit". It provides, inter alia, that the criteria to be satisfied in order to gain an entry permit are that the applicant 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 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; (emphasis added) ..."
THE MATERIAL BEFORE THE DECISION-MAKER
12. As Lockhart J pointed out, 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 person seeking the permit, but on an Australian citizen or an Australian permanent resident. In the present case, the permit was sought on the basis that Mrs. Singh was an Australian citizen on whom Mrs. Kuar was dependant. Details of this dependency were provided in the form of application lodged and in the solicitors' letter dated 6 November 1991. In that letter, details of alleged prejudice and hardship on the part of Mrs. Singh were also provided.
THE REASONS FOR THE REFUSAL OF THE APPLICATION FOR THE PERMIT
13. Relevantly, the Minister's delegate adopted the following, amongst other, reasons for refusing the application:
"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."
EVIDENCE BEFORE THE COURT AT FIRST INSTANCE, BUT NOT BEFORE THE MINISTER, IN AID OF THE DECLARATION OF RIGHT SOUGHT
14. The appellants endeavoured to adduce evidence at first instance from several witnesses consisting of material that was not before the Minister. It was said that the evidence was admissible on the question whether the appellants were entitled to a declaration of right, namely that Mrs. Kuar satisfied the provisions of reg.131A(1)(d)(v) and was thus entitled to the grant of a permit. Objection to it having been raised, Lockhart J admitted the evidence subject to its relevance being established. The witnesses, who were relatives of Mrs. Kuar, gave evidence as to the effect on them of Mrs. Kuar's return to Fiji. However, Lockhart J found that, if Mrs. Kuar were to return to Fiji, it was unlikely that any member of her family resident here would move to Fiji to look after her. Medical evidence was also given that, in some respects, Mrs. Kuar was not well.
THE REASONING AT FIRST INSTANCE
(a) The declaration of right
15. Lockhart J refused to make the declaration of right sought. His Honour said (at 20-21):
"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."
Lockhart J held that it was for the Minister to determine whether the ingredients specified in reg.131A(1)(d)(v) existed. His Honour said:
"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."
For this reason, Lockhart J ruled that the additional evidence given at first instance and received subject to objection, should not be admitted.
(b) Whether the reasoning process of the Minister's delegate was vitiated
18. This was a challenge, brought on traditional grounds, attacking the reasoning of the decision-maker by reference to the Departmental recommendation. The appellants failed to satisfy the primary Judge that judicial review should be granted.
THE GROUNDS OF APPEAL
19. For reasons to be mentioned below, on behalf of the appellants, it is submitted that a declaration of right should have been made; alternatively, it is contended that the decision to refuse the permit was bad in law and should be set aside and the Minister directed to reconsider the matter according to law.
CONCLUSIONS ON THE APPEAL
(a) The declaration of right
20. In our opinion, his Honour was correct in refusing to make the declaration sought, both as a matter of substance and as a proper exercise of judicial discretion.
It is accepted, correctly, that the grant of declaratory relief is always discretionary. In our view, to make the declaration requested would be contrary to both the spirit and letter of the relevant legislative scheme.
As the second reading speech (Senate 5 April 1989 - p 923) indicates, one of the objectives of the 1989 amendments was to remove the earlier wide discretionary power given to the Minister and his Department to issue permits and to substitute a system in which there was spelt out in regulations the decision-making criteria which apply to each of the classes of permits, so that "both the rights and entitlements of the individual, and the necessary public interest restrictions on entry will be clearly stated..." But it does not follow that the Minister, and his Department, have no relevant role to play in the present context. On the contrary, the language of s.34 makes it plain that the Minister must consider an application that conforms with s.34(1) and that a permit may only be granted when the matters there described appear to the Minister to exist. As Lockhart J noted, the conduct and decision-making process of the Minister in this context may be challenged by way of traditional judicial review. That is a different question. The present submission is that it is open to an applicant to, in effect, by-pass the Minister and apply directly to the Court for a declaration of right. In our opinion, the language of s.34(3), in referring to the Minister, prohibits such a course.
On behalf of the appellants, reliance was placed upon the approach adopted by Wilcox J in Kyung Chol Kim v The Minister for Immigration, Local Government and Ethnic Affairs, 26 February 1993, unreported. There, a question arose whether the applicant was a person falling within s.20(2) of the Act. Section 20(2) provides for the circumstances in which non-citizens may become illegal entrants. Wilcox J said (at 1):
"The amended Application filed in this proceeding seeks two different types of relief: review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 of a decision made by a delegate of the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, on 3 June 1992 and declarations pursuant to s.39B of the Judiciary Act 1903. In the view I take, the decision is legally inconsequential. This is not a case where the applicant's status arises out of the exercise adversely to him of a statutory discretion. If the applicant is an illegal entrant under the Migration Act 1958, that is because of the operation of the Act itself. If the conduct of the applicant does not make him an illegal entrant pursuant to the Act, no administrative decision can make him so."
His Honour went on to say (at 18):
"The original Application merely sought review of the Minister's decision that the applicant was an illegal entrant. However, the applicant's advisers realised that it was not enough to impugn the decision. If the requisite facts were found, the Act would operate regardless of the appropriateness of the decision-making process. Accordingly, they amended the Application and the case has been conducted on the basis that the Court will determine for itself, on the evidence, whether the conduct of the applicant was such as to constitute him an illegal entrant."
In our opinion, this may be distinguished from the present situation. There is nothing in s.20 which is equivalent or even analogous, to the requirement in s.34(3) that certain matters must appear to the Minister to be so.
The appellants also rely upon the approach taken to s.16(1)(b)(ii) of the Act in The Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589. In our view, this case may be distinguished for similar reasons. Under that provision, a person was deemed to be a prohibited immigrant in defined circumstances. But none of them attributed any role to the Minister or the Department.
(b) The traditional challenges
27. The following two grounds of appeal remain for consideration:
"6. His Honour erred in law in holding that the decision-maker did not fail to take account of the effect of the decision on the second appellant."
"8. His Honour erred in law in failing to hold that the decision under review was vitiated by the taking account of irrelevant speculation as to whether other family members may be required to return to Fiji."
Both grounds of appeal were developed in written and oral submissions but, in our view, they are without any substance. For the reasons indicated in the course of argument, we are not persuaded that any basis at all exists for interfering with his Honour's carefully expressed conclusions. On the contrary, the history of the matter which we have outlined demonstrates the considerable lengths to which the Department went in endeavouring to give a proper consideration to the application.
In the result, the appeal must be dismissed, with costs.
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