Kumar, Ashok v Minister for Immigration and Multicultural Affairs
[1998] FCA 1733
•18 DECEMBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – applicant seeking a Class 812 (December 1989 (Permanent)) entry permit – review of decision of the Immigration Review Tribunal - whether refusal of entry permit would have caused “extreme hardship” or “irreparable prejudice” to applicant’s nominators – interpretation and application of cl 812.723(6)(a) of the Migration (1993) Regulations – whether, for the purpose of determining whether on 15 October 1990 there would have been irreparable prejudice, consideration is to be given to facts and circumstances which have occurred after 15 October 1990.
WORDS AND PHRASES – “ extreme hardship”, “irreparable prejudice”.
Migration (1993) Regulations: Pt 812, sch 2
Palwinder Singh v Minister for Immigration and Ethnic Affairs (unreported, von Doussa J, 31 January 1996) - followed
Ashok Kumar vMinister for Immigration and Ethnic Affairs (1997) 144 ALR 441 - cited
Thomas Christopher Dempsey v Minister for Immigration and Multicultural Affairs (unreported, Moore J, 26 February 1998) - considered and not followed
Kobayashi v Minister for Immigration and Ethnic (1994) 51 FCR 24 – considered and followed
Tokaduadua v Minister for Immigration and Ethnic Affairs (1997) 45 ALD 501 – considered and followed
ASHOK KUMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 322 of 1998
GOLDBERG J
MELBOURNE
18 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 322 of 1998
BETWEEN:
ASHOK KUMAR
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGES:
GOLDBERG J
DATE OF ORDER:
18 DECEMBER 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The application is dismissed.
The applicant pay the respondent’s costs of the application including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 322 of 1998
BETWEEN:
ASHOK KUMAR
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
GOLDBERG J
DATE:
18 DECEMBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
The applicant applies to review the decision of the Immigration Review Tribunal on 18 June 1998 whereby the Tribunal affirmed the decision on 4 August 1995 of the delegate of the Minister for Immigration, Local Government and Ethnic Affairs not to grant the applicant a Class 812 (December 1989 (Permanent)) Entry Permit (“a December 1989 permit”). In his application the applicant invokes the jurisdiction of the Court by reason of s 486 of the Migration Act 1958 (Cth) (“the Act”) and the accrued jurisdiction of the Court. However, by reason of s 485 of the Act the only jurisdiction which can be invoked in respect of a judicially‑reviewable decision is the jurisdiction conferred by Pt VIII of the Act.
Background
The applicant’s attempts to obtain permanent residency in Australia have extended over a number of years and it is helpful to put the present application in the context of those attempts. The applicant is a 52 year old Pakistani national who arrived in Australia on or about 22 May 1989 when he deserted his ship in Newcastle. He thereupon became what was then known as a prohibited non‑citizen. Under terminology used in the current legislation he is an unlawful non‑citizen. On 6 July 1990 the applicant applied to the Department of Immigration Local Government and Ethnic Affairs for refugee status. On 20 March 1992 his application was rejected and his deemed application for a domestic protection (temporary) entry permit was refused by a delegate of the Minister. On 22 April 1992 the applicant lodged an application for review of the delegate’s decision by the Refugee Status Review Committee and on 1 July 1993, pursuant to s 31 of the Migration Reform Act 1992 (Cth), the Refugee Review Tribunal took over the conduct of that application. On 3 December 1993 the Refugee Review Tribunal affirmed the delegate’s decisions rejecting the applicant’s application for determination of refugee status and refusing his application for the grant of a domestic protection (temporary) entry permit.
On 25 November 1993 the applicant lodged with the then Department of Immigration, Local Government and Ethnic Affairs (now known as the Department of Immigration and Multicultural Affairs) (“the Department”) an application (dated 17 November 1993) for a December 1989 permit. The application was founded on what I will call compendiously “compassionate grounds” and was supported by two nominators to whom I shall refer. At the time the applicant lodged his application for a December 1989 permit the Migration (1993) Regulations (“the 1993 Regulations”) made provision in Pt 812 of Sch 2 for a December 1989 permit in the following terms:
“…
812.722 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.
812.723 (1) The applicant satisfies the requirements of subclause (2), (3), (4), (5) or (6).
…
(6) An applicant satisfies the requirements of this subclause if, subject to subclause (7):
(a)there was, on 15 October 1990, any compassionate ground (other than the grounds mentioned in subclauses (1) to (5)) for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and
(b) the compassionate ground continues to exist.
(7) For the purposes of subclause (6), ‘compassionate ground’ does not include a circumstance that results directly from an event of a political nature only that occurred in the applicant’s country of citizenship or of usual residence.”
The criteria set out in cl 812.723 had to be met not only at the time of application but also at the time of decision: cl 812.732.
It is the application lodged on 25 November 1993 which was before the Immigration Review Tribunal on 18 June 1998 and is presently before the Court. It has had a somewhat protracted passage. On 1 September 1994 the balance of the provisions in the Migration Reform Act 1992 (Cth) came into force and the applicant’s application was taken to be an application for the grant of a transitional (permanent) visa under reg 23 of the Migration Reform (Transitional Provisions) Regulations. Regulation 23 provided that the application was to be decided according to the criteria that applied to the entry permit for which application was made, that is to say the criteria prescribed by the 1993 Regulations and, more particularly in the circumstances of this case, Pt 812.
On 4 August 1995 the applicant’s application for a December 1989 permit was refused by a delegate of the Minister and on 14 August 1995 the applicant lodged an application for review by the Immigration Review Tribunal (“the Tribunal”). On 28 March 1996, after a hearing at which the applicant and his two nominators gave evidence, the Tribunal affirmed the decision of the delegate to refuse the application. On 2 May 1996 the applicant applied for an order of review of the Tribunal’s decision by the Federal Court and the application came on for hearing on 9 April 1997. On 8 May 1997 the Court set aside the decision of the Tribunal on the grounds, in substance, that the Tribunal had adopted a dictionary definition of the term “extreme hardship” which distorted the meaning of the criteria to be applied and directed that the matter be remitted to the Tribunal for further consideration: (1997) 144 ALR 441.
On 14 April 1998 the Tribunal, differently constituted, conducted a hearing at which the applicant and his two nominators gave evidence.
Reasoning of the Tribunal
The Tribunal set out, in brief, the history of the application and the relevant statutory and regulatory provisions. The Tribunal noted that it was common ground that the applicant met the requirement specified under cl 812.722 of the 1993 Regulations and said that the “compassionate ground” provided under cl 812.723(6) required the Tribunal to consider:
“whether on 15 October 1990 and continuously until it makes its decision herein, either Mr Narad or Mr Chand, being the Nominators under the original application, would suffer either ‘extreme hardship’ or ‘irreparable prejudice’ if the Applicant was not granted the entry permit sought. The inevitable consequence of this being that he would be required to leave Australia.”
The Tribunal recognised that what constituted “extreme hardship” or “irreparable prejudice” as specified in cl 812.723(6)(a) was, in each instance, two distinct tests each of which involved a separate assessment of the facts of the case, referring to Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 and Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144, 148. The Tribunal considered a number of decisions in which the expressions “extreme hardship” and “irreparable prejudice” had been considered: Horvath v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 422; Palwinder Singh v Minister for Immigration and Ethnic Affairs (unreported, von Doussa J, 31 January 1996), Ashok Kumar vMinister for Immigration and Ethnic Affairs (1997) 144 ALR 441 and also some dictionary definitions. The Tribunal paid heed to the caution of Tamberlin J in Ashok Kumar (supra) that dictionary definitions must not lead to a “paraphrasing exercise” and accepted that the question remained whether any hardship or prejudice which either of the nominators might suffer if the December 1989 permit was not granted to the applicant might be described respectively as “extreme” or “irreparable”.
The Tribunal then considered the evidence which had been led. The applicant said that he had met Mr Narad sometime in 1990, which Mr Narad placed as shortly before his daughter was born on 18 June 1990. They met at a store when the applicant was looking to buy a television set. Mr Narad worked at the store, they exchanged telephone numbers and Mr Narad invited the applicant to visit him. Mr Narad said that the applicant is like a brother to him, that he trusts the applicant explicitly and had asked him to look after his house when he and his family visited India in 1991, 1993 and 1995. In February 1998 when Mr Narad’s mother was ill he said he would not have returned to India to see her if the applicant was not here to look after his family. The applicant told the Tribunal that “slowly slowly [they] became good friends”. Similar evidence was given in relation to the applicant’s relationship with Mr Chand. The applicant said that he had met Mr Chand in June 1990 whereas Mr Chand said that they had met in August or September 1990. Mr Chand told the first Tribunal hearing that they had met in September or October 1990 and the Tribunal proceeded on the basis that as at 15 October 1990 the applicant and Mr Chand had known each other for at best two months. The applicant said that his sister‑in‑law in India had told him about Mr Chand who he described as a “distant relative” and said that in 1990 they had just met but “grew closer over the years”. Both the applicant and Mr Chand said that they share a common bond because they are of the same caste in India.
Having considered the evidence the Tribunal reiterated that to found an application for a December1989 visa the “compassionate ground” relied upon by the applicant:
“must have existed on 15 October 1990 and must have continued to exist until the Tribunal makes its decision herein. This means that no matter what the degree of hardship or prejudice a refusal might have on the Nominator at the time of decision if the ‘compassionate ground’ did not exist on 15 October 1990 the application must necessarily fail (see Palwinder Singh cited above).”
The Tribunal then made its findings of fact. The Tribunal found that the applicant and Mr Narad had met at least by June 1990, that their relationship had developed from there and that the applicant also shares a close relationship with Mr Narad’s family. The Tribunal noted that as at 15 October 1990 the applicant and Mr Narad had known each other for about four months. The Tribunal accepted that Mr Narad would suffer “some hardship” if the applicant was required to leave Australia on 15 October 1990. However the Tribunal found that having known the applicant for only some four months at the time, it was unable to reach a finding of fact that any hardship which Mr Narad might suffer on 15 October 1990 might be described as “extreme”. In this respect the Tribunal referred to the evidence that the relationship probably developed soon after they met but that according to the applicant it was only “slowly slowly [that they] became good friends”. The Tribunal found it unnecessary to make a finding whether a refusal to grant the permit sought would cause Mr Narad to suffer “extreme hardship” if the applicant was now refused the permit because such hardship had to exist on 15 October 1990 and continue to exist until the Tribunal decision.
The Tribunal said that the situation with Mr Chand was not much different. The Tribunal found that as at 15 October 1990 the applicant and Mr Chand had only known each other “for at best two months”. The Tribunal did not accept the evidence of the applicant that they had met in June 1990 and preferred the evidence of Mr Chand that they had met in August or September 1990. The Tribunal accepted that the friendship between the applicant and Mr Chand may have developed into a very close friendship over the years but found that having known each other for no more than two months as at 15 October 1990, any hardship which Mr Chand may suffer if the applicant was not granted a December 1989 visa on that date “can hardly be described as ‘extreme’”.
The Tribunal then turned to the issue of “irreparable prejudice”. In considering the question whether any “prejudice” might be described as “irreparable” the Tribunal had regard to the observations of Moore J in Thomas Christopher Dempsey v Minister for Immigration and Multicultural Affairs (unreported, 26 February 1998) where his Honour said that the approach to whether a refusal to grant an entry permit on 15 October 1990 would have caused “irreparable prejudice” should be different from the approach that should be adopted when assessing whether the same refusal on that date would have caused “extreme hardship”. The Tribunal, quoting from Dempsey (supra, 9) noted that the reason for that difference in approach was that:
“a person may be immediately prejudiced by an act notwithstanding that the effect or full effect of the prejudice created by the act would not be manifest until some future date”.
The Tribunal noted that Moore J found such an approach to be “consistent with the broadly formulated approach” of Hill J in Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24 at 28‑29.
The Tribunal said that if an assessment of the circumstances as they existed on 15 October 1990 indicated prejudice it did not matter whether such prejudice was minor as it could still be “irreparable”. The Tribunal, on the evidence, was unable to find that either Mr Narad or Mr Chand would suffer “irreparable prejudice” on 15 October 1990 if the applicant was not granted a December 1989 permit. The Tribunal therefore affirmed the decision under review.
The submissions
The applicant submitted that the Tribunal made an error of law in construing “irreparable prejudice” by confining it to mean “actual injury, loss or damage” and equating such prejudice to concepts of personal injury and tort. The applicant also submitted that the Tribunal was required, consistently with Dempsey (supra) to consider acts that manifested themselves after 15 October 1990 which pointed to the effect or full effect of prejudice that would have been created by the refusal to grant the entry permit on 15 October 1990. Put shortly, the Tribunal was obliged when the matter was looked at as at 15 October 1990 to consider events after that date.
The respondent submitted that the observations of von Doussa J in Palwinder Singh (supra) in relation to the definition of “irreparable prejudice” are not “clearly wrong” and should be followed: Bank of Western Australia Limited v Commissioner of Taxation (1995) 55 FCR 233 at 255. Alternatively the respondent submitted that the evidence was such that a finding of “irreparable prejudice” was not open to the Tribunal.
The respondent submitted that consistently with Dempsey (supra) the Tribunal considered the effect of the departure of the applicant after 15 October 1990 including in such consideration reference to events that actually occurred thereafter. It was submitted that this was made clear by the Tribunal’s observations:
“All decisions relating to the grant of a December 1989 (temporary) entry permit which were made after that date … would involve invariably an assessment of the facts and circumstances existing on 15 October 1990 and continuously until the relevant decision was made … the assessment is nevertheless based on events which in fact have taken place. On the other hand an exercise involving an assessment of what might be manifested at a future date may be speculative and must be carried out with caution.”
Alternatively the respondent submitted that the decision in Dempsey is wrong and should not be followed. The respondent submitted that Moore J’s reliance in Dempsey on Kobayashi (supra) was erroneous as in the latter case the relevant regulatory provisions were different. The criteria considered in Kobayashi were whether “refusal to grant the entry permit would cause extreme hardship or irreparable prejudice” (emphasis added) whereas the criteria in the regulation considered by Moore J were concerned with whether “refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice” (emphasis added). It was on this basis that Branson J declined to follow Kobayashi in Tokaduadua v Minister for Immigration and Ethnic Affairs (1997) 45 ALD 501.
I am satisfied that the Tribunal made no error of law in the manner in which it approached the notion of “irreparable prejudice”.
Definition of “irreparable prejudice”
In Palwinder Singh (supra) von Doussa J said:
“In the context of the regulation I consider ‘prejudice’ is used to mean actual injury, loss or damage – that is actual personal injury or material damage, such that if a damages claim were made in tort for the 'prejudice’ the injury, loss or damage would sound in damages. In the law of negligence a clear distinction is drawn between, on the one hand, mere grief, sorrow and distress, however saddening, and on the other hand, forms of psychoneurosis and mental illness, medical conditions recognised in law a personal injuries: see Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394 and Jaensch v Coffey (1984) 155 CLR 549 at 587. Emotional feelings of the former kind, standing alone, do not sound in damages. In my opinion a similar distinction should be recognised in the interpretation and application of the ‘irreparable prejudice’ ground for a Class 812 entry permit. The notion of ‘prejudice’ is not intended to comprehend mere emotional feelings of sorrow, concern and distress.”
It is true that von Doussa J derived his definition of “prejudice” from a context in which personal injury or material damage was suffered but his Honour went on to say that the notion of “prejudice” was not intended to comprehend mere emotional feelings of sorrow, concern and distress. The applicant submitted that having regard to its context cl 812.723(6)(a) does not exclude emotional feeling that does not sound in damages having regard to the fact that the expression “irreparable prejudice” appears in the context of a compassionate ground. The respondent’s response was that for emotional feelings to constitute an irreparable prejudice there had to be more than an effect on emotional feelings. Rather there had to be a demonstrable impairment on the person’s ability to carry on the person’s life. I must bear in mind the observations of the Full Federal Court in Minister for Immigration and Ethnic Affairs v Teo (supra) where the Full Court rejected the view that the expression “extreme hardship or irreparable prejudice” should “be given a broad and generous construction” in favour of the Australian citizens and residents that it was intended to benefit” (p 206).
In any event, I should follow the decision of von Doussa J in Palwinder Singh (supra) unless I am satisfied that his Honour was clearly wrong: Bank of Western Australia Limited v Commissioner of Taxation (supra) 255 and the cases there cited. Palwinder Singh (supra) was upheld on appeal (unreported, Beaumont, Spender and Branson JJ, 7 May 1996). The Full Court upheld von Doussa J’s finding that the Australian citizens would not suffer extreme hardship or irreparable prejudice within the meaning of Pt 812 of Sch 2 of the 1993 Regulations if the appellant’s application for a December 1989 permit was refused. Their Honours held that there was evidence before the Tribunal to justify its decision that any emotional suffering experienced by one of the Australian citizens would not be of sufficient degree to meet the relevant criteria. In the circumstances their Honours said that it was not an appropriate case to consider von Doussa J’s analysis of the meaning of “prejudice” in the context of the relevant regulations.
In Dempsey (supra) Moore J entertained some doubt about the correctness of the approach of von Doussa J in Palwinder Singh (supra) but did not find it necessary to consider the matter further.
It may be that it is too restrictive of the content of the expression “prejudice” to limit it to a context of personal injury or material damage but in the circumstances of this case it is not necessary for me to determine this issue. I consider that the expression “prejudice” does involve something more than being upset or saddened, or, to use the words of von Doussa J (supra) it involves something more than “mere emotional feelings of sorrow, concern and distress”. The Tribunal found that on 15 October 1990 the applicant had only known the two nominators:
“… for a very brief period and there is nothing in the evidence to indicate that the Applicant’s departure on that date would cause ‘irreparable prejudice’ whether then or at some future date’”.
In my opinion it was open on the evidence before the Tribunal to make this finding on the basis that “prejudice” required something more than being upset or saddened or suffering mere emotional feelings of sorrow, concern or distress.
It follows therefore that the Tribunal did not err in the manner in which it determined whether “irreparable prejudice” existed on 15 October 1990.
Should the Tribunal have looked to the future?
The second submission of the applicant was that the Tribunal failed to give appropriate consideration to the requirement that there was on 15 October 1990 any compassionate ground to the effect that refusal to grant the entry permit “would have caused … irreparable prejudice” to an Australian citizen or permanent resident. The applicant submitted that the expression “would have caused” meant that the Tribunal was required to prognosticate as to the future in respect of the prejudice required to exist on 15 October 1990. It was submitted, relying upon Dempsey (supra), that the Tribunal was required to take into account events which occurred after 15 October 1990 in assessing whether on that date departure of the applicant would have caused irreparable prejudice. In Dempsey, Moore J said (9):
“In my opinion the Tribunal was, in the present case, obliged to consider the matter as if it was considering it on 15 October 1990 and to address the question whether the refusal of an entry permit and the departure of the applicant would cause irreparable prejudice. That may include prejudice, the effect of which was both immediate and apparent. It may, however, include prejudice the effect of which would arise or arise fully in the future.”
I have, with respect, some difficulty with his Honour’s approach. His Honour referred to the operation of a similar provision considered in Kobayashi (supra) where at 28‑29 Hill J said:
“… the refusal to which the paragraph or subparagraph applies must be one which ‘would cause’ the relevant hardship or prejudice. Although the ground must be made out over the whole of the period to which par (d) refers, and that includes the day of 15 October 1990 as well as the day of decision, the hardship or irreparable prejudice to which the paragraph refers must, when the matter is looked at on 15 October 1990, of necessity be in the future because, in the case of every decision made after 15 October 1990, there could not, as at 15 October 1990, have yet been a refusal. What is required to be decided is whether, looking at the matter at each relevant date, it is more probable than not that the refusal would, in the future, bring about (‘cause’) extreme hardship or irreparable prejudice to an Australian citizen or to an Australian permanent resident.
…
Because there is a need to project the future consequences of a refusal, a decision‑maker will need to take into account the actual facts existing at the date consideration is required and what is more likely than not to happen in the future. To this extent, when looking at the matter at a relevant point of time, events that have actually happened since 15 October 1990 may be relevantly considered, not because there are events that have happened but rather to consider the probabilities of those events happening.”
The relevant regulation considered by Hill J was in a different form to cl 812.723(6). The relevant clause provided:
“… refusal to grant the entry permit would cause extreme hardship or irreparable prejudice …” (emphasis added)
Clause 812.723(6) now provides:
“… refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice …” (emphasis added)
This is a significant change in terminology. I agree, with respect, with Hill J’s analysis in Kobayashi (supra) but in my opinion, that analysis cannot easily be applied to the later wording in cl 812.723(6). The change from “would” to “would have” does not allow the opportunity to look into the future as at 15 October 1990. I adopt the observations of Branson J in Tokaduadua (supra, 505) where her Honour, after contrasting the wording of the regulation considered by Hill J and cl 812.723(6), said of cl 812.723(6):
“… It, in my view does not invite a finding as to what the future would bring, but rather a finding as to what would have been the effect in October 1990 of a hypothetical refusal then of the entry permit sought.
A finding as to what would have been the effect in October 1990 of a hypothetical refusal then of an entry permit may involve some consideration of future matters. For example, in circumstances in which an Australian citizen was suffering early symptoms of a serious progressive illness, it would be open to a tribunal of fact to find that such citizen would have been caused hardship in the nature of alarm and anxiety by learning that he or she was to lose his or her only likely future care provider. It would be for the tribunal to determine whether such hardship was appropriate to be characterised as ‘extreme’. The ultimate issue under cl 812.723(6) remains, however, that of whether a refusal would have caused extreme hardship in October 1990.”
I agree, with respect, with this analysis.
In Dempsey (supra), Moore J considered that Branson J’s observations concerned “the notion of extreme hardship”. But in my opinion, her Honour was not limiting herself in the observations to which I have referred to “extreme hardship” to the exclusion of “irreparable prejudice”. Rather her Honour was referring to a situation of hardship as an example of how a consideration of future matters might arise as at 15 October 1990. Indeed her Honour specifically addressed the issue of “irreparable prejudice”, and rejected the submission that the Tribunal erred in not looking to evidence of the actual medical history of the nominator since October 1990. Her Honour concluded at 506:
“… In assessing whether there was such a ground in October 1990 it was, in my view, appropriate for the tribunal to consider only such material as was, or perhaps could have been, known in October 1990. Such material could include medical prognoses, but prognoses are different from subsequent medical history.”
I adopt, with respect, Branson J’s approach as being the correct way to apply cl 812.723(6) in considering whether there would have been irreparable prejudice on 15 October 1990.
In Dempsey (supra, 9) Moore J considered that:
“A person may be immediately prejudiced by an act notwithstanding that the effect or full effect of the prejudice created by the act will not be manifest until some future date.”
His Honour then referred to an example with which I agree. However it does not follow that the Tribunal is obliged to look at facts and circumstances which have in fact occurred after 15 October 1990 for the purpose of determining whether on 15 October 1990 there would have been “irreparable prejudice”. To that extent I do not agree with Moore J’s conclusion in Dempsey (at 9‑10) that:
“Consistent with the observations of Hill J in Kobayashi the Tribunal, as part of that process, [of considering prejudice the effect of which would arise in the future] should look at events that in fact have occurred since 15 October 1990 as part of a process of considering the probability that they would arise if the matter was, in a notional sense, being considered on 15 October 1990.”
The Tribunal was not required to look at events and circumstances which actually occurred after 15 October 1990 in order to determine whether the refusal of the entry permit would have cause irreparable prejudice to either of the nominators on 15 October 1990.
The Tribunal recognised, in my opinion, that in determining the existence of irreparable prejudice on 15 October 1990 it should look, for that purpose, at future probabilities as they existed as at that date, when it said:
“[A]n exercise involving an assessment of what might be manifested at a future date may be speculative and must be carried out with caution. If an assessment of the circumstances as they exist on 15 October 1990 indicates prejudice it matters not whether such prejudice was minor as it could still be ‘irreparable’ within the meaning discussed earlier.”
If I am wrong in my conclusion that the Tribunal was not required to look at events that in fact occurred after 15 October 1990 to determine whether irreparable prejudice existed on 15 October 1990 but was only required to look at material that could have been known on 15 October 1990, I am still satisfied that the Tribunal did not fall into error. If the Tribunal was required to adopt the approach explained by Moore J in Dempsey (supra), I am satisfied that it adopted that approach and did look at events which occurred after 15 October 1990. I do not consider that the Tribunal approached the task before it inconsistently with the approach taken in Dempsey. The Tribunal said:
“Having considered the evidence in the manner directed by the Court in Dempsey, cited above, the Tribunal is unable to find that either Mr Narad or Mr Chand would suffer ‘irreparable prejudice’ on 15 October 1990 if the Applicant was not granted the entry permit sought. On that date the Applicant had only known each of them for a very brief period and there is nothing in the evidence to indicate that the Applicant’s departure on that date would cause “irreparable prejudice” whether then or at some future date.”
In approaching the matter this way the Tribunal looked at the evidence before it which included events and circumstances after 15 October 1990. The Tribunal recognised and accepted that the determination of whether the refusal to grant the December 1989 permit on 15 October 1990 would have caused “irreparable prejudice” is a different approach to that when assessing whether the same refusal on the same date would have caused “extreme hardship”. The Tribunal said:
“The reason for that difference in approach being that ‘a person may be immediately prejudiced by an act notwithstanding that the effect or full effect of the prejudice created by the act would not be manifest until some future date.’”
This was a recognition of the Dempsey approach.
I am also satisfied that it was open to the Tribunal to find on the evidence before it that, adopting the approach of Moore J in Dempsey (supra), the refusal of the entry permit would not have caused “irreparable prejudice” to either of the nominators on 15 October 1990.
The application will be dismissed with costs.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg
Associate:
Dated: 18 December 1998
Counsel for the Applicant: Mr T V Hurley Solicitor for the Applicant: Wisewoulds Counsel for the Respondent: Mr P R D Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 November 1998 Date of Judgment: 18 December 1998
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