Lee, Peik Sin Minister for Immigration & Multicultural Affairs

[1997] FCA 1526

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 642 of 1997

BETWEEN:	PEIK SIN LEE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

CORAM:	DAVIES J
DATE:	5 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of an Immigration Review Tribunal given on 16 July 1997.  The applicant, Peik Sin Lee, who was known as Jessie Lee, had applied for a Class 812 (December 1989 (permanent)) entry permit.  The relevant provisions of Part 812 read as follows:

"812.72  Criteria to be satisfied at time of application (entry permit - after entry)

...

812.722The applicant:

...

(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

...

812.723(1)    The applicant satisfies the requirements of subclause (2), (3), (4), (5) or (6).

(2)An applicant satisfies the requirements of this subclause if he or she is in a marital relationship that is both genuine and continuing, that began on or before 15 October 1990, as the spouse of an Australian citizen or Australian permanent resident. 

...

(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.

812.73Criteria to be satisfied at time of decision (entry permit - after entry)

812.732The applicant:

(a)continues to satisfy the criteria in clause 812.723

..."

As can be seen from those provisions, there were two criteria of particular importance.  The first was that the conditions relied upon had to exist on 15 October 1990.  The second was that satisfaction with the criteria continued to exist. 

In the present case, the application for the permit had, on its face, been an application on the ground that the applicant had been in a marital relationship with Mr M.R. Soemijadi.  Details of a de facto relationship with Mr Soemijadi were given which showed that the relationship had commenced before 15 October 1990 and continued at the time of the application.

Mr Soemijadi was named as the nominator.  The ground specified for his nomination of the applicant was that she was his de facto marriage partner.  Mr Soemijadi completed the necessary statutory declaration required to be completed by a nominator.  The required declarations were made by the applicant and by the Migration Agent.

Before the matter came on for hearing by the Tribunal, the relationship broke down and Mr Soemijadi wrote to the Department to disclose this fact and to say that he withdrew his nomination for the applicant's residency application based upon their relationship.  In this circumstance, the Tribunal considered that it had no option but to refuse the entry permit.

It is not suggested that so far there was any error in the Tribunal's approach.  What is submitted, however, is that Mr Soemijadi was not the only nominator and that there had been another nomination by a Ms Therese Kathleen Vazquez, the mother-in-law of Mr Soemijadi and the grandmother of his children.  The submission made was that Ms Vazquez had nominated the applicant on compassionate grounds and that the applicant was entitled to an entry permit by virtue of her relationship with Ms Vazquez and the existence of compassionate grounds.  The Tribunal rejected the claim that Ms Vazquez had nominated the applicant.

In these proceedings, Mr Mark Robinson, counsel for the applicant, has not identified an error of law as required by s 476(1)(e) of the Migration Act 1958 (Cth). It is not clear to me that findings with relation to nomination and so on are matters of law rather than matters of fact. However, putting that point aside, the basis of the case put by Mr Robinson is that the documents show that Ms Vazquez nominated the applicant for the grant of an entry permit on compassionate grounds. Miss Rhonda Henderson, counsel for the respondent, conceded that there could be nominations by two or more people and that those nominations could be on different grounds. That seems to me to be a correct approach. Therefore, a question before the Court is whether the steps taken by Ms Vazquez amounted to a nomination, or more specifically, were such that the Tribunal was bound to hold that there had been a nomination.

The present is not a case such as Hamilton vMinister for Immigration & Ethnic Affairs (1994) 53 FCR 349. The problems there had arisen because of misleading advice given by officers of the Department and because of the unavailability for some time of the correct forms. The applicant and the nominator had done all that they could to satisfy the requirements of the Regulations but had been prevented from doing so by the problems which they encountered. Evidence had been given to that effect by the applicant and the nominator and also by other parties such as officers of the Department. In the present case, there is no evidence from Ms Vazquez or from the Migration Agent who was responsible for the preparation and execution of the application, Hardy's Immigration Professionals, that it was intended at the time of the preparation and lodgment of the application for the permit that Ms Vazquez would nominate the applicant for an entry permit on compassionate grounds but that if Ms Vazquez failed to do so, it was because of some misunderstanding or because she was in some way prevented from doing so. The evidence of Ms Vazquez went only to the existence of compassionate grounds. There was nothing in her evidence to the effect that she had understood herself to be nominating the applicant for an entry permit on compassionate grounds.

What Ms Vazquez did at the time was to sign a statutory declaration which was required to be made by a person "who knows the applicant and the person who is nominating the applicant". Ms Vazquez' statutory declaration read as follows:

"I met Jessie through my work in early Dec ‘89. She spent a lot of time with me & my family & became part of my family. She became very much a part of my grandchildren’s life and it became very obvious that she & Met [Mr Soemijadi] will be together. After my daughter left Met, it became very obvious that the children needed mother’s love and as she is their closest counterpart they turn to her and she gave them that love.

Met, my son in law, has always been a good father and proved to be a loving husband to Jessie. I’m deeply grateful to Jessie for her helping my family in such a way; in such a time of stress and strain in family misfortune. Jessie has become a rock to lean on."

The substance of what was declared went almost entirely to supporting the existence of the relationship between the applicant and Mr Soemijadi.  The last paragraph went on to say something of the assistance which the applicant had given to Ms Vazquez following an accident suffered by Ms Vazquez in 1992.  However, that paragraph was not inconsistent with the subject matter of which Ms Vazquez was speaking and it did not suggest there had been as at 15 October 1990 a compassionate ground as a result of which the refusal to grant a permit would cause extreme hardship or irreparable prejudice to her.

The remainder of the application also omitted any reference to compassionate circumstances.  In paragraph 3, the box with respect to compassionate circumstances was not ticked.  In relation to paragraph 69, the paragraph which dealt with compassionate grounds, counsel for the applicant has pointed out that the words, "N/A" were not written.  Nevertheless the paragraph was not completed but was crossed out.  In my opinion, it would not have been open to the Tribunal to read those documents as constituting a nomination by Ms Vazquez, at least in the absence of evidence that Ms Vazquez had at the time intended to nominate the applicant and explaining how it came about that her signature as a nominator did not appear. 

Counsel for the applicant submitted that it appeared clearly from the documents that Ms Vazquez intended to support the application for the grant of an entry permit.  That is so, but Ms Vazquez gave her support by way of the required statutory declaration being a person who knew both the applicant and the nominator.  It cannot be concluded that Ms Vazquez substantially complied with the requirement that there be a nomination. 

Mr Robinson submitted that there were problems with the forms and that Ms Vazquez could have been misled.  He submitted that there could be a misunderstanding of the words:

"This Declaration should be completed by a person who knows the applicant and the person who is nominating the applicant". 

It does not seem to me that there was any ambiguity in those words but, if there were room for any ambiguity, the evidence does not show that Ms Vazquez was misled. 

Mr Robinson submitted that the requirement with respect to Australian citizenship or Australian residence was a requirement as to the nominator and not as to the person who sought the supporting declaration.  He pointed out that Ms Vazquez attached a certificate of her citizenship to her declaration.  However, the certificate of citizenship would have been relevant as making it clear that her declaration came from a citizen of this country.  No relevant inference can be drawn from it. 

It does not seem to me necessary to go into the other matters which Mr Robinson has raised.  In my opinion, the conclusion of the Tribunal that Ms Vazquez had not nominated the applicant was correct.  Mr Robinson's submissions in effect asked the Court to ignore the terms of the Regulation and instead to be compassionate in allowing the grant of an entry permit, notwithstanding non-compliance with the Regulations.  He referred to the Immigration Review Tribunal decision of In Re Kwon, given on 12 February 1996, where a class 812 permit was granted notwithstanding that the nominator had died before the decision regarding the permit was made. It was accepted by the Tribunal in that case that there was an equivalent relationship with another person.  I do not find it necessary to consider that case.  In my opinion, the Tribunal in the present case applied the law and would, indeed, have erred in law if it had made a finding to the contrary. 

In those circumstances, the application will be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:              5 December 1997

Counsel for the Applicant:	M A Robinson
Solicitor for the Applicant:	Brett Slater
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 1997
Date of Judgment:	5 December 1997