Lezam Pty Ltd v Seabridge Australia Pty Ltd

[1992] FCA 206

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	NO G530 of 1991

)

GENE= DIVISION )

BETWEEN :  SE0 MYUNG RYUL
Applicant

&&Q:	MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT & ETHNIC AFFAIRS
First Respondent
JOSEPH RODIGARI (Reaional Manaaer. South Western Reaion, DeDartment of Immiaration, Local

CORAM:	HILL J
PLACE :	SYDNEY
DATED :	17 MARCH 1992

review of a decision made by Mr Rodigari, the second respondent, as delegate of the Minister for Immigration, Local Government and Ethnic Affairs, the first respondent, refusing to grant the applicant an entry permit under reg.l31A(l)(d)(v)

being said that the remaining two raised no separate issues.

of the Miaration Reaulations 1989. The relevant decision was

made on 29 August-1991.

There were four grounds of review referred to in the
application. Of these, only the first two were argued, it

The first two grounds are stated as follows:

1.  The second respondent erred in law in construing the phrase "extreme hardship" in reg.l3lA(l)(d)(v) of the Miaration Reaulations 1989 as requiring that the hardship be long term or permanent in nature.

2.   The decision was not authorised by the enactment in

pursuance of which it was purported to be made in that

the decision-maker applied a policy guideline in reaching

1)

the decision, being Ministerial Policy Guideline PC1758 of 28.12.90, which guideline was ultra vires the Miaration Act 1958 ( "the Act") and the Migration Reaulations.

The applicant tendered in his case the material which was before Mr Elliott, an officer of the Department of Immigration, Local Government and Ethnic Affairs, whose	recommendations were accepted by Mr Rodigari. For ease of	reference, unless otherwise noted, I shall refer to Mr
Rodigari as well as -Mr. Elliott,. compositely, as the "decision- maker", having in mind that Mr Elliott's recommendations were, indeed, accepted by Mr Rodigari. That material before the decision-maker comprised the applicant's application for an entry permit together with supporting documentation. There was also tendered before me a statement setting out the decision made, the findings of fact of the decision-maker and his reasons in writing. There was also tendered a further document, which is referred to in the statement and which is headed, "Policy Control Instruction No. PC 1758". The following recital of the relevant facts is adapted from the statement.
The applicant was born in Korea on 5 March 1967 and is a citizen of that republic. He arrived in Australia on 3 November 1988 on a student visa. A temporary entry permit was issued to him on his arrival valid to 20 May 1989. That permit was subsequently extended to 30 September 1989. When it expired the applicant did not leave Australia and was a prohibited non-citizen prior to 18 December 1989. On 6 October 1989, the applicant commenced work as a tradesmadpanelbeater working for a MS Hasan, who was the proprietor of the business which traded under the name Direct Smash Repairs. The applicant did not have permission to work at the time.
On 12 August 1991, the applicant lodged an application to . - remain .permanently in Australia under concessions for persons illegally in Australia. He did so on the grounds that he complied with reg.l31A(2) of the Miaration Reaulations. Regulation 131A prescribes the following criteria as applicable in relation to a December 1989 (temporary) entry permit;

"(a) the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;

(b) the applicant has not left Australia after 18 December 1989;

(C) the applicant applies, in accordance with these Regulations on or before

19 December 1993 for the entry

permit ;

(d)	on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:
( 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. "

It is conceded by the respondents that the applicant complies with each of the prerequisites in sub-regs.(l)(a),

(b) and (c) of reg. l31A.	The applicant's case for grant of
the temporary entry permit depended upon a claim that the	impact of the absence of the applicant on M r Hasan's business
of repairing motor .vehicles would be such that it would cause to him, being an Australian citizen, extreme hardship or irreparable prejudice. In the proceedings before me no attempt was made to discuss the question under the heading of irreparable prejudice.
As appears from the statement of reasons, the decision-maker regarded the question at issue before him as depending upon two matters, which he stated to be as follows:

"Whether there a r e a n y o t h e r compass ionate grounds t h a t may warrant the grant o f an e n t r y permi t . The test o f whether the compassionate grounds warrant the grant o f an e n t r y permi t rests on the e f f ec t the

r e f u s a l o f the permi t would have on the

A u s t r a l i a n p a r t y .

I f i t can be demonstrated t h a t the r e f u s a l

o f	the	a p p l i c a n t	would	cause	ex t reme
h a r d s h i p	or	i r r e p a r a b l e	p r e j u d i c e	t o	the

A u s t r a l i a n p a r t y , the compassionate grounds would be deemed t o be o f the magni tude t h a t warrants the grant o f the

entry permi t . 'l

The decision-maker then proceeded to consider these matters. Having regard to the argument before me, it is necessary to set out in full what was thereafter relevantly said by the decision-maker:

"The c l a i m s made a r e s o l e l y on economic

grounds. The a p p l i c a n t i s a va lued employee o f Direct Smash Repairs and based on the s t a t e m e n t s submi t t ed , h a s generated

a d d i t i o n a l - b u s i n e s s t o the f i rm . The

a p p l i c a n t pos se s s [sic] ski l ls o f a h i g h

o r d e r i n the panel	b e a t i n g t r a d e which	h a s
a l lowed	the company t o expand	i n t o the

' p r e s t i g e ' market where h i g h e r f i n a n c i a l

r e t u r n s a r e a v a i l a b l e .

Department	g u i d e l i n e s	s t a t e	t h a t	a
f i n a n c i a l	r e l a t i o n s h i p ,	between	and	[sic]

employer and employee would n o t be

g e n e r a l l y accep ted a s c o n s t i t u t i n g a

compassionate r e l a t i o n s h i p f o r the

purposes o f this c r i t e r i o n .

With reference to the plain and natural meaning of the word compassionate ie: akin t o pi t - ~ , the determination o f compassionate grounds could be where the circumstances are such 'as to enliven in the reasonable man his compassion' (Dahlan v's Minister for Immiuration. Local Government and Ethnic Affairs 1989).

It is therefore open to ascertain whether the specific circumstances of the applicant would enliven such a response irrespective of policy guidelines.

No physical or emotional ties have been dmonstra ted to exist between the applicant and hi- Hassan, other than those expected of a relationship between a highly valued employee and appreciative employer.

From the submissions made it is apparent that a financial link exists between the applicant and hi- Hassan [sic]. Although no figures have been supplied, it is reasonable to assume, based on the claims concerning his work, he generates an

income to hi Hassan ' S [sic] business.

It is claimed that the applicant's departure would lead to financial difficulties being experienced by the firm. I accept that the departure by the applicant would result in the temporary loss of business. However, I do not

permanent situation.

believe that this would be a long term or

It is claimed that the position occupied by the applicant was advertised with the CES for- more - than .year [sic], but no suitable applicant had been found. In light of the current economic downturn and high levels of unemployment, it is not unreasonable to assume that a person with similar qualities to the applicant could be found given appropriate advertising. Therefore, any loss of business generated by the departure of the applicant could be expected to be recovered over time.

I accep t t h a t s h o r t t e rm f i n a n c i a l

d i f f i c u l t y may be exper ienced by Direct

Smash Repairs . T h i s would be f e l t by Mr Hasan and may even r e s u l t i n some o f the o t h e r employees s u f f e r i n g i f retrenchment

was	nece s sary .	T h i s may even	l e a d	t o some
emot ional	h a r d s h i p b e i n g	exper ienced	by	Mr

Hasan and some employees.

However, I do n o t c o n s i d e r t h a t MK Hasan

would exper i ence ' e x t r eme hardship' b o t h

w i t h i n p o l i c y g u i d e l i n e s o r the common

d e n o t a t i v e meaning o f the words.

Nor d o I c o n s i d e r t h a t Mr Hasan would

s u f f e r ' i r r e p a r a b l e pre jud ice ' . A1 though

the	r e f u s a l	o f	the	a p p l i c a t i o n	may
d i sadvan tage	his	b u s i n e s s ,	it	would	be
u n l i k e l y	be	[sic]	i r r e p a r a b l e	o v e r	the

l o n g t erm. N e i t h e r cou ld i t be i n f e r r e d

t h a t Mr Hasan would s u f f e r some

i r r e p a r a b l e d e n i a l o f h i s b a s i c r i g h t s a s

an A u s t r a l i a n c i t i z e n .

Any s u f f e r i n g by the nominator would be

m i t i g a t e d by the r e a l p o s s i b i l i t y o f

s e c u r i n g ano the r q u a l i f i e d panel b e a t e r t o

per form the d u t i e s . I t should a l s o be

no t ed t h a t the a p p l i c a n t , a f t e r a n y

d i s q u a l i f i c a t i o n	pe r iod ,	may	be	e l i g i b l e
f o r	employer	nominated	m i g r a t i o n	i n the

f u t u r e .

I do n o t believe t h a t the compass ionate

grounds c i t e d a r e s u f f i c i e n t t o warrant

the gran t i ng o f an entry permi t under

Subregu la t i on 131A ( 1 ) ( d ) ( v ) . T h i s

c o n c l u s i o n i s based on the f a c t s presen ted

w i t h the a p p l i c a t i o n and m a t e r i a l drawn

upon w i t h regard t o the Migra t ion A c t ,

Regu la t i ons -, and . Departmental P o l i c y

guide1 i n e s . ' l

The applicant submitted that the guidelines were a direction in writing pursuant to the provisions of s.179 of the Act. That section provides as follows:

"(1) A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(3) The Minister shall cause a copy of

any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that

House after that direction was given. "

As appears from that section, if a direction to which the section refers is given, a decision-maker to whom it is addressed would be required to take it into account. However, it was submitted for the applicant that the policy control instrument in question, hereafter referred to as "the

guidelines", was inconsistent with the Act and, in the result, ultra vires. So the decision-maker, by taking it into account, fell into error. I t was then submitted that this

error vitiated his decision.

There are--a number of problems with this submission.

First, in form the guidelines do not purport to be a direction, although it might be inferred that, other things being equal, persons reading them would be required to take them into account. Secondly, the applicant has not proved that the document in question was, if indeed it can be construed as a direction, a direction in writing from the

Minister. It is true that the document on its face says that it has been endorsed by the Minister, but this does not require any conclusion to be made that the document is itself a direction of the Minister. Thirdly, it does not appear that the document was tabled in Parliament in accordance with s.179(3) of the Act.

While that failure may not invalidate the statutory consequences of s.179(1), it does assist the conclusion that the document was not regarded, at least by the Minister, as being a direction in writing from him that the section applies. Accordingly, the applicant has not proved that the document fell within s.179 with the consequence that this submission must fail.

The applicant submitted in the alternative that if
s.179 had no application, it was clear that the policy

guidelines were taken into account by the decision-maker. It

was submitted that the relevant tests enunciated in the policy	document for determining whether there was extreme hardship
were wrong in law-and as they .were taken into account by the decision-maker in coming to his decision, they operated to vitiate it.
A further submission said to amount to a separate submission was that it was apparent, on the face of the statement of reasons, that the decision-maker had construed
reg.l31A(l)(d)(v) as requiring that the extreme hardship to which it refers be long term and permanent and thus, by applying a test wrong in law, the decision-maker had erred and this error had vitiated the decision.
I should say at this stage that the policy guidelines, inter alia, set out a number of factors which are said to be necessary to characterise the compassionate grounds. These include the criterion that:

' l . . . the circumstances are based on long-

term or permanent needs of the applicant and those of the Australian party affected by the decision; ".

Under the heading of "Extreme Hardship", the

guidelines say, inter alia:

". . . the hardship may be financial,

emotional or physical, but must be

Note that economic hardship arising from	substantial and quantified where possible.
an employer-employee relationship will not normally be considered as a basis for a
cl aim;
the hardship must be long term or
permanent . "

Both of the submissions made by the applicant, if
they are really to be seen as separate submissions, depend
upon it being shown by the applicant that the decision-maker

not merely applied the tests in the policy decision in making
his recommendation, but also that the decision-maker
applied these tests. If, notwithstanding that the decision-
maker erred in applying the policy guidelines, he also
independently considered the matter applying the correct test
and came to the same result, his error in law in applying the
guidelines (assumed for the present purposes to be erroneous)
would not operate to vitiate his decision.

It will be recalled the decision-maker stated that he had tested the facts against the ordinary meaning of the words "extreme hardshipv and had concluded that extreme hardship did not exist on the facts of the present case. That was, without doubt, the correct approach to be taken and indeed, if that is what the decision-maker did do, then no error of law was committed and that was properly conceded by the applicant.

Counsel for the applicant did not seek to call the decision-maker to give evidence and agreed not to seek to draw an adverse inference. from the. fact that the respondent had failed to call the decision-maker. He made it clear that he wished only to rely on what was said to be inferences from the statement of reasons itself to persuade me to conclude that the decision-maker had not really proceeded in the alternative as the statement said he had, but had merely considered the matter fettered by the policy guidelines. I was referred to what was said by Gummow J in Khan v Minister for Immiaration and Ethnic Affairs, (11 December 1987, unreported) where his Honour said (at 11-12):

"However, what was r e q u i r e d o f the

d e c i s i o n maker , i n r e s p e c t o f e a c h o f the

a p p l i c a t i o n s ,	was	t h a t	i n	c o n s i d e r i n g	a l l
r e l e v a n t	m a t e r i a l	p l a c e d	before	h i m ,	he

g i v e p r o p e r , genu ine and r e a l i s t i c

c o n s i d e r a t i o n t o the m e r i t s o f the c a s e

and	be	r e a d y i n the	p r o p e r	c a s e	t o d e p a r t
from	a n y	a p p l i c a b l e	p o l i c y	. . .	The
a s s e r t i o n	by	a	d e c i s i o n maker	t h a t he	h a s
a c t e d	i n this	f a s h i o n	w i l l	not	n e c e s s a r i l y
c o n c l u d e	the	m a t t e r ;	the	question	w i l l

r emain w h e t h e r the m e r i t s h a v e been g i v e n

c o n s i d e r a t i o n i n a n y r e a l sense . . . " .

Reference may be made also to the decision of Chumbairux v Minister for Immiaration and Ethnic Affairs (1986) 74 ALR 480 at 495-6.

As is apparent from what was said by Gummow J in Khan, while the statement of a decision-maker that he has, for	example, taken a particular matter into account will not	necessarily conclude the matter, equally, the statement that
he has, will not necessary result in a conclusion that he has not. Much will depend upon the facts of a particular case. In Khan, for example, the departmental statement said that the decision-maker had noted the information presented in a psychological evaluation report. The decision-maker, further said, that:

". . . it is not considered that it amounts

to a persuasive reason for granting change

of status.. . ".

These comments about the report indicated, in his Honour's view, that consideration of such a limited extent had been given to the report as to have been indicative of a perfunctory and cursory consideration rather than (at 15):

"A proper genuine and realistic

consideration of what was a substantial element in the merits of the particular

cases. "

No doubt, it will be easier to conclude that no proper genuine and realistic consideration has been given of a relevant matter in circumstances where the result would be inexplicable if a real consideration was, in fact, given. That appears to have been the case in Khan. However, it is not the present case. In saying that, I do not wish to

reasonableness of an answer to a conclusion that the right

suggest that the proper approach is to work backwards from the

test was used. In the circumstances of the present case, there is an assertion by the decision-maker that he considered the question before him, having regard not only to the policy guidelines but also to the common denotative meaning of the words "extreme hardship". He reached a conclusion of fact on both tests that extreme hardship would not be experienced by

Mr Hasan. It is true that the statement deals in considerably

greater length with the policy guideline matters, but there is no reason to infer from this that the decision-maker was being untruthful in saying that he also considered the ordinary meaning of the words. Ultimately, the onus is upon the applicant to show that the decision-maker did apply a wrong test; in this case being the policy guidelines in question. The applicant has failed so to do.

In the above comments I have assumed, favourably to the applicant, that the policy guidelines, indeed, set out a wrong test. There is no reason for me to decide that question in the present case. The guidelines have since been replaced by a new set of guidelines which delete the reference to "long term and permanent hardship". It is interesting to note that these new guidelines have taken the form of a direction under s.179, and I am told that they have been tabled in Parliament. I should say that there is much to be said for the view that an inflexible requirement that hardship be long term or

number of difficulties. However, I do not need to discuss permanent before it be treated as extreme hardship, has a that matter further.

It follows that I would dismiss the application. I direct the applicant to pay the costs of the respondents.

I certify that this and the
preceding thirteen (13) pages
are a true copy of the Reasons

for Judgment herein of his Honour

Mr Justice Hill.

Associate:  f z + d o & d

Date: 17 March 1992

Counsel and Solicitors	Mr N Williams instructed by
for Applicant:	Levingstons
Counsel and Solicitors	Mr R Weber instructed by
for Respondent:	Australian Government Solicitor
Dates of Hearing:	17 March 1992

-

Date Judgment Delivered:  17 March 1992

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