Lim, C.L. v Minister for Immigration, Local Government & Ethnic Affairs
[1994] FCA 993
•16 DECEMBER 1994
CHING LEONG LIM v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. NG261 of 1994
FED No. 993/94
Number of pages - 10
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LINDGREN J
CATCHWORDS
Immigration - appeal from a decision of the Immigration Review Tribunal refusing the grant of a December 1989 (temporary) entry permit - regulation 131A(1) (d) (v) - whether extreme hardship or irreparable prejudice established.
Migration Act 1958
Migration Regulations 1989, reg 131A
HEARING
SYDNEY, 2 December 1994
#DATE 16:12:1994
#ADD 6:6:1995
Mr P J Little of counsel, instructed by Messrs Crichton-Browne Crossley, Solicitors appeared for the applicant.
Mr P Roberts of counsel instructed by the Australian Government Solicitor appeared for the respondent.
ORDER
THE COURT ORDERS:
1. THAT the application be dismissed.
2. THAT the applicant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
NATURE OF PROCEEDINGS
LINDGREN J By a notice of appeal bearing date 9 May 1994, the applicant Ching Leong Lim ("Mr Lim") appeals from a decision of the Immigration Review Tribunal ("the Tribunal") given on 12 April 1994 (following a hearing on 12 March 1994). By that decision the Tribunal affirmed a decision of a delegate of the respondent not to grant to Seung-Jin Ma ("Mr Ma") a December 1989 (temporary) entry permit and a December 1989 (permanent) entry permit, for both of which Mr Ma had applied by application dated 2 November 1991 lodged on 4 November 1991. The delegate's decision had been made on 24 November 1993 and communicated to Mr Ma by letter dated 25 November 1993.
Section 138 of the Migration Act 1958 ("the Act") allowed an appeal to the Court on a question of law from any decision of the Tribunal made on a review under Part 3 of the Act, as the Tribunal's decision was. Mr Lim had been the applicant for review by the Tribunal, and so had standing to institute the present appeal: sub-section 138 (2) of the Act.
Sub-section 138 (4) provided that the Court is required to hear and determine the appeal and to make such order as it thinks appropriate because of its decision. Sub-section 138 (5) provided that without limiting the generality of sub-section 138 (4), the orders that may be made by the Court on an appeal include an order affirming or setting aside the Tribunal's decision, and an order remitting the matter to be reviewed and decided again (either with or without the taking of further evidence) by the Tribunal in accordance with the directions of the Court. In the present case, the orders sought in an amended notice of appeal bearing date 9 May 1994 and filed on 1 September 1994 are as follows:
"1. A declaration that Oh Bok Lee was subject to extreme hardship and irreparable prejudice as at 15 October 1990 and 24 November 1993 (the latter was the date of the delegate's decision).
2. An order directing the Respondent to issue a December 1989
(temporary) entry permit.
3. An order quashing the decision of the Immigration Review Tribunal.
4. An order that the Respondent not take any steps to enforce the decision of the Immigration Review Tribunal."
BACKGROUND AND REGULATIONS
4. Mr Ma was born on 25 October 1955 in Korea, of which country he is a citizen. He entered Australia on 11 October 1986 on a passport issued in Korea, and a student visa with an expiry date of 23 October 1986. Upon his arrival he was granted an entry permit valid until 19 July 1987. His spouse, Hye-Ok MA, accompanied him. They have two children both of whom were born in Australia, namely Grace MA born on 17 December 1986 and Daniel MA born on 27 May 1991. No further entry permit has been granted to Mr Ma since that which expired on 19 July 1987. Accordingly, he has been an illegal entrant since that date.
On 15 October 1990, the Minister announced a proposal to allow certain individuals who were in Australia illegally before 19 December 1989, to regularise their status. For that purpose, there was to be created a special entry permit.
Section 33 of the Act allowed for the prescription in the Migration Regulations of conditions for the granting or refusal of entry permits. Regulation 131A sets out the criteria in relation to a December 1989 (temporary) entry permit. Regulation 142C provides that for the grant of a December 1989 (permanent) entry permit there is an "additional criterion" that the applicant be the holder of a December 1989 (temporary) entry permit. Accordingly, unless and until he held a December 1989 (temporary) entry permit, Mr Ma could not obtain a December 1989 (permanent) entry permit. Although the Migration Regulations were repealed by Statutory Rules No.367 of 1992 and replaced by the Migration (1993) Regulations as from 1 February 1993, the savings provision in para 8.2 of those Statutory Rules stipulates that the Migration Regulations continue to apply to the review of a decision on an application which was lodged prior to the commencement of the new Regulations.
Sub-regulation 131A(1) provided that the criteria specified therein were prescribed in relation to a December 1989 (temporary) entry permit. These included criteria that the applicant must have been a prohibited non-citizen on or before 18 December 1989, must not have left Australia after that date, must have applied in accordance with the Regulations before 19 December 1993 for the entry permit, and relevantly for present purposes, the following:
"(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 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 with 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;
(e) ........ ........ ........ ........ ........ ........ ....
(f) (repealed)
(g) the applicant has been nominated by the relevant related person referred to in paragraph (d);
(h) ........ ........ ........ ........ ........ ........ ..."
"NOMINATOR"
8. In his application for the December 1989 entry permit, Mr Ma identified Mr Lim as the permanent resident who would be caused extreme hardship or irreparable prejudice for the purpose of sub-para (d)(v) of sub-regulation 131A (1).
In formal terms, according to Mr Ma's application bearing date 2 November 1991 Mr Lim was his "nominator" and a person who would suffer extreme hardship or irreparable prejudice if Mr Ma should be obliged to leave Australia. His name was given in the document as "nominator", he signed the statutory declaration required of a nominator, and in SECTION H of the document was referred to as Mr Ma's "nominator" and as such was distinguished from Mr Ma's "business partner", Lee, Oh Bok ("Mrs Lee"). Mr Lim provided a letter which accompanied Mr Ma's application referring to the hardship in question as arising from the fact that Mr Ma had been "the most important and prime supplier" to a retail business in ladies' clothing which Mr Lim and his wife had acquired in May 1990, that is to say, 17 to 18 months prior to the making of the application by Mr Ma.
However, Mrs Lee also provided a letter which accompanied the application in which she expressed the "wish" to "be a nominator" and asserted that she was totally dependent on Mr Ma in the running of a ladies' clothing shop which had been opened in May 1991, that is to say 5 to 6 months prior to the making of the application by Mr Ma.
At the hearing before the Tribunal on 12 April 1994, Mr Lim gave evidence that when his business of a ladies' clothing shop had been established in May 1990 he had been dependent on Mr Ma as a supplier, buying some 70% of his stock from Mr Ma, and that this had been the position at the time when Mr Ma's application had been made on 2 November 1991. But he said that since opening a new shop in October 1992, his own buying power had increased so that at the time of the hearing before the Tribunal (12 March 1994) he bought only 5%-10% of his stock from Mr Ma and his business would not be seriously affected if Mr Ma could no longer supply him at all.
Dr R Witton, who constituted the Tribunal, then said that on the basis of that evidence alone, it would seem that Mr Ma's application could not succeed. Subject to a qualification not presently relevant, Mr McMahon of J G McMahon and Co who appeared for Mr Lim (see later) agreed. However, the Tribunal made a finding that by submitting her statement of support with Mr Ma's original application, Mrs Lee "had substantially complied with requirements to be considered a nominator of the Principal (Mr Ma)". The Tribunal proceeded to consider Mr Lim's application to it for review of the delegate's decision on the basis that Mrs Lee was a nominator and was an Australian permanent resident who would be caused extreme hardship or irreparable prejudice by a refusal to grant the entry permit. However, on the evidence the Tribunal did not find these matters established in relation to Mrs Lee either.
The respondent submitted on the hearing of the appeal that Mrs Lee, had not "nominated" Mr Ma for the purposes of paragraph (g). I do not find it necessary to resolve this issue, in view of the conclusion which I have reached by assuming in favour of the applicant, without deciding, that Mrs Lee was properly to be regarded as a second "nominator" as the Tribunal held.
THE COURSE OF THE PROCEEDINGS BEFORE THE TRIBUNAL
14. Before the grounds of appeal are considered, it is desirable that I say something about the course which the hearing before the Tribunal followed. The "Applicant" was Mr Lim and the "Principal" was Mr Ma. They and Mrs Lee were present. At the beginning of the proceedings, Dr Witton announced:
"In this case, it relies on there being extreme hardship or irreparable prejudice being suffered by an Australian Citizen or permanent resident.
This level of hardship or prejudice has to be suffered as a result of an illegal entrant having to leave Australia. In this case the original application by Mr Ma was accompanied by a nominator Mr Lim.
I have read the submissions from Mr Lim's adviser. And I accept that a letter accompanying the original application by Mrs Lee makes her an additional nominator.
........ ........ ........ ........ ........ ........ ........ I must stress that the test for the granting of this entry permit requires that the extreme hardship or irreparable prejudice has to have existed at the 15 October, 1990 and it has to continue to the present.
Before I take, begin to take evidence I'll just check whether there, first whether that is all clear to the parties and whether the representative wants to make any preliminary statement."
There followed some discussion between Dr Witton and Mr McMahon. Then Mr Ma and Mrs Lee were asked to wait outside while evidence was taken from Mr Lim. This led to the exchange referred to above and to the Tribunal's recognising Mrs Lee as a "nominator".
Mrs Lee was then brought into the hearing room and sworn. She said that her address was 8 Ocean View Avenue, Vaucluse and in response to questioning by Dr Witton, she said that she purchased 100% of her stock from Mr Ma; that she had opened her shop in May 1991 although there had been discussions about it and communications in relation to a possible lease as early as May 1990; that she had invested about $100,000.00 in the opening of the shop including shop fittings and stock; that as at 15 October 1990 she had spent no money towards the setting up of the shop; that if Mr Ma had had to leave Australia on 15 October 1990 she would not have proceeded to set up a shop at all and would, instead, have helped in her husband's retail "gift and kitchenware" business which had been operating for about ten years and was still operating at the time of the Tribunal hearing; that she (or she and her husband) had bought the home at 8 Ocean View Avenue, Vaucluse in June 1990 for about $350,000, raising for the purpose about $250,000.00 on a mortgage from a bank; that she could not pay the interest on the mortgage but that after the shop was opened (with Mr Ma's help) she was able to pay the bank.
Dr Witton addressed these comments to Mrs Lee:
"Okay. Let me think, the Tribunal in its decisions so far have usually not accepted that potential loss can cause a hardship. So this is a fairly large barrier to your, to Mr Lim's application, well, Mr Lim, Mr Ma's application succeeding." (AB053)
Dr Witton then addressed Mr McMahon to whom he referred as "the applicant's adviser" when the following exchange took place (I have corrected misspellings or typing errors in surnames):
"Dr Witton: It's like trouble at the other end, it's like I'm not sure how far to pursue the hardship that she is going to be suffering now, well I'm, well, if in fact the shop didn't exist as of the 15 October, 1990. Is there anything you wish me to put to um Mrs Lee about the situation as at the 15th October 1990? McMahon: Yes I... One possibility Dr Witton that occurs to me arisen from the questions and answers that have just passed. Following the purchase of the home in June 1990 I would simply want to ask my client, who is strictly Mr Ma, not Mr Lim or Mrs Lee - If there is any link between that commitment which of course is a substantial commitment for anybody, if that in fact were made in some sense importantly linked to the decision which was then forming to go into business of a most promising kind.
Dr Witton: Yes, I mean the question, it becomes the realm of speculation.
McMahon: Which it does." (AB054)
Dr Witton then asked Mrs Lee further questions. There then followed a further exchange between Dr Witton and Mr McMahon beginning:
"Dr Witton: I'm happy to put any further questions that you might want me to investigate in this area, but my feeling is that there was no I'll have to think further on it, but the fact that it didn't, that it was a potential at that stage is quite different than if money had been committed that would, I mean, as at 15 October 1990 there was Mr Ma disappears which means that her plans fall through. I mean she still has money to invest, you'd have to say that there is no, there would be no other source of investment opportunity for her or that there was, I mean that would be a prejudice ... irreparable prejudice I suppose. I don't think it can be called a hardship at that stage because you're no further back than you were the day before. Some plans have disappeared.
McMahon: Based on the lack of financial commitment. Dr Witton: Yes.
McMahon: Yes. I appreciate that point..." (AB055)
Against that background, the grounds of appeal which were pressed on the hearing and my reasons relating to them can be considered. I will deal with these grounds of appeal in four classes as did counsel for the applicant.
GROUNDS OF APPEAL AND REASONS IN RESPECT OF THEM 1."(d) That the Tribunal erred in law in that it incorrectly applied the law to the facts in that it found that as Oh Bok Lee had at 11 October 1990 not yet committed money to the Plan she would not have suffered extreme hardship as at that date, when the Tribunal failed to ascertain what commitments other than money had been made at that date.
(e) That the Tribunal erred in law in that it incorrectly applied the law to the facts in that it found that the loss by Oh Bok Lee of the potential of opening a store with the Seung-Jin Ma does not represent an irreparable prejudice.
(f) That the Tribunal erred in law in that it failed to find or failed to consider whether extreme hardship or irreparable prejudice to Oh Bok Lee existed at 15 October 1990.
(g) That the Tribunal erred in law in finding that the loss of potential of opening a store did not represent an irreparable prejudice in that it found that it was not satisfied there would not have been other equally profitable matters.
(h) That the Tribunal erred in law in that it incorrectly applied the law to the facts in that the Tribunal in finding the loss of potential of opening the shop by Oh Bok Lee did not amount to irreparable prejudice ignored her financial position at 15 October 1990 as far as her home was concerned."
In its terms, the language of sub-para (d)(v) of sub-regulation 131A (1) clearly requires that the "compassionate ground" falling within para (v) must have existed on 15 October 1990 and that it must have existed continuously from that date until the Minister decides to grant or not to grant the December 1989 (temporary) entry permit applied for.
The Tribunal's critical finding in relation to Mrs Lee which was attacked on the appeal was as follows:
"The Tribunal finds that as Mrs Lee had, at 15 October 1990, not yet committed any money to the proposed plan to enter into a business relationship with (Mr Ma) she would not have suffered extreme hardship had (Mr Ma) had to leave Australia at that date. The Tribunal also finds that the loss of the potential of opening a store with (Mr Ma) as her supplier does not represent an irreparable prejudice since the Tribunal is not satisfied, on the balance of probabilities, that there would not have been other equally profitable investment opportunities in which she could have invested her funds, notwithstanding her expressed preference to invest in a partnership with (Mr Ma)".
On the evidence, as at 15 October 1990 Mrs Lee had not spent one cent towards establishing the business. The most that could be said on the evidence is that if Mr Ma had been required to leave Australia as at that date, Mrs Lee would then not have pursued any further the proposal which at that stage she had in contemplation but to which she had not yet committed herself. It is not shown, and it is not easy to see how it could be shown, that an abandonment on 15 October 1990 of an idea or proposal in those circumstances would have caused extreme hardship or irreparable prejudice. The evidence did not show, and it is perhaps inherently unlikely that there would be evidence to show, that if Mr Ma had left Australia on 15 October 1990 the resultant loss of the opportunity to establish her business some seven months later would have constituted extreme hardship or irreparable prejudice to Mrs Lee as at 15 October 1990.
In particular, the evidence did not establish any link between the purchase of the house in June 1990 and the proposal to open the shop. For example, there was no evidence that the house would not have been purchased in June 1990 but for the existence and continued subsistence of the proposal to open the shop. It is difficult to see how any such evidence that might have been led would have been persuasive in view of the fact that the shop was not opened until May 1991.
The Tribunal was entitled to determine the application on the basis of the evidence before it. On that basis, the grounds of appeal (d) - (h) are not made out.
Having read the transcript of the evidence before the Tribunal, I think that the Tribunal was entitled to conclude, as it did, that the compassionate ground described in paragraph (v) was not shown to exist on 15 October 1990.
2."(i) That the Tribunal erred in law in that the Tribunal found that the compassionate grounds must relate to a relevant related person.
(j) That the Tribunal erred in law in that it failed to take into account the position of Seung-Jin Ma's employees and franchisees and lessors."
It was submitted that the extreme hardship or irreparable prejudice referred to in para (v) may be established if it is shown that any Australian citizen or Australian permanent resident would suffer it, and in particular, it was submitted that the person caused extreme hardship or irreparable prejudice need not be the "nominator" referred to in para 131A (1) (g).
In my opinion, the expression "relevant related person" in that paragraph refers to a person who satisfies one or more of paras (i)-(v). There would have to be a "relationship" of some kind not necessarily familial, between a prohibited non-citizen and an Australian citizen or Australian permanent resident who would be caused extreme hardship or irreparable prejudice by a refusal to grant the prohibited non-citizen a December 1989 (temporary) entry permit.
In the present case it is only para (v) which has been suggested as being relevant. Accordingly, in my view the expression "relevant related person" in para (g) refers, in a case such as the present, to an Australian citizen or Australian permanent resident who would be caused extreme hardship or irreparable prejudice by a refusal to grant the entry permit. In this regard, I agree, with respect, with the reasoning of Moore J in Yong Min Jung v Minister for Immigration and Ethnic Affairs, unreported, 16 November 1994, No NG 356 of 1994.
It follows that it was not necessary for the Tribunal to take into account Mr Ma's "employees and franchisees and lessors".
It may be noted in passing that since the construction contended for by the applicant would permit only a person standing in one of the designated familial relationships with the illegal entrant to be a "nominator", neither Mr Lim nor Mrs Lee would have been entitled to fill that role,
3."(k) That the Tribunal erred in law in that it did not observe the procedure required by the Migration Act or Regulations (as amended) in that it did not comply with s.123 of the Migration Act, 1958 (as amended) in that it:-
(i) Failed to inquire of Oh Bok Lee whether she had made commitments other than the payment of money that may have amounted to extreme hardship or irreparable prejudice;
(ii) Failed to inquire as to the position of employees, franchisees and lessors of Seung-Jin Ma as at 15 October 1990 as far as compliance with Regulation 131A(d)(v) is concerned;
(iii) Failed to inquire as to what alternative prospects of investment Oh Bok Lee had as at 15 October 1990 through to the date of the Minister's decision;
(iv) Failed to explore the effects of the disposal of Seung-Jin Ma's business."
At all material times s 123 of the Migration Act 1958 provided as follows:
"123(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case."
With reference to the three "failures to inquire" and the "failure to explore", I do not think it was incumbent upon the Tribunal to take an initiative directed to making the inquiries or exploration referred to any of these matters (and in relation to (ii), see under (2) above): Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Gummow J) at 481; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (FCA/FC) at 101 (Keely J), 108 (Jenkinson J), 119 (Gummow J); Amerasinghe v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 30 (FCA/Olney J) at 38; Horvath v Minister for Immigration and Ethnic Affairs, unreported, FCA/Lockhart J, 2 March 1994. In my view, this Tribunal's failure to make the inquiries and exploration referred to was not a failure to discharge the obligation imposed on it by sub-section 123 (1) of the Act. 4. "(a) That the Tribunal erred in law in that it failed to consider
whether extreme hardship or irreparable prejudice to the Applicant existed at all.
(b) That the Tribunal erred in law in that it failed to consider whether extreme hardship or irreparable prejudice to the Applicant existed at the time of the decision by the Minister on 24 November 1993.
(c) That the Tribunal erred in law in that it considered whether extreme hardship or irreparable prejudice to the Applicant existed at the time of the hearing, namely 28 March 1994."
These grounds of appeal focus attention on the position of Mr Lim. It is clear that the Tribunal considered whether extreme hardship or irreparable prejudice would have been caused to Mr Lim at various times. The applicant submitted that the end of the period referred to in the opening words of para 131A (1) (d) is the date of the Minister's decision not to grant the permit (in this case the delegate so decided on 24 November 1993); that the Tribunal wrongly treated that terminus as the date of the hearing before the Tribunal, that is to say, 12 March 1994, as being the end of that period; that the Tribunal had not considered Mr Lim's position as at the correct date, namely 24 November 1993; and that if the Tribunal had done so the evidence might have established that throughout the period referred to in the opening words of para 131A (1) (d) Mr Lim had suffered extreme hardship or irreparable prejudice.
The respondent submitted that the correct end date for the period was the date of the hearing before the Tribunal, and cited a passing reference to that date in the judgment of Lockhart J in Horvath v Minister for Immigration and Ethnic Affairs, unreported, 2 March 1994 (No NG 437 of 1993) at p 11.
I am able to deal with these grounds of appeal without determining what is the correct end date. For two reasons the grounds of appeal fail. First, Mr Lim through his representative before the Tribunal, agreed that his case for establishing extreme hardship or irreparable prejudice was "lost" (AB049) and acquiesced in the Tribunal's proceeding by treating Mrs Lee as nominator. Secondly, and more importantly, Mr Lim's evidence was that he ceased to depend on Mr Ma as a supplier after he, Mr Lim, purchased a second shop in October 1992 and thereby acquired greater buying power. That was 13 months before the Minister's delegate decided on 24 November 1993 not to grant the entry permit. No doubt the fact that his client's evidence was that his dependence on Mr Ma had ceased such a long time before the Minister's delegate decided on 24 November 1993 to refuse to grant the entry permit, led Mr McMahon to agree so readily that Mr Lim's case was "lost".
In my opinion, for these reasons grounds of appeal (a), (b) and (c) also fail.
CONCLUSION
38. In my view it is not shown that the Tribunal made any error of law, and in consequence the application should be dismissed and the applicant should be ordered to pay the respondent's costs.
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