Mally, Santokh v The Honourable Phillip Ruddock, MP, Minister for Immigration & Multicultural Affairs

[1998] FCA 371

SANTOKH MALLY v. IMMIGRATION AND MULTI-CULTURAL AFFAIRS
No. QG 179 of 1997
FED No. 371/98
Number of pages - 8
Immigration

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

FINN J

Immigration - Entry permits - Application for December 1989 (permanent) entry permit - Compassionate grounds - Where only one person is named as nominator on form but two people write supporting statutory declarations - Whether second person also a nominator - whether tribunal adequately considered circumstances of second nominator.

The Migration Regulations 1993 (Cth) clause 812

McCarthy v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 204 (Applied)

Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176 (Followed)

Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 (Applied)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Applied)

BRISBANE, 26 March 1998 (hearing), 9 April 1998 (decision)

#DATE 9:4:1998

Counsel for the Applicant:	Mr J Logan
Solicitor for the Applicant:	Clayton Utz for Macdonnells
Counsel for the Respondent:	Miss C Holmes
Solicitor for the Respondent:	Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application be allowed.

2. The applicant to file and serve proposed minutes of orders in consequence of these reasons.

3. Consideration of the orders be adjourned to a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FINN J

Santokh Mally, the applicant, is an illegal immigrant to this country. He was eligible to, and did, apply for a Class 812 (December 1989 (permanent)) entry permit. His lack of success in that application has led, via the Immigration Review Tribunal, to this court. He challenges the Tribunal's decision on three grounds, only one of which is of real moment.

The Migration (1993) Regulations

Insofar as they are presently relevant to the applicant, the provisions of clause 812 of the Migration (1993) Regulations require that:

"812.722 The 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; 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."

I would note of these provisions that the "nominator" for the purposes of clause 812.722(d) and no other is the person who is to suffer the extreme hardship or irreparable prejudice if the entry permit is refused. In consequence "regard only [is to be had] to the personal circumstances of [the nominator]": McCarthy v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 204 at 213. I emphasise this matter as the only substantial issue in this appeal relates to who actually nominated Mr Mally.

The Factual Setting

Mr Mally made his Class 812 entry permit application on 17 December 1993. With the assistance of a migration agent he filled out the form provided for the purpose by the then Department of Immigration, Local Government and Ethnic Affairs. That form, so I understand, had no statutory backing and the respondent did not submit that it did. As Moore J observed in Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176 at 181, it simply provided "a convenient means of identifying the information required to be considered by the Minister in assessing the application".

The form in question had several sections devoted to the "nominator". Section H was to be completed by the nominator and it required that person to:

"In the space below provide details of your relationship with the applicant and how you would be affected (in the terms above) if the applicant was obliged to leave Australia. If there is insufficient space below, please attach a separate sheet."

In Mr Mally's application the named nominator was Dennis Michael Howe. The required details of Mr Howe's relationship with Mr Mally were not set out in the application but two statutory declarations, one by Mr Howe, the other by his mother Mrs Yola Howe, accompanied the application. I will refer to these below.

Section I of the form entitled "Nomination" was to be completed by the "nominator". It was in the present case filled out by Mr Howe.

Along with the two statutory declarations to which I have referred the application was accompanied by a letter from a migration agency. That letter, while outlining Mr Mally's relationships both with Mr Howe and with his family members, referred to Mr Howe as the nominator.

Turning to the statutory declarations, first that of Mr Howe. I note that in it he does not refer to himself as the nominator. The burden of the declaration, which outlines Mr Mally's relationship with Mr Howe, his farming business and his family is captured in its final two sentences:

"To lose Mally as an employee on our farm would cause extreme financial hardship especially in the current difficult economic agricultural climate. To lose Mally would also cause my family and children extreme emotional pain as he has been a member of our family for the past 9 years."

Mrs Howe's statutory declaration, which was handwritten, should be set out in full (omitting formal parts).

"I have known Santokh Mally Singh for the past ten years. In this time Mally (as we call him) has become one of the family. I consider Mally as my third son as he is so faithful, loyal and good living. Mally respects me greatly and regards me as his mother and refers to me as "mum". During the time I nursed my invalid husband for a period of approximately five years, Mally proved both a dedicated and invaluable assistant to myself and my husband. Mally was a constant help to me in the area of lifting, bathing and dressing my husband. My husband has since passed away and Mally continues to be a support to me. Mally has become so close to my family that we feel there would be great emotional loss if he were to leave. My five grandchildren have come to regard him as their uncle as he spends time with them daily. Many a time has Mally taken the children for rides on the tractors and bikes and taken them on outings. A family celebration in our home always includes Mally. Mally has led a very simply life. He is always willing to help anybody and is an extremely compassionate person. The extent of Mally's social life is mixing with my family, and has come to know all members of my family and they love him and respect him dearly. Although this is all fine for my family it is Mally's well-being and future that concerns me. In his present situation, Mally lacks the freedom that such a person as he deserves. It would be an extreme sadness if Mally were to leave. I dearly would like the best for this young man, and I plead on Mally's behalf for your absolute fairness and compassion in this case. I know as do my family that we will always be proud of Mally and we are certain that he will always be an asset and worthy citizen of this country. Yours faithfully Yola Howe"

In the decisions both of the delegate of the Minister of 20 May 1997 and of the Tribunal of 16 October 1997 Mr Howe is the person regarded as Mr Mally's nominator. I would note that the delegate in his decision acknowledged that "Yola Howe also supports Santokh's stay" though I should add the same is said of another person who ran the local store and post office and who provided a brief reference for Mr Mally.

At the hearing before the Tribunal both Mr Howe and Mrs Howe gave evidence. A transcript of that evidence has not been produced though I have been provided with a copy of written submissions made on his behalf. Having emphasised Mr Mally's importance to Mr Howe and his business, these close with the following paragraphs:

"22. Emotionally, three generations of the Howe family would suffer if Mr Mally had to leave. He is treated as part of the Howe family, living in a caravan near Yola Howe's house. The Applicant and Mrs Howe have developed close emotional ties. The Applicant gives significant support to Mrs Howe. Mrs Howe would suffer deep emotional hardship if Mr Mally had to leave. 23. Similarly, the Applicant has developed a close emotional tie with Dennis Howe and his family as evidenced by Mrs Howe's Statements and that of Mr Howe's eight year old daughter, Caitlan Howe. 24. In conclusion, we submit that if Mr Mally's application were to fail the degree of economic and emotional loss would cause extreme hardship to the Howe family and consequently the Application should be granted."

A Matter of Context

It is perfectly apparent that the substance of the matters raised in support of Mr Mally's application and of his appeal to the Tribunal were twofold - and counsel for the respondent conceded as much in argument. They were first, Mr Mally's significance to Mr Howe and his business and secondly, Mr Mally's relationship with members of the Howe family. Nonetheless, and for reasons I have earlier noted, the questions of prejudice or hardship are only of importance in relation to the nominator.

The Tribunal in its account of the evidence does set out some at least of the views expressed by Mrs Howe, as also Mr Howe's 8 year old daughter, as to their attachment to Mr Mally. However, having identified Mr Howe as the nominator, the Tribunal characterised its "task" as:

"firstly, to determine what the consequences will be for the nominator, Mr Dennis Howe if the Tribunal refuses to grant the Applicant an entry permit and, secondly, to determine whether those consequences amount to extreme hardship or irreparable prejudice respectively."

The major part of the Tribunal's findings deal with the employment relationship of Mr Mally and Mr Howe. One page, though, of the findings are devoted to the issue of personal relationships and it concludes with the following:

"Given all the circumstances of this case the Tribunal does not find that the inconvenience, concerns, difficulties, hardship or prejudice that could be experienced by the Howe family if the Applicant was not able to stay in Australia are of such a nature that any hardship would be 'extreme' as discussed above, or that in the alternative any prejudice suffered would be 'irreparable' in the terms indicated above. Indeed, the Tribunal is not satisfied on balance that the Applicant's nominator, Mr Dennis Howe would suffer the hardship or prejudice contemplated in clause 812.73(6) (sic) of the Regulations."

The decision, then, reflects the ambiguity which founds this appeal. Because Mr Howe is regarded as the nominator it addresses and ultimately reaches a conclusion about hardship or prejudice to him. Yet it deals in a way which is more than cursory yet less than complete with hardship or prejudice to the Howe family.

The Application

The central plank of this application is that though Mr Howe was expressed to be the nominator in the application form, the application is correctly to be characterised as one made on behalf of a class which comprises each of Mr Dennis Howe and his wife, their children and Mrs Howe's mother, Yola.

In making this claim counsel for the applicant accepted, as he was obliged to, that the mere assertion by a declared nominator that the refusal of an entry permit would cause the requisite hardship or prejudice to a defined class of persons does not for that reason make the members of that class nominators as well: see McCarthy v Minister for Immigration and Ethnic Affairs, above, at 209 and 213. Rather, it was said that the nature and circumstances of the application justified this conclusion. At the hearing this submission was reduced to the following: (a) Mrs Yola Howe was a nominator in her own right, her statutory declaration having this effect notwithstanding that Mr Howe alone was for formal purposes the declared nominator; and (b) Mr Howe in his nomination otherwise acted on behalf of his family and for the purpose of bringing into consideration harm or prejudice to the family.

The respondent, in contrast, invited me to accept the form on its face. Mr Howe was the only nominator and, it was said, if Mrs Howe or anyone else was being advanced as such it was incumbent on the applicant to have adduced evidence to this effect.

In Yong's case above - a decision on predecessor regulations - where the issue was whether the writer of a letter accompanying an application was a nominator though not expressly declared to be such in the letter or the application, Moore J observed (at 182) that:

"an inference might be drawn from the fact that another nominator was identified in the application itself, that the brother was not a nominator. I nonetheless consider that an applicant should enjoy the benefit of any uncertainty as to how the regulation is intended to operate, not because of his interests, but because of the interests of the nominator whose circumstances are intended to be addressed by par (d)(v): see Kuar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 343 at 345. The Court has adopted a liberal approach to the construction of migration regulations that are designed to benefit Australian citizens or residents. As Burchett J said in Fuduce v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 527: 'Indeed, such cases are probably at the heart of the benevolent intent of the regulation which, on ordinary principles, as I have already indicated, should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains.' I see no reason why a similar approach should not be adopted in determining how the regulation was intended to apply particularly given that, as appears to be common ground, there is no provision in the regulations identifying the manner in which a nominator should disclose that he or she is nominating an applicant. Nor is there an express requirement that there be only one nominator."

I accept this as encapsulating the correct approach to be taken to the issue raised in this application. And in light of it I consider it proper to infer that Mrs Howe at least was a nominator of Mr Mally. Her statutory declaration accompanied the application; though somewhat other-regarding and self-effacing in its sentiment, it clearly states the significance of Mr Mally to her ("my third son"); and it clearly can be characterised as "a positive act ... supporting an applicant for the entry permit sought": Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at 358. Her subsequent conduct in giving evidence at the Tribunal hearing is, in my view, confirmatory of this support.

The respondent has submitted that her statutory declaration and evidence should properly be characterised as elaborating Mr Howe's claim of the effects of the refusal of the permit on the family and not as a nomination by Mrs Howe in her own right.

In the absence of evidence which suggests Mrs Howe was positively disavowing a role as nominator, I consider it entirely appropriate to characterise her support for Mr Mally in this application as being based in part on the effects of a refusal on her. That those effects may be understated, that she expressed concern for others, is more suggestive of a commendable humanity than of an indifference to her own circumstances.

This conclusion makes it unnecessary for me to consider whether Mr Howe should as well be considered as acting in an agency capacity for his wife and two children when making his nomination. I would, though, offer this observation. Mr Howe's statutory declaration was made on 13 December 1993. It refers to his family, his own children and his sister's children. The "compassionate ground" of clause 812.723(6) must have existed on 15 October 1990. I am informed that only one of his two children had then been born and was one year old. I am unaware of whether any of his sister's children were then living. It is, in these circumstances, improbable that relationships of the relevant type with Mr Mally then existed with any of at least his own children. But, more importantly, it is unlikely that in referring to "children" Mr Howe intended to differentiate between those who were and those who were not living on 15 October 1990. This tells against his acting in an agency capacity for any of the children mentioned in his declaration for the purpose of casting them in the role of nominators. Further, if Mr Howe was intending to act on behalf of his wife, the evidence of this is oblique indeed.

I would conclude, then, that the Tribunal erred in law in failing to treat Mrs Howe as a nominator of Mr Mally and hence as someone in relation to whom the "compassionate ground" referred to in clause 812.723(6) existed.

This notwithstanding, the respondent has, in effect, submitted that the error was not a material one in that the Tribunal actually expressed a view on the hardship or prejudice experienced by the Howe family (presumably including Mrs Howe) and found it not to be relevantly "extreme" or "irreparable". In consequence it is said that it would be futile to refer the matter back for reconsideration.

I cannot agree with this. It is unclear from the Tribunal's reasons whether that consideration of the family was unaffected by its being viewed through the prism of Mr Howe's circumstances. More importantly, while the Tribunal made reference to Mrs Howe's statutory declaration and to her oral evidence I am by no means satisfied from its reasons that it gave individual consideration to Mrs Howe's personal circumstances and to the nature of such hardship or prejudice she would have suffered from a refusal to grant the entry permit. She may well have been considered in some generic fashion as "Howe family". She was not addressed - and her circumstances were not addressed - as clause 812.723(6) envisages.

I would allow the application for this reason.

Additional Matters

The applicant has additionally submitted that the Tribunal erred in its construction of the terms "extreme hardship or irreparable prejudice" this being manifest, so it is said, (a) by the Tribunal's apparent conflation of the two concepts and its apparent concern with the degree or duration of hardship or prejudice rather than with whether they were, respectively, extreme or irreparable: Tokaduadua v Minister for Immigration and Ethnic Affairs (1997) 45 ALD 501 at 505; and (b) its inappropriate reference by way of concluding comment after stating its findings, that Mr Howe may have allowed himself to benefit from illegality (ie by employing an illegal immigrant).

I would have to say that I do not consider that there is any substance in this. Little purpose would be served by setting out the Tribunal's reasoning in consequence. Because I am in agreement with the respondent's submissions on these two exemplifications of error I will confine myself to the following observations.

First, though disavowing so doing, the applicant's submission involves subjecting the Tribunal's reasons to an over-critical scrutiny for the purpose of divining error: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Considered in its whole and not in fragmented parts, it cannot fairly be said that it did not properly identify the correct interpretation to be given clause 812.723(6) - it referred explicitly to the decisions of Heerey J in Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148 and of the Full Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 - or that it incorrectly applied the law.

Secondly, whether or not the reference to benefiting from illegality was appropriate, it clearly was an afterthought. The Tribunal had expressed its conclusion on the application before it made this "passing shot". There is nothing in the reasons to suggest it affected or infected its reasons in any way.

Conclusion

The ground upon which I have concluded this application should be allowed is that the Tribunal erred in failing to regard at least Mrs Howe as a nominator in addition to Mr Howe. It is unnecessary to express a concluded view on whether anyone else in the Howe family might qualify as a nominator as well. I should add that I have some sympathy for the Tribunal in its treatment of the issue of nominators. The applicant's representatives seemed not to have clearly alerted the Tribunal that they were propounding several nominators. Be this as it may, the Tribunal's decision cannot stand and must be set aside.

I have not been addressed on the orders appropriate in the circumstances. Accordingly I direct the applicant to file and serve proposed minutes of order in consequence of these reasons and the matter will be relisted for the making of orders.