Marcelo, E. v The Minister for Immigration & Ethnic Affairs

[1994] FCA 146

ELPIDO MARCELO v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG298 of 1993
FED No. 146/94
Number of pages - 8
Immigration

COURT

THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
O'CONNOR J

CATCHWORDS

Immigration - entry permit - compassionate ground - whether "extreme hardship" or "irreparable prejudice" to Australian citizen or resident - high degree of gravity or prejudice.

Migration Regulations - reg 131A(1)(d)(v)

Roser v Immigration Review Tribunal and Anor 25 ALD 443
Ali v Minister for Immigration, Local Government and Ethnic Affairs (1982) 38 FCR 144
Jong-Sang Choi and Si-Koon Kim v Minister for Immigration, Local Government and Ethnic Affairs (Unreported Federal Court 990/1992, 8 December 1992)
Roser v Immigration Review Tribunal and Anor 26 ALD 163
Prasad v Minister for Immigration, Local Government and Ethnic Affairs (Unreported Federal Court 147/93, 22 March 1993)

HEARING

SYDNEY, 10 February 1994
#DATE 25:3:1994

Counsel for the Applicant: Mr R de Robillard

Solicitors for the Applicant: Parish Patience

Counsel for the Respondent: Ms R Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

1. The application be dismissed.
2. The Applicant pay the Respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

JUDGE1

O'CONNOR J This is an appeal by Elpido Marcelo from a decision of the Immigration Review Tribunal affirming a decision of a delegate of the Minster for Immigration, Local Government and Ethnic Affairs refusing to grant Roger Douglas Andrada a class 440 December 1989 (temporary) entry permit to remain in Australia. The error of law, it was submitted by the Applicant, arose when the Tribunal misdirected itself as to the correct interpretation of regulation 131A(1)(d)(v), particularly when it failed to distinguish between the meanings of "extreme hardship" and "irreparable prejudice" and imported into both a test of gravity or seriousness which was relevant only to the first term. History of Proceedings

1. The Principal, Roger Douglas Andrada, arrived in Australia on 30 October 1985 holding a visitor visa and on arrival was granted permission to remain in Australia for a period of two months, that is until on or about 30 December 1985. Since arrival, the Principal has not departed Australia and no further entry permit has ever been granted to him. Consequently, as at 19 December 1989 when changes to the migration legislation and its terminology came into effect, the Principal became an "illegal entrant".

2. On 26 August 1992, the Principal lodged an application for a December 1989 (temporary) entry permit which would enable him to remain in Australia under the concessions extended to persons who were illegally in Australia on 19 December 1989. The application, completed by the Applicant as the nominator, was founded on "compassionate grounds".

3. The Principal and his wife and three children aged 8, 7 and 1 year old reside in Sydney. The Principal operates a business trading as Master Signs Pty Ltd. The company employs three people. The Applicant who is a cousin and employee of the Principal stated in the application:
   

"I would lose my job and suffer extreme hardship as a result. I am 43 years old and have five children to support."

The Principal also told the Tribunal that if required to leave Australia the company would not be able to continue as he had not had the opportunity to impart to his employees his knowledge and skill.

1. On 22 December 1992, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs refused to grant the Principal the December 1989 (temporary) entry permit to enable him to reside in Australia. On 27 April 1993, the Immigration Review Tribunal affirmed this decision. Although satisfied that the Principal satisfies the requirements of regulation 131A(1)(a), (b) and (c), the Tribunal was not satisfied on the balance of probabilities that refusal to grant the Principal the entry permit sought would cause the Applicant to suffer "extreme hardship or irreparable prejudice" as required by regulation 131(1)(d)(v).

2. The Tribunal considered the primary contention put by the Applicant at pages 57-58 of the Appeal Book:
   

"... the main basis of the Applicant's submission is that his employment may be terminated as a result of the closure of the Principal's business and that he would find it difficult to obtain other employment to supplement the family income.

According to the facts before the Tribunal, since arriving in Australia in June 1990, the Applicant had only been seeking work for four months before commencing employment with the Principal. Whilst he has a large family to support he is not the sole income provider and there is little evidence before the Tribunal to show that any loss of his present employment would result in him being forced to join the ranks of the long term unemployed.

Additionally, whilst the Principal has indicated at the hearing that he would be seeking to sell his company were the present application to prove unsuccessful, there has been no suggestion that the company's present employees would not be able to transfer to any new ownership, nor for that matter has evidence been provided to show that the company would not be able to continue operating in the absence of the Principal."

Legislative Scheme
7. The criteria for the granting of a December 1989 (temporary) entry permit are specified in item 59A of Schedule 3 of the Migration Regulations which provides inter alia that an Applicant for a December 1989 (temporary) entry permit must satisfy the criteria provided Under regulation 131A. The Migration Regulations were repealed by Statutory Rules No 367 of 1992 and replaced by the Migration (1993) Regulations which came into effect on 1 February 1993. However, the savings provisions in paragraph 8.2 of these Rules stipulates inter alia that the Migration Regulations shall continue to apply to the review of a decision in relation to an application for a visa which was lodged before the commencement of the new regulations. For the purposes of this case, the relevant regulations are therefore Migration Regulations and particularly regulation 131A.

1. So far as is relevant, regulation 131A provides:
   

131A (1) The following criteria are prescribed 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, 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;

(i) ........

(ii) ........

(iii) ........

(iv) ........

(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) if:

(i) The applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that

paragraph, a person referred to in subparagraph

(d)(i), (ii) or (v); and

(ii) in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support, an assurance of support satisfactory to the Minister has been given;

(f) if the applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph (d)(iii) or (iv) - an assurance of support satisfactory to the Minister has been given;

(g) the applicant has been nominated by the relevant related person referred to in paragraph (d);

(h) the applicant notifies the Department, without unreasonable delay< of each change of his or her residential address.

(2) In this regulation "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that has occurred in the applicant's country of citizenship or of usual residence.

The present case
9. The question of law raised in the appeal is that the Tribunal erred in holding that the meaning of the term "irreparable prejudice" in the regulation required the Applicant to show a very high degree of gravity or prejudice. Before the Court, Counsel for the Applicant also submitted that the Tribunal erred by looking at extraneous tests which were not relevant to these proceedings. It was submitted that the Tribunal was influenced by dicta in Roser v Minister for Immigration 25 ALD 443 and thereby erred in law.

1. Counsel for the Applicant submitted that the Tribunal failed to separate the two phrases "extreme hardship" and "irreparable prejudice" and applied the same test to both expressions. The Tribunal required that both the hardship and the prejudice must be of a grave degree.

2. In Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144; Jong-Sang Choi and Si-Koon Kim v Minister for Immigration, Local Government and Ethnic Affairs (Unreported Federal Court 990/1992, 8 December 1992) Heerey J states that regulation 131A(1)(d)(v) establishes two distinct criteria and not one. Although they are two distinct criteria the words "extreme hardship" and "irreparable prejudice" appear in the same sentence in the regulation and are treated as a whole in the departmental application form where there is only provision for a cross to be placed next to the entire phrase. There is no legislative or local requirement that these two concepts need be dealt with by decision makers in separate paragraphs or areas. The requirement to give reasons does not require the decision maker to analyse the requirements word by word before reaching a conclusion. The decision maker may deal with the two concepts simultaneously and consider as a whole whether the Applicant is likely to suffer extreme hardship or irreparable prejudice.

3. Although the concepts may be dealt with simultaneously the adjectives describing either the hardship or the prejudice are not interchangeable. The notion of extremity cannot be imported into "prejudice", nor can the notion of irreparability be imported into "hardship". It is this which Counsel for the Applicant submitted was the Tribunal's error when it referred to Roser v Immigration Review Tribunal and the Minister for Immigration, Local Government and Ethnic Affairs 25 ALD 443 and affirmed by the Full court in Roser v Immigration Review Tribunal and Anor 26 ALD 163 which approves Tribunal decisions that have established "that the degree or gravity of hardship or prejudice contemplated by the provision must be of a very high standard indeed. Mere hardship or prejudice would appear to fall far short of the test prescribed." (Page 57 of the Appeal Book.)

4. Counsel for the Respondent submitted that in this particular phrase of the Tribunal"s decision "degree" may be the word that qualifies hardship and "gravity" the word that qualifies prejudice. It is quite probable that the decision maker was not associating the word "degree" with prejudice.

5. The use of the word "grave" would seem appropriate to express the seriousness of irreparability. Nevertheless, the notion of gravity or seriousness does not import into the concept of prejudice any qualification of extremity or degree. If the Tribunal did not speak of "irreparable prejudice" at all but referred only to grave prejudice, it would err in law. However, in the context of its reasons for decision where it has discussed the evidence and the concepts, I cannot find that the use of words such as "degree or gravity" are fatal to its reasoning.

6. Counsel's submission as to the reference to the dicta in Roser do not indicate any error of law on the Tribunal's part. The mere reference to dicta and the use of these dicta as support for the principles that the Tribunal is attempting to apply does not reveal an error of law. The Tribunal has not applied Roser. It has merely used Von Doussa J and the Full Court's approval of certain principles to support its interpretation of the requirements. Further, the obiter remarks in Roser ought not to be misconstrued. Von Doussa J was not suggesting that the words "extreme hardship" or "irreparable prejudice" were to be taken as a single expression. His Honour simply adverted to the fact that a "very high degree" and not "mere" hardship or prejudice is required by regulation 131A(1)(d)(v).

7. Counsel further submitted that the Tribunal was required to follow a specific reasoning process. Firstly, it should consider the facts from the point of view of the Applicant and establish whether there was hardship or prejudice. Secondly, it should inquire whether the hardship would be extreme or the prejudice irreparable. If so satisfied, the entry permit could be granted. Counsel submitted that the Tribunal did not consider the full extent of the prejudice and did not follow a logical process but rather pre-empted the decision by considering that it is only in very rare extreme cases that the permit would be granted.

8. Justice Heerey's decision in Ali and Another v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148 was relied upon by Counsel for the Applicant as authority for the proposition that the two concepts, "irreparable" and "prejudice", should be considered separately:
   

"This seems to involve lumping together of the two concepts of hardship and prejudice. Not only are prejudice and hardship two distinct criteria, but inquiry as to the degree or extent of prejudice by no means necessarily poses the question whether that prejudice can be remedied or rectified. There may be great prejudice which is reparable and small prejudice which is not."

1. From the reasons, it appears that the first test suggested by Counsel for the Applicant, that is, whether there was actual hardship or prejudice, was not in fact met. However, I reject Counsel for the Applicant's submission that this convoluted process is that which is required by the legislation. A two step process is not required. The decision maker is required to consider as a whole whether there is "irreparable prejudice". The prejudice cannot be trivial as such prejudice would not be irreparable.

2. The Tribunal examined the Applicant's work history since arrival in Australia, the very short period during which he was not employed, the fact that he is not the sole income provider for his five children and that there is no certainty as to whether he would join the ranks of the long-term unemployed or be employed by the next owner after the sale of the business. After considering this evidence, the Tribunal concluded that the prejudice was not irreparable and fell short of the requirements of regulation 131A(1)(d)(v). The characterisation of the Applicant's employment needs and prospects cannot be characterised as anything other than a consideration of whether the prejudice alleged would be "incapable of being rectified, remedied or made good". The Tribunal did not err as the Tribunal in Ali did. It did consider whether the prejudice was irreparable.

3. I am also not persuaded by Counsel for the Applicant's submission, in reliance on the decision in Prasad v Minister for Immigration, Local Government and Ethnic Affairs (Unreported Federal Court 147/93, 22 March 1993), that there is a threshold which one has to pass as to the extent of the prejudice, namely that it must be some prejudice of a sufficient seriousness to cause the decision maker to feel compassion for the person. His Honour did not raise any additional test in that case and certainly not a threshold. He simply described the way in which one fits the concepts of extreme hardship and irreparable prejudice into the compassionate ground.

4. For the reasons stated above, the Applicant's appeal is dismissed. The formal orders of the Court, therefore, will be that the appeal be dismissed and that the Applicant pay to the Respondent its costs of the appeal.