Minister for Immigration and Ethnic Affairs v Teo

[1995] FCA 246

CATCHWORDS

ADMINISTRATIVE LAW - judicial review for error of law - fact finding - when error of fact may amount to error of law - distinction between review under general law and Administrative Decisions (Judicial Review) Act 1977.

IMMIGRATION AND ALIENS - December 1989 (Temporary) Entry Permit - construction of reg. 131A (1) (d) (v) of Migration (1989) Regulations - "extreme hardship", "irreparable prejudice", "compassionate ground" - meaning thereof.

Administrative Decisions (Judicial Review) Act 1977, s. 5
Migration Act 1958, ss. 34, 135, 138
Migration (1989) Regulations, reg. 131.

Buck v Bavone (1976) 135 CLR 110
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
Apthorpe v Repatriation Commission (1987) 77 ALR 42
Roser v Immigration Review Tribunal & Anor (1991) 25 ALD 443
Roser v Immigration Review Tribunal & Anor (1992) 105 ALR 211
Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144
Prasad v Minister for Immigration Local Government and Ethnic Affairs (1993) 30 ALD 856
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v
DAPHNE TEO
No. NG 785 of 1994

BEFORE:      BLACK CJ, GUMMOW, BEAZLEY JJ.
PLACE:       SYDNEY.
DATE:        13 APRIL 1995.

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 785 of 1994
GENERAL DIVISION                 )

On appeal from a Judge of the Federal Court of Australia.

BETWEEN:     MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  Appellant

AND:         DAPHNE TEO
  Respondent

BEFORE:      BLACK CJ, GUMMOW, BEAZLEY JJ.
PLACE:       SYDNEY.
DATE:        13 APRIL 1995.

MINUTE OF ORDERS
THE COURT ORDERS THAT:

(1)The appeal be dismissed.

(2)The appellant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 785 of 1994
GENERAL DIVISION                 )

On appeal from a Judge of the Federal Court of Australia.

BETWEEN:     MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  Appellant

AND:         DAPHNE TEO
  Respondent

BEFORE:      BLACK CJ, GUMMOW, BEAZLEY JJ.
PLACE:       SYDNEY.
DATE:        13 APRIL 1995.

REASONS FOR JUDGMENT
THE COURT:
Introduction
This is an appeal from orders made by a Judge of the Court (Burchett J) on 25 October 1994. His Honour was exercising jurisdiction conferred on the Court by s. 138 of the Migration Act 1958 ("the Act"). Section 138 confers jurisdiction to hear and determine an appeal on a question of law from any decision of the Immigration Review Tribunal ("the Tribunal") made on a review under Part 3 (ss. 115-150) of the Act. The Court was empowered to make such order as it thought "appropriate because of its decision" (sub-s. 138 (4)).
     The primary Judge set aside the decision of the Tribunal issued 26 May 1993 and ordered the matter be remitted to the Tribunal, differently constituted, to be determined in accordance with the reasons of the Court. 

The Tribunal had affirmed the primary decision not to grant an entry permit.  The appellant, the Minister, submits that the primary Judge erred in law in his decision.  The respondent both supports the reasoning in the reasons for judgment and also contends that the decision of the Tribunal was flawed by an additional error of law to that found by the primary Judge.  Counsel for the Minister submitted that had the further point been taken before the primary Judge, he would have wished to consider calling evidence to supplement the record of what had taken place before the Tribunal.

As we have indicated, the proceeding before the primary Judge was on the narrow footing provided by s. 138 of the Act, namely an appeal on a question of law. If, for example, the further point involved an allegation by the respondent of the exercise of statutory power otherwise than bona fide, there might have been some substance in the complaint against consideration of the matter at this stage.  That is not the case.  The further point, as will appear, is a complaint directed to error of law on a question of construction.  Accordingly, there is no reason why the ordinary principles considered in decisions such as Suttor v Gundowda Pty Ltd
(1950) 81 CLR 418 and Coulton v Holcombe (1986) 162 CLR 1, do not apply and operate in favour of the respondent.

The respondent to the appeal, Mrs Daphne Teo, is sister of Mr Chuan Chye S. Chua (who we shall call "the applicant" and who was identified by the Tribunal as the Principal).  The respondent, like the applicant, was born in Singapore.  She migrated with her husband to Australia in 1987.  She and her husband have two children, both born in Australia.  In 1989 the respondent became an Australian citizen, renouncing her Singapore citizenship.  Apart from her spouse and infant children, the applicant is the only relative the respondent has in Australia.

The applicant arrived in Australia on 23 April 1980 from Singapore on a visitor's visa. On his arrival, he was granted an entry permit under the Act, valid to 23 May 1980. When this permit expired, the applicant became a "prohibited non-citizen" within the meaning of the Act as then in force. The applicant has accounting skills and for 5 years was employed here as paymaster by The Commonwealth Industrial Gases Ltd. He had been a "prohibited non-citizen" for many years when on 17 January 1991 he made the application for an entry permit which is now in question. The application was supported by his sister as "nominator". (The Tribunal identified Mrs Teo as "the applicant".) The application was refused on 3 February 1993 by a delegate of the Minister. Mrs Teo, his
nominator, then sought review by the Tribunal.  Mrs Teo is the respondent before us.

The Tribunal was required by sub-s. 135 (1) to prepare a written statement setting out its reasons, the findings on any material questions of fact and referring "to the evidence or any other material on which the findings of fact were based".  (Section 25D of the Acts Interpretation Act 1901 is a general provision to the same effect.) The Tribunal was empowered by sub-s. 118 (2) to exercise all the powers and discretions conferred by the Act upon the Minister.

Before turning to the findings of the Tribunal on material questions of fact, it is appropriate to describe the legislative framework as it existed at the relevant time. Both the Act and the regulations made thereunder have been extensively amended, but there is no dispute as to the text applicable for this case.

Section 34 - Jurisdictional Fact and Error of Law
Division 3 (ss. 33-50) of Part 2 of the Act deals with entry permits. Section 34 applies where, and only where, a person makes an application for an entry permit of a particular class in accordance with the regulations and any fee payable in respect of the application is paid (sub-s. 34 (1)). Unless s. 34 applies, the Minister is not required to consider an application at all and "shall not in any circumstances grant an entry permit" (sub-s. 34 (2)).
One of the submissions made for the appellant was that the primary Judge had approached the matter by going directly to the text of the relevant regulation, rather than first to s. 34. There is some force in this submission, although his Honour did say that the conclusion of the Tribunal was not reached in the exercise of a discretion and was "simply a conclusion that statutory criteria are not met".

Sub-sections 34 (3) and (4) are of central importance.  Each imposes an obligation or duty on the Minister, rather than vest a discretion in him.  The obligation or duty is to be discharged if a certain state of affairs appears to the Minister to exist.  The appearance of that state of affairs to the Minister thus is a rather special species of jurisdictional fact; see the discussion by Mr P.P. Craig in "Administrative Law", 3rd ed., 1994, pp. 368-70. 

The text of sub-s. 34 (3), (4) is as follows:

"34.(3)  Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall, subject to this Division, grant the applicant such an entry permit.

(4)Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."

The "jurisdictional fact" presented as a criterion for the operation of each of these sub-sections is of a special
nature because (i) on the face of the statute the jurisdictional fact is expressed in subjective terms, and (ii) its subject matter is not a state of fact in the ordinary sense, but entitlement as a matter of law upon a proper construction of the regulations. However, the determination of the existence of an entitlement to grant of an entry permit, and the interpretation of the regulations which this involves, in turn may call for an assessment of matters of fact. In this way, albeit indirectly, a fact finding process by the Minister is involved. The result is that the written decision of the Tribunal must include "material questions of fact" within the sense of sub-s. 135 (1) of the Act.

In England, particularly since Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, a provision framed in a "subjective form" such as "if the Secretary of State is satisfied ..." usually will be construed so as not to exclude judicial review. A similar position had been reached earlier in Australia. Before us, both sides accepted the statement of principle by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-19. His Honour said:

"It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute.  Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied.  In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.  Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account.  Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.  However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.  In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."

At this stage, several points should be made.

First, under general law principles, error in fact finding does not necessarily involve an error of law.  Mason CJ explained the Australian position as follows, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6:

"So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480, 483.

But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (1987) 163 CLR 54 at 77, per Brennan J. Similarly, Menzies J observed in Reg. v District Court; Ex parte White (1966) 116 CLR 644 at 654:

'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record.  To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.'

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

Secondly, the term "perversely" used in House of Lords authority adopted by the Full Court in decisions such as Broadbridge v Stammers (1987) 16 FCR 296 at 300-301, and Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 53-4, signifies that the fact finding administrative decision maker acted without any probative material, so that a finding of fact will be reviewable for error of law at common law on the ground that there was no probative material to support it: Bond at 358-360.

Thirdly, in our view, the reference by Gibbs J. in Buck v Bavone supra to fact finding in respect of what is a matter of opinion or policy or taste includes a case such as the present where what is at issue is the existence of "strong compassionate or humanitarian grounds" and the like.  Conclusions on such matters may be very much a matter of opinion and thus not readily susceptible to review for error of law; see Kioa v West (1985) 159 CLR 550 at 582, per Mason J.

Fourthly, in considering various submissions made on the appeal, it is important to bear in mind that the jurisdiction conferred upon this Court by s. 138 of the Act, to consider error arising "on a question of law", differs in important respects from the jurisdiction exercised by the Court upon an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for an order of review in respect of a decision of an administrative character made under an enactment. Section 138 of the Act by confining the subject matter of the "appeal" to a question of law calls into play in a case such as the present the general common law principles of administrative law as to the treatment of fact finding as error of law. On the other hand, the various grounds of review under sub-s. 5 (1) of the ADJR Act, particularly those in paras. (e), (f) and (h), together with the requirement of a "decision" present a particular framework for review on "no evidence" grounds. The subject is discussed in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 219-224.

Paragraph (f) asks whether "the decision involved an error of law", and para. (h) whether "there was no evidence or other material to justify the making of the decision".  Paragraph (e), in conjunction with para. (g) of sub-s. 5 (2), provides for review on the ground that the making of the decision was an improper exercise of the power conferred by the enactment because the exercise of that power was "so unreasonable that no reasonable person could have so exercised the power". 

Finally, these three threads in s. 5 of the ADJR Act were drawn together by Mason CJ in Bond, supra at 358-360.  His Honour considered paras. (f) and (h) and said:

"The better view, one which seeks to harmonise the two grounds of review, is to treat 'error of law' in section 5 (1) (f) as embracing the 'no evidence' ground as it was accepted and applied in Australia before the enactment of the AD(JR) Act and to treat the 'no evidence' ground in section 5 (1) (h), as elucidated in section 5 (3), as expanding that ground of review in the applications for which pars. (a) and (b) of section 5 (3) make provision. Within the area of operation of par. (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision. This interpretation of the two grounds of review enables one to say that section 5 (1) (h) and (3) (a) have the effect of overcoming to a limited extent and in a limited area the restrictions on the traditional 'no evidence' ground considered by Barwick CJ and Gibbs J in Sinclair v Maryborough Mining Warden (1975) 132 CLR at 481, 483."

His Honour also (at 359) accepted that some findings of fact might be reviewed under para. (e), provided that the finding itself constituted a "decision" and was more than a step along the way to an ultimate determination.  If a finding of fact does constitute a "decision", then, his Honour said (at 359-60) it will be "reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing".

What then is involved in the proposition that the process of fact finding in order to decide whether circumstances answer a statutory pre-condition to the imposition of an obligation upon the decision maker, may attract review for error of law where the decision could not "reasonably" have been reached?  Is the fact finding made in the exercise of a discretionary power?  The position was explained in the following passage from Apthorpe, supra at 54 which was relied upon by the appellant:

"It is not a discretionary finding, but nevertheless involves the weighing up of a large range of factors and the making of a value judgment or assessment in the light of the broad test which Parliament prescribed.  The making of that judgment or assessment is one for the tribunal, not for the court in an appeal limited to issues of law.  The issues in the present case essentially are concerned with whether, in applying to the facts the test prescribed by the Parliament in the broad language used by it, an error of law occurred."

Two points are implicit in that passage. The first is that the facts to be established may be identified by the legislation in such broad terms as necessarily to involve the formation of opinion. The second is that given the restrictions upon review of fact finding on the ground of error of law, under general administrative law principles and outside the ADJR Act, it will be difficult in this type of case to find error of law.

A rather different situation arises where what is involved is not the finding, as in this case, of a jurisdictional fact, but the exercise of a discretionary power which is attacked at general law, not for failure to take into account relevant considerations or for the taking into account of irrelevant considerations, but on a footing that the exercise of the discretion was "manifestly unreasonable".  Here, as Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42:

"[G]uidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion.  In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. ...  So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."

A related but distinct ground of review is that there was a purported and not a real exercise of the functions entrusted by the legislation to the decision maker.   That ground is considered in authorities such as Sinclair v Maryborough Mining Warden supra at 483, and, in this Court, in Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 429, and Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 412.

We were referred by the respondent to Luu v Renevier (1989) 91 ALR 39. That was a decision under the ADJR Act and the Full Court judgment was delivered before the High Court decided Bond supra.   Luu is authority that the making of a particular decision may be "unreasonable" - in the sense that it is "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power" within the meaning of para. 5 (2) (g) of the ADJR Act - and therefore "an improper exercise of the power conferred by the enactment" within the meaning of para. 5 (1) (e), "because it lacked a legally defensible foundation in the factual material or in logic" (at 50). We have referred to the passage in Bond at 359, in which Mason CJ accepts that findings of fact which are unreasonable or arbitrary may be reviewed under para. 5 (1) (e) if the finding constitutes a "decision" in the sense identified in Bond.  The point of present importance is that Luu was not a decision in which review was granted for "error of law" within the meaning of para. 5 (1) (f) of the ADJR Act.

The ambit of judicial review for error of law in a case such as the present is to be understood with these principles in mind.  We turn now to the terms of the regulations in question.

The Regulations
Section 33 of the Act provides that regulations may be made to provide for different classes of entry permits and to prescribe criteria in relation to such classes of entry permit. Regulation 131A prescribes criteria in relation to that class of entry permit identified as "December 1989 (temporary) entry permit". The respondent's primary submission has been that it should have appeared to the Minister that the applicant for the permit was entitled to the grant of such an entry permit and that, accordingly, pursuant to sub-s. 34 (3) of the Act the Minister was obliged to grant that entry permit.

Regulation 131A, so far as is relevant, is as follows:

"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)the applicant is:

(A)  ...
  (B)  ...

(C)a special need relative; or

(D)...

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)  ...
             (g)  ...
             (h)  ...

(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 applicant satisfied the criteria in paras. (a), (b) and (c) of reg. 131A (1).  The case has turned upon whether one or more of the categories in para. (d) are satisfied.  Before the Tribunal, a submission that the applicant was a special need relative within the meaning of category (iv) (C) failed.  The Tribunal also decided that category (v) did not apply, and this formed the basis of the case before the primary Judge.

The Decision of the Tribunal
     The Tribunal found:

"The evidence establishes that the Applicant [Mrs Teo] has a very close relationship and bond with the Principal [her brother], and relies heavily upon him for emotional support.  She settled in Australia in 1987 with her husband, to be close to the Principal, and although she was aware that he had illegal status, she hoped that she would be able to sponsor him eventually.  The Applicant in evidence said that she had no other relatives in Australia, and should anything happen she would have no one to turn to without the Principal.  In addition she could not return to Singapore as she had renounced her citizenship."

Later in its reasons, the Tribunal said:

"The Tribunal accepts that the Applicant and the Principal are very close.  However, it does not accept the submission made by the Applicant's solicitor that not being able to live with her brother constitutes 'extreme hardship or irreparable prejudice'."

In order to understand the reasoning of the primary Judge, which is challenged by counsel for the Minister, the appellant, it is necessary first to consider the reasoning adopted by the Tribunal in deciding that category (v) did not apply to the applicant. 

At the outset in its consideration of the subject, there appears a passage which indicates the starting point taken by the Tribunal in its consideration of the construction of category (v).  This asks whether on 15 October 1990 and continuously until the Minister decides to grant, or not to grant the entry permit, 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.

The Tribunal said:

"As has been pointed out in a number of Tribunal decisions ... the test for what might constitute 'extreme hardship' or 'irreparable prejudice' as required by the relevant legislation is quite severe.  Justice von Doussa has stated in Roser v Immigration Review Tribunal and Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 3 September 1991) that 'mere hardship or prejudice ... is not enough.  There must be a very high degree of hardship or prejudice.'  The hardship or prejudice, moreover, must be experienced by the Australian party - not the Principal - and there must be a causal relationship between such hardship or prejudice and the departure from Australia of the non-Australian party ..."

The decision of von Doussa J in Roser is reported (1991) 25 ALD 443. An appeal was dismissed and the decision of the Full Court is reported (1992) 105 ALR 211. At 214, the Full Court indicated its agreement with the construction of reg. 131A by von Doussa J. It appears that neither the Tribunal nor the primary Judge was referred to the Full Court decision.

In Roser, the applicant for the entry permit contended that refusal of the application would cause extreme hardship or irreparable prejudice to an Australian citizen or permanent resident; this was said to consist in the loss of the applicant's help to his friend in his business, in particular driving him around at no cost. The friend had lost the sight in his right eye. In dismissing an appeal under s. 138, von Doussa J said (at 449):

"As a matter of law, on the information provided by the applicant and Mr Singh, no real possibility could 'appear' that Mr Singh would suffer 'extreme hardship or irreparable prejudice'.  As the tribunal noted by reference to an earlier decision of the tribunal in Re Jackson (No. 090/00124, 17 December 1990) mere hardship or prejudice to another Australian citizen or Australian permanent resident is not enough.  There must be a very high degree of hardship or prejudice.  Whilst the decision in a particular case as to whether hardship or prejudice is 'extreme' or 'irreparable' involves an exercise of judgment, there will be cases of alleged hardship or prejudice which are so clearly lacking in degree as to fall well short of the criteria.  This was so in the present instance."

As the primary Judge pointed out in his judgment in the present case, it is plain that the alleged prejudice in Roser was not irreparable or even more than short term.  The applicant had described the need of his friend as existing "for the time being" and as lasting "until he is confident to drive himself".  The only question would be whether, there being no "irreparable prejudice", there might nevertheless be "extreme hardship" to an Australian citizen or Australian permanent resident.

Construction of Reg. 131A (1) (d) (v)
     In our view, (i) the concept of a compassionate ground, linked to the causing of "extreme hardship", is distinct from that linked to "irreparable prejudice", and (ii) the phrase "very high degree" is not apt to describe, indiscriminately, the content of the adjective "extreme" which qualifies "hardship", and "irreparable" which qualifies "prejudice".

We agree with the way in which the matter was put by Heerey J in Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148:

"I think 'irreparable' is used in reg. 131A in the ordinary meaning of 'not reparable, incapable of being rectified, remedied or made good' (Macquarie Dictionary).  Words in statutes are presumed to have some function to fill: Commonwealth v Baume (1905) 2 CLR 405 at 414. The Tribunal failed to consider, as a separate issue requiring its attention, whether there was prejudice which was irreparable. Thus the Tribunal said (at p. 15):

'One of the questions for the Tribunal in this matter is to decide whether in the circumstances of this case the "hardship" or "prejudice" that would be caused to Nadeem is of sufficient degree or extent to come within the qualifying words "extreme" or "irreparable".

This seems to involve a 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.'"

Of course, each expression "extreme hardship" and "irreparable prejudice" is to be considered in the light of the requirement that what is caused by the refusal of the permit should constitute a "compassionate ground".  This point was brought out in a passage referred to by the primary Judge, in the judgment of Jenkinson J in Prasad v Minister for Immigration Local Government and Ethnic Affairs (1993) 30 ALD 856 at 858.

"[T]he construction of the former expression [irreparable prejudice] is in my opinion to be considered in the light of the requirement that what is to be caused by the refusal of the permit should constitute a 'compassionate ground'.  Once its idiomatic, not to say hackneyed, transferred epithet has been unravelled, the clause with which sub-para. 131A (1) (d) (v) begins can be seen to amount to a requirement that the postulated hardship or prejudice be of such a degree as to excite compassion, in the sense of that word which is given second in The Oxford English Dictionary (2nd edition):

'the feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour.'

Accordingly I think that the expression 'irreparable prejudice' in section 131A (1) (d) (v) is to be construed as denoting a disadvantage to a person which is incapable of being rectified, remedied or made good and which excites compassion in the sense I have indicated."

As we have indicated, at the outset of its consideration of category (v), the Tribunal referred to Roser in elaboration of the proposition that "the test" for what might constitute "extreme hardship" or "irreparable prejudice" is "quite severe".  The Tribunal went on to repeat the statement from Roser that there must be "a very high degree of hardship or prejudice".  The second last paragraph of the reasons of the Tribunal contains the phrase "given the severity of the legislative criteria discussed above".  In the intervening discussion, the Tribunal did refer to Prasad.  But it did so only as support for a proposition that whilst the applicant would suffer "some hardship or prejudice" this would be insufficient because the hardship or prejudice must be "of such a degree as to excite compassion".

In our view, the reliance upon what was said in Roser bore significantly upon the whole of the reasoning process of the Tribunal.  This led to three errors.  The first was to treat category (v) as requiring satisfaction to "a very high degree".  The second was to conflate the concepts of "extreme hardship" and "irreparable prejudice".  The third, which follows from the second, was a failure to appreciate the true scope of what was involved in deciding, within the meaning of the regulation, whether on 15 October 1990 and continuously until the decision on the application for the entry permit, there was a compassionate ground for granting the permit on the footing that refusal to do so would cause irreparable prejudice to an Australian citizen or permanent resident. 

In his reasons for judgment, the primary Judge dealt with the second and third of these matters.  His Honour said that it was probable that the Tribunal had misunderstood the sub-paragraph it should have been applying, and he continued:

"I conclude that the absence of reference to the nature, as a separate and specific alternative, of 'irreparable prejudice' indicates, in this case, a failure to understand the real effect of the availability of that alternative, or its true scope."

To that we would add that whilst the outcome on the particular facts of the case was plainly correct, Roser should not be taken as laying down any principle of interpretation of category (v).  The phrase "a very high degree of hardship or prejudice" is a distraction from the legislative text, as well as involving a conflation of distinct concepts.

There is one further matter of construction to which we should refer.  It involves a reading of the legislation from a starting point which unduly favours the applicant for the permit.

In the course of his reasons, the primary Judge said:

"There is no warrant for an unduly technical reading that would restrict the application of the sub-paragraph [131A (1) (d) (v)] so as to deny it the full scope which the fair meaning of its language allows.  On the contrary, it is a beneficial provision, designed to remedy the plight of those non-citizens in respect of whom reg. 131A was framed.  In Fuduche [v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515] at 527 I described the provision in respect of a 'special need relative' as a 'beneficial provision' and referred to:

'the benevolent intent of the regulation which, on ordinary principles ... 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.'

This view was accepted by Davies J in Chen v Minister for Immigration and Ethnic Affairs (1994) 123 ALR 126 at 130-131 and by Foster J in Moskal v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 4 October 1994) at 13 and 16."

As Burchett J indicated, these authorities were concerned with the definition of "special need relative" in reg. 127.  This prescribes criteria in relation to an extended eligibility (family) entry permit.

The construction of the regulations is to be approached by looking first to the statutory power in exercise of which they were made. As we have indicated, that is found in s. 33 of the Act. This provides that the regulations may make provision that a person is entitled to be granted an entry permit of a particular class if the person satisfies all the prescribed criteria in relation to that class (para. 33 (2) (b)). The power is expressed as being "subject to sections 40 and 45". Section 40 empowers the Minister to determine that the processing of entry permit applications of a specified class which have been made by persons who have entered and remained in Australia is to stop until a day specified in the notice given by him. Section 45 provides that an entry permit shall not be granted to certain deportees where an amount is still payable by them to the Commonwealth under s. 65 or s. 66. Section 65 deals with the costs of deportation, and s. 66 with the costs of keeping deportees in custody.

Further, s. 34 imposes upon the Minister an obligation, where the relevant jurisdictional pre-condition is established, either to grant or refuse an entry permit. Judicial review of decisions of the Tribunal is confined by s. 138 to an "appeal" which is "on a question of law".
     The result, if the statute and the regulations are taken as a whole, is to disclose a compromise which represents a balance between various competing interests which are involved.  The particular pattern which is set in this way is not to be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language which has been used.  There is no reason to give a "broad and generous construction" to reg. 131A.  To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved.  These include the view taken by other branches of government and reflected in the legislative text, being the statute and the regulations, of the social and material interests of the country as a whole in relation to the entry and settlement of aliens, and of the conditions which should be attached to permission to enter and stay in Australia: Robtelmes v Brenan (1906) 4 CLR 395 at 400, Pochi v McPhee (1982) 151 CLR 101 at 106.

Insofar as the primary Judge criticised the Tribunal for not construing the legislation in the manner discussed in Fuduche, supra at 527, with respect, we would not agree.  Nevertheless, in other respects, the decision of the Tribunal was flawed by error of law, and in that respect the orders made by the primary Judge are to be upheld.

Remaining Issues
     Counsel for the appellant also criticised two further bases on which the primary Judge placed his decision.  To these we now turn.

The primary Judge said that if he was wrong in concluding that the Tribunal had failed to understand the real scope of the phrase "irreparable prejudice" the decision, on the facts accepted by the Tribunal, was "so unreasonable as to offend the principle stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-233". His Honour then referred to four decisions, each of which was decided under the ADJR Act not, as must this case, under the common law notion of error of law as reflected in s. 138 of the Act. The four decisions were Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Fuduche v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 515, Mensa v Minister for Immigration Local Government and Ethnic Affairs (1993) 31 ALD 301, and C.A. Ford Pty Ltd t/as Caford Castors v Comptroller-General of Customs (1993) 46 FCR 443.

In Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407-8, Toohey J said:

"In the course of argument some mention was made of 'the Wednesbury principle' a reference to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In Nottingham County Council v The Secretary of
State for Environment [1986] AC 240 at 249, Lord Scarman observed:

'"Wednesbury principles" is a convenient legal "shorthand" used by lawyers to refer to the classical review by Lord Greene MR in the Wednesbury case of the circumstances in which the courts will intervene to quash as being illegal the exercise of an administrative discretion.'

In Wednesbury [1948] 1 KB at 230, 234, Lord Greene spoke of a decision being so unreasonable that no reasonable body could have come to it. That is very much the language of the AD(JR) Act (see Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 41) and that language is the yardstick when review is sought on that ground under the Act."

[Emphasis supplied]

See also Cocks v Thanet District Council [1983] 2 AC 286 at 292.

In Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 at 530, Lord Reid drew the basic distinction between excess of power (e.g. by misconceiving the area of jurisdiction) and abuse of power within that area. His Lordship said that "unreasonable" was "not at all an apt description of action in excess of power" and that even as a description of abuse of power it was not very satisfactory and required expansion. See also Beatson "The Scope of Judicial Review for Error of Law" (1984) 4 Ox. J.L.S. 22 at 26-7.

We have referred earlier in these reasons to the nature of the factual issue before the Tribunal. It is important to keep this in mind. The issue was presented primarily by sub-s. 34 (3) of the Act, rather than by reg. 131A. The Tribunal was empowered by sub-s. 118 (2) to exercise the powers of the Minister. The question was whether it reasonably appeared to the Minister that the applicant was entitled to be granted an entry permit of the class in question; if so, the Minister was obliged to grant it. The Minister in answering the question posed by sub-s. 34 (3) was then required to consider the criteria specified in category (v) and to apply the facts to those criteria. The Minister's task was not to exercise a discretion. However, given the nature of the subject matter, he was obliged to weigh up a range of matters. In such a case, as Gibbs J pointed out in Buck v Bavone supra, it may be very difficult to show that the decision reached after finding the facts and applying the legislative criteria is one which could not reasonably have been reached, so that there has been, for this reason, an error of law. 

However, once the conclusion is reached that the Tribunal erred in law as to its construction of the legislative criteria, this must impugn the end result which was reached under sub-s. 34 (3), in conjunction with sub-s. 118 (2).  The fact finding exercise will be strongly influenced by the incorrect view taken of the construction of the legislation in question.  Such a case must be clearly distinguished from a case where matters of construction were approached correctly but it is then said that the fact finding miscarried in such a way as to involve an error of law.

It follows that once it appears that the decision of the Tribunal was infected by an error of law by reason of the misconstruction of the legislation, that was the end of the matter.  There was no occasion then to extricate the fact finding process and impugn this as unreasonable or perverse in the relevant sense.

Finally, the primary Judge held that the Tribunal erred in law "by omitting ... relevant considerations".  His Honour held that the Tribunal was bound to take into account certain matters.  These were:

"[T]he effect upon the applicant of her children's loss, in their parents' new country, of so involved an uncle, and of her exposure, not merely to the unlikely need which the death of her husband might produce, but to the more probable need which accident, illness, unemployment, business failure or marriage breakdown would produce.  Those considerations I think the Tribunal was bound to take into account."

It is, of course, important to note that the oft quoted passage in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd 162 CLR 24 at 41, as to the taking into account of irrelevant considerations and failure to take into account relevant considerations, is introduced by the following passage:

"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.  It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.  Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB at 228."

This passage was cited by Toohey J in the extract from Chan we set out earlier in these reasons.

As we have endeavoured to demonstrate, the present case did not involve the formation of an opinion preparatory to the exercise of a discretion. Once the jurisdictional facts were made out, the Minister, and thus the Tribunal, were bound to act in a particular fashion. The finding of the relevant jurisdictional fact involved the taking of the steps which we have described. These were the application of the criteria in reg. 131A (1), which in turn involved fact finding. To omit the matters referred to by the primary Judge from that process might produce a result flawed for error of law, because a decision could not reasonably have been reached to that effect, or because the Minister could have failed to fulfil a prerequisite to the exercise of power under s. 34. But the decision would not be impugned on the basis that a discretion had miscarried by failure to take into account relevant considerations.

In the present case, the decision of the Tribunal was flawed for error of law in the particular manner we have identified.   That has the consequence of foreshortening any further inquiry as to the existence of an error of law in any aspect of the fact finding process.

Conclusions
     The result is that whilst not all of the reasoning adopted by the primary Judge should be accepted, nevertheless the decision of the Tribunal was properly set aside.  It follows that the appeal from the primary Judge should be dismissed.  The appellant should pay the costs of the respondent.

I certify that this and the preceding twenty nine (29) pages are a true copy of the reasons for judgment of the Court.

Associate:

Date:                  13 April 1995.

Counsel and solicitors           Mr J. Spigelman QC and
for the appellant:               Miss R. Henderson
  instructed by the
  Australian Government
  Solicitor.

Counsel and solicitors           Mr G.T. Miller QC and
for the respondent:              Mr R.S. Bell instructed
  by Lyndon Sayer Jones &
  Associates.

Date of hearing:                 17 February 1995.

Date of judgment:                13 April 1995.