Minister for Immigration and Ethnic Affairs v Teo

This case concerns an appeal by the Minister for Immigration and Ethnic Affairs against a decision of Burchett J, who had set aside a decision of the Immigration Review Tribunal (the Tribunal) and ordered the matter to be remitted to the Tribunal, differently constituted. The respondent, Daphne Teo, had applied for her brother, the applicant, to be granted a December 1989 (Temporary) Entry Permit. The Tribunal had found that there was no "irreparable prejudice" to an Australian citizen or permanent resident if the permit was refused, and thus dismissed the application. The primary Judge held that the Tribunal had misunderstood the sub-paragraph it should have been applying, and it was probable that the Tribunal had failed to understand the real effect of the availability of that alternative, or its true scope. The primary Judge also held that the Tribunal erred in law by omitting relevant considerations. The Minister appealed to the Full Court, arguing that the primary Judge had erred in law. The Full Court found that the primary Judge's decision should be upheld, as the Tribunal had erred in law in its construction of the relevant regulation. The Full Court held that the Tribunal had conflated the concepts of "extreme hardship" and "irreparable prejudice", and had failed to appreciate the true scope of what was involved in deciding whether 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. The Full Court also held that the Tribunal had failed to take into account relevant considerations, such as the effect upon the applicant of her children's loss, in their parents' new country, of so involved an uncle, and of her exposure to the more probable need which accident, illness, unemployment, business failure or marriage breakdown would produce. The appeal was dismissed, and the appellant was ordered to pay the costs of the respondent.