Naidu, Damodara v Minister for Immigration and Multicultural Affairs

[1997] FCA 1225

FEDERAL COURT OF AUSTRALIA

Migration - no error of law disclosed.

Migration (1993) Regulations - cl 812.723(6)

DAMODARA NAIDU V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 4 OF 1997

JUDGE:        BEAUMONT J
PLACE:        MELBOURNE
DATE:          23 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 4  of   1997

BETWEEN:

DAMODARA NAIDU
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

IMMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

23 OCTOBER 1997

WHERE MADE:

MELBOURNE

ORDERS:

1. Application dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 4 of 1997

BETWEEN:

DAMODARA NAIDU
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

IMMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BEAUMONT J
DATE:	23 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BEAUMONT J:

This is an application for judicial review of a decision of the Immigration Review Tribunal (“the Tribunal”), given on 2 December 1996, confirming a decision of the Minister's delegate to refuse to grant the applicant a Class 812 (December 1989 (permanent)) entry permit. 

The applicant is a 53 year old Fijian Indian who arrived in Australia in October 1985 under a one month visitor visa.  In December 1986, the applicant lodged an application for permanent residence on the basis of his marriage to an Australian citizen three months earlier.  That application was finally rejected some years later.  As at 19 December 1989 his status was that of an “illegal entrant” (now described as an “unlawful citizen”).  On 17 December 1993, the applicant applied for a Class 812 (December 1989 (permanent)) entry permit.  Before the Tribunal, it was common ground that in order to qualify for the grant of such a permit, the applicant had to satisfy, inter alia, the criteria specified in cl 812.723(6) of the Migration (1993) Regulations as follows:

“(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.”

Before the Tribunal, the applicant led evidence which he claimed showed that the refusal to grant the permit would have caused “extreme hardship or irreparable prejudice” to three persons, all of whom were either Australian citizens or Australian permanent residents on 15 October 1990, and that this compassionate ground continued to exist.  The persons were:  (1) his brother, Maslamani Naidu, who had come to Australia as a spouse in 1987;  (2) his son, Patrick Naidu, now aged 20, born in New Zealand and thus a New Zealand citizen with an entitlement accordingly to reside permanently in this country;  and (3) Mark Gatt, an Australian citizen, who is a friend of the applicant and his family.

Having given careful and detailed consideration to the material relied upon by the applicant in support of his claim that he satisfied the requirements of subclause (6), the Tribunal went on to express its conclusion thus:

“The difficulty in this case is that it has been five years since the date specified in the regulation, namely 15 October 1990.  Whilst the Tribunal is sympathetic to the plight of Mark Gatt were the Naidus to leave, and is of the view that extreme hardship would ensue, the facts were not as they are now as at 15 October 1990.  A similar comment in relation to irreparable prejudice applies to Maslamani Naidu now but did not apply to him on 15 October 1990.  In relation to Patrick Naidu, he is now relatively independent but was not so on 15 October 1990.  Given that the compassionate circumstances had to exist on 15 October 1990 and have to continue to the date of the Tribunal’s decision, the Tribunal is unable to make a favourable decision in this matter.

In all the circumstances, the Tribunal is unable to find that the applicant satisfies the criterion prescribed in subclause 812.723(6).”

It is common ground that judicial review is available only if an error of law on the part of the Tribunal can be demonstrated.  In my opinion, no such error is indicated here.  Although it was suggested on behalf of the applicant that the Tribunal must have misunderstood the true nature of the prejudice and hardship contemplated by the Regulations, I am simply unable to discern any error of law in the full and clear explanation given by the Tribunal of its process of reasoning.  In my view, the matters raised by the applicant before this Court involved what were purely questions of fact.  It must follow that the application should be dismissed. 

Accordingly, I order that the application be dismissed with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            23 October 1997

Counsel for the Applicant:	K Bell
Solicitor for the Applicant:	Wisewoulds
Counsel for the First and Second Respondents:	R Downing
Solicitor for the First and Second Respondents:	Australian Government Solicitor
Date of Hearing:	23 October 1997
Date of Judgment:	23 October 1997