Parnis v The Queen

[1993] FCA 624

62 Y " 93

'CpG,AENT . . o G ~ ~ ~ o ~ ~ d O O ~ G O Q I O * ~ ~

IN THE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH WALES DISTRICT REGISTRY	)	No. NG 361 of 1993
GENERAL DIVISION

BETWEEN:  TEVITA TONGA
First applicant
LOSEMANI NGALU
Second applicant

AND:	IMMIGRATION REVIEW TRIBUNAL
First respondent
MINISTER FOR IMMIGRATION. LOCAL COURT & ETHNIC AFFAIRS
Second respondent-\  l L%;

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CORAM:  Beaumont J. - / fi '- L \A C.. , "F.

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DATE :  30 August 1993 ! - , , \ !L . !l k:,

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REASONS FOR JUDGMENT ,A

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This an application for extension of t ~ m e to bring

proceedings under the Administrative Decisions (Judicial Review) Act 1977. The application is opposed. Although nothing turns on this matter in the events which have arisen, it may be that the proceedings, if they were to be brought at all, should have been brought pursuant to the provisions of s.138 of the Miuration Act 1958. Section 138 confers an appeal to the Federal Court on a question of law from any decision of the Immigration Review Tribunal ("the Tribunal") made on a review under the relevant part of the Act. However,	purposes, since by s.138(3) an appeal is to be instituted	nothing appears to turn on this consideration for present
within 28 days after the appellant is notified under section
135 of the decision concerned.
The decision in question was delivered on 11 November 1992. The present application for an extension of time was not lodged until 25 June 1993. It: is common ground that the approach to be taken on the application for extension of time is that discussed in Hunter Vallev Developments Ptv Limited v The Minister for Home Affairs and Environment (1985)
58 ALR 305. That declsion and other authorities in this area
were conveniently collected in a recent decision of French J in Keith Ravmond Moodie v Department of Defence, (unreported,
17 August 1993). At page 14 of that judgment French J sets
out a summary of the general principles which guide the exercise of the Court's discretion in a case such as the present.
In support of the application for extension of time the applicants have adduced evidence which they say indicates the existence of reasons why they did not proceed with the
present matter at an earlier date. It should be noted that there was a lapse of time in the order of seven months between the delivery of the Tribunal's decision and the institution of this application for extension of time.
Two principal considerations were touched on in the evidence. First, there was a suggestion that the applicants were restricted in the institutional proceedings by their lack of resources to fund the challenge. Secondly, it was pointed out that for considerable sections of the time that elapsed before the proceedings were instituted, the second applicant was held in detention and this naturally inhibited her abllity to prepare for the proceedings. There was unchallenged evidence that she and her sister were taken into the Villawood Detention Centre on 9 December 1992 and not released until 9 March 1993.
The applicants led a considerable body of evidence in support of their claim that they had adequately explained the delay in bringing the proceedings. There was no attempt on behalf of the Minister to cross-examine any of the witnesses who gave this evidence. If there had been a real challenge to some of this material, and none was forthcoming in cross-examination, I might have felt some reservations about acting on it at least so far as it may be said as to
between 9 March 1993 being the date of release from custody have not adequately explained the apparent lack of activity and the filing of these proceedings on 25 June 1993. However, in the absence of any cross-examination I do not feel I should draw any unfavourable inference so far as the applicants are concerned in this respect. I propose to accept thelr evidence as a reasonable explanation of why the proceedings were not commenced at an earlier date.

The next matter that arises on the application for extension of time is whether there is some merit in the substantial application. I will deal with this in more detail when I come to the principal proceedings. The point that is relied on is said to be a point of law, that is that the Tribunal did not address the correct legal question. I think there is some force in this claim and given the absence of any claim of prejudice in any specific sense on behalf of the Minister, if the extension of time were to be granted, I propose to grant the application for extension of time.

I order that the time for filing the application for an order of review be extended up to and including today.

I give leave to the applicants to file the amended application for order of review which I have initialled dated today and placed with the papers and I dispense with service.

When the matter came before me at an earlier directions hearing I indicated that I would hear the application for extension of time on the footing that if it were to succeed I would immediately proceed to the final hearing of the application for judicial review itself. This course has been followed today.

I come now to the principal proceedings. As I have said, this is an application for judicial review made upon the ground that the Tribunal, it is alleged, made an error of law, by addressing the wrong legal question. The Tribunal's reasons first identified the decision under review as being a decision made on 19 May 1992 to refuse a December 1989 temporary entry permit to the second applicant. In the Tribunal's reasons the second applicant is referred to as the principal. The principal was nominated by her father who is the first applicant in the present proceedings. He is a permanent resident of Australia who first arrived in Australia in 1977.

The Tribunal's reasons then describe the background to the application but it appears from that material that the second applicant was 31 years of age when she lodged the application under review on 10 March 1992. She is a Tongan citizen who has never married. The first applicant, at the time of the original application, was 58 years old and was the father of the second applicant. According to the statement of

background matters, the first applicant lives in a house in	Fairfield with the second applicant. The reasons of the
Tribunal then set out the legislative frame work, stating that the particular matter to be addressed was the so-called compassionate ground in regulation 131A. The Tribunal referred to subparagraph 131A(l)(d)(v) which required that:

"On 15 October 1990 and continuously until the date of decision the refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or permanent resident."

The Tribunal then went on to say:

"The t erms 'extreme hardship ' and ' i r r e p a r a b l e

pre jud ice ' a r e n o t d e f i n e d i n t h e l e g i s l a t i o n .

However, t h e Minister, a c t i n g under s e c t i o n 179 o f

the A c t , h a s i s s u e d a ' P o l i c y Direc t ion ' dated 18

August 1991 ( w i t h an addendum da t ed 9 October 1992)

which o u t l i n e s v a r i o u s f a c t o r s decis ion-makers

should	have regard	t o i n c o n s i d e r i n g	t h e s e	terms	and
t h e i r a p p l i c a t i o n	to	i n d i v i d u a l	c a s e s .	In	r e v i e w i n g

t h i s m a t t e r t h e Tr ibuna l h a s a p p l i e d t h e P o l i c y

D i r e c t i o n wherever r e l e v a n t e x c e p t f o r paragraph 2

o f	the August	1991 D i r e c t i o n	which h a s been	h e l d	t o
be	i n c o n s i s t e n t	w i t h	r e g u l a t i o n	1 3 1 A ( l ) ( d ) ( v ) :	see

t h e d e c i s i o n o f t h e Federal Court i n Pa lav i v The

M i n i s t e r f o r Immi o r a t i o n , Local Government and

E thn i c A f f a i r s ( unrepor t ed , 18 August 1992) . "

The Tribunal then proceeded to deal with the evidence and give reasons for its decision. It is not appropriate that I endeavour to summarise all of that material but a full understanding of the process of reasoning and the evidence relied on by the Tribunal in that connection requires a taking into account of everything that was said by the Tribunal.

With that reservation, however, reference should be made to the statement made at page 5 of its reasons and in particular by reference to some observations made by von Doussa J in a case of Roser v Immiaration Review Tribunal and Minister for Immiaration. Local Government and Ethnic Affairs (unreported, 3 September 1991). However, in order to put those remarks in context it is necessary to refer to some earlier remarks made by the Tribunal in this part of its reasons. The Tribunal said:

"The c la ims t h a t the App l i can t would s u f f e r ex t reme

h a r d s h i p o r i r r e p a r a b l e p r e j u d i c e i f the P r i n c i p a l

was forced t o l e a v e A u s t r a l i a centre on the

submiss ion	t h a t	t h e r e	a r e	very	s t r o n g	emot ional
bonds	between	t h e A p p l i c a n t	and	the	P r i n c i p a l .	The

App l i can t c la imed t h a t h e was dependent on h is

daughter f o r emotional suppor t because he was now

s i n g l e , g e t t i n g o l d and h i s h e a l t h was very poor.

H e a l s o c la imed t h a t h e f e l t r e s p o n s i b l e f o r h is

daughter because she remained s i n g l e and i f she were

t o r e t u r n t o Tonga he would be very anx ious about

her w e l f a r e and th is would c o n t r i b u t e t o t h e ex t r eme

h a r d s h i p o r p r e j u d i c e h e would s u f f e r should s h e

have	[ t o ] l e a v e	A u s t r a l i a .	I t	was	f u r t h e r	c la imed
t h a t	t h e	App l i can t	would	s u f f e r	f i n a n c i a l l y	i f h i s

daughter were t o l e a v e h im because h e r e c e n t l y had

t o i n c u r some l o a n s f o r a t r i p t o Tonga t o a t t e n d

h i s f a t h e r ' s f unera l and t o b u y t h e Pr inc ipa l a c a r

t o enab le h e r t o t r a v e l t o work.

Given these submi s s ions , t h e q u e s t i o n now b e f o r e t h e

Tr ibunal	i n l i g h t	o f	r e g u l a t i o n	131A	i s whether	a t
15	October	1990	and	c o n t i n u o u s l y	t h e r e a f t e r	the
App l i can t	would	have	s u f f e r e d	ex t reme	h a r d s h i p	or

i r r e p a r a b l e p r e j u d i c e i f t h e P r i n c i p a l were forced

t o l e a v e A u s t r a l i a . "

After referring to some other matters which are not presently material, the Tribunal went on to say:

"As h a s been po in t ed o u t i n a number o f Tr ibuna l

d e c i s i o n s (see, f o r example, R e Jackson IRT Dec i s i on

No.	Q90/00124,	d e l i v e r e d 1 7 December	1990,	and Le
Kwana	Soo Kim	IRT	Dec i s i on N o .	N91/00644,	d e l i v e r e d

4 September 1991) the test f o r what m igh t c o n s t i t u t e

' e x t r eme hardship ' o r ' i r r e p a r a b l e pre jud ice ' a s

r equ i r ed by t h e r e l e v a n t l e g i s l a t i o n i s q u i t e

severe. J u s t i c e Von Doussa h a s s t a t e d i n Roser v

Immiaration	Review	Tribunal	and	Minister	f o r
Immiaration.	Local	Government	and	E t h n i c	A f f a i r s

(unrepor ted , Federal Cour t , 3 September 1991) t h a t

'mere h a r d s h i p or p r e j u d i c e ... i s n o t enough.

There must	be	a	very h i g h	degree	o f h a r d s h i p	or
pre jud ice '	.	The	h a r d s h i p	o r	p r e j u d i c e ,	moreover ,

must be exper ienced by t h e A u s t r a l i a n p a r t y - not

the Pr inc ipa l - and t h e r e mus t be a causa l

r e l a t i o n s h i p between such h a r d s h i p o r p r e j u d i c e and

t h e depar tu re from A u s t r a l i a o f the non-Aus t ra l ian

p a r t y (see Re Kwana Soo Kim a s above ) .

I n a s s e s s i n g t h i s q u e s t i o n a g a i n s t a l l t h e e v i d e n c e ,

the Tr ibuna l f i n d s t h a t t h e l e g i s l a t i v e d e f i n i t i o n

cannot be met i n t h i s c a s e f o r the f o l l o w i n g

r e a s o n s . "

It is this passage that I have last cited that is now challenged by the applicants. In this connection reliance is placed in particular upon the observations made by Heerey J in v Minister for Immiaration (1992) 38 FCR 144. There his Honour said (at p.148):

" T h i s seems t o i n v o l v e a lumping t o g e t h e r o f t h e two

c o n c e p t s o f h a r d s h i p and p r e j u d i c e . Not o n l y a r e

p r e j u d i c e and h a r d s h i p two d i s t i n c t c r i t e r i a b u t

i n q u i r y a s	t o the	degree	o r e x t e n t	o f p r e j u d i c e	by
n o means	n e c e s s a r i l y poses	t h e	q u e s t i o n	whether	t h a t
p r e j u d i c e	can	be	remedied	o r r e c t i f i e d .	There may

be grea t p r e j u d i c e whlch i s r e p a r a b l e and smal l

p r e j u d i c e which i s n o t .

I accept entirely what Heerey J says. I further accept as also being a correct statement of principle, the observations made by von Doussa J in Roser's case. The Tribunal quoted part of a passage in the reasons of his Honour

in that case. The full passage was as follows:

"As a m a t t e r o f law, on t h e i n f o r m a t i o n provided by

t h e a p p l i c a n t and M r S ingh , no r e a l p o s s i b i l i t y

cou ld	'appear'	t h a t Mr	Singh	would	s u f f e r	' e x t r e m e
h a r d s h i p	o r	i r r e p a r a b l e	p r e j u d i c e ' .	As	the	Tr ibuna l

no t ed by r e f e r e n c e t o an e a r l i e r d e c l s i o n o f the

Tr ibuna l i n Re Jackson ( d e c i s i o n 090/00124, da t ed 17

December 1990) mere h a r d s h i p o r p r e j u d i c e t o a n o t h e r

A u s t r a l i a n c i t i z e n o r A u s t r a l i a n permanent r e s i d e n t

i s n o t enough. There must be a very h i g h degree o f

h a r d s h i p o r p r e j u d i c e . W h i l s t t h e d e c i s i o n i n a

p a r t i c u l a r	c a s e	a s	t o whether	h a r d s h i p	or	p r e j u d i c e
i s	'ex treme'	o r	' i r r e p a r a b l e '	i n v o l v e s	an	exercise

o f judgment, there w i l l be c a s e s o f a l l e g e d h a r d s h i p

or p r e j u d i c e which a r e so c l e a r l y l a c k i n g i n degree

a s t o f a l l we l l short o f the c r i t e r i a . T h i s was s o

i n t h e p re sen t i n s t a n c e . "

On behalf of the applicants reliance is also placed upon the reasoning of Keely J In Soileti Palavi v Minister for Immiaration, Local Government and Ethnic Affairs (unreported 18 August 1992) to which reference has already been made, however, it does not seem to me that anything said by Keely J in that case takes the matter further than the observations of Heerey J in Ali's case to wh~ch I have already cited, nor do I see any inconsistency between the reasoning or decision in Palavi and anything said by von Doussa J in Roser's case.

In its essentials,the point for consideration in Palavi's case was whether it was wrong for the Minister to have regard to certain policy guidelines; that is not a matter which arises in any form in the present case. In my opinion it has not been demonstrated in the present case that the Tribunal has addressed the wrong question of law. As I have said, it is common ground that the specific matter of legislative context which the Tribunal was bound to address was whether the

hardship or irreparable prejudice. In my view the Tribunal	refusal to grant the entry permit would cause either extreme	sought to address those questions.
It is true that the Tribunal cited the observations of von Doussa J to the effect that mere prejudice was not enough, there must be a very high degree of prejudice. However, it is clear from a reading of the reasons of the Tribunal as a whole - and I have already referred to the relevant parts of those reasons for this purpose - that the Tribunal was addressing the questlon of whether the prejudice could be in truth said to be irreparable.
I do not see this as a case of the Tribunal falling into error by the impermissible use of a paraphrase. Rather, as I would read the Tribunal's process of reasoning, the Tribunal was emphasising the difficulty of meeting the particular threshold laid down by the legislation. It follows in my opinion that the applicants have not demonstrated the existence of any error of law which would justify the intervention of the Court by way of an order for judicial review. In those circumstances the application must be dismissed with costs and I so order.

I certify that this and the preceding nlne (9) pages are of the Reasons

for Judqment his Honour Mr.

Associate