Prasad, v The Minister for Immigration, Local Government & Ethnic Affairs
[1993] FCA 147
•22 MARCH 1993
Re: VINOD PRASAD
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G484 of 1992
FED No. 147
Number of pages - 14
Citizenship
(1993) 30 ALD 856 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)
CATCHWORDS
Citizenship, Immigration and Emigration - Immigration - Entry permits and change of status - Ground of "irreparable prejudice" to Australian citizen by refusal of permit - Meaning of "irreparable prejudice" considered.
Migration Regulations - reg. 131A(1)(d)(v)
HEARING
MELBOURNE, 3 February 1993
#DATE 22:3:1993
Counsel for the Applicant: Mr K.H. Bell
Counsel for the Respondent: Mr T.J. Ginnane
Solicitors for the Applicant: Juliano Ford and Co.
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
JENKINSON J. Hearing of an application for an order of review in respect of a decision of the respondent's delegate that the applicant be not granted an entry permit of the class described as a December 1989 (temporary) entry permit.
The criteria prescribed in relation to such a permit are stated in Regulation 131A of the Migration Regulations, the parts of which are relevant to this case are in these terms:
"(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:
(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."
It is the criterion specified in sub-paragraph 131A(1)(d)(v) on which this case turns. The applicant is not an Australian citizen. He was born in 1947 in Fiji, where he married in 1973. A son, Vikash, was born in 1974. In December 1987 he entered Australia. In January 1988 his wife, Rina, who was born in Fiji in 1955, and their son joined him here. All three have remained here since then. In April 1988 all three became prohibited non-citizens when their entry permits expired. Mandy Davis ("Mandy") was born in Australia in 1969. She is the person claimed by the applicant to be liable to "extreme hardship or irreparable prejudice" in the event that he is refused the entry permit he seeks. In November 1989 she married Arun Prasad ("Arun") in Fiji, where he was born in 1964. Arun and the applicant are not related, but were acquainted in Fiji. In March 1990 Mandy and Arun met the applicant and his wife in Melbourne, where both families have lived. Arun has been granted a permit permanently to reside in Australia. The applicant has applied, in accordance with the Migration Regulations, for a December 1989 (temporary) entry permit, and for a December 1989 (permanent) entry permit. The latter permit can be granted only to an applicant who is the holder of a December 1989 (temporary) entry permit (see reg. 142C).
The foregoing narrative shows that the criteria specified in paragraphs (a), (b) and (c) of Reg. 131A(1) are satisfied. Concerning the criterion specified in sub-paragraph (d)(v) of Reg. 131A(1) Mr. Bell of counsel for the applicant raised questions as to the construction of the provision and as to the evidentiary material relevant to the delegate's determination whether the criterion had been satisfied. It will be observed that what sub-paragraph (d)(v) requires is that the set of circumstances specified in (v) should exist at each moment on and after 15 October 1990 until the determination is made. A daughter of Mandy and Arun, called Karishma, was born on 20 January 1992. There was evidence before the delegate upon which he might not unreasonably have concluded that the circumstances and attitudes of Mandy and the relationships between the four adults were such that the hardship which refusal of the permit would cause Mandy would be greater by reason of the birth of the child than it would have been if she had not borne a child. When the delegate made his determination in January 1993 he was plainly obliged to take into consideration whatever degree of hardship and prejudice to Mandy as the mother of Karishma he thought refusal of the entry permit would cause when he was determining whether on and after 20 January 1992 that refusal would cause her extreme hardship or irreparable prejudice. Mr. Bell submitted that the same obligation fell on the delegate when he was determining whether on 15 October 1990 and at each moment thereafter until 20 January 1992 such a refusal would cause her extreme hardship or irreparable prejudice. Mr. Bell submitted that the determining body is, like a court, obliged to take account of circumstances, unknown at the time as at which a state of affairs is to be determined, but revealed before the time when the determination is made.
It is perhaps desirable to say first that I do not consider that sub-paragraph (d)(v) on its proper construction requires that the hardship or prejudice be caused immediately upon refusal of the permit or immediately upon departure of the applicant for the permit from Australia in consequence of that refusal. Nor was the contrary advanced in submission.
In my opinion what sub-paragraph (d)(v) requires is that on 15 October 1990, and at each moment thereafter until determination of the application, circumstances exist from which the prophetic conclusion is to be drawn that refusal of the permit, if it occurs, will cause the specified hardship or the specified prejudice. The fact that Mandy bore a child on 20 January 1992 does not of itself afford any evidence that one of the circumstances which existed on 15 October 1990 was that she would in 1992 or at any other time after 15 October 1990 bear a child. If that fact were coupled with evidence that on 15 October 1990 Mandy had the intention of conceiving and bearing a child, that might have justified a conclusion by the delegate, formed on the balance of probabilities, that one of the circumstances which existed on 15 October 1990 was that within a few years after 15 October 1990 Mandy would bear a child. It was not suggested that there was any evidence of Mandy's intention about child bearing on 15 October 1990. The delegate observed in the statement of his reasons for his decision, that "at 15 October 1990 Mandy Prasad was neither pregnant, nor had she given birth." It was a ground of the application that that was an irrelevant consideration which the delegate had taken into account. For the reasons I have stated I think that ground cannot be upheld.
Mr. Bell also submitted that evidence of the help given by Rina and Vinod Prasad to Mandy and her husband shortly before and after the birth of Karishma was not recognised by the delegate as capable of contributing to his conclusion about the nature and value of the relationship between the two couples on 15 October 1990. I do not think that the stated reasons for the decision do reveal a failure to make that recognition. The delegate indicates, by what is stated in the last sentence of paragraph 13 of his reasons, the last sentence of paragraph 15 and the whole of paragraph 16, a recognition that he is required to determine, inter alia, whether the circumstances existing on 15 October 1990 were such that he should prophesy that refusal of a permit then would cause the specified hardship or prejudice. I find nothing in the reasons to show that in making that determination of those circumstances he denied himself any assistance which evidence of events occurring after 15 October 1990 might afford him. If in the reasons there is nothing to demonstrate that he did not deny himself such assistance, that does not demonstrate error on his part.
It was submitted that the reasons for the decision demonstrate a failure by the delegate to recognise and consider all the circumstances which the material submitted to him showed to be relevant and to have been relied upon by the applicant as of cardinal importance. Those circumstances, it was submitted, were -
(i) that Mandy was at material times rejected by her close male relatives, including her father, and that her relationships with her close female relatives, including her mother, were seriously impaired;
(ii) that Vinod and Rina were at material times filling valued parental roles vis-a-vis Mandy;
(iii) that Mandy at material times depended on Vinod and Rina for help, which she strongly desired, in understanding and adopting her husband's Hindu culture and practices;
(iv) that Vinod and Rina were at material times filling valued parental roles vis-a-vis Arun;
(v) that Arun greatly valued the sharing with Vinod and Rina of the Hindu culture of which all three were products;
(vi) that Rina's help in Karishma's upbringing was greatly valued by Mandy.
All six of those circumstances were in substance specified in that part of the delegate's statement of reasons which is headed "3. Details of the Application", and which appears to be intended as a summary statement of the principal assertions made by or on behalf of the applicant in support of the application for a permit. But in Mr. Bell's submission the failure of the delegate to advert to some of the six circumstances in that part of the statement of reasons which is headed "C. Reasons For The Decision", coupled with reference in that part to other circumstances, which in Mr. Bell's submission were less important, showed that the delegate had failed to identify correctly the case for a permit which was presented to him for his determination. In particular it was submitted that there was shown a failure to recognise the existence on and after 15 October 1990, and the importance, of the parental role of Vinod and Rina in Mandy's life, and in Arun's life.
When stating his reasons the delegate is not in my opinion to be thought unmindful of assertions in the material before him as to circumstances such as I have set out in numbered sequence because he does not expressly discuss them. It may safely be inferred from the statement of reasons that the delegate thought the assertions had been put too high, although he conceded that circumstances existed which to some degree matched the assertions. Thus he stated "that Vinod and Rina Prasad have from the time that they befriended Mandy and Arun Prasad in Australia provided emotional and financial support as well as assisting Arun to maintain his language, culture and traditions. I furthermore recognise that Rina Prasad has significantly assisted Mandy Prasad in learning to prepare the Indian cuisine that her husband prefers and in introducing her to the Hindu culture and religion which she is eager to learn about. I concede that as a result of the abovementioned assistance and support a bond of friendship and mutual respect would have developed between both families". When read in conjunction with what had been stated under "3. Details of the Application", that passage strongly suggests that the delegate, having in mind the circumstances alleged by or on behalf of the applicant, and stated by me in numbered sequence, thought the actual circumstances were as he described them rather than as they had been alleged. Upon a reading of the whole of the statement of reasons I am unable to conclude that the delegate failed to comprehend the case being put before him or that he failed to give every aspect of that case his consideration.
Mr. Bell submitted that "there was no evidence or other material to the effect that the cultural isolation and alienation experienced by Arun Prasad is something which is common to many newly arrived migrants", or "to the effect that such alienation usually subsides over time", or "to the effect that Mandy Prasad's desire to become more familiar with her husband's culture, religion and cuisine could be equally well catered for by her husband and by other members of the Indian community with whom they socialise at the functions that they attend". The submissions refer to matter contained in paragraph 15 of the delegate's statement of reasons. Paragraph 15, which was immediately preceded by the passage from those reasons which I have quoted, is in these terms:
"However, given the above, I determined that the departure of the applicant and his family from Australia on or after 15 October 1990 would not have caused hardship or prejudice as claimed by Mandy and Arun Prasad and as required by Regulation 131A (1) (v). The cultural isolation and alienation experienced by Arun Prasad is something which is common to many newly arrived migrants. Such alienation usually subsides over time as the migrant becomes more integrated into Australian society and establishes links with members of his/her own ethnic community. Mandy Prasad's desire to become more familiar with her husband's culture religion and cuisine could be equally wel catered for by her husband and by other members of the Indian community with whom they socialise at the functions they attend. The emotional and financial support provided by Vinod and Rina Prasad is no doubt welcome. However, I found that their departure from Australia on or after 15 October 1990 would not have caused the hardship or prejudice to the extent claimed."
Except for the words "and by other members of the Indian community with whom they socialise at the functions that they attend", the statements said to be unsupported by evidence are statements of the delegate's understanding of the common course of human affairs in particular situations which are not, and have not in recent years been, uncommon in the Australian community. The use of such an understanding, based not upon evidence but upon the delegate's experience in that community, in the determination of the question whether the specified hardship or prejudice would be caused by the refusal of the permit, is not legally erroneous, in my opinion. As when a tribunal of fact determines what the circumstances were in which a motor vehicle accident occurred the tribunal's experience of the common course of human affairs in that situation may be used by it, so in this case the delegate was free to use his experience. If there was no evidence to justify a finding that Mandy and Arun socialised at functions with members of the Indian community (a point not expressly taken by Mr. Bell) then error infected the delegate's reasoning to that extent. But if that were the only error, an order of review would be refused on discretionary grounds.
A further ground of the application for an order of review was that the applicant had been denied procedural fairness by the delegate's failure to bring to the applicant's attention the views he had formed, stated above, for which it was submitted that there was no evidence. But in my opinion they were views of a kind which the applicant's legal adviser and the expert witnesses, a psychiatrist and a psychologist, whose reports included assertions that the circumstances existed which I have set out in numbered sequence, must have realised that the respondent, or his delegate, might very well form in response to those assertions. It might be thought not unlikely that the opinions of those expert witnesses had been sought and, when obtained, placed before the respondent in support of the application for the permit, precisely because the formation of the views which were later expressed in paragraph 15 of the statement of reasons was thought by the applicant's legal adviser to be probable, unless expert opinion were available to dissuade from the formation of those views. However that may be, what is expressed in paragraph 15 is in my opinion so obviously natural, whether sensible or erroneous, a response to the case presented in support of the application that no breach of procedural fairness to the applicant can be discerned in the delegate's failure to notify the applicant of the views expressed in that paragraph before proceeding to a decision on the application.
There was a further ground on which it was submitted that there had been a denial of procedural fairness, and an exercise, of the power conferred on the delegate to make the decision, so unreasonable that no reasonable person could have so exercised the power. It was submitted that the delegate had concluded that on 15 October 1990 the relationship in this country between the two couples was so recently begun that at that time the circumstances were not such as to justify the required prophetic conclusion, whatever may have been the case at later times. It was submitted that that conclusion, which Mr. Bell imputed to the delegate, was one critical to the decision to refuse the permit, for unless circumstances justifying the prophetic conclusion about hardship or prejudice which paragraph (d) (v) requires had existed on 15 October 1990 the application for the permit must fail, whatever the situation might be at a later time. To fail to notify the applicant that the delegate was minded to reach, and to act upon, that conclusion about the circumstances on 15 October 1990 was, it was submitted, to deny him procedural fairness; and to make a decision without first seeking further evidence, bearing on the validity of the conclusion, from the psychiatrist and the psychologist was to exercise the power of determining the application so unreasonably that no reasonable person could have so exercised the power, according to Mr. Bell's submission. Reliance was placed on Luu v. Renevier (1989) 91 ALR 39 in relation to the latter submission.
I do not think that the delegate's statement of his reasons shows that the conclusion imputed to him about the circumstances on 15 October 1990 was critical. I understand the delegate to be expressing in paragraphs 16 and 17 of that statement a conclusion that the circumstances alleged in support of the application, even when those circumstances are taken to include events and emotional states occurring after Mandy's pregnancy was recognised by the four adults, do not justify the required prophetic conclusion. The delegate's omission from the statement of a reference to the recent origin of the relationship in a draft prepared by a subordinate may be thought consistent with that understanding. The omission does not, as Mr. Bell suggested, support his submission, in my opinion.
If I were wrong in that understanding, yet there would not in my opinion be shown a denial of procedural fairness or unreasonableness of the kind which is specified in paragraph 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977. The application was made, and matter in support of it was submitted, on the advice of solicitors experienced in migration law, as the delegate knew. The unusual continuum which Reg. 131A(1)(d) contemplates is plainly indicated by the words "on 15 October 1990 and continuously until" the occurrence of another event. The difficulty which was created for the applicant by the short duration of the relationship between the two married couples at the commencement of that continuum would reasonably have been thought by the delegate to be painfully obvious to those solicitors.
There was a further ground of the application. The argument supporting it starts with the proposition that the words "irreparable prejudice" in their ordinary meanings signify a disadvantage to a person which is incapable of being rectified, remedied or made good. Unlike the disadvantage contemplated by the words "extreme hardship", the alternative disadvantage need not be of very great gravity, it was submitted. But the delegate's own statement of his reasons suggests that he did not appreciate that relatively minor prejudice could be comprehended by the word "prejudice" in sub-paragraph 131A(1)(d)(v), it was submitted.
It may be a mistake to think that the proper construction of the expression "irreparable prejudice" is to be influenced by the gravity which the expression "extreme hardship" connotes. But the construction of the former expression 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-paragraph 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 ed.) : "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 s.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. If the expression be so construed, I am unable to conclude that the statement of reasons discloses error on the delegate's part in his understanding of what the expression required him to consider.
The application for an order of review must be dismissed.
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