Raj, Dharam v Minister for Immigration & Ethnic Affairs
[1996] FCA 694
•18 Jul 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 40 of 1996
)
GENERAL DIVISION )
BETWEEN: DHARAM RA
Applicant
AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
MS GAIL RADFORD Constituting the
Immigration Review Tribunal
Second Respondent
Coram: Davies J.
Date: 18 July 1996
Place: Sydney
REASONS FOR JUDGMENT
This application is brought under Division 2 of Part 8 of the Migration Act (1958) (Cth). Relevant provisions include ss.475(1), 476(1)(a) & (e), 476(2) and 485(1). Those sections relevantly provide:-
"475. (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a)decisions of the Immigration Review Tribunal;
(b)decisions of the Refugee Review Tribunal;
(c)other decisions made under this Act, or the regulations, relating to visas.
...
476.(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
...
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision whether or not the error appears on the record of the decision;
...
(2)The following are not grounds upon which an application may be made under sub-section (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
...
(1) In spite of any other law, including section 39B of the Judiciary Act1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475 (2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.
..."
The matter in issue is whether an application for an entry permit by a Fijian national, Mr Ashok Kumar, should have been granted on the basis that a refusal to grant the permit would cause "extreme hardship" or "irreparable prejudice" to an Australian citizen, namely, a Mr Dharam Raj or his wife.
Part 812 of Schedule 2 to the Migration (1993) Regulations provides for the requirements for a class 812 entry permit. The regulation in issue relevantly provides:-
"812.723 (1)The applicant satisfies the requirements of subclause (2), (3), (4), (5) or (6).
...
(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.
(7) For the purposes of subclause (6), `compassionate ground' does not include a circumstance that results directly from an event of a political nature only that occurred in the applicant's country of citizenship or of usual residence.
..."
Policy directions under s. 179 of the Migration Act have been issued and these are set out in the reasons for decision of the Immigration Review Tribunal ("the Tribunal") in this case. No challenge to those directions has been made.
The law with respect to the meaning of the relevant regulations was settled in Minister for Immigration & Ethnic Affairs v Teo (1995) 57 FCR 194, Black CJ, Gummow and Beazley JJ. Their Honours pointed out at 204-207 that, under the provisions, there were two elements to be considered: "extreme hardship" and "irreparable prejudice". Their Honours considered that these tests were different tests and ought to be considered separately. Their Honours said that both the tests were to be read in the light of the requirement that the hardship or prejudice amount to a "compassionate ground".
I need not deal with the term "extreme hardship" which, in my view, would not apply to the present case. Of the term "irreparable prejudice" their Honours adopted the construction enunciated by Jenkinson J in Prasad v Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 856 at 858 where his Honour said:-
"... 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 subpara 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."
In Teo, their Honours rejected the view that the words "extreme" and "irreparable" require that there be a very high degree of hardship or prejudice and thought that it was a distraction from the legislative text so to regard them. Their Honours also considered that the benevolent approach propounded by Burchett J in Fuduche v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 515 at 527 ought not to be adopted. Their Honours thought that the terms should be read having regard to the words used and in the context that a compassionate ground had to be established.
The applicant in the present proceedings is Mr Raj. Mr Raj and his wife are Australian citizens. Mr Raj migrated to Australia in 1975. He returned to Fiji in 1982 for an arranged marriage with his present wife. Mrs Raj stayed for three months with Mr and Mrs Kumar while awaiting for her Australian visa. On her arrival in Australia she discovered that Mr Raj had a drinking problem and tended to violent behaviour.
The case put to the Tribunal was that Mrs Raj subsequently asked Mr and Mrs Kumar to come to Australia to help her cope with Mr Raj's behavioural problems. The case was put that Mr Raj had been violent and had been brought before Lidcombe Court in 1984, that Mr and Mrs Kumar came to Australia in 1985 pursuant
to the request and commenced living with Mr and Mrs Raj. There were children to both families. In 1988, the Raj family moved to a new home in Doonside and Mr and Mrs Kumar went with them. In 1989, Mr and Mrs Kumar moved to Campbelltown, which is approximately 35 minutes away, but a close association between the families continued. It was further put that, in 1993, Mr Raj was diagnosed as having a panic disorder with obsessional personality and that, in 1994, he had an accident at work involving his back and, on 22 March 1995, underwent surgery requiring laminectomy and dissectomy extending from L4 to S1 levels with bone grafting and isola rod fixation. At the time of the hearing before the Tribunal, Mr Raj was obviously quite seriously incapacitated by his back. It was put to the Tribunal that, because of Mr Raj's drinking and behavioural problems and his back, he and Mrs Raj needed the support of Mr and Mrs Kumar and that the support which Mrs Kumar gave to Mrs Raj was of particular importance.
The Tribunal approached the matter by looking primarily at the position as at 15 October 1990. As the Tribunal said, the regulation in issue required that not only should there be a compassionate ground as at the date of the decision but that the compassionate ground must have existed as at 15 October 1990. Accordingly, much of the Tribunal's reasons for decision concentrated on the situation as at 1990, rather than as at the date of the hearing, by which time, of course, Mr Raj had suffered a physical incapacity resulting from his back accident.
The matter was a difficult one for the Tribunal, for the credit of Mr and Mrs Kumar and, I think, also of Mr and Mrs Raj, was in doubt. Mr and Mrs Kumar for some years had given wrong addresses to the Department of Immigration and Ethnic Affairs ("the Department") and had undertaken remunerative work contrary to the provisions of the Migration Act. Indeed, Mr Kumar, and I assume also Mrs Kumar, had entered on a visitor's visa in 1985 and had simply remained at its expiration, thereafter taking employment and avoiding officers of the Department by giving false addresses.
Furthermore, in the original application for the visa by Mr Kumar, a different story was put. The case as then put was that there was a need for Mr and Mrs Raj to give support to Mr and Mrs Kumar rather than a need for Mr and Mrs Kumar to give support to Mr and Mrs Raj. That first application was prepared and lodged by a solicitor, Mr C. Levingston, who is experienced in migration matters. In evidence before the Tribunal, Mr and Mrs Kumar said that they had not told the truth to Mr Levingston, their solicitor. Doubts also arose from the fact that the application was made at a late stage. At first, Mr Kumar had sought an extended eligibility temporary entry permit and he had also sought refugee status. Both those applications had been refused. It was not surprising that the Tribunal regarded the evidence with some scepticism.
One particular fact was, I think, important in the application, and it was a fact about which the Tribunal had doubt; that is, whether Mr and Mrs Kumar came to this country because of the problems which Mr and Mrs Raj were having with a view to assisting Mrs Raj. The evidence supporting that claim was not strong and was given only by these four persons. It was not propounded in the original application, or, at least, not propounded as an important central fact.
In his evidence, Mr Kumar, when he was explaining about the false addresses or the range of addresses which had appeared in his applications and correspondence, none of which included the premises occupied by Mr and Mrs Raj, said that he had, in fact, lived at some of the addresses for two or three months. He said that he and Mrs Kumar had stayed with a Mr Vijay Bhan at St Clair when he first arrived because Mr and Mrs Raj did not know he was coming. The Tribunal thought it unlikely that Mr and Mrs Kumar would have done so if they had come to Australia at Mrs Raj's request to assist her in dealing with her husband's problems.
The Tribunal gave a lengthy decision of some 23 pages. The Tribunal described the crux of the case as follows:-
"Mrs Raj said that Mrs Kumar is her best friend. She is the only one that she could talk to about the problems with her husband. Mrs Kumar would advise her what to do and then talk to her husband as well. Mrs Raj said that she did not want to lose her husband because she felt sorry for him and now with his bad back it was much worse. She did not know what she would do if the Kumars had to leave. Mrs Raj said that she thought her relationship with Mrs Kumar was stronger than that which Mr Kumar had with Mr Raj. While her husband would complain when she talked to Mrs Kumar about their problems, Mr Raj would listen to what Mr and Mrs Kumar said to him. ...
Mrs Raj said that when the Kumars moved to Campbelltown in 1989 she maintained contact with Mrs Kumar by the phone. Mrs Kumar was her best friend. She did not have any other friends she could talk to about her problems with her husband. She said maybe if the Kumars had had to leave in 1990 she would have found another friend. Although her husband's behaviour had improved slightly about that time, it was now just as bad as ever due to the pain. She felt very sorry for him now.
Mrs Raj said that as well as helping her to cope with her husband, the Kumars assisted her husband with matters such as taking him to the psychiatrist. Mrs Raj said that she took her husband to see a psychiatrist (Dr Wong of Pymble) in 1993 as he could not sleep at night. He continued to visit the psychiatrist for a year but does not see him now. Today the Kumars come and sit with her husband on weekends when he gets upset. Mrs Raj said that he has nobody else here, his elderly parents tried to visit but could not get a visa.
...
Mrs Kumar said that she was quite shocked by her brother when she first arrived, he was totally different from the man she knew in her childhood in Fiji. He was drinking heavily, going to clubs and when he arrived back he would start arguing and throwing things around. He was not controllable once he started drinking alcohol. In the years
in which she and her husband lived with the Rajs, they would try and settle their arguments and tell them to calm down now they had children. When the Kumars moved out in 1989 Mr Raj was a little better, he was still drinking, but not so much. There was really not much difference in his behaviour, however, between that of 1985 and that of 1989. After the Kumars had moved out they would see each other on the weekend and talk on the phone, in addition Mrs Kumar and Mrs Raj were working together. Mrs Kumar said her brother stopped drinking in 1993 but his back injury has made his behaviour worse.
Mrs Kumar said that her brother likes her husband because her husband helps him and her brother also respects him for the way he treats her. Mrs Kumar said that Mrs Raj is like a sister to her. Mrs Raj brings her problems about her husband to her and Mrs Kumar advises her about how to handle him. Although Mr Ray's behaviour has not really improved over time, Mrs Kumar said that she is close to him so he will listen. This helps him deal with the present pain he is suffering from his back and can also calm him if he is having an argument with his wife.
..."
The Tribunal, after commenting adversely on the credit of the witnesses, including Mr Raj for he had put in a statement supporting the first application, said inter alia:-
"Turning now to the test to be satisfied and the story which is being told to the Tribunal. To satisfy 812.723(6) the Applicant must demonstrate that there was a compassionate ground existing as at 15 october 1990 and continuing at the date of application and the date of decision, 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 has been told that Mr Raj had a drinking problem, which predated his marriage, that this resulted in him treating his wife badly and he and his wife needed the Kumar's [sic] to stay at 15 October 1990 to assist him and his wife. In 1993 his drinking ceased when he developed back pains. The letter from Mr Raj's treating doctor since 1988 does not mention any treatment for problems associated with alcoholism. It does refer to diagnosis by a psychiatrist in 1993 of `a panic disorder with obsessional personality'. There is no indication of the magnitude of this disorder or how long Mr Raj had suffered from this disorder. It is Mrs Raj's evidence that she took her husband to see the psychiatrist because her husband was having trouble sleeping at night. The evidence of his orthopaedic surgeon is that Mr Raj suffered a back injury which required surgery in 1994. Mr Raj and his wife now claim that they need the Kumars to stay to assist with problems concerning Mr Raj's illness and behavioural problems.
...
While the Kumar's [sic] may have assisted Mr Raj to cut down in his drinking, his drinking and behavioural problems continued. The two families started living separately in 1989 and it is Mr Raj's evidence that his sister would come over and give him money for drink if he asked for it. The Tribunal finds that it would not have made any difference to Mr Raj's drinking if the Kumar's [sic] had departed at 15 October 1990 as it was the development of his back pains and not the Kumar's [sic] which resulted in him to [sic] ceasing to drink in 1993. The Tribunal finds that Mr Raj would not have suffered extreme hardship or irreparable prejudice if the Kumars had departed at 15 October 1990.
While the story told by Mrs Raj of her husband's drinking problems and associated behavioural problems would have resulted in an unhappy family life, unfortunately this is not unlike the case of many Australian families. The Tribunal can understand that Mrs Kumar could well have been a comfort to Mrs Raj, however there is no evidence that Mrs Kumar made a significant difference to her quality of life in October 1990. It is Mrs Raj's oral and written evidence that Mr Raj continued drinking and with his related behavioural problems in the years 1990 to 1993. The Rajs and the Kumars were living in separate homes in 1990, no evidence has been produced to show that Mrs Raj is psychologically dependent on Mrs Kumar and it is Mrs Raj's evidence that she may have found another friend to confide in, if Mrs Kumar had been forced to depart. While acknowledging that Mrs Raj would have been sad at the departure of the Kumars, the Tribunal finds that Mrs Raj would not have suffered extreme hardship or irreparable prejudice, such as to arouse compassion in others, if the Kumars had departed at 15 October 1990.
..."
The Tribunal did not discuss any authorities in its decision, except to refer to the decision of Ali v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 144, in which it was held that the policy directions issued under s.179 were binding on the Tribunal. However, I have not perceived any expression in the Tribunal's reasons which indicates any wrong approach to the tests which the Tribunal had to apply.
That is not necessarily an end to the matter. Section 476(1)(e) permits a challenge to be made on the ground of an error of law being an error involving "an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found." In my opinion, even in a case where there is no express error of law in the interpretation of the relevant law, an error may sometimes be found by inference from some unsatisfactory aspect of the reasons. Thus, it may be that a tribunal took an irrelevant factor into account, or failed to take into account some relevant factor, or that the decision appeared capricious or arbitrary having regard to the law on the facts, or even so unreasonable that no reasonable decision-maker would have arrived at it. An inference of a relevant error of law may arise from such matters. I do not suggest that
in all such cases an inference should be drawn that there was an error in the interpretation or application of the relevant law. But cases do arise when one looks at what the facts as found are and one looks at the law to be applied, and it is clear that an error has occurred. Sometimes, it is reasonably clear that that error must have been an error in the understanding of the law or in its application to the facts, rather than an error of fact. I mentioned such a possibility in Commissioner of Taxation v McCabe (1990) 26 FCR 431 at 437 when I said:
"In making this finding, the Tribunal may unconsciously have transposed the question as to what objectively it was reasonable to expect would happen to the predominantly subjective question whether Dr McCabe was entitled to expect a renewal of her contract."
That is just an illustration but, from time to time, one comes across cases where all the principal authorities have been referred to and nothing expressly incorrect is stated and yet, looking at the matter, one can see that there must have been an error made, consciously or unconsciously, in the interpretation of the law or in its application to the facts.
I should therefore look at the decision in this case to see whether any such inference can be drawn. However, I see no error in the Tribunal's reasons from which such an inference arises. Indeed, I see no error in the Tribunal's reasons which would have supported a challenge under the more generous provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
It is true enough that some of the Tribunal's conclusions are stated in rather black and white terms and that perhaps too much emphasis was placed on matters of credit rather than on what the likely prejudice would have been. But, on the whole, it seems
to me that the Tribunal dealt fairly with the matter before it and dealt in substance with the case as it had been presented. I am not satisfied that there was any failure to deal with the merits of the matter or any point of significance that was omitted from consideration.
Counsel for the applicant, Mr C.R. de Robillard, submitted that the Tribunal failed to explain why it disregarded the following evidence. He made the following submission inter alia:-
"12 At page 22.3 the Tribunal states: `there is no evidence that Mrs. Kumar made a significant difference to her (Mrs. Raj's) quality of life in October 1990'. The Tribunal fails to explain why it disregards the following evidence:
(a)Mrs. Kumar was Mr. Raj's sister and was close to Mr. Raj;
(b)Mrs. Kumar was Mrs. Raj's best friend and was the only person with whom Mrs. Raj could discuss her problems with her husband (page 12);
(c)Mrs. Kumar would advise Mrs. Raj about what to do and would also talk to Mr. Raj (page 12);
(d)Mr. Raj would listen to what Mr. & Mrs Kumar said to him (page 13.2);
(e)Mrs. Raj did not have any other friend she could talk to about her problems with her husband (page 13.3);
(f)the Kumars assisted Mrs. Raj to cope with her husband, including taking the husband to the psychiatrist (page 13.5);
(g)the Kumars come and sit with (Mr. Raj) on weekends when he gets upset. Mrs. Raj said that he (Mr. Raj) has nobody else here;
(h)Mrs. Raj and Mrs. Kumar work together as process workers on the night shift (page 14.2);
(i)Mrs. Kumar said that her brother (Mr. Raj) likes her husband because her husband helps him (Mr. Raj) and her brother also respects him for the way he treats her (page 14.6);
(j)Mrs. Kumar said that Mrs. Raj is like a sister to her (page 14.7);
(k)Mrs. Raj brings her problems about her husband to her (Mrs. Kumar) and Mrs. Kumar advises her about how to handle him. Although Mr. Raj's behaviour has not really improved over time, Mrs. Kumar said that she is close to him so he will listen. This helps him deal with the present pain he is suffering from his back and can also calm him if he is having an argument with his wife (page 14.8);
(l)the Raj and Kumar families have shared the same homes for several years;
(m)Mrs. Raj had asked Mr. & Mrs. Kumar to come to Australia because she was having trouble with Mr. Raj (page 20.4);
(n)Mrs. Raj had stayed for three months with Mr. & Mrs. Kumar in Fiji while waiting for her Australian visa following her marriage to Mr. Raj.
... "
In my opinion, the Tribunal did not disregard any of that evidence. Moreover, it does not seem to me that the points to which Mr de Robillard referred are points which would have been likely to satisfy a tribunal that there was irreparable prejudice which would excite the compassion of a decision maker. There were, of course, some matters in the list about which the Tribunal had doubts. But, even if that were not so, it does not seem to me that those matters really found a case for a compassionate grounds entry permit.
Accordingly, I am not satisfied that any ground has been made out under para. 476(1)(e).
That brings me to the application under para. 476(1)(a). Mr de Robillard referred to the following provisions:-
"353. (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)shall act according to substantial justice and the merits of the case.
...
(1)For the purpose of the review of a decision, the Tribunal may:
...
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination."
...
368. (1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraph 375A (2) (b), prepare a written statement that:
(a)sets out the decision of the Tribunal on the review;
(b)sets out the reasons for the decision;
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
..."
Of course, these provisions go beyond matters of procedure, to which para 476(1)(a) refers. But they do encompass procedural elements. I assume, for example, that a failure to give reasons in accordance with sub-s.368(1) would amount to a failure to comply with the procedures required by the Migration Act in connection with the making of the decision. In the present case, however, the Tribunal has set out its findings on the material questions of fact and the reasons for its decision.
Mr de Robillard challenged this. For example, he referred to a certificate which was in evidence from a general medical practitioner which read:-
"This is to confirm that this patient has been seeing me since 1988. He suffers from asthma and is on regular treatment with inhalers. He was diagnosed to have a panic disorder with obsessional personality by Dr. K.S. Wong (Psychiatrist) in 1993. He has been suffering from a back problem since 1994 and is under the care of Dr. C. Irani (Orthopaedic Surgeon)."
That certificate was dated 1 November 1995. Mr de Robillard said that in the Tribunal's decision there was no discussion of the magnitude of the disorder described as panic disorder with obsessional personality, or how long Mr Raj had suffered from this disorder
and that the Tribunal did not say whether inquiries had been made as to Mr Raj's psychiatric state in 1990.
It seems to me that that submission deals not with a failure to provide reasons, but challenges the facts as found by the Tribunal or challenges the Tribunal's compliance with the principles of natural justice. Neither of those challenges is available under the Act. The Tribunal said all it wished to say about the certificate.
Mr de Robillard also submitted that the Tribunal had not made the inquiries which it ought to have made. He referred in particular to the power to obtain a further medical certificate, conferred by para 363(1)(d).
However, it is implicit that the Tribunal did not consider it necessary for the review to arrange for any further psychiatric examination. This is understandable. The Tribunal had, prior to the hearing, given notice that it should receive updated medical reports concerning Mr Raj. The certificate was presumably the material so obtained. The Tribunal did not direct its attention primarily to the position in 1993 but to the position as at 15 October 1990. There was no evidence before the Tribunal that Mr Raj was being treated for psychiatric problems in 1990. And the value of any further medical examination would depend upon the reliability of the information supplied. I cannot see that there was any arguable duty on the part of the Tribunal to act under para 363(1)(d). I need not consider whether para 363(1)(d) would ever impose a duty on the Tribunal the breach of which could be said to be a breach of the "procedures that were required by this Act ... to be observed ..."
Mr de Robillard submitted that there was a duty on the Tribunal to go out and make inquiries of its own. In my opinion, no such duty is either expressed or to be implied from the Migration Act. Indeed, it would be quite inconsistent with the general principles of procedural fairness which are applied in this country. Those principles require parties to be given a fair opportunity to present material. They do not require a tribunal to make its own inquiries. It is ludicrous to suggest, as counsel suggested, that the Tribunal should have made inquiries of Lidcombe Court as to what happened back in 1984, or that it should have itself approached the police or Mr Raj's medical practitioners for further information.
In this country we do not have examining magistrates such as are common in the administrative law systems of many European countries. We proceed upon the footing that the parties should have a fair chance to put their case. Of course, a tribunal does everything it can to assist the parties. It provides interpreters, if they are needed, and guides witnesses as to matters of fact to which their evidence ought to be directed, to matters which, in its opinion, are important, and which it may perceive have not been dealt with. But, beyond that, a tribunal certainly has no duty to go out itself and make inquiries of people who are not before it.
In my opinion, there was no breach of any of the procedures laid down by the Migration Act.
The last matter that I should mention is that, in these proceedings, a good deal of emphasis has been placed upon the medical certificate and what was said therein of Mr Raj's psychiatric state in 1993. In my opinion, the Tribunal was not bound to give
it any more attention than it did. This was not a matter which was raised by the first application lodged by Mr Levingston. And psychiatric ill health was not a matter which was emphasised by the evidence that was given to the Tribunal.
It is to be kept in mind that the case for the applicant was set out at some length by Mr T. Laba Sarkis, a migration consultant, who appeared for the applicant at the hearing before the Tribunal and who, on 14 June 1995, wrote a long seven page letter setting out the substance of the case. A serious psychiatric problem was not emphasised in Mr Sarkis' letter. Mr Sarkis said, inter alia:-
"In speaking with Mr Raj, I clearly understand him, when he says that it was his entire family that got him through his turbulent drinking years and then to add salt to his healing wounds, suffering incredible back pain and the psychological readjustment to a restricted life.
Although they are no longer under the same roof, this family remain close. The children talk daily on the phone, and spend the weekends and holidays together. The adults are constantly in each others company, shopping, socially and culturally. They are all very close.
The woman [sic] share a very close bond. The wife of the nominee, is most grateful for the sense that Kala [Mrs Kumar] brings to her husband. She is indebted to her for saving her marriage and keeping her sain [sic], and never once judging her.
They share the burdens, the joys and sadness of life together and are involved in the upbringing of each others children. They emotionally and physically rely on each other.
I feel it important, that consideration be given to the spouse of the nominator, and the adverse effect, the departure of her allies will have upon her".
The matters set out therein were the substance of the case as it was put to the Tribunal. The Tribunal dealt with the matter accordingly. The Tribunal rejected the contention that the break up of the relationship between Mr and Mrs Kumar and Mr and Mrs Raj would have consequences which could be described as being either "extreme hardship" or "irreparable prejudice" so as to the excite the compassion of a decision maker. This
decision was open to the Tribunal and the Tribunal dealt fairly with the substance of the case as it was put to it.
For those reasons the application will be dismissed, with costs.
I certify that this and the 16 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.
Associate:
Date: 18 July 1996
Counsel for the applicant: C.R. de Robillard
Solicitors for the applicant: Diamond Peisah & Co.
Counsel for the respondent: R.T. Beech-Jones
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 18 July 1996
Date of judgment: 18 July 1996
0
4
0