Roser, L. v Immigration Review Tribunal

[1991] FCA 911

Re: LES ROSER
And: IMMIGRATION REVIEW TRIBUNAL and MINISTER OF STATE FOR IMMIGRATION LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. S G82 of 1991
FED No. 911
Citizenship, Immigration and Emigration
(1991) 105 ALR 211

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Spender(1), Foster(2) and O'Loughlin(3) JJ.

CATCHWORDS

Citizenship, Immigration and Emigration - Section 121(2) Migration Act 1958 - whether grounds for making another application for entry permit, such as to require Tribunal to notify applicant and adjourn review - real possibility of success required, not possibility which is merely fanciful or speculative - Regulation 131A(d)(v) - whether extreme hardship or irreparable prejudice to Australian citizen.

Migration Act 1958

Migration Regulations

HEARING

ADELAIDE

#DATE 11:11:1991

Counsel for the Appellant: Mr E.A. Fardone

Solicitors for the Appellant: Fardone and Co.

Counsel for the Respondents: Ms S. Singh

Solicitors for the Respondents: Australian Government Solicitor

ORDER

The appeal is dismissed with costs, to be taxed if not agreed.

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

JUDGE1

This appeal is from a single judge of this court, (von Doussa J.), who dismissed an appeal brought pursuant to s. 138 of the Migration Act 1958 ("the Act") against a decision of the Immigration Review Tribunal ("the Tribunal") made on 27 February 1991. The Tribunal had affirmed a decision not to grant the appellant an Extended Eligibility Temporary Entry Permit ("an EETEP").

1. The appellant was born in Fiji on 8 November 1941. On 11 January 1990 he applied for an EETEP pursuant to reg. 127 of the Migration Regulations ("the Regulations"). The Tribunal determined that he did not meet the relevant criteria for an EETEP under that regulation; there was no appeal to von Doussa J. from that part of the Tribunal's decision.

2. The grounds of appeal before the learned primary judge and before us concern the function imposed on the Tribunal by s. 121 of the Act.

3. Section 121 provides as follows:
   " (1) This section applies to each review under this Part of a
   

decision (in this section called the 'original decision') refusing an entry permit to a person where:

(a) the person has entered, and remains in, Australia; and

(b) the review authority concerned has determinative powers in relation to the original decision.

(2) Where, during the review, it appears to the review authority that the applicant might have grounds for making another application for an entry permit of the same class or an application for an entry permit of a different class, the review authority shall;

(a) notify the applicant accordingly, and

(b) adjourn the review.

(3) If the applicant does not make any other application for an entry permit within 10 working days after being notified under sub-section (2):

(a) the review authority shall resume the review of the original decision; and

(b) section 36 applies to the applicant.

(4) If the applicant makes any application or applications for an entry permit within 10 working days after being notified under sub-section (2);

(a) the review authority shall not resume the review of the original decision until decisions have been made by the Minister on the other application or all the other applications;

(b) the review authority shall then, subject to the wishes of the applicant, review the original decision and such of the other decisions (if any) as are reviewable decisions; and

(c) section 36 applies to the applicant. "

1. It was contended for the appellant, both before von Doussa J. and before this court, that the Tribunal, contrary to the obligation imposed on it by s. 121(2), did not adjourn the review in circumstances where it should have done so. It was also contended that the Tribunal erred in finding that the appellant did not have grounds for making another application for an entry permit of the same or of a different class.

2. In September and October 1990 there had been publicity concerning an "amnesty" programme in relation to persons unlawfully in this country. That amnesty programme received legislative embodiment in regulation 131A of the Regulations, which relevantly provides:
   " (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:

(i) the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or

(ii) the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or

(iii) the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or

(iv) the applicant is:

(A) an aged dependent relative; or

(B) an orphan relative; or

(C) a special need relative; or

(D) a remaining relative within the meaning of regulation 9; of a settled Australian citizen or settled Australian permanent resident; or

(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; ... "

1. Of particular concern in this appeal is the criterion specified by para 131A(1)(d)(v). As the learned primary judge noted, the appellant appeared to meet the requirements of criteria in paragraphs (a), (b) and (c). Subparagraphs (i) to (iv) of paragraph 131A(1)(d) clearly did not apply to the appellant, but subparagraph (v) could apply if the refusal of an EETEP "would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident. "

2. The Tribunal drew the provisions of that regulation to the attention of the appellant and to a Mr Singh, who attended the hearing with the appellant and described himself as the appellant's 'cousin-in-law', and then said:
   " Now, in order for you to take advantage of the provision which
   

says that we have to give consideration to any other applications you may be able to make you have to satisfy us at least that there is a possibility, a real possibility, not something fanciful but a real possibility, that you might be able to put forward grounds, reasons of that nature. If you are able to convince us of that, then we can think seriously about adjourning these proceedings - that is the review of this application you made 12 months ago - enabling you to go off to the department and make a further application on these compassionate grounds, if they do exist, and have that fresh application assessed by the department. Can you understand?---Yes. "

1. The Tribunal then said it intended to give the appellant and Mr Singh an opportunity to discuss the matter, and to this end it would adjourn for about five minutes.

2. After the adjournment there was a lengthy discussion concerning Mr Singh. The appellant had been in South Australia since 1988, regularly working as a shift worker at Actil. Mr Singh said when the appellant was not working at Actil he assisted Mr Singh in the course of Mr Singh's crash-repair business, doing things such as making deliveries and pick-ups, going to the bank and minding his office. The work was done voluntarily by the appellant and no remuneration was paid.

3. Mr Singh had received an injury to his eye in December 1990 which caused a loss of sight, at least for the time being, and the appellant had performed services for him in consequence of that injury.

4. It was this aspect of the material before the Tribunal which was said to raise a real possibility that the appellant might be able to bring himself within sub-paragraph 131A(1)(d)(v).

5. As the learned primary judge noted, the obligations imposed by s. 121(2) of the Act require that where, during the review, it appears to the review authority that the appellant might have ground for making another application, the review authority shall:
   

" (a) notify the applicant accordingly; and

(b) adjourn the review. "

1. His Honour said, at p 13 of his Reasons for Judgment:
   

" The obligation to notify arises only when and if it so 'appears' to the review authority. The subsection, by its terms, does not impose any duty on the review Tribunal to embark, on its own motion, in a wide ranging enquiry which covers circumstances relevant to possible eligibility under every regulation providing criteria for an entry permit. "

1. It was submitted by Mr Fardone on behalf of the appellant before this court that the test to be applied under s. 121(2) of the Act to reg. 131A(1) to determine the existence of a compassionate ground under subparagraph (d)(v) does not require more than a reasonable possibility, not fanciful or unreal, consistent with the known facts. He submitted there is a distinction between a possibility which is rationally based, on the one hand, and an opinion or view that is irrational, absurd or ridiculous on the other. He submitted that the exercise to be undertaken in pursuance of s. 121(2) is not one of balancing or weighing the respective merits of the claim to a compassionate ground. It is a case of determining whether a particular possibility has a rational foundation. Mr Fardone submitted it was an incorrect application of the test to simply find as a matter of fact that the appellant clearly does not satisfy the basic criteria for an appropriate permit.

2. I accept all of those submissions.

3. Consistent with those submissions, what has to be shown is that referred to in Re Mah (unreported; Immigration Review Tribunal, 19 September 1990, S90/00008), namely, a real possibility as opposed to a possibility which is fanciful or speculative. That test seems to have been accepted by Mr Fardone before the learned primary judge.

4. It seems to me that on a proper construction of the regulation, sub-paragraph 131A(1)(d)(v) requires the existence of a compassionate ground from 15 October 1990 onwards. It is therefore necessary for the material before the Tribunal to raise a real possibility that eligibility under that requirement might be shown if an adjournment were to be granted.

5. In my opinion there was no material before the Tribunal satisfying the test of a real possibility that sub-paragraph (1)(d)(iv) would be satisfied in relation to the injury to Mr Singh. In any event it is speculative or hypothetical, to adopt the words of Mr Fardone, to suggest that that possibility appeared on the material before the Tribunal in respect of the period from 15 October 1990 to the time of the injury to Mr Singh.

6. I respectfully agree with the construction of reg.131A by the learned primary judge. I note that while there are passages identified by his Honour which might suggest that the Tribunal was concerned with evaluating the merits of any possible basis of eligibility under reg.131A(1)(d)(v), on the proper construction of the reasons of the Tribunal as a whole, it did not fail to adopt the Re Mah test as the basis properly to be applied by it.

7. In my opinion no error has been demonstrated in the reasons for judgment of the learned primary judge.

8. The appeal should be dismissed with costs, to be taxed if not agreed.

JUDGE2

I agree with the learned presiding judge. I have nothing to add to what he has said.

JUDGE3

I also agree.