Roser, L. v Immigration Review Tribunal & Minister for Immigration, Local Government & Ethnic Affairs
[1991] FCA 540
•03 SEPTEMBER 1991
Re: LES ROSER
And: IMMIGRATION REVIEW TRIBUNAL and MINISTER OF STATE FOR IMMIGRATION LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. S G26 of 1991
FED No. 540
Migration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)
CATCHWORDS
Migration - function of a review authority under sub.s.121(2) of the Migration Act 1958 - meaning of "appears...that the applicant might have grounds" for making another application for an entry permit - whether information before the Immigration Review Tribunal disclosed a real possibility that grounds for making another application existed - whether refusal of entry permit would cause "extreme hardship or irreparable prejudice" to an Australian citizen or Australian permanent resident.
Migration Act 1958, s.121
Migration Regulations, reg.131A
HEARING
ADELAIDE
#DATE 3:9:1991
Counsel for the applicant : Mr E.A. Fardone
Solicitor for the applicant : Fardone and Co.
Counsel for the respondent : Mr S. Singh
Solicitor for the respondent : Australian Government Solicitor
ORDER
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This appeal is 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 which affirmed a decision not to grant the applicant an Extended Eligibility Temporary Entry Permit( an EETEP).
The applicant was born in Fiji on 8 November 1941. He is a British subject and the holder of a United Kingdom passport. From 1961 to 1981 he resided in England, and during that time renounced his Fijian citizenship and adopted British citizenship. The applicant first came to Australia on a visitor class visa in 1981. Between 1981 and 1985 he travelled between Australia and Fiji on several occasions. He last entered Australia on 17 January 1985, again on a visitor class visa. A temporary entry permit valid to 17 July 1985 was issued to him on his arrival. The temporary entry permit was clearly endorsed "employment prohibited without written permission of an authorised officer". Nevertheless the applicant started working with his brother-in-law, Mr Sundar, in New South Wales, with whom he lived. The applicant did not leave Australia before the expiry of his temporary entry permit. He has remained in Australia as an illegal entrant.
On 11 January 1990 the applicant applied for an EETEP under reg.127 of the Migration Regulations, which prescribes criteria in relation to an "extended eligibility (family) entry permit". This application was made on the ground that the applicant was a "remaining relative". It is now common ground that a "remaining relative" is relevantly defined, in reg.9, in terms that disqualify from the ambit of the definition any applicant who has more than three overseas near relatives. At all material times the applicant had a mother and six siblings who are, for the purposes of the regulation, "overseas near relatives". The applicant for this reason did not come within the criteria for the class of EETEP for which he had applied.
The decision under review by the Tribunal had determined that the applicant did not meet the relevant criteria for the EETEP. The applicant sought to have the decision reviewed by the Tribunal, and the Tribunal also concluded that the applicant did not meet the criteria prescribed in reg.127. From this part of the Tribunal's decision there is no appeal.
The grounds of appeal concern the function imposed on the Tribunal by s.121 of the Act which provides:
"121.(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."
In the present case, the conditions of sub.s.121(1) were met by the applicant, and accordingly sub.s.121(2) applied.
The Tribunal discussed its function under sub.s.121(2) with the applicant in the course of receiving evidence from him for the purpose of the review. The Tribunal did not adjourn the review in pursuance of the power under para.121(2)(b). In its reasons for decision the Tribunal expressed the conclusion that "it appears to the Tribunal that (the applicant) does not meet the criteria for another class of EETEP pursuant to the Migration Regulations". The Tribunal therefore concluded the review of the original decision and affirmed it.
The grounds of appeal contend that the Tribunal, contrary to the obligation imposed on it by sub.s.121(2) did not adjourn the review in circumstances where it should have done so; and that on the evidence before it, the Tribunal erred in finding that the applicant did not have grounds for making another application for an entry permit of the same or of a different class. It is also contended that the Tribunal denied the applicant natural justice in conducting the review, in that it did not give the applicant sufficient opportunity to place before the Tribunal information which could demonstrate to the Tribunal that the applicant might have grounds for making another application. The grounds of appeal raise for consideration the construction of sub.s.121(2), and in particular the meaning of the expression "might have grounds".
It is necessary to relate the events which occurred at the review hearing before the Tribunal. That hearing occurred on 19 February 1991 before a two member Tribunal. A transcript of the proceedings was created, but unfortunately it is in places incomplete. Nevertheless, a good picture of the course of discussion between the Tribunal, the applicant, and a friend which he had with him, Mr Ashok Singh, is revealed by the transcript. The Tribunal received evidence from the applicant, and through a process of questioning ascertained from him extensive details of his background and family. For the most part that information was relevant to the application for an EETEP based on the "remaining relative" ground. When the Tribunal had ascertained from the applicant a comprehensive picture of the information relevant to that application, the Tribunal informed the applicant, in effect, that the decision under review could not succeed.
The applicant brought to the attention of the Tribunal clippings from newspapers in September and October 1990 which spoke of a new government plan for illegal residents. The applicant said that he considered he should be allowed to remain in Australia on compassionate grounds under the "amnesty programme" referred to in those clippings. The Tribunal identified the clippings as referring to reg.131A which in relevant parts reads:
"December 1989 (temporary) entry permit
131A (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;
..."
The applicant appeared to meet the requirements of criteria in paras.(a), (b) and (c). Sub-paragraphs (i) to (iv) of para.131A(1)(d) clearly could not apply to the applicant, but sub.para.(v) could apply if the refusal of an EETEP "would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident". The Tribunal drew the provisions of reg.131A to the attention of the applicant and to Mr Singh. The Tribunal 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."
The Tribunal then said it intended to give the applicant and Mr Singh the opportunity to discuss the matter and to this end would adjourn for about five minutes. After the adjournment the Tribunal resumed the proceedings saying:
"Now, Mr Roser and Mr Singh, we gave you an opportunity to consider the new provisions which were introduced in December - took effect in December of 1990, just a couple of months ago, and I will repeat: in order for you to now have an opportunity to make an application under those new provisions, you basically need to convince us that there is a real possibility of you having some solid grounds under that heading of compassionate grounds and circumstances. Do you want to speak to us about that?"
Then followed a lengthy discussion in which Mr Singh played a major part. He described himself as the applicant's "cousin-in-law". Mr Singh conducts a crash repair business in the suburbs of Adelaide, and also owns a service station which, at the time, was leased, although he contemplated resuming possession and involving the applicant in the running of the service station. The applicant had been in South Australia since 1988, regularly employed as a shift worker at Actil. Mr Singh said that when the applicant was not working at Actil he assisted Mr Singh in the course of his businesses, doing such things as making deliveries and pick-ups, going to the bank, and minding his office. This work was done voluntarily by the applicant and no remuneration was paid.
Mr Singh said that he had been involved in a sporting accident in December 1990 in which he suffered an eye injury which, for the time being at least, had caused a loss of sight in his right eye. He had been advised by his doctor that it would be safer if he did not drive for the time being, and the applicant, when he was available, was driving for him.
A Member of the Tribunal asked Mr Singh:
"What would you do if Mr Roser wasn't here and you still had your eye problem? Say Mr Roster (sic) wasn't here, he was in Sydney. How would you get around?"
Mr Singh replied:
"I would probably have to get a baby-sitter and get my wife in."
Tribunal:
"What about taxis, public transport, that sort of thing."
Mr Singh:
"I haven't got the time for public transport...I have got a business to run."
Tribunal:
"Taxis, hire service, that sort of thing?"
Mr Singh:
"Well, it costs a lot of money. If I could afford it, yes...(inaudible)...".
The Tribunal was invited by the applicant and Mr Singh to act on this information under sub.s.121(2), and to find that the applicant could make another application for an entry permit on the ground that the refusal to grant the permit would cause "extreme hardship or irreparable prejudice" to Mr Singh who, it seems, was either an Australian citizen or an Australian permanent resident.
At the conclusion of the hearing the Tribunal offered Mr Singh the opportunity to produce medical evidence as to his eye condition. A few days later a report from an eye surgeon was delivered to the Tribunal confirming a serious right eye injury resulting in no useful vision in that eye. The prognosis was poor. The surgeon confirmed that in February 1991 Mr Singh was having difficulty in driving his private motor car because of the restricted visual field and lack of binocular vision and "for his safety and that of others, I have advised him to let somebody else drive his car until he is confident to drive himself..."
The statement by the Tribunal to the applicant and Mr Singh that it was necessary to show "a real possibility, not something fanciful but a real possibility" that grounds exist for making another application reflects the interpretation placed on sub.s.121(2) by the Tribunal in Re Mah, a decision given in Adelaide on 19 September 1990. In the reasons for decision in that matter prepared by Senior Member Mr M. Radin, with whom Members Ms M. Lindsay and Ms J. Mercer agreed, the Tribunal said at pp 10 and 11:
"What therefore should be the most sensible approach to defining in particular the terms 'appear' and 'might have grounds' so as to determine when to bring subsection 121(2) into operation? Certainly, it would not be necessary for the Tribunal to satisfy itself that, were the applicant to apply for the further or different class of entry permit, that he or she would succeed. This of course is a matter for the primary decision maker alone, that is, whether or not the criteria governing the grant of the further or different class of entry permit have been satisfied. On the other hand, it must certainly appear to the Tribunal that there indeed might be grounds for a further application, rather than there being a mere fanciful possibility of grounds or in other words, mere conjecture. The most desirable approach therefore for the Tribunal to take is that on the facts before it, it must appear to be a real, as distinct from a fanciful possibility that the applicant has grounds for a further application. In the case of O'Brien v Repatriation Commission
(1984) 53 ALR 477 at 503, Keely and Fitzgerald JJ. discussed the distinction between 'real' and 'fanciful':-
'...is not (intended) to import a requirement of a particular degree of possibility but to emphasize that, in the particular context, a possibility cannot be created by a mere flight of the imagination; the possibility that will suffice must be one which is 'real' only in the sense that it is not merely 'fanciful'.' A real as distinct from fanciful possibility is then sufficient to satisfy the criteria of 'appearing to the Tribunal that the applicant might have grounds'; certainly it does not go as far as requiring the Tribunal to be satisfied that there are grounds. Having said this however, it must certainly be taken that it must appear to the Tribunal that the applicant does at least fit the basic criteria for the grant of a relevant entry permit. Again, this does not imply that the Tribunal must of itself be satisfied that the applicant will meet the requirements for the grant of the further entry permit."
I respectfully agree with those observations. In context, the word "might" is used to connote a prediction, as expressing a possibility. As the Tribunal in Re Mah points out, sub.s.121(2) does not require the Tribunal to be satisfied on the merits that the applicant does meet prescribed criteria for another class of entry permit. However, to give sensible operation to the intent of sub.s.121(2), it must appear to the Tribunal that the circumstances of the applicant warrant consideration of an application made on other grounds. A test which requires that there be a real possibility that the applicant has grounds for making another application achieves this end.
To determine whether a real possibility is disclosed by, or in the language of the sub-section, "appears" from, information before the Tribunal, it is not the function of the Tribunal to decide questions of credibility or to weigh evidence. Considerations of that kind go to the merits of an application. If the information made known to the Tribunal is credible in the sense that it is capable of being believed, the Tribunal should ask whether, assuming the assertions of fact made by the applicant, and by others who have given information to the Tribunal, are correct, there is a real possibility that other criteria could be met if another application were made. If so, then the Tribunal must take the steps required by paras.121(2)(a) and (b). I also agree with the following observation made by the Tribunal in Re Mah at p 11:
"However, in summary, it appears to the Tribunal that there is a distinction, and a quite clear distinction at that, between the case where on the one hand an applicant clearly does not satisfy the basic criteria for the alternative class, and on the other hand where the matter of the grant is an issue to be determined by the decision maker, such as for example, in relation to a class where an exercise of judgement is called for on the part of the decision maker."
Where a criterion for eligibility requires an exercise of judgment to be made in the circumstances of the particular case, that is, an evaluative judgment dependent on fact and degree, the judgment is one to be made on a further application, and in the light of whatever information is placed before the decision-maker in support of that application.
Counsel for the applicant accepts the correctness of the test of "real possibility" adopted by the Tribunal. However it is submitted that the Tribunal fell into error in the application of that test, and in the procedure which the Tribunal followed.
First it is contended that, at the point in the hearing when the Tribunal adjourned for about five minutes, it should have adjourned the proceedings pursuant to para.121(2)(b) to enable the applicant to make a fresh application which could be considered on its merits by a primary decision-maker. This alleged error on the part of the Tribunal leads into the grounds of appeal which allege failure to accord natural justice to the applicant. It is submitted that in any event a five minute adjournment was quite inadequate to enable the applicant to marshal together information necessary to demonstrate grounds for making another application for an entry permit.
The obligations imposed by sub.s.121(2) require that "where, during the review, it appears to the review authority that the applicant might have grounds for making another application..." the review authority shall (a) notify the applicant accordingly and (b) adjourn the review. The purpose for the adjournment is plainly to enable the applicant to make a fresh application. What is to be notified to the applicant is that he might have grounds for making another application. The obligation to notify arises only when and if it so "appears" to the review authority. The sub-section, 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. On the other hand, the sub-section is to be read in the knowledge that the complex provisions of the Act and regulations are likely to be unknown to many applicants for entry permits. The sub-section must be applied in a reasonable and realistic way and interpreted accordingly.
Where the Tribunal in exercise of its duty under sub.s.121(2) takes the steps directed by paras.(a) and (b) important consequences follow. Those steps bring the provisions of sub.ss.121(3) and (4) into operation. On the one hand the applicant is entitled to make and pursue another application for an entry permit based on different criteria, but on the other hand after the expiration of 10 days sub.s.36(1) applies to the applicant so as to severely restrict the applicant's right to make any other application for an entry permit. Sub-section 36(1) reads:
"36.(1) A person to whom this section applies because of section 121 is not entitled to make any application for an entry permit while he or she remains in Australia unless:
(a) there has been a prescribed change in the person's circumstances since the end of the period of 10 working days mentioned in subsections 121(3) and (4); and
(b) no deportation order has been made in respect of the applicant under section 59."
The time limit of 10 days is a comparatively short one. It is one which assumes, in my view, that when the Tribunal notifies an applicant under sub.s.121(2) that there might be grounds for making another application, those grounds will have been sufficiently identified by the Tribunal to enable it to direct the applicant, as part of its notification, to the relevant criteria to enable the other application to be made without delay.
It follows, in my view, that sub.s.121(2) should be interpreted so as to allow the Tribunal, where a suggestion arises in the course of a review being conducted by it, that there might be possible grounds on which another application could be made, to explore that suggestion before the obligation to adjourn the review must be exercised. In the present case the Tribunal did not fall into error when it resumed questioning the applicant and Mr Singh after the short adjournment.
I consider the contention that there was a denial of a reasonable opportunity to respond to the enquiry made by the Tribunal is without substance. The Tribunal fully and fairly drew the provisions of reg.131A to the attention of the applicant and Mr Singh. No suggestion is made that the applicant and Mr Singh did not understand the import of the regulation, and the interchanges which followed between them and the Tribunal clearly indicate that there was no misunderstanding. If the applicant had any real basis for thinking that he might meet the criteria under reg.131A, the short adjournment given to him should have been ample to enable him to bring it to mind. It was not necessary for the applicant to produce all the evidence which might be available to support an application made on other grounds. As it was, a case of alleged hardship or prejudice was articulated on the applicant's behalf. No request for further time was made. Some days later the medical report from the eye specialist was presented. Further information could have been provided at that time or in the meantime, but none was. All that was needed to be placed before the Tribunal was an outline of the facts which might bring the applicant within the criteria. With the help extended to them by the Tribunal, the applicant and Mr Singh, seem to have had no difficulty in providing that outline. Although the applicant now complains that he was denied an adequate opportunity to provide information, no attempt has been made on the hearing of the appeal to prove the existence of other information which could have been made available had a longer adjournment been granted. I detect nothing which was unfair to the applicant in the procedure which was followed. On the contrary the Tribunal appears to have gone out of its way to assist the applicant and to ensure that nothing was overlooked which could have been favourable to him.
It is submitted that the Tribunal fell into error in the application of the "real possibility" test by embarking on an evaluation of the merits of the case which the applicant would present if he were to make an application asserting eligibility under reg.131A. It is submitted that if the Tribunal had confined itself, as it should have done, to deciding whether it appeared that the applicant might have grounds for making another application, the information provided by the applicant and Mr Singh required the Tribunal to give an affirmative answer.
There are passages in the Tribunal's reasons for decision which, if read in isolation, suggest that the Tribunal may have embarked on a consideration of the likely merits of an application under reg.131A. I have earlier referred to the Tribunal's conclusion that the applicant "does not meet the criteria for another class of EETEP". Earlier in the reasons the Tribunal referred to evidence given by Mr Singh and said:
"Therefore on the evidence before it, the principal does not satisfy the criteria set out in the regulations and the Tribunal does not believe that its 'refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident'."
The function of the Tribunal under sub.s.121(2) is not to determine if the applicant does or does not meet the relevant criteria, but to determine if there is or is not a real possibility that the applicant could meet those criteria.
However, it is a serious mistake to take passages from the reasons for decision out of context and subject them to close analysis with "an eye keenly attuned to the perception of error": see Politis v. Federal Commissioner of Taxation (1988) 88 ATC 5029 at 5032, where Lockhart J. went on to say:
"...when this Court hears appeals from administrative tribunals - which are the bodies entrusted by Parliament with the task of reviewing decisions of a particular administrative character - the Court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole."
When the reasons for decision are read as a whole I am satisfied that the Tribunal did not fall into the error alleged. The Tribunal referred to Re Mah and said:
"That case indicated that if the Tribunal felt on the facts before it that there was a real as opposed to a fanciful possibility that the applicant had grounds for a further application under section 121 of the Act, then the matter should be adjourned accordingly to enable the fresh application to be made. However, if an applicant clearly does not satisfy the basic criteria for an entry permit of the same or a different class, then the Tribunal is not required to consider the matter further and it exhausts its obligations under section 121."
In that passage the Tribunal correctly stated the function it was required to perform. The Tribunal went on to refer to the evidence of Mr Singh, which it accepted at face value, and, in substance, to express the conclusion that the adverse impact on Mr Singh of a refusal to grant an entry permit to the applicant could not meet the criteria of reg.131A.
In my view that conclusion was clearly correct. As a matter of law, on the information provided by the applicant and Mr Singh, no real possibility could "appear" that Mr Singh would suffer "extreme hardship or irreparable prejudice". As the Tribunal noted by reference to an earlier decision of the Tribunal in Re Jackson (decision 090/00124, dated 17 December 1990) mere hardship or prejudice to another Australian citizen or Australian permanent resident is not enough. There must be a very high degree of hardship or prejudice. Whilst the decision in a particular case as to whether hardship or prejudice is "extreme" or "irreparable" involves an exercise of judgment, there will be cases of alleged hardship or prejudice which are so clearly lacking in degree as to fall well short of the criteria. This was so in the present instance.
Counsel for the respondent raises in this Court a further point on the evidence of Mr Singh which was not noticed by the Tribunal. The criteria for eligibility prescribed in reg.131A require that:
"(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;
..."
The compassionate ground answering the description prescribed in para.(v) must exist on 15 October 1990 and continuously thereafter until the Minister makes a decision. The allegation of hardship or prejudice to Mr Singh is substantially based on his needs for assistance arising from his eye injury. That injury occurred in December 1990. The state of hardship or prejudice alleged did not exist on 15 October 1990. Absent the matters of hardship or prejudice alleged to arise from the effects of the eye injury the hardship or prejudice otherwise alleged is at most of a minor degree.
Counsel for the applicant pressed with vigour an argument that reg.131A should be construed so as to require only that there be a ground of compassion at 15 October 1990, with the effect of "extreme hardship or irreparable prejudice" following some time later. I am unable to read reg.131A in this way. I consider it is plain that para.(v) is describing a composite situation which must exist at 15 October 1990 and thereafter until a decision is made.
In my opinion this appeal should be dismissed.
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