Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 3

Re: MANNIE SACHAROWITZ
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G114 of 1991
FED No. 3
Administrative Law
(1992) 33 FCR 480

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Administrative Law - judicial review - immigration - refusal of grant of resident status - construction of s. 6A(1)(b) and (e) - whether policy applied blindly - validity of policy - whether all factors relevant to strong compassionate or humanitarian grounds were considered.

Immigration - ditto.

Migration Act 1958, s. 6A

Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (Hill J., unreported, 4 December 1991)

Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169

Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480

Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177

HEARING

SYDNEY

#DATE 3:1:1992

Counsel for the Applicant: Mr N.J. Williams

Solicitors for the Applicant: Messrs Elsworthy Jones

Counsel for the Respondent: Mr D.M. Yates

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The decision under review be set aside.

The applicant's application for reconsideration be remitted for determination according to law.

The respondent pay the applicant's costs of and incidental to the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application, brought under the Administrative Decisions (Judicial Review) Act 1977, to review a decision made on or about 6 December 1990 to maintain, upon reconsideration, a decision refusing to grant resident status in Australia to the applicant and his wife. The decision was made on the recommendation of an Immigration Review Panel. In challenging it, the applicant invokes the jurisdiction of the court under s. 39B of the Judiciary Act 1903, as well as under the Judicial Review Act.

1. Promptly after the decision sought to be reviewed, the applicant's solicitors requested a statement of reasons. A reply was forwarded to them, dated 21 February 1991, which referred to "the refusal decision by Grant of Resident Status section of 19 July 1990, letters to and from Neil Hitchcock and Associates Pty Ltd and the Department's letter of 6 December 1990 with enclosed papers". It was stated:
   

"These letters set out in full the findings of fact and the reasons for the refusal of the applications. The evidence upon which those findings of fact were based is in the file referred to above.

Accordingly, under the provision of Section 13(11) of the Administrative Decisions (Judicial Review) Act, it is not necessary to supply a Statement of Reasons, which would not differ from that already supplied."

The applicant therefore referred to the documents mentioned in this letter as containing the Minister's reasons, which are claimed to involve errors of law.

1. Before turning to the impugned reasons, it is appropriate to state briefly the nature of the applications with which they dealt. The applicant and his wife Rachel, who are South African citizens, are the parents of three sons. Two live in South Africa, but the youngest son, David, migrated to Australia with his family in 1986, and he became an Australian citizen on 13 July 1988. David and his wife have three children aged about ten, eight and five. The applicant and his wife have spent most of their time in Australia with their son David and his family since November 1987. They have come here on visitors' visas for extended holidays in order to do so. On 5 July 1989, when their last extended temporary entry permits were still current, but about to expire, they made their applications for resident status. At that time, Mrs Rachel Sacharowitz qualified as an aged parent within the meaning of s. 6A(4) of the Migration Act 1958, and thus within the meaning of s. 6A(1)(b). By the time the application came to be dealt with, on 19 July 1990, the applicant also qualified as an aged parent. Both ss. 6A(1)(b) and 6A(1)(e) were relied on. Their formal application for resident status was supported by their son.

2. The applications for resident status were put on the basis: "We would be very distressed if we now had to be separated from our son, daughter-in-law and three grandchildren. ... Our Australian family would also be very distressed if we were separated from them." Although the applicant and his wife have two other sons (twins) living in South Africa, they are more than five years older than David Sacharowitz, and they "do not have (with the applicant and his wife) the strong ties evident between (the applicant and his wife) and the Australian family". This assertion can hardly be doubted, in view of the long separation from South Africa and close association with David, his wife and the grandchildren. It was claimed, on behalf of the applicant and his wife, that they had "a strong emotional bond" with their son, daughter-in-law and grandchildren, so that Mrs Rachel Sacharowitz, in particular, became "distraught" upon separation from them. They have known their daughter-in-law since she was 15 years old, and regard her as a daughter. David Sacharowitz has sworn an affidavit in support of the present application in which he deposes that, "as the youngest son I have always been very close to my parents as shown by their wish to uproot and live in a new country (at) this late stage in their lives to be with me and my family". He refers to their loving relationship with his wife over a period of 17 years, and adds:
   

"My three children are extremely close to my parents and I believe to wrench this relationship apart would have extremely detrimental effects on all members of my family, most importantly on my children, the oldest of whom is ten years of age and experienced significant emotional challenges when we emigrated due to instability and insecurity."

1. Although the application for resident status contained general statements about the situation, this particular affidavit was not, of course, before the decision-makers. But there was a request to be permitted to appear before the Panel personally to present further details, and if that had been acceded to, the material would have been available. It is difficult to understand how the closeness of a human relationship can be evaluated without an interview, and certainly statements that a family tie is very close cannot rationally be rejected in the absence of an opportunity to evaluate them. There is nothing improbable about such a statement, in itself. Indeed, the particular statement here in question, about the affection of these aged parents being peculiarly concentrated on their youngest son, echoes what is perhaps the earliest known account of a migrant son bringing an aged parent to his new country, the account in Genesis of Joseph bringing Jacob to Egypt. His father "loved Joseph more than all his children, because he was the son of his old age": Genesis 37:3. No one sensitive to human emotions can fail to understand Jacob's journey to Egypt, or Rachel Sacharowitz's desolation, being severed from her son and grandchildren.

2. The "refusal decision ... of 19 July 1990" did, in fact, contain a statement acknowledging "the strong emotional bond" here in question. The statement included the following:
   

"The applicants meet the legal preconditions for the grant of resident status under S6A(1)(b) of the Act in that they have now both met the Australian retirement age - 65 for males, 60 for females. Their application is supported by their son David Sacharowitz, an Australian citizen. Applicants are also required to meet policy requirements for the grant of resident status under S6A(1)(b) of the Migration Act, unless there are compelling reasons to waive normal policy requirements.

One of the policy requirements under this subsection is that applicants should have more of their children lawfully permanently resident in Australia than in any single other country or at least an equal number of children lawfully permanently resident in Australia as overseas. The applicants have a total of 3 children, two of whom reside in South Africa. The policy requirement regarding the balance of family has not been met.

I have no reason to doubt that there is a strong emotional bond between the applicants and their son and his family in Australia nor that the applicants were distraught when their son migrated to Australia. Further, I have no reason to doubt that the applicants are in good health and are able to support themselves. In order for normal policy requirements to be waived strong compassionate circumstances must exist. These circumstances must be significantly severe and burdensome. Simple inconvenience, discomfort or disadvantage either to themselves or to an Australian citizen or resident as a result of an applicant not being allowed to remain in Australia are not sufficient. Accordingly, the policy does not encompass claims which reflect an individual's wish to live in Australia where that wish essentially reflects an individual's perception that they will be better off in some way in Australia as opposed to their normal country of residence. ... I do not consider that these claims are strongly compassionate and that waiver of normal policy requirements applicable to other applicants assessed under the aged parent category is warranted. I have also no reason to doubt that the applicants have not undertaken employment in Australia. I am unable to accept this claim as a ground for approval of resident status when not undertaking employment is a condition of visitor entry to Australia. Further claims in relation to the application for resident status are that:

. the two children of the applicants remaining in South Africa do not have the strong ties evident between the parents and the Australian family

. the closeness of the ties between the applicants and the Australian family is clearly evidenced by the duration of their stay here as visitors

. there is no prospect of the two remaining children in South Africa seeking to migrate to Australia in the forseeable (sic) future.

I do not consider that the claims put forward are significantly severe and burdensome to warrant waiver of normal policy requirements. The claim that the two remaining children in South Africa will not seek to migrate to Australia in the forseeable (sic) future is not a relevant consideration as it is based on conjecture of a likely or unlikely future event. It is of course always open to the applicants to use the visit or (sic) entry facilities to see their child son (sic) and his family or alternatively, if their funds are sufficient, apply for temporary entry to Australia under the self supporting retiree category.

The applicants do not meet the requirements for approval as aged parents nor do I consider that there are strong compassionate circumstances for the grant of resident status in Australia. There are no other subsections of S6A under which the applicants are eligible for consideration. I have decided that the application is one for refusal."

1. The letter of 6 December 1990, referred to in the response to the request for reasons, is a quite formal letter which gave no grounds, but stated that a delegate of the Minister had studied the report of the Immigration Review Panel, and the other information available, and had accepted the Panel's recommendation. The only indication of any further grounds is to be found in the enclosed papers, which contain handwritten notes apparently emanating from the Immigration Review Panel. Those notes state:
   

"It is not disputed that the applicants fail to meet the requirements of (the) balance of family test ... . ... It has been requested that the applicants be assessed on compassionate grounds ... . It was also requested that the applicants be granted an interview. The case was assessed ... but was refused. No new facts have emerged which could be considered as grounds for reconsideration outside normal policy guidelines. It is appreciated that the applicants feel very close to their son and grandchildren here and that they would now prefer to remain in Australia. However, this situation existed before their arrival as visitors and it is expected that visitors abide by the conditions of their visa issue. It is open to the applicants to apply for entry as self-supporting retirees. Compassionate circumstances are not considered to be strong in this case. An interview would not assist."

1. The passages to which I have referred contain the reasons pointed to in response to the applicant's request for reasons. If they disclose errors of law, I think those errors are plainly attributable to the decision-maker: Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (Hill J., unreported, 4 December 1991).

2. It was common ground that this matter had to be determined in accordance with the provisions of s. 6A of the Migration Act 1958, and not under the provisions which would now apply to such a case. For the purposes of these decisions, the statutory provisions were to be found in s. 6A(1)(b) and (e), by which it was provided:
   

"An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say - . . .

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit; . . .

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

1. So far as para. (b) is concerned, there was in existence a statement of policy guidelines, both at the time of the original decision and at the time of its review, in the following terms:
   

"The following specific policy requirements apply in the assessment of applications from aged parents: . The application should be supported by an adult child who is an Australian citizen or resident; . The relative providing support should have been a permanent resident in Australia for at least two years; . (Here was set out a detailed provision about the obtaining of `an Assurance of Support from an Australian citizen or resident', although it was conceded `an Assurance of Support has no force or effect after the subject becomes an Australian citizen'.)

. An aged parent should have more of their (sic) children lawfully permanently resident in Australia than in any single other country; OR

. At least an equal number of their children lawfully permanently resident in Australia as overseas."

1. It will be appreciated that these policy guidelines, if valid, could not possibly be treated as general requirements of the application of s. 6A(1)(b), as distinct from mere guidelines. For the sole criterion laid down by the Act, in relation to an aged person referred to in that paragraph, is that he or she should be an "aged parent of an Australian citizen or of the holder of an entry permit". To take the first of the "guidelines", the aged parent does not have to have "an adult child", whether an Australian citizen or not. Indeed, it would be easy to imagine circumstances which, although not common, could not possibly have been intended by Parliament to be excluded from para. (b), which would fall outside this guideline. The other guidelines, too, contain conditions of which there is not a hint in para. (b).

2. The joint judgment of Fox and Franki JJ. in Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 194-195 contains the following statement, which has often been cited:
   

"The interface between policy and discretion in the exercise of statutory powers is a difficult one. ... No one test can be articulated for all cases.

Where the power given relates to the consideration of individual cases, it is not to be denied that the predominant aspect must be the consideration of the particular case. The merits of that case must be considered genuinely and realistically; there must always be a readiness to depart from policy. The policy does a disservice to those who have to measure it against the individual situation if it is expressed in dogmatic or mandatory terms.

The term `policy' is itself difficult of definition. What it does not include is a series of fairly precise requirements."

It is hardly necessary to point out that the "policy guidelines" here in question do purport to contain "a series of fairly precise requirements". To the extent that they do so, the law as declared by the Full Court in Howells demands that they be read down. Assuming, however, that they can be read as validly setting out matters of policy, the principles stated by Fox and Franki JJ. do not permit them to be applied as "requirements", only to be departed from where "there are compelling reasons to waive (them)". Nor was it in accordance with the law for the original decision-maker to say: "In order for normal policy requirements to be waived strong compassionate circumstances must exist. The circumstances must be significantly severe and burdensome. ..." That does not exhibit any "readiness to depart from policy", and it imposes a hurdle for an applicant to get over, of which the Act says nothing. (I appreciate that para. (e), referring to "strong compassionate or humanitarian grounds", was also relied on, but the comment I have quoted was made in the course of discussing the "policy requirements" for the application of para. (b); it was not made in relation to para. (e), as the almost immediately ensuing references to "the policy" - the only policy mentioned was that applicable to para. (b) - and "the aged parent category" emphasize.)

1. In Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480, a case involving another category of person mentioned in para. (b) of s. 6A, I referred (at 493) to what Fox and Franki JJ. had said in Howells, and also to the statement of Brennan J. in Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640-1, where his Honour said:
   

"A policy must be consistent with the statute. ... His (i.e. the Minister's) discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. ... There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power."

In Chumbairux (at 492) I said of para. (b):

"In unambiguous terms, this provision makes eligible for the issue of an entry permit the spouse of an Australian citizen. Eligibility is not confined to one kind of spouse."

Substituting the words "aged parent" for the word "spouse", this passage is directly applicable to the present case. After making some observations about the far-reaching implications of the role of "spouse" which the legislature chose for a criterion, and the range of relationships fundamental to the individual and to society which Parliament must have had in mind in doing so, observations which are almost equally applicable to the relationship expressed by the words "aged parent", I continued:

"It is of course well recognised that a general discretion, such as that conferred by s. 6A of the Migration Act may be guided in its exercise by some general policy. But as is stated in de Smith, Judicial Review of Administrative Action 4th ed., p 311: `A tribunal entrusted with a discretion must not, by the adoption of a fixed rule of policy, disable itself from exercising its discretion in individual cases.'"

1. In Eskaya v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217 at 222, Lee J. said:
   

"(A) statement of policy may not be applied in the same manner as a statutory list of disqualifying events without regard to the Act or the merits of the case. Normally, such statements of policy are intended to operate as guidelines under which a range of significant matters to be addressed by decision-makers is detailed and some indication is given as to the weight that may be attached to certain elements."

He set aside a decision which treated a policy as having a more compelling effect than this. In Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (Hill J., unreported, 12 December 1989), the statement of Gummow J. in Khan v Minister for Immigration and Ethnic Affairs (11 December 1987, unreported) was cited:

"(W)hat was required of the decision maker ... was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy".

Hill J., for himself, said:

"While policies are necessary to ensure some uniformity of action among delegated decision-makers, and should, as here, be openly proclaimed so that persons seeking an exercise of discretion know in advance the criteria that will generally be applied, they may not be slavishly followed so as to be a substitute for the exercise of discretion in the particular facts of a particular case."

1. In my opinion, the original decision-maker, in the present case, plainly did not act in accordance with these statements of the law. She took the policy to be a requirement from which departure could be justified only in the case of compelling reasons. How imperative the demand must be, as the decision-maker saw it, is best indicated by her own words, which denied that she could depart from the policy merely for close parental ties (although one would have thought close parental ties must have been the very factor Parliament had in mind in adopting the relevant part of para. (b)), but only in circumstances she described as "significantly severe and burdensome".

2. Not only did the delegate, on reconsideration of the decision, adopt the reasons of the original decision-maker; he also adopted the notes, to which I have referred, of the Immigration Review Panel. They contained the statement, with reference to the close relationship which the Panel clearly accepted was present in this case:
   

"However, this situation existed before their arrival as visitors and it is expected that visitors abide by the conditions of their visa issue. It is open to the applicants to apply for entry as self-supporting retirees."

This comment seems to echo a policy consideration frequently raised by the Department, its objection to "queue-jumping". But to appeal to this in support of the proposition that para. (b) of s. 6A(1) should not be applied, is to be involved in a further error of law. For the very point of s. 6A was to specify a limited set of cases to which the barrier against the making of an application for resident status after entry into Australia should not apply. It cannot be a general ground for rejecting the application of s. 6A(1)(b) that the applicants' position as aged parents, having close ties with their son in Australia, existed before their arrival on visitors' visas, and that it is open to them, after return to their country of origin, to apply for entry. Section 6A(1)(b) says they fall within an exceptional category of persons not barred by those considerations. If the negative language in which s. 6A is couched renders its precise effect at all obscure, the Court is entitled to take into account the explanatory memorandum which accompanied the Migration Amendment Bill (No. 2) 1980, by which the section was inserted into the Act. That explanatory memorandum contained the following:

"Clause 6: Conditions on which entry permits may be granted to immigrants after entry into Australia Clause 6 inserts a new section 6A into the Act which specifies the categories of immigrants who will in future be eligible to be granted permanent residence following their entry into Australia. (Emphasis added.) The new section 6A will prohibit the grant of permanent residence to an immigrant after his entry into Australia unless: . . .

(b) he is the spouse, unmarried child or aged parent of an Australian citizen or of a permanent resident; ... ."

This makes clear the intention to establish positive grounds of eligibility.

1. In Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177, it was held by the Full Court that an application of the "queue-jumping" policy to s. 6A, such as that made by the Immigration Review Panel in the present case, involves an error of law. Davies J. (with whom Evatt J. agreed) said (at 182-183):
   

"The reasons ... refer to a policy that `... persons abide by normal migration selection processes and do not queue- jump by entering or remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures'. Mr Owen said: `I considered that prohibited non-citizens should expect to face the prospect of deportation when located unless there are strong countervailing reasons to allow them to remain.' . . .

The result of the application of this policy was that the decision-makers anticipated that Mr Tang would return to Taiwan and there make application for entry to Australia. Mr Owen appears to have taken the view that, on such application being made, Mr Tang would be granted a permanent entry permit ... . Mr Owen said, in para. 16: `16 ... I considered that a temporary separation and the costs arising from return home to apply for migration in the normal manner were not mitigating circumstances to be accorded significant weight.' In my opinion, such a result and, indeed, the policy or practice that led to it, is inconsistent with the legislative policy enunciated in s. 6A of the Migration Act 1958 (Cth). The various paragraphs in s. 6A specifically distinguish between those cases in which the application for the entry permit ought not to be considered unless the applicant is the holder of a temporary entry permit, and therefore legally in Australia, and those cases in which the application for an entry permit ought to be considered notwithstanding that the applicant is a prohibited non-citizen. Paragraph (b) makes it plain that an entry permit may be granted to a person who is the spouse of an Australian citizen, notwithstanding that that person is not the holder of a temporary entry permit. ... By providing that an entry permit may be granted to a person who is the spouse of an Australian citizen, notwithstanding that he is not the holder of a permanent entry permit, ss. 6 and 6A of the Migration Act 1958 (Cth) necessarily imply that such a person may make application for an entry permit and that that application, once made, should be considered on its merits."

This passage applies, a fortiori, in the present case, in which valid temporary entry permits were still current when the applications were made. For this reason also, I think it must be held that the decision upon reconsideration of the applicant's application was vitiated by error of law.

1. In any case, neither the applicant nor his wife was an "aged parent" within the meaning of para. (b) at the time of their arrival in Australia. If the comment of the Immigration Review Panel means that the decision upon reconsideration was based on the alleged fact that the applicant could have applied outside Australia, before he came here, for an entry permit as an aged parent of an Australian citizen, then "that fact did not exist" within the meaning of s. 5(3)(b) of the Judicial Review Act.

2. The applicant and his wife, as I have said, also relied on para. (e), under which the criterion is whether "there are strong compassionate or humanitarian grounds for the grant of an entry permit to (an applicant)". Although their applications referred to several of the deepest of human attachments, that between parent and son and daughter-in-law, and that between grandparent and young grandchildren, and although the reasons of the original decision-maker (adopted by the Immigration Review Panel) accepted that these attachments constituted "a strong emotional bond" and that the applicants "were distraught when their son migrated to Australia", the original decision concluded, without explanation of the basis of such a conclusion, "nor do I consider that there are strong compassionate circumstances for the grant of resident status in Australia." The notes of the Immigration Review Panel likewise conclude, without explanation: "Compassionate circumstances are not considered to be strong in this case. An interview would not assist."

3. A bare conclusion is not a statement of reasons: cf. ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 203-205; Faulkner v Conwell (1989) 99 ALR 92; Soldatow v Australia Council (1991) 22 ALD 750; Dornan v Riordan (1990) 24 FCR 564. But, in this case, the comment made by the Immigration Review Panel raises a separate issue, which also brings the validity of its decision into question. The statement that an interview would not assist must mean that the circumstances, which, on any view, must excite feelings of compassion and humanity, fall so far below what could amount to strong compassionate or humanitarian grounds that no understanding of the emotional force and depth of the feelings involved, and no explanation, which an interview might afford, could elevate them to a level where they could possibly be held to be strong compassionate grounds. For if they could possibly be so regarded, the refusal of the Immigration Review Panel even to hear the applicant and his wife seems to me to be inexcusable. It was their duty to give the matter genuine consideration.

4. I find it impossible to accept that the Immigration Review Panel applied its mind to a correct understanding of the meaning, in law, of s. 6A(1)(e); and I think the proper conclusion is that it left out of account matters which it was bound to take into account. There is no trace in any of the reasons communicated to the applicant of any consideration of the impact of the decision upon three young children of an Australian citizen, Mr David Sacharowitz. (Cf. ARM Constructions (supra, at 205).) These young children have known the applicant and Rachel Sacharowitz virtually all their lives. To wrench apart their relationship with grandparents who are so close to their parents, as well as to them, must be seen as a very grave matter. It certainly would arouse feelings of compassion and humanity, of what Virgil called, in one of his most famous lines, "the tears of things".

5. Paragraph (e) is not concerned only with the feelings of an applicant. It is expressed in the broadest language, and embraces all effects which may reasonably be attributed to the separation and loss involved in the refusal of an entry permit. Hill J., as I respectfully think, expressed the matter well when he said in Surinakova (supra):
   

"It is obvious that in considering whether there are strong compassionate or humanitarian grounds regard must be had to the whole matrix of facts which would be relevant to the existence of such grounds. No one matter will necessarily be determinative and it may be necessary to consider together a whole series of matters which cumulatively reveal the existence of the necessary strong compassionate or humanitarian grounds."

His Honour referred to his own earlier decision in Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 12 December 1989), from which he cited a passage:

"The courts have not sought to create an all embracing test of what constitutes strong compassionate or humanitarian grounds; nor would such an exercise be either possible or desirable. The words are very broad. Compassion is an emotion akin to pity; it is felt when the circumstances of others excite our sympathy so that we suffer with them. Hence compassionate grounds will exist when the circumstances of an applicant are such as to enliven in the reasonable man his compassion. By humanitarian grounds are meant no doubt grounds the denial of which would be inhumane having regard to the ordinary views of mankind. The adjective `strong', involves as French J. pointed out in Damouni v Minister of State for Immigration, Local Government and Ethnic Affairs `a judgment that the relevant hardship be substantial'."

Hill J. went on in Surinakova to point out:

"Where the issue for determination by a decision-maker is whether there are strong compassionate or humanitarian grounds for the grant of an entry permit, the decision-maker does not have a discretion to determine whether or not to take into account a particular matter. The context of the decision which he is bound to make is not in its terms unconfined so that its scope is to be found in the subject-matter, scope and purpose of the statute itself. The decision-maker is required to make a finding on what is a question of fact, once the meaning of the collocation of words strong, compassionate and humanitarian grounds is understood ... . In making that decision, he is required to consider all relevant material which is placed before him giving, in the words of Gummow J. in Khan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 11 December 1987, at 11-12): `... proper, genuine and realistic consideration to the merits of the case.'"

1. In the present case, the total omission to mention such an important matter as the effect on the three young grandchildren, and the surprising nature of a decision that amounts to saying the circumstances could not amount to strong compassionate or humanitarian grounds, leads me to conclude that the position of the grandchildren was in fact left entirely out of account. I think it was a factor which was plainly relevant and required to be taken into account, as a matter of law.

2. For these reasons, the decision under review must be set aside, and the respondent must pay the applicant's costs.