Singh, Palwinder v The Minister for Immigration & Ethnic Affairs
[1996] FCA 400
•7 MAY 1996
CATCHWORDS
MIGRATION - appellant seeking Class 812 (December 1989 (permanent)) entry permit - appeal from a single judge dismissing an application by the appellant for a review of a decision of the Immigration Review Tribunal - nature of appeal where single judge exercising jurisdiction pursuant to s476(1) of Migration Act 1958 (Cth) - whether there was evidence to support Tribunal finding that appellant not a "special need relative" - whether there was evidence to support Tribunal finding that grant of entry permit not justified on "compassionate" grounds - not an appropriate case for the consideration by this Court of the trial judge's analysis of the meaning of the term "prejudice".
Migration Act 1958 (Cth) s 476
Migration (1993) Regulations reg 1.3 and Sch 2
Migration Reform (Transitional Provisions) Regulations reg 23
No SG 17 of 1996
PALWINDER SINGH v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and IMMIGRATION REVIEW TRIBUNAL
Beaumont, Spender and Branson JJ
Adelaide
7 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 17 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
PALWINDER SINGH
Appellant
- and -
THE MINISTER FOR
IMMIGRATION AND ETHNIC
AFFAIRS and IMMIGRATION
REVIEW TRIBUNAL
Respondents
MINUTES OF ORDER
CORAM: BEAUMONT, SPENDER and BRANSON JJ
PLACE: ADELAIDE
DATE: 7 MAY 1996
THE COURT ORDERS THAT:
The appeal is dismissed.
The appellant is to pay the costs of the respondents.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 17 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
PALWINDER SINGH
Appellant
- and -
THE MINISTER FOR
IMMIGRATION AND ETHNIC
AFFAIRS and IMMIGRATION
REVIEW TRIBUNAL
Respondents
REASONS FOR JUDGMENT
CORAM: BEAUMONT, SPENDER and BRANSON JJ
PLACE: ADELAIDE
DATE: 7 MAY 1996
BEAUMONT J: I agree with Branson J.
I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justice Beaumont.
Associate:
Dated:
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 17 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
PALWINDER SINGH
Appellant
- and -
THE MINISTER FOR
IMMIGRATION AND ETHNIC
AFFAIRS and IMMIGRATION
REVIEW TRIBUNAL
Respondents
REASONS FOR JUDGMENT
CORAM: BEAUMONT, SPENDER and BRANSON JJ
PLACE: ADELAIDE
DATE: 7 MAY 1996
SPENDER J: I agree with Branson J.
I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justice Spender.
Associate:
Dated:
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 17 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
PALWINDER SINGH
Appellant
- and -
THE MINISTER FOR
IMMIGRATION AND ETHNIC
AFFAIRS and IMMIGRATION
REVIEW TRIBUNAL
Respondents
REASONS FOR JUDGMENT
CORAM: BEAUMONT, SPENDER and BRANSON JJ
PLACE: ADELAIDE
DATE: 7 MAY 1996
BRANSON J: This is an appeal from an order of a judge of this Court dismissing an application by the appellant for review of a judicially-reviewable decision under the Migration Act 1958 (Cth) ("the Act"). The judicially-reviewable decision in question was a decision of the Immigration Review Tribunal ("the Tribunal") made on 31 March 1995. By such decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Ethnic Affairs not to grant a class 812 (December 1989 (permanent)) entry permit to the
appellant.
The parties to this appeal accept that the jurisdiction exercised by the learned trial judge on the application for review of the decision of the Tribunal was a jurisdiction coming from s476(1) of the Act. Section 476(1) of the Act prescribes the following as the only grounds upon which an application for review by the Federal Court of a judicially-reviewable decision can be made:-
"(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;
(b)that the person who purported to make the decision did not have jurisdiction to make the decision;
(c)that the decision was not authorised by this Act or the regulations;
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
(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;
(f)that the decision was induced or affected by fraud or by actual bias;
(g)that there was no evidence or other material to justify the making of the decision."
The notice of appeal in this matter has not been drawn in a way which gives proper recognition to the nature of the jurisdiction exercised by the learned trial judge.
The first ground of appeal is that the "Learned Judge erred in law in finding that the Appellant was not a special need relative within the meaning of Regulation 1.3 and Part 812 of Schedule 2 of the Migration (1993) Regulations made pursuant to the Migration Act 1958". The particulars provided of such ground of appeal are as follows:-
"The Appellant states that there was no evidence or other material to justify the finding of following facts, alternatively such finding of facts was not reasonably open on the evidence:-
The medical report of Dr Sidhu dated the 28 February 1995 does not assert an inability to carry out normal farming activities in the period from 15 October 1990 to the unspecified dated in 1991.
The Tribunal was justified in ignoring medical certificate of Dr Sidhu dated the 20 July 1994.
(iii)The medical reports of Dr Sidhu do not establish a need for physical assistance by Mr Pangly in the operation of the farm from October 1990 to the happening of the recurrence sometime in 1991 indeed they indicate the contrary picture.
The evidence of work activities of the applicant in the period up to 30 June 1993, the last date covered by the tax returns provided to the Tribunal, provide further material that justifies the conclusion that the need for assistance by Mr Pangly, which he asserts was being met by the applicant, was not a need that was either substantial or continuing as the applicant was working in other jobs for substantial periods of time.
Statements by him in the application for the Class 812 entry permit, and inquiries by officers of the Department of Immigration and Ethnic Affairs, suggested that the applicant had been away from Renmark for lengthy periods in 1991 and 1992, visiting relatives in Melbourne and working. This material provides further justification for the Tribunal's conclusion that the applicant had not established that he came within the criteria specified in the definition.
When the extent of the applicant's earnings and the duration of the times when he was working elsewhere are considered that material justified the conclusion that the applicant was not able and willing to provide substantial and continuing service continuously from 15 October 1990."
The reasons for judgment of the learned trial judge make it plain that he did not make a finding that the appellant was not a special need relative within the meaning of the Migration (1993) Regulations. His Honour explained that at p16:-
"the relevant inquiry which this Court is required to undertake under s476(1)(g) is whether 'there was no evidence or other material to justify the making of the decision,' that is to justify the two critical findings [of the Tribunal]."
The two critical findings referred to by his Honour are identified below. His Honour found that there was evidence which justified each such finding.
To obtain the entry permit which he sought, the appellant was required to satisfy the criteria specified in Part 812 of the Second Schedule to the Migration (1993) Regulations. So far as such criteria were relevant to the case of the appellant they required either:-
(a)that "on 15 October 1990 and continuously since that date, the [appellant] was ... a special need relative ... of a settled Australian citizen or of a settled Australian permanent resident" (cl.812.723(5)(c)); or
(b)that "there was, on 15 October 1990, any compassionate ground ... for the grant to the [appellant] of any 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 ... the compassionate ground continues to exist." (cl.812.723(6)).
The first ground of appeal before this Court relates to paragraph (a) above, the "special need relative" criterion.
Regulation 1.3 of the Migration (1993) Regulations contains the following definition of "special need relative":-
""special need relative", in relation to an Australian citizen usually resident in Australia or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to provide substantial and continuing assistance to the citizens or resident if:
(a)the citizen or resident has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b)the assistance:
(i)cannot reasonably be obtained from any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; and
(ii)cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia."
So far as the special need relative criterion is concerned, the appellant needed to establish before the Tribunal that he had been such a relative of a settled Australian citizen or of a settled Australian permanent resident "on 15 October 1990 and continuously since that date". As the learned trial judge pointed out, in the circumstances of this case, this involved two critical issues. First, whether the relevant Australian citizen or resident on 15 October 1990 and continuously thereafter has had a permanent and long term need for assistance because of disability or other serious circumstances affecting him or her. Secondly, whether the appellant on 15 October 1990 and continuously thereafter has been willing and able to provide substantial and continuing assistance to such Australian citizen or resident.
As the passage from his Honour's reasons set out above demonstrates, the ground of review invoked before the learned trial judge with respect to the finding of the Tribunal that the appellant did not satisfy the special need relative criterion was that provided for by s476(1)(g) of the Act, namely "that there was no evidence or other material to justify the making of the decision". It should be noted that s476(1)(g) of the Act is qualified by s476(4) of the Act which provides as follows:-
"(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
The Australian citizen or resident identified by the appellant as the person to whom he is willing and able to provide substantial and continuing assistance was his brother-in-law, Mr Pangly, or possibly his sister, Mrs Pangly. Mr and Mrs Pangly are Australian citizens who reside in Renmark, South Australia. They own a 44 acre fruit farm which they operate in partnership. There was medical evidence before the Tribunal which indicated that Mr Pangly suffered severe back-ache in January 1990 which restricted his ability to work on the fruit farm, and that his back problems recurred in 1991, 1992 and 1994. That is, such evidence was capable of being understood as revealing that Mr Pangly did not suffer back problems "on 15 October 1990 and continuously since that date".
There was also evidence before the Tribunal that indicated that between 15 October 1990 and the date of the determination of the Tribunal the appellant had lived for significant periods of time at a distance from Mr and Mrs Pangly. At such distance he would, of course, have been unable to assist them with the physical work of the fruit farm. Amongst such evidence were documents evidencing his employment history, affidavit evidence to the effect that he lived with Mr and Mrs Pangly "from time to time" and statements of the appellant which suggested that he had lived away from them for lengthy periods during 1991 and 1992.
The finding of the learned trial judge that there was evidence to justify the making by the Tribunal of the two findings which his Honour characterised as critical was plainly correct. Ground one of the notice of appeal cannot be sustained.
The second ground of appeal relied upon is expressed as follows:-
"The Learned Judge erred in law in finding that Mr and Mrs Pangly would not suffer extreme hardship and irreparable prejudice within the meaning of Part 812 of Schedule 2 of the Migration Act (1993) Regulation made pursuant to the Migration Act 1958 if the Appellant's application for Class 812 (December 1989) Permanent Entry Permit is refused.
Particulars
The Appellant states that there was no evidence or other material to justify the finding of following facts, alternatively such findings of facts was not reasonably open on the evidence:-
Had the grant of a permit been refused on 15 October 1990, or at many other times thereafter, there would not have been any grounds for concluding, at that time, that the refusal would have any immediate or future effect on the operation of the partnership ... .
(ii)In the present case the Tribunal was plainly correct to conclude that the emotional effects of a refusal to grant an entry permit alleged by Mrs Pangly did not amount to "extreme hardship"."
This ground of appeal relates to the criteria for the grant of the entry permit sought by the appellant specified by cl.812.723(6) of Part 812 of the Second Schedule to the Migration (1993) Regulations, the relevant provisions of which are quoted above.
The Australian citizen identified by the appellant to be the person who would be caused extreme hardship or irreparable prejudice by any refusal to grant him an entry permit was again Mr Pangly or Mrs Pangly, or perhaps both of them. The case of the appellant in this regard was put to the Tribunal on two bases. First, that extreme hardship would result to one or other or both of Mr and Mrs Pangly if he were unable to assist with the physical work on their fruit farm. Secondly, that Mrs Pangly, who had raised the appellant from the time that he was 3 years old until he was 12 years old, would suffer emotionally if the appellant were required to return to India, and that such emotional suffering would amount to extreme hardship or irreparable prejudice to her.
As to the first of these grounds, the Tribunal did not accept Mr Pangly's claim that he needed full-time help on the farm and that he could not afford to pay for such help as he in fact did need. There was plainly evidence before the Tribunal to justify the above findings. There was evidence that Mr and Mrs Pangly had not insignificant assets and that they had been able to pay wages to obtain help on the fruit farm. The finding of the Tribunal that neither Mr nor Mrs Pangly would suffer extreme hardship if the appellant were unable to assist with the physical work on their fruit-farm was supported by evidence before the Tribunal.
His Honour in his reasons for judgment rightly pointed out that the approach of the Tribunal on this issue had been unduly favourable to the appellant in that the Tribunal had not considered whether a refusal of the permit sought by the appellant on 15 October 1990, or at all times thereafter, would have caused serious hardship so far as the operation of the fruit farm was concerned. The medical evidence accepted by the Tribunal indicated to the contrary.
This ground of appeal cannot succeed so far as the claim of extreme hardship to Mr or Mrs Pangly resulting from a loss of the appellant's labour on the fruit farm is concerned.
So far as this ground of appeal relates to the contention of the appellant that Mrs Pangly would experience emotional suffering amounting to extreme hardship or irreparable prejudice to her should the appellant be required to return to India, there was evidence before the Tribunal to justify its decision that any emotional suffering experienced by Mrs Pangly on this ground would not be of sufficient degree to meet the relevant criteria. In the circumstances this is not an appropriate case for the consideration by this Court of the learned trial judge's analysis of the meaning of the term "prejudice" in the context of the relevant regulation.
The third ground of appeal relied upon is as follows:-
"The Learned Judge erred in law in not holding that Mr and Mrs Pangly would suffer irreparable prejudice if the Appellant's application or grant of a Class 812 (December 1989) (Permanent) Entry Permit is refused on the grounds that help of the kind given by the Appellant cannot reasonably be obtained from any other of their relatives who are Australian Citizens or permanent residents of Australia."
In view of my findings on the other two grounds of appeal, this ground does not require to be considered.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Branson.
Associate:
Dated:
Counsel for the appellant : Mr G Patel
Solicitors for the appellant : Patel & Co
Counsel for the respondent : Ms S Maharaj
Solicitors for the respondent : Australian Government
Solicitor
Hearing Date : 7 May 1996
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