Talakai, N. v Minister for Immigration, Local Government & Ethnic Affairs

Re: NGALUFANIFO TALAKAI; PAUL TALAKAI; DAVID TALAKAI; NATHAN TALAKAI; VAISA
TALAKAI; SIULI FAKAILOATONGA and SEINI FAKAILOATONGA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G184 of 1991
FED No. 813
Administrative Law
(1991) 25 ALD 717

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - Immigration - Decision to refuse application for permanent residence - Applicant assisting aged parents - Alleged special obligation of applicant under Tongan custom - Whether decision maker failed to take into account that obligation - Position of Australian-citizen children of applicant - Whether decison maker failed to take into account the effect upon them of refusal of the application.

Migration Act 1958, s.6A

Ngalufanifo Talakai and Ors v Minister for Immigration, Local Government and Ethnic Affairs

HEARING

SYDNEY

#DATE 13:12:1991

Counsel for the Applicant: L. Stapleton

Solicitors for the Applicant: Somerville and Co

Counsel for the Respondent: P. Roberts

Solicitors for the Respondent: Australian Government Solicitors

ORDER

The application be dismissed.

The applicants pay the costs of the respondent.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is a challenge to a decision of the delegate of the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, refusing an application for the grant of resident status in Australia. The application was made in reliance on s.6A(1)(e) of the Migration Act 1958, as it then stood. That section authorised the grant of entry permits to persons able to show strong compassionate or humanitarian grounds.

The applicants in this proceeding are seven in number. They consist of Ngalufanifo Talakai, her husband, Paula Talakai, three of their infant children, David Talakai, Nathan Talakai and Vaisa Talakai, and Mrs Talakai's parents, Siuli and Seini Fifita. Nathan and Vaisa are Australian citizens, having been born in this country; Nathan in 1981 during a temporary visit to Australia by his parents and Vaisa in 1986. The evidence discloses that Mr and Mrs Talakai have three children apart from the applicants. Two of them reside with an uncle in Tonga and one with Mrs Talakai's sister in Hawaii. In addition, although there is no evidence of the fact, I was informed from the bar table that Mr and Mrs Talakai have recently acquired a seventh child. This child was born in Australia but is not an Australian citizen, having been born after the commencement of the Australian Citizenship Amendment Act 1986: see s.10 of the Australian Citizenship Act 1948 as amended by that Act.
The application for resident status made to the Department of Immigration, Local Government and Ethnic Affairs was in the name of Ngalufanifo Talakai only. But the application referred extensively to the position of other members of the family and it is common ground that the Minister's delegate was entitled, perhaps bound, to take into account the situation of those other family members, at least to the extent to which that situation was disclosed to her. There is no dispute about the salient facts, so far as they emerge from the evidence. I will summarise them as shortly as possible.
Both Mr and Mrs Talakai were born in Tonga. The evidence does not reveal the date of their marriage but it appears that they had three sons, born respectively in 1975, 1977 and 1980, before visiting Australia for the first time in 1981. During that visit the applicant Nathan Talakai was born. Mr and Mrs Talakai thereafter returned to Tonga. In 1983 a daughter, Siuli Talakai, was born. This is the child who now lives with Mrs Talakai's sister in Hawaii.
In April 1984 Mrs Talakai's parents entered Australia on visitor's permits. Their son, Pasimati Fakailoatonga, already resided here, apparently with permanent resident status. In July 1984, Mr and Mrs Talakai also entered Australia on visitor's permits, accompanied apparently by David (born in 1980) and Nathan. They did not depart Australia at the expiration of their permits. Vaisa was born in July 1986. In January 1987, Mr and Mrs Fifita were granted resident status. The decision to grant resident status was made in response to an application which had been lodged in September 1984. Before that application was granted, Mr Fakailoatonga submitted to the Department a document entitled "Assurance of Support", in which he undertook, in effect, to indemnify the Australian government in respect of any funds expended in supporting his parents during the ten years following any grant of resident status.
Mrs Talakai's permanent residence application was supported by a letter written on her behalf by an immigration consultant. The letter was dated 2 May 1989. It made numerous points but only two need be mentioned. First, considerable emphasis was placed upon the position of Mrs Talakai's parents. The letter said:

"The applicant and her family first came to this country in response to a request from her parents for assistance. They had become extremely distressed at the behaviour of their son who had taken to drinking and violence and they had little hope in controlling his rages. One must have reference to the custom of families in Tonga to take responsibility for their own and not to allow their members to become a burden on others in order to comprehend the seriousness of this problem for the family involved.

Upon arrival the applicant's parents became immediately dependant on their daughter for all manner of assistance and support. They had aged immeasurably and looked to her for emotional, psychological and physical support since the problem of their wayward son had drained them drastically. As the only daughter and hence traditionally responsible for her parents in their old age, the applicant found it impossible to break these family ties. She was compelled to care for her parents. These instinctive family loyalties were more binding than the undertakings she gave upon entry to this country and so she was forced to overstay her visa in order to properly care for her close family. It is true that the applicant's brother did live in Australia and could be expected to provide some care and support for his parents but the reality of the situation was that if she did not stay to care for them they would have been left to fend for themselves. The traditional roles in Tongan families are strong and binding and we submit that some leniency should be extended to the applicant for prioritising this duty over and above that of the constraints of her visa."

Secondly, reference was made to the fact that two of Mrs Talakai's sons were Australian citizens. The consultants said that they:

"have a legitimate expectation and right to all the rights of citizenship and although the children cannot be deported, their age and degree of dependency upon their parents would in effect mean that deportation of the parents would mean deportation of the children. The only alternative, given the circumstances, would be to break up the family unit and force only the return of parents and youngest child. Quite clearly, any action taken to split the family thus would be grossly inhumane and in direct conflict with any fair and reasonable assessment of the application herein made."

(I am not sure who was being referred to as the "youngest child". The then youngest child was Vaisa, who was one of the two Australian-citizen children).
Further information was subsequently supplied. On 28 July 1989, the consultants reiterated the obligation for Mrs Talakai to care for her parents, stating that she was "traditionally responsible for her parents in their old age." This claim was further developed in a statutory declaration of 31 July 1989 in which Mrs Talakai said:

"8. My husband and I came to Australia in July 1984 with all but our two eldest children who had started school. On this occasion our visit had specifically been to support my parents who had written to me to request my visit as they were experiencing difficulties in dealing with my brother who had started drinking heavily and become prone to violence.

9. My parents are quite elderly and were extremely distressed that my brother was not behaving as they thought fit. They became extremely dependent upon myself especially and my husband for our support and also to a large extent on our physical assistance in ordinary matters such as shopping and domestic chores.

10. Upon our arrival in Australia I was saddened to see that my mother and father, now aged 75 and 79 years old respectively, had grown very frail and weak and that my brother was doing nothing to help them. Since our arrival in Australia in 1984 we have lived with my parents in an extended family unit. Although we originally had no intention of overstaying our visitors visa the circumstances which quickly developed after our arrival in Australia soon made it emotionally impossible for me to leave Australia and overlook my parents' distress.

11. As the daughter in our family it is traditionally my responsibility to care for my parents once they become unable to care for themselves any longer. I am their only daughter. We are brought up all our lives to expect this duty as regards our family. Although we still enjoy a strong friendship my brother in many ways has fallen out of the family and now lives with his girlfriend. This greatly distressed my parents. Although I was overstaying my visitors visa I could not leave my parents alone nor could I tell them that I had to return to Tonga because my visa prevented me from staying to look after them. It is just expected that I would be available to look after them as my duty.

12. My husband, Paula, did not want to stay in Australia for longer than the period of our visas. He wished to continue his work in Tonga but at the same time he understood the responsibility I had towards my parents."

On 5 June 1990, Mrs Talakai's application was refused. She applied for reconsideration of this decision by an Immigration Review Panel. In doing so, she took the opportunity of placing some further information before the Department. This information included a letter from Dr Ofo Niumeitolu, a general practitioner of Tongan extraction who is the medical attendant of the family, including Mr and Mrs Fifita. That letter took up some reasons given in the initial refusal, the terms of which are not in evidence:

"In relation to assessment (2) regarding 'Special needs Relative', you stated the following points;

a) That the Extended family unit is not essential to Mr and Mrs Fifita.

b) That Mr and Mrs Fifita are accessible to 'normally available Welfare, Hospital, Nursing and Community Services.' c) That Mr and Mrs Fifita are not suffering crippling disability.

The concept of extended family unit to a Tongan is everything - it gives a Tongan self confidence, value, security, a sense of well-being and it is responsible for the unique identity of being Tongan.
When Australia accepted Mr and Mrs Fifita to settle in Australia, it was impossible to assume as you have that these elderly couple would instantly become and behave like Anglo-Saxons by the stroke of a pen when they became Australian Residents.
Mr and Mrs Fifita brought with them their unique identities as Tongans. This included the extended family, behavioral patterns and knowledge which are very essential to their survival. The elderly in such an arrangement are highly valued members of the extended family. They hold a lot of cultural knowledge and wisdom, essential for directing the important functions of the extended family and the Tongan Socio-Cultural Structure. In return, the elderly will be well cared for, until they pass away from this life.
Within this structure the elderly would live a happy and more fulfilling life - and without it, they would have an unhappy, poor quality existance in this Society.
In your second suggestion regarding accessibility to so called facilities such as Hospitals, Nursing Homes etc, only highlighted the misunderstanding and lack of background knowledge regarding ethnic Minorities.
How can someone like Mr and Mrs Fifita with their poor English, and do not know how to use the normal transport system such as trains, buses, nor even how to apply for a Medicare Card, let alone go to a Hospital can use or be accessible to these so called 'Facilities'. Such 'Facilities' are accessible only to people who are familiar with them and people like Mr and Mrs Fifita need 'someone else' to bridge the 'gap' so that they too, can become accessible to these facilities.
In relation to Mr and Mrs Fifita's (c) Physical conditions you deny that there is 'no evidence to indicate that Mrs Talakai's parents suffer from Crippling disabilities, creating a need for physical assistance.'
Disabilities of this elderly couple be measured in two components: Physical and Lifestyle disability.
Mr and Mrs Fifita's physical disabilities are not 'crippling' in the strictest definition because they can still bath, dress and eat with no assistance. But because of their different cultural upbringing, their age and inaccessibility to Health - facilities in addition to their medical illnesses makes them physically cripple - as they could not survive on their own.
In regard to lifestyle disability, Mr and Mrs Fifita will have a very crippling lifestyle without their extended family network to help them. The extended family is the only capable provider of social and recreational activities acceptable and affective to Mr and Mrs Fifita in order to make living satisfying.
Taking away the extended family from Mr and Mrs Fifita is a prescription for a slow unhappy death to these elderly people. In essence it is life and death matters to elderly people."
Dr Niumeitolu also commented on the possibility of the two Australian-citizen children being left in this country if their parents returned to Tonga, saying that such an option "is very inhumane and not fitting for a Country like Australia which tries to present a Humane attitude Internationally."
However, the Panel was not persuaded. It recommended that the refusal be maintained. The Minister's delegate accepted that recommendation and notified Mrs Talakai accordingly. She was requested to make departure arrangements. Instead, she commenced this proceeding contesting the delegate's decision. So far as appears, no deportation order has yet been made against any member of the family.
The delegate responded to a request for a statement of the reasons for her decision by adopting the Panel's reasons. So, as is common ground, any deficiencies in the Panel's reasoning may be relied upon by the applicants to invalidate the delegate's decision.
The applicants' Further Amended Application advances five grounds of attack on the Panel's reasons: failure to take into account relevant considerations, exercise of a discretionary power in accordance with a policy without regard to the merits of the particular case, taking into account irrelevant considerations, breach of the rules of natural justice and unreasonableness.
The first and last grounds require substantial discussion. The other three grounds do not. None of these grounds has any merit. Each may be shortly disposed of. In relation to ground 2, it is said that the delegate failed "to give proper or any consideration to the special needs of the sixth and seventh applicants" (Mr and Mrs Fifita), and of the fourth and fifth applicants (Nathan and Vaisa) and failed "to give proper or any real consideration to the circumstances of the first, second and third applicants in applying policy consideration that prohibited non-citizens should not be allowed to queue jump". As will emerge, the matters that arise under the first and fifth ground relate to the position of Mr and Mrs Fifita and the two Australian-citizen children. There is a question whether the delegate took into account, in a meaningful way, their situations and whether her decision was unreasonable. But if those matters are decided against the applicants, their position cannot be improved under ground 2. The delegate was concerned about the Ministerial policy regarding queue jumping but did not suggest that this justified her in refusing to consider the application on its merits.
Ground 3 also relates to the position of Mrs Talakai's parents and the two Australian-citizen children. It alleges that the delegate was not entitled to take into account matters relied upon by her in reaching the conclusion that those positions did not require approval of the application. Whether her views are right or wrong, whether her consideration was sufficient or not, she was clearly entitled to take into account all aspects of the position of both the parents and the children.
The natural justice ground advances two matters: the failure of the delegate to give Mrs Talakai an opportunity to provide material relative to the care of the children still in Tonga and her failure to provide an opportunity to supply information about the ability of Mr Fakailoatonga to provide care and assistance to his parents. As to both these matters, there was no lack of opportunity to provide material. The first matter was irrelevant, the second was dealt with in the application. This is not a natural justice case.
I return to the first ground of challenge: failure to take into account relevant considerations. The first contention relates to Mrs Talakai's parents. Counsel for the applicants concedes that the Panel, and so the delegate, took into account the fact that they would be disadvantaged by a refusal of Mrs Talakai's application. But she argues that the consideration of this matter was deficient because it left out of account the special obligation of a daughter under Tongan custom. In its reasons, the Panel made no reference to Tongan custom. The Panel's comments in relation to Mr and Mrs Fifita were as follows:

"It is argued that the applicants are required in Australia to care for Mr and Mrs Fifita. This couple were well aware when they came to live in Australia that they would be separating themselves from other of their children. They had one son who lives in Australia and still does. The applicants came to Australia in 1984. Mrs Fifita did not come to live in Australia until 1987 the last time (Folio 40). It can be seen from Mr Fifita's passport entries that he has come and gone from Australia on many occasions (Folio 31-36) and his last overseas trip was in 1988. It does not seem that this couple are confined to Australia. The applicants do not meet 'last family member' conditions. They have no compunction in leaving their children in the care of relatives in Tonga for the past seven years and the same arrangements could be made for their Australian born children if this was their wish. Another of their children is living with a sister in Hawaii.

I do not accept the statement regarding Mr and Mrs Fifita at Folio 66 and 67. Mr and Mrs Fifita were not residents of Australia in 1984. Passport at Folio 32 shows that entry was made on 18.4.84 as visitors and a six month entry was granted. They were not even residents of Australia when the applicants arrived on 8.7.84. It does appear that the visitor visas issued to the applicants were used to circumvent normal migration policies. They never applied for migration but chose to remain in Australia illegally. They have never been given any indication that they would be permitted to remain here. It is accepted that the applicants prefer to remain in Australia and have made efforts to be good citizens. However the fact that they have wilfully broken Australia's laws cannot be overlooked. It is accepted that Mr and Mrs Fifita would appreciated having their daughter close to them but it was their decision to remain here and they have made visits to Tonga and New Zealand when it suited them. The applicants also have responsibilities towards their own children. The Fifitas came here to be with their son and it is unlikely that he now rejects them. They have access to all social services - should these be required - as do other Australian residents."

When she put her argument about the Panel's failure to consider Tongan custom, I asked counsel to identify the relevant custom, by reference to the material before the Panel. Counsel referred to the two letters from the immigration consultants and Mrs Talakai's statutory declaration. That material is reproduced above. It will be noted that reference is made to a "traditional" responsibility of a daughter to care for her parents once they become unable to care for themselves. The material does not suggest that this responsibility is to the exclusion of other family members, such as a son. Indeed Mrs Talakai's statutory declaration reference to her brother, immediately after the reference to health, suggests that she felt a need to demonstrate why, in this particular case, he was unlikely to shoulder that responsibility. She was not prepared to say that he had no responsibility. I have no doubt that Tongan tradition requires adult children to care for their aged parents, an obligation commonly found in societies without a comprehensive social welfare system and often accepted even by persons of European background. But there is nothing in the material put before the Panel to suggest that the responsibility in this case was unique to Mrs Talakai.
It is clear that the Panel appreciated that Mrs Talakai felt an obligation towards her parents, whether unique or not. The Panel did not fail to take that matter into account. Rather, the Panel responded to the argument that Mrs Talakai was required in Australia to care for her parents by pointing out that the parents had chosen, in relatively recent times, to separate themselves from their daughter in Tonga in favour of residing with their son in Australia. In essence, the Panel felt that it was not open to Mrs Talakai to place reliance upon a situation which her parents had deliberately created. The point is emphasised by the Panel's reference to Mrs Fifita's final arrival in 1987 and Mr Fifita's 1988 journey. By those years, on the case presented by Mrs Talakai to the Panel, her brother's inadequacies towards her parents were well demonstrated; yet the parents chose to deprive themselves of the care which could have been provided to them by Mrs Talakai in Tonga. There is no suggestion that Mrs Talakai could not have cared for her parents in Tonga. Both she and her husband were in regular employment in that country, he as a policeman and she as a teacher.
Counsel put a second argument in relation to the parents. It was based upon Dr Niumeitolu's letter. She said that the Panel failed to take into consideration the fact that, without Mrs Talakai, Mr and Mrs Fifita would be denied access, in a practical sense, to facilities such as hospitals, nursing homes and medical attention. But, once again, it seems to me this submission overstates the effect of the material before the Panel. Dr Niumeitolu certainly pointed out the necessity for Mr and Mrs Fifita to have assistance in accessing such facilities. But he did not say that this assistance had to be rendered by Mrs Talakai. He referred to Mr and Mrs Fifita's need for "someone else". No doubt Mr and Mrs Fifita would prefer that person to be Mrs Talakai. But it misstates the effect of the letter to say that the Panel was bound to conclude that, without Mrs Talakai, Mr and Mrs Fifita would have no access to those facilities. It was not claimed to the Department that there was no alternative "someone else". In particular, although Mrs Talakai criticised her brother's care of their parents, it was not claimed that he would be unable or unwilling to assist Mr and Mrs Fifita in accessing health facilities, should the need arise.
I turn to the position of the Australian-citizen children. Counsel criticised the Panel for assuming that Mr and Mrs Talakai could make acceptable arrangements for these children to remain in Australia, if that was their wish. Certainly, there was nothing before the Panel to indicate what arrangements could be made. The Panel would not have been justified in assuming that the childrens' grandparents, Mr and Mrs Fifita who were then aged 80 and 76 respectively, would be suitable and willing long term guardians of two boys aged nine years and four years. The childrens' uncle, Mr Fakailoatonga, apparently has a large family of his own. It does not follow, as the Panel seems to suggest, that, because Mr and Mrs Talakai have been able to find suitable foster parents for other children amongst their near relatives in Tonga and Hawaii, they can do the same in Australia.
But for one circumstance, I would have been persuaded by the argument that, in concluding that Mr and Mrs Talakai had the option of leaving the children in Australia, the Panel erred in failing to take into account the possibility that no suitable arrangements could be made. That circumstance is that the material put before the Panel by Mrs Talakai itself seems to accept that it would be possible to leave the children in Australia. Counsel for the respondent placed some emphasis upon the initial letter of the immigration consultants in which they referred to the "only alternative" to deportation as being "to break up the family unit and force only the return of parents and youngest child". As counsel said, this reference seems to indicate an acceptance of the feasibility of the children being left in Australia, however undesirable that would be in terms of family unity. Nevertheless, if that letter stood alone, I would be uneasy about taking from it an assurance of feasibility. At an earlier point in the letter the consultants said, in reference to the Australian-citizen children:

"Their welfare will undoubtedly suffer if their parents are deported. An inevitable consequence of the deportation of the parents is the de facto deportation of the children, whose welfare would undoubtedly be prejudiced by a forced return to Tonga."

But the matter did not rest there. Apparently, the original decision maker referred to the possibility of the children remaining in Australia. In the further material submitted to the Department after that decision, this possibility was not denied. On the contrary, Mrs Talakai tendered Dr Niumeitolu's letter in which the "option" of leaving the children in Australia was denounced as inhumane. I think that, in the light of this letter, it has to be concluded that Mrs Talakai's case was that leaving the Australian-citizen children in Australia without a parent was a possibility, in the sense that acceptable care arrangements could be made; but a possibility which she found most unattractive. In that situation, I do not think that it was erroneous in point of law for the delegate to proceed upon the assumption that, if necessary, acceptable arrangements could be made. The matter assumed was implicitly conceded in the documents submitted on Mrs Talakai's behalf.
The ground of unreasonableness essentially traverses the same material as that discussed in connection with the first ground of challenge. It is not necessary to consider the circumstances in which an erroneous finding of fact may result in a decision being found void for unreasonableness; a matter discussed by Pincus J in Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139. I do not think that the Panel's reasons contain any finding of fact which was not open to it.
During the course of his submissions counsel for the respondent observed that Mr and Mrs Talakai appeared to be decent people who would very likely make worthy Australian citizens. But he commented that this was not a matter which could be taken into account by me. Of course, his comment is correct. In considering an attack upon a decision under the Administrative Decisions (Judicial Review) Act 1977, the Court is concerned only with the legal validity of the decision. The Court is not entitled to give effect to any views which the judge hearing the matter may happen to have formed about the merits of the matter. It was for the delegate to determine what weight ought to be given to the various factors which tended to support the application - and which included not only the role which Mrs Talakai is playing in the care of her parents and Australian-citizen children but also the significant work being done by Mr Talakai on behalf of the local Tongan community as a pastor of the Tongan Free Church - as against the fact that Mr and Mrs Talakai broke the law in remaining in Australia after their visitor's visas expired. The decision which she made is not bad in law. Nor do I imply any criticism of its merits - it must have been a difficult decision to make - in expressing the hope that a course will be taken which will avoid the deportation of Mr and Mrs Talakai and thus leave open to them the possibility of soon making a fresh application for permanent residency, from Tonga in the ordinary way. For people having the ages both of Mrs Talakai's parents and the children, five years is a long time.
The application must be dismissed with costs.

[1991] FCA 813

13 DECEMBER 1991