Tat, K.P. v Minister for Immigration & Ethnic Affairs
[1990] FCA 344
•12 JULY 1990
Re: KIEN PHUONG TAT
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G682 of 1989
FED No. 344
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)
CATCHWORDS
Administrative Law - Review of decision under the Migration Act to refuse permanent residence - whether the decision was unreasonable - whether relevant considerations omitted - whether irrelevant considerations taken into account - whether strong compassionate or humanitarian grounds existed - whether decision unreasonable
Administrative Decisions (Judicial Review) Act 1977 Ss 5(1)(e) 5(2)(g)
Migration Act 1958 S 6A(1)(e)
HEARING
SYDNEY
#DATE 12:7:1990
Counsel and solicitors for Dr G Flick
the Applicant instructed by W A Dowe Xenos Vardas
Counsel and solicitors for Mr R Wilson instructed by the
the Respondent Australian Government Solicitor
ORDER
1. Set aside the decision of the Respondent of 28 September 1989.
2. Remit the applicant's application for resident status for reconsideration in accordance with the reasons for judgment herein.
The respondent to pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
There was in this case an extensive original application for judicial review of the decision of the Minister's delegate of 28 September 1989 to refuse the applicant resident status in Australia. However, the case for review was in fact essentially limited to the grounds contained in an amendment to the application, added at the hearing without objection. This raised the ground for review provided by subsections (1)(e) and (2)(g) of section 5 of the Administrative Decisions (Judicial Review) Act 1977, viz. that the decision under review was "so unreasonable that no reasonable person could have" made it. The amendment also claimed that the refusal to grant the applicant residence on strong compassionate and humanitarian grounds as provided at the relevant time by section 6A(1)(e) of the Migration Act 1958 manifested an error of law.
The facts can be briefly stated. The applicant was born in Vietnam of ethnic Chinese parents in 1967. He had two older sisters. The family lived in a town some 300 kms north of Saigon but the 2 girls were sent to live with an aunt in Saigon where they attended school. The applicant joined them when he was about 7 years old. Thereafter the children saw their parents for only 2 or 3 weeks a year, until in 1978 the applicant's father left Vietnam for Taiwan and his mother came to Saigon to live with the children and their aunt. From soon after the end of the Vietnam war in 1975 until 1978, the applicant ceased his schooling because of its inadequacy and politicisation under the new regime and studied English and other subjects at home with his sister. While the language of the household was Vietnamese, the applicant spoke a little Cantonese but no Mandarin.
In 1981, when the applicant was 13 years old, his father brought his mother and him to Taipei where they apparently became citizens. He was unable to enter school because he spoke no Mandarin, the principal language of Taiwan, and would have been in a class with much younger children. As a result he first stayed at home with his parents and then obtained employment to assist with the support of the family. The job was a 7 day a week assignment in the kitchen of a Taipei restaurant owned by a Vietnamese family. Because of difficulties with public transport, he lived above the restaurant and only saw his parents about 2 days a month.
In 1983, apparently to avoid conscription into the Taiwanese Army, the applicant's father arranged for the applicant, then 15 years old, to come to Australia which he entered on 6 August 1983 on a one month's visitor's visa. He has been here ever since. Some time later, the rest of the applicant's family migrated from Taiwan to the USA where they have since been living. He has not seen them since he left Taiwan.
As a consequence, the applicant has no relatives in Taiwan, and because of his language and other problems to which I have referred, he also has no friends there. Although officially prohibited from working in Australia, the applicant appears to have fully supported himself here in various capacities and not drawn social security. His current employment as a welder has lasted for about 3 years. He says that he has been a model of law-abiding propriety except for his Migration Act offences of overstaying his visa and working. After about 7 years in Australia, he now claims to be part of Australian society and culture, with friends and a future here, and a fondness for and acquaintance with our country and people. This contrasts sharply with the virtual reverse position of Taiwan. Understandably in the circumstances, he says that the idea of being forced to leave Australia for Taiwan causes him intense emotional stress. Yet the maintenance of the decision under review would effectively compel that result. An earlier decision to the same effect had been made on 8 July 1988 but was vacated just over a year later to permit a reconsideration of the matter.
The applicant's claim of unreasonableness of the decision draws attention to what he argues was its almost desperate attempt to establish his connection with Taiwan despite his lack of ties, family or friends there, his lack of employability or marketability in Taiwan, his inability to converse freely there in the dominant language, the likelihood or possibility of punishment for his avoidance of conscription for military service, and the emotional stress involved in a return to Taiwan. In such circumstances, the applicant says that any decision which leads to his return is either irrational or indicative that relevant considerations have not seriously been taken into account.
The decision-maker's major findings in these regards were as follows (sic):
22. I accepted that the applicant had spent some of his formative years in Australia and that he would have formed ties in and impressions of Australia. However I found that the applicant was working prior to his arrival in Australia, and that he never attended school in Australia and due to this I considered the years spent in Australia were not so significant to completely overshadow those spent overseas.
23. I accepted that the applicant may face some settlement difficulties if he returned to Taiwan due to his lack of knowledge of the Chinese language and the little time he spent in Taiwan. However I also took into account that the applicant is a citizen of Republic of China and is a person of Chinese race and that these factors would serve to help the settlement difficulties he may face.
24. I accepted that the applicant may fear punishment upon return to Taiwan for evading conscription. I considered the age of the applicant, and the eligible age for conscription in Taiwan and found it appeared that the option of completing National Service was still open to the applicant upon return to Taiwan. I also considered it reasonable to assume that the fact the applicant was a minor when he departed Taiwan would not escape the Taiwanese authorities and this point would be noted.
27. I accepted the applicant's skills learnt in Australia may not be recognised in Taiwan but I did not find this claim constituted compelling compassionate circumstances, as although the applicant's skills may not be recognised I expected them to be useful to him in Taiwan.
28. I considered the ties the applicant had formed in Australia and the steps he had taken to assimilate and the emotional hardship that would be suffered by both the applicant and his friends in Australia. While I accepted that hardship would be suffered I did not find this in itself warranted the grant of resident status.
The ground of unreasonableness has been the subject of considerable discussion in the cases. In Prasad v Minister for Immigrating and Ethnic Affairs (1985) 6 FCR 155 at 167-9, Wilcox J. collected the cases under the Judicial Review Act as well as on the similar common law ground. In Conyngham and Ors v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423, his Honour added further English authorities that had occurred since Prasad and referred to the dictum of Lord Diplock in Bromley London Borough City Council v Greater London Council (1983) 1 AC 768 at 821 that an unreasonable decision is one which "looked at objectively" is "so devoid of plausible justification that no reasonable body of persons could have" made it. Wilcox J.'s application of that dictum to the case at hand was not disturbed on appeal: see same volume at 441. See also Sheppard J in Commonwealth v Pharmacy Guild of Australia (unreported 21 December 1989). I adopt the Diplock criteria for this case.
It must be remembered that Australia's remarkably fair and even-handed laws governing such situations at the relevant time for this case not merely permitted refusal of resident status and deportation; they also permitted the granting of Australian residence to those whose cases complied with the statutory criteria. For a person who has grown from the age of 15 to almost 23 in Australia to be sent back to a country, as if it were his home, when in fact he happened to reside there briefly as a minor of 14 years of age at the insistence of his father, escaping the devastation of war and the unleashing of hostile ethnicity and political problems at home, is to my mind as unreasonable and irrational as the authorities require. Where as here residence is being considered as between two countries, it is not real to select the one with which by comparison with the other, he has to all intents and purposes no connections or place at all.
In my opinion, too much attention was given in the decision of 28 September 1989 to supporting and justifying the decision of 8 July 1988, many of the exact words of which were repeated quite slavishly in the decision under review. Not enough dispassionate thought was given to the artificiality of choosing Taiwan by comparison with his various bases for claiming resident status in Australia. Much of what the decision-maker said about the applicant's chances of becoming settled in Taiwan could have equally been said of many other countries where the only difference would have been the fact that the applicant did not gain citizenship by spending a couple of years there as a refugee or displaced child with his parents. In the circumstances of this case, the applicant's Taiwanese citizenship adds little to the facts. Taiwan is simply not the applicant's country, but was merely a place of temporary refuge for him and his family.
Further, the hardship which the decision-maker found would be experienced if the applicant is made to leave Australia is not the sole relevant matter required to be considered in this connection. In my view, coupled with the other matters taken into account in the decision, the applicant's Taiwanese citizenship is not of sufficient weight in these circumstances to explain, justify or rationalise the assessment of hardship. I think that this decision could not have been made by a reasonable person applying the law to the facts.
The other head of the applicant's assertions argued is that the Minister's delegate who made the decision misconstrued the meaning of "strong compassionate or humanitarian grounds", in that these words require conclusions of fact which the statement of reasons of the decision-maker makes clear were not addressed. The applicant says that what was decided substituted for the required fact-finding exercise a set of legal criteria which are erroneous.
The applicant in particular complains of the use by the delegate of expressions such as whether there had been established one or more "compelling" compassionate circumstances; of tests being imposed of whether he satisfied Government "criteria" set for this ground, especially the excessive weight given to the applicant's offences under the Migration Act of overstaying his visa and working without permission; of the rejection or diminution of his objection to compulsory military conscription in Taiwan on the basis of subjective unsupported assessments and conclusions; and of an apparent flirtation with the possible option of the applicant's joining his family in the USA.
Each one of these complaints deserves attention. The use of the word "compelling" in both the decision-making in July 1988 and September 1989 may be a gloss on the words of the statute, but in the respective contexts, it seems to be merely a way of the writer expressing that he did not find the argument being put forward as "compelling", in the normal conversational use of that term. I do not think that this is a legitimate ground for complaint.
There was undoubtedly emphasis by the decision-maker on the applicant's offences against Australia's migration laws. Paragraph 26 of the Reasons for Decision state:
26. I took account of the Minister's policy statement of 17 October 1985 regarding illegal immigrants, which states in part
(a) in relation to permission to work: It is not unusual for illegal immigrants who have been working in Australia to portray as a virtue the fact that they have supported themselves in this way and to request that this be taken as an indication that they should be allowed to remain because they would make good settlers. Besides ignoring the fact that many people who cannot be accepted for migration would make equally good, if not better settlers, there is no way the Government can condone offences against Australian law by turning them into commendable achievements.
The aggravating dilemmas faced by successive Governments in having to deal with frequent claims that applicants for resident status have fully maintained themselves here on wages which under Australian law they were forbidden to earn, are real and must be recognised. But these dilemmas cannot be resolved in the abstract. Our penal or disapprobatory laws must certainly be applied to them, but so must those laws which record and express our desire to be known as a country and people of compassion to those in need and distress.
This Ministerial statement demonstrates how dangerous and unsatisfactory it is to attempt to translate philosophical homilies or even partial statements of Government policy from the political arena to the legal context. So far as appears from the statement relied on, the Minister was not saying that because the Government did not condone offences against Australian law, the law should be interpreted so that such offences must finally or definitively dispose of prohibited non-citizens' rights to a full consideration of their cases under migration and administrative law. Nor could he have done so. The relevant legislation contains no such provision. The Government would presumably also not condone breaches of those laws; nor could a person who had chosen to live on the public purse or steal from private purses to maintain an existence in Australia, be viewed as having undertaken more "commendable achievements" than if that existence had been financed by a lawful job for wages, with its concomitants of - paying taxes and purchasing Australian goods from Australian business enterprises.
And all this arises in a context whereby this choice of how to fund an existence only arises because Australian and international law permit, and institutional, bureaucratic and court procedures and delays make it necessary for, people to remain here while their legal rights are pursued and determined. Whilst undoubtedly the fact of overstaying a visa and working while a prohibited non-citizen (or illegal entrant, as it now is) is a factor to be noted in a consideration of an applicant's status, and will more often than not operate negatively in this connection, all the factual elements must be considered so that a balanced dispassionate consideration is shown to have been given to the case.
This applicant came to Australia as a young boy with no true home who had in effect been deserted by his parents and left to fend for himself in a foreign country. He has spent about a third of his whole life and almost all his conscious decision-making life here. Law breaking cannot be overlooked or condoned, but considerations of humanity and compassion as required by immigration law require more than a simple condemnation of such misbehaviour. Does it not show a degree of character, and provide evidence of independence and reliability, for an aspiring Australian resident to work and pay taxes, acquire a skill on the job, develop a support network, and try to develop affection for and commitment to a new country? And to acquire these worthy qualities from a starting point of being a child victim of what must have been for him a terrifying war, of ethnic tensions, of family disarray, of poverty and child labour, and of little formal education through no fault of his own?
Contrary to the argument of the applicant in this case, I think the decision-maker was right to draw attention to the applicant's law-breaking here. However, in my view, he was wrong to decry it because it flew in the face of a single 5 year old Ministerial statement without drawing attention to the context in which that statement was made and viewing it alongside the changing nature of Australia's responsibilities to persons displaced by the Vietnam war and other recent Asian upheavals, and our proud general record of both statements and actions to help those who seek our succour for good cause. He simply failed to balance these considerations with what this particular applicant's law-breaking says about the applicant.
The decision-maker rejected the likelihood of compulsory military service in Taiwan as creating an influential circumstance in favour of the applicant. Paragraph 25 of the Reasons for Decision states (sic):
I accepted that the applicant may experience hardship through completing military service in Taiwan, however I found military service something that effects the whole population in Taiwan and I found it to be the applicant's civil obligation within Taiwan.
Apart from the fact that it puts the answer before the question, I cannot accept that this somewhat tortuous sentence even begins to address the issue. This applicant was born in central Vietnam in the midst of the Vietnam war. He was 7 years old when it finished. His side lost the war. He was of Chinese birth. The Vietnamese and the Chinese have feuded for a thousand years or longer. He was therefore an actual and potential victim of recriminations and vengeance on two fronts. His family moved once and then had to seek refuge elsewhere again. Is it seriously suggested that this man should be unwillingly conscripted into an army whose language he does not speak, whose cause, purpose, training and planning he cannot begin to accept or identify with, in a country with which he has no true connection or ties? Or that if his conscription did take place over his objection, he would not suffer significant distress and upset?
This is not a matter of comparing him with other Taiwanese citizens and their citizenship obligations. The decisionmaker is, like me, a citizen of a country which has occasionally and for short periods adopted, but always then removed, under quite passionate public pressure, military conscription as an item of national policy. If it is not accepted in Australia for our own people, it can hardly be an obligation we should lightly impose on someone who could not be a genuine defender of an alternative country because of his easily understandable difficulty in developing a loyalty to that country. Yet none of these matters were given the slightest attention in the determination that strong compassionate and humanitarian circumstances, as prescribed by Australian legislation, had not been established.
Further, paragraph 24 of the decision makes the assumption that the Taiwanese authorities would take note of the applicant's youth, when he evaded conscription by leaving, in determining whether he should be punished. It was referred to no evidence supporting that assumption nor if there was evidence, any opportunity for the applicant to meet it or address the matter before the assumption was drawn. In my opinion, the evidence and its inferences, as opposed to the delegate's assumptions, supports the applicant's fears and concerns.
Finally, there is the so-called "American option". It was certainly not unreasonable for the decision-maker to address the possibility that the applicant could join his family. But his decision on the matter was as follows (sic):
I accepted that the applicant did not have family ties in Taiwan, I also considered the applicant's wish not to join his family in the USA to be that of a personal choice. I accepted that he may have no desire to join his family but did not find this to constitute strong compassionate grounds.
As a finding of fact, this was with respect simply unavailable. The evidence before the decision-maker was nothing of the kind. In a statutory declaration of 9 June 1988, the applicant had said:
Having spent my formative years in Australia alone, separated from my parents, I have no desire to join my family who are independent and settled in the USA now that I have formed strong ties with Australia, have all my contacts and where I have established myself and acquired new skills. Besides, I do not have my right of entry to the USA and even if I could go there, I do not cherish the thought of starting all over again in a place where I have never been to.
In other words, although the Minister's delegate called this "a personal choice", it was in fact a decision reached under severe personal duress. In any real sense, this was not "a choice" at all but a recognition of practicalities and an unwillingness to go through yet another set of trauma like those which have filled his young life hitherto. It was a sensible, obvious and reasonable, but no doubt difficult, decision in the context and circumstances.
Although simple fact-finding is not for me, what is available for review is the conclusion of law or mixed fact and law that the evidence accepted could not "constitute strong compassionate grounds". In this respect, two particular conclusions are apposite. First. There was and is no evidence that the applicant has any right to go to the USA or permission to enter that country. Hence his so-called "choice" or option to go to America was somewhat tainted or diminished by present impossibility of performance. Second. The issue for the decision-maker was not whether the applicant's "personal choice" not to go to America should be denied compassionate classification, but whether his compulsory return to Taiwan should attract the classification. Put another way, the issue to be determined was whether his at best combined inability and lack of desire to go to the USA constituted compassionate grounds for his being allowed to stay in Australia.
This question required a consideration of the applicant's likely state of mind in having to swear on oath that he would prefer to take the more troublesome and risky option of trying to stay in Australia than trying to rejoin his family elsewhere. Where is the humanitarian consideration of the personal pain likely to be involved in choosing to resolve this dilemma against his family? Where is the compassion for a young man struggling for legitimacy and acceptance in his present refuge rejecting what the decision-maker appears to have assumed was the easier route of family reunion in favour of a legal and bureaucratic maze in Australia of uncertain result?
In my view, the decision therefore also involved errors of law in that the statutory criteria involved in the phrase "strong compassionate or humanitarian grounds" were not fully addressed according to law.
For all these reasons, I set aside the decision of the Minister of 28 September 1989 and remit the applicant's application for resident status for reconsideration in accordance with these reasons for judgment. The respondent is to pay the applicant's costs.
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