Teo, D. v The Minister for Immigration & Ethnic Affairs

[1994] FCA 778

DAPHNE TEO v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG389 of 1993
FED No. 778/94
Number of pages - 10
Administrative Law - Immigration
(1994) 35 ALD 242

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT J

CATCHWORDS

Administrative Law

Immigration - Appeal from Immigration Review Tribunal - construction of reg. 131A(1)(d)(v) of Migration (1989) Regulations - "compassionate ground" - "extreme hardship or irreparable prejudice" - alternative nature of ground - beneficial ground requiring generous construction - requirement of proper consideration of the merits of the case - unreasonableness of decision - failure to take account of relevant considerations.

Words and Phrases - "extreme hardship or irreparable prejudice" - "compassionate ground".

Migration (1989) Regulations, r. 131A(1)(d)(v)

Teoh v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436
Prasad v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 856
Fuduche v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Chen v. Minister for Immigration and Ethnic Affairs (1994) 123 ALR 126
Moskal v. Minister for Immigration, Local Government and Ethnic Affairs (Foster J, unreported, 4 October 1994)
Kobayashi v. Minister for Immigration and Ethnic Affairs (Hill J, unreported, 25 May 1994)
Choi v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 826
Choi v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 33 ALD 335
Ali v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144
Roser v. Immigration Review Tribunal (1991) 25 ALD 443
Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (Burchett J, unreported, 25 November 1993)
Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Mensa v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 31 ALD 301

HEARING

SYDNEY, 18 March 1994
#DATE 25:10:1994

Counsel for the Applicant: Mr R.S. Bell

Solicitor for the Applicant: W.J. Taggart

Counsel for the Respondent: Miss R.M. Henderson

Solicitor for the Respondent: Australian Government

Solicitor

ORDER

The Court orders that:

1. The appeal be allowed.

2. The decision of the Immigration Review Tribunal be set aside.

3. The matter be remitted to the Tribunal, differently constituted, to be determined in accordance with these reasons.

4. The Minister pay the costs of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BURCHETT J This is an appeal from a decision of the Immigration Review Tribunal affirming the refusal to the brother of the applicant, Mr Chuan Chye Chua, of a temporary entry permit under the Migration (1989) Regulations, now repealed but still applicable, as was common ground between the parties, to the present case. The temporary entry permit sought was known as a "December 1989 (Temporary) Entry Permit".

1. Mr Chua arrived in Australia on 23 April 1980. His entry permit expired on 23 May 1980, but he remained here, and on 17 January 1991 he applied for the December 1989 (Temporary) Entry Permit pursuant to the provisions of reg. 131A, which made such an entry permit available to persons meeting the prescribed criteria, one of which was that the applicant "was a prohibited non-citizen on or before 18 December 1989". Another of the criteria (and it is the criterion relevant to the grounds of appeal argued in the present case) is that provided by reg. 131A(1)(d)(v), as follows:
   

"(d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit: . . .

(v) there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident".

1. The words with which sub-para. (v) commences, "there is any other compassionate ground", suggest that the sense in which the draftsman used the expression "compassionate ground" may be elucidated by reference to the preceding grounds; they are clearly regarded as being themselves compassionate grounds. It is therefore to be noted that sub-para. (i) is concerned with the spouse, (ii) with a dependent child, (iii) with an aged parent and (iv) with various categories of relative, of an Australian citizen or an Australian permanent resident - so far as the application of sub-para. (iv) is involved, that Australian citizen or permanent resident being a "settled" Australian citizen or resident. In the case of a spouse, the relationship must be "genuine and continuing"; and in the case of a relative, he or she must be "an aged dependent relative", or "an orphan relative", or "a special need relative" as defined, or "a remaining relative" as defined. Each of these earlier sub-paragraphs refers to a person whose ejection from Australia would fairly be regarded as likely to have very significant consequences for an Australian citizen or Australian permanent resident. That light can be thrown on the meaning of "compassionate ground" in sub-para. (v), and on the general nature of the ground itself, by reference to the nature of these other grounds, in the context of which it is set in the regulation, is also confirmed by sub-reg. (2), a provision not otherwise relevant to the present matter. That is because this sub-regulation commences with the words: "In this regulation, 'compassionate ground' ... ". If sub-para. (v) described a unique compassionate ground of a very special character divorced from the context, sub-reg. (2) would have commenced: "In sub-paragraph (1)(d)(v) ...".

2. But the "other compassionate ground" must be one "to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident". That may be said to provide a strait gate and a narrow way, but it does involve alternatives. If the hardship is extreme, it need not be also irreparable; and on the other hand, irreparable prejudice will suffice without a showing also of extreme hardship. This has been pointed out more than once. In Fuduche v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 529, I said:
   

"Just as it is not wise to attempt to explain 'reasonable doubt', so I do not think anything is to be gained by seeking synonyms for the words in question. There may be value, however, in pointing out what the language itself certainly conveys, that while 'extreme hardship' looks to the severity of an effect, 'irreparable prejudice', provided there is some prejudice, tests it simply by whether it can be remedied so as to remove it. The two expressions are real alternatives; they do not have the same meaning. Although the facts of the present case fit both, in many cases one might apply, but not the other."

1. The same view had been taken by Heerey J in Choi v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 826 at 828, where he said: "I agree that reg 131A(1)(d)(v) establishes two distinct criteria and not one". He referred to his own earlier decision in Ali v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144. In that case (at 148) he had said:
   

"Not only are prejudice and hardship two distinct criteria, but inquiry as to the degree or extent of prejudice by no means necessarily poses the question whether that prejudice can be remedied or rectified. There may be great prejudice which is reparable and small prejudice which is not."

In the same case (at 151) he made it clear that it would be wrong to treat the sub-paragraph as applying only in "extreme cases". The decision of Heerey J in the former of these cases came before a Full Court: Choi v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 33 ALD 335. The joint judgment of Keely, O'Connor and Whitlam JJ referred to a submission

"that the tribunal (from which the appeal had originally come to Heerey J) erred in law by treating the words 'extreme hardship or irreparable prejudice' appearing in the regulation, as prescribing a single test and not distinct alternatives."

They did not suggest Heerey J was wrong in seeing the language of the regulation as providing distinct alternatives; what they said was: "In our opinion his Honour correctly held that the tribunal had not treated the regulation as prescribing a single test."

1. In Marcelo v. The Minister for Immigration and Ethnic Affairs (O'Connor J, unreported, 25 March 1994) O'Connor J said:
   

"Although the concepts may be dealt with simultaneously the adjectives describing either the hardship or the prejudice are not interchangeable. The notion of extremity cannot be imported into 'prejudice', nor can the notion of irreparability be imported into 'hardship'."

1. It has been said that the application of reg. 131A(1)(d)(v) requires "a very high degree of hardship or prejudice": Roser v. Immigration Review Tribunal (1991) 25 ALD 443 at 449, per von Doussa J However, this dictum was uttered, as the report of the case shows, in the context of an Australian citizen having a temporary need for assistance, as a driver, from his friend the applicant for the entry permit. The need was described (at 446) as a need "for the time being", and "until he is confident to drive himself". It is plain that the alleged prejudice was not irreparable, or even more than short term, and the only question was whether there was extreme hardship, the Australian citizen having suffered the loss of one eye.

2. A case which does address the construction of the expression "irreparable prejudice" is Prasad v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 856, where Jenkinson J said (at 857-858):
   

"It may be a mistake to think that the proper construction of the expression 'irreparable prejudice' is to be influenced by the gravity which the expression 'extreme hardship' connotes. But the construction of the former expression is in my opinion to be considered in the light of the requirement that what is to be caused by the refusal of the permit should constitute a 'compassionate ground'. Once its idiomatic, not to say hackneyed, transferred epithet has been unravelled, the clause with which subpara 131A(1)(d)(v) begins can be seen to amount to a requirement that the postulated hardship or prejudice be of such a degree as to excite compassion, in the sense of that word which is given second in The Oxford English Dictionary (2nd ed.): 'The feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour'. Accordingly I think that the expression 'irreparable prejudice' in s 131A(1)(d)(v) is to be construed as denoting a disadvantage to a person which is incapable of being rectified, remedied or made good and which excites compassion in the sense I have indicated."

I respectfully adopt this passage. The difficulty with the view that there is reflected upon the expression "irreparable prejudice" the concept of gravity involved in the expression "extreme hardship" is that it overlooks the alternative nature of what is conveyed by the total expression "extreme hardship or irreparable prejudice". One alternative does limit the hardship with which it is concerned by reference to its gravity; the other does not, and instead, limits the prejudice with which it is concerned by reference to the question whether it is irreparable. But the ground, in either case, must be an "other compassionate ground". The prejudice must be more than a small prejudice, since, given that it is irreparable, it must be enough to excite compassion in the sense indicated by his Honour, and, as I have pointed out, in a sense reasonably commensurate with the compassion involved in the earlier grounds with which the drafting of the regulation associates it.

1. One further matter should be noted in relation to the construction of this ground. While any hardship must be extreme, or alternatively any prejudice must be irreparable, the words "hardship" and "prejudice" are themselves words of wide import. There is no warrant for an unduly technical reading that would restrict the application of the sub-paragraph so as to deny it the full scope which the fair meaning of its language allows. On the contrary, it is a beneficial provision, designed to remedy the plight of those non-citizens in respect of whom reg. 131A was framed. In Fuduche (supra) at 527 I described the provision in respect of a "special need relative" as "a beneficial provision", and referred to
   

"the benevolent intent of the regulation which, on ordinary principles, ... should be given a broad and generous construction in favour of the Australian citizens and residents that it was intended to benefit, and in furtherance of the good name of Australia that its humanity maintains."

This view was accepted by Davies J in Chen v. Minister for Immigration and Ethnic Affairs (1994) 123 ALR 126 at 130-131, and by Foster J in Moskal v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, 4 October 1994) at 13 and 16.

1. Any compassionate ground that existed on 15 October 1990 and continuously thereafter must be tested by the criteria of "extreme hardship" and "irreparable prejudice". In Kobayashi v. Minister for Immigration and Ethnic Affairs (Hill J, unreported, 25 May 1994), it was held that "(t)here may well be cases where the compassionate ground relied upon refers to hardship or prejudice of a financial or perhaps even commercial kind", although it was accepted such cases would be rare. Hill J applied to reg. 131A(1)(d)(v) language he had earlier applied to the then s. 6A(1)(e) of the Migration Act 1958:
   

"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."

1. The facts which are said to bring a particular case within the scope of these principles are for the administrator, or Immigration Review Tribunal, to determine. But the Court may examine the question "whether proper consideration has been given to the merits of a case concerning a matter that the decision-maker was bound to take into account": Teoh v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 at 441, per Black CJ, where a number of authorities are collected; Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (Burchett J, unreported, 25 November 1993), where some additional authorities were cited.

2. I return to the circumstances of the present case.

3. The applicant, Mrs Teo, as the sister of Mr Chua, migrated with her husband to Australia from Singapore, arriving on 17 March 1987. She and her husband have two children, a daughter Jill born on 12 February 1989 and a baby who was ten months old at the time of the hearing before the Immigration Review Tribunal in August 1993. On 17 May 1989 Mrs Teo became an Australian citizen, renouncing her Singapore citizenship. Apart from her husband and infant children, her only relative in Australia is Mr Chua.

4. The compassionate ground relied upon in relation to Mrs Teo was set out by her in writing, as follows:
   

"My brother, Stan Chua and my father are the closest and best love(d) next-of-kin. I migrated to Australia because I knew that my brother loved Australia and (it) is his place of residence.

I have a 22 month-old daughter born here in Australia. My brother will be the sole legal guardian and will be able to provide long-term support and assistance should any mishaps occur to me and my husband.

My husband and I are Australian citizens and we have already renounced our Singapore citizen (sic). There is no chance of Jill (i.e., Mrs Teo's elder daughter who was born in Australia) ever returning to live permanently in Singapore. Life would be meaningless if my brother has to leave Australia. Moreover, earlier this year my father's migration application was rejected. All this has been most depressing. If my brother has to leave Australia, I wouldn't know what else to do. It might be the greatest mistake in my life to migrate to Australia. We have nothing to look forward (to) with our future in Australia if Stan Chua (Mr Chua is known as Stan or Stanley) is not here with us.

Words cannot express our tremendous hardship, emotional stress and devastation if Stan Chua, my brother, is not allowed to remain here permanently.

I am appealing deeply to your most human consideration for a favourable reply."

1. This was a very strong claim to an unusually close attachment, so close that she had, she asserted, come to Australia, burning her boats in her homeland, to be with her brother. Careful examination of such a claim was called for. But the Tribunal heard oral evidence from Mrs Teo and Mr Chua, and found:
   

"The evidence establishes that the Applicant has a very close relationship and bond with the Principal (i.e. Mr Chua), and relies heavily upon him for emotional support. She settled in Australia in 1987 with her husband, to be close to the Principal, and although she was aware that he had illegal status, she hoped that she would be able to sponsor him eventually. The Applicant in evidence said that she had no other relatives in Australia, and should anything happen she would have no one to turn to without the Principal. In addition she could not return to Singapore as she had renounced her citizenship. The Applicant and her husband have a business, and a large number of friends in Australia. The Principal reiterated the close emotional bond existing with the Applicant and his niece, and said that she (the Applicant) and her husband made a lot of sacrifices to come to Australia to be with him, and if he was obliged to leave she would have no one to turn to should anything happen to her husband in the future. The Principal conceded that these sacrifices were made in the knowledge that he had illegal status at the time, but they hoped to be able to sponsor him eventually."

In reading this passage, the reference to "a large number of friends in Australia" should not be understood as indicating some situation, in that regard, out of the ordinary. It was simply that when Mrs Teo was asked "(W)hat about friends?" she answered: "Oh yes, we do have quite a number of friends here." The reference to her hope that she would be able to sponsor her brother eventually might also mislead; her evidence was that she "always understood that if I am a permanent resident here and a citizen I would definitely be able to sponsor him in due course".

1. The finding of "a very close relationship and bond" between brother and sister, and that she "relies heavily upon him for emotional support", was fully justified by the evidence. It showed that they visited each other "almost every weekend whenever possible", and Mrs Teo said that her elder daughter was "really close to him". Mrs Teo's mother had died when she was very young. During the course of the hearing, the Tribunal (constituted by Mr P. Johnson, Presiding Member) stated:
   

"I understand the witness has already referred to the strong emotional ties with her brother and that was the reason why she came to this country to set up here. Is there anything particularly that you would like to say further on that emotional issue? As I understand what you have said, is that you're very emotionally attached.

MRS TEO: That's right.

MR JOHNSON: There is a close relationship with your brother?

MRS TEO: Very close relationship, yes. MR JOHNSON: You rely upon him for emotional support. MRS TEO: Yes.

MR JOHNSON: And that you came to this country to be with him. You have settled here to be with him? MRS TEO: That's right.

MR JOHNSON: And he has continued to provide emotional support since you have been here? MRS TEO: That is so."

There was nothing to suggest that this evidence was under challenge, and the findings which I have quoted indicate that the Tribunal accepted it.

1. However, the Tribunal, referring to the compassionate grounds in reg. 131A(1)(d)(v), said that it was "satisfied on the material available that no such grounds exist". It referred to the test under this sub-paragraph as "quite severe". After adverting to a number of matters, which the Tribunal regarded as irrelevant, it said:
   

"The Tribunal accepts that the Applicant and the Principal are very close. However it does not accept the submission made by the Applicant's solicitor that not being able to live with her brother constitutes 'extreme hardship or irreparable prejudice'. The Tribunal accepts that the Applicant will suffer some hardship or prejudice but, as Jenkinson J observed in Prasad v. Minister for Immigration, Local Government and Ethnic Affairs ... 'the postulated hardship or prejudice

(must) be of such a degree as to excite compassion, in the sense of that word which is given second in The Oxford English Dictionary (2nd ed.): 'The feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour'.' The Tribunal does not consider that the distress which the Applicant may feel on being separated from her much loved brother (emphasis added) amounts to 'extreme hardship' or 'irreparable prejudice' in this sense. The Applicant will not be left without support in Australia and the suggestion that she would be left without such support were her husband to die (emphasis added) is pure speculation. There is nothing in the evidence before the Tribunal to suggest that this eventuality is likely to occur in the foreseeable future. . . .

It is not necessary to decide, therefore, whether it matters for the purpose of this review that, as the Tribunal has found, the Applicant knew of her brother's illegal status when she took the decision to migrate to Australia but hoped that she would be able to sponsor him eventually. Even accepting that this is not relevant the Tribunal does not consider that the Applicant will be caused 'extreme hardship' or 'irreparable prejudice' if the Principal is not allowed to remain here permanently.

As on many occasions, given the severity of the legislative criteria discussed above, the Tribunal further finds that the hardship or prejudice that would be experienced due to the love and affection they have for each other does not meet the requirements of regulation 131A(1)(d)(v). Accordingly, the Principal is not eligible for the grant of a December 1989

(temporary) entry permit."

This conclusion, of course, is not one reached in the exercise of a discretion, but is simply a conclusion that statutory criteria are not met. In such a case, a contention that the decision was so unreasonable that it involved error of law proceeds on the same basis as a contention that, in law, the Tribunal's decision was not open to it upon the material before it, or upon the facts accepted by it. Cf Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288-289; Collector of Customs v. Sharp Corporation of Australia Pty Limited (unreported, Burchett J, 9 August 1994), where there were also further questions of law involved as to the construction of the relevant statutory provisions.

1. The proposition stated by the Tribunal, that the risk of Mrs Teo being left without support in Australia should her husband die is pure speculation, very greatly understates the relevant consideration raised by her evidence. She did not say that she was concerned about the possible death of her husband. What she said was: "I've got two very very young daughters, and he (i.e. her brother) is the only next-of-kin that I have besides my husband, so should anything happen there is absolutely no one for me to turn to." As a matter of ordinary human experience, and well known statistical probability, the things that might happen are much more likely to be accident or illness of either parent affecting the ability to earn or to care for young children, or failure of the marriage, than the death of the spouse of a relatively young mother. These very real risks were simply ignored, although the broad proposition stated by Mrs Teo plainly embraced them. In my opinion, the risk of them was a relevant matter to be considered together with the acknowledged strong emotional bond between this brother and this sister, who had, it was accepted, come to Australia because he was here, thereby cutting herself off from her home country, and together with the effect upon her if the close emotional bond between her brother and his niece must also be severed, leaving her and her children isolated from their wider family.

2. But what is even more significant, in my opinion, is the complete absence, from the reasons given by the Tribunal, of any advertence to the nature of the alternative in sub-paragraph (v) of "irreparable prejudice". As has been pointed out, that prejudice need not be extreme. The test for it is, instead, the quality of being irreparable. There is nothing at all to suggest that Mrs Teo's evidence was not accepted, when she indicated that the loss of her brother would be irreparable. She had renounced her Singaporean citizenship and become an Australian citizen. Her children were born here, and plainly she had to stay here where they were growing up and she and her husband were in business. As I have said, there is no suggestion that her evidence on this subject was not accepted. That being so, the question was not whether the prejudice she would suffer from the denial of an entry permit to her brother was "extreme", or any synonym for that word. The criterion would be met if her plight would excite compassion, as that concept must be understood in the sub-paragraph, where it is associated with other compassionate grounds referring to the consequences of the rupturing of relationships of a familial kind. How is it to be denied of the situation accepted by the Tribunal that it would excite compassion in this sense? That other cases, such as Fuduche (supra), might excite more compassion, is irrelevant. Here, a very close relationship has been accepted, and it has been reflected in the kind of actions one would expect of ties very different from the mere ordinary tie between siblings. The situation of Mrs Teo may not be unique, but it is certainly beyond the ordinary, and her loss, if her brother must leave Australia, is of the kind that would generally evoke a strong sentiment of sympathy towards her sorrow.

3. In my opinion, given the findings that the Tribunal has made, the decision against the applicant, explained only in terms of such generality as to be devoid of any precise meaning, is so unreasonable that it is probable the Tribunal misunderstood the sub-paragraph it should have been applying. I conclude that the absence of reference to the nature, as a separate and specific alternative, of "irreparable prejudice" indicates, in this case, a failure to understand the real effect of the availability of that alternative, or its true scope. If I am wrong in that conclusion, I think the decision, on the facts accepted by the Tribunal, is so unreasonable as to offend the principle stated in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223 at 229-233. See Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388-391; Fuduche (supra); Mensa v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 31 ALD 301; and C A Ford Pty Ltd t/as Caford Castors v. Comptroller-General of Customs (1993) 46 FCR 443 at 446-447.

4. In any case, the Tribunal also erred in law by omitting the relevant considerations of the effect upon the applicant of her children's loss, in their parents' new country, of so involved an uncle, and of her exposure, not merely to the unlikely need which the death of her husband might produce, but to the more probable need which accident, illness, unemployment, business failure or marriage breakdown would produce. Those considerations I think the Tribunal was bound to take into account.

5. A strong attack was made, at the hearing before me, upon what was said to have been the trivialisation of the real issues by the Tribunal during the course of the evidence, and its hindrance of the presentation of the case attempted to be presented. Having regard to the conclusions I have stated, it is unnecessary to consider the applicant's complaint that she was, in substance, denied natural justice.

6. The appeal should be allowed; the decision of the Immigration Review Tribunal should be set aside; and the matter should be remitted to the Tribunal, differently constituted, to be determined in accordance with these reasons. The Minister must pay the costs of the appeal.