Verissimo, Jorge Manuel v Minister for Immigration and Multicultural Affairs [1997] FCa 1030

[1997] FCA 1030

FEDERAL COURT OF AUSTRALIA

MIGRATION - Migration Act 1958 (Cth) s 353 - Migration Regulations reg 131A(1)(d)(v) - application for review of decision by Immigration Review Tribunal - whether the Tribunal observed the procedures prescribed by the Migration Act to be observed in connection with the making of the decison - meaning of “irreparable prejudice”.

Migration Act 1958 (Cth), ss 353, 476
Migration Regulations 1989, reg 131A(1)(d)(v)
Migration Reform (Transitional Provisions) Regulations, reg 23

Moges Eshetu v Minister for Immigration and Multicultural Affairs (Full Federal Court, 10 July 1997, unreported) followed
Dharam Raj v Minister for Immigration and Ethnic Affairs (Davies J, 18 July 1996, unreported) followed
Luu v Renvier (1989) 91 ALR 39 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited
Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 followed
Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24 cited
Palwinder Singh v Minister for Immigration and Ethnic Affairs (von Doussa J, 31 Jan 1996, unreported) not followed
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 followed

JORGE MANUEL VERISSIMO v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 589 of 1996

BRANSON J
SYDNEY
26 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 589  of   1996

BETWEEN:	JORGE MANUEL VERISSIMO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		BRANSON J
DATE OF ORDER:		26 SEPTEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

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

1. The matter be referred to the Immigration Review Tribunal for further consideration.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 589 of 1996

BETWEEN:	JORGE MANUEL VERISSIMO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	26 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review by this Court of a “judicially reviewable decision” of the Immigration Review Tribunal (see s 475 of the Act).

The grounds upon which review of the decision of the Immigration Review Tribunal (“the Tribunal”) are sought are that -

“1.The Tribunal erred in law in its application of regulation 131A(1)(d)(v) [of the Migration Regulations 1989 (Cth)] to the facts of the applicant’s case.

2.... procedures that were required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed.”

The above grounds are grounds upon which s 476 of the Act authorises the making of an application for review (s 476(1)(a) and (e)).

APPLICATION HISTORY
The applicant, Mr Verissimo, is a citizen of Portugal who arrived in Australia on 9 January 1987.  He entered Australia on a temporary entry permit valid for six months.  Although no further entry permit was granted to him, he did not leave Australia at the expiration of his temporary entry permit.  He became an illegal entrant in July 1987. 

Mr Verissimo took advantage of the concessions extended to persons illegally in Australia on 19 December 1989 by lodging on 20 October 1992 an application for a December 1989 (temporary) entry permit.  The primary decision maker rejected this application on 25 October 1994 on the basis that Mr Verissimo failed to satisfy the criteria for the grant of the entry permit sought.  An application for review was lodged with the Tribunal on 17 November 1994.  The Tribunal, on 28 June 1996, decided to affirm the decision of the primary decision maker.  It is that decision which is the subject of the present application for review.

STATUTORY BACKGROUND
Major amendments to the Act came into effect on 1 September 1994. The effect, in the circumstances of this case, of reg 23 of the Migration Reform (Transitional Provisions) Regulations, which also came into effect on 1 September 1994, was that Mr Verissimo’s application for a December 1989 (temporary) entry permit was taken from 1 September 1994 to be an application for a transitional (temporary) visa. However, although taken to be an application for a transitional (temporary) visa, the application is to be decided according to the criteria that applied to the entry permit for which application was in fact made (reg 23(3)). That is, for present purposes, the criteria prescribed by reg 131A of the Migration Regulations 1989.

The crucial criterion for present purposes is that prescribed by reg 131A(1)(d)(v) of the Migration Regulations 1989 which is in the following terms:

“On 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:

...

(v)there is any ... 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”.

Section 353 of the Act provides as follows:

“(1)The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)shall act according to substantial justice and the merits of the case.”

FINDINGS OF THE TRIBUNAL
The Tribunal accepted that Mr Verissimo is a qualified soccer coach who had been a professional soccer player in Portugal.  Although he was brought up in Portugal, members of his family had lived in East Timor and some of them have come to Australia from there as refugees.

The person identified as the Australian citizen or Australian permanent resident to whom “extreme hardship or irreparable prejudice” would be caused if Mr Verissimo were not to be allowed to remain in Australia is John Carrascalao (“Mr Carrascalao”).   Mr Carrascalao was born in East Timor where he was raised by Portuguese parents.  Mr Carrascalao is presently President of the Portuguese Communities Council of Australia and of the Timorese Association of Australia.

Mr Verissimo and Mr Carrascalao first met in 1977 or 1978 when Mr Carrascalao was in Portugal following the invasion of East Timor by Indonesia.  Mr Carrascalao had known Mr Verissimo’s sister in East Timor.

In 1978, soon after he came to Australia, Mr Carrascalao formed an interest in bringing together the two Portuguese speaking communities living in Australia; the well established Portuguese community and the more recently established East Timorese community.  Mr Verissimo, since his arrival in Australia, has played an important part in helping Mr Carrascalao, and the two associations of which Mr Carrascalao is President, to unite the two communities by co-ordinating the establishment of a soccer school within the two communities in Sydney.  The involvement of Portuguese and Timorese youths in the three soccer clubs which have now been established, principally through Mr Verissimo’s efforts, has brought their families together, uniting divisions in the Portuguese speaking communities, and has also brought such communities into mainstream Australian society.  There is no other person in Australia who has the combination of abilities that Mr Verissimo has brought to the soccer project.

Mr Carrascalao is not in good health.  He had a heart attack in 1982 and bypass surgery in 1988 or 1989, and in 1995.  He also suffers from a gastric ulcer, hypertension and diabetes.  Mr Carrascalao and Mr Verissimo have developed an intimate friendship and Mr Carrascalao will experience a significant sense of personal loss if Mr Verissimo is required to leave Australia.  He will also lose the “brotherly” support and affection provided to him by Mr Verissimo. 

Three reports prepared by Dr Bruce Westmore, forensic psychiatrist, were placed before the Tribunal.  One followed a psychiatric examination of Mr Carrascalao and contained details concerning the relationship between Mr Carrascalao and Mr Verissimo and concerning Mr Carrascalao’s own personal history and mental state.  This report expresses the view that “there are sound grounds for considering this application in a favourable light”.  The application referred to is Mr Verissimo’s application for “permanent residency in Australia on compassionate grounds”.  The second report is of a psychiatric evaluation of Mr Verissimo and it follows a similar pattern to that concerning Mr Carrascalao.  Relevantly, this report expresses the opinion that “there does seem to me to be quite good evidence that the nominator in this matter will be adversely affected if the nominee, Mr Verissimo, is required to return to Portugal”. 

Following expressions of concern made by the Tribunal members as to the helpfulness in the circumstances of the expressions of opinion of Dr Westmore, Mr Verissimo’s legal representative arranged for Dr Westmore’s third report to be provided to the Tribunal.  This short report includes the following paragraphs:

“As indicated in my earlier report, [Mr Carrascalao] presents as being a very genuine, concerned historian, his relationship with the nominee in this matter, Mr Verissimo, appears to be both at a personal and a community and cultural level.  The two men have maintained a friendship over some time and have developed in that sense an intimate friendship.

My view would be that Mr Carrascalao would suffer ‘extreme hardship’ if Mr Verissimo were required to leave Australia.  The loss for Mr Carrascalao would be particularly at a personal level, although obviously there would be secondary fallout because of the contribution he makes to the local community.”

CONSIDERATION
The Full Court of this Court in Moges Eshetu v Minister for Immigration and Multicultural Affairs (Full Federal Court, 10 July 1997, unreported) gave consideration to s 420 of the Act, which is in identical terms to s 353 except that it is directed to the Refugee Review Tribunal. The majority of the Full Court concluded that s 420 describes procedures with which the Refugee Review Tribunal was bound to comply. The respondent withdrew a submission that “the remarks of Davies J and Burchett J in Moges Eshetu v Minister for Immigration and Multicultural Affairs .... upon the interaction between sections 420 and 476 of the Migration Act were obiter”.   Whether or not such remarks are obiter, I believe that I should follow them; they represent the considered views of the majority of the Full Court on an issue of importance. I therefore construe s 353 as describing procedures with which the Tribunal is bound to comply. However, as Davies J pointed out in Dharam Raj v Minister for Immigration and Ethnic Affairs (Federal Court, 18 July 1996, unreported), the principles of procedural fairness which are applied in this country, and reflected in s 353 of the Act, require parties to be given a fair opportunity to present material; they do not require a Tribunal to make its own inquiries or make the case for the applicant (see also Luu v Renvier (1989) 91 ALR 39 at 45; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 per Mason CJ and Deane J at 290).

It was submitted on behalf of Mr Verissimo that -

“[T]he Tribunal ought to have taken oral evidence from Dr Westmore if it was unsure of the basis for the Doctor’s written conclusion that: ‘My view would be that Mr Carrascalao would suffer “extreme hardship” if Mr Verissimo were required to leave Australia’.  Indeed, the applicant’s adviser at the hearing suggested that course of action to the Tribunal and the Tribunal rejected that suggestion without enquiry as to the availability of Dr Westmore.”

The above submission, in my view, overlooks the ambiguity of the relevant exchange between Mr Verissimo’s representative and the members of the Tribunal.  I do not set out that exchange in full.  However, after the Tribunal members expressed concerns as to the failure of Dr Westmore’s original reports to elaborate on the personal loss likely to be experienced by Mr Carrascalao should Mr Verissimo return to Portugal, its impact on Mr Carrascalao’s health and the evidence upon which he based his opinions, the transcript reports the following exchange between Mr Verissimo’s representative and Mr Borden, a Tribunal member:

“MR OSEI:   Unless the tribunal wishes to hear from Dr Westmore on both [ie his opinion and why he reached it], otherwise we could ask him to explain, but perhaps he would probably be able to explain how he arrived by that and whether that brings ...

MR BORDEN:   Well, I think if we rang him now out of the blue it would not work, and if we were to speak to him after we reconvene, which seems, as you remind us, because we are efficient, quick, as well as fair and just, it would perhaps be asking a bit much. We will see what he can come up with.  After all, it is something he can reflect on.  And if we need, we can write back to him.

MR OSEI:   Okay.

...

MR OSEI:   I will ask him for an opinion.”

It may be observed from the above exchange that Mr Verissimo’s representative neither unambiguously applied to call Dr Westmore to give oral evidence before the Tribunal nor unambiguously asked the Tribunal to arrange for Dr Westmore to give such evidence to the Tribunal.  The Tribunal, in an appropriate way, alerted Mr Verissimo’s representative to its reservations concerning Dr Westmore’s reports and gave an opportunity for the material from Dr Westmore to be supplemented.  There is no reason to think that the deficiencies that the Tribunal saw in Dr Westmore’s report were not of a kind capable of being addressed in a further written report.  Indeed, Mr Verissimo’s representative appears plainly to have considered that they were capable of being so addressed.

There is no merit, in my view, in the complaint of Mr Verissimo that the Tribunal did not observe the procedures required by the Act to be observed in connection with the making of its decision. The Tribunal, having made clear its concerns respecting Dr Westmore’s reports, and having received a supplementary report from him, was not required of its own motion to call him to supplement his reports orally. It was for Mr Verissimo and his representative to make out his case; it was not for the Tribunal to do so.

I am also satisfied that the Tribunal made no error of law in its application of reg 131A(1)(d)(v) of the Migration Regulations 1989 to the facts of this case so far as Mr Carrascalao’s health is concerned. I do not accept that “the potential effect of the applicant’s departure from Australia on Mr Carrascalao’s health was never fully considered by the Tribunal” as is asserted in the applicant’s outline of submissions. In my view, such evidence on this topic as was placed before the Tribunal was properly considered by it. In any event, the case of the applicant both before the Tribunal and before me, so far as it is based on Mr Carrascalao’s health, appears to overlook the requirement of reg 131A(1)(d) that the relevant criterion be one which was met “on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit ...”.  No material was placed before the Tribunal on the issue of whether on 15 October 1990, and in the years next following, refusal to grant to Mr Verissimo an entry permit would have caused extreme hardship or irreparable prejudice to Mr Carrascalao by reason of his health.  Dr Westmore’s evidence, and the lay evidence on the topic of Mr Carrascalao’s health, was all directed to the impact on him of Mr Verissimo’s leaving Australia in the near future.

I am troubled, however, by the Tribunal’s treatment of the evidence before it concerning Mr Verissimo’s involvement in Mr Carrascalao’s soccer project.  Early in its reasons for decision, the Tribunal rightly identified that it was required to consider the two concepts of “extreme hardship” and “irreparable prejudice” separately.  It recognised that whilst “extreme hardship” calls for an extreme degree of hardship, but not necessarily for hardship of a long term or permanent nature, “irreparable prejudice” involves a detriment which cannot be remedied (Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144, approved by the Full Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 205).

The findings of the Tribunal concerning Mr Verissimo’s involvement in the soccer project are to be distilled from the following passage in its reasons for decision:

“If Mr Verissimo had to leave Australia between September 1990 and now, Mr Carrascalao would have lost an extremely good friend who apart from the qualities of a close friend plays a pivotal role in Mr Carrascalao’s ‘project’.  Whether Portuguese soccer could have developed in Australia as it has, or whether its role in the Portuguese community here would have been so pronounced without Mr Verissimo is difficult to say.  But on the evidence before us we can say that without Mr Verissimo these goals would have been much harder to achieve.

But the question for us is - even if we accept that Mr Carrascalao’s ‘project’ would have failed without Mr Verissimo’s help - does this amount to extreme hardship or ‘irreparable prejudice’ as these terms are used in regulation 131A(i)(d)(v) [sic]?  In our view, even the failure of Mr Carrascalao’s ‘project’ would not have had the effect upon him of ‘extreme hardship’ or irreparable prejudice.

Speaking more generally, on the material before us Mr Carrascalao did not and does not appear to us to depend upon Mr Verissimo to the extent required by the regulation.  During the relevant period Mr Carrascalao had some ill health for which he is being treated and with regard to this he no doubt obtains support from his wife and son in Australia, if not from other friends here.  Mr Carrascalao strikes us as a strong and self reliant individual and this is shown from his work here as a community leader.  The medical reports of Dr Westmore do not, in our view, disclose the sort of material which would allow us to have confidence in his conclusions.

In short, the evidence before us does not establish the degree of dependence of the nominator upon Mr Verissimo for friendship, medical assistance or the success of the ‘project’ - which would satisfy regulation 131A(1)(d)(v).” (emphasis original)

The difficulty with the final paragraph of the above passage, so far as it is concerned with the soccer project, is that the evidence concerning the soccer project which was apparently accepted by the Tribunal was that Mr Verissimo played an important, indeed crucial, role in the soccer project, that he was “uniquely placed”  to fill that role and that he was “irreplaceable” in respect of it.  It would seem to be an inevitable conclusion from such evidence that the soccer project itself would have at all times since 15 October 1990 suffered serious harm, or failure, were Mr Verissimo to have left Australia.  Indeed the Tribunal, as the above passage shows, was willing to consider Mr Verissimo’s application on the basis that the soccer project would fail if Mr Verissimo were not involved in it.

An issue before the Tribunal was, therefore, as the Tribunal identified, whether the failure of, or serious damage to, the soccer project would amount to “irreparable prejudice” to Mr Carrascalao within the meaning of reg 131A(1)(d)(v). The conclusion of the Tribunal that the evidence before it did “not establish the degree of dependence of the nominator upon Mr Verissimo for ... the success of the ‘project’ - which would satisfy reg 131A(1)(d)(v)” is not easily understood against an apparent finding that Mr Carrascalao’s dependence upon Mr Verissimo for the success of the soccer project was absolute.  That is, that without Mr Verissimo the project would have at all times failed, or been seriously harmed, and further, that the project will fail, or will be seriously harmed, if Mr Verissimo is required to leave Australia.

It may be that the Tribunal’s reference to Mr Carrascalao’s degree of dependence upon Mr Verissimo so far as the soccer project is concerned was intended to be understood as directed to the extent or nature of the prejudice which would be suffered by Mr Carrascalao should Mr Verissimo leave Australia and the soccer project fail; that is, whether the prejudice would be such as to amount to a compassionate ground for the grant of an entry permit to Mr Verissimo within the meaning of reg 131A(1)(d)(v) (see Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24 at 27 - 29 and Palwinder Singh v Minister for Immigration and Ethnic Affairs (von Doussa J, 31 Jan 1996, unreported).

However, even so understood, the reference, in my view, indicates a misunderstanding of the legal nature of the requirement in reg 131A(1)(d)(v) of “irreparable prejudice to an Australian citizen or Australian permanent resident”.  There is no reason to think that the expression “irreparable prejudice” is used in reg 131A(1)(d)(v) in other than its ordinary meaning. The Macquarie Dictionary defines the composite parts of the expression as follows:

“irreparable ..., adj. not reparable; incapable of being rectified, remedied or made good: an irreparable loss ...”

“prejudice ...1. [not relevant]; 2. [not relevant]; 3. disadvantage resulting from some judgment or action of another. 4. resulting injury or detriment.  ...”

The expression thus denotes a disadvantage, injury or detriment incapable of being made good.  The final paragraph of the passage from the reasons for decision of the Tribunal, which is set out above, reveals that the Tribunal was concerned so far as the soccer project was concerned to assess the degree of dependence by Mr Carrascalao on Mr Verissimo, rather than to assess whether any prejudice to Mr Carrascalao resulting from the loss of Mr Verissimo from the soccer project could be made good. In fact, as is mentioned above, it was accepted by the Tribunal that the harm that the soccer project will suffer if Mr Verissimo has to leave Australia will be irreparable; Mr Verissimo is, and has at all times been, irreplaceable in the role that he plays in the project.

Of course, in the context of reg 131A(1)(d)(v), which is concerned with a compassionate ground for the grant of an entry permit, such disadvantage, injury or prejudice must be of a kind that can sensibly be regarded as amounting to such a ground. Neither counsel urged me to follow the approach adopted by von Doussa J in Palwinder Singh’s Case of confining prejudice in this context to actual personal injury or material damage. However, it is plain enough on the authorities that disadvantage, injury or prejudice of a trivial nature may be disregarded for the purposes of reg 131A(1)(d)(v).

The assessment of whether any prejudice to Mr Carrascalao which would result from Mr Verissimo’s loss to the soccer project would be such as to amount to a compassionate ground for the grant of an entry permit is an assessment to be made by the Tribunal.  However, in the circumstances of this case, it would not have been appropriate, in my view, for the Tribunal to have concluded, if it did so conclude, that it was not Mr Carrascalao who would suffer prejudice if the soccer club failed, but rather the associations of which he was the president, or the Portuguese speaking communities in Australia generally.  Mr Carrascalao gave evidence, which the Tribunal accepted, of his personal dream to unite the Portuguese speaking communities in Australia, and of his significant personal commitment to the soccer project as a way of achieving that dream.  In such circumstances, in my view, failure of the project, or significant ongoing harm to it, is capable of being seen as amounting to prejudice to Mr Carrascalao personally.

CONCLUSION
In my view, it was open to the Tribunal in the circumstances to reach the conclusion that the failure of the soccer project would be an irreparable prejudice to Mr Carrascalao within the meaning of reg 131A(1)(d)(v) of the Migration Regulations 1989. Whether, if it finds that such failure would amount to an irreparable prejudice to Mr Carrascalao, it finds that such prejudice is sufficient to amount to a “compassionate ground for the grant of an entry permit” within the meaning of reg 131A(1)(d)(v) will depend upon its assessment of whether such prejudice would be real or substantial in nature as opposed to trivial in nature. To adapt the language of Hill J in Kobayashi’s Case at 28, it will depend on whether the Tribunal concludes that the circumstances are such as to enliven compassion in a reasonable person.

I conclude that the first ground upon which review of the decision of the Tribunal is sought is made out; that is, that the Tribunal erred in law in its application of reg 131A(1)(d)(v) of the Migration Regulations 1989 to the facts of the applicant’s case. That error is to be found in the Tribunal’s consideration of whether on 15 October 1990 and thereafter there was a compassionate ground for the grant of an entry permit to Mr Verissimo to the effect that refusal to grant such permit would cause irreparable prejudice to Mr Carrascalao. In particular, the reasons for decision of the Tribunal indicate that it was concerned to identify a high degree of prejudice rather than “irreparable prejudice”.

The decision of the Tribunal will be set aside and the matter referred to the Tribunal for further consideration.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:             

Counsel for the Applicant:	Ms A Drayton with Mr K Osei
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 August 1997
Date of Judgment:	26 September 1997