Vo'ifalelahi v Minister for Immigration, Local Government and Ethnic Affairs
[1996] FCA 174
•22 MARCH 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VG 252 of 1993
)
GENERAL DIVISION )
ON APPEAL FROM THE IMMIGRATION REVIEW TRIBUNAL CONSTITUTED BY MS PAMELA O'NEIL, PRESIDENT
BETWEEN: SONASSI VO'IFALELAHI
(Applicant)
AND: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
(Respondent)
CORAM: Ryan J
DATE: 21 March 1996
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That the decision of the Immigration Review Tribunal of 26 May 1993 affirming the decision under review refusing the grant to Fisiilose Latupauu of a December 1989 (temporary) entry permit (Class 440) be set aside.
The matter be remitted to the Tribunal differently constituted to be determined according to law.
The respondent pay the applicant's costs such costs to be taxed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) VG 252 of 1993
)
GENERAL DIVISION )
ON APPEAL FROM THE IMMIGRATION REVIEW TRIBUNAL CONSTITUTED BY MS PAMELA O'NEIL, PRESIDENT
BETWEEN: SONASSI VO'IFALELAHI
(Applicant)
AND: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
(Respondent)
CORAM: Ryan J
DATE: 21 March 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
RYAN J: This is an application by way of an appeal brought by the applicant ("the applicant sponsor") for the benefit of his step-sister, Ms Fisiilose Latupauu ("the principal applicant") from the decision of the Immigration Review Tribunal ("the Tribunal") given on 26 May 1993 whereby the Tribunal affirmed the decision under review refusing the grant of a December 1989 (temporary) entry permit (Class 440) within Reg.131A of the Migration (1989) Regulations ("the Regulations").
The Legislation
So far as is relevant, Reg. 131A of the Regulations stipulates these criteria for the grant of a December 1989 (temporary) entry permit:
131A.(1) The following criteria are prescribed in relation to a December (temporary) entry permit:
(a)the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;
(b)the applicant has not left Australia after 18 December 1989;
(c)the applicant applies, in accordance with these Regulations, before 19 December 1993 for the entry permit;
(d)on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:
(i)the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or
(ii)the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or
(iii)the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or
(iv)the applicant is:
(A)an aged dependent relative; or
(B)an orphan relative; or
(C)a special need relative; or
(D)a remaining relative within the meaning of regulation 9;
of a settled Australian citizen or settled Australian permanent resident; or
(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;
(e)if:
(i)the applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph (d)(i), (ii) or (v); and
(ii)in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support;
an assurance of support satisfactory to the Minister has been given;
(f)if the applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph (d)(iii) or (iv) - an assurance of support satisfactory to the Minister has been given;
(g)the applicant has been nominated by the relevant related person referred to in paragraph (d);
(h)the applicant notifies the Department, without unreasonable delay, of each change of his or her residential address.
In this regulation "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that has occurred in the applicant's country of citizenship or of usual residence.
"Special need relative" is defined in these terms in Reg. 2 of the Regulations:
"special need relative", in relation to an Australian citizen or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to give substantial continuing assistance to the citizen or resident where:
(a)the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit;
(b)the assistance cannot reasonably be obtained from:
(i)any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; or
(ii)welfare, hospital, nursing or community services in Australia.
Background Facts
The applicant sponsor is an Australian permanent resident, as are his wife and two children. They live in a Housing Commission home in Griffith, in western New South Wales. Also residing there are the applicant sponsor's step-brother, Touliki Feiloakitohi, his wife and child and the principal
applicant who is an unmarried step-sister of the applicant sponsor.
The applicant sponsor's widowed mother is presently in Australia although not legally resident here. He has one full brother, an Australian citizen, who resides in Sydney and another step-sister, Sisi Latapauu, a legal resident of Australia. A married sister, Malia Beatupu, remains in Tonga.
The applicant sponsor was born 29 April 1948. In December 1988 he suffered a cardiovascular arrest. A report dated 8 March 1993 compiled by Ms Julie Murray, Occupational Therapist with the Murrumbidgee Health Service, addressed to Ms Graham of the Tribunal provides these details of his medical condition:
Right hemiplegia resulting in increased tone in right arm with no functional use. Right leg able to take weight for short periods of time but remains weak and uncoordinated. Has a global expressive aphasia but 'appears' to understand the spoken word and respond appropriately within his capabilities. Mr Vo'Ifalelahi also suffers from asthma and epilepsy resulting in regular visits to his GP.
Before that report had been furnished, Ms Murray had been requested by Ms Graham to respond to the following questions:
1.Does Mr Vo'Ifalelahi need to have an adult person in constant attendance upon him because of his hemiplegia and/or epilepsy and/asthma?
2.If so, does this attendant need to have particular skills or characteristics e.g. physical strength?
3.Is more than one person required to assist? If so, how many people are required?
4.If Mr Vo'Ifalelahi requires assistance and his relatives (other than his wife) are not available to provide it, are health or community services available in Griffith to meet his needs?
5.If so, what services are available?
In response to those specific questions Ms Murray wrote:
a)I believe Mr Vo'Ifalelahi requires an adult person with him constantly as he is unable to meet his basic needs independently.
b)His Attendant would need skills re safe transfers and providing self care that is appropriate for Mr Vo'Ifalelahi. The Attendant needs to feel confident in his/her abilities, particularly if they are smaller and not as strong as Mr Vo'Ifalelahi. At present, the family appears to manage without equipment available to assist them, ie a wheelchair for mobility.
c)It appears that one person only is needed to assist in most situations, but the care is constant and heavy and could be physically/emotionally draining if one person provided the care 24 hours per day without support and regular breaks. I feel Mrs Vo'Ifalelahi would be unable to provide this care for any length of time with the responsibility of two young children and I believe the presence of another adult in the home to share the care would be necessary.
d)As in most country towns, community services are limited and usually stretched to their limit. These services would require a fee for service which is usually negotiated. The Vo'Ifalelahi's have not used any services in Griffith up to the present time. Suitable services may include (although they were offered upon his discharge from hospital):
*Home Care to assist with showering, housework, respite care, shopping.
*Day Care - although may not be culturally appropriate.
*Regular review by Aged Care Assessment Team re needs.
These proposals are only suggestions and dependent on many factors - family's acceptance of help; no deterioration in Mr Vo'Ifalelahi's condition; availability of services to meet needs; provision of suitable equipment.
It appears that up to the present time, the family have coped with the care and managed as a family unit, not placing additional demands on community services which already have waiting lists. With Mr Vo'Ifalelahi's history of decreased motivation and judging by his rehabilitation notes indicating his condition has not altered markedly since his discharge from hospital, his wife would require the maximum amount of support from community services to manage (if this were available and accepted) or need another adult person present in the home.
The principal applicant, a Tongan national born on 26 May 1966, first arrived in Australia on 28 June 1987. She was granted a temporary entry permit valid for three months. After it expired the principal applicant became a prohibited non-citizen and has not returned to Tonga. No further permit has been granted.
On 30 October 1991 the principal applicant lodged an application for a December 1989 (Temporary) Entry Permit pursuant to Reg. 131A of the Regulations with the Department of Immigration and Ethnic Affairs ("the Department"). The grounds of the application were threefold. The first was that the applicant sponsor was a special need relative pursuant to Reg. 131A(1)(a)(d)(iv)(C). Secondly, the principal applicant was said to be a remaining relative pursuant to Reg. 131A(1)(d)(iv)(D). Thirdly, it was contended that compassionate grounds were available under Reg. 131A(1)(d)(v) in that refusal to grant the entry permit would cause extreme hardship and irreparable prejudice to the applicant sponsor.
The application was refused on 18 May 1992. On 20 June 1992 application for review of that refusal was made to the Tribunal. On 26 May 1993 the Tribunal affirmed the decision under review. Proceedings in this Court commenced on 23 June 1993.
When completing part 6.1 of the form of application for the December (1989) entry permit requesting details of the assistance provided to the applicant sponsor in the capacity of special need relative, the principal applicant stated:
I cook for him, feed him, take him to the doctors.
The principal applicant also gave oral evidence before the Tribunal through an interpreter about the help which she provides to the applicant sponsor, stating:
...the physical help and everything they cannot supply that, because in our Tongan custom sister cannot - ...the help mainly comes from domestic work, housework and looking after the children.
...
I help with cooking, cleaning the house, washing, and I also take the child to school; takes about half an hour every morning, and the afternoon, as well as bringing him back from school.
The Decision of the Tribunal
(a)As to special need relative
In its reasons for decision, the Tribunal concluded that the disabilities of the sponsor applicant meant that he:
requires the attendance of a strong adult person to assist him physically in routine aspects of daily living, plus additional help when he is ill.
In response to specific questions as to the Applicant [sponsor's] need for care, Ms Murray replied as follows:
In the light of this and other relevant evidence, it seems unreasonable to expect that Mrs Vo'ifalelahi should be expected to care for her husband unaided. Nor do I believe that it is realistic to expect that the care she provides could be adequately supplemented by community services in Griffith.
...
there is no evidence the Principal [applicant] is able to provide the care her brother needs. Her own evidence is that she is unable to assist her brother physically for cultural reasons but that she helps with household duties and by caring for the children. While this may perhaps relieve Mrs Vo'Ifalelahi to a minor extent, it does not compare with the level of assistance which her brother Touliki Feiloakitohi provides...
While I accept that the Applicant [sponsor] has a need for assistance as required by the definition of special need relative, I find that the Principal [applicant] Latupauu, is not "willing and able" to provide the assistance required and that, as a consequence, she is not a special need relative.
(b)Remaining relative
The principal applicant was found not to be a remaining relative, but this finding was not challenged by counsel for the applicants in the present proceedings.
(c)Extreme hardship and irreparable prejudice - compassionate grounds.
The Tribunal's conclusion on this aspect was that:
In Roser v. Immigration Review Tribunal and Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 3 September 1991), the Federal Court approved the statement of the Tribunal in Re Jackson (IRT Decision No.Q90/00124 delivered 17 December 1990) that mere hardship or prejudice to an Australian citizen or permanent resident is not enough to meet the test in r.131A. There must be a very high degree of hardship or prejudice. While the decision in a particular case as to whether hardship or prejudice is "extreme" or "irreparable" involves an exercise of judgment, there will be cases of alleged hardship or prejudice which clearly fall well short of the criteria.
Apart from the evidence in support of the claim for special need relative status, the only other evidence relevant to this criteria is the desire of the family members to be together. While I accept that the Applicant [sponsor] and other family members in Australia will miss the Principal [applicant] and might worry about her if she is not granted an entry permit and is required to leave Australia, this separation is the consequence of their decision to migrate...This in itself does not give those family members a claim to come to or remain in Australia. I cannot find that Mr Vo'ifalelahi will suffer "extreme hardship or irreparable prejudice" if the entry permit is not granted.
The Submissions of the Parties on the claim of the Principal Applicant to be a Special Need Relative
The applicants referred to the medical condition of the sponsor applicant as documented in Ms Julie Murray's report to the Tribunal from which I have already quoted. The Tribunal accepted that the applicant sponsor had a need for assistance as required by the definition of "special need relative". Implicitly the Tribunal also accepted Ms Murray's assessment that it was not:
...realistic to expect that the care she (Mrs Vo'ifalelahi) provides could be adequately supplemented by community services in Griffith.
The question which the Tribunal had to resolve is whether the principal applicant, pursuant to Reg. 2, is:
a "special need relative"...who is willing and able to give substantial continuing assistance to the citizen or resident.
As already noted, the principal applicant in his application for the December (1989) entry permit, by way of detailing the assistance which she provided to the applicant sponsor in the capacity of special need relative, stated:
I cook for him, feed him, take him to the doctors.
At the same time as it heard the application by the principal applicant, the Tribunal considered an application by the applicant sponsor's step-brother, Touliki, for the same kind of entry permit.
It was submitted on behalf of the principal applicant after referring to the fact that the applications in respect of the principal applicant and Touliki had been heard together and the evidence in one had been treated as evidence in the other:
There is no complaint about that, but it is the applicant's contention that the IRT adopted an either/or approach to the construction of the term "special need relative" which led it to accept, as was the evidence, that the brother provided physical services in terms of lifting the disabled brother and provided those physical services and again there is no dispute about that, but it led the Tribunal to conclude that because the brother was a special need relative the sister could not be and we submit that that reasoning is in error.
Again as already noted, "special need relative" is defined by the relevant regulation as "a relative who is willing and able to give substantial continuing assistance to the citizen." It was argued by counsel for the applicant that the use of the indefinite article "a" did not limit the number of relatives who could be willing and able to give substantial continuing assistance. It was submitted that in the present case there was a division of labour between the principal applicant and
her brother and the Tribunal erred by regarding the needs of the applicant sponsor as incapable of being distributed between the principal applicant and Touliki. By regarding "a" relative as confined, in the context of the provision, to a single person, so the argument went, the Tribunal erroneously compelled itself to make a choice between the two presumptive special need relatives.
From this premise, Counsel for the applicant submitted that "the findings of fact fail to take into account relevant matters being the true import of the evidence of this family and of [Ms Murray]" in the sense that no regard was paid to relevant evidence in assessing the principal applicant's role. That evidence was that one of the applicant sponsor's children suffered from asthma to the extent that he occasionally required hospital treatment. When that occurred the principal applicant used to take the child to hospital and remain there with him. This evidence was said to be relevant as showing a degree of assistance which the principal applicant could provide to her sister-in-law and thereby, indirectly, to the applicant sponsor.
Further, it was submitted that in coming to the conclusion that the assistance provided by the applicant "does not compare with the level of assistance which her brother, Touliki Feiloakitohi provides", the Tribunal introduced a comparison not required by the legislation. In the alternative, the applicant contended that the finding of the Tribunal that the principal applicant was not "willing and able" to provide the assistance required by the applicant sponsor was against the weight of the evidence, and unreasonable. In these respects the Tribunal was said to have failed realistically to consider the merits of the principal applicant's case as required, e.g., by Hindi v Minister for Immigration and Ethnic Affairs (1989) 91 ALR 586 at 597-598.
Counsel for the respondent disputed that the Tribunal had interpreted the definition of "special need relative" as capable of applying only to a single individual assisting the citizen. Rather, it was said, the Tribunal did no more than make a finding that all substantial continuing assistance which the applicant sponsor required could be provided by relatives other than the principal applicant.
It was submitted that the care which the applicant sponsor required was "the attendance of a strong, adult person to assist him physically in routine aspects of daily living, plus additional help when he is ill". The principal applicant, it was emphasised, was precluded by cultural reasons from providing physical assistance.
It was said to follow that there was no basis for the contention that the Tribunal had introduced an "unnecessary comparison" or that it should have found that substantial continuing assistance was being provided by more than one person.
Did the Tribunal err in applying the concept of "special need relative"?
In the principal applicant's oral evidence to the Tribunal about the help which she provides it was stated through an interpreter:
...the physical help and everything they cannot supply that, because in our Tongan custom sister cannot - ...the help mainly comes from domestic work, housework and looking after the children.
...
I help with cooking, cleaning the house, washing, and I also take the child to school; takes about half an hour every morning, and the afternoon, as well as bringing him back from school.
With respect to the child's asthma she testified, again through an interpreter:
Yes, there is many times when he suffers asthmatic attacks and he is taken to hospital and the doctor says he is to stay behind and she will have to remain with him.
...
...When there is an attack she always looks after the children to make sure they are presumably all right. She can recall one episode when he suffered an attack and she was the one who called the ambulance to take him to hospital.
The Tribunal asked: "Does that happen very often?" to which the principal applicant replied, as translated:
It is not very regular, but it happens. There are times when she notices that he is suffering, but he is not saying it. He is taken to hospital sometimes.
In essence, the Tribunal regarded the applicant sponsor's needs for assistance as being primarily of a physical nature in lifting, washing and feeding him, and concluded that those needs were met by the step-brother, Touliki. To the extent that cooking and cleaning constituted the relevant assistance then it could be said that it was open to the Tribunal to find
that those needs were being met by the applicant sponsor's wife and other relatives.
However, the inquiry does not end there. It is true, as Burchett J pointed out in Fuduche v Minister for Immigration Local Government and Ethnic Affairs (1993) 117 ALR 418 at 429 "the definition of `special need relative' is largely concerned with medical issues". However, that does not entail that the assistance which the relative provides must be wholly or primarily medical or even physical. As his Honour went on to say (ibid):
There must be a need, not necessarily permanent but at least long-term, for some form of assistance because of death, disability, prolonged illness or other serious circumstances. (The last matter, of course, need not be medical, unless the earlier words create a genus, which would be a very restrictive view to take of a beneficial provision under the broad rubric of "special need", particularly as there cannot be a genus of medical conditions of the citizen or resident to be assisted, since the first condition is death.) There must then be an inability to obtain "the assistance" from the other sources mentioned. I have emphasised the definite article because it may be the delegate overlooked it in the present case. Certainly, the reference to "the assistance/support she needs" is a reference to what the author of the recommendation has decided she needs - not the substantial and continuing assistance Mr Fuduche is willing and able to provide. That would explain what is otherwise inexplicable - his rejection of Mr Fuduche's claim to be a "special need relative" of Mrs Longhurst on the ground, apparently, that assistance is "quite readily" available to her from "community support services". But the assistance with which the regulation is concerned is the assistance the relative is able to provide. If that is mowing lawns, of course others may do it. The more complex and personal it is, the less can this be so. Indeed, such cases are probably at the heart of the benevolent intent of the regulation which, on ordinary principles, as I have already indicated, 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. Where what is involved is the personal support of a particular brother, whose every word of encouragement must have the meaning of their shared experiences packed into it, that support is plainly irreplaceable, whatever inferior (or even very valuable) substitutes might be sought.
It is sufficient that the need for assistance of the requisite type is causally related to the disability, prolonged illness or other serious circumstances affecting the resident
personally. In the present case it was open to the Tribunal to find that the applicant sponsor had a need for assistance related to his disability and the other serious circumstances created by the need for himself and his wife to provide adequate care for their two young children. Because of the special demands which his disability made on his wife there was a consequential need for assistance in providing the care and support which she would otherwise have been able to give to the children.
The question which the Tribunal was then required to ask itself, but apparently did not, was whether the assistance which the principal applicant was able to provide could not reasonably be obtained from:
(i)any other relative of the citizen,...being a relative who is an Australian citizen or an Australian permanent resident; or
(ii)welfare, hospital, nursing or community services in Australia.
Ex hypothesi the assistance provided by the principal applicant could not be obtained from the applicant sponsor's wife or step-brother because it was their preoccupation with ministering to the physical needs of the applicant sponsor which created the need for the assistance provided by the principal applicant. That the Tribunal failed to regard that as assistance within the purview of the Regulation is borne out by its failure to consider at all whether the principal applicant's assistance which it said "may perhaps relieve Mrs Vo'lfalelahi to a minor extent" could reasonably be obtained from welfare or community services.
The way in which the Tribunal should approach its task in considering that question has been illuminated by Foster J in Moskal v Minister for Immigration Local Government and Ethnic Affairs (1994) 125 ALR 307 at 315:
Once the particular needs are carefully and accurately delineated by the decision-maker, the next question must be whether these needs generate "a permanent or long-term need for assistance". If this question be answered in the affirmative then the decision-maker must determine, in a case where no Australian citizen or permanent resident is available to provide such assistance, whether they can be provided by "welfare, hospital, nursing or community services in Australia" or can only be provided by a "special need relative".
This question, again, cannot be properly addressed or answered by a mere general and broad consideration of the types of services available in Australia. Common humanity demands that a disadvantaged citizen be not deprived of the special caring assistance of a near relative on the basis that, in some general sense, it may be arguable that some aspect of that assistance can be provided through visits from community welfare organisations. If there be demonstrated a clear and definite need for ongoing emotional support, attributable to the special condition of the citizen, then the question is necessarily and squarely raised, whether this support can reasonably be provided by such organisations. The essential issue for determination in such a case is whether such organisations can reasonably supply the necessary special care available from the "special need relative".
In my view a similar approach should have been taken in assessing the claim of the principal applicant to be a special need relative. It was not sufficient, as the Tribunal appeared to do, to evaluate her claim to that status against that of her brother Touliki. For the reasons indicated the legislation admits of the possibility that a citizen may, at any given time, have more than one special need relative.
The Submissions of the Parties on Other Compassionate Grounds
The principal applicant contends that the Tribunal erred because it assumed that circumstances which were found to be insufficient to constitute her a "special need relative" within Reg. 131A(1)(d)(iv)(C)) were not capable of amounting to "other compassionate grounds" within Reg. 131A(1)(d)(v). This assumption is said to be implicit in the observation in the passage from the Tribunal's reasons for decision already quoted, that:
Apart from the evidence in support of the claim for special need relative status, the only other evidence relevant to this criteria is the desire of the family members to be together.
That sentence was said to indicate that the Tribunal, when it came to consider other compassionate grounds, put to one side the evidence tending to show that the principal applicant was a special need relative.
It was also submitted in this context that the Tribunal had erred in confining its application of sub-paragraph (v) of Reg. 131A(1)(d) of the Regulations to the applicant sponsor as the relevant Australian citizen and in not having regard to hardship which might be suffered by other citizens or permanent residents if the principal applicant were not permitted to remain in this country. The Court was invited to adopt the construction favoured by Branson J in Yim v Immigration Review Tribunal and Minister for Immigration and Ethnic Affairs (unreported 20 December 1994) of the counterpart of Reg. 131A(1)(g) of the Regulations which is to be found as cl. 812.722 of Schedule 2 to the Migration (1993) Regulations. That clause prescribes as a criterion to be satisfied by an applicant at the time of application for an entry permit, that he or she:
has been nominated by the relevant related person referred to in clause 812.723(2), (3), (4), (5) or (6), as the case requires.
Of that criterion, her Honour said, at p. 10:
In my view the criterion set out in clause 812.722 of Schedule 2 of the Regulations is ambiguous. Prima facie it could require that the applicant be nominated by "the relevant related person referred to in clause 812.723 (2), (3), (4), (5) or (6), as the case requires" but that once nominated by such a person no further nominations are necessary. Alternatively it could require nomination by all relevant related persons referred to in the clause. On this latter interpretation real difficulties might arise if any such persons were young children or otherwise lacked the capacity sensibly to express sponsorship or support (see Hamilton and McMurray v Minister for Immigration and Ethnic Affairs - unreported decision of the Full Federal Court delivered 26 October, 1994) or, indeed, make a statutory declaration. It does not appear that either the Minister's delegate or the Tribunal interpreted the criterion in this latter way. First, neither of them adverted to this issue. Secondly had either of them taken the view that only hardship or prejudice to the nominator could be taken into account he or she would have dismissed evidence of hardship and prejudice to the Principal's twin brother as irrelevant. Neither of them expressly did so.
I accept the reasoning of Moore J in Yung's Case that "the relevant related person" referred to in clause 812.722 need not be a relative of the applicant. As His Honour pointed out there is no reason indicated by the context in which the word is found to depart from the ordinary meaning of the word "related" which is not restricted to familial relationships.
Clauses 812.722 and 812.723 of Schedule 2 of the Regulations are together intended to advance the interests of Australian citizens and Australian permanent residents by making circumstances of compassion to them criteria for the grant of entry permits to others. The Court has adopted a liberal approach to the construction of such migration regulations. In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 at 430 Burchett J said that such a regulation "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."
I consider that a liberal approach to the interpretation of clause 812.722 requires that it be construed in the first of the alternative ways set out above. That is, that it should be understood as requiring a nomination from a relevant related person but not as requiring that every relevant related person should separately nominate the applicant. Nor that for each criterion of eligibility referred to in subclause 812.723(1) there should be a nominator who is a relevant related person. It is not necessary here to consider a circumstance in which the only relevant related person might be a young child or otherwise of limited capacity.
For the respondent it was submitted that the Tribunal's reference to other evidence "apart from" that in support of the claim for special need relative status, merely prefaced the reference to the other evidence and did not signify that the Tribunal had disregarded the "special need relative" evidence in assessing whether other compassionate grounds had been made out. It was also argued that the only Australian citizen or permanent resident who can be considered as suffering extreme hardship or irreparable prejudice in terms of Reg. 131A(1)(d)(v) is the "nominator" contemplated by para. (g) of that sub-regulation.
Did the Tribunal err in concluding that extreme hardship or irreparable prejudice had not been made out?
In this case, the applicant sponsor as the nominator was the "relevant related person" in terms of para (q) of Reg. 131A(1) for all the purposes of para (d) including those indicated by sub-para (v). Thus, the applicant sponsor is the sole Australian citizen of whom extreme hardship or prejudice must be predicated if the criterion in sub-para (v) is to be satisfied.
It therefore becomes unnecessary for me to reach a concluded view on the question posed by Branson J in Yim's Case of whether the scheme of the Regulations requires that each Australian citizen or permanent resident in respect of whom a special need or extreme hardship or irreparable prejudice is invoked must join in nominating the relevant applicant. In Yong Min Jung v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 729 Moore J analysed the relevant provisions of the Regulations in these terms:
The applicants submit that the requirement in reg 131A(1)(g) that an applicant has been nominated by the related person referred to in para (d), does not require an applicant to demonstrate the hardship or prejudice referred to in reg 131A(1)(d)(v) is suffered by the nominator. It may be suffered by any person of the class referred to in subpara (v), namely an Australian citizen or permanent resident. In my opinion, the requirement in reg 131A(1)(g) that "the applicant has been nominated by the relevant related person referred to in para (d)" is a requirement attaching to each of the subparagraphs in para (d) with the consequence that the nominator must be the person that is said to satisfy the description in one of the subparagraphs of para (d). Paragraph (g) is expressed in terms that do not suggest its application to each of the subparagraphs in para (d) is qualified. The expression in para (g), "related person", is a reference to the person with whom the applicant has a relationship of the type identified in any one of the subparas (i)-(v) irrespective of the character of the relationship. Subparagraph (v) identifies a relationship which is, unlike those in subparas (i)-(iv), not a familial one. It is a relationship between the applicant and another party of such a character that extreme hardship or irreparable prejudice would be caused to the other party if the applicant was to leave because the entry permit was refused. The other party must be an Australian citizen or permanent resident remaining in Australia. The construction of the words "related person" as including the other party to the relationship referred to in subpara (v) is consistent with the ordinary meaning of the word "related" which includes: "1. associated; connected. 2. allied by nature, origin, kinship, marriage etc", see the Macquarie Dictionary (revised edition). Plainly the applicant and the other party must be related in the sense of "connected" or "associated" for there to be a relationship between them, the disruption of which would give rise to the requisite hardship or prejudice. The combined effect of reg 131A (1)(d)(v) and (g) is, for present purposes, that the criteria in paras (d) and (g) are satisfied only if the nominator suffers the requisite hardship or prejudice.
That reasoning was expressly approved by Lindgren J in Chin Leong Lim v Minister for Immigration (unreported 16 December 1994) where his Honour observed, at 15:
In the present case it is only para (v) which has been suggested as being relevant. Accordingly, in my view the expression "relevant related person" in para (g) refers, in a case such as the present, to an Australian citizen or Australian permanent resident who would be caused extreme hardship or irreparable prejudice by a refusal to grant the entry permit. In this regard, I agree, with respect, with the reasoning of Moore J in Yong Min Jung v Minister for Immigration and Ethnic Affairs, unreported, 16 November 1994, No NG 356 of 1994.
It follows that it was not necessary for the Tribunal to take into account Mr Ma's "employees and franchisees and lessors".
I favour the view taken in the two authorities which I have just cited. I respectfully suggest that the problem adverted to by Branson J where the resident in special need or claimed to be suffering extreme hardship or irreparable prejudice is an infant or otherwise under a disability so as to be precluded from nominating an applicant can be overcome by procuring a nominator, like a parent or other principal care-giver through whom the special need or hardship or prejudice can be expressed. That occurred in the present case as far as the sponsor applicant's children can be said to have a special need for the principal applicant's attention or to be likely to suffer extreme hardship or irreparable prejudice if she were compelled to leave Australia.
In the sense just indicated, it is hard to see how the applicant sponsor can succeed in establishing through his and his children's need for help in caring for them and for other domestic assistance, extreme hardship or irreparable prejudice in terms of sub-para (v) of Reg. 131A(1) without also showing that the principal applicant is a "special need relative". For the reasons indicated in discussing that concept the matter concerning the principal applicant must be remitted to the Tribunal. It is therefore undesirable that I say more about extreme hardship or irreparable prejudice than is necessary to deal with the argument that in considering those concepts the Tribunal excluded the evidence which it regarded as relevant to the "special need relative" claim.
In my view the Tribunal in saying "Apart from the evidence in support of the claim for special need relative status, the only other evidence relevant to this criteria is the desire of the family members to be together" cannot be taken as having excluded from its consideration of other compassionate grounds the evidence which it had already considered in relation to the claim to be a special need relative. The words quoted were merely prefatory of a reference to the additional matter said to give rise to extreme hardship or irreparable prejudice. They do not signify that the Tribunal confined its consideration of the application of sub-para. (v) of Reg. 131A(1)(d) to that additional matter. I therefore detect no error of law in this part of the Tribunal's reasons for decision.
Alleged Denial of Natural Justice
Attention was drawn on behalf of the applicants to a response to a request made by the Tribunal of the sponsor applicant's medical practitioner for information to assist it in considering the applications of the principal applicant and Touliki. That response was made by telephone and was recorded in writing by an officer of the Tribunal. The record notes some generalised derisory comments by the medical practitioner about the relatives of the applicant sponsor to the effect that "they would probably be out picking fruit rather than helping the applicant [sponsor]". It is complained that the Tribunal gave the applicants no opportunity to respond to those comments before it reached its conclusion.
The short answer to that complaint is that the Tribunal apparently took no account of the doctor's remarks in coming to its decision. It was clearly not influenced by them in deciding to uphold Touliki's application and I am not prepared to infer that they were allowed, without acknowledgement, some weight in the negative decision in respect of the principal applicant. It is only if a decision maker proposes to take into account potentially prejudicial material that natural justice requires that a person likely to be affected by the decision be given an opportunity to respond to the material. (See Kioa v West (1985) 159 CLR 550 as applied, e.g. in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.)
Conclusion
As already indicated, I consider that there is sufficient risk that the Tribunal's approach to the question of "special need relative" was affected by an error of law to require the application of the principal applicant to be remitted to the Tribunal for further consideration. Because of the inter-relation between the question to which I have just referred and that of "other compassionate grounds" the further consideration should not be confined to the former ground. However, it need not canvass the issue of "remaining relative" which was abandoned in the course of the hearing before this Court. In the circumstances, the reconsideration should be undertaken by the Tribunal differently constituted from that which conducted the hearing on 16 November 1992. The respondent must pay the applicant's costs of the application to this Court.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for the Applicant : Mr T.V. Hurley
Solicitors for the Applicant : Erskine Rodan & Associates
Counsel for the Respondent : Mr S.G.E. McLeish
Solicitors for the Respondent : Australian Government
Solicitor
Date of Hearing : 22 February 1995
Date of Judgment : 21 March 1996
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