Waqa, E.C. v Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 942

014-2 "13

JUDGMENT NO. .o.mm.m.mmw/ mwmarnmm

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	) No NG 178 of 1993
GENERAL DMSION	1
1

BETWEEN:  EMORI CABENALEW WAOA

Applicant

AND. MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND ANOR

Respondent

Coram:  Davles J.

RECEIVED

Date:	30 November 1993
Place:	Sydney

AUSTRALIA PRINCIPAL

REASONS FOR JUDGMENT

EX TEMPORE

irreparable prejudice to an Austral~an citizen or Australian permanent resident. The

This application seeks orders of renew of a dec~s~on of the Immigration Rev~ew

Trlbunal glven on 23 February 1993. The decision was glven in relation to an application by Mrs Otakilevuka who was seelung a December 1989 temporary entry permit. One of

the matters that had to be satisfied for the grant of the permlt was set out in paragraph 131A(l)(d)(iv) that there was a compassionate ground for the grant of an entry permit to the effect that refusal to grant the entry permlt would cause extreme hardship or

applicant, Mr Waqa, 1s the Austral~an cltlzen whom it was alleged would suffer extreme

hardship or Irreparable prejudice if the permit was not granted.

Mr Waqa is a 24 year old Fijian, who m~grated to Austral~a when he was 15 years

of age. Mr Waqa had lived with Mrs Otakilevuka who is his aunt and wth her husband from the age of, I thmk, elght until he came to Australla when he was 15. He had a

closer relationsh~p wth h ~ s aunt and his uncle than he did with h ~ s own mother.

However. when he came to Austral~a, he went to llve wlth h ~ s mother and hls step-father.

H e did not get on well wth h ~ s	tep-father and it appears from ewdence that was before
the Trlbunal at least a t one stage, he began frequenting n~ghtcluhs,	consuming alcohol
to excess and uslng drugs.

Subsequently, his aunt and uncle came to Australla in about 1988 and slnce then

Mr Waqa has resided w ~ t h them, though he still sees h ~ s mother every month or so. The

case that was put on Mr Waqa's behalf was that if hls aunt and uncle were not permitted to stay m Austraha. he would suffer extreme hardsh~p and lrreparable prejudice for he

mlght revert to alcohol and drugs and mlght develop personal~ty d~sorders. The Tribunal

rejected that view, the Tr~hunal sa~d:-

m e Applicant prescnts as a strong, healthy 24 ycar old man It is h a own evidence that

he suffcrs no mental or phys~cal problem<. but lacks confidence He has never heen out of work and successfully completed an apprenticeship. brlng named Apprentice of the Year on two occasions H e is III frequent contacl w~th is mother and it appears that she

provldes some financial support to him The Tribunal does not auep t his contention that

~t 19 incv~table that hc would revert to destrucllvc old ways in the ahsencc of the Prlnnpal

and her spouse	He is, after all, referring to behaviour that occurrcd before hic unclc's
arnval in 1987 whcn he was a Icenager	If seems unlikely that a man of 24, qualified and
in steady employment, admiltcdly ambltlous and w~shing	to s tan his own business would

rcvert to the behaviour of his teenage years
The phrases 'extreme hardshp' and '~rreparable prejudice' are strong phrases whlch
ind~cate that the legslature Intended them to find apphcation only m extreme
mcumstances. Accordmg to the Conme Oxford Dmionary, 'hardslup' concerns
'Hardshp of fate or arcumstance; severe suffcnng or privation' and 'extreme' means

'havmg some character~stlc in the utmost degree' as m farthest and utmost. S~m~larly,

'prejudice' means 'mjury' or 'detriment' and 'irreparable' means and Injury or detnment 'that cannot be rectified or made good' Whilst the Tribunal accepts that the Pnnclpal will suffer some hardship, it appears from the evldence that any hardslup that may be suffered is not 'extreme'. In this case, any prejudice suffered cannot be sa~d to be

mepa parable' since the Pmapal is free to maintain contact wth the Apphcant, and hls

mother malntalns a close relatlonslup wth lum."

Those findings have been challenged by Mr Churchill, the solicitor for Mr Waqa on two

grounds. The first is, it is said that the Tribunal did not give enough consideration to the

compassionate element and gave too much - or at least too much emphasis on the words

"extreme" and "irreparable".

Those are, however, the words used in regulation 1314 and the Tribunal was

bound to glve them therefore force, particularly as there were ministenal directions which

were set out in the Tribunal's reasons for decision which gave to the expressions "extreme hardship" and "irreparable prejudice" the meanings which they would seem to have in ordinary language. Mr Churchill submitted that the Tribunal did not give effect to the directions of the Mnister, and that it only regarded the matter on the footing that there

had to be some extreme position, far more extreme than the Minister had had in mnd.

However the Tribunal did set out the directions of the Minister and made it clear that

those directions would be followed, and I cannot draw from the passages of the Tribunal's findings any conclusion that there was an error of law in the Tribunal's

approach. I should say that it seems to me, as I thlnk it seemed to the Tribunal, that the argument that Mr Waqa would suffer extreme hardship or irreparable prejudice was scarcely arguable and that indeed it was an extraord~nary proposition that was being put forward.

The uncle and aunt themselves had cwdren, some or all of whom were younger

than Mr Waqa and they were living in Fiji during all the time that the aunt and uncle
were in Australia.

Page 81 of the transcript indicates that there were, from Mr Waqa's evidence, four children of the aunt and uncle younger than himself and all still in FIJ~ and so one had the extraordinary situation that it was alleged that Mr Waqa himself would still suffer extreme hardship or irreparable prejudice without the support of h ~ s uncle and aunt and yet theu own chlldren were living without them, apart from them.

There was also before the Tribunal a report from a Mr Paul R. King. It disclosed

that Mr Waqa was a person who attends prayer meetings at the Fljian community parish at least three times per month, that he was a member of several F~jian soclal clubs, that he attended various Fijian functions, that he was also a member of the Leichhardt

Juniors football club where he played and represented the Balmain district that, m 1986,

he had commenced employment as a tradesman's assistant and had been in employment

at Leichhardt and, since September 1992, with Saunders Construction at Bankstown. So,	first with Jubllee Engineering at Blrchgrove, then wth the Department of Public Works
Mr Waqa has been in constant employment and it appears also from that report that, although he had commenced as a tradesman's assistant, he had later undertaken a boilermakers apprenticeship.
He went on to gain Apprenticeship of the Year award for two successive years and a second place in his course at Sydney Technical College, so Mr Waqa 1s a man of considerable ab~lity and he is a man of standing m the commumty who has frlends, who
has connections with social clubs, with a sporting club and wth his church and it seems
to me that it would scarcely have been open to a tnbunal to find that he would sufter extreme hardship or irreparable prejudice if his aunt and uncle were required to return to FIJI. At any rate, I would not have expected a tribunal to have so found. I have read
through the lengthy reasons of the Tr~bunal and it seems to me that the reasons fairly dealt with Mr Waqa's circumstances and have taken a compassionate approach to his
problems but, nevertheless, thought that the circumstance spec~fied in the regulation
133A was not met.

The Tr~bunal gave little weight to Mr IQng's report, and I can only say that I think

that if I'd had to make a similar decision that is the view that I would have taken. The crux of Mr King's report was that when he first came to Australia Mr Waqa had problems in the relationship wth his stepfather and that he began drinlang heavily and

uslng drugs - and that is understandable - but he was livlng then w~th his mother and his

stepfather whlch is not a position which he is now required to he in. Mr h	g	concluded
from that:-

"Children who arc subjected to adverse envlronmcnts often develop varlous conduct

d~sorders These may bc described as pcrslslent patterns or conduct in whlch thc bas~c
r~ghts or others are vlolatcd or where major socletal normc arc v~olated These chlldrcn

have an Increased rlsk of developing carly sub\tancc abusc, emotlonal problcms and

depress~on "

My own view of that passage 1s that it was unsupported in Mr Waqa's case for he

1s now a mature person; he has been steady in employment and he has adequate social

contacts throughout the Fijian community in Australia. In addition, of course, he has the support of his mother whom he sees regularly. For all these reasons, it does not seem

to me that there was any error of law in the Tr~bunal's approach.

Mr Churchill has also raised a questlon of breach of natural justice. Mr King's

report was tendered durlng the course of the hearing before the Tribunal but Mr b g , h~mself, was not called and the Tribunal was not asked to subpoena Mr King to attend.

It appears that after the hearing the Tnbunal thought that some attempt should be made

to ascertain the strength of Mr King's report. He described himself on the letterhead as a Bachelor of Social Science, Associate Diploma Commerical Studies, Clinical Therapist, Personality Disorders, Anxiety and Stress Counselling; all formidable sounding

qualificatlons. It appears that somebody in the organisation supporting the Immlgratlon

Revlew Tr~bunal made a telephone call to Mr King on 17 February of thls year, after the

hear~ng on 25 January. The note ot that conversation records:-

"Has B Soc Sc~ence w~th a major in psych

" Assoc Dip In Cumm Studm

" cxperlence on a consultancy basls,

specialis~ng in mlgrants

" no membersh~p with any profess~onal

bod~es as 1s not wlllng to fork out money -

because of final year in a law degrec.

Is happy to speak \nth you on tele "

I accept Mr Churchill's submission that there was a breach of the rules of natural justlce for that matter was not then brought to the attention of Mr Waqa or his

representative but the question is whether it should lead to any order. In my opinion the breach is not of such significance that an order should be made settlng aside the decision.

Mr Churchill has not sought to prove that Mr h n g did have membersh~p of any

professional body or that he was not in his final year of a law degree. So, ~t 1s not

alleged that the facts whlch were before the Tribunal were mcorrect. And they were merely facts relating to the qualificatlons. They would, I think, have supported the Tribunal's vlew that llttle we~ght should be given to Mr hng's opinlon of the hkely

development of emot~onal disturbance by Mr Waqa. I thmk the Trlbunal must have

doubted Mr King's opinion before taking steps to ascertain what 'standmg he had in the

field. Havlng ascertained what hls qualifications were, the Tribunal gave the weight that

~t considered was due to it. I shall therefore as a matter of dlscretlon not make an order

based on any infringement of the rules of natural justice.

It is unnecessary for me to deal wth another matter whlch has been raised by

counsel for the Mmlster.	Counsel has submitted evidence that a p e m t could not have
been granted as sought because there was not satisfaction with the prov~sions	of sect~on

37 of the Migration Act. I think that, if that matter were to be considered, I would remit

the matter back to the Immigration Review Tribunal to consider the polnt rather than attempt to make findings of fact for myself. However, it 1s not necessary to take that matter further. For these reasons I am of the opinlon that the application should be dismissed with costs.

I certify that thls and the 6 precedmg pages

are a true copy of the reasons for judgment hereln

of the Honourable Mr Just~ce Davles.

Date:	30 November 1993 ,/'
Solicitor for the apphcant:	Mr Martin Churchill
Counsel for the respondent:	Mr S. Gageler
Sollcitor for the respondent:	Austrahan Government Sollcitor
Date of hearing:	30 November 1993
Date of judgment:	30 November 1993