Yeoh, L.K. v Minister for Immigration, Local Government & Ethnic Affairs

[1993] FCA 640

bLJ-o q3

JUDGMENT NO. .a..oo.e.oo m.orn.a.*

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	)
B E T W E E N :	LEE KENGH YEOH

Applicant

and

MINISTER FOR IMMIGRATION LOCAL

GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: LEE J.
DATE : 5 AUGUST 1993

PLACE: PERTH

EX TEMPORE REASONS FOR JUDGMENT

This is an application by an applicant who is the daughter of one Bak Nai Tan who entered Australia on 6 December 1991 presumably on a close fam~ly visitor visa which operated then as a temporary entry permit as defined in the third schedule to the 1989 regulations being a permit which operated for a period limited in time. The limitation in tune of the permit for Bak Nai Tan was until 9 June 1992.

mother was seeking the stay of an additional 5 weeks after the family visltor short stay temporary entry permit in that the

Before the expiration of that temporary entry permit another temporary entry permit was applied for and granted, it being again a close family visitor temporary entry permit and valid until 1 December 1992. In November 1992 the applicant's mother applied for what was described by code number as a close family visitor temporary entry permit but in fact was a close

expiration of the temporary entry permit which was to cease on

1 December 1992. The application simply stated that the

applicant's mother wished to stay for Christmas with her daughter
and grandchildren and therefore until 1 January 1993.

The applicant is a citizen of Australia and her mother a national of Malaysia. The applicant, by virtue of the nature of the temporary entry applied for was entitled to apply for review of the decision which was made to refuse the grant of a temporary entry permit sought in November 1992. The review was conducted, firstly, by a Migration Internal Review officer resulting in there being no variation of the decision that a temporary entry permit not be granted. An application was then lodged by the applicant with the Immigration Review Tribunal seeking a review of that decision, the grounds being that the applicant did not agree with the decision made to continue to refuse the permit.

That application for review was lodged on 8 January

1993 and the tribunal gave its decision on 14 April 1993

affirming the decision not to grant a permit. On 10 May 1993

an application was lodged with this court to set aside the decision of the Immigration Review Tribunal, the grounds being that the tribunal had erred in law. The applicant contends that the reasons given by the tribunal contain two errors of law which

entitle this court to set aside the tribunal's decision.

The first ground of appeal relied upon by the applicant relates to the "compelling personal reasons" criteria prescribed in regulation 120 of the Migration Regulations 1989. The application made by the applicant's mother for a temporary entry permit in November 1992 was sought on the basis that there were compelling personal reasons for an extension of her stay in Australia. The tribunal took the view that the material that was placed before it in support of the application did not constitute "compelling personal reasons" and therefore did not satisfy the prescribed criteria in regulation 120. It is submitted by the applicant that the tribunal erred in law by applying an erroneous understanding of the meaning of "compelling personal reasons" by indicating that the matters relied upon were in themselves incapable of being compelling personal reasons and in some unspecified way the tribunal gave some other unnatural and strained meaning to the term.

I am satisfied that the tribunal meant no more than having considered the facts before it it was satisfied, as a matter of fact, that there were no compelling personal reasons established by the applicant. In saying that I give no support to and make no comment upon the description of what may amount to compelling personal reasons given by the tribunal and in particular in its recitation of an extract from a matter described as Re Stefanidou (IRT Decision No. N9000024 delivered 10 September 1990) where some attempt was made to put some flesh on the bones of those words.

It is always a matter fraught with danger to attach to words that have ordinary meaning some additional scope, or some additional explanation when the words speak for themselves and this is perhaps another example of that having occurred. The words are not a term of art and are words of ordinary meaning.

It is a question of fact to be determined whether in any given

case the matters relied upon do come within the meaning of the
words.

The second ground of appeal relied upon by the applicant is that the tribunal erred in law by relying upon a view that there could not be compelling personal reasons in the absence of a change in circumstances in the course of the applicant's stay in Australia pursuant to the previously granted temporary entry permit. Again I say nothing about that as a proposition other than there does not seem to be anything to support it in the Act or Regulations but I am satisfied that the tribunal was speculating that this would be an appropriate way to address the issue if it had not already made a determination that compelling personal reasons had not been established. Such speculation is unhelpful but I do not think that it coloured the way in which the tribunal approached its determination of the first issue so as to amount to a fundamental flaw in its reasoning process.

If I were persuaded, however, that either of these grounds merited the determination in the applicant's favour as a matter of law it remains the fact that there could be no utility in this court making any order returning the matter to the tribunal. There has been no demonstration that such a course would alleviate any detriment suffered by the applicant it being clear that no further advantage to the applicant or the applicant's mother could be obtained by returning the matter to the tribunal to consider an application for a permit to remain in Australia until 1 January 1993. That has well and truly passed and indeed the applicant's mother has had the opportunity to be present with her daughter in Australia for that time and for many months thereafter so that all possible benefit that could have been received has been received. All that remains is the removal of a period of time of some days in which the

a period of grace operating but it would remain the fact that	applicant's mother was in Australia as an illegal entrant without
even if the decision were in some ex post facto way to result in the grant of such a limited permit that the illegal status would have remained for a substantial period, in any event, notwithstanding that a period of grace would have been operating throughout that time, or most of it.
That being so there is no point in the granting of an order even if I were otherwise satisfied that there should be
one. I am not so satisfied and therefore the application must be dismissed with submissions to be made on the matter of costs.

I certify that the preceding
five (5) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Date:

5' 3'. 9&.

Counsel for the Applicant:	G.M. McIntyre
Solicitors for the Applicant:	B.S. Edwardes
Counsel for the Respondent:	P.R. Macliver

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing:  5 August 1993

Date of Judgment: 5 August 1993