FEDERAL COURT OF AUSTRALIA MIGRATION - Whether assessment of irreparable prejudice by a nominator at 15 October 1990 permits or requires consideration of events occurring after 15 October 1990 1993 Migration Regulation, cl 812.723(6) of Pt 812 of Sch 2 Minister for Immigration v Teo (1995) 57 FCR 194 referred to Palwinder Singh v Minister for Immigration and Ethnic Affairs, von Doussa J, unreported 31 January 1996 not followed Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 referred to Bank of Western Australia Limited v Commissioner of Taxation (1995) 55 FCR 233 Kobayashi v Minister for Immigration (1994) 51 FCR 24 followed Tokaduadua v Minister for Immigration and Ethnic Affairs (1997) 45 ALD 501 referred to THOMAS CHRISTOPHER DEMPSEY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 584 of 1997 MOORE J SYDNEY 26 FEBRUARY 1998 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 584 of 1997 BETWEEN: THOMAS CHRISTOPHER DEMPSEY Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MOORE J DATE OF ORDER: 26 FEBRUARY 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Immigration Review Tribunal of 30 June 1997 is set aside. 2. The matter is referred to the Tribunal to be considered according to law. 3. The respondent pay the applicant's costs. 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 584 of 1997 BETWEEN: THOMAS CHRISTOPHER DEMPSEY Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MOORE J DATE: 26 FEBRUARY 1998 PLACE: SYDNEY REASONS FOR JUDGMENT This is an application by Mr Thomas Dempsey ("the applicant") under s 476 of the Migration Act 1958 ("the Act") for the judicial review of a decision of the Immigration Review Tribunal ("the Tribunal"). The decision of the Tribunal was to confirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant a transitional (permanent) visa equivalent of a class 812 (December 1989 (Permanent)) Entry Permit ("the Permit"). The facts are not contentious and my summary of them derives from the reasons for decision of the Tribunal. The applicant was a 48 year old Irish National who entered Australia with his de facto spouse, Ms Rose Lonergan, on 19 September 1989. They were then granted entry permits permitting them to remain in Australia until 24 May 1990. They remained in Australia after those entry permits expired and, on 14 December 1993, the applicant lodged an application for the Permit. The application, which included Ms Lonergan and their daughter who was born in Australia on 10 January 1993, was based on compassionate grounds. The nominator was Ms Anne Dempsey, who is the applicant's aunt and a permanent resident. Central to the consideration of the application was the nature of the relationship between the applicant and Ms Lonergan. Evidence concerning the nature of that relationship was discussed by the Tribunal in the following passage (at pp 7-8): "According to the evidence the Applicant arrived in Australia on 24 November 1989. He told the Tribunal that he had contacted the Nominator a few weeks after his arrival. Initially he and Ms Lonergan would visit the Nominator about once a month. Those visits became more frequent, usually weekly, during the second year of their stay in Australia. He told the Tribunal that after his second Christmas in Australia, being the Christmas of 1990, he and the Nominator became 'more like family'. Over that Christmas and New Year holidays the Nominator (sic) has stayed with the Nominator. The Nominator lives in Penrith about one and a half hours drive from Sydney. The Applicant and his family moved to Penrith some time in April 1996. Until then they were living in the Sydney metropolitan area. The Applicant told the Tribunal that after his move to Penrith Ms Lonergan and their daughter would visit the Nominator every day. The Nominator is presently aged 80 years and lives on her own. She has three children, two of whom live in Sydney and the other in Queensland. The evidence indicates that neither of them (sic) is in a position to support their aged mother emotionally and to spend as much time with her as the Applicant and his family. The Nominator told the Tribunal that she also has a sister who lives in Liverpool, a suburb of Western Sydney. She said that they have little contact. She also told the Tribunal that she would be 'devastated' if the Applicant and his family were required to leave Australia as she would be lost without them. The had moved to Penrith to be closer to her. The Applicant does odd jobs around the house for the Nominator. It was the evidence of the Nominator that she 'did not see as much of them' whilst they were still living in the city. However, when asked how she would feel if the Applicant was required to leave Australia then she replied that 'it wouldn't have mattered as much then'." After this passage the Tribunal set out a lengthy report from a Dr Sid Williams dated 25 January 1995. Dr Williams is a specialist psychiatrist with particular expertise in the psychiatry of old age. He saw Ms Dempsey on 13 January 1995. Two of his conclusions were (at pp 9-10): "8.4 The departure of Mr T C Dempsey from Australia would on the information provided to me leave Mrs Dempsey somewhat isolated - certainly from family ties, although she appears to have quite strong community ties. Such isolation in one such as Mrs Dempsey who values family ties could have deleterious psychological effects. As far as I can ascertain this applies to the effects of his departure at least from October 1990. 8.5 Mrs Dempsey may suffer from long term or permanent psychological effects through the departure of Mr T C Dempsey. How serious these effects would be would depend largely on how much her own family would be able to provide emotional and practical support." Before considering the Tribunal's conclusions I should set out the relevant part of the 1993 Regulations made under the Act. For the grant of the relevant visa it was necessary for the applicant to satisfy a criterion specified in cl 812.723(6) found in Pt 812 of Sch 2 of the 1993 Regulations. That clause provided: "(6) An applicant satisfies the requirements of this subclause if, subject to subclause (7): (a) there was, on 15 October 1990, any compassionate ground (other than the grounds mentioned in subclauses (1) to (5)) for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and (b) the compassionate ground continues to exist." The following is the consideration by the Tribunal of whether the applicant satisfied this criterion (at pp 10-11): "On the evidence the Tribunal is satisfied that the Applicant, Ms Lonergan and their daughter who was born in January 1993, over the years, have grown to become close to the Nominator. The little girl in particular calls the Nominator 'nan'. Even if the Tribunal was to accept that any hardship or prejudice which the Nominator may suffer should be applicant be required to depart Australia today could be described as "extreme" or "irreparable" respectively, it is doubtful if the same can be said if they (sic) he was required to depart Australia on 15 October 1990. Clause 812.723(6) prescribes that any "hardship" or "prejudice" suffered must respectively be "extreme" or "irreparable" on 15 October 1990 and continuously until today. On 15 October 1990 the Applicant had been in Australia for about 10 months. At the time he and Ms Lonergan were living in a beach suburb near Sydney. As indicated earlier the travelling time by car between his home and Penrith where the Nominator lives is about one and a half hours. The evidence indicates that during the first year of his stay in Australia he and Ms Lonergan saw the Nominator about once a month. In the Nominator's own words she did not see much of them at the time and it would not have mattered so much if they had departed Australia then . While the Tribunal accepts that the Nominator would be affected by the Applicant's departure from Australia on 15 October 1990, the evidence does not support a finding that the effect she would otherwise feel if he had departed then is comparable to what she would feel if he was required to leave today. The Tribunal is unable to reach a finding that the consequences on the Nominator of the Applicant's departure at that earlier date could be described as "extreme hardship" or "irreparable prejudice" within the meaning discussed above. The Nominator had indicated that she would be "devastated" if the Applicant and his family were required to leave Australia today. When asked if she would be so "devastated" if they had been required to leave about 12 months after their arrival, which was on 24 November 1989, she replied that "it wouldn't have mattered as much then". On the evidence the Tribunal is unable to reach a finding that the Nominator would suffer "extreme hardship" or "irreparable prejudice" if the Applicant was required to leave Australia on 15 October 1990. The test prescribed under clause 812.723(6) is therefore not satisfied. The Tribunal prefers her evidence to the statement of Dr Williams as found in paragraph 8.2 of his report where he indicated that there may have been "serious effects" on the Nominator's psychological health if the Applicant was required to leave Australia "at any time from October 1990"." The applicant contended that the Tribunal's decision was attended by four reviewable errors. They are: 1. the decision involved an error of law in interpreting the meaning of the words "extreme hardship" in subclause 6 of cl 812.723 of the 1993 Regulations; 2. the decision involved an error of law in interpreting the meaning of the words "irreparable prejudice" in the said subclause; 3. that the decision involved an error of law, being an incorrect application of the law to the facts found by the Tribunal. In particular, the Tribunal failed to take into account evidence of actual benefits gained by the Nominator from the continued presence in Australia after 15 October 1990, when deciding whether "irreparable prejudice" would have resulted had the Applicant been required to leave Australia on that date; and 4. that procedures that were required by the Migration Act 1956 or the Regulations to be observed in connection with the making of the decision were not observed. Particulars: In deciding to call relevant and available evidence the Tribunal - (a) failed to carry out its statutory objectives of providing a mechanism of review that is fair and just; and (b) failed to act according to substantial justice and the merits of the case. It is convenient to discuss the first two grounds together. They are based on the following passage in the Tribunal's decision (at p 7): "In following Horvath v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 422, his Honour von Doussa J in Palwinder Singh v Minister for Immigration and Ethnic Affairs and the Immigration Review Tribunal (Federal Court, unreported, 31 January 1996) approved the use of the dictionary meaning of the words 'extreme hardship' and 'irreparable prejudice'. The New Shorter Oxford English Dictionary defines the word 'hardship' as 'hardness of fate or circumstance; severe suffering or privation' and the word 'prejudice' as 'injury, damage, harm'. The word ' extreme' is defined as 'existing in a very high degree, very great or intense ... very severe or violent ... having some characteristic in the utmost degree' and 'irreparable' as 'not reparable; unable to be rectified, remedied or made good'. The word 'irreparable' does not necessarily go to the question of degree or severity because the prejudice suffered may be minor but yet irreparable. His Honour von Doussa J went on further to say that, In the context of the Regulation I consider 'prejudice' as used to mean actual injury, loss or damage - that is actual personal injury or material damage, such that if a damages claim were made in tort for the 'prejudice' the injury, loss or damage would sound in damages. In the law of negligence a clear distinction is drawn between, on the one hand, mere grief, sorrow and distress, however saddening, and on the other hand, forms of psychoneurosis and mental illness, medical conditions recognised in law as personal injuries: see Mt Isa Mines v Pusey (1970) 125 CLR 383 at 394 and Jaensch v Coffey (1984) 155 CLR 549 at 587. Emotional feelings of the former kind, standing alone, do not sound in damages. In my opinion a similar distinction should be recognised in the interpretation and application of the 'irreparable prejudice' ground for a Class 812 entry permit. The notion of 'prejudice' is not intended to comprehend mere emotional feelings of sorrow, concern and distress." The applicant submitted that the Tribunal erred in having recourse to the dictionary definition of the meaning of the word "extreme". In this context reference was made to a passage in the joint judgment of the Full Court in Minister for Immigration v Teo (1995) 57 FCR 194 at 204 where the Court said: "In our view, (i) the concept of a compassionate ground, linked to the causing of 'extreme hardship', is distinct from that linked to 'irreparable prejudice', and (ii) the phrase 'very high degree' is not apt to describe, indiscriminately, the content of the adjective 'extreme' which qualifies 'hardship' and 'irreparable' which qualifies 'prejudice'." The applicant also referred to the judgment of Tamberlin J in Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 in which his Honour set aside a decision of the Immigration Tribunal, which had had recourse to part of the definition of "extreme" in the Macquarie Dictionary. His Honour noted at 446: "The words 'extreme hardship' call for no paraphrase or substitution. If, on the authority of Teo (at 204-5), it is erroneous to substitute the words 'satisfaction to a very high degree' for 'extreme', then a fortiori, the complex collocation of words formulated and applied by the tribunal in this matter was an error of law. The paraphrasing exercise undertaken by the tribunal in relation to the relatively simple question of whether hardship can be classed as 'extreme' serves to illustrate the problems inherent in the use of a dictionary definition in place of the statutory words." In my view the reference by the Tribunal in the present case to the defined meaning of "extreme", and for that matter the defined meaning of other words in the elements constituting the criterion, was unexceptionable. The Tribunal was simply indicating what those words might comprehend. It was neither slavishly following the defined meaning in substitution for the words in the Regulation nor, as occurred in Kumar, applying selectively only elements of the defined meaning in a way that distorted the probable meaning of the words in the Regulation. There is nothing in the remainder of the reasons of the Tribunal that indicates it failed to direct its mind to the statutory test because it was distracted by the meaning given to elements of it in the dictionary. The second aspect of this challenge to the Tribunal's decision turns on the apparent adoption by the Tribunal of the views of von Doussa J in Palwinder Singh as to what was comprehended by "prejudice". For reasons which become apparent shortly, it is not necessary for me to consider whether his Honour's views were correct, involving as it would at least indirectly, the question whether his Honour's judgment was clearly wrong: see Bank of Western Australia Limited v Commissioner of Taxation (1995) 55 FCR 233 at 255 and the cases cited by Lindgren J. I say indirectly because the Tribunal has quite properly referred to the judgment of von Doussa J and, on one view, given effect to it. It would only have committed an error of law if von Doussa J's approach was, itself, erroneous. I was referred to a passage in a judgment of Branson J in Verissimo v Minister for Immigration and Multicultural Affairs, unreported, 26 September 1997 where her Honour said: "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)." While I would respectfully indicate that I entertain some doubt about the correctness of the approach of von Doussa J, it is a matter I need not consider further in these proceedings. I say that because though his Honour indicated that prejudice was not intended to comprehend mere emotional feelings of sorrow, concern and distress, the Tribunal in the present case considered the reaction Ms Dempsey was likely to have had on 15 October 1990 had the applicant been required to leave Australia then. It did so by reference to the evidence she gave at the hearing on 22 May 1996. Thus the Tribunal did not appear constrained by the observations of von Doussa J and, subject to one matter I discuss shortly, adopted an unexceptionable approach to a consideration whether a refusal to grant the entry permit to the applicant would have caused extreme hardship or irreparable prejudice to Ms Dempsey on 15 October 1990. The third ground concerns what is contended to be the failure of the Tribunal to take into account events found by the Tribunal to have occurred after 15 October 1990, in assessing whether, on that date, the departure would have caused irreparable prejudice to Ms Dempsey. The criterion is framed in a way that requires the Minister to consider circumstances as they exist at the time the decision is made, circumstances as they would have existed on 15 October 1990 and circumstances as they existed between those two times. There is plainly a measure of artificiality involved in this approach. The operation of a similar provision was considered by Hill J in Kobayashi v Minister for Immigration (1994) 51 FCR 24. His Honour noted at 28-29: "... the refusal to which the paragraph or subparagraph applies must be one which 'would cause' the relevant hardship or prejudice. Although the ground must be made out over the whole of the period to which para (d) refers, and that includes the day of 15 October 1990 as well as the day of decision, the hardship or irreparable prejudice to which the paragraph refers must, when the matter is looked at on 15 October 1990, of necessity be in the future because, in the case of every decision made after 15 October 1990, there could not, as at 15 October 1990, have yet been a refusal. What is required to be decided is whether, looking at the matter at each relevant date, it is more probable than not that the refusal would, in the future, bring about ('cause') extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident. ... Because there is a need to project the future consequences of a refusal, a decision-maker will need to take into account the actual facts existing at the date consideration is required and what is more likely than not to happen in the future. To this extent, when looking at the matter at a relevant point of time, events that have actually happened since 15 October 1990 may be relevantly considered, not because these are events that have happened but rather to consider the probabilities of those events happening." See also Comptroller General of Customs v ACI Pet Operations Pty Ltd (1994) 49 FCR 56 at 78. The same issue was considered by Branson J in Tokaduadua v Minister for Immigration and Ethnic Affairs (1997) 45 ALD 501. Her Honour was considering the same criterion that applies in the present proceedings. Her Honour said at 505: "It, in my view, does not invite a finding as to what the future would bring, but rather a finding as to what would have been the effect in October 1990 of a hypothetical refusal then of the entry permit sought. A finding as to what would have been the effect in October 1990 of a hypothetical refusal then of an entry permit may involve some consideration of future matters. For example, in circumstances in which an Australian citizen was suffering early symptoms of a serious progressive illness, it would be open to a tribunal of fact to find that such citizen would have been caused hardship in the nature of alarm and anxiety by learning that he or she was to lose his or her only likely future care provider. It would be for the tribunal to determine whether such hardship was appropriate to be characterised as 'extreme'. The ultimate issue under cl 812.723(6) remains, however, that of whether a refusal would have caused extreme hardship in October 1990." It is to be noted that the observations of Branson J concern the notion of extreme hardship. The expression "would have caused extreme hardship" is apt to describe hardship existing at the notional date identified in the provision. That is, hardship existing or being caused at 15 October 1990. In my opinion, the matter may be approached slightly differently in relation to the question of irreparable prejudice. A person may be immediately prejudiced by an act notwithstanding that the effect or full effect of the prejudice created by the act will not be manifest until some future date. To use the example given by Branson J, a person suffering from a serious progressive illness could be irreparably and immediately prejudiced by the refusal of an entry permit and the departure from Australia of a likely future care provider. The prejudice would arise, not because of the immediate deprivation of the provision of care, but rather because the departure will create a circumstance where, in the future, care will not be provided or not be provided by that person. Such an approach, in my opinion, is consistent with the broadly formulated approach of Hill J in Kobayashi. In my opinion the Tribunal was, in the present case, obliged to consider the matter as if it was considering it on 15 October 1990 and to address the question whether the refusal of an entry permit and the departure of the applicant then would cause irreparable prejudice. That may include prejudice, the effect of which was both immediate and apparent. It may, however, include prejudice the effect of which would arise or arise fully in the future. In the present case it would be necessary to consider not only the subjective reaction of Ms Dempsey to the departure of the applicant on 15 October 1990 but also likely future events and their effect on her. Consistent with the observations of Hill J in Kobayashi the Tribunal, as part of that process, should look at events that in fact have occurred since 15 October 1990 as part of a process of considering the probability that they would arise if the matter was, in a notional sense, being considered on 15 October 1990. This the Tribunal did not do. It was content to consider the matter only by reference to the evidence of Ms Dempsey given in May 1996 as to how she would have reacted in October 1990 to the departure of the applicant. The Tribunal did not, apart from that matter, consider whether the departure of the applicant in October 1990 would cause irreparable prejudice in the way I have just discussed. In approaching the matter in this narrower way the Tribunal, in my opinion, incorrectly applied the law to the facts as found by it. The last ground may be disposed of shortly. The essential complaint of the applicant in these proceedings is that the Tribunal failed to call a Mrs Margaret Krall, a daughter of Ms Dempsey, in the face of a request under s 361 that she be called. The Minister submitted, with considerable force, that no failure to comply with procedures of the type referred to in s 353(2)(b) could arise if the Tribunal dealt with a witness in the way contemplated by s 361. Section 361(3) plainly confers a discretion on the Tribunal whether or not to call a witness. In the present case the Tribunal declined to do so because, as it indicated to the legal representative of the applicant at the hearing in a summary way, it accepted the evidence of Mrs Krall. There is nothing to suggest that, by its conduct, the Tribunal failed to act according to substantial justice and the merits of the case: see s 353(2)(b). The evidence that Mrs Krall says in these proceedings she would have given to the Tribunal had she been called, was embodied in a written statement that was actually before the Tribunal in any event. There were no findings of the Tribunal that suggested it disregarded the evidence of Mrs Krall in that statement or disbelieved it. To the contrary the Tribunal appears clearly to have accepted the factual case put by the applicant in its entirety but felt constrained by the way the criterion is formulated in the 1993 Regulations to confirm the decision of the delegate to refuse the Permit. In approaching the matter this way I am simply assuming that a failure of the Tribunal to conduct itself in the way prescribed by s 353 is a matter attracting the ground identified in s 476(1)(a): see Thambythuri v Minister for Immigration and Multicultural Affairs (unreported 16 September 1997, Finklestein J). The applicant has established reviewable error. An order should be made setting aside the decision of the Tribunal and remitting the matter to the Tribunal to be considered according to law. I so order. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore Associate: Dated: Counsel for the Applicant: Mr B Cross Solicitor for the Applicant: Anne O'Donoghue & Associates Counsel for the Respondent: Mr S Gageler Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 February 1998 Date of Judgment: 26 February 1998