Ali v Minister for Immigration Local Government and Ethnic Affairs

In accordance with regulations 9(2) and 21C of the Migration (Review) Regulations which enable the nominator of an applicant for a December 1989 (temporary) entry permit to apply directly to the Tribunal for review of a decision refusing that class of entry permit (thereby bypassing intermediary review by the Migration Internal Review Office), the Applicant applied to the Tribunal for review of the decision on 15 April 1994.

As a result of the coming into force of the Migration Reform Act 1992 on 1 September 1994, Australian migration law has undergone significant changes. In accordance with regulation 23 of the Migration Reform (Transitional Provisions) Regulations, the Principal's application in this case is taken to be an application for a transitional (permanent) visa under the new law. For most purposes this will resemble the entry permit that would have been granted under the law in force before 1 September 1994. However, the application is still to be decided according to the criteria that applied to the entry permit for which the application was original made. The Regulations which are applicable here are therefore the Migration (1993) Regulations (the Regulations).

The Principal, a citizen of Fiji, is a widower who was aged 56 years when the original application was lodged. He first arrived in Australia on a visitor visa on 10 March 1985. On arrival he was granted an entry permit which granted him stay in Australia until 25 March 1985.

The Principal did not leave Australia when his entry permit expired. Consequently, from 26 March 1985 he became what was known at the time as a 'prohibited non-citizen' and what is known under the Migration (1993) Regulations as an 'illegal entrant'.

Before making the application under review, the Principal made two other applications to regularise his immigration status in Australia. He made an application in 1989 for grant of resident status on humanitarian grounds which was rejected on 4 July 1991 and the rejection was upheld on 13 July 1993.

The Applicant is married and was born in Fiji. He and his spouse have two young children now aged five and half years and three years. The Applicant arrived in Australia on a permanent visa in 1990 as a qualified tradesman (electrician). He is the Principal's eldest son and he has two adults sisters and a brother (all married) who live permanently in Suva.

In brief, the Applicant and the Principal claim that they have a special bond in that as the eldest son, the Applicant feels a particular responsibility to care for his father particularly since his mother died and left his father a widower in January 1993. The Applicant claims that his father provided crucial emotional and practical support to him since he arrived in Australia with his wife and although his father was here illegally, he has worked and helped the Applicant and his family become established in their new country. The Applicant claims that he cannot live without the Principal's financial support and there is no-one for him to return to in Fiji as his sisters and brother are tied up with their own families and responsibilities.

The original decision-maker refused the application on the grounds that there was insufficient evidence to satisfy the necessary legislative requirements.

An applicant is entitled to the grant of a visa or an entry permit under the Migration Act 1958 (the Act) and the Migration (1993) Regulations (the Regulations) if he or she satisfies each of the criteria set out in the Regulations in relation to the relevant visa or entry permit.

The Principal has applied to take advantage of concessions granted to certain illegal residents who have strong ties to Australian citizens or permanent residents and who may have been disadvantaged or unfairly treated as a result of the significant changes to migration legislation which were introduced on 19 December 1989.

In order to be granted a Class 812 (December 1989 (permanent)) entry permit an applicant is required to meet the criteria set out in Part 812 of Schedule 2 to the Regulations.

Specifically, Part 812 requires that an applicant was a prohibited non-citizen on or before 18 December 1989 (see clause 812.722(a)); has not left Australia since 18 December 1989 (see clause 812.722(b)) and applies before 19 December 1993 for the entry permit (see clause 812.722(c)).

An applicant must also meet one of the specific grounds set out in clause 812.723. In this application the Principal claims that he satisfied the criteria in the so-called compassionate ground as set out in clause 812.723(6). This provision requires that on 15 October 1990 there was any compassionate ground to the effect that the refusal to grant the entry permit would have caused 'extreme hardship or irreparable prejudice' to an Australian citizen or Australian permanent resident, and that the compassionate ground continues to exist at the time of the application (see clause 812.723(6)(b)) and at the time of this decision (see clause 812.732(a)).

The terms 'extreme hardship' and 'irreparable prejudice' are not defined in the legislation. However, the Minister, acting under section 179 of the Act, has issued a 'Policy Direction' dated 29 January 1993 which outlines various factors decision-makers should have regard to in considering these terms and their application to individual cases. In reviewing this matter the Tribunal has applied the Policy Direction wherever relevant.

Other relevant criteria in Part 812 deal with the requirements that an applicant for the entry permit satisfies illegal entrant criteria 6001 and 6002, that he or she is nominated by an Australian citizen or an Australian permanent resident, that an applicant and members of his or her family unit satisfy certain public interest criteria, that an assurance of support may be required, that an applicant notifies the Department of any change of address, and that, at the time of decision, an applicant is the holder of an entry permit valid for the purposes of section 47.

In assessing the evidence in this case the Tribunal had access to the relevant Departmental file concerning the original application and the earlier applications. There were also written submissions and other documentary evidence lodged for the review.

Because the Tribunal considered that it could not make a favourable decision on the documentary evidence alone, the Applicant exercised his entitlement to give oral evidence and this was taken at a hearing on 4 August 1994. Attending the hearing were the Applicant, the Principal, a family friend Mr Hari Kashyap and the Principal's pastor, Reverend Norma Brown of the Lakemba Uniting Church in Australia.

Mr Kashyap's and Reverend Brown essentially gave character references for the Principal stating that he was a very hardworking man who was 'not the same man' since his wife passed away. Mr Kashyap stated that since her death the Principal was forgetful and he often repeated the same questions. Reverend Brown stated that she knew the Principal through his attendance at religious services since he attended regularly. She stated that he had performed work for the Church and was a dedicated member of the parish. While she said she had never discussed his son with him and she had not specifically discussed his emotional state, she could confirm that she and the Principal had talked about his wife's death and that it was clear that he was quite depressed by it. Overall, she found him to be a reliable, honest and good person.

Documentary and oral evidence from the Applicant indicated that he needed his father for financial support. He claimed that since his arrival in Australia he had incurred many bills and had had to borrow from his father to pay for ever mounting loans he had taken out for cars, furniture and the like. He stated that he lived with his father and that his father assisted with money for the rent and other ongoing bills. Although working as an electrician, the Applicant stated that he found it very difficult making ends meet and that he could not survive financially without his father's help.

In responding to detailed questions by the Tribunal, the Applicant stated that his net monthly income was around $1 880 per month and from that a total of around $950 per month went on payments for debts including the rent, (for which his father assisted by paying $70 per week) a car loan of $13 000, plus personal loans for a total of $5 000 ($2 000 of which he had sent to his brother in Fiji) and a washing machine he had bought on hire purchase. Because his wife did not work, this left roughly only about $200 per week to cover expenses for food, clothing and other necessities. He produced various documentation to support his claims regarding his debts, ongoing bills and his income.

The Applicant also claimed that when he and his wife are ill they can depend on the Principal to look after the children. In earlier evidence the Applicant stated that his father had wanted to assist him to establish his own electrician business and without his help he would not be able to do so.

Finally, the Applicant argued that he could not see his father return to Fiji alone. It was claimed that his two sisters and brother were not in a position to care for the Principal and at the Principal's age, there would be no work for him in his trade (also an electrician).

The Principal's written and documentary evidence was that he only wanted what was best for his son and it was best for his son if he (the Principal) remained in Australia. He argued that his son would suffer if he were forced to return to Fiji and that while he had helped his son out in the early difficult years when he was attempting to settle his family in Australia, it was now time for this son to look after him.

In a report dated 23 July 1994 Dr Osman Ali, consultant psychiatrist, wrote that he had assessed the Principal and found him to be suffering from a 'moderate degree of depression' associated with the loss of his wife. The report in summary concluded:

...this patient requires psychological assistance only to the level of six sessions for grief therapy and restructuring of his daily routine. If he goes back to his native country, it is feared that he will suffer from a more pronounced grief and will require longer rehabilitation. He will thus be jeopardised by a decision to send him back to his native country. Whilst in Australia he has hope in the future which moderates his symptoms and will also assist him son who is already a resident of this country. This is written without any prejudice to any departmental procedures.

From the documentary evidence sighted it is clear that the Principal was a prohibited non-citizen before 18 December 1989. He has not left Australia since that time and he has lodged his application in the required time. The Tribunal therefore finds that the Principal meets each of the requirements set out in clause 812.722(a),(b) and (c).

Given the evidence submitted in this case, can the legislative definitions be satisfied as of 15 October 1990 continuously until the present?

As has been pointed out in a number of Tribunal decisions (see, for example, Re Jackson (IRT Decision 38, 17 December 1990, and Re Kwang Soo Kim IRT Decision 294, 4 September 1991) the test for what might constitute 'extreme hardship' or 'irreparable prejudice' as required by the relevant legislation is quite severe. Justice Von Doussa has stated in Roser v__Immigration Review Tribunal (Federal Court, von Doussa J, 3 September 1991, unreported) that 'mere hardship or prejudice ... is not enough. There must be a very high degree of hardship or prejudice'. The hardship or prejudice, moreover, must be experienced by the Australian party - not the Principal - and there must be a causal relationship between such hardship or prejudice and the departure from Australia of the non-Australian party (see Re Kwang Soo Kim as above). In a more recent decision and taking a slightly different approach to that taken in Roser's case (as above), when assessing the alternatives of 'extreme hardship' or 'irreparable prejudice' the Federal Court has also inferred that whether hardship is 'extreme' is a matter of degree but whether prejudice is 'irreparable' depends on whether the prejudice in question is incapable of being remedied for there 'may be great prejudice which is reparable and small prejudice which is not': see Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144. However, as Jenkinson J observed in Prasad v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, Jenkinson J, 22 March 1993, unreported), 'the postulated hardship or prejudice [must] be of such a degree as to excite compassion, in the sense of that word which is given second in the Oxford English Dictionary (2nd edition): "The feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour".'

Based on all the evidence before it, the Tribunal finds that there is insufficient evidence to find that the compassionate ground is satisfied in this case for the following reasons.

There is no doubt that the Applicant and the Principal are close and share strong emotional bonds as a father and son but these bonds alone are not sufficient to satisfy the legislative requirements of 'extreme hardship' or 'irreparable prejudice'.

The Applicant's and the Principal's evidence was in many parts concerned mostly with the care and the fate of the Principal if he were to return to Fiji - a country he has now been away from for nearly ten years. However, the legislation makes no provision for the care of the illegal entrant in these cases. It is concerned rather with the impact on the Australian citizen. In that regard, the Tribunal understands and accepts that the Applicant would be quite concerned about his father's future but such concern once again is insufficient to satisfy the legislative requirements. There are after all three of his adult children in Fiji from whom the Principal could gain some support. The Tribunal does not accept the oral evidence that the adult children cannot be relied upon for help and it finds that these assertions were made by the Applicant and the Principal in an attempt to assist the Principal's case.

The Tribunal finds, in the light of the consultant psychiatrist's report, that the Principal is currently suffering some degree of depression which is within the normal range as a result of his wife's death in January 1993. However, the Tribunal notes that such depression is only relevant in so far as it impacts upon the Applicant, and the Tribunal further notes that the depression and his spouse's unfortunate death are circumstances which have occurred well after 15 October 1990 and therefore are not helpful to the Principal's application because they were not in existence as at the relevant date.

This leaves the Applicant's financial situation and his claimed heavy reliance on his father for financial survival. The Tribunal finds on this count that the Applicant while clearly a poor manager of money, might suffer some financial inconvenience if his father were to return to Fiji but based on the evidence before it the Tribunal does not consider that he will face financial ruin and in any event there are measures available to him to sort his money problems out. Any hardship or prejudice he might experience in this regard therefore cannot be seen to amount to extreme hardship or irreparable prejudice.

The Tribunal affirms the original decision that the Principal does not satisfy the requirements for a Class 812 (December 1989 (permanent)) entry permit.