Applicant: Michael Pello IRT Reference: N95/01578 #number 6805 [1996] IRTA 6805 (29 March 1996)

The application was refused on the basis that there was no compassionate grounds for the applicant remaining in Australia and therefore the relevant statutory criteria had not been met.

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 (if successful) will now result in the grant of a transitional (permanent) visa under the new law. For most purposes this will be the equivalent of the visa that would have been granted under the law in force before 1 September 1994. The Regulations which are applicable in this case are therefore the Migration (1993) Regulations.

In order to determine the entitlement of any applicant to a visa or entry permit the Tribunal must have regard to the provisions of the Migration Act 1958 (the Act) and the Regulations. The Regulations provide for classes of visas and entry permits and prescribed criteria which have to be met before an applicant is entitled to a visa or entry permit.

The criteria for a Class 812 (December 1989 (permanent)) entry permit are set out in Part 812 of Schedule 2 of the Regulations. These require that the applicant be a prohibited non-citizen on or before 18 December 1989 and that the applicant has not left Australia since that date. They further require the applicant to have applied before 19 December 1993. In addition, the criteria relevant to the present application require that on 15 October 1990 and continuously until the date of decision, the refusal to grant the entry permit would cause 'extreme hardship' or 'irreparable prejudice' to an Australian citizen or permanent resident. It is required that Australian citizen or permanent resident be the nominator of the applicant for entry. Other criteria deal with health and public interest, assurances of support and notification to the Department of any change of address.

The Tribunal is also required to take note of Policy Directions issued by the Minister under section 179 (now section 499) of the Act. The Policy Direction dated 29 January 1993 dealt with the words 'extreme hardship' and 'irreparable prejudice' and the Tribunal has regard to it. The Tribunal notes that the Policy direction makes it clear that the relevant hardship is not limited to emotional or physical hardship; it may be financial.

The words 'extreme hardship or irreparable prejudice' have been considered many times before by the Tribunal and the Federal Court. The Tribunal recently reviewed these decisions in the matter of Re Faida (IRT Decision 3510, 30 March 1994) and made the following observations.

The Federal Court decisions which have considered the words 'extreme hardship or irreparable prejudice' include Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405; Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144; Choi v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court (Full Court) Sydney 20 August 1993 (unreported)); Prasad v Minister for Immigration Local Government and Ethnic Affairs (Federal Court, Jenkinson J, Melbourne, 22 March 1993 (unreported)); Teo v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, Burchett J, 25 October 1994, (unreported)) and Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 117 ALR 418. Those decisions and reference to the Macquarie Dictionary for the ordinary meaning of the words provide guidance and some principles which are useful in this case. They are:

* 'Extreme' means, among other things, 'of a character or kind farthest removed from the ordinary or average'... 'utmost or exceedingly great in degree...'.

* 'Irreparable' means 'not reparable, incapable of being rectified, remedied or made good'.

* 'Prejudice' means, among other things, 'disadvantage resulting from some judgment or action of another...resulting injury or detriment'.

* 'Extreme' need not always mean 'long term or permanent'.

* The two concepts of irreparable prejudice and extreme hardship should be considered separately.

* There may be great prejudice which is reparable and small prejudice which is not.

* Although it may be mistaken to assume that irreparable prejudice is of the same level of gravity as extreme hardship, nonetheless the prejudice, as well as being irreparable, must be of such degree as to excite compassion.

The legislation focuses on the needs of Australian citizens and residents, rather than on those of would-be migrants.

* The words 'hardship' and 'prejudice' are themselves words of wide import. There is no warrant for an unduly technical reading that would restrict the application of the subparagraph so as to deny it the full scope which the fair meaning of its language allows.'

In undertaking its review, the Tribunal has had regard to the evidence on the Departmental file for Michael Pello and to further written submissions filed on his behalf in the Tribunal. The Tribunal held a hearing in this matter on 14 February 1996 and heard oral evidence from the following:

The Tribunal was assisted by an interpreter in the Indonesian language. The Applicant was assisted in his application by a registered migration agent.

Michael Pello is a thirty five year old citizen of Indonesia. He is one of a family of ten siblings of whom two are in Australia. His older brother Frederick Pello has been in Australia since about 1973. He became and Australian citizen in 1983. He is married to Narelle Pello and they have two children. They run a business at Bankstown airport and they live in Revesby.

Michael Pello's parents are deceased. The Tribunal notes that on his application form Michael Pello did not list any of his siblings. This is despite the fact that he has ten siblings including another brother Musa who is also in Australia and is seeking a Class 812 visa on identical grounds to himself.

Michael Pello came to Australia on 27 April 1988 as a visitor with a temporary entry permit which was valid until 25 June 1988. He has not left Australia since. He told the Tribunal that he was helped to come to Australia by a friend who owns a restaurant in Manly. In repayment for this help he worked in the friends restaurant for several months after he arrived and he lived in a room above the restaurant. He had not told his brother Frederick that he was coming to Australia and it was only after he arrived that he contacted him to say he was in Australia.

After about two months he went to stay with Frederick and his family in Revesby for about six or seven months. Frederick supported him financially and helped him to find a job. He started working in a factory and then moved to Carlton with some friends. He left the factory and began work with 'Butlers Belts'. His brother Musa arrived from Indonesia in August 1989 and moved in with him at Bexley where he was living by that time.

Michael Pello told the Tribunal that he would help out with the children and the work to be done at Frederick's home. He said that they became close and that they would speak on the phone once per week or two weeks. As his parents are dead he looks to Frederick more as a parent that as a brother. He did not see Frederick for about fifteen years however contact was maintained by letters, mostly to his parents. He described Frederick as a strict and hard man who tells him if he thinks he is doing the wrong thing. He said that he often talked to Frederick about his problems including his confusion about living in Australia.

Michael Pello married an Australian citizen in 1995 and they live together as husband and wife. He told the Tribunal that Frederick does not really know his wife well and that he did not come to the marriage or subsequent celebration dinner. He has not taken his wife to Frederick's place because he was 'worried about Fred'. His brother Musa attended the wedding and dinner.

Frederick Pello runs a business of a 'Hot Food Bar' at Bankstown Airport. He and his wife work long hours seven days a week and have done so for about six years. They bought the business in 1990 and after a good start it has recently started to flounder. He is the oldest in his family and said that they are all very close. He has tried to send money home to Timor since he arrived in Australia in 1973 but has not always been able to do so. He said that he wrote to his parents but not separately to his siblings. His brother Michael wrote and asked him for money to allow him to leave Timor but he was unable to send it.

He did not know that Michael had arrived in Australia until he phoned him after arrival. He said that he was happy to see him and have him stay in his house. Since Michael has moved out he speaks to him on the phone often and they see each other usually on a Saturday night. He said that he tells his brother what he thinks about his life but that he believes his brother's family life is his own business and that he doesn't have to take any of his advice. He does not know Michael's wife well and said that he doesn't see her often.

Frederick said that if Michael left Australia he would feel 'guilty' as he had before and that he would have to financially support him as he had before. He would be in the same situation as he was between 1973 and 1988 where he would have to send money to the family in Timor but would not always be able to.

Narelle Pello told the Tribunal that she has been married to Frederick Pello for sixteen years and they have a son aged eleven and a daughter aged seven. She first met Michael Pello when he came to Australia in 1988. He came to live with her family for a short time before setting up his own house and getting a job. She was working and looking after her son at the time and they saw very little of each other. She told the Tribunal that Frederick had talked about his family and the poverty in which they lived in Timor. He tried to send money home when he could. She described the brothers as close and said they speak on the phone about once per week.

Narelle Pello told the Tribunal that Frederick had suffered many losses through migration, including his culture, family and the death of his father. She said that she believed that if Michael had to leave this would be another similar loss and that Frederick would suffer because of it. He is a man who keeps his emotions to himself but nonetheless feels things acutely and is prone to let this out in an outburst at a different time. She described the relationship between Frederick and Michael as more fatherly than like brothers. She has only met Michael's wife once. She said that Michael has been a great help to them in the business by helping after hours and dropping in to talk to Frederick at the shop. If he had to leave Australia she would feel that she had lost a brother.

The Tribunal has considered the evidence contained in the Departmental files and given at the hearing. The Tribunal is required to consider the circumstances facing Frederick Pello on 15 October 1990 and continuing.

In 1990 Frederick Pello had just started running his own business and was working very hard at it. There is no suggestion of ongoing financial dependence between the two brothers after Michael moved out and began work in 1989. From about mid 1989 Michael Pello has lived apart from Frederick and he is now married and living with his wife. They are both physically capable adults leading independent lives.

The Tribunal has no evidence of prejudice which would result to Frederick if Michael left Australia.

The Tribunal accepts that the brothers are now close. They were separated by Frederick Pello's move to Australia in 1973 and did not see each other for fifteen years. They now see each other at least weekly and Michael helps Frederick in his business. However Frederick does not know Michael's wife in other than a passing fashion and they do not share social occasions together. Michael Pello is emotionally closer to his other brother Musa who is also in Australia.

The Tribunal accepts that Frederick Pello would be sad if Michael left Australia and that he would worry about him and feel guilty if he could not send him money. However the Tribunal expects that these feelings would be ameliorated by the knowledge that Michael is married to an Australian citizen and is likely to return to Australia in the near future. The Tribunal does not accept that the hardship which Frederick would suffer if Michael had to leave Australia from 1990 to the present would be extreme. Frederick did not know that Michael was coming to Australia and did not see him until some time after he arrived. The separation of the two brothers is, in the Tribunal's view, a sad and common part of the process of migration.

The Tribunal finds that if Michael Pello had left Australia on 15 October 1990 and continuing to today Frederick Pello would not suffer extreme hardship or irreparable prejudice.

The Tribunal therefore must refuse the application.