Applicant: Mr Ronald Terrence Ellis Principal: Mr Wan Loong Liu IRT Reference: N92/01045 #number 1668 [1993] IRTA 1668 (4 February 1993)

An applicant is entitled to the grant of a an entry permit under the Migration Act 1958 (the Act) and the Migration Regulations (the Regulations) if he or she satisfies all the criteria set out in the Regulations in relation to the relevant entry permit. The criteria for the grant of a December 1989 (temporary) entry permit are identified in item 59A in Class 2 in Schedule 3 to the Regulations which specify the criteria in regulation 131A and certain additional criteria identified by symbols in Schedule 1, namely (so far as relevant in the present case) that the applicant meets the health and public interest criteria.

In accordance with regulation 34A, an applicant must satisfy the prescribed criteria (other than the health and public interest criteria) at the time of primary application and as applicable at that time. On 18 December 1992 regulation 131A provided as follows:

131A. (1) The following criteria are prescribed in relation to a December 1989 (temporary) entry permit:

(a) the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989;

(b) the applicant was in Australia on, and has not left Australia since, 18 December 1989;

(c) the applicant applies, in accordance with these Regulations, before 19 December 1993 for the entry permit;

(d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit:

(i) the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or

(ii) the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or

(iii) the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or

of a settled Australian citizen or settled Australian permanent resident; or

(v) there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident;

(i) the applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph (d)(i), (ii) or (v); and

(ii) in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support;

an assurance of support satisfactory to the Minister has been given;

(f) if the applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph (d)(iii) or (iv) - an assurance of support satisfactory to the Minister has been given;

(g) the applicant has been nominated by the relevant related person referred to in paragraph (d);

(h) the applicant notifies the Department, without unreasonable delay, of each change of his or her residential address.

(2) In this regulation, "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that has occurred in the applicant's country of citizenship or of usual residence.

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit;

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; or

(ii) welfare, hospital nursing or community services in Australia;

For the Principal to satisfy the relevant criteria in regulation 131A there must be, among other things, a compassionate ground existing as at 15 October 1990 and continuing until the date of decision, to the effect that refusal to grant the entry permit would cause "extreme hardship" or "irreparable prejudice" to an Australian citizen or Australian permanent resident.

In reviewing this matter, the Tribunal had before it the Departmental file in relation to the Principal. On 28 January 1993, the Tribunal heard oral evidence from the Applicant, the Principal, the Applicant's wife, Mrs Barbara Ellis, and the Principal's wife, Mrs Elizabeth Lin.

The documentary evidence establishes that the Principal arrived in Australia on 16 June 1982 from India on a visitor visa. On arrival an entry permit was granted valid to 16 July 1982. On the expiry of the entry permit he became a "prohibited non-citizen" within the meaning of the Act in force prior to 19 December 1989. He has remained in Australia ever since and in consequence satisfies paragraphs 131A(l)(a) and (b). He applied for the December 1989 (temporary) entry permit on 18 December 1991, thus satisfying paragraph 131A(l)(c).

The Applicant, in a statutory declaration submitted with the primary application, stated that he was the owner of a box manufacturing company with an annual turnover of approximately $2 million. The Principal is employed as a supervisor, a position which "demands a lot of effort in overseeing production and quality, plus the ability of maintaining harmony with the staff". When he became aware of the Principal's problem with migration, he advertised the position in newspapers for several weeks and sought assistance with the Commonwealth Employment Service, without success. The Applicant claims that if the Principal's application is not successful it will cause extreme financial hardship not only to the company but to a number of people employed by the company who could lose their employment.

The oral evidence is that the Principal completed secondary schooling and has completed a printing course at a college of technical and further education of 12 months duration. He had no experience when he commenced working for the company and acquired his abilities from training given by the Applicant. The Applicant claimed that when he became aware of the migration status of the Principal in late 1989 he advertised for a suitable person to be trained, but agreed after questioning by the Tribunal that "he could have made a bigger effort". Mrs Ellis, the wife of the Applicant and actively involved in the business, denied that the section would close down if the Principal was required to leave, but said it might shrink until they were able to build it up again. "We would not let it slip away", she said. Whilst the Principal is put forward in the application as a key employee upon whom the section of the business depends for survival, he is paid a salary of only $500 per week.

The Tribunal has considered whether any compassionate grounds exist which would satisfy paragraph 131A(l)(d)(v), and is satisfied on the material available that no such grounds exist. In considering this ground, the Tribunal has taken into account the policy direction issued by the Minister for Immigration, Local Government and Ethnic Affairs on 24 November 1992 pursuant to section 179 of the Act as it is obliged to: see the decision of the Federal Court in Ali v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 14 September 1992).

As has been pointed out in a number of Tribunal decisions (see, for example, Re Jackson IRT Decision No.Q90/00124, delivered 17 December 1990, and Re Kwang Soo Kim IRT Decision No.N91/00644, delivered 4 September 1991) the test for what might constitute "extreme hardship" or "irreparable prejudice" as required by the relevant legislation is quite sever. Justice Von Doussa has stated in Roser v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 3 September 1991) 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 part - not the Principal - and there must be a causal relationship between such hardship or prejudice and the departure from Australia of the non-Australian part (see Re Kwang Soo Kim as above).

As the wife of the Applicant recognised, the company will need to replace the Principal rather than allow the company to suffer long-term. It must also be recognised that the loss of a key employee is an ordinary incident of running a business, and even if the Principal succeeded with his application, there can be no guarantee he will remain forever with the present employer.

In these circumstances, the Tribunal finds that the departure of the Principal from Australia would not cause the Applicant "extreme hardship or irreparable prejudice".

The Tribunal affirms the decision refusing the grant of a December 1989 (temporary) entry permit to the Principal.