Federal Court of Australia|1994-10-31|Before: Hill J, Mr J, Burchett J

The applicant had answered 1.8 "NO", and 1.9 "YES". However, he had completed Part G, and as I have said, his application was in fact treated as an application under s. 6A(1)(e); it was not treated as limited to part only of that ground. I think this was plainly correct, and that on a fair reading of the application as a whole, it did rely on the full ground stated in s. 6A(1)(e), as that section stood at the date of the application. The form was enclosed with a letter from the applicant's solicitors to the Department, the first two sentences of which were:

"We act for Mr Goundar and lodge on his behalf an Application

for Permanent Residence based on humanitarian and

compassionate grounds. The application is thus lodged under

Section 6A(1)(e) of the Migration Act."

8. But it is clear from the terms of the departmental form, to which I have referred, that, until these decisions became known, understood, and accepted, the Department took the view that s. 6A(1)(e) embraced two discrete grounds. That view seems also to have received brief legislative recognition, during the time that s. 47(1)(f) and (g) were law. Some light is thrown on what was thought to be involved in the distinction, by the terms of two sections of the "Integrated Departmental Instructions Manual", headed respectively "Strong compassionate grounds" and "Strong humanitarian grounds". The former of these documents contains the statement:

"In general, compassionate circumstances relate to the

misfortunes and sufferings which people experience in their

personal lives brought about by unusual or distressing

circumstances which relate to them as individuals.

Compassionate circumstances are to be distinguished from

humanitarian circumstances. Broadly, humanitarian

circumstances relate to individuals being disadvantaged as a

result of membership of some group or class of people, which

is being treated differently and adversely in relation to the

rest of the population by the governments of their countries

of origin."

The copy of this document in evidence is endorsed as issued in the year 1988. I do not know whether a second edition was issued, but the other document "Strong humanitarian grounds", also issued in 1988, was reproduced in a second edition in 1989, including the statements:

"1.1 This topic describes the requirements to be met by

people applying for resident status (i.e. to remain

permanently in Australia) on strong humanitarian grounds.

1.2 Distinction between Humanitarian Grounds and

Compassionate Grounds: There is a distinction between

applications based on humanitarian grounds and those involving

factors of a compassionate nature. ...

1.3 Broadly, strong compassionate grounds relate to severe

misfortune and suffering which individuals experience in their

personal lives as a result of unusual or distressing

circumstances personal to them. Humanitarian grounds, on the

other hand, relate to an individual who, because of membership

of a particular group/class or because of beliefs held, has

been or would be singled out for severely disadvantageous

treatment by the state in the applicant's country of origin or

last permanent residence."

9. The Minister having refused on 19 October 1992 to entertain the applicant's application under reg. 173A, the present proceeding was brought for an order requiring him to determine the matter according to law. There was a further and independent complaint, but this has already been rectified, and no relief is now sought in that respect. The core question in the case is whether the exclusion of an application that was made "on humanitarian grounds" operates here. That in turn depends upon what is meant by an application "on humanitarian grounds".

10. The difficulty arises from the fact that there was no such thing as an application "on humanitarian grounds" under the contemporary migration law. There was, for cases like the present, where the application had been made prior to 19 December 1989, the ground provided by the former s. 6A(1)(e) - which could shortly be referred to as "strong compassionate or humanitarian grounds". The Minister says that this is what the regulation is referring to, by a kind of inaccurate shorthand. There was also on the statute book, but it did not come into effect until 19 December 1989, a new s. 47(1)(g), set out above, referring to "strong humanitarian grounds".

11. A number of factors point away from the view advanced on behalf of the Minister, quite apart from the inappropriateness of the language. The departmental form drawn up for such cases, of which the form used in the present matter is an example, plainly shows that the Department itself conceived of two separate grounds, one of which could fairly have been referred to by the label "humanitarian". The climate of official opinion at the time is part of the context in which the regulation was made. The Instructions Manual shows that an official rationale had been developed, according to which humanitarian circumstances related to the adverse treatment of individuals, disadvantaged as a result of their group or class connections, or because of their beliefs, by the governments of their countries of origin. This approach echoes concepts which lie at the heart of the condition of a refugee. In reg. 173A(2), para. (a) excluding an application made "on humanitarian grounds", is immediately followed by para. (b) excluding an application made "on the ground that the applicant was entitled to the status of a refugee". If it was thought that the case of an alleged refugee ought to be excluded, it is very likely that the case of a claimant "on humanitarian grounds", as explained in the Instructions Manual, would have been seen in precisely the same light. Consistency would demand that the exclusion of the one should be accompanied by the exclusion of the other.

12. To that proposition, the Minister's counsel responds that, at the date when reg. 173A was brought into existence, 29 May 1990, the incorrectness of the view expressed in the Instructions Manual had been exposed by the decision in Dahlan (supra). I do not find this very convincing. The interval is quite short between the decision and the making of the regulation, bearing in mind that it would take time for an unreported decision to become known and, at the other end of the interval, the regulation must have been drafted some time before its promulgation. In any case, there is nothing to show that the view of a single judge expressed in Dahlan was officially accepted. The same case provides an example of how long it takes for the demonstration of an error in official thinking to achieve recognition. Hill J cites my judgment in Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 516, where I drew attention to the obvious proposition that s. 6A(1)(e)

"does not require an applicant to suffer uniquely. There may be

'strong compassionate or humanitarian grounds for the grant of

an entry permit' to an applicant who happens to be able to

apply, because already outside his country, though thousands

of his compatriots are desperately situated, but cannot even

apply. The plight of German Jews in 1938 provides a ready

illustration."

This passage was adopted by Wilcox J in Pesava v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, 8 May 1989) and by Hill J in Dahlan. The same view was taken by French J in Damouni. The judgment in Sinnathamby was published long before the entries in the Instructions Manual to which I have referred, yet it will have been noticed that the second of those entries specifically requires, for the establishment of strong humanitarian grounds, that an individual "has been or would be singled out for severely disadvantageous treatment by the state in the applicant's country of origin or last permanent residence".

13. In any case, contemporaneously with the change to the new provisions to operate after 18 December 1989, there was introduced into the statute the very dichotomy that French J and Hill J had said could not be satisfactorily maintained. This was in s. 47, which remained the law until its repeal by s. 12 of the Migration Amendment Act 1991. Accordingly, it is not at all unlikely that those responsible for reg. 173A had continued to see s. 6A(1)(e) as embracing two grounds. Indeed, there is internal evidence that the author of the regulation did actually advert to s. 47. For he referred to it, inappropriately, in reg. 173A(2)(b). Since s. 47 was not in force prior to 19 December 1989, no application falling within the terms of reg. 173A could have been made as an application "on the ground that the applicant was entitled to the status of a refugee as defined in paragraph 47(1)(d) of the Act"; any application of the kind specified must have related to the definition of a refugee as understood before the enactment of s. 47. As it happens, the definition in s. 6A(1)(c) was the same; nevertheless, the paragraph of the regulation was both confusing and inappropriate in its reference to the source of that definition. But para. (b) does show that the draftsman had regard to s. 47, and also to a provision closely related to the Department's understanding of the separate "humanitarian ground" contained in s. 47.

14. If the author of reg. 173A did have regard to s. 47, and to the view implicit in the departmental form of application that there was a separate humanitarian ground included in the old s. 6A(1)(e), a desire for consistency between the provisions for review under the new scheme, and under the interim arrangements, may have required the exclusion from reg. 173A of an application made "on humanitarian grounds". For s. 118(3) excluded from the power to grant an entry permit under the new review provisions a case where the ground was "humanitarian", a provision which was there perfectly easy to interpret as a reference to s. 47(1)(g). There was no exclusion of a case where the ground was "compassionate" within s. 47(1)(f). In the circumstances, the use in reg. 173A of the very expression employed by the legislature in s. 118(3) seems significant. Conformably with this approach, the exclusion in reg. 173A(2)(b) also matches the terms of s. 120(1)(d) of the Act in respect of review, under the new provisions, of a decision that a person does not have the status of refugee.

15. I was referred to reg. 131A, which was inserted in the Regulations over six months after reg. 173A, on 10 December 1990. I do not think reg. 131A casts any light on the question I have to decide, but it is interesting to note that the ground corresponding, in some degree, to the previous s. 6A(1)(e) is there referred to as a "compassionate ground", and not as an "humanitarian" ground. If an abbreviated reference were to be made to s. 6A(1)(e), that would be a more natural way of making it, since the word "compassionate" comes before the word "humanitarian" in the full statement of the ground.

16. The first subparagraph of reg. 173A confers a right to make an application for reconsideration. In doing so, the regulation is consistent with the plain legislative intent evinced by s. 6(4) of the Amendment Act. Indeed, it may be arguable (although it was not argued in this case, and I express no opinion on the point) that s. 6(4) should itself be construed as extending to the reconsideration, as well as the consideration, of the applications to which it refers. But on the assumption which grounded the regulation and the arguments before me, that specific provision was required, subreg. (1) embodies that provision. Subregulation (2) is then a provision excluding certain cases from the general right of review conferred by subreg. (1). Upon ordinary principles, such an exclusion ought to be construed, if ambiguous, narrowly rather than broadly. In Cole v. Director-General of Department of Youth and Community Services (1987) 7 NSWLR 541 at 543, Kirby P said:

"Thirdly, and most importantly, the provision for appeals is a

beneficial one, conferring on employees of the Public Service

entitlements to the review of decisions which were not enjoyed

by Crown servants by the prerogative or at common law and

which are not generally enjoyed ... . The entitlement to

appeal conferred by s 20 (of the Government and Related

Employees Appeal Tribunal Act 1980) is a beneficial

entitlement of employment. It should not be excluded or

confined by the exceptions provided in s 21, except to the

extent that those exceptions are clear. Any doubt about the

scope of s 21(1)(e) should be resolved in favour of the

enhancement of the right of appeal and against its diminution

by the operation of the exclusion."

This seems to me to be a specific example of the broader principle stated by Deane, Dawson, Toohey and Gaudron JJ in Wentworth v. New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 252:

"There are certain matters in relation to which legislative

provisions will be construed as effecting no more than is

strictly required by clear words or as a matter of necessary

implication. They include important common law rights,

procedural and other safeguards of individual rights and

freedoms and the jurisdiction of superior courts."

See also Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 31 FCR 364 at 372-373.

17. In terms of the rule laid down in Wentworth v. New South Wales Bar Association, what is here involved is a legislative provision (made by regulation) in relation to the procedural safeguard of very important individual rights, conferred upon persons in the position of the applicant by the right of review. It would be contrary to both the statements of principle to which I have referred to construe the ambiguous and inaccurate language of reg. 173A(2)(a) in the wide sense required by the Minister's submission. The paragraph should rather be given the narrow scope actually expressed by its words.

18. It is true that the narrow meaning makes the paragraph ineffective, because the assumption on which, according to that meaning, it was drawn - that there was a discrete ground within s. 6A(1)(e), re-enacted in s. 47(1)(g) - was simply wrong. But if, as I hold, the regulation was indeed drafted on this false assumption, there can be no warrant for giving it a wider meaning it was never intended to have, embracing so much of the full meaning of s. 6A(1)(e) as derives from the word "compassionate". Although the author of the regulation intended to exclude a ground mistakenly seen in s. 6A(1)(e), it is equally true that he intended not to exclude the other ground mistakenly seen as separately stated in s. 6A(1)(e). If the intention must therefore fail to some extent, it can be no answer to the construction I favour that it would make the provision ineffective. The other construction would make it effective to an extent and in a way never intended.

19. To put the matter slightly differently, the misconceptions of the maker of a regulation, or of a legislator, do not make law. Legislation that proceeds on the basis of a misconception may simply be ineffective. Cf. Annetts v. McCann [1990] HCA 57; (1990) 170 CLR 596 at 600; Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; In re Lockwood, decd. Atherton v. Brooke (1958) 1 Ch 231.

20. For these reasons, I conclude that reg. 173A(2)(a) had no application to the present case. I reject the concept that it had application to so much of the case as could be regarded as falling within the meaning of the adjective "humanitarian", since it would be wrong in law to attempt to divide the ground provided by s. 6A(1)(e) in this way. As to what the ground does embrace, I refer to Damouni and Dahlan, and to my discussion of the principles involved in Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affairs (supra) at 489-490.

21. I order the applicant to bring in, on a date to be fixed, short minutes of orders appropriate to reflect the reasons of the Court. The respondent must pay the applicant's costs.

Employees Appeal Tribunal Act 1980

Legislation Amendment Act 1989

Kaniappa Goundar v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1435; (1994) 35 ALD 383 (Extract) (1994) 54 FCR 300 (31 October 1994)

Migration Legislation Amendment Act 1989, s. 6(4)

Migration Regulations, reg. 173A

Wentworth v. New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239

Cole v. Director-General of Department of Youth and Community Services

Minister for Immigration and Ethnic Affairs v. Sciascia (1991) 31 FCR 364

Annetts v. McCann [1990] HCA 57; (1990) 170 CLR 596

Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514

Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affairs

Kaniappa Goundar v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1435;

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (12)

Kaniappa Goundar v Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1435; (1994) 35 ALD 383 (Extract) (1994) 54 FCR 300 (31 October 1994)