Migration - appeal - decision of Immigration Review Tribunal - December 1989 (temporary) entry permit - father and son -refusal to grant permit to father - son an Australian citizen - reg 131A(1)(d)(v) Migration Regulations - whether "extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident" - failure to make findings of fact - consideration whether prejudice irreparable - further limitation imposed by Policy Control Instruction - whether valid - Convention on the Rights of the Child - natural justice - non disclosure of documents from Departmental file - onus of proof not satisfied.

Migration Act 1958: ss 135(1)(c), 138, 179

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450

Octet Nominees Pty Ltd v Grimes (1986) 68 ALR 571

Palavi v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 18 August 1992)

Solicitors for the applicants: Paul Richards and Associates

Solicitors for the respondent: Australian Government Solicitor

2. The decision of the Immigration Review Tribunal made on 17

November 1991 be quashed.

3. The application of Akhatar Ali for review of a decision to refuse

him a December 1989 (temporary) entry permit be remitted for

reconsideration by the Immigration Review Tribunal differently

constituted.

4. The respondent pay the applicants' costs to be taxed including

reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This appeal from the Immigration Review Tribunal under s.138 of the Migration Act 1958 (the Act) is concerned with an application for a December 1989 (temporary) entry permit under reg 131A of the Migration Regulations (the Regulations). The Tribunal found, in terms of reg 131A(1)(d)(v), that refusal to grant the entry permit would not cause "extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident". The appeal to this Court is limited to an appeal on a question of law only: see s.138(1) of the Act. Akhatar Ali (Akhatar) is a citizen of Fiji, having been born in that country on 9 March 1953. His son Nadeem Akhatar Ali (Nadeem) was born in New Zealand on 3 June 1979. The mother of Nadeem is Ms Shirley Henare. Akhatar and Ms Henare arrived in Australia with Nadeem in 1982 but separated in 1988. Subsequently she entered into another relationship which has resulted in a child Wayne Riley. Prior to this Nadeem had acquired Australian citizenship in March 1987.

2. After the separation of Akhatar and Ms Henare, Nadeem remained with his father and had little or no contact with his mother until about October 1990. However since that time his relationship with his mother has resumed and he spends almost every weekend with her and his half brother. He said in evidence before the Tribunal that he only liked "to visit and not to stay there".

3. On 18 January 1991 the Family Court made an order by consent granting sole custody of Nadeem to Akhatar with access to his mother at such times as may be agreed.

4. A critical factual question in this case is what would happen if Akhatar did not obtain an entry permit and was obliged to return to Fiji. As to this the Tribunal made the following comments (at 11):

"Nadeem also indicated to the Tribunal that if his 'father

had to leave Australia he would go with him and that this

would be difficult for him as he would not know anyone over

there'. The Tribunal had no reason to doubt his evidence

and feelings for his family although it notes his father has

family members presently in Fiji."

"(Akhatar) gave evidence of his now changed attitude, after

counselling, regarding his domestic situation, including

acceptance of his separation from his former de facto spouse

and of her new relationship with another man. He stated

that although in January 1991 he had obtained custody of

Nadeem so that 'he would go with him if he goes', he has now

accepted that Nadeem's welfare is more important."

5. This passage is somewhat ambiguous. At any rate, I do not take it as a finding that Akhatar does not wish Nadeem to return with him to Fiji if that is the only way they can stay together.

6. As to Nadeem and his mother, the Tribunal found that "their relationship is now greatly improving". Ms Henare stated that the relationship between Nadeem, herself and her other children was such that if Nadeem was to decide to go with his father, she "would be forced to prevent him from leaving by issuing Family Court proceedings for custody".

7. The Tribunal did not make any finding as to the most likely course that events would take if Akhatar were not granted a permit. The uncertainties were whether Akhatar would insist on wanting to take Nadeem with him, and if he did, whether Ms Henare would take custody proceedings and, if she did, what the outcome of those proceedings would be. The Tribunal said (at 19):

"Therefore, should (Akhatar) not be granted the permit

sought, Nadeem may be the subject of a custody battle. This

scenario appears harsh and will cause some hardship to

Nadeem but, according to the evidence, this is subject to

matters such as whether the principal will want to take

Nadeem with him at all, and in such event reaching suitable

access arrangements. Nadeem's position would not be unlike

children whose parents are separated and live at great

distance from each other within Australia itself. In all

the circumstances, although not denying the existence of

harm or prejudice to a child in similar circumstances, it is

doubtful that such harm or prejudice is 'extreme' or

'irreparable' as contemplated in the terms of reg

131A(1)(d)(v)."

8. (I interpolate the comment that counsel before me accepted that the refusal of the application would result in Akhatar's deportation with the consequence that he ordinarily would not be able to return to Australia for five years: reg 36(1)(c) of the Regulations. I shall return to this point later.)

9. After referring to a direction of the Minister under s.179 of the Act, to which I shall also return, the Tribunal continued (at 21):

"It was submitted to the Tribunal that, should (Akhatar) not

be permitted to remain in Australia, his son, an Australian

citizen, would be disadvantaged.

It was also submitted to the Tribunal that, should (Akhatar)

not be permitted to remain in Australia, that his son would

be faced with a horrendous decision as to whether to

accompany his father and thus be deprived of his

entitlements including education as a citizen and the family

relationship of his mother, brother and step-brother. The

Tribunal agrees that such a decision, if it needs to be

made, is a difficult one. He is close to his father and has

only recently warmed to his mother. He has spent almost all

his life in Australia and next year he will go to high

school. He appears to have adapted well and integrated into

the community here where he has made his life. Evidence was

given that he could develop behavioural problems if he were

to leave Australia. However, the Tribunal notes that to

leave Australia would result from a conscious although very

difficult decision on the part of Nadeem or others and if

his mother brings the proceedings for custody as stated in

her statutory declaration to the Tribunal by the Family

Court (sic). There is no question of Nadeem being deported

or being asked to leave Australia, he is a citizen of this

country. To leave would stem from a decision by another and

not as a direct consequence of a decision by this Tribunal.

Therefore, not to grant the principal the entry permit

sought would not result per se in Nadeem having to leave

Australia. Such a decision depends also on other

considerations which have already been noted. On the other

hand, not to grant (Akhatar) the entry permit could result

in Nadeem being deprived of the care, comfort, support and

guidance of his father, or if he was to leave with his

father, then of his mother and brothers. Furthermore, the

Migration legislation does not specifically make the

situation or position of an Australian citizen child or its

rights or concerns the sole or paramount reason for an

illegal parent to remain in Australia. This is only one

although an important consideration in determining whether

such a parent may remain in Australia."

10. After referring to Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and Singh v Minister for Immigration and Ethnic Affairs (an unreported decision of the Federal Court, 4 December 1985) the Tribunal continued (at 23):

"In this case, unlike those referred to above, the mother,

brother and stepbrother of the child will remain in

Australia. The mother has stated in her statutory

declaration that she will bring proceedings to obtain

custody of Nadeem and would like him to stay with her and

the other members of his family. As well, the

considerations raised by the primary decision maker in the

reasons and assessment of (Akhatar's) application to the

Department referred to above are also relevant and of some

persuasion to the Tribunal. The social worker, Mr Smiley,

spoke of the difficulties that could occur particularly with

Nadeem encountering 'behavioural problems'. The Tribunal is

not convinced that such problems might not occur as a result

of the domestic situation of the family in question and

irrespective of the whereabouts of Nadeem's father or the

other members of his family.

In all the circumstances of this case, the Tribunal finds

that the failure to grant (Akhatar) a December 1989 entry

permit would not cause Nadeem such extreme hardship or

irreparable prejudice as contemplated in subregulation

131A(1)(d)(v). As pointed out, it is not denied that Nadeem

would suffer hardship or prejudice if his father had to

leave Australia, but the Tribunal is not convinced that this

in itself would be of such a degree so as to trigger the

subregulation. As stated by the Tribunal in Re Jackson

(Decision No Q90/000124, 17 December 1990) and approved of

in Roser v Immigration Review Tribunal and Minister for

Immigration, Local Government and Ethnic Affairs

(unreported, Federal Court, 3 September 1991), a very high

degree of hardship or prejudice is required by subregulation

131A(1)(d)(v). All the material points to this

subregulation being used sparingly and in extreme cases.

Without defining the limits of the same, or the extent of

hardship or prejudice that would encompass the requirements

of the subregulation, the Tribunal concludes that they are

not present in this case."

11. The relevant criteria of reg 131A require a prediction and assessment of future events, as best the decision maker is able to do. In the present case the Tribunal was confronted with a two-stage enquiry:

(i) What changes would occur in the circumstances of Nadeem as a

result of a refusal to grant the entry permit to his father?

(ii) Would those changes cause extreme hardship or irreparable

prejudice to Nadeem?

12. As a starting point of any factual enquiry there must be one undoubted consequence of the refusal of a permit, viz Akhatar would return to Fiji and could not re-enter Australia for five years. At this stage I think the Tribunal was obliged to attempt to make a finding as to whether or not Nadeem would accompany his father and then decide whether, on the view it came to, there would be extreme hardship or irreparable prejudice occasioned to Nadeem. Alternatively the Tribunal could decide, on the basis of appropriate findings of fact, that neither result would amount to extreme hardship or irreparable prejudice or that both would.

13. If one result would amount to extreme hardship or irreparable prejudice but the other would not, then it was important for the Tribunal to decide, on the balance of probabilities, which result was the more likely to occur. If there was no rational basis on which the Tribunal could decide that one result was more likely to occur than the other, then the conclusion would be that, the onus being on the applicant, the criteria had not been satisfied.

14. On my reading of its reasons, the Tribunal canvassed in an inconclusive fashion the various possibilities disclosed by the evidence, but failed to make the necessary findings of fact to enable it to discharge its duty: see s.135(1)(c) of the Act.

15. I have come to the conclusion that the Tribunal erred in law because, insofar as it found that some prejudice would be suffered by Nadeem (although, as I have said, without identifying the finding of fact which led to that conclusion), it did not ask the question required by reg 131A, viz whether such prejudice would be "irreparable". It was clear that this issue was raised by Akhatar's legal advisers before the Tribunal. They argued (see reasons at 13):

"Nadeem was now enjoying all the benefits of being in

Australia and when entering the puberty stage, a crucial

phase of his life, irreparable damage would occur if he was

deprived of his father's support."

16. I think "irreparable" is used in reg 131A in the ordinary meaning of "not reparable, incapable of being rectified, remedied or made good" (Macquarie Dictionary). Words in statutes are presumed to have some function to fill: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414. The Tribunal failed to consider, as a separate issue requiring its attention, whether there was prejudice which was irreparable. Thus the Tribunal said (at 15):

"One of the questions for the Tribunal in this matter is to

decide whether in the circumstances of this case the

'hardship' or 'prejudice' that would be caused to Nadeem is

of sufficient degree or extent to come within the qualifying

words 'extreme' or 'irreparable'."

17. This seems to involve a lumping together of the two concepts of hardship and prejudice. Not only are prejudice and hardship two distinct criteria, but enquiry as to the degree or extent of prejudice by no means necessarily poses the question whether that prejudice can be remedied or rectified. There may be great prejudice which is reparable and small prejudice which is not.

18. A striking indication, or perhaps explanation, of this same error is to be found in the way in which the Tribunal dealt with Policy Control Instruction No PC 1787 dated 30 August 1991 (the PCI). The PCI was a general direction given by the Minister under s.179 of the Act which provided:

"(1) A person or body having functions or powers under this

Act shall perform those functions, and exercise those

powers, in accordance with such general directions (if any)

as are given to the person or body by the Minister in

writing.

(2) Subsection (1) does not empower the Minister to give

directions that would be inconsistent with this Act or the

regulations.

(3) The Minister shall cause a copy of any direction given

under subsection (1) to be laid before each House of the

Parliament within 15 sitting days of that House after that

direction was given."

19. Since the legislation itself authorised the formulation of the principles contained in the PCI, the decision maker and the Tribunal were obliged as a matter of law to apply those principles: cf Octet Nominees Pty Ltd v Grimes (1986) 68 ALR 571 at 583 per Jenkinson J (affirmed on appeal (1987) 73 ALR 107). The PCI stood on a different footing from general statements of policy as to the exercise of administrative decisions, like the one considered in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, which do not spring from express legislative authority.

20. There is a passage in the PCI which is directly relevant to the question whether prejudice is irreparable. Unlike another part of the PCI to which I shall refer later, the passage is not inconsistent with the Act or the Regulations. The Tribunal quoted other parts of the PCI which appear both before and after that passage but omitted the passage itself. It is in the following terms:

"In assessing applications, the following factors will be

taken into account:

- all claims should be examined and the nature of the prejudice

claimed and any potential remedy should be identified;

- the reasons why the claimed prejudice cannot or is unlikely

to be remedied in the long term are to be tested

- the prejudice must be long term or permanent."

(Emphasis added.)

21. The years when Nadeem enters secondary education and passes through adolescence into early manhood are likely to be critically important for the course his future life takes, and especially so in respect of education, career opportunities and the development of personal qualities. He will only have these years once. Prejudice suffered at this time of his life may well be incapable of remedy. It would clearly be open for a decision maker in the present case to find there was prejudice which was irremedial (albeit for different reasons) whether Nadeem stayed in Australia or went with his father to Fiji.

22. The effect of the Tribunal's failure to consider whether the prejudice which would be suffered by Nadeem was irreparable was compounded by the erroneous assumption that Nadeem would, if he remained with his mother in Australia, be in no different position from a child whose parent lives in a distant part of this country. The failure of Akhatar to obtain an entry permit would mean that he would be liable to deportation and would in all probability in fact be deported: see ss.59 and 60 of the Act. He would then be unable to re-enter Australia for five years: reg 36(1)(c). Nadeem would be unable to visit his father in Fiji without the consent of his mother: Passports Act 1938, s.7A. Accordingly Nadeem would suffer the prejudice of separation from his father between the ages of 12 and 17, subject only to the consent of a person beyond the control of either. This is a substantially different, and worse, position compared with that of a boy of the same age separated from a father who lives elsewhere in Australia but is a citizen or permanent resident.

23. Another error disclosed in the Tribunal's reasoning is the assertion that because Nadeem is an Australian citizen and therefore cannot be deported, that for him "(t)o leave would stem from a decision by another and not as a direct consequence of a decision by this Tribunal" (at 22). Regulation 131A(1)(d)(v) is concerned with the effect that refusal to grant a permit would have on some other person who is an Australian citizen or Australian permanent resident. The regulation therefore necessarily assumes that the Australian citizen or resident would not be legally obliged to leave Australia as a consequence of the failure to grant a permit. To use the fact that Nadeem would legally have a free choice whether to go with his father or stay in Australia as a factor in itself weighing against a grant of a permit to Akhatar was in my opinion mistaken.

24. In a passage already quoted from the concluding stages of its reasoning the Tribunal said:

"All the material points to this subregulation being used

sparingly and in extreme cases".

25. The source of this expression would appear to be par 2 of the PCI which states:

"It should be noted that the qualified wording of the

criterion (i.e. 'extreme' hardship and 'irreparable

prejudice') is designed to ensure that this concession (to

regularise the status of illegals) be used sparingly."

26. In a decision handed down after the conclusion of argument in the present case (to which the respondent's solicitor very properly drew my attention) Keely J considered the application of a similar phrase contained in an earlier PCI (No 1758 issued 28 December 1990). The case is Palavi v Minister for Immigration Local Government and Ethnic Affairs (unreported, 18 August 1992). His Honour said (at 10):

"In my opinion the words in the December 1990 Policy Control

Instruction PC 1758 'that this discretion (should) be used

sparingly and only in the most compelling cases' were not

consistent with the provision in regulation 131A(1)(d)(v)

set out above. In my opinion a delegate, when considering

whether the refusal to grant an entry permit 'would cause

extreme hardship or irreparable prejudice to an Australian

citizen or Australian permanent resident', is required by

the regulation to consider the material before him as to the

circumstances of the particular case, including the degree

of the hardship likely to be caused and the question of what

prejudice, if any, would occur and whether it would be

irreparable.

The Policy Control Instruction PC 1758 expressly stated that

'the wording of the criterion (in regulation 131A) is

designed to ensure that this discretion ... be used

sparingly and only in the most compelling cases'. I am

unable to accept the respondent's submission that the words

in the regulation justify the words in the policy 'be used

sparingly'; nor do they justify the words 'only in the most

compelling cases'. In my opinion the words 'be used

sparingly' were likely to lead to the delegate to be frugal

or grudging in making his decision.

The words 'only in the most compelling cases' were likely to

distract the delegate from his task of considering the

circumstances of the particular case before him, including

the degree of likely hardship and the nature of any

prejudice; they might well lead him to consider whether the

hardship or prejudice, in the case before him, could be

properly held to be such as to make it a 'most compelling

case' when compared with the hardship or prejudice in other

cases considered by him.

The delegate's duty was to consider the case before him in

the light of the words in the regulation. Those who draft

policy should remember the danger that lies in using

different words from those used in the regulation. They

should heed the warning given by Kitto J., who, in Federal

Broom Company Pty. Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at

633, said 'But fallacy lurks in paraphrase'.

The delegate, in having regard to that policy, had regard to

an irrelevant consideration and failed to properly perform

his duty in accordance with the criteria prescribed by

regulation 131A(1)(d)(v)."

27. I respectfully agree with his Honour's reasoning, which I think applies equally to the present case. Moreover the Tribunal in the present case added a further limitation, which reserved the power to grant a permit for use in "extreme cases". This restriction does not even appear in the PCI which the Tribunal had to apply.

28. If an applicant makes out a case that refusal of a permit would cause extreme hardship or irreparable prejudice to an Australian citizen or permanent resident then a permit should be granted. Neither the Act nor the Regulation warrant any further limitation, and in particular any limitation which might suggest to a decision maker that there is some finite number of such permits which can be granted or that the grant of a permit on Monday is in itself a reason for refusing to grant another permit on Tuesday.

29. In purporting to impose such additional criteria the PCI was in my opinion inconsistent with the Act and the Regulations and accordingly invalid. The Tribunal therefore erred in law because it had regard to an irrelevant consideration: Palavi (supra).

30. For the foregoing reasons, the appeal should succeed. However there were other attacks made on the Tribunal's decision which I find do not succeed. I shall mention these briefly.

31. In support of an attack based on unreasonableness, reliance was placed on Article 9 Clause 1 of the Convention which requires party states to ensure a child is not separated from his or her parents against their will, unless it is in the best interests of the child.

32. The short answer is that, as was admitted, the Convention does not form part of Australian municipal law.

33. This complaint arose in the following way. There were previous proceedings in this Court between the parties. In the course of those proceedings the respondent refused to disclose certain documents from the Department's file. It was claimed the documents were exempt from disclosure under ss.33, 37 and 41 of the Freedom of Information Act 1982.

34. On 25 June 1991 the applicants' solicitors wrote to the respondent asking that that material which was not disclosed be withheld from the Tribunal and that

"Similarly if there is any adverse material you would be

forwarding to the (Tribunal) apart from that related to the

criteria referred to in reg 131A(1)(d)(iv) then we would be

grateful if you would inform us of this and provide us with

copies of such documents so that we would have an

opportunity to present material to the (Tribunal) relating

to those matters."

35. No response was received to that letter. On about 2 July 1991 the applicants' solicitors wrote to the Registrar of the Tribunal asking that he

"ascertain from the Department prior to the presiding

member viewing the file as to whether our client will be

given the same access to the file as the Tribunal has ...

Our concern is if the presiding member has had access to

material adverse to our client or to which our client was

not in a position to respond."

36. On 27 November 1991 the Tribunal handed down its decision. On 10 February 1992 the applicants' solicitors wrote noting that a directions hearing in the present proceedings would be held on 14 February and asking for

"a list of documents or other materials tendered at the

Tribunal hearing and any other material that the Tribunal

had before it in considering our client's review Tribunal

application".

37. On 13 February the Deputy Registrar of the Tribunal replied enclosing "a list of the documents and other material which the Tribunal had before it". That list identifies 10 documents. The first document on the list is described as "Department of Immigration, Local Government and Ethnic Affairs (DILGEA) file on Mr Akhatar Ali, reference number: Q87/8265 parts A and B". The Deputy Registrar's letter concludes with an invitation to contact him on a given phone number should any further information be required.

38. There was no response to that letter by the applicants' solicitors. It is argued that as the file does not contain an index listing the documents contained in it, it is impossible to ascertain whether the file in fact contained the non-disclosed documents. Thus the highest that the case can be put on this issue is that Akhatar does not know whether the Tribunal saw documents adverse to him. It was said that the matter should be remitted to the Tribunal to see if they in fact had access.

39. I do not accept this argument. The onus of proof in respect of an application to set aside administrative acts as invalid rests on the party alleging the invalidity: see e.g. Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450 at 459-460. There is a general presumption that a decision or order is properly and validly made and statutory duties have been properly performed. "An administrative authority cannot therefore be put to proof of the facts or conditions on which the validity of its order must depend, unless the party attacking it can first produce evidence which will shift the burden of proof": Wade, Administrative Law (sixth edition) at 343. In the present case there is the additional factor that the Tribunal invited the applicants' solicitors to seek further information but that invitation was not accepted.

40. The appeal will be allowed and the decision of the Immigration Review Tribunal made on 27 November 1991 quashed. The application of Akhatar for review of a decision to refuse him a December 1989 (temporary) entry permit will be remitted for reconsideration by the Immigration Review Tribunal differently constituted. The respondent is to pay the applicants' costs to be taxed including reserved costs.