CATCHWORDS

Migration - applicant seeking Class 812 (December 1989 (permanent)) entry permit - review of decision of the Immigration Review Tribunal - whether evidence to justify decision that applicant was not a "special need relative" - whether any compassionate ground existed - whether "extreme hardship or irreparable prejudice" - whether emotional feelings of concern and distress that could be experienced by an Australian citizen or permanent resident on the deportation of a relative constitute "prejudice" caused to that person

Migration Act 1958, s 476

Migration (1993) Regulations, reg 1.3, Second Schedule, Class 812 entry permit

Migration Reform (Transitional Provisions) Regulations, reg 23

Ching Leong Lim v Minister for Immigration, Local Government and Ethnic Affairs (unreported), Lindgren J, 16 December 1994

Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418

Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144

Marcelo v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 344

Horvath v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 422

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383

Jaensch v Coffey (1984) 155 CLR 549

Yim v Immigration Review Tribunal (1994) 54 FCR 186

Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405

Matter No. SG22 of 1995

PALWINDER SINGH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and IMMIGRATION REVIEW TRIBUNAL

VON DOUSSA J

ADELAIDE

31 JANUARY 1996

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

SOUTH AUSTRALIAN DISTRICT REGISTRY )

                                   )

GENERAL DIVISION                   )   No. SG22 of 1995

                                   BETWEEN:

                                  PALWINDER SINGH

                                           Applicant

                                   AND:

                                  MINISTER FOR IMMIGRATION

                                  AND ETHNIC AFFAIRS and

                                  IMMIGRATION REVIEW

                                  TRIBUNAL

                                           Respondents

                      MINUTES OF ORDER

JUDGE MAKING ORDER           :    VON DOUSSA J.

WHERE MADE                   :    ADELAIDE

DATE OF ORDER                :    31 JANUARY 1996

THE COURT ORDERS THAT:

1.   The application for an order of review be dismissed.

2.   The applicant pay the respondents' costs.

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

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

SOUTH AUSTRALIAN DISTRICT REGISTRY )

                                   )

GENERAL DIVISION                   )   No. SG22 of 1995

                                   BETWEEN:

                                  PALWINDER SINGH

                                           Applicant

                                   AND:

                                  MINISTER FOR IMMIGRATION

                                  AND ETHNIC AFFAIRS and

                                  IMMIGRATION REVIEW

                                  TRIBUNAL

                                           Respondents

                    REASONS FOR JUDGMENT

Coram: von Doussa J.

Place: Adelaide

Date : 31 January 1996

     This is an application for an order of review of a decision of the Immigration Review Tribunal ("the Tribunal") made on 31 March 1995.  The Tribunal by its decision affirmed the decision of a delegate of the Minister for Immigration and Ethnic Affairs not to grant a Class 812 (December 1989 (permanent)) entry permit to the applicant.

     The applicant was born in India on 4 April 1962.  He entered Australia via New Zealand on a one month visitor visa on 6 November 1988.  He did not leave Australia before the expiry of that visa, and no further entry permit has been issued to him.  He therefore became an "illegal entrant" (now referred to as an "unlawful non-citizen") upon the expiry of his visa.   He applied for refugee status on 18 December 1989 but that application was refused on 19 October 1992.  On 25
November 1993 he lodged an application for a Class 812 (December 1989 (permanent)) entry permit.  That application was rejected on 26 August 1994, and he applied to the Tribunal for a review of that decision on 21 September 1994.

     At the date of the application for the Class 812 (December 1989 (permanent)) entry permit, the criteria specified in Part 812 of the Second Schedule to the Migration (1993) Regulations, in so far as they are presently relevant to the facts asserted by the applicant, required either:

(i)  that "on 15 October 1990 and continuously since that date, the applicant was ... a special need relative ... of a settled Australian citizen or of a settled Australian permanent resident" (clause 812.723(5)(c)); or

(ii)"there was, on 15 October 1990, any compassionate ground ... for the grant to the applicant of an entry permit to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and the compassionate ground continues to exist." (Clause 812.723(6)).

A "special need relative" was defined by Regulation 1.3 as follows:

     "'special need relative', in relation to an Australian citizen usually resident in Australia or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

     (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; and

     (b)  the assistance:

          (i)  cannot reasonably be obtained from any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; and

          (ii)cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia."

     On 1 September 1994 the substantial amendments to the Migration Act 1958 enacted by the Migration Reform Act 1992 came into force.  In accordance with Regulation 23 of the Migration Reform (Transitional Provisions) Regulations the applicant's application, not being finally determined at 1 September 1994, is to be determined in accordance with the criteria that applied to the entry permit for which application was made.  The Tribunal, therefore, considered whether the evidence before it brought the applicant within the provisions of Part 812 of the Second Schedule of the Migration (1993) Regulations which applied prior to 1 September 1994 to the entry permit for which the applicant had made application on 25 November 1993.  Notwithstanding a suggestion in the course of argument before this Court that the Migration Regulations 1989 governed the applicant's entitlement to an entry permit, I consider the Tribunal was correct in applying the Migration (1993) Regulations.  The Migration Regulations 1989 were repealed and replaced by the Migration (1993) Regulations as from 1 February 1993, that is before the applicant applied for a Class 812 entry permit.

     On the hearing of the present application, counsel for the applicant first submitted that the jurisdiction of this Court to review the decision of the Tribunal arose under ss 475 to 486 of the Migration Act 1958 as amended up to 31 March 1995, in particular as amended by the Migration Reforms Act 1992 which introduced those sections.  Counsel then withdrew that submission and contended that the jurisdiction of the Court arose under s 138 of the Migration Act 1958 as in force immediately before 1 September 1994 ("the old Act").  Counsel submitted that the old Act, including the jurisdiction of the Court under s.138 to entertain an appeal on a question of law from a decision of the Tribunal, continued to apply "because the transitional regulations provide that the matters which are pending as at 1 September 1994 should be governed by the old provisions."

     Regulation 23 is the relevant transitional regulation, and it does not so provide.  It provides only that an application not finally determined before 1 September 1994 "is to be decided according to the criteria that applied to the entry permit for which application was made".  Regulation 23 is directed to the criteria to be applied in determining an outstanding application, not to the procedural processes by which the determination is to be made.  In my opinion the jurisdiction of the Court to review the decision of the Tribunal made after the Migration Reform Act 1992 came into operation arises under ss 475 to 486, being the legislative provisions then in force.  It follows that the grounds upon which the Court may review the decision of the Tribunal are limited by the provisions of s 476.  The application is drafted in the most general of terms, and the grounds are stated in the following broad and uninformative way:

     "(1)The Tribunal erred in law in finding that the Applicant was not a 'special need relative' within the meaning of regulation 1.3 and Part 812 of Schedule 2 of the Migration (1993) Regulation made pursuant to Migration Act 1958.

     (2)  The Tribunal erred in law in finding that Mr and Mrs Pangley (sic) would not suffer irreparable prejudice and extreme hardship within the meaning of Part 812 of Schedule 2 of the Migration (1993) Regulation made pursuant to Migration Act 1958 if the Applicant's application for Class 812 (December 1989) Permanent Entry Permit is refused."

The applicant was ordered to give particulars.  The particulars supplied in relation to the first ground alleged that the Tribunal erred in making certain findings of fact that led to the conclusion that the applicant was not a "special need relative", and in relation to the second ground that, having regard to various facts found by the Tribunal, the Tribunal erred in not concluding that Mr and Mrs Pangly would not suffer "irreparable prejudice or extreme hardship".  Section 476(1)(e) empowers the Court to review a decision of the Tribunal on the ground:

     "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."

The second ground, as expanded by the particulars, alleges an error of law of the kind to which s 476(1)(e) is directed.  However the particulars relating to the first ground do not allege an error of law of that kind.  The relevant ground of review provided for by s 476(1) where findings of fact are challenged is in paragraph (g) of s 476(1) namely:

     "that there was no evidence or other material to justify the making of the decision".

The alleged errors in findings of fact relevant to the "special need relative" claim must be assessed against that test.

     The applicant's claim is that his sister Mrs Jagir Pangly and his brother-in-law, Mr Balbir Pangly are Australian citizens or permanent residents in need of assistance from him of such a kind as to qualify him as a "special need relative", and, further, that Mr and Mrs Pangly will suffer "extreme hardship or irreparable prejudice" if he is not granted an entry permit.

     Mrs Pangly is some 10 years older than the applicant.  She and the applicant were born in the Punjab.  Their mother died when the applicant was 3 years old, and she cared for him until he was about 17, at which time, in 1978, she came to Australia to join her husband who had migrated to Australia from India in 1974.  From Australia Mr and Mrs Pangly had unsuccessfully attempted to sponsor the applicant for permanent residency in Australia.  After the failure of that attempt, the applicant obtained an entry permit to New Zealand from whence he travelled to Australia in 1988. 

     From about 1980 Mr and Mrs Pangly had resided in Renmark, South Australia.  In 1988 they purchased a 44 acre fruit farm at Renmark which they have since operated in partnership.  They grow 10 acres of apricots, 4 acres of plums, 3 acres of peaches and 27 acres of grapes.  Much of the farm is irrigated.  Labouring work required during each year involves pruning, cultivating, spraying, watering, picking and drying some of the fruit products.  About 19 acres of the grapes are harvested mechanically by contractors.  The balance of the fruit produced on the farm is hand picked.  According to Mr Pangly's affidavit evidence submitted to the Tribunal, he does not "now" engage outside labour to do any of the operations on the farm, apart from the mechanical harvesting of the grapes, the picking and other work being done by the applicant, Mr and Mrs Pangly, and their son, a 21 year old engineering student who returns from Adelaide for 2 months each year to help with the picking, and who receives a wage for doing so.  Whilst that may "now" be the position, the financial statements for the partnership, indicate that in earlier years outside labour had been engaged, presumably for some of these tasks.  In his affidavit Mr Pangly acknowledges that during the 1994 harvest as the weather was bad he had to use outside labour to hurry the picking.

     Mrs Pangly is the nominator of the applicant for the Class 812 entry permit.  The claims made by Mr and Mrs Pangly and the applicant are, first, in support of both grounds, that in 1989 Mr Pangly injured his back and in consequence throughout the relevant period commencing 15 October 1990 has been unable to carry out heavy work and has required assistance that has been provided by the applicant.  The
applicant provides this assistance free of charge, but in lieu of wages is provided with free board and lodgings in the home of Mr and Mrs Pangly.  The assistance provided by the applicant, so it is alleged, cannot reasonably be obtained from any other relative, or from other sources as the level of profit from the operations of the partnership is such that the venture would then become unprofitable.  It is alleged that it would be necessary to employ at least one full-time labourer to replace the assistance provided by the applicant, and the partnership could not afford the cost of doing so - estimated at one point to be $10,000-20,000 per annum, and at another point to be $10,000-12,000 per annum.  Mr Pangly deposed that:

     "If I have to incur additional costs of say between $10,000 to $12,000 or so for a full time labourer, my farm will not be viable and I will have to sell.  Financially I will be ruined.  I will then be forced to live off (the) farm and have to depend on unemployment benefit."

Secondly, in support of the compassionate ground claim, Mrs Pangly says that she has a close relationship with the applicant as she brought him up.  He is like her son.  She said when nominating the applicant that she had been back to India 3 times since 1978, and that she had seen "terrible things" on each return.  On arriving back in Australia "I knew that emotionally I would suffer great hardship if (the applicant) has to return.  I would be concerned greatly for his safety and welfare as so many single men were being killed"; and whilst the applicant remains in Australia "I can sleep well and not be anxious about his safety.  It is enough to have to worry about my other relatives in India." 

     In its reasons for decision the Tribunal summarised the factual information before it relating to the applicant's activities in Australia since his arrival as follows:

     "Upon arriving in Australia the applicant almost immediately travelled to Melbourne where he worked in a factory.  His application form shows him as having worked at the Australian National Forge factory from November 1989 to January 1991, yet at the hearing he presented a termination notice effective from 20 July 1990.  In forms submitted to the Department at folio 51 to 53 of the Departmental file his residential address is shown as being in Melbourne, specifically at 2/25 Empire Street Footscray from July 1989 to January 1990 and at 128 Powers Street St Albans from January 1990 to November 1993.  In giving oral evidence the applicant conceded that he had signed the forms referred to above yet claimed that in fact he had been living with his relatives in Renmark from some time in 1990.  In support of this claim copies of his Income Tax Return form for the financial year 1 July 1990 to 30 June 1991, a copy of his 1992 Income Tax Return Cover for the period 1 July 1991 to 30 June 1992 and a copy of his Income Tax Return for the 1993 financial year were submitted, which show payments made by employers in the SA Riverland.  The applicant's declared income varied in these years, reaching a maximum of $17,953 in 1992-93.  Three affidavits from employers were also submitted after the hearing which support the fact that he was periodically employed between 1990 and 1994.  Two of these affidavits provide specific dates, one of them for four days, namely between 16 October 1990 and 19 October 1990 by BJ & HB Walker, and the other from Yandill Park Limited lists specific days when the Applicant was employed on a casual basis from 13 July 1991 for certain periods up until 30 June 1994.  This includes 71 days employment during 1991.  The third affidavit provided less exact dates when compared to the other two.  It provided an overview of employment by month and year with PJ and SA Hendrick as follows:

          between December 1990 and February 1990;

          between May 1990 and June 1990;

          in July 1991;

          in May 1992 and June 1992;

          from July 1992 to December 1992;

          from March 1993 to July 1993.

     Other evidence on the Department's file shows that the applicant was found to be working in Jugiong in New South Wales on 6 November 1991.  The applicant has not denied this but claims that he met some friends in Glossop, a town between Barmera and Renmark in the South Australian Riverland, that they decided to go for a drive and
eventually ended up working at an asparagus farm at Jugiong and that he only worked there for approximately four weeks.  It was also put to the applicant that Compliance Officers visited 128 Powers Street St Albans on 10 November 1992 inquiring as to his whereabouts and asking for him to contact them.  The occupant at that time, Mrs Amarjit Kaur Singh, was at home with her husband and when asked about the whereabouts of the applicant she replied that he was at work until 5.00 pm.  The applicant's response to this was that Mrs Amarjit Kaur Singh possibly thought that they were asking about her husband."

This is an accurate summary, and no criticism is made of it by counsel for the applicant.  The Tribunal noted affidavits from two Renmark residents who deposed to their belief that the applicant was living with Mr and Mrs Pangly "from time to time", and one also deposed to having seen the applicant "driving tractors" on Mr Pangly's farm.

     Financial statements for Mr and Mrs Pangly's partnership showed that net profits fluctuated from $24,062 in the 1990 financial year to $16,189 in the 1993 financial year, reaching a high of $29,886 in the 1992 financial year.  No financial statements after 30 June 1993 were given to the Tribunal.  The financial statements also showed that the net assets of the partnership rose steadily from $154,284 in 1990 to $209,349 by 30 June 1993.  The statements show that during the 1991-1992 financial year the partnership acquired additional land for $41,381 and increased borrowings by slightly less than $15,000, presumably to provide part of the purchase price for the additional land.  Taxation assessments for Mr and Mrs Pangly for the financial year ended 30 June 1993 disclose that the taxable income of each of them included capital gains of $12,538.  The source of these gains was not explained to the Tribunal.

     On the question of Mr Pangly's back injury the Tribunal was supplied with three documents from Dr H.S. Sidhu, a general practitioner from Renmark who has treated Mr Pangly.  Two were medical reports, and one was a proforma medical certificate.  The first medical report, addressed "To Whom It May Concern" is dated 5 October 1994, and was submitted to the Tribunal before its formal hearing commenced.  It reads:

     "This is to certify that I have looked after Mr Pangley (sic) since 1989, when he presented here with epistaxis.

     In January 1990, he developed backache and left sided sciatica, with quite marked symptoms of L4/5 pain.  A CT scan done then showed he had annular bulging of the disc, with some left sided nerve root compression.  This was also present at the L5/S1 level.  He was treated with rest, a bit of traction and analgesia, and appeared to settle down.

     He had a recurrence of this again in 1991, and again in 1992.  However he continued to do the best he could on the block, and has put up with the pain.

     He presented again in May 1994, with a left sided sciatica, and hypertension.  He was placed on Renitec.  His sciatica got worse, and a myelorgram (sic) done in September 1994 shows evidence of disc protrusion and distortion of the nerve rot on the left side at the L5-S1 level.

     He has seen Dr Khera, who suggested that he would benefit from a nerve decompression and perhaps a discectomy.  Unfortunately, he is not covered by private insurance, and as such is awaiting treatment at a Public Hospital.

     He certainly needs help on his block as he is unable to manage to do the physical hard work to run a block satisfactorily."

The description of the back injury in this report indicated that there had been temporary periods of incapacity for Mr Pangly's usual work activities in early 1990, then again in 1991 and 1992.  At other times during these years, and throughout 1993, the report did not suggest incapacity for work and therefore failed to support the claim that continuously since 15 October 1990 Mr Pangly's injury met the criteria specified in the definition of "special need relative".

     After the hearing before the Tribunal was completed the applicant's representative submitted another report from Dr Sidhu dated 28 February 1995, presumably for the purpose of overcoming the obvious shortcomings in the applicant's case arising from the earlier report.  The second report reads:

     "I have looked after Mr Panley (sic) since 1989, when he presented with epistaxis.

     In January 1990, he developed severe back ache with left sided sciatica, with quite marked symptoms of L5/S1 and L4/5 pain.  A CT scan done showed he had annular bulging at both levels compromising the nerve roots.

     He was advised that he was not able to do heavy lifting, and was treated with rest, traction and analgesia.  He certainly needed help on the block at that time.

     He had a recurrence of this again in 1991 and again in 92.  He continued to manage the block with help and certainly was unable to do any heavy work.

     He presented again in late 1994 with a severe left sided sciatica, and had quite disabling pain with it.  This continued to get worse and he started drinking quite heavily because of the worries with the block.  He was managing it with help.

     A myelogram done in September 1994 showed evidence of disc protrusion and distortion of the nerve root on the left side at the L5/S1 level.

     He is having a discectomy and decompression of the nerve on Friday 3rd March.  He certainly needs help on his block, as I do not feel that he is going to be capable of doing any heavy lifting or tractor work.  He has been suffering quite markedly from both emotional, physical strain, as he is having to put up with this pain. 
Hopefully the operation will help."

This report gives a picture of serious incapacity for work of the kind likely to be required on a fruit block from late 1994, and, on one reading, asserts an inability "to do any heavy work" from an unspecified date in 1991.

     The report does not detail how or to what extent that inability impacted on Mr Pangly's day to day farming activities, but even taking the most favourable view of the revised report it does not assert an inability to carry out normal farming activities in the period from 15 October 1990 to the unspecified date of the 1991 recurrence.

     The medical certificate is undated but was produced to the Department of Immigration and Ethnic Affairs on 20 July 1994.  It reads:

     "I certify that in my opinion Mr Balbir Pangly is suffering from chronic lower back pain and is unable to work from 1990 to indefinitely.  (Sgd) H.S. Sidhu."

That certificate was superseded by the medical reports prepared by Dr Sidhu.  For what purpose, and in what circumstances the certificate was prepared was not made known to the Tribunal.  The Tribunal in its reasons for decision did not refer specifically to the certificate, but concentrated on the reports.  This is entirely understandable as the terms of the certificate are inconsistent with both the more detailed reports.

     On this material the Tribunal rejected both grounds on
which the Class 812 entry permit was sought.

     On the "special need relative" ground, the Tribunal accepted that Mr Pangly has from time to time needed and may continue to need help with some farm work, but concluded:

     "Mr Balbir Pangley's (sic) medical condition appears to have caused only intermittent problems, with very occasional visits to the doctor between 1989 and 1994.  As referred to above there is evidence that the applicant was not always available to assist.  Having regard to the medical evidence and the evidence regarding the applicant's other activities, the Tribunal cannot find that Mr Pangley (sic) has required substantial continuing assistance continuously since October 1990 and that the applicant has been willing and able to provide such assistance."

The two critical findings in this conclusion are that the applicant has not established (a) that Mr Pangly "has required substantial continuing assistance continuously since October 1990". and (b) that "the applicant has been willing and able to provide such assistance", that is, substantial continuing assistance continuously since October 1990.

     The applicant by his particulars complains, first, that the Tribunal erred in holding that he "was not willing and able to provide continuous assistance".  This particular does not accurately reflect the critical finding, as it fails to refer to the qualification that the willingness and ability found to be wanting was to provide substantial continuing assistance continuously from October 1990.  And secondly, that the Tribunal drew inferences which were not reasonably open namely:

     "(a)That Mr. Pangley (sic) did not need full time help.

      (b)That Mr. Pangley (sic) could pay for such help, if needed.

      (c)That Mr. Pangley (sic) would be able to maintain ownership of the farm if the Applicant's unpaid labour is unavailable.

      (d)That the Applicant had not been needed to help continuously since October 1990 as required by legislation."

In the course of its reasons the Tribunal said that it did not accept Mr Pangly's evidence that he needed full time help or that he could not afford to pay for full time help, and that it did not accept his claim that he would be unable to maintain ownership of the farm if the applicant were not granted a permanent entry permit.  These conclusions however were directed primarily to the alternative compassionate ground claim and to whether the refusal to grant an entry permit would cause extreme hardship or irreparable prejudice to Mr and Mrs Pangly.  These conclusions were not essential to the reasons for rejecting the "special need relative" claim.  That claim failed, in the opinion of the Tribunal, because of the findings that the applicant had not established (a) that Mr Pangly had required substantial continuing assistance continuously since October 1990, and (b) that the applicant had been willing and able to provide substantial continuing assistance continuously throughout that period.

     The definition of "special need relative" refers, in subparagraph (a) to a citizen or resident who "has a permanent or long term need for assistance..."  In that subparagraph the word "assistance" is not qualified by the words "substantial and continuing".  The expression "substantial and continuing assistance" appears earlier in the definition in reference to the "relative who is willing and able to provide substantial and continuing assistance."  Nevertheless in my opinion the Tribunal correctly construed the criteria.  The assistance to be provided by the relative is that required to meet the need of the citizen or resident referred to in paragraph (a).  When the definition is read as a whole the need for assistance by the citizen or resident is to be understood as a need for assistance that is substantial and continuing.

     As discussed earlier in these reasons the relevant inquiry which this Court is required to undertake under s 476(1)(g) is whether "there was no evidence or other material to justify the making of the decision", that is to justify the two critical findings.  In my opinion there was evidence that justified each of them.  The medical reports of Dr Sidhu do not establish a need for physical assistance by Mr Pangly in the operation of the farm from October 1990 to the happening of the recurrence sometime in 1991, indeed they indicate the contrary picture.  The evidence of the work activities of the applicant in the period up to 30 June 1993, the last date covered by the tax returns provided to the Tribunal, provide further material that justifies the conclusion that the need for assistance by Mr Pangly, which he asserts was being met by the applicant, was not a need that was either substantial or continuing as the applicant was working in other jobs for substantial periods of time.

     On the applicant's own evidence he was apparently able to be absent from the farm for some 4 weeks in November 1991 without depriving Mr and Mrs Pangly of any assistance they needed. His tax return in the financial year ended 30 June 1993 and the evidence from two employers shows that he worked for most of the year for other employers earning approximately $18,000 gross.  These are matters that justified the finding that the need for assistance arising from the back injury suffered by Mr Pangly was not for substantial and continuing assistance continuously throughout that period.  Moreover there was reason to doubt that the applicant's evidence gave a true picture of the extent of his activities away from the farm.  Statements by him in the application for the Class 812 entry permit, and inquiries by officers of the Department of Immigration and Ethnic Affairs, suggested that the applicant had been away from Renmark for lengthy periods in 1991 and 1992, visiting relatives in Melbourne and working.  This material provides further justification for the Tribunal's conclusion that the applicant had not established that he came within the criteria specified in the definition.

     From the evidence of the applicant and Mr and Mrs Pangly that no remuneration was paid to the applicant for the assistance he provided around the farm, the obvious inference is that the applicant worked for other employers as he needed the wages earned to sustain his needs for everything other than food and accommodation; and that whilst working to fulfil those needs he was not willing and able to provide assistance
at the farm.  When the extent of the applicant's earnings and the duration of the times when he was working elsewhere are considered that material justified the conclusion that the applicant was not able and willing to provide substantial and continuing service continuously from 15 October 1990.

     On the alternative basis for the application, the "compassionate ground" claim the Tribunal said:

     "...the Tribunal does not accept Mr Pangley's (sic) claim that he needs full-time help and that he cannot afford to pay for such help.  The evidence of Dr Sidhu and Mr and Mrs Pangley's (sic) own evidence is that Mr Pangley (sic) has continued to do work on the farm and that other workers have been employed from time to time as necessary.  The Tribunal notes that Mr and Mrs Pangley (sic) have assets of about $200,000, notwithstanding the apparently low profitability of the enterprise, and that they have been able to pay wages to their student son when he assists with fruit picking, as well as to other workers.  While a need to pay additional wages may be financially detrimental to the enterprise, the Tribunal does not accept Mr Pangley's (sic) claim that he will be unable to maintain ownership of the farm if the applicant's unpaid labour is unavailable.  On this matter the Tribunal finds that Mr and Mrs Pangley (sic) will not suffer 'irreparable prejudice' if the application is unsuccessful and that any hardship they might experience would not be of sufficient degree to constitute 'extreme hardship'.

     With regard to the claim of emotional hardship, the Tribunal has taken into account that Mr and Mrs Pangley (sic) left the applicant behind in India when they migrated to Australia in 1974, when he was aged twelve, and lived away from him for fourteen years.  Also when he arrived in Australia he chose to live for some time in Melbourne and in all he has spent considerable time away from the family unit.  The Tribunal accepts that Mrs Pangley (sic) in particular may suffer some emotional distress if the entry permit sought is not granted.  However, the Tribunal is not prepared to find on balance that it would be of sufficient degree to meet the 'extreme hardship' criterion, nor do we find that it constitutes 'irreparable prejudice'."

The rejection of the claims that Mr Pangly needs full-time help, and that he cannot afford to pay for such help is expressed in terms that describe the situation at the time of the Tribunal's deliberations in February and March 1995. 

     To consider only what the effect would be in early 1995 of a refusal to grant the entry permit overlooks the requirement that the compassionate ground must have existed on 15 October 1990, and must have continued thereafter to exist.  By confining its consideration to the effects a refusal would have at the time of its decision, the Tribunal has taken an approach that is altogether too favourable to the applicant.  No matter what the degree of hardship and prejudice a refusal might have at the time when the refusal actually occurs, if the compassionate ground did not exist on 15 October 1990 the applicant cannot meet the compassionate ground criteria: see Ching Leong Lim v Minister for Immigration, Local Government and Ethnic Affairs, unreported decision of Lindgren J, 16 December 1994.

     The evidence, on which the Tribunal relied to make its findings in relation to the special need relative claim, cannot support a claim on compassionate grounds based on the financial and other effects which the refusal of an entry permit would have on the operation of the farming partnership on 15 October 1990 and continuously thereafter.  Had the grant of a permit been refused on 15 October 1990, or at many other times thereafter, there would not have been any grounds for concluding, at that time, that the refusal would have any immediate or future effect on the operation of the
partnership: see Kobayashi v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 24 at 29.

     For the compassionate grounds claim to succeed it must do so on account of the emotional effects which Mrs Pangly, the nominator, alleges she would suffer if the entry permit were not granted.  These effects would presumably have been the same at every point in time since 15 October 1990 - at least there is no suggestion to the contrary in the papers.  Mrs Pangly's description of those emotional effects is set out earlier in these reasons.  They are feelings of concern and distress which one family member would naturally feel when separated from another, heightened in this case by a concern about the level of safety in the region of the world where the other family member might possibly live after he left Australia.  These are natural human emotions of a kind experienced from time to time by many people in this and other communities.  They are part of the common experiences of life that many people are required to live with.  They do so without suffering a level of distress which affects their ability to carry on their normal daily activities, or which leads to illness.

     In Kobayashi Hill J at 27-28 referred to the legislative history of the provisions in the Migration legislation relating to the "compassionate ground" for eligibility.  Prior to the amendments to the Migration Act made by the Migration Legislation Amendment Act 1989, s 6A(1)(e) provided for the grant of an entry permit where there existed "strong compassionate or humanitarian grounds".  The 1989 amendment eliminated that ground, and reg 131A was inserted into the Migration Regulations to give eligibility on a "compassionate ground".  It specified criteria for the grant of an entry permit in terms similar to the criteria specified in the Migration (1993) Regulations for a Class 812 entry permit (which replaced reg 131A as from 1 February 1993).  In particular a "compassionate ground" existed under reg 131A(1)(d)(v) where "the refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident..."  In reference to that part of reg 131A Hill J said at 28:

     "... the application for an entry permit must found upon a ground properly described as a 'compassionate ground'.  I considered the meaning of 'compassionate ground' in the context of 'strong compassionate grounds' in the then s 6A(1)(e) of the Migration Act in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 94-95, where, quoting from my earlier decision in Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, Hill J, 12 December 1989), I said:

          'The words are very broad. Compassion is an emotion akin to pity; it is felt when the circumstances of others excite our sympathy so that we suffer with them.  Hence compassionate grounds will exist when the circumstances of an applicant are such as to enliven in the reasonable man his compassion.'

     The present context is sufficiently similar to adopt what I there said.  There may well be cases where the compassionate ground relied upon refers to hardship or prejudice of a financial or perhaps even commercial kind.  Such occasions will, of necessity, be rare."

As a broad proposition, the notion that a compassionate ground will exist when the circumstances of the nominator (rather than the applicant) are such as to enliven compassion in the reasonable person is unexceptionable, but as a precise test of eligibility under the relevant provisions for a Class 812 entry permit that notion cannot be substituted for the requirement of "extreme hardship or irreparable prejudice".  It is to this requirement that attention must be directed.

     In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 418 at 431 Burchett J observed in relation to the "extreme hardship or irreparable prejudice" requirement:

     "Just as it is not wise to attempt to explain 'reasonable doubt', so I do not think anything is to be gained by seeking synonyms for the words in question.  There may be value, however, in pointing out what the language itself certainly conveys, that while 'extreme hardship' looks to the severity of an effect, 'irreparable prejudice', provided there is some prejudice, tests it simply by whether it can be remedied so as to remove it.  The two expressions are real alternatives; they do not have the same meaning.  Although the facts of the present case fit both, in many cases one might apply, but not the other."

A similar construction had been placed on these criteria by Heerey J in Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148.

     Although "extreme hardship" and "irreparable prejudice" are real alternatives it does not follow that decision-makers are required in every case to go through a two stage process of considering each expression separately: Marcelo v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 344.  But in the present case I think the nature of the circumstances of the nominator upon which the claim depends require consideration of each of the alternatives.

     In Horvath v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 422, Lockhart J, approved the application of the dictionary meanings of "extreme hardship" and "irreparable prejudice".  These are ordinary, well known expressions and there is nothing in the Migration (1993) Regulations which suggests that they are not intended to carry their dictionary meanings.

     "Hardship" is defined by the Oxford English Dictionary, 2nd Ed. 1989 ("the OED") as:

     "1. The quality of being hard to bear; hardness; rigour; severity; painful difficulty.

      2. A condition which presses unusually hard upon one who has to endure it; hardness of fate or circumstance; severe toil or suffering; extreme want or privation."

and a similar definition appears in The Macquarie Concise Dictionary, 2nd Ed. 1988 ("the MCD").  Emotional feelings of the kind alleged by Mrs Pangly, depending on the severity of those feelings, may readily come within the ordinary meaning of "hardship".  But to qualify under the regulation the emotional feelings must constitute "extreme hardship".  In the present case the Tribunal was plainly correct to conclude that the emotional effects of a refusal to grant an entry permit alleged by Mrs Pangly did not amount to "extreme hardship".  That conclusion, however, as Burchett J pointed out in Fuduche, does not decide the issue of "irreparable prejudice".

     "Prejudice" is relevantly defined by the OED:

     "(a) Injury, detriment, or damage, caused to a person by judgement or action in which his rights are disregarded; resulting injury; hence, injury to a person or thing
likely to be the consequence of some action.  Now chiefly in particular phrases, as in prejudice of, to the (intended or consequent) detriment or injury of; to the prejudice of, to the (resulting) injury of; ...

     (b) Injury, damage, hurt, loss."

and by the MCD:

     "...

      ...

      disadvantage resulting from some judgment or action of     another; 

      resulting injury or detriment;

      ..."

In the context of the regulation I consider "prejudice" is used to mean actual injury, loss or damage - that is actual personal injury or material damage, such that if a damages claim were made in tort for the "prejudice" the injury, loss or damage would sound in damages.  In the law of negligence a clear distinction is drawn between, on the one hand, mere grief, sorrow and distress, however saddening, and on the other hand, forms of psychoneurosis and mental illness, medical conditions recognised in law as personal injuries: see Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394 and Jaensch v Coffey (1984) 155 CLR 549 at 587.  Emotional feelings of the former kind, standing alone, do not sound in damages.  In my opinion a similar distinction should be recognised in the interpretation and application of the "irreparable prejudice" ground for a Class 812 entry permit.  The notion of "prejudice" is not intended to comprehend mere emotional feelings of sorrow, concern and distress.

     The expression in the regulation is not simply "prejudice" but "irreparable prejudice", that is prejudice
that is "not reparable, incapable of being rectified, remedied or made good" (the MCD).  If the compassionate ground claim is based on the likelihood of emotional feelings that would not amount to actual personal injury, an enquiry whether those emotional feelings would constitute "extreme hardship" is a meaningful one; but an enquiry which requires a decision-maker to decide whether such emotional feelings would be reparable or could be remedied, in my opinion, is not.  If an emotional effect of that kind constituted "prejudice", how could a decision-maker in a case of a nominator who claimed that the refusal of a grant of an entry permit would leave the nominator "broken-hearted" (e.g. re Jackson, IRT decision Q90/00124, 17 December 1990) be expected to decide whether those emotional feelings would be capable of being remedied or made good?  Not only would an attempt to make this decision be at best speculative, but an adverse decision could well be insulting and offensive to the nominator.  If "prejudice" is interpreted to mean actual injury, loss or damage, then it is meaningful to enquire whether the prejudice is capable of being remedied or made good.  For example if the emotional feelings would involve distress that could be sufficiently severe to precipitate a depressive illness, it would be meaningful to enquire whether the illness could be averted, for example, by support from the family members, friends and other carers.

     In my opinion, where it is alleged that emotional factors, without more, give rise to a compassionate ground
which meets the Class 812 criteria the enquiry should concentrate on the degree of hardship likely to be suffered by an Australian citizen or an Australian resident (who may be someone in addition to the nominator: Yim v Immigration Review Tribunal (1994) 54 FCR 186).  If that hardship meets the requirement of being "extreme hardship" the claim falls within the criteria.  Only if it is alleged that the emotional factors are such that in an Australian citizen or an Australian resident they are likely to precipitate or aggravate a medical condition so as to constitute a recognisable personal injury will it be useful to enquire whether an Australian citizen or an Australian resident will be caused "irreparable prejudice".  On that enquiry medical evidence will, in most cases at least, be essential to establish that the suffering of the relevant Australian citizen or Australian resident is likely to bring about personal injury: cf Fuduche at 424-425; Yim at 193-194.

     Whilst the regulation requires that the refusal to grant the entry permit would have "caused ... irreparable prejudice", the refusal need not be the sole cause, as was pointed out in Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 at 412.  In the case of personal injury and the consequences that follow, it would be sufficient for example if the refusal were to aggravate an already existing illness suffered by the nominator, as was the case in Fuduche, where the nominator suffered a serious medical condition that would be made worse by the refusal to grant an entry permit.

     In my opinion, the nominator's claims do not assert "prejudice" within the meaning of the regulation, and for this reason the compassionate ground claim based on "irreparable prejudice" cannot succeed.

     I consider the ultimate conclusion of the Tribunal that the compassionate ground claim failed is correct in law, even though I am unable to agree fully with the process of reasoning by which that conclusion was reached.

     In my opinion the application should be dismissed with costs.

                             I certify that this and the

                             preceding pages are a true

                             copy of the Reasons for

                             Judgment of Justice von Doussa

                             Associate:

                             Dated:

Counsel for the applicant    : Mr G Patel

Solicitors for the applicant: Patel & Co.

Counsel for the respondent   : Mr G Gretsas and

                               Ms S Maharaj

Solicitors for the respondent     : Australian Government

                               Solicitor

Date of hearing              : 10 October 1995