Immigration Review Tribunal, Re Kot Shone Kaung

Re: KOT SHONE KAUNG
IRT Reference No. N92/00789; NUMBER 1547
IMMIGRATION REVIEW TRIBUNAL
BRISBANE
4 January 1993

SUBSEQ-HISTORY: Number of pages - 5

ORDER: In accordance with section 118 of the Act the Tribunal affirms the decision under review not to grant the principal a December 1989 (temporary) entry permit to enable him to remain in Australia.

KEYWORDS: December 1989 (Temporary) Entry Permit - applicant was nominated by his brother who was not an Australian permanent resident as at 15 October 1990 Tribunal unable to substitute another person as the nominator. Tribunal sounds a note of caution to Banks and other lending institutions to be more careful when entering into continuing financial obligations with persons illegally in Australia.

Migration Act 1958, s14, s118, s121

Migration Regulations rr. 131A, 142C, Sch 1, Sch 3

Chi, Re (IRT Decision No N91/00564, delivered 17 October 1991)

Chidiac, Re (IRT Decision No N91/00677, delivered 20 December 1991)

Forfon, Re (IRT Decision No N92/00670, delivered 9 December 1991)

Mah, Re (IRT Decision No S90/00008, delivered 19 September 1990)

Oei, Re (IRT Decision No N92/00109, delivered 25 June 1992)

Pathik, Re (IRT Decision No N91/01202, delivered 7 May 1992)

Rahayu, Re (IRT Decision No W91/00137, delivered 4 June 1991)

Roser v Immigration Review Tribunal and Minister of State for Immigration, Local Government and Ethnic Affairs, Federal Court of Australia, unreported, 3 September 1991

Stevens, Re (IRT Decision No Q91/00912, delivered 4 November 1991)

Sushilaben Patel, Re (IRT Decision No N92/00135, delivered 17 July 1992)

JUDGES: S. KARAS (Senior Member)

JUDGMENT-1: APPLICATION FOR REVIEW

S. KARAS On 15 June 1992, Mr Kwik-Yin Kaung (also known as Danny Kaung) applied to this Tribunal for a review of a decision made on 14 May 1992 by a delegate of the Minister for Immigration, Local Government and Ethnic Affairs to refuse his brother Kot Shone Kaung a December 1989 (temporary) entry permit to remain in Australia. Mr Kwik-Yin Kaung, an Australian permanent resident was the nominator for his brother and has standing to bring this application for review to this Tribunal pursuant to the Migration (Review) Regulations for determination.

BACKGROUND HISTORY

2. Mr Kot Shone (George) Kaung (the principal) was born in Burma on 19 March 1954 and is a citizen of Taiwan, the Republic of China. He is not married although he has a "girlfriend" in Japan. His father and 5 siblings reside in Burma while a sister is studying in America and his other brother, Danny Kaung is a permanent resident of Australia. The principal arrived in Australia as a visitor with his brother, Danny, on 16 April 1982 and was granted a temporary entry permit allowing him to remain in Australia for one month. At the expiration of his temporary entry permit the principal became a prohibited non-citizen now an illegal entrant (see section 14 of the Migration Act 1958 (the Act)) in May 1982.

3. On 17 March 1992 the principal lodged an application form 903 seeking to remain in Australia permanently. He was nominated by his brother Danny Kaung, who stated that he was "a person with compassionate ties" to the principal.

DECISION UNDER REVIEW

4. A delegate of the Minister for Immigration, Local Government and Ethnic

Affairs refused the application on 14 May 1992 by concluding that the principal failed: "to meet the legal and policy requirements for the grant of a December 1989 (temporary) entry permit under Regulation 131A of the Migration Regulations"

(the Regulations). The delegate recognised the extremely close emotional bond between the brothers, but did not find that the brother nominator (Danny Kaung) would suffer "extreme hardship or irreparable prejudice" and therefore failed to satisfy the requirements of paragraph 131A(1) (d) (v) of the Regulations.

LEGISLATIVE REQUIREMENTS

5. The requirements for a December 1989 (temporary) entry permit (class 440) are set out at item 59A of class 2 of Schedule 3 of the Regulations which provides as follows: "Regulation 131A; D, E, H1."

6. The alphanumerical symbols are further defined in Schedule 1 of the Regulations and may be summarised as follows:

D - public interest criteria

E - family unit members to meet public interest and health criteria

H1 - health criteria

7. Regulation 131A provides as follows:

131A.

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

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

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

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

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

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

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

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

(iv)the applicant is:

(A)an aged dependent relative; or

(B)an orphan relative; or

(C)a special need relative; or

(D)a remaining relative within the meaning of regulation 9; of a settled Australian citizen or settled Australian permanent resident; or

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

(e)if, in the opinion of the Minister, the applicant should not be granted an entry permit without an assurance of support, an assurance of support satisfactory to the Minister has been given.

(f)omitted by SR 418 of 1991, effective 26/12/91.

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

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

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

8. To be entitled to a December 1989 (permanent) entry permit an applicant needs to satisfy regulation 142C which is turn provides for an applicant to be the holder of a December 1989 (temporary) entry permit.

EVIDENCE AND FINDINGS

9. A hearing of this matter was held in Sydney on 15 December 1992. The principal, his brother Danny and their legal adviser attended. Danny Kaung gave evidence as to how he and his brother had left Burma in 1977 because of difficulties there. They travelled to Taiwan, Japan and Switzerland before coming to Australia in 1982. They have no relatives here in Australia or in Taiwan although Danny Kaung has his de facto spouse here. The brothers now reside together and have done so for most of the time since they have left Burma. However, Danny Kaung is not suffering from any mental, psychological or emotional condition that requires medication or hospitalisation. He stated that he is on medication for blood pressure problems. The principal, his brother and another person appear to have been involved in a business venture which did not succeed and consequently the Tribunal was informed that the 3 are liable for a debt of some $ 30,000 which the principal is assisting in repaying.

10. The principal also referred to his close association with his brother and how much he would like to live in Australia. He has worked as a Chef since coming to Australia. However, for a period of 3 years (1987-1990) he lived apart from his brother with other friends. He keeps in contact with his family in Burma and he and his brother worry about their sister in America. The adviser referred to the close bond between the brothers, their unique situation, the integrated family relationship that included Danny's de facto spouse and the hardship that would be suffered by the Australian permanent resident brother and his de facto spouse if the principal were not permitted to stay in Australia. The adviser also referred to the difficulties that the principal would suffer if he left Australia and the concern that this would cause to his brother and de facto spouse. He submitted that the requirements of regulation 131A were met. He further submitted that, should any difficulties be incurred due to the nominator, Danny Kaung, not having been an Australian permanent resident on 15 October 1990 then the Tribunal should adjourn the matter to allow Danny's de facto spouse to act as the nominator in another application for the same type of permit under section 121 of the Act.

11. The Tribunal has decided in a number of cases that for an applicant for a December 1989 (temporary) entry permit to succeed the nominator or person who would be affected by the refusal to grant the entry permit needs to be an Australian citizen or Australian permanent resident as at 15 October 1990. (see Re Oei (Decision No N92/00109, delivered 25 June 1992) and Re Forfon (Decision No N92/00670, delivered 9 December 1992)). Danny Kaung, the principal's nominator did not become an Australian permanent resident until 7 January 1992. Furthermore, as the principal's bother was the nominator in the application form 903, the Tribunal is unable to substitute another person as the nominator to avoid the conclusion reached above. (See also subregulation 131A (1)(g)).

12. As Danny Kaung was not a permanent resident on 15 October 1990, the principal is not entitled to be granted the permit sought. The Tribunal, while acknowledging the natural love and affection between family members and the close bonds between the brothers noted that it has held in a number of cases that the emotional hardship or prejudice that may be experienced when a brother is required to leave Australia does not amount to "extreme hardship or irreparable prejudice" as referred to in paragraph 131A (1) (d) (v) of the Regulations. This is so even if the Australian party maintains that he will suffer because of particular fears which he may hold for the principal is he is forced to leave Australia. (see Re Chidiac (Decision No N91/00677, delivered 20 December 1991) and Re Pathik (Decision No N91/01202, delivered 7 May 1992)). As well, events of a political nature which may have occurred in the principal's country of citizenship or usual residence are not to be considered under subregulation 131A (2) of the Regulations.

13. The Tribunal was referred to an outstanding loan being repaid by the principal, his brother and another person to a bank for monies advanced to them in what appears to have been a failed business venture. While it may be commended that the principal might seek to remain in Australia to assist in the repayment of the loan it does not appear to the Tribunal that this would constitute extreme hardship or irreparable prejudice either to the others involved or to the Bank (see also Re Chi (Decision No N91/00564, delivered 17 October 1991)). Furthermore the Tribunal has elsewhere commented on illegal entrants entering into commitments and acquiring property or businesses in Australia. These activities per se do not constitute grounds for allowing an illegal entrant to remain in Australia (see Re Rahayu (Decision No W91/00137, delivered 4 June 1991), and Re Stevens (Decision No Q91/00912, delivered 4 November 1991)). Again the Tribunal sounds a note of caution to Banks and similar lending institutions to be more careful and wary when entering into continuing financial obligations with persons who are illegally in Australia (see also Re Sushilaben Patel (Decision No N92/00135, delivered 17 July 1992)).

14. In the circumstances the principal is unable to satisfy the requirements of regulation 131A to be granted the entry permit for which he applied.

15. As the principal is presently in Australia, the Tribunal is obligated to consider whether he might have grounds to apply for an entry permit of the same or different class pursuant to the so called "aggregation" section 121 of the Act. Indeed this was urged on the Tribunal by the legal adviser who argued that Danny Kaung's de facto spouse should be permitted after this matter is adjourned to lodge another application form with herself as the nominator. However, as noted in Roser v Immigration Review Tribunal and Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 3 September 1991), the obligation to adjourn only arises where it appears to the Tribunal that an applicant might have grounds for making another application. Where it was suggested that there might be grounds on which another application could be made, the Federal Court held that it was permissible for the Tribunal to explore the suggestion before the obligation to adjourn was exercised. The Federal Court in that case also upheld the interpretation of section 121 by the Tribunal in Re Mah (Decision No S90/00008, delivered 19 September 1990), where it was stated that in order for it to appear to the Tribunal that an applicant might have grounds for making another application, it must appear that there was a real, as distinct from a fanciful, possibility that the applicant had such grounds. In the circumstances of this case, it appears to the Tribunal that there are no grounds for the principal to apply for a permit of the same or another class, even if the de facto spouse of Danny Kaung was considered as the nominator as suggested by the legal adviser in this matter.

DECISION

16. In accordance with section 118 of the Act the Tribunal affirms the decision under review not to grant the principal a December 1989 (temporary) entry permit to enable him to remain in Australia.