FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 143

MIGRATION –appeal – criminal deportation – no error disclosed

Migration Act 1958 (Cth) ss 4(1), 499(1), 499(2A), 501(2), 501(6), 501(7)

Australian Citizenship Act 1948 (Cth)

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, (2004) 211 ALR 126, cited

Dietrich v The Queen (1992) 177 CLR 292, cited

VAN PHONG TRAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 298 OF 2005

SUNDBERG, MARSHALL AND NORTH JJ

3 AUGUST 2005

MELBOURNE

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

REASONS FOR JUDGMENT

THE COURT

1                     This proceeding is an appeal from a judgment of Ryan J (“the primary judge”) given on 18 March 2005. The primary judge dismissed Mr Tran’s application to review a decision made by the respondent Minister to cancel Mr Tran’s spouse visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”). Section 501(2) allows the Minister to cancel a visa if the visa holder fails to satisfy the Minister that he or she passes the “character test”. For current purposes it is sufficient to note that a person does not pass the character test if the person has a substantial criminal record; see s 501(6) and (7) of the Act. It was not disputed that Mr Tran did not pass the character test.

2                     The principal issue which arises for consideration in the appeal is whether the Minister, in cancelling Mr Tran’s visa, failed to take into account certain relevant considerations which she was bound to take into account and thereby fell into judicially reviewable, jurisdictional error.

Factual background

3                     Mr Tran was born in Laos on 2 August 1964, but is a national of Vietnam. He entered Australia in late January 1998. In September 1999 the then Minister granted Mr Tran a temporary spouse visa. Mr Tran’s nominator was his then wife.

4                     On 7 August 2001, in the County Court of Victoria, Mr Tran was convicted of one count of trafficking heroin. He received a sentence of six years imprisonment, with a non-parole period of four years. In December 2001, the then Minister informed Mr Tran that he intended to consider whether to cancel Mr Tran’s spouse visa under s 501(2) of the Act.

5                     On 16 May 2002, Mr Tran was convicted of intentionally causing injury. He was sentenced to a term of three months imprisonment to be served cumulatively with his 2001 sentence.

6                     In May 2003 a delegate of the Minister interviewed Mr Tran and his spouse concerning the possible cancellation of Mr Tran’s visa. Subsequent to those interviews, an officer in the Minister’s Department prepared an issues paper concerning the possible cancellation of Mr Tran’s visa under s 501(2). The issues paper is referred to by the primary judge, in his reasons for judgment as “the minute”.

7                     On 10 December 2003 the Minister decided, pursuant to s 501(2), to cancel Mr Tran’s visa. In late December 2003 Mr Tran received a document entitled, “Notice of Visa Cancellation under Subsection 501(2) of the Migration Act 1958”. The Minister provided written reasons for her decision.

“The decision”

8                     In her decision the Minister said that she gave primary consideration to the following matters:

·                    the protection of the Australian community;

·                    the expectations of the Australian community; and

·                    the best interests of the children.

9                     The Minister said that she gave great weight to the entitlement of the Australian community to protection from Mr Tran’s criminal conduct. The Minister also gave great weight to the expectation of the Australian community that, in view of the seriousness of Mr Tran’s heroin trafficking offence, his visa would be cancelled and he would be removed from Australia.

10                  On the topic of “best interest of the children”, the Minister noted that Mr Tran’s partner was due to deliver their first child in February 2004. At [72] of her reasons for decision, the Minister said:

“Mr Tran’s partner advised that she would accompany Mr Tran if he were returned to Laos. I found that it was reasonable to assume that the unborn child would not have access to educational opportunities and a health support system of a comparable standard to those available in Australia... I gave the disadvantage the child would face being returned to Laos as opposed to Australia moderate weight.”

11                  The Minister gave ‘significant weight’ to the effect of the visa cancellation on Mr Tran’s partner who is an Australian citizen. At [76] the Minister said:

“Mr Tran’s partner has stated that she would accompany Mr Tran if he were removed to Laos. I acknowledge that she would face considerable hardship in this event. She does not speak Laotian, she has no friends or family to assist her in Laos and she has a business and a house that she would be required to sell in Australia. It is also reasonable to assume the standard of care she would receive whilst she is pregnant would not be comparable in Laos.”

Mr Tran’s submissions before the primary judge

12                  Before the primary judge, counsel for Mr Tran submitted that the Minister was required to take into account, as a relevant consideration, whether the cancellation decision might be in breach of, or affected by, Australia’s international treaty obligations. In particular, counsel referred to Australia’s obligations under the International Covenant on Civil and Political Rights (“the ICCPR”).

13                  Counsel submitted that the Minister should have considered Australia’s obligations under the ICCPR “to protect the family as a natural and fundamental group unit of society” and also whether the decision to cancel the visa affected Mr Tran’s right and his partner’s right “to found a family”. In this regard counsel referred to art 23 of the ICCPR which provides:

“23.1   The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

23.2     The right of men and women of marriageable age to marry and found a family shall be recognised.”

14                  Counsel next submitted that the Minister should have had regard to art 25 of the ICCPR in making her decision. So far as is material, art 25 provides:

“Every citizen shall have the right and the opportunity without any of the distinctions mentioned in Article 2 [race, colour, sex, language, religion] and without unreasonable restrictions:

(c)        to have access, on general terms of equality, to public service in his country.”

15                  The primary judge summarised this aspect of counsel’s submission as follows at [19]:

“As the Minister apparently accepted that, if the visa were cancelled, the applicant’s wife would leave Australia and live in Laos in conditions of “hardship”, with the applicant, it was incumbent upon her to consider whether this was consistent with Australia’s obligations to provide every citizen with the right and opportunity to access, on general terms of equality, to public service in his country under art 25(c) of the Covenant. The applicant alleges that the Minister noted…that there would not be comparable educational and health support services in Laos but made no reference to Australia’s obligations under the Covenant.”

16                  Counsel next relied on art 12.4 of the ICCPR which provides:

“No one shall be arbitrarily deprived of the right to enter his own country.”

17                  Counsel contended that the Minister erred by not considering whether the decision to cancel Mr Tran’s visa deprived his spouse and their offspring of the right to enter Australia.

18                  Finally, counsel contended that the Minister should also have considered the effect of the cancellation decision upon members of Mr Tran’s family under theAustralian Citizenship Act 1948 (Cth), (“the Citizenship Act”) as a matter which bore upon the national interest.

The primary judge’s reasoning

19                  The primary judge said at [42] that:

“I consider that the Minister was aware of the consequences for the other members of the applicant’s family and for the family unit as a whole of a decision to cancel his visa. That the Minister did not relate those consequences explicitly to the entitlement recognised by Art 23.1 does not signify a failure to have regard to a matter which, on the proper construction of the Act as a whole, she was bound to take into account. This was not a case where the relevant provision of the Covenant, assuming for the purposes of the argument that it was a matter which the Minister was bound to take into account, compelled the Minister to refrain from cancelling the visa.”

20                  The primary judge was satisfied that the Minister was aware that Mr Tran had married and that he and his spouse were in the process of “founding a family”. At [43], his Honour said:

“The Minister was also well aware that the resultant “family” would be forced to leave Australia or be separated in consequence of a decision adverse to the applicant. Accordingly, the likelihood of that departure or separation does not entail that the Minister failed to have regard to a relevant matter, as distinct from failing to relate the substance of that matter specifically to the terms of Art 23.2 of the Covenant.”

21                   His Honour also rejected the submission that the Minister was required to consider the right of Mr Tran’s children to acquire a nationality under art 24.3.

22                  The primary judge did not accept the characterization of art 25(c) contended for by Mr Tran’s counsel but, in any event, considered that the Minister was aware of the impact on access to public service by Mr Tran’s spouse and child if they accompanied him to Laos and that she referred to such matters at [72] and [76] of her decision.

23                  His Honour also did not accept counsel’s submissions based on art 12.4 of the ICCPR. Amongst other points, the primary judge noted that it had not been established that Mr Tran’s wife and child would lose any right to enter Australia if they accompanied Mr Tran to Laos.

24                  The primary judge rejected the submissions based on the Citizenship Act. His Honour noted that under that Act, any children born to Mr Tran and his spouse in Laos would only acquire Australian citizenship upon application to an Australian Consulate, before the child attains 18 years. His Honour did not consider that this was a matter the Minister was bound to take into account or that the matter bore on Australia’s national interest.

25                  The primary judge said at [51] that:

“…the subject-maker, scope and purpose of the Act do not give rise to an implication that the Minister was bound to take into account the provisions of the Covenant as distinct from at least some of the rights or matters dealt with by these provisions…”

26                  Consequently, his Honour found it unnecessary to consider the argument raised on behalf of the Minister that the provisions of the ICCPR do not form part of Australian municipal law.

27                  The primary judge concluded at [52] that the matters which counsel for Mr Tran said that the Minister should have taken into account were either taken into account or were not matters which she was bound to take into account.

Submissions on appeal

28                  On the appeal, counsel for Mr Tran relied upon the grounds submitted, at first instance, before the primary judge.

29                  First, counsel contended that the Minister was obliged to consider Australia’s national interest in making the cancellation decision and that our national interest included “Australia’s standing vis à vis the international community, and therefore obligations under international agreements, and whether these obligations are to be met.” Further refined, this was expressed as an obligation to consider whether the exercise of the discretion would involve the Minister acting contrary to Australia’s international obligations. It was also contended that the concept of “the national interest” made the rights of any person, affected by a cancellation decision, matters which were required to be considered in making such a decision. In particular counsel referred to s 4(1) of the Act which relevantly provides:

“The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non citizens.”

30                  Counsel referred to [49] of the Minister’s decisions in which she stated that:

“Mr Tran has not made any claims that require assessment in relation to international obligations.”

31                  Counsel then re-stated the submissions which had been put to the primary judge in the context of articles 23, 24, 25 and 12 of the ICCPR, as well as the submission based on the Citizenship Act.

32                  Counsel for the respondent noted that the Act does not deal specifically with the considerations to be taken into account when the Minister decides whether or not to exercise the discretion conferred by s 501(2). Counsel referred to s 499(1) which permits the Minister to give directions to decision makers concerning the exercise of the discretion under s 501(2). Such a direction (“Direction 21”) has been made. Although binding on delegates, it is not binding on the Minister (see s 499(2A)) in the exercise of her personal discretion under s 501. However, as counsel pointed out, the Minister had regard to that direction in Mr Tran’s case.

33                  Counsel for the respondent referred to authorities such as Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256, (2004) 211 ALR 126, where the Minister’s discretion under s 501 is referred to as being a “broad” one.

34                  In the exercise of that broad discretion, counsel submitted, the Minister took into account certain matters referred to in the ICCPR, including the best interests of the children, the hardship which would be suffered by Ms Chan and the effect of the decision on the family.

35                  Counsel for the respondent submitted that art 12.4 of the ICCPR was not relevant because the decision to cancel Mr Chan’s visa did not deprive Ms Chan or the child of any right to enter Australia. In any event art 12.4, it was submitted, is directed to “arbitrary” deprivation of the right to enter Australia, and therefore is not applicable in these circumstances.

36                  Counsel noted the reference made by counsel for the appellant to art 17.1 and art 17.2 as being allegedly relevant to the exercise of the discretion. Although that argument was not developed by counsel for the appellant, the respondent’s counsel said the Minister took into account the disruption which would be caused to the family. However, counsel contended that there was no basis for the contention that the effect of the cancellation decision was to arbitrarily, or unlawfully, interfere with the Tran family.

37                  Counsel for the respondent submitted that art 23 was not relevant because the Minister’s decision did not bear upon protection of the family, especially given Ms Chan’s stated desire to accompany Mr Tran on his return to Laos.

38                  On the topic of art 24.3, counsel for the respondent submitted that the Minister’s decision did not impinge on any right of any child of Mr and Ms Chan to acquire Australian nationality or citizenship and that the primary judge was correct in his analysis of the Citizenship Act, when viewed in conjunction with art 24.3, or in isolation.

39                  Article 25(c), it was submitted, was also irrelevant to the exercise of the Minister’s discretion because Ms Chan and the child are not denied access to public services in Australia. In any event, it is clear, so the argument ran, that the Minister was aware of any impact of Ms Chan and the child if they went to Laos with Mr Chan.

40                  Counsel submitted that if the above contentions were correct it was unnecessary to consider whether provisions of the ICCPR formed part of Australian municipal law. He referred to authority in support of the proposition that unless an international instrument has been incorporated into Australian domestic law it does not give rise to rights or obligations enforceable under Australian law; see, for example, Dietrich v The Queen (1992) 177 CLR 292.

41                  Counsel further submitted that there is no principle of law which obliged the Minister to take into account the ICCPR in the exercise of her discretion.

Consideration

42                  The contentions of counsel for the respondent persuasively deal with and comprehensively answer each point raised by counsel for Mr Tran. They also illustrate that the primary judge was correct in rejecting each plank of the submissions advanced on behalf of Mr Tran before his Honour. No additional argument, not raised before the primary judge, was sought to be raised in support of any persuasive submission that the Minister erred in law in the exercise of her discretion.

43                  We consider that the primary judge was correct, for the reasons he gave, to dismiss the appellant’s application for judicial review of the Minister’s decision to cancel his spouse visa.  Accordingly the appeal must be dismissed, with costs.

Associate:

Dated:              3 August 2005