FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757

MIGRATION – cancellation of visa under s 501(2), Migration Act 1958 (Cth) – error in description of visa in material submitted to Minister for decision – whether brief provided to Minister constituted reasons for decision of Minister by endorsement – whether best interests of children taken into account – whether Minister obliged to consider whether Australia had obligation under international law not to return visa holder to country of origin.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 31, 31(3), 32-38, 501(2), 501E, 501G

Acts Interpretation Act 1901 (Cth) s 25D

Migration (1993-1994) Regulations reg 2.01, 2.02

Migration Reform Act 1992 (Cth) s 34

Migration Reform (Transitional Provisions) Regulations 1994 reg 3(1), 4(1), 5, 6

Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 cited

Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (No. 3) [2004] FCA 137 cited

Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 cited

Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 435 cited

Minister for Immigration & Ethnic Affairs v Arslan (1984) 4 FCR 73 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Huynhh [2004] FCAFC 47 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229 followed   

Minister for Immigration & Multicultural Affairs v Teoh (1995) 183 CLR 273 cited

Minister for Immigration & Multicultural Affairs; Ex parte Palme (2003) ALJR 1829 cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 499 referred to

Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 cited

Powell v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 71 cited

Roberts v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 739 cited

Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003]FCA 1069 cited

Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 cited

W157/00A v Minister for Immigration & Multicultural Affairs (2001) 190 ALR 55 cited

Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 cited

VAN NHUAN NGUYEN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W242 OF 2002

LEE

17 JUNE 2004

PERTH

THE COURT ORDERS THAT:

1.         A writ of certiorari issue to quash the decision of the respondent made on 12 July 2002 to cancel the visa held by the applicant.

2.         A writ of prohibition issue prohibiting the respondent from further proceeding to act on that decision.

3.         The respondent be restrained from relying upon that decision for the purpose of detaining the applicant or removing the applicant from Australia.

4.         The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

LEE J:

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for prerogative and injunctive relief in relation to a decision of the respondent (“the Minister”) made on 12 July 2002 that “the visa” held by the applicant be cancelled by exercise of a power granted to the Minister by s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

2                     The relevant facts may be shortly stated as follows.

3                     The applicant was born in Vietnam on 18 December 1969.  He left Vietnam “as a refugee” at the age of 11 and apparently spent several years in a camp established for such persons in Malaysia.  He was accepted by Australia for re-settlement in this country, presumably at the request of the United Nations High Commissioner for Refugees, and was granted a visa that permitted him to travel to Australia.  He arrived in Australia on 15 December 1983.  On 14 April 1993 the applicant married an Australian citizen.  The two children born to that marriage are now 9 and 7, and, of course, are Australian citizens.

4                     In about May 1999 the applicant was tried and convicted in the Supreme Court of Western Australia on three charges arising out of his participation in a joint illegal enterprise.  The principal offence of which the applicant was convicted was manslaughter.  On 25 May 1999 the applicant was sentenced to a total period of imprisonment of 12 years from 12 February 1998 and was made eligible for parole.

5                     By a letter from the Minister’s Department dated 30 June 2001 the applicant was invited to provide reasons why the Minister should not exercise a power under s 501 of the Act to cancel a “subclass 155 permanent residence visa” said to have been issued to the applicant on 3 March 1993.  Enclosed with the letter was a copy of Direction No 17 made by the Minister under s 499 of the Act to provide guidance to delegates of the Minister  making decisions to refuse or cancel a visa under s 501 of the Act.  The applicant provided comments in response to that letter on 20 August 2001.

6                     On 3 September 2001 the Minister’s Department forwarded to the applicant a copy of Direction No 21 that replaced Direction No 17.  The applicant replied to that letter on 13 September 2001 in the same terms as his earlier response, and repeated those comments in a letter dated 26 June 2002.  Letters in support of the applicant were received by the Minister’s Department from the applicant’s father-in-law, the applicant’s wife, and a prison chaplain who had attended the applicant during his imprisonment. 

7                     In early July 2002 officers of the Minister’s Department prepared and submitted to the Minister a briefing paper described as “ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF MR NGUYEN’S VISA UNDER S 501(2) OF THE MIGRATION ACT 1958” (“the Issues Paper”).  The foregoing material forwarded to the Minister’s Department by the applicant and others was attached to the Issues Paper.

8                     Other attachments to the Issues Paper included:  a record of arrival and departure movements of the applicant; the conviction record of the applicant; a report by the Western Australian Ministry of Justice on the rehabilitation of the applicant in the course of his imprisonment; and a transcript of the remarks made by the Judge of the Supreme Court in sentencing the applicant on 25 May 1999.  In the papers before the Court four pages of that transcript were absent.  Whether the papers forwarded to the Minister were deficient in a like respect is unknown.

9                     One other comment can be made upon the Issues Paper.  It appeared to misstate an element of the applicant’s circumstances by informing the Minister that on 25 May 1999 the applicant had been sentenced by the Supreme Court to terms of imprisonment on three counts of conspiracy to commit indictable offences.  The transcript attached to the Issues Paper showed that the applicant had been convicted of being a party to the offences of aggravated burglary, manslaughter, and assault occasioning bodily harm and had been sentenced on those offences and no others.

10                  On 12 July 2002 the Minister cancelled “the visa”.  The applicant does not contest that s 501(2) of the Act applied to his circumstances and that the Minister had power to cancel the visa held by the applicant. 

11                  By letter dated 22 July 2002 the applicant was informed of the Minister’s decision.  The letter stated that the “copy of the decision record” enclosed “sets out the reasons for the decision”.  The “copy of the decision record” was a copy of the Issues Paper as endorsed by the Minister.

12                  In relevant respects s 501G(1) of the Act provided as follows:

‘(1)      If a decision is made under subsection 501(2)…to:

…

(b)  cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)  sets out the decision; and

(d)  specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)  sets out the reasons (other than non-disclosable information) for the decision.’

13                  By reason of s 501G(1)(e) requiring the Minister to give a written notice that set out the reasons for a decision made under s 501(2), s 25D of the Acts Interpretation Act 1901 (Cth) also required the Minister to set out in that written instrument findings made by the Minister on material questions of fact and to refer to the evidence and other material on which those findings had been based.   The Minister concedes that those requirements were not met and further concedes that the Issues Paper does not convey the reasons of the Minister for the decision he made.  Perhaps paradoxically counsel for the applicant contended that the Issues Paper did express the reasons of the Minister.

14                  At the outset it is to be noted that there appears to be some doubt about the kind of visa held by the applicant and what visa the Minister purported to cancel. 

15                  The applicant travelled to Australia on a visa described as “Cat. K4011/33”.  Under the Act, as it then stood, that visa expired when the applicant entered Australia.  The “Issues Paper” informed the Minister that the applicant “arrived in Australia as a Refugee from Vietnam [on] 15 December 1983”.  It may be assumed that, under the Act as it then stood, upon arrival in Australia the applicant was granted an entry permit which did not restrict the time within which the applicant could remain in Australia, thereby being a permit that was defined by the Act as a “permanent entry permit”. 

16                  As noted earlier the letter to the applicant dated 30 June 2001 which gave notice that cancellation of the applicant’s visa was under consideration by the Minister, stated that the visa held by the applicant was “a subclass 155 permanent residence visa granted to you on 3 March 1993”. 

17                  As at 3 March 1993 Part 155 of Schedule 2 of the Migration (1993) Regulations (“the 1993 Regulations”) provided for the issue of a “Class 155 (Resident Return (B)) visa” (“Class 155 visa”) and for the issue of a “Class 155 entry permit”.  Sub-item 155.12 of Part 155 stated that the purpose of the foregoing visa and entry permit was to “provide a return travel facility to certain Australian permanent residents”. 

18                  Sub-items 155.2 and 155.4 of Part 155 provided that an Australian permanent resident could obtain in Australia before departure from Australia, a “Class 155 visa” to operate as a “travel-only visa” permitting return travel to Australia on any number of occasions within a period of no more than 5 years from the grant of the visa.

19                  Pursuant to sub-item 155.5 of Part 155 a permanent resident who held a “Class 155 visa” which operated as a “travel-only visa” could be granted a “Class 155 entry permit” upon return to Australia.  Sub-item 155.521 stipulated that a “Class 155 entry permit” had effect without limitation as to time.  It was, therefore, a “permanent entry permit”. 

20                  If it is assumed that on 3 March 1993 the applicant was granted a “Class 155 visa” to facilitate his return to Australia if he left Australia at any time within 5 years of the grant of the visa, the visa had not been utilised before 1 September 1994.

21                  From 1 September 1994 the Act was amended by the Migration Reform Act 1992 (Cth).  At that date travel visas and entry permits were replaced with a single system of visas for the control of travel and entry into Australia.  (See:  NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 499 at [386] to [393]).  Section 34 of the Act then provided, in relevant respects:

‘34(1)  There is a class of permanent visas to remain in, but not re‑enter Australia, to be known as absorbed persons visas.

(2)   A non-citizen in the Migration zone who:

(a)   on 2 April 1984 was in Australia; and

(b)   before that date had ceased to be an immigrant; and

(c)   on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and

(d)   immediately before 1 September 1994, was not a person to whom s 20 of this Act as in force then applied;

is taken to have been granted an absorbed person visa on 1 September 1994.’

22                  It was not submitted by the applicant that he was to be taken to have been granted an absorbed person visa as a person who had ceased to be an immigrant before 2 April 1984.  (See:  Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (No. 3) [2004] FCA 137 per French J at [33]-[46]).

23                  Regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (“the Transitional Regulations”) read as follows: 

‘4(1) Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.’

24                  Regulation 5 did not apply to the applicant’s circumstances and, therefore, it may be assumed that as at 1 September 1994 the entry permit granted to the applicant in December 1983 took effect thereafter as a “transitional (permanent) visa”.

25                  Further, pursuant to reg. 6 of the Transitional Regulations, a “Class 155 visa” applied for, and granted, in Australia before 1 September 1994, continued in effect thereafter as a “transitional (permanent) visa” permitting the holder thereof to return to and enter Australia until the date on which that visa would have ceased to be in force, and to remain in Australia indefinitely. (See:  reg. 3(1), Transitional Regulations - “permanent visa”).

26                  As noted earlier, the material attached to the Issues Paper included a “movement record” in respect of the applicant, being a print-out of computer-stored data held by the Minister’s Department.  That record indicated that the applicant left Australia on 4 February 1996 and returned on 19 March 1996.  In that print-out the following appears: “Lawful Until: Trans Perm”.

27                  The reference in the letter from the Minister’s Report dated 30 June 2001 to a “subclass 155 permanent residence visa granted to you on 3 March 1993” was incorrect.  As at 3 March 1993 there was not a “subclass” under the 1993 Regulations nor a “permanent residence visa”. 

28                  The Migration Regulations 1994 (“the 1994 Regulations”) introduced subclasses of classes of visas on 1 September 1994.  Section 31 of the Act provided that there were to be the classes of visas provided in the Act (ss 32-38) and other classes of visas as prescribed.  Section 31(3) authorised the regulations to prescribe criteria for a visa or visas of a specified class.  Regulations 2.01 and 2.02 of the 1994 Regulations prescribed the following:

‘2.01    Classes of visas (Act, s 31)

            For the purposes of section 31 of the Act, the prescribed classes of visas are:

            (a)        such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and

            (b)        the following classes:

                        transitional (permanent); and

                        transitional (temporary).

2.02     Subclasses

            (1)       Schedule 2 is divided into Parts, each identified by the word “Subclass” followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass.

            (2)        For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the sub-item “Subclasses” in the item in Schedule 1 that refers to that class of visa.’

29                  It can be seen that pursuant to 2.01(b) of the 1994 Regulations a “transitional (permanent) visa” was prescribed as a separate class of visa for the purposes of s 31 of the Act and was not a visa to which Schedule 1 or Schedule 2 of the 1994 Regulations applied.  In passing it may be noted that Schedule 2 of the 1994 Regulations did provide a “Subclass 155 - Five Year Resident Return visa”, to operate for a period of five years from the date of grant and to serve a similar purpose to that of the “Class 155 visa “referred to above.

30                  From the foregoing it is to be concluded that on 1 September 1994, and on 12 July 2002, the visa held by the applicant was a “transitional (permanent) visa”.

31                  The circumstances described above are similar to those considered by a Full Court of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229.  In Schwart the visa held was a “transitional (permanent) visa”.  The letter informing the visa holder that cancellation of the visa was under consideration stated, incorrectly, that the type of visa held was “a resident visa (subclass K 1412)”.  Under a sub‑heading “Immigration History of Visa Holder” the visa class was recorded as “Residence Visa Category K1412” with a right of indefinite residence.

32                  In Schwart their Honours held as follows:

‘It is not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing.  It may well be that he was well aware that the respondent had been resident in Australia for eighteen years and had, under the terms of a visa held by him, a right of indefinite residence.  However, at no stage does the Memorandum refer to a ‘transitional (permanent) visa’ that the respondent is deemed to hold pursuant to reg 4(1) of the Transitional Regulations.  If the Minister exercises the important discretionary power conferred by s 501, there should be no doubt that that is what he is doing.’ 

33                  In the instant case the Issues Paper, under the subheading “Immigration History of Visa Holder” stated the following:

34                  The Minister was informed by the “Issues Paper” that the applicant left Australia on 4 February 1996 and returned on 19 March 1996.  The Minister was also provided with a copy of the letter to the applicant of 30 June 2001 in which the Minister’s Department stated, incorrectly, that the visa held by the applicant was a “subclass 155 permanent residence visa”.

35                  As in Schwart, there was incorrect information before the Minister in respect of the visa held by the applicant.  The visa “Cat. K4011/33” no longer existed.  The applicant did not hold a “Subclass 155 permanent residence visa” nor, for that matter, a “Subclass 155 – Five Year Resident Return visa”, a visa limited to a term of 5 years entitling the holder to return to and re-enter Australia if a departure from Australia was made within that period.  The actual visa held by the applicant, a “transitional (permanent) visa”, was not identified. 

36                  As stated by the Full Court in Schwart the Minister had to know the type of visa under consideration for cancellation if the salutary power available to the Minister under s 501 was to be duly exercised.  It was not open to the Minister to say that all the relevant issues had been duly considered if the Minister was unaware of the type of visa held by the resident that the Minister purported to cancel.  As in Schwart, it may be surmised that at the time the decision was made the Minister understood that the applicant held a visa which entitled him to reside permanently in Australia.  However, as stated in Schwart that assumption was not sufficient.  It was necessary for the Minister to be aware of the type and details of the visa held, before the Minister could decide whether it was appropriate, in all the circumstances, that the visa be cancelled. 

37                  Had the applicant relied on the foregoing ground it would seem that the prerogative relief sought by the applicant could not have been resisted by the Minister.  (See:  Roberts v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 739). 

38                  I turn now to the two issues raised by the applicant at the hearing, namely, whether the Issues Paper set out the reasons of the Minister for the decision to cancel the visa held by the applicant, and whether the decision of the Minister involved jurisdictional error in that the Minister failed to have regard to the following material considerations; the best interests of the children of the applicant; and, Australia’s obligations to the applicant under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and subsequent Protocol thereto (“the Convention”). 

39                  In W157/00A v Minister for Immigration & Multicultural Affairs (2001) 190 ALR 55 at [47]-[52] I referred to the principles to which Parliament may be assured to have had regard in enacting s 501G(1)(e) of the Act, imposing a duty on the Minister to provide reasons for a decision made by the Minister under s 501(2) of the Act.  As noted earlier that duty is enlarged by the general duty imposed in s 25D of the Acts Interpretation Act 1901 which require written reasons for a decision that are provided pursuant to a requirement in a statute, to include the findings made on material questions of fact and to identify the evidence or other material on which those findings are based. 

40                  In some circumstances, likely to be rare, the briefing material placed before the Minister may recite material facts that are not in issue and which allow only one conclusion by the Minister in the formation of his or her decision.  Perhaps in such a case it could be said that adoption of that material by endorsement by the Minister is a declaration of the Minister’s reasons for the decision made and specification of the material findings of fact and of the material relied upon for those findings (see:  W157/00A at [69]‑[71]).

41                  But as noted above such a circumstance will be exceptional.  Parliament directs the Minister to set out in writing the reasons of the Minister and material facts found by the Minister.  It is a specific and clear duty that does not allow the Minister a discretion to decide the extent to which that obligation will be performed or to purport to satisfy it by presenting to a party affected by the Minister’s decision, a document prepared for another purpose from which it is said that party may endeavour to find the reasons of the Minister by “reading between the lines”.  (See:  Minister for Immigration & Multicultural Affairs; Ex parte Palme (2003) 77 ALJR 1829 per Gleeson CJ, Gummow, Heydon JJ at [40]). 

42                  The Minister accepts the foregoing and concedes that the statutory duty has not been performed in this case. 

43                  Counsel for the applicant submitted, however, that the letter from the Minister’s Department dated 22 July 2002 which notified the applicant of the Minister’s decision and stated that it enclosed “a copy of the decision record that sets out the reasons for the decision” should be accepted as a declaration by the Minister that the “decision record” set out the reasons of the Minister. 

44                  Perusal of the Issues Paper shows that proposition to be unsustainable.  It contained no process of reasoning leading to a recommendation to be adopted by the Minister.  Some facts of the Issues Paper were incontrovertible, namely, that the applicant had been convicted of serious offences and that the power of the Minister to cancel the visa held by the applicant had arisen under the Act.  But other matters set out in the Issues Paper required assessment and a formation of judgment by the Minister as to where the balance should fall, namely, the risk of the applicant re-offending; the extent of the applicant’s rehabilitation and self improvement in the course of his incarceration; and how the best interests of the children of the applicant as Australian citizens were to be served.  In addition, although not raised expressly in the Issues Paper, the Minister had to consider what weight to attribute to the fact that the applicant had been accepted into Australia as a child and had spent his formative years in this country.  For almost 20 years he had been a permanent resident of Australia.

45                  The Issues Paper presented to the Minister material on which the Minister had to make a number of findings and allocate weight and ultimately make a determination based on those deliberations.  The Issues Paper did not supply findings of fact, the decision to be made nor the reasoning to support such a decision and in no sense can it be said to set out the reasons of the Minister for a decision to cancel the visa held by the Applicant (see:  Roberts at [35]). 

46                  Alternatively the applicant, with the consent of the Minister, sought to tender as part of his case, a document signed by the then Minister on 5 October 2003 described as “Statement of Reasons – The Cancellation of Mr Van Nguyen’s Visa Pursuant to s 501(2) of the Migration Act 1958”.   The applicant commenced this proceeding on 6 August 2002, and gave notice of the grounds relied, upon, inter alia, that the Minister had failed to take into account the relevant considerations of the best interests of the applicant’s children and of Australia’s obligations to the applicant under the Convention.

47                  The document described above began with the following paragraph: 

“Mr Nguyen’s case is one of many visa cancellations that I have personally considered.  This document sets out my best recollection of the reasons for my decision of 12 July 2002.”

48                  The applicant sought to have the document admitted on the ground that it contained an admission against interest on the part of the Minister insofar as the document revealed that the Minister failed to consider the issue of Australia’s obligations to the applicant under the Convention as a person accepted by Australia as a refugee from the country to which the Minister intended to remove the applicant.  I reserved my decision on the admissibility of the document.

49                  The document could not be tendered as the reasons for the Minister’s decision recorded in writing as required by s 501G(1)(e) of the Act.  The document on its face was not such a record.  The document contained a candid caveat that it was, at best, an endeavour to recollect the reasons for the decision.  The attempt at recollection was some 15 months after the decision had been made and it followed that the document had to be treated with great caution.  (See:  Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 at [67]).  The document was a non-contemporaneous self-serving statement prepared outside the terms of the Act and could only be admissible under an exception to the hearsay rule, such as an admission against interest.  (See:  Minister for Immigration & Ethnic Affairs v Arslan (1984) 4 FCR 73 at 75; Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004]FCA 435 per Hill J at [28]; Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003]FCA 1069 per Hely J at [64]-[67]). 

50                  Insofar as it may be said that the document contains any admission against interest the document can be admitted, by consent, for that limited purpose.

51                  The Issues Paper informed the Minister that Article 3.1 of the “Convention on the Rights of the Child” required the Minister to treat the best interests of the children as a primary consideration in making his decision.  It may be added that such a consideration involved the need to have regard to the fact that the children were Australian citizens.  (See:  Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 per Burchett J at 614; Minister for Immigration & Multicultural Affairs v Teoh (1995) 183 CLR 273 per Gaudron J at 304-305).  It was not in issue that the Minister recognised that it was expected by parties likely to be affected by his decision that he would take the best interests of the children to be a primary consideration and that it would constitute a breach of natural justice in the circumstances if he failed to do so.

52                  On the material before the Minister there was a real prospect that a decision to cancel the visa held by the applicant would result in separation of the children from their father or place them in disadvantaged circumstances in Vietnam, causing substantial detriment to the children in either circumstance.  As noted in the Issues Paper the material suggested that a decision to cancel the applicant’s visa and to remove the applicant from Australia would have a detrimental effect on the children. 

53                  The Minister could not assume that the applicant’s wife would depart the country of nationality of herself and the children and relocate herself and the children in Vietnam.  As the wife’s letters to the Minister’s Department implied, a decision to cancel the visa held by the applicant would present her with unpalatable options, none of which would mitigate the impact of that decision on the children.  One of those options would be to remain in Australia with the children.  Before the Minister could make the ultimate determination of what decision would best serve the interests of Australia and its citizens, the Minister, in giving primary consideration to the best interests of the children, had to consider the possible impact upon the children of the range of events that may follow if the applicant’s visa were cancelled. 

54                  In addition to the obvious matters relating to the disadvantages and hardship that the applicant’s wife and children would suffer if, for the sake of the children and family unit, the applicant’s wife decided to leave Australia to join the applicant in Vietnam, there was material that suggested that the health of the son, who suffered from a rare condition, would be imperilled by relocation to such a tropical environment.  Therefore, the Minister had to consider the real possibility that a decision to cancel the applicant’s visa and to remove the applicant from Australia would have the effect of separating the children from their father indefinitely.  All of the material placed before the Minister was to the effect that the children had a close relationship with the applicant.  A further matter the Minister had to consider with regard to the future interests of the children was that if the wife and the children left Australia as a result of the Minister’s decision, that event would sever the relationship between the children and their maternal grandfather in whose home the children had spent most of their lives and with whom they had a firm bond. 

55                  Insofar as the Issues Paper informed the Minister that it was “open” to the Minister to find that a decision to cancel the visa held by the applicant would have a detrimental effect upon the children, it may have distracted the Minister from the actual task before him at law, namely, to give primary consideration to what was in the best interests of the children.  It may be assumed in the present case that the only conclusion the Minister could have reached in respect of the best interests of the children was that such interests would be met by the Minister deciding not to cancel the visa held the by applicant.  That had to be the “starting point” in the Minister’s treatment of the interests of the children as a primary consideration.  (See:  Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133  at [26]).  If the Minister determined as a primary consideration that the best interests of the children would be served by the Minister declining to cancel the visa held by the applicant, the Minister would then have to determine, and identify, what consideration, or considerations, were of sufficient weight or importance to supersede the best interests of the children.  (See:  Wan at [32]-[34]; Long v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 218 at [53]-[57]). 

56                  Given that the Issues Paper did not guide the Minister in that way and that when the decision was notified to the applicant the Minister did not provide reasons to explain how the best interests of the children were overtaken by other considerations it should be inferred that latent procedural error in the Issues Paper became patent in the decision-making process and that the Minister failed to treat the best interests of the children as a primary consideration.  It followed that, in making the decision, the Minister failed to observe procedural fairness and that jurisdictional error occurred.  (See:  Wan at [26]; Powell v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 717 per Carr J at [29]-[31]). 

57                  With regard to the question whether the Minister failed to consider whether Australia had international obligations to the applicant under the Convention, the Issues Paper informed the Minister that the applicant “arrived in Australia as a Refugee from Vietnam [on] 15 December 1983”.  Later in the Issues Paper, under a heading “Other International Obligations”, it was stated that the applicant had not made any claims which required assessment in relation to such obligations.  The latter comment in the Issues Paper may have led the Minister into error in making his decision.  The Minister had to consider all issues raised by the material before him, not only issues articulated by the applicant.  (See:  Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28).

58                  If it is assumed that in Malaysia in 1983 the applicant was assessed by the UNHCR as a person to whom the Convention applied it may be further assumed that it was by reason of that assessment that the applicant was accepted for re-settlement in Australia as a “refugee”.  Although it is unnecessary to speculate on how the applicant came to be regarded as a “refugee” it may be assumed that it was accepted that, by reason of his membership of a particular social group, namely, a member of the family of a person (the applicant’s father) who had been an active member of the South Vietnamese army and later a prisoner of the forces now in control of Vietnam, the applicant had a well-founded fear of persecution if he were returned to Vietnam. 

59                  The foregoing circumstances of the applicant, who left Vietnam in 1980 and arrived in Australia in 1983, are clearly distinguishable from those considered in Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47 at [21]-[25].  In the instant case the material before the Minister suggested that as at 1983, under s 6A(1)(c) of the Act as it then stood, the applicant was a person determined by the Minister to be a person who had the status of a refugee under the Convention and, accordingly, a person to whom an entry permit was to be granted.  That material did not suggest another conclusion, to the exclusion of all others, namely, that the word “refugee” as applied to the applicant referred to a person other than a person to whom the Convention applied.  In Huynh the relevant events occurred in 1992 at a time when the Act, and the regulations made thereunder, had been amended in significant respects, in particular, to provide for “a number of humanitarian visas”.  (See:  Huynh at [9]).  Furthermore, in Huynh (at [22]), the Court held that the relevant material raised no suggestion that Huynh had been assessed as a person subject to persecution in Vietnam and that, (at [10]), it was clearly possible that Huynh had been permitted to enter Australia as a member of a family unit.  The applicant in the instant case had relations in Australia who may have assisted the applicant to be accepted by Australia but, unlike Huynh, the material did not confirm that when the applicant entered Australia the Minister had not determined that he was a person who had the status of a refugee under the Convention. 

60                  If the applicant had been assessed by the UNHCR to be a refugee within the meaning of that term as used in the Convention, then Australia, having accepted the applicant for re-settlement and as a contracting party to the Convention, would have to have given regard to whether Australia’s obligations to the applicant continued under the Convention before it took any step to return the applicant to Vietnam.  It followed that the foregoing question was a material consideration in determining whether to cancel the applicant’s visa preparatory to refouling the applicant to Vietnam.

61                  The material before the Court suggests that at the time the then Minister made his decision to cancel the visa held by the applicant, he did not turn his mind to the question whether Australia had continuing obligations to the applicant under the Convention.  The Issues Paper pointed the Minister away from that task.  If the subsequent document prepared as a “best recollection” of the then Minister’s reasons are taken into account, the failure of the Minister to refer to the question, or to make any findings in respect of relevant facts, tends to support the conclusion that the issue was not addressed at all. 

62                  Although matters such as the failure of the applicant to now claim a fear of persecution if returned to Vietnam, and the fact that when he left Australia between February and March 1996 he may have visited Vietnam, may suggest, strongly, the absence of such a fear, that issue still had to be considered, and relevant facts found, by the Minister before a decision could be made to cancel the visa held by the applicant for the purpose of returning the applicant to Vietnam.  A contrary proposition, based on the content of s 501E of the Act was, discussed by the Court in Huynh (at [27]-[28]) but the Court acknowledged, as must be done in this case, that it was not a point addressed by the parties and could not ground the Court’s conclusion.  For the reasons adumbrated above the failure of the Minister to have regard to the foregoing material consideration represented a jurisdictional error in the decision-making process. 

63                  Orders should be made quashing the Minister’s decision, prohibiting the Minister from proceeding to act on the decision, and restraining the Minister from relying upon the

decision for the purpose of detaining the applicant or removing him from Australia. 

Associate:

Dated:              17 June 2004