FEDERAL COURT OF AUSTRALIA

 

Le v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 875

 

MIGRATION – judicial review – cancellation of visa – character test – Minister’s Direction – consideration of best interests of children – whether mandatory relevant consideration – procedural fairness – International Covenant on Rights of Child – Minister’s Direction – importing elements of International Covenant on Rights of Child – legitimate expectation – whether genuine, proper and realistic consideration of best interests of children – whether reasonable inquiry made – whether adverse material placed before Minister without notice to visa holder – protection obligations – procedural fairness – whether adverse material placed before Minister without notice to the visa holder – country information – whether any practical unfairness.

 

 

Migration Act 1958 (Cth) s 501, s 474, s 499

Judiciary Act 1903 (Cth) s 39B

 

Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

Craig v South Australia (1995) 184 CLR 163 cited

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited

Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 cited

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 cited

R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 cited

FAI Insurances Ltd v Winneke (1982) 151 CLR 342 cited

O’Sullivan v Farrer (1989) 168 CLR 210 cited

Oshlack v Richmond River Council (1998) 193 CLR 72 cited

Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 cited

Re: Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 cited

Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 cited

Polites v The Commonwealth (1945) 70 CLR 60 cited

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 cited

Khan v Minister for Immigration and Ethnic Affairs (unrep, Fed Court, 11/12/87) cited

Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351 cited

M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 cited

 

 

VAN TU LE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W307 OF 2002

 

 

FRENCH J

5 JULY 2004

PERTH

 

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W307 OF 2002

 

BETWEEN:	VAN TU LE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	5 JULY 2004
WHERE MADE:	PERTH

 

THE COURT ORDERS THAT:

 

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

3.         No steps are to be taken to remove the applicant from Australia until the expiry of the time limited for the filing of any notice of appeal against this decision.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W307 OF 2002

 

BETWEEN:	VAN TU LE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

 

JUDGE:	FRENCH J
DATE:	5 JULY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1                     A national of Vietnam who came to Australia with his wife as a refugee in 1990 was convicted of two assaults in 1999 and sentenced to two years imprisonment.  He was released on parole in April 2000.  On 26 August 2002, the Minister for Immigration, Multicultural and Indigenous Affairs cancelled his visa.  Mr Van Tu Le whose visa has been cancelled now seeks to set aside the Minister’s decision for jurisdictional error. 

2                     Mr Le has been separated from his wife since 1996.  Their three children, for whom he cares deeply, are all permanent residents of Australia.  Two of them were born here and are Australian citizens.  The assaults for which Mr Le was convicted were committed against his ex-wife’s lover and that man’s wife who became involved in the altercation.  The assaults, which were serious and involved the use of a machete, arose in part out of his anger that his ex-wife’s lover, a former friend of the family, was leading his wife into gambling and neglect of their children.

3                     If the visa cancellation stands, Mr Le will be deported and removed from all practical hope of any real ongoing contact with the children and they with him.  For the reasons that follow, I am not satisfied that there was any jurisdictional error upon which the Minister’s decision could be set aside.  Having said that, this is a case in which there is a question mark about the adequacy of the materials put before the Minister and the merits of the decision-making process based upon them.   This Court however is not empowered to review administrative or ministerial decisions simply on the basis that they may have been made upon limited materials and limited inquiries.

Factual History

4                     Van Tu Le is a national of Vietnam, born on 25 April 1959 in Hai Phong.  He came to Australia as a refugee from Vietnam, arriving here on 25 June 1990 with his wife, whom he had married in 1988, and the first of their three children.  In 1982, while living in Vietnam, he had been required to undertake military service but refused to comply because he objected to the war against Cambodia and because he was afraid.  He fled Vietnam to a refugee camp in Hong Kong in 1987.  He arrived in Australia on 25 June 1990 on an Emergency Rescue visa and was granted a permanent entry permit on arrival.  Following amendments to the Migration Act 1958 (Cth) (‘the Act’) in 1992 which dispensed with the entry permit system, he became the holder of a visa class BB-155. 

5                     Mr Le’s second daughter, Jenny, was born on 25 April 1994 and his son Steven, on 13 March 1995.  In 1996, he and his wife separated.  At about this time she commenced a relationship with another man, Van Pham Thinh.  She gave birth to a child Tran Jason on 25 July 1997.  The father was Van Pham Thinh. 

6                     On 1 July 1999, Mr Le was convicted, on his own plea of guilty, of the offences of assault with intent to cause grievous bodily harm and unlawful wounding.  The offences were committed on 25 May 1999.  He was sentenced to 18 months imprisonment on the first and six months imprisonment on the second.  The two sentences were to be served cumulatively.  The convictions related to an attack upon Van Pham Thinh in May 1999.

7                     The circumstances of the offences appeared from the remarks of the sentencing judge.  Mr Le and his ex-wife had been friends with Mr Pham until Mr Pham commenced a sexual relationship with her.  Despite that relationship,  Mr Pham continued to live with his own wife and family.  On occasions, following their separation, when Mr Pham went out with Mr Le’s ex-wife, Mr Le observed his children left at home alone which caused him upset.  Shortly prior to committing the offences Mr Le purchased a machete.  He told his ex-wife that he had done so and that he intended to use it to injure Mr Pham.  On 25 May 1999 he drove his car to Mr Pham’s house in Morley and took the machete with him.  He knew that Mr Pham left for work at about 3am on most mornings.  Mr Le hid in a bush outside the front door of Mr Pham’s house.  Mr Pham left his house shortly afterwards and walked towards his motor vehicle which was in the driveway.  Mr Le stepped out from behind the bush where he was hiding and spoke to Mr Pham.  He then lifted his machete above his head and struck Mr Pham on the forehead causing an incision wound.  Mr Pham fell on to the ground and covered his head with both arms to try to protect himself from any further injury.  However, Mr Le continued to hit him on the rear right side of his head, the rear of his neck and left shoulder blade area.  This resulted in Mr Pham suffering abrasion injuries.  Shortly afterwards Mr Pham’s wife came out of the house.  She saw Mr Le attacking her husband and went to help him.  As Mr Le lifted the machete above his head to strike Mr Pham again she grabbed his right arm with one hand and placed her other arm across Mr Pham’s head to protect him.  As Mr Le broke free of her hold the machete struck the woman’s right hand causing an incision wound.  Mr Le then dropped the machete and ran away.  Mr Pham and Ms Nguyen, his de facto wife, required medical attention for their injuries and went to hospital to receive treatment.

8                     The sentencing judge described the case as ‘most unfortunate’ because the victims of the offence were close friends of Mr Le and his family until his former wife and Mr Pham commenced their relationship. 

9                     At the time of sentencing Mr Le had been employed as a truck driver for five years with a food distribution company.  His employment was both stable and secure.  He had no drug or alcohol abuse problems.  He had a short criminal history involving mainly offences of stealing for which he had been fined.  He also had a conviction for common assault in December 1995 for which he was fined.  The sentencing judge said:

‘I accept that you come from a difficult background and the circumstances in which this offending arose were emotionally stressful and difficult for you.  However, Mr Le, no amount of social deprivation or frustration can ever really justify physically injuring or hurting another human being.  It will be clear to you that the offences to which you have pleaded at the earliest opportunity are serious.  The community will not tolerate violence against its members and it is important that the courts make this point very clearly when sentencing people such as yourself.’

10                  The sentencing judge made reference to Mr Le’s relationship with his children and his concerns about them.  She said:

‘It seems that the domestic situation in relation to your family and the victim’s family continues in a somewhat unusual way because, despite the relationship with Mr Pham and your wife, he continues to live with his own wife and family, but continues to have some form of friendship with your ex-wife.  On occasions when he and your ex-wife go out together you see that your children are left at home alone and this in combination with the continuing association between your ex-wife and Mr Pham has upset and aggravated you.  I accept that you are close to your children and you are concerned for their welfare which is a priority for you.  It may be that you felt that Mr Pham had behaved badly and provoked you, but the fact is you had no right to take the law into your own hands in such a vicious way.’  

 

Her Honour also said:

‘There are three children from that relationship, two girls and a boy. Despite the separation, you see your children regularly and seem to feel that you are more caring of them and more mindful of their needs than is your ex-wife.  You have been told that you can take up your concerns regarding your perceived neglect of the children with Family and Children Services and apparently you have contacted them regarding your concerns.  It is very unfortunate that in the past you have tried to resolve the situation in a lawful and more appropriate way, but that has failed.’

 

Her Honour noted that Mr Le had begun an English language course for migrants but did not successfully complete the examinations for that course.

11                  In September 1999 an officer of the Criminal Deportation Section of the Department wrote to Mr Le warning him that as a result of his convictions he might be liable to deportation from Australia.  He signed an acknowledgement of receipt of this letter on 14 September 1999.  He also made a handwritten submission to the Department on that date.  The submission was in Vietnamese and was translated by the Department into English.

12                  On 11 February 2000, the Department sent a fax to the Superintendent at Casuarina Prison asking for information on Mr Le including a report on his industry and conduct within the prison.  On 15 February a DIMA officer, Mr Graffin, made a file note of a conversation with Mr Le.  He observed that Mr Le did not speak very much English and needed an interpreter.  He was separated from his wife who had their children.  The officer described Mr Le as ‘very sad emotional’ and ‘worried about deportation’.  On 3 March 2000, an officer from Casuarina Prison sent to the Department a report on Mr Le entitled ‘Review for Immigration’.  That report indicated, inter alia, that Mr Le was ‘a good worker’, displayed ‘good behaviour’ and was ‘always respectful in his dealings with staff’.  He interacted well with his peers and was ‘easy to manage’.  

13                  On 30 March 2000, Mr Le sent a letter, in the Vietnamese language, to DIMA which obtained a translation of it into English on 11 April 2000. 

14                  On 24 April 2000, after nearly 10 months in prison, Mr Le was released on parole.  On 14 July 2000, Ms Shaw from the Department wrote a letter inviting him to attend an interview about his liability for deportation.  On 19 July 2000, she sent an email to the Onshore Protection Section of the Department in Canberra requesting an assessment of Mr Le’s case for the purposes of ‘refoulement issues’.  Mr Le was interviewed by an officer of the Department on 26 July 2000.  A record of that interview was exhibited to the affidavit of Mr David Blades.  On 27 July 2000, Ms Shaw sent a further email to the Onshore Protection Section attaching a replacement minute which contained a correction to the Province of Mr Le’s birth.  On 17 August 2000, she faxed a copy of Mr Le’s interview to the Onshore Protection Section.  From this point there was an hiatus in the process for nearly a year.  The next recorded event occurred on 20 July 2001 when Mr Le received a notice that the Minister for Immigration and Multicultural and Indigenous Affairs was contemplating the cancellation of his visa.  He was provided with a copy of Minister’s Direction No. 17 made under s 499 of the Act.  He was given an opportunity to provide comments against the terms of that direction.   He responded with a handwritten letter in Vietnamese on 6 August 2001.  That letter was subsequently translated into English. 

15                  In that letter Mr Le referred to the previous friendship between his family and that of Mr Pham, Mr Pham’s seduction and affair with his wife and the fact that Mr Pham had introduced his wife into gambling.  He described Mr Pham as an inconsiderate person who set out to destroy his family happiness.  He referred to his own inability to contain his anger which led him to have a fight with Mr Pham for which he had been punished by law and imprisoned.  He said:

‘While in prison I was remorseful of what happened as a consequence of my anger but in the same time I thought how come an immoral person like [Mr Pham] got away with no punishment and having a normal life.’

 

16                  In the letter also Mr Le referred to the situation facing his children.  He said:

‘I have received the letter from the Department of Immigration and I am very sad and heartbroken knowing that I will not have the choice to stay to care for my three young children.  I would take this opportunity to present to you in details the cause and reasons leading to the events.’

 

He also said, at the conclusion of the letter:

‘Dear officer-in-charge, I have now moved on and left that incident in my past.  The reality in my life now is looking after my three young children.  I am pleading with you to consider my circumstances and allow me to stay with my children to care for them and that their parents are with them.

Dear officer-in-charge, I am in a period of total confusion, I am very afraid and desperate and I don’t know how to express my pain.  I can only implore you consider my desperate situation so that I can survive and have the opportunity to care for my children and fulfill (sic) my responsibility of a father towards his teen children.  I only beseech you to give me this opportunity to become a useful man in the society.’

17                  On 24 October 2001, DIMA sent a ‘Notice of Intention’ to consider cancelling his visa enclosing the new Ministerial Direction No 21 which had replaced Direction No 17.  That letter was returned to DIMA on 31 October 2001.  The notice was resent on 5 November 2001 to another address for the applicant.  But it was returned to DIMA unclaimed on 22 November 2001.  The relevant parts of Direction No 21 relating to the necessity to have regard to the best interests of the visa holder’s children as a primary consideration in relation to a cancellation decision did not differ materially from those in the Direction No 17. 

18                  On 9 July 2002 an officer of DIMIA sent an email to the West Australian Police asking whether Mr Le had any outstanding charges and seeking his last known address. 

19                  Prior to the issue of the first notice to the applicant on 20 July 2001 there had been consideration within the Department of whether Australia owed Mr Le protection obligations under any relevant United Nations Conventions.  This was described in a minute dated 4 September 2000 as ‘one of the issues to be taken into account in the delegate’s decision on whether to criminally deport Mr Le’.  The departmental assessment was that Mr Le was no longer a refugee within the meaning of the Refugees Convention because of significant changes which Vietnam had experienced since he fled from it. 

20                  An Issues Paper was prepared for the Minister and submitted to him on 12 July 2002.  On 26 August 2002, the Minister signed a decisional option at the end of that Paper adopting a statement in the following terms:

‘[50]  I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and LE Van Tu’s comments, and have decided that:

...

(d)  I reasonably suspect that LE Van Tu does not pass the character test and LE Van Tu has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.

Phillip Ruddock

Minister for Immigration and Multicultural and Indigenous Affairs

Date: 26.8.02’

The Application for Judicial Review – Procedural History

21                  In September 2002, Mr Le was arrested and taken into immigration detention at the Perth Airport Immigration Detention Centre.  On 1 November 2002, he lodged an application for review of the Minister’s decision cancelling his visa.  He prepared the application and his own statement of claim.  The application came on for directions before Nicholson J and subsequently a solicitor appeared on the record, namely Mr Christie.  The matter was listed for hearing on 30 April 2003, however by consent that was adjourned to a date to be fixed after 13 June 2003.  On 17 June 2003, the Minister issued a ‘Statement of Reasons’ for his decision of 26 August 2002.  In the meantime Mr Le filed a motion on 15 May 2003 seeking his release from detention until the hearing of the application or further order.  That application for interlocutory relief came on for hearing before Nicholson J on 18 June 2003 and was refused.  On 19 December 2003, Mr Christie ceased to act for Mr Le. 

22                  The substantive application was heard on 20 April 2004.  Mr O’Neal appeared on a pro bono basis for Mr Le.  At the time directions were made allowing Mr Le to amend what was by then a substituted application, in accordance with a letter from his counsel dated 19 April 2004.  The Minister was given leave to file an affidavit exhibiting the record of an interview conducted with Mr Le.  Any supplementary submissions by the Minister were to be filed and served on or before 11 May 2004.  Mr Le was given leave to respond by filing supplementary submissions in writing on or before 18 May 2004.  The hearing was adjourned to 2 June 2004. It was in fact relisted on 1 June 2004 for administrative reasons.  At that time orders were made amending the application in terms of a minute of proposed further amended application.  Further affidavits were read, being an affidavit sworn by Mr Le on 19 May 2004 and two affidavits of Mr Blades, a solicitor employed with the Australian Government Solicitor, sworn 10 May 2004 and 1 June 2004 exhibiting additional documentation.  These affidavits were read subject to relevance.  Mr Blades had also sworn an affidavit on 17 June 2003 exhibiting a copy of the Minister’s reasons for decision which had been issued at about that time.  However, it was conceded that, absent any verifying affidavit from the Minister himself, they were not admissible – Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33.  The hearing was then adjourned for supplementary oral argument on 15 June 2004.  On 15 June 2004 there was, by inadvertence, no appearance by counsel for the applicant.  The hearing was then adjourned and the parties given leave to file further written submissions within seven days.  The parties were allowed liberty to apply to relist the matter for further oral argument but they were content to rest upon their further written submissions.  

Grounds of the Application

23                  The grounds of the application upon which Mr Le now relies were extensively particularised in the amended substituted application.  It is unnecessary to set out those particulars in full.  They are in part narrative.  In substance they allege jurisdictional error on the part of the Minister in the following ways:

(a)        Having regard to the sparse information before the Minister in relation to the effect of Mr Le’s removal from Australia upon his children and having regard to the content of the Issues Paper and Record of Decision it may be inferred that the Minister failed to give any or any proper consideration to the best interests of the children in making his decision and thereby:

            (i)         failed to take into account a relevant consideration which he was obliged to take into account in the exercise of his discretion under s 501;

            (ii)        failed to accord natural justice to Mr Le having regard to the legitimate expectation that he would not fail to observe Australia’s obligations under Art 3.1 of the Convention on the Rights of the Child;

            (iii)        acted upon information so deficient that no reasonable decision could be made as to the best interests of the children as a primary consideration in determining whether Mr Le’s visa should be cancelled;

            (iv)       acted upon information so deficient that there was a constructive failure on the part of the Minister to consider the best interests of the children as a primary consideration and to properly exercise jurisdiction.

(b)       The Minister failed to afford natural justice to Mr Le in failing to give him an opportunity to comment upon adverse information from departmental officers:

            (i)         relating to his contact with his children;

            (ii)        relating to whether Australia owed him any obligations under any relevant United Nations Convention.

Statutory Framework

24                  Section 501 of the Act provides, in the relevant parts:

‘(2)      The Minister may cancel a visa that has been granted to a person if:

(a)       the Minister reasonably suspects that the person does not pass the character test; and

(b)       the person does not satisfy the Minister that the person passes the character test.

...

(6)       For the purposes of this section, a person does not pass the character test if:

(a)       the person has a substantial criminal record (as defined by subsection (7);

...

(7)       For the purposes of the character test, a person has a substantial criminal record if:

...

(c)        the person has been sentenced to a term of imprisonment of 12 months or more...’

25                  Cancellation decisions made under s 501 are privative clause decisions for the purposes of s 474(1) of the Act which provides:

‘A privative clause decision:

(a)       is final and conclusive; and

(b)       must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)        is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.’

26                  The definition of ‘privative clause decision’ appears in s 474(2) thus:

‘In this section:

‘privative clause decision’ means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act, or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).’

27                  Ministerial directions may be given under s 499 of the Act regulating the exercise of functions or powers under the Act including those under s 501.  Section 499 provides, inter alia:

‘(1)      The Minister may given written directions to a person or body having functions or powers under this Act if the directions are about:

(a)       the performance of those functions; or

(b)       the exercise of those powers.

...

(2)       Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).

(3)       The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)       Subsection (1) does not limit subsection 496(1A).’

The Jurisdiction of the Court and the Operation of the Privative Clause

28                  The jurisdiction of the Court invoked in this case is that conferred by s 39B of the Judiciary Act 1903 (Cth) which provides:

‘39B(1)  Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

39B(1A)  The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)       in which the Commonwealth is seeking an injunction or a declaration; or

(b)       arising under the Constitution, or involving its interpretation; or

(c)        arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’

The other provisions of s 39B do not apply for present purposes.

29                  The application of s 474 and the grounds upon which decisions purporting to be made under the Act may be reviewable in the exercise of jurisdiction under s 39B were considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.  The Court decided that the words ‘under this Act’ in s 474(2) must be read as a reference to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act – at [76].  An administrative decision which involves jurisdictional error is to be regarded in law as no decision at all.  Where there has been jurisdictional error the decision in question cannot properly be described, in the terms used in s 474(2) as a ‘decision ... made under this Act’ and is thus not a ‘privative clause decision’.  So decisions purportedly made under the Act may be reviewed under s 39B for jurisdictional error.

The Minister’s Direction No 21

30                  It is convenient here to refer to the terms of the Minister’s Direction No 21 made under s 499 of the Act.  Part 1 of the Direction relates to the application of the character test referred to in s 501(6) of the Act.  Part 2 sets out approaches to the exercise of the discretion conferred upon decision-makers by s 501 in determining whether or not to cancel a visa.  As earlier noted, Direction No 21 does not differ materially from Direction No 17 in relation to the relevant elements of Pt 2. 

31                  Paragraph 2.1 of the Direction provides:

‘If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.’

Paragraph 2.2 then sets out the weight to be given to various discretionary considerations.  It is in the following terms:

‘The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24.  Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.’

 

32                  The ‘PRIMARY CONSIDERATIONS’ are identified in par 2.3 as follows:

‘(a)      the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)        in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.’

 

33                  Under the heading ‘The best interests of the child’ pars 2.13 to 2.16 provide:

‘2.13    This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.  The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.

2.14     Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.

2.15     In general terms, the child’s best interest will be served if the child remains with its parents.  Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen, include, but are not limited to:

(a)       any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b)       any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

2.16     When considering the best interests of the child, decision-makers should have regard to the following:

(a)       the nature of the relationship between the child and the non-citizen;

(b)       the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c)        the age of the child;

(d)       whether the child is an Australian citizen or permanent resident;

(e)        the likely effect that any separation from the non-citizen would have on the child;

(f)        the impact of the non-citizen’s prior conduct on the child;

(g)       the time (if any) that the child has spent in Australia;

(h)       the circumstances of the probable receiving country, including the

educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

(i)        any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j)        any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.’

 

The Issues Paper

34                  The Issues Paper prepared for the Minister set out Mr Le’s history relevant to the question whether he had a substantial criminal record and thereby did not pass the character test prescribed in s 501.  Although left open as a matter for the Minister to determine there would be no dispute on that issue.  Mr Le had been sentenced to a term of imprisonment in excess of 12 months. 

35                  The Issues Paper then addressed discretionary considerations and referred the Minister to the terms of his Direction No 21.  It was pointed out to the Minister that:

‘It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your Section 499 Directions.  In making a decision on this case it is open to you to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.’

36                  The Issues Paper referred to the various factors set out in the Direction under the heading ‘Primary Considerations’.  These comprised the following:

‘Protection of the Australian Community

(a)       seriousness and nature of conduct

(b)       likelihood that the conduct may be repeated (including any risk of recidivism)

(c)       General deterrence.

The Expectations of the Australian Community.

The Best Interests of the Children.

Other Considerations.

Other International Obligations.’

37                  Under the heading ‘The Best Interests of the Children’, the Issues Paper began by referring to Article 3.1 of the Convention on the Rights of the Child:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

The Issues Paper acknowledged that Mr Le has three children and that he had said in his submission that they would be affected by a cancellation decision.  Reference was then made to par 2.16 of the Minister’s Direction setting out the factors relevant to the best interests of the child.  It is convenient to set these out together with the comments on them as they appeared in the Issues Paper:

‘[21]  Paragraph 2.16 of the Minister’s Direction sets out the factors to which the decision maker should have resort when considering the best interests of the child:

(a)        the nature of the relationship between the child and the non-citizen;

 

            Mr LE is the biological father of three children.  Sole custody of the children is held by their mother, from whom Mr LE is estranged.

[22]

(b)       the duration of the relationship, including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/stronger relationship in the future (whether or not there has been significant recent contact) would normally be given less weight than the proven history of the relationship based on past conduct;

 

            Mr LE has had continuous contact with the children from their birth until his period of incarceration.  Since May 1999 the children have been living with their mother.

[23]

(c)        the age of the child

 

            The children are currently aged 8, 9 and 13 respectively.

[24]

(d)       whether the child is an Australian citizen or permanent resident;

 

            All 3 children are Australian citizens or permanent residents.

[25]

(e)        the likely effect that any separation from the non-citizen would have had on the child;

 

            Mr LE claims he was in regular contact with the children whilst in gaol and that the children will suffer if he is deprived of contact with them.  There is no bar to the children travelling to Vietnam with their mother to visit him if they so choose.

[26]

(f)        the impact of the non-citizen’s prior conduct on the children;

 

            Mr LE claims that the children were too young to understand the nature of his offences.

[27]

(g)        the time, if any, that the children have spent in Australia;

 

            The eldest child was 1 year old when she arrived in Australia, the other 2 children were born in Australia.

[28]

(h)        the circumstances of the probable receiving country, including the educational facilities and standard of the health support system of the country to which the child may have to go, or return to should the non-citizen not be permitted to remain in Australia;

 

            Not applicable: if Mr LE is returned to Vietnam the children will remain in Australia with their mother.

[29]

(i)         any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages.

 

            Not applicable: if Mr LE is returned to Vietnam the children will remain in Australia with their mother.

[30]

(i)         any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances;

 

            Not applicable: if Mr LE is returned to Vietnam the children will remain in Australia with their mother.

[31]  It is open to you to find from the information given that the cancellation of Mr LE’s visa and his removal from Australia would/would not have a detrimental effect on his children.’

There was no reference to par 2.15 of the Direction which states, inter alia, that ‘In general terms, the child’s best interests will be served if the child remains with its parents...’.   The countervailing considerations mentioned in par 2.15 do not appear to have been relevant, at least in relation to Mr Le.

38                  At par 36 of the Issues Paper in a statement, evidently adopted by the Minister, it was said:

‘In support of the above findings I had regard to the following material:

Annex A          -           Record of Mr LE’s Movements

Annex B          -           Official Criminal History of Mr LE

Annex C          -           Submissions from Mr LE

Annex D         -           Notice of Intention to Cancel Visa under Subsection 501(2) of the Migration Act 1958 given to Mr LE

Annex E          -           Judges Sentencing Remarks.

Annex F          -           Assessment of LE Van Tu’s status under the Refugees Convention, the Convention Against Torture (CAT) and the International Convention on Civil and Political Rights (ICCPR).’

I infer that each of the annexures accompanied the Issues Paper submitted to the Minister. 

39                  The Notice of Visa Cancellation sent to Mr Le on 4 September 2002 enclosed a copy of the Issues Paper and the decisional options page which it described collectively as ‘a copy of the decision record that sets out the reasons for decision’.  It is clear, that the Issues Paper did not purport to set out that the reasons for the decision.  Nor did it disclose a single unambiguous line of reasoning upon which it could safely be inferred that the Minister had made his decision. 

Materials Relevant to the Best Interests of the Children Not Placed Before the Minister

40                  There were some materials exhibited to the further affidavits sworn by David Blades which were not submitted to the Minister with the Issues Paper.  These included a copy of Mr Le’s first letter to DIMA dated 14 September 1999 and the English translation of that letter, the prison report prepared in March 2000, Mr Le’s letter of 30 March 2000 and the record of the interview conducted between Mr Le and an officer of DIMA on 26 July 2000.

41                  In his letter of 14 September 1999 Me Le explained that he and his wife had known Mr Pham and his wife for 10 years since they had first met in Hong Kong.  He referred to Mr Pham’s affair with his wife and claimed that she had left their three children unattended at home while she went off with Mr Pham to the casino.  He regarded his ex-wife as having acted irresponsibly towards the children.  He claimed that on the day of the offence she had gone gambling with Mr Pham and had left the children at home.

42                    In the prison report of March 2000 prepared for DIMA by Officer Davis of the Casuarina Prison it was said, inter alia:

‘Le is very worried that his 3 children aged 10, 5 and 3 years will be neglected if left here in the care of his wife.  Ideally he wants to repair the relationship with his wife however acknowledged that may not be what she wants and he will respect her decision whatever it is when the time comes.  He stated that his wife has a gambling addiction and leaves the children alone in the house to go out gambling and this causes him great consternation.  Family and Children Services have taken the children from her on a prior occasion due to her neglecting them however they are back with her at this time.’

43                  In his letter of 30 March 2000, Mr Le repeated the substance of what he had said about his concerns for his children in the letter of 14 September 1999 and the connection between his ex-wife’s conduct in respect of their children and his relationship with Mr Pham.  He said he only lived for his three children.  He wrote of Mr Pham as the instigator of the circumstances that led to the offences.  He said:

‘Mr Thinh has been merciless: he often invited my wife to go gambling with him from dusk to dawn.  I have been extremely sad to see my wife sinking so deeply in gambling and adultery, to the extent of abandoning the children at home without proper supervision.’

 

He also referred to the ‘Viet-Cong’ government keeping his parents and siblings’ families under control since he had fled from Vietnam. 

44                  The record of interview between Mr Le and the DIMA officer on 26 July 2000 included a number of statements made by Mr Le about his children.  He was recorded as saying that he was still looking after his children:

‘Every day I go to the house and play with them.  Sometimes I take them to school and pick them up.  On the weekends we go shopping together.’

Asked about the degree of contact he had with his wife and children prior to his sentencing he said that they had lived together as a family between 1987 and 1994.  Between 1994 and 1999 he would visit his wife and children three or four times a week after work but did not live with them.  He also said that for about three weeks prior to the interview he had lived with his wife and children and that it was his intention to go back to his wife. 

45                  In relation to the degree of contact he had had with his wife and children during the term of his sentence Mr Le said:

‘Every day contact by telephone and letters.  My children would visit once every three or four months.  A friend would bring the children.  My wife had no opportunity to visit.  She did not know how to get there.  Because my wife was so bad as a person, my friend did not want to know her and would not help her.’

He was asked about his contact with his own parents and siblings before he was sentenced.  Mr Le said he had no contact with them for three or four years.  He went back to Vietnam in 1998 and saw his mother.  He only stayed there seven days because, he said, there was trouble.  He returned to Australia right away.  He said he was recognised upon his return to Vietnam and had to get away.  He was not wanted on any criminal matters.  He had previously fled from Vietnam and got away to Hong Kong and eventually came to Australia.

46                  In a further handwritten record of answers to questions put to him by the officer on 26 July 2000, Mr Le explained, from his perspective, the circumstances surrounding the commission of the offence which led to his sentencing.  On his account of it, his wife’s neglect of the children in favour of her relationship with Mr Pham was a matter of central importance.  He repeated his claim that Mr Pham would ask his wife to go gambling at night leaving the three children at home with no one to look after them.  He said that this happened often.  On those occasions the children would call and tell him that their mother was going with Mr Pham.  Mr Le said he told Mr Pham that if he loved his wife he should live with her and not just ‘borrow her and then send her back home’.  He claimed that Mr Pham told him it was none of his business.  He said, inter alia:

‘I told Pham to either take her away with him and not just have affair with her and do not cause trouble to my children.  I did try to restrain himself on many occasions.  A lot of times Pham brought his wife to my house for his wife to make trouble with my wife & the children called me & I called the police.  Eventually I took the children to Family & Childrens Services.  I had warned my wife if she goes with Pham again he would take the children away from her.  The Family & Childrens Services finally took 4 children away.  My 3 children and one of Pham’s.’(sic)

47                  Asked about his reaction to possible deportation he said:

‘I do not want to be deported.  I have my children here and they need me to look after them.  Particularly if my wife leaves them again.  I cannot go back to Vietnam again because the government is looking for me because I have avoided military service.  If I do go back it would cause not only a lot of trouble for my parents but also could cause their deaths because of the worry.  My parents are very old, they are in their 80’s and they would not be able to stand the shame and the embarrassment.’

48                  Asked if there was any other person likely to suffer detriment if deported, he said there was no one apart from his children.  He said:

‘But the children are very young and I must look after them.  They look up to me.  Because my wife gambles too much, I must look after them and provide for them.  I do not want to lose my children.’

He also said that he was stupid to have ‘made this mistake’.  He sought another chance to ‘open up’ his future and look after his children.  He said that all he had to live for now was the three children. 

49                  There was a separate record of interview taken on the same date under the heading:

‘CRIMINAL DEPORTATIONS SECTION

 

THE BEST INTEREST OF THE CHILD

Notes On Interview with Offender’

 

According to that record of interview, Mr Le was asked about the likely effect that any separation would have on the children.  He responded that without a father they would be very ashamed and embarrassed.  They would lose face and it would cause them to become troublemakers.  They would miss him very much.  If he were not there to look after the children and his wife went back to gambling and did not look after them they might have to go back to Children and Family Services to be looked after.  Other questions related to the impact on the children if they were to go to Vietnam to live.  He was asked whether his children had suffered or experienced any physical or emotional trauma arising out of his unlawful conduct.  He said he did not think so.  They were very young children and did not fully understand what had occurred.  They missed him when he was in prison and always asked when he was coming home. 

50                  Although Mr Le’s submission of 6 August 2001 was attached to the material submitted to the Minister with the Issues Paper, neither the letters of September 1999 and 30 March 2000, nor the record of interview of 26 July 2000 was included.  Mr Le was not in receipt of any legal assistance when his submissions were made to the Minister.  They were handwritten by him in Vietnamese and translated into English.  It seems likely that without assistance his capacity to understand the content of the Ministerial Direction No 17 and the need to put fully before the Minister matters relating to the interests of his children was limited.  It is reasonable to infer he had neither the knowledge nor resources to provide or arrange for any independent evidence relation to the position of the children.

Consideration of the Best Interests of the Children

51                  The substituted application alleges jurisdictional error arising in relation to the interests of the children in the various ways which have been set out earlier involving failure to take into account a relevant consideration, breach of natural justice and Wednesbury unreasonableness.

52                  Although the Issues Paper, together with the Minister’s choice of decisional option, was sent to Mr Le as setting out the reasons of the Minister for cancelling his visa, it does not in fact disclose the reasons.  The Minister recognised as much when in June 2003 he prepared a statement of his reasons for decision.  It may be inferred, from the Issues Paper, absent any evidence to the contrary, that that document  and its annexures sets out all the matters that were before the Minister when he made his decision and the way in which they were put before him.  On this basis, in my opinion, it can be inferred on the balance of probabilities that the general approach taken by the Minister to the best interests of Mr Le’s children is reflected in [21] to [30] of the document.   It may also be inferred from [36] of the Paper that the Minister had regard to the annexures including the sentencing remarks of the judge and Mr Le’s submission of 6 August 2001.  As previously  noted the Minister did not place his reasons for decision before the Court in an admissible form. 

53                  The consideration of the interests of the children in the Issues Paper amounted to a recitation of the facts as to Mr Le’s paternity of the children, their ages and citizenship or residency and the fact that he had had continuous contact with them from their birth until his imprisonment. The fact that they had been living with their mother since May 1999 was recited and Mr Le’s claim of regular contact with them while in gaol and that they would suffer if he were deprived of contact with them.  The likely effect of his removal was not independently considered beyond the statement that:

‘There is no bar to the children travelling to Vietnam with their mother to visit him if they so choose.’

That statement appeared to attach little or no weight to the importance of ongoing contact between the children and their father.  It appeared to invite no consideration of the issues between Mr Le and his wife which might militate against her wishing to take the children to see him in Vietnam.  Nor did it appear to invite consideration of the cost barriers to such travel which, it is likely, would be of significance to this family.  The possibility that Mr Le’s wife might not attend to the needs of the children and that  interventions by State Government authorities might be necessary to protect their welfare was not canvassed.  If what Mr Le had said to the interviewing officer on 26 July 2000 were true, then there was at least a question whether his removal from Australia would leave the children without any parental fallback in the event of a recurrence of problems involving their welfare.  Consideration of the interests of the children in the light of these matters could reasonably have involved making some inquiry of the Department of Family and Children Services to assess the impact of Mr Le’s removal from the point of view of their welfare.  To some degree however these matters were adverted to in the remarks of the sentencing judge.   Mr Le’s concern for his children’s welfare and his contacts with Family and Children Services were acknowledged by the judge.  I express no view about whether or not the children are at any risk nor about the adequacy of their mother’s care.  She has sole custody of the children and presumably a judgment has been made, by some authority or by the Family Court of Western Australia, to the effect that that was a suitable disposition.  Nevertheless the issue of their welfare had plainly been raised in matters put to the departmental officers prior to the submission of the Issues Paper to the Minister.  It was not reflected in the Issues Paper itself.  It was, however, raised in the Annexures being the sentencing remarks and Mr Le’s statement and, in passing, in the assessment by the Department of Australia’s protection obligations to Mr Le.

54                  Having regard to the history of the case and the domestic circumstances in which Mr Le’s offences were committed, the treatment of the interests of the children in the Issues Paper might be thought to be superficial and apparently wanting any attempt to appreciate the serious human dimensions of the decision facing the Minister.  The question which arises however is whether or not such superficiality exposes a jurisdictional error amenable to certiorari.  

Failure to take into account a Relevant Consideration – Jurisdictional Error

55                  In the context of the specific ground of review for want of jurisdiction that was available under s 476 of the Act prior to September 2001, the High Court considered the scope of jurisdictional error in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.  In the joint judgment of McHugh, Gummow and Hayne JJ, with which Gleeson CJ concurred, their Honours, at 351, referred to a passage from the judgment in Craig v South Australia (1995) 184 CLR 163 at 179 where it was said that if an administrative tribunal:

‘...falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

In the joint judgment in Yusuf  their Honours observed that the circumstances of a particular case could permit more than one characterisation of an error.  They went on to say (at 351):

‘What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.’

56                  Gaudron J, at 339-340, referred to a ‘constructive failure to exercise jurisdiction’ which would arise when:

‘...a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form.  A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account.  Equally, it may be disclosed by the failure to take a relevant matter into account.’

57                  Not every failure to take into account a relevant consideration will amount to jurisdictional error.  The failure must go to power.  As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39:

‘The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision:....’

 The question whether the exercise of a statutory power or discretion is conditioned upon the decision-maker taking into account a particular relevant factor depends upon the construction of the statute.  Mason J added that a failure to take into account a relevant consideration may not justify a court setting aside the impugned decision.  For the factor overlooked may be ‘so insignificant that the failure to take it into account could not have materially affected the decision’ (at 40).  His Honour also observed:

‘The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.  It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.  Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.’

As his Honour said, it follows that it is generally for the decision-maker and not for the court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising a statutory power (at 41). 

The Best Interests of the Children as a Relevant Consideration in Visa Cancellation Decisions

58                  The power conferred upon the Minister by s 501 of the Act to cancel the visa of a non-citizen who is unable to pass the ‘character test’ is in terms unconfined in its sphere of operation – Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151.  It is nevertheless, like all statutory powers, bounded by the subject matter, scope and purpose of the legislation under which it arises – Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 496 and 505; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368; Minister for Aboriginal Affairs v Peko-Wallsend Limited at 40; O’Sullivan v Farrer (1989) 168 CLR 210 at 216; Oshlack v Richmond River Council (1998) 193 CLR 72 at 84.  In considering the subject matter, scope and purpose of the Act, reference may be had to its long title and stated object.  Its long title describes the Act as ‘An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.’  The object of the Act is set out in s 4:

‘(1)      The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)       To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3)       To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4)       To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.’

The reference to ‘national interest’ places the Act in a societal context which may be of some significance in cases such as the present.

59                  There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power.   Nor is there anything in the language of the Act to support an implication to that effect.  In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration ‘in all cases concerning children’.  However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions – Minister for Foreign Affairs and Trade v Magno  (1992) 37 FCR 298 at 304 (Gummow J).  Such considerations do not thereby become mandatory.  In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the ‘... established doctrine’ that obligations under international treaties ‘... are not mandatory relevant considerations attracting judicial review for jurisdictional error’.  The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501.  It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law –  Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363;  Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.  See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed.  But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.

60                   The Minister’s Direction No 21 under s 499 imports into the exercise by delegates of the discretion to cancel visas under s 501, the obligation to have regard to various matters including the best interests of the visa holder’s children as a primary consideration.  However although the Direction is binding on delegates by virtue of s 499(2A) it does not bind the Minister in the personal exercise of his discretion under s 501 – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam at 514 [49] (McHugh and Gummow JJ).  So where the Minister is, as in this case, exercising the discretion under s 501 personally, the direction does not require him to consider the best interests of the children as a mandatory relevant consideration. 

61                  In Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, the Court gave consideration to circumstances in which the existence of an applicable ministerial policy might be a mandatory relevant consideration absent any statutory directions to take account of or apply such a policy.  There the decision-maker was the Administrative Appeals Tribunal (‘AAT’) on appeal from a decision of a delegate under the Act.  The proposition that government policy did not bind the AAT did not mean that it could be ignored.  It was said in the joint judgment that ‘It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application’ – at 206 (French and Drummond JJ).  Further (at 206):

‘Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits.  But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal.’

62                  Although the Minister, like the AAT in Gray’s case, is not bound to apply the ministerial direction this does not preclude him or her from adopting a ministerial policy to be applied in such cases providing he does not fetter his discretion in so doing.  The adoption of a policy guideline would be entirely consistent with the imputed legislative intent that the Minister’s powers not be exercised capriciously or arbitrarily, albeit the policy might be changed from time to time.  In this case the Issues Paper told the Minister no more than that it was open to him to be guided by the factors set out in the Direction.  It did not suggest that he apply the policy.  The facts provided to the Minister for consideration reflected those identified in the Direction.  But although it may be inferred that the Minister decided to adopt that general approach, it does not mean that he was bound to treat the interests of Mr Le’s children as a primary consideration or that he in fact did so.

63                  The best interests of the children of the visa holder affected by a decision taken by the Minister under s 501 cannot be regarded as a mandatory relevant factor in the exercise of the Minister’s discretion by reason of the terms of the statute, international law or the Minister’s own policy directions.  When the decision is made by a delegate then that delegate is bound to apply those policy directions.  When it comes before the AAT on review from the delegate, the AAT is obligated to have regard to them.  The Minister is not so confined.

64                  In Teoh, Gaudron J said (at 305) that:

‘Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare.  Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker.  They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection.’

Callinan J appears to have agreed with that sentiment in Sanders v Snell (1998) 196 CLR 329 at 351.  See also the observations of McHugh and Gummow JJ in Lam at 526 [97].  Such a common expectation however does not translate into a mandatory relevant consideration albeit it may impact upon the requirements of procedural fairness where the decision-maker does not intend to have regard to the best interests of children affected by an administrative decision. 

65                  In my opinion there is no legal requirement that the Minister have regard to the best interests of the children of a visa holder in making his decision, albeit it was a powerful moral consideration having regard to widely held community values.  Mr Le’s complaint of the Minister’s failure to consider their interests therefore does not disclose jurisdictional error on that basis.

66                  Absent a requirement, conditioning the exercise of the cancellation power, that the Minister have regard to the best interests of the visa holder’s children, the complaint of a constructive failure to consider their interests, even if made out, would not expose a jurisdictional error.  The complaint of unreasonableness in the consideration of the children’s interests similarly finds no purchase on any condition constraining the exercise of the cancellation power by reference to such considerations.

 

Whether there was a Failure of Procedural Fairness in Relation to the Minister’s Consideration of the Best Interests of the Applicant’s Children

67                  The written submissions tended to conflate the issue of whether the best interests of the children was a mandatory relevant consideration not taken into account by the Minister with the other issue of alleged unfairness in the way the position of the children had been dealt with. 

68                  The unfairness argument had two principal limbs:

1.         That Mr Le had a legitimate expectation, by virtue of Australia’s ratification of the Convention on the Rights of the Child, that the Minister, acting in accordance with Art 3.1 of the Convention, would have regard to the best interests of the children as a primary consideration.

2.         That Mr Le had been told, in effect, that the matters set out in par 2.16 of the Minister’s Direction were to be taken into account and that he therefore had a legitimate expectation to that effect and that the information he provided at the departmental interview of July 2000 would be passed on to the Minister.  The expectations so identified would attract a requirement that he be warned and given an opportunity to comment if they were not to be fulfilled. 

69                  The first limb of the fairness argument collapses into the second.  On the authority of the High Court decision in Teoh procedural fairness requires that, if the Minister intends to proceed to make a cancellation decision without first considering the best interests of the children as a primary consideration, the visa holder should first be informed and given an opportunity to persuade the Minister otherwise – see Djalic at [79] and cases there cited.

70                  The Minister’s Direction incorporated a requirement to give consideration to the best interests of the visa holder’s children as a primary consideration in the exercise of the discretion whether to cancel the visa.  So a failure, without notice, to give effect to that requirement could constitute procedural unfairness on a stronger basis than that adumbrated in Teoh, for the terms of the Direction were brought to the attention of the visa holder in this case.  Indeed it appears to be a matter of practice to draw the attention of visa holders liable to cancellation to the ministerial Directions.  The procedural fairness aspect of the applicant’s case in relation to the interests of Mr Le’s children can therefore be considered entirely within the framework of the complaint about alleged failure to apply the Direction.

71                  As one aspect of this ground, counsel for Mr Le sought to draw a contrast between the information contained in the Issues Paper and that which Mr Le had provided to the departmental officer through a translator on 26 July 2000.  This was in aid of the proposition that matters which he had put to the departmental officer and which he would reasonably have expected to have been conveyed to the Minister under the rubric of the best interests of his children were not passed on as part of the Issues Paper.  

72                  In my opinion the substance of the matters raised by Mr Le in his interview of 26 July 2000 was before the Minister, if not in the Issues Paper itself, then in the sentencing remarks of the judge and Mr Le’s letter of 6 August 2001 which were annexed to the Paper.  The family history and the circumstances surrounding the commission of the offence so far as they were relevant to the alleged risk to the children’s welfare and Mr Le’s concerns for them were reflected in those documents.  Mr Le’s ongoing commitment to the welfare of the children was set out in emphatic terms in his letter.  His claim to have had regular contact with the children while in gaol, which was referred to in the statement of 26 July 2000, was referred to in par 25 of the Issues Paper.  It was submitted that the statement in the Issues Paper that ‘sole custody of the children is held by their mother, from whom Mr Le is estranged’, conveyed the implication that Mr Le no longer had close and continuing contact with his children.  This was said to be contrary to information from Mr Le that ‘my life now is looking after my three young children’ and that he wished to ‘have the opportunity to care for my children and to fulfil my responsibility of a father to his teen children’.  But these statements did appear in the letter dated 6 August 2001 from Mr Le which was annexed to the Issues Paper.  The Minister, in effect, asserted at par 36 of the Issues Paper that he had had regard to each of the annexures.  In my opinion it cannot be said that in the totality of the matters put before the Minister both within and annexed to the Issues Paper there was a failure to identify issues concerning the interests of the children, which Mr Le wanted the Minister to consider.  In my opinion, the complaint of breach of natural justice in this respect is not made out.

73                  There is a related but distinct issue whether the Minister gave any real or realistic consideration to the best interests of the children or made any real inquiry in that regard.  It is arguable that a decision-maker may fail unfairly to fulfil a general expectation if, without notice to a person affected, he or she gives only lip service to the promised course of conduct.  So a failure, without notice, to give proper genuine and realistic consideration to the best interests of the children in the case of a pending visa cancellation, might if done without notice to the visa holder, give rise to procedural unfairness.  Any consideration of the merits of the case by a decision-maker exercising a statutory power must be proper, genuine and realistic – Khan v Minister for Immigration and Ethnic Affairs (unrep, Fed Court 11/12/87) at 11-12 per Gummow J and cases there cited.  This may be seen as no more than another way of expressing the proposition that the exercise of a statutory discretion must be done diligently and conscientiously if it is to be done in good faith – Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351.

74                  The threshold for finding a want of proper, genuine and realistic consideration of the merits of the case is a high one.  If it were otherwise it would too readily invite merits review.  On the basis of the matters put to the Minister in the Issues Paper and the annexures included with it, I am not prepared to find that that threshold of inadequacy has been reached.  That finding does not involve any endorsement of the quality of the consideration of the best interests of the children in the Issues Paper.  But questionable as it may be that quality does not fall so low as to amount to a failure of procedural fairness.

75                  I would add that although it would have been entirely appropriate for the departmental officers advising the Minister to have undertaken some independent inquiry about the position of the children, they were not required to do so as an aspect of procedural fairness.  In the recent decision of the Full Court in Djalic it was submitted that the Minister, in making a decision to cancel a visa under s 501, should have realised that the information provided by the visa holder was inadequate and should have made further inquiries in relation to the position of the children.  The Court referred to a passage from the judgment of McHugh J in Teoh in which his Honour referred to cases in which the Federal Court had found a failure to make further inquiries constituted an improper exercise of the relevant power or a failure to take into account a mandatory relevant consideration.  His Honour said (at 321):

‘In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry, (2) the information before the Minister was not up to date or (3) the absence of information before the Minister resulted from the Minister’s officers misleading the applicant.’

Their Honours in the Full Court, after noting that although McHugh J had been in dissent in Teoh there was nothing in the cited passage inconsistent with the reasoning of the majority, went on to say (at [83]):

‘In our opinion, there is no basis for the submission that the Minister was bound to make further inquiries concerning the position of the children.  It must be remembered that there is now no complaint that the Minister denied the appellant procedural fairness.  Although the information provided by the appellant concerning the children was not particularly detailed, it explained their situation and made out a case that he had a close relationship with his children and that the children would suffer serious emotional loss if he were to be deported from Australia.  The appellant had an opportunity to provide more detailed information if he wished, but he did not avail himself of that opportunity.  Moreover, the case does not come within any of the three categories identified by McHugh J in Teoh.  Nor has any principled basis been suggested for concluding that the Minister should have sought further information about the children before proceeding to a decision.’

76                  It is true that Mr Le is a person of limited resources, limited ability to speak the English language and probably limited ability to comprehend the issues he had to address pursuant to the Minister’s Direction.  Although this put him at a substantial disadvantage in putting his case to the Minister, the essential elements of it were before him so far as they related to the children’s interests.  While I have considerable reservations about the quality of the decision-making process and the absence of further inquiry, those reservations do not lead me to conclude that there has been procedural unfairness constituting jurisdictional error.

77                  The remaining aspect of the procedural unfairness case lay in the contention that the Minister considered material from departmental officers adverse to Mr Le without giving him an opportunity to comment on it.  It was submitted that the departmental Issues Paper treated as mere assertion and effectively cast doubt upon Mr Le’s description of his relationship with his children.  He was never advised of, or given an opportunity to respond to the statements in the Issues Paper or to provide responsive evidence from his wife.  It was submitted that had any inquiry been made the Minister would have been advised that contrary to the suggestion that Mr Le was ‘alienated’ from his wife until detained following the cancellation of his visa, he had in fact maintained regular contact with his wife and children.  He was substantially involved in their care and upbringing.  The relationship was sufficiently strong that he had the sole care of his children at the time that he was actually imprisoned following the cancellation of his visa.  Moreover and contrary to the implicit suggestion that he had no contact with the children after his release from prison he established more frequent and regular contact.

78                  Procedural fairness does not require the visa holder whose visa is subject to possible cancellation be given a copy of the submission to the Minister for comment before the decision is taken – M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260.  In that case the Full Court said (at [54]):

‘Procedural fairness in these circumstances did not require the Departmental submission to be provided to the appellant.  Natural justice or procedural fairness is to be equated with fairness in all the circumstances: Kioa v West (1985) 159 CLR 550, 583.  What are required are fair and flexible procedures, bearing in mind the circumstances of the case, the issues involved, and the nature of the enquiry and the decision:... There is no rule that the person the subject of decision must be given any departmental submission given to the decision maker: ... The submission was a balanced and measured collection and distillation of voluminous material.  It contained no adverse matter to which the appellant had not otherwise been alerted by Direction No 21, the apparent nature of the power and common sense.  The appellant had had made known to him the questions relevant for him to address and he had an adequate opportunity to do so.’

79                  The primary materials relevant to the position of the children which were the sentencing judge’s remarks and Mr Le’s letter of 6 August 2001 were before the Minister.  Annex F, relating to protection obligations, also contained a quotation from Mr Le’s interview of July 2000 where he said:

‘I have my children here and they need me to look after them.  Particularly if my wife leaves them again.’

80                  It is true, as counsel for Mr Le submitted, that the departmental Issues Paper treated as ‘mere assertions’ his description of his relationship with his children.  The fact that he and his wife would have been able to put more detailed evidence before the department about his relationship with the children and his ongoing involvement with them if asked, may reflect upon the quality of the decision-making process.  It does not amount to procedural unfairness.  In my opinion the claim of procedural unfairness in these additional respects is not made out.

Whether there was Procedural Unfairness in Relation to Protection Obligations Owed to Mr Le

81                  Paragraph 33 of the Issues Paper appeared under the heading ‘Other International Obligations’.  There followed a reference in parentheses to the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Refugees Convention.  Paragraph 33 then went on:

‘Mr LE originally arrived in Australia on an Emergency Rescue visa from Hong Kong and is therefore considered to be a refugee within the terms of the Convention.

A full assessment of LE Van Tu’s status under the Refugees Convention, the Convention Against Torture (CAT) and the International Convention on Civil and Political Rights (ICCPR) has been undertaken.

It is assessed that Mr LE does not engage Australia’s protection obligations and would not be subject to his civil and political rights under ICCPR and would not be subject to torture and does not come within the terms of CAT.

An assessment of LE Van Tu’s status under the Refugees Convention, the Convention Against Torture (CAT) and the International Convention on Civil and Political Rights (ICCPR) is at Annex F.’

 

82                  The document Annex F was primarily concerned with an assessment of whether Australia owed Mr Le protection obligations under the Refugees Convention.  It referred to his entry into Australia on 25 June 1990 on an Emergency Rescue visa from Hong Kong and the need to assess him under Art 33 of the Refugees Convention.  Under the heading ‘Background’ it referred to his personal history and his claim that before departing Vietnam for Hong Kong he had hidden from authorities to avoid being drafted into the Vietnamese Military.  A reference was then made to the interview conducted in July 2000 and Mr Le’s statement that he did not want to be deported, that he needed to look after his children, particularly if his wife were to leave them again.  It also quoted him as saying:

‘I cannot go back to Vietnam again because the government is looking for me because I avoided military service.  If I do go back it would cause not only a lot of trouble for my parents but also could cause their death because of the worry.’

The Paper considered Mr Le’s status against Art 1C of the Refugees Convention.  Reference was made to advice provided by the Department of Foreign Affairs and Trade on 12 November 1998 relating to Vietnamese laws and practices with respect to the return of military deserters.  The information from DFAT said, inter alia:

‘The Australian government has heard reports of persons who had deserted from the military returning to Vietnam.  Generally speaking, the authorities have not pursued them for their desertion, other than in cases where people had taken military property or money.’

83                  A further statement from a country information report dated 24 August 1999 observed that tens of thousands of Vietnamese settlers in Australia, many of whom were refugees, had returned to Vietnam as visitors without suffering any known harassment.  Some 3000 to 4000 Australians of Vietnamese origin were said, at that time, to be residing in Vietnam.  The assessment offered to the Minister against Art 1(c) was as follows:

‘The situation in Vietnam has changed significantly since Mr Le arrived in Australia.  Country information indicates that it is unlikely that the Vietnamese Authorities would take action against a national who left Vietnam illegally.  Large numbers of Vietnamese nationals who had left Vietnam illegally have returned to Vietnam and the UNCHR through monitoring have not recorded any complaints of arrest, persecution or discrimination because of their decision to flee.  It is assessed that there is not a real chance Mr Le will suffer treatment amounting to persecution as a result of his decision to flee.

 

Country information also indicates that there is no government policy or legislative provisions, which would result in different treatment amounting to persecution of persons who have completed sentences for criminal offences committed in Australia and are subsequently deported on completion of their sentences.  Based on the above, it is assessed that there is not a real chance that Mr Le will face persecution on return as a result of his criminal activities in Australia.

The above circumstances would warrant the cessation of his refugee status under Article 1C(5).’ 

 

84                  Reference was made to Mr Le’s claim that Vietnamese authorities would target him because he avoided joining the military before fleeing to Hong Kong.  The assessment was that available country information indicated that in the absence of special circumstance a person who deserted from the Vietnamese armed forces in 1986 would suffer no serious consequences on return to Vietnam.  Mr Le had not deserted from the army but avoided being drafted into the military. It was put to the Minister that it was unlikely he would be punished for his decision to flee.  In addition the Vietnamese authorities did not pursue cases where five or more years had elapsed.  It was almost 10 years since Mr Le had left Vietnam.  It was unlikely that the authorities would target him on his return.  It was submitted that there was no evidence to suggest that Mr Le’s life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion if he were to be returned to Vietnam.  Similarly, based on the country information, it was submitted that there was no evidence to suggest Mr Le would be subject to violation of his civil and political rights under the ICCPR or subject to torture in contravention of the United Nations Convention Against Torture.

85                  Counsel for Mr Le referred to matters contained in his answers set out in the record of interview of 26 July 2000 in which he referred to perceived difficulties which he experienced upon his return to Vietnam in 1998.  He said:

‘I only stayed there 7 days because there was trouble, I returned to Australia right away.  The trouble was because I tried to escape once, before I actually came to Australia, I was gaoled.  When I returned to Vietnam, they knew me and recognised me so I had to get away.  I am not wanted on any criminal matters.’

86                  Counsel also referred to Mr Le’s affidavit of 19 May 2004 which he submitted set out in more detail what Mr Le would have raised had there been any challenge to his information that he was at risk of persecution if he returned to Vietnam.  In that affidavit he referred to the history of his refusal to join the military services in 1982, his departure from Vietnam to the Kaitak refugee camp in Hong Kong in 1987 and what he claimed was the retribution visited upon his parents for his evasion of military service and fleeing Vietnam.  He claimed they had lost their jobs and were unable to obtain new ones.  He claimed that when he arrived at the airport in Hanoi the officials there had not let him into the country immediately.  They said he was missing some information.  He was made to wait some time.  He filled out a form and gave them some Singaporean money and they allowed him to enter the country.  He was collected by his brother from the airport in Hanoi and went to his family’s house.  He said that on the following day his brother came to the house and told him that local public security had come to the house and had been looking for him.  This is what had happened before he fled the first time.  He said his brother had told the officers he was not there at the time.  He said that he and his brother had a discussion about the situation and he decided to leave the family home.  He left the house and went to his wife’s family house which is in the country.  He then booked a ticket back to Australia and returned earlier than he had intended.  He said in his affidavit that he did not know for sure what would happen if he went back to Vietnam again but expressed the opinion that it was likely he would be put in gaol and that he would be persecuted so he would be unable to get a job once released.

87                  In the notice of intention to consider cancelling Mr Le’s visa which was sent to him on 20 July 2001 and which enclosed a copy of the Minister’s Direction No 17, it was said:

‘In preparing your comments please read fully and carefully the contents of the Minister’s Direction.  You should address each and every topic that you feel applies to you or is relevant to your circumstances.  You may also provide any further information apart from those considerations listed in the Minister’s Direction, that you feel the Minister ought to be aware of and take into account.’

88                  The Minister’s Direction No 17 which was sent to Mr Le with that letter, referred to  relevant international obligations.  In particular it referred to the requirement to give consideration in the decision-making process to issues of protection pursuant to the Refugees Convention and also the Convention Against Torture and the International Convention on Civil and Political Rights.  It may well be the case that Mr Le did not receive or arrange for any advice or assistance in relation to the preparation of his response to that letter.  His letter of August 2001 certainly does not seem to have had regard to the detailed terms of Direction No 17 which, in the relevant parts, were similar to Direction No 21.  This, however, is not a basis for asserting a want of procedural unfairness. He was invited specifically to consider all matters contained in the Direction including the question of protection obligations.  He raised no matter going to protection obligations in his letter.  Had that been of the forefront of his mind or a significant factor it is reasonable to suppose that it would have been mentioned.

89                  The question which then arises is whether the country information referred to in Annex F should have been put to Mr Le for comment before the Minister made his decision.  In my opinion there was no practical unfairness arising from the failure to provide copies of relevant country information to Mr Le.  He had asserted in his interview of July 2000 that the government was looking for him because he avoided military service.  As was pointed out by counsel for the Minister, Mr Le has not produced any evidence to suggest that if provided with a copy of the report prior to the decision being made he would have made have been able to make any submissions affecting the applicability or reliability of the country information cited.  The affidavit material which he now seeks to rely upon does not in terms contradict the country information.  It is notable also that it appears he was able to leave Vietnam without any difficulty to return to Australia. 

Conclusion

90                  For the preceding reasons, I am satisfied that notwithstanding the apparent inadequacies of aspects of the decision-making process Mr Le has not shown jurisdictional error on the part of the Minister.  The application must therefore be dismissed with costs.  In so doing I express the thanks of the Court for the very careful and comprehensive submissions put by Mr O’Neal who represented Mr Le on a pro bono basis.

 

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated:              5 July 2004

Counsel for the Applicant:	Mr PB O'Neal (pro bono)
Counsel for the Respondent:	Mr MT Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Hearing:	20  April 2004, 15 June 2004
Date of Judgment:	5 July 2004