FEDERAL COURT OF AUSTRALIA

Taylor v Minister for Immigration & Multicultural Affairs [2004] FCA 1081

MIGRATION – alleged jurisdictional error – failure to accord natural justice – alleged failure to have regard to interests of family including particularly grandchildren – alleged failure to have regard to principles of international obligations – issues document not record of former Minister’s decision – whether not open to inference from issues document that former Minister failed to so have regard to factors alleged – relevance of Direction 21

Judiciary Act 1903 (Cth) s 39B, 78B

Migration Act 1958 (Cth) ss 474, 499, 501, 501G

International Covenant on Civil and Political Rights, 19 December 1966, entered into force 13 November 1980 art 23, 23.1

Convention on the Rights of the Child, 20 November 1989, entered into force 16 January 1991 art 3.1

Long v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 610 considered

Luu v Minister for Immigration & Multicultural Affairs (2001) 65 ALD 161 cited

Luu v Minister for Immigration & Multicultural Affairs (2002) 127 FCR 24 cited

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 considered

Minister for Immigration & Multicultural & Indigenous Affairs v Scargill [2004] HCA Trans 21 (13 February 2004) cited

Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Palme (2003) 201 ALR 327 cited

Minister for Immigration & Multicultural Affairs v W157/00A (2002) 125 FCR 433 followed

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

Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 19 cited

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

Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 592 cited

NEVILLE TAYLOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W10 of 2002

RD NICHOLSON J

20 AUGUST 2004

PERTH

THE COURT ORDERS THAT:

1.                  The applicant’s application for leave to amend the substituted application be refused.

2.                  The substituted application dated 13 August 2002 be dismissed. 

3.                  The applicant pay the respondent’s costs of the substituted application and the application for leave to amend. 

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

REASONS FOR JUDGMENT

1                     The applicant seeks leave to bring an amended substituted application pursuant to s 39B of the Judiciary Act 1903 (Cth) for prerogative injunctive and declaratory relief.  He claims to be aggrieved by the decision of the respondent’s predecessor (‘the former Minister’) made on 21 December 2001.  That decision determined to cancel the applicant’s BF Transitional (Permanent) Visa pursuant to the provisions of s 501 of the Migration Act 1958 (Cth) (‘the Act’).  The aggrievance of the applicant arises from the effect of the decision being to purport to remove his right to remain a permanent resident of Australia.  He is further aggrieved by a consequent decision to hold him in detention and the intended decision to remove him from Australia.  In reasons delivered on 30 May 2001 (Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 592) the Court ordered that the respondent be restrained from continuing to detain the applicant until final determination of this present application. 

2                     The grounds of the application are that the former Minister’s decision was made without jurisdiction and consequently is void.  This claim is particularised in two respects which are to some degree interrelated.  The first limb claims that the former Minister failed to accord natural justice to the applicant by failing to have regard to interests of the applicant’s wife, children and grandchildren and the hardship caused to them by the destruction of the family unit.  The second limb claims that the former Minister failed to have regard to and apply the principles of art 23 of the International Covenant on Civil and Political Rights, 19 December 1966, entered into force 13 November 1980(‘the ICCPR’) and the Convention on the Rights of the Child, 20 November 1989, entered into force 16 January 1991 (‘the CROC’) without first notifying the applicant that he did not intend to have regard to the ICCPR or the CROC.

statutory context

3                     At the date of the decision s 501(2) provided that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes that test. 

4                     The character test is provided for in s 501(6).  Among the circumstances, which have the effect that a person does not pass the character test, is the factor of a substantial criminal record.  The description ‘substantial criminal record’ is defined is s 501(7).  That subsection provides that for the purposes of the character test a person has a substantial criminal record if, inter alia, the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more.  A further ground to constitute a substantial criminal record is where ‘the person has been sentenced to a term of imprisonment of 12 months or more’.  It is accepted for the applicant here that he did not meet the character test in that he had two substantial periods of imprisonment; one from 1982 and the other from 2000. 

5                     Relevantly to the present application, s 501G provides that if a decision is made under s 501(2) to cancel a visa that has been granted to a person, the Minister must give the person a written notice that, inter alia, ‘sets out the reasons (other than non-disclosable information) for the decision’. 

evidence

6                     The applicant’s case relies upon affidavits of the applicant sworn on 16 August 2002 and 28 May 2003.  In addition, the applicant relies on an affidavit of his wife, Jacqueline Taylor, sworn on 22 May 2003 and a further affidavit sworn by her on 20 April 2004.  Additionally, the applicant places reliance upon the affidavit of the solicitor for the respondent sworn on 8 February 2002.  The applicant accepts that aside from the respondent’s solicitor’s affidavit, the other affidavits are relevant only to the grant of his release from detention so far as it is discretionary and are also relevant to the grant of leave to amend, but are not relied upon on the primary issue to be argued, namely, the jurisdictional issue.

respondent’s decision

7                     The decision of the former Minister is set out under the title of ‘Minister’s Decision on Cancellation Under s 501(3)’.  This appears on a page annexed to a document described in the proceedings as the Issues Document.  The decision appears as Part E, reflecting its association with the earlier parts set out in the Issues Document.  It commences with the following statement:

‘[36]   I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Neville TAYLOR’s comments, and have decided that: …’

8                     There then followed four options, three of which are deleted so that the remainder was the option selected by the former Minister.  It reads:

‘…

(d)       I reasonably suspect that Mr Neville TAYLOR does not pass the character test and Mr Neville TAYLOR 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’

9                     The decision is signed by the former Minister and dated 21 December 2001. 

the issues document

10                  The Issues Document is stated to relate to the applicant and to involve ‘consideration of liability for cancellation of Neville Taylor’s visa under s 501(2) of the Migration Act’.  It is addressed to the ‘Minister’.  It sought his decision on whether the applicant passed the character test in s 501(6) of the Act and, if not, whether his visa should be cancelled pursuant to s 501(2) of the Act. 

11                  Under the heading ‘Personal Details’ the document set out that the applicant was born in England on 26 September 1945 and had British citizenship.  It said he was married.  It showed the applicant’s date of entry to Australia as 17 February 1980 and described his visa as Transitional (Permanent) BF Visa with the stay period being of indefinite duration.  It was recorded that he had been previously considered for deportation under s 12 of the Act and had been administered a warning on 29 September 1988. 

12                  The document then moved to ‘consideration of visa cancellation’.  After setting out relevant statutory provisions and sentences received by the applicant, it was stated that it was open to the ‘Minister’ to find on the facts that there was reasonable suspicion the applicant did not pass the character test due to the fact that he had been sentenced to a term of imprisonment of 12 months or more.  Under the heading ‘Discretion’ the Minister was advised by the Issues Document, that if he was satisfied that the applicant did not pass the character test, he must consider the exercise of his discretion to decide whether the applicant should be permitted to remain in Australia.  It referred to s 501 of the Act as providing the discretion.  It stated that ‘you have issued Directions under s 499 to guide delegates and the AAT [Administrative Appeals Tribunal] in the exercise of that discretion’.  He was advised that it was clear from a number of decisions of the Federal Court that when he decided a case personally he was not bound by s 499 directions although he could be guided by the factors there set out.  He was told he was, however, free to place whatever weight he regarded as appropriate on the relevant factors. 

13                  The Issues Document advised that the applicant had been notified by mail at his prison on 4 September 2001 of the intention to cancel the visa held by him.  The cancellation ground was identified in the notice as s 501(6)(a), namely, that he had a substantial criminal record.  It was recorded that the applicant had responded to the invitation to submit any comment he believed relevant and had done so by letter received on 24 September 2001.  A copy of his letter was annexed to the Issues Document.

14                  The Issues Document then set out considerations relating to the factors referred to in the Directions.  It commenced with reference to ‘Primary Considerations’.  These included ‘protection of the Australian community’, ‘likelihood that the conduct may be repeated including any risk of recidivism’, ‘general deterrence’, and ‘the expectations of the Australian community’.  Then followed the following section:

‘The Best Interests of the Children

[19]    Article 3.1 of the Convention on the Rights of the Child (CROC) states:

                   “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.”

[20]    Mr TAYLOR has four adult children (two sons and two daughters).  Mr TAYLOR stated in his submission that these children would be affected by a decision under s.501(2).  According to Departmental records, the respective ages of Mr TAYLOR’s children are as follows:

            Daughter, Lorraine                             born 01.04.1967          (34 yrs)

            Son, Ian Stewart                                 born 05.05.1969          (32 yrs)

            Son, Mark Christopher                       born 21.04.1980          (21 yrs)

            Daughter, Nicola Michelle                  born 18.02.1982          (19 yrs)

            As all of Mr TAYLOR’s children are over 18 years, they are no longer eligible for consideration under CROC.’

At the conclusion of that section reference was again made to the annexed letter from the applicant.

15                  The Issues Document then proceeded to consider matters under a heading ‘Other Considerations’.  These derived from a consideration of par 2.17 of the Minister’s Direction.  The first such issue referred to under that heading were issues of disruption to his family presented by the applicant in his submission, which related to his spouse, children and family.  The following three paragraphs, so far as relevant, then appeared:

‘[23]   Mr TAYLOR has been married to his wife, Jacqueline TAYLOR (d.o.b. 23.03.1947) for 35 years – since 05.03.1966.  He migrated to Australia with his wife and two eldest children on 17.02.1980. In his submission, Annex C, Mr TAYLOR states:-

            “My wife and I have been married for thirty five years and have been living in Australia since 1980.  We have bought (sic) up four children, two of whom were born in Australia and are Australian citizens…”

            “… Withdrawal of my visa will be a punishment to my wife as she would be put in a very difficult position whether to return to England with nothing, no prospects, no property and having to leave behind four children, three grandchildren and aged parents or to end a marriage of thirty five years and stay in Australia.”

Mr TAYLOR’s wife, Jacqueline TAYLOR has submitted a letter of support, Annex N, in which she states:-

            “… Since his release from prison in 1987, we have both worked long and hard to put the past behind us and make a new start.”

            “… The whole family has suffered during the time he has been in prison …”

            “.. If you cancel Neville’s visa it will be devastating for all of us.  Our four children will be deprived of their Dad, our three grandchildren will be robbed of the only Grandad they’ve got, and what about me?  If you send Neville back to England, I have to make a choice ……  How can I possibly make the choice between my husband of nearly 36 yrs, who I love dearly, and my four children, three grandchildren, my parents and my brother..”

[24]    Apart from his spouse and four adult children, Mr TAYLOR has aged parents-in-law, as well as a brother-in-law, sister-in-law and three grandchildren.  He states that he has no other living relatives and it is unlikely his children would be in a position to visit him.’

It continued:

‘[25]   Mr TAYLOR has a spouse, 4 adult children, 3 grandchildren and parents-in-law in Australia.  His own parents died in Australia approximately 2 years ago. He has no other surviving relatives overseas or in Australia.’

16                  Under the heading ‘Other International Obligations’ the following paragraph appeared:

‘[32]   Mr TAYLOR has not made any claims which require assessment in relation to international obligations.’

minister’s direction

17                  The Direction made by the former Minister under s 499 of the Act was dated 23 August 2001 identified as Direction No 21 and as addressing ‘Visa Refusal and Cancellation under s 501’. 

18                  In the preamble it is stated that the Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act.  It revoked and replaced Direction No 17.  It consists of two parts.  Part 1 provides directions on the application of a character test.  Part 2 provides directions on what considerations are to be taken into account in administering the character test and what weight is to be given to them. 

19                  Identified as ‘Primary Considerations’ are three matters.  The first involves the protection of the Australian community and members of the community.  The second involves the expectations of the Australian community.   The third reads:

‘[I]n 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.’

This appears in par 2.3(c) of the Direction No 21. 

20                  Under the heading ‘The Best Interests of the Child’ the following appears as part of the Directions:

‘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…’

21                  In par 2.16 of the Direction it is stated that when considering the best interests of the child, decision-makers should have regard to a number of factors including the nature of the relationship between the child and the non-citizen; the duration of that relationship; the age of the child; whether the child is an Australian citizen or permanent resident; the likely effect that any separation from the non-citizen would have on the child; the impact of the non-citizen’s prior conduct on the child; the time (if any) that the child has spent in Australia; the circumstances of the probable receiving country, including the educational facilities and the standard of health support; any language barriers for the child in the probable country of future residence; and any cultural barriers for the child in that country.

22                  Under the heading ‘Other Considerations’ the Directions then provide:

‘2.17    When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, ti is appropriate that these matters be taken in to account but that generally they be given less individual weight than that given to the primary considerations.  These other considerations include:

(a)               the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

·                “Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“The family is the natural and fundamental group unit of a society, and is entitled to protection by society and the State.”’

23                  Finally there appears a heading ‘Other International Obligations’.  Paragraph 2.18 requires the decision-maker, where relevant, to consider the international obligations contained in this section.  Paragraph 2.18 and following paragraphs (relevantly) read:

‘2.18    Where relevant, decision-makers are required to consider the international obligations contained in this section.

2.19     The International Convention on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of his or her rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) of the ICCPR, or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol to the ICCPR).

…

2.22     In cases where issues of protection pursuant to the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration in the decision making process.’

24                  Paragraph 2.24 concludes this section by stating that notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty.  It states that the responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister. 

grant of leave

25                  The applicant does not bring any affidavit offering any explanation as to the delay in making the amended substituted application.  This is a case, therefore, where the strength of the proposed ground of review is relevant to the exercise of the discretion to grant leave to amend.  It is necessary, therefore, to turn to the proposed ground of review and to each of its limbs as previously identified. 

26                  The decision to cancel the applicant’s visa is a privative clause decision and may not be reviewed by the Court pursuant to s 474 of the Act unless the decision is affected by jurisdictional error:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; Minister for Immigration & Multicultural & Indigenous Affairs v Scargill [2004] HCA Trans 21 (13 February 2004).  Accordingly the issue for the Court is whether the decision of the respondent was affected by such jurisdictional error.  It therefore depends on whether either of the limbs of the ground of review can be made out to establish such error.

27                  The onus of proof in respect of the ground of review and each of its limbs rests upon the applicant.  The consequence is that where the contentions for the applicant are that the respondent failed to have regard to certain matters, it is for the applicant to establish that is the case on the balance of probabilities.  For the respondent it is contended that in the absence of the reasons of the former Minister neither particular can be established.  It therefore becomes significant to a consideration of the opposing contentions to consider whether or not there is presently before the Court a record of the former Minister’s reasons for decision.

whether former minister’s reasons are in evidence

28                  For the applicant it is accepted that it is primarily a question of fact whether the Issues Document does or does not constitute the former Minister’s reasons for decision.  Reliance is placed on the fact that the notice of visa cancellation from the Department of Immigration and Multicultural Affairs dated 2 January 2002 and served on the applicant on 4 January 2002 described the Issues Document to be ‘a copy of the decision record that sets out the reasons of decision’. 

29                  Nevertheless, in the oral submissions for the applicant, while the issue was not conceded, it was accepted that perhaps the weight of authority is against an issues document constituting the reasons for decision of a Minister:  Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [38] – [40]; Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 19.  See also Long v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 610 and Minister for Immigration & Multicultural Affairs v W157/00A (2002) 125 FCR 433.

30                  In reliance upon the same authority the respondent submits that the Issues Document does not contain the reasons of the former Minister in cancelling the applicant’s visa.  I agree with the submissions for the respondent that the fact that the letter from a Departmental officer dated 2 January 2002 described the copy of the decision record as setting out the reasons for decision is not conclusive of the matter.

31                  The briefing document here deals with material relevant to the exercise of the former Minister’s discretion and puts forward alternative courses of action available.  It does not explain why the former Minister reached the decision which he made.  That is, it did not express why he thought that one of the alternatives, over others, should be adopted.  The Issues Document here is indistinguishable from that described as at issue in W157/00A where the members of the Full Court were all of the view that it did not amount to the giving of reasons.  I find as a fact that the Issues Document here did not constitute the reasons for the former Minister’s decision:  cf Nguyen at [16].

32                  I therefore accept the submissions for the respondent that the Issues Document here does not contain the reasons of the former Minister in cancelling the applicant’s visa. 

Whether former minister’s reasons can be inferred

33                  That, however, is not the end of the matter.  Here, the applicant says in the alternative and really as his principal argument, that examination of the Issues Document provides sufficient evidence from which the Court can infer the former Minister’s approach to the matter and his reasoning in arriving at his decision. 

34                  The applicant supports this contention by reference to authorities.  In W157/00A Branson J (with whom Goldberg and Allsop JJ expressed agreement) said at [72]:

‘Although I have concluded that the issues document does not set out the reasons for the Minister’s decision to cancel the respondent’s visa, this does not meant that it is irrelevant to the issue of whether it has been established that the Minister did not take into account the best interests of the respondent’s children as a primary consideration.  The issues document is relevant in this context as it was before the Minister when he reached his decision.’

In Long Carr J (with whom Merkel and Hely JJ expressed agreement) inferred that the briefing paper at issue there set out the reasons for the Minister’s decision to cancel the appellant’s visa.  However, he added that if he was wrong in making that inference he considered the briefing paper provided sufficient evidence from which it should be inferred that, on the balance of probabilities, the respondent did not get to the first step of the process of balancing the best interests of the appellant’s children against other relevant considerations:  at [53]. 

35                  It is necessary, therefore, to consider this contention in the context of each of the particularisations of the ground of review.  If the applicant is correct and the inference can be drawn then it may have a consequence that the applicant has discharged the onus upon him which the respondent says he cannot discharge in the absence of the reasons of the former Minister being in evidence. 

Failure to accord natural justice by failure to have regard to interests and obligations

applicant’s contentions

36                  The applicant relies on the decision of the High Court in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 for the foundation of an obligation on the former Minister to act in conformity with relevant ratified international treaty obligations and so to accord procedural fairness in relation to any decision on a matter inconsistent with legitimate expectations arising from such ratifications.  I agree with the applicant (and it is conceded by the respondent) that despite obiter statements in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 (also cf Palme at [94] per Kirby J; Sanders v Snell (1998) 196 CLR 329 at [45] per Callanan J), this Court must proceed on the basis that it is bound by Teoh.  It is necessary therefore to turn to the treaty obligations in relation to which the applicant says procedural fairness was not accorded.

37                  Article 23 of the ICCPR, upon which the applicant relies, relevantly provides that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.  The word ‘family’ is not defined in the ICCPR.

38                  The CROC is likewise accepted as a treaty obligation applicable in Australian domestic law.  Article 3.1 provides that ‘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 should be a primary consideration’. 

39                  The evidence from which the applicant contends it can be inferred that the former Minister did not have regard to these obligations is as follows.  First, it is said that the Issues Document does not make any reference to the ICCPR.  It is said that this should be also read in conjunction with par 32 in which it was said that there were no claims requiring assessment in relation to international obligations. 

40                  The applicant points to the reference to the CROC in par 19 and par 20 quoted above and to the advice there to the former Minister that as all of Mr Taylor’s children were over 18 years they were no longer eligible for consideration under the CROC.

41                  Against this advice to the former Minister, it is said that it was quite clear from the nature of the applicant’s application that he and his wife raised not only the issue of their adult children but also the interests of the infant grandchildren.  This expressly appears in the above quoted par 23 to par 24 where there is a specific reference to three grandchildren and likewise in par 25.

42                  The argument is also put that the decision-maker (in this case the former Minister) must be aware of the international obligations which he is required to take into account.  That is, he has to be aware of his obligation to protect the family unit in the manner provided for in art 23 of the ICCPR.  Support is sought for this is Luu v Minister for Immigration & Multicultural Affairs (2002) 127 FCR 24 and also at first instance in Luu v Minister for Immigration & Multicultural Affairs (2001) 65 ALD 161. 

43                  The case which the applicant puts is that the former Minister being not made aware of the provisions of art 23 of the ICCPR acted contrary to them in that he did not act to protect the family unit but rather acted to destroy the family unit by separating it and not taking into account the obligations in relation to the grandchildren.  Equally, it is said that the decision was contrary to the relevant provisions of the CROC in that it was not made in the best interests of the children because the grandchildren would be separated from their grandfather and possibly their grandmother. 

44                  It is contended by the applicant that it can be inferred from the fact that the ICCPR was not referred to in the Issues Document and that the Minister was told in par 20 of the Issues Document that all the applicant’s children were over 18 years, that he did not take into account the matters which he was required to take into account concerning the applicant’s family in accordance with those international obligations. 

respondent’s contentions

45                  The respondent submits that under the principles in Teoh it is not correct to say there is an obligation to take into account the best interests of the child.  Rather, the principle which the case expresses is that there is an obligation to advise a person who is going to be adversely affected by a decision if the decision-maker is not going to act in accordance with the legitimate expectation raised by a ratified international convention.  I accept that this is the correct way of expressing that principle. 

46                  Further, the respondent accepts that if the Court finds that it is proved on balance that the former Minister did not take the international conventions upon which the applicant relies into account, there will have been a denial of natural justice and a jurisdictional error.  This does not require, it is said, separate consideration of the question of whether, irrespective of natural justice and the requirements of the conventions, a substantive obligation exists to take into account the terms of the conventions in making the decisions.  Therefore, it is contended by the respondent that overall this is not a case raising the need for a notice pursuant to s 78B(1) of the Judiciary Act 1903 (Cth):  cf W157/00A at [113] per Allsop J. 

47                  The respondent then states that whereas the principle in Teoh is applicable to the CROC there is no authority making it applicable to the ICCPR.  It is contended that this latter convention is phrased in very different terms from Teoh and therefore the principle in Teoh is not applicable to it.  It is said that the terms of art 23.1 of the ICCPR are markedly different from the terms used in art 3.1 of the CROC which is specific in its reference to ‘actions concerning children’ and ‘best interests of the child shall be a primary consideration’. 

48                  On the question whether the Issues Document enables it to be inferred that the former Minister failed to have regard to the matters addressed in the applicant’s ground of review, the respondent addresses considerations arising from the three types of evidence before the Court. 

49                  The first is the content of the decision record and specifically the terms of par 36.  There the former Minister states that he has ‘considered all relevant matters’ and that these include ‘Mr Neville Taylor’s comments’.  These references, it is said, necessarily involve the inference that the former Minister took into account those comments of the applicant set out in par 23 in which Mr Taylor referred to his three grandchildren.  It is submitted for the respondent that it would be an unduly narrow construction of the reference there to ‘Mr Taylor’s comments’ to consider that it referred only to the communications from Mr Taylor and not those on his behalf by his wife and other referees. 

50                  The respondent also relies on the fact that the former Minister signed the record of decision on 21 December 2001 and that it was that Minister who had on 23 August of the same year brought into effect the Direction under s 499.

51                  The respondent then turns to the terms of the Direction as earlier set out in these reasons.  It is said, for the respondent, that quite clearly grandchildren could well fall within the description of ‘other close relationship’ referred to in par 2.3(c) of the Directions.  Further, attention is directed to the provisions of par 2.17 in which there is specific reference to art 23.1 of the ICCPR.  In par 2.19 there is a further reference to another aspect of the ICCPR.  It is said that the inference to be drawn by the making of the Direction by the former Minister who made the decision here in issue is that he did not fail to have regard to the matters which he had identified in the Direction. 

52                  Turning to the third source of evidence before the Court, the respondent submits that it is significant that the structure of the Issues Document follows the structure of the Direction.  Attention is directed to par 5 and the reference in it to the Directions and to the reference to primary considerations in par 6 and subsequent paragraphs.  Attention is also directed to the reference in par 19 to art 3.1 of the CROC.  While it is accepted by the respondent that the comment in par 20 is referable only to Mr Taylor’s children over 18 years, it is said that there cannot be any inference in the context of the whole of the Issues Document that the omission to refer to the grandchildren at that point has the consequence of supporting a conclusion that the former Minister failed to have regard to the grandchildren.  It is submitted that such inference cannot be open where it is apparent that the former Minister was made aware of the existence of the relationship between the applicant and the grandchildren. 

53                  The places at which the former Minister’s attention was directed to the grandchildren are then referred to in the submissions for the respondent.  They appear in pars 23, 24 and 25 of the Issues Document. 

54                  The respondent also refers to the annexures to the Issues Document.  These included submissions made by or on behalf of the applicant, which included extensive comments upon the effect the cancellation may have upon the applicant, his wife, children and grandchildren.  Also annexed to the Issues Document were governmental reports which stressed the nature and extent of the applicant’s family relationships over time. 

55                  In relation to par 32 of the Issues Document, the respondent submits that this should be understood as a reference to international obligations other than those contained in the ICCPR and the CROC.  This is said to be supported by the fact that the Issues Document, in addition to expressly referring to the CROC in par 19 of the Issues Document, referred in par 5 to the Directions which in turn picked up the reference to the ICCPR in par 2.17(a).

reasoning

56                  I agree with the submission for the respondent that this application does not raise the question of law of whether the former Minister was bound to take into account relevant provisions of either the CROC or the relevant provisions of the ICCPR.  That is because the applicant’s ground of review falls to be resolved on the facts involving the evidence which was before the former Minister. 

57                  I have already concluded that the Issues Document is not the statement of the former Minister’s reasons. 

58                  I do not consider that it can be inferred from the Issues Document, considered in the context of the other evidence before the Court, that the former Minister failed to have regard to the interests of the applicant’s grandchildren.  It is patent from the terms of the Issues Document that the existence of the grandchildren was drawn to his attention – see pars 23, 24 and 25.  While par 20 is confined in its content to Mr Taylor’s children, it was followed by the references to his grandchildren in the paragraphs I have identified. 

59                  Furthermore, it is patent that in making his decision the former Minister had regard to ‘Mr Taylor’s comments’.  Even not construing that as a reference to the correspondence from the applicant’s spouse, it would be a reference to his communication which involved explicit reference to his grandchildren. 

60                  It follows that even if the former Minister was under an obligation to have regard to the principles of art 23 of the ICCPR and the relevant provisions of the CROC, it cannot be established by way of inference that in the relevant circumstances he failed to have regard to the considerations which would have arisen had he approached the matter through the provisions of the conventions.

61                  In any event, it is patent that he had regard to the provisions of the CROC because this was drawn to his attention in par 19 of the Issues Document.

62                  Even if it cannot be inferred that the former Minister explicitly had regard to art 23 of the ICCPR, it is clear that in arriving at this decision he had regard to the position of the applicant’s family.  The portions of the Issues Document and the attachments to it previously identified in these reasons drew to his attention matters relating to that family including the grandchildren. 

63                  It follows that I am unable to accept the principal submission for the applicant that it can be inferred from the Issues Document (even given that such document is not the reasons for decision) that the former Minister did not have regard to the interests of the applicant’s wife, children and grandchildren and to the hardship which would be caused to them by what the ground of review describes as ‘the destruction of the family unit’.

conclusion

64                  For the above reasons I consider that the application cannot succeed.  Lacking the requisite strength, it is therefore unable to sustain a grant of leave.

Associate:

Dated:              20 August 2004