FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 248

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

V48 of 2004

RYAN J

18 MARCH 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs, including any reserved costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

Introduction

1                     There is before the Court an application pursuant to ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth), ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) and Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review the decision made by the respondent Minister (“the Minister”) on 10 December 2003 to cancel the applicant’s subclass 820 (Spouse) visa pursuant to s 501(2) of the Act.  The applicant seeks declaratory and injunctive relief and writs of prohibition and certiorari in respect of the respondent’s decision.

Background

2                     The applicant is a non-citizen of Australia and a citizen of Vietnam although he was born in Laos on 2 August 1964.  On or about 30 January 1998, the applicant arrived in Australia.  On or about 14 September 1999 the applicant was granted a subclass 820 (Spouse) visa which permitted him to travel to and enter Australia awaiting notification of the decision on his application for a subclass 801 (Spouse) visa. 

3                     On 7 August 2001, the applicant was convicted of trafficking heroin and sentenced by the County Court of Victoria to six years imprisonment with a non-parole period of four years.  On 15 December 2001, the applicant received a “Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act 1958” dated 7 December 2001.  The applicant also received a copy of the Minister’s Direction No 21 entitled “Direction under section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958” (“the Direction”).  On 16 May 2002, the applicant was further convicted on a charge of “intentionally cause injury” and sentenced to three months imprisonment to be served cumulatively with the earlier sentence. 

4                     On 20 May 2003, the applicant was interviewed by a delegate of the respondent in relation to the notice of intention to consider cancelling his visa.  On 21 May 2003 the applicant’s de facto spouse was also interviewed.  An officer in the Minister’s Department subsequently prepared for the Minister’s consideration a document entitled “Issues for Consideration of Possible Cancellation of a Visa Under s 501(2) of the Migration Act” (“the Minute”).  On 10 December 2003, the Minister cancelled the applicant’s visa pursuant to s 501(2) of the Act.  The Minister provided reasons for her decision.  On or about 23 December 2003, the applicant received a “Notice of Visa Cancellation Under Subsection 501(2) of the Migration Act 1958”.

Legislation

5                     Section 501(2) of the Act provides:

‘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                     Section 501(6) identifies the circumstances in which a person does not pass the “character test” for the purposes of s 501 and by par (6)(a) provides that a person does not pass the character test if:

‘(a)      the person has a substantial criminal record (as defined by subsection (7).’

7                     Section 501(7) defines a “substantial criminal record” for the purposes of the character test and by par (7)(c) provides that a person has a substantial criminal record if:

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

It is common ground that the applicant had a “substantial criminal record” as defined in s 501(7)(c).

The Minister’s Decision

8                     The respondent generally accepted that the relevant factual matters before the Minister were as set out in the following paragraphs [8]–[11] of the applicant’s submissions;

‘8.       The main matters before the Minister included evidence that the applicant had pleaded guilty at an early stage to the charge of trafficking, that he had been sentenced on the basis that he had been recruited into the trafficking at a late stage, had been involved for only a short time and had received no money from it.  The Minister did also have the applicant’s insistence that he had not known that he was transporting drugs in the boot of his car.  The Minister has also evidence that the first marriage of the applicant had broken down, that he was divorced, that he had a stable relationship with another woman, an Australian citizen, and that she was pregnant with their child.  She had evidence that the applicant’s new spouse was devoted to him, even to the extent of being prepared if necessary to sell up her house and business in Australia and go to Laos if he had to leave Australia.

9.         There was some evidence that the applicant had not realised that he was able to urge upon the Government that his visa not be cancelled. (Cf Annex J to the Minute, letter written in support of the applicant by Ms Frederick, dated 26 May 2003).

10.       The Minister was told in the Minute prepared for her by officers of her Department that the applicant’s spouse, Ms Tran, wanted the applicant to remain in Australia as it would be better for her children in the future. (Minute, page 10 para 37; page 11, para 43-45)

11.       The Minute also told the Minister that “Mr Tran has not made any claims that require assessment in relation to international obligations”. (Minute page 12, para 49).’

9                     In addition, Counsel for the Minister pointed out that there were other matters before the Minister which were less favourable to the applicant, including the fact that the applicant had claimed that he was to receive $10,000 for his involvement in the trafficking and that it had not been suggested in proceedings in the County Court of Victoria that the applicant was unable to appreciate the consequences of his actions or was vulnerable to suggestion or influence. 

10                  Accordingly, it was submitted for the respondent that the applicant knew that he had been transporting heroin, not clothes, and that he had not been “used” as he had claimed.

11                  The Minister gave her reasons for the decision in writing.  At [59] of her reasons, the Minister stated;

‘While not bound by Ministerial General Direction Number 21 - "Direction Under s499 Visa Refusal and Cancellation Under section 501 of the Migration Act" ("the Direction") - following my usual practice I proceeded in accordance with this Direction. I consider that the Direction properly indicates how the powers and functions of the kind here should be exercised. Accordingly, I gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the children. I then considered other relevant considerations in relation to Mr Tran.’

12                  In relation to the primary considerations, the Minister said;

‘Protection of Australian Community

60.       I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Mr Tran's conduct, the likelihood that such conduct might be repeated and general deterrence.

… …

62.       I considered that Mr Tran's criminal record shows that he has been convicted for the trafficking of a large quantity of heroin. If this consignment had not been intercepted by the Police these drugs would have resulted in widespread disruption to the community and put the lives of many Australians at risk. I considered this conduct to be very serious.

63.       Mr Tran's criminal record also shows that he has been convicted of an offence involving violence whilst imprisoned. I have noted that the sentence received indicates that the offence was at the lower end of the scale. However, the nature of the offence is of concern to me.

64.       The nature of Mr Tran's conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.

Risk of recidivism

65.       I considered that Mr Tran has also offended whilst in prison. I noted that this offence was carried out against the man who recruited Mr Tran to the organisation importing drugs. I noted that Mr Tran and those who have written letters of support on his behalf believe that Mr Tran was used by others who exploited his trusting nature. I also noted that Mr Tran has stated that he will not re-offend in the future.

66.       I considered that it was difficult to make a valid assessment of the likelihood of recidivism and overall I placed little weight on Mr Tran's risk of recidivism.

Deterrent to others

67.       In considering whether the cancellation of Mr Tran’s visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance may provide a deterrent effect.  I considered that this was not a significant factor and overall I placed little weight on this consideration.

Expectations of Australian Community

68.       I also gave primary consideration to the expectations of the Australian community. In accordance with the Government's view that is expressed in the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia.

69.       I also accepted, however, that the Australian community would have some compassion for Mr Tran's circumstance. Mr Tran's partner is an Australian citizen and she is expecting his child.

70.       In view of the seriousness of Mr Tran's offence, however, I believe that the Australian community would expect Mr Tran's visa to be cancelled and him to be removed from Australia. I gave great weight to this consideration.

Best Interests of the Children

71.       I also gave primary consideration to the best interests of the children. Mr Tran’s partneris due to deliver their first child in early February 2004.

72.       Mr Tran’spartner advised that she would accompany Mr Tran if he were returned to Laos. I found that it was reasonable to assume that the unborn child would not have access to educational opportunities and a health support system of a comparable standard to those available in Australia. I also found that the child would be raised in Laos and would therefore not have any assimilation problems. I gave the disadvantage the child would face being raised in Laos as opposed to Australia moderate weight.

Other Considerations

73.       In reaching my decision I also took into account other considerations and in particular the extent of disruption that would be caused to Mr Tran and others who would be affected.

74.       Mr Tran is a residence applicant who has been in Australia since January 1998. On 16 November 1998 Mr Tran made an application for a combined subclass 820 and 801 spouse visa. He was nominated for the grant of the visa by his then spouse, Ms Luong Kim Phuong, an Australian citizen. The application for permanent residence was assessed to satisfy the criteria in subclass 820 and he was granted a 820 visa on 14 September 1999. His 820 visa is still in effect. He has a change of circumstances following his arrest and incarceration, in August 1999, when he was separated from his nominator spouse. He commenced a relationship with his partner, Ms Tran, shortly after. He is now divorced from his nominator spouse.

75.              I noted that Mr Tran has not claimed that he will suffer hardship if he is returned to Laos.

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

77.              I noted that an associate of Mr Tran, Mr Peter Zaharias, is owed $20,000 by Mr Tran and has faced hardship as a result of this loan. I also noted that he believes that he will find it considerably easier to recover this money if Mr Tran remains in Australia. I gave this consideration low weight.

Conclusion

78.       I considered all relevant matters including (1) an assessment of the Character Test as defined by s501 (6) of the Migration Act 1958, (2) the Direction under s499 of that Act and (3) all evidence provided on behalf of/and by Mr Tran.

78.              In reaching my decision I concluded that the seriousness of Mr Tran's crimes and the expectations of the Australian community outweighed all other considerations above.’

Applicant’s Submissions

13                  The applicant contended that the Minister, in considering whether to cancel the applicant’s visa, fell into jurisdictional error by failing to take into account all matters which she was bound, on a proper construction of the Act, to take into account; (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986-1987) 162 CLR 24, (“Peko-Wallsend”), at 39-42 per Mason J).

International agreements

14                  Under this head it was submitted that, in light of s 4 of the Act which provides that its object is to regulate in the national interest, the entry to, and presence in, Australia of non-citizens, the respondent Minister was required, first, to take into account as a relevant consideration whether a decision to cancel the applicant’s visa might be in breach of, or affected by, Australian’s treaty obligations.  Secondly, it was submitted, the respondent was obliged to take into account as a relevant consideration the rights of any persons who might be affected by a decision to cancel the visa, so far as those rights were established under the Constitution.  Accordingly, the decision engaged Australia’s obligations under the International Covenant on Civil and Political Rights (Australian Treaty Series 1980 No 23) (“the Covenant”) to which Australia is a party and which the respondent did not take into account.

15                  The relevant provisions of the Covenant are;

‘Article 12     4            No one shall be arbitrarily deprived of the right to enter his own country

… …

Article 17      1            No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home …

                     2             Everyone has the right to the protection of the law against such interference or attacks

… …

Article 23     1             The family is the natural and fundamental group unit of society and is entitled to protection by society and the State

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

Article 24     3             Every child has the right to acquire a nationality

Article 25     Every citizen shall have the right and the opportunity without any of the distinctions mentioned in Article 2 [“distinction of any kind such as race, colour, sex, language, religion.”] and without unreasonable restrictions:

… …

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

16                  It was submitted that the Minister’s reasons state simply that “Mr Tran has not made any claims that require assessment in relation to international obligations” and there was no extrinsic evidence that she had regard to any of Australia’s international obligations as relevant to the decision to cancel the applicant’s visa.  It was said to be clear from the passages from the Covenant cited above that the decision did require consideration of Australia’s obligations under the Covenant. 

17                  Counsel for the applicant pointed out that the Minister had noted that the decision meant that the applicant’s spouse (now also the mother of his child) had to choose between permanent, or at least long term, separation from her husband and selling her business, her house and leaving Australia to travel to Laos with her husband.  This would obviously be difficult for the applicant’s wife who is an Australian citizen and does not speak Laotian.

18                  It was next observed that the Minister had also noted that, if the applicant’s visa were cancelled, the applicant’s spouse intended to leave Australia with him and “endure the hardship”.  That meant the decision therefore amounted to one which affected the family of the applicant most intimately.  The Minister, in making her decision, ought to have had regard to Australia’s obligation under the Covenant to protect the family as a natural and fundamental group unit of society.  Further, it was contended that the Minister ought to have considered whether the decision to cancel the visa affected the right of the applicant and his wife to found a family (See Art 23.1 and 23.2)

19                  It was submitted that the Minister should have considered that the obligations of Australia under Art 25 of the Covenant were relevant to her decision.  As the Minister apparently accepted that, if the visa were cancelled, the applicant’s wife would leave Australia and live in Laos in conditions of “hardship”, with the applicant, it was incumbent upon her to consider whether this was consistent with Australia’s obligation to provide every citizen with the right and opportunity to access, on general terms of equality, to public service in his country under Art 25(c) of the Covenant.  The applicant alleges that the Minister noted at [72] and [76] of her reasons quoted at [11] above that there would not be comparable educational and health support services in Laos but made no reference to Australia’s obligations under the Covenant.

20                  The applicant further submitted that the Minister had erred by failing to consider whether the decision to cancel the applicant’s visa amounted to a breach of Art 12.4 as it effectively deprived the applicant’s wife and any children of the right to enter “their own country”, Australia.  Nor, in the applicant’s submission, had the Minister considered whether the decision to cancel the visa amounted to an infringement of the right, under Art 12.4, of the applicant’s future children, as Australian citizens, to enter their own country and, under Art 25(c), to have access to public service in their own country.

Rights of citizens under Domestic Law

21                  It was contended under this head that the Minister had erred in failing to consider the effect of the cancellation of the applicant’s visa upon members of his family pursuant to the Australian Citizenship Act 1948 (Cth) (“the Citizenship Act”)and that this was a matter which bore upon the national interest.

22                  On this argument, the decision to cancel the applicant’s visa meant that, pursuant to s 10 of the Citizenship Act, the Australian citizenship of any future children born to the applicant and his spouse (an Australian citizen) would not be automatic but would be subject to registration.  The Minister did not consider whether the applicant and his spouse were aware of the provisions of the Citizenship Act, nor the level of ease or difficulty with which they might register as Australian citizens any future children who might be born in Laos.  Nor, it was contended, had the Minister given any consideration to the additional threat to the unity of the family if some of the children were Australian citizens and others were not.

23                  In this context it was argued that whether persons affected by the decision to cancel the applicant’s visa would be Australian citizens or not, and would have, and be able to exercise, the rights and obligations attaching to that status, including the rights of the Queen’s subjects under the Constitution, were clearly questions bearing upon the national interest.

Respondent’s Submissions

International agreements

24                  For the Minister, it was submitted that she had taken into account the Covenant and the issues identified by the applicant.  This was evident from the Minute, under the headings, “Best Interests of the Children” at pars [36]-[39] and [71]-[72] and “Other Considerations” at pars [40]-[48] and [73]-[79], particularly when read in light of the Direction which had guided the exercise of the Minister’s discretion.

25                  It was contended that the Minister had paid regard, as a primary consideration, to the best interests of the child to be born to the applicant’s partner, and had given that consideration moderate weight.  The Minister had also given significant weight to the hardship which would be suffered by the applicant’s spouse.

26                  As to Art 12.4 of the Covenant, it was submitted that the applicant’s spouse and the child would not be “arbitrarily deprived” of the right to enter Australia.  The Minister acknowledged that the applicant’s spouse had claimed that she and the child would accompany the applicant if he were removed.  The matter of disadvantage and hardship had been considered and weighed.

27                  The consideration raised by Art 17.1 and 17.2 of the Covenant, was said to have been specifically noted in par 2.17(a) of the Direction and to have been taken into account.  Paragraph 2.17 of the Direction recited;

‘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, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may 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 society, and is entitled to protection by society and the State.”

Article 17.1 provides that:

“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his Honour and reputation.”

(b)       genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

▪         in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

(c)        the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d)       family composition of the non-citizen's family, both in Australia and overseas;

(e)        the likelihood of the non-citizen ^-seeking to evade any outstanding legal matter or on-going liability;

(f)        the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

(g)       the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

(h)       any evidence of rehabilitation and any recent good conduct;

(i)        whether the application is for a temporary visa or permanent visa;

(j)        the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k)       the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.’

As the applicant’s spouse had stated that she and her child would accompany the applicant in the event of his removal from Australia and as the removal would not be otherwise than lawful, the consequences for the spouse and child could not constitute “arbitrary” or “unlawful” interference with that family unit as contemplated by Art 17.1 of the Convention.

28                  Article 23.1 of the Covenant, it was submitted, had also been specifically noted in the Direction under par 2.17(a) and had been considered.  As to Art 23.2, it was submitted that the decision did not bear upon the recognition of the rights of marriage and family, particularly in light of the stated willingness of the applicant’s spouse to accompany him to Laos.

29                  It was next said that there was no interference with the child’s right recognised by Art 24.3 of the Covenant to acquire a nationality.  If a child were born in Australia in February 2004 as expected, that child would be an Australian citizen.  The rights of any future children to citizenship would be determined pursuant to the Citizenship Act.  As to Art 25(c) of the Covenant, neither the applicant’s spouse nor his child would be denied access to public service in Australia by force of the decision.

30                  In any event, it was contended, there is no legal obligation on the Minister to ensure that her decision conforms with the Covenant.  The only relevant provisions of the Covenant are those which declare that the family is entitled to protection by society and the State and that this protection should enure for the benefit of a child who is a member of the family.  However, to deport a parent of a child with the expected, or likely, consequence that the child will accompany the parent is not to deprive the family or the child of the protection to which the Covenant refers. (Kioa v West (1985) 159 CLR 550, per Gibbs CJ at 570.  See also per Mason J at 588, Wilson J at 603-4 and Deane J at 634.)

31                  Further, the Minister submitted that the Covenant is an international instrument which, although ratified by Australia, has not been incorporated into or become part of Australian domestic law (Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366).  It does not give rise to rights or obligations enforceable under Australian law (Mohamed v Minister for Immigration & Multicultural Affairs [2002] FCA 4).

32                  In the Minister’s submission, ratification of the Covenant as an executive Act has no direct legal effect upon domestic law.  The rights and obligations contained in the Covenant are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions of the Covenant (Dietrich v The Queen (1992) 177 CLR 292).  Furthermore, it is accepted that treaties have “no legal effect upon the rights and duties of the subjects of the Crown (Chow Hung Ching v The King (1948) 77 CLR 499, at 478) and that aliens are not in a different position” (Bradley v The Commonwealth (1973) 123 CLR 557, at 582).  Mansfield J recently affirmed each of these propositions in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 563, at [44].

33                  The Minister contended that international treaties do not operate of their own force as a part of domestic law but only as an aid in the interpretation of statutes (Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324) and that the Court should, in the case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 38, and Fernando (supra).  See also Minister for Immigration v Teoh (1995) 183 CLR 273 at 287 and Newcrest Mines WA Ltd v Commonwealth (1997) 147 ALR 42 at 148.)  It was submitted that no ambiguity is discernible in the provisions of the Act which bear on the present matter.

34                  In the Minister’s submission there is no general principle of law that she was bound to take into account the terms of the Covenant when exercising the statutory power.  In response to the applicant’s reliance on the object of the Act in s 4(1), s 4(4) of the Act was said to further that object by providing for the removal or deportation from Australian of non-citizens whose presence is not permitted by the Act.  The ratification of a treaty is not a statement to the national community and no undertakings are given to citizens by reason thereof.  (See the dissenting judgment of McHugh J in Minister for Immigration and Multicultural Affairs v Teoh (supra) at 305-320.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, four of the five Judges of the High Court expressed strong criticism of the reasoning and result in Teoh.)

35                  It was next submitted by Counsel for the Minister that, even if there had been a failure to take into account a relevant consideration, which is not conceded, it was not a relevant consideration that she was bound to take into account and therefore the omission did not give rise to jurisdictional error;  (Peko-Wallsend, at 40 per Mason J).

36                  Finally, general support for the respondent’s submissions under this head was sought to be derived from par 2.24 of the Direction which states;

‘Notwithstanding international obligations, the deportation power must inherently remain a fundamental exercise of Australian sovereignty.  The responsibility to determine who should be deported in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.’

Rights of citizens under Domestic Law

37                  It was submitted for the Minister that the matters relied on by the applicant under this head had not been invoked by the representations made to the Minister nor were they matters which the Minister was bound to take into account as relevant considerations in exercising her discretion (Peko-Wallsend).  The persons whom the applicant claimed to be “affected by the decision to cancel the applicant’s visa” were “non-existent persons”.  Having regard to the purpose of the relevant provisions and the fact that the power involved the exercise of a broad discretion, the respondent had not erred in any material way by failing to consider the position of persons not yet born and who may never be born.  The Minister’s exercise of power was not affected;  Craig v The State of South Australia (1995) 184 CLR 163, at 179.  See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 351.

Resolution of the Issues

38                  The obligations identified by Mr Krohn of Counsel for the applicant are not, in my view, correlative to rights enjoyed only under the Covenant or some other international treaty.  They are, at least equally, enshrined in Australian municipal law.  Indeed, some of them are implicitly recognised in the distinction drawn by the Act itself between citizens and non-citizens. 

39                  The discretion reposed in the Minister by s 501(2) of the Act has often been described as “unfettered”;  see eg Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 where Cooper J at 410 adopted the view expressed by Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 that “the intention contained in s 501 [is] that the discretion be unfettered.”  In Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268, Drummond J observed, at 274 [17];

‘I also agree with Dowsett J [in Aksu] in thinking that this provision in Direction No. 17 is an unlawful fetter on the generally worded discretion conferred on the Minister by s 501(2).  When his Honour described the discretion conferred by s 501 as “unfettered”, he must, I think, be understood as saying that it was not fettered by any express limitation.  It is well-established that a statutory discretion which in its terms is unconfined  must, nevertheless, be exercised by reference to considerations identified by implication from the subject matter, scope and purpose of the statute.  See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.’

As Drummond J indicated in the passage just quoted, to say that the discretion is “unfettered” does not mean that the Minister is at large as to the matters which it may be relevant to take into account and those which are irrelevant to the exercise of the discretion.  The width of the discretion entrusted to the Minister by s 501(2) attracts the application of this oft-cited passage from the reasons of Mason J in Peko-Wallsend, at 39-40;

‘(a)      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: Sean Investments Pty Ltd v MacKellar[(1981) 38 ALR 363, at 375]; CREEDNZ Inc v Governor-General[[1981] 1 NZLR 172, pp 183, 196-197]; Ashby v Minister of Immigration [[1981] 1 NZLR 222, pp 225, 230, 232-233]. The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [[1948] 1 KB 223, at 228], that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".

(b)       What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [(1979) 144 CLR 45, pp 49-50], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [(1937) 56 CLR 746, pp 757-758], and Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492, at 505]. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.’

40                  A matter which can be discerned on the proper construction of the Act as a whole to be relevant to the exercise of that discretion does not achieve that quality because the same matter is stipulated in an international treaty or is the subject of one or more of Australia’s international obligations.  Thus, if, for example, the right of a child of the applicant to acquire Australian nationality were relevant to the exercise of the Minister’s discretion, the regard which the Minister should have to that right would not materially change because a similar right is recognised in Art 24.3 of the Covenant.  In that sense, the Minister was correct to state in her reasons that the applicant “has not made any claims that require assessment in relation to international obligations.”  I understand that to mean no more than that the applicant has not raised in his claims any matter that can be considered relevant to the exercise of the discretion only because of its relation to Australia’s international obligations. 

41                  It is true, as Mr Krohn submitted, that a consequence of a decision to cancel the applicant’s visa is that his spouse has to make an invidious choice between remaining in Australia and accompanying the applicant when he is returned to Laos.  However, the Minister was clearly alive to that consequence as she noted, at [72] of her decision, that “Mr Tran’s partner advised that she would accompany Mr Tran if he were returned to Laos” and recited in [73] that “I also took into account other considerations and in particular the extent of the disruption that would be caused to Mr Tran and others who would be affected.”  They were, presumably, Mr Tran’s spouse and their, then unborn, child. 

42                  Even assuming that the “entitlement” of the family to protection by society and the State which is enshrined in Art 23.1 of the Covenant is a matter which the Minister was bound to take into account in the exercise of the discretion in this case, it is not absolute in the sense that the protection must always override other actions, including actions by the State, which would impinge adversely on a family unit.  If the “entitlement” were absolute in that sense, it would prevail even where the circumstances of a criminal conviction would otherwise compel the incarceration of a family member.  As indicated above, I consider that the Minister was aware of the consequences for the other members of the applicant’s family and for the family unit as a whole of a decision to cancel his visa.  That the Minister did not relate those consequences explicitly to the entitlement recognised by Art 23.1 does not signify a failure to have regard to a matter which, on the proper construction of the Act as a whole, she was bound to take into account.  This was not a case where the relevant provision of the Covenant, assuming for the purposes of the argument that it was a matter which the Minister was bound to take into account, compelled the Minister to refrain from cancelling the visa.  As Gibbs CJ pointed out in Kioa v West (supra) at 571;

‘… … in any case the only relevant provisions of the Covenant and the Declaration are those which declare that the family is entitled to protection by society and the State and that this protection should inure for the benefit of a child who is a member of the family. To deport the parents of a child with the natural expectation that the child will accompany them is not in any way depriving the family or the child of the protection to which the Covenant refers. Nothing that the delegate did failed to conform with the provisions of the Covenant or those of the Declaration.’

43                  Likewise, the right to “found a family” enshrined in Art 23.2 of the Covenant is not absolute and is not expressed to be exercisable in all circumstances within the boundaries of a contracting State.  It is conferred on “men and women of marriageable age” and is conjoined with a right to “marry”.  As explained in relation to the entitlement of the family to protection, I am satisfied that the Minister was fully cognizant that the applicant had married and that he and his wife were in the process of “founding” a family which would consist of, at least, themselves and the child they were expecting.  The Minister was also well aware that the resultant “family” would be forced to leave Australia or be separated in consequence of a decision adverse to the applicant.  Accordingly, the likelihood of that departure or separation does not entail that the Minister failed to have regard to a relevant matter, as distinct from failing to relate the substance of that matter specifically to the terms of Art 23.2 of the Covenant.

44                  I do not regard Art 25(c) of the Covenant as conferring on every citizen a right to access to public service in his or her country irrespective of choices made by the citizen, including a choice, of the kind imputed by the Minister to the applicant’s wife, to live outside his or her country.  The expression “general terms of equality” connotes, in my view, that the access is to be enjoyed as far as the public service can reasonably be provided to the generality of citizens in the relevant country.  The right is not unqualified and may be lost or diluted by the citizen’s choice to move overseas or live in a remote location in his or her own country.  The Minister was clearly aware of the impact on access to public service by the applicant’s wife and child if the wife were to make just such a choice to accompany her husband to Laos when she noted, at par [72] of her decision that;

‘I found that it was reasonable to assume that the unborn child would not have access to educational opportunities and a health support system of a comparable standard to those available in Australia’

and at par [76];

‘It is also reasonable to assume the standard of care [the applicant’s wife] would receive while she is pregnant would not be comparable in Laos.  I gave this consideration significant weight.’

45                  In my view, the applicant has not established that the cancellation of his visa worked a deprivation, in contravention of Art 12.4, of anyone’s right to enter his or her own country.  On the assumption that the rights in question are those of the applicant’s spouse and child, it is far from clear that, if they were to accompany him to Laos, they would lose any right to re-enter Australia which they would possess by force of their Australian citizenship.  In the second place, Art 12.4 is directed at arbitrary deprivation of the right.  The reasoning explained at [44] above in relation to the loss by a citizen’s deliberate choice of the right to access, on general terms of equality, to public service in his own country applies with equal force to a loss by deliberate choice of a right to re-enter Australia.  In any event, as already noted, the first premise of this part of the applicant’s argument has not been established because the applicant’s wife and Australian-born child would presumably retain the right to enter their own country, Australia, if they were to accompany the applicant to Laos. 

46                  Whether there would be a similar right in any after-born child or children who may be born to the applicant and his wife in Laos would depend on the application to that child, or those children, of the relevant provisions of Australian citizenship law.  If that law permits them to enter this country as of right, that right will not have been arbitrarily lost.  Nor will the presumptive child or children, if they return to Australia, have lost any right of access, on general terms of equality, to public service in this country.  By corollary, any loss of access to public service in this country as a result of continued residence in Laos will stem, not from any deprivation of the right and opportunity, but from the conscious choice of the child’s or children’s mother.

47                  Section 10 of the Citizenship Act 1948 (Cth) provides, insofar as is relevant;

‘(1)      Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.

(2)       Subject to subsection (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:

(a)       a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident; or

(b)       the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.’

48                  The effect of those sub-sections is that the child, who has presumably been born in Australia to the applicant and his wife who is an Australian citizen, will himself or herself also be an Australian citizen.  However, if the cancellation of the applicant’s visa takes effect and the wife elects to accompany the applicant to Laos, any subsequent child or children born to them in that country will come within s 10B of the Citizenship Act which, so far as is relevant, provides;

‘(1)      A person born outside Australia (in this subsection referred to as the relevant person) is an Australian citizen if:

(a)       the name of the relevant person is registered for the purposes of this section at an Australian consulate, and the registration is the result of an application made within 25 years of the person's birth to register the person's name for those purposes; and

(b)       a person, being a parent of the relevant person at the time of the birth of the relevant person:

(i)        was at that time an Australian citizen who had acquired Australian citizenship otherwise than by descent;

…………

(1A)     If the relevant person referred to in subsection (1) has attained the age of 18 years, the name of the relevant person must not be registered for the purposes of this section unless the Minister is satisfied that the relevant person is of good character.’

49                  That means that any child or children who may subsequently be born to the applicant and his wife in Laos or elsewhere will only acquire Australian citizenship if the birth of any such child is registered for the purposes of s 10B at an Australian Consulate and the application for the registration is made within 25 years of the child’s birth.

50                  It is to be noted that the registration which confers citizenship pursuant to s 10B(1) follows automatically upon application if that is made before the child, the subject of the application, has attained the age of 18 years.  I do not consider that whether, on the hypothesis of such a child having been born overseas, application would be made by a parent or the child himself or herself was a matter which, on the proper construction of the Act, the Minister was bound to take into account in exercising the discretion under s 501(2).  Nor, in my view, did the answer to that question bear on Australia’s national interest.

Conclusion

51                  It will be apparent from the reasons already outlined that I have not been persuaded that the Minister has failed, in the exercise of her discretion to have regard to a matter which she was bound to take into account in the sense explained in the passage quoted at [39] above from Peko-Wallsend.  Because of my conclusion that the subject-matter, scope and purpose of the Act do not give rise to an implication that the Minister was bound to take into account the provisions of the Covenant as distinct from at least some of the rights or matters dealt with by those provisions, it is unnecessary to consider the argument advanced by Counsel for the Minister that those provisions do not form part of Australian municipal law.  Nor have the provisions of the Covenant afforded me any assistance in construing the Act to discern its scope, purpose and subject-matter in order to identify the matters which the Minister was bound to take into account in exercising the discretion under s 501(2).  In Chu Kheng Lim v Minister for Immigration (supra), Brennan, Deane and Dawson JJ observed, at 38;

‘We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty [See, eg, Garland v British Rail Engineering Ltd, [1983] 2 AC 751, at p 771; Attorney-General v Guardian Newspapers Ltd [No 2], [1990] 1 AC 109, at p 283, per Lord Goff of Chievely; Derbyshire CC v Times Newspapers Ltd, [1992] QB 770, at pp 811-812, 822-823, 829-830.]  The provisions of Div 4B which require that, in the circumstances which presently exist, the plaintiffs be detained in custody are, however, quite unambiguous.’

52                  While there may be ambiguity which obscures the identification of every matter which the Minister is bound to take into account in exercising the discretion under s 501(2), I have found that the matters to which Mr Krohn has pointed have either been taken into account by the Minister or were unambiguously not matters which she was bound to take into account.  That applied no less to the considerations said to be imported by the Citizenship Act than to those sought to be derived from the Covenant.  In the result, the application must be dismissed with costs.

Associate:

Dated:              18 March 2005