FEDERAL COURT OF AUSTRALIA

Chai v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1460

MIGRATION – Visas – Cancellation – Character grounds – procedural fairness – whether legitimate expectation that Minister would have regard to the Minister’s Direction – whether legitimate expectation that the Minister will have regard to the best interests of the children pursuant to the United Nations Convention on the Rights of the Child – content of the legitimate expectation – where children are Australian citizens – whether regard had to citizenship of children – whether practical injustice

MIGRATION – Visas – Cancellation – Character grounds – whether hardship to and/or the best interests of the children is a mandatorily relevant consideration

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514

Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 discussed

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

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 discussed

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

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied

Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 139 FCR 505 discussed, followed

Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450, 119 FCR 454 followed

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 applied

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

CHONG MUN CHAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1361 OF 2004

MADGWICK J

14 OCTOBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Madgwick J:

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for a review of a decision made personally by the respondent on 12 August 2004 to cancel the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).

2                     The applicant asserts that the respondent denied him procedural fairness and failed to take relevant considerations into account.

BACKGROUND

3                     The applicant is a Korean citizen born in 1962.  He arrived in Australia on a visitor’s visa on 17 June 1989.  He then married an Australian citizen and received a Transitional (Permanent) visa on 5 May 1994.  The applicant has two children, aged 13 and 2, both of whom were born in Australia and are Australian citizens.

4                     On 2 September 1998, the applicant was convicted in the New South Wales Supreme Court of two counts of manslaughter and sentenced to a minimum term of six and a half years’ imprisonment, with an additional term of three and a half years’ imprisonment.  These convictions were overturned on appeal on 25 August 2000.  However, on 14 March 2002, the High Court set aside that order and remitted the matter to the New South Wales Court of Criminal Appeal, where it was dismissed on 20 December 2002.  The applicant is due to be released on 31 October 2005. 

5                     The applicant had otherwise been convicted of a low range drink driving offence in February 2002, for which he received a fine and licence disqualification of four months.

6                     Section 501(2) of the Act provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test, as defined in s 501(6) of the Act, and the person does not satisfy the respondent that the person passes the character test.

7                     On 13 May 2003, the respondent’s Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) sent the applicant a Notice of Intention to Consider Cancelling a Visa under s 501(2) of the Act (‘the Notice’). 

8                     The Notice stated that the relevant grounds for cancellation were ‘substantial criminal history’ under s 501(6)(a) of the Act, and ‘past and present criminal conduct’ under s 501(6)(c)(i) of the Act.  A person has a ‘substantial criminal history’ where, inter alia, the person has been sentenced to two or more terms of imprisonment and the total of those terms is two years or more (see s 501(7)(d) of the Act).

9                     The Notice advised the applicant that the respondent would make the decision personally, and that the applicant had an opportunity to comment before the respondent considered whether to cancel his visa. 

10                  The Notice also advised that in making a decision the respondent would ‘have regard’ to the Minister’s Direction No. 21 titled ‘Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958’ (‘the Direction’).  A copy of the Direction was attached to the Notice.  The other presently relevant matter to which the Minister would have regard was the applicant’s Sentence Administration Report. 

11                  The Direction is a statutory instrument made by the Minister under s 499(1) of the Act.  Pursuant to s 499(2A), subject persons or bodies must comply with a direction when making decisions to refuse or cancel a visa under s 501 of the Act.  If a non-citizen does not pass the character test, the Direction provides that the decision-maker should have regard to three ‘primary considerations’ and relevant ‘other considerations’.  The Direction states that the decision-maker should adopt a balancing process that takes account of all relevant considerations (see par 2.2).  The Direction provides an inclusive list of ‘other considerations’.  At par 2.17 the Direction states that the decision-maker should generally give the ‘other considerations’ less individual weight than the ‘primary considerations’.

12                  Two primary considerations are the protection of the Australian community and members of the community, and the expectations of the Australian community.  In cases involving a parental or other close relationship with a child, the third primary consideration is the best interests of the child (see par 2.3 of the Direction). 

13                  Paragraphs 2.13 to 2.16 of the Direction speak of the best interests of the child.  Paragraph 2.15 states that, in general terms, the child’s best interests will be served if the child remains with its parents.  The paragraph states that there may be countervailing considerations here, including for example, any evidence of physical abuse or neglect of the child by the non-citizen.  Paragraph 2.16 lists a number of considerations to which the decision-maker should have regard.  These are:

(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 contract) 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 a 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.

14                  On 11 July 2003, the applicant completed a questionnaire in response to the notice.  Among other matters, the applicant indicated that his wife was an Australian citizen and that she and he had two children born in Australia.  He outlined the active role he had played in his daughter’s life prior to his incarceration.  (The applicant’s son was born after he was placed in custody.)

15                  In response to a question asking for any reason that the applicant cannot return to his home country, the applicant said:

‘My wife has lived in Australia since she was 7 years old.  Her family all live in Australia and are Australian citizens.  My children were born in Australia.  My daughter…has always lived here.  She does not speak the Korean language very well.  My wife and children will not leave Australia to live in Korea.’

16                  In response to a request for the applicant’s views on why his visa should not be cancelled, the applicant stated:

‘I feel that I can be a contributing resident in Australia.  I want my children to be raised in Australia.  If I have to return to South Korea, my wife and children will not go with me.’

17                  On 27 November 2003, the Department sent another letter to the applicant to advise him that his New South Wales criminal history would be taken into account by the decision-maker.  He was given another opportunity to respond.  The applicant chose to rely upon the information he had previously provided.

18                  On or about 30 January 2004, a Departmental brief concerning whether or not to cancel the applicant’s visa was provided to the Minister.  The brief included draft reasons for a decision to cancel the visa, but not for declining to do so.  The Minister adopted the draft reasons for her decision without amendment or addition.

The Minister’s Decision

19                  The applicant was notified by letter dated 19 August 2004 that the Minister had exercised her discretion to cancel his visa.  The ground upon which the applicant did not pass the character test was that contained in s 501(6)(a) of the Act.  The reasons for the Minister’s decision were attached to the letter.  In those reasons, the Minister stated that while she was not bound by the Direction, she had proceeded in accordance with the Direction, in accordance with her usual practice. 

20                  The Minister said that she had given primary consideration to the best interests of the applicant’s children.  She noted the applicant’s comments that should his visa be cancelled, his wife and children would not accompany him to South Korea.  The respondent also noted that the applicant’s children were born in Australia.  The respondent accepted that the applicant’s ‘two children would suffer significant hardship should [the applicant’s] visa be cancelled resulting in his removal from Australia’. 

21                  Under the heading ‘Other Considerations’, the respondent noted the hardship that the applicant’s visa cancellation would cause his wife, ‘who would then face raising two children alone without the support of her husband.’

22                  The Minister concluded as follows:

‘In reaching my decision I concluded that the seriousness of [the applicant’s] crimes, the consequences of his crimes and the expectations of the Australian community outweighed all other considerations above.’

APPLICANT’S SUBMISSIONS

23                  The applicant firstly submitted that the Notice had created a legitimate expectation in the applicant that, in making her decision, the respondent would have regard to the matters set out in the Direction, which include having regard to the best interests of the applicant’s children as a primary consideration.  The applicant submitted that any departure from that, without giving notice to the applicant, would amount to a denial of procedural fairness and a jurisdictional error, relying on Haoucher v Minister for Immigration and Ethnic Affairs (1990) CLR 648 at 655 per Deane J, 665 per Toohey J, 684 per McHugh J. 

24                  The applicant submitted that, in any event, the Notice was consistent with the legitimate expectation created by Article 3.1 of the Convention on the Rights of the Child (‘the Convention’) which, in the absence of contrary advice to the applicant, the Minister could not depart from without acting contrary to natural justice: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (‘Teoh’).

25                  The applicant submitted that the Minister’s reasons show that she did not act consistently with either expectation in two respects.  First, the Minister neglected to consider the fact that the applicant’s children were both Australian citizens when assessing the weight to be attributed to the hardship that would be caused to them by the removal of their father from Australia.  Although the brief to the Minister advised her that the applicant had two Australian-born children, nowhere in either the brief or the Minister’s reasons was there reference to the fact that the children were Australian citizens or consideration of their precise status. The applicant submitted that, consequently, the Minister did not appreciate the appropriate weight which, it was argued, was necessarily to be attributed to this factor. The applicant submitted that in a number of decisions having regard to the effect upon children of the removal of a parent from Australia, emphasis had been placed on the Australian citizenship of the children: Vaitaiki v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 150 ALR 608 at 614 (‘Vaitaki’) and Minister for Immigration & Multicultural Affairs v W157/00A (2002) 125 FCR 433.  The applicant submitted that this consideration was properly reflected in par 2.15(d) of the Direction.

26                  Second, the applicant submitted that the Minister had erred in her consideration of the applicant’s children by failing to take into account the consequences for the children of the break-up of the family unit that would follow the applicant’s removal from Australia, as distinct from the bare prospect of the applicant’s separation from the children.  The applicant referred to Vaitaki at 631 and Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133.  Although the respondent had considered the ‘hardship’ to be faced by the applicant’s wife, the Minister had not considered the consequences that the matters leading to the wife’s hardship would have for the children.  Also, as the reference to the wife’s hardship appeared under the heading ‘Other Considerations’, the inference was that it was given less weight.  Thereby, the applicant submitted, insofar as it bore on the best interests of the children, the Minister gave that factor less weight than the applicant had a right to expect under both the Direction and the Convention.

27                  As I understand it, the applicant further submitted orally that, independent of the Direction and Convention, and quite apart from issues of procedural fairness, the Minister had failed to take a relevant consideration, namely the children’s best interests, into account. He argued that the judgment of Gaudron J in Teoh supports the proposition that the children’s best interests are a relevant consideration. In Teoh her Honour suggested that, apart from the Convention, a reasonable person would assume that the best interests of the child would be given primary consideration.  Her Honour also stated that citizenship (as is the case here) carries with it a common law right on the part of the children and their parents to have a child’s best interests taken into account as a primary consideration. Further, the applicant argued orally that the Minister failed to take a relevant consideration into account by failing to consider relevant issues/matters such as those discussed by Allsop J in Perez v Minister for Immigration & Multicultural Affairs[2002] FCA 450 (at [119] – [120]), 119 FCR 454.

RESPONDENT’S SUBMISSIONS

28                  The Minister argued that the applicant could not have held a legitimate expectation based on the Convention as the Minister had notified the applicant in writing of the matters to which she would have regard, and these did not include the Convention; however they did include the Direction.  Neither the Direction nor the notice referred to the Convention.  As a result, the majority reasoning in Teoh does not apply.  In response, the applicant argued that what is required to displace a legitimate expectation as to the Convention is something specific and unambiguous and that the Minister’s Notice lacked this requirement. 

29                  The respondent acknowledged that the applicant had a legitimate expectation that the Minister would ‘have regard to’ the Direction.  However, counsel submitted, this expectation meant only that the Minister was obliged to have regard to, but not to implement, the considerations set out in the Direction.  The respondent also submitted that the present case did not invite an application of the reasoning of the majority in Teoh: as the Notice gave the applicant explicit advice on the matters to be considered by the Minister, which included the Direction, there was no scope for a legitimate expectation also to arise from the Convention. 

30                  The respondent submitted that the Minister did have regard to the Direction and gave attention to the best interests of the children.  Further, the respondent submitted that, were the applicant’s expectation to require the Minister to proceed as though bound by the Direction, a fair reading of the Minister’s reasons indicates that she did so.

31                  As to the citizenship status of the children, the respondent submitted that the Minister’s statement in the visa cancellation letter that she had proceeded in accordance with the Direction indicated that the Minister did have regard to the considerations listed in par 2.16, including the citizenship status of the children.  The respondent submitted that the Minister should be taken to have understood the children were Australian citizens, given that it was stated in the brief that the children were born in Australia to a mother of Australian citizenship.  The respondent submitted that the brief, which was signed and sent to the applicant as part of the decision record, could be read with the formal statement of the Minister’s reasons if there were any doubt as to what the Minister considered.  Further, the Minister’s reasons accepted that the children would continue living in Australia; the present case differed from Vaitaki in this respect. The Minister assessed the children’s interests on that basis.  Such was consistent with an understanding that they were citizens.  The respondent submitted that the Minister gave consideration to the children’s citizenship status to the extent required by the Direction, or any broader expectation that might arise from Teoh.

32                  As to the issue of the break-up of the family should the applicant’s visa be cancelled, the respondent submitted that the Minister was not under an obligation to have regard to this matter as it was not included in the Direction.  The respondent submitted that nevertheless, the Minister did have regard to the harm that would be caused to the children’s interests by the break-up of the family as well as by their separation from the applicant: the Minister had stated that the children ‘would benefit from living in an environment where both parents are present’.  The respondent submitted there was no failure to consider this matter to the extent required by the Direction.

33                  The respondent, relying on Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, [2003] HCA 6  (‘Lam’), submitted that the applicant had not, in any case, demonstrated any ‘practical injustice’ sufficient for there to have been a breach of procedural fairness.  In response, the applicant submitted that, where the applicant had a legitimate expectation that the best interests of his children would be taken into account as a primary consideration, the failure of the Minister to do so was sufficient to establish ‘practical injustice’ so as to constitute a denial of procedural fairness.  The applicant relied upon Tuncok v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 at [34]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168 at [25]; Dagli v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 541.

34                  The respondent submitted that the consideration of the best interests of a child is not a mandatorily relevant consideration in its own right, so that the discretion to cancel a visa under s 501 of the Act, when exercised by the Minister, is not fettered by such considerations (citing Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 139 FCR 505).

CONSIDERATION

(i) The Direction and Citizenship

35                  As to the Australian citizenship of the applicant’s children, in the first place the onus is on the applicant to show that the respondent did not have regard to it.  Not without some hesitation, my conclusion is that such an omission has been made out.  The material before the Minister certainly indicated a basis upon which the Minister might have drawn a conclusion that the children possessed Australian citizenship and, under cover of silence, such conclusion probably was drawn by the author of the briefing papers put before the Minister.  Nevertheless the Direction, to which the Minister said she had had regard, indicated that ‘whether the child is an Australian citizen or permanent resident’ should be had regard to by decision-makers.  Citizenship is apt to carry some rights and privileges that permitted permanent residency is not.  If the Minister had had regard to citizenship, one would expect to find some reference in the Minister’s reasons to the degree of weight accorded to that factor.  There is, however, no such reference.  The observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 are in point (at [69]):

‘Understanding s 430 as obliging the Tribunal to set out what were its findings on questions of fact it considered material … ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion.  Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion.  The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.  This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution.  For example, it may reveal that the Tribunal made some error of law of the kind mentions in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal.  It may reveal jurisdictional error.  The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration’ (footnotes omitted).

36                  The next question is whether that omission was, in the actual circumstances of the case, the source of any procedural unfairness.  In Lam, the headnote seems to sum up correctly the effect of the various judgments:

‘[W]hen a public authority represents that a particular procedure will be followed that may, but will not necessarily, affect the content of the requirements of procedural fairness.  To establish a breach of procedural fairness it must be demonstrated that the procedure adopted was unfair, not that an expectation engendered by a representation has been disappointed.’

37                  The applicant’s case is put on the basis of procedural fairness.  The suggestion must be that, by telling the applicant that the Minister would have regard to the children’s citizenship, but not doing so, the Minister treated the applicant unfairly.  Because the matter is concerned only with procedural fairness, the relevant unfairness, if any, must consist in failure to invite submissions from the applicant as to why the Minister should take the children’s citizenship into account.

38                  However, suppose the Minister had done that.  The applicant might only relevantly have suggested that: (a) hardship for children who are Australian citizens is more significant than for other children and (b) the children were Australian citizens.

39                  The material put before the Minister made it plain to her that the children could and would remain in Australia for the balance of their childhood.  The nature of the hardship was not their likely removal from Australia so as to be with their father but their father’s removal from them and their family unit in consequence of his removal from this country.  The inescapable inference is that the Minister decided the case at least upon the basis that the children had a right so to remain.  In the circumstances of this case, as distinct from others (where, for example, the parents might wish that their Australian citizen-children should accompany the parent at risk of expulsion from Australia), the fact of their citizenship could give them no relevant right beyond what the Minister must be taken to have assumed, except for the chance per se to have their hardship as Australian citizens regarded as more significant than that of children merely authorised to reside in Australia for the balance of their childhood.  But the Direction implies that a child’s right to permanent residency is to be treated as just as significant as Australian citizenship. 

40                  In my opinion, it is simply fanciful to suggest that there was any real possibility that the Minister might have been moved to a different position had she actually adverted to the fact of the children’s citizenship.  The potential for a lesser degree of care for the interests of children lawfully resident in Australia on a long term basis merely because they do not have citizenship should not lightly be ascribed to a Minister – a senior public officer and a political leader. 

41                  Thus, in substance and reality, the applicant lost no real opportunity to say anything to the Minister that might have made a difference.  There was, in this case, no actual procedural unfairness.  As Gleeson CJ put it in Lam (at [37]): ‘Fairness is not an abstract concept.  It is essentially practical.  …the concern of the law is to avoid practical injustice.’  In my view the departure of the Minister from her stated intention has, in this case, produced no practical injustice.

(ii) The Convention

42                  The Minister’s reasons say that she ‘gave primary consideration to the best interests of the children’.  The Minister ‘noted’ that the applicant’s daughter ‘would suffer considerable hardship if she is separated from her father’.  Of the two children, the Minister ‘accepted that [they] would suffer significant hardship’ in the event of their father’s removal from Australia and that they ‘would benefit from living in an environment where both parents are present’.  The Minister acknowledged difficulties should the children ‘wish to have contact with their father and he was in a different country’.  The Minister concluded, on this subject:  ‘I gave the difficulties that [the applicant’s] children would face considerable weight.’  Her final paragraph was:

‘In reaching my decision I concluded that the seriousness of [the applicant’s] crimes, the consequences of his crimes and the expectations of the Australian community outweighed all other considerations above.’

43                  Despite powerful criticisms in Lam of the reasoning of Mason CJ and Deane J (in their joint judgment) and of Toohey J in Teoh, the latter case has not been overruled and remains binding upon me.  Teoh, for present purposes, stands for the proposition that a person in the applicant’s position has a procedural right to have the Minister act in conformity within the Convention and treat the ‘best interests’ of the applicant’s children as a primary consideration in making her decision as to whether to cancel his visa.  As Allsop J put it in Perez (2002) 119 FCR 454 at [70]:

‘By reason of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 it was incumbent upon the Minister, in order to accord procedural fairness to Mr Perez, that if he were proposing to make a decision on a basis other than that the best interests of the children to be affected by the decision were a primary consideration, he would have to inform Mr Perez of that, and he would have to provide Mr Perez with an adequate opportunity of presenting a case against the taking of such a course: Teoh at 291-292, 302, 304-305; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 26 AAR 227;  150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133.  No such notice was given by the Minister or the department to Mr Perez.  Therefore, if the interests of Mr Perez’s three children and one step-child were not treated as a primary consideration in the making of the decision, that is that the decision was made on a basis other than that their best interests to be affected by the decision were a primary consideration, the decision was flawed and liable to be set aside under the AD(JR) Act.  I should add that Mason CJ and Deane J had expressed their views in Teoh at 291-292, on the basis of the existence of a legitimate expectation, absent statutory or executive indications to the contrary.  No such contrary indications were pointed to here.’

44                  Accepting that adoption of the Convention does create a legitimate expectation, absent notice to the contrary, that the best interests of the children will, in a case such as the present, be treated as a primary consideration, this Court has had occasion to indicate what such treatment necessarily implies.  In Perez at [118], Allsop J, drawing on Wan, said:

‘In Wan, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance:  see Wan at 138 [20].   Also, the Full Court at [30], set out elements of the best interests of the children which had not been elucidated by the Tribunal.  Here, nowhere did the delegate identify for himself those interests, or what they called for.  It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation.  It is a logical and appropriate starting point if the task is to be essayed reliably.  An appreciation of the facts set out at pars 8 to 11 of the reasons ([77] above) and of the contents of the “compassionate statements” referred to in par 17 of the reasons ([79] above) does not mean that from that material the bests interests of the children have been identified and appreciated, and taken into account as a primary consideration.  It is not just a matter for “compassion” as par 17 would tend to indicate was the view of the delegate.  “Compassion” is participation in another’s suffering, fellow-feeling, sympathy, pity inclining one to show mercy or give aid:  The New Shorter Oxford Dictionary (1993).  The interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country.  This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol, save for visits, or whether to release him, on appropriate conditions if thought necessary, so that he may be close to them  (as to two, as a father and step-father) or freely available to spend time with them (as to the other two).

The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children.  The delegate did not say that he had taken the children’s interests into account as a primary consideration.  That failure of expression would not be fatal if he otherwise displayed an appreciation of the kinds of matters to which I have referred.  He did not.

It is not enough to say, as in a sense the respondent submits, that all this is found in pars 8-11 and 17 of the reasons (see [77] and [79] above).  It is not.  The delegate certainly took facts concerning the family and children into account.  He recognised, and expressed himself in par 17 as balancing it, the element of compassion.  But that is not to undertake the necessary task, which is not based on compassion or recognition of suffering.  The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.’

45                  This aspect of Perez was approved by a Full Court in W157/00A, [74], [84], [88].

46                  It is true that the Minister did not, in her reasons, advert to what the children might stand to lose by not having their father available to them in this country as a support for their mother and their family as a whole.  His economic capacity (as a businessman and chef) and his attentiveness to his elder child clearly enough suggest that he might have a good deal to contribute economically, intellectually, emotionally and in other practically significant ways.  Either without such possible contribution or with a necessarily diminished contribution of those kinds of support, not only might his wife’s life be impoverished but, indirectly and as a factor not wholly captured by the notion of his mere separation from his children, so might the lives of the children.  The argument for the applicant is, essentially, that to really treat the interests of the children as a primary consideration compels attention, on the facts of this case, to those aspects of possible contrariety to their interests if their father were removed.

47                  Ultimately, however, and not without some misgivings, I do not think that the lack of express advertence by the Minister to those matters as among the issues for primary consideration justifies the conclusion that the interest of the children were not actually given primary importance, as the Convention and the legitimate expectation derived from adoption of it would mandate.  The Minister said that she ‘gave primary consideration to the best interests of the children.’  Further, despite the notably restrained language of the reasons tendered to and adopted by the Minister in discussing the plight of the applicant’s children, the words of Branson J in W157/00A at [77] may be applied here:

‘The issues document does not explicitly identify the decision that would be conducive to the best interest of the respondent’s children.  This is the appropriate starting point for an administrative decision-maker who is required to make a decision affecting a child where the best interests of the child are a primary consideration (Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133).  However, in this case, as the content of the issues document reflects, everything pointed towards the best interests of the children favouring a decision not to cancel the respondent’s visa.  It would, in my view, be unrealistic to conclude that this was not appreciated by the Minister.’

48                  Finally, the Court should not be too ready to assume that a Minister, even in the midst of a very busy administrative and political life, lacks empathy where the interests of children are concerned.

(iii) Failure to take relevant considerations into account?

49                  Some of the seeming obstacles advanced by counsel for the respondent to the notion that the best interests of the children of a person in the applicant’s position are a mandatorily relevant consideration may well, on proper analysis, melt away.

50                  As to Huynh, it is not easy, with respect, to understand what character the majority ascribed to the nature of the relevant s 501 discretion.  A suggestion in Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 that the discretion is ‘unfettered’ was not disapproved.  However, their Honours apparently sought to apply a characterisation drawn from Drummond J’s observations in Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 that ‘although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute’.  With respect, that latter formulation is distinctively preferable to, and quite different from, the former.  The s 501 discretion is to be exercised in relation to particular visa holders rather than all visa-holders exhibiting a particular standard of character or past conduct.  Further, the subject matter of s 501 includes involuntary disruption, which might involve great hardship, to the lives of such individuals and their families, the latter possibly being Australian citizens, permanent residents and/or vulnerable children.

51                  In this context, some of the more far-reaching observations in Huynh (see, e.g. [74]) might require confinement to the rather narrow context of the dispute in that case.  Taken literally and if intended as generally applicable observations, they appear not to stand with the care taken in the High Court in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 to stress that ‘genuine consideration’ must be given to the issues raised by s 501 … and to bring to bear on those issues a mind … open to persuasion’ (emphasis added) (per Gleeson CJ and Gummow J at [105]).  Hayne J allowed that the Minister might develop and form –

‘a view that, in the absence of some counteracting consideration, certain kinds of past criminal conduct would sufficiently demonstrate that the person was not of good character … .

There is no prejudgment in such a case because of the nature of the statutory task.  It is to reach a degree of persuasion (satisfaction) that a value‑laden standard (“is not of good character”) is met.  The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa.  It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual's case.

Determining the standard in that way would not fetter the exercise of a discretion.  The relevant discretion which falls for exercise is the discretion to refuse to grant or, in these cases, to cancel a visa if s 501(2) applied to the person.  All that the Minister does, in the circumstances posited, is announce the particular construction that the necessarily imprecise statutory standard will be given in certain kinds of case.

Once it is recognised that there are elements of the decision‑making process about which a decision‑maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly. …’

52                  Callinan J said:

‘The Minister wrote that … decisions made under s 501 involve “a two-step consideration”.  He was correct in that.  Even if a person be found to be not of good character there is still a discretion to grant or not to grant a visa.  It was his opinion, he then implied, that it was an incorrect exercise of the Tribunal’s discretion, to grant the respondent a visa, despite the respondent’s sentence of six and a half years imprisonment.  That was a view that was open.  It is also a view that is not inconsistent with s 501(2), the operation of which may be dependent upon past criminal conduct as the most relevant and important measure of the absence of good character in many cases.

…

… the Minister … made clear that the seriousness of the crime was an important consideration, not, it may be noted, exclusively so.  He said, and I agree, for the reasons I have stated that the past criminal conduct of the respondent did not appear to have been given sufficient weight in the Tribunal’s deliberations.  There is a clear difference between attaching sufficient weight to a factor and treating it as the exclusive factor to be taken into account in reaching a decision.  It was also open for him to say, as he did, and having regard to the express words of s 501(2), that the seriousness of the crime was a primary consideration, particularly, as he later put it, in the case of crimes involving violence and drugs, when it would be a significant, (but again not the exclusive) consideration.  

…

Past convictions, especially for very serious crimes, are highly relevant matters of primary importance but not exclusively so, under ss 501 and 502 of the Act.’  (Emphasis added.)

53                  Jia Legeng was apparently not drawn to the attention of the Court in Huynh.

54                  Another possible objection raised by the respondent stems from W157/00A.  In that case, Allsop J said in obiter dictum (at [113] – [115]):

‘For my part the question whether a Minister of the Commonwealth is obliged by law (absent a contrary intention in a Commonwealth statute) to take into account the best interests of children is a matter arising under the Constitution, or involving its interpretation, because it involves the question as to the content, by way of immanent obligation, of the executive power vested by s 61 of the Constitution.  To say that there is a common law obligation on a Minister or other member of the executive to act in a particular way in the exercise of power “by the common law” is to give content by way of circumscription to the exercise of that power.

Gaudron J in Teoh, supra, was of the view that the body politic, and within it the Commonwealth executive, had a duty to vulnerable individuals, including children, just as kings had such a duty arising from the position of the Crown as ‘parens patriae’.

Given the views to which I have come as to the inability to conclude that the best interests of the children were not taken into account, the issue does not arise.  Thus it is neither necessary nor appropriate (in particular in the absence of the issuance of notices under s 78B of the Judiciary Act) to express any view on this question.  However, it is not impermissible or inappropriate to say that the question is, I think, one of importance and some difficulty.  Whatever other elements to the problem there may be, the following issues may attend any consideration of the question, if it were to arise: the origins and nature of the parens patriae jurisdiction of Courts; the notion of the ‘doctrine’ (if it be correctly so characterised) of parens patriae, its relationship to wardship powers and its place as part of the prerogative of the Crown; whether the power or jurisdiction in the Crown or its Courts called ‘parens patriae jurisdiction’ carried with it obligations of, or duties on, the Crown and, if so, the nature and any limits of those obligations or duties; whether the question of the existence of property to which the child may have been entitled affected the nature and extent of any jurisdiction, obligations or duties in connection with the interests of children; whether, if part of the prerogative, the parens patriae jurisdiction, obligations or duties was or were at some point wholly delegated to Chancery or to the Lord Chancellor; whether, if part of the prerogative at the end of the nineteenth century, the parens patriae obligations or duties became part of the fabric of the Commonwealth executive power under s 61 of the Constitution and, if so, to what extent; the effect, if any, of the notion of citizenship in the Australian federal polity on the content of the executive power within s 61, irrespective of whether s 61 contained this aspect of the inherited prerogative; whether a relevant statute or other matter has limited or otherwise affected any such obligations or duties if they could otherwise be said to be within s 61; and whether the resolution of this question is one appropriately to be undertaken by an intermediate appellate court.’

55                  There was no argument before me that there is an ‘immanent obligation’ as part of the constitutional executive power at large that the best interests of children affected by any executive decision-making must be taken into account.  In any case, such a proposition, it might well be thought with respect, has only to be stated to be discarded: children may be potentially affected only tangentially or only to a small degree; strong contextual indicators falling short of express statutory language might in any case negative any such duty.

56                  By contrast, what is in issue here is whether orthodox considerations of statutory interpretation as applied to s 501, with its obvious capacity for direct, immediate and serious impact on the interests of the children of persons made the subject of s 501 decisions, make such interests a mandatorily relevant consideration.  That question raises no constitutional issue, whether of immanent obligation or otherwise.

57                  Subject to any countervailing authority, it seems to me that, on general principles, a court may readily impute to Parliament (absent clear and express indication to the contrary), the intention that such hardship must be taken into account before the decision is made.  As Callinan J said in Sanders v Snell (1998) 196 CLR 329, 351 (footnote 65), in Teoh the Court was ‘dealing … with a case in which the interests of children were in issue, matters in respect of which any civilised person would hold expectations, whether referable to a United Nations Convention or otherwise’.  Why ought not a court impute to Parliament similar civilised values and an intention that the Minister should observe them in exercising the ultimate discretion under s 501?  The interests of children are highly likely to be immediately and considerably affected by the cancellation of their parent’s visa.  Are Australians through their Parliament prepared necessarily to countenance any degree of harm to the interests of the children of a non-citizen criminal as the price of ridding the nation of him?  In QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136, I offered the following:

‘In relation to the Migration Act itself, in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 304 – 305, Gaudron J offered, as an alternative to the espousal by Mason CJ and Deane J of a legitimate expectation in a potential deportee, that Australia’s international obligations under a treaty, not enacted into domestic law, to treat the interests of a child as a primary consideration, would be taken into account in a decision on whether to deport him for reasons of bad character.  (McHugh J’s vigorous dissent has been influential – see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 27 ff).  Her Honour viewed the reasonable demands of generally accepted standards of humane values and conduct as decisive, regardless of any treaty (at 304):

‘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 observed of this in Sanders v Snell (1998) 196 CLR 329, 351 (at fn 65) that, in Teoh, the Court was ‘dealing … with a case in which the interests of children were in issue, matters in respect of which any civilised person would hold expectations, whether referable to a United Nations Convention or otherwise’.

Any reasonable, civilised person or State party to the Refugees Convention would, in my opinion, understand the contracting States’ obligations to refugees in the context of the likely circumstances of refugees.  Refugees recognized as such are people who have found themselves outside their country of nationality and have been found rationally to fear persecution if they are returned there.  The context includes their probable dislocation and consequent special need to re-establish a degree of stability in their and, often, their families’ lives.  In interpreting the Convention, the possible burden to the States of providing more than protection for the least possible period strictly necessary must be balanced against the demands of humane treatment of the people concerned and the hardships of returning them to places where, or of which, they have held genuine and serious fear, unless their future safety is reasonably assured.’

58                  However the foregoing considerations need not, in my opinion, be pursued further. 

59                  I am prepared to assume, applying Drummond J’s orthodox formulation, that the s 501 discretion to cancel an individual’s visa must be exercised ‘by reference to considerations identified from the subject matter, scope and purpose of the statute’.  I further assume that such subject matter, scope and purpose compel the view that hardship to that individual and to infant children of the individual must be taken into account by the Minister.    Let it also be assumed that taking the potential hardship to the children into account involves a consideration of their best interests. 

60                  The question would then arise: did the Minister, as a matter of fact, fail to take the best interests of the children into account?

61                  The Minister said that she had taken their best interests into account.  She gave attention to the effects of cancellation of their father’s visa upon them.  The substantive duty that I assume to exist, as a matter of statutory construction, in the Minister to take the best interests of the children into account is not, in my opinion, properly subdivisible further.  It is true that an aspect of their interests has not been expressly addressed by the Minister.  Let it be assumed therefore that, as suggested by the applicant, it was not addressed at all.  In the circumstances of this case, where considerable ongoing support for the children’s mother and for them in Australia might have seemed probable, it may simply be that the Minister did not regard that aspect as of any substantive significance.  There was, as it seems to me, no duty to deal with every aspect of the children’s interests that others might well regard as significant.  The assumed duty was genuinely and authentically to consider hardship to them and, therefore, their interests.  It is not possible to assume a statutory duty to consider every aspect of those interests or to give to particular aspects particular degrees of significance.  The court may not tell the Minister how to take mandatorily relevant considerations into account.

62                  Further, as a matter of the substantive content of the of the s 501 discretion (as distinct from procedural obligations attending its exercise) it was, as it seems to me, for the Minister to decide whether to give ‘primary’ significance or otherwise to her conception of the children’s best interests.  For example, in the case of a repeat rapist, the enormity of his crimes might well relegate even more seriously detrimental effects of the visa cancellation on his children’s welfare to quite minor significance. 

63                  In this regard, the substantive question: ‘what is a mandatorily relevant consideration as a matter of the construction of a domestic statute?’ may well be a quite different thing from what a visa holder has a procedural right to assume, following Teoh, unless the decision maker disabuses him/her of the validity of the assumption.  As McHugh and Gummow JJ remarked in Lam: 

‘…in the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.’

64                  The spelling out by Allsop J and other judges of the logical sub-duties that arise under a procedural duty to take into account ‘unenacted international obligations’, having a precise content fixed by the terms of an international instrument, have much less relevance to the posited substantive duty to have regard to hardship to, and derivatively from that notion, the best interests of, the children.

65                  It follows that, in my view, there was no substantive failure by the Minister to take into account a relevant consideration.

66                  The appeal will be dismissed with costs.

Associate:

Dated:              14 October 2005