Heng Kim Chhun v Minister for Immigration
[2006] FMCA 203
•20 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENG KIM CHHUN v MINISTER FOR IMMIGRATION | [2006] FMCA 203 |
| MIGRATION – Application for review – s.501A discretion of the Minister – decision of the Administrative Appeals Tribunal set aside by the Minister – refusal to grant a visa – separate consideration of character test and national interest – application dismissed. |
| Migration Act 1958 (Cth), ss.501, 501(1), 501(2), 501(3), 501A, 501A(1), 501A(2), 501C, 501G, 128, 499, 501A(3)(a), 501A(2)(a) |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Jahnke v Minister for Immigration & Multicultural Affairs (2001) FCA 897 Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) CLR 507 Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) FCAFC 256 Aksu v Minister for Immigration & Multicultural Affairs (2001) 65 ALD 66 Ruhl v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 401 Javillonar v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 311 Taylor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 208 Djalic v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA FC151 |
| Applicant: | HENG KIM CHHUN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 740 of 2005 |
| Judgment of: | Hartnett FM |
| Hearing date: | 23 January 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 20 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr T.A. Bunjevac |
| Counsel for the Respondent: | Mr D. Star |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant to pay the costs of the respondent fixed in the sum of $6500.
Certify for counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 740 of 2005
| HENG KIM CHHUN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
History
The applicant is the Australian sponsor of her husband, Sreng Samnang (the visa applicant). The proceeding is an application for review of a decision adverse to the visa applicant made by the respondent personally on 12 April 2005 pursuant to section 501A(2) of the Migration Act1958 (Cth) (the Act). The application for review is dated 21 June 2005. The grounds for review as set out in the application are as follows:
1.“The refusal to grant the visa was made without jurisdiction or contained a jurisdictional error in that the Minister failed to take relevant matters into consideration when arriving at the visa cancellation decision: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 (the "Peko‑Wallsend" principle). In doing so, the Minister deprived the applicant of the possibility of a successful outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("The Aala" Principle).
2.The refusal to grant the visa was made without jurisdiction or contained a jurisdictional error in that the Minister did not comply with the rules of natural justice when exercising her discretion to refuse the spouse visa.
3.The Minister unlawfully fettered her discretion and denied the applicant natural justice and/or procedural fairness when she acted upon the contents of a document entitled "Issues for Possible Visa Refusal under section 501A of the Migration Act 1958" (the Issues Paper), and ignored other evidence available to her, and the independent findings of fact made by, the Administrative Appeals Tribunal. In doing so, the Minister deprived the applicant of the possibility of a successful outcome ("The Aala" Principle).”
The applicant did not file contentions of fact and law, but the particulars to the ground of review in the application are detailed and articulate arguments for the applicant which were relied upon by the applicant.
The history of this matter is as follows, which is a history as set out in the decision of the Administrative Appeals Tribunal of 27 September 2002:
a)“The visa applicant was born on 1 January 1957 in Cambodia. On 9 September 1996 he lodged an application for a subclass 676 tourist visa under the identity of PHEN Hean Mao, date of birth 25 January 1952. In this application he claimed he was married to BITH Kim Sean and had five children, and that he wanted to visit his brother-in-law, LEAN Kim Heang, residing at 53 Clyde Street, Thornbury, Victoria. This application included a family book in the name of PHEN Hean. The application was refused.
b)On 2 June 1997 the visa applicant lodged an application for a subclass 100 spouse visa under the identify of SRENG Samnang, date of birth 1 January 1957. This application included a family book in the name of Sreng Samnang.
c)On 19 March 1999 officers from DIMIA in Cambodia conducted a field check in the vicinity of the address by the visa applicant in relation to his subclass 100 application. The field check results indicated that the visa applicant was known in the community as the father of two children, and the review applicant was recognised as his second wife. However, the visa applicant was also known in the community as "MAO."
d)This visa was granted on 2 October 2000 but was subsequently cancelled under section 128 of the Act on 4 October 2000 when the subclass 676 visa application came to light.
e)The visa applicant attended an interview with DIMIA at the Australian embassy, Phnom Penh, on 16 October 2000. The visa applicant admitted he paid an agent to organise the subclass 676 visa for him so that he could work in Australia and make more money. The visa applicant claimed that the bogus documents and false claims were organised and submitted by the agent. The DIMIA officer noted that the visa applicant's identity documents in the name of Sreng had all been obtained around 1997. The DIMIA officer also noted that the photograph on the identity card, purportedly issued in 1992, was identical to the photograph taken and submitted with the 1997 application. The visa applicant claimed that the identity card had been arranged by someone else.
f)On 13 November 2001 the visa applicant lodged the present application for a subclass 309 spouse visa under the identity of Sreng Samnang, dated of birth 1 January 1957. On this application the visa applicant declared he had been married to SOM Afth until her death following childbirth on 15 August 1984 and that he had two children from this marriage. He also declared that LEAN Kim Heang was the brother of the review applicant. He did not declare that he had previously been known by the name PHEN Hean Mao.
g)The visa applicant also declared that the review applicant's previous marriage had ended with the death of her spouse. Documents that had been provided in respect to the subclass 100 visa, however, contended that the relationship had ended in separation.
h)Officers of DIMIA processed the application and became aware of some discrepancies in the visa applicant's various applications. On 17 December 2001 the visa applicant was again interviewed by DIMIA in Phnom Penh. At this interview he claimed he had not been known under a previous identity, nor applied for a tourist visa before. When questioned further he claimed that the agent had lodged the tourist visa application, and that he himself could not be held responsible for the false information therein. The visa applicant also claimed that he had not known LEAN Kim Heang until after the marriage to the review applicant (on 18 May 1997). However, in the tourist visa application in 1996, the visa applicant had identified Lean as his brother in law.
i)On 17 December 2001 the visa applicant again attended the Australia embassy in Phnom Penh and was given notice of the intention to refuse his application for a subclass 309 spouse visa.”
Thereafter, on 20 December 2001, a delegate of the Minister found that the visa applicant did not pass the character test, as set out in section 501 of the Act (on the ground of past general conduct) and the delegate did not exercise the discretion not to refuse the grant of a visa.
The applicant sought review of this visa cancellation decision at the Administrative Appeals Tribunal. By its decision of 27 September 2002 the AAT set aside the visa cancellation decision, finding that the visa applicant did not fail the character test and remitted the matter to the respondent for reconsideration with a direction that the visa application not be refused. The AAT's decision is an "original decision" within the meaning of section 501A(1) of the Act.
Legislation
Sections 501 and 501A of the Act relevantly provide:
“Refusal or cancellation of visa on character grounds
Decision of minister or delegate - natural justice applies
(1)The minister may refuse to grant a visa to a person if the person does not satisfy the minister that the person passes the character test.
Note: character test is defined by subsection (6).
(2)The minister may cancel a visa that has been granted to a person if:
(a)the minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the minister that the person passes the character test.
Decision of minister - natural justice does not apply
(3)The minister may:
(a)refuse to grant a visa to a person; or
(b)cancel a visa that has been granted to a person;
if:
(c)the minister reasonable reasonably suspects that the person does not pass the character test; and
(d)the minister is satisfied that the refusal or cancellation is in the national interest.
(4)The power under subsection (3) may only be exercised by the minister personally.
(5)The rules of natural justice, and the code of procedure set out in subdivision AB of division 3 of part 2, do not apply to a decision under subsection (3).
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct; the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
Periodic detention
(8)For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
(9)For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a)a residential drug rehabilitation scheme; or
(b)a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Pardons etc.
(10)For the purposes of the character test, a sentence imposed on a person is to be disregard if:
(a)the conviction concerned has been quashed or otherwise nullified; or
(b)the person has been pardoned in relation to the conviction concerned.
Conduct amounting to harassment or molestation
(11)For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a)it does not involve violence, or threatened violence, to the person; or
(b)it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Definitions
(12)In this section:
"court" includes a court martial or similar military tribunal.
"imprisonment" includes any form of punitive detention in a facility or institution.
"sentence" includes any form of determination of the punishment for an offence.
Note 1: visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: for notification of decisions under subsection (1) or (2), see section 501G.
Note 3: for notification of decisions under subsection (3), see section 501C.
501A
Refusal or cancellation of visa - setting aside and substitution of non-adverse decision under subsection 501(1) or (2)
(1) This section applies if:
(a)a delegate of the minister; or
(b)the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c)not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d)not to exercise the power conferred by subsection 501(1) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or tribunal that the person passes the character test and whether or not the delegate or tribunal reasonably suspects that the person does not pass the character test.
Action by minister - 8 - natural justice applies
(2)The minister may set aside the original decision and:
(a)refuse to grant a visa to the person; or
(b)cancel a visa that has been granted to the person;
if:
(c)the minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d)the person does not satisfy the minister that the person passes the character test; and
(e)the minister is satisfied that the refusal or cancellation is in the national interest.
Action by minister – natural justice does not apply
(3)The minister may set aside the original decision and:
(a)refuse to grant a visa to the person; or
(b)cancel a visa that has been granted to the person;
if:
(c)the minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d)the minister is satisfied that the refusal or cancellation is in the national interest.
(4)The rules of natural justice, and the code of procedure set out in subdivision AB of division 3 of part 2, do not apply to a decision under subsection (3).
(4A)Under subsection (2) or (3), the minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by 501(1) to refuse to grant a visa to the person.
Minister's exercise of power
(5)The power under subsection (2) or (3) may only be exercised by the minister personally.
(6)The minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the minister is requested to do so, or in any other circumstances.
Decision not reviewable under part 5 or 7
(7)A decision under subsection (2) or (3) is not reviewable under part 5 or 7.
Note 1: for notification of decisions under subsection (2), see section 501G.
Note 2: for notification of decisions under subsection (3), see section 501C.”
In considering whether a non-citizen is not of good character, decision‑makers are required by Ministerial direction number 21 – made under section 499 of the Act to provide guidance in making decisions to refuse or cancel a visa under section 501n to consider a number of matters which, where relevant, would in the absence of any countervailing factors constitute a failure to pass the character test. Ministerial direction number 21 binds the Administrative Appeals Tribunal.
One of the matters which, if relevant, would in the absence of any countervailing factors constitute a failure to pass the character test is:
“Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement.” [1.9(b)]
If a person fails to discharge his or her onus to satisfy the AAT that he or she passes the character test, then Ministerial direction number 21 requires the Tribunal, when considering the exercise of the residual discretion under section 501 of the Act, to adopt a balancing process between three "primary considerations" and a number of "other considerations". The other considerations are to be generally accorded less individual weight than the three primary considerations.
The applicant was provided with a notice of intention to consider refusing a visa under section 501A of the Act and provided with an opportunity to respond to such notice. The applicant did so respond, and such responses were before the Minister in her consideration of whether to refuse the visa of the applicant under subsection 501A(3)(a) of the Act.
In correspondence to Mr Sreng from the Australian embassy, Phnom Penh migration section, and dated 27 May 2003, matters to be taken into account by the Minister were set out for Mr Sreng, providing him with an opportunity to comment. Attached were the Minister's direction number 21 and the full text of sections 501 and 501A of the Act. In essence, particulars relating to the three visa applications made – being the subclass 676 tourist visa of 9 September 1996; the subclass 309 spouse visa application of 2 June 1997 and the subclass 309 spouse visa of 13 November 2001 – were set out.
It was noted that Mr Sreng in his first spouse visa application had failed to declare that he had previously been known as Phen Hean Mao and in that visa application declared contradictory information to that contained in the previous tourist visa application. Although Mr Sreng obtained a subclass 309 spouse visa on 2 October 2000, subsequent to the grant of that visa the subclass 676 tourist visa was discovered, bearing his photograph under the identity of Phen Hean. Consequently the subclass 309 spouse visa was cancelled on 4 October 2000 on the basis of identity fraud and falsely declaring other personal particulars.
On 16 October 2000 Mr Sreng was provided with an opportunity to respond to the cancellation notice at interview. He admitted that an agent prepared the false application on his behalf for payment and that he intended to work in Australia.
In relation to his subclass 309 spouse visa application, the correspondence noted that at interview at the embassy in Phnom Penh on 17 December 2000, Mr Sreng maintained his claim that the tourist visa was completed and lodged by an agent for payment and that he had no knowledge of the information declared. He claimed for that reason it was not his application and that he had therefore not provided false information with regards to his current spouse application by failing to declare the previous identity of Phen Hean. On 17 December 2001 he was notified of an intention to refuse his spouse visa under section 501 character provision based on his past and present general conduct.
He disagreed with the finding that he was not of good character and the AAT finding in relation to the previous tourist visa application was noted being:
“(I) have little difficulty in concluding that the visa applicant was aware that the payment was made in order to obtain a visa other than by legal means.”
Particulars relating to misrepresentation of his relationship with Mr. Kim Heng Lean and relationship with the sponsor were set out for him to comment on. Thereafter by correspondence of 17 May 2004 the Department of Immigration and Multicultural and Indigenous Affairs advised Mr Sreng that although the earlier letter dated 27 May 2003 cited the relevant provision as subparagraph 501A(3)(a), the Minister would consider whether to refuse his visa under subsection 501A(2)(a), albeit that the matters to be taken into account remained consistent with the original notice.
On 12 April 2005, the Minister personally made a decision under section 501A of the Act setting aside the original decision and refusing to grant the visa applicant a visa. Before making that decision, the Minister was provided with an issues paper, together with annexures as follows: annexure A, AAT decision V 2002/91 dated 27 September 2002; annexure B, a copy of the visitor visa application lodged in the name of Phen Hean Mao on 9 September 1996; annexure C, letter from Mr Sreng's agent, dated 6 November 2001; annexure D, copies of the visitor visa applications lodged by Bith Kim Sean on 28 March 1996 and 3 December 1997; annexure E, Mr Sreng's submissions dated
13 August 2003 and 2 June 2004; annexure F, notice of intention to consider refusal, dated 27 May 2003, notice of intention to refuse a visa, dated 17 May 2004; and annexure G, further information – national interest.
The issues paper included the following:
“6. There is a reasonable suspicion that Mr Sreng does not pass the character test on account of his past and present general conduct.
7. Information is held to suggest that Mr Sreng has made false and misleading statements and presented documents containing false and misleading information to the department in connection with applications for temporary and permanent visas.
27. As you are aware, the High Court has in the Taylor case had reason to comment on what is meant by the term "the national interest". Gaudron J indicated that national interest considerations are separate and distinct from the question of whether or not a person passes the character test. This means that for the purposes of paragraph 501A(2)(e) of the Act, the decision‑maker must make a separate and additional assessment as to whether the refusal or cancellation is in the national interest. The fact that a person does not pass the character test does not necessarily mean that the refusal or cancellation is in the national interest.
28. The following is an extract from the ex parte Taylor decision:
(quotes 79)
"Moreover, the crimes or some of the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa. Crimes which involve circumventing passport and immigration laws may well be crimes of that kind. Further, crimes of which a person has been convicted may be of such seriousness or the circumstance in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled."
29. For your information, a more detailed discussion of the Taylor case is attached.”
A further discussion of the Taylor case is at annex G
“32. It is open to you to take the view that the Australian community has every reason to send a strong deterrent message to any non‑citizen contemplating engaging in immigration malpractice and that, if detected, no further reward will be given to the visa applicant in question, in fulfilling their aim and ambition of becoming a resident of Australia. It also open to you find that it is in the national interest to refuse Mr Sreng's visa application. To do otherwise would cast doubt upon the integrity and the international reputation of Australia's legitimate immigration program.”
In addition the issues paper contained references to the decision of the AAT; the contents of the various visa applications themselves; the exercise of the Minister's discretion and the consideration of the primary considerations of the protection of the Australian community, including the seriousness and nature of the conduct; the likelihood that the conduct may be repeated and general deterrence questions together with the expectations of the Australian community and references to section 499 direction number 21; the best interests of the child and a reference to Article 3.1 of the Convention on the Rights of the Child which states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”
The children considered in the issues paper were Mr Sreng's sons from his previous marriage, both over the age of 18 years, and Mr Sreng's spouse Ms Heng's two children, from a previous marriage whom were aged 11 and 13 respectively. Mr. Sreng’s sons, given their age, were considered under other considerations. Mr Sreng provided no information about Ms Heng's children nor did he indicate that those children would be affected by a decision under section 501 of the Act. Other considerations were then addressed, including family ties, genuine marriage to an Australian citizen, rehabilitation, recent good conduct and other international obligations.
The decision of the Minister was:
“I reasonably suspect that Mr Sreng does not pass the character test and Mr Sreng has not satisfied me that he passes the character test and I am satisfied that refusal of his visa is in the national interest. Accordingly, I have decided to exercise my discretion to set aside the original decision of the AAT to revoke the visa cancellation, so I hereby refuse Mr Sreng's visa under section 501A of the Migration Act 1958. My reasons for this decision are stated at Part E of this record.”
Part E of the Minister's decision then set out a statement of reasons, under the headings Character Test, National Interest, Discretion, Primary Considerations, Expectations of Australian Community, Best Interests of the Children, Other Considerations and Conclusion.
Consideration
Section 501A(1) and (2) of the Act confers a very broad statutory discretion upon the Minister to overturn an original decision. Whilst there is no express limitation on the exercise of the discretion by the Minister, it must nevertheless be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute (Jahnke v Minister for Immigration and Multicultural Affairs (2001) FCA 897, Drummond J at 17). I find the discretion to have been exercised with reference to such identified considerations.
There is no jurisdictional error committed by the Minister in her adopting a different path on her fact-finding mission compared to that undertaken by the AAT. The Minister was not bound to consider or adopt the AAT's methodology, views or finding as was contended by the applicant. The fact that the Minister came to a different finding to that of the AAT is not a basis on which to claim that her decision is affected by jurisdictional error. It was open to the Minister to consider the evidence afresh and come to a view independent of that of the AAT.
Nevertheless, and contrary to the submissions as made by the applicant that the respondent did not consider in taking into account the decision of the AAT, the respondent clearly did so. The decision of the AAT was annexed to the issues paper. The ultimate conclusions of the tribunal favourable to the applicant were also set out in the issues paper.
Contrary to the applicant's submissions, there is nothing to be critical of in the Minister exercising her discretion in lieu of a decision of the AAT favourable to an applicant. Indeed, the discretion under section 501A of the Act if exercised will necessarily involve interference with and replacement of a decision of the AAT. The exercise of such discretion is a valid exercise of power in accordance with the law.
“... the fact that the Minister disagreed with the decision of the Tribunal, and ultimately decided to exercise his own powers in such a way as to produce a practical result different from that which followed from the Tribunal's decision, does not mean there was an abuse of power. The fact that the Minister's powers extend to enabling that to be done is simply the consequence of the legislative scheme...” (Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) CLR 507 per Gleeson CJ and Gummow J at 86)
The conclusion reached by the Minister was one open to her on the evidence before her. That evidence included identity fraud and misleading statements made by the visa applicant. The applicant sought to argue that the Minister had failed to consider the national interest as a matter separate from the character test and discretionary matters; further that the national interest required something in addition to considerations involving the character test and discretionary maters. The applicant argued that national interest included a consideration of emergency and issues of national significance. I reject those submissions.
The Minister correctly considered the national interest element separately from a consideration of the character test and discretionary matters. She concluded:
“64. The Government has set clear standards of behaviour, which are considered appropriate for a multicultural society such as Australia. The Government is committed to ensuring that non‑citizens wishing to remain in, or enter, Australia will adhere to those standards. In particular, the Government takes its responsibility to combat immigration malpractice very seriously.
65. I considered that it is in the national interest to exclude non‑citizens who have engaged in such conduct as demonstrated by Mr Sreng, as such a person would be of concern to the Australian community with respect to their support of any further applications by family members or friends. I consider it in the national interest to exclude non‑citizens who engage in identity fraud.”
The consideration of the national interest is not confined to matters which are not considerations relevant to the character test and discretionary matters. Indeed, there may be considerable overlap in a consideration of these matters, albeit this consideration is a separate one. Similar matters or the same matters may enliven the national interest. The requirement is that they are addressed separately as was done by the Minister. The nature of the consideration is as said by Gaurdon J. in Re: Patterson; Ex Parte Taylor (2001) HCA 51:
“The terms of section 501(3) make it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test. That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the minister's satisfaction that it is in the national interest that the person's visa be cancelled. It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community. (Re Patterson; ex parte Taylor (2001) HCA 51 at 78 per Gaudron J)”
And Kirby J. at [331]:
“The wide range of subject matters that may be taken into account in making decisions (in the public interest) has been acknowledged by this court. The present Migration Act deals with many subjects of great importance to the composition and safety of the Australian community. It would be contrary to principle for the words "in the national interest" to be given a confined meaning. However broad may be the jurisdiction conferred by the constitutional writs, they do not permit a court to substitute for the satisfaction of the Minister, provided by the Act of Parliament, the satisfaction of judges who are not accountable to the Parliament or the people in the same way as the Minister”. (Re Patterson; ex parte Taylor (2001) HCA 51 at 331 per Kirby J)
In Minister for Immigration & Multicultural Affairs v Huynh (2004) FCAFC 256 Kiefel and Bennett JJ said the following as to the nature of the Minister’s discretion: [at [72] and [73]]
“The Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a person's visa. The nature of the Minister's discretion under section 501 of the Act has been considered in a series of cases concerning the validity of Ministerial directions made under section 499 of the act. In Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 66 Dowsett J described section 501 as conferring an "unfettered discretion" upon the Minister (at 10). His Honour went on to explain (at 24):
"Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which the discretion should be exercised."
This description of the discretion has been cited with approval in subsequent decisions, by Cooper J in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 and Stone J in Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311. And in Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 Drummond J observed that although the discretion is not fettered by any express limitation, it must nevertheless be expressed by reference to considerations identified from the subject matter, scope and purpose of the statute (at 17).
The applicant also sought to impugn the respondent's decision on the basis of her consideration of the best interests of children. The applicant's submission is that it was the responsibility of the Minister to consider matters not necessarily placed before her in evidence and that in her failure to enlarge the scope of her inquiry she had committed jurisdictional error. The applicant suggested that issues the Minister should have considered related to the education system and protection of children generally in Cambodia. I reject that submission.
The Minister expressly stated that she gave primary consideration to the best interests of the child. She noted that Mr Sreng did not provide any information about the two children of Ms Heng and nor did he indicate the refusal under section 501 may have an adverse effect on them. The applicant was afforded natural justice by being invited to provide information to the Minister in respect of the applicant's and the visa applicant's children. Despite the applicant’s failure to do so, the Minister did consider the interests of the children and concluded:
On balance, I found that Ms Heng's children may suffer some disadvantage in respect of the overall standard of living in Cambodia, should Mr Sreng's visa application be refused.
I accepted that the refusal of Mr Sreng's visa application would cause hardship for the children. I gave this consideration substantial weight.
The issues paper which the Minister had before her referred to the Convention on the Rights of the Child. There was no duty upon the Minister to make further inquiries concerning the position of the children. There is no suggestion that the Minister denied the visa applicant procedural fairness. The visa applicant had an opportunity to provide more detailed information if he wished but did not do so. The issues paper identified the best interests of the children as a primary consideration to be taken into account and the statement of reasons recorded that the Minister gave primary consideration to the best interests of the children and gave "substantial weight" to those interests. The circumstances were not such as to oblige the Minister to procure the expansion of the applicant’s material. (Taylor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 208 per Marshall, Mansfeild & Siopis JJ at [19]). There is no basis for the submission that the Minister was bound to make further inquiries concerning the position of the children before proceeding to a decision. (Djalic v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA FC151 at 83).
The application shall be dismissed with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 20 February 2006
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