Huynh v MIMIA

[2005] HCATrans 968

[2005] HCATrans 968

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S412 of 2004

B e t w e e n -

XUA THI HUYNH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 2.22 PM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with my learned friend, MR J.A. WATSON, for the applicant.  (instructed by Anne O’Donoghue & Associates)

MR S.B. LLOYD:   If the Court pleases, I appear with my learned friend, MR R.M. FOREMAN, for the respondent.  (instructed by Australian Government Solicitor)

HEYDON J:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, the reasoning of the majority in the Full Court involves two steps, both of them erroneous and both of them carrying significant implications.  Step one, which your Honours will see in the application book page 113 line 30, is to say that the Minister exercising the power conferred by section 501 of the Migration Act to cancel the visa of a person convicted of a criminal offence is under no obligation to consider factors personal to the visa holder, including circumstances surrounding the offence.

HEYDON J:   On the first part of the proposition you just drew attention to is not the whole of the Full Federal Court against you?  It is not the end of the world obviously.

MR GAGELER:   No.  The dissenting view of his Honour Justice Wilcox appears at page 103 line 30 – everything is line 30 in this case.  That accords with the view of Justice Madgwick.

HEYDON J:   Yes, but did not the Minister have regard to the nature of the offence?

MR GAGELER:   In a limited way, your Honour, and that is the problem – in a limited way, not taking into account ‑ ‑ ‑

HEYDON J:   Details relating to the applicant’s involvement in the crime.  Is that your point?

MR GAGELER:   Not taking into account the full up-to-date information in ‑ ‑ ‑

HEYDON J:   That is your second branch of your argument, I think.

MR GAGELER:   Yes, but the reasoning of the majority, your Honour, necessarily involves these steps.  There are two steps in the reasoning, and both of them wrong, but this is the central step in getting to the second step in the reasoning.  So step one is necessarily to say that the Minister is under no obligation to consider the circumstances of the offence – we say wrong.  Inconsistent with the view taken by Justice Wilcox, which was the view taken by Justice Madgwick, on that point there is a 2:2 split in this case, and on that point the dissenting view of Justice Wilcox stated at page 103, line 30 was taken up and applied by Justice Sackville with the concurrence of Chief Justice Black in a later case.

HEYDON J:   But what about the next sentence, or the one after:

However, it is for the Minister . . . to determine what information about the circumstances . . . he or she wishes to receive ‑ ‑ ‑

MR GAGELER:   Yes, we do not have any difficulty with that, but the essence of the argument that his Honour accepted is the one at page 105, close enough to line 30, which is fundamentally different from the second step in the majority reasoning, page 115, line 30 again.  The point of the second step in the majority reasoning is to say this.  Because the Minister was under no obligation to take the circumstances into account at all, it is said, it does not matter that in fact in taking the circumstances of the visa holder into account the Minister ignored up-to-date relevant complete information readily available.

HEYDON J:   He did not ignore.  It was not drawn to his attention ‑ ‑ ‑

MR GAGELER:   It is not a personal criticism of the Minister.

HEYDON J:   No.

MR GAGELER:   It is a criticism of the decision against ‑ ‑ ‑

HEYDON J:   The criminality – sorry.  We are at one I think on that.

MR GAGELER:   Yes.

HEYDON J:   The criminality was marked by the 24‑month head sentence, was it not?

MR GAGELER:   It was certainly marked by it, but can I show your Honour how it was dealt with in the information that was put to the Minister?  If your Honours look to what the Minister said about the decision he made, it is at page 56.  These are the statement of reasons of the Minister himself.  Page 56, line 30:

I took into account Judge Woods’ statement at page 6 of the Issues paper . . . in regard to the seriousness of Ms Hunyh’s offence.

15.      Given the serious nature of Ms Huynh’s conduct I gave this consideration significant weight.

Next page, line 30 -

21.      In view of the seriousness of Ms Huynh’s offences, I believed that the Australian community would expect Ms Huynh’s visa to be cancelled . . . Overall I placed substantial weight on this consideration.

And then the next page, line 25:

27.      In reaching my decision, I concluded that the seriousness of Ms Huynh’s crime . . . expectations of the Australian community –

All of that stems from the statement of Judge Woods at page 6 of the issues paper.  Page 6 of the issues paper is also page 6 of the application book.  Your Honours will see Judge Woods’ statement at the top of the page.  One cannot read that statement without pretty readily forming the view that one is dealing with serious evil in this case.  He says in the last sentence:

There is no place in our community for anyone so involved –

You cannot read that without getting an impression of serious misconduct.  Now, if you contrast that – I am sorry, your Honour?

HEYDON J:   I was just going to make the point a little while ago that Judge Woods gave 24 months on top for those reasons, like it or not.

MR GAGELER:   Yes, that is right.

HEYDON J:   He decided there should be a non‑parole period of 16 months and the Court of Criminal Appeal reduced that.

MR GAGELER:   Correct.

HEYDON J:   But not for reasons to do with the criminality of the conduct, rather for other reasons personal to the applicant, which would mean she would have difficulty in coping with a gaol term and it would be more onerous on her than on other people in that position.  In other words, they are not circumstances going to the criminality of the offence.

MR GAGELER:   Your Honour reads what is said and the tone in which it is said, page 6, which obviously influenced the Minister greatly.  Your Honour then goes to what the court actually said, page 137, lines 10 and following, particularly the paragraph numbered 11, but then one needs to really read on.  The point about it is, your Honour, this is not science; this is impression.  After all, we are dealing with a question of a person’s character ‑ ‑ ‑

HEYDON J:   Judgment.

MR GAGELER:   And a judgment being made about the person’s character.  You cannot read what is there said, in our respectful submission, without changing from a perception of evil to one of pathos.  This really gives an entirely different complexion to the circumstances of this visa holder.  What your Honour puts to me is, I would accept, technically correct but the Minister was not making a technical decision.  The Minister was making an evaluative judgment based principally upon very strong emotive words expressed by the trial judge about circumstances, revisited by the Court of Criminal Appeal and addressed in terms that would leave one with an entirely different impression.

HEYDON J:   What do you say to the proposition that the statement which begins, “It may be accepted” really means “Let us assume that”?  In other words, is it an assumption or a positive finding?

MR GAGELER:   Can Your Honour point me to the context of that?

HEYDON J:   Sorry.  Page 137, line 11, paragraph 11:

it may be accepted that she was engaged in this activity for the purpose of assisting him.

Whether that causes a sense of pathos to arise or not, was that a finding or merely an assumption on which to base a further argument?  In other words, even if it is so, says the Chief Judge at Common Law, it does not lead me anywhere.

MR GAGELER:   It appears to us to be the latter, your Honour, the “even if it is so”, but for the purposes of my argument, nothing greatly turns on it.

HEYDON J:   Well, if it is only an assumption it is not really a fact, a new fact, which the Minister ought to have taken into account or ought to have had drawn to his attention.  It is an assumption in a chain of reasoning.  Then the chief judge goes on to this question of the “deprived and difficult background” and the medical difficulties which caused the reduction in the non‑parole period, which are distinct from the circumstances of participation in the crime.

MR GAGELER:   They are not entirely distinct from the participation in the crime because they go on to deal with her overall relationship with him and her overall difficulties and vulnerability.  After all, the circumstances of the crime were that she was found in the car in circumstances where the police were keeping the son under surveillance.

So, your Honours, in that respect, that is whether taking this information into account could have made a difference – and, after all, that is the question, could it have made a difference?  Two judges who addressed that question in this case, Justices Madgwick and Wilcox, said yes it could.  In our submission, it is a sort of a jury question.  It is really not a matter that withstands a great deal of fine analysis because if you look at the Minister’s decision it did not involve a great deal of fine analysis.  It really is a matter of weighing up two very different pieces of information about the same circumstances and recognising that if you just take one of them into account, the one that was put before the Minister, you are left with a very different impression from that which you get if you take both of them into account.

Your Honours, in relation to what I call the second step, the second step of saying if a consideration is not a mandatory consideration, one that does not have to be taken into account, then if you do take it into account and fail to take into account in respect of that consideration information that is up to date and readily available to you, you have not committed a jurisdictional error.

It is quite an important question, and the majority decision involves a particularly narrow reading of Justice Mason’s judgment in Peko-Wallsend, one which, in our submission, is erroneous for the reasons we have probably, I hope, succinctly set out in our written submissions at the top of page 133, that is, the point is you approach a statute conferring a decision‑making power as carrying with it generally an implication of whatever decision is going to be made, is going to be made on the basis of the most current material available to the decision‑maker, and that presumption is not displaced in the circumstances of the present case.  If your Honours please.

HEYDON J:   Thank you, Mr Gageler.  We need not trouble you, Mr Lloyd.

We are of the opinion that there are insufficient prospects of success in an appeal which rested on the agitation of the points which Mr Gageler has urged to us and accordingly the application must be dismissed with costs.

The Court will now adjourn until 10.15 am on 6 December in Canberra.

AT 2.37 PM THE MATTER WAS CONCLUDED