Lam, Ex parte - Re MIMA
[2001] HCATrans 144
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B33 of 2001
In the matter of -
An application for Writs of Certiorari, Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Ex parte –
HIEU TRUNG LAM
Applicant
CALLINAN J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON THURSDAY, 17 MAY 2001, AT 11.14 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: If it please your Honour, I appear for the prosecutor. (instructed by Boe & Callaghan)
MR S.J. GAGELER, SC: If it please your Honour, I appear for the respondent, again, with MR S.J. LEE. (instructed by Blake Dawson Waldron)
HIS HONOUR: What is the correct designation? Do you become a prosecutor before there is an order nisi made?
MR WALKER: No, an applicant for an order nisi. Wishful thinking, your Honour.
HIS HONOUR: Yes. Mr Walker, I should be looking at the affidavit of ‑ ‑ ‑
MR WALKER: Mr Boe.
HIS HONOUR: Yes.
MR WALKER: Your Honour has that affidavit perhaps?
HIS HONOUR: Yes, I do.
MR WALKER: As your Honour saw by way of the note we supplied as an outline of submission, the argument really is contained, to a very large degree, probably completely really, in Mr Boe’s affidavit, particularly the second part of it. I have spoken to my friend and it should be made clear that there is a lot of frankly argumentative material in the affidavit. My friend’s failure to object to it cannot give it any greater status than that of argument, of course.
HIS HONOUR: Mr Walker, of what was your client convicted?
MR WALKER: He was convicted of dealing.
HIS HONOUR: Where do I find his criminal history?
MR WALKER: Your Honour will find his criminal history at exhibit AB‑2 to the affidavit.
HIS HONOUR: Of Mr Boe, is it?
MR WALKER: Yes.
HIS HONOUR: My material is not marked quite as clearly as it might be. AB‑2, is it?
MR WALKER: AB‑2, which itself has ‑ ‑ ‑
HIS HONOUR: What is that document, Mr Walker?
MR WALKER: That his criminal history sheet. AB‑2, the third page, sets out the offence for which he is presently imprisoned, which is trafficking a dangerous drug.
HIS HONOUR: And what was the drug?
MR WALKER: Heroin.
HIS HONOUR: And what was the quantity?
MR WALKER: In AB‑1 we will find that. It does not say, your Honour. Has your Honour read the sentencing remarks?
HIS HONOUR: Yes, I did them.
MR WALKER: Yes, and your Honour will have seen there that in terms of tariff, so to speak, it was 12 years his Honour thought, reduced to 8 in relation to what might be called plea and co‑operation, and then with a lower non‑parole in recognition of the difficulties in prison, which particularly the co‑operation by inference might present for him. So I cannot give your Honour from the evidence in the material an answer to your Honour’s question as to what the quantity was. It was assessed by his Honour at ‑ ‑ ‑
HIS HONOUR: I still cannot find his criminal history.
MR WALKER: Straight after the sentencing remarks comes AB‑2, I hope, which is itself a three‑page document. I am obliged to my friend, who has a spare copy. Could I hand that up to your Honour? As I say, it is the third page.
HIS HONOUR: Yes. Was this application made before the decision in this Court in Jia and White? We have given judgment in those cases, have we not? We gave judgment on 29 March. Have you seen that?
MR WALKER: I have seen it, your Honour. This application was not made until 12 May.
HIS HONOUR: I think that Jia and White is the only decision of this Court on 501 and 502. Is that right?
MR GAGELER: Your Honour has heard the case of Taylor, which was a decision ‑ ‑ ‑
HIS HONOUR: Yes, but our decision is reserved on that.
MR GAGELER: You have not given a decision; that is right.
HIS HONOUR: Yes. It is the English migrant. That is reserved. But Jia and White is the only case in which there has been a decision, I think. Is that right?
MR GAGELER: Yes.
HIS HONOUR: You have seen Jia and White?
MR GAGELER: Yes.
HIS HONOUR: All right. Mr Walker, thank you, I have the criminal history and I have had a look at that. Now, what is your best point?
MR WALKER: The best point, your Honour, concerns the factor of the children, the way in which the Minister apparently proceeded to deal with it as one of the ostensibly primary matters and, in particular, the way in which the material before the Minister resulted from a process in which the officers had told my client that they would be making inquiries of others concerning the children’s position and they did not. Your Honour has, I think, seen the narrative of the dealings between my client and the Department, but perhaps if I may remind your Honour of the relevant ones.
HIS HONOUR: Well, you draw my attention to the aspects of it. Is that the document ‑ ‑ ‑
MR WALKER: AB‑5.
HIS HONOUR: I do not know why this is so, but my documents ‑ ‑ ‑
MR WALKER: Are not tagged?
HIS HONOUR: No.
MR WALKER: I am so sorry, your Honour.
HIS HONOUR: That is not your fault, Mr Walker, but what is the name of the document?
MR WALKER: It is a letter from the Department of Immigration and Multicultural Affairs to my client dated 7 November 2000. It is referred to in paragraph 16 of the affidavit. Has your Honour found that?
HIS HONOUR: Is this the document, “Submissions as to children”?
MR WALKER: No, your Honour may be referring to the response. No, it is a letter referring to my client’s letter of 30 October which had raised the matter of the children. It starts off, “Thank you for your letter dated 30 October 2000”.
HIS HONOUR: No. I am going to give you – and perhaps I could ask your solicitor to – I will give you back the file and I am going to ask your solicitor to pull out the relevant documents. I have retained Mr Boe’s affidavit and your outline of submissions.
MR WALKER: Yes, may it please your Honour.
HIS HONOUR: And I hand down the rest. If you do not mind, you could have your solicitor pass up to me the documents, please.
MR WALKER: No, not at all, your Honour. I am sorry. Does your Honour mind if we put a numerical tag on it?
HIS HONOUR: That would be convenient, thank you, Mr Walker.
MR WALKER: And perhaps if we could put tags on the others while looking at that, thank you, your Honour.
HIS HONOUR: Yes, thank you, and that will save time later.
MR WALKER: Now, in that letter, which, as your Honour knows, comes after the first letter which seeks submissions, there is a response which raises the fact that my client had advised that he was the father two children who currently reside with carers.
HIS HONOUR: Just before you get to that. The United Nations Convention on the Rights of the Child provides that in all actions concerning children the best interests of the child should be the primary consideration. Why is a decision under section 501 of the Migration Act in relation to a person whose past criminal record is relevant, a matter concerning children?
MR WALKER: Because if the person is a parent and the action in question concerns expelling the person from the country, the children, who in this case are Australian citizens and Australian born and being educated in an Australian school, are likely to be affected with respect to either their place of residence, their education or their contact with a parent. So much seems to be common ground, your Honour.
HIS HONOUR: Well, it seems to be. It is not readily apparent to me that it is so, because that would mean that it would import into the section the necessity to consider the children in the case of every person who is a parent.
MR WALKER: Yes. It is treated by the decision‑makers accordingly.
HIS HONOUR: Mr Gageler might be able to tell me the basis for that.
MR WALKER: I think it is the perception of the international obligation, your Honour, and, as I say, it is common ground in this case the Minister was assisted by his officers’ recommendations accordingly.
HIS HONOUR: Yes, you are quite right and I am not going to treat it as other than common ground. I merely ask really out of curiosity because it is not readily apparent to me, I must say.
MR WALKER: One could readily say that one could take the view, your Honour, that one does not trail, as it were, one’s parenthood into every sphere of life into which you and government may come into contact by way of their making adverse decision. On the other hand, when it comes to your place of residence or your availability to your children, then it may be – and certainly it has hitherto been the position under these provisions – that the government will regard that decision as one which affects the children.
HIS HONOUR: I just do not know how much weight you give to it because every criminal could have a child, assuming fertility, and then that acts as some kind of a qualification on the operation of the section.
MR WALKER: Your Honour’s curiosity, for example, might include the question of whether, if there is anything in a notion of equality or equality before the law, is any light cast on that, adversely or otherwise, by treating people with, for example, minor children differently from the way you would treat people without minor children if they were both, for example, criminals. Those notions, as important and interesting as they are, have rather been gathered up and dealt with by the practice and we would submit now, by reason of administrative law, the law in this area, namely, that because the decision‑maker says that he will regard as a primary consideration that matter when taking action which would affect children by affecting a parent, then there is no dispute between the parties about its primacy.
As your Honour knows, there are then consequential questions raised such as, what does that tell you about the balancing exercise which every decision‑maker has to make? One thing is clear, and I could never succeed in dissuading your Honour from, that that primary consideration does not compel every parent who might otherwise be susceptible of an adverse discretion against him under section 501 to be kept in this country in order that he may see his children.
HIS HONOUR: It could not be so, could it?
MR WALKER: I am not going to try that. That is not my point.
HIS HONOUR: All right. Well, I have read the letter and I accept ‑ ‑ ‑
MR WALKER: What your Honour will see there is that in that letter there were two, at least, sources of information which the Department told my client they would be going to themselves in light of what he had said already himself about the children and their position. The first was the carers; the second was the mother, and you find that in the fourth paragraph.
Your Honour has read the material. In summary – and this is not departed from at any stage during the decision making so far as that can be reconstructed – the mother abandoned the children at a very early age for them. They are now about 8 and 11. They do not see their mother by any organised routine. They are to be treated, therefore, as without the emotional, financial or social support of their mother by dint of the misfortune of separation and her having started another family. Meantime, of course, my client has committed the serious offence for which he was given the not inconsiderable sentence which he is now serving and which he is about to finish serving.
The children are with carers, and that brings me to another affidavit before your Honour, which is that of Huyen Cam Thi Tran – that is a copy for your Honour – who in paragraph 4 – as your Honour can see, the deponent is still a university student, paragraph 2. Paragraph 4, she is currently the guardian of the two daughters of my client and, as your Honour can see, that that came about, as is sworn in paragraph 4, by reason of the incarceration of my client and the separation of him, but much more particularly from their children of their mother, Hoang Truong.
HIS HONOUR: You know this raises all sorts of difficult questions, does it not, having regard to the children and questions, for example, whether they are better off with a criminal guardian, I mean, with their parent who is a criminal? I see the grandparents have also had ‑ ‑ ‑
MR WALKER: It is the maternal grandparents.
HIS HONOUR: Maternal, yes, but some ‑ ‑ ‑
MR WALKER: Your Honour has seen the material from the paternal grandparents, who are both distressed at their son’s wrongdoing and at the plight of their grandchildren. They live in Adelaide. They have expressed distress at the prospect of the little girls being in Australia with their father in Vietnam.
HIS HONOUR: It is almost like deciding a custody or, as they call it, parenting case, is it not?
MR WALKER: And, your Honour, because of the invidious decisions which are to be made, your Honour has, with great respect, noted some of the cardinal points that would need to be considered. One would look for these matters to be expatiated on in the material in support of a decision and one would look in vain. In our submission, the perfunctory treatment which was received at a passage to which I will take your Honour at the moment does not take into account the no doubt countervailing factors tending in both directions along the lines of what your Honour has raised.
One does not see, for example, anything which, in our submission, would answer the balancing kind of exercise which in another arena, such as a true custody battle, would be a question. Take the one your Honour has raised about should there be, as it were, a hard‑headed decision taken that if this means separation from their father the children are better off, given their father’s antecedents and propensities. Well, the first thing that one would need to do is to ask whether that means that there is a prima facie rule that somebody with these antecedents, that is, what appears in writing, whether that means that they are sufficiently dangerous for their children so as to reduce what otherwise be the parental link. None of this is discussed. None of it is ‑ ‑ ‑
HIS HONOUR: I understand your point. Was contact actually made with the mother?
MR WALKER: No, it was not. That is the point.
HIS HONOUR: And what about the carer?
MR WALKER: Nothing.
HIS HONOUR: And was there any explanation at the time for a failure to make contact?
MR WALKER: Nothing. What we do not have, what one might expect, tried two, three times, wrote to her things, searched electoral rolls, looked up, phone, but nothing.
HIS HONOUR: So there is no evidence of any contact with the carers. Is that right?
MR WALKER: That is right.
HIS HONOUR: Or with the mother?
MR WALKER: Or with the mother.
HIS HONOUR: So there is no evidence before me as to where ‑ ‑ ‑
MR WALKER: No evidence of any attempt either.
HIS HONOUR: No, and no evidence of where the mother is at present. Is that right?
MR WALKER: No, there is evidence, which is negative. My client responds to this letter, saying – and that is AB‑6 – well, it would not have been very helpful, though no doubt it was the most he could do. The response to the request was to provide the carer’s details.
HIS HONOUR: Yes.
MR WALKER: The response with respect to the mother was to say, “My client has no contact”.
HIS HONOUR: I can see that. Well, was any contact made with Ms Tran? You tell me there was not, is that right, the carer?
MR WALKER: That is right, your Honour. Could I take your Honour to paragraph 14 of Ms Tran’s affidavit?
HIS HONOUR: I think I have given you that.
MR WALKER: Your Honour has a copy of that, I think.
HIS HONOUR: Ms Tran’s affidavit.
MR WALKER: Your Honour had a copy with the Court’s stamp on the front, I hope.
HIS HONOUR: I did actually. I just wonder whether I have given it back to the Bar table. I did have a copy of it. You are quite right. I think I may have passed it back down. No, I have it. I am sorry. I beg your pardon.
MR WALKER: At the foot of page 3, paragraph 14, she swears to her current awareness that the Minister’s delegate sought the details you have seen in that letter and then ‑ ‑ ‑
HIS HONOUR: Well, it is paragraph 15, is it not?
MR WALKER: Paragraph 15:
I have never received any correspondence or other contact from the Minister’s department seeking to speak to the prosecutor’s children or otherwise assess their relationship and the consequence of cancellation –
et cetera. Now, your Honour sees that this is not a case where either a priori or by reason of the investigation recorded in the material there could have been any ‑ ‑ ‑
HIS HONOUR: Well, it looks a little bit like a natural justice point in a sense, does it not?
MR WALKER: It is a procedural fairness point, which is my answer to your Honour’s daunting question, what is my best point? My best point starts with a presentation as a matter of procedural fairness. It cannot stop there because we would seek to call in aid obviously other grounds, as your Honour has seen in the affidavit.
HIS HONOUR: I do not mean to interrupt you, Mr Walker, but I understand, I think, the submission. Could you provide me now with the document with a reference to that part of it which goes closest to dealing with the issue of the children?
MR WALKER: Yes, your Honour. I hand up AB‑9 to your Honour, which is now tagged.
HIS HONOUR: Yes.
MR WALKER: I will take your Honour to page 10 of the report to the Minister, which is the main document in that exhibit.
HIS HONOUR: This is the official’s recommendation to the Minister?
MR WALKER: That is right. On page 10 of that document the administrator has turned to the heading, “The Best Interests of the Children”, paragraph [20], the Convention article that your Honour has drawn to attention is cited and in paragraph [22] there is a reference to a Minister’s direction. Your Honour will have seen that referred to in the affidavit.
HIS HONOUR: Yes.
MR WALKER: It is a direction which the administrator has put forward to the Minister as something which would provide guidance for his own decision as well as providing compulsion for other’s decisions. There is then an extract from Mr Lam’s submission of 2 November, paragraph 23, set out on page 11 of the document and, in our submission, your Honour, there are certain matters which from the record could not be taken in an administrative law sense to be the kind of assertion to which, as it were, little or no weight might be given. Thus, for example, the fact that they were born in Australia, they are Australian citizens, that they are settled in school, that they are being looked after by a friend on an arrangement which is not indefinite or long term. All of those are matters which appear to be either adopted or for there to be no rational reason for those to be doubted.
Over the page, on page 12, one finds some references to the mother and your Honour sees that the material reproduced at the top of page 12, if that is all that is ever said, shows that nothing is taken beyond what my client has been able to supply.
It is also true, from what one sees on page 11 in relation to carers, that nothing has been taken further in relation to the children and their carer than what my client had supplied so that what the Department said it was going to do was not done and, to repeat my answer to your Honour’s earlier question, without any explanation and, in particular, without anything in the nature of impracticability or impossibility.
We then have a mention of what might be called a sensible checklist of factors, if one is talking about the nature and duration of the relationship, as one obviously would, because this is a case-by-case determination: periods of separation, citizenship, residency and then we come to:
(e) the likely effect that any separation from the non‑citizen would have had on the children ‑ ‑ ‑
HIS HONOUR: I have read paragraphs [30] to [33] on page 13. Why are they not a comprehensive consideration of the children’s interests?
MR WALKER: They are not comprehensive because their bottom line literally is in [33], your Honour. The bottom‑line recommendation is that his removal may have a detrimental effect on his children. Now, we used the word “perfunctory” earlier. In our submission, that is as perfunctory as one could imagine. There is the possibility, “may have”, and there is the ‑ ‑ ‑
HIS HONOUR: But what is the alternative, “will have”, “will not have”?
MR WALKER: The alternative was, in particular, to examine what would happen if the children were to stay. Your Honour will have noticed that very little is said by the officers, in fact, probably nothing on analysis, about the alternative to accompanying their father, namely staying in Australia with an estranged mother - there is no exploration of that fact - and in arrangements which must be considered to be completely unsettled, namely, the only carer being someone who had arrangements until his release. There is the recitation of Mr Lam’s, that is my client’s, distress at the thought of them being left alone if he is sent away but there is no consideration of that at all.
HIS HONOUR: What should the official have said then?
MR WALKER: The official should have proceeded to consider the only two alternatives which are available, the first alternative being that the children stay in Australia separated from their father. There is no consideration of the kind of matter that your Honour earlier referred to, namely would that be a good thing in a prophylactic or mentoring sense. That is not referred to at all.
There is no reference to the fact that they would then be without any contact with any parent from the evidence before the officer and there must be a qualitative difference, your Honour, between being deprived of the only one of your parents with whom you have contact as opposed to being deprived of one of your two parents. None of that is considered here at all. Nothing is said about the complete uncertainty about their living arrangements.
It can hardly be said on behalf of the Minister that the recitation of my client’s submission that the children would have to go into State care is either consideration of that point or acceptance of that point or acquiescence in that point as part of a balancing exercise. The Minister cannot be heard to say that the recitation of submissions amounts to acceptance of them. That would be in contrary to practice.
HIS HONOUR: If he is a good father and so fond of the children why would he not take them back with him to his country of origin?
MR WALKER: That is his country of origin but not their country of origin. He has been here since he was 14. He was, as his material annexed shows, in his so‑called country of origin in a communist work camp at the age of nine, so that those, with respect, are two reasons why one would expect, if the consideration was to go into the kind of question that your Honour has raised, namely why would it not, as a good exercise of parental duty, be appropriate for him to take them back to his country of origin, the first thing one would start with is his own history in relation to that country of origin. It is a country, in effect, from which he has fled.
Second, it is, of course, appropriate, particularly bearing in mind what is blandly said on page 13 at the foot of paragraph [30], that your Honour take into account as part of the answer to that question that the Republic of Vietnam is unlikely to be as favourable to the future development of the children in a material or social way as that in which they are presently part. Of course, there is an obvious difficulty brought about which is inherent in any section 501 problem where you have citizen children and a non‑citizen parent and the biggest problem is raised by the fact that one cannot attribute to the citizen children cultural links, let alone personal or social links, in the country of origin of the non‑citizen. None of that, in our submission, receives any real consideration on page 13 at all.
We have a reference to the fact that it was open to the Minister to find that the standard of educational health facilities may be below a standard so the children would be worse off in that regard. Nothing is said about their social friendship or quasi‑familial links because none of that was investigated.
In paragraph [31] there is, as it were, a giver signalled by the officer, your Honour, with respect to language. The fact that the material, particularly from the corrective services, shows that my client does have difficulties of communication in English would suggest that the sanguine approach taken in paragraph [31] is really entirely without evidentiary basis. The officers refer to the fact that:
Mr Lam was born and raised in Vietnam until the age of 14 –
as something which was meant to give rise to an expectation that his children could be expected to acquire a new language with relative ease. Now that, with respect, lacks all factual foundation and is manifestly unreasonable, particularly in light of the prison material to the effect that he had difficulty with English himself at his age.
There is then an extremely perfunctory reference in paragraph [32] to the fact that the combination of the children’s ages, eight and eleven, and:
the fact that their father was born and raised in Vietnam until he was 14 –
as something again giving rise to an expectation by the officers who said they would, but did not, investigate the children’s position:
that they would adapt to a new culture with relative ease.
That, with respect, cannot be based upon any evidence and the denial of procedural fairness is all the more keen bearing in mind that that was the kind of factor which one might have expected and my client was entitled to expect would be looked at by the investigations that they said they were going to undertake.
This is not a case where, there being no onus on the departmental officers, it was a matter for my client to put forward what he relied upon and if that was not good enough then that was the end of it. This is a case where he was asked to supply material – details - so that they could make their own investigations of certain matters about which he had already made assertions, in other words the checking and supplementing the elaboration exercise they said was going to be undertaken by the Department. It was not and, in our submission, unexplained as it is, that is enough to provide the reasonable basis of an argument to justify the issue of a rule nisi on the procedural fairness ground, being a ground which could not have been entertained in the Federal Court.
HIS HONOUR: Mr Walker, had a contact been made with the carer, would she have been able to throw any light upon these matters?
MR WALKER: From her affidavit which, of course, is not directed to that question, it is clear that ‑ ‑ ‑
HIS HONOUR: I mean, one would think she would be able to throw some light on these matters.
MR WALKER: Yes. There are a number of paragraphs, starting at [6], which show that she has the sort of contact, not only with the children but also knowledge of their dealings with their father, which would have thrown ‑ ‑ ‑
HIS HONOUR: Their progress at school, I suppose.
MR WALKER: She talks about that. In other words, full details were given of somebody with knowledge who could, for example, have cast light, not in some kind of general geopolitical comparison between Vietnam and Australia in educational health facilities, but cast light on these children.
In my submission, your Honour, the primary consideration that needs to be given to children is a primary consideration that needs to be given to the particular children in question and what page 13 exhibits is a high degree of generality which, as we can see, with the language one in particular which stands out in this regard, totally lacks evidentiary foundation is contrary to such evidence as there was.
Indeed, the decision-maker, rather disarmingly, your Honour, confesses that. It is not known if the children currently speak any Vietnamese so what they were doing was generalising ‑ ‑ ‑
HIS HONOUR: But that cannot be the test, Mr Walker, whether the children have got the language of the country to which their parent ‑ ‑ ‑
MR WALKER: None of these things are tests in any hard and fast sense, your Honour. What they are are factors which go towards a factually‑based – that is, a decision which has involved considering the position of the actual children rather than notional children – decision, because that is what the decision‑maker said they would be doing from the very beginning of their dealings with my client, namely, one of the primary considerations would be the position of the children, the effect on the children.
As your Honour sees on page 13, the implication there is that the consideration really was, “What happens if they go back to Vietnam?”. Well, we do not even know if they speak Vietnamese, but he came over here, so they can pick it up with relative ease if they go over there. Well, as I have pointed out, your Honour, the record actually shows that his communication English is one of his drawbacks. Similarly, when it comes to the question of culture, there is absolutely no consideration of their position at all or what they have been doing in relation to schooling.
For those reasons, the conclusion in [33] is not what your Honour invited me to consider it as, namely, a comprehensive consideration of matters at all. It is ideally to be described as a perfunctory bottom‑line conclusion to what can be seen as practically no investigation of the kind they said – they did not merely suggest they would – they said they would undertake.
HIS HONOUR: You know I am still troubled by this reference to the children as a primary consideration.
MR WALKER: Your Honour, that perhaps is ‑ ‑ ‑
HIS HONOUR: I might say it is contrary – there was no question of children in Jia and White, there was no argument, but I construed the section there to mean that the primary consideration was the past criminal record and I do not think any other members of the Court took any different view.
MR WALKER: Well, in this case we have guidelines which clearly govern – and I use that word advisedly – the officer’s recommendations and which were put forward to the Minister as guidelines which he would find useful. There is no ‑ ‑ ‑
HIS HONOUR: There is no dissent from any of that.
MR WALKER: No indication he departed from it.
HIS HONOUR: I know. I just wonder where the Department or the Minister got the idea from, that the welfare of the children or the children ‑ ‑ ‑
MR WALKER: It is from the Convention. It gets odder, as your Honour knows and I suspect was referring to in those last comments, because there are primaries under these guidelines. There is the expectation of the Australian community, the protection of the Australian community and the interests of the children, and they are three primaries. It is said in the guidelines that no other consideration can weigh more than a primary consideration, but not surprisingly it has been said in case law at first instance ‑ ‑ ‑
HIS HONOUR: What was the margin in Teoh’s Case? Was it 4:3 or – Justice McHugh dissented, did he not?
MR WALKER: Justice McHugh dissented.
HIS HONOUR: Did anybody else dissent?
MR WALKER: Not in the result. What I am anxious to avoid is committing myself to ‑ ‑ ‑
HIS HONOUR: No. Well, do not do that.
MR WALKER: ‑ ‑ ‑ a simple answer as to the headcount and the ratio, your Honour.
HIS HONOUR: I should not have asked you of that.
MR WALKER: On the point about the Convention, there are differing ratios. If you express it broadly enough, it becomes relatively nebulous, namely, the Convention is something that is appropriate to take into account, but the ratios are differently expressed in the majority, your Honour.
HIS HONOUR: There is a ratio, is there not, for the proposition that you look to the legitimate expectations of the community rather than the child who was a child of a few months of age or something, a very young child, without any possible comprehension of its situation or his/her situation.
MR WALKER: Yes. Your Honour, legitimate expectation of that kind almost certainly belongs in the category of legal fiction, but nonetheless powerful for that probably. I do not think, with respect, one can find any ratio in Teoh which talks about the gap between realistic infant psychology, on the one hand, and rule of law otherwise.
HIS HONOUR: Anyway, it is unfair for me to put to you a proposition ‑ ‑ ‑
MR WALKER: Not at all, your Honour.
HIS HONOUR: - - - which seems to have been accepted by the Minister anyway or to put the contrary of the proposition that has been accepted by the Minister.
MR WALKER: I would cheerfully volunteer to your Honour that difficulties that lie in our way - were your Honour to grant a rule nisi and the argument was for a rule absolute - include detecting whether, assuming the Minister was following the guideline of his own direction, the triple primacy given to the, in this case, countervailing factors, has led to any error in the balancing exercise. That is going to be a difficult argument. We have a more straightforward argument which I have tried to elaborate to your Honour already, namely, that we were told something would be done which goes to the heart of the exercise.
HIS HONOUR: I am not too sure that that is not your best point in a way.
MR WALKER: Yes.
HIS HONOUR: But some of the other matters - if you look at paragraph 48 of Mr Boe’s affidavit - the so‑called irrelevant considerations, I would need a lot of persuasion that the matters referred to in paragraph 48 are irrelevant. They must be highly relevant to character, must they not?
MR WALKER: Well, not at all points are as good as others, your Honour.
HIS HONOUR: And 49 is really what you – 49.1 and 49.2 I suppose are the matters that you have been addressing me on.
MR WALKER: Yes. Now, that is why I said earlier, your Honour, I have a point which invokes different grounds.
HIS HONOUR: I mean, I have enormous difficulty, I have to tell you, with being placed in the position of deciding what the expectations of the Australian community are.
MR WALKER: And, of course, that is a point that we call in aid because we are the ones with the, what I will call, administrative onus.
HIS HONOUR: Yes.
MR WALKER: If it is hard for your Honour, what is Mr Lam meant to do?
HIS HONOUR: But that is very much a political decision, is it not? When I say as a Judge that I have difficulty with that, it really highlights the proposition that a person best able to give effect to the community expectations is a person who represents the community.
MR WALKER: I suppose the short answer to that, your Honour, is there is no doubt that under our system, and properly so, the person best placed to make decisions using that rhetoric is an elected representative. The notion, however, that anybody, parliamentarian or otherwise, can really describe, having measured and detected so‑called community expectation, is, to adopt the language of my instructing solicitor in his affidavit, somewhat nebulous. For a start, there is no such thing as a monolithic community in this country, probably not in any country, so that the notion of community expectation may only be a no doubt sincere attachment of a label of what might be called broad political approval for a particular position.
HIS HONOUR: Do you say – I mean, I am putting this on you now – that there is no clear ratio in Teoh with respect to expectation?
MR WALKER: No – with respect to expectation? Well, it is very clear in the Chief Justice and Justice Deane ‑ ‑ ‑
HIS HONOUR: If you would like to consider that and tell me about it later, I do not mind. I do not want to put on you ‑ ‑ ‑
MR WALKER: One can certainly combine Chief Justice Mason and Justice Deane, on the one hand, and Justice Toohey, on the other, to get a fairly plain statement that the international law obligation gives rise to something called an expectation clearly not meaning to describe a realistic psychological state in particular individuals. Of course that was the point at which Justice McHugh dissents in such very clear terms.
HIS HONOUR: And what did the other Justices say in that case?
MR WALKER: Well, Justice Gaudron, being the other Justice, takes a somewhat ‑ ‑ ‑
HIS HONOUR: She was in the majority.
MR WALKER: She was.
HIS HONOUR: It was only Justice McHugh who dissented.
MR WALKER: Yes, although – perhaps the thing about Justice Gaudron’s reasons is that her Honour regarded taking into account the interests of the children as a primary consideration as something which would arise quite apart from the Convention, that is it was in the nature of the decision, and spoke rather of an expectation that a civilised society would be alert to those matters, which is ‑ ‑ ‑
HIS HONOUR: Community expectation.
MR WALKER: ‑ ‑ ‑ which is certainly community expectation and is somewhat different from saying that people, as it were, keep a track of what Foreign Affairs announce as the treaties to which we have acceded.
HIS HONOUR: And one possible problem about this is that it may involve assumptions about other societies, the relativities of our society in other societies, whether ours is better or gives better opportunities to children or things of that kind.
MR WALKER: These uncertainties, in our submission, conduce in our favour at this stage of proceedings because they give rise to questions of a kind which we have a reasonable basis to argue, reveal pages 12 and 13 of that report to be perfunctory where they should have been more tailored to the particular circumstances of the particular children. It is never to be forgotten that these two children are Australian citizens and though I fear for Mr Lam, my argument, of course, is an argument which is in the interests of his children. That is the rationale of his point.
In my submission, at this stage of proceedings, a reasonable basis has been shown suggesting that what with the rather confusing notion of the triple primacy in the guidelines, apparently used by the Minister albeit not as a direction, going then to the, in any event, invidious inquiries raised by looking to community expectations which is one of those three primary considerations, coupled with the highly peculiar circumstance of this case, namely that inquiries were to be made by the Department which were not made, coupled with the fact that we can glimpse hypothetically that those inquiries would have revealed more facts about these children than the Minister was ever apprised of, gives rise to, in our submission, the threshold being reached by which a rule nisi can be justified, in that I do not have to persuade your Honour that I would win the case but rather that it is a case fit to be argued.
HIS HONOUR: Mr Walker, can I just take you to Mr Boe’s affidavit?
MR WALKER: Yes.
HIS HONOUR: Because, as you rightly point out, it summarises the argument. I think you have probably said everything you wanted to say about the expectation point.
MR WALKER: Yes.
HIS HONOUR: That is in paragraphs 45 to 47, I think, on page 14.
MR WALKER: I do not need to repeat anything there.
HIS HONOUR: Frankly, I would tell you at the moment I find paragraph 48 very unpersuasive. Is there anything you would want to say about that? I am not foreclosing argument on it but I am giving you an indication of my tentative view.
MR WALKER: As to the first of those points, conflation of the wishes of the Executive Government with the expectations of the Australian community may be realistic in the sense that that is the only way the Minister could, as it were, use that language at all but is, of course, nonetheless a conflation. As to the second point, I do not think I want to say anything about it. As to 48 therefore in toto, it would not, of course, be put forward as an essential part of any one of the arguments.
HIS HONOUR: Yes. Paragraphs 49.1 and 49.2 you really addressed at length on those.
MR WALKER: Yes, your Honour. They are our main point.
HIS HONOUR: Paragraph 49.3 – what is 49.4? I do not quite understand that.
MR WALKER: What happened was that he was given the benefit by the sentencing judge of less than the half term non parole.
HIS HONOUR: He was given a recommendation for parole after two and a half years rather than four years. Is that the point?
MR WALKER: Yes, and what actually has happened is that work release home detention has come awry on the evidence for two reasons, one being a failure to observe conditions with an episode narrated in some detail by the last of the corrective officers to consider this matter, namely not being present at the time of an officer’s visit when he should have been present because he was out getting a video for his children and did not come back for something like 25 minutes later. The second matter related to the discovery of scissors in a part of the prison or in a prison where that was forbidden. In particular the second of those is spoken of by one - the last – of the corrective service officers as a serious matter.
It is significant that all of the other prisons material which is before your Honour, all of the other prisons material by a number of different persons dealing in relation to rehabilitation, observed his tractable, quiet, co‑operative and pleasant presence in the prison. In other words, when he protested in his last communication with the Department that his prison record was excellent, no doubt that is a view with which others can reasonably disagree with respect to the two things I have referred to, but in terms of rehabilitation, in terms of propensities and the like, there is nothing in the material about propensities for criminality apart from the record.
There is a circularity at the end of the last corrective officer’s assessment which says, with respect to a person where the question is the prospect of reoffending, a concept which assumes there had been an offence, really comes down to the fact that the prospects are not favourable because he has offended.
HIS HONOUR: Mr Walker, you would not suggest that when a Minister gives reasons under a section such as this, he has to do anything like what a court would do in giving reasons or making findings?
MR WALKER: No, that would be both impractical and contrary to law.
HIS HONOUR: Yes.
MR WALKER: On the other hand, where there are rights which are enlivened by the nature of a decision, including its reasons, whether one calls them strictly appeal or otherwise, the adequacy of the expression of reasons can functionally be tested by is enough given so as to enable people to evaluate their position with respect to either rights under the Migration Act of the Federal Court or rights under the Constitution to this Court? So, although unquestionably it would be misleading to apply any judicial analogy to a Minister’s reasons, there does have to be sufficient shown.
There is a second aspect to that as well, your Honour. Reasons also provide, more often than not, evidence of what has been done and in this case, as your Honour knows, as I started, we rely upon what was done by way of a representation as to seeking material and what was not actually done by making that good. Now, the fact that nothing is said about that in the reasons has, in our submission, some real and extra significance because of that preceding history.
HIS HONOUR: I had a case up here in which there had been some sort of a defective notice given and I intimated that I would make a rule nisi and I just wanted to give the respondent an opportunity to deal with one minor factual matter. That is why I did not actually make the rule. But the respondent agreed to an order absolute. There was an order absolute made by consent but it raised a similar sort of point. There was an intimation given that in some way it was not pursued. Mr Gageler may know that case. Mr Rangiah, the counsel who was in here a short time ago, appeared in it. It raised a not dissimilar point.
MR WALKER: Yes.
HIS HONOUR: I think I gave reasons for judgment in it. I referred to a Queensland case where a defective notice had been given which gave rise to – I referred to a Queensland case which, I think, was Ex parte Joyce – Queensland Public Service Board.
MR GAGELER: Your Honour, I think it may have been the first round of Taylor.
HIS HONOUR: No, I do not think it was, Mr Gageler. I think it was a person from an eastern country. I am not dogmatic about that, but I think it was a person from the Orient. In any event, it might be worth looking that out. It depended on its own facts. I am not suggesting it would go in this case, but it raised a similar point.
Could I ask you this, Mr Walker, where do I find evidence, if any, of the matter that is referred to in paragraph 52 of Mr Boe’s affidavit on page 16, that this decision was given, in effect, on a blind application of policy and without regard to the merits of the case? You say if that exists it has to be inferred from all the other matters that you ‑ ‑ ‑?
MR WALKER: Very much so.
HIS HONOUR: Because there is no direct evidence to that effect, is there?
MR WALKER: No, there is no smoking gun of a determination to plough ahead.
HIS HONOUR: And, indeed, rather looks the other way, does it not, because the official’s recommendation is put in contingent terms, as it were, “You may consider”?
MR WALKER: Well, that is not only a matter of form, but that is also the way where a Minister’s personal discretion is being exercised under section 501, “It must be”. It is not the linguistic point we take. It is the fact that there has been, as it were, a cleaving to the triple primacy point with such a perfunctory attention to the children’s point which ‑ ‑ ‑
HIS HONOUR: It is to be inferred from all the other matters to which you have referred. Is that right?
MR WALKER: It is what might be called a characterisation of what emerges otherwise. There is no doubt in this case, as one sees from paragraph 24 of Mr Boe’s affidavit, that what we have in that report constitutes the reasons for the decision, for example.
HIS HONOUR: Yes, all right. Well, then paragraph 53 of Mr Boe’s affidavit, “Direction 17 is an unacceptable fetter”.
MR WALKER: Well, the language of “fetter” or the language “acting at the behest” is all bit startling when it is applied to a Minister’s direction directed to officers, which is very carefully put back to him as matters that do not bind him but which could be an appropriate guideline. Again, it is, as it were, a constructive argument in this sense: it says for him to have proceeded in this fashion in relation to his discretion under section 501 is to have proceeded in accordance with a guideline which is unnecessarily inflexible and although he was told he did not have to follow it, we know because that report was supplied as the reasons for the decision that he did.
HIS HONOUR: All right. Mr Walker, just going then to paragraph 59, it is not suggested that I find matters 59.1.1 to 59.1.3 anywhere in the Act do I?
MR WALKER: No.
HIS HONOUR: Not in section 501.
MR WALKER: No.
HIS HONOUR: This is touching upon what you were saying to me before, of course.
MR WALKER: That is right. This is a point at which the primary considerations have a ‑ ‑ ‑
HIS HONOUR: The primary considerations constituted by trinity, in other words.
MR WALKER: Yes. Well, they are primary considerations which bind other officers because they are a direction ‑ ‑ ‑
HIS HONOUR: But they are not to be found anywhere at all in the legislation.
MR WALKER: No, but they are to be found – and the legislation is paramount, naturally enough. Section 499 of the Act, your Honour, is the power to give written directions – this is Direction No 17 – and you see that that is expressed in subsection (1) in extremely broad terms:
directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
On the other hand, subsection (2), as you would expect perhaps tautologously, says that does not restore the pretended power of the ‑ ‑ ‑
HIS HONOUR: Cannot give him greater powers than the Act gives him.
MR WALKER: It does not restore the pretended powers of the Stewart Kings, your Honour. Now, partly, I need to tell your Honour, the arguments that might be on the face of it raised about this direction were dealt with by Justice Sackville at first instance in the Federal Court in the
decision referred to in footnote 18 on page 16 of the affidavit. That is the decision of Bustescu v The Minister [1999] FCA 1713, a decision ‑ ‑ ‑
HIS HONOUR: Do you have a copy of that?
MR WALKER: Yes. May I draw to your Honour’s attention particularly, his Honour from paragraph 21 refers to the directions with considerable quotation and then at paragraphs 36 to 41 disposes, that is, rejects an argument that there was inflexibility in the direction. I do not put any such argument, but I draw it to your Honour’s attention because it is a discussion of some of the problems at hand.
HIS HONOUR: Yes, all right. Well, then I was just drawing your attention to some of these matters. No, I do not think I need draw your attention to any of the other matters in the affidavit, but if you want to say anything about them, you do, Mr Walker. By that I mean the discussion of the other grounds that appear in the affidavit.
MR WALKER: No. Your Honour, I have elaborated everything I would have elaborated in any event.
HIS HONOUR: Thank you, Mr Walker.
MR WALKER: Your Honour, I should say this: both the affidavit, and for that matter all the headings and everything, but the last paragraph of the affidavit, as one would expect, refers to prohibition. I drew to my friend’s attention this morning that the draft order nisi did not for some reason do that and it should. May I hand up a form of that to replace that which is already with the papers?
HIS HONOUR: Thank you. Yes, Mr Gageler.
MR GAGELER: Your Honour, may I deal with my learned friend’s best point first?
HIS HONOUR: Yes.
MR GAGELER: As your Honour has identified, the point has its origin in the decision of the Court in Teoh and when your Honour asks what is the ratio in Teoh ‑ ‑ ‑
HIS HONOUR: Just before you get to that, can I ask you the question that I really asked Mr Walker and which concerns me, and that is the basis for the importation into section 501 of the welfare – I use “welfare” as a compendious term – of the children as a primary consideration. Leaving aside Teoh for the moment, what is the basis for importing it?
MR GAGELER: Your Honour, there is no basis, even in Teoh, for importing it as a consideration that the Minister is bound to take into account in the sense of a relevant consideration going to jurisdiction.
HIS HONOUR: Obviously there would be nothing wrong with the Minister taking it into account, but to found some sort of an obligation.
MR GAGELER: No, and ‑ ‑ ‑
HIS HONOUR: But the Minister seems to be acting as if he is under such an obligation.
MR GAGELER: No, the Minister is seeking to act in conformity with the majority in Teoh and I will take your Honour to the passage because it is important to recognise that what was being said in Teoh is that the obligation to look to the best interests of the child as a primary consideration in decision making which in a practical sense will affect children arises as a matter of legitimate expectation giving rise to an obligation of procedural fairness. It is not that the decision‑maker cannot act contrary to the best interests of the children. It is if the decision‑maker is going to not take the best interests of the children into account, then in those circumstances an obligation of natural justice or procedural fairness arises to tell the children and others affected that that is the intention and allow them to put submissions as to why that should be departed from. But that is as far as Teoh goes.
HIS HONOUR: And it would only arguably be in a case of Wednesbury unreasonableness in dealing with submissions that were made in response to such an opportunity that there might be a basis for relief.
MR GAGELER: Yes, and Teoh certainly does not say that the best interests of the children must in all circumstances be taken into account and it certainly does not say that where the best interests of the children are taken into account, those interests will dictate the result. It would be a misunderstanding of Teoh to read it that way.
HIS HONOUR: And also, I rather think, it might be a result that is in disconformity with the Act.
MR GAGELER: Indeed, your Honour, yes. Can I refer your Honour to the passage?
HIS HONOUR: Yes.
MR GAGELER: Taking “ratio” as meaning the narrowest statement of principle of the Judges constituting the majority of the Court, one finds the ratio of the case really at page 291, where their Honours refer at the top of the page to the ratification by Australia of the Convention, amounting to “a positive statement by the executive government” that Australia “will act in accordance with the Convention”, and their Honours say at about point 3 of the page:
That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision‑makers will act in conformity with the Convention and treat the best interests of the children as “a primary consideration”.
One can then go down from there to the bottom of the page ‑ ‑ ‑
HIS HONOUR: Just before you do that, is the text of the relevant part of the Convention set out in the judgment?
MR GAGELER: It is and your Honour can see that at the top of page 286. Your Honour referred to the words “all actions”, but the remainder of the article makes clear that administrative action is being contemplated as well as judicial action.
HIS HONOUR: “In all actions concerning children”?
MR GAGELER: Yes.
HIS HONOUR: Why is this an action concerning children?
MR GAGELER: I can only answer by reference to the Teoh reasoning, your Honour, and the Teoh reasoning was that it was a ‑ ‑ ‑
HIS HONOUR: If the Convention had said “in all actions affecting, directly or indirectly, children”, or perhaps “in all actions affecting children” or “in all actions indirectly affecting children”. Does the majority anywhere, or any member of the majority explain in Teoh why this is an action - why deportation, ministerial deportation is an action concerning children?
MR GAGELER: I cannot easily point your Honour to a particular passage but the thrust of the reasoning ‑ ‑ ‑
HIS HONOUR: But the decision must be taken to have held that? Because you do not get to the next step ‑ ‑ ‑
MR GAGELER: Yes, and, indeed, there are indications to that effect in the earlier decision in Kioa v West that the deportation of a parent is sufficiently closely connected with the welfare of the children for it to be taken to be an action concerning the children. Your Honour, for present purposes, of course, I must accept the effect of the judgment.
HIS HONOUR: And so must I.
MR GAGELER: It is, may I say, contestable and would, perhaps be contested if an appropriate matter were to go further.
HIS HONOUR: And then to give primacy – Mr Walker rightly points out the difficulties of giving primacy to more than one consideration but then to say that this would ‑ ‑ ‑
MR GAGELER: Again, your Honour, that arises directly from the reasoning of the majority in Teoh. Can I just point your Honour to a couple of other passages following on from what I have already taken your Honour to?
HIS HONOUR: Yes, thank you.
MR GAGELER: At about point 7 at page 291:
The existence of a legitimate expectation that a decision‑maker will act in a particular way does not necessarily compel him or her to act in that way.
They point out that there is, in that respect, a:
difference between a legitimate expectation and a binding rule of law –
bottom of the page:
But, if a decision‑maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.
What is involved giving effect to the Convention or the expectation created by the Convention of taking into account the interests of the children as a primary consideration is then addressed at page 292 at about point 8 where it is said, just after the quotation in the second sentence, that:
A decision‑maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. The decision necessarily reflected the difference between the principle ‑ ‑ ‑
HIS HONOUR: How can that be when the Act requires the Minister to determine whether he reasonably suspects that the person does not pass the character test?
MR GAGELER: Your Honour, can I say how it can be fitted into the scheme of the Act. The Act, in section 501(2) relevantly contains two elements. One, we might label jurisdictional fact. That is the “character test” question. Here, there is no issue but that that jurisdictional fact is satisfied. One then comes to the discretion question and that comes in through the word “may”. That discretion, within the terms of the Act is unfettered save to the extent that the subject matter, scope and purposes of the Act itself ‑ ‑ ‑
HIS HONOUR: May give an indication as to the scope.
MR GAGELER: Yes. But when one looks at the subject matter and purposes of this Act one sees nothing that would limit the Minister taking into account the sorts of considerations brought to bear in this case. It is, however, in the exercise of that discretion that it is in conformity with Teoh. It is said a primary consideration to be taken into account is to be the best interests of the children unless the decision‑maker gives notice that he or she does not propose to take those interests into account as a primary consideration.
HIS HONOUR: And, of course, I think Mr Walker properly conceded that it may be that the Minister would be perfectly entitled to say that other factors outweighed that.
MR GAGELER: Yes, and your Honour will see the way in which the Minister has indicated the decision‑making process is to incorporate the Teoh principle in the direction under section 499 that I think your Honour has already been referred to.
HIS HONOUR: Yes.
MR GAGELER: And the Minister has said that there are three primary considerations to be taken into account. If your Honour wants to look at it, it is exhibit AB‑11 at page 8.
HIS HONOUR: What about what, for example, Justice Hayne said in Jia at paragraph 189.
MR GAGELER: I am sorry, I do not have that with me, your Honour.
HIS HONOUR: His Honour said:
Moreover, the Act, by authorising the Minister to reach the relevant value judgment by having regard to “the person’s past criminal conduct”, as opposed to “the person’s general conduct”, permitted the Minister to form the view that certain kinds of past criminal conduct –
it is a different issue but it throws some light on the construction –
necessarily and inevitably demonstrated that a person was not of good character. Again, so long as the meaning which was thus assigned to the expression “is not of good character” revealed no error of law, the fact that the Minister announced that he or she proposed to administer the Act according to that understanding could not be said to constitute the prejudgment –
which was the issue in that case. But, take a case in which the Minister formed the view, as Justice Hayne said the Minister could, that the conduct “necessarily and inevitably demonstrated” absence of “good character”.
MR GAGELER: Yes.
HIS HONOUR: In such a case could considerations with respect to the children outweigh that finding, inevitable finding or holding?
MR GAGELER: When one gets to the exercise of discretion, that is past the jurisdictional fact question to the exercise of discretion, the answer must, as a matter of principle, be yes, that the interests of the children or, indeed, ties with the Australian community or in any number of factors could bear upon the Minister’s discretionary judgment in a way that would cause the Minister not to deport someone. All Teoh says, properly analysed in our submission, is that in the balancing process that must be inherent in the exercise of discretion, a factor to be weighed is the legitimate interests of the children, it must be weighed as a primary factor of the same order as other factors that might be taken into account, that is not lower down in the order.
HIS HONOUR: Anyway, I am really taking up your time with a matter that is not an issue.
MR GAGELER: It is not really an issue because, for present purposes, we must accept Teoh.
HIS HONOUR: Well, you have accepted it.
MR GAGELER: For present purposes.
HIS HONOUR: Yes. I am not too sure, myself, that it necessarily goes quite as far as your submissions conceded to go but that does not ‑ ‑ ‑
MR GAGELER: Your Honour, I am seeking to explain the way in which the decision making before your Honour proceeded and it proceeded on the basis of ‑ ‑ ‑
HIS HONOUR: - - - basis that Teoh required that appropriate consideration be given to the welfare of the children. Is that a reasonable way of putting it?
MR GAGELER: Yes, your Honour, in the absence of the Minister indicating to the contrary to persons affected and that did not occur.
HIS HONOUR: Before you come to the merits, as it were, of that question, whether there was a consideration, what about the point arising from a failure to communicate with the carer?
MR GAGELER: Yes. Your Honour, Teoh itself involved as one of the arguments put up to the High Court, that there was an error. It was really unspecified how the error arose because of a failure to make the appropriate inquiries to ensure that the best interests of the children were taken into account. That argument was rejected.
HIS HONOUR: But Mr Walker’s argument is slightly different. Mr Walker’s argument is not only was – or Mr Walker’s argument does not even need to be that an appropriate inquiry was not made. Mr Walker’s argument is that an inquiry that it was intimated would be made was not, in fact, made and that itself involved procedural unfairness. One can easily see the basis for that because the next point could be, had Mr Walker’s client been aware that such an inquiry was not going to be made or had not, in fact, been made, then different submissions by him, or on his behalf, on behalf of his client, would have been made.
MR GAGELER: Your Honour, can I deal with that by taking your Honour to the correspondence?
HIS HONOUR: Yes, by all means.
MR GAGELER: Your Honour has been taken to a letter that occurs in the middle of a chain of correspondence. The first part of the correspondence is exhibit AB‑3. Does your Honour still have the ‑ ‑ ‑
HIS HONOUR: I have entrusted my file to the other side of the Bar table. It is back.
MR WALKER: I hope they are all tagged and numbered now, your Honour.
HIS HONOUR: Thank you. I am indebted to you. That is 3, Mr Gageler. Yes, I have it.
MR GAGELER: Yes, AB‑3.
HIS HONOUR: Yes.
MR GAGELER: And your Honour will see that is the initial letter inviting submissions. Page 2 of that letter refers in the third dot point to “the best interests” of the children as a matter to be taken into account and is a matter upon which submissions were then invited at that earlier stage. Attached your Honour will see in the second‑last paragraph is a copy of the Minister’s direction and the last paragraph on that page is an invitation to carefully consider “the contents of the Minister’s Direction”, which elaborately goes through the considerations bearing upon the best interests of the children.
That then invokes the response that your Honour will see behind AB‑4. There is a letter from the applicant and there is accompanying material. The submission that immediately follows the letter refers on the third page in paragraph 29 to the children being cared for by close friends at Forest Lake. Does your Honour see that paragraph 29? Your Honour might have progressed through the material too far. There is a letter which is the page numbered 23 at the top, which is the first page of AB‑4. There is then a submission.
HIS HONOUR: It is always the logistics that fail. I do not have page 26. I have page 25 and then it goes straight to page 27.
MR GAGELER: Can I hand your Honour a page 26?
HIS HONOUR: Thank you.
MR GAGELER: Your Honour will see the sentence that obviously provoked the inquiry. Then page 27 your Honour has. If I ask your Honour to turn to page 28.
HIS HONOUR: Yes.
MR GAGELER: There are submissions there made as to the children in response to that first inquiry. Your Honour, it could have been left at that point. The issue was raised ‑ ‑ ‑
HIS HONOUR: I accept that and ‑ ‑ ‑
MR GAGELER: ‑ ‑ ‑ and submissions were invited and given, and what happened with the letter that your Honour was taken to then at AB‑5 was something going well beyond what might be reasonably thought of as required by any principle of natural justice, that is, having received the submissions, raised ‑ ‑ ‑
HIS HONOUR: Say I agree with that. Say I agreed completely with that. There is still the problem that that constitutes, at the very least, an intimation that contact will be made and views sought from the carer. Now, why is it not procedurally unfair to give an intimation of that kind and not to act upon it?
MR GAGELER: Your Honour, it is always a question of what does fairness require in the particular circumstances of a case. One cannot answer such a question as a matter of principle. In the particular circumstances of this case the paragraph to which your Honour refers clearly enough arose out of an earlier statement which was in very vague terms, not identifying the carer. The response that was received was a response that identified the carer. The carer, however, had already given a statutory declaration, that is, Ms Tran, whose affidavit your Honour has seen, had already given a statutory declaration, which your Honour will note is referred to at the bottom of page 16 of the report to the Minister that was adopted by him as ‑ ‑ ‑
HIS HONOUR: That being so, Mr Gageler, what point was there then in the official’s inquiry as to her address and details?
MR GAGELER: As the letter spells out, it would have allowed the official to make further inquiries, if the official had so chosen to do, but the very same letter, your Honour, invited the applicant himself, if he wished to make further submissions.
HIS HONOUR: Yes.
MR GAGELER: Now, your Honour, it is not suggested in the circumstances of this case that the applicant was himself in any way misled by the terms of that letter. There is no evidence to that effect. What had occurred, your Honour, if I could just put it globally, was that the issue was squarely raised. The applicant was invited to make whatever submissions were appropriate. The applicant did so. The applicant was then asked a question of clarification so that the Department, if it so chose, could follow up with further information, and even in so doing, the applicant was asked to make any further submissions he may wish to on that topic.
Now, the fact that the Department, with the benefit of all of the material it had, chose not to go any further does not give rise to any breach of the rules of natural justice in that context, in my submission.
HIS HONOUR: I have to tell you I am concerned about it, Mr Gageler.
MR GAGELER: Yes, your Honour.
HIS HONOUR: It is a narrow point.
MR GAGELER: It is extremely narrow.
HIS HONOUR: It is a very narrow point, but at the moment I am not convinced that it is not a good one. He receives a letter of that kind. It may be that – well, let me put it to you this way: no doubt the point would be stronger if he had said somewhere in his material, the applicant, “Well, when I received that letter I immediately formed the impression that contact would be made”, and contact was not made and had it been made, the carer would have been able to, for example, answer the questions that are raised by the official as to the children’s linguistic skills and capacity to adapt, say, to Vietnam, and questions of that kind.
MR GAGELER: Yes.
HIS HONOUR: But that sort of evidence in a sense has something of an air of unreality about it and a procedural unfairness point does not really require that for its establishment.
MR GAGELER: No. My learned friend, I would concede, would have the beginnings of a natural justice argument if it were the fact that this letter created such a legitimate expectation that there would be a visit and an inquiry by the Department to determine the facts that ‑ ‑ ‑
HIS HONOUR: Well, that, I think, is a question whether – you see, when you put that to me, you are really putting to me a proposition that I have to say I personally seriously doubt that procedural unfairness points are really invariably, in effect, legitimate expectation points. I do not think they necessarily are.
MR GAGELER: No, and I agree with your Honour. I agree with your Honour, but ‑ ‑ ‑
HIS HONOUR: And I said as much in a case, that you did not need – I think it was an immigration case; I said it personally; I do not know whether anybody else said it; I am trying to think what the name of it was – that you do not need this structure of legitimate expectation, which seems to be becoming more and more – or there seems to be a perception that you need it as a foundation for a natural justice point.
MR GAGELER: Your Honour is absolutely right. I should not have used the language. What I was really trying to get to was that it would only be where the statement in the letter could be shown to have led to unfairness in the sense of submissions not being made that would otherwise have been made.
HIS HONOUR: Why should I not infer it?
MR GAGELER: Your Honour, because this is an order nisi application in which ‑ ‑ ‑
HIS HONOUR: Why should I not infer that it is arguably so? I know there is an onus upon the ‑ ‑ ‑
MR GAGELER: Yes, it is really up to the applicant to put his best foot forward. Your Honour will see that the letter which is dated 7 November asked for comments by a particular date, by 21 November, that is that what was being sought from the applicant was further submissions on a particular topic by a particular time.
HIS HONOUR: It is 5, is it not? What is the letter?
MR GAGELER: It is 5, yes.
HIS HONOUR: Let me just have another look at it.
MR GAGELER: All that the response was, was the ‑ ‑ ‑
HIS HONOUR: Mr Gageler, what could be clearer:
The Department wishes to contact them in order to assess your relationship with the children, and the possible effects on them of a decision to cancel your visa.
I mean, it is a clear statement that that is intended.
MR GAGELER: Yes. I do not deny that, your Honour.
HIS HONOUR: And furthermore, that the communication has every prospect of being an informative one, a useful one.
MR GAGELER: Yes. I fully accept that, your Honour.
HIS HONOUR: But then it is not done.
MR GAGELER: No. But the fact that it is not done is not procedural unfairness. There would be procedural unfairness if ‑ ‑ ‑
HIS HONOUR: No, no. The procedural unfairness lies, if it does lie anywhere, in making a statement of intention which is not in any way carried out.
MR GAGELER: Well, no, your Honour. Can I ‑ ‑ ‑
HIS HONOUR: And I should add, and the effect of that statement upon the person to whom it is made.
MR GAGELER: Yes, and it is the last point that is critical. Your Honour, what the applicant was invited to do was to make further submissions. The applicant did make a further, albeit limited submission upon 14 November, within the time period, and there is nothing in the papers to show that the applicant was in any way unfairly misled by not making submissions.
HIS HONOUR: That is your submission.
MR GAGELER: Yes.
HIS HONOUR: Your submission is that there needed to be and there has not been any evidence that the applicant was in any way disadvantaged by this statement of intention.
MR GAGELER: Exactly, your Honour, and it is only in those circumstances that one gets ‑ ‑ ‑
HIS HONOUR: Is it any more than that that you say?
MR GAGELER: No, your Honour, no.
HIS HONOUR: Well, what do you say as to a proposition that that might be an irresistible inference, particularly when it is made formally by a senior official and it relates to a very serious matter and if the intention had been carried out useful information might have been obtained, that all of that is a matter of irresistible inference. What do you say to that?
MR GAGELER: I am not sure I got all of it, your Honour.
HIS HONOUR: You got the sense of it.
MR GAGELER: But I accept fully that had the intention been carried out, useful information might have been obtained. I accept that. That does not, however, deal with the point. Has unfairness to the applicant been created by the inquiry not occurring? That is the question.
HIS HONOUR: It is a pretty low threshold only that Mr Walker has to get over at this stage.
MR GAGELER: Well, your Honour, he has the means of proving facts directly if they be the fact. I do not and your Honour should not be bound to make an inference which would lead to the matter going before the Full Court in relation to which the issue is ultimately factual and it may or may not be right. Your Honour’s inference may or may not be right when the facts are fully examined. That is the point. Your Honour, I think I have exhausted that point.
HIS HONOUR: Yes, thank you.
MR GAGELER: Unless your Honour wishes to ‑ ‑ ‑
HIS HONOUR: No, no. I think I understand your submission, thank you. Yes, I understand your submission. Would it be convenient to you if we go to the paragraph, the argumentative – and I do not say that in any pejorative sense, but the argumentative paragraph.
MR GAGELER: Yes. Your Honour, can I say this? We were unable to prepare an outline of argument within the time frame indicated by the Registry. We do have a document which I can hand to your Honour. Your Honour may find it more convenient simply to ‑ ‑ ‑
HIS HONOUR: Well, to go through them quickly the way I did with Mr Walker would seem to me to be quite convenient.
MR GAGELER: Yes.
HIS HONOUR: It starts, I think, at paragraph 45 and I do not know whether you would need to add anything to what you have already said about expectations but you do if you think you should.
MR GAGELER: No, I do not think I do, your Honour.
HIS HONOUR: I can tell you that I find it difficult to see why the matters referred to in paragraph 48 should be regarded as irrelevant. I do not know whether you want to add anything.
MR GAGELER: I wholeheartedly agree with that, your Honour.
HIS HONOUR: You have really addressed in relation to 49.1 and 49.2.
MR GAGELER: Yes.
HIS HONOUR: All of the matter relating to the possible rehabilitation of the applicant, all of that matter was before the Minister, was it not?
MR GAGELER: Yes, it is all there and these points, 49.3 through to 49.6, are just another spin on the material that was before the Minister. They are not separate considerations not taken into account.
HIS HONOUR: And the Minister does not have to refer to each and ever one of them in his decision. Is that right?
MR GAGELER: Well, there are really two points. One is that they are not, any of them, factors that the Minister is bound by the statute or any other principle to take into account but secondly, where the Minister has material before him, he is not bound to polish or mould that material into propositions favourable to an applicant and then deal with those propositions. So that, I think, deals with paragraph 49.
HIS HONOUR: Well then, paragraphs 51.6 to 51.8, they are really the matters relating to the children again, are they not?
MR GAGELER: Yes, your Honour, but here it is put as Wednesbury unreasonableness.
HIS HONOUR: Yes.
MR GAGELER: In my submission it cannot rise to that level.
HIS HONOUR: I did not really understand Mr Walker to press 52 very hard.
MR GAGELER: No. It is a difficult submission for him to make, given two things, given that the terms of the direction do not purport to bind the Minister but other decision‑makers and secondly, given that the material put before the Minister for his decision and adopted by him makes quite clear in paragraph 5 that the direction was simply a useful guide to his decision making, not something that bound him.
HIS HONOUR: Well, the same sorts of points are articulated right up until the end of ground 4. Ground 5 raises nothing new.
MR GAGELER: No.
HIS HONOUR: And I do not think 60 has been made out.
MR GAGELER: Correct. It is a presumption, at best.
HIS HONOUR: Paragraph 62 certainly has not been made out.
MR GAGELER: It looks like a heading. It was never filled in with text, your Honour.
HIS HONOUR: Yes.
MR GAGELER: And similarly with the following ones. As I said, your Honour, we have a document that contains some detailed factual references. If your Honour would be assisted, we can hand it up.
HIS HONOUR: Well, it might be useful. Yes, thank you. Now, you gentlemen are up from Sydney and you are both in the next matter. What would suit you? In order to dispose of both matters today, I would be willing to adjourn shortly and to resume at quarter to 2, but I do not know what your arrangements are or ‑ ‑ ‑
MR GAGELER: My arrangements are flexible enough to fit in with any regime, your Honour.
HIS HONOUR: Well, would that suit you both?
MR WALKER: Whatever suits your Honour, yes.
HIS HONOUR: All right, thank you. Did you want to add anything now or ‑ ‑ ‑
MR GAGELER: No, your Honour.
HIS HONOUR: Mr Walker, let me tell you what my provisional thinking on this is at the moment. I am concerned about the intimation, indeed, it is more than an intimation; it seems to me to be unmistakably ‑ ‑ ‑
MR WALKER: An announcement.
HIS HONOUR: ‑ ‑ ‑ an announcement of an intention. What do you say to Mr Gageler’s proposition that you should have put on some evidence?
MR WALKER: Quite simply what the letter says - I do not have to call in aid the fact that my client may not be as fluent in English as the writer of the letter. What the letter says is:
In light of the above, please ensure that any comments you wish to be taken into account as part of the consideration process, are received in this office by 21 November 2000.
“In light of the above”. What was above? What was above were two things. The first was the Department wishes to contact the people whose details we seek. The second was:
the Minister may decide to personally consider your case.
Now, those are the matters above. The matter of substantive submission clearly concerns the children, but as I put in‑chief, what the Department was doing by that announcement was saying, “You have said what you said about your children, namely, you are very close to them, they are looking forward to you getting out, they are citizens, they were born here, they go to school here, you got on well with them when you were out of prison, but now we want to find out something. We wish to contact them in order to assess - that is, the weighing up, finding out the facts - your relationship, the possible effects.”
HIS HONOUR: You still really require me to draw an inference though, do you not?
MR WALKER: Well, the inference is clear, first, that the – first, the finding is direct that the Department made an announcement that they were going to do something.
HIS HONOUR: There is no problem about that. Mr Gageler says that he accepts that, but he says that there has to be evidence that that affected your client.
MR WALKER: That is simply, with respect, wrong for these reasons. The letter itself, that is, on the facts of this case, when it refers to any further comments is a letter which itself made that request, and I quote, “In light of the above”, none of which would be ‑ ‑ ‑
HIS HONOUR: They are powerful words.
MR WALKER: ‑ ‑ ‑ calculated to have, as it were, my client go back and say, “Goodness, maybe they aren’t get further material to assess this. Maybe I do have to go over the ground again”, because he has been told they wish to contact them in order to assess.
HIS HONOUR: And, indeed, I suppose she might be able to provide information that he simply could not provide because of his incarceration.
MR WALKER: He is incarcerated. That is right. Now, the next thing is this. It is not the law as to procedural fairness that the plaintiff needs to prove what I will call subjective disappointment or subjective disillusion as to the fairness of the proposal.
HIS HONOUR: Well, it is very often very unpersuasive sort of evidence. Of course, he would say that, would he not?
MR WALKER: Quite. In any event, what is made out is that there has been a departure from a norm of procedural conduct which the law requires in the interests of the regulatory of process rather than the merit of the outcome. So one looks at the process and the process here went beyond the correspondence with which the parties commenced, but went to this point of saying there will be a contact for assessment. Now, one will not know – we did not know and one could not know that that was not done and, therefore, was not going to be taken into account until the decision was made.
There was no announcement of a kind which would have taken all sting out of this letter, “That this has proved impractical, there will be no contact, there will be no assessment based upon the kind of thing. Now do you want to add anything to what you have said earlier?”. If there had been a letter of that kind, the force of my learned friend’s position would have been very considerably strengthened. Without matters of that kind, it is of no moment to say that there is no evidence from us that we harboured any particular mental state between that letter and the decision. When the decision comes out eventually, regrettably, we sue. Now, simply, there is no legal doctrine that requires us to provide evidence about, as I say, the emotional impact that that may have had on us.
Your Honour has asked some questions about the ratio in Teoh 183 CLR. Can I give you these page references? In the reasons of
Chief Justice Mason and Justice Deane at page 289, at the end of that paragraph ending on that page, about point 3 on the page, the point your Honour asked my learned friend about is raised in particular and there is a conclusion that:
A broad reading and application of the provisions in Art 3, one which gives to the word “concerning” a wide‑ranging application, is more likely to achieve the objects of the Convention.
HIS HONOUR: Look, I do not want you to take up time on that. It is not an issue.
MR WALKER: And I add another one for your Honour: page 302 Justice Toohey in the first full paragraph, again, about point 3, and that in particular was what I had in mind.
HIS HONOUR: For present purposes Mr Gageler accepts it anyway.
MR WALKER: I do not think I need to add to it. The passage I was referring to in Justice Gaudron was at 304, 305.
HIS HONOUR: Thank you for that.
MR WALKER: Your Honour, that is all I wanted to say in reply.
HIS HONOUR: Yes, all right. I will tell you what I propose to do in this case. I would dismiss the application except so far as relates to a question of procedural unfairness arising out of the statement of intention to contact the carer. So far as that matter is concerned, I would give leave to the applicant to make application to the Full Court for relief under section 75 of the Constitution confined to that ground. Is it clear what I have in mind?
MR WALKER: Yes, it is.
MR GAGELER: Yes.
HIS HONOUR: Now, I am saying what I intend to do because I was going to invite you, over the adjournment, if possible, to agree upon a ground which reflects that decision. Were you going to say something, Mr Gageler?
MR GAGELER: Yes, your Honour. It gives rise to the difficulty of the facts that would be before the Full Court. Now, my learned friend says he does not need an inference to be drawn.
HIS HONOUR: Well, he stands or falls on the material, as I understand it, that is put before me now. Now, if he wants to try to get other material in, that would be a matter for the Full Court. I suppose what I am saying is tantamount to saying that he has an arguable case. I think what I am saying is that he has an arguable case that he does not need evidence on that point at all. Alternatively – and I hope I reflect what he has submitted to me – it is an available inference that the Court should draw in any event. It may be the same thing what I am putting as an alternative, but is that your position on the current material, Mr Walker?
MR WALKER: Would your Honour give me the adjournment to reflect on that? The answer is, “I think so”.
HIS HONOUR: Well, I am not making any order at this stage. I am really saying what my very strong inclination is and I invite you both to confer to try to draw a ground upon which you would agree that raises any questions that – I am sorry, that brings to the Full Court a breach of natural justice of the kind to which I have referred. I would want to make it clear I am not drawing the inference, because I am not even making a rule nisi at this stage. The Full Court might take the view that the inference is not open or, indeed, that necessary proof is wanting on this matter, and that might be a view that I would take on full argument but ‑ ‑ ‑
MR GAGELER: Yes. Your Honour, can I be absolutely frank in what I am saying?
HIS HONOUR: Yes.
MR GAGELER: It is really a factual one, that is, my learned friend places certain material in affidavit form before the Court and asks for certain inferences to be drawn. I may wish to test that material. For example, in the affidavit of Ms Tran, in paragraph 12, in the second‑last sentence it is said that:
There are however regular weekly letters and phone calls between the children and their father.
Now, it may ‑ ‑ ‑
HIS HONOUR: But why did you not seek to have the deponent available for cross‑examination before me?
MR GAGELER: Well, perhaps I did not perceive the way in which the argument would unfold, but what I am concerned about now, if an inference is sought to be drawn from the material, it may well be that I would wish to cross‑examine on that point.
HIS HONOUR: But why should you be allowed to cross‑examine now?
MR GAGELER: Because, your Honour, what is ‑ ‑ ‑
HIS HONOUR: Because Mr Walker says that the inference – he takes two positions, I think – he wants to consider it over the adjournment – but the first position is that the letter is enough, that there is no need to draw an inference, that procedural unfairness arises by making a statement of intention which is not implemented.
MR GAGELER: Yes.
HIS HONOUR: Alternatively, he says, if he does need to go further than that he can because this is the available inference and a court ought to draw it.
MR GAGELER: Yes.
HIS HONOUR: But that does not depend upon the passage to which you just referred.
MR GAGELER: No, no. But, your Honour, the point is, that on a final hearing if an inference is to be drawn, as it were, on the balance of probabilities on a final basis, it may be something that I would wish to be able to test by whatever means were available to me.
HIS HONOUR: Yes, but that would only arise if Mr Walker wants to rely upon anything other than the statement in the letter. Is that right?
MR GAGELER: I agree with that, yes. It would only arise if he wants to read the affidavit of Ms Tran.
HIS HONOUR: I do not expect you to give me an answer to that now but could you think about it. I will adjourn now, Mr Walker.
MR WALKER: Yes, your Honour.
HIS HONOUR: Would you give some thought to that.
MR WALKER: Yes.
HIS HONOUR: It may be that you will be on a form of election, as it were.
MR WALKER: Yes.
HIS HONOUR: But look, I am not asking you to give me an answer to that now. If I adjourn now till a quarter to two, is that convenient?
MR WALKER: Yes.
MR GAGELER: May it please, your Honour.
AT 1.12 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 1.50 PM:
HIS HONOUR: Just before you tell me your attitude. Mr Gageler, a similar point did come up in – I have found the case. It was Re The Refugee Review Tribunal and Another; Ex parte Aala and it ultimately went to the Full High Court but what happened there was that the Tribunal had given - and I use the term compendiously - a misleading signal to the applicant and I do not think – I cannot recall, but I do not think there was any evidence as to the way in which the applicant acted on it. There may have been. I am not certain. But that was the case I had in mind.
MR GAGELER: Yes. We will look carefully at that. Mr Walker and I have discussed the factual questions between ourselves. We think that we will be able to resolve them without needing to bother your Honour.
HIS HONOUR: So, in view of the intimation that I have given, would the order be ‑ ‑ ‑
MR WALKER: Your Honour, the only thing we wish to say about the order is this. The confinement of the contention ought to be by reference to the letter of 7 November 2000 so as to permit me to argue my primary point, which is procedural fairness but also so as to characterise that in the alternative as leading to Wednesbury unreasonableness of the outcome and pace my learned friend’s misgivings, I would also wish to reserve the right for consideration to be given to whether or not that could have a third characterisation, namely a failure to take into account relevant considerations.
HIS HONOUR: Let me deal with your second first. You have not persuaded me that this is a case of Wednesbury unreasonableness, even on a prima facie basis.
MR WALKER: It would only, your Honour, be arising from the denial of procedural fairness from the letter of 7 November and I do not want to say anything more about your Honour’s prima facie view, otherwise on Wednesbury unreasonableness. It is only on this point.
HIS HONOUR: How could you get Wednesbury unreasonableness out of the letter, that no reasonable decision‑maker could possibly have made a decision at all without communicating with the carer.
MR WALKER: Well, it could have come up with the decision in the manner it was come up with leaving this hanging in the air.
HIS HONOUR: That is really what I was putting to you, I suppose. What do you say about that, Mr Gageler?
MR GAGELER: Your Honour, it is really not a tenable argument and it is very similar to the argument that was put and rejected in the High Court in Teoh’s Case itself.
HIS HONOUR: Yes. All right. Your third possible ground that you wanted to argue, what was that again, Mr Walker?
MR WALKER: Well that is, again, another characterisation of the consequences of the same point, still on the letter of 7 November, that it led to the decision being taken, failing to take into account relevant considerations, namely ‑ ‑ ‑
HIS HONOUR: That is a different matter. Thank you. You have the same sort of problem with that as I see in relation to Wednesbury unreasonableness.
MR WALKER: But what I am not asking for, your Honour, is to expand the contention so far as it is based upon the letter of 7 November. I wish to be as cautious as I may, however, about the ‑ ‑ ‑
HIS HONOUR: Well, I do not see the problem about this third ground. Mr Gageler, do you want to say anything about that?
MR GAGELER: No, your Honour.
HIS HONOUR: No. Well, perhaps what I should do is give good, brief reasons why I dismiss the application except to the extent that I do and when I have done that we can decide just how the matter is to proceed from now on.
The applicant in this matter seeks relief pursuant to section 75(v) of the Constitution. The circumstances of the applicant and the grounds upon which he relies in support of his claim for relief are fully set out in the affidavit material filed on his behalf, particularly in the affidavit of Mr Boe, his solicitor. The material also sets out the personal circumstances of the applicant and his children and details of his criminal record which formed the foundation for the decision by the respondent Minister effectively to deport the applicant following upon his application of section 501 of the Migration Act 1958 (Cth).
The applicant relied upon a number of grounds, the first of which was that he had been denied natural justice. To that ground I will return in due course. The applicant made a submission that in reaching his decision the Minister had taken into account irrelevant considerations, being the respondent’s views as to the Executive Government’s wishes, opinions stated in a report by a prison officer which went to the likelihood of re‑offending and the continued existence of past gambling debts. I am not satisfied that those matters are by any means irrelevant to the considerations to which the Minister was entitled to have regard in reaching his decision.
It was also submitted that relevant considerations were not taken into proper account, being the best interests of the children and their citizenship, steps taken towards rehabilitation by the prosecutor, the trebling on the time that the prosecutor should have expected to be held in gaol before release on parole, the pre‑sentence co‑operation of the prosecutor and the impact of the prosecutor’s removal from Australia upon his Australian connexions. Even if I were satisfied that all of these were relevant considerations which the Minister was bound to take into account, which I am not, I am by no means satisfied that the material before the Minister, and to which he must have had regard, did not deal sufficiently with these matters.
The second ground was that the respondent’s decision involved an exercise of power that was so unreasonable that no reasonable person could have so exercised that power. I would not accept that submission. The offence of which the applicant was convicted was an extremely serious one, that is to say the offence of which he last committed, and he has a criminal record, albeit a fairly old one, which involved the commission of some other serious offences.
The respondent obviously had regard to a wide variety of matters in reaching the decision that he did and I could not be satisfied that no reasonable person could have decided as the respondent did. The applicant has failed to make out a case that the decision was, as submitted, an improper exercise of the power conferred by the Act or that it was made in accordance with a policy direction that was invalid in that, in effect, it improperly fettered the exercise of the respondent’s discretion. The material shows that the respondent appreciated that he did have a discretion to exercise and a very wide variety of matters was put before the respondent to enable him to reach the conclusion which he did. Nor has any case been made out that the respondent’s decision was an exercise of a personal discretionary power at the direction or behest of another person.
It was further contended by the applicant that the respondent did not observe the procedures required by the Act in connexion with the making of the decision. No expanded oral submissions were made in relation to this particular ground and nor could they have convincingly been made. It appears to me that, subject only to a matter to which I will shortly refer, the respondent adopted proper procedures.
No case has been established that the respondent’s decision involved an error of law being an incorrect interpretation of the applicable law. The material shows that the respondent appreciated that a wide range of matters might be relevant to his decision and that he had a discretion to exercise. He did not, therefore, incorrectly interpret the applicable law. I am not satisfied that there was no evidence or other material to justify the making of the respondent’s decision. There was an abundance of material before him upon which he could form the view that he did.
All that I have so far said should be taken subject to what I am about to say now, and that is that I do consider that a prima facie case arises for consideration as to whether there has been a breach of the rules of natural justice or procedural unfairness. The question in that regard arises in this way. On 7 November 2000 Mr Collins, an official in the Department of Immigration and Multicultural Affairs, wrote to the applicant, who was then in prison at the Borallon Correctional Centre. Mr Collins advised the applicant in that letter that the Minister might “decide to personally consider” the applicant’s case and that, were the Minister to cancel the applicant’s visa under section 501 of the Act, a “merits based review through the Administrative Appeals Tribunal” would not be available, although the applicant might have the option of pursuing judicial review through the Federal Court. Of more importance, Mr Collins wrote that:
“The United Nations Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the children shall be a primary consideration” –
after having earlier noted that the applicant was the father of two children, currently residing with carers. There then followed a paragraph:
“Would you therefore kindly provide the full name, address and telephone number of the children’s carers. The Department wishes to contact them in order to assess your relationship with the children, and the possible effects on them of a decision to cancel your visa.”
The applicant responded to the letter by, among other things, informing its author of the information requested in the paragraph that I have quoted. However, no attempt was made by Mr Collins, or anyone else from the Department or on behalf of the respondent, to contact the carer. In those circumstances, it seems to me, the applicant could well have been misled and may have failed to provide further information to the respondent in the expectation that contact would be made with the carer, who would in turn be in a position to provide the Minister with relevant and useful information to assist him in the exercise of his discretion.
It was argued on behalf of the respondent that the Court should not draw any inference as to the state of mind of the applicant, whether he was misled or otherwise, in the absence of evidence which could have been provided, but was not provided, by the applicant that he was so misled. I express no concluded view about that proposition. It does seem to me, however, that it is arguable that there may have been procedural unfairness and that it may be that direct evidence on the subjective state of mind of the applicant is not required in circumstances such as these.
My intention, therefore, is to dismiss the application, except as to a ground of procedural unfairness or breach of the rules of natural justice arising out of the statement of intention to contact the carer, which was not, in fact, carried out. I have discussed with counsel the form of grounds that I would order be referred to the Full Court for its decision as to whether a rule nisi or, indeed, perhaps, a rule absolute should be made. The ground that I contemplate is one that would reflect two alternative submissions or positions on the part of the applicant: one, that the dispatch of the letter, the applicant’s response to it and the failure to act upon the statement of intention involve procedural unfairness such that orders under section 75 of the Constitution should be made, and the other that – how would you best articulate that, Mr Walker? That was the third proposition that you ‑ ‑ ‑
MR WALKER: By reason of the failure of the Department to carry out its announced intention there was a failure to take into account relevant considerations.
HIS HONOUR: Is that any different from the first one that I mentioned? I rather suspect it is not, is it, Mr Gageler?
MR GAGELER: I think Mr Walker seeks to base it on a different jurisprudential ground, your Honour.
MR WALKER: Yes.
HIS HONOUR: Perhaps we should state that, the different jurisprudential ground upon which you would rely for that. How would you state that?
MR WALKER: Your Honour, the formulation I have just expressed ‑ ‑ ‑
HIS HONOUR: You put it differently before, I think, in a way that impressed me as being different at the time.
MR WALKER: More than what I have just said, I am sorry, your Honour.
HIS HONOUR: It impressed me as being different at the time, Mr Walker. Look, I have made the position fairly clear, I think. Whether I should make an order in these terms, that – what I have said with respect to the form of the ground is a general indication only and I would invite the parties to formulate the ground in its bifurcated form for consideration by me and perhaps I can make an order.
MR WALKER: May it please, your Honour.
HIS HONOUR: Is that satisfactory to the parties?
MR GAGELER: That is. Can I just be clear? Your Honour is contemplating, I think, an order or a direction under Order 55 rule 2 that an application be made by notice of motion to the Full Court by Mr Walker.
HIS HONOUR: Yes, you are quite right, that is exactly what I did have in mind, and the notice of motion should specify a ground or grounds of the kind that you gentlemen are going to draw up. Is that clear?
MR GAGELER: Yes, it is.
MR WALKER: Yes, it is, your Honour. I think equally clear is that, although my present application is, of course, for a rule nisi only, that which your Honour is referring would not preclude ‑ ‑ ‑
HIS HONOUR: No, I thought I made that clear ‑ ‑ ‑
MR WALKER: You did in your reasons.
HIS HONOUR: ‑ ‑ ‑ when I referred disjunctively to an order absolute. I cannot speak for the High Court, but, as you know, the High Court in all probability, if it is prepared to give you an order nisi, it will almost certainly give you an order absolute, I would think.
MR WALKER: If, after full argument, that is so, one would imagine so in the interests of economy, if nothing else, although, of course, there is a different threshold with respect to a rule nisi as there is for a rule absolute, so long as it is clear that what your Honour intends to refer is not merely today’s application, which is for a rule nisi, but the, as it were, embryonic application for a rule absolute as well.
HIS HONOUR: Whether you should have a rule absolute will be for the Full Court and I certainly do not intend to say anything that would foreclose that possibility and, for that matter – no, I will not say any more than that. Is that clear then what the position is?
MR WALKER: Yes, your Honour.
MR GAGELER: Yes, your Honour.
HIS HONOUR: And what about costs? I should certify for counsel. Do I need to certify for counsel again?
MR GAGELER: I think we do.
HIS HONOUR: I will certify for counsel. I should reserve the costs, should I not?
MR WALKER: Yes.
MR GAGELER: May it please the Court.
HIS HONOUR: Is that convenient? All right. Thank you. There is nothing more in that matter, is there?
MR WALKER: No, your Honour.
AT 2.20 PM THE MATTER WAS CONCLUDED
0
1
0