Le v MIMIA

[2005] HCATrans 1037

[2005] HCATrans 1037

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P16 of 2005

B e t w e e n -

VAN TU LE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 1.26 PM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR H.N.H. CHRISTIE, who is in Perth, for the applicant.  (instructed by Henry Christie)

MR P.R. MACLIVER:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  This is a case which does not present an opportunity for this Court to make a new rule or to reshape a rule in a way that might perhaps not be in accordance with current understanding.  In that sense, it does not raise a question of general public importance concerning a body of legal doctrine in administrative law.  It is enough for that concession to be rendered an obvious one, to observe that the argument that we raise is an argument about the requirement for procedural fairness, itself not contested, in relation to the particular circumstances obtaining as my client sought to excite a discretion in his favour by the Minister acting personally.

GLEESON CJ:   I had an impression that the point of departure between Justices Finn, Jacobson and Bennett on the one hand and Justice Lee on the other was a matter of fact concerning the sufficiency of the issues paper to disclose to the Minister the essence of the applicant’s claim about the welfare of the children.

MR WALKER:   Quite, yes.  We would invite the Court to consider that as raising this opportunity for the Court being the first of the reasons why special leave should be granted.  This is about the requisite standard to be achieved and the case does present an opportunity of a kind which this Court can and should take for this reason.  The standard of précis making or summarising sounds as if it ought not to engage the attention of this Court either at all or more than once.  But, in our submission, it is of the very essence of ministerial government that when a personal ministerial decision is to be made, particularly in a system where delegated decisions have internal merits review and personal decisions do not, that from time to time the Court visit to see that there is in fact a substantive, a real and genuine examination of matters, particularly when those matters do not concern the application of rules, but concern the excitement of a favourable discretion, including discretions ad misericordiam and, most particularly, including discretions concerning the benefit or detriment to others, namely, children to whom a privileged position is given in administrative practice and legal regard all for a social good.

KIRBY J:   Is it true to say that Justice Finn and the majority in the Full Court considered the decision‑making process in this case to have been inadequate?

MR WALKER:   Yes.

KIRBY J:   I notice in paragraph 126 the majority say they agree with that determination.

MR WALKER:   Yes.  Every one of the judges – Justice French it was at first instance made a number of comments.  Every one of them made comments which were deprecating, polite but deprecating, of the process but not in such a way as to, according to their Honours, fail the requisite standard.

KIRBY J:   So is the point of distinction between Justice Lee who considered that an error of jurisdiction had occurred and the other justices who considered that the error, if there was one, was made within the jurisdiction of the Tribunal?

MR WALKER:   Yes.  It was about:  was the standard achieved by which, to adopt and adapt words of Justice Gummow from 1987, quoted in the application book at page 139 in the majority’s paragraph 100, application book line 34, was it “proper, genuine and realistic”.  Now, when, under a system of ministerial government, decisions of the most profound and personal impact upon an individual and their children are being made by ‑ ‑ ‑

GUMMOW J:   That was an AD(JR) case, was it not?

MR WALKER:   Yes, your Honour - are being made by a Minister personally exercising, as it were, the most profound governmental power against an individual with impact upon children, then, in our submission, what might otherwise be dismissed as a mere individual complaint about the quality for summary or précis by a public servant being put to a busy Minister assumes a different guise.

KIRBY J:   I do not know how to read that statement in the issues paper that they could visit their father if they so choose, whether that is to be interpreted and whether the Minister would read it as meaning, well, do not worry too much about the cost and the inconvenience and the difficulty, or this is not a country that will refuse entry to them to come and see him.

MR WALKER:   It is probably the latter.  It might be the former.  That, of course, is not to the forefront of our complaint though it is part of the context.  To the forefront of our complaint is that what was put before the Minister included, application book pages 16 and 17, a repeated plea, and this is an English translation, which even in translation must have struck some chords, which you see, for example, page 16, line 15:

heartbroken knowing that I will not have the choice to stay to care for my three young children. 

And then you have at line 22 on that page the seducer having had put to him the potential break‑up of the family.  And then on page 17, line 9:

The reality in my life now is looking after my three young children.

That is the closest the material before the Minister by way of an annexure came to the current state of relationship, and then he returned to his plea:

allow me to stay with my children to care for them –

And then the next paragraph, line 14:

have the opportunity to care for my children ‑ ‑ ‑

GUMMOW J:   Mr Walker, what is the jurisdictional error?

MR WALKER:   The jurisdictional error is a denial of procedural fairness in being heard to press upon the Minister reasons for a favourable exercise of discretion, the character test having been failed by the conviction.  It was then left to discretion.  Because it is left to discretion, because the character test is failed by statute and because of our international obligations and, in any event, the decency of the position in relation to considering the children, the fact that it was discretionary heightens rather than reduces hearing what the man has to say.

GLEESON CJ:   Then the key question is that that appears on page 139 in the first sentence of paragraph 100.

MR WALKER:   Yes, it is and, in our submission, that is a sentence that attracts, to put it mildly, raised eyebrows, because:

the information in the Issues Paper, together with the annexures –

I have taken you to the best part of the annexures ‑ ‑ ‑

GLEESON CJ:   Do the annexures include the remarks on sentence of the sentencing judge who dealt with him for the machete incident?

MR WALKER:   Yes, they do.

GLEESON CJ:   Where do we find those?

MR WALKER:   That is annexure E and you find that starting at page 26, line 30:

Would you stand, please, Mr Le.

Those continue over to page 32.  In relation to family, one has at page 30, line 18:

caring and concerned father and have the welfare of your children at heart.

I should say at the top of that page also, end of the first paragraph:

caring father to your children.

And line 22:

As a result of that you have had to leave family members, to who you are close, behind in Vietnam –

Of course, that is referring not to the departure which is in question in this case.  Now, of course, the sentencing judge was not making any decision in the nature of a criminal deportation.  That is not material which conveys the kind of material to which Justice Lee has drawn attention.  If I may take your Honours to that.

GLEESON CJ:   What appears on page 28, line 25 was also of some significance, was it not?  The wife was not taking proper care of the children.

MR WALKER:   No, though, of course, again, even if paid attention to by the Minister in detail, that did not tell the story about the continuing contact with the children had by the father not ceasing with his incarceration for the criminal offence and being the subject of current serious attempts not only to cultivate, but to continue and deepen and also, in our submission, nor does that give the detail which the material not before the Minister would have put before the Minister had it been the subject of a relatively brief summary.  It appears not at all and that is why – perhaps if I can most conveniently go to it in the way in which the majority sets it out, bearing in mind that it is the majority who gave the reason in the first sentence of paragraph 100 on page 139 to which the Chief Justice has drawn attention.  On page 131 of the application book, in the record of interview, an interview taken for the purposes surely of advising the Minister, the officers were told, line 25:

I still look after my children.  Every day I go to the house and play with them.  Sometimes I take them to school and pick them up.  On the weekends we go shopping together.

And then there is a degree of contact given in paragraph 59 in a way which makes it plain that this is continuing and, indeed, has resumed after incarceration.  On the other hand, if one goes back to the way in which the officers chose to put the précis before the Minister, one picks it up at page 4 of the application book, point [13] – and we make no complaint, of course, about the fact that the Minister derives assistance from this kind of ordering of the matter.  That is well and good, but the standard of compliance in order to recognise the extraordinary importance of the issue to the petitioner and the nature of the discretion in question, particularly the interests of the child, is one that does deserve this Court’s attention.  At paragraph [13], for example, a matter relied upon by the majority, at the foot of page 4 you simply have:

Mr LE has moved on in his life . . . He would like to be able to look after his three children. 

He would like to be able to look after his three children.  Annexure C referred to at the top of page 5 is that to which I have already taken you, pages 16 and 17.  It of course contained, artlessly, no doubt, no detail about the actual nature of the contact as opposed to a desire to be able to have contact, a desire which in a plea for such a discretion to be exercised favourably might well be regarded as merely convenient; “I would like to look after my children, that’s why I should stay in Australia.”  Well, the first question is, have you been looking after them?  In terms of the best interests of the children, which is addressed formally, as it were, pages 6 and 7 and 8 of the application book, this is what the Minister really had.  In relation to the nature of the relationship – and one would have thought that could have got many answers apart from the one that was given, the real answer is, biological.  He is the biological father.  Nothing about close, warm daily contact there. 

(b)      the duration of the relationship –

particularly in relation to a separation.  So separation is important.  What one has at the top of page 7 is simply that he:

has had continuous contact with the children from their birth until his period of incarceration.

That is contrary to the way in which the majority puts it, paragraphs 97 to 100 on page 139 of the application book.  That plainly conveyed the implication that the care, the contact, had ceased.  The next sentence makes it clear:

Since May 1999 the children have been living with their mother.

Now, that is against the context supplied by the start of all of this.  On page 6, back at line 25, I think it is:

Mr LE is the biological father of three children.  Sole custody of the children is held by their mother, from whom Mr LE is estranged.

This is giving an appearance of separation from children, a matter to which the next question attends, which is obviously misleading the Minister.  Quite wrong, compared to what it is now known the department’s files had from his record of interview.

KIRBY J:   I know that this is very important for your client and for the children, but could we do much more than to go through the issue and possibly come to the same differing views as the members of the Federal Court have done?

MR WALKER:   Yes, you could.  You could say that a standard of where a personal ministerial decision is being made, and that is an important matter here, and people are told they will have an opportunity to address reasons for discretion, we do not claim anything unrealistic like being able to attend, to speak.  We do not claim Ministers need to be fluent in Vietnamese or to have unending screeds translated to them.  We deliberately use the words of précis and summary, that is proper bureaucratic assistance to a Minister, but it must not be allowed to remove those which may be the most effective because they are most affecting parts and details of a submission.  And the submission here was removed of all blood, all flesh, and what one had here was a picture of estrangement and separation contrary to the fact.  That is important and telling detail which may have swayed the Minister.

GLEESON CJ:   Justice French dealt with this on page 94 at line 10.

MR WALKER:   Yes, your Honour, but, in our submission, without reasons which deal with any of the matters of detail to which I have just turned.  The same can be said at page 139 through paragraphs 97, 98, 99 and 100 where, with great respect, the majority simply does not say how it is that the material before the Minister, the combination of issues paper, sentencing remarks if necessary and, most importantly, the translated letter, how it is that they supply the information about actual contact with care for the children actually being had about to be interrupted and stopped.

GLEESON CJ:   How long was your client in gaol?

MR WALKER:   He was in gaol for 10 months actually, I think, your Honour.

GLEESON CJ:   Who looked after the children then?

MR WALKER:   The mother but, as your Honours have seen, in such a way as shortly after release to lead to complaints to the child welfare authorities and to great concern being expressed by my client.  Now, in our submission, your Honours, of course this does not raise a new rule or a reshaped rule, but there is a standard of bureaucratic conduct required in relation to the placing of pleas before Ministers, particularly where the plea is in relation to matters of this individual importance and of this importance for children, which does not permit of a real or genuine consideration being given to the matter if the Minister is, by no fault of the Minister, deprived of the real pith and substance of the plea and here the plea was, “I have a real, current, actual physical contact and parental role with these children.  I’m not merely their biological father estranged from their mother and incarcerated so as to interrupt my actual links with them.”  That was removed.  The majority simply does not explain at 139 how what they say, for example, at the end of paragraph 97 could possibly be correct.  At the end of paragraph 97 they say, this is about line 12 on page 139:

The information before the Minister was not, as asserted by the appellant, that his contact with the children had ceased.

We interpolate that that is pretty much what it looks like when one reads it all together.  Then their Honours say:

To the contrary.

Well, whatever might be said about a parsing and analysis and a semantic view of what was available to the Minister, there was nothing to convey that that contrary included something so far along the spectrum as the touching detail which, in our submission, Justice Lee correctly observed was the very kind of thing which a Minister ought to have without any bureaucratic burden, without any administrative obstacle being placed, because it is not too much to ask for those very brief matters, briskly extracted by Justice Lee, to have been placed before the Minister.  And that, in our submission, is why this case does raise, unusually, but, in our submission, well within the established approach of this Court on special leave

applications, a claim to have special leave on the basis of the interests of justice in the particular case. 

GLEESON CJ:   Thank you.  Yes, Mr Macliver.

MR MACLIVER:   Thank you, your Honours.  Your Honours, the respondent’s submission to this Court is that, while there may have been inadequacies and deficiencies identified by the members of the court on appeal and also by his Honour Justice French at first instance, nevertheless, this is not a case where jurisdictional error resulted.  Your Honours, the majority in the Full Court below found that the substance of the information in the documents was in the issues paper and the annexures to it and we would respectfully submit that there was no appealable error by the majority in reaching that conclusion.

KIRBY J:   There must be a point though where inadequacies rise to unacceptability and a failure to discharge the ministerial function as the Act contemplates.  You see, that is the question and I would accept that where that point is reached is difficult to define with precision, but every judge who looked at this said that this was a very unsatisfactory presentation to the Minister and one judge has dissented.  Why would one not say that this is at least a strongly arguable case to test the proposition that this decision was not that which the Act contemplated – not made in the manner in which the Act contemplated it?

MR MACLIVER:   Perhaps, your Honours, I could take you to how it was approached by the majority, starting at page 138 in the application book.  As their Honours noted at paragraph 93, it was a “key plank” of the applicant’s argument that the issues paper did not adequately deal with his claims concerning the children and “that the basis of the Minister’s decision was that sole custody of the children was held by the mother from whom the [applicant] was estranged”.  My learned friend has taken you to that particular statement in the issues paper and that counsel for the applicant submitted that the applicant’s contact with his children ceased when he went to prison. 

As their Honours in the majority found, at paragraph 93, that submission that the issues paper suggested, that the applicant’s contact with his children ceased when he went to prison, when he was incarcerated, is simply not the case.  Their Honours referred to “clear reference” being made to the claim that Mr Le was in regular contact with his children while in gaol, and that is a reference to the statement at page 7 of the application book in the issues paper.

KIRBY J:   But if we look at this the other way, if we look at it the way Justice Allsop explained in Perez, which is quoted on page 121, it is a relevant consideration for the Minister to have before him or her the human development of the children, their health, their psychological health, their happiness, their social educational development as balanced citizens of this country.  They are going to stay and the problem that is presented by what one might say is accepted inadequacies of the issues paper is that the Minister really did not have his attention drawn to those sorts of considerations.  It is as if Sir Humphrey has done a little bit of a cut and paste job and not included the things that were favourable to the applicant. 

MR MACLIVER:   It was certainly the case, your Honour, that it was not suggested that the children would accompany the applicant to Vietnam should his visa be cancelled.

KIRBY J:   No, that is right.  They will stay behind and they will be Australian citizens.  I think it is accepted that they are Australian citizens. 

MR MACLIVER:   That is right, your Honour, and that ‑ ‑ ‑

KIRBY J:   So the question is whether the Minister’s mind was drawn to the things Justice Allsop mentioned in that paragraph.  It does not seem to me that that was done and, therefore, it is at least arguable Justice Lee got it right by saying this is not a decision of the kind that the Act contemplates in the Minister’s discretion.

MR MACLIVER:   Certainly, your Honour, it would have to be conceded that matters such as referred to by his Honour in Perez were not set out in the issues paper, but the undoubted fact is that it was clearly before the Minister that the applicant’s children would not be accompanying him to Vietnam and that, as a result, clearly there would be a break‑up of the family and the applicant having very little opportunity to have contact with his children as a result, the kind of situation that potentially was going to occur in the Teoh decision.  In my submission, that clearly must have been a matter that the Minister would have been cognisant of having regard ‑ ‑ ‑

KIRBY J:   Yes, but flesh on the bones.  It is one thing to know that this is going to split up the family, but there was no flesh added to it and, insofar as there was flesh, if I can say so with respect, it was a bit slanted.  It was just saying they are estranged, whereas this appears to be a father who, for all his criminal conduct, was very close and affectionate to his children and had a good work record before this event and was really brought to what he did by his distress, in part, at the way his children were being neglected by their mother. 

Now, those things were not brought to the Minister’s attention and it is not fair to blame the Minister for making the decision adverse to him because the Minister did not really have the material.  It is a question of the

standards of the presentation of the officials to a Minister who has a personal discretion.

MR MACLIVER:   Yes.  Certainly, your Honour, that was a matter that was canvassed by his Honour Justice French at first instance, whether there should have been further inquiries made, and his Honour came to the conclusion that there was no legal obligation to make further inquiries in relation to the family.  I am not sure that that was then taken as a ground in the appeal.  I do not believe it was.  All the grounds of appeal were relating to procedural fairness and the failure ‑ ‑ ‑

KIRBY J:   Something must have been said that led the Full Court to refer to Justice Allsop’s statements which seem very sensible to me.  Anyway, I think we have got the issue.

MR MACLIVER:   But certainly, your Honours, the ground that the missing documents were not before the Minister, with respect we would say, does not give rise to a breach of procedural fairness and, further, for the reasons which we say were set out by the majority in the Full Court below and by his Honour Justice French at first instance, there was also no breach of procedural fairness because the substance and essential elements of the applicant’s claims in relation to both his children and in relation to fears that he had about returning to Vietnam were set out either in the issues paper itself or in the annexures. 

We submit that, for those reasons, there was no jurisdictional error and that this is not a matter in respect of which special leave should be granted.  If it please your Honours, those are my submissions.

GLEESON CJ:   Thank you, Mr Macliver.  Yes, Mr Walker.

MR WALKER:   Your Honours, the way in which the matter proceeded can be described perhaps by reference simply to the paperwork.  One could start with the Minister’s decision, page 10 of the application book, where, no doubt in the convenient documentary form options (a), (b) and (c) are slashed through leaving (d), namely, “I have decided TO EXERCISE MY DISCRETION  . . . TO CANCEL THE VISA”.  That was on the basis of an issues paper that required certain consideration to matters relating to the children:  see page 8 of the application book. 

After all, it was in paragraph [31] that there culminated the matters to which I have already referred in paragraphs [13] and then [19] and following in the issues paper.  Paragraph [31] left open for the Minister for him to consider “would/would not have a detrimental effect on his children”.  That was something to be considered highlighting, rather than lowering, the requirement of real, genuine consideration of the matter. 

Then, when one goes to the missing information, one finds, application book page 41 about line 22, that the interview in question, the contents of the relevant part of which were not included and contain no hint in the material before the Minister, that interview was, and I quote, one with:

The purpose . . . to afford you the opportunity for making known your personal circumstances and anything that you wish to be taken into account when the Minister considers your case.

Then, of course, at pages 44 and 45, the material to which I have already taken your Honours about the degree of contact with the spouse and children, et cetera. 

In our submission, your Honours, it is precisely because the matter is so, as it were, neatly and in a contained fashion, one which presents the spectacle of a personal, very critical, that is drastic for those affected, discretion being exercised by a Minister with the bureaucratic assistance which, it seems now to be common ground, was not only less than optimal but had inadequacies considered from the merits point of view, it is precisely because of that that this does present an appropriate vehicle for a case in which the kind of standard for bureaucratic assistance to a Minister when a personal discretion is being exercised to be considered by this Court so that the epithets, real, genuine, are not epithets which are devoid of content by reference to the occasional illustration in this Court. 

GUMMOW J:   Do we know the age of these children now?

GLEESON CJ:   At page 7 it appears.  At the time of the report they were 8, 9 and 13.  When was that report written, July 2002?

MR WALKER:   Yes.  So three years ago.

GLEESON CJ:   So they are 16, 12 and 11.

MR WALKER:   Yes.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Walker.  We will adjourn for a short time to consider the course we will take in this matter.

AT 1.58 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.04 PM:

GLEESON CJ:   A majority of the Court is of the view that in this case the application for special leave to appeal should be refused for the reason that the point of departure between the majority and the minority in the Full Court of the Federal Court was an issue of fact concerning the sufficiency of certain material provided to the Minister for purposes of his decision‑making.  The majority of this Court is of the view that the case does not raise an issue suitable for the grant of special leave to appeal and the majority is not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

KIRBY J:   I would have granted special leave.

GLEESON CJ:   We will adjourn for 30 minutes.

AT 2.05 PM THE MATTER WAS CONCLUDED