Minister of State for Immigration and Ethnic Affairs v Teoh

[1994] HCATrans 409

..

'

• •

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pll of 1994

B e t w e e n -

I MINISTER OF STATE FOR

: IMMIGRATION AND ETHNIC AFFAIRS

Applicant

and

AH HIN TEOH

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Teoh 1 30/6/94

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 3.02 PM

Copyright in the High Court of Australia

MRS. OWEN-CONWAY, OC:  May it please Your Honours, with

MR P.R. MACLIVER, I appear on behalf of the

applicant. (instructed by the Australian

Government Solicitor)

MR S.C. CHURCHES:  May it please the Court, I appear with

MRS.A. WALKER, for the respondent. (instructed by

s.A. Walker)

MASON CJ:  Mr Owen-Conway, you might tell us in the first

instance how this matter seems to come from Western

Australia into the liis here in Brisbane?

MR OWEN-CONWAY:  As a matter of urgency.

MASON CJ: Yes, I thought that was probably the situation.

What do you have to say in support of the

application?

MR OWEN-CONWAY: This is a matter which raises two questions

of substantial public importance. The first is

whether the replication of the United Nations

Convention on the Rights of the Child by Australia

gives rise to a legitimate expectation on the part

of parents and children whose interest could be

affected by actions or decisions of the

Commonwealth which concern children; that such

actions or decisions would be conducted or made

having regard to, and consistently with, the

principles of the convention.

The second question is, if Australia's

ratification of the convention does give rise to

such legitimate expectation, does this change the

requirements of procedural fairness which would

otherwise exist under the general law. The reasons

why special leave, with respect, should be granted

appear at paragraphs 25, 26 and 27 of the

applicant's supplementary summary of argument and I

would rely on those, of course, and also the policy reasons which influence that question appear at paragraphs 19, 20 and 21 of the outline.

In paragraph 19 we make the point that the

approach of the Full Court is against that of the

House of Lords in Brind, which held that there was no presumption of domestic law that a court would

review the exercise of an administrative discretion

to ensure its exercise in conformity with an

unincorporated treaty. If ratification of a treaty

or convention alone, without legislative

incorporation into domestic law, gave rise to such

a legitimate expectation, this would necessarily

involve enforcement in the domestic courts of

international law, which is not authorized by

domestic law.

Teoh 2 30/6/94

MASON CJ:  Mr Owen-Conway, speaking for myself, I would be

inclined to think if this were the only point in

the case, that ground may well be a ground that

would attract the grant of special leave to appeal.

But you have got to meet the other ground that was

advanced by Chief Justice Black for arriving at the

decision. Do you think you might direct your

attention to that and explain to us why that is not

an answer to the case that you wish to present?

MR OWEN-CONWAY:  In relation to the judgment of

Chief Justice Black, it is our submission that

His Honour erred in holding that the proper

consideration of the breakup of the family unit as

a relevant matter that the decision maker was bound

to take into account, necessarily involved the

making of further inquiry into the facts by the

decision maker. We say that His Honour further

erred in holding that the decision maker did not properly consider the breakup of the family when she made her decision to refuse to grant resident

status to the respondent.

In our respectful submission His Honour should

have concluded, as did Justice Carr on this point

and for the same reasons as did Justice Carr, that
absent the impact of the convention the decision
maker did in fact give proper consideration to the
effect of a deportation order on the members of the

respondent's family and was not in fact obliged to

make further inquiries or obtain further recourse

in the circumstances.

GAUDRON J: Did she in fact have regard to the breakup, or

the disintegration, of the family unit as distinct

from a bleak future for the family?

MR OWEN-CONWAY:  She did indeed, yes. She did have regard

to that and, of course, it was not in issue that

that was a matter to which she had to have regard

under the requirements of the general law.	The
real difficulty with this decision, with respect,	is found not so much in the judgment of the Chief
Justice but in, with respect, the flawed reasoning of Justices Lee and Carr. If Their Honours' judgments are left standing then the ramifications
of those judgments really is quite significant as
far as the Commonwealth is concerned.

MASON CJ: But there is no point in our granting special

leave to appeal if the appeal is going to fail, and
fail because of the reason advanced by

Chief Justice Black.

MR OWEN~CONWAY:  I accept that and I have sought to advance

submissions why His Honour erred in any event. Of

course, His Honour the Chief Justice did not deal

Teoh 3 30/6/94

with this case from the perspective of a legitimate

expectation. He dealt with it on quite a separate

basis. But Their Honours Justices Lee and Carr did

and it is my respectful submission that they erred,

and significantly erred, in so doing. They erred

in so far as they both held that the convention did

give rise to a legitimate expectation of the kind

which I have described.

The existence of such a legitimate expectation

is, of course, determined, in each case, by

reference to legal principle. That is the point,

of course, Your Honour made in Quin's case. No

such legitimate expectation can arise when the

relevant legal principle is that unincorporated

conventions do not directly change domestic law.

The executive government's ratification of the

convention did not constitute either a price, or an

assurance, or a statement of intention, that the
provisions of the convention would be incorporated

into Australian domestic law by the Parliament

passing appropriate legislation. Nor did it give

rise to an expectation that it would be so

incorporated into Australian domestic law.

One can say, of course, no doubt the effect of executive government's ratification may well have

been felt in international law, but it cannot be

relied upon as a justification for the expectation

so found by Their Honours Justices Lee and Carr.

It might be different where the Minister makes an

express public statement, perhaps in the
Parliament, not necessarily so, but an express
public statement of policy to the effect that he or
she would exercise his or her discretion under the
relevant Act, having regard to and consistently

with principles of the convention. In those

circumstances then it could be submitted that a

legitimate expectation may relevantly arise.

For instance, if the Minister expressly or

impliedly agrees not to resile or depart from his

statement or her statement unless there were

exceptional circumstances justifying such a

departure, in those circumstances - which were

really analogous to those in the Haoucher case -

one can see that such an expectation might well

arise. The extent of that expectation would be to

afford the person affected by the decision with a

right to be heard in relation to the reasons why

the decision maker was minded to depart from or

resile from the expresse statement of policy.

Perhaps I can refer briefly to the fact that

in section 4 of the Migration Act "refugee" is
defined as having the same meaning as it has in

Article 1 of the Refugees' Convention, or in that

Teoh 4 30/6/94

Article as amended by the refugee's protocol. So

the Migration Act has specifically incorporated

part of the Refugees' Convention. I make this

point by way of illustration only. Therefore,

where a decision is made under section 22AA of the

Migration Act, if the Minister is satisfied that

the person is a refugee, the Minister may determine

in writing that the person is a refugee. The

Minister, in so considering, must have regard to the Refugees' Convention to determine whether the

person is a refugee.

This is an example of a convention which finds

its way into domestic law because part of it has

been thus incorporated. But no part of this

convention has been incorporated into the Migration

Act, and this can be taken, in my submission, that as an indication there is no parliamentary

intention to incorporate the convention into the

Migration Act. In this case, the relevant

statutory framework, as it then stood, incorporated

the old section 6A of the Migration Act and the

specific criteria which the applicant fulfilled

upon qualification was that he was the spouse of an

Australian citizen, thus qualifying himself within subsection 6A(l)(b).

Under subsection 6(2) the Minister had a power

to grant an entry permit once the criteria have

been satisfied, and he knows there is an open

discretion. At that time departmental policy
specified the character requirement. It was a

policy requirement for grant of refugee status that applicants be of good character. The policy is set

out in the appeal book at page 13 through to 17 in

the judgment of Justice French at first instance.

At appeal book page 17 Justice French

described as an appropriate benchmark the

disqualifying criterion in former section 16(l)(c)

of the Act which provided that a person convicted

of a crime and imprisoned for not less than one

year was deemed to be a prohibited non-citizen. If

an applicant has been sentenced to a term of

imprisonment of 12 months or more he is assumed, or

taken to be, of bad character within this

framework. This requirement is given paramountcy,

see paragraph 3.2 of the policy, at appeal book

page 13. That is a paramount consideration.

But in effect Justices Carr and Lee have

reversed this position and have given paramountcy

to the interests of the children under the

convention. These matters, the interests of the

child, are matters which would have been taken into

account at the stage of considering whether there

was good cause to waive the character requirement

Teoh 5 30/6/94

under the policy at the time. The policy says, in

effect, one year's imprisonment or more is enough.

The respondent in this case was imprisoned for six

years and one would ask: what would be a sufficient

criminal record in the judgment of Justices Lee and

Carr to justify the Minister from refusing an entry permit?

I should refer briefly to the holding of

Justice Carr. His Honour referred to the case of

Simsek as authority for the proposition that a

convention can give rise to a legitimate
expectation on the part of persons affected by the

relevant decision that such actions or decisions

would be conducted or made having regard to, and

consistently with the principles of the convention.

His Honour referred, I think, only to Simsek to

support that proposition. Indeed, as far as I can

tell, my researches have indicated that it is the

only case in which express reference is made to

that at least as a possibility.

In Simsek Justice Stephen, at page 644, did no

more than say that if the applicant had an

expectation that he would be accorded natural

justice based on the convention and protocol

related to refugees could:

at its highest, involve no more than that his
application should be treated by the

Minister ..... in a manner consistent with the

Convention and Protocol -

His Honour did not say that such a legitimate

expectation did, in fact, arise. On the contrary,

His Honour held that the convention and protocol

form no part of municipal law enforceable in

Australia and the existence of any legitimate

expectations, he said, would not overcome the

absence of any right in the applicant.

In addition, we say that if the respondent did

have an expectation that his application should be

treated by the Minister in a manner consistent with

the convention, which of course we deny, nothing
the delegate did in this case was in any way

inconsistent with the convention. This was a case

in which the interests of the children had to

accommodate themselves to an overriding and

important public interest.

MASON CJ:	Why is that?
MR OWEN-CONWAY:	This is a case in which an applicant was

sentenced to a lengthy period of imprisonment for
the commission of a serious criminal offence

involving trafficking in quite significant amounts

Teoh 6 30/6/94

of heroin. True, he had seven children under his decision, the children's mother was incapable of
care, three of whom were his natural children.

looking after them owing to her own heroin

addiction. Indeed, at that time the children were

in community care with the Department of Child

Welfare in Western Australia.

Of course, the impact of the father's quite

lengthy period of imprisonment necessarily meant

that those children would continue for a lengthy

period of time in care. It really is a case in

which, with respect, their best interests given

paramountcy were best served by being in and

remaining in care in those circumstances. But if

one were to put a hypothetical proposition and

suggest that if instead of committing the offence

which the respondent did commit, he had committed a

heinous act of murder - perhaps cutting somebody's
head off with a machete, by way of graphic

illustration - it could hardly be submitted that

the overriding public interest in deporting such a

man in the circumstances of this respondent, he

having committed such a heinous crime, could be

made subservient to the best interests of the

children if those interests were otherwise best

served by their father remaining in the country.

It would, with respect, be a nonsensical proposition and it would be nonsensical because

implicit in the convention is a requirement that

the best interests of the children have to be taken

into account in circumstances which accommodate

relevant, and in this case, with respect,

overriding issues of public importance and

interest. And such was a case.

MASON CJ: But when you look at the reasons that are set out

at pages 87 and 88, particularly 88, is there not a

question as to whether or not the decision maker

fully appreciated the consequences in terms of the

family if deportation occurred, or if status was

not given?

MR OWEN-CONWAY: It is difficult to imagine, given the

circumstances known to the decision maker which I

have indicated, it is difficult to imagine what

other factors she could possibly have had regard

to, relevantly. The mother was incapable of

looking after them and was subsequently sentenced

to imprisonment herself. The father was sentenced

to a long term period of imprisonment.

GAUDRON J: There might have been questions as to whether

the children remained as a family unit even then,

or whether they had already been split up and what

Teoh 7 30/6/94

the psychological impact was on them, particularly

the older children, given that their father had

committed suicide.

MR OWEN-CONWAY:  On the facts there might have been, I

accept that. But one reason we make this

application is because Justice Carr found that

under the general law the decision maker had taken

into account all relevant considerations, contrary
to the finding made by the Chief Justice, and had

accorded natural justice. His Honour said that it

is only when you have regard to the terms of this

unincorporated treaty that the law is changed. By

virtue of those particular provisions in Article 3

of the convention, His Honour held that there was

an additional obligation on the decision maker to

do something more than she was obliged to do under

the general law. We say that is why this case is

so significant. Its implications are really quite

staggering.

I have said in my outline that this country is

a signatory to over 2000 treaties and conventions.

I have been advised today, I have an affidavit from

a proper source if required, to inform the Court

that currently Australia is a party to more than

900 treaties currently in force. The problem that

we have set out there in paragraph 20 really does

loom large and is a considerable concern to the

Commonwealth. Thank you, Your Honours.

MASON CJ: Yes, Mr Churches.

MR CHURCHES:  Your Honours, in Salemi's case, 137 CLR, the

fact situation revolved around an assurance given

by the responsible Minister in respect of category
of overstayed migrants who might remain in the

country. That assurance did not, of course, alter

domestic law. None the less, three Justices of

this Court, Justices Stephen, Jacobs and Murphy,

found - and those judgments have since been built

on in this Court - that none the less that

assurance served as the substratum for a legitimate

expectation which would affect the manner in which

a hearing should have been offered, they said, to

Mr Salemi.

Similarly in Haoucher's case, a more recent

decision of this Court, there were assurances given
again by the responsible Minister, in that case

specifically in Parliament. Indeed, in Salemi the

assurances were also repeated in Parliament. In

Haoucher's case they were given in Parliament as to

override a decision of the Administrative Appeals the terms on which the Minister said he might record.

Teoh 30/6/94

In Haoucher's case the majority of this Court

found that those assurances which again, of course,

did not alter domestic law - the executive may not

alter the law - but none the less the assurances

served as the basis for a requirement that there be

a hearing for an affected person, that person being

found to have a legitimate expectation based in the

assurances given.

By way of a third example, Your Honours, I

just note that Justice Stephen in Salemi's case,

137 CLR at 440 and 443, referred to the English

Court of Appeal in the Liverpool Corporation case

where Justice Roskill again found legitimate

expectation resting on, in that case, assurances as

to a policy for granting taxi cab licences, again

did not alter the domestic law.

MASON CJ: But you are taking on a lot, are you not, in

endeavouring to convince us that the Full Court of

the Federal Court was right on this important

issue? It is an important question and it has

obvious ramifications.

MR CHURCHES: 

In our submission there would only be a basis

for appeal - and it is, in our submission, the
principal thrust of the applicant's case - if there

was any question as to it altering domestic law.

In our submission, it simply does not and that

shuts out this point of the applicant's case.

MASON CJ: 

If it does not alter domestic law then we are

really not concerned with the convention, we are

concerned with what domestic law is.

MR CHURCHES:  In that case, Your Honour, we are concerned

only as to procedure involved in domestic law, that

procedure for how affected persons will be dealt

with, in this case in the context of refusal of

entry permit and subsequent deportation. In our submission a convention may have effect with	respect to how that procedure is carried out, but	such a convention, when it does that, will not be
impacting on the rights and obligations which are
consequent, or at the heart of, the idea of a
change in domestic law.

In our submission we have no concern about the

ability of the executive to declare policy or give

assurances. The question then is how far the

weight of such a convention goes in the context

that my friend put to you that if the Minister had

stated in Parliament, for example, that the

executive of this country would give weight to the

effect of the convention and had given that

statement in Parliament by way- of assurance, then

he said there might be the creation of a legitimate

Teoh 9 30/6/94

expectation which would affect whether or not
hearings should take place with relationship to the

content of the convention.

In our submission such an assurance, for

example given in Parliament, is not required. The undertaking by this nation at executive level when it ratified the convention, in our submission, goes

to the holding out - in this case, to the

international community as well as to the community

of this nation - that the executive intends to
adhere in so far as it can to the terms of the

convention. Where it does not alter domestic law

but can be woven into the fabric of domestic law,

then of course it should be adhered to.

When it comes to questions of procedure there is no doubt that such a convention may be woven in

without damaging the skeleton and fabric of

domestic law. That is why I gave the examples of

cases of assurance when I commenced. At

paragraph 3 on page 4 of our outline of submissions

Your Honours will see the cases dealing with

non-legal rights which go to the creation of

legitimate expectations, and we have cited Kioa,

Haoucher and the House of Lords decision in the

Civil Service Union as examples of those

abstractions which are plainly non-legal rights but

which none the less go to the legitimate
expectation which will attract the requirement of

hearing before they are dealt with.

GAUDRON J: You do have to go the further point here, do you

not; not just requirement of hearing; requirement

of exercising powers of inquiry at one's own

initiative, do you not?

MR CHURCHES:  Yes, Your Honour. Both Justices Lee and Carr

referred to that concept. Justice Lee set out the

cases at some length. In our submission we rest on

those decisions which I think are substantially

Federal Court decisions, that there may be

appropriate instances in which a decision maker,
with the capacity to go and glean further necessary
information or evidence, should go and obtain that
evidence. The most recent cases, I think, Lek's
decision regarding the obtaining of evidence from

Cambodia as to refugee status that might be raised in favour of the applicant for refugee status, he,

of course, being incapable of going and obtaining

that evidence himself.

Similarly in the instant case, we adopt the

point that Your Honour Justice Gaudron made

recently to my friend, that it might be necessary

when it comes to assessing the quantum of

procedural fairness to be applied to somebody in

Teoh 10 30/6/94

the respondent's case, that the decision maker

should go deeper than those brief words which the appeal book where the decision maker's words are

set out, that the family are going to suffer, it is

said briefly, as a result of this complete

disruption of their family unit but none the less

it may be appropriate that there be deeper

investigation of the psychological impact on the

particular persons involved, bearing in mind that

this is a family where, at the time of the

decision, there were six children then aged between

1 and 10. There are now seven children aged

between 1 and, I think, 13. So that where many of

the reported cases go off on a family unit where
the children involved are of mature years or,

certainly, older, here there should be, in our

submission, specific investigation of the impact on

these children of, obviously, tender years, the

disruption of the family where the mother is, from

time to time, incapable because of her addiction

but where the father, on the evidence, has a

fruitful role, a useful role, in the family.

So, yes, we certainly adopt what Justices Carr

and Lee have said on that point about the decision

maker having an obligation to go out and obtain

evidence on that point of the utility of keeping

the family unit intact.

DEANE J:  Why would he or she have that obligation? Why

would not the obligation simply be that if he or

she was not going to abide by the terms of the

convention, to give the persons concerned an

opportunity of being heard on that question?

MR CHURCHES:  If I can draw the analogy with Lek's case,

Your Honour: that is because in that case the physical impossibility of getting to Cambodia to

obtain the evidence was too difficult for the

applicant. In this case, the respondent, Mr Teoh,

was imprisoned and then at the end of his

conviction period, which was 11 months ago, he has

remained incarcerated pending deportation. So, he

is, in our submission, incapable of going out and

finding the - we would submit, the relevant

specialists would be psychologists, for example.

DEANE J:  I think you have misunderstood me. What if the

delegate had given notice to all the persons

concerned that in the particular circumstances of

this case she did not propose to follow the

convention procedure but proposed to treat the

interests of the children as purely an incidental

matter?

Teoh 11 30/6/94

MR CHURCHES:  In that instance, Your Honour, we submit that

she would have been wrongly advised immediately as

to the level of procedural fairness which she was

setting out as her own hurdle.

DEANE J:  Do you follow the distinction I am making? There

is a distinction between your saying as a matter of

law the delegate was required to observe the

convention procedure which, on one approach, seems

to be what Justice Lee is saying, or saying there

is a legitimate expectation that the convention

procedures will be followed and that being so, the

delegate is not entitled to disregard those

procedures without giving the parties concerned an

opportunity of being heard on the question whether

or not they should be disregarded.

MR CHURCHES:  Thank you, Your Honour. Yes, at the very

least, in our submission, the convention has the
impact that a decision maker wishing to avoid the

use of the convention should indicate to the

parties affected that she, in this case, intends to
put the convention requirements to one side and

then give the affected parties a right to a hearing

as to whether she is going to conduct a hearing in

that fashion. There would be a legitimate

expectation, at least, to that extent.

DEANE J: As you understand the majority judgments, do they

go further than that and say there is not only a

legitimate expectation but there is an obligation

to follow the convention procedures?

MR CHURCHES:  Your Honour, I am going to try and go for a

half-way house between the two because, in our submission, the two judges in majority did not actually push for the adoption of the convention as

an obligatory factor in the administration of

natural justice but, in our submission, they went

purely to quantum in a shifting spectrum of that

which was required and the two judges concerned

found that the convention required further

colouring on the spectrum because of the existence

of the convention.

So, it is not quite as your first example, if

I could put it that way, but it is, I think, more

cogent than perhaps merely saying, "You have a

legitimate expectation that you will be heard

before I disregard the convention".	I think it is
more potent than that.

DEANE J: No, not "before I disregard", "before I decide it

is inappropriate, in the circumstances of this

case, to follow it."

Teoh 12 30/6/94

MR CHURCHES: All right, or at least, that I - yes.

Your Honours, I think that leads on, perhaps, to

the point in the outline at the bottom of page 4

which is paragraph 4(b), going on to page 5 of the

summary of argument, as to Justice Carr's

reference, I think, at application book 92, to the

decision maker having actually taken some

cognizance of the existence of the children and the

impact of the decision on them but that, none the

less, in His Honour's decision, inadequate

attention paid in the light of the impact of the

convention on the procedure which His Honour found

to be appropriate. We stress procedure only, of

course, not impact on substantive law.

Indeed, it is that point, Your Honours, which,

in our submission, distinguishes the facts of this

from the House of Lords' decision in Brind which my

friend has put to you. In our submission, Brind

goes off and, indeed, illustrates the point

perfectly. In Brind the challenge was to the

responsible English Secretary of State or British

Secretary of State in an attempt to control how his

discretion operated in a practical and substantive

sense, stopping terrorists being televised or their

words being played on television. It did not go as

the facts in our case go to merely the procedure to

be involved by a decision maker.

So that the words, in our submission, in

Brind, talking about the inability of international

conventions to control an administrative discretion

go to the applying of that discretion to actually

impact on the law regulations made in that case
affecting media production. In our case, not so;

administrative discretion in our case only in the

sense of the procedure of how a hearing will be run

prior to the actual decision making, we do not go

so far.

Your Honours, in our submission, that leaves only the final point on page 5 of the outline as to

Chief Justice Black's decision based on the

relevant consideration of the breaking up of the

family in this case and we rely, in particular, on

what Your Honour Justice Deane said in Nevistic's

case in the Federal Court and also what

Justice Murphy said in this Court in Pochi v

McPhee, where both judgments talk about the

existence of a family unit as a matter which is of

relevance to a civilized community and one which

should not be ignored. In our submission, the

existence of this family unit, then with six

children of tender years, is plainly a matter of
relevant consideration to a decision maker who is

about to take a decision which, if it goes one way,

Teoh 13 30/6/94

will plainly disrupt and, indeed, destroy that

family.

Your Honours, I think that completes what we

wish to say.

MASON CJ: Yes, Mr Owen-Conway?

MR OWEN-CONWAY: Nothing in reply, Your Honours.

MASON CJ: The Court will take a short adjournment to

consider the course it will take in this matter.

AT 3.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.45 PM:

MASON CJ:  Mr Owen-Conway, is the Minister prepared to pay

the costs of the appeal in any event?

MR OWEN-CONWAY:  Yes, Your Honour.

MASON CJ: And can I ask you as to the position of the

applicant: is the applicant in custody at present?

MR OWEN-CONWAY:  He is and he is about to be released almost

immediately.

MASON CJ: Is he?

MR OWEN-CONWAY:	Yes.
MASON CJ:	The Court has come to the conclusion there should

be a grant of special leave in this matter.

Accordingly, there will be such a grant.

AT 3.46 PM THE MATTER WAS ADJOURNED SINE DIE

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