Nguyen v MIMIA

[2005] HCATrans 231

[2005] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P20 of 2004

B e t w e e n -

VAN SON NGUYEN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 2005, AT 12.25 PM

Copyright in the High Court of Australia

MR H.N.H. CHRISTIE:   If the Court pleases, I appear for the applicant.  (instructed by Christie & Strbac)

MR M.T. RITTER, SC:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

CALLINAN J:   Yes.  Please proceed, Mr Christie.

MR CHRISTIE:   The applicant contends in this matter that in making the decision to cancel his visa, the Minister failed to take into account the best interests of his two young children.  The Minister’s decision to cancel is endorsed on a minute prepared for him by an officer of the Department.  His actual decision appears at page 17 of the application book.  The minute addresses the best interest of the applicant’s children at paragraphs [27] to [40] of the minute.  The minute briefly addresses the disadvantages to the applicant’s children if they should return to Vietnam, and that is at paragraphs [37] to [39].

CALLINAN J:   Which pages are they, Mr Christie?

MR CHRISTIE:   Page 12, if I could take you to the printed number in the top right‑hand corner.  Unfortunately, the numbers are confused.

CALLINAN J:   Yes.

MR CHRISTIE:   You will see that:

The Best Interests of the Children –

is a heading at the bottom of page 11 and it goes through to the top of page 13, but paragraphs [37] to [39] are towards the bottom of page 12.

CALLINAN J:   Yes, we have that.

MR CHRISTIE:   Yes.  It is submitted that the minute does not address the disadvantages to the children if they are separated from the applicant by the children and the applicant’s wife remaining in Australia, the applicant being forced to return to Vietnam.  The Full Court held in this matter that in the absence of reasons, the applicant could not establish that the Minister had not taken into account the bests interests of the children.  But, in any event, the Court considered that the minute addressed the best interests and, so far as separation was concerned, considered that paragraph [34] of the minute addressed that issue.

There were no separate reasons provided by the Minister at the time, as required under section 501G.  However, it is submitted that the absence of reasons is not fatal to this application and that the court should have considered that the minute was sufficient to show that an error had occurred and that a failure to address in the minute the effect on the children should permit the court to conclude the deficiencies in the minute led the Minister into error.

CALLINAN J:   What are the sorts of things that the minute should have said, on your submission?

MR CHRISTIE:   Your Honour, if I could take you, perhaps, to the reference I referred the Court to of Le v Minister for Immigration and Multicultural and Indigenous Affairs and, in particular, statements made by his Honour Justice Lee at paragraphs 30 to 32, that sums it up, in my submission, better than I could.  It is stated there, and Justice Lee quotes from the decision of Perez:

“The interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country.”

CALLINAN J:   Is this all based on Teoh, legitimate expectations?

MR CHRISTIE:   Yes, your Honour.  Yes, based on Teoh and the fact that the Minister had indicated in his minute that he would take into account the best interests of the children.  We therefore argue ‑ ‑ ‑

CALLINAN J:   To the extent that it is based upon Teoh, have you had a look at the case of Lam in this Court?

MR CHRISTIE:   Yes, your Honour.

CALLINAN J:   There were a lot of things said there that, at least arguably, cast some doubt on the continuing force of Teoh.

MR CHRISTIE:   Your Honour, the argument is that if the best interests of the children are not taken into account when the Minister has indicated, both under the principles of Teoh, but also in his minute to the application concerned, which is a direction under section 499, that he would take the best interests of the children into account, then it is a breach of natural justice not to take them into account.  That was conceded by the respondent at the initial hearing and before the Full Court.

CALLINAN J:   I was surprised that Lam does not seem to have been referred to, because I think it had been decided by the time this matter was in the Full Court.

MR CHRISTIE:   That is correct, your Honour, but it is not only ‑ ‑ ‑

CALLINAN J:   In any event, you have the advantage of a concession on that point.

MR CHRISTIE:   Yes, thank you, your Honour.  As was stated in the Le Case at paragraph 32, unless the Minister has proper regard to the interests of the children, as indicated, if he does not follow that process of looking at the advantages and disadvantages and particularly in relation to separation, then his failure to adopt that process, in our submission, makes the decision flawed.  Therefore there has been a breach of natural justice in failing to properly having regard to the interests of the children, and therefore an error of jurisdiction.  Your Honour, those are my submissions in this matter.

CALLINAN J:   Thank you.  We need not hear from you, Mr Ritter.

There is no reason to doubt the correctness of the decision in the court below.  Special leave is refused with costs.

AT 12.32 PM THE MATTER WAS CONCLUDED