Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1408

FEDERAL COURT OF AUSTRALIA

Vaeula v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1408

MIGRATION – visa – cancellation – whether Minister took into account the best interests of the applicant’s child - Migration Act 1958 (Cth) s 501G

Migration Reform Act1992 (Cth) No 184
Migration Act1958 (Cth) s 501(2), 501(G)(1)(e), 501(G)(4)

Convention on the Rights of the Child

Ayan v Minister for Immigration & Multicultural Affairs (2003) 196 ALR 332 referred to

Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 referred to

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 followed
Minister for Immigration & Multicultural Affairs v W157/00A (2002) 72 ALD 49 referred to

KENNETH HENRY VAEULA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1477 OF 2003

HELY J
28 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1477 OF 2003

BETWEEN:	KENNETH HENRY VAEULA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	28 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1477 OF 2003

BETWEEN:	KENNETH HENRY VAEULA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	28 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of New Zealand who last arrived in Australia on 22 September 1990.  On 1 September 1994 the applicant was granted a special category visa by operation of law under the provisions of the Migration Reform Act 1992 (Cth) No 184. The applicant lives in a defacto relationship with Ms Peacock. There is one child of that relationship, Dylan, who was born on 14 March 1994. On 3 September 1999, the applicant was sentenced to a minimum term of nine months gaol and an additional term of three months on three counts of larceny. An issues paper was placed before the Minister regarding the possible cancellation of the applicant’s visa in the light of those convictions. On 26 April 2000 the Minister’s delegate exercised his discretion not to cancel the visa at that stage on the basis that the applicant be given a very strong warning that any further criminal activity will lead to the matter being reconsidered.

2. On 2 May 2000 a warning letter was sent to the applicant whilst he was in Silverwater Correctional Centre and the letter was in the following terms:

   ‘Mr Kenneth Henry Vaeula
   MIN – 263971
   Silverwater Correctional Centre
   Holker Street
   Silverwater  NSW

   Dear Mr Vaeula

   Your conviction at Bankstown Local Court on 3 September 1999 for LARCENY rendered you liable to the cancellation of your visa pursuant to section 501 of the Migration Act 1958.

   On 26 April 2000 the Minister’s delegate decided on this occasion not to order the cancellation of your visa on the basis of this conviction.  Nevertheless you are warned that any further conviction will lead to the question of visa cancellation being reconsidered.  Disregard of this warning will weigh heavily against you in the event of your case being re-opened.

   In conclusion the Minister’s delegate made the following comment:

   “I have decided not to cancel Mr Vaeula’s visa at this stage, but ask that he be given a very strong warning that any further criminal activity will lead to the matter being reconsidered.  He has the opportunity to go straight.  If he re-offends and his visa is cancelled he will only have himself to blame.”

   I have enclosed a copy of section 501 of the Migration Act 1958. I suggest that, in your best interests, you read this document carefully.

   Please acknowledge receipt of this decision by signing at the foot of this letter.

   Yours sincerely

   (Sgd) Sarah Kang
   Criminal Deportation Section
   Bankstown Office

   2 May 2000

   I, Kenneth Henry Vaeula, acknowledge receipt of this warning letter and copy of section 501 of the Migration Act 1958.

   (Sgd)  Kenneth Henry Vaeula  2/5/2000’

   As appears from page 34 of the green book, the applicant signed an acknowledgment of the receipt of that letter. 

3. Between 13 June 2000 and 8 July 2001 the applicant committed various further offences.  On 17 January 2002 the applicant was remanded into custody.  On 7 February 2002 the applicant was sentenced to a term of imprisonment of 16 months on a charge of break and enter, with intent to steal to commence on 17 January 2002.

4. On 16 October 2002, a Notice of Intention to Consider Cancellation of a Visa was served on the applicant, on which the applicant was invited to comment.  On 26 October 2002 the applicant completed a questionnaire which had been sent to him with the notice.  The questionnaire contained the following question and response:

   ‘If your visa were cancelled, will this affect anyone else and what will be the effect?’

   ‘My son, he need a father, I love him so much.  I don’t want to neglect Dylan, I want to watch my son grow up.  Be a father to him.  Just a chance.’

5. On 20 January 2003 a submission was prepared by the Department for submission to the Minister on the possible cancellation of the applicant’s visa.  Under the heading ‘The best interests of the child’ the following appeared:

   ‘[42]   Article 3.1 of the Convention on the Rights of the Child (CROC) states:

   “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

   [43]     Mr Vaeula in his submission has stated that he has one child, a son aged eight years.  Mr Vaeula stated that his son would be affected by a decision under s.501(2).

   [44]     Paragraph 2.16 of the Minister’s Direction sets out the factors to which the decision maker should have resort when considering the best interests of the child.

   [45]     Mr Vaeula in his submission, in relation to his son states:

   “My son he needs a father.  I love him so much.  I don’t want to neglect Dylan.  I want to watch my son grow-up.  Be a father to him.  Just a chance.”

   [46]     Mr Vaeula’s son, Dylan Peacock, is in the custody of his mother, Jannette Peacock.

   A copy of Mr Vaeula’s response is at Annex E.

   [47]     It is open to you to find from the information given and the fact that there appears to be little contact with his child that the cancellation of Mr Vaeula’s visa and his removal from Australia may not have an immediate detrimental effect on his child.  However, should Mr Vaeula be removed from Australia, and custody arrangements remain the same so that his son does not accompany him, this may hinder any future ability to develop and/or foster a father-son relationship.’

6. Under the heading ‘Other considerations’ the following appeared:

   ‘[50]   Mr Vaeula goes on to say that if he has to leave Australia it would have an effect on his son and himself, he goes on to say that his son needs a father and he wants to watch his son grow up.  He states that whilst some members of his family reside in New Zealand, he has no contact with them.  He states it was his choice to come to Australia and that he loves the people and the country and that there is nothing for him in New Zealand.  Mr Vaeula further states that he last visited his father in Brisbane in 1994.  He claims that he has been in a defacto relationship with an Australian citizen for twelve years.

   …

   [53]     As the Department has not received any submission from Mr Vaeula’s family, a thorough assessment of the effect visa cancellation and removal may have on his family could not be made.  In view of the fact that Mr Vaeula has been living in Australia over 10 years, it is reasonable to assume that he has established some social networks in Australia.  It is open for you to find that on the basis of the given information, cancellation of Mr Vaeula’s visa and his removal from Australia could cause some degree of hardship on himself and on his family and friends.’

7. On 29 January 2003 the Minister exercised his discretion under s 501(2) of the Migration Act1958 (Cth) (‘the Act’) and cancelled the applicants visa. On 25 September 2003 the applicant filed the present application for review. The grounds of review allege that the best interests of the applicant’s son were not taken into account by the Minister. In particular, the applicant claims first, that the respondent failed to address the question as to what was in the best interests of his son, and instead left open the more limited question of whether the applicant’s removal to New Zealand would be detrimental to his son. Second, that the decision was in breach of the rules of natural justice in that the respondent did not inform the applicant that he did not propose to have regard to the best interests of his son. The first of these claims appears to have been formulated having regard to the decision of the Full Court in Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218.

8. The issues paper does not set out the reasons for the Minister’s decision as required by s 501(G)(1)(e) of the Act, but a failure to comply with that subsection does not affect the validity of the decision. See s 501(G)(4) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; Ayan v Minister for Immigration & Multicultural Affairs (2003) 196 ALR 332. The issues document does not explicitly state what decision would be in the best interests of the applicant’s child. However, the document placed before the Minister the applicant’s assertion that it was in the best interests of his son to have a father/son relationship with him and that advancement of that best interest would be hindered if the applicant’s visa was cancelled. It is at least implicit in the passages from the issues document, which I quoted earlier, that the best interests of the child favoured a decision not to cancel the applicant’s visa. It would be unrealistic in my view to conclude that this was not appreciated by the Minister.

9. This is not a case like Long's case (supra) where the terms of the issues document are such that an inference could and should be drawn that the Minister did not reach the stage of considering what were the best interests of the child.  It is true that the issues document in the present case does address the more limited question of whether the applicant’s removal to New Zealand would be detrimental to the son, but it also addresses the broader question of where the child’s best interests lie. 

10. The material available to the respondent in the issues document contains sufficient information to enable the respondent to identify where the best interests of the child lay, and the issues document drew attention to the provision on the Convention on the Rights of the Child, which rendered the best interests of the child a primary consideration.  Having regard to the nature and content of the material that was apparently before the Minister at the time he made his decision, it cannot be positively concluded that the best interests of the applicant’s son were not taken into account: see Minister for Immigration & Multicultural Affairs v W157/00A (2002) 72 ALD 49 at 68 and 74.

11. The applicant bears the onus in this regard and as that onus is not discharged, the application for review on the specified grounds must fail.  In addition, the applicant placed before me this afternoon a document which I will have marked as Exhibit A, so that it is recorded on the Court file and placed with the papers, in which he put oral submissions to me.  Those submissions impermissibly invite me to engage in a merits review of the Minister’s decision, which I am not authorised to undertake.  They do suggest that there was some error on the part of the Minister in failing to consult with other members of the community.  I am prepared to assume that there was no such consultation, although I have no specific evidence on the point.  However, the Minister was not under any legal obligation to consult with other members of the community before his decision was given and any failure on his part to do so does not amount to a legal error, let alone a jurisdictional error.  It follows that the application must be dismissed.

12. I therefore order that the application is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            3 December 2003

The applicant appeared in person
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18, 28 November 2003
Date of Judgment:	28 November 2003