FEDERAL COURT OF AUSTRALIA Nguyen v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 19 MIGRATION – cancellation of visa – whether Issues document prepared by Department constituted Minister's reasons for decision – whether Minister in jurisdictional error for failing to take into account best interests of the children – whether Minister failed to consider children's position if they did not accompany applicant to Vietnam – no error in rejection of assertion of jurisdictional error Migration Act 1958 (Cth) ss 474, 501(2), 501G(1)(e), 501G(4) Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 referred to Coulton v Holcombe (1986) 162 CLR 1 cited Minister for Immigration & Multicultural Affairs v W157/00A (2002) 72 ALD 49 referred to VAN SON NGUYEN v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS No W 186 of 2003 SPENDER, BRANSON, STONE JJ PERTH 13 FEBRUARY 2004 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 186 OF 2003 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VAN SON NGUYEN APPELLANT AND: THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, BRANSON, STONE JJ DATE OF ORDER: 13 FEBRUARY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 186 OF 2003 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VAN SON NGUYEN APPELLANT AND: THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, BRANSON, STONE JJ DATE: 13 FEBRUARY 2004 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from the judgment of a judge of the Court (R.D. Nicholson J) who, on 22 August 2003, dismissed an application by the appellant for prerogative and injunctive relief concerning the decision of the then Minister for Immigration, Multicultural and Indigenous Affairs ("the Minister") of 29 October 2002, to cancel the visa of the appellant. The Minister relied on s 501(2) of the Migration Act 1958 (Cth) ("the Act"), which provides that the Minister may cancel a visa if he reasonably suspects that the person does not pass the character test and the person does not satisfy him that he does so. 2 The appellant had been sentenced on 29 May 2001 by the District Court of Western Australia for an offence described as '1 count of Heroin Possess Quantity Intent Sell/Supply, imprisonment for 3 years. To be declared a drug trafficker.' The appellant also had other convictions including convictions involving drugs. There was and is no dispute that the appellant does not meet the requirements of the character test as stated in s 501(6) of the Act. 3 The application before R.D. Nicholson J, and on this appeal, is directed solely at the question of whether the Minister properly exercised the discretion contained in s 501(2) of the Act. 4 On 6 November 2002 the Minister signed a document headed "Minister's Decision on Cancellation under s 501(2)". This document is in a standard form requiring deletions, and is annexed to a document titled "Issues for Consideration". The undeleted portions read: 'I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr NGUYEN's comments, and have decided that: … I reasonably suspect that Mr NGUYEN does not pass the character test and Mr NGUYEN has not satisfied me that he passes the character test AND I have decided to EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' 5 By letter dated 13 November 2002 an officer in the Visa Cancellation Section of the Department of Immigration and Multicultural and Indigenous Affairs wrote to the applicant advising that the respondent had decided to cancel his visa pursuant to s 501(2) of the Act. At the conclusion of that letter, the officer stated: 'I enclose with this Notice: · a copy of the decision record that sets out the reasons for the decision.' It is not in dispute that the document enclosed was the document headed "Issues for Consideration". 6 It is accepted by the parties that unless there was jurisdictional error in the making of the decision, the decision by the Minister to cancel the appellant's visa was a privative clause decision and thus protected by s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at par 76. 7 Mr Christie, who was counsel for the appellant both before the primary judge and the Full Court, unsuccessfully submitted to the primary judge that the Issues document comprised the respondent's reasons for decision. He referred to the letter to the appellant of 13 November 2002 in support. Counsel for the Minister submitted that the Issues document did not constitute the reasons for the Minister's decision. 8 The same submissions were repeated on the appeal. 9 The further submission on behalf of the appellant below was that the Issues document, constituting the reasons for the Minister's decision, revealed that the Minister failed to have regard to the best interests of the appellant's children. It was said that there were two obvious alternative proposals: the first that the appellant's wife and children would return with him to Vietnam, and the second, that the wife and children would remain in Australia and the children would, in practical effect, be permanently separated from their father. This second possibility, it was said, was not addressed in the Issues document, the inescapable inference being that it was not considered by the Minister. The failure to have regard to that possible scenario (which, it was submitted, was the most likely on the material) involved jurisdictional error, namely a failure to have regard to a relevant consideration, the best interests of the children. Because the best interests of the children were not considered, there was a failure to accord procedural fairness to the appellant. 10 These submissions were also repeated for the appellant on the appeal. 11 When the appeal was called on, application was made to amend the notice of appeal by adding two further grounds as follows: 'd. The Respondent failed to take into account a relevant consideration namely that the Appellant had entered Australia as a refugee and remained a refugee. e. Alternatively, the Respondent had failed to accord natural justice to the Appellant namely that the Respondent proposed to return the Appellant to Vietnam without taking into account its obligations under the Convention for Refugees.' 12 The questions of whether the appellant 'entered Australia as a refugee' and 'remained a refugee' were not matters that had been raised either in submissions to the Minister or before the primary judge. The only material having relevance to those questions is the notation in the Issues document that Mr Nguyen entered Australia on 20 January 1994 on a visa Class BF 205, and at the date of decision was the bearer of a visa Class BB 155, which latter visa is a returning resident visa. The only information given to the Court concerning a visa Class BF 205 is that it is a 'Camp Clearance' visa. We were told that Mr Nguyen had been in a camp in Hong Kong operated by the Office of the United Nations High Commissioner for Refugees and the Hong Kong Government. In addition there is a letter from the wife of Mr Nguyen dated 8 February 2002. That letter says in part: 'My husband is currently detained in Hakea Prison and has been convicted of charges of possession of heroin with intent to sell and supply. He was sentenced on 28th May 2001 to 3 years imprisonment and was made eligible for parole. My husband and I have been married since 1992. We previously lived in Hong Kong before relocating to Australia in 1994, when my husband was granted permanent residence in Australia as a Vietnamese refugee.' 13 Neither of these grounds were grounds of the application to the Federal Court, or argued before the primary judge. Leave of the Court was therefore necessary to add these grounds of appeal. The Court declined leave at the hearing of this appeal, for reasons which were shortly stated then. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7: 'In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty. Ltd. (1950) 81 CLR 418 at p.438; Bloemen v The Commonwealth (1975) 49 ALJR 219.' 14 The grant of leave was opposed by the respondent because the particulars sought to be added to the grounds of appeal raised issues about which evidence could have been given before the primary judge. In particular, it was said, evidence could have been adduced as to the circumstances of the appellant's entry into Australia, on the question of whether in fact he was a refugee at that time, and if so, whether he remained a refugee under the Refugees' Convention. Particularly having regard to the uncertainty concerning the question of whether the appellant entered as a refugee and the fact that evidence could have been adduced relevant to that issue had the point been taken before the primary judge, leave was refused. It is not irrelevant, in the question of considering whether evidence might have been called on the point, to advert to the fact that Mr Nguyen was absent from Australia from 20 June 1996 to 25 July 1996, then from 23 March 1997 to 17 April 1997, and then from 10 September 2000 to 12 November 2000. The nature of this travel, and any possible relevance to the belatedly-raised issue of possible refugee status, is unknown. Significantly, Mr Nguyen did not seek to support his application for leave to amend the grounds of his appeal by evidence that he had or has a fear of persecution in Vietnam, or indeed, anywhere else. 15 Central to the success of the appellant's appeal is the contention on his behalf that the document headed "Issues for Consideration" in fact contained the respondent's reasons for decision. It is relevant to note that s 501G(1)(e) of the Act provides that if a decision is made under subs 501(2) (inter alia) to cancel a visa, the Minister must give the person a written notice which, among other things 'sets out the reasons (other than non-disclosable information) for the decision.' 16 The primary judge noted that in Minister for Immigration & Multicultural Affairs v W157/00A (2002) 72 ALD 49, Branson, Goldberg and Allsop JJ all were of the view that the issues document in that case did not amount to the giving of reasons and that whether or not something amounted to the expression of reasons is a question of fact. The primary judge said in his reasons for judgment: 'The briefing document there dealt with the relevant material and put forward the alternative causes of action available. However, the document did not explain why the Minister had reached the decision which he had. As Allsop J said in Ayan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 332 at [56] (with Jacobson J agreeing) the issues document "identified the universe of material to which the Minister may have regard, but it did not express why the Minister thought one of the alternatives, over the others, should be adopted." The Issues document in the present matter is indistinguishable from that described as at issue in W157/00A. I find as a fact that it did not constitute the reasons for the respondent's decision. That view is reached having regard to the content of the document – its description in the letter by the Departmental officer cannot affect the facts from which the characterisation derives.' 17 In our opinion, the primary judge was correct in this conclusion. The fact that there has been non-compliance with the obligation imposed on the Minister by s 501G(1)(e) of the Act does not alter that position. Section 501G(4) provides: 'A failure to comply with this section in relation to a decision does not affect the validity of the decision.' The reasons for the decision not being before him, no error is demonstrated in his Honour's finding that the appellant had failed to establish that there was jurisdictional error in the making of the decision. 18 The conclusion concerning the absence of reasons does not require a consideration of the second limb of the jurisdictional error contended for by the appellant, namely, that the Issues document demonstrates that the Minister failed to have regard to the best interests of the children in making his decision to cancel the appellant's visa. We are of the opinion, however, that even on the assumption that the Issues document expresses the reasons of the Minister for his decision, the claimed failure is not made out. 19 The Minister prefaced his decision by stating: 'I have considered all relevant matters including … my Direction under s 499 of that Act …' 20 In the direction referred to, in the section headed "The best interests of the child", the following appears: '2.15 In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to: (a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or (b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 2.16 When considering the best interests of the child, decision-makers should have regard to the following: (a) the nature of the relationship between the child and the non-citizen; (b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct; (c) the age of the child; (d) whether the child is an Australian citizen or permanent resident; (e) the likely effect that any separation from the non-citizen would have on the child; (f) the impact of the non-citizen's prior conduct on the child; (g) the time (if any) that the child has spent in Australia; (h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia; (i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and (j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.' 21 In the Issues document under the heading "The Best Interests of the Children" '[31] Mr NGUYEN's two sons William and Alex, were born 27/08/1999 and 22/10/2001 respectively. Mr NGUYEN was incarcerated 29/05/2001 and released on Parole on 28/05/2002. The duration of the relationship, with his children encompasses the period from William's birth to Mr NGUYEN's incarceration and from his date of release to date, with both children. [32] The children are now aged 3 years and 1 year. [33] Both children were born in Australia. [34] The likely effect that any separation from Mr NGUYEN would have had on his two sons is described in Mr NGUYEN's submissions at Annex C, as follows: "It would be horrendous to punish my wife and children because of my mistakes and if I were to be sent away then this is what I fear." [35] In his submissions at Annex C, Mr NGUYEN does not describe the impact of his prior conduct on the children. [36] Both children have resided in Australia since birth. [37] Mr NGUYEN's citizenship is Vietnamese and he first came to Australia from Hong Kong. Should Mr NGUYEN not be permitted to remain in Australia, the probable receiving country would be Vietnam. The educational facilities and standard of health support system available to his children in Vietnam, would be of a lesser standard to that which the children have experienced in Australia. [38] Both children would encounter language barriers initially in Vietnam. [39] Both children would encounter cultural barriers initially in Vietnam.' It is apparent that there is a complete correspondence between the matters referred to in the Direction in par 2.16, and the conclusions expressed in pars 31 to 39 inclusive. 22 Paragraph 34 of the Issues document is, in terms, directed to the likely effect on his children if separated from Mr Nguyen. Paragraphs 37 to 39 inclusive are directed to the consequences should the children not remain in Australia but accompany him to Vietnam. The conclusion expressed in par 40 is: 'It is open to you to find from the information given that the cancellation of Mr NGUYEN's visa and his removal from Australia would have a detrimental effect on his children.' 23 It is in our view plain that the view expressed in the Issues document is that cancellation of Mr Nguyen's visa would not be in the best interests of his children, and that is so on whichever scenario in fact is the consequence of his return to Vietnam. In the light of that circumstance, it is impossible to conclude that even if the Issues document recorded the reasons for the Minister's decision, there has been demonstrated a failure by the Minister to consider the best interests of the children. Even if we assumed that the Issues document expresses the reasons of the Minister for his decision, the second limb of the claimed jurisdictional error on behalf of the appellant would fail. 24 For the above reasons, the appeal is dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Branson and Stone Associate: Dated: 13 February 2004 Counsel for the Appellant: Mr H.N. Christie Solicitor for the Appellant: Christie & Strbac Counsel for the Respondent: Mr M.T. Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 February 2004 Date of Judgment: 13 February 2004