Vu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 792

FEDERAL COURT OF AUSTRALIA

Vu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 792

MIGRATION – deportation order – application for interlocutory relief pending the hearing of an application to the Court of Criminal Appeal of New South Wales and also of an application for leave to appeal out of time from a decision of a judge of the Federal Court

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13 Migration Act 1958 (Cth) ss 200, 201, 499, 501

Immigration and Ethnic Affairs, Minister for v Teoh (1995) 183 CLR 273 cited Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454 cited Vu v Minister for Immigration & Multicultural Affairs [1999] FCA 1850 cited DUONG NGOC VU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N748 OF 2003 EMMETT J 24 JUNE 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N748 OF 2003

BETWEEN: DUONG NGOC VU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 24 JUNE 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant 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

NEW SOUTH WALES DISTRICT REGISTRY N748 OF 2003

BETWEEN: DUONG NGOC VU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 24 JUNE 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 12 October 1994 as the holder of a class 200 (refugee) visa, accompanied by his wife and daughter. Subsequently, a second daughter was born. On 14 November 1997, the applicant was convicted at Parramatta District Court of the offence of attempt to possess a prohibited import, namely heroin, and was sentenced to five years imprisonment with a non parole period of three years. The applicant also appealed against his conviction but that appeal was dismissed on 11 December 1998 for want of prosecution. 2 On 17 August 1999, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') ordered, pursuant to s 200 of the Migration Act 1958 (Cth) ('the Act'), that the applicant be deported from Australia. The applicant sought review of that decision in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). On 15 December 1999, Einfeld J dismissed that application: see Vu v Minister for Immigration & Multicultural Affairs [1999] FCA 1850. 3 The Minister has now indicated that he proposes to execute the order for deportation of the applicant. The applicant has therefore brought this application before the Court. The precise relief sought has been a little fluid but it appears that the application before this Court is for interlocutory relief pending the hearing of an application to the Court of Criminal Appeal of New South Wales to rescind the order dismissing the appeal from the applicant's conviction for want of prosecution and also of an application for leave to appeal out of time from the order of Einfeld J. The Minister presently proposes to deport the applicant tomorrow and the application before me is for interlocutory relief to restrain deportation pending the hearing of those applications. 4 Counsel for the applicant frankly acknowledged that he was unable to point to any error on the part of the District Court in directing the jury that convicted the applicant. That is because he has not had the opportunity of investigating that matter, it being his intention, if relief were granted, to obtain the advice of experienced criminal counsel. 5 The basis upon which it is said that the order of Einfeld J was wrong is that his Honour failed to conclude that there had been a breach of the rules of natural justice in connection with the making of the decision to deport within s 5(1)(a) of the ADJR Act, in so far as the decision maker failed to indicate to the applicant that the best interests of his children were not to be taken into account as a primary consideration in the making of the order. 6 The only explanation offered for failing to make either application is that the applicant has not had the funds to afford to prosecute an appeal to the Court of Criminal Appeal or an appeal from the order of Einfeld J to the Full Court of this Court. That assertion was made from the bar table and there has been no evidence as to what, if any, steps were made by the applicant prior to the commencement of this proceeding to seek legal advice or assistance in connection with the prosecution of any appeal either to the Court of Criminal Appeal or to the Full Court of this Court. In the absence of such evidence and in the absence of any indication that there was any error on the part of the District Court, I do not consider that the possibility of an appeal or the prosecution of an application to set aside the dismissal of the appeal to the Court of Criminal Appeal should form the basis for any relief. 7 It is pure speculation as to whether or not there is any ground. I do have before me a hand-written assertion by the applicant that he was informed at the time of his conviction by his then solicitor that he had a good ground of appeal against his sentence and conviction. However, there is no evidence that any attempt has been made to consult that solicitor to find out what that ground might have been. I do not, therefore, consider that the possibility of making an application would warrant intervention by this Court. 8 The alternative basis upon which relief is sought is to enable the applicant to pursue an application for leave to appeal out of time from the order of Einfeld J. That application requires consideration of two factors: first, whether there are any special reasons to explain why the application is brought nearly four years out of time, assuming there is some explanation; and secondly, whether there is any prospect of success in the appeal. 9 The decision to deport the applicant was made by the Minister himself following a briefing paper prepared by departmental officers. The decision was made in the application of General Direction Number 9 ('the General Direction') issued by the Minister on 21 December 1998 pursuant to s 499 of the Act. That General Direction dealt with Australia's criminal deportation policy under s 200 of the Act. 10 Section 200 provides that the Minister may order the deportation of a non-citizen to whom Div 9 of Part 2 of the Act applies. Section 201 provides that s 200 applies to a person where that person is a non-citizen who has been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and where, at the time the offence was committed, the person was a non-citizen who had been in Australia as a permanent resident for a period of less than ten years. For the reasons I have indicated, s 200 applied to the applicant. 11 Section 499 provides that the Minister may give written directions to a person or body having functions or power under the Act if the directions are about the performance of those functions or the exercise of the powers. Specifically, s 499(1A) provides that a direction under s 499(1) could require a person to exercise the power under s 501 instead of the power under s 200 (as it applies because of s 201) in circumstances where both powers apply. 12 The General Direction records that the government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations. The primary considerations are: (a) the expectations of the Australian community; and (b) in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children. 13 It was incumbent upon the Minister, in order to accord procedural fairness to the applicant, that, if he were proposing to make a decision on a basis other than the best interests of the applicant's children as a primary consideration, he should inform the applicant of that and provide the applicant with an adequate opportunity of presenting a case against the taking of a such course: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454 at 471[70]. 14 The basis upon which the applicant contends that the Minister's decision to deport him was flawed is that he failed to inform the applicant that he was not proposing to treat the best interests of his children as a primary consideration because of an expectation that might arise from the General Direction. More significantly, it may be that the failure to treat the bests of the interests of the children as a primary consideration would be a failure to comply with the requirements of s 499. Section 499(2A) provides that a person or body must comply with the direction under s 499(1). 15 Having said that the decision maker must have regard to two primary considerations, the General Direction sets out in more detail the matters to which regard should be had in considering the bests interests of children affected by a proposed decision. Paragraphs 19 and 20 of the General Direction relevantly provide as follows: '19. It is the Government's view that when considering what are the best interests of the child or children, regard should be had to: