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: (a) the nature of the relationship to potential deportee; (b) whether the child is an Australian citizen or permanent resident; (c) the likely effect that any separation from the potential deportee would have on the child or children; (d) the likely effect on the child or children of leaving Australia if the parents decided to take the child or children with them from Australia; and (e) the impact of the potential deportee's prior conduct on the child. The decision-maker should have regard to the Government's view in this respect. 20. It is the Government's view that considerations which aid in assessing the above factors include: (a) the age of the child; (b) the time that the child has spent in Australia; (c) any language barriers for the child in the likely country of future residence …; (d) any cultural barriers for the child in the likely country of future residence …; (e) any medical problems of the child and likely access to relevant facilities in the likely country of future residence; (f) the child's degree of emotional and psychological dependence on the potential deportee; and (g) the amount of time the potential deportee has actually spent with the child. Decision-makers should have due regard to the Government's view in this respect.' 16 Counsel for the applicant accepts that a number of those paragraphs have no application in the present case because of the stated intention of the mother of the two children concerned that she does not propose to leave Australia if the applicant is deported. Thus, the factors that depend upon likely country of future residence of the children are of no relevance. Attention, however, was drawn to par 19(a) and par 20(f). In particular, the contention put on behalf of the applicant is that those factors were not taken into account as primary considerations. 17 On 24 November 1999, the Minister provided reasons for his decision pursuant to s 13 of the ADJR Act. In his reasons, the Minister said that he applied the General Direction. He said that, in accordance with that General Direction, he treated as primary considerations the expectations of the Australian community and the best interests of the applicant's two children. After dealing with the first of those matters, the expectations of the Australian community, the Minister then dealt with the best interests of the children. He said first that he considered that the General Direction was directly applicable to the applicant. Specifically, the Minister referred to par 11 which was in the following terms: 'It is the Government's view that the decision-maker must determine the best interests of any children aged less than 18 years who are in a parent-child or other close relationship with a potential deportee.' 18 The Minister then said: 'I accepted that it would be in the best interests of [the applicant's] children if he were to remain in Australia, particularly as his wife indicated that she and the children would not accompany [him] should he be deported to Vietnam. In accordance with General Direction No 9 and the Convention on the Rights of the Child, I regarded this as a primary consideration. I accepted that the children will experience emotional suffering and economic disadvantage if they are separated from their father. The children … are now aged eight years and three years respectively. Both children would probably be affected very adversely by [the applicant's] deportation. I was particularly mindful of the fact that deportation would break up the family unit and any separation could lead to the children gradually drifting apart from their father over the years.' 19 Under the heading 'International Obligations', the Minister said: 'I noted that [the applicant] arrived in Australia on 12 October 1994 as the holder of a class 200 refugee visa. … Regardless of whether [the applicant] ever had or now has any well-founded fear of persecution for a convention reason, I was of the view that he had been convicted by a final judgement of a particularly serious crime and constitutes a danger to the Australia community. Consequently, Article 33 of the Convention would not, by reason of paragraph 2 of Article 33, prevent his return to Vietnam.' 20 The Minister's conclusion was expressed as follows: 'In deciding to sign a deportation order against [the applicant] I consider that the expectations of the Australian community outweighed in this case the best interests of [the applicant's] children and other relevant considerations. I reached this view particularly having regard to the nature and seriousness of the drug offence and the need to protect the Australian community against the risk I found to be posed by [the applicant]. In reaching this conclusion I had regard to all of the factors that I have identified as pointing towards deportation or against deportation and I considered all of them both together and in isolation, in accordance with the General Direction to which I have referred. With respect to my conclusion that the expectations of the Australian community outweighed in this particular case the interests of the potential deportee's children, I formed the view that the need to protect the Australian community was serious in relation to [the applicant] and outweighed in this case the detriment to his children.' Counsel for the applicant contended that that was not enough to comply with the General Direction and to treat the best interests of the children as a primary consideration. 21 It is necessary for a decision maker to identify for him or herself the best interests of the children involved. That is not some inflexible rule of law or requirement for mechanical incantation. The interests of the children are considerations in respect of their human development, their health, including their psychological health and happiness, and their social and educational development as balanced, nurtured young citizens of Australia. They are the sorts of considerations relevant to children which form their best interests in connection with the decision whether to deport their father in circumstances where they would not go with him. 22 Counsel for the applicant contended, in effect, that the reasons of the Minister indicated that he had not in fact had regard to such interests. Specifically, it was asserted that the Minister should have taken steps to have a psychological assessment made. It is not suggested, however, that the applicant was not given the opportunity of making submissions to departmental officers prior to the making of the decision. The material before me indicates that a letter advising the applicant of his liability for deportation due to his deportable offence was forwarded to him on 28 January 1998. He was interviewed by a departmental case officer on 28 May 1999. On 23 June 1999, he was notified by further letter and second interview of his liability pursuant to s 200 of the Act. 23 It has not been suggested that he did not have ample opportunity to bring to the attention of the department and the Minister any specific considerations concerning his children. I do not consider, in those circumstances, that there was a duty imposed upon the Minister to inquire independently as to the possible psychological effect of the deportation on the applicant's children. I do not consider that any basis has been indicated upon which a conclusion could be drawn that the Minister did otherwise than as he said he did in his reasons. 24 That is to say, the Minister had regard to the fact that the applicant's children will experience emotional suffering and economic disadvantage if they are separated from their father. He had regard to the fact that deportation would break up the family unit and that separation could lead to the children gradually drifting apart from their father over years. The Minister said that he treated those matters as a primary consideration. There is nothing in the Minister's reasons or in the briefing paper upon which he apparently based his decision to indicate that he did not. 25 I do not consider, on the material before me, that a case has been established that there is any prospect of an appeal from the decision of Einfeld J succeeding. In those circumstances, bearing in mind that there is no real explanation as to why nothing has been done for nearly four years, I do not consider that there is any prospect that leave to appeal would be granted. In those circumstances there would be no utility in granting any interlocutory relief. 26 I will add, of course, that this sort of case is always distressing. It is most unfortunate that two small children should be separated from their father. It is, however, important to remember that the reason for that separation is the conduct of their father. That is not a reason why the children should not continue to have affection for him but it is the consequence of conduct for which he has been tried and found guilty. 27 It follows that the application should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 30 July 2003 Counsel for the Applicant: C D Jackson Solicitor for the Applicant: Johnston Vaughan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 June 2003 Date of Judgment: 24 June 2003