FEDERAL COURT OF AUSTRALIA Nguyen Van Son v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 875 MIGRATION – cancellation of visa – whether Minister's reasons for decision constituted by decision record read with issues document – whether Minister in jurisdictional error for failing to take into account best interests of the children – whether Minister failed to consider children were Australian citizens – whether Minister failed to consider children's position if they did not accompany applicant to Vietnam – application unable to establish jurisdictional error Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 474, 501G(1)(e), 501(2), 501(6), 501(7) Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 approved Minister for Immigration & Multicultural Affairs v W157/00A (2002) 72 ALD 49 followed Ayan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 332 cited Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 approved Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 approved Suleyman v Minister for Immigration & Multicultural Affairs [2000] FCA 610 approved Suleyman v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1540 approved B & B v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 181 cited Hui v Minister for Immigration & Multicultural Affairs [1999] FCA 985 cited Sanders v Snell (1998) 196 CLR 329 cited Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 cited NGUYEN VAN SON V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W342 of 2002 RD NICHOLSON J 22 AUGUST 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W342 OF 2002 BETWEEN: NGUYEN VAN SON APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 22 AUGUST 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs on the application. 3. Orders 1 and 2 made on 3 April 2003 be extended until the hearing and determination of any appeal or until the expiration of seven days from the date of this order and within that latter time the applicant has not filed a notice of appeal, whichever shall first occur. 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 W342 OF 2002 BETWEEN: NGUYEN VAN SON APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 22 AUGUST 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application brought in reliance on s 39B of the Judiciary Act 1903 (Cth) for prerogative and injunctive relief from the decision of the respondent made on 29 October 2002 (and served on the applicant on 13 November 2002) to cancel the applicant's residence visa. relevant statutory provision 2 The respondent's action which the application seeks to challenge was taken in reliance on s 501(2) of the Migration Act 1958 (Cth) ('the Act'). That provides that the Minister may cancel a visa if he reasonably suspects the person does not pass the character test and the person does not satisfy him that he does so. 3 For the purposes of s 501 the character test is defined by the provisions of s 501(6), which provides: '(6) For the purpose of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in t he Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test.' The description 'substantial criminal record' is defined by s 501(7) as follows: '(7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.' respondent's decision 4 On 6 November 2002 the respondent signed a document headed 'Minister's Decision on Cancellation under s 501(2)'. It 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 s501(6) of the Migration Act 1958, (2) my Direction under s499 of the 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 & Multicultural & Indigenous Affairs wrote to the applicant advising that the respondent had decided to cancel his visa pursuant to s 501(2). At the conclusion of that letter it was stated that there was enclosed with it 'a copy of the decision record that sets out the reasons for the decision'. It is not in dispute that the enclosed document was that headed 'Issues for Consideration'. document setting out 'issues for consideration' 6 This document stated that the applicant was born in Vietnam on 24 January 1971; that he was married and had entered Australia on 20 January 1994. 7 The document continues by stating that on 29 May 2001 the applicant was sentenced 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.' 8 In addition the document set out that the applicant had convictions for the following additional offences: '17/12/1997 Possess prohibited drug $200 Goods in personal custody $1000 Reasonably suspected 27/11/1998 Heroin Possess a quantity $300 14/04/1999 Unlawful Possession $1500 03/01/2001 Demerit Point Suspension Served 0855 MDL Disq three months' 9 After setting out Issues for Consideration arising pursuant to the provisions of s 501(6), the document set out the following under the heading of 'The Best Interests of the Children': '[27] 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 primary consideration." [28] Mr NGUYEN has two children. Mr NGUYEN stated in his submission that these children would be affected by a decision under s.501(2). [29] 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: [30] In describing the nature of the relationship between the children and himself Mr NGUYEN in his submissions at Annex C states: "My family are waiting for my release and need me very much to support them as my wife cannot work and would never want to be a burden on the Australian Taxpayer." "My children are the most important things to me now and that is why I need to make sure that no drugs will be in my life from now on." "As you well (sic) come to know my family is my whole life. I could not live without them. I ring them every day. I live to see them every week." [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 Williams'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. [40] 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. Copies of the submissions from Mr NGUYEN are at Annex C.' 10 Under the heading 'Other Considerations' the document also set out the following: '[45] With regard to the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether they would be able to travel overseas to visit Mr NGUYEN, nature of the relationship, degree of dependence of the person, Mrs Nguyen in her submissions at Annex E, states: "I have my mother and two sister in Perth and one sister in Sydney. My husband and I are very happy and loving family." "My husband is good man who provides well for the family. I do hope that everything gos (sic) well and we can stay together as a family. That is my main wish." "I am on my own now with the two children.… It is hard for me on my own. They can't live without their father."' 11 Annex C to the document were the submissions from the applicant. It comprised a handwritten letter from the applicant dated 17 October 2002. In the course of the letter he stated: 'It was terrible while I was in prison in that my wife had to have my second child all on her own. I never want to be separated again from my family.' 12 In an earlier letter dated 7 February 2002 the applicant stated the following to the Department: 'I have two children, William Nguyen DOB 27/08/99 and Alex Nguyen DOB 22/10/01, both born in Perth, Western Australia. It would be in the best interest of my wife and children if I were allowed to remain in Australia and would be detrimental if I were deported and my family had to relocate.… I have strong ties to this country as my wife and children are Australians and I consider myself now to be Australian and wish to become a citizen. My family are (sic) waiting for my release and need me very much to support them as my wife cannot work and would never want to be a burden on the Australian Taxpayer. I wish to become a productive member of society and a good husband and father to my family…. I would be grateful if you would view my case compassionately and come to a favourable decision. 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.' 13 In a further letter (undated) requesting reconsideration of his case the applicant stated that he 'must think about my wife and two sons'. 14 Annex E, being a submission from the applicant's wife has already been quoted above in the extract of par 45 from the document. 15 In a further letter dated 8 February 2002 the applicant's wife stated that she and her husband had been lawfully married for 9 years and that 'we have a two-year-old child who I understand is an Australian citizen by descent, and I now have our second child'. grounds of application 16 The grounds of application are that the respondent did not make a bona fide attempt to exercise his power pursuant to s 501 of the Act and that he made the decision without jurisdiction. Essentially, it is said in the grounds that such is the case because the respondent failed properly or adequately to take into account the interests of the applicant's two Australian born children. 17 It is not in dispute that unless the applicant can make out a case which has the effect that s 474 of the Act is of no effect in this instance, that section will apply to render the decision of the respondent a privative clause decision protected by it: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [76]. For the avoidance of the application of the section the applicant is therefore required to establish a jurisdictional error in the making of the decision. 18 There is no dispute on the part of the applicant that by reason of the character test he did not meet the requirements of that test as stated in s 501(6) of the Act. The challenge to the decision of the respondent concerns whether he properly exercised his discretion. whether issues document comprises respondent's reasons 19 For the applicant it is submitted that the Issues document comprises the respondent's reasons. It supports this submission by reference in the letter to the applicant of 13 November 2002. 20 For the respondent it is contended to the contrary. Reference is made to s 501G(1)(e) which 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.' 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 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 332at [56] (with Jacobson J agreeing) the issues document 'identified the universe of material to which the Minister may have had 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. 21 The respondent through its solicitor had offered, upon adjournment of the hearing of this application, to obtain a statement of reasons of the respondent but that was declined on behalf of the applicant. The respondent therefore asserts that the issue of whether the Minister had provided reasons cannot arise on any appeal from this present decision. Further, it is contended for the respondent that if there are no reasons before the Court it is not possible to make any finding of jurisdictional error. Nevertheless I proceed to consider the contentions for the applicant as best I can in the absence of a record of decision of the respondent assuming, as the applicant contends, that the Issues document in fact records the reasons for decision of the respondent. failure to take into account interests of the children 22 For the respondent it is accepted that, in the circumstances of this case, there will have been a breach of the rules of natural justice, constituting jurisdictional error, if the respondent made his decision other than by taking into account the best interests of the applicant's children as a primary consideration: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291 – 292 per Mason CJ and Deane J; Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 at [34] and Suleyman v Minister for Immigration & Multicultural Affairs [2000] FCA 610 at [44], undisturbed on appeal in Suleyman v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1540. 23 In the light of this concession on the part of the respondent, this case turns on the issue of whether the applicant can establish that the respondent failed to take into account the best interests of the applicant's children as a primary consideration. The issues of law considered by the Full Court of the Family Court of Australia in B & B v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 181 at [268]-[288] do not arise for consideration here and I accept the written submissions for the respondent why that is the case. 24 On the factual question, the first submission for the respondent is, in repetition of what has earlier been set out, that the applicant cannot establish the respondent failed to take into account the best interests of the children in that the Issues document does not contain the reasons of the respondent. I have already found that is the case. 25 The second argument is that the Issues document placed materials before the respondent, set out issues for his consideration and contained at the end his decision so that the clear inference is that the respondent did take into account the best interests of the applicant's children as a primary consideration including the question whether the children were to return to Vietnam. As this issue lies at the nub of the application I will set out the competing submissions. Applicant's submissions 26 The applicant directs attention to par 40 of the Issues document under the heading 'The Best Interests of the Children' where it is said that it was open to the respondent to find from the information given to him that the cancellation of the applicant's visa and his removal from Australia 'would have a detrimental effect on his children'. It is said that this was a different more limited issue to a determination as to what was in the best interests of the children and whether, if their best interests are determined to be that the applicant remain in Australia, that is countervailed by the Australia community's interest in removing the applicant from Australia: Hui v Minister for Immigration & Multicultural Affairs [1999] FCA 985 at [14] and Wan at [26]. It is submitted that in order for the best interests of the children to be taken into account the minimum requirement is that the interests of the children are ascertained. Further, it was clearly relevant to determine the nature and the extent of the detriment to the children and not merely to conclude that the removal would be detrimental to the children without any identification of the nature of the detriment. Here it is said that the respondent only considered the detriment to the children being relocated to Vietnam: see par 37 where educational facilities and standard of health support system were accepted as of a lesser standard than they would experience in Australia and also pars 38 and 39 where reference is made to linguistic and cultural barriers. 27 It is said that the respondent did not consider the alternative consideration that the applicant's wife and children would not go with the applicant to Vietnam but would remain Australia. It is said this is the most likely alternative as it was raised by implication in the letter from the applicant's wife but not addressed in the respondent's reasons. 28 It is also submitted that the reasons did not address the effect of permanent separation from their father on the children, including the lack of a father figure in the children's development, the loss of love, care and support that the applicant might be expected to provide to his children and also loss of financial support if the applicant as the principal provider was also likely to provide if he remained in Australia. These, it is said, were matter essential for the respondent to consider: Sanders v Snell (1998) 196 CLR 329 at 351; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 31, 39 and 45. Respondent's submissions 29 For the respondent it is said it is significant that in the decision record the respondent has stated that he has considered, among other things, his direction under s 499 of the Act. That is a reference to a direction dated 23 August 2001 relating to the application of the character test. In addressing the exercise of the discretion the direction stressed that the Government is mindful of the need to balance a number of important factors including three primary considerations, the third of which is stated to be that 'in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children'. It is stated that in general terms the child's best interests will be served if the child remains with its parents. Under the heading 'The Best Interests of the Child' it is stated that: '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 go to, 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.' 30 Additionally, the direction recognises other considerations to be taken into account but 'given less individual weight than that given to the primary considerations'. Among these are the extent of disruption to the non-citizen's family and other ties to the Australian community. 31 The decision record also indicates that the respondent took into account the submissions of the applicant. These have been set out above and contain information relevant to the respondent taking into account the best interests of the children. Although the respondent does not specifically refer to the submissions of the applicant's spouse, it is clear that the Issues document placed these before him. These have earlier been set out. 32 Turning to the Issues document, the submissions for the respondent point to the fact that the issue of 'the best interests of the children' is included under the heading 'Primary Considerations'. Additionally, the section itself commences by setting out Art 3.1 of the Convention on the Rights of the Child from which follows relevant factual information concerning the two children. Therefore, it is said, the strong inference is that the respondent took the best interests of the children into account. 33 With reference to the contention in the applicant's particulars that the respondent did not address the issue that the applicant's children were Australian citizens, the submissions for the respondent contend this cannot be established. This is said to be because not only did the respondent assert that he had considered 'all relevant matters' but that in par 42 of the Issues document there was a quotation from the submission of the applicant which indicated that his wife and children were Australian. Additionally, par 36, cited above, drew attention to the residence of the children in Australia since birth and par 43 again referred to the applicant's Australian born sons. In view of what was said by Branson J in W157/00A at [76], the case for the applicant did not rely on this particular. 34 Turning to the terms of par 40 of the Issues document it is accepted for the respondent that it does not in its terms state that it would be in the best interests of the children if the visa was not cancelled. However, it is said that it is obvious from what is stated there that their best interests would be served by the non-cancellation of the visa. 35 On the issue of whether the respondent had adverted to the alternative consideration that the applicant's wife and children would not go with him to Vietnam, the respondent's submission points to two features of the Issues document. The first is that the potential detriment to the applicant's children was either in immigrating to Vietnam with the applicant and suffering disadvantages consequent upon that or the forced separation from the applicant if he was removed to Vietnam and the children remained with their mother in Australia. Paragraph 30 of the Issues document refers to the question of the applicant's spouse being a burden on the Australian Taxpayer and so raised the issue by way of implication. reasoning 36 On the assumption made for present purposes that the Issues document and the decision record constitute the reasons for the respondent's decision, I do not consider that the applicant's case could be made out. In reaching this view I am influenced by the approach of the Court in W157/00A at [77], in reasons for her decision Branson J stated that 'as the content of the Issues document reflects, everything pointed towards the best interests of the children favouring a decision not to cancel the respondent's visa. It would, in my view, be unrealistic to conclude that this was not appreciated by the Minister'. Accordingly, I am of the view that in the particular circumstances pertinent to this application, if it were the case that the Issues document constituted the respondent's reasons, it could not be found that the respondent had failed to take into account the best interests of the applicant's children. conclusion 37 The assumption which I made for the purposes of a portion of these reasons that the Issues document read with the decision record constitute the reasons of the respondent is not an assumption which can determine the outcome of the application before me. It is because of my finding that the reasons for the decision are not before the Court that it follows the application must be dismissed as the consequence is the applicant cannot establish there is any jurisdictional error in the making of the decision. Accordingly the application should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 22 August 2003 Counsel for the Applicant: Mr HNH Christie Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: Mr MT Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 July 2003 Date of Judgment: 22 August 2003