FEDERAL COURT OF AUSTRALIA Berryman v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 993 MIGRATION – judicial review – cancellation of visa – character test – consideration of best interests of children – procedural fairness – International Covenant on Rights of Child – Minister's Direction – legitimate expectation – whether open to Court to infer want of relevant consideration of best interests of the child by Minister – whether adverse material placed before Minister without notice to visa holder – procedural fairness Migration Act 1958 (Cth) s 501, s 474, s 499 Migration (Reform) Act 1994 (Cth) Judiciary Act 1903 (Cth) s 39B Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 cited Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 cited Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33 cited DENVER MAUI BERRYMAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W339 OF 2002 FRENCH J 30 JULY 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W339 OF 2002 BETWEEN: DENVER MAUI BERRYMAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 30 JULY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. 3. The respondent's motion filed 18 May 2004 be dismissed. 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 339 OF 2002 BETWEEN: DENVER MAUI BERRYMAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 30 JULY 2004 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 A New Zealand citizen who came to Australia in 1980 when he was just under one year old accumulated a substantial criminal record when growing up and into his adult years. As a result of prison terms imposed upon him between 1998 and 2002, his visa was cancelled under s 501(2) of the Migration Act 1958 (Cth) ('the Act'). The decision to cancel his visa was made on 1 November 2002 by the Minister for Immigration and Multicultural and Indigenous Affairs. 2 Denver Berryman, who is the New Zealand citizen concerned, instituted proceedings in this Court on 6 December 2002 with a view to challenging the Minister's decision. The grounds upon which that challenge is mounted relate to alleged failures of procedural fairness in the Minister's decision-making process. Mr Berryman claims that, contrary to Australia's international obligations and to the Minister's own administrative Direction, the Minister failed to take into account the best interests of Mr Berryman's child as a primary consideration in exercising his discretion to cancel the visa. This, he says, was procedurally unfair because he was not notified of the Minister's intention not to adhere to the international obligations or the Direction and so lost the opportunity to make submissions on the point. As to the second ground, he says that the Minister, in arriving at his decision had regard to unfavourable comment by a Community Correction Officer in relation to Mr Berryman upon which he had no opportunity to comment. 3 For the reasons which follow I am satisfied that there was no procedural unfairness and therefore no jurisdictional error affecting the decision of the Minister. The application will be dismissed with costs. Factual and Procedural History 4 Denver Maui Berryman is a citizen of New Zealand who was born on 19 September 1979. He came to Australia as a baby with his family on 12 September 1980. He has lived in Australia since that time, although there have been brief absences in 1981, 1984 and 1992. Since 1993, Mr Berryman has accumulated a substantial criminal record. The details of that record follow: Conviction Conviction Sentence Date 10.12.1993 No MDL 35 hrs CSO, Disqual 3 mths 10.12.1993 Excess 0.08% 35 hrs CSO, Disqual 3 mths 10.12.1993 Failing to stop when called upon 35 hrs CSO, Disqual 3 mths 07.04.1994 Burglary 7 x 12 wks CRO, Disqual 3 mths 07.04.1994 Attempted Burglary 12 wks CRO, disqual 3 mths 07.04.1994 Damage 12 wks CRO, Disqual 3 mths 07.04.1994 Deprivation of Liberty (violent offence) 12 wks CRO 07.04.1994 No MDL 2 x 12 wks CRO, disqual 3 m 07.04.1994 Stealing 12 wks CRO, Disqual.3 mths 15.12.1994 Possess Housebreaking implement 20 hrs CSO 15.12.1994 Steal by finding 20 hrs CSO 11.01.1996 Excess 0.08% 20 wks IYSOD, disqual 6 mths 11.01.1996 Reckless Driving-Prescribed 20 wks IYSOD, disqual 6 mths 11.01.1996 No MDL 20 wks IYSOD, disqual 3 mths 11.01.1996 Stealing a Motor Vehicle 20 wks IYSOD, disqual 3 mths 19.03.1997 Disorderly Conduct $200 fine, GB bond 3 mths 19.03.1997 Fail to appear $200 fine, GB bond 3 mths 19.03.1997 False Name and/or address $200 fine, GB bond 3 mths 19.03.1997 Resist Arrest $200 fine, GB bond 3 mths 20.06.1997 Burglary & commit offence (habitation) IYSO 6 mths 100 hrs comm work 20.06.1997 Burglary & commit Offence Agg (Habitat) 3 x 6 mths IYSO 100 hrs comm work each chg 18 yrs of Age 21.11.1997 Burglary & Commit offence 3 x 18 mths ISO – adult 21.11.1997 Burglary & commit offence Agg (Habitat) 18 mths ISO – adult 21.11.1997 Disorderly conduct 18 mths ISO – adult 21.11.1997 Receiving 18 mths ISO 21.11.1997 Stealing Motor Vehicle 18 mths ISO 21.11.1997 Unlawful Possession 18 mths ISO 24.03.1998 Breach of Bail $250 fine 24.03.1998 No MDL $125 fine, disqual 3 mths 26.06.1998 Burglary & Commit offence 2 x 12 mths CRO – adult 22.09.1998 Damage $300 fine 01.12.1998 Burglary & Commit offence Agg (Habitat) 15 mths imprisonment 01.12.1998 Stealing motor vehicle 15 mths imprison (conc) 01.12.1998 Heroin Possess a Quantity 1 mth imprisonment, conc 01.12.1998 No MDL $50 fine 15.02.1999 Burglary & Commit offence Agg (Habitat) 6 mths imprisonment 15.02.1999 Stealing a Motor Vehicle 6 mths imprisonment 19.02.1999 Receiving $150 fine 19.02.1999 Stealing $200 fine 10.03.1999 Stealing – motor vehicle 4 mths imprisonment 25.03.1999 Breach of bail 7 days imprisonment 30.01.2001 No MDL $200 fine, disqual 3 mths 30.01.2001 Wilfully mislead a Police Officer $200 fine, disqual 3 mths 30.01.2001 Exceed the speed limit 20 km $200 fine 09.03.2001 Burglary with Intent Aggravated (Habitation) 12 mths imprisonment 08.04.2002 6xBurglary & Commit offence (Habitation) 2x12 mths imp cum ea chg 4x12 mths imp conc ea chg 08.04.2002 2xBurglary with Intent 8 mths imprisonment conc (Habitation) 12 mths imp conc 08.04.2002 8xStealing 1x12 mths imp conc 1x8 mths imp conc 2x6 mths imp conc ea chg 4x4 mths imp conc ea chg 08.04.2002 Unlawful Possession 4 mths imp conc As appears from his record, Mr Berryman was sentenced in 1998, 1999, 2001 and 2002 to terms of imprisonment amounting to 12 months or more. 5 On 4 July 2002, an officer of the Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA') sent Mr Berryman a Notice of Intention to Consider Cancelling his visa under subs 501(2) of the Act. The notice recited that he was currently deemed to be the holder of a visa class TY444 Special Category Visa as a result of the Migration (Reform) Act 1994 (Cth). The notice stated that his visa might be liable to cancellation by the Minister under s 501 of the Act and referred to the relevant grounds as those set out in various subparagraphs of subs 501(6). A copy of the full text of s 501 was attached to the notice. The notice went on: 'Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following: . Your substantial criminal record and/or . Your past and present criminal conduct . Your past and present general conduct In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister's Direction No 21 titled 'Direction under Section 499- Visa Refusal and Cancellation under Section 501 Migration Act 1958'.' The notice advised Mr Berryman that in preparing his comments he should read fully and carefully the contents of the Minister's Direction and address each and every topic that he felt applied to him or was relevant to the circumstances. He was also told that he could provide any further information apart from those considerations listed in the Minister's Direction that he felt the Minister ought to be aware of and take into account. He was given until 25 July 2002 to provide any written comments and information. 6 Following his receipt of the notice Mr Berryman made a written submission dated 10 July 2002. In that submission he said that his parents were born in New Zealand. He is one of seven children. He has two brothers and four sisters and a half brother. His father came to Australia when he was five months old to look for work and to make a new life for the family in this country. Subsequently, in 1980, his mother left New Zealand with the children, including Mr Berryman, to settle in Australia. His grandmother and grandfather also lived in this country. 7 Mr Berryman said that the family was very close and he was fortunate to have parents who showed a lot of love. He left school to look for work at an early age because he couldn't read or write very well and was failing in his subjects. He was 14 years of age and went up north to Wiluna fruit picking. He was there for about 12 months. He returned to Perth when he was 15 years old and lived with his aunt. When he was 17 he met Kylie Peters. Six months into their relationship, she became pregnant and later gave birth to their child, Liana Jaye Berryman. The submission set out the difficulties that Mr Berryman and his partner had in obtaining employment and supporting themselves and their child. Mr Berryman said, in the submission that they are in a continuing relationship, which is now six years old. He said that he did not see himself as a threat to Australian society. He had made mistakes and paid for them. He had been in Australia for 22 years. He said he has no friends or family in New Zealand and did not know their way of life or culture. All of his family and loved ones are in Australia which is the only way of life he knows. His submission went on to deal with particular matters relating to the sentence imposed on him, his past and present criminal conduct and past and present general conduct. 8 A written submission was also received from Kylie Peters dated 22 July 2002. She confirmed that she and Mr Berryman had been together almost six years. She wrote of him as a 'very warm, loving and compassionate person who has a heart of gold'. In relation to their child, Liana, she said: 'I've worked for most of Liana's young childhood and Denver has pretty much been the one to bring Liana up they have a very special bond together. he is very patient and has always got time for her. It's been very hard on Liana with Denver gone as she's .... Daddy's girl ... Liana absolutely adores Denver, she goes off and draws him pictures ... brings home drawings ... it's important that Denver feels apart with Liana's progress at school as he was the one that mostly took her to kindy and spent time with her there because I was working alot of time. ' (sic) She went on to say: 'With Denver being away it's made it difficult on the three of us because we're very close we are always together it's been very upsetting with alot of tears especially from Liana and it breaks Denvers heart to hear her cry he hates for what has happened and that he can't be there for me or Liana. Im a person that gets scared in being alone and I've always had Denver there beside me.' (sic) 9 A letter of support was also written by Carolyn Peters, Kylie's mother. She said she had known Mr Berryman for six years. She found him to be a very respectful, helpful young man. She said that Mr Berryman was always there for her, her daughter and granddaughter. She never had any trouble from him. She said: 'If Denver was to leave it would brake my heart, & certainly his little girl, Liana. He is very close to her & at the moment Liana misses her Dad very much.' (sic) She said that Mr Berryman was a hard worker and would be able to prove his skills if he was allowed to stay in Perth. 10 An Issues Paper was prepared for the consideration of the Minister. Its author began by referring to the sentences imposed upon Mr Berryman in 1998, 1999, 2001 and 2002 and said that it was open to the Minister to find that Mr Berryman had a substantial criminal record and therefore could not pass the character test. This contention and the finding to that effect by the Minister is not disputed and indeed, having regard to the sentences imposed upon Mr Berryman and the terms of s 501, is indisputable. 11 The Issues Paper under the heading 'DISCRETION' directed the Minister's attention to the need to consider the exercise of his discretion to decide whether Mr Berryman should be permitted to remain in Australia. It referred the Minister to his Direction No 21 issued under s 499 to guide delegates and the Administrative Appeals Tribunal in the exercise of that discretion. It pointed out to the Minister that he was not bound by his own s 499 Direction. However it was open to him to be guided by the factors set out in the Direction. It was also put to the Minister that in balancing the relevant factors, he was free to place whatever weight he regarded as appropriate on those factors. 12 The Issues Paper set out a number of primary considerations based on the primary considerations contained in the Minister's Direction. The first of these was 'Protection of the Australian Community'. Under the subheading 'seriousness and nature of conduct' it was put to the Minister that Mr Berryman's offences were within the category of 'a very serious offence' under par 2.6 of the Direction. The Issues Paper set out Mr Berryman's criminal record. It noted that he had been issued with a s 501 liability warning following his conviction and sentence on 9 March 2001. It was put to the Minister at [18] that, on the basis of the criminal history, it was open to him to find that Mr Berryman's conduct against the community was serious. 13 The Issues Paper referred to Mr Berryman's submission of 10 July 2002. It quoted from that submission and also from the supporting letters written by Kylie Peters and her mother. On the likelihood of recidivism, the Issues Paper pointed out that Mr Berryman had previously been considered for visa cancellation and that he had been issued, on 4 January 2002, with a 'Warning of Possible Future Liability Under s 501 of the Migration Act 1958'. He had acknowledged this on 24 January 2002. However, on 8 April 2002 he was convicted on further charges of burglary and stealing. Reference was made to his numerous convictions and the observation of the sentencing judge, in December 1998, that: '... We have a situation again where this offender commits significant offences. Non-custodial options have not worked previously. He commits this offence on 24 September when he knows he's going back to court to face breach action on 30 September and therefore there is little really that can be said on his behalf in this matter.' 14 A Community Correction Officer's report dated 6 September 2001 and a Ministry of Justice Immigration Report dated 19 July 2002 were referred to and copies annexed to the Issues Paper. The first report referred to Mr Berryman's voluntary participation in the prison's naltrexone program and the observation of the facilitators of the program that '... he appeared to gain considerable insight into his drug offender behaviours and was able to identify his individual high-risk situations'. However the report said, as quoted in the Issues Paper: 'Berryman has a poor record of compliance with community supervision in the past. He has breached a number of community supervision orders...' 'Berryman's current parole period commenced on the 7th July 2001 and is due to expire on the 5th November 2001. Special conditions of this order are to attend Substance Abuse Counselling and undergo Urinalysis as directed. Berryman has reported to his Community Corrections Officer for supervision as required, only failing to attend on one occasion. Urinalysis results to date have been free of illicit substances.' The paper stated that it was open to the Minister to find that Mr Berryman was at a medium risk of recidivism. 15 Under the heading 'General deterrence' it was stated in the Issues Paper that the offences committed by Mr Berryman were 'very serious'. It was open to the Minister to find that cancellation of Mr Berryman's visa '... would serve as a deterrence factor against others committing similar offences' (sic). A copy of the criminal history was annexed. 16 The next heading was 'The Expectations of the Australian Community'. Reference was made to par 2.12 of the Minister's Direction dealing with this topic. At par 30 of the Issues Paper it was said: 'The offences committed by Mr Berryman are considered by the Government to be very serious. The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offences are such that the Australian community may expect that Mr BERRYMAN should be removed from Australia.' 17 The next heading was 'The Best Interests of the Children'. The paper quoted Art 3.1 of the Convention on the Rights of the Child: '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.' The paper then stated that Mr Berryman has one child and that he had said in his submission that the child would be affected by a decision under s 501(2). The Minister was referred to par 2.16 of his Direction setting out the factors to which a decision-maker should have resort when considering the best interests of the child. 18 The Minister was informed that Mr Berryman had been in a relationship with Kylie Peters for the past six years and had a five-year-old daughter of that relationship. It reported Mr Berryman's statement that he had a 'close relationship' with his daughter. The letter from Kylie Peters of 22 July 2002 was quoted in part and in particular the passage set out earlier where she said she had worked for most of their daughter's young childhood and that Mr Berryman had 'pretty much been the one to bring Liana up'. The Issues Paper also quoted from Carolyn Peters' letter and her assertion that Mr Berryman was very close to Liana and that she missed her father very much. The Minister was told that the daughter had been born in Australia and was an Australian citizen. Mr Berryman's claim that he had no friends or family in New Zealand and didn't know the way of life or culture there was reported together with his claim that all of his family and loved ones are in Australia. The Minister was told that Mr Berryman had not directly addressed the issue of the impact of his prior conduct on his daughter. He was told that she had lived all her life in Australia. The Issues Paper then said: '[39] Should Mr Berryman's visa be cancelled and he is removed to New Zealand and should his child accompany him, the educational facilities and standard of the health support system in New Zealand is of a similar standard to that in Australia. [40] No language barriers would exist for the child in New Zealand should she accompany Mr Berryman in the event of cancellation of his visa. [41] No cultural barriers would exist for the child in New Zealand should she accompany Mr Berryman in the event of cancellation of his visa. [42] It is open to you to find from the information given that the cancellation of Mr Berryman's visa and his removal from Australia would have a detrimental effect on his child.' Having regard to the paragraphs in the Issues Paper that preceded [42] it is possible that it was intended to say that the cancellation of the visa and Mr Berryman's removal from Australia would not have a detrimental effect on his child. However this is the form in which the Issues Paper went to the Minister. 19 The Issues Paper then turned to 'Other Considerations'. Under this heading it referred to the issues of disruption to family already discussed and Mr Berryman's relationship with Ms Peters. It referred to their plans to marry in the future and to have another child. It also referred to the fact that Mr Berryman already had a number of convictions in the Childrens' Courts when he commenced his relationship with Ms Peters. His submission of 10 July 2002 about that relationship and its closeness was quoted. 20 At [47] the Issues Paper stated: 'In the Community Correction Officer's Report, Annex G, dated 06.09.2001 it is stated that Mr BERRYMAN has been in a "steady relationship" for the past five years. It also states that he currently lives with his parents, 11 year old sister and a 6 year old nephew.' The Issues Paper identified the hardship issues as mainly relating to Ms Peters and their child as well as to Mr Berryman's parents and siblings. The Minister was informed that Mr Berryman's parents and seven siblings live in Western Australia. It was also stated that he has no living relatives in New Zealand. 21 Further reference was made to the Community Correction Officer's report dated 6 September 2001 and the following passage quoted: 'Prison report states that Berryman was a quiet prisoner who presented no management problems during his last term of imprisonment. He did not incur any charges or incident reports during the sentence.' At [55] the Issues Paper stated: 'Mr BERRYMAN has been resident in Australia since 1980. His claims of significant compassionate circumstances for remaining in Australia are centred on the fact that he has spent nearly all of his life in Australia, and that he has a long-standing relationship, a child and other family members as outlined above.' Reference was made to the 'Warning of Possible Future Liability' which had been issued to him on 4 January 2002. 22 The Issues Paper annexed the following documents: 'Annex A – Record of Mr BERRYMAN's Movements Annex B – Official Criminal History of Mr BERRYMAN Annex C – Submission from Mr BERRYMAN, dated 10.07.2002 Annex D – Notice of Intention to Cancel Visa under Subsection 501(2) of the Migration Act 1958 given to Mr BERRYMAN Annex E – Letter submitted by Ms Kylie Peters dated 22.07.2002 Annex F – Sentencing Statement 01.12.1998, Hammond CJDC Annex G – Community Correction Officer's Report, dated 06.09.2001 Annex H – Letter of support from Carolyn Peters received 22.07.02 Annex I – Immigration Report dated 19.07.2002' 23 The decision page attached to the Issues Paper as Part E contained the Minister's decision expressed as follows (after the deletion of certain paragraphs): 'PART E: DECISION 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 that Act and Mr Denver Maui Berryman's comments, and have decided that: ... (d) I reasonably suspect that Mr Denver Maui BERRYMAN does not pass the character test and Mr Denver Maui BERRYMAN 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. Signature Philip Ruddock Minister for Immigration and Multicultural and Indigenous Affairs Date: 1.11.02' 24 On 8 November 2002 Mr Berryman was sent a notice of the cancellation of his visa. Enclosed with the notice was a copy of the Issues Paper which was said, in the letter, to set out 'the reasons for the decision'. The Present Proceedings 25 On 6 December 2002, Mr Berryman filed an application for judicial review of the Minister's decision under s 39B(1A) of the Judiciary Act 1903 (Cth). Initial programming directions were made by Lee J on 17 December 2002. On 8 April 2003, when the matter came on for hearing Lee J released Mr Berryman on his own undertaking and certain conditions. The hearing of the application stood adjourned for further listing for a hearing. This was evidently because there was then pending in the High Court the case later reported as Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143which related to the scope of the aliens power in connection with non-citizens in Australia who had been absorbed into the community and were no longer able to be treated as immigrants. 26 On 13 November 2003, Mr Berryman was charged with three counts of aggravated burglary which were said to have taken place on that day and was committed to stand trial on those charges in the District Court of Western Australia. His parole was cancelled on 2 December 2003 and he was returned to custody for persistent failure to comply with his parole conditions. 27 On 18 May 2004, the solicitors for the Minister filed a notice of motion to discharge the order of Lee J, which had been made on 8 April 2003, releasing Mr Berryman from immigration detention. Having regard to the timing of the hearing and the judgment, however, it was not necessary to deal with the motion other than simply to dismiss it as unnecessary, which I will do in making final orders in this case. 28 The case stood adjourned until listed for hearing before me on 19 July 2004. As a result of the High Court decision in Shaw Mr Berryman could not claim to fall outside the category of 'alien' for the purposes of the 'aliens power' in s 51(xix) of the Constitution. The hearing proceeded on 19 July 2004 on grounds other than that relating to the aliens power and judgment was reserved until today. The Grounds of the Application 29 The application for review was amended at the hearing. Mr Berryman seeks certiorari and prohibition in respect of the Minister's decision and injunctions and declaratory relief. The first ground of the application asserts that Mr Berryman is not an 'alien' for the purposes of s 51(xix) of the Constitution. But this ground is no longer pressed in the light of Shaw. 30 The remaining grounds were encapsulated in written submissions filed on Mr Berryman's behalf thus: 1. The Minister did not take into account the best interests of Mr Berryman's child as a primary consideration and in doing so without notifying Mr Berryman failed to afford to him procedural fairness. 2. The Minister relied upon adverse material without giving Mr Berryman an opportunity to respond and therefore failed to accord him natural justice. Before considering these grounds, it is convenient to set out the relevant provisions of the Act and the basis upon which judicial review is available under the Act. Statutory Framework 31 Section 501 of the Act provides, in the relevant parts: '(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. ... (6) For the purposes 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); ... (7) For the purposes of the character test, a person has a substantial criminal record if: ... (c) the person has been sentenced to a term of imprisonment of 12 months or more...' 32 Cancellation decisions made under s 501 are privative clause decisions for the purposes of s 474(1) of the Act which provides: 'A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.' 33 The definition of 'privative clause decision' appears in s 474(2) thus: 'In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).' 34 Ministerial directions may be given under s 499 of the Act regulating the exercise of functions or powers under the Act including those under s 501. Section 499 provides, inter alia: '(1) The Minister may given written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. ... (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (2A) A person or body must comply with a direction under subsection (1). (3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given. (4) Subsection (1) does not limit subsection 496(1A).' The Jurisdiction of the Court and the Operation of the Privative Clause 35 The jurisdiction of the Court invoked in this case is that conferred by s 39B of the Judiciary Act 1903 (Cth) which provides: '(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.' The other provisions of s 39B do not apply for present purposes. 36 The application of s 474 and the grounds upon which decisions purporting to be made under the Act may be reviewable in the exercise of jurisdiction under s 39B were considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The Court decided that the words 'under this Act' in s 474(2) must be read as a reference to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act – at [76]. An administrative decision which involves jurisdictional error is to be regarded in law as no decision at all. Where there has been jurisdictional error the decision in question cannot properly be described, in the terms used in s 474(2) as a 'decision ... made under this Act' and is thus not a 'privative clause decision'. So decisions purportedly made under the Act may be amenable to the remedies available under s 39B for jurisdictional error including failure of procedural fairness. The Minister's Direction No 21 37 The Minister's Direction No 21 made under s 499 of the Act forms the basis of most of the Issues Paper. Part 1 of the Direction relates to the application of the character test referred to in s 501(6) of the Act. Part 2 sets out approaches to the exercise of the discretion conferred upon decision-makers by s 501 in determining whether or not to cancel a visa. As earlier noted, Direction No 21 does not differ materially from Direction No 17 in relation to the relevant elements of Pt 2. 38 Paragraph 2.1 of the Direction provides: 'If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.' 39 Paragraph 2.2 then sets out the weight to be given to various discretionary considerations. It is in the following terms: 'The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.' 40 The 'PRIMARY CONSIDERATIONS' are identified in par 2.3 as follows: '(a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) 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.' 41 Under the heading 'The best interests of the child' pars 2.13 to 2.16 provide: '2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17. 2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation. 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.' Procedural Fairness and Failure to Consider the Best Interests of the Applicant's Child 42 Failure to take into account the best interests of a visa holder's child as a primary consideration may, in cases such as the present, give rise to a failure of procedural fairness on two bases: 1. That the visa holder had a legitimate expectation, by virtue of Australia's ratification of the Convention on the Rights of the Child, that the Minister acting in accordance with Art 3.1 of the Convention would have regard to the best interests of the child as a primary consideration. 2. That the visa holder was told, in effect, that the matters set out in par 2.16 of the Minister's Direction No 21 were to be taken into account and therefore had a legitimate expectation that the best interests of his or her child would be considered as a primary consideration. 43 As I observed recently in Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 at [68] the first limb of the fairness argument collapses into the second. A failure without notice, to give effect to the requirement, in Direction No 21 to consider the best interests of the visa holder's child as a primary consideration, could amount to procedural unfairness resting on a firmer basis than the decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. That is so because the terms of the Direction are, as a matter of practice, brought to the attention of the visa holder. That is what happened in this case when Mr Berryman was invited to make submissions to the Minister. This means that the procedural fairness case in relation to the interests of Mr Berryman's child can be considered within the framework of the complaint about alleged failure to apply the Direction. Whether the Minister Failed to Give Consideration to the Best Interests of Mr Berryman's Child as a Primary Consideration 44 The Issues Paper and decision record did not constitute the Minister's reasons for decision. Nor did they disclose a single unambiguous line of reasoning from which it could safely be inferred that the Minister had made his decision – Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33. Nevertheless the Issues Paper was sent to Mr Berryman with a covering letter dated 8 November 2002 and described therein as 'a copy of the decision record that sets out the reasons for the decision ...'. It may be inferred, from these circumstances, that the Issues Paper sets out an approach to the cancellation decision which was followed by the Minister. That approach is the best and only evidence before the Court of whether and how the Minister had regard to the best interests of Mr Berryman's child. 45 Counsel for Mr Berryman submitted that the Issues Paper left open the question whether his removal from Australia would have a detrimental affect on his child. It did not go so far as to raise for consideration the issue of what was in the best interests of the child. It did not address the interests of the child. It did not discuss the issue of separation of the child from one or other parent. It was stated in the Issues Paper that if the child went to New Zealand with Mr Berryman there would be no language or cultural barrier and that educational and health standards were similar to those in Australia. The implication in the submission was that the detriment to the child arising from Mr Berryman's removal could be marginal or non-existent. The real issue, enforced separation of the child from Mr Berryman, it was said was not discussed. Counsel submitted that the issue of separation required consideration of the interests of the child because Kylie Peters is a long-term drug addict currently on a methadone program. This appeared from the remarks of Mr Berryman's counsel at sentencing but was not flagged for consideration in the Issues Paper. 46 The Court is concerned here with an alleged failure to consider the best interests of Mr Berryman's child as a primary consideration. It is concerned with that alleged failure as an aspect of want of procedural fairness. It is not open to the Court under that rubric to prescribe the way in which the Minister should have reasoned about the interests of the child. 47 In the present case the Minister had before him Direction No 21 which in par 2.15 states that in general terms the best interests of the child will be served if it remains with its parents. The 'Best Interests of the Children' was a specific heading in the Issues Paper which quoted Art 3.1 of the Convention on the Rights of the Child. The Paper drew to the Minister's attention evidence and submissions about Mr Berryman's relationship with his daughter. It also drew attention to the fact that Mr Berryman has all his family in Australia and none in New Zealand. It referred to the similarities in terms of language, culture and services between Australia and New Zealand. However inadequate these considerations might appear against a full investigation of the impact of Mr Berryman's removal from Australia on his child, it cannot be inferred that the Minister has failed to have regard to the matters which, according to his own Direction and the Issues Paper, he said he would have regard to. 48 I cannot infer from the material before me that the Minister failed to have regard to what he considered to be the best interests of the child, as advanced to him in submissions and materials put on behalf of Mr Berryman. Nor can I infer that he failed to weigh the child's interests in the balance against Mr Berryman's failure to pass the character test. 49 In my opinion no case of jurisdictional error is made out on the basis of a failure to consider the best interests of the child. Adverse Material 50 The second ground upon which review was sought related to allegedly adverse material put before the Minister in respect of which Mr Berryman had no opportunity to comment. The relevant material was the report of the Community Correction Officer attached to the Issues Paper as Annex G. Paragraph 47 of the Issues Paper said: 'In the Community Correction Officer's Report, Annex G, dated 06.09.2001 it is stated that Mr BERRYMAN has been in a "steady relationship" for the past five years. It also states that he currently lives with his parents, 11 year old sister and a 6 year old nephew.' This excerpt from the Community Correction Officer's report was said to suggest that Mr Berryman's claim that he and Kylie Peters lived in a de facto relationship was false, that their relationship had changed and that they were no longer a de facto couple committed to living together to look after their child. The report was not put to Mr Berryman and he was not given any opportunity to explain the temporary circumstances which gave rise to the information from the Community Correction Officer that he was living with his parents. In fact, it was said, there had been a temporary separation for a period of two months while the couple found suitable accommodation. The question raised by the Community Correction Officer's report was said to be an important factor in any consideration of the best interests of the child. 51 The statement complained of and quoted only in part in [47] of the Issues Paper appeared in Annex G which was attached. It opened with the following text: 'Berryman has been in a steady relationship for the past five years. He and his girlfriend have a four-year-old daughter together. He says this relationship is very supportive and he is very close to his daughter. Berryman currently lives with his parents, eleven-year-old sister and a six-year-old nephew. The relationship between Berryman and his parents is seen as being very supportive, a claim which has been confirmed by his mother.' No natural justice issue arises in relation to the contents of [47] of the Issues Paper in this case. What must be considered however is the text of the evidentiary document placed before the Minister namely the report from the Community Correction Officer. 52 In my opinion, the adverse inferences for which counsel for Mr Berryman contends, do not exist. The terms of the paragraph quoted directly from the Community Correction Officer's report are overwhelmingly favourable to Mr Berryman. In my opinion there was no practical unfairness arising from that matter which was in any sense likely to have affected the Minister's decision. Conclusion 53 For the preceding reasons the application will be dismissed with costs. I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 30 July 2004 Counsel for the Applicant: Mr HH Christie Solicitor for the Applicant: Christie Strbac Counsel for the Respondent: Ms LB Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 July 2004 Date of Judgment: 30 July 2004