Hopkins v Minister for Immigration and Citizenship

The Minister's statement of reasons 11 The statement of reasons was signed by the then Minister on 21 December 2006 ("the reasons"). The reasons stated that the applicant, having received a sentences of imprisonment of more than 12 months, was deemed to have a substantial criminal record pursuant to s 501(7)(c) of the Act and therefore did not pass the character test under s 501(6)(a) of the Act. It further stated that, in accordance with her usual practice, the Minister would proceed in accordance with the Direction and had given primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the child. 12 In relation to protection of the Australian community, the reasons recorded that the offences of assault police in execution of their duty and assault occasioning actual bodily harm were "very serious" offences. It noted the applicant's criminal records in New Zealand and Australia were extensive, as well as the fact that the applicant had gone on to commit a number of further offences after receiving the warning in 1997. The applicant's explanation for the offences, being that they "were crimes of my drug addiction due to relationship breakdowns, trauma and stress", was taken into account. 13 The reasons assessed the risk of recidivism as being "a likely high risk", based on the applicant's continuing reoffending since the warning in 1997. Other factors taken into account in assessing the risk of recidivism were the unfavourable pre-sentence and parole reports, internal offences committed whilst in prison, and the applicant's explanation for his repeat offending. 14 In relation to the expectations of the Australian community, it was noted that the Australian community expected non-citizens to obey laws and that given the seriousness of the applicant's criminal behaviour, it would expect his visa to be cancelled. That consideration was given "great weight". 15 In the reasons, the position of the applicant's three children is considered under the sub-heading "Best interests of the child", which appears under the heading "Primary considerations". The section read: Best interests of the child 22. I also gave primary consideration to the best interests of Mr HOPKINS' children Chantelle, now 12 years of age (born [date of birth]), Hope, 10 (born [date of birth]), and Dallas, 3 (born [date of birth]). 23. I assessed the circumstances of the children in relation to their father Mr HOPKINS and found that, based on Mr HOPKINS' submissions and the relevant reports of the Department of Community Services, the children are under the foster care of the Department of Community Services until they reach the age of 18. I noted on one report that the case officer for Chantelle and Hope had advised that the children (Chantelle and Hope) had not had any contact with their father Mr HOPKINS since at least 2 years and that Mr HOPKINS had not exercised his contact privileges. In the case of Dallas, the relevant reports states that the court order (placing Dallas under the sole parental responsibility of the Minister for Community Services) makes no mention of any contact arrangements or orders between Dallas and his father Mr HOPKINS. 24. I noted that copies of these welfare reports regarding custody and care arrangements for Mr HOPKINS' children have been given to Mr HOPKINS for his comments. I noted that he did not provide any specific comments about the court orders for the foster care of his children. However, I gave some weight to Mr HOPKINS' submission that he wants to maintain contact with his children and see them grow up in Australia. 25. I considered that, as Mr HOPKINS' children are currently under the sole parental responsibility of the Minister for Community Services, living in New Zealand would not be an option for the children if Mr HOPKINS' visa were cancelled and Mr HOPKINS were removed from Australia. The children would remain under the care of the Department of Community Services until they reach the age of 18. I am aware, however, that changes in Mr HOPKINS' circumstances in the future, such as evidence of rehabilitation, may warrant variations in the court orders. 26. I assessed that, notwithstanding the current circumstances of the children being under the foster care of the Minister for Community Services and this situation likely to continue to be in place until the children reach the age of 18, Mr HOPKINS' children may in the future want to re-establish and develop a close relationship with their father and would be denied this opportunity if Mr HOPKINS' visa were cancelled and Mr HOPKINS were removed from Australia. I gave substantial weight to this consideration. 16 Other considerations taken into account included the extent of disruption caused to the applicant and his claimed de facto partner and friends in Australia, the fact that the applicant had lived in Australia since 1993, and the ties the applicant had formed with the Australian community. 17 Overall, the Minister concluded that the overriding considerations were the nature and seriousness of the offences, the protection and expectations of the Australian community, and the applicant's risk of recidivism, and that they outweighed all the other considerations. The Minister decided to exercise the discretion to cancel the visa under s 501(2) of the Act.

The application 18 The original application filed in this Court on 21 February 2007 was directed at the issue of the best interests of the applicant's children not having been given sufficient weight. On 7 May 2007, an amended application was filed with the assistance of pro bono counsel. The one ground identified was: In purporting to cancel the applicant's Special Category Visa Subclass TY444 visa the respondent did not accord the applicant procedural fairness given his limited capacity to respond to the respondent's Notice of Intention to Consider Cancellation pursuant to section 501(2) of the Migration Act 1958. 19 Both parties filed submissions prior to the hearing, listed for 22 May 2007. On that date, the applicant was granted leave to file in Court a further amended application, under s 39B of the Judiciary Act 1903 and s 476A of the Migration Act. The further amended application identified an additional ground, namely: The respondent failed in its written decision of 21 December 2006 to identify what were the best interests of the applicant's three children in relation to the proposed cancellation of their father's visa and his deportation to New Zealand. 20 The matter was adjourned for hearing on 29 June 2007. The applicant had filed written submissions on the proposed additional ground prior to the hearing of 22 May 2007. The respondent filed supplementary written submissions on the new ground prior to the hearing of 29 June 2007. 21 When the hearing resumed, counsel for the applicant ultimately indicated that the first ground contained in the further amended application, being the procedural fairness ground, was not pressed. Accordingly, the only ground remaining concerns the alleged failure of the Minister to identify the best interests of the applicant's children.

Applicant's submissions 22 The applicant's written submissions in relation to the remaining ground were brief. They identified the alleged error as being that "[t]here was no proper, genuine and realistic consideration of what was in the interests of the children in terms of which decision by the Minister was in their interests". Reliance was placed on the Full Court's decisions in Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133. 23 At the hearing, counsel for the applicant explained the ground as having three elements. First, the Minister did not make a finding about what was in the best interests of the applicant's children, secondly, that the Minister did not make a finding about each of the three children as individuals which was contrary to the Direction, and thirdly, that there was insufficient information for the Minister to found any such findings, in any event. The applicant primarily relied on the comments of the Full Court in Wan, which held that the Administrative Appeals Tribunal ("the Tribunal") had failed to treat the best interests of the children as a primary consideration in the determination. The Full Court said at [26]: …Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. 24 It may be noted at this point that in the present case, submissions were not directed towards the issue of the way in which a failure to identify or consider the children's best interests would constitute jurisdictional error. In both of the cases referred to by the applicant, Vaitaiki and Wan, the jurisdictional error found by the Full Court was in the nature of a breach of the legitimate expectation arising from Australia's ratification of the United Nations Convention on the Rights of the Child recognised by the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. From this it may be inferred that the applicant's case was based on the procedural right recognised in Teoh, although for reasons which will emerge, it is unnecessary to consider the basis of the applicant's argument further. 25 The applicant's contention concerning the Direction was not fully developed. The argument in this respect appeared to be that the Minister was obliged to act in accordance with the Direction, by making a finding about each of the children's best interests, and had failed to do so.

Minister's submissions 26 Counsel for the Minister submitted that the Minister had considered the best interests of each of the applicant's children and that this was obvious from [24] to [26] of the reasons. Even accepting that the Minister did not expressly state that a decision to cancel the applicant's visa was not in the best interests of his children, that was the clear import of [26]. Reference was made to a number of decisions which make it clear that the Court was entitled to infer from reasons that the matter had been addressed even if the conclusion was not expressly stated: see Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 at [77] per Branson J (with whom Goldberg J at [84] and Allsop J at [88] relevantly agreed); Van Son v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 875 at [36]; Chong Mun Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1460 at [47]; Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1054 at [47]-[51], an appeal from which was dismissed by the Full Court in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31. Counsel for the Minister submitted that Wan, the main authority relied upon by the applicant, was clearly distinguishable on the facts. The Tribunal in Wan had not described the best interests of the child as a primary consideration: see Minister for Immigration and Multicultural and Indigenous Affars [2005] FCAFC 13 at [68]. The Tribunal in Wan had demonstrably failed to consider the interests of the children as a primary consideration and in subsequent cases, the Court had been prepared to accept that the issue had been considered notwithstanding limited express consideration of the issue: see for example Van Son and Chong Mun Chai. They had also been unable to find any decision considering or following Wan in which it had been said that findings as to which decision will best serve the interests of the child can never be inferred. 27 Counsel for the Minister also submitted that the Minister was under no duty to make inquiries about the interests of the children: see Boyes v Minister for Immigration and Citizenship [2007] FCA 505 at [54]. In the present case, the applicant had provided limited material about his children and it was open to the Minister to consider their circumstances having regard to the material which had been provided together with such other materials as the Department may have obtained.

Consideration 28 In the circumstances of this case, I am satisfied that the Minister did identify which decision was in the best interests of the children and treated the children's interests as a primary consideration. Paragraphs 24 to 26 of the reasons make it clear that the Minister appreciated the current arrangements concerning the children and that there had been, for some time, no contact with the applicant. The Minister nonetheless said she gave "some weight" to the desire expressed by the applicant to have contact with the children and see them grow up in Australia. The Minister clearly appreciated that the removal of the applicant from Australia would have repercussions on the children's future contact with their father, since it was not an option for the children them to travel with him. The Minister acknowledged the possibility that the court orders regarding the children could change if the applicant's circumstances were to change, meaning it was possible that the children would not remain in the care of the Minister for Community Services until they reached 18 years of age. The Minister went on to say that she had given "substantial weight" to the possibility that the children might want to re-establish contact with their father at some stage. This last statement is of some importance. It clearly favours a decision not to cancel the applicant's visa, allowing him to remain in Australia and thus creating the opportunity for his children to have a relationship with him. There is no suggestion in the reasons that the Minister viewed any of the other matters known about the children as indicating that a decision to cancel the applicant's visa would be in their best interests, or that it negated the "substantial weight" to be given to the consideration which clearly pointed to a decision not to cancel the visa. The children's present custody arrangements and lack of contact with the applicant may have been taken into account in assessing the weight to be given to any such decision or may have simply been noted as context. 29 It should also be noted that the Minister considered these issues under the heading "Best interests of the child" and referred to the Direction, which identifies the need to give primary consideration to the best interests of any children and provides guidance on the issue. These factors lend weight to the view that the Minister did consider the children's best interests as a primary consideration. It is also clear that the Minister, having considered what was known of the circumstances of each of the three children, reached a decision that non-cancellation of the visa would be in the best interests of each of the three children. The Minister had also said, in [22] of the reasons, that she gave primary consideration to each of the children. 30 The identification of the best interests of the children has been described as the appropriate "starting point" for considering those interests as a primary consideration: see Wan at [26] and W157/00A at [77] per Branson J, with whom Goldberg and Allsop JJ agreed. In Wan, the Full Court was particularly critical of the Tribunal's failure to identify what the best interests of the children indicated that it should decide (at [26]). This arose in a context where the Tribunal had not identified the children's best interests as being a "primary consideration" and appeared to have approached the question of the children's best interests on the assumption that the applicant's visa would be cancelled. The Tribunal looked at how the children would be affected if their father was removed from Australia and the question of whether the children should relocate. The Full Court found that the Tribunal had erred by not identifying what the best interests of the children indicated that it should decide and, said that even if it was wrong in that conclusion, that it was "inescapable that the Tribunal did not treat the best interests of the children as 'a primary consideration'". In relation to the proper approach to be taken, the Full Court said (at [32]): …Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. 31 The applicant in the present case has sought to rely upon these comments in support of a principle that in making a decision under s 501(2) of the Act, a failure by the Minister to expressly identify the decision indicated by the best interests of the children amounts to jurisdictional error. 32 The Full Court's decision in Wan followed the earlier Full Court decision of Vaitaiki, in which the Court had also concluded that the Tribunal had failed to properly consider the best interests of the appellant's children. In that case, which concerned a deportation order made by the Minister, an earlier Tribunal decision had been set aside by consent following the High Court's decision in Teoh and the matter remitted to the Tribunal. The Tribunal member appeared to misapprehend the principle established in Teoh, stating that the holding of the second hearing in itself afforded the procedural fairness to the applicant contemplated in Teoh. Nonetheless the Tribunal had gone on to consider the children's interests. However, the Tribunal approached the children's interests in a very limited way, in effect by assuming that the appellant would be deported and then considering whether the children should relocate with their father. The Tribunal failed to address the question of what the children's interests required it to decide with respect to the proposed deportation: see Burchett J at 618 and Branson J at 631. 33 There are some interesting factual similarities between Vaitaiki and Wan which may in part explain the similar outcomes. In neither case had the Tribunal clearly identified the children's best interests as being a primary consideration. In both cases, the Tribunal had approached the issue of the children's interests from a narrow perspective, proceeding mainly on the assumption that the appellant would be removed or deported and then considering the children's interests in that context. Neither Tribunal decision showed any real consideration of the interests which the children might have had in their parent's visa not being cancelled or their parent not being deported. The outcomes in Vaitaiki and Wan turned to a large degree on the particular way the Tribunal had approached the consideration of the children's interests. It may also be more difficult for the Court to draw an inference that a finding as to what decision was in the children's best interests was made when there is an issue before the decision maker concerning possible relocation by the child or children with the parent.. The need to consider how the child or children would be affected by relocating with the parent adds a considerable complication to the question of what decision is in their best interests. That is not to say however that a Court may not be prepared to drawn an inference in other factual situations: see for example Taurino v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 119. Much will depend on the particular content of the decision maker's reasons, if any. 34 The cases since Wan show that a finding as to what decision would be in the child or children's best interests may in effect be inferred in a variety of circumstances. What emerges is that the paramount issue remains whether the decision maker has considered the best interests of the child or children as a primary consideration. Whether on a fair reading a finding has been made about what decision would be in the child or children's best interests will turn very much on the facts of the case. 35 In W157/00A, Branson J found that it was not open to the Court to positively conclude that the Minister did not take the respondent's children into account as a primary consideration in the decision to cancel his visa under s 501 of the Act. In that case, the respondent was advised of the decision in a letter which stated that a copy of the decision record was attached. The decision record was a departmental briefing paper, which, the Court concluded, could not on the facts be regarded as setting out the Minister's reasons for decision. However, the issues document set out various matters concerning the respondent's children and was before the Minister in making the decision. Branson J in that context said (at [77]): …[I]n this case, 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. 36 The approach indicated by Branson J has been applied or cited with approval by single judges in Van Son at [36] and Chong Mun Chai at [47]. The facts in Chong Mung Chai were similar to the present and, unlike in W157/00A and Van Son, the Minister had provided a statement of reasons. In Chong Mun Chai, the Minister's reasons said that the children would "suffer significant hardship" if the applicant's visa was cancelled, because the applicant's wife and children did not plan to accompany him to South Korea if he was removed. As in the present case, the Minister's reasons did not in terms state what decision was found to be in the children's best interests. In that case, Madgwick J did not accept the submission that a failure to expressly advert in the reasons to aspects of the family break up which would be contrary to the children's interests justified a conclusion that the Minister failed to consider the children's best interests as a primary consideration. Noting that the Minister had said in the reasons that she had given primary consideration to the best interests of the children, and despite the "restrained language" of the reasons in discussing the children's interests, his Honour at [47] applied the approach of Branson J in W157/00A. It should also be applied in the present case. 37 I should add, however, that notwithstanding the above, it is desirable in my opinion that a decision maker expressly state his or her conclusion as to what decision is in the best interests of the child or children with absolute clarity. A decision maker in that position would then have to squarely confront that conclusion in the remainder of the decision-making process and particularly if the ultimate conclusion was to cancel a visa. 38 I am also satisfied that any duty which the Minister may have been under to make inquiries, such as upon receiving the applicant's initial letter (which appears to be how the Minister first became aware of applicant's children), was satisfied. It is unnecessary to decide whether in fact any such duty arose. It may be noted however that Boyes, being the case relied on by the Minister in this respect, did not establish that there never could be such a duty. In that case, Kenny J found that no such duty arose on the facts of the case. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [82] to [83], a case referred to by Kenny J in Boyes, the Court appeared to accept that certain factual situations can give rise to a duty to make further inquiries in relation to decisions by the Minister under s 501(2) of the Act, citing with approval the comments of McHugh J in Teoh (at 321) regarding the categories of circumstances which may give rise to such a duty. However, in the present case there is no basis for the contention that any such duty the Minister may have been under was not fulfilled. The applicant did not identify any particular inquiries which the Department or Minister had failed to make and which he said should have been made. The Department in fact took a number of steps to inform itself of the circumstances concerning the children, including by requesting the applicant's welfare officer to discuss matters affecting the children with the applicant and provide the Department with further information. The Department also liaised directly with DOCS and provided relevant documents to the applicant for comment. 39 The other contention raised by the applicant, being that the information about the children before the Minister was not sufficient to make a finding about their best interests, is also difficult to understand. The information before the Minister included not only the information provided by the applicant but also the information obtained from the welfare officer and from DOCS. It is not clear how this information was said to be lacking. The fact that the information which the applicant had provided to the Department made limited reference to the children, particularly in relation to their custody arrangements, was through no fault of the Minister. The Minister was entitled to proceed to make a decision on what information she had. 40 In relation to the contention that the Minister acted contrary to the Direction, the following should be noted. The Minister is not bound by directions issued under s 499 of the Act, such as the Direction in this case, in respect of decisions under s 501 of the Act made personally by the Minister: see for example Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [32] per Lander J, with whom Carr and Sunderg JJ agreed; Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127 at [16] per Black CJ, Emmett and Selway JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [10] per Moore, Branson and Emmett JJ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at [31] per Ryan, Lander and Crennan JJ. It was not clear whether the applicant was contending that the particular facts of this case gave rise to any legitimate expectation regarding the Direction or the matters discussed in it. In any event, I do not think such a contention could be made out. As noted at [6] the notice expressly stated that if the decision was made by the Minister personally, the Minister "may" decide to have regard to the matters in the Direction but "is not required to give consideration to those matters". 41 The application for review should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Dated: 2 August 2007 Counsel for the Applicant: Mr D Burwood (pro bono), Mr Lawrence (29 June 2007 only)

Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 May 2007, 29 June 2007 Last Date of Submissions 3 July 2007 Date of Judgment: 2 August 2007