Long v Minister for Immigration & Multicultural & Indigenous Affairs

introduction 1 This is an appeal from a decision of a judge of the Court, made on 19 November 2002, to dismiss the appellant's application for an order of review of the respondent's decision, made under s 501(2) of the Migration Act 1958 (Cth) ("the Act") on 24 January 2002, to cancel his BF Transitional (Permanent) visa and the respondent's consequential decision to detain the appellant for the purpose of removing him from Australia. 2 The respondent exercised his discretion to cancel that visa on the grounds that he reasonably suspected that the appellant did not pass "the character test" and the appellant had not satisfied him that he passed that test. The appellant accepts that he is deemed, under s 501(6), not to be of good character. 3 On the present state of the authorities, there are only two potentially relevant constitutional sources for the power legislatively conferred on the respondent by the Act to cancel the appellant's visa and consequently to detain and then remove him from Australia as an unlawful non-citizen, namely s 51(xix) "naturalization and aliens" and s 51(xxvii) "immigration and emigration" of the Constitution. It is common ground that, by virtue of his absorption into the Australian community, the appellant was not an immigrant at the time when the respondent decided to cancel his visa. Accordingly, the power conferred by s 501(2) and the power to detain and remove him from Australia could not be derived from s 51(xxvii) of the Constitution. The appellant contends that s 501(2) and the provisions of the Act requiring his detention and removal from Australia likewise do not validly apply to him as he was not an alien at the time of the respondent's decision. [There have been no submissions in this matter about the relevance or otherwise of the external affairs power, s 51(xxix).] 4 In the alternative, the appellant contends, first, that the respondent, in exercising his discretion under s 501(2) did not take into account the best interests of his children, being a failure to take into account a relevant consideration, which constituted jurisdictional error. Secondly, he contends that the respondent failed to accord him natural justice by not taking into account the best interests of his children as a primary consideration without giving him notice of his intention not to do so.

factual background 5 The appellant is a British subject who was born in the United Kingdom on 11 October 1963. On 24 March 1975 he came to Australia with his parents and three sisters and was granted the visa referred to above. In December 1975, when the appellant was aged twelve, his family returned to the United Kingdom and remained there until 21 March 1977 when they all travelled back to Australia. The family again returned to England in June 1979, save for one of the appellant's sisters who had married and remained in Western Australia. 6 After completing school in England, the appellant, who wanted to return to Australia, persuaded his parents to let him come back and live with his sister. He arrived back in Australia on 24 March 1981 (at the age of 17) and has resided in this country ever since. Six months later, his parents again decided to live in Australia and returned here with his two remaining sisters. The family, and the appellant's wife, whom he married in Australia on 1 May 1983, and four children (now aged between 3 and 20), all live in Australia. The appellant and his wife visited the United Kingdom on a holiday for about two months between 9 December 1986 and 10 February 1987. He has not left Australia since then. The appellant has been enrolled on both State and Federal electoral rolls since he turned eighteen and has voted in Federal and State elections, save for the times that he has served in prison. 7 The appellant's long record for crimes committed in Australia between 18 October 1977 and 7 July 2000 is set out in the reasons of the learned primary judge. The record culminated in five convictions for stealing on the latter date which resulted in the appellant being sentenced to five years imprisonment, of which two years were to be served concurrently. The appellant had previously been sentenced to various terms of imprisonment (seven of which exceeded twelve months), including a term of two years in November 1987 for possessing heroin with intent to supply. 8 Section 501(2) of the Act provides that: "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." 9 The character test is defined in s 501(6) of the Act which relevantly provides that a person does not pass the character test if the person has a substantial criminal record as defined by s 501(7). 10 Section 501(7)(c) is the relevant provision for present purposes. It provides that for the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more. 11 Section 501G relevantly provides that if a decision is made under s 501(2) to cancel a visa that has been granted to a person, the Minister must give that person a written notice that: "(c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision;" 12 On 1 August 2001 and 3 September 2001 the appellant was given notice that the respondent intended to consider cancelling his visa. He was invited to provide written comments and information to the respondent's department. He did so. 13 On 22 January 2002, an officer of the respondent's department prepared a minute entitled "CONSIDERATION OF LIABILITY FOR CANCELLATION of Brian Edward Long's VISA UNDER s 501(2) OF THE MIGRATION ACT 1958". The record of the respondent's decision appears on p 16 of the minute. On that page the respondent was offered a number of alternative decisions. The record of the decision made, disregarding deleted options, read as follows: "PART E: DECISION [59] 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 Brian Edward LONG's comments, and have decided that: . . . (d) I reasonably suspect that Mr Brian Edward LONG does not pass the character test and Mr Brian Edward LONG 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. Phillip Ruddock Minister for Immigration, Multicultural and Indigenous Affairs Date: 24.1.02" 14 On 22 February 2002 the applicant filed an application for an order of review of the respondent's decision. By an amended application, the appellant sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth) on both the constitutional ground and the traditional judicial review grounds referred to above. The Attorney-General for the Commonwealth (represented by the Solicitor-General) intervened at first instance and the Solicitor-General appeared as senior counsel for the respondent on the appeal, to contend that s 501 of the Act validly applied to the appellant because (in summary) he was not living in Australia in 1973 upon the enactment of the Royal Style and Titles Act 1973 (Cth), had never owed allegiance, in the relevant sense, to the Queen of Australia and was therefore an alien.

the decision at first instance 15 The learned primary judge noted that none of the traditional judicial review grounds relied upon by the appellant fell within any of the exceptions to the application of s 474 of the Act. The appellant, who was represented by counsel, accepted that, having regard to the decision of a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, the Court could not determine those grounds in the appellant's favour. 16 His Honour then proceeded to consider the appellant's constitutional argument. 17 After reviewing the constitutional and statutory context, his Honour turned to the authorities and in particular the High Court's decision in Re Patterson; Ex parte Taylor [2001] HCA 51. The circumstances of the prosecutor in that case were relevantly very similar to those of the appellant in this matter, save that Mr Taylor arrived in Australia in 1966 i.e. before the passing of the Royal Style and Titles Act. In Re Patterson, the High Court, by a majority of four justices comprising McHugh, Gaudron, Kirby and Callinan JJ upheld Mr Taylor's contention that he was not an alien. In doing so, the majority overruled Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178. 18 The primary judge noted that within the majority judgments in Re Patterson there were at least two views supporting the conclusion that Mr Taylor was not an alien when his visa was cancelled. His Honour then said this: "The first view, associated with the judgments of Gaudron, Kirby and Callinan JJ, is that British subjects who were absorbed into the Australian community prior to May 1987 could not be treated as aliens for the purposes of s 51(xix). The second view expressed by McHugh J was that until the commencement of the Royal Style and Titles Act 1973 "and maybe later" British subjects owed their allegiance to the Queen of the United Kingdom. Those British subjects born in the United Kingdom who were living in Australia at the commencement of the Royal Style and Titles Act 1973 became subjects of the Queen of Australia as well as subjects of the Queen of the United Kingdom. Accordingly, they were not and did not subsequently become aliens within the meaning of s 51(xix) of the Constitution. The latter reasoning does not expressly address the position of a British subject who arrived in Australia after the commencement of the Royal Style and Titles Act. Indeed, in par [121] his Honour stated that a British subject living in Australia was not an alien within the meaning of the Constitution "at least until the passing of the Royal Style and Titles Act 1973 (Cth)". This and the "maybe later" reference appears to leave open the question whether a British subject who came to Australia after 1973, as did Long in this case, and subsequently became absorbed into the community, is to be treated as an alien. It suggests however at least a provisional view that 1973 represented a cut off point. Absent a clear common ratio on the part of the majority in Re Patterson on the question of the aliens power, the extent to which, and the principles for which, it can be regarded as binding authority is debatable." 19 His Honour then considered a subsequent judgment of the High Court given on 7 November 2002, Re Minister for Immigration and Multicultural Affairs; Ex parte Te and Dang [2002] HCA 48, a case which involved persons who were not British subjects. As his Honour observed: "It is clear from the judgments in that case that there remain significant differences among the Justices of the High Court concerning the propositions for which Patterson is authority." 20 His Honour then reasoned as follows: "In my opinion, there is no binding principle in Re Patterson which assists me to a decision in this case. I consider that I should not apply to this case the proposition that British subjects living in Australia were not to be regarded as aliens until after 1987. In my opinion the appropriate position to take is the minimum position adverted to by McHugh J (although not definitively). On that position the division of allegiances between the Queen of the United Kingdom and the Queen of Australia became clear and the status of British subjects who were not Australian citizens also became clear as aliens for the purpose of the Constitution in 1973 upon the enactment of the Royal Style and Titles Act 1973. This approach is the most conservative approach to the decision in Re Patterson which, having regard to its divergent reasoning, should be seen as disturbing pre-existing law to the least extent necessary consistent with the outcome. That position is reached by following the reasoning of McHugh J and treating it as definitive. I have no doubt that the matter will receive further clarifying attention by the High Court in cases now pending before it. I would add the observation that the more recent the date upon which it was possible for a person who was not an Australian citizen to be other than an "alien" for constitutional purposes, the more recent the date upon which it would have to be said that Australia had not achieved independent nationhood in all its aspects."

the appeal 21 There were three issues in the appeal. The first, the "alien" point, was whether the respondent had the constitutional power to cancel the appellant's visa and to detain him for the purpose of removal from Australia. The second was that, if the respondent had that constitutional power, whether his decision to take those steps had been made within jurisdiction. The appellant contended that: · the respondent had fallen into jurisdictional error by failing to take into account a relevant consideration, namely the best interests of the appellant's children; and · the respondent had not taken into account the best interests of his children as a primary consideration and by not notifying the appellant of his intention not to take that matter into account, had denied him natural justice. 22 The third issue was whether we should grant an interlocutory injunction, pending determination of the appeal, to restrain the respondent from continuing to detain the appellant.

my reasoning 23 At the conclusion of the hearing of the appeal, we granted an injunction restraining the respondent from continuing to detain the appellant in immigration detention, pending determination of the appeal or further order, with our reasons for taking that course to be published later. We reserved judgment on the other matters raised in the appeal. 24 The cases pending before the High Court of Australia referred to in the extract from the primary judge's reasons reproduced at paragraph 20 above included Shaw v Minister for Immigration and Multicultural Affairs, a case which would appear to be indistinguishable on the facts from those in the present appeal. The High Court heard the appeal in Shaw on 17 June 2003 and reserved judgment. In the light of that development we gave consideration to reserving our judgment in this appeal until the High Court delivered judgment in Shaw. We caused notice to be given to the parties about this proposal, giving any party to the appeal who opposed that course the opportunity of a further hearing of argument in relation to that proposal. 25 Initially, by their silence, the parties indicated their agreement to the course proposed. 26 However, the parties later communicated to the Court a common preference that if the appeal could be determined on the jurisdictional issues, or, to put it another way, could be decided without reference to the Constitutional issue, they would prefer judgment to be delivered but otherwise they were content to await judgment until after the High Court delivered judgment in Shaw. That mutual position became clear about three weeks ago. 27 We are in a position to give judgment in relation to the administrative law point. We propose to do so and to reserve the balance of the appeal until the High Court has delivered judgment in Shaw. I now turn to consider whether the respondent fell into jurisdictional error. As mentioned above, on the then present state of authorities, this was not a course open to the primary judge.

The Appellant's Contentions 28 Mr H R Christie, counsel for the appellant, submitted that the briefing minute provided to the respondent constituted his reasons for making the decision to cancel the appellant's visa. It had been referred to as such in a letter sent by the respondent's Department to the appellant advising him of the decision which had been made. Mr Christie contended that, so far as the appellant's children were concerned, the briefing minute showed that all the respondent did was to determine that cancellation of the appellant's visa and his removal would not have a detrimental effect on the children. That was, so it was put, the wrong test. The Minister was required to ascertain what the best interests of the children were (in the context of the possible removal of the appellant from Australia) before determining whether or not those best interests were outweighed by other considerations to which the respondent was obliged to have regard and which favoured removal from Australia. The respondent had not given any notice to the appellant of an intention not to ascertain what were the best interests of the children and had thus breached the requirements of procedural fairness: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133 at [26]. The relevant passages in the briefing minute were all expressed in negative terms, in the sense of matters that would not be harmful to the appellant's children, but there was a failure to address what would be in their best interests.

The Respondent's Contentions 29 The respondent submitted that the briefing minute was not a notice under s 501G(1)(e) of the Act setting out his reasons for his decision to cancel the appellant's visa. The respondent's failure to provide a written notice setting out his reasons for decision meant, so it was submitted, that it could not be known whether the respondent did or did not take in account the best interests of the appellant's children as a primary consideration, and it was not open to the Court positively to conclude that he did not do so. He relied on a decision of a Full Court of this Court, Minister for Immigration and Multicultural Affairs v W157/00A [2000] FCAFC 281 which involved what was said to be a similar briefing paper and record of the Minister's decision. In particular the respondent relied on the following passage of the reasons for judgment of Branson J (with whom Goldberg and Allsop JJ agreed) at [78] where her Honour concluded that: 'Having regard to the nature and content of the material which was apparently before the Minister at the time he made his decision, I do not consider that it can be concluded either that he failed to read and consider that material or that the material was insufficient to enable him to take into account the best interests of the respondent's children as a primary consideration.' 30 The respondent accepted that if the Court found that he had failed to take into account the best interests of the appellant's children as a primary consideration, then his decision involved a breach of procedural fairness as explained by the High Court in Teoh. 31 He also conceded (consistently with the above submissions) that he had not provided the appellant with a notice setting out the reasons for his decision as required by s 501G(1)(e) of the Act. But, so it was contended, that failure did not constitute jurisdictional error in relation to the decision. The requirement to give such a notice was not a procedure required by the Act to be observed in connection with the making of the decision, but rather was a procedure required to be observed in connection with the decision once made: W157/00A at [62], [84] and [88].

my reasoning 32 The question whether a particular document constitutes or evidences the reasons why a decision-maker made a particular decision is one of fact - see, for example, Branson J in W157/00A at [49] and Allsop J in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7 at [56]. Technically, her Honour was considering whether the document in W157/00A was a written notice which complied with s 501G(1)(e). Here the question is perhaps somewhat broader i.e. does the briefing minute disclose the respondent's reasons for decision? 33 Branson J referred to an ex-tempore decision of Hayne J in Re Ruddock, Minister for Immigration and Multicultural Affairs; Ex parte Truong, 22 March 2001, unreported (HC). 34 In Truong his Honour said this (in a passage quoted by Branson J in W157/00A)at [48]: 'In my opinion, it is not arguable that this document alone [a document in similar form to the briefing minute in this matter] or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information - and I interpolate - only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached.' 35 Her Honour acknowledged that the circumstances surrounding the provision of a written notice, including the provision of one or more additional documents, may throw light on the question to be answered (in that case whether there was a notice which complied with s 501G(1)(e)). But her Honour regarded a finding of fact made in another case, taken with respect to a different document, provided to an individual in different circumstances, as providing only "limited guidance in a subsequent case". With respect, I agree whole-heartedly with that caveat. 36 Nonetheless there was a relevant factual distinction between the circumstances in Truong and those in W157/00A, as her Honour acknowledged at par [50]. 37 In W157/00A, the relevant part of the letter informing the respondent of the Minister's decision read as follows: 'A copy of the decision record concerning the refusal of your visa application is attached for your information [7].' 38 It would seem from the above passage in Hayne J's reasons quoted above that the covering letter in Truong was in significantly different terms. It appears to have been in similar, if not identical, terms to those in the present case. 39 The relevant portion of the covering letter in this matter read as follows: 'I enclose with this Notice: · A copy of the decision record that sets out the reasons for the decision.' [emphasis added] 40 Goldberg J at par [85] in W157/00A expressly noted that the decision record had not been identified as a document which set out the reasons for the Minister's decision. All three judges in W157/00A agreed that the briefing paper in that case was not the giving of reasons because it did not explain why the Minister had reached the decision he had. It did not express why the Minister thought one of the alternatives, over the others, should be adopted. 41 That conclusion was based on an examination of the briefing paper, the documents which accompanied that briefing paper and the fact that the covering letter forwarding to the respondent details of the appellant's decision did not refer to the briefing paper as setting out the reasons for the decision, but simply described it as "the decision record". A similar approach was adopted by Allsop J in Ayan. It is not possible to discern from the reasons of Emmett J at first instance in Ayan [Ayan v Minister for Immigration and Multicultural Affairs [2002] FCA 470] or from the reasons of the members of the Full Court on appeal whether the relevant letter forwarding the briefing paper to Mr Ayan described that document as setting out the Minister's reasons for cancellation of his visa. At first instance and, initially, on appeal his counsel argued the case on the basis that the briefing paper purported to set out the Minister's reasons - see Allsop J's reasons at [30] to [42]. 42 There were at least four first instance decisions in this Court, preceding the Full Court's decision in W157/00A, which treated the Ministerial briefing paper as setting out the Minister's reasons in the same manner as Hayne J did Truong. Those cases were Adams v Minister for Immigration and Multicultural Affairs [2001] FCA 552 (Heerey J); Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; (2001) 184 ALR 401 (Cooper J); Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 (Stone J) and Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130 (Goldberg J). It seems to me that the difference between the conclusion in W157/00A and in those cases probably reflects different factual circumstances and in particular the contents of the relevant briefing paper and accompanying documents, including any covering letter. 43 For example in par 54 of Branson J's reasoning in W157/00A, her Honour referred to the circumstance that the document there in question (if it were found to be a statement of reasons) would equally have set out the Minister's reasons for deciding to cancel the visa or alternatively not to cancel the visa. Her Honour added (in the same paragraph): "In my view, the idea that the one document can be characterised as a notice that sets out the reasons for diametrically opposed decisions depending on whether the expression "agreed" or "not agreed" at the conclusion of the document is crossed out runs contrary to logic. In truth, as in the Canadian case of Suresh [a reference to Suresh v Canada (Minister of Citizenship and Immigration)2002 SCC 1 File No 27790], the document here sought to be characterised as a notice which sets out the Minister's reasons for decision is a document provided to the Minister to assist him in reaching his decision. It does not tell the respondent why his visa was cancelled; at best it sets out facts and other material relevant to the exercise of the Minister's discretion to cancel or not to cancel the respondent's visa. To utilise the logical distinction referred to in [37] above, [a reference to the distinction between the reasons for a decision, the decision itself and the factual findings upon which the decision is based] it may set out the findings of fact which gave rise to the decision but it does not set out the reasons for the decision." 44 I have examined the document which was enclosed in the covering letter sent by the respondent's department to the appellant advising him of the Minister's decision to cancel his visa. It was common ground that that document was the briefing minute. I have also examined the documents which accompanied the briefing minute when it was placed before the respondent. They included Direction No 21 made by the respondent under s 499 of the Act on 23 August 2001 ("Ministerial Direction No 21"). I have also had regard to the covering letter to the appellant. 45 In my view, the statement by the departmental officer in that letter that the enclosure "sets out the reasons for the decision" does not, on its own, convert the briefing paper either into a statement of reasons which constitutes notice within the meaning of s 501G(1)(e) or, simply, the giving of reasons. But I regard it as a relevant piece of evidence to be weighed first in the context of there being no contradictory evidence from the respondent and secondly (and in my view more importantly) in conjunction with an assessment of the briefing minute itself. 46 In my opinion, the briefing minute in this case is very different to the briefing paper described in W157/00A. The briefing paper, although carefully worded in terms of "it is open for you to find …" and the like, points the Minister quite firmly in the one direction i.e. towards cancellation of the visa. For example, on the question whether Mr Long passed the character test, the author of the briefing minute wrote this: 'It is open for you to find on the above facts that there is a reasonable suspicion that Mr LONG does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more.' 47 The criminal record referred to in the briefing minute showed quite clearly that by virtue of the fact that several sentences exceeding 12 months had been imposed on the appellant he had absolutely no chance of passing the character test. The application of s 501(6), when read with the relevant portion of s 501(7) referred to above, deemed him to have failed to pass the character test. The only real question was the exercise of the Minister's discretion not to cancel the visa despite such failure. 48 The briefing minute then took the Minister through the various factors referred to in Ministerial Direction No 21 and made comments such as the following: "[12] Mr LONG's offence is listed as a very serious offence under the Direction. [18] On the basis of Mr LONG's criminal history it is open to you to find that his conduct against the community is serious. [25] … In 2000 Mr LONG was convicted of stealing a motor vehicle and stealing. In consideration of the above factors, it is open for you to find that Mr LONG is at a high risk of recidivism. [27] … It is open for you to find that cancellation of Mr LONG's visa would serve as a deterrence factor against others committing similar offences. The government has a strong interest in deterring others from committing offences of this nature. [29] The offences committed by Mr LONG 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 offence are such that the Australian community may expect that Mr LONG should be removed from Australia." 49 In view of the importance of that portion of the briefing paper which purports to deal with the best interests of the appellant's children, I set it out here in full. "The Best Interests of the Children [30] 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 a primary consideration." [31] Mr LONG has 4 children, 3 are under 18 years of age. Mr LONG stated in his submission that these children would be affected by a decision under s.501(2). [32] 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: [33] Letters of support for Mr LONG from his 11 and 13 year old children are at Annex K and address their relationship with their father. Due to imprisonment, Mr LONG has been separated from his youngest child since she was 3 months old. Prior to his most recent offence Mr LONG was working in a business with his 18 year old son. Mr LONG stated in his submission, Annex C: "…my children are my life…they will be able to be raised better (with more family support) than they could be if we all had to return to England." In a letter of support, Annex L, from Mr LONG's wife, she states: "…my children they love this life, and deeply love their father and couldn't live without him…a loving and caring father to his children…a 16 month old daughter whom Brian needs to spend some quality time with…" [34] Mr LONG's terms of imprisonment have been the principal reasons for separation from his children. Whilst Mr LONG was in prison in 1987 the children were cared for by his mother and one of his sisters. Whilst Mr LONG was in prison in the mid 90s his mother once again cared for the children. In 1992 Mr LONG was the sole carer for his children when his wife was sentenced to a term of imprisonment. Mr LONG's wife is currently the sole carer for the children while he is in prison. [35] Mr LONG's 3 children are aged 18 months, 11 and 13 years. [36] Mr LONG's children are all Australian citizens. [37] In regard to the likely effect that any separation from him would have had on his children, Mr LONG indicated 3 of his children would accompany him if his visa was cancelled. He stated in his submission, Annex C: "I would have to upheave my children's lives to go and live in a country that is foreign to them and does not give them much of a future." "My children would lose direct contact with their grandparents…a very close part of their everyday lives." "…My children are not only mine and my wife's lives but also the lives of my parents. They are very close to their grandparents and are the pride and joy of my parent's lives…" "…my eldest son…would remain here in Australia. This would be detrimental to his younger siblings as they would grow not to know their eldest brother." [38] Mr LONG did not address the impact of his prior conduct on the children in his submission, Annex C. [39] Mr LONG's children have spent their entire lives in Australia. [40] Should Mr LONG's visa be cancelled and he is removed to Great Britain and should his children accompany him, the educational facilities and standard of the health support system in Great Britain for the children is of a similar standard to that in Australia. Mr LONG stated in his submission, Annex C: "I would have to basically start my family's lives over…re-set up… education…already established here…detrimental to my family stability." [41] Should Mr LONG's visa be cancelled and he is removed to Great Britain and should his children accompany him, they would not need to learn a new language. [42] Should Mr LONG's visa be cancelled and he is removed to Great Britain and should his children accompany him, his children would not need to adapt to a new culture. [43] It is open to you to find from the information given that the cancellation of Mr LONG's visa and his removal from Australia would not have a detrimental effect on his children. A copy of the submission from Mr LONG is at Annex C." 50 Paragraphs [32] to [42] can be seen to reflect, in precise sequence, the ten factors listed in paragraph 2.16 of Ministerial Direction No 21, which I set out below: "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." 51 In Javillonar, at [26] Stone J made the following observations which, in my view, are completely apposite to the facts of the present matter: "In this case, the Department's brief to the Minister contained the applicant's personal and visa details, information relevant to the character test (see [7] above), an assessment of the applicant's character and an outline of matters relevant to the Minister's discretion. The Minister's decision is consistent with the analysis and recommendations made in the Departmental brief. Given that the Minister is obliged by s 501G(1)(e) to provide reasons for his decision, the completion of Part E [where, as in the present matter, the Minister indicated his decision] without comment leads to the conclusion that the Minister adopted the brief as a statement of his reasons …". 52 In my view, the evidence to which I have referred above establishes that the briefing minute sets out the reasons for the Minister's decision to cancel the appellant's visa. 53 If I am wrong in making that inference I consider that the briefing paper provides sufficient evidence from which it should be inferred that, on the balance of probabilities, the respondent did not get to the first step of the process of balancing the best interests of the appellant's children against other relevant considerations. In Wan at [26] this was described as "the starting point". 54 A central basis of the appellant's written submissions to the Minister was that his three younger children would travel with him if he were deported to England and that this would be detrimental to them for various reasons stated in his letter. The appellant in fact used the word "detrimental" in that letter. This may well have led the author of the briefing minute to state at [43]: "It is open to you to find from the information given that the cancellation of Mr LONG's visa and his removal from Australia would not have a detrimental effect on his children." 55 In my view, in turn, it is open for us to infer and I so infer, that the respondent found that the cancellation of the appellant's visa and his removal from Australia would not have a detrimental effect on his children and that he stopped at that stage. That is, in the absence of any contrary evidence, I infer that he did not reach the stage of considering what were the best interests of those children. 56 I draw that inference more confidently in the light of the absence of any evidence from the respondent to the contrary. In written submissions the respondent undertook, if the Court concluded that the briefing minute did not constitute notice of his reasons for decision for the purposes of s 501G(1)(e) of the Act, to provide such a statement of reasons. In my view, the Minister has had ample opportunity to put before the Court evidence that he did assess the best interest of the appellant's children before he found that those interests were outweighed by other circumstances. No explanation has been given for the failure to tender such evidence. 57 Counsel for the respondent accepted that if we were to conclude that the Minister had treated as the relevant consideration, the asserted fact that cancellation of the visa would not have a detrimental effect on the appellant's children instead of treating their best interests as a primary consideration, that would have been a departure from the standard laid down in Teoh. He also conceded that that would have amounted to jurisdictional error. He was correct to do so because it was common ground that the respondent had not given notice of the type required by the Teoh principle. In those circumstances, I consider that the appeal should be allowed.

the grant of interlocutory relief 58 As I have mentioned above, at the conclusion of the hearing of this appeal we granted an injunction restraining the respondent from continuing to detain the appellant in immigration detention, pending determination of the appeal or further order. The injunction was granted upon the appellant's written undertaking, confirmed orally by him to the Court, to abide by certain conditions including the deposit by his parents of a bond in the sum of $5,000 to be forfeited in the event of any breach of those conditions continuing for more than two days after notice of breach had been given. We stated that the reasons for granting the injunction would be published in due course. The following are my brief reasons for joining in the grant of that injunction. 59 First, the respondent conceded that this Court had power to grant such an interlocutory injunction - see the decision of a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 at [104]-[115], [159]-[162]. 60 I formed the view that the appeal raised serious questions to be tried both in relation to the constitutional issue and the jurisdictional points. My assessment was that the appellant had a strong basis for his appeal in respect of both issues. 61 Further, in my view, the balance of convenience (i.e. the risk of doing an injustice) clearly favoured the grant of interlocutory relief. The appellant had already been in detention for over a year. It was likely that some substantial period of time, measured in weeks or possibly a few months, would elapse before judgment could be given in the appeal. He had not sought to abscond during the period after he was given notice of the respondent's intention to cancel his visa. The terms and conditions as to his future residence and reporting to an officer of the respondent's department (together with the bond) would all, in my view, tend to reduce very substantially any likelihood of the appellant absconding before we gave our judgment. Another important factor which I took into account was the fact that the appellant and his wife had each recently been fitted with a naltrexone implant relieving the craving for heroin. 62 The respondent relied upon the decision of a Full Court of this Court in NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401 as the basis upon which we should refuse to issue such an interlocutory injunction. 63 In NAMU, the appellants challenged the constitutional validity of s 196 of the Act. They sought release from detention pending the determination of their appeal. The Full Court recognised that where interlocutory relief was sought pending a challenge to the constitutional validity of a statute, the Court had a duty to approach the question on the basis that the provision being challenged was valid unless it was shown to be invalid. In particular, as the statute in that case had been upheld by the decision of a judge of the Court after a full hearing, the Full Court declined to grant the injunction sought. 64 I would distinguish NAMU on two bases. First, there is in this matter the legal controversy reflected by the decisions in Re Patterson and in Te so far as British subjects are concerned. Secondly, even if the appellants in NAMU had been successful they would have still been unlawful non-citizens, as their applications for judicial review of the decision to refuse the husband in that family a protection visa had come to an end. In the present matter, if the appellant were to succeed on either ground, the result would be that he was a lawful non-citizen and that the respondent had no power to detain him. 65 After weighing the various factors to which I have referred, I considered that it was in the interests of justice that the interlocutory injunction be granted.

Conclusion 66 For the foregoing reasons I propose the following orders:

1. Allow the appeal.
2. Set aside the orders made by the primary judge on 19 November 2002.
3. Prohibit the respondent from further proceeding to act on the decision made by him on 24 January 2002 to cancel the appellant's visa.
4. Quash the decision of the respondent, made on 24 January 2002, to cancel the appellant's visa.
5. Restrain the respondent from relying upon that decision to detain the appellant for the purpose of removing him from Australia, and to remove him from Australia.
6. Reserve judgment on the matters of the appellant's claim for declaratory relief and costs both at first instance and on appeal.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT MERKEL J: 67 I agree that the orders set out in the reasons for judgment of Carr J should be made for the reasons given by his Honour. I also agree to the grant of interlocutory relief in this matter for the reasons given by his Honour. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT HELY J: 68 I have had the advantage of reading the reasons for judgment of Carr J in draft form. I agree that the orders proposed by Carr J should be made and with his Honour's reasons for proposing those orders. 69 I concurred in the grant of interlocutory relief substantially for the reasons recorded by Carr J. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Appellant: Messrs Christie & Strbac

Counsel for the Respondent: Mr D M Bennet QC Solicitor-General of the Commonwealth and Mr P R Macliver

Solicitor for the Respondent: Australian Government Solicitor