Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs

34 The Minister was informed by the "Issues Paper" that the applicant left Australia on 4 February 1996 and returned on 19 March 1996. The Minister was also provided with a copy of the letter to the applicant of 30 June 2001 in which the Minister's Department stated, incorrectly, that the visa held by the applicant was a "subclass 155 permanent residence visa". 35 As in Schwart, there was incorrect information before the Minister in respect of the visa held by the applicant. The visa "Cat. K4011/33" no longer existed. The applicant did not hold a "Subclass 155 permanent residence visa" nor, for that matter, a "Subclass 155 - Five Year Resident Return visa", a visa limited to a term of 5 years entitling the holder to return to and re-enter Australia if a departure from Australia was made within that period. The actual visa held by the applicant, a "transitional (permanent) visa", was not identified. 36 As stated by the Full Court in Schwart the Minister had to know the type of visa under consideration for cancellation if the salutary power available to the Minister under s 501 was to be duly exercised. It was not open to the Minister to say that all the relevant issues had been duly considered if the Minister was unaware of the type of visa held by the resident that the Minister purported to cancel. As in Schwart, it may be surmised that at the time the decision was made the Minister understood that the applicant held a visa which entitled him to reside permanently in Australia. However, as stated in Schwart that assumption was not sufficient. It was necessary for the Minister to be aware of the type and details of the visa held, before the Minister could decide whether it was appropriate, in all the circumstances, that the visa be cancelled. 37 Had the applicant relied on the foregoing ground it would seem that the prerogative relief sought by the applicant could not have been resisted by the Minister. (See: Roberts v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 739). 38 I turn now to the two issues raised by the applicant at the hearing, namely, whether the Issues Paper set out the reasons of the Minister for the decision to cancel the visa held by the applicant, and whether the decision of the Minister involved jurisdictional error in that the Minister failed to have regard to the following material considerations; the best interests of the children of the applicant; and, Australia's obligations to the applicant under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and subsequent Protocol thereto ("the Convention"). 39 In W157/00A v Minister for Immigration & Multicultural Affairs (2001) 190 ALR 55 at [47]-[52] I referred to the principles to which Parliament may be assured to have had regard in enacting s 501G(1)(e) of the Act, imposing a duty on the Minister to provide reasons for a decision made by the Minister under s 501(2) of the Act. As noted earlier that duty is enlarged by the general duty imposed in s 25D of the Acts Interpretation Act 1901 which require written reasons for a decision that are provided pursuant to a requirement in a statute, to include the findings made on material questions of fact and to identify the evidence or other material on which those findings are based. 40 In some circumstances, likely to be rare, the briefing material placed before the Minister may recite material facts that are not in issue and which allow only one conclusion by the Minister in the formation of his or her decision. Perhaps in such a case it could be said that adoption of that material by endorsement by the Minister is a declaration of the Minister's reasons for the decision made and specification of the material findings of fact and of the material relied upon for those findings (see: W157/00A at [69]‑[71]). 41 But as noted above such a circumstance will be exceptional. Parliament directs the Minister to set out in writing the reasons of the Minister and material facts found by the Minister. It is a specific and clear duty that does not allow the Minister a discretion to decide the extent to which that obligation will be performed or to purport to satisfy it by presenting to a party affected by the Minister's decision, a document prepared for another purpose from which it is said that party may endeavour to find the reasons of the Minister by "reading between the lines". (See: Minister for Immigration & Multicultural Affairs; Ex parte Palme (2003) 77 ALJR 1829 per Gleeson CJ, Gummow, Heydon JJ at [40]). 42 The Minister accepts the foregoing and concedes that the statutory duty has not been performed in this case. 43 Counsel for the applicant submitted, however, that the letter from the Minister's Department dated 22 July 2002 which notified the applicant of the Minister's decision and stated that it enclosed "a copy of the decision record that sets out the reasons for the decision" should be accepted as a declaration by the Minister that the "decision record" set out the reasons of the Minister. 44 Perusal of the Issues Paper shows that proposition to be unsustainable. It contained no process of reasoning leading to a recommendation to be adopted by the Minister. Some facts of the Issues Paper were incontrovertible, namely, that the applicant had been convicted of serious offences and that the power of the Minister to cancel the visa held by the applicant had arisen under the Act. But other matters set out in the Issues Paper required assessment and a formation of judgment by the Minister as to where the balance should fall, namely, the risk of the applicant re-offending; the extent of the applicant's rehabilitation and self improvement in the course of his incarceration; and how the best interests of the children of the applicant as Australian citizens were to be served. In addition, although not raised expressly in the Issues Paper, the Minister had to consider what weight to attribute to the fact that the applicant had been accepted into Australia as a child and had spent his formative years in this country. For almost 20 years he had been a permanent resident of Australia. 45 The Issues Paper presented to the Minister material on which the Minister had to make a number of findings and allocate weight and ultimately make a determination based on those deliberations. The Issues Paper did not supply findings of fact, the decision to be made nor the reasoning to support such a decision and in no sense can it be said to set out the reasons of the Minister for a decision to cancel the visa held by the Applicant (see: Roberts at [35]). 46 Alternatively the applicant, with the consent of the Minister, sought to tender as part of his case, a document signed by the then Minister on 5 October 2003 described as "Statement of Reasons - The Cancellation of Mr Van Nguyen's Visa Pursuant to s 501(2) of the Migration Act 1958". The applicant commenced this proceeding on 6 August 2002, and gave notice of the grounds relied, upon, inter alia, that the Minister had failed to take into account the relevant considerations of the best interests of the applicant's children and of Australia's obligations to the applicant under the Convention. 47 The document described above began with the following paragraph: "Mr Nguyen's case is one of many visa cancellations that I have personally considered. This document sets out my best recollection of the reasons for my decision of 12 July 2002." 48 The applicant sought to have the document admitted on the ground that it contained an admission against interest on the part of the Minister insofar as the document revealed that the Minister failed to consider the issue of Australia's obligations to the applicant under the Convention as a person accepted by Australia as a refugee from the country to which the Minister intended to remove the applicant. I reserved my decision on the admissibility of the document. 49 The document could not be tendered as the reasons for the Minister's decision recorded in writing as required by s 501G(1)(e) of the Act. The document on its face was not such a record. The document contained a candid caveat that it was, at best, an endeavour to recollect the reasons for the decision. The attempt at recollection was some 15 months after the decision had been made and it followed that the document had to be treated with great caution. (See: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 at [67]). The document was a non-contemporaneous self-serving statement prepared outside the terms of the Act and could only be admissible under an exception to the hearsay rule, such as an admission against interest. (See: Minister for Immigration & Ethnic Affairs v Arslan (1984) 4 FCR 73 at 75; Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004]FCA 435 per Hill J at [28]; Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003]FCA 1069 per Hely J at [64]-[67]). 50 Insofar as it may be said that the document contains any admission against interest the document can be admitted, by consent, for that limited purpose. 51 The Issues Paper informed the Minister that Article 3.1 of the "Convention on the Rights of the Child" required the Minister to treat the best interests of the children as a primary consideration in making his decision. It may be added that such a consideration involved the need to have regard to the fact that the children were Australian citizens. (See: Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 per Burchett J at 614; Minister for Immigration & Multicultural Affairs v Teoh (1995) 183 CLR 273 per Gaudron J at 304-305). It was not in issue that the Minister recognised that it was expected by parties likely to be affected by his decision that he would take the best interests of the children to be a primary consideration and that it would constitute a breach of natural justice in the circumstances if he failed to do so. 52 On the material before the Minister there was a real prospect that a decision to cancel the visa held by the applicant would result in separation of the children from their father or place them in disadvantaged circumstances in Vietnam, causing substantial detriment to the children in either circumstance. As noted in the Issues Paper the material suggested that a decision to cancel the applicant's visa and to remove the applicant from Australia would have a detrimental effect on the children. 53 The Minister could not assume that the applicant's wife would depart the country of nationality of herself and the children and relocate herself and the children in Vietnam. As the wife's letters to the Minister's Department implied, a decision to cancel the visa held by the applicant would present her with unpalatable options, none of which would mitigate the impact of that decision on the children. One of those options would be to remain in Australia with the children. Before the Minister could make the ultimate determination of what decision would best serve the interests of Australia and its citizens, the Minister, in giving primary consideration to the best interests of the children, had to consider the possible impact upon the children of the range of events that may follow if the applicant's visa were cancelled. 54 In addition to the obvious matters relating to the disadvantages and hardship that the applicant's wife and children would suffer if, for the sake of the children and family unit, the applicant's wife decided to leave Australia to join the applicant in Vietnam, there was material that suggested that the health of the son, who suffered from a rare condition, would be imperilled by relocation to such a tropical environment. Therefore, the Minister had to consider the real possibility that a decision to cancel the applicant's visa and to remove the applicant from Australia would have the effect of separating the children from their father indefinitely. All of the material placed before the Minister was to the effect that the children had a close relationship with the applicant. A further matter the Minister had to consider with regard to the future interests of the children was that if the wife and the children left Australia as a result of the Minister's decision, that event would sever the relationship between the children and their maternal grandfather in whose home the children had spent most of their lives and with whom they had a firm bond. 55 Insofar as the Issues Paper informed the Minister that it was "open" to the Minister to find that a decision to cancel the visa held by the applicant would have a detrimental effect upon the children, it may have distracted the Minister from the actual task before him at law, namely, to give primary consideration to what was in the best interests of the children. It may be assumed in the present case that the only conclusion the Minister could have reached in respect of the best interests of the children was that such interests would be met by the Minister deciding not to cancel the visa held the by applicant. That had to be the "starting point" in the Minister's treatment of the interests of the children as a primary consideration. (See: Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 at [26]). If the Minister determined as a primary consideration that the best interests of the children would be served by the Minister declining to cancel the visa held by the applicant, the Minister would then have to determine, and identify, what consideration, or considerations, were of sufficient weight or importance to supersede the best interests of the children. (See: Wan at [32]-[34]; Long v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 218 at [53]-[57]). 56 Given that the Issues Paper did not guide the Minister in that way and that when the decision was notified to the applicant the Minister did not provide reasons to explain how the best interests of the children were overtaken by other considerations it should be inferred that latent procedural error in the Issues Paper became patent in the decision-making process and that the Minister failed to treat the best interests of the children as a primary consideration. It followed that, in making the decision, the Minister failed to observe procedural fairness and that jurisdictional error occurred. (See: Wan at [26]; Powell v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 717 per Carr J at [29]-[31]). 57 With regard to the question whether the Minister failed to consider whether Australia had international obligations to the applicant under the Convention, the Issues Paper informed the Minister that the applicant "arrived in Australia as a Refugee from Vietnam [on] 15 December 1983". Later in the Issues Paper, under a heading "Other International Obligations", it was stated that the applicant had not made any claims which required assessment in relation to such obligations. The latter comment in the Issues Paper may have led the Minister into error in making his decision. The Minister had to consider all issues raised by the material before him, not only issues articulated by the applicant. (See: Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28). 58 If it is assumed that in Malaysia in 1983 the applicant was assessed by the UNHCR as a person to whom the Convention applied it may be further assumed that it was by reason of that assessment that the applicant was accepted for re-settlement in Australia as a "refugee". Although it is unnecessary to speculate on how the applicant came to be regarded as a "refugee" it may be assumed that it was accepted that, by reason of his membership of a particular social group, namely, a member of the family of a person (the applicant's father) who had been an active member of the South Vietnamese army and later a prisoner of the forces now in control of Vietnam, the applicant had a well-founded fear of persecution if he were returned to Vietnam. 59 The foregoing circumstances of the applicant, who left Vietnam in 1980 and arrived in Australia in 1983, are clearly distinguishable from those considered in Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47 at [21]-[25]. In the instant case the material before the Minister suggested that as at 1983, under s 6A(1)(c) of the Act as it then stood, the applicant was a person determined by the Minister to be a person who had the status of a refugee under the Convention and, accordingly, a person to whom an entry permit was to be granted. That material did not suggest another conclusion, to the exclusion of all others, namely, that the word "refugee" as applied to the applicant referred to a person other than a person to whom the Convention applied. In Huynh the relevant events occurred in 1992 at a time when the Act, and the regulations made thereunder, had been amended in significant respects, in particular, to provide for "a number of humanitarian visas". (See: Huynh at [9]). Furthermore, in Huynh (at [22]), the Court held that the relevant material raised no suggestion that Huynh had been assessed as a person subject to persecution in Vietnam and that, (at [10]), it was clearly possible that Huynh had been permitted to enter Australia as a member of a family unit. The applicant in the instant case had relations in Australia who may have assisted the applicant to be accepted by Australia but, unlike Huynh, the material did not confirm that when the applicant entered Australia the Minister had not determined that he was a person who had the status of a refugee under the Convention. 60 If the applicant had been assessed by the UNHCR to be a refugee within the meaning of that term as used in the Convention, then Australia, having accepted the applicant for re-settlement and as a contracting party to the Convention, would have to have given regard to whether Australia's obligations to the applicant continued under the Convention before it took any step to return the applicant to Vietnam. It followed that the foregoing question was a material consideration in determining whether to cancel the applicant's visa preparatory to refouling the applicant to Vietnam. 61 The material before the Court suggests that at the time the then Minister made his decision to cancel the visa held by the applicant, he did not turn his mind to the question whether Australia had continuing obligations to the applicant under the Convention. The Issues Paper pointed the Minister away from that task. If the subsequent document prepared as a "best recollection" of the then Minister's reasons are taken into account, the failure of the Minister to refer to the question, or to make any findings in respect of relevant facts, tends to support the conclusion that the issue was not addressed at all. 62 Although matters such as the failure of the applicant to now claim a fear of persecution if returned to Vietnam, and the fact that when he left Australia between February and March 1996 he may have visited Vietnam, may suggest, strongly, the absence of such a fear, that issue still had to be considered, and relevant facts found, by the Minister before a decision could be made to cancel the visa held by the applicant for the purpose of returning the applicant to Vietnam. A contrary proposition, based on the content of s 501E of the Act was, discussed by the Court in Huynh (at [27]-[28]) but the Court acknowledged, as must be done in this case, that it was not a point addressed by the parties and could not ground the Court's conclusion. For the reasons adumbrated above the failure of the Minister to have regard to the foregoing material consideration represented a jurisdictional error in the decision-making process. 63 Orders should be made quashing the Minister's decision, prohibiting the Minister from proceeding to act on the decision, and restraining the Minister from relying upon the

decision for the purpose of detaining the applicant or removing him from Australia. I certify that the preceding sixty‑three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate: Dated: 17 June 2004 Counsel for the Applicant: HNH Christie

Solicitor for the Respondent: Australian Government Solicitor