Untan v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-04-11|Before: Beaumont J, Stone JJ

The Court: 1 By his amended application filed on 17 October 2002, the appellant sought judicial review by this Court of a decision made by the respondent Minister on 17 July 2002 to cancel the appellant's visa. 2 The Minister's decision to cancel was made under s 501(2) of the Migration Act 1958 (Cth) ("Migration Act"). Section 501 relevantly provides: "… (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3). (6) For the purposes of this section, a person does not pass the 'character test' if: (a) The person has a substantial criminal record (as defined by subsection (7)); or … (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; … the person is not of good character; … … Otherwise, the person passes the 'character test'. (7) For the purpose of the character test, a person has a 'substantial criminal record' if: … (c) the person has been sentenced to a term or imprisonment of 12 months or more; … …" 3 By his amended application, the appellant claimed, as the ground for judicial review, that there was "a lack of procedural fairness to the [appellant] and his family in the process which led to the making" of the decision. 4 The appellant provided particulars of his grounds as follows: "a) The Minister did not have access or regard to relevant material sent by the Applicant's wife which supported the Applicant's claim that he needed to remain in Australia for his family: i) On 14 February 2000, the Applicant's wife was interviewed by an officer of the Minister's Department. She was provided with a copy of the interview and was invited to add anything she wished. ii) On 25 May 2000, the Applicant's wife wrote a three page letter detailing reasons why she needed her husband to remain in Australia for the benefit of her family. iii) Neither this letter nor any summary of it was provided to the Minister to take into account and balance in assessing whether to make the Purported Decision. b) The Minister did not have access or regard to relevant material sought by it about the impact of separation of the Applicant from his children, in circumstances where the Applicant and his wife might reasonably have believed that access and regard to that material would have been had: i) Both the Applicant and his sons had seen Mr Raymond Hudd, a psychologist, since 1997. ii) The Department was notified of this by the Applicant's wife in May 2000. iii) An officer of the Department requested that Mr Hudd provide the Department with a report on the Applicant which would address the impact on his children of his being removed from Australia. iv) Mr Hudd informed the Applicant and his wife that he had been requested to prepare such a report and that he had done so. v) Mr Hudd sent the report to the Department in 2000. vi) The report indicated, inter alia, that in Mr Hudd's opinion if My(sic) Untan were deported that act is tantamount to destroying the lives of his sons, his wife and his daughter because it is the thread of hope of re‑establishing the family unit that holds the family together. vii) The Report was not provided to the Minister. viii) The Department did not indicate either to Mr Hudd or the Applicant or his wife that the report had not been received (if that be the fact) nor that it would not be taken into account. ix) In the circumstances, it was reasonable for the Applicant and his wife to expect that the report would be taken into account or that they be notified if it was not to be. Neither was done. x) If the Applicant or his wife had been notified that Mr Hudd's report was not to be taken into account (or had not been received), they could have and would have taken action either to supply a copy of the report or contend that it should have been considered. xi) This constituted objective procedural unfairness. c) Notwithstanding that it was recognised that a decision to cancel the Applicant's visa would have an adverse impact on his children, the children were not consulted about the making of the decision." 5 The primary Judge dismissed the application for the reasons explained below. The appellant now appeals from that judgment, and the Minister has given notice of his contention that the judgment should be affirmed on two grounds there specified, to be explained below.

Background facts 6 In order to understand the issues arising on the appeal, and in particular on the Minister's notice of contention, reference should be made to the following background facts. 7 The appellant is a Romanian national. He was born on 5 April 1961 and arrived in Australia on 30 March 1984. According to records of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") which were in evidence before Branson J, the appellant very soon came to the attention of the police when he was charged on 19 April 1984 with assault and attempted rape. There was, however no evidence of the disposition of any such charges, and it must be assumed that they were dismissed. In 1985 the appellant was summarily convicted of a number of traffic offences committed on two different occasions. 8 On 15 February 1986 the appellant married Karen Lesley Uebel, an Australian citizen. They have twin sons born on 16 October 1987 and a daughter born on 20 December 1995. 9 The appellant was a drug dealer. On 1 October 1988 he was charged with the indictable offence of deemed supply of heroin. Later that month he was charged with possession of a prohibited drug and goods in custody. In November 1988 he was convicted and fined for the goods in custody offence. In December 1988 he was charged with goods in custody and possession of heroin. On 10 May 1989 he was convicted and fined for the three outstanding summary offences. In September 1989 he was convicted of assaulting a female and fined. 10 On 29 December 1989 the appellant was arrested and charged with a number of serious indictable offences. He was remanded in custody and, on 8 March 1991, he was convicted of two counts of supplying heroin, three counts of possessing shortened firearms, one count of possessing a rifle with a silencer and one count of knowingly possessing counterfeit money. The appellant pleaded guilty, and the sentencing judge agreed to take into account on sentence the deemed supply of heroin charge outstanding since 1 October 1988. The judge thought that a minimum term of eleven years' imprisonment would otherwise be appropriate, but gave the appellant a fifty per cent discount for his assistance to the authorities. The appellant was thus sentenced to a minimum term of five years and six months from 29 December 1989 with an additional term of twenty-two months. 11 The Department's Chatswood office then commenced steps to prepare a submission to the Minister on the question of the appellant's deportation from Australia. The appellant was interviewed at Goulburn Correctional Centre on 23 September 1994 when he was given a copy of a leaflet "Australia's Criminal Deportations Policy". A copy of the interview report was sent to him. The appellant was invited to make any corrections and to have "anyone with an interest in your situation … write a submission to the department on your liability to deportation". He was also informed in the same covering letter that his wife was to be interviewed. 12 On 28 September 1994 the same officer from the Department's Chatswood office interviewed the appellant's wife at her residence. She was subsequently sent notes of that interview, asked to check them for corrections and invited to provide any additional statement she wished in respect of her husband's liability to deportation from Australia. The appellant's wife returned a corrected copy of the notes to the Chatswood office together with a further handwritten statement. In the following weeks she spoke several times by telephone with the officer handling her husband's case in the Criminal Deportations Section at Chatswood in order to provide further information, particularly about the police officer to whom the appellant had given the assistance referred to by the sentencing judge. The officer from the Department subsequently spoke to that police officer. Reports were also obtained by the Department's Chatswood office at the end of 1994 from the superintendent, and the parole unit at the Goulburn gaol, but the evidence does not disclose whether a submission on the question of the appellant's deportation was ever prepared in that office. 13 On 28 June 1995 the appellant was released from the Silverwater Correctional Centre at Silverwater on parole. Whilst on parole, he was arrested on 25 February 1997 at home following a complaint of assault by his wife. He was also charged with possession of cannabis and with two indictable offences of possessing shortened firearms. The appellant was granted bail in respect of all these charges but was not released until a month later. On 9 May 1997, just days after his parole period expired, he broke into a house whilst armed with a shotgun. An accomplice stabbed a neighbour who had entered the house and the appellant accidentally discharged the shotgun. On 13 May 1997 the appellant was arrested and charged with breaking and entering a dwelling house "in circumstances of special aggravation" by virtue of being armed with a dangerous weapon, stealing a motor vehicle and possessing a shortened firearm. He initially denied involvement in the break and enter. However, in an interview with police on 23 September 1997, the appellant admitted all the offences and agreed to give evidence against his accomplice. 14 The appellant was dealt with for these offences at Campbelltown District Court on 13 October 1997, when he entered pleas of guilty to certain of them and asked to have the others taken into account on sentence. A report dated 10 October 1997 of a psychological assessment of the appellant by Raymond Hudd was received in evidence on sentencing. The judge imposed a term of imprisonment, which would have made the appellant eligible for release on parole on 13 May 2000. 15 The Bankstown office of the Department wrote to the appellant in prison on 31 October 1997, informing him that he may be liable for deportation from Australia pursuant to s 200 of the Migration Act and enclosing a copy of the Government's Criminal Deportation Policy. In this letter the appellant was informed that he would be interviewed before a decision to deport him was made. 16 The Crown appealed against the leniency of the sentence imposed on the appellant. On 13 May 1998 the Court of Criminal Appeal allowed the appeal in part and substituted a sentence made up of a minimum term of five years to commence on 13 May 1997 and expire on 12 May 2002 and an additional term of two and a half years to commence on 13 May 2002 and expire on 12 November 2004. 17 The Bankstown office of the Department revived the question of the appellant's deportation. On 11 February 2000 Judith Hilaney from that office interviewed the appellant at Goulburn. She gave him a copy of the General Direction regarding the Australian Criminal Deportation Policy given under s 499 of the Migration Act on 21 December 1998. The appellant was subsequently supplied with a copy of the notes of his interview. In those notes the appellant is recorded as saying that his wife would write a letter on his behalf expressing his "views regarding deportation or relevant matters". 18 Ms Hilaney interviewed the appellant's wife at the Bankstown office on 14 February 2000. A copy of the notes of that interview were sent to the wife with a request that she reply by 14 March 2000 if "you have anything to add or do not agree with what has been recorded". A handwritten note on the file records that the appellant's wife was subsequently granted an extension of time until 31 March 2000. A three-page handwritten, legible letter dated 25 May 2000 was furnished to the Department by the appellant's wife. In that letter she stated that her sons both had an "intellectual disability" and had been to see Raymond Hudd, a "counsellor" in Campbelltown, about "behavioural problems". The appellant's wife said that she had asked Mr Hudd "for a letter about the impact of John [the appellant] being deported on my boys." At the end of her letter she said that she was "still waiting on Ray's (Raymond Hudd's) letter" and gave his telephone number. 19 Mr Hudd is a psychologist at Campbelltown who, at this stage, was seeing the appellant's sons "approximately fortnightly or monthly". Ms Hilaney asked him to prepare a report to be used by the Department in deciding whether or not to deport the appellant. On 14 July 2000 Ms Hilaney faxed Mr Hudd, asking for a copy of his pre-sentence report on the appellant and concluding: "I hope to receive your report on Mr Untan and his children sometime in early November 2000 otherwise I will give you a call." Later in 2000 Mr Hudd informed the appellant's wife of the Department's request and his intention to prepare a report and, shortly afterwards, she told the appellant what Mr Hudd had said. Mr Hudd prepared a seven-page report dated 28 December 2000. He says that he faxed a copy of this report and his account to Ms Hilaney on the afternoon of Thursday, 28 December 2000. Ms Hilaney had by this time moved from the Criminal Deportation Section to Villawood, and the report does not appear to have been received by the Department. In the first half of 2001, on an occasion when the appellant's wife took her sons to see Mr Hudd, he told her that he had sent the report. The appellant's wife believed that the report would have said, "that John should stay with the kids" because Mr Hudd had previously said to her that "the boys need him". In the middle of 2001 Mr Hudd stopped seeing the appellant's sons. 20 On 27 February 2002 the appellant was interviewed in prison by Sarah Kang from the NSW Character Section in the Department's Parramatta office. She gave the appellant a letter, notifying the intention to consider cancelling his visa under s 501(2) of the Migration Act, and a copy of Ministerial Direction No. 21 given under s 499 of the Migration Act. In that letter Ms Kang requested his comments and "any further information that you feel the Minister ought to be aware of and take into account" be provided to her no later than 19 March 2002. The appellant was also given or sent two other letters dated 27 February 2002, in one of which Ms Kang invited his comments on Mr Hudd's report of 10 October 1997 and on a report dated 6 December 2000 from the Long Bay Parole Unit of the NSW Department of Corrective Services, and in the other of which she forwarded for "corrections or further comments" notes of his interview that day. Those notes record the appellant's wish to have Ms Kang interview his wife as someone who would be affected by the possibility of his visa cancellation and removal from Australia. 21 Ms Kang interviewed the appellant's wife by telephone on 28 February 2002. A copy of the notes of that interview was later sent to the appellant's wife by Simon Thompson of the NSW Character Section in the Department's Parramatta office under cover of a letter dated 21 March 2002. In that letter Mr Thompson asked the appellant's wife to sign each page of the notes if she agreed that they were a correct record of the interview and to provide any further information she would like by 8 April 2002. The appellant's wife provided no further information, but she did sign each page of the notes and returned them to Mr Thompson. 22 On 22 March 2002 Mr Thompson received a copy of the pre-release report dated 4 February 2002 provided to the Parole Board by the Probation and Parole Service of the NSW Department of Corrective Services. That same day Mr Thompson sent a copy of that report to the appellant. In his letter Mr Thompson told the appellant that the report would be used in the preparation of his visa cancellation case and invited him to make any comments he wished in relation to its contents. No comments on the report were received from the appellant. The appellant was released from prison on parole on 20 May 2002. 23 In his interview on 27 February 2002 the appellant had been asked whether he envisaged any difficulties in Romania. He said: "I used to play soccer for the army. When we toured Europe, I didn't get back on the bus and it doesn't stand well with the Government." In the light of this response, the Department's Central Office sought advice from the Department of Foreign Affairs and Trade ("DFAT") about the position of army deserters in Romania. The DFAT advice was not received until 21 June 2002. 24 On 26 April 2002 Mr Thompson requested advice from the Department's Central Office in Canberra on Australia's international obligations concerning the possible removal of the appellant to Romania. 25 On 24 June 2002 the Assistant Director of the Protection Services Section in the Department's Central Office sent Mr Thompson an assessment of the appellant's status under the treaties mentioned in Ministerial Direction No. 21, namely the Convention Relating to the Status of Refugees ("Refugee Convention"), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention against Torture") and the International Covenant on Civil and Political Rights ("ICCPR"). 26 The assessment noted the appellant's claim "that he is unable to leave Australia due to his family commitments" because "his wife requires his assistance to care for his intellectually disabled sons and ... his absence thus far has had an adverse effect on their mental health". It was remarked that it might be in the best interests of the children to have their father residing in Australia either with them or nearby. In that context the assessment drew attention to Australia's obligation under the ICCPR "to allow family members to remain together". The author commented that a "potential breach" of the provisions of that Convention "needs to be weighed against other primary immigration considerations" and "would warrant caution on the part of the decision-maker when determining whether to use the discretionary visa cancellation power". Nonetheless, the assessment concluded that Australia would not be in breach of its international obligations if the appellant were returned to Romania.

27 The submission to the Minister was prepared on 8 July 2002 by Mr Thompson and cleared on 9 July 2002 by his superiors in the NSW Character Section. Annexed to the submission were copies of the following documents: · The assessment of Australia's international obligations dated 24 June 2002, · the notes of interview with the appellant's wife dated 28 February 2002, · the notes of interview with the appellant dated 27 February 2002, · the appellant's criminal history dated 15 February 2002, · the appellant's prison sentences administration records dated 12 February 2002, · the pre-release report for the Parole Board dated 4 February 2002, · the judgments in the Court of Criminal Appeal dated 13 May 1998, and · the psychological assessment of the appellant by Mr Hudd dated 10 October 1997. 28 Given its central importance to the issues arising on the Minister's notice of contention, the contents of the Department's submission to the Minister should be further described. 29 The submission was entitled "Issues for consideration of possible cancellation of ... visa under s 501(2) ... ." It was prepared by a Case Officer on 8 July 2002, and "cleared" on 9 July 2002 by the Assistant Manager and the Manager, NSW Character Section. Its purpose was stated to be to seek the Minister's decision on whether the appellant passed the "character test" in s 501(6); and, if not, whether his visa should be cancelled pursuant to s 501(2). 30 As has been already noted, the submission then explained the grounds for cancellation provided by s 501(2), (6) and (7). Reference was made to the appellant's criminal record and it was noted that it was open to the Minister to find (pursuant to s 501(6) and (7)(c)) that there was a reasonable suspicion that the appellant did not pass the character test due to the fact that he had been sentenced to a term of imprisonment of twelve months or more. 31 The submission next referred to the existence of the Ministerial statutory discretion to decide whether the appellant should be permitted to remain in Australia and noted, in this connection, that on 27 February 2002, the appellant had been notified of the intention to cancel his visa on the grounds specified in s 501(6)(a) - "substantial criminal history", or s 501(6)(c)(i) - "past and present criminal conduct". It was further noted that the appellant had been invited to make a submission in this regard and that he had provided this at an interview with a Departmental Officer on 27 February 2002.

32 As mentioned, the notes on this interview are annexed to the submission. They record, inter alia, the following answers by the appellant to questions: · He saw his wife "every couple of weeks" and his children "once every 2 or 3 weeks". · It was "very hard on my wife to cope with 3 kids. I have to help her. When [my family] come to see me they are alright. But when its time to go, my daughter doesn't want to go. I can't go. Even if [they] deport me, I will do everything in my power to come back. [I] personally wouldn't be affected. But my boys and daughter [would be] ... ." 33 The submission then addressed the "Primary Considerations" bearing on the exercise of the Ministerial discretion, turning first to the "Protection of the Australian Community" and commencing with "seriousness and nature of conduct". It noted that the appellant's offences were listed as "very serious" in the terms of Ministerial Direction No. 21. Paragraph 2.7 of that Direction stated that the sentence imposed for a crime is "an indication of the seriousness of the offender's conduct against the community", so that "due regard" should be had to the extent of the criminal record, including the number and nature of offences, the time between offences, the time that has elapsed since the last offence and the "repugnance" of the crime. It noted that crimes involving violence against "defenceless" persons are "especially repugnant to the whole community". 34 The submission referred to the reasons of the Court of Criminal Appeal given on 13 May 1998, previously mentioned, in which Simpson J said: "... [M]aterial in relation to the firearms offences ... came to light because on 22 February 1997 the [appellant's] wife reported to police incidents of domestic violence by the [appellant]. Police arrested him in response to those complaints ... He admitted possession of the firearms and led police to a bush area where he had secreted two guns, together with a small amount of ammunition ... ." 35 The submission also quoted comments of Simpson J to the effect that the appellant was released on bail, and was still on bail when arrested on 13 May 1997 and charged with breaking, entering and committing a felony in circumstances of special aggravation on 9 May 1997, as described earlier in these reasons. 36 According to the submission, Simpson J also said: "Before moving to the subjective features it is significant to note three significant aggravating factors. The [appellant] had a substantial criminal record. Of most significance were convictions for assault, malicious damage, possession and supply of prohibited drugs and, importantly, three earlier offences, committed in 1991, of possession of shortened firearms, another of possession of a prohibited weapon, and another for possession of counterfeit currency." 37 The submission also noted that Simpson J (McInerney and Studdert JJ concurring), having emphasised "the serious nature of the circumstances of aggravation", was of the view that an appropriate sentence in relation to that charge was a total term of penal servitude of seven and a half years. The submission concluded that, on the basis of the appellant's criminal history, it was open to the Minister to find that his conduct against the community was "very serious". 38 The submission mentioned that at interview, the appellant put forward the following by way of mitigation: "Guys that I worked for supplied me with drugs ... . When I came out [of gaol] they wanted money that I owed them before. I didn't have money. They threatened to come after my kids and wife ... so I went upstairs and got my gun. I broke into their house and waited for them. When they got home, I shot their roof because I didn't want to hurt them. I just wanted them to know that I wasn't scared. When I got out of gaol the first time, I didn't want to get involved with crimes. I just wanted to get a job and be with my family." 39 The submission quoted Simpson J's mention of these mitigating factors: "The psychological assessment discloses a particularly difficult early life in Romania. His father was a violent man who subjected the [appellant] to frequent and savage beatings. For twelve months from 1979 the [appellant] was a political prisoner in Romania and suffered torture and beatings from the prison authorities. Eventually the [appellant] and a friend escaped and made their way to Yugoslavia from which he came to Australia." 40 The submission noted that the Probation and Parole Service's pre-release report, dated 4 February 2002, stated: "[The appellant] blamed part of this offence as the result [of] anti depressant medication that he was taking prior to the commission of this current offence. In addition, he claims that he was approached by a group of men demanding money from him. The money was reportedly owed to these men in relation to the importation of drugs. As he was in gaol and unable to repay the money, he claimed that they threatened to harm his family. It is noted that other legal documents do not reflect this. He says that he is sorry for his children, but he claimed that 'it is part of survival'. It appears that the relationship with his wife is still fragile and his contrition is partially related to his children only." 41 Turning next to whether there was any risk of recidivism, the submission mentioned the appellant's convictions between 1985 - 1989, which included offences of "Possess Prohibited Drug, Goods in Custody, Possess Heroin, Assault (Female), Malicious Damage, Possess Prohibited Article". 42 According to the submission, at interview, the appellant stated, regarding his rehabilitation, that he had "grown up a lot" and was "a lot wiser" and "more settled". He had said that he had seen the psychologist "a couple of times, but I know I'm not crazy. I did stupid things before. When you're young you think it's OK. But with age it's different". 43 The submission noted that, according to the pre-release report, since his return to custody, the appellant had "incurred the following offences dated from 28/9/97 to 27/7/00: Insulting language, Fighting, Abusive language, Threatening Behaviour x 2, Assaults and Fighting." 44 The pre-release report further stated: "[The appellant's] positive changes in attitudes and behaviour at this centre appears satisfactory. To his credit he has improved his work and industry performance. However, his improved level of self control ... and maturity has neither [been] sustained for any significant length of time nor tested in the community. When considering ... parole, there [are] some concerns about the [appellant's] ability to adapt to normal lawful life in the community. He seems agitated about the necessity for him to seek a professional opinion when released to the community." 45 The pre-release report added: "... Of concern, he indicates that his associates claimed that he owes them for the amount of $100,000 for drug use prior to this sentence. Furthermore, if they approached him after his release, demanding ... money 'he will kill them'. The [appellant's] wife indicated that the family is not at risk and felt ... that the [appellant's] associates are currently in custody." 46 Noting that, although provided with a copy of the pre-release report and invited to comment, the appellant "opted" not to do so, the submission stated, "[i]n consideration of the above factors, it is open to you to find that [the appellant] is at a high risk of recidivism". 47 The submission then addressed the issue of "General deterrence", as (citing Ministerial Direction No. 21 ) "an important factor" in this context. After noting the nature of the offences committed by the appellant, the submission stated that it was "open" to the Minister to find that cancellation "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". 48 The submission next addressed "The Expectations of the Australian Community", as required by Ministerial Direction No. 21. The submission stated that, since the appellant's offences were considered by Government to be "very serious … it is open for you to find that … the Australiancommunity may expect that [the appellant] should be removed from Australia." 49 Turning then to "The Best Interests of the Children", the submission noted that Art 3.1 of the Convention on the Rights of the Child ("CROC") required that those interests be "a primary consideration". 50 The submission cited these observations from the pre-release report: "[The appellant's] wife remains supportive throughout this sentence and visits occasionally due to the family's lack of financial resources. Discussions with her indicate that their children are looking forward to their father's release and added that she has no fear of her husband returning home ... . It appears the [appellant's] wife has mixed feelings of her husband returning home, for in another conversation she stated that her husband has not changed his behaviour and he would need ongoing counselling upon his release. When marriage counselling was discussed with the [appellant's] wife, she indicated that she does not need counselling and the [appellant] is the one with the anger problem." 51 The submission also quoted comments made by the appellant at interview, some of which have been mentioned above, including - "[My children] said they will come with me, but I can't do that to them. They will have to start over and it will be hard ... . Personally, I don't care. But it's my kids that Immigration must think about." 52 The submission also quoted the appellant's wife as saying at interview on 28 February 2002 - "Currently, I'm at home. My two boys are mentally delayed so I need to take care of them ... . The children won't cope well. They are counting down the weeks until he returns." 53 As mentioned, the notes of the appellant's wife's interview were annexed to the submission. The notes record, inter alia, that she stated that her marriage was "fine" and that the appellant "will never leave me"; that (as mentioned above) "the children ... are counting down the weeks until he returns"; but that she would not live with him if deported to Romania, since she was a qualified accountant and "if [the appellant] was at home [in Australia] I could go out and work and bring in more money than he could". 54 Under the heading "Any other special factors to be considered" the notes record that the appellant's wife stated, "My children would be affected. I need help with the kids." At interview, she also said that the appellant "still needs counselling. He has a problem with anger management. … [but] he's getting older and better ... ." 55 Also annexed to the submission was, as has been noted, Mr Hudd's psychological assessment dated 10 October 1997. In that assessment, obtained for sentencing purposes in connection with his 1997 offences, Mr Hudd said that the first signs of the appellant's "aggressive and violent behaviour" occurred shortly after he and his wife began living together. The appellant would become "uncontrollably angry" for seemingly the slightest reason and then become depressed and sullen. He began to drink excessively, "in excess of a bottle [of whiskey] a day.". 56 Mr Hudd expressed the opinion that the appellant "is suffering from Complex Chronic Post Traumatic Stress Disorder ("PTSD"). The complexity of his conditionarises from his abuse as a child, his torture in the Romanian [gaol] and in particular the part his uncle played in his treatment and his escape from Romania". 57 Mr Hudd added: "... [The appellant] told me that he often has flashbacks to his time being beaten by his father and by the officers in the Romanian [gaol], and continued to have intrusive visions of his uncle looking on. He also told me that he sometimes has violent and disturbing nightmares but at present they are not as bad as they have been in the past. Although some of these experiences appear to be [cured] by his present conditions it needs to be noted that they were present prior to his incarceration in 1989. When I asked him why he had not told anyone about the extent of his experience[s] in Romania previously he said that no one had ever asked him about them. The presen[ce] of this condition combined with the frustration of his inability to find employment and his lack of English language skills could explain the behaviour that brought him before the court in 1989 and to court on this occasion." Amongst other options, Mr Hudd recommended expert PTSD counselling. 58 On the issue of the children's best interests, the submission concluded - "It is submitted that the best interests of [the appellant's] three children would be served if their father remain in Australia. It is open to you to find from the information given that the cancellation of [the appellant's] visa and his removal from Australia would have a detrimental effect on his Australian born children." 59 Noting that Ministerial Direction No. 21 adverted to "Other Considerations", the submission noted the appellant's comments at interview that the Romanian Government would not provide him with resettlement assistance and the appellant's wife's comments that she would not accompany the appellant if he were deported. With respect to these comments, the submission stated: "... It is reasonable to assume that ... cancellation ... would cause considerable hardship for [the appellant's] family in Australia." 60 The submission again considered Art 3.1 of CROC stating - "Romania is party to the CROC. We have been advised that the CROC does not impose an absolute obligation on Australia to allow a child to come to or remain in Australia where that child has no right otherwise to do so. However, in the case of family reunification, the CROC requires Australia to deal with those cases in a positive, humane and expeditious manner. [The appellant] has maintained that he is unable to leave Australia due to his family commitments. He states that his wife requires his assistance to care for his intellectually disabled sons and that his absence thus far has had an adverse effect on their mental health. However, his files state that while on parole he threatened to kill his wife with a hand gun (sic) in front of his children. He has also continued to display a propensity for violence whilst in prison, while also refusing to undertake rehabilitation. Notwithstanding this fact, it may be in the best interests of the child to have their father residing in Australia either with them or nearby." 61 Finally, the submission concluded, with reference to an assessment annexed to it, that if the appellant were returned to Romania, Australia would not be in breach of the Refugee Convention, the Convention Against Torture or the ICCPR.

The Minister's decision to cancel 62 On 17 July 2002, the Minister expressed his decision under s 501(2) thus: "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 [the appellant's] comments, and have decided that: ... I reasonably suspect that [the appellant] does not pass the character test and [he] 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."

The primary Judge's reasons 63 In explaining the background to the application for judicial review, her Honour noted the appellant's "lengthy criminal record dating back to 1985 ...", his last sentence expiring in May 2002, and his release on parole in that month. 64 Her Honour said: "On 11 February 2000 an officer of the Department of Immigration and Multicultural Affairs ('the Department') interviewed the applicant and the applicant was provided, by a letter dated the same day, with a copy of the notes made during the interview. The letter requested that the applicant contact the officer by 13 March 2000 if he had anything to add or did not agree with anything that had been recorded. He was informed: 'If I do not receive a reply, a submission outlining your circumstances, as recorded in the interview, will be sent to the delegate addressing the question of your deportation.' The applicant's wife ('Mrs Untan') was interviewed by an officer of the Department on 14 February 2000. She was provided with a copy of the notes made at the interview and invited to comment if she had anything to add. On 25 May 2000 Mrs Untan wrote to the officer detailing the impact that the applicant's imprisonment had had on her and their children and her belief as to the likely impact of the applicant's deportation from Australia. She stated in the letter that she had asked Raymond Hudd ('Mr Hudd'), a counsellor who was providing counselling to her sons, to supply the Department with a letter about the impact on the boys of the applicant being deported." 65 The appellant's wife's letter dated 25 May 2000, already mentioned, will need to be considered further below. It will be recalled this letter was relied on in par (a) of the particulars of lack of procedural fairness alleged by the appellant in his amended application; see [4] above. 66 The primary Judge concluded her explanation of the background by stating: "On 27 February 2002 the Department sent the applicant a Notice of Intention to Consider Cancelling a Visa under s 501(2) of the Act. The notice states that the Minister or his delegate may consider cancelling the applicant's visa under s 501(6)(a) and 501(6)(c)(i) and that '[m]atters to be taken into account include your criminal history' (emphasis in original). The notice informed the applicant that he had an opportunity to comment before the Minister or his delegate considered whether to cancel the applicant's visa. The notice stated: 'In preparing any comments please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account'. The applicant was again interviewed by an officer of the Department on 27 February 2002 in relation to his possible visa cancellation. Mrs Untan was interviewed by telephone on 28 February 2002. Both the applicant and his wife were provided with copies of the interview notes for their respective interviews and were invited to make any amendments or provide further information. ..." 67 In considering first the appellant's complaint of a lack of procedural fairness, her Honour noted that, although the Minister accepted that the rules of natural justice apply to a decision under s 501(2), he contended that the interests of the appellant's wife were likely only to be "indirectly affected" by a decision to cancel, so that there was no duty to afford her procedural fairness. 68 Her Honour rejected the Minister's contention. She noted that the appellant's wife was an Australian citizen; that she and the appellant had been married for sixteen years; that they have three children, Australian citizens, living with her; and that two of the children (the fifteen year-old twins) have a measure of intellectual disability, requiring careful supervision, in a context of their increasing physical strength. Branson J referred also to the provisions of the Family Law Act 1975 (Cth) concerning maintenance and the respect afforded to the institution of marriage. Her Honour concluded (by reference to observations in Kioa v West (1985) 159 CLR 550 per Mason J at 584; per Deane J at 634; and in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 per Deane J at 653) that the cancellation decision - "... affected in a direct and immediate way Mrs Untan's rights and interests as the applicant's wife and as the mother of their children." 69 The primary Judge added that it may also be that the decision affected the appellant's wife's legitimate expectation arising from (a) the ICCPR (in protecting the family); and (b) the Family Law Act, in particular, s 43. 70 Her Honour said: "Plainly the Department recognised Mrs Untan's right to be heard in respect of any decision to cancel the applicant's visa. As is mentioned above, an officer of the Department interviewed Mrs Untan on 14 February 2000. By a letter of the same date Mrs Untan was provided with a record of the interview and invited to advise the officer if she had anything to add or if there was anything in the record with which she did not agree. By a letter dated 25 May 2000 Mrs Untan provided to the officer additional information which includes advice that: (a) her mother, who had been assisting her with the children, had passed away so that her need for her husband's assistance had increased; (b) her sons' grief when their father was incarcerated was so severe that she had taken them to a counsellor, Mr Hudd, and she had asked Mr Hudd for a letter about the impact on any deportation of the applicant on the boys; and (c) she had seen improvements in the applicant's behaviour, insight and maturity following his receipt of psychiatric/psychological assistance in prison. The letter concluded: 'My life is on hold waiting for the next two years to pass as then I can have some freedom with my children. I don't need to sit night after night in the lounge room monitoring my children's behaviour unable to go into the kitchen to wash up or put clothes into the washing machine. I also live in my own prison alone with no help. As the boys are reaching adolescence [sic] their physical strength is increasing and their need for more freedom greater but they can't be left unsupervised so they get frustrated as they are confined to spending time that has to cater to a four year old girl. All our lifes [sic] are confined and limited to what I am capable alone to provide, we need him here with us.'" 71 As noted above, in her May 2000 letter, the appellant's wife said: "I have asked Raymond Hudd for a letter about the impact of [the appellant] being deported on my boys". And at the conclusion of her letter, she added: "Thank you for your patience in waiting … on Ray's (Raymond Hudd's)Letter his phone number is ... ." 72 Referring to the Departmental submission, her Honour said: "The memorandum to the Minister submitted that 'the best interests of Mr Untan's three children would be served if their father remain in Australia'. The memorandum also noted that Mrs Untan had said that she would not accompany her husband overseas if his visa were cancelled and that 'it is reasonable to assume that the cancellation of Mr Untan's visa would cause considerable hardship for his family in Australia'. However, Mrs Untan's letter of 25 May 2000 was neither referred to nor summarised in the material that was placed before the Minister. It was not annexed to that material." 73 Turning next to the position of the report of 28 December 2000 prepared by Mr Hudd (the "second Hudd report") which, it will be recalled, was the subject of par (b) of the particularised lack of procedural fairness alleged in the appellant's amended application, the primary Judge said: "The memorandum to the Minister made no reference to Mr Hudd or to any letter or report provided by him. It appears that in about early July 2000 an officer of the Department asked Mr Hudd to prepare a report concerning the applicant and his children to be used in the decision making process concerning the possible deportation of the applicant. Mr Hudd advised Mrs Untan of the request and that he would prepare a report and send it to the Department. It appears that it was not until late in 2000 that Mr Hudd prepared his report. The extent to which the Department sought to contact Mr Hudd in the interim period is in dispute. On 28 December 2000 Mr Hudd took steps to send his report to the Department by facsimile transmission. There is no evidence that the report apparently sent on that day reached any relevant Departmental file. It did not reach the Minister. Mrs Untan's affidavit evidence was that she had expected Mr Hudd's report to be before the Minister and that if she had known that it was not being considered by the Minister she would have requested the Department to 'chase up' the report." 74 Her Honour noted that the second Hudd report included the expression of these opinions: "It is clear to me that the Untan boys, Joshua and Ion, are strongly bonded to their father. It is because of this that my opinion is that if Mr Untan were deported that act is tantamount to destroying the lives of his sons, his wife and his daughter because it is the thread of hope of re-establishing the family unit that holds the family together. I am further of the opinion that if deported Mr Untan would become dangerously suicidal and that if Mr Untan were not present as his children grew, his sons' behaviours would become increasingly difficult for Mrs Untan to manage which could negatively impact on her mental health." 75 It is convenient to note the contents of the second Hudd report here. 76 In describing the appellant's relationship with his family, Mr Hudd said: "[The appellant] has an Australian family consisting of a faithful wife and three children two twin sons and a daughter who are in constant contact with him by phone and his wife and the children visit him in prison as often as they can. It is a sad reality that much of his children's experience of their father has been negative or has taken place in a negative environment. It is also a sad reality that [the appellant's] childhood and adolescence are peppered with violent and negative experiences and it is difficult for me to fully grasp the extent of his emotional and psychological damage after only two sessions with him. Equally it is difficult for me to speculate on the long-term effect these experience[s], his behaviour, and incarceration would have on his relationship with his wife and children but can only comment on my observations and discussions with his family concerning their perceived relationship with him. It needs to be noted that I have seen both of his sons professionally on many occasions. The reason for their visits was to help them to deal with their acting out behaviour and their current and future relationship with their father. During our sessions they have both independently expressed to me that they could not wait for him to get out of prison. Significantly they both regarded [the appellant] as a good father who got angry at times. They also expressed to me on many occasions their love and admiration for him. During the time I spent with [the appellant] at Long Bay Prison it became apparent to me that he was deeply concerned for his sons' future and well-being. Mrs Untan with whom I am in regular contact, later confirmed these sentiments of bonding." 77 The second Hudd report then proceeded to state the opinion reproduced in her Honour's reasons, and cited above at [74]. It concluded with this summary: "... [The appellant] is not due for release until 2004. In my original report in 1997 I strongly recommended that he receive treatment for his PTSD from an experienced therapist whilst in prison and I note that that recommendation was echoed in both the original judgment and his appeal judgment, it is unclear if those recommendations have been carried out. It is my opinion that if [the appellant] does not undergo appropriate treatment for his complex PTSD it is unlikely that his behaviour will improve on the long term. But it needs to be noted that a part of PTSD treatment is the positive support of his family." 78 Noting that the children "were not directly consulted" about the cancellation, the primary Judge said: "In my view, Mrs Untan had a reasonable and legitimate expectation that her letter of 25 May 2000, or at least its contents, would be drawn to the attention of the Minister before he made his decision concerning the cancellation of the applicant's visa. This expectation arose from the invitation given to her by the Departmental officer to add to the record of her interview. Her letter of 25 May 2000 added significantly to the record of her interview in the ways identified above. It did so particularly by its reference to her need for her husband's help and support and the likely impact that his departure from Australia would have on her family unit and on her personally as the remaining parent of two growing boys with intellectual disabilities." 79 Citing R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 per Lord Slynn at 346, her Honour added: "I further accept that Mrs Untan had a reasonable and legitimate expectation, arising from her own reference in her letter of 25 May 2000 to a letter from Mr Hudd and from the request for a report from Mr Hudd made by the Department of which she understandably learned, that the Minister's decision would not be made in the absence of a report from Mr Hudd without further reference to her. Mr Hudd's report contained an apparently significant expression of expert opinion concerning the family unit and the difficulties which Mrs Untan would face if her husband were not available to share parenting responsibilities with her." 80 Citing Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4], the primary Judge concluded that the appellant's wife "was deprived of a fair opportunity" of presenting to the Minister her opposition to cancellation, the question being whether the statutory power "was exercised in a manner that was procedurally fair". Her Honour felt that, because the appellant's wife was the appropriate person to represent their interests, it was not necessary to consider whether the children were also denied procedural fairness. 81 Her Honour then addressed the question whether a decision made under s 501(2) in contravention of the rules of natural justice was protected from judicial review by the privative provisions of s 474(1) of the Migration Act. Citing NAAV v MIMIA (2002) 193 ALR 449, the Judge said: "... I must proceed on the basis that s 474(1) is intended to expand the jurisdiction of a decision‑maker to overcome even errors that are jurisdictional in nature in the sense discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Section 474(1) provides no licence for decision‑makers to ignore the requirements of the Act. A decision‑maker who acted on the basis that it did provide such a licence would be likely to be found not to have made a bona fide attempt to exercise the power reposed in him or her. It was not, and in my view could not, have been argued in this case that the decision was not a bona fide attempt to exercise the power given to the Minister by s 501(2) of the Act. The decision‑maker recognised that the rules of natural justice apply to a decision made under s 501(2) of the Act and attempted to apply those rules." 82 Her Honour went on to hold that, although the decision to cancel was "made in contravention of a statutory obligation to afford procedural fairness to Mrs Untan, ... the effect of s 474 of the Act is that the decision is nonetheless immune from judicial review". Accordingly, the application was dismissed.

The GROUNDS of appeal AND THE MINISTER'S CONTENTIONS

83 By his amended notice of appeal, now relying upon the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454; 195 ALR 24 (which was given after her Honour's judgment), the appellant bases his appeal on the following propositions: · A breach of the rules of natural justice occurring in the context of s 501(2), where compliance is expressly required, does constitute a jurisdictional error.

· Properly understood, NAAV did not preclude the grant of the judicial review sought here.

· If, on the other hand, NAAV is to be understood as her Honour said, it is wrong and should not be followed.

84 The appellant seeks declarations (1) that the cancellation decision has no force or effect under law and (2) that his visa remains valid.

85 The Minister now contends that the judgment at first instance should be affirmed on grounds other than those relied on in that judgment, those grounds being: · The Minister was under no obligation to afford procedural fairness to the appellant's wife.

· Alternatively, if the Minister was so obliged, he fulfilled that obligation.

86 The Minister accepts that the primary Judge's reasons in respect of the effect of s 474 are inconsistent with the decision of the High Court in S157.

AFFORDING PROCEDURAL FAIRNESS 87 It will be seen that the Minister challenges the premise underlying the appellant's first proposition. Plainly, if he can make out either of the grounds in his notice of contention, the appeal cannot succeed. We do not think it necessary to decide the first of those grounds because the appeal may be conveniently disposed of by reference to the alternative ground. In other words, for the purposes of this appeal, we are prepared to assume (without deciding or expressing any view on the issue) that the Minister was obliged to afford procedural fairness to the appellant's wife. 88 The primary judge concluded that the appellant's wife was deprived of a fair opportunity of presenting to the Minister the case she wished to present because, despite her legitimate expectations, her letter of 25 May 2000 and Mr Hudd's report were not taken into account. Her Honour stated that the letter of 25 May "added significantly to the record of her interview" and that Mr Hudd's report "contained an apparently significant expression of expert opinion concerning the family unit and the difficulties that Mrs Untan would face if her husband were not available to share parenting responsibilities with her." 89 The Minister submits that the appellant's wife was given every opportunity to submit material in support of any disadvantage she and the children would suffer if the appellant were removed from Australia and that she took advantage of that opportunity. He submits that the appellant's real complaint is that the Minister failed to have regard to a relevant consideration and that his reliance on the concept of "legitimate expectation" is a means of making the step from the real complaint to a complaint of procedural unfairness. 90 The issue of procedural fairness and the role of the concept of legitimate expectation in the context of alleged denial of procedural fairness were considered recently by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 77 ALJR 699; 195 ALR 502,the facts of which are similar to those under consideration here. In brief the case concerned a Vietnamese refugee who arrived in Australia at the age of thirteen and was later convicted of a number of serious criminal offences. As a result the Minister decided to cancel his visa on the grounds that he had not satisfied the Minister that he passed the character test in s 501(6) of the Migration Act. 91 Mr Lam had two children who were born in Australia and who, at the relevant time, were living with relatives. Neither the children nor Mr Lam had any recent contact with the mother. Mr Lam had formed a relationship with another woman and was engaged to marry her. During Mr Lam's imprisonment the children were being cared for by a friend of the family, Ms Tran. 92 In the course of preparing a submission for the Minister concerning the possible cancellation of Mr Lam's visa, an officer of the Department wrote to Mr Lam giving him an opportunity to comment on the proposal. Mr Lam responded in writing on 30 October 2000. In addition to his own submissions as to the effect his deportation would have on his children he attached a letter from his fiancée and one from Ms Tran. In her letter Ms Tran wrote of the applicant's relationship with his children and the possible effect on the children of cancelling his visa. 93 It may be that (initially at least) Ms Tran's letter was overlooked for, on 7 November 2000, another officer of the Department wrote seeking contact details for the children's carer(s) saying that the Department "wishes to contact them in order to assess your relationship with the children, and the possible effects on them of a decision to cancel your visa". Mr Lam forwarded the requested contact details on 14 November 2000 but, despite this the Department did not attempt to contact Ms Tran. 94 Mr Lam claimed that the Minister failed to accord procedural fairness to him in not attempting to contact Ms Tran after having notified him of an intention to do so. As a result, he claimed, a relevant primary consideration was not taken into account. Mr Lam did not claim to have relied to his disadvantage on the representation that Ms Tran would be contacted. He did not point to any additional evidence or argument that would have assisted him if the contact had been made. He conceded that had the Department notified him that it would not be contacting Ms Tran he would have no cause for complaint. It was submitted, however, that Mr Lam had been denied a "legitimate expectation" of a fair procedure. As Gleeson CJ noted (at [24]) he rested his case on the proposition that: "if an administrative decision-maker states to a person affected an intention to take a certain procedural step, and fails to do so without warning the person affected of the change of intention, then the result is procedural unfairness warranting certiorari and prohibition." 95 If accepted, this proposition, with its implication that the person affected has acquired a vested interest, would found a breach of procedural justice without regard to the effect of the failure on the substantive issue. It was rejected by each member of the Court; Gleeson CJ at [25], McHugh and Gummow JJ at [106], Hayne J at [113] and Callinan J at [149]. 96 An important aspect of the case is the High Court's view of the role that the concept of "legitimate expectation" has in assessing whether there has been a failure to accord procedural fairness. McHugh and Gummow JJ accepted that by not contacting Ms Tran the Minister had failed to meet an expectation reasonably attributable to Mr Lam. Their Honours (at [105]) commented, however, that this failure did not - "reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case." 97 Their Honours were adamant that the fact of a legitimate or reasonable expectation could not, per se, found a claim for relief. It is necessary to show actual unfairness; see also Gleeson CJ at [34] and Callinan J at [148]. A similar view was expressed by Hayne J who said at [122]: "For present purposes, it is enough to say that even if the Department's letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the applicant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children." 98 This view is consistent with the approach of McHugh J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 312 where his Honour identified the question as being "what does fairness require in all the circumstances of the case?" 99 In this case, the appellant claims that his wife had a legitimate expectation that the letter of 25 May 2000, or at least the contents of it, would be submitted to the Minister before he made his decision about the cancellation of the appellant's visa. He also claims that his wife had a legitimate expectation that no decision would be made until Mr Hudd's report had been received or she had been informed to the contrary. Those expectations are said to have arisen as a result of the letter and the report having been requested by Ms Hilaney; see [18] above. In essence the claim is that there was a mandatory obligation to submit those documents (or their contents) to the Minister unless the appellant's wife was advised to the contrary. This proposition is inconsistent with the High Court's insistence in Lam that disappointing an expectation, however reasonable, will not amount to procedural unfairness unless some unfairness is involved in the disappointment. 100 There is no reason to doubt that the appellant's wife had subjective expectations in terms set out in [97]. The first question, however, is whether those expectations were legitimate or, to use the better term, "reasonable"; Kioa at 563 per Gibbs CJ, Lam at [61] per McHugh and Gummow JJ. 101 The possibility that the appellant might be deported seems to have been initially raised in about 1994. It was then that the appellant's wife was first interviewed by the Department and given the opportunity to provide any additional statement in writing. The appellant's wife took advantage of that opportunity and also had several telephone conversations with the relevant departmental officer; see [12] above. The matter was again raised in 1997 but not pursued; see [15] above. In February 2000 it was raised again and the appellant's wife was once more interviewed. Again she took advantage of the opportunity to make an additional statement by sending the letter of 25 May. The matter was clearly under consideration from time to time for the whole of that year but again was allowed to lapse. In February 2002, the question of visa cancellation and consequent removal was again raised and, for a third time, the appellant's wife was interviewed, this time by telephone. Once again the notes of interview were sent to the appellant's wife and she was given the opportunity to provide further information; see [21] above. 102 Given that history, it is reasonable to see the letter of 25 May 2000 as having been overtaken by the subsequent enquiry just as the appellant's wife's 1994 comments on interview and additional statement were overtaken by the enquiry in 2000. In all three interviews she was asked about the same issues and, in her answers, covers much of the same ground referring to her difficulty in coping with her sons and how they miss their father. In 1994 she comments that the boys miss their father and often cry for him. She states that while she could cope if her husband were deported it would be very hard as her sons are both hyperactive. The notes of her interview in February 2000 were not fully reproduced in the appeal book, nevertheless in her letter of 25 May 2000 the appellant's wife says that her sons are intellectually disabled and stresses how difficult they are for her to handle, as they get physically bigger. She also referred to the difficulties created by the age gap of eight years between the twins and her daughter. In her most recent interview, in February 2002, she referred to needing to stay home to take care of her boys as they are "mentally delayed". She says her children would be affected by their father's deportation and that she needs help with "the kids". She did not supply additional information. 103 As this history shows there were three discrete attempts to explore deportation or removal of the appellant. Each time the matter was raised the same procedure was gone through again. The appellant's wife was interviewed, the interview covered more or less the same ground and each time she was given the opportunity to submit additional material. There was no representation made that submissions to the Department in relation to either of the two earlier attempts would be considered in making the decision in 2002. In those circumstances it was not reasonable for the appellant's wife to assume that the letter of 25 May 2000 would form part of the material presented to the Minister in 2002. 104 For the same reason it is not reasonable for her to assume that the second Hudd report would automatically be relied on without further mention. While the letter of 25 May 2000 shows that she had thought it appropriate to obtain a letter from Mr Hudd the letter was never provided and there is no evidence that she pursued Mr Hudd to provide it. According to her it was much later that she learned from Mr Hudd that he had been asked to provide a report; see [19] above. There is no evidence that officers of the Department were aware that the appellant's wife knew this. It does not appear that she saw the report or asked the Department if it had received it. There is no evidence that the appellant or his wife expected that such a report would be taken into account in making the decision in 2002. In those circumstances it was not reasonable for her, without further mention, to assume that the Department had received the report and would take account of it. 105 If the appellant's wife's expectations in relation to the letter of 25 May 2000 and Mr Hudd's report were not reasonable then there is no breach of procedural fairness in them not being drawn to the attention of the Minister. In any event, to meet the criteria for procedural unfairness laid down in Lam it would be necessary for the appellant to show that the failure to present these documents to the Minister resulted in actual unfairness. For reasons that follow we are of the opinion that this is not the case. 106 The letter of 25 May 2000 raised two main issues, namely the appellant's wife's difficulty in coping with her children without the assistance of her husband and the improvement in her husband's maturity and behaviour following the counselling and psychological assistance he was receiving while in custody. Her difficulties with the children were said to be related to the age gap between her twin sons and her daughter, the sons' intellectual handicaps, their increasing strength with the onset of adolescence and the loss of assistance as a result of her mother's death. 107 While the letter was neither submitted to the Minister nor referred to in the Department's summary of issues for the Minister's consideration, the issues raised in it were canvassed in the submission to the Minister. The summary addresses the welfare of the children and the difficulties that the wife has in coping with them. It mentions comments made by the appellant and his wife at their respective interviews including a reference to the boys' delayed mental development and her need for assistance with the children. The notes of those interviews were annexed to the submission. It concludes that the best interests of the children would be served by their father remaining in Australia and that it is open to the Minister to find that it would be detrimental to the children for their father to be deported; see generally [50] to [61] above. While perhaps not expressed in the way that the appellant and his wife would have preferred, the substance of their concerns in relation to the children is addressed. 108 In relation to Mr Hudd's report of 28 December 2000, the last time that the appellant's wife appears to have mentioned Mr Hudd to the Department is in her letter of 25 May 2000. There is evidence of the Departmental officers following up the matter with Mr Hudd late in 2000 but no evidence that it was received by the Department until well after the Minister's decision was made on 17 July 2002. There cannot be actual unfairness in the Minister's failure to consider a report that the Department did not have; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-5 per Mason J. As far as the content of the report is concerned it was in accord with the submissions put to the Minister. While, as with the letter, it may have expressed the position more strongly than it was in the submission this is not sufficient to ground a plea of procedural unfairness. 109 Both the letter and Mr Hudd's report refer to the appellant's behaviour, to the fact that he suffers from post-traumatic stress syndrome and to the importance of his family and his children to him. All of these issues however are dealt with in the Department's submission to the Minister. In relation to the appellant's behaviour, the submission refers to the pre-release report provided by the Probation and Parole Service, the interviews with the appellant and with his wife, the psychological assessment prepared by Mr Hudd and the comments of the Court of Criminal Appeal concerning mitigating factors in relation to the appellant's offences. 110 It was submitted for the appellant's wife that she was materially disadvantaged by the letter of 25 May 2000 and the second Hudd report not being presented to the Minister, but no practical injustice has been shown to have resulted from this. In the circumstances it has not been shown that there has been any procedural unfairness.

ORDERS 111 For the above reasons the appeal should be dismissed and the respondent's notice of contention should be upheld. At the hearing the parties asked the Court to reserve all questions of costs to be dealt with after the orders on the substantive issues have been made. Accordingly, the proceeding shall be stood over to a date to be fixed for the purpose of making orders as to costs. The parties are to provide to the Associate to Beaumont J by 30 April 2003 an agreed minute of orders as to costs and if agreement has not been reached by that date, a minute of orders for which they respectively contend and brief outlines of submissions in support of those orders. I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Counsel for the respondent: Mr J Basten QC and Mr J D Smith

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