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MIGRATION - Review of personal Ministerial decision - cancellation of permanent residence visa - character of applicant - applicant a refugee - failure by Minister to consider applicant's refugee status - whether the Minister failed to take into account a relevant consideration - whether the Minister summarily disappointed a legitimate expectation - whether decision of the Minister reviewable and invalid notwithstanding s.474 of the Migration Act.

Huynh v Minister for Immigration [2003] FMCA 207 (25 July 2003)

Huynh v Minister for Immigration [2003] FMCA 207 (25 July 2003) Last Updated: 1 August 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA HUYNH v MINISTER FOR IMMIGRATION [2003] FMCA 207 MIGRATION - Review of personal Ministerial decision - cancellation of permanent residence visa - character of applicant - applicant a refugee - failure by Minister to consider applicant's refugee status - whether the Minister failed to take into account a relevant consideration - whether the Minister summarily disappointed a legitimate expectation - whether decision of the Minister reviewable and invalid notwithstanding s.474 of the Migration Act. Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.15, 36, 47, 189, 198, 501, 501E, 501G, 474, 499 Migration Regulations Ayan v Minister for Immigration [2003] FCAFC 7 Department of Immigration and Ethnic Affairs v Yad Ram (1996) 23 AAR 134; 41 ALD 517 Griffiths v Minister for Immigration [2003] FMCA 249 Haoucher v Minister for Immigration (1990) 169 CLR 648 Minister for Immigration v Al Masri (2003) 197 ALR 241 Minister for Immigration v Teoh (1995) 183 CLR 273; 69 ALJR 423; 128 ALR 353 Minister for Immigration v W157/00A [2002] FCAFC 281 Minister for Immigration v Yusuf (2001) 180 ALR 1 Re Minister for Immigration; ex parte Lam [2003] HCA 6 Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 WAJU v Minister for Immigration [2003] FMCA 199 Applicant: CHIA NGHIA HUYNH Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS File No: WZ52 of 2003 Delivered on: 25 July 2003 Delivered at: Sydney, via videolink to Perth Hearing date: 23 May 2003 Judgment of: Driver FM REPRESENTATION Applicant appeared in person Counsel for the Respondent: Mr J Allanson Solicitors for the Respondent: Blake Dawson Waldron ORDERS (1) The Court declares that the decision of the Minister made on 12 December 2002 to cancel the applicant's visa is invalid and of no effect. (2) That a writ of certiorari issue quashing the decision of the Minister. (3) That a writ of mandamus issue requiring the Minister to redetermine the matter the subject of the decision, according to law. (4) That there be no order as to costs. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH WZ52 of 2003 CHIA NGHIA HUYNH Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT Background and introduction 1. Mr Huynh applied in the Federal Court on 3 February 2003 under s.39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") for review of a decision of the respondent Minister made personally on 12 December 2002 and notified to Mr Huynh by letter dated 19 December 2002. The notification was apparently received by Mr Huynh on 7 January 2003. The Minister's decision was to cancel Mr Huynh's residence visa pursuant to s.501(2) of the Migration Act 1958 (Cth). 2. Section 501(2) of the Migration Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. 3. The application contains three grounds of review: a) that the Minister did not make a bona fide attempt to exercise his power pursuant to s.501 of the Migration Act. The particulars are: i) to exercise a power pursuant to s.501(2) of the Migration Act the Minister was first required to determine whether or not the applicant met the character test and secondly, to exercise his discretion whether or not to cancel the applicant's visa. ii) In order to properly exercise his discretion the Minister was required to consider and determine the competing interests for an against the cancellation of the applicant's visa. iii) The Minister failed to have regard to the applicant's reform from his previous criminal behaviour since coming to Western Australia in May 2001 and the beneficial influence of his relationship with Loan Tran and his regular employment in a market garden. iv) The Minister failed to provide reasons for his decision. v) The respondent thereby erred in law and failed to accord the applicant natural justice. b) The decision made was made without jurisdiction and was not authorised by the Migration Act and is accordingly void and of no effect. The same particulars are offered. c) Section 474 of the Migration Act is void and of no effect and thereby does not prevent the applicant from seeking this review. 4. The final ground of review has been superseded by the decision of the High Court in Plaintiff S157 of 2003 v Commonwealth [2003] HCA 2. 5. The application was transferred to this Court by order of His Honour Carr J of 24 March 2003. The applicant was legally represented at the time of the filing of his application but subsequently elected to represent himself. He filed written submissions in the form of a letter dated 7 May 2003. Mr Huynh relied on that submission and also presented oral submissions. Mr Allanson, for the Minister, filed written submissions on 19 May 2003 on which he relied. He also presented oral submissions. 6. I raised with the parties at trial on 23 May 2003 a further issue which had occurred to me. That was whether the Minister was obliged in considering the cancellation of the applicant's visa to consider any obligations Australia may owe to Mr Huynh under the 1951 Convention Relating to the Status of Refugees and the 1973 Protocol. I gave the parties the opportunity to file written submissions on that issue and they did so. 7. Mr Huynh came to Australia with several relatives by boat in 1992. He arrived in Australia on 24 September 1992 and was accepted under the then operative Indo-Chinese Refugee Programme. He was born on 9 March 1975 or 1976 so at the time of his arrival he would have been aged 16 or 17. Following his arrival, Mr Huynh lived with an aunt who acted as a foster mother and had done so for some years. Subsequently, Mr Huynh left home and committed a series of criminal offences. He spent some time in prison. On 12 November 1998 Mr Huynh was given a written warning, which he acknowledged in writing, that he faced deportation if he reoffended. Mr Huynh committed further offences. 8. On 12 August 2002 Mr Huynh was given notice of intention to consider cancelling his visa under s.501(2) of the Migration Act on the basis of his substantial criminal history and ongoing criminal conduct. He acknowledged receipt of those documents. Mr Huynh replied to the notice and he and his partner made submissions in opposition to a cancellation decision. By this stage Mr Huynh had moved to Western Australia and made submissions along the lines he had reformed and was trying to make a new life for himself with his partner in Western Australia, away from bad influences he had experienced in Sydney. Other submissions were made on Mr Huynh's behalf, attesting to his character. The Minister's Department sought further information about Mr Huynh's partner on 14 November 2002 and the Minister made his decision to cancel Mr Huynh's visa on 12 December 2002. Further submissions from Mr Huynh's were received several days after that decision was taken. Mr Huynh was taken into immigration detention on 7 January 2003 where he remains. The legislation 9. Section 501 of the Migration Act provides as follows: Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Note: Character test is defined by subsection (6). (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. Decision of Minister - natural justice does not apply (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). Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; (iii) the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test . Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. Periodic detention (8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention. Residential schemes or programs (9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in: (a) a residential drug rehabilitation scheme; or (b) a residential program for the mentally ill; the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program. Pardons etc. (10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if: (a) the conviction concerned has been quashed or otherwise nullified; or (b) the person has been pardoned in relation to the conviction concerned. Conduct amounting to harassment or molestation (11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though: (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person. Definitions (12) In this section: court includes a court martial or similar military tribunal. imprisonment includes any form of punitive detention in a facility or institution. sentence includes any form of determination of the punishment for an offence. Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa. Note 2: For notification of decisions under subsection (1) or (2), see section 501G. Note 3: For notification of decisions under subsection (3), see section 501C. 10. Section 501G provides that: (1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and (f) if the decision was made by a delegate of the Minister under subsection 501 (1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal: (i) states that the decision can be reviewed by the Tribunal; and (ii) states the time in which the application for review may be made; and (iii) states who can apply to have the decision reviewed; and (iv) states where the application for review can be made; and (v) in a case where the decision relates to a person in the migration zone - sets out the effect of subsections 500(6A) to (6L) (inclusive); and (vi) sets out such additional information (if any) as is prescribed. (2) If the decision referred to in subsection (1): (a) was made by a delegate of the Minister under subsection 501(1) or (2); and (b) is reviewable by the Administrative Appeals Tribunal; and (c) relates to a person in the migration zone; the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that: (d) is in the delegate's possession or under the delegate's control; and (e) was relevant to the making of the decision; and (f) does not contain non-disclosable information. (3) A notice under subsection (1) must be given in the prescribed manner. (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision. Consideration and findings 11. It is not contested that a decision under s.501(2) of the Migration Act contains two elements. First, the Minister must determine whether or not a person meets or fails the character test and, secondly, the Minister has a discretion whether or not to cancel the person's visa. The matters put before the Minister for his consideration are contained in a DIMIA minute dated 2 December 2002 (court book, pp53-68). The minute makes reference to an impressive list of criminal convictions (court book, pp57-58). Mr Huynh took issue before me with three convictions at the Fairfield Local Court on 9 December 1997. There does appear to be an issue whether one of those offences contained in the list (unlawfully in possession of a prescribed restricted substance) tallies with the criminal history provided to DIMIA by the New South Wales Police Service (court book, pp33-34). However, even if all the convictions contested by Mr Huynh were disregarded there was an ample criminal history supporting a decision by the Minister that Mr Huynh failed the character test. 12. Mr Huynh asserts that the Minister failed to have regard to his having reformed following his move to Western Australia in May 2001 and the benevolent influence of his relationship with his partner and his regular employment in a market garden. However, the decision record (court book, pp59-60 at paragraphs 23-26) makes clear that the information provided by or on behalf of Mr Huynh was put before the Minister. No reasons were provided by the Minister for his decision apart from the minute put to the Minister but an implication can be drawn from the fact that the matters raised by or on behalf of Mr Huynh were put before the Minister that he had regard to them: Minister for Immigration v W157/00A [2002] FCAFC 281 per Branson J at [70]. 13. I find that the applicant has failed to establish that the matters put by or on his behalf relating to his character since moving to Western Australia were not considered by the Minister. 14. The applicant's complaint that the Minister failed to provide reasons for his decision is correct in fact. Mr Huynh was only given a copy of the departmental minute setting out what was put before the Minister. That is not on its face a statement of reasons for the Minister's decision. Section 501G of the Migration Act requires the Minister to give to an affected person written notice that sets out the decision. Section 501G(1)(e) requires the notice to set out the reasons (other than non disclosable information) for the decision. Whether the decision record given to an applicant is sufficient to comply with s.501G is a question of fact: Ayan v Minister for Immigration [2003] FCAFC 7 per Allsop J at [56]; Minister for Immigration v W157/00A. The decision record in this case put before the Minister a range of competing factors, particularly bearing upon the exercise of his discretion should he find that Mr Huynh failed the character test. It is a matter of speculation what factors the Minister regarded as determinative of his decision. I find that the departmental minute sent to the Minister in advance of his decision is not a statement of reasons for the Minister's decision. 15. However, the failure to comply with s.501G(1)(e) of the Migration Act does not invalidate the Minister's decision. First, s.501G(4) expressly states that a failure to comply with the section in relation to a decision does not affect the validity of the decision. Secondly, in my view, a failure to comply with this statutory requirement, while it would constitute an error of law within jurisdiction, would not constitute an error of jurisdiction, with or without the privative clause in s.474: Minister for Immigration v Yusuf (2001) 180 ALR 1 at [77]; Plaintiff S157 of 2002 v Commonwealth at [77] - [78]. 16. I find that the failure to give reasons did not invalidate the decision. I note that McInnis FM reached a different conclusion in Griffiths v Minister for Immigration [2003] FMCA 249 at [106] but His Honour's comments appear to be obiter in the context of that decision and it does not appear from that decision that His Honour considered s.501G(4) of the Act in relation to the failure to give reasons. 17. The other matters raised by the applicant go to the merit of the Minister's decision, rather than any issue of legal validity. He tendered at trial a copy of a letter in Vietnamese (exhibit A1) from his aunt (his foster mother) but he was unable to read it to me. I have had it translated but it goes only to the merits of the Minister's decision. Although bad faith was pleaded, nothing was advanced to support that ground of the application. 18. The claim of jurisdictional error as advanced by the applicant also fails. However, the question remains whether a jurisdictional error was committed by the Minister in failing to consider Australia's protection obligations to Mr Huynh's under the Refugee Convention and Protocol, bearing in mind that Mr Huynh arrived in Australia under the then operative Indo-Chinese Refugee Programme in 1992. Nothing was put before me up to trial relating to this question. There was no clear evidence of the precise circumstances of Mr Huynh's arrival and no evidence of whether or not he had lost refugee status that he may have held upon his arrival since his arrival. It is, however, clear from the minute (court book, p64, paragraph 48) that the Minister was informed that Mr Huynh had arrived under the Indo-Chinese Refugee Programme. The Minister was also informed (court book, p64, paragraph 50) that Mr Huynh had not made any claims which require assessment in relation to international obligations. It is correct that Mr Huynh had not made any such claims in relation to the possible cancellation of his visa but if Mr Huynh had been accepted as a refugee when he arrived in Australia and if he had not lost that status up to the time of the Minister's decision then, prima facie, the Minister was obliged to consider Australia's protection obligations to him under the Refugees Convention and Protocol. It should not be up to a refugee to make a claim of refugee status that has already been accepted. I raised these concerns with Mr Allanson during oral submissions and invited written submissions from him. 19. In further written submissions filed on 10 June 2003 Mr Allanson submits as follows: These submissions are addressed to the issue of the applicant's status in Australia at the time of the decision by the respondent to cancel his visa under s.501 of the Migration Act, and the need to consider any claim for protection under the amended United Nations Convention relating to the Status of Refugees 1967 ("the Refugee Convention"). The applicant came to Australia from Vietnam in 1992. He was accepted into Australia under the Indo Chinese Refugee Program (court book, p64 at paragraph [48]). His actual status however needs to be considered in the context of the Migration Act in 1992. The Act then was substantially different. The applicant entered Australia with his aunt on a class 200 Resident visa granted in Kuala Lumpur (court book, p20). That visa stated that subject to migration law, it operated as a permanent entry permit on entry to Australia. Regulations governing that visa class provided in Schedule 2, Part 2 that the visa class 200 was subject to the criteria specified in regulation 101 and to prescribed criteria A, D, E, and H. Regulation 101 provided: 101. The additional criteria in relation to a refugee visa are the following criteria: (a) the applicant is a person subject to persecution; (b) the applicant is living: (i) outside the country of which the person is a citizen; or (ii) if the person is not usually a resident of that country-outside the person's usual country of residence; and (c) the Minister is satisfied that: (i) permanent settlement in Australia is the appropriate course for the applicant; and (ii) such settlement would not be contrary to the interests of Australia. The prescribed criteria were set out in Schedule 1 to the regulations. The criteria in regulation 101 are significantly different from those which now govern the grant of protection visas under s.36 of the Migration Act. They do not, for example, specify that the person fear persecution for a convention reason, nor do they refer to a well-founded fear of persecution in the future. There is nothing in the papers to indicate the nature of any claim for protection that the applicant would seek to make under s.36 and the Refugee Convention. The applicant has members of his family in Vietnam, and travelled to Vietnam in 1997 for two months (court book, p64 at paragraph [48]). When the applicant filled out a questionnaire in response to the notice of intention to consider cancelling his visa, the applicant did not give any response to the question on whether he envisaged any difficulties on returning to his country of origin (court book, p15). The Ministerial Direction No 21 (made under s.499 of the Migration Act) provided to the applicant with the notice, refers to the need to give consideration to any protection claims which are made. Further, the Migration Act specifically provides for the case where a person whose visa has been cancelled or refused under s.501 may wish to claim protection. While s.501E generally does not permit a person to make an application for a visa while still in the migration zone after the cancellation of a visa under s.501, the applicant is not prevented by that section from applying for a protection visa: s.501E (2). He does, however, remain an unlawful non citizen until that application is determined. Given the time that has elapsed since the applicant came into Australia, his return to Vietnam in 1997, the applicant's lack of response to the questionnaire on difficulties in returning to Vietnam, and the lack of any claim for protection in the applicant's response to the notice of intention to consider cancelling his visa, there was nothing to call for any consideration of protection under the Refugee Convention at the time the respondent made the decision. Should the applicant make a valid application for a protection visa the Respondent will be required to consider it under s.47 of the Migration Act. 20. Mr Huynh made no further written submissions in the time I allowed. By letter he requested more time, but I refused that request. A bundle of papers was lodged with the Court by Mr Huynh on 22 July 2003 but have not yet been filed. The documents go to the merits of the Minister's decision. 21. In my view, and notwithstanding Mr Allanson's written submissions, the failure by the Minister to consider the applicant's status as a refugee invalidates the Minister's decision. There are two reasons: first, because the Minister failed to take into account a relevant consideration; and secondly because the Minister summarily disappointed a legitimate expectation that Mr Huynh was entitled to hold. 22. I have previously expressed the view that a failure to take into account a consideration bearing upon the exercise of a power is a jurisdictional error under the general law that will vitiate a decision made under the Migration Act notwithstanding the privative clause in s.474 of the Act: WAJU v Minister for Immigration [2003] FMCA 199 at [12] to [14]. I maintain that view. There is no evidence that the Minister did consider the applicant's status as a refugee. In addition, it is clear from the material that was put before the Minister that the Refugees Convention was not considered relevant. The Department informed the Minister (court book, page 64) that: Mr Huynh has not made any claims which require assessment in relation to international obligations. 23. In addition, Mr Allanson's written submissions state that there was no reason for the Minister to consider Mr Huynh's refugee status. 24. It is true that Mr Huynh did not make any claim of refugee status at the time the Minister was considering the cancellation of his permanent resident visa. However, the Minister was informed by his Department that Mr Huynh had previously been accepted as a refugee (court book, page 64 at [48]). Once a person is accepted as a refugee the person should not have to make fresh claims to refugee status unless the person is called upon to show cause why refugee status should not be withdrawn, or unless a fresh claim is called for after refugee status has previously been lost. The protection afforded by the Refugee Convention is not a guarantee of permanent protection. Circumstances can change. However, a decision maker making a decision inconsistent with refugee status that has previously been accepted must at least consider whether that refugee status still applies. 25. In this case, on the basis of the evidence before me, there has simply been no consideration at all by the Minister of Mr Huynh's status as a refugee. I place no significance on the changes to Australia's domestic law that have occurred since 1992. It does not matter that Australia's refugee programme was different then from what it is now. Australia's obligations under the Refugee Convention and Protocol have not changed. The practical effect of changes to the Migration Act made in 1994 was to consolidate what was a two stage process (application for refugee status and an entry permit) into one (application for a protection visa). It is irrelevant to the obligations arising under the Convention what form of visa is granted to a refugee under Australian domestic law. The important question is whether Mr Huynh got a visa because he was accepted as a refugee. He did. The Minister has not decided whether Mr Huynh has ceased to be a refugee. He has not considered that issue at all. He has simply cancelled Mr Huynh's visa on character grounds. What is important, indeed critical, to bear in mind is that the Minister, in cancelling the visa, was doing more than that. He was also affecting Mr Huynh's prior recognition of refugee status under the pre 1994 legislation. In order to understand the significance of that it is necessary to consider the scheme of the Act in its present form. 26. The scheme of the Migration Act renders it necessary for the Minister when considering the exercise of his powers under s.501 to consider whether a person still has claims to refugee status if the person has previously been accepted as a refugee. It is a relevant and necessary consideration to the exercise of the power because the cancellation of a visa is a precursor to the removal of a person from Australia. Upon cancellation of the visa the former visa holder becomes an unlawful non citizen (s.15 of the Migration Act) who must be detained (ss.189 and 196) and removed from Australia as soon as practicable (s.198). However, under Articles 32 and 33 of the Convention, Mr Huynh, having previously been accepted as a refugee and having not been found to have lost that status, could not be removed from Australia. At the very least he could not be returned to Vietnam. Accordingly, a failure by the Minister to address the issue of refugee status raises the prospect that Mr Huynh could be deported in contravention of Australia's international obligations, or be held indefinitely in detention, which would be unlawful: Minister for Immigration v Al Masri (2003) 197 ALR 241. 27. The failure to address the issue of refugee status was a failure by the Minister to consider a relevant and essential issue bearing upon his power to cancel Mr Huynh's visa. The failure constitutes a jurisdictional error and invalidates his decision. 28. In addition, the Minister's failure to consider Mr Huynh's refugee status is a summary disappointment of a legitimate expectation that Mr Huynh was entitled to hold that his status would be considered. Mr Huynh did not have to make claim under the Refugee Convention as he had previously been accepted under the Convention. For that reason, it is not open to the Minister, in seeking to avoid the legal consequences of his failure, to argue that Mr Huynh could apply for a protection visa following the cancellation of his permanent resident visa. He should not have to do so unless the Minister has determined that the refugee status previously granted to Mr Huynh has been lost. In my view, the obligation not to summarily disappoint a legitimate exception is an incident of procedural fairness, the breach of which will invalidate a decision under the Migration Act: Haoucher v Minister for Immigration (1990) 169 CLR 648 per McHugh J at 678-682. The ratification of an international convention is an adequate foundation for a legitimate expectation, in the absence of any statutory or executive indication to the contrary: Minister for Immigration v Teoh (1995) 183 CLR 273; 69 ALJR 423; 128 ALR 353. At 365 Mason CJ and Deane J held in relation to the Convention on the Rights of the Child: ...ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the Convention and treat the best interests of the children as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. 29. Shortly after the Teoh decision, on 10 May 1995, the Minister for Foreign Affairs and the Attorney-General issued a joint statement "on behalf of the government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law". Whether that statement has any legal effect has been doubted: Department of Immigration and Ethnic Affairs v Yad Ram (1996) 23 AAR 134; 41 ALD 517. See also: McKenzie, "What Have We Done With The Refugee Convention?" (1996) 70 ALJ 813. The Refugee Convention has been enacted into Australian domestic law in the Migration Act. 30. The decision in Teoh has been reconsidered by the High Court in Re Minister for Immigration; ex parte Lam [2003] HCA 6. While that decision does appear to qualify, to some extent, the Teoh decision, the basic principles adopted by the High Court in Haoucher were confirmed. In addition, the government statement referred to above (whether or not it has any legal effect), coupled with the domestic adoption in Australian law of the Refugee Convention reinforces those principles. Further, with reference to the decision in Lam, the failure by the Minister to consider Mr Huynh's status as a refugee produced procedural unfairness in fact. Mr Huynh reasonably expected that, as a person previously accepted by this country as a refugee, the benefits flowing to him from that status would not be removed from him without him being called upon to justify a continuation of that status. In fact, it was left up to Mr Huynh to make a fresh claim to refugee status. That was unfair. 31. Natural justice (procedural fairness) applies to decisions made under s.501(2). Mr Huynh, having been accepted as a refugee by the Commonwealth, acquired a status under the Refugee Convention that he could reasonably expect would be considered by the Minister before exercising his power under s.501(2) 32. In the light of my findings on the invalidity of the Minister's decision, Mr Huynh is entitled to appropriate relief. I will make a declaration and will also grant prerogative relief. Mr Huynh represented himself in the proceedings before me and is not entitled to a costs order, noting that court fees have been waived and there do not appear to be any other disbursements incurred by him. I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM Associate: Date: 25 July 2003
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