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Cases

1 This is an appeal from a judgment of a single Judge of this Court.

2 The appellant is a citizen of New Zealand who last arrived in Australia on 22 September 1990. On 1 September 1994 he was granted a special category visa by operation of law under the provisions of the Migration Reform Act 1992 (Cth).

3 The appellant lives in a defacto relationship with Ms Jeanette Peacock. There is one child of that relationship, Dylan, who was born on 14 March 1994.

4 On 3 September 1999, the appellant was sentenced to a minimum term of nine months gaol and an additional term of three months on three counts of larceny. An issues paper was placed before the Minister regarding the possible cancellation of the appellant’s visa in the light of those convictions. On 26 April 2000 the Minister’s delegate exercised his discretion not to cancel the visa at that stage on the basis that the appellant be given a very strong warning that any further criminal activity would lead to the matter being reconsidered.

Vaeula v Minister for Immigration & Multicultural & Indigenous Affairs [200

Vaeula v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 147 (28 May 2004)
Last Updated: 31 May 2004

FEDERAL COURT OF AUSTRALIA


Vaeula v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 147

























KENNETH HENRY VAEULA V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2270 OF 2003




BEAUMONT, CONTI & CRENNAN JJ
28 MAY 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2270 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: KENNETH HENRY VAEULA
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: BEAUMONT, CONTI & CRENNAN JJ
DATE OF ORDER: 28 MAY 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.








Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2270 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: KENNETH HENRY VAEULA
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: BEAUMONT, CONTI & CRENNAN JJ
DATE: 28 MAY 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal from a judgment of a single Judge of this Court.

2 The appellant is a citizen of New Zealand who last arrived in Australia on 22 September 1990. On 1 September 1994 he was granted a special category visa by operation of law under the provisions of the Migration Reform Act 1992 (Cth).

3 The appellant lives in a defacto relationship with Ms Jeanette Peacock. There is one child of that relationship, Dylan, who was born on 14 March 1994.

4 On 3 September 1999, the appellant was sentenced to a minimum term of nine months gaol and an additional term of three months on three counts of larceny. An issues paper was placed before the Minister regarding the possible cancellation of the appellant’s visa in the light of those convictions. On 26 April 2000 the Minister’s delegate exercised his discretion not to cancel the visa at that stage on the basis that the appellant be given a very strong warning that any further criminal activity would lead to the matter being reconsidered.

5 On 2 May 2000, a warning letter was sent to, and received by, the appellant (whilst he was in Silverwater Correctional Centre) in these terms:

‘Your conviction at Bankstown Local Court on 3 September 1999 for LARCENY rendered you liable to the cancellation of your visa pursuant to section 501 of the Migration Act 1958.

On 26 April 2000 the Minister’s delegate decided on this occasion not to order the cancellation of your visa on the basis of this conviction. Nevertheless you are warned that any further conviction will lead to the question of visa cancellation being reconsidered. Disregard of this warning will weigh heavily against you in the event of your case being re-opened.

In conclusion the Minister’s delegate made the following comment:

"I have decided not to cancel Mr Vaeula’s visa at this stage, but ask that he be given a very strong warning that any further criminal activity will lead to the matter being reconsidered. He has the opportunity to go straight. If he re-offends and his visa is cancelled he will only have himself to blame."

I have enclosed a copy of section 501 of the Migration Act 1958. I suggest that, in your best interests, you read this document carefully.’

6 Section 501 of the Migration Act 1958 (Cth) (‘the Act’) deals with the cancellation of a visa on ‘character’ grounds. Section 501(2) provides that the Minister may cancel a visa if (a) the Minister reasonably suspects that the person to whom the visa was granted does not pass the ‘character test’; and (b) the person does not satisfy the Minister that the person passes that test.

7 The ‘character test’ is defined by s 501(6) which provides that a person does not pass that test if, inter alia, having regard to the person’s past and present criminal conduct, the person is not of good character (s 501(6)(c)(i)), or the person has ‘a substantial criminal record’, as defined by s 501(7) (s 501(6)(a)), which provides that a person has such a record if, inter alia, the person has been sentenced to a term of imprisonment of twelve months or more (s 501(7)(c)).

8 However, between 13 June 2000 and 8 July 2001 the appellant committed several further offences. On 17 January 2002, he was remanded into custody. On 7 February 2002, the appellant was sentenced to a term of imprisonment of 16 months (on a charge of break and enter, with intent to steal) to commence on 17 January 2002.

9 On 16 October 2002, a Notice of Intention to Consider Cancellation of a Visa was served on the appellant, on which he was invited to comment, reference being made to s 501(6)(a) – substantial criminal history, and to s 501(6)(c)(i) – past and present criminal conduct. On 26 October 2002, he completed a questionnaire which had been sent to him with the notice. The questionnaire contained, inter alia, the following question and the appellant’s response:

‘If your visa were cancelled, will this affect anyone else and what will be the effect?’

‘My son, he need a father, I love him so much. I don’t want to neglect Dylan, I want to watch my son grow up. Be a father to him. Just a chance.’

10 On 20 January 2003, a submission, entitled ‘Issues for consideration of possible cancellation of special category visa under s (501(2) of the ... Act ...’ (‘the Issues Document’), was prepared by the Department for the Minister on the possible cancellation of the appellant’s visa. Under the heading ‘The best interests of the child’ the following appeared:

‘[42] Article 3.1 of the Convention on the Rights of the Child (CROC) states:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
[43] Mr Vaeula in his submission has stated that he has one child, a son aged eight years. Mr Vaeula stated that his son would be affected by a decision under s.501(2).
[44] Paragraph 2.16 of the Minister’s Direction sets out the factors to which the decision maker should have resort when considering the best interests of the child.

[45] [Mr Vaeula’s response (at [9], above) was restated.]

[46] Mr Vaeula’s son, Dylan Peacock, is in the custody of his mother, Jeanette Peacock.

...

[47] It is open to you to find from the information given and the fact that there appears to be little contact with his child that the cancellation of Mr Vaeula’s visa and his removal from Australia may not have an immediate detrimental effect on his child. However, should Mr Vaeula be removed from Australia, and custody arrangements remain the same so that his son does not accompany him, this may hinder any future ability to develop and/or foster a father-son relationship.’
11 Under the heading ‘Other considerations’ the following appeared:

‘[50] Mr Vaeula goes on to say that if he has to leave Australia it would have an effect on his son and himself, he goes on to say that his son needs a father and he wants to watch his son grow up. He states that whilst some members of his family reside in New Zealand, he has no contact with them. He states it was his choice to come to Australia and that he loves the people and the country and that there is nothing for him in New Zealand. Mr Vaeula further states that he last visited his father in Brisbane in 1994. He claims that he has been in a defacto relationship with an Australian citizen for twelve years.

[A copy of the submission from Mr Vaeula is at Annex E to the Issues Document. (Relevant extracts from Annex E are cited below.)]
...

[53] As the Department has not received any submission from Mr Vaeula’s family, a thorough assessment of the effect visa cancellation and removal may have on his family could not be made. In view of the fact that Mr Vaeula has been living in Australia over 10 years, it is reasonable to assume that he has established some social networks in Australia. It is open for you to find that on the basis of the given information, cancellation of Mr Vaeula’s visa and his removal from Australia could cause some degree of hardship on himself and on his family and friends.’

12 On 29 January 2003, the Minister exercised his discretion under s 501(2) of the Act and cancelled the visa. The Minister’s cancellation decision, which was appended to the submission, was expressed as follows:

‘MINISTER’S DECISION ON CANCELLATION UNDER S.501(2)

PART E: DECISION

[54] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Vaeula’s comments, and have decided that:

...

I reasonably suspect that Mr Vaeula does not pass the character test and Mr Vaeula 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.’

13 On 25 September 2003, the appellant, then acting without representation, filed an application for judicial review. The grounds of review alleged that the best interests of the appellant’s son were not taken into account by the Minister. In particular, the appellant claimed first, that the Minister had failed to address the question as to what was in the best interests of his son; and had instead left open the more limited question of whether the appellant’s removal to New Zealand would be detrimental to his son. Secondly, the appellant claimed that the decision was in breach of the rules of natural justice in that the Minister did not inform the appellant that he did not propose to have regard to the best interests of his son.

14 When the matter first came before the primary Judge for hearing, the appellant was unrepresented. An application was made (and granted) for adjournment of the hearing so that the appellant could obtain legal representation. However, this did not occur and on the adjourned date, the hearing proceeded with the appellant still unrepresented.

THE DECISION OF THE PRIMARY JUDGE

15 His Honour first noted that the appellant’s first ground for review was apparently based upon the Full Federal Court decision in Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 (‘Long’s Case’); 76 ALD 610.

16 (In Long, the Minister had exercised his discretion to cancel a visa under s 501(2). Mr Long had accepted that he was deemed, under s 501(6), not to be of ‘good character’, but contended first, that the Minister in exercising his discretion under s 501(2), did not take into account the best interests of his children; that is, he argued that the Minister had failed to take into account a relevant consideration, which constituted a jurisdictional error; and secondly, (Mr Long contended) that the Minister had failed to accord him natural justice by not taking into account the best interests of his children as a primary consideration, without giving him notice of his intention not to do so. The Full Court held (at [55]) that the inference should be drawn that the Minister ‘found that the cancellation ... and ... removal ... would not have a detrimental effect on [the] children and that [the Minister] ... did not reach the stage of considering what were [their] best interests ...’. Accordingly, jurisdictional error was identified by departure from the standard laid down in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (‘Teoh’s Case’), and judicial review was granted.)

17 However, the primary Judge rejected any analogy with Long’s Case. His Honour said (at [8]):

‘... The issues document does not explicitly state what decision would be in the best interests of the [appellant’s] child. However, the document placed before the Minister the [appellant’s] assertion that it was in the best interests of his son to have a father/son relationship with him and that advancement of that best interest would be hindered if the [appellant’s] visa was cancelled. It is at least implicit in the passages from the issues document, ... quoted earlier, that the best interests of the child favoured a decision not to cancel the [appellant’s] visa. It would be unrealistic in my view to conclude that this was not appreciated by the Minister.

This is not a case like Long’s Case where the terms of the issues document are such that an inference could and should be drawn that the Minister did not reach the stage of considering what were the best interests of the child. It is true that the issues document in the present case does address the more limited question of whether the [appellant’s] removal to New Zealand would be detrimental to the son, but it also addresses the broader question of where the child’s best interests lie.

The material available to the respondent in the issues document contains sufficient information to enable the respondent to identify where the best interests of the child lay, and the issues document drew attention to the provision on the Convention on the Rights of the Child, which rendered the best interests of the child a primary consideration. Having regard to the nature and content of the material that was apparently before the Minister at the time he made his decision, it cannot be positively concluded that the best interests of the [appellant’s] son were not taken into account: see Minister for Immigration & Multicultural Affairs v W157/00A (2002) 72 ALD 49 at 68 and 74.’

18 (In W157/00A, Branson J (with the agreement of Goldberg J at 69 and of Allsop J at 75) said (at 68):

‘[77] The issues document does not explicitly identify the decision that would be conducive to the best interests of the respondent’s children. This is the appropriate starting point for an administrative decision-maker who is required to make a decision affecting a child where the best interests of the child are a primary consideration: Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133. However, in this case, as the content of the issues document reflects, everything pointed towards the best interests of the children favouring a decision not to cancel the respondent’s visa. It would, in my view, be unrealistic to conclude that this was not appreciated by the minister.

[78] Having regard to the nature and content of the material that was apparently before the minister at the time that he made his decision, I do not consider that it can be concluded either that he failed to read and consider that material or that the material was insufficient to enable him to take into account the best interests of the respondent’s children as a primary consideration. In the circumstances, while the failure of the minister to comply with the statutory obligation placed on him to give the respondent a written notice that sets out the reasons for his decision means that it cannot be known whether the minister did or did not take into account the best interests of the respondent’s children as a primary consideration, it is, in my view, not open to the court positively to conclude that he did not do so.’)

19 Accordingly, the primary Judge held that, since the appellant bore the onus in this regard, the judicial review application failed.

THE GROUNDS OF APPEAL TO THE FULL COURT

(a) The initial grounds

20 The appellant remained unrepresented in drawing his notice of appeal. Apparently with some professional assistance, he filed the following grounds of appeal:

‘(a) The [judgment] handed down failed to address the question as to what was in the best interest of the applicant children but rather left open (without determining) a different and more limited question namely [whether] the applicant[’s] removal to N.Z. would be detrimental to the applicant’s children.
(b) The decision handed down on the 28 November 2003 was made in breach of the Rules of Natural Justice in that the [judgment] did not have regard or take into account the best interest of the applicant’s children.
(c) "The Natural Justice Argument."’
21 For reasons which will appear, the appellant’s grounds of appeal have been significantly amended since the appeal was instituted.

(b) Counsel’s first argument

22 Counsel was briefed to appear for the appellant on the appeal, and on his client’s behalf, filed the following Argument shortly before the hearing of the appeal:

‘2. From the material available to the Appellant, it appears that the Respondent did not seek to adduce any evidence to support a contention that he took into account the best interests of the child as a primary consideration for his decision, other than to tender [a] bundle of documents. ...

3. The Appellant contends that there is nothing on the face of the document comprising the Issues [Document] ..., nor in the document titled Minister’s Decision on Cancellation under s 501(2) dated 29.1.03 which permitted an inference that the Respondent was able to, let alone did take into account as a primary consideration the best interests of the child of the Appellant.

4. Furthermore, it is also contended that (a) there is no indication from anything whether written or printed in the Issues [Document] which suggests or permits an inference that the Respondent in fact had those papers before him, or (b) that he had any regard to or considered the United Nations Convention on the Rights of the Child in particular Art 3.1 ("the Convention"), and (c) without evidence to the contrary, it was not open for His Honour to make the finding ... adverse to the Appellant based on an assumption that the "material was available to the Respondent".

5. The issue which His Honour ought to have considered, but failed to do so, was what evidence was provided by the Respondent as to the material which was before the Respondent for the purpose of making his decision, in particular concerning the best interest of the child of the Appellant.

6. The Appellant was not invited by His Honour to address the Court an[d] the question of either the admissibility of the material which was tendered ... nor does it appear from the transcript that His Honour sought from counsel appearing for the Respondent any submissions as to what evidence there was to establish what material was before the Respondent for the purpose of considering the best interests of the children.

7. It is submitted that it was assumed by counsel for the Respondent that the material tendered was sufficient to enable to Court to accept that (a) the Issues [Document] was presented to the Respondent, and (b) that that material was relied upon for the purpose of weighing the issue concerning the character test against or with the best interests of the child.

8. It is contended that the Appellant and his de facto wife Ms Peacock as the parents of the child, and the child as an Australian citizen had a legitimate expectation that the Respondent, being the sole decision maker, ought to have adduced evidence and that he had ample opportunity to do so, from which it could be found, if it was the case, that the force of the consideration of the best interests of the child were outweighed by the Appellant’s failure to pass the character test.

9. The Appellant shall also contend that His Honour erred in his decision that the Appellant bore the onus of proof and that it was not discharged, because the evidentiary onus upon the Respondent, in light of his failure to set out reasons under s 501G(1)(e), was to satisfy the Court that:-

A. he had before him, prior to making his decision, material (the Issues [Document]) from which he was able to treat the best interests of the child of the Appellant as a primary consideration; and
B. to identify that material, and those parts of it which he took into account to determine whether, for the purpose of his decision, the bad character of the Appellant outweighed any other consideration, in particular the best interests of the child; and
C. to demonstrate that his decision was made consistent with the legitimate expectations of the Appellant and his de facto wife; and
D. unless there is evidence to the contrary, which there was not, it was open for His Honour to have found that the Respondent did not reach the stage of considering what was the best interests of the Appellant’s child.
10. It shall be submitted that the reasoning of Justice Carr in Long’s case in respect of the failure of the Respondent to adduce any evidence as to his assessment of the best interests of the child, permitted the inference that the Respondent did not reach the stage of making a consideration of those interests.’

23 (In Long’s Case, Carr J was a member of the Full Court, with whose reasons Merkel J and Hely J agreed.)

Further argument for the appellant

24 Noting that since filing his previous submissions, the transcript of the proceedings before the primary Judge had been obtained, the appellant’s counsel filed the following further submissions:

‘1. [T] here is nothing recorded in the transcript concerning the tender in evidence before [the Judge] of the documents which comprise the issues [document] and the record of the Respondent’s decision which was the subject [of] the review. [The relevant text of the transcript is set out below.]

2. [A]t page 5, [line] 5 of the transcript counsel appearing for the Respondent is recorded as referring to a document "that was placed before the Minister has a heading at page 17 in the relevant documents and it continues on with different headings which were placed before the decision maker and when one gets to page 25 we have the heading Best Interests of the Children".
3. [T]hose submissions about the document placed before the Minister are not supported by any evidence whether in the form of an affidavit or otherwise.

4. [T]he page numbers recorded in the transcript do not correspond with any of the page numbers in the appeal book which contains a copy of the Issues [Document].’

25 (We should note, at this stage, that references made by counsel for the appellant in this and subsequent paragraphs are confusing and have, in our view, no ultimate significance here. The question for us is to consider what was before the primary Judge in the form of the Green Book (see below). Although we have reproduced the assertions made by counsel about the appeal book, we do so for completeness only.)

26 The submissions continued:


5. [T]he reference in [line] 10 page 5 of the transcript to paragraph 45 "at about point 5" and then the reference to paragraph 46 "and over the page, page 26" appears to be a reference to the paragraph [45] and [47] in page 33 of the appeal book, but the reference to page 26 does not appear to be a reference to a page copied in the appeal book.
6. [T]he page numbering for the issues [document] at the top of the page commences with pages 1 and runs to page 17 and they are supposed to be the sequential numbering of the "document that was placed before the Minister".

7. [T]he numbering on the pages in the appeal book of the "issues [document] including the copy of the record of the decision (which in the appeal book is at page 37) does not equate with the numbering of the pages recorded between [lines] 5 to 20 [of page 5] in the transcript;

8. [T]hat leads to the proposition or inquiry as to whether the documents before His Honour were the same as the documents in the appeal book, and whether the documents before His Honour were in fact the documents which were asserted to have been placed before the Respondent;

9. n those circumstances how could any inference be drawn as to what, if any documents were placed before the Respondent, let alone trying to determine whether the Respondent placed any weight on what was recorded in issues papers, if such documents were before the Respondent for the purpose of his decision;

10. t shall be contended that there was no evidentiary basis for the submissions made in [lines] 15 to 20 concerning the allegation that the Respondent took the best interests of the children into account.

l 1. t shall also be contended that there is nothing on the face of the documents (the issues [document] and the decision) which would permit any inference that those documents in any way bore a relationship with each other.

12. [T]he [respondent’s] decision (appeal book page 37) has the printed page number 16, but it is referred to as PART E. There are no parts A to D inclusive in the issues [document] or anywhere else in the documents in the appeal book, secondly, the printed form which is the record of the decision, has its first paragraph numbered [54] but that is not a sequential number related to any of the other pages in that "bundle" because the last paragraph in the issues [document] is numbered [56] (see page 35 in the Appeal Book) and page 17 (at page 38 of the appeal book) is a signature page with three signatures each dated 20/1/03, but the decision of the respondent is in page 16 (page 37 of the appeal book);

13. [N]one of those anomalies were pointed out to His Honour when the submissions recorded in [lines] 5 to 20 were made.

14. It shall also be contended that in light of examining the transcript:-
A. when regard is had to the discussion between the Appellant his de facto wife and His Honour recorded in the transcript between pages 2 [line] 5, to page 4 [line] 5, it is obvious that the Appellant was in no position to either understand the nature of the proceedings and he was not therefore able to run his case;

B. that [h]is Honour did not get the assistance which usually flows when counsel or a solicitor represents an applicant;

C. the Appellant was not given any assistance as a self represented litigant in respect of the issue in this appeal concerning the lack of evidence from the Respondent about what if any material was before the Respondent for the purpose of considering a primary issue of the best interests of the child.
15. n respect of the contention in paragraph 14.C above the Appellant shall refer to the decisions in Platcher v Joseph [2004] FCAFC 68 (26 March 2004) at pages 23 paragraphs 104 to paragraph 105 page 25 and Minogue v HR & EOC 1999 166 ALR 129 @ 136 [26] TO 137 [28].’
27 (In Platcher, Tamberlin and Emmett JJ, summarising the principles explained in the authorities, including Minogue (at [104] – [105]), said (at [106]) that –

‘...while in some circumstances it may be appropriate that some assistance should be given to an unrepresented litigant, the Court must ensure that an advantage is not conferred on the unrepresented party. What is appropriate in each case depends on particular circumstances.’

We will return to Minogue and Platcher below.)

The supplementary notice of appeal

28 At the commencement of the hearing of the appeal, counsel for the appellant handed up a supplementary notice of appeal, which stated, as grounds 1 and 2, the previous grounds (i.e. (a) and (b), see [20], above). Those original grounds were not pressed before us, but reliance was place on the following additional grounds:

‘AMENDED GROUNDS:

3. His Honour was in error in either assuming or inferring ... that at the time upon which the Respondent made the decision on 29th January 2003 recorded at page 37 of the Appeal Book, that he either possessed, read or considered the contents of the document titled Issue for Consideration of Possible Cancellation of Special Category Visa ....

4. His Honour ought to have found or inferred:

A. that there was no evidence from the Respondent from which it could be determined (by inference or otherwise) that at the time of making his decision the Respondent gave any consideration to the best interests of the child; and

B. that there was ample opportunity for the Respondent to have provided evidence that, for the purpose of the exercise of the power conferred under s501(2)(b), he had before him the documents referred to as Issues for Consideration of possible cancellation of special category visa under s501(2) of the Migration Act 1958 (copies of which are in pages 22 to 36 of the appeal book, which shall be referred to hereafter as "the issues document"), or any other documents in which there was information from which he made an assessment of the best interests of the child, and, if it was the case, that he found in the circumstances that the interests of the child were outweighed by the actual circumstances which gave rise to his decision that the Appellant did not pass the character test; and

C. that there was no evidence upon which it was open to make a finding that the issues document was available to the Respondent at the time when he made the decision to cancel the Appellant’s visa.

5. His Honour ought to have found:

A. that s501G(1)(e) of the Migration Act obliged the Respondent to provide reasons for his decision and that he failed to do so; and
B. if the Respondent had the issues document before him (which is not conceded) for the purpose of exercising his power under s501(2)(b), and he gave any consideration to the advice in paragraphs [42] and [47] therein, it propounded the incorrect test to be applied in respect of the child of the Appellant, the primary consideration being the best interests of the child and not whether the removal of the Appellant from Australia "may not have an immediate detrimental effect on his child"; and
C. that there was therefore a denial of procedural fairness.’
29 Counsel for the Minister submitted that the appellant should not be permitted to depart from the case sought to be made before the primary Judge, especially as factual issues were raised, on which the Minister could have called evidence. Neither party sought any adjournment of the appeal.

THE PROCESS ADOPTED IN THE PROCEEDINGS BEFORE THE PRIMARY JUDGE

30 In order to understand the arguments now advanced on behalf of the appellant, it will be necessary to explain, in some detail, the process that was adopted in the proceedings before the primary Judge.

31 Provision is made by Notice to Practitioners (NSW) issued by the District Registrar in Migration matters dated 13 August 2002 (‘the Migration Practice Direction’) for the preparation of a ‘Bundle of Documents’ in proceedings under s 39B of the Judiciary Act 1903 (Cth) (as these were) as follows:

‘The Minister will, through his or her solicitors, prepare for the Court a bound or stapled bundle of documents relevant to the application. The bundle of documents will consist of legible photocopies of the documents in the possession or power of the Minister including the decision under review which, from the application and any particulars provided, appear to be relevant to the review. That bundle of documents will not, however, include a copy of any transcript of proceedings before the Migration Review Tribunal or Refugee Review Tribunal. The bundle of documents (usually called the "Green Book" as it has a green cover) will:

• be arranged as near as practicable in chronological order from the earliest to the latest;
• have each page numbered consecutively;

• have an index attached to its front containing a brief description of each document; and
• be filed in the registry with a copy served on the applicant as soon as possible after the Department receives a copy of the application and supporting affidavit.

At the first Directions Hearing in the proceedings, the Court may give directions with respect to the filing of any further documents.’

32 It appears that no such direction was made, or sought by either party, here. In particular, no direction was sought by the appellant that the Green Book produced here should, or should not, contain any specific document.

33 The Green Book (described as ‘Relevant Documents’) was, it seems, provided to the appellant before the hearing at first instance. The contrary was not suggested by his counsel. The book was tendered before us on the appeal (as Ex "1"). It appears that, in accordance with the Court’s ordinary practice, the Green Book was treated as part of the evidence before the primary Judge.

34 The ‘Index to Relevant Documents’ stated:

‘No. Document Date Page No.

1. Notice of Intention to Consider Cancelling a Visa under s. 501(2) of the Migration Act (attachments not reproduced) 16.10.02 1





2. Receipt of Documents signed by applicant 16.10.02 5





3. Probation and Parole Service Immigration Report relating to applicant and attached earlier pre-sentence report 11.12.02 6





4. File note regarding applicant’s failure to attend to receive probation and parole report 17.12.02 13





5. Submission to Minister – Issues for Consideration of Possible Cancellation of Special Category Visa under s. 501(2) of the Migration Act and decision record and annexures:

A – Record of applicant’s movements

B – Applicant’s visa cancellation submission and warning of liability dated 2 May 2000 (one document not reproduced pending obtaining permission to disclose from issuing agency)

C – Applicant’s criminal history

D – Notice of Intention to Consider Cancelling Visa dated 16.10.02

E – Applicant’s response to Notice

F – Magistrate’s comments on sentencing

G – Report from Probation and Parole dated 11.12.02 29.1.03 14






31


33






99

99


101

111


114





6. Notice of visa cancellation
118





7. Visa Cancellation receipt confirmation 24.9.03 signed by applicant’
121

35 In the light of the argument now advanced by counsel for the appellant, reference should be made to the text of the Green Book under Item 5 (that is, between pp 14 and 31).

36 In this part of the Green Book appears the Issues Document, a seventeen page document, addressed to the Minister and referable to the appellant.

37 Paragraph [1] of the Issues Document stated that its purpose was to seek the Minister’s decisions on whether the appellant passed the character test; and, if not, whether his visa should be cancelled. The appellant’s personal details were then stated. The grounds for consideration were then stated. The document referred next to ‘Discretion’, mentioning the ‘Protection of the Australian Community’, including the ‘seriousness and nature of conduct’. Later (at p 25 of the Green Book) the ‘Best Interests of the Children’ were considered (at [42] – [47]) (see above). ‘Other considerations’ were stated including [50], cited above.

38 (At Annex E appears a statement (at p 102 of the Green Book) responding to the Department’s questionnaire in respect of the appellant’s son as follows:

‘What are the current custody arrangements for your children?

Custody is to the mother of my child – Dylan Peacock.
Janette Claire Peacock.

How often do you see your children?

I spend as much time with my son. Writing to him, to let him know that I still love him.

Prior to imprisonment what was your involvement in their daily lives (schooling, sport etc)?

Make his lunch for school. Walk him and pick him [up] after schooling. Give him love and support to the best of my knowledge.’

39 Later in Annex E (at p 109 of the Green Book), the appellant made the statement, cited above: ‘My son, he needs a father ...’.)

40 Reverting to the Issues Document, at p 16 appeared the Minister’s decision, dated 29 January 2003. At p 17 appeared the signatures of the Departmental officers who prepared and cleared the Issues Document.

41 As mentioned, the appellant appeared in person at the hearing before the primary Judge.

42 At the commencement of the proceedings, his Honour said:

‘The issue which I have to determine in these proceedings is whether the Minister committed, if I can put it shortly, an error of law. It’s not my prerogative to engage him in a merits review of what should happen. All I can do is to decide whether the Minister acted lawfully or whether he didn’t.’

43 The appellant handed a note to the Judge (then marked as an exhibit) as follows:

‘Your honour, I come before you and the court today to plead for a chance not only to be allowed to become a part of this country and its people, but to also be allowed to be a father to my child and a husband and carer of my wife. In considering my safety I ask the court to take the following points into consideration.

1) Family is very important to not only myself but to my people and culture, family is core to both our religious and spiritual beliefs1, a child and wife are not just people they are who and why we eat, work, and breathe, I know that by separating myself from my son, the long term affects [sic] to both him and myself will be detrimental and devastating. A child needs a father, and the security and love of a complete family unit. The family unit has always been a core value to the Australian way of life and to the people that live within her borders. I love my child more than I love life and he loves me, he is part of me, my own flesh and blood. I can not comprehend how separating me from him could in any way not affect his state of mind and his future development as he is 9 years old and would definitely be aware of what is going on around him and would affect his future development. My son also suffers from hypertension disorder and needs me to help him through this illness, it is unfair to expect his mother to deal with this by herself, and by separating me from him I believe this would exasberate [sic] his condition.
1I do not believe that any cultural leaders of my people who reside in Australia were consulted by the minister when the decision was made, this should have been done as different cultures have their own value systems.

2) I have paid my debt to society for ... the mistakes I have made. I feel that I am been [sic] punished twice for my mistakes, and that is not right and equitable. I have also lived in this country for 13 years it is for all intents and purposes my home.’
44 The Judge then asked the appellant whether there was anything else that the appellant wanted to put. The transcript records the following:

‘MR VAEULA: Yes, your Honour. My son’s here today and what can I say, your Honour, it’s in God’s hands now.

HIS HONOUR: Mr Vaeula, you have to understand, the only issue with which I am concerned is whether the Minister made a legal error, and in order to succeed in this court, you’ve got to persuade me that the Minister did something that, under the law, he shouldn’t have done.

MR VAEULA: Your Honour, I’ve been released. I’ve served my time in prison. I’ve been released on 16 January. I’ve committed no crime. I’ve been with my son since that time.

MS PEACOCK: He was supposed to have started work with my ex-partner, your Honour.

HIS HONOUR: Yes. I appreciate the problems. You have to show that the Minister made an error [of] law in coming to the conclusion which he did. It’s not for me to substitute my opinion on merits of the Minister’s opinion and you have to show that he made a legal error.

MR VAEULA: Okay, your Honour. I’ve spoken my piece.’

45 The Judge then called on counsel for the Minister, Mr Bromwich.

46 In opening his submissions to the primary Judge, Mr Bromwich referred (at lines 1–5 of page 5 of the transcript) to the claims made by the appellant in his application for judicial review.

47 Mr Bromwich went on to say (at lines 7 – 24):

‘[T]he structure of the document that was placed before the Minister has a heading at page 17 in the relevant documents and it continues on with the different heading which were placed before the decision maker and when one gets to page 25 we have the heading:

Best Interests of the Children

The quote from what the applicant had put to the Minister, in effect, which was paragraph 45 at about point 5, which was the need for his son to have a father, and the dealing with that issue both at paragraph 47 and over the page, page 26, of the relevant documents at paragraph 50 as set out in the written submissions, the respondent’s position is that the best interests of the child were taken into account and that either directly reading the decision, that was the case or, alternatively, then [beneficially] reading this document, that was what was before the Minister and there’s no basis for finding that this wasn’t taken into account by the Minister when he signed off on this document. It isn’t a reasons document on the authorities but it is the material which was before the decision maker, being the Minister himself. The submission of the respondent is it can’t be shown that this wasn’t taken into account.’

48 It will be remembered that pars [45] and [47] of the Issues Document stated:

‘[45] Mr Vaeula in his submission, in relation to his son states:

"My son, he needs a father, I love him so much. I don’t want to neglect Dylan, I want to watch my son grow-up. Be a father to him. Just a chance".

...

[47] It is open to you to find from the information given and the fact that there appears to be little contact with his child that the cancellation of Mr Vaeula’s visa and his removal from Australia may not have an immediate detrimental effect on his child. However, should Mr Vaeula be removed from Australia, and custody arrangements remain the same so that his son does not accompany him, this may hinder any future ability to develop and/or foster a father-son relationship.’

49 Paragraph [50] stated:

‘[50] Mr Vaeula goes on to say that if he has to leave Australia it would have an effect on his son and himself, he goes on to say that his son needs a father and he wants to watch his son grow up. He states that whilst some members of his family reside in New Zealand, he has no contact with them. He states it was his choice to come to Australia and that he loves the people and the country and that there is nothing for him in New Zealand. Mr Vaeula further states that he last visited his father in Brisbane in 1994. He claims that he has been in a defacto relationship with an Australian citizen for twelve years.’

A copy of the submission from Mr Vaeula is at Annex E.

CONCLUSIONS ON THE APPEAL

50 It will be necessary to consider the several grounds of appeal in turn.

The original grounds of appeal

51 As mentioned, the original grounds of appeal – first, that the reasoning in Long’s Case squarely applied here; and secondly, that the Minister had breached the rules of natural justice – were, correctly in our view, no longer pressed by counsel for the appellant. In our opinion, his Honour, having regard to the language of [47] of the Issues Document, properly distinguished Long’s Case and applied the reasoning in W157/00A as squarely in point. The language of [47], in our opinion, in considering the effect of removal, went further than the consideration given in Long’s Case.

The supplementary grounds of appeal

52 It will be convenient to consider these in turn.

Grounds 3 and 4 (assumption that the Minister had read the Issues Document (etc.))

53 This is a new point. Even if we were to allow it to be raised here, we could not accept the substance of the submission. The appellant bore the onus of establishing the errors alleged in these judicial review proceedings. Ordinarily, an applicant seeking judicial review must establish what material was before the decision-maker. To assist all concerned, especially unrepresented applicants, the Migration Practice Direction facilitates the process of the deemed tender of this material, subject, of course, to any valid objection, or other direction. Without this process, it would be expensive, and difficult, for any applicant, especially an unrepresented one, to prosecute a claim for judicial review.

54 In our view, in accordance with the established practices of the Court, the Green Book was to be regarded as in evidence, subject to any valid objection then being taken. No such objection was taken. It is difficult to imagine what the objection might have been. Given the structure of the Green Book, as mentioned above, there is no reason at all to doubt that the Minister had read and considered it.

Ground 5(A) (failure to give reasons under s 501G(1)(e))

55 As the primary Judge observed, the argument that the Minister was obliged to give reasons under s 501G(1)(e) was rejected by the High Court of Australia in Re: Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327.

Ground 5(B) (the Minister applied the wrong test in considering the son’s best interests)

56 In our view, this is merely a restatement of grounds 1 and 2 which, as we have said, were, correctly, withdrawn.

Ground 5(C) (natural justice)

57 As has been seen, it is contended that, since the appellant was unrepresented, the Judge should have indicated to the appellant what the issues were.

58 In our view, it is difficult to generalise in this area where unrepresented parties appear. Regard must be had to the particular circumstances of the case.

59 As noted, we were referred to Minogue, where (at [28]) the Full Federal Court cited observations in Rajski v Schitec Corp Pty Ltd (CA (NSW), 16 June 1986, unreported) (‘Rajski’s Case’) by Samuels JA that –

‘... the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.’

60 Mahoney JA’s observations in Rajski’s Case were also cited:

‘Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.’

61 The Full Court (Sackville, North and Kenny JJ) went on to say (at [29]):

‘... [T]he judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation .... However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial ...’

62 As mentioned, we were also referred to Platcher. The majority in Platcher (Tamberlin and Emmett JJ) also referred to Minogue and to Rajski’s Case. Their Honours observed, as we have noted, that ‘what is appropriate in each case depends on particular circumstances’.

63 Turning to the circumstances of this case, an appropriate point of commencement is a consideration of the grounds stated by the appellant in his application for judicial review, as follows:

‘1. In purporting to apply the provisions of s 501 and by making his decision to cancel the [appellant’s] Transitional Permanent Visa and in taking the [appellant] into detention for the purposes and with the intention of removing the [appellant] from Australia the Respondent has acted unlawfully and beyond the powers of the – Commonwealth against the cancellation of the [appellant’s] visa. In making such determination the Respondent was required to have regard to the – best interest of the [appellant’s] best interests.

2. The Respondent failed to address the question as to what was in the best interests of the [appellant’s] children, but rather left open (without determining) a different and more limited question namely whether the [appellant’s] removal to NZ would be detrimental to the [appellant’s] children.
3. The decision was made in breach of the rules of natural justice in that the Respondent did not have regard to the best interest of the [appellant’s] children that [he] did not inform the [appellant] or the [appellant’s] children that he did not propose to have regard to the children’s best interests.’

64 The appellant filed this document as an unrepresented party. However, it is apparent from its language that the appellant had access to some professional advice; or, if not, (and less likely) the appellant himself had a fair knowledge of the issues raised for adjudication.

65 When one considers the process adopted in the matter, before and during the hearings, as noted above, it is difficult to see what particular additional step or steps ought reasonably to have been taken by the Judge. As we have said, the reception of the Green Book did not, in our opinion, pose any adversarial threat to the appellant. Indeed it progressed the matter to a hearing. The appellant was not, for instance, asked to make any admission, of fact or of law. What was raised for adjudication by the Judge were the substantive issues indicated in grounds 1, 2 and 3 in the judicial review application. The Judge, correctly, informed the appellant that ‘merits’ review was unavailable and that the appellant had to demonstrate a legal error. It was then a matter for the appellant to show a legal error arising from his grounds. This involved, initially, a consideration of the relevant parts of the Issues Document, particularly [42] to [47] and a consideration of the inferences that might appropriately be drawn in this connection. This exercise did not, in our view, call for any further assistance for the appellant from his Honour. We reject this ground of appeal.

ORDERS

66 Accordingly, the appeal should be dismissed, with costs.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Conti & Crennan.



Associate:

Dated: 28 May 2004



Counsel for the Appellant: Mr J Van Aalst



Solicitor for the Appellant: Mr David Morrow



Counsel for the Respondent: Mr R J Bromwich



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 13 May 2004



Date of Judgment: 28 May 2004
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