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MIGRATION - cancellation of visa under s 501 of Migration Act 1958 (Cth) - a signed departmental briefing paper not a written notice which sets out the reasons for the decision made - failure to give the written notice required by s 501G(1)(e) not a ground of review under s 476(1)(a) - not "in connection with the making of the decision" - whether best interests of children taken into account - not possible to demonstrate failure in absence of notice setting out reasons of decision maker

Minister for Immigration & Multicultural Affairs v W157/00A(includes corrig

Minister for Immigration & Multicultural Affairs v W157/00A(includes corrigendum dated 5 November 2002) [2002] FCAFC 281 (4 September 2002)
Last Updated: 6 November 2002


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v W157/00A

[2002] FCAFC 281



CORRIGENDUM

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v W157/00A

W533 of 2001

BRANSON, GOLDBERG & ALLSOP JJ

4 SEPTEMBER 2002 (CORRIGENDUM 5 NOVEMBER 2002)

SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W533 of 2001



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA




BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

APPELLANT


AND:
W157/00A

RESPONDENT


JUDGES:
BRANSON, GOLDBERG & ALLSOP JJ


DATE OF ORDER:
4 SEPTEMBER 2002


WHERE MADE:
SYDNEY (HEARD IN PERTH)





CORRIGENDUM
1. In paragraph 103, on page 37, of the reasons for judgment of Allsop J the citation should read Yusuf, supra at [74].

I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Allsop.




Associate:

Dated: 5 November 2002


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v W157/00A

[2002] FCAFC 281


MIGRATION - cancellation of visa under s 501 of Migration Act 1958 (Cth) - a signed departmental briefing paper not a written notice which sets out the reasons for the decision made - failure to give the written notice required by s 501G(1)(e) not a ground of review under s 476(1)(a) - not "in connection with the making of the decision" - whether best interests of children taken into account - not possible to demonstrate failure in absence of notice setting out reasons of decision maker

Migration Act 1958 (Cth) ss 368, 430, 476, 501(2)

Administrative Appeals Tribunal Act 1975 (Cth) ss 28(1), 43(2)

Acts Interpretation Act 1901 (Cth) s 25D

Judiciary Act 1903 (Cth) s 78B

Constitution s 61

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 referred to

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 referred to

Carlson v King (1987) WN (NSW) 65 cited

Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 File No 27790 referred to

Re Ruddock, Minister for Immigration and Multicultural Affairs; Ex parte Truong 22 March 2001 unreported (HC) discussed

Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130 cited

Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 cited

Adams v Minister for Immigration and Multicultural Affairs [2001] FCA 552 cited

Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; 184 ALR 401 cited

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 referred to

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 180 ALR 117 cited

Xu v Minister for Immigration and Multicultural Affairs (FC) [1999] FCA 1741; 168 ALR 621 cited

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 referred to

Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 referred to

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 cited

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577 cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited

Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707 cited

Suleyman, Zakariya (Farah) v Minister for Immigration and Multicultural Affairs [2000] FCA 610 referred to

De Smith et al Judicial Review of Administrative Action (5th Ed)

Craig `The Common Law, Reasons and Administrative Justice' (1994) 53 CLJ 282

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v W157/00A

W533 of 2001

BRANSON, GOLDBERG & ALLSOP JJ

4 SEPTEMBER 2002

SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W533 of 2001



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA




BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

APPELLANT


AND:
W157/00A

RESPONDENT


JUDGES:
BRANSON, GOLDBERG & ALLSOP JJ


DATE OF ORDER:
4 SEPTEMBER 2002


WHERE MADE:
SYDNEY (HEARD IN PERTH)




THE COURT ORDERS THAT:

1 The appeal be stood over to a date to be fixed for the purpose of the making of orders giving effect to the reasons for judgment of the Court, including, if the Court thinks fit, orders for costs.

2. The parties provide to the Associate of Branson J by no later than five clear days before the resumed hearing an agreed minute of the orders to be made (including the orders, if any, as to costs) and if agreement has not by then been reached, the minutes of order for which they will respectively contend and brief outlines of submissions in support of the orders.

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W533 of 2001



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA




BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

APPELLANT


AND:
W157/00A

RESPONDENT




JUDGES:
BRANSON, GOLDBERG & ALLSOP JJ


DATE:
4 SEPTEMBER 2002


PLACE:
SYDNEY (HEARD IN PERTH)





REASONS FOR JUDGMENT
BRANSON J

INTRODUCTION

1 This appeal from a decision of a judge of the Court (Lee J) raises for consideration important issues of statutory construction in the context of the power given to the appellant ("the Minister") by s 501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel on character grounds a visa that has been granted to a person.

2 The decision of the primary judge was made on an amended application under s 476 of the Act as in force before the Act was amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and seven other acts passed at the same time. The amended application claimed an order of review of a decision of the Minister to cancel the respondent's residence visa. Before this Court the respondent was granted leave to further amend the application. Following the making of the further amendments, the grounds of the respondent's application were:

"a) Pursuant to s476 (1) (e) of the Migration Act the decision involved errors of law in that [the Minister] failed to recognise and did not give consideration to the interests or the entitlement of the children of the Applicant to have support from and contact with their father except where the interests of the State or of the family prevail over that right.

PARTICULARS
The Respondent did not ascertain the best interests of the Applicant's children and did not consider those interests against any countervailing interests.

b) Pursuant to s476 (1) (a) of the Migration Act the Respondent did not observe the procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision:


PARTICULARS
i. The Respondent failed to provide the Applicant with reasons (other than non-disclosable information) for his decision as required by s501G (1) (e) of the Migration Act.

ii. The Document entitled `Issues for Consideration for possible visa cancellation under s501(2) of the Migration Act 1958' did not state the Respondent's reasons for his decision, but merely detailed certain material for the Respondent to consider.

c) Pursuant to s476(1)(b) of the Migration Act the Respondent did not have jurisdiction to make the decision,


PARTICULARS
i. The Respondent did not address the issue as to what were the best interests of the Applicant's children.

ii. If it be assumed that the Respondent did determine that it was in the best interests of the Applicant's children for the Applicant to remain in Australia, the Respondent did not address the issue whether there were any considerations, separately or together, which outweighed the damage caused to the interests of the Applicant's children by a decision to cancel the Applicant's visa.

iii. The Respondent did not address the issue that the Applicant's children were Australian citizens, in addition to being minors and whether such issue should be taken into account in his decision.

iv. When considering whether the facts on which the Applicant was convicted of a crime under s322 of the Criminal Code of Western Australia `were particularly abhorrent to the people of Australia' and whether the Australian people would expect the Applicant's visa to be cancelled, the Respondent did not address the issue that such facts did not amount to any criminal offence in the majority of States and Territories in Australia and whether that issue should be taken into account in his decision.

v. In proceeding on the basis that the crime for which the Applicant had been convicted was one that was generally applicable throughout Australia, the Respondent made his decision on an erroneous basis.

d) Pursuant to s476(1)(c) of the Migration Act the Respondent's decision was not authorised by the Act or the Regulations,


PARTICULARS
The Applicant repeats the particulars contained in paragraph c) above

e) Pursuant to s476 (1) (e) of the Migration Act the Respondent's decision involved error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Respondent


PARTICULARS
The Applicant repeats the particulars contained in paragraph c) above"

BACKGROUND FACTS

3 The respondent arrived in Australia in 1994 with his wife, his two sons and a female cousin of his wife who ordinarily resided with the respondent and his family who I will refer to as "X". His entry into, and residence in, Australia was authorised by a 211 (Burmese Special Assistance Category) visa. The criteria for a 211 visa include that the applicant have close ties to Australia, be a citizen of Burma resident in Burma and be subject to persecution, substantial discrimination and/or gross violation of human rights in Burma. The respondent was assessed as having suffered "substantial discrimination" in Burma.

4 In June 1995 the respondent was charged on five counts of sexual penetration of "X", being a person who at material times was over sixteen years of age but under eighteen years, and under the care, supervision or authority of the respondent. It appears that at the time that the offences were committed "X" was 17� years old. On 4 November 1997, after trial, the respondent was convicted of the offences. He was sentenced to two years imprisonment on each charge with the terms of imprisonment to be served concurrently. He was eligible for parole.

5 On 1 June 1998 a deportation order made by the Minister under s 200 of the Act was served on the respondent. As a consequence consideration of the parole of the respondent was deferred. The respondent applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the Minister's decision to order deportation of the respondent. On 5 November 1998 the Tribunal set the order aside. The Tribunal found that there was little or no risk of the respondent re-offending and that, having regard to the interests of the respondent's children, there was a clear balance in favour of a decision not to deport the applicant. The applicant was released on parole on 23 November 1998.

6 In the meantime, on 17 November 1998 the Minister had given notice under s 501 of the Act of an intention to cancel the respondent's visa on character grounds. Two further notices of the same kind followed. Legal Aid Western Australia in each case responded to the notices on behalf of the respondent. On 3 May 2000 the Minister invited the respondent to comment on the proposition that Australia did not owe protection obligations to the respondent. Legal Aid Western Australia responded to that invitation on 23 May 2000.

7 On 3 July 2000 the Minister determined that the respondent's visa should be cancelled. By a letter dated 7 August 2000 an officer of the Department of Immigration and Multicultural Affairs advised the respondent as follows:

"On 7 July 2000, the Minister for Immigration and Multicultural Affairs decided to cancel your subclass 211 (Burmese Special Assistance Category) visa pursuant to section 501(2) of the Act.
A copy of the decision record concerning the refusal of your visa application is attached for your information.

As the decision to refuse your visa application under section 501 was made personally by the Minister for Immigration and Multicultural Affairs, the decision is not reviewable by the Administrative Appeals Tribunal. You may wish to obtain legal advice in relation to any other review options that may be available to you."

8 The relevant decision of the Minister was not a decision to refuse a visa application as suggested by the second and third paragraphs of the above letter but, as indicated by the first paragraph of the letter, a decision to cancel the respondent's visa. The form of the decision record provided to the respondent assumed importance before the primary judge and before this Court. It is necessary to describe the document in some detail.

9 It appears that the document described as a "decision record" is a signed copy of a document headed "Issues for Consideration for Possible Visa Cancellation under Section 501(2) of the Migration Act 1958". It is unclear whether the "decision record" included the attachments to that document, but it seems more likely than not that it did not include the attachments. The document, not including its attachments, is hereafter referred to as "the issues document".

10 Part A of the issues document sets out personal and visa details concerning the respondent. Part B identifies the relevant ground of cancellation as s 501(2) of the Act and sets out the terms of that subsection. It refers to departmental files said to contain evidence of the respondent's criminal history in Australia.

11 Part C of the issues document is headed "Assessment for Cancellation". It refers to and sets out the statutory provisions which establish the "character test" (s 501(6) of the Act) and define a "substantial criminal record" (s 501(7) of the Act). Part C has a number of sub-headings. Under the sub-heading "Reasonable suspicion" the issues document records that in 1994 the respondent was fined $50 for stealing and that in 1997 he was sentenced to 2 years' imprisonment on each of five counts of sexual penetration of a child over sixteen years of age, with the terms to be served concurrently. This section of the issues document concludes:

"Based on the above information it is open to you to find that you reasonably suspect that [the respondent] does not pass the character test."
12 Under the sub-heading "Satisfaction of the Minister" the issues document refers to the responses provided by Legal Aid Western Australia to the notices of intention to cancel the respondent's visa, to a report from a clinical psychologist and to certain additional information. Although the responses and other documents referred to were included as attachments to the issues document, the issues document itself includes the statement:

"Where relevant, comments from the above submissions have been included in this record." (emphasis added)
I note incidentally in this regard that nowhere in the issues document is reference made to the statement contained in one of the attachments to the issues document, namely a letter from Legal Aid Western Australia dated 1 February 1999, that:

"The Administrative Appeals Tribunal also had before them [sic] numerous character references from various people within the community stating that [the respondent] is of good character, that he has been a good father to his children and that if he was returned to Burma it is likely that he would be persecuted."
13 For present purposes Part D of the issues document is of critical importance. Its opening paragraphs read:

"14. If you find that you reasonably suspect that [the respondent] does not pass the character test and [the respondent] does not satisfy you that he passes the character test, then you must consider the exercise of your discretion whether or not to cancel his visa despite finding that he does not to pass the character test.
15. Whilst Direction 17 is not binding on you, it is the only Ministerial policy guideline available to assist an applicant in the presentation of information and comment on the consideration of visa refusal under section 501. As such, it was provided to [the respondent] and his adviser.

16. In making a decision whether to cancel the visa, the following primary considerations may be taken into account." (emphasis added)

The "primary considerations" identified by the issues document are the protection of the Australian community, the expectations of the Australian community and the best interests of the children of the respondent.

14 Under the heading "Protection of the Australian Community" the issues document first gives consideration under subheading (a) to the seriousness and nature of the respondent's conduct. The circumstances surrounding his relationship with "X" are set out and reference made to the sentencing remarks of the trial judge before whom he was convicted of the sexual penetration of "X". The trial judge regarded the offences as serious in nature. Brief reference is made to the respondent's 1994 conviction for stealing. The only other issue referred to under this sub-heading is the fact that the respondent provided false or misleading information on his application to migrate to Australia as to "X's" age and her relationship to his immediate family. The issues document records that, in his oral reasons for decision (presumably on review of the Minister's decision to order the deportation of the respondent), a Deputy President of the Tribunal had described the conduct of the respondent as:

"... a serious concern as it undermines the efficacy of migration laws and procedure, and as I understand the motive, it was basically financial."
15 Consideration is also given, under sub-heading (b), to the likelihood that the respondent's conduct may be repeated. Reference is made to a submission made on the respondent's behalf that the circumstances that gave rise to the respondent's offences concerning "X" are highly unlikely to be repeated and that the respondent is determined not to re-offend against any Australian laws and cannot be regarded as a risk to the Australian community. Reference is also made to the respondent having completed a sexual offender's treatment program and having been rated as having a low risk of re-offending. A passage from the oral reasons for decision of the Deputy President of the Tribunal is set out which refers to the respondent's apparent absence of remorse in respect of his conduct concerning "X" but which concludes that the fear of further imprisonment is, in the respondent's case, "a potent deterrent against recidivism". For reasons which are not clear, a further passage from the reasons for decision of the Deputy President is then set out which comments adversely on the respondent's credibility.

16 The issues document concludes under the heading "Protection of the Australian Community" under sub-heading (c) with a statement that:

"Visa cancellation in respect of [the respondent] may result in others being deterred from committing similar offences."
It must, I think, be presumed that the offences referred to in this statement are the respondent's offences concerning "X".

17 Under the heading "The expectation of the Australian community" the following paragraph appears:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Crimes against children and crimes involving a breach of trust such as the one [the respondent] had in relation to ["X"] are particularly abhorrent to the Australian community. Given the nature of [the respondent's] offence, the Australian community may expect [the respondent's] visa to be cancelled. The Departmental advocate at the AAT hearing made the following point:
`Now, these offences were very serious abuse of his position of authority over ["X"] at the time. The nature of the offences makes them fall in the category of those which are so offensive to the Australian community that people who commit them are not acceptable as members of the Australian community.'"

The issues document fails to mention that the above submission was not accepted by the Tribunal (see [43] below).

18 Under the heading "The best interests of the children" the respondent's children are identified and material set out which indicates that the respondent's sons are strongly attached to their father. It is noted that the reasons of the Tribunal includes the following passage:

"So despite the immigration fraud and the serious nature of the deportable offences, the Tribunal is influenced strongly by its finding that the risk of recidivism is low, and that the interests of the children, particularly the two boys, will be seriously adversely affected by deporting [the respondent]."
19 The issues document then turns to "Other considerations". It is noted that the respondent is not close to other members of his family in Australia and that his employment in Australia has been limited to 26 weeks of employment under a Government subsidised employment scheme. The submission that he continues to provide effective moral and practical support for his children and assistance to both his former wife and "X" is noted as is a submission that he has assisted his former wife and "X" to set up the Australian Chin Welfare Association Inc. The respondent's former wife and "X" are ethnic Chins from Burma.

20 Under the heading "Refugee Obligations" the issues document notes that the Onshore Protection Section of the Department of Immigration and Multicultural Affairs had advised that there was no evidence to suggest that the respondent was facing persecution for a Convention reason when he left Burma in 1994 or that he would face persecution for a Convention reason if he returned to Burma.

21 Under the heading "Other international obligations" the issues document notes that the Onshore Protection Section has also concluded that Australia would not breach its international obligations under the International Covenant on Civil and Political Rights or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment if the respondent was returned to Burma. However, reference is made to the advice of the Onshore Protection Section that there may be difficulties in returning the respondent to Burma as it would be highly unlikely that the Burmese authorities would allow him to return. Under this heading the issues document also summarises submissions made on the respondent's behalf touching on the discriminatory treatment received by him in Burma and political activity engaged in by him in Burma and in Australia.

22 Under the heading "Additional considerations and comment provided by [the respondent]" the issues document refers to various declarations made by the respondent in which he referred to his close relationship with his children and the assistance that he provides to them with their education and medical appointments and to the assistance that he provides to members of the Burmese community in Australia. The following paragraphs from a declaration made by the respondent on 22 February 2000 are set out:

"`As regards my offence, even thought I do admit that, being of a sexual nature it is a serious one, it was consensual sex with a girl over the age of 16 and not with a girl under the age of 16 .... Obviously it was not rape or child molestation or act of paedophilia or incest. To the best of my knowledge, the same type of sexual relationship in (sic) not considered a crime at all in Burma, my country of origin. Neither is it in the United States of America or in most countries of the world. In other words, I was naive and completely ignorant of the current Australian law.
It is also evident that the punishment I have suffered far outweighs the offence, taking into account the incarceration of 12 � months instead of the 7 months I was to serve, the intense pressures of possible deportation and subsequent struggle in (successfully) appealing against it without any legal support and legal representation, the enormous trauma emerging from the breaking relationships; the strong stress, the devastating depression and incurable insomnia that I still suffer ... and finally the exceptionally shameful conviction recorded against me.'

...

`As a Eurasian and Catholic (for which I had been strongly discriminated in Burma), I can and have easily assimilated into the Anglo-Saxon Judeo-Christian culture of our Australian community for nearly six years.'"

23 Part E of the issues document is headed "Minister's Decision". It reads:

"I have considered all relevant matters including an assessment of the character test within the meaning of s501 Migration Act 1958 and the non citizen's comments and have decided that:
[the respondent] passes the character test and

the visa should not be cancelled AGREED / NOT AGREED

[the respondent] does not pass the character

test and does not satisfy me that he does pass

the character test AGREED / NOT AGREED

I exercise my discretion to not cancel the visa AGREED / NOT AGREED

[the respondent's] visa should be cancelled AGREED / NOT AGREED"

It is signed by the Minister and dated 3 July 2000. It appears that it was the Minister who effected the crossing out illustrated above.

STATUTORY PROVISIONS

24 At the relevant time, s 476(1)(a) provided:

"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

... ."

25 Section 501(2) of the Act provides:

"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."

26 Section 501G relevantly provides:

"(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) ...

(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."

DECISION OF PRIMARY JUDGE

27 The learned primary judge concluded, first, that s 501G(4) of the Act was not intended to constrict or remove rights of judicial review provided under the Act, or at law. His Honour placed reliance on the decision of Gaudron J, with whom McHugh J expressly agreed, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57. This aspect of his Honour's reasoning is not challenged by the notice of appeal.

28 His Honour took the view that the issues document did not constitute the written notice required by s 501G(1)(e) as it does not disclose the reasons relied upon by the Minister for the decision to cancel the visa held by the applicant. His Honour at [63] stated:

"The obligation under s 501G(1)(e) to give a written notice which sets out the reasons for the decision made under s 501(2) of the Act was imposed by Parliament ... to safeguard the integrity of such decisions. As such, it may be assumed that Parliament intended that the provision of reasons was part of the procedure to be observed `in connection with' the making of a decision under s 501(2) for the purpose of s 476(1)(a) of the Act. That is, the relevant context shows that Parliament did not intend that the words `making of' in s 476(1)(a) imported a temporal limitation that excluded as a procedure the Minister was required to observe `in connection with the making of the decision', the preparation of a written notice that set out the reasons for the making of the decision."
29 On the above basis, the primary judge stated at [73] that:

"t may be concluded ... that the ground of review presented by s 476(1)(a) has been made out. However, the question whether that ground has been made out ... may not be necessary to answer."
His Honour turned to consider the application for review on the basis that the issues document did set out the Minister's reasons for decision.

30 The primary judge noted that if the issues document is taken to set out the reasons of the Minister, the issues document does not explain how the Minister found that the important matter of the best interests of the respondent's children and their interests as Australian citizens were outweighed by other considerations. His Honour concluded that the issues document fails in this regard to show that the Minister addressed the right question, or alternatively, dealt with that question according to law. On this basis, his Honour concluded that a ground of review of the Minister's decision was established under s 476(1)(b) for jurisdictional error, or under s 476(1)(e) in that the reasons revealed an error in the application of the applicable law or in the application of the law to the facts. That is, that a matter that the Minister was bound to take into account was not properly addressed in the making of the decision by reason of an incorrect understanding of the law. His Honour cited Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 ("Vaitaiki") per Burchett J at 618-619 and Branson J at 631.

31 The primary judge set aside the decision of the Minister and returned the matter to the Minister for determination according to law.

NOTICE OF APPEAL

32 The grounds of appeal from the judgment of his Honour are:

"(2) (1) The learned primary judge erred in law and fact in deciding the appellant had failed to give to the respondent a notice (the notice) that complied with s 501G(1)(e) of the Migration Act 1958 (the Act).
(2) Alternatively to ground 2, the learned primary judge erred in deciding that the failure by the appellant to provide the notice constituted the ground of review established by s476(1)(a) of the Act.

(3) The learned primary judge erred in finding the appellant had committed a jurisdictional error by not properly addressing or asking the right question about the issue of the best interests of the respondent's children, in that:-

(a) His Honour had no jurisdiction to decide the application on this basis, as the ground of review before the court, which His Honour did not decide, was that the appellant failed to have regard to a relevant consideration, being the children had an entitlement to have support from and contact with their father except where the interests of the State or family prevailed over that right.

(b) The appellant, to the extent required by the law and facts, did take into account the best interests of the children.

(c) Alternatively, even if his Honour was not in error in concluding the appellant had failed to properly take into account the best interests of the respondent's children, this did not constitute any ground of judicial review under the Act because:

(i) any such failure only constituted a denial of natural justice; and

(ii) a breach of the requirements of natural justice cannot constitute a ground of judicial review under s476 of the Act."

CONSIDERATION

The requirement to set out reasons

33 In my view, the primary judge at [47] rightly considered that it could be concluded that Parliament directed the Minister to set out the reasons for a decision to cancel a visa under s 501(2) of the Act to provide for transparency in, and community acceptance of, the exercise of an important power vested in the Minister by Parliament. His Honour at [48] set out the following passage from De Smith et al Judicial Review of Administrative Action 5th ed. at p 459.

"The beneficial effects of a duty to give reasons are many. To have to provide an explanation of the basis for their decision is a salutary discipline for those who have to decide anything that adversely affects others. (`Having to give reasons concentrates the mind wonderfully' per Donaldson J. (who has been a leading judicial proponent of extending the legal duty to give reasons) in Tramountana Armadora S.A. v Atlantic Shipping Co SA [1978] 2 All ER 870, 872.) The giving of reasons is widely regarded as one of the principles of good administration (See, for example, R Gregory and P Hutchinson, The Parliamentary Ombudsman (1975) p 288 (failure to give reasons can constitute maladministration). Compare G Richardson, `The Duty to Give Reasons: Potential and Practice' [1986] P L 437) in that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making. Moreover, if published, reasons can provide guidance to others on the body's likely future decisions, and so deter applications which would be unsuccessful. Further, the giving of reasons may protect the body from unjustified challenges, because those adversely affected are more likely to accept a decision if they know why it has been taken. (See, e.g. R v Secretary of State for the Home Department, ex p. Singh, The Times, June 8, (1987) QBD where Woolf LJ explained that it was highly undesirable for the Home Office not to give written notification of a decision on an application for asylum, not only because of the potential unfairness to the applicant, but because without notice, an applicant would be likely to receive leave to move for judicial review, whatever the real merits of his case, if he indicated that as far as he was aware no decision had been taken on his case.) In addition, basic fairness and respect for the individual often requires that those in authority over others should tell them why they are subject to some liability or have been refused some benefit."
34 It should be noted, however, that the statutory obligation imposed on the Minister by s 501G(1)(e) of the Act is to give a written notice that "sets out the reasons (other than non-disclosable information) for the decision". By contrast, the obligation imposed, for example, on the Refugee Review Tribunal by s 430(1) of the Act is expressed as follows:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

Section 368(1) of the Act imposes essentially the same obligations on the Migration Review Tribunal as are imposed by s 430(1) on the Refugee Review Tribunal.

35 In the area of administrative decision making more generally, a person who makes a decision which may be reviewed by the Tribunal may be required to furnish "a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision" (s 28(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The Tribunal itself is required to give reasons either orally or in writing for its decision (s 43(2) of the AAT Act) and, where it gives reasons in writing, s 43(2B) of the AAT Act provides that:

"those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."
36 The contrast between the terms of ss 368(1) and 430(1) of the Act and ss 28(1) and 43(2) of the AAT Act on the one hand and s 501G(1)(e) on the other hand is striking. It may well be that the legislature intended s 501G(1)(e) to impose on the Minister a lesser obligation with respect to the content of the notice to be provided to the person affected by the Minister's decision than the burden with respect to the provision of written reasons for decision imposed on administrative decision makers such as the Refugee Review Tribunal, the Migration Review Tribunal and the Administrative Appeals Tribunal. The full extent of the obligation imposed on the Minister by s 501G(1)(e) need not be explored here. In particular, a concluded view need not be reached as to whether the Act discloses an intention that s 25D of the Acts Interpretation Act 1901 (Cth) should not apply to s 501G(1) of the Act. No reliance was placed on s 25D in this case.

37 It is clear that, where no non-disclosable information is involved, s 501G(1)(e) of the Act requires that the notice set out the reasons for the Minister's decision. Although the expression "written reasons for decision" is often used to encompass a decision, the reasons for the decision and the findings of fact giving rise to the decision, the reasons for a decision are logically distinct both from the decision itself and from the factual findings upon which the decision is based. This distinction is recognised by the provisions referred to in [34] - [35] above (see also Carlson v King (1987) WN (NSW) 65 per Jordan CJ at 66). To give reasons for a decision is to disclose the process of reasoning which led the decision maker from the factual findings to the decision.

38 In Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 File No 27790 at [126] ("Suresh") the Supreme Court of Canada, in reviewing under the Canadian Charter of Rights and Freedoms a Ministerial decision to declare that an asylum seeker was a danger to the security of Canada, said:

"The Minister must provide written reasons for her decision. ... The reasons must ... articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr Gautier. Mr Gautier's report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor's brief than a statement of reason for a decision."
39 I doubt that s 501G(1) is intended to require that the notice therein referred to should emanate from the Minister in the sense that it must be drafted by the Minister. In my view, it would be sufficient for the Minister to adopt as his or her own written reasons prepared by a departmental officer provided, of course, that such reasons actually reflected the reasons why the Minister had reached his or her decision. However, I respectfully agree with the Supreme Court of Canada that a document that does not purport to explain why a decision has been reached is not transmogrified into reasons for that decision by ministerial adoption.

40 I conclude that the issues document, as completed and signed by the Minister, may only be regarded as a notice that sets out the reasons for the Minister's decision to cancel the respondent's visa if it in fact tells the respondent why his visa was cancelled in the sense of explaining to him how the Minister arrived at the conclusion that cancellation of his visa was the appropriate outcome of the exercise of his discretion to cancel or not to cancel the visa. It is thus necessary to give careful consideration to the form and content of the issues document.

Did the notice set out the Minister's reasons?

41 As the primary Judge noted, the issues document did not make any recommendation to the Minister and therefore did not present to the Minister a suggested conclusion supported by appropriate reasons. It informed the Minister of "primary considerations" and other considerations that he was entitled to take into account. It set out what the author regarded as the principal facts touching on those considerations but subjected them to limited, if any, analysis. The content of the issues document is not such as to suggest that a decision one way or the other by the Minister was inevitable.

42 The information set out in the issues document under the heading "The best interests of the children" all points in favour of the best interests of the children being served by the respondent remaining in Australia. This, of course, was also the finding of the Tribunal. The information under the heading "Protection of the Australian Community" indicates that although the respondent had committed a serious offence and provided false information concerning "X" to the migration authorities, the risk of recidivism in his case was low. This consideration thus also tended to support a decision that the respondent's visa not be cancelled.

43 Pointing the other way was material under the heading "The expectation of the Australian community" which emphasised the seriousness of the respondent's conduct concerning "X". A quotation from a submission made to the Tribunal by a Departmental advocate is set out. The Departmental advocate, in making the quoted submission, had apparently overlooked that the conduct which founded the charges against the respondent would not have given rise to criminal liability in any Australian State or Territory other than Western Australia, Victoria and possibly South Australia. Nothing in the issues document reveals whether the Minister accepted at face value the quoted submission that:

"The nature of the offences makes them fall in the category of those which are so offensive to the Australian community that people who commit them are not acceptable as members of the Australian community."
It should be noted that the author of the issues document chose not to include in the document itself a reference to the fact that the Tribunal had rejected the Departmental advocate's submission. The Tribunal had concluded:

"I do not believe it is such a serious offence that it falls into the category of those dealt with in the Migration policy which would cause the community to rebel at having the applicant inside Australia as a member of the community. In some cases this particular offence would be that type but I do not think the circumstances of this one are that serious. But it is a serious offence."
A transcript of the oral reasons of the Tribunal was an attachment to the issues document.

44 The assertion set out above the Minister's signature that he had "considered all relevant matters" tends to indicate that the Minister gave consideration himself to whether the respondent's conduct concerning "X" could fairly be said, having regard to its lack of criminality in a number of Australian jurisdictions, to be of a nature that the Australian community as a whole would consider the respondent to be an unacceptable member of the community. That is, that the Minister gave consideration to the opposing views expressed by the Departmental advocate and the Deputy President of the Tribunal and formed a view himself as to the acceptability of the respondent to the Australian community. However, the conclusion reached by the Minister, if he did consider the opposing views, is unknown. This topic is of importance as the seriousness of the offence would appear to be the only matter identified in the issues document which could have been regarded as of sufficient gravity to override the best interests of the respondent's children. The uncertainty as to whether the Minister did consider the opposing views on this issue, and if he did, what conclusion he reached is a powerful indication that the issues document as completed and signed by the Minister does not constitute a written notice that sets out the reasons for the Minister's decision within the meaning of s 501G(1)(e) of the Act. It can not be determined from the issues document as completed and signed by the Minister whether the basis for his decision was that he, unlike the Tribunal, accepted the submission that the Australian community would rebel at having the respondent inside Australia as a member of the community and that this consideration outweighed the competing primary consideration of the best interests of the respondent's children.

45 Further, the issues document failed expressly to inform the Minister that the respondent's children are all Australian citizens. In a statutory declaration dated 22 February 2000 made in support of an application for Australian citizenship, the respondent had declared that all of his children are Australian citizens. The accuracy of this declaration is accepted by the Minister. Although the issues document contains a number of extracts from the respondent's statutory declaration, it does not contain any reference to the children's citizenship. The statutory declaration is, however, one of a number of attachments to the issues document.

46 In Vaitaiki at 614, Burchett J described Australian citizenship as a "most relevant aspect of the children's position" when their best interest is being considered in the context of the possible deportation of their father. Again the assertion that the Minister had considered "all relevant matters" might mean that he did take the children's Australian citizenship into account when reaching his decision to cancel their father's visa. Alternatively, the Minister might have proceeded on the basis that all relevant considerations were identified in the issues document itself (see [12] above). Again, the uncertainty surrounding this issue suggests against the issues document as completed by the Minister constituting a written notice that sets out the reasons for his decision within the meaning of s 501G(1)(e) of the Act.

47 It was submitted by the Minister that the authorities either compel, or suggest strongly, in favour of a conclusion that the issues document does set out the reasons for his decision to cancel the respondent's visa. Reliance was placed primarily on the ex tempore decision of Hayne J in Re Ruddock, Minister for Immigration and Multicultural Affairs; Ex parte Truong, Hayne J, 22 March 2001 unreported (HC) (Truong's case). Reference was also made to Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130 per Goldberg J at [16], Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 per Stone J at [24]-[26], Adams v Minister for Immigration and Multicultural Affairs [2001] FCA 552 per Heerey J at [20] and Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; 184 ALR 401 at [29].

48 In respect of a document which adopted the same form as the issues document (but, of course, which had a different content) Hayne J in Truong's case said:

"In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information - and I interpolate - only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached."
49 In my view, the primary judge rightly proceeded on the basis that the question of whether the Minister had provided to the respondent a written notice that set out the reasons for the Minister's decision is a question of fact. That question of fact is to be answered primarily by reference to the document which purports to be that written notice. Nonetheless, as Hayne J indicated in Truong's case, the circumstances surrounding the provision of the written notice, which circumstances may include the provision of one or more additional documents, may throw light on the question to be answered. At the end of the day, however, a finding of fact made in another case taken with respect to a different document provided to an individual in different circumstances will provide only limited guidance in a subsequent case.

50 It may, in my view, be seriously doubted that Hayne J intended in his ex tempore judgment to provide considered guidance on the proper interpretation of s 501G(1)(e). In particular, I doubt that his Honour intended to suggest that the terms of one document could give another document the character of a notice that sets out the reasons for the Minister's decision when that other document plainly does not set out the Minister's reasons. In any event, in this case the issues document has not been explicitly identified as a document which sets out the reasons for the Minister's decision; it has been identified as the "decision record" (see [7] and [9] above).

51 Truong's case is helpful, however, to the extent that it indicates indicia of a notice that complies with the requirements of s 501G(1)(e). It would appear that Hayne J considered that such indicia were, or included, that the document read as a whole:

(a) reveals the matters that were before the Minister;

(b) assigns at least to some of them particular weight, and

(c) confirms that the decision of the Minister was based only on that information.

52 In my view, it is doubtful that the issues document in the circumstances of this case discloses any of the above indicia. The issues document refers to the fact that Direction 17 is not binding on the Minister. It indicates, presumably because of the non-binding nature of Direction 17, that the primary considerations to which it refers (which are the primary considerations identified in Direction 17) are primary considerations that "may be taken into account by the Minister". The submission that the Minister was thereby advised that he must take them into account is, in my view, unsustainable as a matter of logic and having regard to the ordinary meaning of the language used. The assertion made by the Minister in the issues document that he considered "all relevant matters", in my view, compounds rather than obviates the difficulty of identifying from the document the matters that were in a real sense "before the Minister". It is not clear from the document, which was not drawn by the Minister, what were the matters considered by the Minister, as opposed to the author of the document, to be relevant. It is for this reason unclear whether they were all of the matters identified in the issues document (see [12] above), some only of those matters or whether they included matters not identified at all in the issues document - perhaps because they derived from matters in the attachments to the issues document or were otherwise identified by the Minister himself.

53 As to the other two indicia apparently identified by Hayne J, the issues document in this case does not assign particular weight to the matters which it canvasses. Further, for the reasons given above, it does not confirm that the Minister's decision was based only on the information contained therein.

54 In my view, the most significant indicator that the issues document does not set out the reasons for the Minister's decision to cancel the respondent's visa is the fact that it was plainly drawn so as to recognise that the Minister, assuming that he concluded that he had power to cancel the visa, had a discretion to cancel the visa or alternatively not to cancel the visa. As is mentioned above, the content of the document is not such as to suggest that only one of the available options was realistically available to the Minister. In the circumstances, the submission of the Minister that the issues document does set out the reasons for the Minister's decision, as it seems to me, is to be understood as a submission that the issues document would equally have set out the Minister's reasons for decision had the Minister decided not to cancel the respondent's visa. For the purpose of testing the Minister's submission it is immaterial that there is no statutory obligation on the Minister to give a notice which sets out the reasons for a decision not to cancel a visa. In my view, the idea that the one document can be characterised as a notice that sets out the reasons for diametrically opposed decisions depending on whether the expression "agreed" or "not agreed" at the conclusion of the document is crossed out runs contrary to logic. In truth, as in the Canadian case of Suresh, the document here sought to be characterised as a notice which sets out the Minister's reasons for decision is a document provided to the Minister to assist him in reaching his decision. It does not tell the respondent why his visa was cancelled; at best it sets out facts and other material relevant to the exercise of the Minister's discretion to cancel or not to cancel the respondent's visa. To utilise the logical distinction referred to in [37] above, it may set out the findings of fact which gave rise to the decision but it does not set out the reasons for the decision.

55 I conclude that the Minister did not give to the respondent a written notice that sets out the reasons for the decision to cancel the respondent's visa as required by s 501G(1)(e) of the Act.

Does the failure to give the required notice constitute a ground of review?

56 The primary judge reached the tentative conclusion (see [29] above) that the established failure of the Minister to give to the respondent a written notice that sets out the reasons for the Minister's decision enlivened the ground of review identified by s 476(1)(a) of the Act. That ground of review is:

"that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed."
57 The Minister contended before this Court that, even if the primary judge was not in error in deciding that the Minister had failed to provide the notice required by s 501G(1)(e) of the Act, that failure did not constitute the ground of review identified by s 476(1)(a) of the Act. He placed reliance on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 per McHugh, Gummow and Hayne JJ at [77] and Callinan J at [205] submitting that the difference in wording between s 501G(1)(e) and s 430(1) of the Act is not presently material. The Minister argued that the primary judge erred in following the minority view of Gaudron J in Yusuf at [30]-[31].

58 In Yusuf at [77] McHugh, Gummow and Hayne JJ observed:

"... it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made."
59 Gaudron J at [30]-[31] said:

"Logically, the making of a decision and the recording of it are distinct steps. Were the ground of review allowed by s 476(1)(a) expressed in terms of procedures to be observed in the making of a decision, there might, perhaps, be some scope for an argument that it does not extend to procedures to be observed in recording a decision. However, the phrase used in s 476(1)(a) is "in connection with the making of the decision" - a phrase signifying a less precise connection than "in the making of the decision". Moreover, s 430 is not concerned solely with the recording of a decision. In terms, it is also concerned with the `prepar[ation of] a written statement that ... sets out the decision of the Tribunal'.

Notwithstanding that the making of a decision and the recording of a decision are logically distinct steps, the making of a decision and the preparation of a written statement setting out that decision often constitute a single process. Given that that is so and given, also, that the expression used in s 476(1)(a) is `in connection with the making of [a] decision', there is no basis for reading s 476(1)(a) as not extending to the procedures required by s 430 of the Act."
60 It was submitted by the Minister that the differences in wording between s 501G(1)(e) and s 430(1) of the Act are not presently material. If the respective contexts in which the two provisions are found is taken into account, it seems to me that the differences may be important. Section 501(2) empowers the Minister to cancel a visa in the circumstances identified in the subsection. Section 501G(1) is plainly intended to require the Minister, after a decision to cancel a visa is made under s 501(2), to notify the person affected of a number of things including the decision and the reasons for the decision. A decision made under s 501(2) to cancel the visa is likely to come into operation, as it apparently did in this case, before the person affected is given the notice required by s 501G(1)(e). It is likely that the legislature envisaged that the s 501G(1) notice would be brought into existence after the decision to cancel the visa had come into effect.

61 By contrast, except where the Refugee Review Tribunal gives a decision orally, s 430(1) requires the Refugee Review Tribunal to prepare the written statement recording its decision before its decision is handed down. Until its decision is handed down the Tribunal is free to alter the written statement and, indeed, to change its decision. Until that time any "decision" is inchoate; it only becomes unalterable after it is handed down (as to the power of an administrative tribunal to reconsider a decision after it is published see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 180 ALR 117). At least in circumstances in which the Refugee Review Tribunal does not give its decision orally, the preparation of the written statement is, both logically and as a matter of practical reality, significantly more closely connected with the making of the relevant decision than the giving of the written notice required by s 501G(1)(e).

62 In my view, authorities concerning s 430(1) of the Act (including Xu v Minister for Immigration and Multicultural Affairs (FC) [1999] FCA 1741; 168 ALR 621 at [26]) are of assistance, but are not conclusive, on the issue of whether the giving of the written notice required by s 501G(1)(e) of the Act is a procedure required by the Act to be observed in connection with the making of the Minister's decision under s 501(2) of the Act (see s 476(1)(a)). I conclude that the context in which s 501G(1)(e) is found indicates, for the reasons discussed in [60] above, that the giving of the s 501G(1)(e) notice is not a procedure required by the Act to be observed in connection with the making of the Minister's decision. It is a procedure required by the Act to be observed in connection with the decision once made.

63 For the above reason I conclude that the failure of the Minister to give the respondent the notice required by s 501G(1)(e) did not of itself enliven the ground of review identified in s 476(1)(a) of the Act.

Jurisdictional Error

64 As is mentioned above, the primary judge concluded that a matter that the Minister was bound to take into account, namely the best interests of the respondent's children, had not been properly addressed by the Minister. The Minister's notice of appeal challenges his Honour's conclusion in this regard on three bases (see [32] above). The first of these bases was not pressed; the Minister took no objection to the respondent being granted leave by this Court to amend his application for review. The amended grounds of application are set out in [2] above.

65 The contention of the Minister that, to the extent required by the law and facts, he did take into account the best interests of the respondent's children faces, in my view, an insuperable difficulty. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 McHugh JA observed:

"... without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as `a necessary incident of the judicial process' because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law."
For the reasons identified by McHugh JA in Soulemezis in respect of judicial decisions, it is not possible for the Court in this case to identify the basis of the Minister's administrative decision. For that reason the Court does not know, one way or the other, whether the Minister took into account, whether as a primary consideration or otherwise, the best interests of the respondent's children.

66 The above conclusion is a stark illustration of the importance of the legislative requirement contained in s 501G(1)(e) of the Act that the Minister provide to a person whose visa is cancelled under s 501(2) of the Act a written notice that sets out the reasons for the decision. Without information as to the reasons for the Minister's decision, the right of judicial review conferred by s 476 of the Act loses much of its practical significance. In particular, it will be virtually impossible for the person whose visa has been cancelled to know whether the decision is one which is open to be reviewed on the ground that:

* the decision was an improper exercise of the power conferred by the Act or the regulations made under the Act (s 476(1)(d));

* the decision involved an error of law (s 476(1)(e); or

* there was no evidence or other material to justify the making of the decision (s 476(1)(g)).

67 The respondent by his written submissions acknowledged that:

"it is simply unknown whether the Appellant considered that it was in the interests of the children not to have contact with the Respondent, because of the offences, and that this cancelled out other benefits of parenting that the Respondent might provide, so that, for instance, any damage caused by the cancellation was only of slight or moderate significance, alternatively, whether the Appellant determined that he would not take into account the interests of the children, because he was not bound by Direction 17, or indeed, ultimately, how the Appellant could have reached his decision, if in fact he did take into account the interests of the children."
68 The above acknowledgment highlights a difficulty in this case. It is a difficulty recognised by the primary judge. His Honour's consideration of whether a ground of review other than that identified in s 476(1)(a) was made out was based on an assumption that the Minister was correct in characterising the issues document as a notice that sets out the Minister's reasons for decision. Once it is accepted, as in my view it must be, that the issues document does not set out the Minister's reasons, the factual basis for a finding that the Minister did not treat the best interests of the respondent's children as a primary consideration disappears. However, this conclusion is not of itself in the circumstances determinative of this aspect of the appeal.

69 The learned primary judge granted the application for judicial review of the decision of the Minister on the basis that the issues document did satisfy the requirements of s 501G(1)(e) of the Act and that, treated as a record of the Minister's reasons for decision, it demonstrated that the Minister had not taken into account the best interests of the respondent's children as a primary consideration.

70 As is indicated above, in my view, the Minister's contention that the issues document complies with the requirements of s 501G(1)(e) is unsustainable. That is, ground 2(1) of the notice of appeal fails. Ground 2(2), however, in my view, succeeds on the basis that proof of the failure of the Minister to give the respondent the notice for which s 501G(1) calls does not make out the ground of review identified in s 476(1)(a) of the Act. The Minister has thus succeeded in establishing that the primary judge's tentative conclusion that the ground of review under s 476(1)(a) was made out is flawed.

71 It is therefore necessary to turn to the true basis upon which the primary judge granted the application for review and to the grounds of appeal touching on that basis that were pressed on the hearing of the appeal. The Minister understandably did not initially argue that the respondent had not, and could not, demonstrate that the Minister had failed to take into account the best interest of the respondent's children. To do so would have involved the Minister in an acknowledgment that he had not disclosed to the respondent his reasons for decision. Both parties initially argued this aspect of the appeal on the basis that the issues document did set out the reasons for the Minister's decision. However, by subsequent written submissions the Minister argued, without provoking any objection, that the real issue was whether the respondent had established that the Minister did not take into account as a primary consideration the best interests of the respondent's children. As a matter of law it was, of course, for the respondent to make out the grounds of review upon which he relied before the primary judge. It is thus necessary for consideration to be given to whether the respondent can establish that the Minister did not take into account as a primary consideration the best interests of the respondent's children.

72 Although I have concluded that the issues document does not set out the reasons for the Minister's decision to cancel the respondent's visa, this does not mean that it is irrelevant to the issue of whether it has been established that the Minister did not take into account the best interests of the respondent's children as a primary consideration. The issues document is relevant in this context as it was before the Minister when he reached his decision.

73 The written submissions of the Minister state:

"It is apparent from the Issues Document, and the letter to the respondent, that the appellant decided the seriousness of the offence committed, issues of general deterrence and expectations of the Australian community favoured cancellation and outweighed those factors against cancellation, including, as a primary consideration, the best interests of the respondent's children."
Further, the Minister's written submissions contended that it is "clear" from [35]-[46] and [67] of the issues document that the Minister did take into account the best interests of the respondent's children.

74 In Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 at [118] Allsop J pointed out that:

"The interests of the children are considerations in respect of their human development - their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people ..."
75 The paragraphs of the issues document referred to in the Minister's written submission identify the respondent's children and their respective sex and age. They note the respondent's claim to have an active role in the children's lives and his assertion of responsibility for his sons' health, education, discipline and religious upbringing. Reference is made to a report from a clinical psychologist which expresses opinions as to the boys' positive bond with their father and the grief and upheaval that they would experience were he to leave Australia. The view of the boys' mother that his presence was important to the boys' future and particularly their education is recorded. It is also recorded that the respondent's solicitor had asserted that the respondent's assistance to his daughter's mother was essential to his daughter's long-term needs.

76 It is not clear from [35]-[46] and [67] of the issues document whether the Minister took into account a "most relevant aspect of the children's position", namely their Australian citizenship (Vaitaiki per Burchett J at 614). The issues document itself, surprisingly, contains no reference to this important consideration. However, in view of the Minister's assertion in the issues document that he had considered "all relevant matters", including the respondent's comments, I have concluded, albeit with considerable unease, that it is not open to the Court to conclude positively that the Minister overlooked this issue. It is referred to in a statutory declaration made by the respondent which was an attachment to the issues document.

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] FCA 568; 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.

79 It was argued on behalf of the Minister that, even if it could be shown that the Minister did not take into account the best interests of the respondent's children as a primary consideration, this would not give rise to a ground of review under s 476 of the Act. As was pointed out in Vaitaiki (per Burchett J at 615-616 and Branson J at 630) the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 is firmly based on principles of natural justice. I therefore accept that a failure by the Minister to act in conformity with the United Nations Convention on the Rights of the Child without giving the respondent notice of his intention to do so, and an adequate opportunity of presenting a case against the taking of that course, would constitute a breach of the rules of natural justice only. As a consequence the failure would not give rise to a ground of judicial review under the Act (see s 476(2)(a) of the Act). However, while it is not necessary in this case to reach a concluded view on the question, I am far from satisfied that the respondent's submission that the Minister was under a common law obligation to give consideration to the best interests of the respondent's children is without merit. I respectfully adopt what is said by Allsop J as to the issues that may, in an appropriate case, require consideration before the


question can be answered. If the Minister was under an obligation to give consideration to the best interests of the respondent's children, and if it could be shown that he did not do so, a ground of review under s 476 of the Act might well be enlivened (Minister for Immigration and Multicultural Affairs v Yusuf).

80 It follows from the above that the respondent, and perhaps even more importantly the respondent's children, cannot be sure that the right of judicial review afforded the respondent by Australian law has not, in the special circumstances of this case, been frustrated by the Minister's failure to comply with his statutory obligation to give the respondent a written notice which sets out the reasons for the Minister's decision to cancel the respondent's visa. This is a highly unusual circumstance, and a circumstance which it may be assumed with confidence was not intended by either the Minister or his advisers.

81 Further, two years have now passed since the Minister made his decision. It may be that judgments appropriately made in July 2000 might not be made now.

82 The above circumstances suggest, in my view, that the parties should have the opportunity of considering in the light of the Court's reasons for judgment what final orders, including orders (if any) as to costs, should be made.

CONCLUSION

83 The orders that I would make are as follows:

1. The appeal be stood over to a date to be fixed for the purpose of the making of orders giving effect to the reasons for judgment of the Court, including, if the Court thinks fit, orders for costs.

2. The parties provide to the Associate of Branson J by no later than five clear days before the resumed hearing an agreed minute of the orders to be made (including the orders, if any, as to costs) and if agreement has not by then been reached, the minutes of order for which they will respectively contend and brief outlines of submissions in support of the orders.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.




Associate:

Dated: 4 September 2002

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W 533 of 2001



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA




BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

APPELLANT


AND:
W 157/00A

RESPONDENT




JUDGE:
BRANSON, GOLDBERG & ALLSOP JJ


DATE:
4 SEPTEMBER 2002


PLACE:
SYDNEY (HEARD IN PERTH)





REASONS FOR JUDGMENT
GOLDBERG J

84 I have had the advantage of reading the reasons for judgment of Branson J and the reasons for judgment of Allsop J. I agree with their Honours' reasons and the orders which Branson J proposes.

85 I wish to make the following additional comment. I agree with their Honours that the issues document signed by the Minister and dated 3 July 2000 did not set out the reasons for the decision of the Minister to cancel the respondent's visa. I agree with Branson J's analysis of that document and note in particular that it was not identified as a document which set out the reasons for the Minister's decision but was rather described by an officer of the Department of Immigration and Multicultural Affairs as "the decision record".

86 Like Allsop J, I have been troubled by the question whether the failure by the Minister to observe the terms of par 501G(1)(e) of the Migration Act 1958 (Cth) ("the Act"), which is plainly a procedure required by that paragraph to be carried out, is appropriately described as a procedure required by the Act "to be observed in connection with the making of the decision" within the terms of s 476(1)(a) of the Act.

87 It seems to me that as a matter of principle a procedure to be observed "in connection with the making" of a decision may, as a matter of logic, include a procedure both anterior to, as well as subsequent to, the making of a decision: see, for example, Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577 per Wilcox J at 591-592. However, the weight of authority in relation to the construction of s 476(1)(a) of the Act does not allow that conclusion to be reached: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [77] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed at [1], per Callinan J at [205]). See also Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 at [26].

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.




Associate:

Dated: 4 September 2002

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
W533 of 2001



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA




BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

APPELLANT


AND:
W157/00A

RESPONDENT




JUDGES:
BRANSON, GOLDBERG & ALLSOP JJ


DATE:
4 SEPTEMBER 2002


PLACE:
SYDNEY (HEARD IN PERTH)





REASONS FOR JUDGMENT
ALLSOP J

88 I have had the advantage of reading the reasons for judgment of Branson J. I agree with the orders which her Honour proposes and her Honour's reasons for making them. I would simply add the following comments of my own.

89 I agree that the appellant did not give the respondent a written notice that set out the reasons for his decision as he was required to do by par 501G(1)(e) of the Migration Act 1958 (Cth) (the Act). On no view, it seems to me, could the material which was sent to the respondent be characterised as a document that explained why the appellant had reached the decision that he had.

90 I was initially troubled by the question whether this failure by the appellant, to observe what is plainly a procedure, brought the matter within the terms of par 476(1)(a) of the Act. However, I have reached a firm view that the failure of the appellant to comply with par 501G(1)(e) does not enliven par 476(1)(a).

91 For the non-observance of a procedure under the Act to be a ground for an application for review under par 476(1)(a) it must be `in connection with the making of the decision'. Clearly, s 501G differentiates between the making of a decision and the sending of a notice containing the reasons for it. The obligation to do the latter only arises once the decision has been made. For a decision to be made and for it to be other than arbitrary and capricious there must, at the time of the decision, be reasons. In that sense, though the decision, as an administrative act, is capable of isolation from the reasons therefor, it cannot be reached rationally without a reason or some reasons for it. Nevertheless, if those reasons, having been committed to writing (whether at or about the time of making the decision or later), are later sent to the subject of the decision, the physical act of sending them and the legal obligation to undertake that physical act are distinct from, and unconnected with, the making of the decision.

92 It can be said that the requirement upon administrative decision makers to give reasons has a relationship with decision making. One of the many beneficial effects of giving reasons for decisions is the `salutary discipline for those who have to decide anything that adversely affects others': De Smith et al Judicial Review of Administrative Action (5th Ed) p 459. See also, for example, Craig `The Common Law, Reasons and Administrative Justice' (1994) 53 CLJ 282, 283-84. In that sense, the requirement to give reasons helps to encourage a careful attention to the proper legal framework of the decision and to the relevant issues to consider in making the decision, and, thus, to foster good decision making.

93 However, to say as much does not answer the question of statutory construction as to whether the procedure in par 501G(1)(e) falls within the purview of par 476(1)(a). In my view, it does not. That this benefit is recognised amongst those concerned with administrative law does not lead to the conclusion, as a matter of language for the purposes of par 501G(1)(e), that a failure to give reasons is a failure to follow a procedure in connection with the making of the decision. The decision has been made when the procedure is required to be observed. The `salutary discipline' may be a perceived benefit, but I do not see it as informing the terms of ss 476 and 501G so as to lead to the conclusion that a failure to do something after a decision was made was in connection with the making of that decision.

94 In relation to this question, we were referred to the apparent difference of view expressed in Minister for Immigration and Ethnic Affairs v Yusuf (2001) 180 ALR 1 concerning the question whether the obligation on the Refugee Review Tribunal (RRT) to prepare a written statement under subs 430(1) is in connection with the making of the relevant decision. The terms of s 430 are different from the terms of s 501G. An important aspect of that difference is that the terms of subs 430(1) may be seen to treat as interrelated or connected the making of the decision and the preparation of the written statement. There is much more to be said for the proposition that the obligation on the RRT to prepare a written statement that sets out the reasons for the decision of the RRT under subs 430(1) is in connection with the making of a decision of the RRT than there is for the proposition that the obligation to give a written notice that sets out the reasons for the decision under par 501G(1)(e) is in connection with the making of that decision, which has already occurred. However, it should be noted that in Yusuf McHugh, Gummow and Hayne JJ at [77] (with whom Gleeson CJ agreed at [1]) expressed the view (in relation to subs 430(1)) that:

"... it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made."
95 Gaudron J was of a different view. Her Honour said at [31]:

"Notwithstanding that the making of a decision and the recording of a decision are logically distinct steps, the making of a decision and the preparation of a written statement setting out that decision often constitute a single process. Given that that is so and given, also, that the expression used in s 476(1)(a) is `in connection with the making of [a] decision', there is no basis for reading s 476(1)(a) as not extending to the procedures required by s 430 of the Act. ..."
96 See also the views of Whitlam J and Gyles J in Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 at [25]-[26] which were to the effect that the giving of reasons under s 430 was not part of the decision making process and was not "in connection with" the making of the decision.

97 It is enough to say that ss 430 and 501G are different in expression. Section 501G has none of the elements of interconnection which may, perhaps, be seen in subs 430(1) and which might lead to the conclusion (though it would be contrary to Xu, supra in respect of s 430) that in any given case the making of a decision and the preparation of written reasons are part of a single process.

98 Thus, for the reasons given by Branson J and for the above reasons, I conclude that the failure by the appellant to follow the procedure required by par 501G(1)(e) does not provide a ground of review under par 476(1)(a) of the Act.

99 The question arose before the primary judge and before us as to whether the appellant had taken into account the interests of the respondent's three children. The respondent's re-amended application for an order for review (filed without objection on 7 May 2002) claimed that the appellant failed to recognise and give consideration to the interests of the children. The primary judge dealt with the question in a manner unfavourable to the appellant. The notice of appeal asserted that the issue as arising from Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 was one of procedural fairness which was excluded from review by subs 476(2); and, alternatively, positively asserted that the appellant did take the best interests of the children into account, in any event. In supplementary submissions, filed after the hearing of the appeal, counsel for the appellant also put that it had not been, and could not be, shown that the appellant had failed to take the interests of the children into account.

100 As was pointed out in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, in particular by Branson J at 630, the decision in Teoh, supra, was firmly based on principles of natural justice: see Teoh, supra at 291-2 (per Mason CJ and Deane J), 303 (per Toohey J), and see also 305 (per Gaudron J). Mason CJ and Deane J, and Toohey J based their conclusions as to natural justice on the existence and terms of the Convention of the Rights of the Child which was ratified by the Commonwealth Executive on 17 December 1990 and which entered into force for Australia on 16 January 1991 and on the reasonable expectation engendered by those matters. Gaudron J also considered that there was a common law right on the part of the children and parents arising from citizenship to have a child's best interests taken into account (her Honour said: `at least as a primary consideration') in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare: Teoh, supra at 304. Her Honour said the following about the foundation of this common law right (at 304):

... However, I consider that the Convention is only of subsidiary significance in this case. What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings [See, in relation to the `direct responsibility of the Crown' which founds the `parens patriae' jurisdiction originally conferred on the English Court of Chancery, Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-59 and the cases there cited; cf at 279-280. See, in relation to the paramountcy of the child's welfare in the exercise of that jurisdiction, Marion's case, at 292-293 and the cases there cited.], which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.
101 Mason CJ and Deane J touched on this subject matter at 292 where their Honours said:

...That view entails the conclusion that there was a want of procedural fairness. It may also entail, though this was not argued, a failure to apply a relevant principle in that the principle enshrined in Art 3.1 may possibly have a counterpart in the common law as it applies to cases where the welfare of a child is a matter relevant to the determination to be made.

102 The terms of par 476(2)(a) exclude the rules of natural justice as grounds upon which application can be made under subs 476(1). In my view, that excludes an argument based on Teoh, supra, in so far as the complaint is put on the basis of the reasoning of the majority in Teoh, supra: a want of procedural fairness.

103 However, as expressed by Gaudron J at 304, the same issue can be exposed not as a want of procedural fairness should there be given no opportunity to be heard if the interests of the child are not to be taken into account as a primary consideration, but as a failure to take into account a relevant consideration required by the common law to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42; Yusuf, supra at [14]; and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707, 739 [131] and [132].

104 This was how the matter was argued before us by the respondent. The primary judge dealt with the matter at [74] to [88] of his reasons. His Honour stated (at [78]) that:

It was not in issue that the interests of the children were to be taken into account by the Minister as a primary consideration in the making of the decision, the Minister not having advised the applicant that the interests of the children would not be so regarded. ...
105 The agreement by the appellant to that matter was plainly correct. Teoh, supra required this approach, unless a warning to the contrary were to be given. The appellant was not relieved of the obligation of affording the respondent procedural fairness by the terms of subs 476(2) or, indeed by the balance of the Act: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57.

106 The primary judge then examined the terms of the `issues document', which he, correctly, had already found not to set out the reasons for the decision for par 501G(1)(e), in so far as it dealt with the best interests of the children. His Honour then said:

[84] It is to be assumed also that the Minister determined that the best interests of the children of the applicant, and their interests as Australian citizens, would only be served by a decision by the Minister not to cancel the applicant's visa. No other determination as to the interests of the children could have been made on the material before the Minister.
[85] In the absence of reasons which explained how the Minister found that important consideration to have been outweighed by other matters it is difficult to know how the Minister decided that the visa held by the applicant was to be cancelled. If it is speculated that the Minister identified the `expectation of the Australian community' as the consideration which outweighed the best interests of the children and their interests as Australian citizens, then it is to be borne in mind that, as discussed earlier in these reasons, any determination by the Minister in that regard would have been based on misleading material presented to the Minister by the `issues document', and the decision made on an erroneous footing (see: Re Patterson per Gummow, Hayne JJ at [196]).

[86] If the `issues document' is to be taken to set out the reasons of the Minister then the failure of the document to explain how this issue was dealt with by the Minister meant that the reasons of the Minister in that regard were not disclosed. The reasons for a decision to cancel the applicant's visa, being a decision contrary to the best interests of the children, a matter the Minister accepted was a primary consideration according to the procedure adopted by the Minister, would have to identify the considerations taken into account which outweighed the damage to be caused to the interests of the children by such a decision. (See: Wan v Minister for Immigration and Multicultural Affairs [2001] 107 FCR 133 at [32]-[34] (FC))

[87] The `issues document' failed to show that the Minister addressed the right question, or alternatively, dealt with that question according to law, and ground for review of the Minister's decision was established under s 476(1)(b) or (c) for jurisdictional error, or under s 476(1)(e) in that the reasons revealed an error in the interpretation of the applicable law or in the application of that law to the facts. See Yusuf per McHugh, Gummow and Hayne JJ at [82], [84]). That is to say, a matter the Minister was bound to take into account was not properly addressed in the making of the decision by reason of an incorrect understanding of what the law required the Minister to do in carrying out the decision-making process. See Vaitaiki per Burchett J at 618-619; per Branson J at 631 .

[88] I note that in Suleyman, Zakariya Harun (Farah) v Minister for Immigration and Multicultural Affairs [2000] FCA 610 per Matthews J at [44], Her Honour stated, in obiter comment, that failure to treat the best interests of children as a primary consideration would not constitute an error of law or `any reviewable error under s 476'. The argument addressed to Her Honour appears to have been limited to a submission on the consequences in law of a denial of procedural fairness, and the occurrence of jurisdictional error in the decision-making function, as discussed above, was not an issue Her Honour was required to consider.

107 The difficulty that I have with this approach of the primary judge is that the issues document does not explain what the reasons of the appellant were. Notwithstanding the submissions of the appellant, through his counsel, that the issues document contains his reasons, it plainly does not, as explained by Branson J. One is simply not told how the appellant reached his view or what he took into account. One cannot conclude from the issues document that the best interests of the children were taken into account. It does not follow, however, that it can or should be concluded that the appellant failed to address the right question or dealt with the matter according to law.

108 The universe of material available to the appellant in the issues document and attachments (taken together) contained sufficient information as to enable the appellant to identify the best interests of the children and to take them into account. He may well have done so. The difficulty is that in the absence of reasons for the decision, and in the light of the form of the issues document, it cannot be concluded that the appellant did not take into account the best interests of the children. Nor can it be concluded that he did so. Thus, I disagree with the primary judge's conclusion that it can be concluded that the appellant failed to address the right question or dealt with the matter according to law.

109 One further matter arises from the primary judge's approach. As is plain from his Honour's distinguishing (at [88] of his Honour's reasons, see [106] above) of the decision of Matthews J in Suleyman, Zakariya (Farah) v Minister for Immigration and Multicultural Affairs [2000] FCA 610 at [44], his Honour's conclusions in [87] of his reasons concerning the failure to take matters into account (see [106] above) were founded not on the failure to inform the respondent of an approach that did not take into account the best interests of the children as a primary consideration as part of the law of procedural fairness, but on the failure of the appellant to take into account a mandatorily relevant (and primary) consideration, being the best interests of the children.

110 In support of this approach the primary judge referred (at [81]) to Vaitaiki, supra; Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133; and Gaudron J in Teoh, supra. The comments of Gaudron J support that conclusion. Vaitaiki and Wan do not. They were decided upon principles of procedural fairness in accordance with the decision in Teoh.

111 The submission was put to us by the respondent that the best interests of the children were, as a matter of common law, a consideration required to be taken into account, in the sense referred to in [103] above. The argument was not developed beyond relying on the primary judge and referring to Gaudron J in Teoh.

112 Since it cannot be shown that the best interests of the children were not taken into account, the question does not arise.

113 The parties submitted that the issue, if it were to be ventilated and decided, did not raise the need to issue notices under s 78B of the Judiciary Act 1903 (Cth) (the "Judiciary Act"). No such notices were issued. In my view, it was unnecessary to issue the notices only because the issue does not arise for decision, given the conclusion reached that the respondent could not show that the appellant had not taken into account the best interests of the children. For my part, the question whether a Minister of the Commonwealth is obliged by law (absent a contrary intention in a Commonwealth statute) to take into account the best interests of children is a matter arising under the Constitution, or involving its interpretation, because it involves the question as to the content, by way of immanent obligation, of the executive power vested by s 61 of the Constitution. To say that there is a common law obligation on a Minister or other member of the executive to act in a particular way in the exercise of power `by the common law' is to give content by way of circumscription to the exercise of that power.

114 Gaudron J in Teoh, supra, was of the view that the body politic, and within it the Commonwealth executive, had a duty to vulnerable individuals, including children, just as kings had such a duty arising from the position of the Crown as `parens patriae'.

115 Given the views to which I have come as to the inability to conclude that the best interests of the children were not taken into account, the issue does not arise. Thus it is neither necessary nor appropriate (in particular in the absence of the issuance of notices under s 78B of the Judiciary Act) to express any view on this question. However, it is not impermissible or inappropriate to say that the question is, I think, one of importance and some difficulty. Whatever other elements to the problem there may be, the following issues may attend any consideration of the question, if it were to arise: the origins and nature of the parens patriae jurisdiction of Courts; the notion of the `doctrine' (if it be correctly so characterised) of parens patriae, its relationship to wardship powers and its place as part of the prerogative of the Crown; whether the power or jurisdiction in the Crown or its Courts called `parens patriae jurisdiction' carried with it obligations of, or duties on, the Crown and, if so, the nature and any limits of those obligations or duties; whether the question of the existence of property to which the child may have been entitled affected the nature and extent of any jurisdiction, obligations or duties in connection with the interests of children; whether, if part of the prerogative, the parens patriae jurisdiction, obligations or duties was or were at some point wholly delegated to Chancery or to the Lord Chancellor; whether, if part of the prerogative at the end of the nineteenth century, the parens patriae obligations or duties became part of the fabric of the Commonwealth executive power under s 61 of the Constitution and, if so, to what extent; the effect, if any, of the notion of citizenship in the Australian federal polity on the content of the executive power within s 61, irrespective of whether s 61 contained this aspect of the inherited prerogative; whether a relevant statute or other matter has limited or otherwise affected any such obligations or duties if they could


otherwise be said to be within s 61; and whether the resolution of this question is one appropriately to be undertaken by an intermediate appellate court.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.




Associate:

Dated: 4 September 2002

Counsel for the Appellant:
M T Ritter






Solicitor for the Appellant:
Australian Government Solicitor






Counsel for the Respondent:
H Christie






Solicitor for the Respondent:
Christie and Strbac






Date of Hearing:
6 May 2002






Date of Receipt of Final Submissions:
27 June 2002






Date of Judgment:
4 September 2002


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