Minister for Immigration & Multicultural & Indigenous Affairsv Lorenzo [2005] FCAFC 13 (22 February 2005)

Minister for Immigration & Multicultural & Indigenous Affairs v Lorenzo [2005] FCAFC 13

MIGRATION – cancellation of visa – character test – substantial criminal record – letter of support outlining the visa-holder’s relationship with his child not received – whether Issues Paper created misleading impression – whether visa-holder should have been given an opportunity to respond – whether denial of procedural fairness – whether there was a failure to take into account as a primary consideration the best interests of the children

CONSTITUTIONAL LAW – aliens power – whether cancellation decision involves exercise of the judicial power of the Commonwealth – Migration Act 1958 (Cth) s 501(2)

Constitution s 51(xix), Ch III

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 499, 501

United Nations Convention on the Rights of the Child [1991] ATS 4

Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 cited
Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433 cited
Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218; (2003) 76 ALD 610 distinguished
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 distinguished
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488 followed
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 distinguished
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 cited
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 cited
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 cited
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 cited
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 209 ALR 271 considered
Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124 considered
Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 210 ALR 369 considered
Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 208 ALR 271 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v JULIO LORENZO
NSD 687 of 2004

WILCOX, SACKVILLE and FINN JJ
SYDNEY
22 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 687 of 2004

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	JULIO LORENZO RESPONDENT
JUDGES:	WILCOX, SACKVILLE & FINN JJ
DATE OF ORDER:	22 FEBRUARY 2005
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 687 of 2004

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	JULIO LORENZO RESPONDENT

JUDGES:	WILCOX, SACKVILLE & FINN JJ
DATE:	22 FEBRUARY 2005
PLACE:	SYDNEY

1 This is yet another case in which a permanent resident of Australia has challenged a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’). In this particular case, the visa holder (‘the respondent’) is a Spanish citizen now aged 39. He has resided in Australia for over 24 years and has two children born in this country, both of whom are Australian citizens. However, the respondent has an extensive criminal record and on 25 May 2002 the Minister deemed it appropriate to cancel his visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘Migration Act’).

2 The respondent succeeded before the primary Judge in obtaining an order setting aside the Minister’s decision: Lorenzo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 435. His Honour held that the Minister had denied the respondent procedural fairness, in that the respondent was not given an opportunity to respond to adverse material in the Departmental submission upon which the Minister apparently acted. Accordingly, the Minister’s decision was affected by jurisdictional error and the respondent was entitled to relief pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) (‘Judiciary Act’). On the appeal, the Minister challenges his Honour’s conclusion that the respondent was denied procedural fairness.

3 Before the primary Judge, the respondent advanced a number of additional arguments in favour of the relief he sought. His Honour considered and rejected each of these arguments. The respondent relies on most of these arguments on the appeal and to that end has filed a notice of contention. The notice of contention includes a ground that s 501 of the Migration Act infringes Chapter III of the Constitution because it authorises the executive to exercise the judicial power of the Commonwealth. Section 501 is said to empower the Minister to punish persons for conduct in respect of which they have already been convicted and served sentences. Notice of the constitutional question was given to the Attorneys-General of the Commonwealth and States as required by s 78B of the Judiciary Act, but none sought to intervene in the proceedings.

5 A person is taken not to pass the character test if he or she has a ‘substantial criminal record’: s 501(6)(a). A person has a substantial criminal record, inter alia, if he or she has been sentenced to two or more terms of imprisonment where the total of those terms is two years or more: s 501(7)(d). There was no dispute before the primary Judge that the respondent did not pass the character test.

6 The respondent was born in Spain in 1965. He entered Australia on 14 October 1980, apparently with his parents. In 1986, the respondent’s parents became Australian citizens, but he did not follow suit.

7 In June 1989, the respondent was convicted of supplying a prohibited drug and sentenced to 12 months imprisonment. In May 1991, he was convicted of robbery and sentenced to a minimum term of imprisonment of 18 months.

8 In 1992, the respondent was considered for deportation under the Migration Act, but his visa was not cancelled at that time. Instead, the respondent was issued with a written warning that any further conviction would lead to the Minister reconsidering the question of his deportation and that disregard of the warning would ‘weigh heavily’ against him.

9 Between 1993 and 2001, the respondent was convicted of a large number of offences. Most related to the possession or supply of prohibited drugs, but they also included assault, robbery, goods in custody and contravening apprehended violence orders. The sentences imposed as a result of these convictions exceeded a total of two years imprisonment. The offences included a conviction on 29 April 1993 for supplying a prohibited drug (heroin), for which he was sentenced to three months imprisonment.

10 The respondent has had two long-term relationships in Australia and has a son from each relationship. His older son was born in 1988 and at the relevant times lived with his mother in Queensland. The respondent has had ‘very limited contact’ with his older son.

11 The respondent’s younger son, Yves, was born in 1993. At the relevant times he lived with his mother, Ms Sosa, in Sydney. Ms Sosa gave uncontested evidence before the primary Judge that the relationship between the respondent and Yves was ‘very close’, even when the respondent was in custody. She also gave evidence that the respondent’s removal from Australia would be ‘devastating’ to Yves. His Honour said that he had ‘no reason to doubt’ Ms Sosa’s evidence.

12 On 30 November 2001, while the respondent was on remand for larceny and drug offences, the Minister served on him a ‘Notice of Intention to Consider Cancelling a Visa under subsection 501(2) of the Migration Act 1958’ (‘the Notice’). The Notice annexed a copy of the relevant legislation and the relevant Ministerial Direction. The Notice advised the respondent that if he wished to provide written comments to the Minister he should do so by 21 December 2001.

13 On the same day, 30 November 2001, the respondent was interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’), Ms Speed. Ms Speed completed in handwriting a printed document headed ‘NOTES ON INTERVIEW WITH VISA HOLDER’ (‘Interview Notes’). The printed document records that the respondent had been informed that he was liable to have his visa cancelled because of his past and present criminal record. Ms Speed also told the respondent that he would require letters of support from his family detailing his relationship with Yves. The respondent said he would provide them.

14 The Interview Notes record the dates of birth of the respondent’s sons and the names of their respective mothers. The Interview Notes include the following:

15 By letter dated 12 December 2001, Ms Speed extended the deadline for providing further information to 2 January 2002. The same letter informed the respondent that the matters to be taken into account by the Minister or a delegate in considering whether to cancel his visa included his substantial criminal record, his past and present criminal conduct and the previous written warning issued in March 1992.

16 On 29 January 2002, the respondent appeared before the Drug Court and was placed on a 12 month rehabilitation program at Adele House. Ms Speed’s file note of that date records that the Department was informed that the respondent had been taken to Adele House.

17 On 31 January 2002, Ms Speed spoke to the respondent who requested a few days to get his documents together. Ms Speed agreed that he could have until 8 February 2002. On 6 February 2002, a worker at Adele House and a co-ordinator of the Court Diversion Program wrote to Ms Speed on the respondent’s behalf. The letter stated that the respondent had a young son who resided with the child’s mother and that the respondent saw the child regularly and had a good relationship with him.

18 On 28 February 2002, Ms Speed prepared a file note recording the respondent’s residence at Adele House. The note included the following:

19 On 3 March 2002, the respondent left Adele House. On 3 April 2002, an officer of DIMIA ascertained that the respondent was no longer resident at Adele House and that a warrant had been issued for his arrest. The respondent was arrested on 14 April 2002 and sentenced by the Drug Court on 9 May 2002 to a further term of imprisonment ending on 14 October 2002.

20 On 9 May 2002, a Departmental file note recorded that an officer from the Department of Corrective Services had told the appellant (then in custody) that a submission would be prepared by DIMIA for the Minister unless a further response was received from the respondent by 14 May 2002. In his evidence the respondent said he did not remember this conversation. His Honour did not find it necessary to decide whether the conversation had in fact taken place.

21 On 14 May 2002, a document entitled ‘ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF MR LORENZO’S VISA UNDER S. 501(2) OF THE MIGRATION ACT 1958’ (‘Issues Paper’) was submitted to the Minister. The purpose of the Issues Paper was said to be to seek the Minister’s decision on whether the respondent passed the character test and, if not, whether his visa should be cancelled.

22 The Issues Paper recorded that the respondent had previously been considered for deportation and had been issued with a warning. It also listed his various post-1992 convictions and attached a copy of the respondent’s criminal history. The Issues Paper separately listed the convictions that had been taken into account when he was issued with the warning in 1992.

23 Under the heading ‘DISCRETION’, the Issues Paper stated that the respondent had been notified in person of the intention to cancel his visa and that he had said he would provide information by 8 February 2002. The Issues Paper recorded that the respondent had been contacted on 28 February 2002 and offered further time to submit further information. It also said that he had been told on 9 May 2002 that unless the information was received by 14 May 2002 a submission would be prepared for the Minister on the basis of the information to hand. According to the Issues Paper, the respondent ‘did not respond’.

24 The Issues Paper, under the heading ‘Primary Considerations – Protection of the Australian Community’, dealt with the ‘seriousness and nature of [the respondent’s] conduct’. It quoted from the Minister’s Direction as follows:

The Issues Paper noted that ‘Mr Lorenzo’s offence’ was ‘a very serious offence under the Direction’. It went on to observe that the respondent had ‘further criminal convictions in New South Wales’ and listed some of them. The list did not include the offence of ‘Supply Prohibited drug’ for which the respondent had been sentenced to 12 months imprisonment in 1989, although that offence, as already noted, was recorded later in the Issues Paper.

25 The Issues Paper then again notes that the respondent had been considered for deportation in 1992 and that in the light of this and other material it was open for the Minister to find that the respondent was ‘at a high risk of recidivism’.

26 Under the heading of ‘The Best Interests of the Children’, the following appeared in the Issues Paper:

27 The Issues Paper provided for the Minister to choose one of four alternatives. The Minister chose the following:

28 The Minister did not comply with the obligation imposed upon him by s 501G of the Migration Act to provide timely reasons for his decision. The primary Judge rejected the tender of a statement of the Minister’s reasons prepared and signed some twelve months after the visa cancellation decision had been made. There has been no challenge to this ruling.

29 After the respondent’s interview with Ms Speed on 30 November 2001, the respondent asked Yves’ mother, Ms Sosa, to prepare a letter concerning his relationship with his son. Ms Sosa wrote such a letter, but did not send it because she had been told by someone from the Drug Court that the letter would make no difference. The primary Judge found that Ms Sosa was confused as to where her letter should be sent, given that the visa cancellation process was contemporaneous with the Drug Court proceedings. His Honour also found that the respondent was unaware that the letter had not been sent until after the visa cancellation decision had been made.

30 Ms Sosa’s unsent letter said that her relationship with the respondent had lasted for five years and that during that time the respondent was a loving and caring father who had been unfortunately unable to overcome his drug dependency. The letter continued as follows:

31 No one from DIMIA contacted either Ms Sosa or the respondent’s mother. The latter gave evidence that if she had been asked she would have told DIMIA of the extremely close relationship between the respondent and Yves.

32 The primary Judge identified seven grounds on which the respondent relied to challenge the cancellation decision. It is necessary only to refer to the grounds relevant to the issues on appeal.

33 The respondent contended that he had been denied procedural fairness because the Issues Paper had characterised the offences as ‘serious offences’, or in the case of one unidentified conviction as a ‘very serious offence’, without the respondent having been given an opportunity to counter the characterisation. Alternatively, the Minister had taken into account an irrelevant consideration, namely the characterisation of the offences as serious or very serious.

34 His Honour said (at [32]) that the part of the Issues Paper listing the respondent’s post-1992 convictions was ‘not elegantly written’. However, it could ‘easily be deduced’ that the description of the respondent’s ‘offence ... as a very serious offence’ was intended to refer to the offence of supplying a prohibited drug, for which he had been convicted in April 1993.

35 His Honour concluded (at [41]) that there had been no procedural unfairness to the respondent. The respondent knew that the Minister would consider his criminal record. The record had been enumerated correctly. There was no obligation on the Minister to seek specific comment from the respondent about the seriousness of the offences. Moreover, it was clearly open to the Minister, in the exercise of the power conferred by the statute, to consider the seriousness of the offences for which the respondent had been convicted and to weigh that assessment against other matters favourable to him.

36 The respondent argued that the Minister had failed to take into account a relevant consideration, namely the interests of Yves. The Minister, so it was argued, had denied the respondent procedural fairness by failing to interview his family and by failing to detect that Ms Sosa had written a letter on the respondent’s behalf. Further, the respondent contended that the Minister had not in truth had regard to the interests of the respondent’s child as a primary consideration.

37 The primary Judge noted (at [34]) that the Issues Paper had referred to the provision of the United Nations Convention on the Rights of the Child (‘the Convention’) requiring the interests of children to be given primacy. Reference had also been made to the fact that the respondent had two children and that he had said that Yves would be adversely affected by the cancellation decision. No evidence had been put forward by the respondent to suggest that the Minister had not regarded the welfare of the children as a matter of primary concern. On the contrary, his Honour inferred (at [44]) that the Minister had taken account of the contents of the Issues Paper.

38 So far as Ms Sosa’s letter was concerned, the Minister had acted on the basis that no letter had been sent and that was in fact correct. It could not be said that the Minister had been obliged to follow up the letter (at [45]):

39 The respondent had also argued that he had been denied procedural fairness because he had not been given an opportunity to rebut a misleading impression created by the Issues Paper. The Issues Paper was misleading, so it was said, in that it gave the impression that the respondent had been asked to provide further information about his children but had failed to do so.

40 His Honour accepted (at [47]) that it is a requirement of procedural fairness that a visa holder be entitled to an opportunity to rebut adverse material contained in a submission to the decision-maker:

41 Accordingly, the question was whether the submission implicitly conveyed to the Minister that the respondent’s failure to provide a letter from Yves’ mother meant that no such letter could be provided and that in consequence the relationship was not particularly strong, or as strong as Ms Sosa suggested. His Honour answered (at [49]-[50]) this question in the respondent’s favour:

Had the respondent been given an opportunity to make submissions, the Minister would have made a decision on the correct facts, not on a ‘false implication’.

42 The primary Judge rejected (at [52]-[55]) the Minister’s objection that the procedural fairness point had only been raised for the first time after the evidence had closed. The Minister had contended that the respondent’s argument was difficult to reconcile with Ms Sosa’s evidence that the respondent had told her that he had not contacted her about the letter because he thought the matter was unimportant. His Honour said that he did not believe the matter had been treated lightly either by the respondent or Ms Sosa.

43 The primary Judge (at [51]) did not accept the respondent’s alternative arguments that the Minister was under a duty to make his own inquiries as to the children and that he did not in reality consider the best interests of the children.

44 The primary Judge (at [62]) characterised as ‘hopeless’ the submission that s 501 of the Migration Act was unconstitutional in its application to the respondent. According to his Honour, s 501 does not permit the Minister to impose further punishment on a person who has already been punished for an offence; it merely permits the Minister to determine whether it is appropriate for a person convicted of certain offences to remain in Australia.

46 Mr Beech-Jones, who appeared for the Minister, submitted that the Issues Paper did not convey either a representation that the respondent had failed to provide promised material or a representation that the respondent’s relationship with his son was not particularly strong. Rather the Issues Paper simply presented a relatively neutral account of events. Once the primary Judge’s factual finding was set aside, so Mr Beech-Jones argued, the conclusion that the respondent had been denied procedural fairness also could not be sustained. The fact that the respondent was not aware that Ms Sosa had written, but not sent, a letter could not support the primary Judge’s conclusion, given that DIMIA had done nothing to induce the respondent’s state of mind.

47 Mr Beech-Jones complained that his Honour, in deciding to allow the respondent to rely on the procedural fairness argument, had not addressed the prejudice thereby occasioned to the Minister. The prejudice consisted of the Minister’s loss of opportunity to cross-examine the respondent concerning his belief as to whether Ms Sosa had sent a letter to DIMIA. According to Mr Beech-Jones, his Honour had erred in exercising his discretion to permit the respondent in effect to amend his pleadings at a very late stage in the proceedings.

48 Mr Rares SC, who appeared with Ms Morgan for the respondent, supported the primary Judge’s reading of the Issues Paper. He also submitted that the procedural fairness issue had been raised during the respondent’s opening at the hearing before the primary Judge. He said that it had been open to the Minister’s counsel to seek an adjournment if the issue occasioned the Minister any prejudice, but this course had not been followed.

49 The paragraphs in the Issues Paper which the respondent says support the primary Judge’s finding are set out at [26] above. With all respect to his Honour, we do not think that these paragraphs can be read as conveying the impression that the respondent had been responsible for the lack of information concerning the welfare of his son Yves and that in consequence the relationship was not particularly strong. Nor in our opinion did the material convey the impression that the respondent’s family was unwilling to support him in opposing cancellation of his visa.

50 The Issues Paper correctly recorded what was said by the respondent at his interview (pars 32-33). It also correctly recorded that the respondent had not elaborated on the impact his deportation would have on his children (par 34). The Issues Paper then stated, in neutral terms, that on the limited information available it was difficult to assess the impact that a cancellation of the visa would have on the children (par 35). However, the author pointed out that the children had resided in Australia their entire lives and would have established a network of family and social contacts (par 35). Nothing was said in the Issues Paper, expressly or implicitly, to suggest that the absence of a letter from Ms Sosa cast doubt on the respondent’s claims that he saw his son every few days and that he had access whenever he wanted. Nor was anything said expressly or implicitly to the effect that the respondent’s family or Ms Sosa were unwilling to support him in his desire to remain in Australia.

51 In oral argument, Mr Rares accepted that the relevant section of the Issues Paper was ‘literally true’, but maintained that it was nonetheless misleading, particularly when read with the Interview Notes which were before the Minister. The Interview Notes correctly recorded the respondent’s statement that he would ask his family to write letters in support of his case. The accurate Interview Notes cannot convert the correct statements in the Issues Paper into misleading representations.

52 In our view, the Issues Paper cannot be read as suggesting that there was nothing else the respondent could have put in relation to the interests of his children. It is clear enough that the author of the Issues Paper proceeded on the basis that DIMIA was not bound to make further inquiries about the relationship between the respondent and his children. But proceeding on that assumption is very different from implying that the respondent could not have elaborated on his claims had he chosen to do so. Indeed, if anything, the reference to the ‘limited information’ held by DIMIA suggested that the respondent might well have been able to elaborate on that information. The Issues Paper did not speculate as to why the respondent or his family had not elaborated on the relationship between the respondent and Yves.

53 Mr Rares also referred to par 39 of the Issues Paper. However, this merely recorded that the respondent’s parents and siblings lived in Australia and that the respondent had claimed to see them regularly. The paragraph also stated, correctly, that his parents and siblings had not been interviewed. The Issues Paper nonetheless expressed the view that it would not be unreasonable to conclude that they would suffer some hardship if the respondent’s visa were cancelled. None of this could reasonably have been read as suggesting that the respondent’s family was unwilling to support him or that they did not see him as often as he claimed.

54 Doubtless, the respondent’s case would have been stronger had DIMIA known that Ms Sosa had written a letter of support which it had never received. His Honour found, however, that neither DIMIA nor the Minister knew of the letter or of the mix-up that had caused Ms Sosa not to send it to the appropriate recipient.

55 In these circumstances, his Honour erred in finding that the Issues Paper was misleading and that it conveyed adverse information about the respondent to which he had no opportunity to respond. The information conveyed to the Minister concerning the relationship between the respondent and his children was based on the material provided to DIMIA by the respondent. The information conveyed faithfully reflected that material. In the absence of any duty on the part of the Minister to initiate his own inquiries, the information was not adverse to the respondent in the sense that it required him to have an opportunity to respond. The Issues Paper simply recorded the position as communicated to DIMIA.

56 In view of the conclusion we have reached, it is not necessary to consider whether the Minister himself was denied procedural fairness at the trial by the respondent’s reliance on the argument which found favour with the primary Judge. It suffices to say that we are by no means satisfied that the issue was not adequately identified in the course of the respondent’s opening to the primary Judge.

57 The respondent contended that the Minister had failed to take into account the interests of the respondent’s children as a primary consideration when deciding to cancel the respondent’s visa. This failure, so Mr Rares argued, constituted a jurisdictional error, for two separate reasons:

58 We are prepared to assume that if the Minister failed to regard the interests of the respondent’s children as a primary consideration, the cancellation decision would have been affected by jurisdictional error. The difficulty in the respondent’s path, however, lies in establishing that the primary Judge erred in concluding that there was no evidence to suggest that the Minister did not regard the welfare of the children as a matter of primary concern.

59 In the absence of a Ministerial statement of reasons, the evidence bearing on the question consists essentially of the Issues Paper, on which the Minister’s decision was endorsed, and the documents referred to in the Issues Paper. The Issues Paper itself referred to the Ministerial Direction which specifically identified the three primary considerations to be taken into account in making a decision whether or not to cancel a visa. Thus the Minister’s attention was directed to guidelines which identified the best interests of the children as a primary consideration to be taken into account by him.

60 The Issues Paper dealt with the best interests of the children under the heading ‘Primary Considerations’ (pars 29-36). This section followed an examination of the other two primary considerations identified in the Direction, namely the protection and expectations of the Australian community. The treatment of the interests of the children commenced with a quotation from Art 3 of the Convention, which reiterated the primacy of the best interests of the children (see [26] above). It then summarised the relatively limited information available concerning the respondent’s children and concluded that it was open to the Minister to find, on the basis of that information, that the cancellation of the respondent’s visa and his removal from Australia would have a detrimental effect on his children.

61 In the absence of evidence to the contrary, there is nothing to indicate that the Minister did anything other than adopt the analysis in the Issues Paper. That document clearly treated the interests of the children as a primary consideration and, in that respect, is consistent with the terms of the Direction. While the information before the Minister was limited, it nonetheless indicated that the removal of the respondent from Australia would adversely affect the welfare of his children, particularly Yves. The statement was couched in unequivocal, not conjectural, terms. Under these circumstances, we think the proper inference is that the Minister did regard the interests of the children as a primary consideration and that the best interests of Yves, at least, required their father to remain in Australia, but formed the view that this consideration was outweighed by countervailing factors, particularly the protection and expectations of the Australian community.

62 It is true, as Mr Rares pointed out, that the Issues Paper stated that Federal Court decisions had established that the Minister was not bound by the Direction. However, the Issues Paper also stated that it was open to the Minister ‘to be guided by the factors set out in the Direction’. There is nothing in the Issues Paper to suggest that the Minister did not follow the suggested course.

63 Mr Rares referred to Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218; 76 ALD 610 in support of the respondent’s submission. In that case, a Full Court inferred from a briefing paper presented to the Minister that he had not balanced the best interests of the appellant’s children against other relevant considerations. But the briefing paper in Long suggested that cancellation of the appellant’s visa and his removal from Australia would not have had a detrimental effect on his children. The Court took the view (at [55]) that this supported an inference that the Minister had simply not considered what the best interests of the children required. In the present case, by contrast, the Issues Paper concluded that it was open to the Minister to find the cancellation of the visa would have a detrimental effect on the children. There is no basis for concluding that the Minister took a different view of the material before him. That being the case, the probabilities are that the Minister took the view that although the best interests of the children favoured their father being permitted to remain in Australia, that consideration was outweighed by the other factors the Minister was entitled to take into account in reaching his decision.

64 We should mention two other cases which were cited in the respondent’s written submissions, but not referred to in oral argument. In Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, a majority of the Full Court (Burchett and Branson JJ; Whitlam J dissenting) set aside a deportation decision made by the Administrative Appeals Tribunal (‘AAT’) against a Tongan citizen who was resident in Australia, on the ground that the AAT had not treated the best interests of his children as a primary consideration. However, the circumstances in Vaitaiki were different to those of the present case.

65 In Vaitaiki an order had been made by consent in this Court setting aside an earlier deportation decision of the AAT on the ground that the AAT had failed to conform to the requirements laid down by the High Court in Teoh. Notwithstanding this order, the matter was reheard by the same AAT member, who proceeded to incorporate by reference the reasoning in the earlier decision (see at 614, per Burchett J). Burchett J considered that the AAT had misunderstood what was required by Teoh, and had erroneously regarded its earlier decision as ‘legally intact’. In consequence, the AAT had failed to regard the children’s best interests ‘as a primary consideration in substance’ (at 616). The AAT had assumed that the deportation would be carried out and had ignored the children’s position as Australian citizens, their ties to Australia and the disruption that would be caused by their relocation to Tonga. According to Burchett J, this ‘perfunctory treatment’ reflected the AAT’s misunderstanding of Teoh and showed that the children’s interests were not ‘given adequate consideration at all’ (at 618).

66 Branson J observed (at 631) that the AAT had ‘nowhere [sought] to identify what would ... be the result that would overall be conducive to the best interests of the children’. The AAT’s conclusion that the younger children’s interests in a continuing close relationship with their father would be served by accompanying him to Tonga was reached without having regard to any of the benefits of their remaining in Australia. On this basis, her Honour thought that the AAT had not given ‘proper, genuine and realistic consideration’ to the best interests of the children. (As to the current status of the ‘no realistic consideration’ ground, see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488, at 507-508 [78]-[79], per curiam.)

67 In the present case, there is no suggestion that the Issues Paper was prepared on the basis of a misapprehension as to the law concerning the primacy of the best interests of the respondent’s children. Moreover, for reasons that have been explained, the Issues Paper can fairly be read as concluding that the best interest of the children required the respondent to remain in Australia. Not everyone would necessarily agree with the Minister’s assessment of the competing considerations, but that is not a basis for holding that he failed to regard the interest of the children as a primary consideration.

68 Vaitaiki was applied by a unanimous Full Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133. However, the AAT in that case did not anywhere in its written reasons describe the best interests of the children as a primary consideration (at 141 [31]). The AAT also described factors touching on the interests of the children as ‘subsidiary matters’. The Court thus concluded (at 142 [33]-[34]) that the RRT had not treated the interests of the children as a primary consideration, but had regarded the expectations of the Australian community as the dominant consideration. The same analysis cannot applied to the present case.

69 For these reasons, the respondent’s contention that the Minister failed to take into account the interests of his children as a primary consideration must be rejected.

70 Mr Rares submitted that DIMIA had represented to the respondent that it would make its own inquiries to determine the impact of his deportation from Australia on the welfare of his children. In support of this submission, Mr Rares relied on affidavit evidence given by the respondent as follows:

71 Mr Beech-Jones, who appeared for the Minister both at the trial and on the appeal, objected to this argument being raised on appeal. He submitted that the point had not been taken at trial and that, if it had, he would have been likely to cross-examine the respondent as to whether he had in fact read the Direction and formed the belief to which he deposed. Mr Rares said that an argument had been advanced to the primary Judge to the effect that the Minister should have made further inquiries. However, he did not seriously dispute that it had not been put to the primary Judge that the duty arose because of representations made by DIMIA in the Direction or otherwise.

72 We have no reason to doubt Mr Beech-Jones’ statement that he might well have adduced evidence in answer to the contention now sought to be raised by the respondent. In these circumstances, we do not think it appropriate to permit the contention to be raised on appeal for the first time: University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481, at 483, per curiam; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, at 8-9, per Gibbs CJ, Wilson, Brennan and Dawson JJ; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, at 496-7, per Mason CJ, Wilson, Brennan and Dawson JJ.

73 In reaching this conclusion, we should not be thought to suggest that there is substance in the respondent’s submission that the Direction, or any other material provided by DIMIA to the respondent, could have induced him to believe that DIMIA would make its own inquiries into the circumstances of the children and the effect of his deportation on their welfare.

74 The respondent submitted that the Issues Paper had erroneously stated that his ‘offence’ was listed as a ‘very serious offence’ under the Direction. This was said to have constituted a denial of procedural fairness by the Minister because the respondent was not given an opportunity to rebut the erroneous characterisation. The denial of procedural fairness resulted in practical injustice to the respondent, so Mr Rares argued, since his criminal record was critical to the Minister’s decision.

75 We agree with the primary Judge’s observation that the part of the Issues Paper listing the respondent’s post-1992 convictions is not elegantly written. However, we also agree that it is clear enough that the respondent had committed offences that could be classified as very serious offences for the purposes of the Direction. The respondent had not only been convicted in 1993 of supplying a prohibited drug (heroin) (as his Honour pointed out), but in 1991 he had been convicted of robbery, for which he had been sentenced to a minimum term of eighteen months imprisonment. The first of these offences is identified as a ‘very serious offence’ in par 2.6(a) of the Direction, while the second is similarly identified in par 2.6(l) (‘serious theft’).

76 No error, let alone a jurisdictional error, has been shown by reason of the Issues Paper stating that the respondent had committed an offence listed as ‘a very serious offence under the Direction’. On the respondent’s record, such a conclusion was inevitable.

77 The respondent submitted that the cancellation decision amounted to the imposition of an arbitrary punishment upon him by the Minister. It was said that the Minister had purported to exercise the judicial power of the Commonwealth which, by Chapter III of the Constitution, is exclusively vested in courts exercising federal jurisdiction. In particular, so Mr Rares argued, s 501(2) of the Migration Act authorises the Minister to cancel a visa as a means of inflicting further punishment on a non-citizen convicted of criminal offences. It followed that s 501(2) is invalid to the extent that it purports to authorise the cancellation of a visa in the circumstances of the present case.

78 Mr Rares appeared to accept that the constitutional argument is directly in conflict with the holding of a Full Court of this Court in Djalic. There the Full Court held, principally on the authority of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, that s 501(2) of the Migration Act is a valid exercise of the power with respect to aliens (Constitution, s 51(xix)) and does not infringe Ch III of the Constitution. Mr Rares did not submit that the Full Court in Djalic had misunderstood or misapplied Chu Kheng Lim or any of the other authorities referred to in the Full Court’s judgment.

79 Instead, Mr Rares contended that the decision of the High Court in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 209 ALR 271, had undermined the reasoning in Djalic. The issue in Rich v ASIC was whether two directors, against whom ASIC had sought orders disqualifying them from managing corporations, could object to giving discovery on the basis that they were entitled to invoke the privilege against penalties. The joint judgment (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) held that the fact that the proceedings could be characterised as being for the purpose of protecting the public was not determinative on the question of whether the orders sought by ASIC could be regarded as penal for the purposes of the application of the privilege. Their Honours also said (at 282 [35]):

80 It will be seen that Rich v ASIC did not present any issue concerning Ch III of the Constitution. Accordingly, the observations in that case were made in a quite different area of discourse to that involved in the respondent’s argument. The reasoning in Rich v ASIC cannot be said to have affected the analysis in Chu Kheng Lim (which is not referred to in Rich v ASIC), or, for that matter, the reasoning in Djalic.

81 It is, of course, possible that the High Court will choose to revisit the jurisprudence concerning the application of Ch III of the Constitution to an exercise of the aliens power. If the High Court does so, it will need to consider the reasoning in Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124, and Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 210 ALR 369, neither of which was referred to by the respondent in argument before us.

82 In Re Woolley, Gleeson CJ noted (at 374 [18]) that the judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim had

83 His Honour went on to draw the following propositions from the authorities (at 375-376 [23]-[25]):

See also Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 208 ALR 271, at 277 [20], per Gleeson CJ.

84 It is difficult to reconcile the propositions stated by Gleeson CJ with a contention that s 501(2) of the Migration Act impermissibly purports to confer judicial power on the Minister. However, although the Court in Re Woolley was unanimous in rejecting the challenge to the validity of the detention of unlawful non-citizens under the age of 18, the approaches taken by members of the Court in that case and in Al Kateb v Godwin to the application of Ch III to an exercise of the aliens power were not necessarily uniform. Gummow J, for example, observed in Al-Kateb v Godwin, at 159 [136]) that:

85 In the absence of any argument that the reasoning in Re Woolley and Al-Kateb v Godwin requires reconsideration of the decision in Djalic, no basis has been shown for revisiting that decision.

86 We should add that Mr Rares referred the Court to several decisions of the European Court of Human Rights. Like the primary Judge, we think that these decisions have little bearing on the application of Ch III of the Constitution to s 501(2) of the Migration Act.

87 The Minister’s appeal must be allowed. The orders made by the primary Judge must be set aside. In lieu thereof, an order must be made dismissing the application. The respondent must pay the appellant’s costs both on the appeal and at first instance.

88 Finally we wish to make a comment on the procedure adopted in the present case, the circumstances of which are by no means unusual. The Issues Paper acknowledged that ‘limited information’ was available concerning the impact that cancelling the respondent’s visa would have on his children. This is hardly surprising. The respondent, like many in his position, was apparently unable to articulate clearly or cogently the reasons why his children, particularly Yves, would suffer hardship if he were to be deported from Australia. People serving terms of imprisonment are often poorly educated, ignorant of decision-making procedures that directly affect their interests and unable or unwilling to communicate their views effectively to public officials. Young children are, of course, incapable of explaining their circumstances to a decision-maker without the assistance of an advocate or interlocutor. Yet children may suffer irreversible harm by the loss of a parent through deportation. Even a person guilty of serious criminal conduct may be a loving parent.

90 The assumptions to which her Honour referred are likely to be met if the Minister adopted the practice, in every visa cancellation case in which the visa holder has young children who are citizens or permanent residents of Australia, of obtaining an independent report addressing the effect cancelling the visa would have on the welfare of the children. The person making that report could be required to contact people who might be expected to have relevant knowledge, even if the visa holder has neglected to put forward statements from those persons. In the present case, for example, there would appear to have been no particular difficulty in somebody interviewing Ms Sosa and the respondent’s parents, whose contact details were known to DIMIA.

91 We appreciate that the introduction of a practice such as we suggest may have significant resource implications. Whether it should be introduced is a matter within the province of the Executive Government. It is, however, not implausible that such a practice would not only protect the interests of vulnerable young Australians, but prove to be cost effective in reducing litigation arising out of Ministerial decisions.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Sackville and Finn.

Counsel for the Appellant:	RT Beech-Jones

Solicitor for the Appellant:	Australian Government Solicitor

Counsel for the Respondent:	SD Rares SC with KC Morgan

Solicitor for the Respondent:	Teakle Ormsby Conn Lawyers

Date of Hearing:	19 November 2004

Date of Judgment:	22 February 2005

(i)	The application be dismissed.
(ii)	The applicant pay the respondent’s costs.

•	such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government;
(m)	any other crimes involving violence or the threat of violence:
•	such crimes are of special concern to the welfare and safety of the Australian community....’

(i)	the primary Judge erred in finding that the Issues Paper contained material adverse to the respondent and that, accordingly, the respondent had been denied procedural fairness; and
(ii)	the primary Judge erred in permitting the procedural fairness argument to be raised after the evidence had closed.

Federal Court of Australia - Full Court Decisions

Minister for Immigration & Multicultural & Indigenous Affairsv Lorenzo [2005] FCAFC 13 (22 February 2005)