Le v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 51 (31 March 2005)

Last Updated: 31 March 2005

FEDERAL COURT OF AUSTRALIA
Le v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 51

MIGRATION – appeal from decision of single judge dismissing application for review – cancellation of visa under s 501(2) of the Migration Act 1958 (Cth) – procedural fairness – where no written notice setting out reasons for the decision – whether Issues Paper and its annexures put the essential elements of the appellant’s case to the Minister – whether Issues Paper and its annexures contained an accurate summary of the matters put by the appellant to the Departmental Officer – whether Issues Paper and its annexures properly identified the issues raised by the appellant concerning the best interest of the appellant’s children – whether Minister failed to consider the best interest of the children as a primary consideration – whether there was no consideration ‘in truth’ of the best interests of the children – the Departmental Officer was not obliged to make further enquiries – the practical content of the obligation to provide procedural fairness was complied with – appeal dismissed


Migration Act 1958 (Cth), ss 198(1), 501(2), 501G
Acts Interpretation Act 1901 (Cth), s 25D


Braganza v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 170 referred to
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488 cited
Khan v Minister for Immigration & Ethnic Affairs (unreported, Gummow J, 11 December 1987) referred to
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875 referred to
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 cited
Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 referred to
M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 211 ALR 126 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v Lorenzo [2005] FCAFC 13 cited
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433 cited
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited
Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 133 FCR 190 cited
Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 cited
Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 195 ALR 502
Sebastian v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 31 cited
Taurino v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119 cited
Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 cited
Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 cited





























VAN TU LE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

WAD167 of 2004


LEE, JACOBSON & BENNETT JJ
31 MARCH 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD167 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VAN TU LE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LEE, JACOBSON and BENNETT JJ
DATE OF ORDER:	31 MARCH 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs.






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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD167 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VAN TU LE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	LEE, JACOBSON and BENNETT JJ
DATE:	31 MARCH 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1 This is an appeal from a judgment of a Judge of this Court which dismissed an application by the appellant under s 39B of the Judiciary Act 1903 (Cth) for the issue of constitutional writs to set aside a decision of the respondent ("the Minister") made under s 501(2) of the Migration Act 1958 (Cth) ("the Act").

2 The appellant, a national of Vietnam, came to Australia as a refugee in June 1990. The appellant was then aged 31. He was accompanied by his wife, also a Vietnamese national, and a one-year old child. He fled Vietnam for Hong Kong in about 1983. He remained in a refugee camp in Hong Kong until accepted by Australia under a scheme for resettlement of refugees from Vietnam. The appellant, his wife and child became "permanent residents" upon entry into Australia. In April 1994 and March 1995 two more children were born to the marriage. They were Australian citizens at birth.

3 In about 1996 the appellant’s wife commenced a relationship with a close friend of the appellant and the appellant and his wife later separated, the wife retaining custody of the children. In 1997 the wife gave birth to a child of which the former friend of the appellant was the father. The wife and the former friend did not live together. The latter continued to maintain his home with his wife and family. He introduced the appellant’s wife to habitual gambling and often spend nights with her at a casino leaving the appellant’s children at their home unattended. The appellant continued to visit the children at home three or four times a week and on weekends and would attend the children when asked to do so by them when the mother was absent.

4 The appellant was disturbed by the effect of the foregoing relationship on his children. The appellant remonstrated with the former friend over his conduct. The latter responded with abuse and threats of a beating.

5 In May 1999 in the early hours of the morning the appellant went to the house of the former friend and engaged him in dispute as he came out of the house. The appellant struck the former friend with a machete, causing "an incision type wound" on the forehead. The appellant struck him again on the back of the head and shoulders but those blows only caused abrasions, not incisions.

6 The wife of the victim came out of the house and intervened by grabbing the appellant’s arm. She received an "incision wound" to her hand as the appellant broke free.

7 The former friend and his wife received medical treatment for their injuries. It does not appear that those injuries were in the upper range of seriousness. In respect of the assault on the former friend the appellant was charged with assault with intent to cause grievous bodily harm. With regard to the incident that caused injury to the victim’s wife the appellant was charged with unlawful wounding.

8 One month after the occurrence of the above events the appellant was released on bail. Meanwhile, the former family friend had maintained his relationship with the appellant’s wife and the occasional neglect of the appellant’s children had continued. In July 1999 the appellant reported the children’s circumstances to the Department of Children and Family Services in an endeavour to obtain assistance in providing for the welfare of the children. For a period of approximately ten days the Department took the children into care.

9 In August 1999 the appellant pleaded guilty to the offences with which he had been charged and was sentenced to a term of two years imprisonment. The appellant was released on parole in or about April 2000. In July 2000 he began living with his wife and children in an attempt to reach a reconciliation with the wife. In the same month the appellant was interviewed by an officer of the Minister’s Department over a period of approximately five hours. The purpose of the interview was to "afford (the appellant) the opportunity for making known (the appellant’s) personal circumstances and anything that (the appellant) wish(ed) to be taken into account when the Minister considers (the appellant’s) case" in deciding whether to "deport" the appellant.

10 Two years later, by a notice dated the 4 September 2002, the appellant was informed by an officer of the Minister’s Department that the Minister had cancelled the visa held by the appellant and that the appellant would be removed from Australia. At that time the appellant’s children were aged 13, 8, and 7 and the appellant was caring for them at their home whilst the appellant’s wife was overseas in Vietnam. The appellant was taken into "immigration detention" pursuant to ss 189 and 196 of the Act pending removal of the appellant from Australia under s 198(1) of the Act. He has remained in detention at all times thereafter.

11 It does not appear to be in issue that the appellant is a "caring and concerned father" who has a close relationship with his children and that his presence and contribution as a father is important for their current and future welfare having regard to the mother’s attraction to gambling and associated conduct. It was also accepted that prior to commission of the above offences the appellant had been "a good and loyal employee (who had) contributed to the community in the form of stable employment for the past five years".

12 Nor was it in issue that a decision to cancel the appellant’s visa and to remove him from Australia would have had the effect of removing the appellant from his children for the remainder of their formative years and deny the children access to the care and assistance of their father. The appellant would be denied entry to Australia and, therefore, could not visit his children.

13 The foregoing is not an assessment of the merits of the Minister’s decision but a statement of the context in which the appellant’s submission that the Minister’s decision miscarried in a fundamental respect is to be understood.

14 The notice of the Minister’s decision provided to the appellant in September 2002 stated that it enclosed "a copy of the decision record that sets out the reasons for the decision". The "decision record" was in fact a briefing paper headed "Issues for Consideration of Possible Cancellation of BB/155 Visa Under Section 501(2) of the Migration Act 1958" ("the Issues Paper") prepared for the Minister by officers of the Minister’s Department. The Issues Paper did not purport to set out reasons for a particular decision able to be adopted by the Minister. It set out the matters the officers considered were those to which the Minister would have to have regard in making a decision under s 501(2).

15 Section 501G of the Act states that if a decision is made under s 501(2) of the Act the Minister must give the person to whom the decision applies a written notice that sets out the reasons for that decision. Section 25D of the Acts Interpretation Act 1901 (Cth) states that where an Act requires a person making a decision to give written reasons for that decision the instrument giving the reasons "shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based".

16 The reasons of the learned primary Judge state that ten months after the decision was made, and eight months after the appellant commenced the proceeding for review in this Court, a "statement of reasons" was issued by the Minister. His Honour noted that it was conceded by the Minister that "absent any verifying affidavit from the Minister" the document was not admissible in the proceeding before his Honour (See: Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263; (2003) 133 FCR 190).

17 On the hearing of the appeal counsel for the Minister submitted that it was an "insurmountable obstacle" to the appellant’s grounds of appeal that the Minister’s reasons for his decision were not before the Court. It was submitted by the Minister that if the Court does not have the Minister’s views "then it cannot be established on balance that the [Minister] failed to take into account matters, such as the best interests of the children, as a primary consideration". (cf. Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A [2002] FCAFC 281; (2002) 125 FCR 433).

18 That may be thought to be a courageous submission. Section 501G of the Act and s 25D of the Acts Interpretation Act imposed a duty on the Minister to provide a statement of the reasons for the Minister’s decision, containing findings on material questions of fact and identifying the evidence on which those findings were based. The purpose of those provisions is to allow a person affected by the decision to "identify with certainty what reasons the [Minister] had for reaching [his] conclusion and what facts [he] concluded material to that conclusion... The provision entitles a court to infer that any matter not mentioned in the ... statement was not considered by the [Minister] to be material". (See: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at 346). Put another way if the Minister "does not set out a finding on some question of fact, that will indicate that [he] made no finding on that matter; and that, in turn, may indicate that [he] did not consider the matter to be material" (Yusuf per Gleeson CJ at 330).

19 Failure to provide reasons for a decision does not elevate the standing of the decision and protect it from review on the foregoing ground. Like inferences may be drawn in the absence of reasons if the relevant context suggests that the decision was made without a finding being made on a particular matter and, therefore, without that matter being considered to be material by the decision-maker.

20 A Minister who has failed to provide reasons for a decision as required by the Act, cannot be heard to say that such a breach prevents an inference being drawn that the Minister failed to consider or take into account a material matter. That is to say, if a decision stands unexplained by reason of the failure of the Minister to comply with the Act, a statutory duty enacted for the benefit of the person affected by the Minister’s decision, the Court should not refrain from drawing an inference adverse to the validity of the decision where relevant circumstances give rise to such an inference.

21 I turn now to the challenge to the validity of the Minister’s decision raised by the grounds of appeal.

22 The principal ground upon which the appellant relied on the hearing of the appeal was that the decision of the Minister miscarried in a fundamental respect and, therefore, was not a decision authorised by the Act. It was submitted that the decision was affected by jurisdictional error in that by reason of deficiencies in the Issues Paper the Minister failed to accord the appellant procedural fairness by failing to take the best interests of the children into account as a primary consideration. It was also submitted that the appellant had been denied procedural fairness by the Minister making a decision without considering the substance of the submissions the appellant had sought to put before the Minister in the interview conducted with him by an officer of the Minister’s Department in July 2000. It is appropriate to treat the latter submission as secondary to, or subsumed within, the ground relating to the deficiency of the Issues Paper and the failure of the Minister to accord procedural fairness to the appellant and his children in the manner in which the decision-making process was carried out.

23 The learned primary Judge accepted, and it was not in issue on the appeal, that if the Minister failed to have regard to the interests of the children as a primary consideration the decision to cancel the visa held by the appellant and to have the appellant removed from Australia would have been a decision affected by jurisdictional error. (See: Minister for Immigration & Multicultural & Indigenous Affairs v Lorenzo [2005] FCAFC 13 per Wilcox, Sackville and Finn JJ at [57]-[58]).

24 In the absence of reasons for the decision resort must be had to the contents of the Issues Paper for an explanation of how the Minister reached his conclusion. The Issues Paper was constructed to inform the Minister of the matter material to the making of the decision.

25 In respect of the interests of the children of the appellant the Issues Paper informed the Minister as follows:

‘The Best Interests of the Children

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

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

[20] Mr LE has 3 children. Mr LE stated in his submission that these children would be affected by a decision under s.501(2).

[21] Paragraph 2.16 of the Minister’s Direction sets out the factors to which the decision maker should have resort when considering the best interests of the child:

(a) the nature of the relationship between the child and the non-citizen;

Mr LE is the biological father of three children. Sole custody of the children is held by their mother, from whom Mr LE is estranged.

[22]

(b) the duration of the relationship, including the number and length of any separations and reasons for separation; the hypothetical prospect for developing a better/stronger relationship in the future (whether or not there has been significant recent contact) would normally be given less weight than the proven history of the relationship based on past conduct;
Mr LE has had continuous contact with the children from their birth until his period of incarceration. Since May 1999 the children have been living with their mother.

[23]
(c) the age of the child
The children are currently aged 8, 9 and 13 respectively. (sic)

[24]

(d)	whether the child is an Australian citizen or permanent resident;

All 3 children are Australian citizens or permanent residents.

[25]

(e) the likely effect that any separation from the non-citizen would have had on the child;
Mr LE claims he was in regular contact with the children whilst in gaol and that the children will suffer if he is deprived of contact with them. There is no bar to the children travelling to Vietnam with their mother to visit him if they so choose.

[26]
(f) the impact of the non-citizen’s prior conduct on the children;

Mr LE claims that the children were too young to understand the nature of his offences.

[27]
(g) the time, if any, that the children have spent in Australia;

The eldest child was 1 year old when she arrived in Australia, the other 2 children were born in Australia.

[28]

(h) the circumstances of the probable receiving country, including the educational facilities and standard of the health support system of the country to which the child may have to go, or return to should the non-citizen not be permitted to remain in Australia;
Not applicable: if Mr LE is returned to Vietnam the children will

remain in Australia with their mother.
[29]

(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages.
Not applicable: if Mr LE is returned to Vietnam the children will remain in Australia with their mother.

[30]
(i) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances;
Not applicable: if Mr LE is returned to Vietnam the children will remain in Australia with their mother.

[31] It is open to you to find from the information given that the cancellation of Mr LE’s visa and his removal from Australia would/would not have a detrimental effect on his children.

A copy of the submission from Mr LE is at Annex C.’

26 "Annex C" was a translated copy of a letter written by the appellant to the Minister’s Department on 6 August 2001. It was not a letter directed to the interests of the children. The record of the extensive interview conducted with the appellant on the 26 July 2000 where the appellant discussed in detail the circumstances of the children, was not part of the Issues Paper.

27 At the outset it can be seen that paragraph 25(e) of the Issues Paper was an inadequate summary of the effect on the children’s interests of a decision that the appellant be removed from Australia. Not only did it omit an account of the appellant’s parental role after his release on parole in April 2000 until July 2002, but the bald statement that the children could visit their father in Vietnam "if they so choose" showed that the officers preparing the Issues Paper misunderstood what would be required for the Minister to be duly informed as to what constituted the best interests of the children.

28 The deficiency of the Issues Paper illustrated above was compounded by the terms of paragraph 31 which stated that it was open to the Minister "to find from the information given" that removal of the appellant "from Australia would/would not have a detrimental effect on his children".

29 There was no "information given" from which the Minister could make a finding that removing the children’s father from Australia would not have a detrimental effect upon them. Furthermore, what the Minister had to ascertain was what was in the best interests of the children, two of whom were Australian citizens, and the third a permanent resident with prospects of citizenship.

30 As was stated in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454 per Allsop J at [118]:

‘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.’

31 Only after the Minister had addressed that question could the Minister then assess whether other findings of fact were of such nature and degree that they outweighed the best interests of the children and mandated a decision that the appellant be removed from Australia.

32 If the Minister did no more than adopt the process followed by the officers preparing the Issues Paper the decision-making process was fundamentally flawed. The Issues Paper advised the Minister that it was open to the Minister to conclude that removal of the appellant from Australia would not cause detriment to the children. That is to say, it was suggested to the Minister that if the Minister decided to have the appellant removed from Australia the Minister could be satisfied that no adverse impact upon the best interests of the children would flow from that decision and the Minister would not have to identify other factors that outweighed the best interests of the children before he made a decision that the appellant be removed. Not only did the Issues Paper fail to provide the assistance the Minister required to enable him to assess how the best interests of the children would be served, it was capable of misleading the Minister in a serious respect as to the nature of the decision to be made. (See: Long v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 218 at [55]; Minister for Immigration & Multicultural & Indigenous Affairs v Lorenzo at [63]).

33 The inference available from relevant context which includes the contents of the Issues Paper and the absence of any explanation by the Minister for his decision, is that the Minister failed to make findings on the best interests of the children and thereby failed to treat that matter as a material consideration in the decision-making process. In the circumstances of this case where the Issues Paper is seriously deficient that inference should be drawn, together with the consequential inference that the Minister failed to consider and identify the circumstances that outweighed the best interests of the children. (See: Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133; Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608; Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757; Taurino v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 119; Sebastian v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 31, per Tamberlin, Kiefel and Emmett JJ at [17]). In making the latter determination the Minister had to take into account that circumstances that best served advancement and development of the children within the Australian community were also likely to serve the interests of that community.

34 The appeal should be allowed on the foregoing ground. It is unnecessary, therefore, to deal with the ground that the appellant was denied procedural fairness in not being informed of, and having the opportunity to respond to, advice put before the Minister that no breach of Australia’s obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 would occur if the appellant were refouled to Vietnam.

35 I would allow the appeal, set aside the orders made below and make orders in lieu thereof that writs issue in the terms sought by the appellant.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee .

Associate:

Dated: 30 March 2005

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD167 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VAN TU LE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	LEE, JACOBSON and BENNETT JJ
DATE:	31 MARCH 2005
PLACE:	PERTH

REASONS FOR JUDGMENT
JACOBSON AND BENNETT JJ:

36 This appeal is in respect of a decision of the respondent ("the Minister") made on 26 August 2002 to cancel the appellant’s visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). The primary judge dismissed the application.

37 At the hearing of the appeal, the appellant sought leave to rely on an amended notice of appeal.

38 The appellant claims that the primary judge erred in fact and in law in determining that the Minister had not failed to accord procedural fairness to himself and his three children. This is so, the appellant claims because, having accepted that a failure to take into account the best interests of the appellant’s children would have amounted to a breach of procedural fairness, his Honour should have found that:

‘1. The Issues Paper and the documents attached even when taken together did not put the essential elements of the Appellant’s case to the Minister and did not identify the issues concerning the interests of the children and therefore it could be properly inferred that the Minister had failed to take the best interests of the children into account as a primary consideration.

2. The Issues Paper and its annexures did not contain an accurate summary of the substance of the matters which the Appellant had put to the Departmental Officer in his interview of 26 July 2000.

3. It could be properly inferred from the Issues Paper and annexures that the consideration of the best interests of the children was so rudimentary so as to be mere lip service to the obligation to have regard to the best interests of the children as a primary consideration, namely there was no consideration in truth by the Minister.’

The Facts

39 Counsel for the appellant, Mr Christie, gives a detailed history of this matter in his submissions. The primary judge also sets out a detailed history of the matter in his judgment: Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875. The relevant facts are as follows:

(i) On 25 April 1959, the appellant was born in Vietnam. He is a national of Vietnam.

(ii) In the 1980s, the appellant fled from Vietnam to a refugee camp in Hong Kong where he met his wife. They had a child at that camp.
(iii) On 25 June 1990, the appellant, his wife and their child were admitted as refugees into Australia. The appellant and his wife have since had two more children. The children at the time of the decision to cancel his visa were aged 13, 8 and 7.
(iv) In 1995, the appellant’s wife formed a relationship with the appellant’s ‘former best friend’ Mr Pham and the appellant and his wife separated. The appellant’s wife retained ordinary custody of their three children but the appellant remained involved in the children’s lives. The appellant’s counsel, Mr Christie, submitted that the appellant had often looked after the children ‘when the Appellant’s wife and Mr Pham went gambling for long periods at night’.
(v) In 1998, the appellant visited his parents in Vietnam and was away from Australia for a total of 11 days.
(vi) On 25 May 1999, the appellant was involved in an altercation with Mr Pham. The appellant struck Mr Pham ‘with a machete to the head causing an incision wound and further abrasions and also cut Mr Pham’s wife when she intervened’. The appellant was arrested. He pleaded guilty to unlawful wounding and was sentenced on 20 August 1999 to two years imprisonment. He served 10 months and was released in April 2000. At the time of sentencing, Mr Le had a short criminal history involving mainly offences for stealing for which he had been fined and a conviction for common assault in December 1995 for which he was fined.
(vii) By letter dated 6 September 1999, the Minister’s officer advised that he might be liable for deportation. An officer of the Minister ("the officer") invited the appellant to provide material to demonstrate why he should not be deported and informed the appellant that he would be interviewed before a decision to deport him was made.
(viii) On 14 September 1999, the appellant responded by letter to the officer’s letter and gave his account of the altercation between himself and Mr Phan, and of the events leading up to the altercation ("the September letter").
(ix) In February 2000, the officer obtained a conduct report and other information from the Casuarina Prison ("the prison report") and a transcript of the sentencing remarks from the Director of Public Prosecutions.
(x) On 11 April 2000, the Minister’s translation service translated into English a letter from the appellant of 26 March 2000 ("the March letter").
(xi) On 19 July 2000, by an internal minute, the Criminal Deportation Branch of the Minister’s Department requested the Onshore Protection Branch ("Onshore Protection") to undertake an assessment of Australia’s protection obligations to the appellant.
(xii) On 26 July 2000, the appellant attended an interview with the officer. There is a signed record of that interview ("the record of interview").
(xiii) On 17 August 2000, a copy of the appellant’s signed statement was provided to Onshore Protection.
(xiv) On 4 September 2000, Onshore Protection provided Criminal Deportations with an undated assessment wherein it was advised that the appellant was no longer a refugee under Article 1C(5) of the Refugees Convention, that Australia did not owe the appellant protection obligations and that he did not have claims under the Convention against Torture or under the International Covenant on Civil and Political Rights.
(xv) On 20 July 2001, the officer gave the appellant a notice of intention to consider cancelling his visa under s 501(2) of the Act. The material that was before the officer was not annexed to this notice. A copy of the Minister’s Direction No 17 made under s 499 of the Act was provided to the appellant.
(xvi) On 6 August 2001, the appellant responded by letter to the notice of intention by way of a ‘general plea to remain in Australia’.
(xvii) On 24 October 2001, the Department sent the appellant a Notice of Intention to consider cancelling his visa and enclosing Direction No 21 which had replaced Direction No 17. That letter was returned unclaimed to the Department from two separate addresses.
(xviii) On 12 July 2002, the officer prepared a ‘Minute’ for the Minister ("the Issues Paper") annexing documents including the sentencing remarks and the protection assessment paper referred to above, but not including the prison report. The appellant’s letter dated 6 August 2001 was annexed and described as the submissions from Mr Le however, the September letter, the April letter and the record of interview were not provided with the Issues Paper and were not referred to.
(xx) On 26 August 2002, the Minister endorsed the option at the end of the Issues Paper to cancel the appellant’s visa and the appellant was notified accordingly, by letter dated 26 August 2002. It is accepted by both parties that the Minister did not provide reasons for his decision.
(xxi) On 4 September 2002, Mr Le was sent a notice of visa cancellation under s 501(2) of the Act.
(xxii) In September 2002, the appellant was taken into immigration detention.
(xxiii) On 1 November 2002, the appellant lodged an application for review of the Minister’s decision cancelling his visa. The matter was listed for hearing on 30 April 2003 but the matter was adjourned to a date to be fixed after 13 June 2003.
(xxiii) On 15 May 2003, the appellant filed a motion seeking his release from detention until the hearing of the application or further order. That application was refused on 18 June 2003.
(xxiv) The substantive application was heard on 20 April 2004 and 15 June 2004.

40 As noted above, the Issue Paper annexed a number of documents. Not annexed were the September letter, the March letter and the record of interview.

The statutory framework

41 Section 501 of the Act relevantly provides:

‘(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.

...

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7);

...

(7) For the purposes of the character test, a person has a substantial criminal record if:

...

(c) the person has been sentenced to a term of imprisonment of 12 months or more...’

42 Section 501G provides that:

‘(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

...

(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...

(4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.’

43 Cancellation decisions made under s 501 are privative clause decisions for the purposes of s 474(2) of the Act.

44 Ministerial directions regulating the exercise of functions or powers under the Act, including those under s 501, may be given under s 499 of the Act. Section 499 provides, inter alia:

‘(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

...

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A) A person or body must comply with a direction under subsection (1).

(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4) Subsection (1) does not limit subsection 496(1A).’

The Minister’s Direction No 21

45 The Minister’s Direction No 21 (‘Direction 21’), made pursuant to s 499 of the Act, relates to the implementation of s 501 of the Act by the Minister. As set out in the primary judge’s reasons, Direction 21 provides guidelines for the application of the character test and the approach to the exercise of the discretion in determining whether or not to cancel a visa. In particular, Direction 21 states that the decision-maker should have regard to three ‘primary considerations’, one of which is ‘in all cases involving a parental or other close relationship between a child or children and the person under construction, the best interests of the child or children’. It is not in dispute that Direction 21, being a Direction of the Minister, does not bind the Minister himself or herself.

The Issues Paper and references to the children

46 At [13] of the Issues Paper, reference is made to factors put forward by Mr Le in his submission to the department. It includes ‘He would like to be able to look after his three children’.

47 Under the heading ‘The best interests of the children’, reference is made to article 3.1 of the Convention of the Rights of the Child and then the following:

‘[20] ...Mr Le has 3 children. Mr Le stated in his submission that these children would be affected by a decision under s501(2).’

48 Also, as to the nature of the relationship between the child and Mr Le at [21] and [22]:

‘Mr Le is the biological father of three children. Sole custody of the children is held by their mother, from whom Mr Le is estranged...Mr Le has had continuous contact with the children from their birth until his period of incarceration. Since May 1999 the children have been living with their mother.’

49 At [25] under the heading: ‘The likely effect that any separation from the non-citizen would have had on the child’; the entry is: ‘Mr Le claims he was in regular contact with the children while in gaol and that the children will suffer if he is deprived of contact with them. There is no bar to the children travelling to Vietnam with their mother to visit him if they so choose’.

50 It is stated in the Issues Paper that regard was had to the following material, which was annexed:

• A record of the appellant’s movements
• The official criminal history of the appellant
• Submissions from the appellant
• The notice of intention to cancel the appellant’s visa under ss 501(2) of the Act given to Mr Le
• The remarks of the sentencing judge
• The assessment of the appellant’s status under the Refugees Convention, the Convention Against Torture and the International Convention on Civil and Political Rights (‘the Assessment’)

51 Under the heading ‘Decision’ it is stated at [50]:

‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Le Van Tu’s comments.’

52 The annexed submission from the appellant opens with a reference to a letter from the Department:

‘...I am very sad and heartbroken knowing that I will not have the choice to stay to care for my three young children.’

It continues, in reference to the children:

‘The reality in my life now is looking after my three young children. I am pleading with you to consider my circumstances and allow me to stay with my children to care for them and that their parents are with them ... so that I can survive and have the opportunity to care for my children and fulfil my responsibility of a father towards his teen children.’

There is no reference in that submission to his fears for his safety if he were to return to Vietnam.

53 The District Court Judge made the following remarks when sentencing the appellant:

‘I accept that you are close to your children and you are concerned for their welfare which is a priority for you...It might be of some comfort to you that currently Family and Children’s Services are helping your wife to care for your children...you still have regular contact with them by phone.

There are three children from that relationship, two girls and a boy. Despite the separation, you see your children regularly and seem to feel that you are more caring of them and more mindful of their needs than is your ex-wife. You have been told that you can take up your concerns regarding your perceived neglect of the children with Family and Children’s Services and apparently you have contacted them regarding your concerns I have said that you are a caring and concerned father and have the welfare of your children at heart.’

The Assessment contains the following statement:

‘An interview was conducted on 22 July 2000 regarding the possibility of his deportation. Mr Le stated "I do not want to be deported. I have my children here and then need me to look after them. Particularly if my wife leaves them again. I cannot go back to Vietnam again because the government is looking for me because I avoided military service. If I do go back it would cause not only a lot of trouble for my parents but also could cause their death because of the worry. My parents are very old, they are in their 80’s and they would not be able to stand the shame and the embarrassment".’

54 Under the heading ‘Protection related claims’, the Assessment states:

‘In response to the possibility of his deportation, Mr Le claims that the Vietnamese authorities will target him because he avoided joining the military before fleeing to Hong Kong.’

55 The Assessment refers to country information and concludes that the appellant is no longer is a refugee according to Article 1C(5) of the Refugees Convention due to the significant changes which Vietnam has experienced since he fled and that he is not owed protection obligations by Australia.

Further evidence

56 On 23 April 2003, the appellant’s wife, Tran Thi Lan, swore an affidavit in which she gave details of her relationship with the appellant, of his contact with the children and of his care of them, both emotionally and domestically. She also gave evidence as to the lack of likelihood of the children being able to visit the appellant in Vietnam because of the cost of the airfares.

57 On 19 May 2004, the appellant swore an affidavit as to the effect on his parents of his evasion of military service and flight from Vietnam in 1987. He also described the fact that, when he returned to Vietnam in 1998, his brother told him that the local public security were looking for him. He returned to Australia ‘much sooner than [he] had intended to’. He states in the affidavit that it is likely that he will be put in gaol if he returns to Vietnam and that he will be persecuted and unable to get a job once released.

The material not before the Minister

The record of interview

58 In the record of interview, the following answer was given by the appellant to an officer of the Department:

‘Yes, I still look after my children. Every day I go to the house and play with them. Sometimes I take them to school and pick them up. On the weekends we go shopping together.’

59 In answer to the question ‘Degree of contact with spouse and children prior to sentencing’, the appellant replies ‘between 1987 and 1994 we lived together as a family. Between 1994 and 1999 I would visit my wife and children 3 or 4 times a week after work, but I did not live with them. Since about three weeks ago, I have lived with my wife and children. Whether my wife wants it or not, my intention is to go back to my wife’.

60 The appellant describes the circumstances of his attack on Mr Pham and his concern that his wife would go gambling with Mr Pham and leave the children at home with no-one to look after them. Reference was also made to his concern that he must look after and provide for his children because of his wife’s gambling.

61 The appellant refers to his trip to Vietnam in 1998 and states that:-

"they knew me and recognised me so I had to get away. I am not wanted on any criminal matters. I was gaoled only because I had previously tried to escape Vietnam. That was before I actually got away to Hong Kong and eventually came to Australia."

62 The appellant comments on the difficulties his children would face if they were forced to leave Australia and that ‘they would suffer because I would be either thrown in gaol or I would have to hide’.

63 The appellant also states that the children depended on him, that he is ‘the only stable thing’ in their lives and that since he was released from gaol he has been living with his wife and children.

The September letter

64 In response to a letter of 6 September 1999 inviting him to demonstrate why he should not be deported, the appellant refers to his concern for his children, his wife leaving his children unattended and to the circumstances of his attack on Mr Pham. He refers to his parents in Vietnam and their dependence on him but not to his own concerns about returning to that country.

The April letter

65 The appellant refers to the fact that the Viet-Cong have, since he fled the country, kept his parents and siblings’ families ‘under control’.

The decision of the primary judge

66 The grounds of the application before the primary judge were, in substance, that there was jurisdictional error in the following ways:

(a) Having regard to the sparse information before the Minister in relation to the effect of Mr Le’s removal from Australia upon his children and having regard to the content of the Issues Paper and Record of Decision it may be inferred that the Minister failed to give any or any proper consideration to the best interests of the children in making his decision and thereby:

(i) failed to take into account a relevant consideration which he was obliged to take into account in the exercise of his discretion under s 501;

(ii) failed to accord natural justice to Mr Le having regard to the legitimate expectation that he would not fail to observe Australia’s obligations under Art 3.1 of the Convention on the Rights of the Child;

(iii) acted upon information so deficient that no reasonable decision could be made as to the best interests of the children as a primary consideration in determining whether Mr Le’s visa should be cancelled;

(iv) acted upon information so deficient that there was a constructive failure on the part of the Minister to consider the best interests of the children as a primary consideration and to properly exercise jurisdiction.

(b) The Minister failed to afford natural justice to Mr Le in failing to give him an opportunity to comment upon adverse information from departmental officers:

(i) relating to his contact with his children;

(ii) relating to whether Australia owed him any obligations under any relevant United Nations Convention.’

67 The primary judge gave comprehensive reasons for his decision not to allow the appellant’s application for review of the Minister’s decision.

68 It was accepted before the primary judge and on appeal that no reasons for decision were given by the Minister. That of itself does not invalidate the decision nor amount to jurisdictional error (Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488 (‘Djalic’)).

Interests of the children

69 The primary judge recognised that, if the visa cancellation stands, the appellant will be deported and removed from all practical hope of any real ongoing contact with his children. His Honour observed that ‘this is a case where there is a question mark about the adequacy of the materials put before the Minister and the merits of the decision-making process based upon them’ but that the Court is not empowered to review administrative or ministerial decisions simply on that basis.

70 His Honour was not satisfied that there was any jurisdictional error upon which the Minister’s decision to cancel the visa could be set aside.

71 The primary judge considered the Issues Paper and Direction 21 in detail. His Honour noted that the Issues Paper responded to the considerations regarding the welfare of children listed in Direction 21. However, his Honour also noted:

‘there was no reference to par 2.15 of the Direction which states, inter alia, that ‘In general terms the child’s best interests will be served if the child remains with its...parents’.’

72 The primary judge concluded that, while Direction 21 imports into the exercise by delegates of the discretion to cancel visas under s 501, the obligation to have regard to various matters including the best interests of the visa holder’s children as a primary consideration, Direction 21 does not bind the Minister in the personal exercise of his discretion under s 501 of the Act. As the Minister exercised the discretion in this case personally, Direction 21 does not require him to consider the best interests of the children.

73 The primary judge concluded that the Minister was not bound to treat the interests of the children as a primary consideration by reason of the terms of the Act, international law or the Minister’s own policy directions. He also concluded that any failure to consider such interests does not disclose jurisdictional error.

74 His Honour did, however, leave open the possibility following Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 ("Teoh") that, in circumstances where a reasonable person would assume that the best interests of the children would be a primary consideration, there may be a denial of procedural fairness if the decision-maker does not have regard to those interests without giving notice to the appellant.

75 His Honour then considered whether there was a failure of procedural fairness in relation to the Minister’s consideration of the best interests of the children. He proceeded on the basis that a failure, without notice, to give effect to the requirement to give consideration to the best interests of the children as a primary consideration in the exercise of the discretion whether to cancel the visa would constitute procedural unfairness. His Honour was of the view that, as Direction 21 incorporates a requirement to give that consideration to the best interests of the children and as that had been brought to the appellant’s attention, failure to do so would provide a stronger basis for procedural unfairness than that of Teoh. The alleged failure could therefore, according to his Honour, be considered as an alleged failure to apply Direction 21.

76 The primary judge considered the fact that neither the September letters, the April letter, nor the record of the interview were included in the documents annexed to the Issues Paper and that these documents were not before the Minister.

77 His Honour noted that the issues of the children’s welfare and the appellant’s concern for his children were raised in the annexures to the Issues Paper which, according to the Issues Paper, had been taken into consideration by the Minister. The primary judge concluded that the Minister had regard to the annexures to the Issues Paper, including the sentencing remarks and the appellant’s submission of 6 August 2001.

78 The primary judge found that the substance of the matters raised by the appellant in the record of interview was before the Minister, if not in the Issues Paper itself, then in the material which was annexed to the Issues Paper. This included the appellant’s ongoing commitment to the welfare of the children and his wish to have the opportunity to care for his children.

79 The complaint before his Honour was that the statement in the Issues Paper that ‘sole custody of the children is held by their mother, from whom Mr Le is estranged’ conveyed the implication that the appellant no longer had close and continuing contact with his children. His Honour was of the view that, in the totality of the matters before the Minister, there was no failure to identify issues concerning the children which the appellant wanted the Minister to consider and that the complaint of breach of natural justice was not made out.

80 On the basis of matters put to the Minister in the Issues Paper and annexures, his Honour was not prepared to find that the threshold of inadequacy, necessary to find a failure to give proper, genuine and realistic consideration to the best interests of the children, had been reached.

81 Further, the primary judge:

• Followed Djalic, where the Full Court at [83] expressed the opinion that there is no basis for the submission that the Minister is bound to make further inquiries concerning the position of the children.
• Rejected the submission that procedural fairness requires that a visa holder whose visa is subject to possible cancellation must be given a copy of the submission to the Minister for comment before the decision is taken.
• Referred to M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 at [54] where the Full Court noted that the submission made to the Minister was balanced and contained no adverse matter to which the appellant had not otherwise been alerted by ‘Direction No 21, the apparent nature of the power and common sense’.
• Expressed the view that the fact that more detailed evidence could have been put by the appellant if asked does not amount to procedural unfairness.

Protection obligations

82 His Honour noted that the appellant was invited to consider all matters contained in Direction 21, including the question of protection obligations. The appellant raised no matters going to protection obligations in his response. There was a statement of the appellant in the annexed documents that he could not go back to Vietnam because the government was looking for him because he avoided military service. That matter was referred to in the Issues Paper. There was evidence before the primary judge that the appellant could have raised more detail on this aspect, but his Honour held that not to be a basis for asserting a want of procedural fairness.

83 Similarly, his Honour held that there was no practical unfairness in failing to provide to the appellant the country information referred to in the annexures. There was no evidence that, if provided with a copy of that information prior to the decision being made, the appellant would have been able to make any submissions affecting the applicability or reliability of the country information cited. The affidavit material before his Honour did not contradict that country information.

84 Despite making a number of comments on the inadequacy of aspects of the decision-making process and the quality of the consideration of the best interests of the children, the primary judge found no jurisdictional error.

Grounds of appeal

85 As was the case before the primary judge, the amended notice of appeal was extensively particularised and it is unnecessary to set out those particulars in full.

86 Mr Christie, counsel for the appellant, made it clear that his primary grounds of appeal were that the appellant was denied procedural fairness because his detailed case, as set out in the September letter, the April letter and the record of interview, was not put to the Minister by the Minister’s officers and that the appellant was misled in that regard (grounds 5 and 6).

87 Grounds five and six were not included in the application before the primary judge. Apparently an attempt to raise such denial of procedural fairness was raised by the appellant in written submissions to his Honour after the hearing. The respondent’s written submission, as we were informed by Mr Christie, was to the effect that there was no such pleaded ground of review. Leave is required to rely on them for the purposes of this appeal.

88 On appeal, both the appellant and the respondent dealt with grounds five and six in the written submissions. Counsel for the respondent did not press his opposition to leave being granted.

89 At the hearing, leave to amend the notice of appeal to raise grounds five and six was granted.

Ground One

90 The primary judge accepted that a failure to take into account the best interests of the children would have amounted to a breach of procedural fairness. It was submitted that there was such a breach because, with respect to the Issues Paper and the annexures:

a.	The essential elements of the appellant’s case as to the best interests of the children were not put nor identified in the Issues Paper and therefore were not taken into account;
b.	There was not an accurate summary of the matters raised by the appellant in his interview of 26 July 2000, which was not before the Minister;
c.	There was ‘no consideration in truth’ of the best interests of the children by the Minister, as the consideration was so rudimentary.

91 The matters particularised, which it is said that the Issues Paper and annexures failed to take into account and which were contained in the record of interview were:

(1) Since his release from gaol, the appellant was living with and looking after his children and intended to continue to do so

(2) The children were close to him and depended on him for love and support
(3) The appellant’s concern regarding his wife’s ability to parent
(4) It would be difficult for the children if they were to go with him to Vietnam
where ‘they would be like foreigners’.

92 In written submissions, the appellant described ‘the essence’ of this ground of appeal on the basis that the case presented by the Issues Paper was so inadequate and so completely different to the case presented by the appellant to the Minister’s officers that in truth the Minister did not consider the best interests of the children at all.

93 A key plank of the appellant’s argument was that the basis of the Minister’s decision was that sole custody of the children was held by the mother from whom the appellant was estranged. However, the Issues Paper refers to the appellant’s "claims" that he was in regular contact with the children while in gaol. Mr Christie submitted that the Issues Paper presented as fact that the appellant’s contact with the children ceased when he went to prison. That is clearly not the case. Clear reference is made to the claim by Mr Le that he was in regular contact with the children while in gaol.

94 The appellant draws the distinction between the unqualified statements that the mother has sole custody and that children live with her and the treatment of the appellant’s statements as mere claims and not as statements of fact.

95 It is hard to see that this distinction goes to anything other than the weight given in the Issues Paper to different factual material. There is no procedural unfairness in describing a state of affairs as a claim rather than as an uncontroverted fact.

96 Mr Christie submits that, by implication, the Minister was told that continuous contact between the appellant and his children had substantially ceased instead of being provided with the appellant’s statements that there had been continuous contact and that, at the time of the record of interview (26 July 2000), he was living with his wife and children.

97 In the submission from the appellant annexed to the Issues Paper the fact that the appellant intended to look after and care for his children was specifically dealt with. In the record of interview, the appellant does state that he has lived with his wife and children for three weeks but it is by no means clear, looking to the totality of the evidence including the affidavit from the appellant’s wife, that the statement that the mother has sole custody and that the children are living with her is incorrect. The information before the Minister was not, as asserted by the appellant, that his contact with the children had ceased. To the contrary.

98 The appellant submits that the Minister failed to consider the detriment to the children if they were to live with their father in Vietnam. However, it was not suggested in the information not presented to the Minister or in the evidence before the primary judge that the children would go with their father to Vietnam. The alleged detriment to the children was not put to the Minister, was not considered by the Minister and is accordingly not relevant for the purposes of this Appeal. Indeed, the appellant emphasised the consequences of his return to Vietnam on the resulting separation from his children, who would remain in Australia.

99 Mr Christie submits that the information in the Issues Paper is so perfunctory that there was, in truth, no proper consideration of the children’s interests or that it was so off-"pitch" that the Minister considered facts different to those existing in reality.

100 In our view, the information in the Issues Paper, together with the annexures contained the essential elements and facts of the appellant’s claims. The appellant has not established that there was no proper consideration of the children’s interests or that the information was misleading. In Khan v Minister for Immigration & Ethnic Affairs (unreported, Gummow J, 11 December 1987), Gummow J held that any consideration of the merits of a case by an administrative decision maker must be ‘proper, genuine and realistic...the question will remain whether the merits have been given consideration in any real sense’. The Full Court in Braganza v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 170 at [36], stated the question as being not whether the Minister could satisfy the Court that he or she did not slavishly follow a Departmental policy but rather whether the appellant could satisfy the Court that the Minister had inflexibly applied such a policy. The appellant in this case has not so satisfied us.

101 We agree with the primary judge that there was no demonstrated failure on the part of the Minister to take into account the essential elements of the appellant’s case or the best interests of the children. The appellant has not established a denial of procedural fairness in that regard.

Ground Two

102 The appellant submits that the failure on the part of Departmental Officers to make further enquiries as to the position of the children amounted to a denial of procedural fairness.

103 We agree with the view expressed in Djalic at [83] that there is no such obligation. The primary judge did not err in following this decision.

Ground Three

104 The appellant submits, in effect, that there had been a denial of procedural fairness in that he had not been given an opportunity to refute ‘the implicit adverse allegations contained in the Issues Paper’ that he did not have a continuing close relationship with his children following his incarceration.

105 The Issues Paper referred to the appellant’s claim that he was in regular close contact with his children while in gaol. The annexures referred to his continuing close contact with them.

106 Considering the totality of the information before the Minister the factual basis for this submission, that there was such an implicit adverse allegation, is not made out. Accordingly, there was no denial of procedural fairness in not affording the appellant the opportunity to refute the adverse allegations, even if such an obligation existed.

Ground Four

107 The appellant submits that there was a denial of procedural fairness in not being given an opportunity to refute the adverse allegations and country information that the appellant, although a refugee, did not attract Australia’s protection obligations.

108 The primary judge noted that there was no evidence to suggest that the appellant would have been able to make any submissions on the applicability or reliability of the country information. Mr Christie submits that this finding is wrong. He refers to an affidavit of the appellant in which he referred to his parents’ loss of their jobs ‘as retribution for my evasion of military service and fleeing Vietnam’ and gave details of his visit to Vietnam and the fact that he had been told that local public security was looking for him.

109 The salient part of the appellant’s claims as to what would happen on his return to Vietnam, although elaborated upon in the material that was not before the Minister, was also included in the annexures to the Issues Paper. Onshore Protection’s assessment of the protection obligations owed to the appellant included a statement by him that ‘I cannot go back to Vietnam again because the government is looking for me because I avoided military service.’

110 We agree with the primary judge’s assessment of this claim on the material before the Minister and before him. No denial of procedural fairness is established.

111 Mr Christie relies upon the description by the appellant of the events that occurred on his return to Vietnam in 1998 and the continuing persecution of his family following his departure from Vietnam. This is said to give rise to a denial of procedural fairness in that these claims were not before the Minister. This aspect is said to relate to this ground and also to ground five.

Grounds Five and Six

112 In ground five, the appellant claims that the primary judge erred in failing to determine that he had been denied procedural fairness because submissions contained in the September letter, the March letter and the record of interview were not included with the Issues Paper and were not before the Minister.

113 Mr Christie acknowledges that ground six ‘is really a subset of ground 5’. In ground six, the appellant asserts a denial of procedural fairness in that the appellant had been misled by the Minister’s Departmental officers into reasonably believing that the information he presented would be taken into account.

114 The basis of ground five is that letters from the Department to the appellant implicitly stated that this material would be taken into account by the Minister when a decision was made. This was elaborated as follows: the appellant was requested to attend an interview; he was told that if he failed to attend, a decision would be made based on the facts currently held on file; this gives rise to an implication that, if he did attend an interview, what he said would be taken into account. Failure to take this material into account would result in a breach of procedural fairness. Mr Christie submits that the Minister’s decision should be set aside unless the Court is satisfied that the provision of the additional information could not have made a difference. In circumstances where no reasons have been provided, it is said that there can be no such satisfaction.

115 The correspondence from the Department was framed in terms that would in our view fairly indicate to the appellant that material he provided and the record of interview would be taken into account.

116 In Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 (‘Lu’) the Full Court discussed the applicable principles in respect of a failure on the part of the Minister to take into account the appellant’s true criminal record for the purposes of s 501A of the Act. The Court considered whether that failure amounted to jurisdictional error and, if so, whether the appellant should be denied relief.

117 In Lu, the appellant’s criminal record was, by reason of s 501A, a consideration which the Minister was bound to take account ‘in the Peko-Wallsend sense’. That is, it was a consideration which, as a matter of construction, was required to be taken into account (at [36] per Sackville J).

118 Sackville J considered the application of the principle of Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 to the concept of jurisdictional error. His Honour concluded at [46] that there are at least two questions to be addressed in a case where an applicant challenges a decision on the ground of jurisdictional error by reason of a failure to observe the requirements of procedural fairness.

119 The first requires consideration of the precise content of the requirements of procedural fairness in the particular circumstances of the case. As his Honour stated at [46]:

‘A relatively ‘trivial’ procedural unfairness may not contravene those requirements. That is not, however, because the contravention is ‘trivial’. It is because the acts or omissions of the decision-maker are regarded as consistent with the ‘practical content’ of the rules of procedural fairness.’

120 The second question posed by his Honour at [47] is as follows:

‘The second question arises only if a contravention of the rules of procedural fairness is established. In such circumstances, Ex parte Aala holds that the applicant is entitled to succeed if the denial of procedural fairness has deprived him or her of the possibility of a successful outcome. To put the matter another way, the applicant will succeed unless the denial of procedural fairness could have had no bearing on the decision. Thus it is necessary to consider whether the denial of procedural fairness could have had a bearing on the decision. If it could not, the applicant will be refused relief.’

121 In considering the second question, Sackville J concluded that the correct approach is to determine whether the applicant has been deprived of the possibility of a successful outcome. His Honour states at [65]:

‘The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker’s reasoning process is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account.’

122 Black CJ agreed with the formulation of principle by Sackville J and with his reasons. At [29] the Chief Justice emphasised the importance of determining whether there was a ‘rational possibility’ that a more favourable assessment would have been made by the Minister. Sundberg J dissented in the appeal but at [105] expressly adopted Sackville J’s formulation of the proper test to be applied. His Honour concluded that the omissions from the Issues Paper could not have materially affected the Minister’s decision.

123 In the present case, the Minister was not bound to take into account the September letter, the March letter or the record of interview ‘in the Peko-Wallsend sense’ (see also Minister for Immigration and Multicultural and Indigenous Affairs v Hunyh [2004] FCAFC 256; (2004) 211 ALR 126). The Act does not require it and the Direction does not bind the Minister personally.

124 There is no evidence from the appellant that he was misled or that he expected the material to be before the Minister. The appellant submits that the test for whether an appellant has been misled is objective, citing Toohey J in Teoh at 301. However, for the reasons set out in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 195 ALR 502 and Lu at [45] a mere failure to follow the stated procedure does not, of itself, amount to a denial of procedural unfairness. Here, the appellant has not established that there was any practical unfairness.

125 Even if the Minister were required to take the missing material into account, the questions in Lu are answered contrary to the appellant. There was no information in the three missing documents that was not in substance in the Issues Paper and annexures. The ‘practical content’ of the obligation to provide procedural fairness has been satisfied.

126 I do adopt the observations of the primary judge as to the decision making process in this case. It cannot be said to have been adequate. Further, in circumstances where the appellant is so closely involved with his children’s upbringing and where, in all likelihood, a return to Vietnam would mean total separation of the children and their father, the consequences of his actions do seem harsh on them and on him. However, the appellant has not demonstrated error on the part of the primary judge. The appeal is dismissed with costs.

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

Associate:

Dated: March 2005

Counsel for the Appellant:	HNH Christie
Solicitors for the Appellant:	Christie & Strbac
Counsel for the Respondent:	M T Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 November 2004
Date of Judgment:	31 March 2005