Rocca v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 71 (10 May 2005)

Last Updated: 12 May 2005

FEDERAL COURT OF AUSTRALIA

Rocca v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 71

Migration Act 1958 (Cth) ss 499, 501(2)
Family Law Act 1975 (Cth) s 68F






Rocca v Minister for Immigration [2004] FMCA 332 cited
M v M [1988] HCA 68; (1988) 166 CLR 69 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 applied
Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 cited
Sokourenko v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 892 cited
Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 cited
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 cited
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 cited








GIUSEPPE ROCCA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 862 OF 2004

GRAY, NICHOLSON and SUNDBERG JJ
10 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 862 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	GIUSEPPE ROCCA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, NICHOLSON and SUNDBERG JJ
DATE OF ORDER:	10 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

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

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 862 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	GIUSEPPE ROCCA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, NICHOLSON AND SUNDBERG JJ
DATE:	10 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

GRAY J:

The nature and history of the proceeding

1 This appeal, from a judgment of the Federal Magistrates Court, concerns a decision of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), to cancel the appellant’s visa. The central issues in the appeal relate to the best interests of the appellant’s children and grandchildren. The appellant contends that he was entitled to have the best interests of his children and grandchildren taken into account in his favour, but that they were not taken into account adequately, or at all, by the Minister.

2 The appellant is an Italian citizen, who has lived in Australia since 1965. He held a visa entitling him to reside permanently in Australia. In August 1999, he was convicted in the County Court at Melbourne of trafficking in heroin. He was sentenced to imprisonment for a term of seven years and six months, with a non-parole period of five years. By notice dated 15 September 1999, the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases ‘the Department’) informed the appellant of the intention to cancel his visa on the ground that he failed the character test. The notice informed the appellant that the Minister’s Direction No. 17, a copy of which was enclosed, would be taken into account. The appellant was invited to make submissions as to whether his visa should be cancelled. He did so in a letter dated 14 October 1999. Subsequently, Direction No. 17 was replaced by Direction No. 21. By letter dated 26 March 2003, the Department notified the appellant of this change and enclosed a copy of Direction No. 21. The letter drew attention to differences between the two directions.

3 On 23 April 2003, an officer of the Department interviewed the appellant. The officer told the appellant that the purpose of the interview was to give him an opportunity to disclose any personal or other issues that he wished the Minister to take into account in deciding whether to cancel the visa. The appellant made submissions, including submissions about the hardship that his family would suffer if the visa were cancelled. Subsequently, the Department received written submissions from members of the appellant’s family, and conducted telephone interviews with one of his daughters, and with the mother of four of his children.

4 On 5 October 2003, the Minister signed a written decision. The decision contained two elements. One was a statement that the Minister reasonably suspected that the appellant did not pass the character test and the appellant had not satisfied the Minister that he passed the character test. The second was that the Minister had decided to exercise his discretion under s 501(2) of the Migration Act 1958 (Cth) (‘the Migration Act’) to cancel the visa, so the visa was thereby cancelled. On the same day, the Minister signed a statement of reasons for the decision.

5 The appellant filed in the Federal Magistrates Court an application seeking orders quashing the Minister’s decision, as well as seeking other relief. On 17 June 2004, the Chief Federal Magistrate dismissed the application. See Rocca v Minister for Immigration [2004] FMCA 332. It is from that judgment that the appellant has appealed to this Court.

The legislation

6 Section 501 of the Migration Act contains the following relevant provisions:

‘(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’.

7 Section 499 of the Migration Act provides, so far as is relevant:

‘(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’.

8 Direction No. 17, and Direction No. 21 which replaced it, were both made pursuant to s 499 of the Migration Act. As it is common ground that the Minister applied Direction No. 21 in considering whether to cancel the appellant’s visa, it is only necessary to look at the relevant provisions of Direction No. 21. In its terms, Direction No. 21 is intended to provide guidance to decision-makers in making decisions to refuse or cancel visas, pursuant to s 501 of the Migration Act. Among the considerations that Direction No. 21 requires a decision-maker to take into account is the following:

‘The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.

2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.

2.15 In general terms, the child’s best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen, include, but are not limited to:

(a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

2.16 When considering the best interests of the child, decision-makers should have regard to the following:

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

(b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c) the age of the child;

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

(e) the likely effect that any separation from the non-citizen would have on the child;

(f) the impact of the non-citizen’s prior conduct on the child;

(g) the time (if any) that the child has spent in Australia;

(h) the circumstances of the probable receiving country, including the educational facilities and the 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 enter or remain in Australia;

(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; and

(j) 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.’

The material before the Minister

9 At the time of making his decision, the Minister had before him a quantity of material relevant to the circumstances of the appellant’s offence and various other matters. This included material about the appellant’s family. In his letter dated 14 October 1999, the appellant stated that he had two children under the age of 18, and a number of grandchildren also under that age. The letter said:

‘I need not impress upon you that in spite of my conviction my family and I are very close. The two younger children and my grandchildren miss me greatly and I them. They are experiencing a great deal of mental anguish at being separated from me and it is a source of great regret to me to see their pain.’

10 Attached to a form dated 2 April 2003 was a handwritten account of the appellant’s personal details, including a list of eight children, three with the surname Rocca, four with the surname Lombardi and one with the surname Binion. Their birth dates ranged from 1969 to 1998, with the last three being under 18 at the time of the statement.

11 Notes of the interview with the appellant on 23 April 2003 record the following questions and answers:

‘10. What hardship would visa cancellation and removal from Australia
cause you?

I would feel bad. I have got all my family here. All my kids, my grandchildren and I got a possibility here to find a job to work for the rest of the time I live. In Italy I wouldn’t have a chance. Who is going to give me a job there? I have got nothing. Here I have my kids and plenty of job opportunities. Who is going to give me a job after 40 years of being here?

11. What degree of hardship would visa cancellation and removal from
Australia cause your spouse/defacto/children?

It would affect all my kids. I have eight children and seven grandchildren and another one on the way. It would affect them badly. They come every month to see me here. My daughter came last week, with her four children.

...

15. Do you believe there are any reasons why you cannot return to your
country of birth/citizenship?

I have got two older brothers and they have big families and they can’t look after me. I will be there on my own. My kids are here and wouldn’t be able to visit me (due to lack of money)

...

30. Who are the children presently living with?

Got married in 1967 – separated about 10 years ago. 2 boys and a girl. Daughter 35 (2 children), son, 32, son 29 (2 children). Before jail, he was in contact with his wife – she came to the shop a few times. His daughter comes often – every two or three months. Speaks to his sons sometimes. Presents for his grandchildren.

Also has children with Anna Lombardi. She was partner for a long time. Was with her for between 5-7 years. He had four children with Anna. One is 22, one 20, one 18 one 15. Michelle has one child (1-year-old) and another due next month. They come every month to visit me. All of them come. Their mother has been a couple of times as well. Phone contact with them as well. He says he speaks to them every night. He rings them. One is married, once lived with boyfriend and two younger one lives with mother. We are friends. Not supporting them financially. Before he went to prison he says he had daily contact with them- either.

Also has a young child – Blake Binion – four and a half. His mother is Linda Binion. Partner for a couple of months. He is in contact with her – he rings her once or twice a week, grandma has the baby – he rings the grandmother (Donna Binion) He rings to talk to Blake. I did the night before last. I send him $20 a month for his school in future. They are coming to Sale to see me because I have 12 hour leave – and a month later I go home for 24 hours. They come to see me. Donna, Linda and the boy are coming up and take him out for the day – leave program.

...

33. What impact has your conduct had on your children?

I am in disgrace. I don’t want them to make an mistake like I did. They are very sad to see me here.

38. Are there any formal custody orders in effect for any or your children?
If so, give details.

No.’

12 The material before the Minister also contained a number of letters of support for the appellant. In a letter dated 1 May 2003, Donna Binion said that the appellant is the biological father of her four-year old grandson. Donna Binion has sole custody of that grandson. She expressed the view that:

‘It is my firm belief that every child, and probably more so boys rather than girls, needs the help and guidance of a father figure, Blake is no exception and the best person to undertake that task is of course the biological father.

Given the above, and in the interest of Blake’s welfare, I would respectfully request that any decision to deport Mr. Rocca be reconsidered with the view of overturning it.’

13 On 2 May 2003, the appellant’s son Michael Rocca wrote that he had always been close to his father and would like very much for him to be involved in Michael’s life with his girlfriend and baby daughter. He wrote that he wanted the appellant to see his family grow up and to be a part of their lives.

14 There were various handwritten notes from the appellant’s grandchildren. Eight-year old Corey said that he loved his grandfather very much, visited him in gaol and wanted him to come to Corey’s house. Twelve-year old Josh said that he visited his grandfather in the correctional centre every school holidays, and that he would not be very happy if his grandfather had to leave the country because he loved him very much. He didn’t get to see his grandfather very much but would like to see him a lot more when he came out of the correctional centre. Fourteen-year old Jamie said that he visited his grandfather often and would not want his grandfather to go to Italy. It would make Jamie very sad because he would never see his grandfather again and he loved his grandfather a lot. Ten-year old Nathan said that he visited his grandfather in gaol and, if his grandfather went to Italy, he would not be able to visit him. Nathan said that he would be happy if his grandfather would stay in Australia and he could visit him more often.

15 The youngest of the Lombardi children, Samantha, said that she was the youngest in the family, and loved her father very, very much. She said that he had always been there for her and that she could not imagine life without her dad. She requested that he be not sent to Italy. Michelle Lombardi said that she had a one-year old daughter and was close to giving birth to another child. She said that she wanted her children to know their grandfather and requested that he be allowed to stay in Australia.

16 By letter dated 28 April 2003, Josaphina Rocca, a daughter of the appellant, said that she and her partner had four sons ranging in age from eight to 15. The letter said:

‘The reason I am writing to you is to let you know how important it is for my family and myself to have my father stay in Australia when he is released from prison.

I visit my father with my partner and children as often as we can. My children write to him regularly and are looking forward to the day he can come and stay with us at our house. I do not want my children to grow up without knowing their grandfather. We want him to be in our lives and to be able to see him as much as we can.

I love my father very much and if he was to be sent back to Italy my children and I would be devastated. We would probably never see him again as we are not in a financial position to go overseas and probably never will be. We would miss him so much. It’s hard enough with him being in prison and being unable to see him as often as we would like to.’

17 The material before the Minister also included notes of telephone interviews with members of the family. On 30 April 2003, Josaphina Rocca was recorded as having said:

‘I and my kids would miss him a great deal because we have a relationship with him. I’m not in a position financially to go to Italy. My children are 15, 12, 10 and 8. We try to visit Dad every school holidays. We spend the whole day there – we arrive at about 10 am and stay until 4. We visit him in the visitor’s section. He cooks us a meal and we sit together to eat the meal. Then we have coffee and dessert and talk about what’s happening at home and how he’s coping.

...

I don’t want my children to grow up without their grandfather.’

18 On 28 May 2003, Anna Lombardi, the mother of four of the appellant’s children (one of whom was then under 18), told the officer of the Department that the children would be upset if the appellant were deported, that they talked to the appellant every night on the phone, that they were close to him, and that they chatted about things they did each day. She also said that the appellant has his children in Australia, and that she would be concerned about her children losing contact with their father if he should be sent to Italy. She told the officer that they would miss him because they would never see him again and that they had been to visit him a lot of times in gaol.

19 The material before the Minister also included a written submission from Victoria Legal Aid. This submission said that the appellant asked in particular that the situation of his children be taken into consideration. It referred to the fact that he had eight children, all born in Australia, who all regarded themselves as Australian.

The Minister’s decision

20 Officers of the Department prepared for the Minister’s consideration a document entitled ‘Issues For Consideration Of Possible Cancellation Of A Visa under S.501(2) Of The Migration Act 1958’. The purpose of the document was described as follows:

‘1. To seek your decisions on:

• Whether Mr Rocca passes the character test in s.501(6) of the
Migration Act; and

• If not, whether to cancel his visa pursuant to s.501(2) of the
Migration Act.

2. Should you choose to make a cancellation decision the draft statement
of reasons at Part E should set out correctly your reasons for doing so.
If it fails to do this a revised statement of reasons that includes your
required amendments will be prepared.’

21 The document was divided into five parts. Part A contained personal details of the appellant, including his immigration history and the type of visa he held at that time. Part B referred to the grounds on which a visa could be cancelled, and to the details of the appellant’s conviction and sentence. It advised the Minister that it was open to him to find that the appellant had a substantial criminal record under s 501(7)(c) of the Migration Act, and therefore could not satisfy the Minister that he passed the character test. Part C of the document referred to discretionary factors. In relation to the best interests of the children, the document set out art 3.1 of the Convention on the Rights of the Child:

‘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.’

22 The document then set out the factors referred to in par 2.16 of Direction No. 21 and went on to detail the children and grandchildren of the appellant. After setting out extracts from the communications received from members of the appellant’s family, and summarising other parts of that material, the document advised the Minister:

‘It is open for you to find that Mr Rocca’s children would suffer hardship if his visa were to be cancelled. It is also open for you to find that Mr Rocca’s children may also suffer hardship if Mr Rocca continues to offend.’

23 The document then set out further extracts from, and summaries of, the material. All of the material was attached to the document and listed at the end of Part C of the document itself.

24 Part D of the document contained the Minister’s decision, in the following form:

‘75. I have considered all relevant matters including (1) an assessment of
the Character Test as defined by s501 (6) of the Migration Act 1958,
(2) my Direction under s499 of that Act and (3) all evidence provided
on behalf of/and by Mr Rocca.

76. I have decided that:

(Please delete whichever is NOT applicable)

(a) I am satisfied that Mr Rocca passes the character test.

OR

I reasonably suspect that Mr Rocca does not pass the character test and Mr Rocca has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa.

OR

I reasonably suspect that Mr Rocca does not pass the character test and Mr Rocca has not satisfied me that he passes the character test. I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa. My reasons for this decision are stated at Part E of this record.’

25 The Minister appears to have struck out the first two options and left the third. His signature follows immediately.

26 Part E of the departmental document is headed ‘Statement of Reasons’. For present purposes, the relevant part of those reasons was:

‘Best Interests of the Children

91. I also gave primary consideration to the best interests of the children.
Mr Rocca has eight children, two of whom are under the age of 18.
His four-year-old son, Blake, is in the care of his maternal
grandmother, but Mr Rocca is apparently in regular contact with the
boy and his grandmother (Mrs Binion) – phoning several times a
week. Mrs Binion expressed the strong view that it was in her
grandson’s best interests that Mr Rocca be allowed to stay in Australia
and remain involved in Blake’s life. Mr Rocca is also in frequent
contact with his 15-year-old daughter, as he is with most of his other
children. Despite his criminal convictions, it would appear from
interviews with family members, and written submissions, that Mr
Rocca is a valued father and close to many members of his family.

92. Mr Rocca did not advise whether the children would accompany him
to Italy if he were to be removed to that country. On the other hand, I
also found that Mr Rocca’s children will also suffer hardship if he
continues to re-offend.

93. According to letters submitted to the department, as well as interview
with family members and Mr Rocca, I concluded that the cancellation
of Mr Rocca’s visa and his removal from Australia would cause
hardship on the children. I gave the difficulties his children would
suffer if he was removed from Australia considerable weight but noted
that Mr Rocca’s criminal history and incarceration have also caused
him and his family hardship.’

27 In a concluding paragraph, the Minister said:

‘98. In reaching my decision I concluded that the seriousness of Mr
Rocca’s crimes, the negative effect of these crimes on others and the
expectations of the Australian community outweighed all other
considerations above.’

28 Again, the Minister’s signature follows.

The primary judgment

29 At [22] in her reasons for judgment, the learned Chief Federal Magistrate identified three grounds on which the appellant relied:

‘• That the decision was not made by the Minister personally.

• That the making of the visa cancellation decision involved jurisdictional
errors in that irrelevant considerations were taken into account and
relevant considerations were ignored. This ground was not pressed in its
entirety.

• That the applicant was denied natural justice and/or procedural fairness
in that the Minister relied upon the issues paper and the statement of
reasons prepared by officers of the Department without first according the
applicant an opportunity to comment on the contents of those documents.’

30 Her Honour held that the appellant failed on the first ground. As to the third ground, her Honour rejected the contention that Part E of the document placed before the Minister was really a submission from the officers of the Department, to which the appellant should have been given an opportunity to respond. Her Honour held that the appellant already had an opportunity to deal with the matters that were the subject of the statement of reasons. Even if it could be said that the statement of reasons constituted a submission (which her Honour did not hold to be the case), her Honour took the view that there was no failure to accord procedural fairness to the appellant in not giving him an opportunity to comment on matters of evaluation.

31 As to the second ground, her Honour held that the Minister had taken into account the considerations that the appellant identified as relevant. She described the matters asserted to be irrelevant considerations as being inadequately particularised and not the subject of argument. Her Honour went on to reject an argument that the Minister had fettered his discretion by confining himself to considering the terms of Direction No. 21, and failing to give independent consideration to the merits of the appellant’s case.

The appeal

32 In his notice of appeal, the appellant relied on the same three grounds as those identified by the Chief Federal Magistrate. Counsel for the appellant abandoned the first ground, conceding that it could not be sustained because of authority to the contrary. As to the other two grounds, the submissions put by counsel for the appellant may be summarised as follows:

•	The appellant was entitled to be given notice of, and an opportunity to respond to, reasoned arguments in the departmental submission, which were unbalanced and directed to achieving a particular result.

•	The notification that the Minister would have regard to Direction No. 17, which required the best interests of children to be taken into account, raised a legitimate expectation that the best interests of children would be taken into account.

•

Although the material placed before the Minister contained facts related to the children, it did not contain any consideration of their interests. It did not identify their interests or how they would be affected by cancellation of the appellant’s visa and his deportation, except for the reference to hardship in par 53.

•	The best interests of children cannot be equated with hardship.

•	The balancing of hardship arising from cancellation of the visa against hardship already suffered, and likely to be suffered in the future, from the appellant’s conduct involved new considerations, on which the appellant had had no opportunity to put argument.

•	Hardship arising from the appellant’s conduct was an irrelevant consideration.

The best interests of children

33 In general terms, it is true to say that a consideration of the best interests of children involves far more than a consideration of hardship that would be caused to those children by a particular event, such as the absence of a parent or grandparent. In most cases, a proper consideration of the best interests of children will involve attempting to form opinions about the likely future development of those children, and the effect that the presence, or absence, of the particular parent or grandparent will be likely to have on that development. This might involve the consideration of measurable matters, such as living conditions, but will also require that regard be paid to emotional needs, and to the need for guidance and example. Such matters can only be considered properly in the context of an awareness of the identity of other persons who do, and might be expected to continue to, provide for various needs of the children, and their interaction with the parent or grandparent the withdrawal of whose presence is being considered. As the High Court of Australia pointed out in M v M [1988] HCA 68; (1988) 166 CLR 69 at 77:

‘[I]n deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.’

34 The considerations that the Family Court of Australia is required to take into account are now set out in s 68F of the Family Law Act 1975 (Cth). They provide a good guide to the magnitude of the task.

35 This is not to say that the consideration of the impact of withdrawal of a parent or grandparent on the interests of children can, or should be, confined to the withdrawal of the positive effects of the person’s presence. It is also necessary to consider any negative effects on the interests of children of the continued presence of the parent or grandparent concerned. It is easy to envisage a case in which the likelihood of future criminal behaviour or other undesirable conduct is so great that the best interests of a child will be better served by removal of the child from contact with the parent or grandparent concerned.

36 Nor can the question of the best interests of children be decided on the basis of likely future developments without regard to what has actually occurred already. It is legitimate, if not essential, in considering the best interests of children, for a decision-maker to take into account what positive and negative effects the presence of the parent or grandparent concerned has had in the lives of the children.

37 The Minister did not deal with the best interests of the appellant’s young children and grandchildren in the way I have described, when he made his decision to cancel the appellant’s visa. One major reason for dealing with the issue in terms of hardship lies in the fact that the material placed before the Minister in support of the appellant’s contention that the visa ought not to be cancelled was substantially, if not entirely, put in terms of hardship. No serious attempt was made to provide an evaluation of the manner in which the lives of the relevant children would be likely to unfold with, and without, the appellant’s presence. Instead, the material was entirely in terms of the detriment that the children and grandchildren would suffer from missing their contact with the appellant. It was not inappropriate to describe the case put as one of hardship. Given the way the case was put, it was proper for the Minister to consider the hardship caused to the children and grandchildren by the appellant’s past conduct and also to consider possible hardship in the future if the appellant were to re-offend.

38 Although the reasons adopted by the Minister could have been expressed more fully, it cannot be said that they demonstrate either a failure to take into account a relevant consideration, or the taking into account of an irrelevant consideration. On the facts of the particular case, the Minister was entitled to view the matter as one of hardship, even if other cases would have to be viewed in a broader way. On the facts of the particular case, the Minister was also entitled to take into account hardship already caused to the children by the appellant’s conduct, and hardship that might be caused in the future if the appellant were to re-offend.

39 This conclusion makes it unnecessary for me to deal with the question whether the best interests of the children was a relevant consideration for the Minister, in the sense identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. It was common ground in the present case that the Minister was not bound to apply his own direction, given pursuant to s 499 of the Migration Act, when making a decision personally. Whether, by choosing to apply Direction No. 21, the Minister became obliged to treat the factors to which it referred as relevant considerations is a question best left for determination on another occasion.

40 One thing can be said with certainty. The notion that the appellant had a legitimate expectation that the Minister would take into account the best interests of children could not operate to make the best interests of children into a relevant consideration in the Peko-Wallsend sense. Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 stands as authority for the proposition that, if the best interests of children are a relevant consideration in a particular case, giving rise to a legitimate expectation that they will be taken into account, and the decision-maker does not propose to take them into account, the decision-maker is obliged to inform a person likely to be affected by the decision and to provide that person with an opportunity to be heard as to why the best interests of children should be taken into account. The present case is the reverse of that situation. Here, the appellant was given notice that the Minister did propose to take into account the best interests of children, among the other considerations in Direction No. 17, and then Direction No. 21. This gave the appellant an opportunity to be heard on the issue. It did not create an obligation on the Minister to take the best interests of children into account. The only obligation arising from legitimate expectation is a procedural one. The existence, or possible existence of a legitimate expectation that something will be taken into account by a decision-maker does not impose a substantive obligation on that decision-maker to take that matter into account. It only gives rise to an obligation to take procedural steps if that consideration is not to be taken into account.

41 If, in the present case, the best interests of children were a relevant consideration, the Minister took them into account to the extent to which the nature of the material before him permitted. The appellant’s real claim is that the Minister should have given more weight to that consideration, as against others, than he did. The weight to be given to the various competing considerations was a matter for the Minister. Neither the Federal Magistrates Court nor this Court can adopt a different view from that of the Minister as to the relative weight to be given to the competing considerations.

Procedural fairness

42 This issue can be dealt with shortly. The appellant was told that the Minister proposed to take into account the factors referred to in Direction No. 21. He was given a number of opportunities to make submissions on those factors, including the best interests of his children and grandchildren. As the summary of the material before the Minister above demonstrates, the appellant took that opportunity. Although, with hindsight, he might have said more, he was not restricted in what he could place before the Minister.

43 Inherent in the issue of the best interests of the appellant’s children and grandchildren was the question of weighing the positive and negative aspects of the appellant’s interaction with the children and grandchildren, so far as the Minister was able to do so. This was not a case in which a decision-maker failed to inform a person affected by the decision of the crucial point on which the decision would turn, so as to provide an opportunity for that person to deal with the point. The point was obvious. The appellant had the opportunity to put forward as much material as he was able to, with respect to the benefits to his children of his presence in Australia, and to counteract any suggestion that there were negatives arising from his proximity to the children and grandchildren. Part C of the document signed by the Minister formed part of the evaluation of the material before the Minister. It did not amount to an independent submission, to which the appellant had a right to respond. The Chief Federal Magistrate was correct in holding that there was no denial of procedural fairness.

Conclusion

44 The appellant having failed to make out any grounds of his appeal, the appeal must be dismissed. No reason was advanced, and none appears, why the appellant should not be ordered to pay the Minister’s costs of the appeal.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 10 May 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 862 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	GIUSEPPE ROCCA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	GRAY, NICHOLSON and SUNDBERG JJ
DATE:	10 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

NICHOLSON and SUNDBERG JJ
BACKGROUND

45 The appellant is a 60 year old Italian citizen who arrived in Australia in 1965. Apart from short absences he has resided in Australia since then. In August 1999 he was sentenced before the County Court at Melbourne to seven years and six months imprisonment, with a non-parole period of five years, for trafficking in heroin. By letter dated 15 September 1999 the Department of Immigration and Multicultural Affairs sent the appellant a notice of intention to cancel his permanent resident visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). The notice stated that matters to be taken into account included his conviction. It enclosed a copy of the respondent’s Direction 17. By letter dated 14 October 1999 the appellant provided a response to the notice. By letter dated 26 March 2003 the Department notified the appellant that Direction 17 had been replaced by Direction 21. A copy of the new Direction was enclosed. The covering letter set out the differences between the two Directions.

46 At an interview with an officer of the Department on 23 April 2003 the appellant was told that the purpose of the interview was to give him an opportunity to disclose any personal or other issues that he wished the respondent (the Minister) to take into account in deciding whether to cancel his visa. The appellant responded to the invitation, and referred, amongst other things, to the hardship to himself and his family that would ensue upon cancellation. After the interview, written submissions were received from family members, and telephone interviews took place with one of the appellant’s daughters and the mother of four of his children.

47 Subsequently, officers of the Department prepared a document entitled "Issues for Consideration of Possible Cancellation of a Visa under s 501(2) of the Migration Act 1958" (the Issues Paper) for consideration by the Minister. The Issues Paper has five parts: A. Personal Details, B. Consideration of Visa Cancellation, C. Discretion, D. Decision, E. Statement of Reasons. In the appellant’s submissions Part E is called the "reasons statement".

48 Under the heading "Purpose" on page 1 of the Issues Paper appears the following:

"1. To seek your decisions on

• Whether Mr Rocca passes the character test in s 501(6) of the Migration Act; and
• If not, whether to cancel his visa pursuant to s 501(2) of the Migration Act.

2. Should you choose to make a cancellation decision the draft statement of reasons at Part E should set out correctly your reasons for doing so. If it fails to do this a revised statement of reasons that includes your required amendments will be prepared."

49 Part D of the Issues Paper provides for three options. The first two are crossed out. What remains, signed by the Minister, is as follows:

"I reasonably suspect that Mr Rocca does not pass the character test and Mr Rocca has not satisfied me that he passes the character test. I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa. My reasons for this decision are stated at Part E of this record."

50 Part E is also signed by the Minister. It is primarily concerned with the matters the Minister says he took into account in determining whether to exercise his discretion to cancel the visa. These included:

• the seriousness and nature of the criminal conduct
• the appellant’s good behaviour during incarceration
• the self-improvement courses he had taken while in prison
• the risk of recidivism
• deterrence to others
• the expectations of the Australian community
• the best interests of the appellant’s children
• the disruption that would be caused to the appellant and his family
• the length of his residence in Australia and the presence of his extended family here
• the hardship to the appellant of having to start a life in Italy including the difficulty of finding work there, and
• the desire of family members that he be allowed to stay here.

51 The Issues Paper and the information accompanying it were not supplied to the appellant prior to the Minister making his decision. On 5 October 2003 the Minister purported to cancel the appellant’s visa.

LEGISLATION

52 Section 501(2) of the Act empowers the Minister to cancel a visa if

"(a) the Minister reasonably suspects that the person does not satisfy the character test; and
(b) the person does not satisfy the Minister that he or she in fact passes the character test."

Sub-section (6)(a) provides that a person does not pass the character test if he or she has a substantial criminal record. Under sub-s (7)(c) a person is deemed to have a substantial criminal record if he or she has been sentenced to imprisonment for twelve months or more.

BEFORE THE CHIEF MAGISTRATE

53 The appellant sought review of the Minister’s decision under s 39B of the Judiciary Act 1903 (Cth). The application was heard by the Chief Federal Magistrate. There were three grounds of review:

• the decision was not made by the Minister personally
• the appellant was denied procedural fairness in that the Minister relied on the Issues Paper without first according the appellant an opportunity to comment on it, and
• the making of the decision involved jurisdictional errors in that irrelevant considerations were taken into account and relevant considerations were ignored.

First ground

54 The Chief Magistrate rejected the contention that the decision was not made by the Minister personally. There is no appeal against this conclusion, and we need not describe her Honour’s reasons for rejecting the contention.

Second ground

55 The Chief Magistrate rejected the contention that the reasons statement was really a submission upon which the appellant had not been afforded an opportunity to comment. Her Honour adopted what had been said by Goldberg J in Sokourenko v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 892 at [26]:

"It is clear that it was not necessary for either the author of the issues paper or the Minister to make available the contents of the issues paper to the applicant before the Minister made a decision based upon the matters raised in the issues paper. It has been accepted that the rules of natural justice do not require a decision maker or a departmental officer preparing material for consideration by a decision maker to disclose the reasoning process set out in preparatory material upon which the decision is to be made."

The Chief Magistrate observed that although a decision maker does not have to disclose his or her chain of reasoning or evaluative conclusions, this does not relieve the decision maker from communicating to the affected person the critical issues or circumstances the decision maker considers to be relevant to the determination in question, and in particular any new matters of which the person affected may not be aware, so as to enable the person to respond. Her Honour was of the view that this had been done in the present case:

"In my view it is quite clear from the material ... which the applicant presented to the departmental officers and the interviews and correspondence with various relevant persons set out in the issues paper that this opportunity was afforded to the applicant and the reasons statement, even if it could be regarded as a submission, did not raise new matters ....

Therefore even if it could be said that the reasons statement did not constitute the reasons of the Minister but rather a submission (which I have held not to be the case) the document contains evaluative material upon which the failure to provide an opportunity to the applicant to comment, was not a failure to accord natural justice or procedural fairness."

Third ground

56 According to the Chief Magistrate the appellant relied only on the alleged failure of the Minister to take into account certain relevant considerations, one of them being the best interests of the appellant’s infant children. By reference to the material parts of the Issues Paper, her Honour demonstrated that most of the matters in question had expressly been considered, and the others had in substance been considered. She was of the view that several of the appellant’s complaints really went to the merits of the decision and not to a failure to take into account relevant matters.

THE APPEAL

Relevant consideration – best interests of infant children

57 The only relevant consideration the appellant claimed the Minister had failed to take into account was the best interests of the children. This issue had three strands. The first was the submission that there is a clear distinction between considering best interests and considering hardship. The second was the contention that the Minister did not analyse the interests of the children. The third was that the Minister did not indicate how the hardship to the children consequent on cancellation of the visa was mitigated by the proposition that they would also suffer hardship if the appellant continued to offend. We need not explore these strands. It was common ground that the Minister is not bound by a direction given under s 499 of the Act. Accordingly, the best interests of the children is not a consideration the Minister is bound by the Act to take into consideration. Cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. No binding requirement to take the children’s best interests into account is created by Art 3.1 of the Convention on the Rights of the Child (the Convention). The relevance of the Convention is limited to the creation of a legitimate expectation that the best interests of a child will be taken into account in an appropriate case. See Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. Although initially describing the "best interests" ground as the "real issue" in the case, counsel for the appellant came to accept that an obligation to take these interests into account could only arise out of a legitimate expectation created by the Direction and the Convention. The relevant consideration ground of appeal must fail.

Legitimate expectation

58 The Notice of Appeal repeated the contention put to the primary judge that the appellant had been denied natural justice in that the Minister relied upon the Issues Paper without first according him an opportunity to comment on it. In view of the Chief Magistrate’s conclusion that the statement of reasons constituted the Minister’s reasons, it was not necessary for her to consider the natural justice ground. However, her Honour did so, and rightly rejected it. What was said by Goldberg J in Sokourenko, an Issues Paper case, namely that the rules of procedural fairness do not require a decision maker, or a departmental officer preparing material for consideration by a decision maker, to disclose the reasoning process set out in preparatory material upon which the decision is to be made, is supported by many authorities. See, for example, Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 555 and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 108. In the memorable words of Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 (quoted by the Chief Magistrate):

"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity for criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of Judges would satisfy it and trial by jury would have to be abolished."

59 On the hearing of the appeal it was contended that there was a denial of natural justice in that the Notice of Intention to Cancel Visa indicated that the best interests of the children would be taken into account, and the legitimate expectation thus engendered had been disappointed because those interests had not been taken into account. This contention was not propounded below. We have recorded in [55] the submission that was there put. It was rejected by the primary judge, and despite the ground of appeal recorded at [57], it was not repeated on appeal. In order to succeed on an appeal the appellant must establish an error on the part of the primary judge. A judge commits no error in not dealing with a point that was not raised before her. Accordingly this "unpleaded" ground of appeal must be rejected. We would in any event have dismissed it. Although the argument, both written and oral, conflated the legitimate expectation argument with one based on a failure to take into account a relevant consideration, they are of course distinct. In order to sustain the former contention, the appellant must establish that he was denied the opportunity to put before the Minister material about the best interests of the children. He was afforded that opportunity, and presented a wealth of material thereon, which appears at pages 57 to 105 of the Court Book. It is impossible to sustain a legitimate expectation/natural justice contention. Although not abandoning the point, counsel realistically conceded that the natural justice flag, though still flying, was "at half mast" and "very shredded".

CONCLUSION

60 Neither ground of appeal having been sustained, the appeal must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson and Sundberg.

Associate:

Dated: 10 May 2005

Counsel for the Applicant:	PG Nash QC and N Karapanagiotidis
Solicitor for the Applicant:	Access Law
Counsel for the Respondent:	PRD Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 February 2005
Date of Judgment:	10 May 2005