Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 (15 February 2008)

Migration Act 1958 (Cth)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1981) 162 CLR 24 cited
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited
Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 cited

DANH HUNG VU v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 964 of 2007

TAMBERLIN, NORTH AND MANSFIELD JJ
15 FEBRUARY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 964 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DANH HUNG VU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
JUDGES:	TAMBERLIN, NORTH AND MANSFIELD JJ
DATE OF ORDER:	15 FEBRUARY 2008
WHERE MADE:	MELBOURNE

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	VID 964 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DANH HUNG VU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
JUDGES:	TAMBERLIN, NORTH AND MANSFIELD JJ
DATE:	15 FEBRUARY 2008
PLACE:	MELBOURNE

1 The Court in this matter has considered the papers that have been put before it, including the detailed written submissions by both parties, and everything that has been advanced or put forward by Mr Vu on the hearing. Mr Vu has had an unfortunate life. The information given to the Minister for Immigration and Citizenship ("the Minister") from time to time and on appeal indicates that he fled Vietnam in 1987. He left his wife and young child behind and has had no contact with them. He was one of only two survivors when attacked by pirates in a vessel from which he escaped. He spent eight years in a refugee camp in Malaysia, before coming to Australia in February 1995 on a refugee visa.

2 Mr Vu later received a five-year resident return visa. Just after he came to Australia his father died. His wife divorced him. He lost contact with his mother and sister who had apparently gone to Canada. In September 1996, he was convicted of two charges of heroin trafficking, and on charges of handling and receiving stolen goods, and on a charge of unlawful possession of drugs. He was sentenced to two years’ imprisonment, and he says that these events led to depression, following the death of his father and the divorce. In 2001, he suffered severe injuries in a motor accident and was not able to work.

3 In 2004, his mother, he believes, died in a tsunami in Thailand. He lost contact with his sister and during 2005 he was in hospital for serious illnesses. In January 2006, he was seriously injured in a stabbing assault and spent a long time in hospital because of life-threatening injuries. Since that time he has suffered from periodic crisis and depression. He is now 55 and in poor health, with a severe heroin addiction for which he has received treatment using methadone for some years. He also has to take painkillers and medication for depression.

4 After the criminal convictions on 3 September 1996, he was told he was vulnerable to his visa being cancelled if there were any further offences, with the consequence that he would be deported from Australia. Despite that warning, he has been convicted of a series of offences for trafficking and possessing heroin and other conduct between July 2000 and September 2004. On 17 May 2006, the Minister served him with a notice of intention to consider cancelling his visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). He had an opportunity to respond by 9 June 2006, and on 7 June 2006, his solicitor responded to the notice and asked for further time to give information in support of his submission.

5 On 29 June 2006, Mr Vu’s solicitor gave that information to the Minister. In light of that information, on 23 August 2006, the Minister decided to cancel the visa. Reasons for that decision were provided on 29 August 2006, and it appears Mr Vu was notified of the decision on 23 October 2006. Mr Vu subsequently applied to the Court for an order to show cause why the decision of the Minister should not be set aside.

6 Although Mr Vu accepted that he did not pass the character test in s 501(6) of the Act, he challenged the exercise of the Minister’s discretion to cancel his visa on two grounds. The first was that the Minister failed to give him natural justice in the process of deciding to cancel his visa because he had insufficient time to make submissions in response to the notice of 17 May 2006: cf Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. The second ground was that the Minister failed to take into account a relevant consideration, namely, that the cancellation of the visa and his removal would deny him methadone treatment for his drug addiction. The application was dismissed by Finkelstein J on 5 October 2007. This is an appeal from that decision.

7 Section 501(2) of the Act allows the Minister to cancel a visa if the Minister is not satisfied that the holder passes the character test. For the purpose of that section, a person does not pass the character test if the person has a "substantial criminal record". According to s 501(7)(c) and (d) of the Act, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more, or has been sentenced to two or more terms of imprisonment where the total of those terms is two years or more. Clearly, Mr Vu does not meet these requirements and the Minister was entitled to be satisfied that he did not pass the character test.

8 The second stage in the decision-making process under s 501(2) involves the exercise of a discretion whether or not to cancel the visa. The Minister had given a Direction pursuant to s 499 of the Act concerning visa refusal and cancellation of a visa. Although that Direction was not binding on the Minister, she followed its requirements in any event.

9 This Court does not have the power or function, either at first instance or on appeal, to substitute a decision on the merits of the case for that of the Minister. Its role is to determine whether the Minister committed jurisdictional error in the process of making the cancellation decision: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. That was clearly recognised by Mr Vu’s counsel at the first hearing, but understandably was not a focus of Mr Vu’s submission on the appeal.

10 The only ground of appeal in the notice of appeal raises hardship considerations, which were matters that may have been pertinent to the exercise of the Minister’s discretion. Mr Vu says he has no family in Vietnam and that there is no system there to manage his injuries. Secondly, he says that there is no methadone program there to meet his specific medical needs. Finally, he says he will face extreme hardship and would not survive if he were returned to Vietnam. Those are not matters which, even if one accepted them, demonstrate jurisdictional error on the part of the Minister. The important question is whether the Minister was obliged to consider them, and whether she did so.

11 On the appeal, Mr Vu appeared in person and addressed the Court through an interpreter, as well as making a written submission. In essence, he repeated elements of his personal history and claimed it would be very hard for him to return to Vietnam because the facilities to treat his addiction, and indeed his general health condition, were not as good as in Melbourne. He said that he faced a very bleak future in Vietnam because he would be unable to pay for medicine and for medical care, and because he had no relatives there with whom he could live and who would support him. To quote his own words, he said that if returned to Vietnam, he would be left to "die like a dog".

12 The difficulty in his appeal is that neither the notice nor the submissions identify any error in the judgment at first instance, or in the process undertaken by the Minister in making the decision to cancel the visa. Although no submissions on jurisdictional error were made by Mr Vu, if we assume that the same two matters were argued on his behalf on the appeal as were argued at first instance, we agree with the approach of the judge at first instance in both respects. Although the Minister might have been criticised if Mr Vu had been given only 23 days to make submissions as to why his visa should not be cancelled, that did not transpire to be the case. Mr Vu made his submissions within 23 days, and then he was allowed a further time in which to complete the submission. All additional information submitted was considered by the Minister. He was therefore accorded procedural fairness.

13 The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the Minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the Minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the Minister, would show jurisdictional error in her decision. The Minister clearly addressed both the issue of hardship generally and each of the topics to which the Direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the Minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1981) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.

14 In any event, making the same assumption as his Honour at first instance, we agree with his reasons for that conclusion. That is because the submissions made to the Minister on behalf of Mr Vu by his lawyer were considered by the Minister. They are referred to in the minute submitted to the Minister referring to the material upon which the decision to cancel the visa might be made. In particular, the minute referred to the submissions made on behalf of Mr Vu, including the claims that he would have difficulty getting services in Vietnam and concerns about available drug addiction treatment programs. The minute before the Minister specifically records the information provided on behalf of Mr Vu, through a medical report, that Mr Vu would be deprived of medical treatment he requires if returned to Vietnam, and would be unable to find employment because of his medical conditions. It quotes from a medical report explaining the potential consequences to Mr Vu if the methadone program he is under in Melbourne were to cease.

15 The reasons of the Minister indicate that the hardship to Mr Vu was taken into account when exercising her discretion. She records having accepted that returning Mr Vu to Vietnam might cause him hardship because of health problems, including that the standard of medical care may be lower than in Australia. However, the Minister concluded that he will have access to medical treatment and drug rehabilitation. There was material before the Minister on which she could form those views, and, although in his oral submissions Mr Vu disagreed strongly with these conclusions, it is not the Court’s role on this appeal to re-examine the facts.

16 Given the material before the Minister and her reasons, it is not possible to say that she was not aware that treatment facilities for addiction in Vietnam for heroin were different from and less sophisticated than in Australia, and that methadone treatment may not be available to him in Vietnam. Nor is it possible to conclude that she did not take these things into account. Nor is it possible to say that she was not aware and did not consider the other personal difficulties which Mr Vu would have if he had his visa cancelled and had to return to Vietnam.

17 The only other matter not raised at first instance, but raised in the notice of appeal, is the hardship arising from Mr Vu now having no family in Vietnam. The Minister clearly took that into account and, having done so, did not ultimately produce a view favourable to Mr Vu on the exercise of her discretion. Mr Vu’s submissions disputing the Minister’s conclusions about the availability and standard of medical treatment in Vietnam do not make out reviewable error on her part. There is no matter indicating jurisdictional error on the Minister’s part or on the part of the judge at first instance. Accordingly, we agree with his Honour’s reasons below, and this appeal must therefore be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 964 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DANH HUNG VU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
JUDGES:	TAMBERLIN, NORTH AND MANSFIELD JJ
DATE:	15 FEBRUARY 2008
PLACE:	MELBOURNE

18 I agree with the order proposed by the presiding judge for the reasons given by him. I would only wish to emphasise one aspect. Mr Vu has outlined the circumstances of his life both in writing and orally to the Court. That history cannot fail to move the Court. There are many experiences of tragedy and hardship which necessarily evoke sympathy. It is difficult indeed to understand how human beings can endure the type of difficulties which Mr Vu has faced.

19 The judgment of the Court should not be taken to diminish in any way the tragedy or hardship of Mr Vu’s life. However, as the presiding judge has explained, the role of the Court is limited. It is required to identify any errors in the judgment of the primary judge. The power to make a decision on the merits is vested in the Minister and the identification of error in the original decision is a very technical legal issue. Whilst Mr Vu has not demonstrated that such legal error exists and, consequently, the Court cannot overturn the decision of the Minister, the judgment of this Court does not in any way rule upon the hardship of his life.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 964 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DANH HUNG VU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
JUDGES:	TAMBERLIN, NORTH AND MANSFIELD JJ
DATE:	15 FEBRUARY 2008
PLACE:	MELBOURNE

20 I agree with the reasons for judgment of the presiding judge and the order he proposes.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

The appellant was self-represented

Counsel for the Respondent:	Ms S. Burchell

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	15 February 2008

Date of Judgment:	15 February 2008

Federal Court of Australia - Full Court

Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 (15 February 2008)