Re Minister for Immigration and Multicultural Affairs;ex parte Lam

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow JJ,Hayne J,Callinan J
• Judgment Date: 12 February 2003
• Neutral Citation: 2003-0212 HCA A,[2003] HCA 6
• Court: High Court
• Docket Number: B33/2001
• Date: 12 February 2003

[2003] HCA 6

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ

B33/2001

Re Minister for Immigration and Multicultural Affairs

Respondent

and

Ex Parte Hieu Trung Lam

Applicant/Prosecutor

Representation:

B W Walker SC for the applicant/prosecutor (instructed by Boe Callaghan)

S J Gageler SC with S J Lee for the respondent (instructed by Blake Dawson Waldron)

Constitution, s 75(v).

Judiciary Act 1903 (Cth), s 32.

Migration Act 1958 (Cth), ss 499, 501(2), (5), (6), (7).

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam

Administrative Law — Application for certiorari and prohibition — Procedural fairness — Cancellation of applicant's visa for failure to pass character test under s 501(6) of Migration Act 1958 (Cth) — Decision maker informed applicant that it would seek information from third party but then did not do so — Whether applicant denied procedural fairness — Legitimate expectation.

Words and phrases — ‘legitimate expectation’.

ORDER

Application dismissed with costs.

1 Gleeson CJ. The applicant, who was born in 1970 in the Republic of Vietnam, arrived in Australia as a refugee at the age of 13. He was granted a Transitional (Permanent) visa. He later committed a number of criminal offences, the most serious of which was trafficking in heroin, for which he was sentenced to imprisonment for eight years.

2 Section 501(2) of the Migration Act 1958 (Cth), in its form at the relevant time, empowered the respondent Minister to cancel a person's visa if the Minister reasonably suspected that the person did not pass the character test and the person did not satisfy the Minister that the person passed the character test. The character test was formulated in s 501(6). The applicant could not pass the test by reason of his criminal history. On 23 January 2001, the respondent made a decision to cancel the applicant's visa. As a result, the applicant became liable to deportation.

3 The applicant seeks orders of certiorari and prohibition to quash the decision to cancel his visa and to prevent the respondent from taking steps to deport him. The proceedings were commenced in this Court because the applicant was out of time to proceed in the Federal Court. The jurisdiction invoked is that conferred by s 75(v) of the Constitution and s 32 of the Judiciary Act 1903 (Cth). The grounds upon which the orders are sought are as follows:

‘1. The Respondent failed to accord procedural fairness/natural justice to the Applicant in that, after notifying the Applicant that contact was being sought with the carers of the Applicant's children to assess the possible effects upon them of the cancellation of the Applicant's visa, the Respondent made no attempt to contact the carers.

2. By reason of the failure of the Respondent to carry out [his] announced intentions, as specified in Ground 1, a relevant, primary consideration, namely the best interests of the Applicant's children, was not properly taken into account.’

The facts

4 The case for the applicant rests upon a very narrow factual basis.

5 The applicant is unmarried. However, he has two children who were both born in Australia, and are Australian citizens. They were born in 1989 and 1993 respectively. The applicant is estranged from the mother of the children. She has had no recent contact with the applicant, or the children, and has formed a relationship with another man. The children are living with relatives. The applicant has entered into a relationship with another woman, and is engaged to be married to her.

6 On 19 September 2000, Mr Holthouse, an officer of the Department of Immigration and Multicultural Affairs, wrote to the applicant saying that it had come to the attention of the Department that the applicant's visa may be liable to cancellation under s 501. The applicant was given details of the relevant legislation. The letter stated that, before the Minister considered whether to cancel the visa, the applicant was being provided with an opportunity to comment. The matters to be taken into account were then set out. They included ‘the best interests of any children with whom you have an involvement’.

7 On 30 October 2000, the applicant wrote to Mr Holthouse enclosing a lengthy submission for consideration. The submission was obviously prepared with skilled assistance. It covered a number of issues that are not presently relevant. It referred to the circumstances in which the applicant came to be involved in heroin trafficking. He was a gambler, and had incurred large gambling debts. In order to attempt to pay them, he had to perform services for his creditors. That involved distributing heroin. The submission implied that the debts had not been fully discharged; a matter bearing on the possibility of recidivism. Under the heading ‘Submissions as to the Children’, the applicant gave information about his two children and their current situation, and advanced arguments as to why their interests required that he should not be deported. He referred to his bond with the children. He said that they had no contact with people in Vietnam, that they were settled, that he planned to marry upon his release from prison, and that, if he were to be deported, the children, (who, by implication, would not accompany him to Vietnam), would have to be cared for by the State. The submission was accompanied by various reports and certificates concerning the applicant's custodial situation, his progress in prison, and the possibility of rehabilitation.

8 Annexed to the submission of 30 October 2000 was a letter from the applicant's fiancée, which dealt, among other things, with the position of the children. Also annexed was a letter described as a ‘[l]etter from the carers of the children.’ That letter was signed by Ms Huyen Cam Thi Tran. It was dated 17 October 2000. It gave details of the current circumstances of the children, and supported the information given, and arguments advanced, about the children by the applicant. In particular it addressed the issue of their welfare, and advocated that, in the long term, they be cared for by the applicant and his new fiancée. It provided Ms Tran's telephone number.

9 Mr Collins, an officer of the ‘Character Assessment Unit’ of the Department, wrote to the applicant on 7 November 2000. The letter included the following:

‘The United Nations Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the children shall be a primary consideration.

Would you therefore kindly provide the full name, address and telephone number of the children's carers. The Department wishes to contact them in order to assess your relationship with the children, and the possible effects on them of a decision to cancel your visa.

Would you please provide the full contact details of the mother of the children as well.’

10 The applicant replied, by letter dated 14 November 2000. He gave the names and dates of birth of his children. He identified Ms Tran as the carer, and gave her address and telephone number. As to the mother of the children, he said that he did not know where she was living, and had no contact with her.

11 It is possible that, when Mr Collins wrote his letter of 7 November, he had failed to notice that, annexed to the applicant's lengthy submission of 30 October, was the letter from Ms Tran, which gave information about the relationship of the applicant with the children and canvassed the possible effects on the children of a decision to cancel the applicant's visa. As was noted, the applicant's submission appears to have been prepared with skilled assistance, and those assisting the applicant evidently anticipated that the Department would seek to make an assessment of those issues. The possibility that Mr Collins might not have adverted to the annexure is supported by his request for the telephone number of ‘the carers’. The submission and annexure had referred to only one carer, and had provided her name and telephone number. However, it is neither possible nor necessary to make any finding about the state of mind of Mr Collins.

12 In the event, the Department did not take any further steps by way of contacting Ms Tran. The reason does not appear. It may simply be that the officers of the Department realised that, prior to 7 November 2000, Ms Tran had already contacted the Department, by writing the letter that was annexed to the applicant's submission of 30 October. They may have taken the view that everything they needed to know was set out in that letter, and that there was no point in any further communication. The letter of 7 November did not specify the form of contact that was in contemplation; if, indeed, any specific form of contact was then in contemplation.

13 On 7 November 2000, the applicant was interviewed by an officer of the Queensland Department of Corrective Services for the purpose of reporting to the Department of Immigration and Multicultural Affairs. A report, comprising some 13 pages, was prepared and submitted. The report included the following:

‘Mr Lam stated that all of his family, including his children, reside in Australia. Mr Lam stated that should he be deported, his children will remain in Australia so that they can look forward to a“good future”. He stated that he does not wish to return to Vietnam, and that he has no family support living there.

According to Mr Lam, he commenced a new relationship with Kim Trinh in January 1999. He stated that they recently became engaged, and that Ms Trinh shares a good relationship with both of his children.’

14 As to the applicant's criminal history, the report concluded that there was ‘a high risk of reoffending’. It is unnecessary to go into the reasons given for that conclusion, but it was relevant to the respondent's ultimate decision.

15 On 20 November 2000, a letter was...