Case: Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Outcome: considered
The applicant submits that since he met the definition of a long term resident the recommendations of the Ombudsman were relevant. The applicant submits that he held a legitimate expectation that the Tribunal would consider the Ombudsman's report. The applicant relies upon the decision in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273. 21 The applicant submits that the Tribunal ignored considerations contained within the Ombudsman's report. Specifically, the applicant submits that the Tribunal did not consider the compassionate expectations of the Australian community and that the Tribunal did not assess as a 'primary consideration' the hardship likely to be experienced by the visa holder including the implications of any serious medical condition suffered by the visa holder. 28 Secondly, the applicant relies upon the High Court's decision in Teoh in submitting that he held a legitimate expectation that the Minister, having been aware that the applicant had been in Australia for 25 years and had arrived as a child, would take into account the Ombudsman's report. 29 In Teoh the High Court determined that a delegate of the Minister had failed to give consideration to the effect of deportation upon a family, being a matter to be taken into account under the United Nations Convention on the Rights of the Child ('the Convention'). The Convention had been ratified by Australia and the Court held that the respondent had a legitimate expectation that such matter would be considered. 30 At 291 Mason CJ and Deane J rejected the submission that a convention ratified by Australia but not incorporated into Australian law could never give rise to a legitimate expectation, stating: ... ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. 31 The Court observes that the recognised sources of legitimate expectations have generally been restricted to material emanating from or adopted by Parliament: see for example Teoh (legitimate expectation arising from the Commonwealth Executive's ratification of an international treaty); Renton v Bradbury &amp; Anor [2001] QSC 167 (legitimate expectation arising from rules or regulations made in the exercise of a statutory power); Century Metals and Mining NL v Yeomans and Another [1989] FCA 273 ; (1989) 40 FCR 564 (legitimate expectation arising from a public promise made by a Minister); Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J (legitimate expectation arising from a policy statement made by a Minister). 32 The Ombudsman's report has no regulatory status, nor is it a document which has been adopted by Parliament. Accordingly it is not a document which has been the subject of any approval by Parliament, unlike the Convention considered in Teoh . Whilst the applicant claims that the Ombudsman's report was tabled in Parliament 'on or around' 9 February 2006 and was 'publicly accepted over two years ago' , there is no evidence before the Court that such report was tabled or that, even if such report had been tabled, Parliament has taken any action in regard to it. 33 In light of the above authority the Court finds that the Ombudsman's report could not give rise to a legitimate expectation that the recommendations contained therein would be considered by the Tribunal.