Case: Perez v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 450 ; (2002) 119 FCR 454
Outcome: distinguished
However, Mr Ower argued that that was the effect of two decisions of Allsop J; first, in Perez v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 450 ; (2002) 119 FCR 454 (' Perez '); and, secondly, in Navarrete v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1723 (' Navarrete '). 87 In Perez the applicant, who was a Cuban national, was ordered to be deported. The Minister refused to revoke the deportation order and refused to release the applicant from immigration detention. He applied under the Administrative Decisions (Judicial Review) Act and under s 39B of the Judiciary Act 1903 (Cth) for a review of those decisions. One of the grounds was that there had been a failure to take into account as a primary consideration Mr Perez' children's best interests and that 'there was a failure to tell Mr Perez that this failure had occurred, leading to a failure to accord him natural justice'. 88 It was put to Allsop J that there was an obligation on the Minister in order to accord procedural fairness to the applicant, that if he were proposing to make a decision adverse to the best interests of the children, who might be affected by the decision, to inform the applicant and to give the applicant an adequate opportunity of presenting a case against taking such a course. 95 His Honour said at [56]-[59]: '56 The Minister noted the applicant's comments in his letter. Also, Section C of the submission had set out relevant parts of the applicant's second letter. However, a number of decisions of this Court have explained the importance of identifying what the interests of the children are, see in particular Wan v The Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133, 140. Before one can take the interests of the children into account as a primary consideration, one needs to appreciate what those interests are. The submission referred to paragraph 2.16 of Direction 21. That was a good beginning. But there was no real application by the Minister to the circumstances, such as they were known, of these three young Australian citizens aged 8, 6 and 4. The Minister stated that she concluded that the applicant's removal from Australia leaving behind, as was anticipated, his three small children "would cause some hardship on the children". The "difficulties" that they would suffer were not identified. 57 As I said in Perez v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 450 ; (2002) 119 FCR 454 at 485-6: Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. 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. This is not a check list but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol save for visits or whether to release him on appropriate conditions if thought necessary. 58 Not only was there little, if any, elucidation in the reasons of the Minister of the interests of these three young Australians, there is an absence of expression of what so weighs against this primary consideration as to outweigh it: see Wan at [32] to [34] and see also Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [53] to [57]. 59 Further, there appears to have been taken into account as a contrary matter that the applicant's criminal history and incarceration (both expressed in the past tense) also "cause him and his family hardship" (expressed in the present tense). It is difficult to understand what this means given the inquiry is as to the effect in the future of expelling the applicant from this country. I do not propose to pursue this difficulty. Given that I am of the view that the content of the draft reasons was otherwise such as to lead to a denial of procedural fairness, it is unnecessary to base my decision on Teoh . It is sufficient to say that the paucity of the Minister's reasoning in respect of the interest of the children provides a strong foundation to say that the application of the views of the Full Court in Wan would lead to the decision being set aside also.' 96 In my opinion, this case also does not stand for the proposition advanced by counsel. Both cases stand for the proposition that, before addressing the question of the best interests of the children, it is necessary to determine what those interests are. I have already dealt with that in relation to an earlier contention. 97 In this case, the delegate and the AAT were obliged to consider the primary considerations of the children identified in Ministerial Direction No. 21. Therefore, the delegate and the AAT were under an obligation to have regard to the best interests of any of the children who were either in a parental or close relationship with the person under consideration. In my opinion, they were not obliged to identify the interests of the child Hao Lam or whether those interests would be affected by the cancellation of the applicant's visa and the consequential removal of the applicant from Australia because, in this case, there was no close relationship between the child and the applicant. 98 The applicant could not have had a legitimate expectation that either the delegate or the AAT would consider the best interests of any children other than the class identified in Ministerial Direction No. 21 itself. 99 In those circumstances, and for the reasons already given, the applicant cannot rely on Teoh's case to claim a lack of procedural fairness. 100 In my opinion, the application must be dismissed. The applicant must pay the first respondent's costs. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 28 April 2006 Counsel for the Applicant: Mr S Ower Solicitor for the Applicant: McDonald Steed McGrath Counsel for the First and Second Respondents: Ms K Bean Solicitor for the First and Second Respondent: Australian Government Solicitor Date of Hearing: 16 December 2005 Date of Judgment: 28 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/445.html