Case: Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: considered
The discretionary power, conferred on the Minister by s 501(1) of the Act, is unfettered in its terms. As Heydon and Crennan JJ (with whom Gleeson CJ agreed) said, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370 at 401 [128] , speaking of the similarly wide discretion conferred on the Minister by s 501(2): "Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in the context in the Act. As ministerial direction No 21 makes clear, the minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community." The protection and expectations of the Australian community are not, however, binding considerations when the Minister him or herself makes a decision under s 501. The same must be true of international treaty obligations. As McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 33 [101] ; " ...In the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error." 25 This passage cannot be understood as supporting an unqualified proposition that an error in construing and applying a policy or an unincorporated treaty, which the decision-maker is not bound to apply, will amount to jurisdictional error. This will only be so if the misconstruction is "serious" such that "what is applied is not the policy but something else ...". Moreover their Honours' reasoning assumes that the Tribunal was bound to give consideration to the ministerial policy. Whether or not that be right in respect to a ministerial policy, it is now clear that this is not the case where unincorporated international treaty obligations are concerned. This was accepted by French J in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875. His Honour said (at [59]) that: "There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration "in all cases concerning children". However the existence of that obligation of international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions. ... Such considerations do not thereby become mandatory. In the joint judgment in re Minister for Immigration and Multicultural Affairs; ex parte Lam ...McHugh and Gummow JJ referred to the "... established doctrine" that obligations under international treaties "... are not mandatory relevant considerations attracting judicial review for jurisdictional error." The best interests of the children do not, by virtue of Australia's commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law ... But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision makers." 37 In Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1, the applicant claimed to have been denied procedural fairness by the Minister when he made a decision to cancel his visa under s 501(2) of the Act. The applicant had been given a notice by the Department advising him that the Minister was proposing to consider cancellation of his visa. Various relevant matters were identified, including the best interests of any children with whom the applicant had an involvement. The applicant made detailed submissions including claims relating to the effect of his deportation on his Australian born children. It was apparent from those submissions that the children were being cared for by a particular person. After the submissions had been received an officer of the department sought information from the applicant such as the name, address and telephone number of the children's carers. It was said that the department wished to contact the carers in order to assess some of the applicant's claims. Although the applicant provided the requested particulars no contact was made with the person who was caring for the children. The Minister cancelled the visa. The applicant claimed to have been denied procedural fairness because he had a legitimate expectation that the carer would be contacted and her views taken into account and that expectation was not fulfilled. The High Court dismissed the application. Gleeson CJ said (at 13-14): "[36] The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment. [37] A common form of detriment suffered where a decision maker has failed to take a procedural step is loss of an opportunity to make representations. ... A particular example of such detriment is a case where the statement of intention has been relied upon and, acting in the faith of it, a person has refrained from putting material before a decision maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essential practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. [38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children." McHugh and Gummow JJ came to a similar conclusion. Their Honours said (at 34-35) that: "[105] But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision making process not the decision ... [106] The applicant by the statement in the letter to him of 7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act. It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice. Hayne J concluded (at 38-39) that: "[122] ...it is enough to say that even if the Department's letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the appellant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in anyway from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children. ..." 38 The applicant's case, insofar as it is founded on claims that he had a legitimate expectation which was not fulfilled and which occasioned practical unfairness relies on the passages just quoted from the judgment of Gleeson CJ in Lam . 39 The applicant contends that he had a legitimate expectation that the Minister would apply the tests identified in the initial submission "and that he would be heard in the event that it be proposed that relevant contents of the Assessment were amended or abandoned to his detriment." It is said that the practical unfairness arose because, when an allegedly different test was propounded in the reassessment and was referred to in the issues paper given to the Minister he was unaware of the change. He claims, that had he known of the change, "he could have made submissions urging against their adoption, and those might have found favour." 40 For reasons already given I do not consider that it is possible to discern, in the department's initial assessment and the reassessment, materially different formulations of the tests to be applied in determining Australia's obligation to him under the ICCPR and the CAT. Even if some significant differences did exist it does not follow that any practical unfairness was occasioned by the procedures which were adopted. It is to be noted that, in both assessments, the conclusion was reached that non-refoulment obligations did not arise. It is also to be noted that there is no evidence of any subjective expectation, harboured by the applicant (or his solicitor) at relevant times of the kind now alleged much less any evidence of reliance on it. As the applicant's solicitor frankly acknowledged, in her evidence, comprehensive submissions were made on the critically relevant issues. Nothing was omitted as a result of any expectation engendered by the Department or the Minister. The process adopted gave rise to no practical unfairness.