Editors --- "Tien and Others v Minister for Immigration and Multicultural Affairs - Case Note" [1999] AdminRw 26; (1999) 51 Admin Review 54

---

Tien and Others v Minister for Immigration and Multicultural Affairs

Federal Court, Goldberg J, 3 December 1998

[1998] FCA 1552

Legitimate expectations—Ministerial Statement issued by the Minister for Foreign Affairs and the Attorney-General following Teoh

In this case, the first applicant, Mr Tien, had arrived in Australia on a long-stay visa. Subsequently, he had been issued with a business long-stay visa, with his de facto wife and four year old daughter named as approved dependants. After a trip overseas, Tien was detained at Melbourne airport upon re-entry to Australia by the Minister's delegate, and a number of forged documents were discovered in his possession. The delegate subsequently cancelled Tien's visa.

As Tien's wife and daughter (the other applicants) were named as dependants on his visa, their visas were also cancelled by virtue of the delegate's actions.

Tien appealed the decision of the delegate to the Federal Court. In addition to other grounds, Tien alleged that the delegate failed to have regard to the best interests of his child as a primary consideration in deciding to cancel the visa. In this respect, Tien relied on provisions of the Convention on the Rights of the Child ('Convention'), which had been ratified by Australia.

Justice Goldberg granted Tien's application. In addition to finding for Tien on the other grounds applied for, Justice Goldberg followed the High Court's decision in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; ((1995) 183 CLR 273), stating that Australia's ratification of the Convention had given rise to Tien having a legitimate expectation that the delegate would follow the terms of the Convention. The delegate's failure to give notice that he was going to make a decision inconsistent with Tien's legitimate expectation was held to be unlawful.

Justice Goldberg went on to say that the Ministerial Statement issued by the Minister for Foreign Affairs and the Attorney-General of 25 February 1997 did not constitute a clear expression by the Executive of a contrary indication to the legitimate expectation that the delegate would act in conformity with the Convention.