Minister of State for Immigration and Ethnic Affairs v Teoh

Ah Hin Teoh, a Malaysian citizen, came to Australia in May 1988 and was granted a temporary entry permit. In July 1988, Teoh married Jean Lim, an Australian citizen and the de facto spouse of Teoh's deceased brother. Mrs Teoh had four children, one from her first marriage and three from the de facto relationship. Subsequently, Mr and Mrs Teoh had three children together. In October 1988, Teoh was granted a further temporary entry permit that enabled him to remain in Australia until February 1989. Prior to the expiry of the permit, Teoh applied for a grant of resident status. In November 1990, whilst this application was being processed, Mr Teoh was convicted on charges of heroin importation and possession.

In January 1991, Teoh was notified pursuant to the Migration Act 1958 that his application for resident status had been refused on the ground that he could not meet the good character requirement as he had a criminal record. In February 1991, Teoh applied for a review of the decision, providing documentation that included a testimonial from Teoh's mother-in-law who stated that Teoh was the only person who could keep the family together.

The Immigration Review Panel rejected the review in July 1991, highlighting the seriousness of Teoh's criminal conviction. This decision was accepted by the Immigration Minister, and in February 1992 an order was made that Teoh be deported. Teoh sought a review of both the acceptance of the recommendation and the decision to deport.

In September 1993 in the Federal Court, French J dismissed the application, finding that the acceptance of the Panel's recommendation and the ordering of deportation had not been an improper exercise of power, a denial of natural justice, nor did it involve the consideration of irrelevant factors by the decision-makers.[2]

On appeal, the full bench of the Federal Court (Black CJ, Lee and Carr JJ) found that the decision-maker's power had been improperly exercised because it had failed to make appropriate investigations into the hardship to Teoh's wife and her children were Teoh refused resident status. The full court ordered a stay of the deportation order until the decision had been reconsidered in light of the court's finding.[3] The Immigration Minister appealed against the decision to the High Court of Australia.

The majority (Mason CJ, Deane, Toohey and Gaudron JJ) agreed with the Federal Court decision that there had been a breach of natural justice, as the Immigration department had failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to the Convention on the Rights of the Child, which provided that in any administrative decision concerning a child, the child's best interests must be a primary consideration.

The Government acted in response to the outcome in Teoh's case by taking up the High Court's statement that a legitimate expectation would not arise where there is either an executive or statutory indication to the contrary. The Minister for Foreign Affairs, Mr Downer, and the then Attorney-General, Mr Williams, issued a joint statement stating that the act of entering into a treaty does not give rise to legitimate expectations in administrative law. The statement replaced a statement made by the then Minister for Foreign Affairs and the then Attorney-General in 1995. The statement foreshadowed the introduction of legislation to address the issue. Legislation was introduced in 1997 and again in 1999. It lapsed on both occasions when Parliament was dissolved for the holding of elections.[4]

• Australian administrative law

• Robin Creyke et al., Control Of Government Action: Text, Cases And Commentary (Sydney: LexisNexis Butterworths, 2005).

• Roberts, S. "Minister Of State For Immigration And Ethnic Affairs V Ah Hin Teoh: The High Court Decision And The Government's Reaction To It". (1995) 2(1) Australian Journal of Human Rights 135.