FEDERAL COURT OF AUSTRALIA

Thanh Tra Lam v Minister for Immigration & Multicultural Affairs

[2006] FCAFC 184

MIGRATION – visa refused on character grounds – appeal relating to impact of the appellant’s deportation on his sister – interpretation of Ministerial Direction No 21 – whether a brother-sister relationship will ‘always’ be an ‘other relationship’ for the purposes of para 2.3(c) of Direction 21 – whether an exercise of power under Direction 21 requires the brother-sister relationship to be close – whether common law right to have child’s best interests taken into account as a primary consideration 

INTERNATIONAL LAW – treaties – United Nation Convention on Rights of Child 1989 – domestic application where ratified by Australia - application of Teoh principle - whether ratification by Australia gives rise to a legitimate expectation that the Tribunal will act in conformity with that treaty

Migration Act 1958 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Awa v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 328  

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80  

Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431

Browne v Minister for Immigration and Multicultural Affairs (1998) 27 AAR 353

Baldini v Minister for Immigration and Multicultural Affairs [2000] FCA 173;(2000) 115 A Crim R 307

Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433

Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1480

THANH TRA LAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ADMINISTRATIVE APPEALS TRIBUNAL

SAD 85 OF 2006

TAMBERLIN, NICHOLSON, TRACEY JJ

19 DECEMBER 2006

ADELAIDE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This appeal arises from a decision of a delegate of the Minister for Immigration and Multicultural Affairs to cancel the appellant’s resident return visa.  The practical effect of the decision is that the appellant faces deportation from Australia to the country of his birth, Vietnam.  An appeal was brought from the delegate’s decision to the Administrative Appeals Tribunal.  That appeal was dismissed.  The appellant then brought a further appeal to this Court on questions of law.  That appeal was dismissed by a single Judge.  This appeal is brought from the single Judge’s decision.

BACKGROUND

2                     The underlying facts are not in dispute.  The appellant was born on 17 September 1972 in Vietnam.  When he was born his father was serving as an officer in the South Vietnamese Army.  After the fall of the South Vietnamese government in 1975 the appellant’s father was ordered by the incoming communist authorities to undergo a period of ‘re-education’.  After some years of ‘re-education’ his father was required to live apart from his family for a further period.  From time to time the appellant was able to travel with his mother to visit his father.  Most of the time he lived with his mother but there was a period during which he lived with his father.  Two sisters were born during this period.  As a result the appellant experienced a most unsettled childhood.  In 1989 his father left Vietnam and, following a period in a refugee camp in Indonesia, he arrived in Australia in 1993.  In 1994 the appellant, his mother and two sisters, joined his father in Australia.  Not long after his arrival the appellant commenced to use marijuana and heroin and he started to sell heroin in order to support his own habit.  In 1995 he was convicted of possessing heroin for sale and was sentenced to five years imprisonment with a non parole period of one year.  Upon his release he was convicted of a series of less serious offences.  In 2001 he was again convicted of possessing heroin for sale.  This time he was sentenced to a period of seven years imprisonment with a non parole period of three years and six months.

3                     In about 2000 the appellant’s parents had a third daughter, Hao Lam.  She was born in Australia.  Issues relating to the impact or potential impact on her of the deportation of the appellant lie at the heart of this appeal.

LEGISLATION AND ADMINISTRATIVE INSTRUCTIONS

4                     The decision of the delegate to cancel the appellant’s visa was made under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).  That subsection confers a discretionary power on the Minister to cancel a visa if the Minister is not satisfied that the visa holder passes the ‘character test’.  There is no dispute that the appellant does not pass the test by reason of his criminal record: see s 501(6)(a) and 501(7)(c).  The Minister is empowered to give written directions to a delegate and to the Tribunal (to be followed when it is dealing with an appeal from a delegate) as to the matters which the decision-maker is required to take into account in exercising the discretion conferred by s 501(2):  see s 499(1).  The decision-maker is bound to comply with such a direction:  see s 499(2A).

5                     The Minister has issued such directions.  They are known as Direction No 21.  Relevantly, Direction 21 provides:

PART 2 – EXERCISING THE DISCRETION

2.1       If a non citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non citizen should be permitted to enter or remain in Australia.

Weight of Considerations

2.2       The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.24.  Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

PRIMARY CONSIDERATIONS

2.3       In making a decision whether to refuse or cancel a visa, there are three primary considerations;

(a)               the protection of the Australian community, and members of the community;

(b)               the expectations of the Australian community; and

(c)                in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

…

The best interests of the child

2.13     This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.  The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.

2.14     Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.

2.15     In general terms, the child’s best interests will be served if the child remains with its parents.  Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen include, but are not limited to:

(a)        any evidence that the non-citizen has abused or neglected the child in anyway, including physical, sexual and/or mental abuse or neglect;

(b)        any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizens conduct.

2.16     When considering the best interests of the child, decision-makers should have regard to the following:

(a)        the nature of the relationship between the child and the non-citizen;

(b)        the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect of forward developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c)        the age of the child;

(d)        whether the child is an Australian citizen or permanent resident;

(e)        the likely effect that any separation from the non-citizen would have on the child.

(f)        the impact of the non-citizen’s conduct on the child;

(g)        the time, if any, that the child has spent in Australia;

(h)        ….

(i)         …

(j)        …

OTHER CONSIDERATIONS

2.17     When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.  These other considerations may include:

(a)        the extent of disruption to the non-citizen’s family, business or other ties to the Australian community;

(b)        …

(c)        the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d)        family composition of the non-citizens family, both in Australia and overseas;

… (Emphasis added).

6                     The direction that decision-makers must give primary consideration, in cases involving a parental or other close relationship between a child and a visa holder, to the best interests of the child gives effect to certain provisions of the United Nations Convention on the Rights of the Child (‘the Convention’) to which Australia is a party.  Article 3(1) of the Convention provides:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration.’

Article 9 of the Convention requires that governmental authorities must ensure that a child shall not be separated from his or her parents against their will save where this is necessary in the best interests of the child.

7                     In making his decision the Minister’s delegate did not take into account the best interests of Hao Lam.  He noted that the appellant had ‘no children and therefore the Convention is not applicable in this case.’

THE TRIBUNAL’S DECISION

8                     The appellant challenged the delegate’s decision by means of an appeal to the Administrative Appeals Tribunal.  The appeal relied on medical and other evidence which had not been placed before the delegate.  The substance of this evidence will be referred to in more detail later in these reasons.  It was argued, on the basis of this material, that the discretion conferred by s 501(2) should be exercised in the appellant’s favour.  No criticism was made of the delegate for not having had regard to Hao Lam’s best interests.  Indeed, in his written submissions to the Tribunal, the appellant said that the ‘best interests of the child’ consideration was not relevant because he was ‘a single man and without children.’  The Minister’s written submissions to the Tribunal also contended that this consideration was not relevant on the appeal.

9                     Notwithstanding these submissions, the Tribunal did pay some attention to the interests of Hao Lam when determining the appeal.  The Tribunal, in its reasons, dealt with the various considerations identified in Direction 21 which had relevance in the circumstances of the appellant’s case.  Having identified the three primary considerations referred to in para 2.3 of the Direction the Tribunal said:

Third Primary Consideration – Best Interests of a Child or Children

36.       Whilst paragraphs 2.14 and 2.15 in this part of the Direction deal with the relationship between the non-citizen and that persons children, this consideration can also extend to other children under 18 years of age, because paragraph 2.3(c) refers to the best interests of the child or children in all cases involving ‘parental or other close relationships’ between the child or children and the person under consideration.  The only child under 18 years of age who might be relevant to this consideration is the applicant’s youngest sister, Hao Lam, who is six years old.

37.          Paragraph 2.16 requires decision-makers to have regard to various factors, and this paragraph does not contemplate that the non-citizen is the parent of the child or children concerned.  The considerations in paragraph 2.16 include the nature of the relationship between the child and the non-citizen and the hypothetical prospect of developing a better/stronger relationship in the future.  Because the applicant has been in prison since August 2000, and before that had not lived with his parents for some years, Hao has had virtually no opportunity to get to know the applicant.  No doubt she has a close and loving relationship with her parents and two older (sic) sisters.  In this case, I attach very little weight to the hypothetical possibility that she may develop a better or stronger relationship with the applicant in the future.’

10                  The Tribunal then turned its attention to other considerations identified in para 2.17.  In dealing with the considerations mentioned in para 2.17(a) and (c), which raised for assessment the impact of visa cancellation on a non-citizen’s immediate family, the Tribunal took into account the evidence which had been called before the Tribunal but had not been available to the delegate.  This evidence included:

·                    A report from a psychologist who had examined the appellant’s parents.  He found that both parents suffered from psychiatric conditions which would be exacerbated in the event that the appellant were to be deported.  He expressed the opinion that ‘the deportation would be tragic for them.’

·                    A statement from one of the appellant’s adult sisters in which she said that she would be devastated were her brother to be deported.  She also said that she harboured concerns about the effect of any deportation on her parents.

11                  The Tribunal concluded that the cancellation of the appellant’s visa would cause ‘significant disruption and hardship’ to his immediate family members.  This matter was treated as a consideration tending against cancellation of the visa.  Having then weighed considerations supportive of the delegate’s decision the Tribunal determined that:

‘… the first two primary considerations are strongly against the exercise of my discretion not to cancel the visa.  Whilst I think that the ‘other considerations’ would on the whole point to an exercise of discretion in favour of not cancelling the visa, these considerations are not of sufficient weight to displace the adverse conclusion resulting from my evaluation of the first two primary considerations.’

The decision under review was affirmed. 

THE APPEAL FROM THE TRIBUNAL

12                  The appellant lodged an appeal in this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).  The questions of law identified on the appeal were:

‘2.1      Whether the Tribunal, in exercising its power pursuant to s 501 of the Act in relation to a particular visa-holder, is bound:

(a)               by reason of the proper construction of paragraphs 2.13 to 2.16 of Ministerial Direction No 21 made pursuant to s 499 of the Act;

(b)               or otherwise,

to take into account the best interests of the child who is not the issue of the visa-holder, but whom may be affected by the decision?

2.2              Whether:

(a)               on the proper construction of paragraph 2.13-2.16 of Ministerial Direction No 21 made pursuant to s 499 of the Act; or

(b)               otherwise,

the best interests of the child require the Tribunal to take the effect that the visa-holder’s removal may have on the child’s carers into account in the exercise of its power pursuant to s 501 of the Act?’

13                  The grounds of appeal alleged jurisdictional error on the part of the Tribunal in that it had misconstrued paras 2.13-2.16 of the Direction leading it to ask the wrong question in relation to the best interests of the child and/or ignoring a relevant consideration.  It was contended that the Tribunal had failed to take into account the effect that the appellant’s deportation would have on his parents ‘and the consequential effect that would have on their relationship with his sister Hao Lam.’

THE DECISION OF THE TRIAL JUDGE

14                  The Trial Judge noted that the contentions advanced by the appellant in argument before him were ‘at odds with the way in which [he had] asked the [Tribunal] to approach the matter.’  His Honour referred to the evidence which was before the Tribunal concerning the impact on the appellant’s family of his deportation and observed that, whilst this evidence suggested that deportation would have a detrimental impact on the health and the relationship of the appellant’s parents, ‘there was no evidence that this would have any effect on their parenting of Hao Lam.’  He also noted that the Tribunal had not been asked to draw any such inference from the evidence before it.  His Honour then dealt with the construction argument which was at the forefront of the appellant’s case:

‘[57] … Ministerial Direction No 21 directs the decision-maker’s attention to a ‘close relationship between a child and the person under consideration’.  It is not possible, in my view, to construe a ‘close relationship’ as extending to an indirect relationship between a child and the person under consideration that may exist through third parties, such as their parents.  I accept the [Minister’s] submission that paragraph 2.3(c) of the Ministerial Direction No 21 does not permit a construction that contemplates that an indirect effect on a child by reason of distress caused to parents is a matter which the decision-maker ought to consider in determining whether to cancel a visa.

[58]  Putting the applicant’s submissions at their highest, the applicant’s removal from Australia, consequent upon the cancellation of his visa pursuant to s 501 of the Act, will affect the relationship between the applicant’s parents and the applicant.  This is not a primary consideration in Ministerial Direction No 21.  Again, putting the applicant’s contentions at their highest, his removal from Australia, consequent upon the cancellation of his visa pursuant to s 501 of the Act, will affect the relationship between his parents and his youngest sister because of their reduced capacity to parent their daughter.  The relationship between the applicant’s parents and the applicant’s sister is not one of the relationships referred to in Ministerial Direction No 21.

[59]  The relationship which needs to be examined for the purpose of determining whether the cancellation of the visa might affect the best interests of the child must be the relationship between the child and the person under consideration.

[60]  In this case, there is a relationship of brother and sister.  As I have mentioned, however, there is no evidence that they have ever met each other.  There is no direct evidence that that relationship, if interrupted or ended by the applicant’s removal from Australia, would affect the best interests of the child.

[61]  In the circumstances of this case, where there was no evidence that the applicant had even met his youngest sister, it cannot be said that the Deputy President fell into error into not finding that a close relationship existed between the child and the person under consideration.’

15                  His Honour next dealt with a contention that the Tribunal had failed to identify Hao Lam’s interests.  Having set out paras [36] and [37] of the Tribunal’s reasons (extracted above at [9]) his Honour continued:

[64]  Although the Deputy President has not said so expressly, his reasons for rejecting the applicant’s case in relation to paragraph 2.3(c) of Ministerial Direction No 21 was to reject the foundation upon which the argument was built.  That is to say, he did not accept that there was any close relationship between the child and the applicant.  For the reasons I have already given, he was right to do so.

[65]  In those circumstances, the Deputy President did not need to address the child’s interests because, whatever those interests were and how ever they might be affected, this was not a case, as paragraph 2.3(c) requires, which involves a close relationship between a child and the person under consideration.’

16                  The learned Trial Judge went on to reject a number of subsidiary contentions advanced by the appellant (which were also advanced on this appeal).  They were that:

·                    The Tribunal had denied the appellant natural justice by not advising him that it proposed to act inconsistently with the requirements of the Convention and then afford him the opportunity of making submissions as to why it should act conformably with the Convention.

·                    The legitimate expectation, upon which the asserted entitlement to procedural fairness was founded, was not displaced by the terms of Ministerial Direction No 21.

·                    No attempt was made by the Tribunal to identify what Hao Lam’s relevant interests were.

17                  His Honour concluded that:

[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. (sic)  Therefore, the delegate and the AAT were under an obligation to have regard to the best interests of any of the children who are 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.

[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.’

the appellant’s contentions

18                  The appellant identified the issues arising in this appeal as follows:

‘First, whether the Tribunal was required to have regard to the best interests of the appellant’s sister, Hao Lam, (“the sister”) as a primary consideration in exercising the discretion under s 501 of the Act by reason of the terms of paragraph 2.3(c) of Ministerial Direction No 21?

Secondly, if not, whether the Appellant had a legitimate expectation that the Tribunal would have regard to the best interests of the sister in exercising the discretion under s 501?

Thirdly, if the answer to both the first and second issues is no, whether the Tribunal was required to have regard to the best interests of the sister was a primary consideration by reason of the common law?

Fourthly, if the answer to any of the first three issues is yes, whether the Tribunal made its decision without treating the best interests of the sister as a primary consideration?’

THE CONSTRUCTION POINT

19                  The appellant contended that a brother-sister relationship will always be an ‘other close relationship’ for the purposes of para 2.3(c) of Direction 21.  The delegate and the Tribunal were, therefore, bound to have regard to Hao Lam’s best interests when determining whether or not to cancel the appellant’s visa.  The appellant submitted that the Tribunal had made a finding that Hao Lam was in a close relationship with the appellant, that the Trial Judge was bound by this finding and that it was not open to him to find that the Tribunal had not accepted the existence of any such close relationship.  It was submitted that his Honour conflated the issues of the nature of the relationship and the impact on Hao Lam of the appellant’s deportation.  The appellant contended that he was able to pursue these submissions notwithstanding the concession made in the Tribunal that para 2.3(c) was not engaged in the circumstances of this case.

20                  In dealing with the principal contention raised by the appellant it is necessary, first, to determine whether, as a matter of construction, a brother-sister relationship could be one of the other close relationships comprehended by para 2.3(c).  If so, the factual question will arise, in each case in which an exercise of power under s 501(2) of the Act is in contemplation, as to whether the particular brother-sister relationship is close.

21                  The requirement that the best interests of children be taken into account where a close relationship existed between the child and a person whose visa was subject to cancellation appeared in a general Ministerial Direction (No 9) which was issued on 21 December 1998.  It was not identified as a primary consideration.  That Direction was superseded by Direction 17 which was issued on 16 June 1999.  This Direction elevated the best interests of a child to the status of a primary consideration in cases ‘involving a parental relationship between a child or children and the person under consideration’.  Some parts of Direction 17 were subject to criticism by Judges of this Court.  The cases in which this criticism occurred are collected in Awa v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 328 at 334-336.  This criticism led to the issuing of Direction 21 which replaced Direction 17.  Direction 21 has been in force since 23 August 2001.  Neither counsel was able to identify any decision of the Court or any relevant extrinsic material which would assist in the construction of para 2.3(c).  In particular no explanation could be found for the inclusion, removal and then reinstatement of the ‘other close relationship’ category in the various directions.  It can, however, be accepted that the requirement is one based on the terms of Article 3 of the Convention but it is only to apply where the prescribed relationship exists.

22                  A decision-maker who is exercising the discretionary power conferred by s 501(2) of the Act is only bound to treat the welfare of a potentially affected child as a primary consideration if there exists a ‘parental or other close relationship’ between the child and the visa holder.  If such a relationship exists the decision-maker is bound to treat the child’s best interests as a primary consideration when weighing the competing considerations which are to be taken into account in the decision-making process.  It will be for the decision-maker to determine, in each case, whether a parental relationship exists.  Similarly, it will be for the decision-maker to determine, as a matter of fact, whether a close relationship exists between the child and the visa holder.  We do not accept the appellant’s submission that a brother-sister relationship will always be a close relationship for these purposes.  It is not difficult to think of examples where no close relationship may exist between a brother and a sister.  They may never have met.  They may be living in different parts of the world.  They may rarely, if ever, communicate.  It is, however, implicit in what we have just said that there will be cases in which para 2.3(c) will be engaged because the decision-maker finds that there exists a close personal relationship between a brother and a sister.  If, as the appellant submits, the Trial Judge’s reasons are to be understood as holding that para 2.3(c) can never apply where the relationship involved is that of brother and sister, we do not agree.  However we do not think that His Honour so held.  In para [97] of his reasons, for example, he said that the reason that the delegate and the Tribunal were not required to treat Hao Lam’s best interests as a primary consideration was that ‘there was no close relationship between [Hao Lam] and the [appellant].’  Such a finding would not have been needed had His Honour considered that a brother-sister relationship could never be regarded as a close relationship for the purposes of para 2.3(c).  Furthermore we do not understand the Tribunal to have made any finding of fact which was inconsistent with His Honour’s observation about the lack of a close relationship between the appellant and Hao Lam.  The Tribunal went no further (in para [36] of its reasons) than to identify Hao Lam as a child who ‘might’ be in a close relationship with the appellant, but then went on (in para [37]) to find that no such relationship existed.

23                  although not invited to do so by the parties, the Tribunal did give consideration to the question of whether Direction 21 required that Hao Lam’s best interests should be treated as a primary consideration in making its decision.  A fair reading of the Tribunal’s reasons, extracted at [9] above, suggest that the Tribunal did turn its mind to the question of whether Hao Lam was in a close relationship with the appellant but found, as a matter of fact, that no such relationship existed.  This was because the appellant had not lived in the same household as Hao Lam and that, as a result, she ‘had virtually no opportunity to get to know the [appellant].’  This factual finding was plainly open given that, as was accepted in argument before the Trial Judge, there was no evidence before the Tribunal to suggest that the appellant had ever met Hao Lam.  It was not linked, in terms, to an express finding that no close relationship existed but it is clear enough that this was the opinion of the Tribunal.

24                  There was some debate during argument before us (but not, it would appear, before the Trial Judge) as to the legal effect of the appellant’s concession in the Tribunal, that para 2.3(c) had no application in the circumstances of the present case.  As we have already noted, the Tribunal did not simply accept and act on the concession.  It determined itself that para 2.3(c) did not operate to require it to treat Hao Lam’s best interests as a primary consideration because she was not a person to whom the provision applied.

25                  It was also contended that the Tribunal failed to consider the possibility that the appellant’s deportation might, indirectly, prejudice Hao Lam.  It was argued that there was evidence that the appellant’s parents would suffer serious psychological harm were the appellant to be returned to Vietnam.  It should, so the argument ran, readily be inferred that this psychological damage would have a detrimental impact on the parents’ marriage and on their capacity to care for Hao Lam.

26                  No argument to this effect was advanced before the Tribunal.  Nor was any evidence called which dealt specifically with the point.  In the absence of such evidence and submissions, it is difficult to see how error can now be attributed to the Tribunal for failing to consider and rule on the question.

27                  The appellant confronts a further problem.  It is, as the learned Trial Judge held, not possible, on a proper construction of Clause 2.3(c), to accept that a relationship between persons, one of whom is not the visa holder, is one to which the paragraph applies.  That is not to say that the indirect effect of a deportation on a visa-holder’s sibling is not a potentially relevant consideration when the discretionary power conferred by s 501(2) is being considered.  What it does mean, however, is that such a consideration is not elevated to the status of a primary consideration by Direction 21.

THE TEOH POINT

28                  The appellant’s second ground of appeal is founded on the principle, recognised by the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, that the ratification by Australia of a convention gives rise to a legitimate expectation that a decision-maker will act in conformity with the obligations imposed by the treaty.  If a decision-maker proposes to apply domestic law inconsistently with the treaty obligation, where that obligation has not been incorporated in domestic law, the decision-maker must, as a result, afford an interested party the opportunity to advance an argument that the treaty obligation should be observed in the making of the particular decision.  The appellant contends that article 3(1) of the Convention  required that Hao Lam’s interests should have been a primary consideration when any discretionary power was exercised under s 501(2) of the Act.

29                  In Teoh, Mason CJ and Deane J formulated the principle (at 291-2) thus:

‘…if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.  So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.’

See also at 302 and 305.  This obligation was, however, subject to an important qualification.  Their Honours held (at 291) that ratification, by Australia, of an international treaty, gave rise to an expectation that its governments would act consistently with the treaty ‘absent statutory or executive indicators to the contrary’.  A legitimate expectation will not, then, arise if the executive has indicated publicly that it intends to act in a manner which does not conform to a treaty obligation, either generally or in specific circumstances.  Teoh at 291, 302.

30                  Some attention has been given to the question of what ‘statutory or executive indications to the contrary’ will be effective to displace the legitimate expectation which was identified in Teoh.  It has been doubted that ministerial statements or legislation which say no more than that ‘the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis of challenging any administrative decision’ would operate to prevent such an expectation arising:  see Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at 101-5.  There has also been a suggestion that, to be effective, any indication to the contrary must have been given at or about the time that Australia ratified the relevant treaty:  see Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431 at 437-38.  We accept that broad general statements designed to prevent any treaty obligation ever giving rise to a legitimate expectation of the kind recognised in Teoh may not be effective.  Greater specificity will, ordinarily, be needed.  The legislature or the executive will need to direct attention to the manner in which decision-makers are required to undertake the task of making particular decisions:  Tien at 103, Browne v Minister for Immigration and Ethnic Affairs (1998) 27 AAR 353 at 369.  We do not, however, consider that it is always going to be necessary for legislative or executive action to negative a legitimate expectation to be taken contemporaneously with the ratification of a treaty.  There may, for example, be cases in which it is not appreciated at the time of ratification that a particular provision will operate in a particular way.  It must always be open to the executive or the legislature, at any time during the life of a treaty to which Australia is a party, to give the contrary indication contemplated in Teoh.  Section 91R of the Act supplies an example of one of the many legislative provisions, made well after Australia ratified the UN Convention relating to the Status of Refugees, which clarifies and modifies this country’s obligations under that treaty.

31                  In Baldini v Minister for Immigration and Multicultural Affairs [2000] FCA 173 ; (2000) 115 A Crim R 307 Drummond J held that Ministerial Direction 9, one of the predecessors of Direction 21, contained ‘such an elaborate regime’ that no scope existed for holding that a legitimate expectation could exist that the best interests of children, would be a primary consideration in the decision-making process.  Under Direction 9 there was no obligation to treat the best interests of any child as a primary consideration.  A decision-maker was required to take into account the best interests of the children of a visa-holder or others who were in a close personal relationship with the visa holder.  The Convention only applied to children under 18 years of age.  His Honour held that the Tribunal was not bound to treat the interests of two children of the visa holder one of whom was a minor and the other an adult as a primary consideration.  Both had been conceived as the result of ‘one night stands’ and the appellant had had no subsequent association with either mother or child.  In these circumstances no parental or other close relationship existed between the visa holder and the two children.

32                  Direction 21 provides, in our opinion, a clear executive indication that a decision-maker, exercising the discretion conferred by s 501(2) of the Act, is only obliged to treat, as a primary consideration, the best interests of children comprehended by the terms of para 2.3(c), namely, those enjoying a parental or other close relationship with the visa holder.  Hao Lam was not such a person.  The learned Trial Judge was correct to so hold. 

33                  The obligation imposed on decision-makers by Teoh is a limited one.  It is to advise the potentially affected person of any intention to act inconsistently with treaty obligations and then to provide an opportunity to that person to advance argument to dissuade the decision-maker from taking that course.  Even if, contrary to the opinion which we have formed, a legitimate expectation arose, these obligations were satisfied in this case.  The appellant submitted to the Tribunal that it was not necessary for the Tribunal to have regard to the interests of any child when making its decision.  The occasion did not, therefore, arise for the Tribunal to consider whether the Convention applied and whether it proposed to act inconsistently with it.  The appellant was accorded an oral hearing at which he was legally represented and at which he could, had he been so minded, have advanced evidence and argument as to the impact which his deportation would have had on Hao Lam.  He did not do so.  There was, therefore, in any event, no denial of procedural fairness.

THE COMMON LAW POINT

34                  The appellant further contends that, even if the Tribunal was not otherwise obliged to treat Hao Lam’s interests as a primary consideration, there existed a common law requirement to do so.  This submission was advanced on the basis of certain observations, made by Gaudron J, in Teoh.  Her Honour said (at 304):

‘In my view, it is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child’s individual welfare, particularly decisions which effect children as dramatically and as fundamentally as those involved in this case.’

Her Honour’s tentative observations have been considered in a number of cases in this Court: see, for example, Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 at 459, 461-462 and Chai v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1480 at [49] to [65].  In Teoh and in the cases heard in this Court the appellants’ arguments were founded on the alleged failure of a decision-maker to take account of the direct effect on children of the deportation of a parent.  On the assumption that a common law obligation of the kind posited by Gaudron J existed, it was argued that it was a relevant consideration which the decision-makers were bound to take into account in exercising the statutory discretion conferred by s 501(2) of the Act.  A failure to do so would, it was contended, constitute jurisdictional error.  We were not referred to any case in which a decision of a delegate of the Minister or the Tribunal had been set aside on this ground.  The point did not arise in the cases in this Court, referred to above, because the Court was persuaded, in each of them, that consideration had been given by the decision-maker to the interests of the children concerned.

35                  As the law presently stands there is no authority for the existence of an obligation of the kind which her Honour considered might arguably form part of the common law.  It is sufficient, for present purposes, to say that, even if such an obligation did exist, it would not apply in a case such as the present where the relevant relationship is not that of parent and child and the alleged prejudicial effect of deportation on the child is not direct but derivative through her parents.  In any case in which the issue was clearly raised the person whose deportation was under consideration might also have difficulty in establishing that the common law obligation was a relevant consideration which a decision-maker was bound to take into account, given the comprehensive (and, perhaps, exhaustive) nature of Direction 21.

36                  The views which we have formed in respect of the first three issues identified by the appellant, mean that the fourth issue does not arise.

DISPOSITION

37                  In our opinion the learned Trial Judge was correct to dismiss the appellant’s application.

38                  This appeal should be dismissed with costs.

Associate:

Dated:         19 December 2006