FEDERAL COURT OF AUSTRALIA

Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24

THE COURT ORDERS THAT:

1.    The appellant be granted leave to amend the notice of appeal by including a reference to “and KB” in grounds 1 and 2(d).

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK AND JAGOT JJ:

The Appeal

1    In this appeal the appellant contends that the primary judge erred by finding that the failure of the second respondent, the Administrative Appeals Tribunal (the AAT), to consider the interests of JB did not constitute jurisdictional error.

2    The appellant also sought leave during the hearing of the appeal to raise a new issue in the appeal by including an allegation that the AAT’s failure to consider the interests of KB, JB’s sister, also constituted jurisdictional error.

3    As the primary judge explained at [8] of the reasons for judgment in Tuitaalili v Minister for Immigration and Citizenship [2011] FCA 1224, by operation of s 476A of the Migration Act 1958 (Cth) (the Migration Act), the jurisdiction of this Court to review the AAT’s decision depends on a finding of jurisdictional error.

4    It is common ground in the appeal that the AAT did not consider the interests of JB or KB when deciding to affirm the decision under review, being the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel the appellant’s visa pursuant to s 501(2) of the Migration Act. The questions in the appeal (should leave be granted to deal with the issue of KB in addition to that of JB) are whether the AAT committed jurisdictional error by not considering the interests of JB or KB.

The Primary Judge’s Decision

5    The application before the primary judge raised grounds other than that dealing with the interests of JB. As those other grounds are not part of the appeal nothing need be said about them.

6    The primary judge dealt with the issue concerning the interests of JB at [51] – [63] of the reasons for judgment. Before doing so the primary judge identified relevant aspects of the statutory scheme which it is also convenient to consider here.

7    Under s 501(1) of the Migration Act the “Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. As the primary judge explained (at [14]), due to his criminal record, the appellant did not pass the character test. Accordingly, the Minister’s power to cancel the appellant’s visa was enlivened.

8    In exercising the power under s 501(1), the Minister (and, by s 499(2A), the Minister’s delegate and the AAT) were bound to comply with a direction in force under s 499(1) of the Migration Act. The relevant direction came into force in 15 June 2009 and is known as Direction 41. Insofar as relevant to the appeal, and as the primary judge explained at [15], para 9.1 provides that “decision-makers must take into account the primary considerations in every case” and the other considerations (defined in para 11) “should be taken into account where relevant”. The primary considerations are identified in para 10. They include, in para 10(1)(d), “relevant international obligations, including but not limited to…the best interests of the child, as described in the Convention on the Rights of the Child (CROC)”. As identified by the primary judge at [22], Direction 41 deals more specifically with this obligation in para 10.4. The primary judge said:

If there is a child in Australia who is potentially affected by a visa refusal or cancellation, paragraph 10.4 repeats the injunction in paragraph 10.1(1) that decision-makers are required to have regard to the best interests of the child in accordance with Australia’s obligations under the CROC. Paragraph 10.4.1(4) notes that under Australian law it is generally presumed that a child’s best interests will be served if the child remains with its parents but paragraph 10.4.1(1) confines the presumption to children under 18 at the time the decision to refuse or cancel the visa is expected to be made. The best interests of adult children may be considered with other considerations in paragraph 11: paragraph 10.4.1(2).

9    In other words, if a child is under the age of 18 at the time the decision is made then the best interests of the child is a primary consideration which must be taken into account in every case (cll 10.4(1) and 10.4.1(1)). If a child is over the age of 18, the best interests of the child is not a primary consideration but may be relevant and, if so, must be considered (cl 11(1)). Neither consideration is limited to the relationship between parent and child, although the focus of cl 10.4.1 arguably is more on parental type relationships than cl 11 which expressly refers to “the nature and extent of any relationships” (cl 11(3)(a)). The interests of a child may also be relevant under cl 11(1) as “other considerations”; the latter obligation being one which the respondent emphasised in the appeal.

10    The primary judge discussed the appellant’s claim that the AAT had failed to take into account the interests of JB at [51] – [63]. The primary judge concluded that the AAT had no obligation to do so for the following reasons:

1.    “There was no evidence that [the appellant] was JB’s parent or guardian. [The appellant] did not suggest he was” (at [52]).

2.    The appellant “argued that JB was a child in Australia who was potentially affected by a visa refusal or cancellation decision and for this reason paragraph 10.4.1(1) required that the tribunal have regard to her best interests. This was not an argument put in the tribunal” (at [52]).

3.    “In the statement of facts and contentions filed in the tribunal on [the appellant’s] behalf the ‘best interests of the child’ were canvassed only in relation to his daughter. Under the heading ‘other considerations’, under a sub-heading ‘family ties’, his solicitor wrote:

In addition, the applicant has formed a close bond with the daughters of another former partner, [MB]” (at [52]).

4.    “There was in fact no evidence that MB was a former partner of [the appellant]. The evidence was that MB knew [the appellant] and considered him family but she did not say that they had ever had a de facto relationship” (at [53]).

5.    The appellant “gave evidence before the tribunal but he was asked no questions about JB and he did not refer to his relationship with either MB or either of her daughters” (at [53]).

6.    “The material before the tribunal that mentioned JB consisted of a personal details form [the appellant] submitted to the Minister in October 2008 and letters from JB and her mother both dated 3 November 2008” (at [54]).

7.    The October 2008 personal details form asked “Do you have a close (parental-type) relationship with any other children [i.e. any children other than his own] under 18?” “Yes” and “No” boxes were provided and a further question posed: “If yes, please provide the child/ren’s name/s, the relationship details and nature of their relationship to you. If you have any on-going contact with them, please describe this contact (eg. Visits, phone calls.)”. The appellant ticked the “yes” box and “referred to JB as a child with whom he had a parental relationship and said that “for a while” in 2000 (eight years beforehand) he had lived with her and her mother and the two of them visited him” (at [55] – [56]).

8.    The letters from JB and her mother both dated 3 November 2008 gave evidence “of a close relationship. JB described him as being like ‘an uncle’ to her. Her mother said she considered him family. Both said that before JB met him she had no male figures in her life. In her letter MB said that JB was 15 years old. Her birth date appears nowhere in the evidence” (at [57] – [58]).

9.    Almost two years after the letters of MB and JB, [the appellant] submitted another personal details form. The same questions were asked here. This time in answer to the question whether he had a parental-type relationship with any other children under 18 Mr Tuitaalili ticked the “no” box”. The primary judge said (at [59]):

There are only two inferences available from this document. Either JB was no longer a child under 18 or [the appellant] no longer had a parental-type relationship with her.

10.    “The relevant time for consideration of this issue is the time the tribunal makes its decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286” (at [60]).

11.    The primary judge concluded (at [60]):

At this time the position was at best equivocal. In these circumstances, I do not think it can be said that the tribunal had sufficient evidence before it to trigger the obligation in paragraph 10.4.1(1).

12.    In respect of an alleged duty on the AAT to inquire about JB’s age at the time of the hearing [an issue not pressed in the appeal], the primary judge (at [61]) referred to Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] in which it was said:

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

13.    At [62] the primary judge said “it is difficult to see how JB’s age could be said to have been a critical fact when it formed no part of the case presented on [the appellant’s] part to the tribunal”. Further, the appellant “did not point to any provision of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) that could be said to impose a duty to make an inquiry of this kind in the particular circumstances that presented themselves to the tribunal in this case” (also at [62]).

14.    In respect of the asserted obligation on the AAT to take into account the best interests of JB as a child above 18 years of age (the argument being that paragraph 10.4.1(2) of the Direction provides that the best interests of a child of 18 years or older, though not a primary consideration, “may be considered with other considerations under paragraph 11”, and, “if it is relevant, it must be considered” (at [63])), the primary judge concluded that any issues of construction of Direction 41 were immaterial “because the way in which the case was conducted in the tribunal did not make it relevant. Despite the statement of facts and contentions, filed a month before the hearing in the tribunal, [the appellant] gave no evidence about any relationship with JB, the recent documentary evidence provided no support for the continuation of any relationship, and in closing submissions before the tribunal the issue was not raised” (also at [63]).

The Case on Appeal

11    The appellant submitted that leave ought to be granted to argue that the AAT also failed to consider the interests of KB, because it was expedient and in the interests of justice to do so given that the appellant’s submissions concerning JB applied equally to KB and the Minister could suffer no prejudice by reason of leave being granted. The respondent opposed the grant of leave. During the hearing the presiding judge indicated that we would deal with the question of leave in our reasons for judgment so that the parties should address all issues.

12    The appellant submitted that it should not be in dispute that the AAT did not consider the interests of JB or KB. No mention is made of them in the AAT’s reasons. The respondent did not contend otherwise.

13    The interests of both JB and KB were relevant considerations for the AAT, as indicated by the following four circumstances.

14    First, the letter from JB of 3 November 2008 was attached to the issues paper prepared by the Minister’s delegate and filed with the AAT under s 500(6F) of the Migration Act, which provides (in part):

(c)    the Minister must lodge with the Tribunal, within 14 days after the day on which the Minister was notified that the application had been made, 2 copies of every document, or part of a document, that:

(i)    is in the Minister's possession or under the Minister's control; and

(ii)    was relevant to the making of the decision; and

(iii)    contains non-disclosable information; and

(d)    the Tribunal may have regard to that non-disclosable information for the purpose of reviewing the decision, but must not disclose that non-disclosable information to the person making the application.

15    Second, the appellant expressly relied on the October 2008 personal details form and correspondence of 3 November 2008 from JB and her mother in the response by his solicitors to the notice of intention to cancel his visa. The solicitor’s letter dated 27 August 2010 said “we repeat the previous submissions and now ask the Department to have regard to these submissions and also the documentary evidence which was submitted in support of these submissions”.

16    Third, the Minister’s delegate and the author of the minute considered by the delegate both considered this material relevant. The delegate’s report referred to the appellant’s previous claim of a close relationship with JB, noting that this had not been mentioned in the current submission, leading the delegate to conclude that cancellation of the appellant’s visa was unlikely to have a serious impact on her best interests. The minute also noted that the appellant had made no mention of JB in his current personal details form dated 3 September 2010 and said “whatever the state of this relationship, [JB] is now 17 years of age and her best interests as a minor will only be relevant for a relatively short time”.

17    Fourth, in his statement of facts and contentions dated 21 January 2011 the appellant said, under the heading “Other considerations”:

36    In addition, the applicant has formed a close bond with the daughters of another former partner, [MB].

18    By reason of these circumstances the appellant submitted that the AAT was bound to consider the interests of JB and KB irrespective of the submissions put on the appellant’s behalf, citing in support NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) in which the Full Court said (at [58]):

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it — Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

19    The appellant also relied on the statement of Merkel J in Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157; [200] FCA 1901 (Chen) at [114] that:

In arriving at its decision the Tribunal is required to deal with the case actually raised by the material or evidence. Unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant.

20    The appellant also noted that Direction 41 is concerned with the Australian community and its members and not the subjective interests of the visa holder. According to the appellant, the content of Direction 41 supports the submission that the primary judge erred by focusing on the appellant’s conduct of the hearing before the AAT rather than the AAT’s obligations on review under Direction 41 irrespective of the appellant’s conduct.

21    According to the appellant, the primary judge’s assessment of the evidence and the inferences drawn from that assessment involved an incorrect approach. The question is only whether the AAT was bound to consider the interests of JB and KB either as a primary consideration under cl 10.4(1) or as other considerations which were relevant and thus had to be considered in accordance with cl 11(1).

Discussion

22    It may be accepted that the question the primary judge was required to answer (leaving aside the position of KB, whose interests were not raised as a relevant consideration before the primary judge) was whether the AAT was bound to consider the interests of JB.

23    This (orthodox) framing of the relevant question informed the appellant’s submission that the primary judge’s assessment of the material before the AAT for the purpose of drawing inferences about the appellant’s relationship with JB’s mother (at [53]) and the reason the appellant answered “no” to the relevant question in the second personal details form (at [59]) involved an incorrect approach. This submission, however, does not give sufficient recognition to the limited role this assessment played in the primary judge’s reasons. The primary judge did not make the assessment in purported usurpation of the fact finding functions of the AAT as the decision-maker. In the context of the proceeding, involving an application for writs of certiorari and mandamus, the assessment was relevant for determining the legal consequence of the undisputed fact that the appellant had not put any argument to the AAT about JB during the hearing or, indeed, mentioned JB at all (or KB for that matter). As the primary judge put it in relation to both aspects of the case concerning JB at [52] and [63], quoted above but amenable to repetition in the circumstances, “This was not an argument put in the tribunal” and “Despite the statement of facts and contentions, filed a month before the hearing in the tribunal, [the appellant] gave no evidence about any relationship with JB, the recent documentary evidence provided no support for the continuation of any relationship, and in closing submissions before the tribunal the issue was not raised”.

24    The appellant relied on the decision in NABE to support the duty of consideration irrespective of the appellant’s conduct of the hearing. NABE concerned the obligations of the Refugee Review Tribunal (the RRT) when dealing with an application for review of a decision in respect of a protection visa. Leaving aside the different context, it must also be appreciated that in describing the RRT’s duty, the Full Court (at [60]) approved the statement of Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 at [18] that:

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

25    The Full Court expressed the same concept at [61] of NABE by concluding that the RRT:

… is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.

26    As the respondent noted, other decisions have dealt with the obligations of the AAT in the context of appeals from the AAT on questions of law under s 44(1) of the AAT Act. In Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; [2010] FCAFC 52 at [61], the Full Court cited with approval the decisions in Hussain v Minister for Foreign Affairs (2008) 169 FCR 241; [2008] FCAFC 128 at [38]–[39], Comcare v Davies [2008] FCA 393 at [21], and Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 at [88]–[90] as supporting the proposition that there can be no error of law by the AAT, and thus no question of law, in failing to deal with a contention not raised before it.

27    The distinction between, on the one hand, a “case that is not expressly made or does not arise clearly on the materials before it” and, on the other hand, a contention “not raised” before a tribunal may be illusory. Be that as it may, it is common ground that the appellant did not expressly make a case in the hearing before the AAT relying on the interests of JB or KB either as a primary consideration under cl 10.4(1) or as other considerations under cl 11(1) of Directions 41. Moreover, when regard is had to the documents on which the appellant relied as raising the matter of their interests as a relevant consideration before the AAT it is apparent that, at best, the interests of JB and KB might have arisen as a relevant consideration under cl 11(1) of Direction 41. So much is clear from the appellant’s own statement of facts and contentions which made no reference to JB or KB when dealing with the best interests of the child under cl 10.4.1 (referring instead to the appellant’s own daughter) and referred to the close relationship with MB’s children only in the context of other considerations. The appellant’s submissions on the appeal focused on cl 11(1), presumably in recognition of this fact.

28    Insofar as the appellant submitted that the interests of JB and KB were raised before the AAT by reason of the four circumstances identified above, as noted, the primary judge must be taken to have been satisfied to the contrary for the reason that, despite the statement of facts and contentions, the appellant gave evidence about his other relationships and never mentioned the interests of JB, the appellant had not mentioned any ongoing relationship with JB in his most recent personal details form, and JB had not been mentioned in the closing submissions for the appellant (at [63]) which submissions, we note, otherwise addressed both the best interests of the appellant’s own child and other personal relationships of the appellant. These considerations must be read with the primary judge’s observation at [60] that at the time of the hearing JB’s age (under or over 18 years) involved a position “at best equivocal” and, in the primary judge’s view, it could not be “said that the tribunal had sufficient evidence before it to trigger the obligation” in para 10.4.1(1) of Direction 41. Read in context, we consider that the primary judge was concluding that the issue of the interests of JB (whether under para 10.4.1(1) or para 10.4.1(2) of Direction 41 depending on her age, or otherwise under cl 11(1)) was not raised before the AAT and thus the AAT was not obliged to consider it.

29    The circumstances on which the appellant relied also do not satisfy us that any different conclusion is appropriate.

30    The facts in support of the contrary conclusion – namely, that:

(i)    the appellant mentioned JB in the personal details form of 25 October 2008;

(ii)    the material before the AAT included the correspondence of 3 November 2008 from JB and her mother, MB;

(iii)    the letter of 27 August 2010 from the appellant’s solicitors to the Department referred to and enclosed all of the earlier documents; and

(iv)    the statement of facts and contentions mentioned that the appellant had formed a “close bond” with MB’s daughters,

have to be viewed in the overall context of the AAT’s review.

31    First, and as noted, the statement of facts and contentions dealt with MB’s daughters (JB and KB) under the heading of “Other considerations” as opposed to under the heading “Best interests of the child” in which the appellant identified facts and contentions relevant to his own daughter. This is relevant not only to the category of consideration said by the appellant to have been one the AAT was bound to consider but also the source of the duty of consideration (namely, cl 11(1) rather than cl 10.1.4 of Direction 41). The personal details form, as the appellant submitted, did change between 2008 and 2010 when the appellant answered “no” to a question referring to a parental-type relationship with any child. However, the form still referred to a “parental-type relationship”, an undefined term sufficiently broadly expressed to include a range of relationships between an adult and a child. But the real point about these four classes of documents is that the appellant must be inferred to have been on notice that the delegate had not accepted the interests of JB as a material factor in the appellant’s favour (still less the interests of KB who was not mentioned at all by the Minister’s delegate or in the minute paper), as this material was also before the AAT. It is this which makes the appellant’s conduct during the hearing of significance. Faced with this, nothing was said to the AAT in the appellant’s evidence or closing submissions to indicate that the appellant held or wished to invite the AAT to reach a different view from that reached by the Minister’s delegate in respect of JB or KB.

32    Second, the transcript shows that the respondent’s legal representative said in closing submissions that the only child whose best interests were relevant was the appellant’s own child. The appellant’s legal representative said nothing to indicate that the interests of any other child, but for the appellant’s own daughter, might also be relevant.

33    Third, the substantive consideration on which the appellant relied is the interests of the child, whether that consideration be primary under cl 10.4.1(1) (the best interests of the child) or not primary but relevant under cl 11(1) (whether by the route of cl 10.4.1(2) – a child over the age of 18 years – or otherwise). This, in terms, is the matter which the appellant said the AAT was bound to consider in the notice of appeal. Yet the appellant never mentioned the interests of either JB or KB in the hearing before the AAT, despite having expressly addressed in evidence and closing submissions the considerations of the best interests of the child (referring to his own daughter) under cl 10.4(1) and the nature and extent of his other personal relationships under cl 11(1). Hence, the contention in para 36 of the appellant’s statement of facts and contentions about his close relationship with JB and KB was never advanced in any way before the AAT, despite the categories of consideration under which the relationship might have been relevant in terms of Direction 41 having been dealt with at some length.

34    Fourth, cl 11(1), unlike cl 10.4(1), does not assume the relevance of the substantive consideration now said to be relevant. Clause 11(1) requires a consideration, if relevant, to be taken into account. The considerations in cl 11.1(3), on which the appellant relied concerning the “nature and extent of any relationships”, are personal to the visa holder. The visa holder alone will know the nature and extent of any relationships said to be relevant. The question which then arises is how a consideration becomes relevant if it is not mandated as relevant by the statute. The answer in such a case must depend to a large extent of the conduct of the parties in the review process. Given the terms of cl 11(1), on which the appellant placed such emphasis, this too supports the conclusion that the conduct of the appellant during the hearing has particular significance to the resolution of this appeal.

35    Fifth, and contrary to an assumption which appeared to inform the appellant’s submission, the mere fact that the material before the AAT included documents referring to a relationship between the appellant and JB and KB does not, of itself, answer the question whether their interests were raised before the AAT. We do not take Merkel J in Chen as saying anything different. Indeed, it is plain that Merkel J was not suggesting that the conduct of the parties was immaterial to resolution of the question whether an issue was raised before a tribunal (a suggestion which, in truth, the appellant’s appeal depends upon). Also at [114] in Chen (quoted in part above), Merkel J said:

In arriving at its decision, an inquisitorial tribunal, such as the Tribunal, can be guided by the issues the parties choose to put before it and is to have regard to the case so put.

36    That is to say, the conduct of the parties is relevant to determining the “the case actually raised by the material or evidence”. Despite the inclusion of a document referring to some matter or other, a party may not actually put a case relating to that matter by reason of the party’s conduct. If so, there can be no obligation to accept or reject material relating to the case not actually raised.

37    It follows that the whole course of the review by the AAT must be considered to answer the question whether the considerations now said to be relevant were raised. Once the whole review process is considered that question cannot be answered in the appellant’s favour in this appeal. Given the circumstances above we are satisfied that the contention about the interests of JB and KB was not actually raised before the AAT despite the reference to their relationship with the appellant in the statement of facts and contentions and in some of the other documents included in the material before the AAT.

38    It will be apparent that we have dealt with the substance of the appeal on all grounds without thus far considering the application for leave in respect of the issue concerning KB. In our view, while the issue concerning KB could and should have been raised before the primary judge, nothing suggests any prejudice to the Minister from leave being granted for it to be raised for the first time on appeal. The issue is based on the same material and involves the same considerations as the issue relating to JB. For these reasons we are satisfied that leave should be granted for the appellant to amend the notice of appeal to raise the issue about KB (by inserting the words “and KB” as paras 1 and 2(d)) but that the appeal should be dismissed with costs.

Associate:

Dated:    13 March 2012

REASONS FOR JUDGMENT

BARKER J:

Issues on Appeal

39    I agree with and gratefully adopt the account of the appeal, the primary Judge’s decision and the case that is put on appeal provided in the reasons for judgment of Flick and Jagot JJ, which I have read in draft.

40    I agree generally as well with the points made in their Honours’ discussion of the appeal grounds and in particular with the conclusion that the appeal should be dismissed with costs.

41    Their Honours have concluded that the contentions about the interests of JB and KB were not actually raised before the AAT, despite the reference to their relationship with the appellant in the statement of facts and contentions and some of the other documents included in the material before the AAT. While I generally agree, I have come to the view that the AAT nonetheless should not be taken to have been ignorant of the possible relevance of that relationship, but rather to have acted on the basis that it was not relevant to the exercise of discretion either under paras 10.4 and 10.4.1, or under para 11 of Direction 41.

Discussion

42    The primary question is whether the AAT committed jurisdictional error by failing to consider the relationship between the appellant and two children, JB and KB, as a mandatory consideration under the Migration Act 1958 (Cth) (Migration Act) taking into account the Minister’s Direction 41.

43    I turn directly to Direction 41. Para 4 states that it applies to decision-makers performing functions or exercising powers under s 501 of the Migration Act to refuse to grant a visa to, or to cancel a visa of, a person who does not satisfy the Minister that the person passes the character test. Accordingly, it applies in this case.

44    The Direction is binding on all decision-makers (para 5.2(1)).

45    Part A of the Direction deals with the application of the “character test”.

46    Part B of the Direction deals with “exercising the discretion”. If, following formal consideration, the person does not satisfy the decision-maker that the person passes the character test, consideration should be given to whether to exercise the discretion to refuse or cancel a visa (para 8(1)).

47    In exercising the discretion, decision-makers must take into account the “primary considerations” in every case and other considerations “should be taken into account where relevant” (para 9).

48    The primary considerations are set out in para 10 and include (1)(d), relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC).

49    Para 10.4 then emphasises Australia’s obligations under the Convention on the Rights of the Child (CROC) and provides that:

…. if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.

50    Para 10.4.1(1) makes it plain that this consideration applies only if the child is, or would be, under 18 years of age at the time when the decision to refuse to grant or cancel a visa is expected to be made.

51    Para 10.4.1(2) states that the best interests of any child who is 18 years or older is not a primary consideration but may be considered with “other considerations”.

52    Para 10.4.1(5) sets out factors to be considered when considering the best interests of the child as a primary consideration. I will return to the first of the factors below.

53    Para 11 deals with other considerations, not being primary considerations, and relevantly provides that:

(1)    In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

(2)    It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

(3)    These other considerations include:

(a)    family ties, the nature and extent of any relationships:

(i)    the extent of disruption to the person’s family, business and other ties to the Australian community;

(ii)    a genuine marital (including de jure or de facto) relationship with an Australian citizen, permanent resident or eligible New Zealand citizen.

54    Para 11(A) then sets out a range of factors to be considered, apparently in relation to the other considerations listed in para 11(3) above.

55    Returning to the primary consideration mentioned in paras 10.4 and 10.4.1, it will be noted that this arises “if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision”. There is no definition of “child” in Direction 41. However, given that Direction 41 is designed to reflect relevant international obligations, including the best interests of the child as described in the CROC, it is appropriate to regard the scope of the CROC.

56    Article 1 of the CROC provides that, for the purposes of the Convention:

… a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

57    The terms of the CROC focus on children generally, and not just as the children of a formal marriage or other relationships recognised by the state. For example, Art 3 provides as follows:

1.    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 shall be a primary consideration.

2.    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3.    State Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

58    Thus where para 10.4 of Direction 41 makes mandatory the consideration of the best interest of the child, where there is a child in Australia, the concept of “child’ would appear to be a very broad one. This is indeed emphasised by the wide range of factors that should be taken into account when considering this mandatory consideration under para 10.4.1(5) which, for example, in (a) states:

the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with the child compared to a relationship with long periods of absence and limited meaningful contact with a child

59    Having regard to the mandatory nature of the consideration in para 10.4, and the fact that para 10.4 and 10.4.1 are intended to reflect Australia’s obligations under the CROC to protect the interests of children, the range of relationships that a person may have with children that attracts that mandatory consideration are necessarily broad.

60    It follows then that the concept of a child in Australia who is “potentially affected” by a visa refusal or cancellation decision is also a particularly broad one. In any case where the exercise of discretion is to be exercised, it is a matter of fact to be determined by a decision-maker whether there is any child answering that broad description.

61    The first question for the AAT then was whether the interests of JB and KB needed to be considered as a primary consideration under paras 10.4 and 10.4.1.

62    The existence of the children in Australia and the suggestion that they may “potentially” be affected by a visa cancellation was the subject of a letter from MB dated 3 November 2008 sent by the appellant’s then lawyers to the National Character Cancellation Centre of the Department of Immigration and Citizenship (Department) under cover of a letter dated 22 December 2008. That letter also included a letter from JB of the same date who described herself then as 15 years of age. In her letter, JB referred to her “little sister” KB who was then only 5 years of age, and stated “she also see’s him as an uncle”.

63    Those materials had been supplied to the Department at an earlier time when the appellant had been given a warning. Thus they were in that sense “on the file” of the Department when a fresh notice of intention to consider cancellation dated 2 July 2010, that led to this proceeding, was issued by the Minister to the appellant.

64    In the materials supplied by the appellant to the delegate of the Minister for the purpose of exercising discretion under the Migration Act in relation to the fresh notice of cancellation, nothing additionally was said or put forward by him or his representatives so far as the previously mentioned relationship with JB or KB was concerned.

65    Accordingly in the decision of the delegate of the Minister dated 19 October 2010, in the course of coming to a decision to cancel the appellant’s visa, the delegate stated, at [15]:

I have also noted that Mr Tuitaalili has previously claimed a close relationship with the daughter of another former partner, but as he has not mentioned this child in his current submission, I find that cancellation of his visa is unlikely to have a serious impact on her best interests.

66    In my view the delegate thereby appropriately dealt with the question of the relationship as part of the “best interests of the child consideration” where it arose under para 10.4 and para 10.4.1 or under para 11 of Direction 41. While the delegate did not mention KB, I consider this observation, in the circumstances, covered both JB and KB.

67    When the appellant then sought review of the delegate’s decision in the AAT, all the materials that were before the delegate went before the AAT, including the nearly two year old letters of MB and JB, as well as the reasons for decision of the delegate. The appellant was represented legally at the review hearing in the AAT and filed a statement of facts and contentions that dealt with the primary consideration of best interests of the child as well as other considerations. The statement did not suggest anywhere that the interests of either JB or KB were a primary consideration for the AAT. At [36] of this statement, however, in a section dealing with “other considerations, family ties”, the solicitors for the applicant stated:

in addition, the applicant has formed a closed bond with the daughters with another former partner [MB].

68    In the context of the proceeding at that point, this was a very incidental observation, suggesting that this relationship might possibly be considered a relevant, other consideration. No other reference to that relationship was made in the statement.

69    At the hearing in the AAT, however, the question of that relationship was not the subject of any further mention, question, cross-examination or other discussion by or on behalf of either party or the AAT member. When final submissions by the parties were made, the only child whose best interests were mentioned as being relevant was another child, the appellant’s biological child. This was first mentioned by the Minister’s legal representative and, as Flick and Jagot JJ have pointed out, the appellant’s representative said nothing to indicate that the interests of any other child, such as JB or KB, was relevant in any context.

70    When one fully takes account of all these circumstances, it is clear the appellant did not suggest the interests of JB and KB should be regarded as a primary consideration under para 10.4 and, indeed, did not take issue with the delegate’s finding that the cancellation of his visa was unlikely to have a serious impact on the best interests of JB or KB. In my view, the AAT reasonably proceeded on that understanding.

71    In those circumstances, the relationship mentioned in [36] of the statement plainly was not regarded by anyone, and relevantly not by the AAT as being of any relevance to the exercise of discretion under paras 10.4 or 11.

72    I am strengthened in this view because the AAT was alert to the need to consider “other considerations” under para 11. The reasons for decision expressly identified the need to do so and in fact identified other relevant family relationships and the question of their disruption for consideration on this basis.

73    It follows, in my view, that there was no need for the AAT to treat the relationship as a mandatory consideration under either para 10.4 or para 11 of Direction 41, and that there was no jurisdictional error committed by the AAT. The decision of the primary Judge was correct.

74    For these reasons I would dismiss the appeal with costs.

General Observation

75    The terms of para 11, namely, that other considerations, although not primary, may be relevant and, if so, must be considered, seems to me a little circular and likely to be the cause of decision-making difficulties from time to time.

76    Para 11 demands that if there is a consideration which may possibly be relevant, then it must, in a practical sense, be considered in order to decide whether it is relevant. If it is relevant, then under para 11 it must be considered.

77    Primarily a decision-maker will rely on the parties, particularly when professionally represented, to identify other considerations that may be relevant, but often it will be prudent for the decision-maker to inquire directly of the parties whether they say there are other considerations that are relevant under para 11.

78    In some circumstances those other considerations will be obvious to all. Where, for example, the evidence adduced in a hearing or the materials discloses a child in relation to whom an applicant plainly has a current social relationship, who is 18 years or older, then the question might well need to be asked whether the relationship is relevant to the exercise of discretion. If the facts suggest it is, then it will have to be considered under para 11.

79    In the example just given, the decision-maker should not have to depend on the party or their representative raising the question because it is there for all to see. Where an applicant, makes it quite clear that he or she does not consider a particular relationship to be relevant and they do not rely on it then it would be appropriate for the decision-maker to note that fact in their reasons for decision so that it can be seen why that relationship was not taken into account in the exercise of discretion. Otherwise, the decision-maker should rule on the relevance of the other consideration. But, as explained above, that example is not this case.

Associate:

Dated:     13 March 2012