FEDERAL COURT OF AUSTRALIA

Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1    This is an appeal against the judgment and orders of a judge of the Court which dismissed an appeal against a decision of the Administrative Appeals Tribunal (“the AAT”) adverse to the present appellant (Paerau v Minister for Immigration and Border Protection [2013] FCA 1119). In its decision the AAT on 15 November 2012 affirmed a decision of a delegate of the first respondent to cancel the appellant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Migration Act”).

Factual and procedural background

2    The appellant is a citizen of New Zealand. He first arrived in Australia in December 1992 and took up residence here in April 1993. The appellant was then 14 years old.

3    The appellant has a lengthy criminal record in Australia. He has been sentenced, the primary judge and the AAT found, to terms of imprisonment for 12 months or more on at least seven separate occasions. He therefore has a “substantial criminal record” within the meaning of s 501(7) of the Migration Act. On 15 August 2012 a delegate of the first respondent decided to cancel the appellant’s visa. The application to the AAT to review the delegate’s decision required the AAT to decide for itself whether the appellant’s visa should be cancelled. In the exercise of that function the AAT was required to comply with a written Ministerial direction (Direction No. 55) made by the first respondent pursuant to s 499 of the Migration Act. Direction No. 55 requires delegates of the first respondent to take into account certain “primary considerations” as well as “other considerations” when exercising the discretion under s 501 of the Migration Act to cancel a visa or refuse a visa application.

Primary considerations under Direction No. 55

4    One “primary consideration” which the AAT was obliged to take into account under Direction No. 55 was the protection of the Australian community. In the course of its decision the AAT found, at [48], that the appellant’s criminal conduct was serious, “primarily because of the frequency and cumulative effect of his repeat offending”, that there was a significant risk he would re-offend in the future and that consideration of the protection of the Australian community weighed heavily in favour of cancelling his visa.

5    Another “primary consideration” to which the AAT was obliged to have regard was the best interests of the appellant’s minor children in Australia. That primary consideration is expressed in Direction No. 55 at cl 9.3, as follows:

9.3    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;

e)    Whether there are other persons who already fulfil a parental role in relation to the child;

f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

(Emphasis added.)

6    How that issue was addressed by the AAT will be dealt with shortly. In brief, this consideration was found to be neutral for the appellant. No other considerations weighed against cancellation of the appellant’s visa, and the AAT decided, at [67], after “weighing all the relevant considerations”, that the decision of the delegate should be affirmed.

7    No issue has been raised on the present appeal (or was raised before the primary judge) about how the AAT dealt with the question of the protection of the Australian community. The issue which has been raised on appeal (and at first instance) concerned how the AAT dealt with the question of the best interests of three of Mr Paerau’s children.

Operation of s 500(6H) of the Migration Act

8    Before turning to the AAT’s consideration of the best interests of the three children, it is necessary to refer to an issue which arose about the material to which the Tribunal might have regard in dealing with that question. The issue arose from the operation of s 500(6H) of the Migration Act, which provides:

500    Review of decision

…

(6H)    If:

(a)    an application is made to the Tribunal for a review of a decision under section 501; and

(b)    the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

9    Mr Paerau did not provide any statements or documents to the Minister prior to the hearing before the AAT. Nevertheless, at the hearing itself he sought to give oral evidence about his children and his relationships with them. The AAT did not permit him to do so. The AAT explained in its decision why it took that course:

26.    The second preliminary issue for determination was whether Mr Paerau could provide oral evidence about his current circumstances relevant to the application when he had not filed and served any written statements at least two business days before the hearing, namely on or before 2 November 2012.

27.    In previous cases before the Tribunal, the Tribunal has allowed oral evidence from an applicant to explain or amplify material contained in a written statement (for example, Reedy) and has allowed oral evidence from one witness in respect of the written statement of another and in respect of matters raised in the applicant’s Statement of Facts, Issues and Contentions (see SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209). In both these cases written statements were served on the Minister within the period contemplated by the two day rule. In this case, there were no such written statements served on the Minister. There were reports from the New South Wales Probation and Parole Service that included some information about Mr Paerau’s personal circumstances but there was very little information about Mr Paerau’s relationship with his family and his children in Australia.

28.    Mr Paerau would have liked to give oral evidence about these matters but regrettably there was no written material provided to the Minister or the Tribunal in respect of which he could justifiably explain or amplify. As set out in Goldie, the purpose of s 500(6H) and (6J) is to ensure the Minister is given adequate opportunity to answer the case put by the applicant in the context of the strict time limits on the determination of these matters. Having regard to those provisions and the fact that no written statements were provided to the Minister by Mr Paerau at least two business days before the hearing, Mr Paerau was not given leave to give oral evidence in support of his case but nonetheless made submissions by reference to the material tendered by the Minister.

10    The reference to Goldie was to a decision of a Full Court of this Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 which decided that the restrictions in s 500(6H) were strict ones preventing the AAT from having regard to oral information or documents not provided to the Minister within two business days of the hearing. Goldie was confirmed by a Full Court in Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86. The Full Court said (at [29]):

29        … Where the pre-conditions to its engagement are satisfied, the provision operates to preclude the AAT from having regard to any information presented orally in support of an appellant’s case where the information was not set out in a written statement given to the Minister at least two business days before the AAT holds a hearing.

11    The Full Court also said (at [33]):

33        Accordingly, we consider that:

(a)    there was no obligation on the AAT to give any warning to the appellant that it would not consider the best interests of his other two children. That is because as a matter of law and consequential upon the effect and operation of s 500(6H) the AAT was disabled from having regard to the particular oral evidence (limited as it was) on that subject;

(b)    it was not open to the AAT to adjourn the hearing to enable the appellant to comply with s 500(6H) for the reasons given in Goldie at [31]. In any event, the appellant did not contest the Minister’s submission that the appellant’s legal representative did not apply for an adjournment of the AAT hearing; and

(c)    nor was there any obligation on the AAT to conduct its own inquiries and seek to collect additional information relating to those children. While an obligation might arise in some circumstances for the AAT to make an obvious inquiry about a critical fact, the existence of which is easily ascertained (see, for example, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), no such obligation arose here because the issue of the appellant’s two further children was not a critical fact in circumstances where those children were not put forward by the appellant as part of his case, nor did such a case clearly arise from the materials before the AAT (see Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24, (2012) 126 ALD 48 at [23]-[25] and [36] per Flick and Jagot JJ). Although an inference could be drawn from various of the documents which the Minister placed before the AAT that the appellant had two additional children, the appellant did not present his case on the basis that their best interests had to be considered. None of the written statements filed by the appellant (including his own written statement) made any mention of those children, let alone provide information concerning them. His case was presented exclusively on the basis that he had only three children.

12    In my view, it must be accepted that the AAT acted in conformity with the Migration Act, when it refused to allow Mr Paerau to give oral evidence to it about any of his children. That has some significance for any consideration of how the AAT approached the requirements of the direction in cl 9.3 of Direction No. 55, that it must make a determination about whether cancellation of Mr Paerau’s visa is, or is not in the interests of each of his children, considering them individually.

Consideration of the best interests of the child

13    In relation to the interests of Mr Paerau’s children, the AAT said in its decision:

39.    According to a Pre-Release Report from the New South Wales Probation and Parole Service dated 6 August 2012, Mr Paerau has six children (there is a suggestion in another report that he has eight) but had no contact with the three eldest children from previous relationships. He was separated from his partner but had three children from this relationship and had regular contact with those children – twins aged two and a half years old and an eight-month baby.

40.    Little is known about Mr Paerau’s relationship with his children, although included in the documents tendered by the Minister was a Report of a reasonable suspicion of child abuse and neglect dated 2 April 2011. There was no further detail about this report or whether the suspicion referred to in the report was investigated. As such, little could be drawn from this information. However, there was a report provided by the Queensland Police Service recording a temporary domestic violence order made on 24 November 2009 against Mr Paerau in respect of his former partner and four of her children, two of which were the twins from Mr Paerau’s relationship with his partner. It appears that a protection order was made against Mr Paerau in respect of this matter on 23 November 2011.

…

60.    As noted above, there is little evidence about Mr Paerau’s contact with his children, although there appears to be no dispute that the only children with whom Mr Paerau has any regular contact are his three children to his former partner. The nature and extent of this contact is unclear but it is relevant to note that two of those children were the subject of domestic violence orders in 2009 and 2011.

61.    Given the paucity of evidence, I cannot be satisfied about whether it is in the best interests of Mr Paerau’s minor children for Mr Paerau to remain in Australia or whether it would be in their best interests for him to be removed to New Zealand. As such, this consideration does not weigh against cancellation and, at best, is neutral.

14    When the appellant filed his appeal against the decision of the AAT, which was dealt with by the primary judge, the sole ground for the application was stated as follows:

1.    Best interests of the children [two children named] (Twins) [a third child named]

15    The present appeal, like the appeal dealt with by the primary judge, states a single ground:

1.    Best interests of the children [two children named] [a third child named]

16    At the hearing before the primary judge, counsel for the Minister very properly referred (as he did on the present appeal) to a line of cases in this Court where single judges have held (under Direction No. 55 and earlier written directions relating to the same provision of the Migration Act) that the AAT has an obligation to say what are the best interests of the children of a person facing deportation from Australia as a consequence of failing the character test (Nweke v Minister for Immigration and Citizenship [2012] FCA 266, (2012) 126 ALD 501; Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408).

17    Each of those judgments appears to me, with respect, to proceed upon the basis that a finding on that question was reasonably open on the material before the AAT, but had not been made. That, in my view, is not the present case.

18    It is basic, of course, that any determination by the AAT about a matter as fundamental and important as the best interests of a child should be the result of a reasoned assessment of material of sufficient probative value that the determination be a sober and considered one, and not capricious, speculative or merely a guess. Something more than lip service to cl 9.3 of Direction No. 55 is required.

19    There does not appear to be any Full Court judgment which deals directly with the present issue, although in Uelese the Full Court observed (at [34]-[36]) that if it was necessary to resolve any tension between the mandatory obligations under Direction No. 55 and the operation of s 500(6H) of the Migration Act the latter would qualify and constrain the operation of the former.

20    Earlier, in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, a Full Court did consider the operation and effect of a statutory direction (the previous s 135 of the Migration Act) to make findings of fact in a case where the Immigration Review Tribunal said it was unable to do so on the evidence before it. As a matter of legal analysis, the judgment turned on whether the applicant had discharged a practical onus to make out a case to the satisfaction of the Tribunal, an approach not apposite to the present case. However, each of the judges rejected the submission that an obligation to find facts left no room for a neutral outcome.

21    Jenkinson J said (at 38B):

Each of the witnesses is thus stated to have failed to engender belief in the Tribunal as to the correctness of the assertions of facts given by her or him in evidence. The only evidence by which persuasion that the marital relationship was genuine and continuing could have been induced was not accepted. In those circumstances there was in my opinion no obligation, imposed by s 135 or otherwise, to set out what material facts the finding of which in the particular circumstances of the case would have induced that persuasion.

22    Carr J said (at 46F-G):

The Tribunal carefully considered what had to be proved and then followed the decisions governing the consequence of being left in a state of uncertainty whether the facts necessary to activate the relevant statutory power had been established. The decision-making pendulum remained in equilibrium.

In my view, the Tribunal, in this somewhat unusual matter, complied with the requirements of s 135. It set out its decision and it set out its reasons for reaching that decision. It clearly explained why it was unable to make a finding on a material question of fact and in those circumstances (not being able to make a finding of a material question of fact) there was no obligation in terms of s 135(1)(d) to refer to the evidence.

23    RD Nicholson J said (at 50B-C):

The Tribunal was entitled to reach its findings on credibility. Having done so, it found itself unable to find facts. However, it is not contended that the Tribunal could properly have found the facts short of oral evidence. In that circumstance I am unable to see how it could have been open to the Tribunal to comply with s 135 by making findings and referring to the evidence on which such findings were based.

24    There is no reason to doubt the general soundness of each of those observations. As I said earlier, no suggestion is available that decisions which are not to an appropriate standard are intended under the Migration Act, now or earlier.

25    In the present case, the primary judge dealt with the matter very fairly raised by counsel for the Minister by pointing out that the principal reason why the AAT could not make a determination about the best interests of Mr Paerau’s children lay in the operation of s 500(6H) of the Migration Act. The primary judge said (at [22], [23], [26] and [30]):

22        In the present case the Tribunal found that it was unable to make a determination as to whether the cancellation of the applicant’s visa was or was not in the best interests of his children. This finding is hardly surprising given what the Tribunal described as the paucity of the material relevant to the children’s best interests. That material, referred to at [40] and [60] of the Tribunal’s reasons, although suggesting that the applicant had regular contact with his three children to his former partner, did not reveal the nature or extent of that contact.

23        As the Tribunal explained, the reason why there was so little material relevant to the best interests of the applicant’s children available to it was due to the operation of subs 500(6H) and (6J) of the Act. Consistently with the Full Court’s decision in Goldie, the Tribunal interpreted these provisions as precluding it from receiving from the applicant material relevant to its consideration of the best interests of his children.

…

26        In Uelese the Tribunal found that it was unable to determine whether or not visa cancellation would be in the best interests of two of the applicant’s five children given the limited information available to it. As in the present case, the applicant had not laid the necessary foundation that would permit the Tribunal to have regard to the information that the applicant wished to rely upon because he had not given the Minister the requisite notice.

…

30        I do not think there is any room to doubt that it was the operation of subs 500(6H) that prevented the Tribunal making a determination as to whether cancellation of the applicant’s visa was or was not in the best interests of his children. It would be perverse to require the Tribunal to make such a determination in circumstances where it was duly satisfied that it could not properly do so.

26    Although the issue was ventilated again on the present appeal, there is no reason to doubt the correctness of this analysis.

27    In my respectful view, there could be no objection in any case to the AAT concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case.

28    In my view, the appeal should be dismissed with costs.

Associate:

Dated:    19 March 2014

REASONS FOR JUDGMENT

BARKER J:

29    Mr Paerau is a citizen of New Zealand who came to Australia, with his parents, in 1993. In 1994 he became entitled to reside in Australia indefinitely as the deemed holder of a special category (temporary) (class TY) visa under the Migration Act 1958 (Cth) (Act). He has lived in Australia since.

30    From about the age of 17, Mr Paerau began offending against Australian criminal law. He has been convicted of a number of offences which have resulted in him receiving sentences of imprisonment exceeding 12 months on at least seven separate occasions. In all, he has served about eight years in correctional centres.

31    Mr Paerau is also the father of a number of children born in Australia, with young twins and another, younger child, being his three youngest children.

32    In August 2012, Mr Paerau’s visa was cancelled, on the basis of his criminal history, by a delegate of the Minister pursuant to s 501 of the Act. As a result he faced removal to New Zealand.

33    Mr Paerau applied to the Administrative Appeals Tribunal (AAT) for merits review of the visa cancellation decision, but the AAT affirmed the delegate’s decision.

34    In the course of doing so, the AAT noted that by cl 9.3(1) of Direction no. 55 issued by the Minister in 2012 it was required to make a determination about whether cancellation is, or is not, in the best interests of the child. The AAT stated, however, that because of a paucity of evidence before the Tribunal, it could not be satisfied whether it is in the best interests of Mr Paerau’s minor children for him to remain in Australia or whether it would be in their best interests for him to be removed to New Zealand. The AAT added that, as such, the consideration of the best interests of minor children in Australia affected by the decision did not weigh against cancellation and, at best, was neutral. See Paerau v Minister for Immigration and Citizenship [2012] AATA 798 (15 November 2012) at [60]-[61].

35    Mr Paerau then applied to a judge of this Court for judicial review of the AAT’s decision. The primary judge considered whether the AAT’s failure to make a finding about whether Mr Paerau’s visa cancellation was in the best interests of the minor children, or not, constituted jurisdictional error and held that, in circumstances where the AAT was duly satisfied that it could not properly make a determination, its failure to do so did not constitute jurisdictional error. See Paerau v Minister for Immigration and Border Protection [2013] FCA 1119 at [30].

36    Mr Paerau now appeals to this Court on the grounds that the primary judge erred in so finding. He seeks orders that the decision of the AAT is invalid and requiring the AAT to reconsider his merits review application.

37    The primary issue arising on this appeal in substance is whether the AAT erred in law in failing to make findings about the best interests of Mr Paerau’s minor children before deciding to affirm the visa cancellation decision.

38    If error was made, a further question arises whether in the circumstances of this case the matter should be remitted to the AAT for reconsideration.

Did the AAT err in law in failing to make findings about the best interests of the minor children?

39    To answer this question, it is necessary first to have regard to the decision-making requirements imposed on the AAT, including by Direction no. 55, and secondly, to consider what the obligation of the AAT was under Direction no. 55 in the circumstances, and on the evidence and information before it.

40    Section 501(2) of the Act provides that the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the “character test”. Section 501(6) provides that a person does not pass the character test if they have a substantial criminal record. The expression “substantial criminal record” is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.

41    As explained above, Mr Paerau had been sentenced to numerous terms of imprisonments for a period of 12 months or more and as a result had a substantial criminal record. It followed that he did not pass the character test and so the Minister was empowered to cancel the visa, as the Minister’s delegate did in August 2012.

42    Mr Paerau was then entitled to seek merits review of the visa cancellation decision under the Act and the provisions of the Administrative Appeals Act 1975 (Cth). In this regard s 499(1) of the Act provides that the Minister may give “written directions” to a person or body having functions or powers under the Act about the performance of those functions and their exercise. By s 499(2A), the decision-maker, in this case including the AAT, must comply with the written directions.

43    It is not in dispute that at material times when the AAT made its decision it had to comply with Direction no. 55 which had been issued in July 2012 and came into effect on 1 September 2012.

44    Direction no. 55 states by cl 6.2 that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens and states six principles said to be of critical importance in furthering that objective and to reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

45    The principles are set out in cl 6.2. Those set out in cl 6(1) to (5) address criminal activity or other serious conduct by non-citizens. Clause 6.3(6), which is of particular significance in this appeal, relevantly states the principle that the length of time a non-citizen has been making a positive contribution to the Australian community “and the consequences of … cancellation for minor children and other immediate family members in Australia” are considerations in the context of determining whether that non-citizen’s visa should be cancelled.

46    By cl 7(1), it is made clear that these principles must inform the exercise of the review discretion exercised by the decision-maker, the primary and other considerations later set out in Part A and Part B must be taken into account “where relevant” and that decision-making process involves a balancing exercise.

47     Clause 8 provides particular guidance about the decision-making process. A decision-maker must take into account the primary and other considerations relevant to the individual case (cl 8(1)) and information and evidence from independent and authoritative sources must be given “appropriate weight” (cl 8(2)). Both primary and other considerations may weigh in favour of, or against, cancellation (cl 8(3)). Primary considerations should generally be given greater weight than the other considerations (cl 8(4)) and one or more of the primary considerations may outweigh other primary considerations (cl 8(5)).

48    Clause 9(1)(a) to (d) then describes the following four primary considerations:

(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The strength, duration and nature of the person's ties to Australia;

(c)    The best interests of minor children in Australia;

(d)    Whether Australia has international non-refoulement obligations to the person.

49    Clauses 9.1 and 9.2 set out matters or factors that a decision-maker should consider when considering primary considerations under cl 9(1)(a) and (b).

50    Clause 9.3 then deals with primary consideration under cl 9(1)(c), that is of the best interests of minor children in Australia. Clause 9.3 should be set out in full because of its importance in answering the question raised by this appeal:

9.3    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    The impact of the person's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;

e)    Whether there are other persons who already fulfil a parental role in relation to the child;

f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct.

51    In this case, the principle referred to in cl 9(1)(d) is not relevant.

52    Unlike cl 9.1 and cl 9.2, which do not require a decision-maker to make any particular determinations, cl 9.3(1) positively requires a decision-maker to make a determination about whether cancellation is, or is not, in the best interest of the child. It follows, in my view, that the balancing and weighing exercise provided for by cl 7 and cl 8 cannot be undertaken in relation to the best interests of the child consideration (where it is relevant) unless the required determination has first been made.

53    In Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; (2012) 135 ALD 45, Robertson J after considering the earlier decisions of Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 ALD 27 and Nweke v Minister for Immigration and Citizenship [2012] FCA 266; (2012) 126 ALD 501, concluded that a decision-maker is bound by cl 9.3(1) of Direction no. 55 and must, expressly or impliedly, actually make a determination about whether cancellation is or is not in the best interests of the child. His Honour said, at [18], that it was not enough merely to have regard to those interests.

54    I agree, with respect, with his Honour’s analysis and conclusion. In the ordinary case where the best interests of the child consideration is brought into play, at least where the decision-maker has relevant information or evidence, it is not enough for the decision-maker simply to have regard to the best interests of the child. It must first make a determination about whether cancellation is, or is not, in the best interests of each minor child (if more than one) and then, secondly, proceed to conduct the balancing and weighing exercise, with other primary and other considerations, provided for by cl 7 and cl 8.

55    In Tauaraiki v Minister for Immigration and Citizenship [2012] FCA 1408; (2012) 135 ALD 51 (Tauaraiki), Cowdroy J came to a similar conclusion, albeit in respect of the earlier Direction no. 41 which, in some important respects (as explained below), differed from Direction no. 55 so far as the assessment of the best interests of the child is concerned.

56    A question arises, however, in a case where there is no or little evidence about a minor child, whether the decision-maker must make the cl 9.3(1) determination. If there is no such requirement in such circumstances then it would also follow that the decision-maker is not permitted or able to consider the best interests of the child consideration at all or in some other guise. Direction no. 55 has so structured the decision-making process that the consideration can only be weighed in the light of a determination of whether cancellation is, or is not, in the best interest of a child. Presumably, it does so because of the singular importance of the consideration.

57    In Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 (Uelese) the visa holder had presented his case in the AAT on the basis of him having only three children whose interests required primary consideration. In the course of cross-examination of his de facto partner, it emerged that he had another two minor children by another woman following his separation from his de facto partner.

58    The AAT took the view that it was prevented by s 500(6H) of the Act from having regard to the oral evidence that he had five, not three, children. In that regard, s 500(6H) provides that:

If:

(a)     an application is made to the Tribunal for a review of a decision under section 501; and

(b)     the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

59    Because of the application of s 500(6H), there was no evidence before the AAT, that the AAT could act on, about the two further children. In those circumstances, the AAT held it was unable to determine whether or not visa cancellation would be in the interests of the visa holder’s other two children because of the constraints imposed by s 500(6H) of the Act.

60    The Full Court agreed with this finding.

61    In Mr Paerau’s case, however, the evidentiary position is unlike that in Uelese. Here, information from an authoritative source before the AAT plainly indicated a number of minor children, at least six (possibly eight). The information before the AAT concerning these children and their relationship, if any, with Mr Paerau was, however, limited. Part of the reason for this was that, as in Uelese, at the hearing the AAT had been obliged to find that it could not receive any further information or evidence about his children from Mr Paerau because of the application of s 500(6H). While the AAT had, at earlier directions hearings, brought s 500(6H) to the attention of Mr Paerau, he had chosen not to comply with it. The AAT had no option but to refuse Mr Paerau the opportunity to lead further evidence about his children. See Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378; Uelese. The AAT’s ruling in this regard is not in issue on this appeal.

62    As a result, the only information before the AAT for the purpose of decision-making was that presented by the Minister, which included information arising from the various sentencing processes with which Mr Paerau had been involved and which incidentally mentioned the children of Mr Paerau and cast some limited light on his relationship with them.

63    The AAT, at [39] and [40] of its reasons for decision, reasonably summarised and commented on this incidental information about the children as follows:

39.    According to a Pre-Release Report from the New South Wales Probation and Parole Service dated 6 August 2012, Mr Paerau has six children (there is a suggestion in another report that he has eight) but had no contact with the three eldest children from previous relationships. He was separated from his partner but had three children from this relationship and had regular contact with those children − twins aged two and a half years old and an eight-month baby.

40.    Little is known about Mr Paerau’s relationship with his children, although included in the documents tendered by the Minister was a Report of a reasonable suspicion of child abuse and neglect dated 2 April 2011. There was no further detail about this report or whether the suspicion referred to in the report was investigated. As such, little could be drawn from this information. However, there was a report provided by the Queensland Police Service recording a temporary domestic violence order made on 24 November 2009 against Mr Paerau in respect of his former partner and four of her children, two of which were the twins from Mr Paerau’s relationship with his partner. It appears that a protection order was made against Mr Paerau in respect of this matter on 23 November 2011.

64    At [60] of its reasons for decision, after referring to the factors listed in cl 9.3(4) of Direction no. 55, the AAT observed that there was little evidence about Mr Paerau’s contact with his children, “although there appears to be no dispute that the only children with whom Mr Paerau has any regular contact are his three children to his former partner”. It then reasonably added that the nature and extent of the contact was unclear, but also noted that two of the children were the subject of domestic violence orders in 2009 and 2011.

65    The AAT, at [61], then said that, given the “paucity of evidence”, it could not be satisfied about whether it was in the best interests of Mr Paerau’s minor children for him to remain in Australia or whether it would be in their best interests for him to be removed to New Zealand, and then immediately added: “As such, the consideration does not weigh against cancellation and, at best, is neutral”. In so stating, the AAT failed to make the determination required by cl 9.3(1) but, in my view, also purported to regard the best interests of the child consideration and give it a weighting (neutral) for the purposes of its decision-making.

66    When this aspect of the AAT’s decision-making was raised before the primary judge, his Honour (at [30]) accepted a submission made on behalf of the Minister that it would be “perverse” to require the AAT to make the determination required by cl 9.3(1) of Direction no. 55 “in circumstances where the AAT was duly satisfied that it could not properly do so”.

67    There are, I consider, three issues of concern arising out of acceptance of the AAT’s approach to decision-making.

68    First, as noted, the AAT appears to have regarded the primary consideration of the best interests of minor children in Australia, and then weighted it as “neutral”. But it did so without first making the determination required by cl 9.3(1). In principle, as explained above, that approach is not open to a decision-maker. The determination must be made and then the primary and other considerations must be weighed. At that point the relative weight to be accorded the best interests of the child consideration as against the other primary considerations is to be assessed. The best interests of the child consideration cannot be regarded and weighted without first making a determination.

69    Secondly, unless it can be said in a particular case that there is no relevant information or evidence concerning the child, then I consider a decision-maker must do the best they can to make the determination on the available evidence, however difficult or sub-optimal that decision-making process may be considered to be by a decision-maker and regardless of how unreliable they may consider a determination made in such circumstances may be as a result. In Uelese there was simply no evidence. A case like Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, while not in relation to this particular decision-making process, demonstrates that there may well be circumstances where, for example, relevant evidence potentially may be obtained from competing witnesses of fact but the decision-maker is unable to accept the evidence of any witness on credibility grounds and so has no relevant evidence upon which to make a required finding of fact.

70    That a determination, even one that a decision-maker may consider likely to be sub-optimal compared with one they could have made if only they had been provided with more information or evidence, must be made where there is relevant evidence, is, I consider, required when one takes into account the express requirement of cl 9.3(1) to do so, and appreciates that in some cases, such as this, the application of s 500(6H) may well restrict the range of information or evidence before the AAT.

71    In this regard, nothing in the Act or Direction no. 55 requires that the decision-maker’s decision be to any particular standard or that the AAT only make a determination if it considers it is appraised of what it considers to be sufficient information or evidence to make an optimal or “proper” determination.

72    Thirdly, the approach taken by the AAT results in a decision-making process under which the best interests of any minor child is completely ignored, contrary to the clear intent of Direction no. 55 that this should not happen.

73    The AAT, in my view, recognising this deficiency in the approach it adopted purported to overcome it by remarking, as noted above, that the consideration did not weigh against cancellation and, at best, “was neutral”.

74    In this case, I consider the AAT had relevant information before it from which it could have made a determination about the best interests of the three older children. That information was: that there were six (not eight) minor children in Australia; that the three eldest had no contact with their father. And so, in terms of the consequences of a visa cancellation for those three elder minor children, there were none shown; and so a determination that cancellation was in the best interests of each of those children, as a group, was open. So far as the three youngest children – the twins and the baby – were concerned, there was also relevant information before the AAT: that Mr Paerau had, or had had, regular contact with them while they were with his former partner; that position, however, was made unclear by reason of the grant of domestic violence orders in 2009 and 2011. It was open to the AAT on this information to have concluded either that this suggested there would be no consequences for those children if Mr Paerau were removed to New Zealand. Bearing in mind, however, that there was little information about the circumstances of the making of the domestic violence orders (whether they were granted without Mr Paerau being heard, and the like), such a determination may have been considered less persuasive. The point is that I consider it was open to the AAT to make determinations about each of the minor children, one way or the other, despite the limited information available to it. The fact that the AAT, after stating at [61] that it could not make the determination one way or the other, then added: “As such, the consideration does not weigh against cancellation and, at best, is neutral”, and thereby purported to regard the relevant consideration and weigh it, is, in my view, confirmation that the AAT recognised that the information before it had relevance and that, unsatisfactory as it was, it could be assessed in terms of the best interests of the child consideration.

75    As explained above, having made a determination about the best interests of the minor children in Australia, that is not the end of the decision-making process. Clause 8(5) of Direction no. 55 specifically provides that in making a final decision, one or more primary considerations may outweigh other primary considerations. Clause 7(1) requires a balancing exercise to be undertaken. Accordingly, if the AAT were to have determined, for argument’s sake, that the cancellation was in the interests of the three older children but was not in the best interests of the three youngest children, the strength of the primary considerations concerning protection of the Australian community and the nature and seriousness of the conduct of Mr Paerau (which in each case the AAT found weighed in favour of cancellation) may possibly have been considered to outweigh the best interests of those three youngest minor children consideration in the particular circumstances of this case; or perhaps not. The AAT disabled itself, however, in my view, from undertaking the required process by the course of decision-making it adopted.

76    I should also observe that, in making a determination about whether cancellation is, or is not, in the best interests of the child, nothing is said in cl 9.3 or elsewhere in Direction no. 55 as to whether there is something in the nature of a presumption that ordinarily it is in the best interests of the child that one of their parents should not, in effect, be removed from their lives. In this regard, Direction no. 55 may be contrasted with Direction no. 41, which was considered by Cowdroy J in Tauaraiki and which was relevantly provided (cl 10.4.1(4)) that:

Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents.

That same statement does not appear in Direction no. 55.

77    Nonetheless, in my view, for the purposes of cl 9.3 of Direction no. 55, a decision-maker making a determination about the best interests of the child will necessarily start from the position that ordinarily it is in a child’s best interests that it remains in close contact with each of its parents. In the context of a visa cancellation, this is because the key question will necessarily be whether the cancellation of the visa of a parent of the child will have “consequences” (to use the language of cl 6.3(6) of Direction no. 55) for a child of the visa holder. There will only be consequences if a presumed optimal relationship between visa holder and child is affected, adversely or otherwise.

78    In assessing whether there is likely to be any relevant consequences so far as the best interests of a relevant child is concerned, the factors listed in cl 9.3(4) will help answer that question. If the nature and duration of the relationship lack real substance or the visa holder has had little contact or is restricted in their contact with a child, whether their conduct will have a negative impact on the child, whether contact can be maintained in other ways, whether there are other people who already fulfil a parental role in relation to the child, whether there is any evidence of abuse or neglect by the visa holder, whether a child has experienced trauma as the result of the visa holder’s conduct as well as the known views of the child (being the various factors listed at (a)-(h) of (4)) will all bear on determining whether there will be consequences for the child and whether cancellation will be in the best interests of the child, or not.

79    In these circumstances, I do not consider it necessary to consider further whether some other objective would be permitted under “Australian law” or by Australia’s international obligations so far as the consideration of best interests of the child is concerned. It would appear, however, that cl 9.3 seeks to honour Australia’s commitment under the Convention on the Rights of the Child.

80    In the result, I take the view that, as restricted as it may have seemed to the AAT to have made a determination on the limited facts of the case, it was open to the AAT in this case to make a determination for the purposes of cl 9.3(1) on the information available to it. While limited, this information was relevant. It may not have permitted a full consideration of all the factors that cl 9.3(4) identified, but it enabled a determination to be made to the extent the factors listed were made relevant by the limited information. If it had done so, it would then have remained necessary for the AAT to conduct a balancing exercise and accord appropriate weight to that determination in the course of weighing it against the strength of other relevant primary considerations considered by it to exist in this case.

81    I do not consider, in these circumstances, it was open to the AAT not to be satisfied, one way or the other, about the best interests of the child consideration, or for his Honour, with respect, in effect to defer to the judgment of the AAT that it could not properly make a determination on the limited evidence before it.

82    Accordingly, I consider the primary judge erred in finding that the failure of the AAT to make a determination required by cl 9.3(1) of Direction no. 55 did not constitute jurisdictional error.

should the matter be remitted to the AAT for reconsideration?

83    While I consider the primary judge, as the AAT, erred in not finding that it was necessary to make a determination in the circumstances of the case as required by cl 9.3(1), a question arises whether, in the circumstances of the case, Mr Paerau is entitled to an order that the matter be remitted to the AAT for reconsideration.

84    Under s 28(1) of the Federal Court of Australia Act 1976 (Cth) this Court on an appeal may:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as in all the circumstances the Court thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought.

85    The proceeding before the primary judge brought by Mr Paerau was pursuant to s 476A(1)(b) of the Act. That section provides that the Federal Court has original jurisdiction in relation to migration decisions if the decision is a privative clause decision or a purported privative clause decision of the AAT on review under s 500. Pursuant to s 476A(2), if the Court has jurisdiction in relation to a migration decision, its jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution.

86    There is ample authority to support the proposition that prerogative writs or constitutional writs under s 75(v) are discretionary remedies and that a court may refuse to grant administrative law remedies even if a substantive ground of review is established. See, for example, Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 106-107; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145; Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134 at [13].

87    Every case must necessarily be judged, so far as the remedy is concerned, on the particular circumstances involved and the discretion to refuse a remedy that may be granted under s 75(v) of the Constitution is not to be exercised lightly, particular where the primary decision-maker is not a court and there is no other avenue of appeal.

88    On the face of it, on the view of the primary issue I have adopted, the matter should be remitted to the AAT for reconsideration. However, in light of the different views adopted by Buchanan J and Perry J on the primary issue, as expressed in the judgments of their Honours that I have read in draft, there is no need for me to form a concluded view on the remittal question. If that had been necessary I would first have asked to hear further from the parties on that question before deciding it.

conclusion

89    For the reasons given above, I would have:

1.    Declared that the primary judge erred in law in finding that the AAT did not commit jurisdictional error when it failed to make the determination required by cl 9.3(1) of Direction no. 55.

2.    Heard further from the parties on the remittal question and the consequential costs of the appeal.

Associate:

Dated:    19 March 2014

REASONS FOR JUDGMENT

PERRY J

1.    BACKGROUND AND IDENTIFICATION OF THE ISSUES

90    On 15 August 2012, a delegate of the first respondent decided to cancel the appellant’s Special Category (Temporary) (Class TY) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). The appellant applied for review of that decision by the Administrative Appeals Tribunal (the Tribunal) under s 500(1)(b) of the Act. On 15 November 2012, the Tribunal affirmed the delegate’s decision in Paerau v Minister for Immigration and Citizenship [2012] AATA 798.

91    Section 501(2) of the Act provides that:

“The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.”

92    The Tribunal found, first, that the appellant had a “substantial criminal record” as defined by s 501(7), and therefore did not pass the “character test” as defined in s 501(6). Section 501(6) provides that a person does not pass the character test “if the person has a substantial criminal record” which is, in turn, defined in s 501(7)(c) to include where the person has been sentenced to a term of imprisonment of 12 months or more. Once, therefore, the Tribunal found that the appellant had been “sentenced to numerous terms of imprisonment for a period of 12 months or more”, it followed that the Tribunal was required to find that the appellant did not pass the character test and to consider whether to cancel the visa in the exercise of its discretion.

93    In exercising that discretion, the Tribunal was required to comply with written directions made by the Minister under s 499 of the Act, being ‘Ministerial Direction No. 55 – Visa refusal and cancellation under s 501’ (Direction No. 55), which commenced on 1 September 2012. That Direction replaced ‘Ministerial Direction No. 41 – Visa refusal and cancellation under s 501’ (Direction No. 41) which was in force when the delegate made his decision. The Tribunal correctly applied the later direction, being required to make the correct and preferable decision at the time that it made its decision: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286.

94    Direction No. 55 requires, among other matters, that the Tribunal make a determination about whether cancellation is or is not in the best interests of minor children and that the Tribunal take that consideration into account in its decision in the manner set out in the Direction.

95    However, while the appellant wished to give oral evidence before the Tribunal about his relationship with his children (and with his family) in Australia, the Tribunal decided that it was unable to permit him to do so by reason of his failure to give written statements on the issue in advance of the hearing in compliance with s 500(6H) and (6J) of the Act. Those provisions provide that, where an application is made for review of a decision under s 501 relating to a person in the migration zone, the Tribunal “must not have regard to any information presented orally in support of the person’s case” or “any document submitted in support of the person’s case” unless the Minister has had a written statement of the information or a copy of the document respectively “at least two business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.” (emphasis added).

96    An appeal against the decision of the Tribunal to a single judge of this Court was dismissed on 31 October 2013 in Paerau v Minister for Immigration and Border Protection [2013] FCA 1119. As in this Court, the appellant’s submissions focused upon the merits of the Tribunal’s decision (reasons of the Court below at [9]). However, while described as an “appeal”, the decision below was in the nature of judicial review only and did not permit the primary judge to revisit the factual merits of the Tribunal’s decision. Rather, if the appellant were to obtain an order setting aside the Tribunal’s decision, it was necessary for him to show that the decision was tainted by jurisdictional error, as the Court below held. In this regard, the primary judge held that the Tribunal had correctly interpreted s 500(6H) of the Act as precluding it from receiving material from the appellant at the hearing relevant to a consideration of the best interests of his children. Nor did the primary judge consider that there was any jurisdictional error in the Tribunal having failed to make the determination required by cl 9.3(1) of Direction No. 55 in circumstances where the Tribunal was satisfied that it could not properly do so (at [30]).

97    Two issues arise on the appeal:

a)    whether the primary judge erred in holding that the Tribunal's decision that it was unable to receive any evidence at the hearing from the appellant on the best interests of his children was based on a proper construction of ss 500(6H) and (6J);

b)    whether the primary judge erred in holding that it was open to the Tribunal to find that, given the paucity of evidence on the issue, it could not make a determination as to where the best interests of the appellant’s children lay and the consideration was at best a neutral factor, or whether the Tribunal was nonetheless required to make a determination on the question.

2.    CONSTRUCTION OF DIRECTION NO. 55

98    Clause 6.3 of Direction No. 55 identifies certain principles which are described in cl 6.2(1) as being “of critical importance” in furthering the objective of “protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.” As such, they are intended to provide a framework within which decision-makers are to approach their task of deciding whether or not to cancel or refuse a person’s visa under s 501 of the Act (cl 6.2(3)). The principles in cl 6.3 include that:

a)    a non-citizen who has committed a serious crime, including of a violent or sexual nature, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(2));

b)    even strong countervailing considerations may be insufficient to justify not cancelling the visa in cases where the criminal offending, and the harm that would be caused if it were repeated, is so serious that any risk of similar conduct in the future is unacceptable (cl 6.3(3)); and

c)    “the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled” (cl 6.3(6)).

99    Clause 7(1) of Direction No. 55 relevantly provides that:

“Informed by the principles in paragraph 6.3 above, a decision-maker:

a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

b)    is required to determine whether the risk of future harm by a non-citizen is unacceptable…”

100    Parts A and B of the Direction identify the “primary” and “other” considerations to be taken into account in deciding respectively whether to cancel a person’s visa or whether to refuse a person’s visa. As such, Part A alone was relevant to the present case.

101    Clause 8(1) of the Direction then provides that a primary or other consideration under the Direction “must” be taken into account where it is “relevant to the individual case”. Clause 8 also directs the manner in which primary considerations are to be weighed against each other and against other considerations. Thus, by virtue of cl 8(4), primary considerations should generally be given greater weight than the other considerations. Furthermore, cl 8(5) provides that one or more primary considerations may outweigh other primary considerations.

102    Four primary considerations are identified in cl 9(1) of which three are relevant or potentially so, namely:

“(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The strength, duration and nature of the person’s ties to Australia;

(c)    The best interests of minor children in Australia;”

103    In providing that “[t]he best interests of minor children in Australia” is a primary consideration, Direction No. 55 is apparently intended, at least in part, to implement Australia’s international obligations under the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force generally 2 September 1990; entered into force for Australia 16 January 1991), notwithstanding that there is no express reference in Direction No. 55 to Australia’s international obligations: cf cl 10(1)(d) and 10.4(1) of Direction No. 41 where the primary consideration was identified (relevantly) as “the best interests of the child, as described in the Convention on the Rights of the Child”. In particular, article 3(1) of the Convention provides that:

“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.”

104    In my view, the requirement that the consideration be “relevant” in cl 8(1) of Direction No. 55 carries with it the implication that there must be some evidence about the consideration that the decision-maker considers is of some probative value. Absent such evidence or a legislative presumption that applies in the absence of contrary evidence, the consideration could not meaningfully be taken into account. This construction accords with the ordinary meaning of “relevant” which includes “legally sufficient, adequate, or pertinent” (Oxford English Dictionary) or “bearing upon or connected with the matter in hand; to the purpose; pertinent” (Macquarie Dictionary).

105    Provided, therefore, that such judgments as to relevance are made by the decision-maker within lawful boundaries, the question as to whether particular evidence can be given any, and, if so what, weight falls within the exclusive province of the administrative decision-maker. Weight may be affected by such matters as provenance (a matter to which cl 8(2) directs attention), credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse.

106    In contrast to the other primary considerations in Direction No. 55, cl 9.3(1) imposes an obligation upon decision-makers to “make a determination about whether cancellation is, or is not, in the best interests of the child” where the child is a minor. Importantly, cl 9.3(3) requires that, where there are two or more minor children, “the best interests of each child should be given individual consideration to the extent that their interests may differ” (emphasis added). As such, it is not sufficient for the decision-maker merely to have regard to the consideration: the determination required by cl 9.3(1) must first be made and made in accordance with the requirements of cl 9.3(3). However, in my view, on an ordinary reading that obligation must be read subject to the requirement in cl 8(1) that the consideration be relevant to the particular case in the sense that I have explained. Thus cl 8(1) imposes the obligation to take primary (and other) considerations into account, defines the circumstances in which that obligation arises (i.e. where “relevant to the individual case”), and directs how the process of weighing up the various considerations is to be undertaken. Clause 9.3, on the other hand, is directed to the question of how the process of forming a view as to the best interests of the child is to be undertaken and those factors which must be considered in considering the best interests of the child. As such, cl 8(1) is the lead provision.

107    This construction also promotes the objectives of sound decision-making on an issue of such vital importance as the interests of the child. As Buchanan J explains in his reasons (which I have had the benefit of reading in draft):

“It is basic, of course, that any determination by the AAT about a matter as fundamental and important as the best interests of a child should be the result of a reasoned assessment of material of sufficient probative value that the determination be a sober and considered one, and not capricious, speculative or merely a guess. Something more than lip service to cl 9.3 of Direction No. 55 is obviously required.”

108    I also note in this regard that the question of relevancy will be informed by the factors identified in cl 9.3(4) which must be considered where relevant, when the decision-maker is considering the best interests of the child. However, while those factors will guide the decision-maker in deciding whether the obligation in cl 9.3(1) is engaged in the first place, cl 9.3(4) itself does not fall to be applied unless and until the obligation in cl 9.3(1) is engaged.

109    Finally, I would emphasise that in so construing the effect of Direction No. 55, I do not mean to suggest that the test of “relevancy” creates a high threshold. To the contrary, it will be in limited circumstances only that the threshold cannot be met and the decision-maker acting within the proper limits of his or her power is unable to make the determination required by cl 9.3(1).

3.    CORRECTNESS OF THE DECISION BELOW

110    The first issue is whether the Court below correctly held that the Tribunal acted in conformity with s 500(6H) and (6J) of the Act when it refused to permit Mr Paerau to give oral evidence about any of his children at the hearing. In so holding, the Court below applied Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at 389-390 [25] (Gray J, with whom RD Nicholson and Stone JJ agreed) which was recently followed by the Full Court in Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534. Specifically, in Goldie, Gray J held at 389-390 [25] that:

“The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).

111    In line with these views, Gray J went on in Goldie to express the view at 391 [31] that the offer by the Minister to give the appellant an adjournment in order to enable the appellant some days to consider further documents placed before the Tribunal by the Minister at the hearing:

“…was probably based on a misunderstanding of the effect of subss (6H) and (6J). Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing.”

112    This passage from Goldie was applied in Uelese where at [33](b) of its reasons, the Full Court held that “it was not open to the AAT to adjourn the hearing to enable the appellant to comply with s 500(6H) for the reasons given in Goldie at [31].”

113    The correctness of these authorities was not a matter put in issue here or in the Court below. Nor is there evidence in any event that the appellant sought an adjournment of the Tribunal hearing. In those circumstances, while there may be some doubt over the correctness of these decisions or at least as to precisely when s 500(6H) and (6J) are engaged, these are not matters that arise in this appeal. It therefore follows that I agree with Justices Buchanan and Barker that there is no error in the decision of the Court below in this respect.

114    I also note that, while there are difficulties in reconciling the results which s 500(6H) and (6J) apparently mandate with article 3 of the Convention on the Rights of the Child, the Parliament is not bound to make law in conformity with Australia’s international obligations: Horta v Commonwealth (1994) 181 CLR 183 at 195 (the Court).

115    As to the second issue, the consequence of applying s 500(6H) and (6J) of the Act in this case was that the only material potentially available to the Tribunal regarding the best interests of each of Mr Paerau’s children was that contained in the material presented by the Minister directed towards different considerations and which mentioned the children only incidentally. As the Tribunal explained at [39] and [40] of its reasons:

“39.    According to a Pre-Release Report from the New South Wales Probation and Parole Service dated 6 August 2012, Mr Paerau has six children (there is a suggestion in another report that he has eight) but had no contact with the three eldest children from previous relationships. He was separated from his partner but had three children from this relationship and had regular contact with those children − twins aged two and a half years old and an eight-month baby.

40.    Little is known about Mr Paerau’s relationship with his children, although included in the documents tendered by the Minister was a Report of a reasonable suspicion of child abuse and neglect dated 2 April 2011. There was no further detail about this report or whether the suspicion referred to in the report was investigated. As such, little could be drawn from this information. However, there was a report provided by the Queensland Police Service recording a temporary domestic violence order made on 24 November 2009 against Mr Paerau in respect of his former partner and four of her children, two of which were the twins from Mr Paerau’s relationship with his partner. It appears that a protection order was made against Mr Paerau in respect of this matter on 23 November 2011.”

116    The critical passages in the Tribunal’s reasons are at [60]-[61] where the Tribunal found that:

“60.    As noted above, there is little evidence about Mr Paerau’s contact with his children, although there appears to be no dispute that the only children with whom Mr Paerau has any regular contact are his three children to his former partner. The nature and extent of this contact is unclear but it is relevant to note that two of those children were the subject of domestic violence orders in 2009 and 2011.

61.    Given the paucity of evidence, I cannot be satisfied about whether it is in the best interests of Mr Paerau’s minor children for Mr Paerau to remain in Australia or whether it would be in their best interests for him to be removed to New Zealand. As such, this consideration does not weigh against cancellation and, at best, is neutral.”

117    While the issue is finely balanced, I consider that the better view is that the Tribunal was saying no more than that it had formed the view that, given the paucity of evidence, it did not have sufficient material to make a determination as to where the best interests of the children lie, bearing in mind that the reasons of the Tribunal must not be construed “minutely and finely with an eye keenly attuned to the perception of error”: see, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In other words, fairly read, I do not consider that the Tribunal was having regard to the primary consideration of the best interests of the minor children in Australia in describing the consideration as “neutral”, but rather intended to restate in a different way that it could not have regard to the consideration at all.

118    So read, the reasons of the Tribunal do not, in my opinion, demonstrate error. Confronted with very limited information, the Tribunal only had material drawn from sentencing remarks and the like presented by the Minister to take into account in assessing other considerations under Direction No. 55. No information at all was received from Mr Paerau by virtue of the operation of s 500(6H) and (6J) of the Act. Nor was any material or evidence provided by the children, or a representative or guardian of the children, although the question of whether s 500(6H) and (6J) would have operated also to preclude them from presenting material relevant to protecting their own interests was not raised in this case. In these circumstances the Tribunal lawfully decided that it was unable to make the determination required by cl 9.3(1) of Direction No. 55. In substance, the finding equates in the language of the Direction to a finding that the consideration was not “relevant”. In effect, the Tribunal decided that it had insufficient probative material available to it to be able to embark upon the determination otherwise required by cl 9.3(1) and (3) and in those circumstances, in my opinion, the precondition to the obligation in cl 9.3(1) (relevancy in the particular case) was not satisfied. So read, this is not a case where the Tribunal made findings on the evidence before it on matters relevant to determining where the best interests of children lie, but failed to complete that process by determining what was in their best interests and taking that into account in balancing that primary consideration against the other considerations: cf Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45 (Robertson J).

119    Finally, even if I am wrong in my reading of the Tribunal’s reasons and the Tribunal did have regard to the consideration of where the best interests of the children lay – a construction which I accept is available – I do not consider that the error is one which would warrant remitting the matter back to the Tribunal in the exercise of the Court’s discretion to grant relief. Once the Tribunal found that, by reason of the paucity of evidence, it could not be satisfied about where the best interests of Mr Paerau’s minor children lay, and that was a finding lawfully open to it, there was nothing further for the Tribunal to do with respect to that consideration. The fact that the Tribunal then found that “[a]s such, this consideration does not weigh against cancellation and, at best, is neutral” had in its terms no impact on the result of the balancing exercise which the Tribunal then undertook in accordance with cl 7(1) of the Direction, and therefore had no impact upon its final decision. The further finding was simply superfluous to the Tribunal’s decision.

4.    CONCLUSION

120    For the reasons given above, I agree with Buchanan J that the appeal should be dismissed with costs.

Associate:

Dated:    19 March 2014