Federal Court of Australia

RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Court of Australia made on 6 April 2022 be set aside and in lieu thereof:

(a)    a writ of certiorari be issued quashing the decision of the second respondent dated 26 August 2021;

(b)    a writ of mandamus directed to the second respondent be issued requiring it to review the decision of the delegate of the first respondent made on 12 April 2021 according to law; and

(c)    the first respondent pay the appellant’s costs of the proceeding.

3.    The first respondent pay the appellant’s costs of the appeal as agreed or as determined by a Registrar of the Court.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant appeals from a decision of a single judge of this Court in RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 328 refusing to grant constitutional writs to quash a decision of the Administrative Appeals Tribunal. The Tribunal’s decision affirmed an earlier decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the appellant’s husband a Partner (Provisional) (Class UF) visa.

2    The visa applicant is a citizen of Lebanon. He is married to the appellant, who is an Australian citizen. The visa applicant and the appellant have three minor children, each of whom is also an Australian citizen. The appellant and the children presently live in Australia. The visa applicant currently resides in Lebanon, although he had previously lived in Australia for a period. He was residing in Lebanon at the time of the Tribunal’s decision, the primary judge’s decision, and at the hearing of this appeal.

3    The primary judge concluded that the Tribunal’s reasons did not evidence any jurisdictional error in the way in which it approached its task and determined to refuse to grant the visa applicant a visa under s 501(1) of the Migration Act 1958 (Cth). His Honour considered that, contrary to the appellant’s argument, the Tribunal did consider the best interests of each child and the extent to which their interests differed, thereby following the procedure required by paragraph 8.3(3) of Ministerial Direction No. 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.

4    The sole ground of appeal advanced is that the primary judge erred by failing to find that the Tribunal had failed to comply with paragraph 8.3(3) of the Direction, and thus failed to comply with s 499(2) of the Act by:

(a)    considering the best interests of the minor children in Australia affected by the decision through the prism of the hypothetical future decisions that might have been made in the event the visa was refused, rather than by reference to whether the best interests of the children would be served by the grant or refusal of the visa; and

(b)    failing to consider the differential interests of the children, which existed whether the visa was granted or refused, and which (the appellant contends) were particularly acute if the visa was refused.

5    Although the appeal was pressed on this basis in the appellant’s written submissions, it was articulated somewhat differently, although still by reference to a failure by the Tribunal to comply with paragraph 8.3(3) of the Direction, in the notice of appeal. The appellant thus sought leave to contest the appeal on the basis of the ground advanced in her written submissions. As will be explained, we have determined that the appellant should have such leave.

6    For the reasons which follow we have concluded that the Tribunal did fail to comply with paragraph 8.3(3) of the Direction and thus with s 499(2) of the Act. In determining otherwise the primary judge also erred. Accordingly the appeal will be allowed, and the decision of the primary judge will be set aside. The matter will be remitted to the Tribunal for hearing and determination according to law.

FACTUAL BACKGROUND

7    As has been mentioned, the appellant and the three children currently reside in Australia. The eldest child has developmental delays and particular needs. The appellant’s parents, relatives and friends predominantly live in Australia.

8    The visa applicant arrived in Australia on 6 May 2013 as an unauthorised maritime arrival. On 8 March 2017, the visa applicant applied for a Safe Haven Enterprise Visa, and was granted a bridging visa while that application was considered.

9    In 2017 the visa applicant was convicted of the offences of recklessly causing injury and contravening a family violence order (the victim being the appellant). He was sentenced to aggregate imprisonment of 42 days, a 12 month community corrections order, and 150 hours of unpaid community work. The visa applicant’s bridging visa was cancelled by reason of his offending, and he was taken into immigration detention.

10    In June 2018 the visa applicant voluntarily left Australia and returned to Lebanon. The appellant and the three children spent time with the visa applicant in Lebanon before returning to Australia in February 2019. On 11 June 2019, while still offshore, the visa applicant applied for the Partner (Provisional) (Class UF) visa.

11    On 12 April 2021 the Minister’s delegate refused to grant the visa on the basis that the visa applicant did not pass the character test described in s 501(6) of the Act. The basis on which the visa applicant failed the character test was his 2017 convictions.

12    On 27 April 2021 the appellant sought merits review of the delegate’s decision in the Tribunal. The appellant was the review applicant in connection with that application because the visa applicant was offshore. Following a hearing, the application was refused on 26 August 2021. The appellant then sought judicial review in the Federal Court on 22 September 2021, and the primary judge dismissed this application on 6 April 2022.

MINISTERIAL DIRECTION NO. 90

13    Before turning to the Tribunal’s reasons and the reasons of the primary judge, it is necessary to have regard to the relevant terms of the Direction, which was given under s 499 of the Act.

14    Paragraph 5.1(4) of the Direction provides as follows:

The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

15    Paragraph 5.2 of the Direction sets out a series of principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501 of the Act, or whether to revoke a mandatory cancellation under s 501CA of the Act. The principles emphasise Australia’s sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or to remain in Australia. Criminal conduct is expressed to be something which may, in many circumstances, deny a non-citizen the privilege of coming to or remaining in Australia.

16    Pursuant to Part 2, section 6 of the Direction, which is entitled “Exercising discretion”, a decision-maker, informed by the principles in paragraph 5.2, must take into account the considerations that are identified in sections 8 and 9 of the Direction, where relevant to the decision.

17    Section 8 of the Direction is entitled “Primary considerations”, the introduction to which provides as follows:

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1)     protection of the Australian community from criminal or other serious conduct;

(2)     whether the conduct engaged in constituted family violence;

(3)     the best interests of minor children in Australia;

(4)     expectations of the Australian community

(Emphasis added)

18    Paragraph 8.3 of the Direction is entitled “Best interests of minor children in Australia affected by the decision”, and provides as follows:

(1)    Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of 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 non-citizen. 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 non-citizen 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 non-citizen'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 non-citizen would have on the child, taking into account the child's or non-citizen'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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

(Emphasis added)

19    Section 9 of the Direction is concerned with “other considerations” and is not presently relevant.

THE TRIBUNAL’S REASONS

20    The appellant sought review in the Tribunal of the delegate’s decision to refuse the visa applicant the visa. It was an important part of the appellant’s case in the Tribunal that the grant of the visa would be in the best interests of the three children.

21    The Tribunal identified in its reasons the principles that were required to be considered pursuant to paragraph 8.3 of the Direction at [112], and said as follows:

[Paragraph] 8.3 of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.

22    The Tribunal then set out (at [113]) each of the factors in paragraph 8.3(4) of the Direction which were to be considered, where relevant.

23    The Tribunal then proceeded (at [114]-[115]) to note the following aspects of the visa applicant’s evidence in light of its obligations pursuant to paragraph 8.3, including:

(a)    the interests of the children in the visa applicant resuming a paternal role in their lives, which was said to be most prominent for the eldest child (at [114]);

(b)    that the appellant had forgiven the visa applicant for his violence against her, allowed him to return home after release from prison, visited him with the children in custodial settings, and allowed the children to talk on the phone with him multiple times each day, thereby enabling him to remain part of the children’s lives (at [115(a)]);

(c)    that the children have a right to a father figure in their lives and his absence deprives them of his physical love and attention which is detrimental to their emotional and psychological wellbeing (at [115(b)]);

(d)    the difficulty for the appellant in raising the children in Australia herself without the visa applicant, and the impact of a visa refusal on the appellant’s mental health (at [115(c)]-[115(d)]);

(e)    the hardship on the appellant and the children if the visa was refused, regardless of whether they remained in Australia or if they relocated to Lebanon (at [115(e)]-[115(f)]);

(f)    the inadequate, unavailable or affordable childcare services in Lebanon and that the eldest child would not receive state funding for his various problems (at [115(f)]); and

(g)    that the appellant would only likely be able to bring the children to Lebanon to see the visa applicant once or twice a year, which would become more difficult once they started school (at [115(g)]).

24    The Tribunal also noted (at [116]) that it had considered expert medical evidence. This included a psychologist report, a clinical psychologist report, a consultant psychologist report, speech pathologist letters and a list of forthcoming NDIS-funding therapy sessions, substantially in relation to the eldest child. The Tribunal also considered the substance of that evidence.

25    The Tribunal then assessed the best interests of the children at [119]-[121] of its reasons. At [119] the Tribunal:

(a)    made findings favourable to the visa applicant regarding his relationship with his children;

(b)    observed that the visa applicant was “concerned” about the appellant’s inability to return to Lebanon, given COVID-19 restrictions and the difficulties confronting her as she raises their three children in Australia without his direct support or any support from her own family, noting that this was particularly so given their eldest child’s development delays and behavioural issues, as well as the general challenges of concurrently raising three children under the age of five; and

(c)    accepted evidence from the appellant that she and the children would be assisted by the visa applicant’s direct contribution to the children’s care.

26    At [120] the Tribunal identified that what the appellant would do if the visa was refused was uncertain, but accepted that, in that instance, the couple faced a “very difficult choice”. The Tribunal observed that if the appellant travelled to Lebanon with the children then some of the concerns about shared parenting and support may be alleviated. However if the appellant remained in Australia without the visa applicant, the Tribunal accepted that the appellant’s mental health may deteriorate and this may adversely affect her parenting and coping ability. In light of this consideration the Tribunal concluded at [121] that:

This primary consideration weighs substantially in favour of granting the visa if the Review Applicant decided to remain in Australia with her children, and less so if she decided to reunite with the Visa Applicant in Lebanon as she previously intended.

27    The Tribunal concluded (at [156]):

Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion granted by s 501(1) of the Act should be exercised to refuse the visa. That is because the primary considerations ‘Protection of the Australian community’, Family violence committed by the non-citizen, and ‘Expectations of the Australian community,’ substantially outweigh the combined weight to be given to the primary consideration Best interests of minor children in Australia and the other countervailing considerations.

28    It followed that the Tribunal affirmed the decision under review.

THE PRIMARY JUDGE’S REASONS

29    In considering whether the Tribunal had correctly applied paragraph 8.3(3) of the Direction and whether it had considered the best interests of each child, including the extent to which their interests may differ, the primary judge found it significant (at [35]) that:

(1)    At Reasons [116(c)] the Tribunal referred to the clinical psychologist Dr Esma Kurt’s assessment of the eldest child and his speech and language delay and behavioural difficulties.

(2)    At Reasons [116(d)] the Tribunal refers to the interests of the eldest child to remain in Australia with access to NDIS entitlements for his developmental needs. The Tribunal refer[red] to Ms Karin Steinhoff’s assessment that the eldest child “would not be offered the level of services that he requires” in Lebanon.

(3)    At Reasons [116(e)] the Tribunal refers to the evidence of speech pathologist Ms Kamelia Dennaoui in which she refers to the eldest child’s “language delays, reduced attention and behavioural difficulties”. Ms Dennaoui noted that the eldest child’s behaviour and language improved while living with his father in Lebanon but deteriorated since COVID-19 prevented the family from returning to Lebanon. Ms Dennaoui opined that the eldest child would benefit from being reunited with his father in Australia.

(4)    At Reason [119] the Tribunal refers to the difficulty the Applicant’s wife will have in raising three children in Australia without the Applicant’s support or any support of their own family. The Tribunal notes that “this is particularly so given their eldest child’s development delays and behavioural issues, as well as the general challenges of concurrently raising three children under the age of five.”

(5)    At Reasons [120] the Tribunal refers to the adverse consequences of leaving behind the comparative advantages and opportunities in Australia which includes the developmental support which the eldest child currently needs and receives from Australia.

(6)    At Reasons [121] the Tribunal complied with the requirements under cl 8.3(1) of Direction 90, it made a finding that refusal is not in the children’s best interests.

30    In these circumstances the primary judge concluded (at [36]) that it was evident from its reasons that the Tribunal had appreciated that the refusal of the visa would operate more harshly on the eldest child as compared to the other two children. Thus his Honour determined that the Tribunal had followed the correct procedure as required by paragraph 8.3(3) of the Direction and had given appropriate and individualised consideration to the best interests of each of the three children pursuant to the Direction.

THE APPEAL TO THIS COURT

Leave to reformulate the ground of appeal

31    As has been mentioned, counsel for the appellant sought leave to reformulate the expression of the appellant’s ground of appeal concerned with the application of paragraph 8.3(3) of the Direction to include the contention that the Tribunal and the primary judge had erred by approaching the consideration of the best interests of the minor children in Australia through the prism of hypothetical future decisions the appellant might make in the event that the visa was refused, rather than by reference to whether the best interests of the children would be served by the grant or refusal of the visa.

32    Although conceding that new grounds may be advanced on appeal if it is expedient in the interests of justice to do so, the Minister contended that leave should be refused on the basis that there had been no explanation for the failure to raise the argument before the primary judge and the proposed reformulation had insufficient merit to warrant the grant of leave. In this regard the Minister contended that the Tribunal considered whether the best interests of the children were served by the grant or refusal of the visa and had regard to the evidence about the visa applicant’s role in the children’s lives, and acknowledged that the children’s best interests favoured the grant of a visa. Whilst the Minister accepted that the Tribunal considered the weight to be given to this consideration on a contingent basis, it was submitted that this was simply a function of the way the case was put to the Tribunal.

33    The appellant submitted that leave should be granted in the interests of justice for the following reasons:

(a)    first, that the argument had always been that the Tribunal did not appropriately apply paragraph 8.3 of the Direction, and that the reformulated ground did not take the Court outside this central argument;

(b)    secondly, that there was no real prejudice to the Minister as the point was purely a legal one and different evidence was not required; and

(c)    thirdly, that if leave were not granted there would be a significant impact on the three children whose interests are the subject of the controversy.

34    The Court indicated to the parties in response to the application for leave that they should deal with the reformulated ground of appeal in their submissions and that the question of whether leave would be granted would be addressed in the Court’s reasons for judgment.

35    Having considered the matter we have determined that it would not be in the interests of justice to deny the appellant the opportunity to press the appeal in the terms advanced in her written submissions. It is the case that the proper application of paragraph 8.3 of the Direction was in issue before the primary judge and remains in issue on the appeal. Indeed, as will be seen, we have formed the view that the Tribunal did not give proper consideration to the best interests of the children affected by the decision in the way required by paragraph 8.3 of the Direction in the manner identified both by the notice of appeal and in the reformulated ground of appeal. It may also be accepted that no real prejudice is occasioned to the Minister in all the circumstances. The appellant will therefore have leave to prosecute the appeal on the basis of the ground as it is expressed in her written submissions.

Was there a failure to consider the best interests of the children by reference to the grant or refusal of the visa?

36    In relation to this aspect of the matter it is the appellant’s case that both paragraphs [119] and [120] of the Tribunal’s reasons refer to, but are not directed to, the interests of the children. It is submitted that paragraph [119] is directed to the interests of the appellant in having support to raise the children, including by reason of the eldest child’s particular needs, and that the Tribunal makes a limited finding as to the interests of the children; namely, that the children would be “assisted by the visa applicant’s direct contribution” to their care. It is further contended by the appellant that paragraph [120] of the Tribunal’s reasons is directed to the choice that the appellant and the visa applicant would be faced with in the event that the decision to refuse the visa was affirmed. It is submitted that paragraph [120] is not directed to whether the best interests of the children would be served by the grant or refusal of the visa.

37    Referring to the finding in paragraph [121] that this primary consideration weighs substantially in favour of granting the visa if the appellant decided to remain in Australia with the children and less so if they all went to Lebanon, the appellant submits that the question of the best interests of the children should not have been viewed by the Tribunal through the prism of what the appellant would do if the visa was refused. The question, rather, was whether the best interests of the children were served by the grant or refusal of the visa. Those considerations, the appellant submits, were to be weighed by reference to the grant or otherwise of the visa, not by hypothetical considerations of how the appellant might act if the visa was refused.

38    The appellant contends that the reasons of the Tribunal demonstrated no intellectual engagement with the question of whether the best interests of the children were served by the grant or refusal of the visa outside of the hypothetical circumstances that might arise if the application was refused, and as the conclusion in paragraph [121] of the Tribunal’s reasons makes clear, the question was assessed by reference to what the appellant might do in the event that the visa was refused. This, it is said, was not the question the Tribunal was required to consider.

39    In support of these submissions the appellant relied on Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ). The appellant in Wan was married to an Australian citizen and they had two minor children together who were also Australian citizens. The appellant had applied for permanent residence on a general spouse visa which was refused by the Minister’s delegate and by the Tribunal because he was not of good character. An appeal to this Court was dismissed at first instance. The Full Court of this Court allowed the appeal and held that the Tribunal had failed to identify what the best interests of the children required and did not treat their best interests as a primary consideration in its determination (at 141-142 [30]-[31]). Furthermore, the Full Court concluded that the Tribunal had analysed the children’s best interests not by reference to the question of whether the grant or refusal of the visa was in their best interests, but by reference to the hypothetical question of what would the parents have done if there were to have been a grant or a refusal of the visa (at 141 [29]). In Wan this was whether the children would accompany their father to China, or remain in Australia with their mother after their father returned to China.

40    The appellant drew the Court’s attention to certain paragraphs of the Full Court’s reasoning in Wan explaining the Tribunal’s failure to consider the best interests of the children, as it should have done. Citing Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, the Full Court in Wan observed:

[23]     In Vaitaiki, Burchett J pointed out (at 236; 618) that the question which the Tribunal was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported. …

…

[25]     In Vaitaiki, Branson J accepted (at 249; 630) that the reasons for decision of the Tribunal were to be understood on the basis that the Tribunal did purport to act in conformity with the Convention. However, her Honour observed (at 250; 631):

"If the reasons for decision of the AAT are considered on the above basis, it is noteworthy that nowhere do they seek to identify what would, in the circumstances before the AA T, be the result that would overall be conducive to the best interests of the children. At best they give consideration to the children's best interests in a limited way within a restricted framework. For example, the AAT concluded that the younger children's interests in a 'continuing close and daily relationship with their father' would be served by his being deported in circumstances in which they would accompany him to Tonga. It reached this conclusion without, apparently, having regard to the fact that by so accompanying him they would have to leave the community in which they had lived all of their respective lives, start a new life in a new land, and lose the many benefits available to them as citizens of Australia. As to the older children, the AA T concluded that their best interests would be served by remaining in Australia with their mother, should their father be deported. It reached this conclusion without, apparently, having regard to the break-up of their family unit which would flow from their father's deportation, with consequential restrictions on their subsequent contact with their father and half-siblings and a likely diminution in their father's capacity to influence and guide them.

I conclude, in broad agreement with Burchett J, that although the AAT purported to act on the basis that the best interests of the appellant's children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children's best interests: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 414; 121 ALR 436 at 443 per Black CJ; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J; Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96."

[26]    [As to the written reasons of the Tribunal]…[o]f particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan's application for a visa. That this is the starting point for the Tribunal's consideration follows from Teoh and from Vaitaiki. The Tribunal did not refer to either of these cases.

…

[28 ]     In giving consideration, as it had done in Vaitaiki, to what the children might do if their father were required to cease living in Australia, the Tribunal was not undertaking an inherently inappropriate task. Such consideration was capable of assisting the Tribunal in determining whether the strength of any other consideration or considerations outweighed the best interests of the children. However, it was not a useful thing to do without the Tribunal having first identified what the best interests of the children indicated should be decided with respect to Mr Wan's visa application.

(Emphasis added)

41    In substance the appellant submits that, as was the case in Wan (albeit in Wan the obligation to consider the children’s best interests stemmed from the United Nations Convention on the Rights of the Child 1990 and the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273), the Tribunal did not make a proper determination for the purposes of paragraph 8.3(1) of the Direction of how the best interests of the children would be affected by the decision whether to grant or refuse the visa. Indeed, the appellant’s position is that the Tribunal’s analysis did not come close to engaging with the best interests of the children. No finding is made as to whether the best interests of the children would support the grant of the visa.

42    The Minister submits, by way of response, that due consideration was given by the Tribunal to whether the best interests of the children were served by the grant of the visa, having regard to the evidence about the visa applicant’s role in the children’s lives. It is submitted that this was an acknowledgment that the children’s best interests favoured the grant of the visa, which was a factor that the Tribunal considered weighed in favour of granting the visa.

43    Insofar as the Tribunal considered the weight to be given to this construction on a contingent basis (whether the appellant remained in Australia or returned to Lebanon), the Minister’s submission was, in effect, that nothing turned on this in circumstances where there was some uncertainty about where the appellant and the children might live if the visa was refused. The Minister submits that the Tribunal was only required to give consideration to this claim. It was not required to “resolve” (as to which see EXT20 v Minister for Home Affairs [2022] FCAFC 72 at [120]-[121] (Wigney J) and at [168] (Snaden J)) any uncertainty presented by the relevant evidence and “make actual findings of fact as an adjudication of all material claims made by the applicant”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at 407 [14]-[15] (Keane, Gordon, Edelman, Steward and Gleeson JJ). Nor was it inappropriate, the Minister submits, for the Tribunal to assess the weight to be given to the children’s best interests by reference to what the appellant and her children might have decided to do: Wan at 140-141 [28]; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 at 211-212 [66] (Derrington J) and 241-242 [182]-[191] (O’Bryan J, with whom Katzmann J agreed at 191 [1]).

44    We accept the appellant’s submission that the best interests of the children were not to be viewed through the prism of what the appellant would do if the visa was refused. Paragraph 8.3(1) of the Direction required the Tribunal to engage with the question of whether the children’s best interests were served by the grant or refusal of the visa, not by hypothetical considerations of how the appellant might act if the visa was refused. The Tribunal needed to make a determination in relation to this question. Paragraph 8.3(1) of the Direction constituted a mandatory relevant consideration. The use of the word “must” indicates that the Tribunal was positively required to make a determination about whether refusal under s 501 of the Act was, or was not, in the best interests of children affected by the decision.

45    It is no answer for the Minister to say that the Tribunal has made such a determination by accepting (as it apparently does in the final sentence of paragraph [119]) the appellant’s evidence that she and the children would be assisted by the visa applicant’s direct contribution to the children’s care. We accept that, at most, this finding could be said to have dealt with the best interests of the children in a way that is neutral to the question of whether or not the visa should have been granted.

46    Notwithstanding the Tribunal’s references to various matters concerning the children, it failed to make a determination about whether refusal of the visa under s 501 of the Act was, or was not, in the best interests of the children. The final sentence in paragraph [119], even when read with paragraph [121] as the Minister submits it should be, cannot fairly be taken to have constituted such a determination. For these reasons the first aspect of the appellant’s ground of appeal succeeds.

Was there a failure to give individual consideration to the differing interests of the children?

47    By this second aspect of the appellant’s ground of appeal the appellant contends that the Tribunal and the primary judge erred by failing to find that the Tribunal failed to comply with paragraph 8.3(3) of the Direction (and thus with s 499(2) of the Act) by not considering the differential interests of the children. It is submitted that the reasons of the Tribunal do not reveal any consideration of the differential interests of the children and that there was not a separate assessment or determination in relation to the particular interest of the eldest child.

48    Having determined that the first aspect of ground one succeeds, it is, of course, strictly unnecessary to determine this issue also: Boensch v Pascoe (2019) 268 CLR 593 at 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ) and 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ). Nonetheless, as we accept that the Tribunal did fail to give individual consideration to the extent that the interests of the children may differ in the decision to grant or refuse the visa, it is appropriate that we say something briefly about this.

49    The appellant contends that the difference between the interests of the children is stark. The following evidence, as set out in the Tribunal’s reasons, makes it plain that this is so:

(a)    the eldest child suffered from “language delays, reduced attention, and behavioural difficulties” for which he receives government funded support and assistance in Australia (at [115(f)]);

(b)    the family could not afford to pay for medical care for the eldest child in Lebanon or Australia (at [115(f)]);

(c)    a speech pathologist treating the eldest child opined that the child would benefit from being reunited with the visa applicant in Australia, particularly given that he was about to commence school (at [116(e)]);

(d)    as the two younger children had spent considerable time in Lebanon as part of a cohesive family unit it may be inferred that they could reasonably adjust to living in Lebanon permanently, and although there was no evidence that the younger children would not thrive in Australia, they would do so without the presence of their father with whom they have a loving and close relationship (at [115]);

(e)    the eldest child could not obtain in Lebanon the care provided to him in Australia, and if the family reunited in Lebanon the eldest child would have the considerable benefit of having his father, however, he would lose access to the medical care he needs, with a probable negative impact on his future development and capacity to achieve his maximum potential in life (at [115(f)] and [120]); and

(f)    if the family remains in Australia without the presence of the visa applicant, the eldest child would continue to have access to the government funded medical care to which he needs and is entitled but lose the ability to have close contact with his father (at [155(f)] and [120]).

50    The appellant accepts that the Tribunal understood its obligation to have regard to the best interests of the children, including where those interests differed. However, it is contended that the Tribunal’s reasoning did not weigh the best interests of the children by reference to the individual interests of each child to the extent that they diverged. It is submitted that although all the children’s best interests would be served by the grant of a visa, the eldest child’s best interests were significantly more affected by this outcome. And, while the children’s best interests were all harmed by the refusal of the visa, the eldest child’s best interests were far more significantly harmed by the refusal.

51    Whilst the appellant accepts that the Tribunal was “aware” of the circumstances of the eldest child, it is submitted that there was no assessment in relation to the eldest child’s interest in particular, nor any determination of any of the children’s interests, and this is indicative of error on the part of the Tribunal which was material.

52    The Minister contends that there was no relevant failure by the Tribunal for the following reasons:

(a)    the Tribunal was not required to consider whether the children’s best interests might diverge because no such argument was put – rather, the appellant’s claim before the Tribunal was that the refusal of the visa would operate more harshly on the eldest child, whatever the family decided to do;

(b)    in any event, the primary judge was correct to hold that the Tribunal did consider the best interests of the each child and considered the extent to which their interests may differ; and

(c)    the Tribunal was aware of the adverse impact on the eldest child in comparison to the other two children remaining in Australia without the visa applicant, noting that the Tribunal referred to:

(i)    the eldest child’s developmental delays and behavioural issues;

(ii)    evidence from medical professionals to the effect that the eldest child was being adversely impacted by separation from his father; and

(iii)    the developmental support the eldest child needs and receives in Australia.

53    It is the Minister’s position that the Tribunal recognised that the impact of refusing the visa would operate more harshly on the eldest child, and that there had been due compliance with paragraph 8.3(3) of the Direction.

54    We accept, for the reasons submitted by the appellant, that although the Tribunal appears to have recognised that the best interests of each child needed to be given individual consideration, there was no explicit consideration of the children’s differential interests. Insofar as the Tribunal noted the particular challenges facing the eldest child, this was insufficient to constitute compliance with the Direction in the absence of a determination about whether the grant or refusal of the visa was, or was not, in the best interests of the children having regard to their differential interests.

55    For these reasons, the second aspect of the appellant’s ground of appeal also succeeds.

DISPOSITION

56    The appeal will thus be allowed with costs. The orders made by the primary judge on 6 April 2022 will be set aside and in lieu thereof it will be ordered that:

(a)    a writ of certiorari be issued quashing the decision of the second respondent dated 26 August 2021;

(b)    a writ of mandamus directed to the second respondent be issued requiring it to review the decision of the delegate of the first respondent made on 12 April 2021 according to law; and

(c)    the first respondent pay the appellant’s costs of the proceeding.

Associate:

Dated:    14 December 2022