FEDERAL COURT OF AUSTRALIA

Suleyman v Minister for Immigration & Multicultural Affairs [2000] FCA 610

MIGRATION – application for review of a decision of the Refugee Review Tribunal – the Tribunal cancelled applicant’s protection visa – whether the matter before the Tribunal was an “action concerning children” which would invoke a legitimate expectation that the best interests of the child be a primary consideration – there is a spectrum of “actions concerning children” depending on the impact on the child – whether the Tribunal treated the best interests of the applicant’s child as a primary consideration – a legitimate expectation raises procedural ratheer than substantive obligations and failing to comply is not reviewable by the Federal Court under s 476(2) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss 101, 107, 108, 109 and 476

Migration Regulations 1994 reg 2.41

United Nations Convention on the Rights of the Child Art 3 and Art 9

Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 followed

Minister for Immigration and Multicultural Affairs v Baker (1997) 73 FCR 187 referred to

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 referred to

ZAKARIYA HARUN SULEYMAN (FARAH) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 32 of 2000

MATHEWS J

12 MAY 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondents costs.

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

REASONS FOR JUDGMENT

Background

1                     The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the respondent’s delegate to cancel the applicant’s protection visa pursuant to s 109 of the Migration Act 1958 (Cth) (“the Act”).

2                     The factual circumstances giving rise to this application are quite unusual.  The applicant first arrived in Australia on 20 February 1993 under the name Abdi-Rashid Hassan Farah.  He gave his date of birth as 30 December 1970 and his country of citizenship as Kenya.  On 14 December 1993 he applied for refugee status (later treated as an application for a protection visa) under that name, claiming that, as an ethnic Somali living in Kenya, he had a well-founded fear of persecution in that country.  On 26 October 1994 the application was rejected by the Minister’s delegate, who was not satisfied that the applicant’s claims were sufficient to establish a well-founded fear of persecution in Kenya for a Convention reason.  On 1 November 1994 the applicant applied to the Tribunal for review of this decision.  Eleven days later, on 12 November 1994, the applicant flew from Sydney to Melbourne on a Qantas international flight, thus gaining access to the international arrivals area at Melbourne airport.  The cleaners found him there in the early hours of the next morning, and alerted the immigration authorities who proceeded to interview him.  He told them that he was Zakariya Harun Suleyman, born on 31 January 1971 and that was a Somali citizen, although he had been living in Kenya for six months before leaving for Australia.  He had paid $4,000 in Nairobi to obtain a false passport and a ticket to Australia.  He had no idea, he said, what plane he had travelled on or what countries he had travelled through on his way to Australia.

3                     The applicant was taken into immigration detention in Victoria.  On 21 November 1994 he applied for a protection visa under the name Zakariya Harun Suleyman.  He described being tortured and persecuted in Somalia and said that he could not return there because of the lawlessness and indiscriminate killings which the Somali Government was unable to prevent.

4                     It is apparent from the records that the departmental officer dealing with the applicant’s claim had significant concerns as to his bona fides.  Enquiries were made of a number of countries in an attempt to confirm his identity.  In the meantime, the applicant was kept in immigration detention.  In March 1995 he complained to the departmental officer that he had been kept in detention for too long.  In April of that year, a firm of solicitors wrote to the Department on his behalf threatening to commence mandamus proceedings to compel the making of a decision in his case.  The applicant also enlisted the Commonwealth Ombudsman’s support in seeking an early resolution of his status.  Eventually, on 5 June 1995, a decision was made in his case and he was granted a protection visa in the name of Zakariya Suleyman.  He was then released from detention.

5                     In October 1995 the Department was informed that Nairobi fingerprint records identified Zakariya Suleyman as Abdi-Rashid Hassan Farah.  The applicant was interviewed, in the presence of his solicitor, by a departmental officer who reported that “there has been very little cooperation”.

6                     A little surprisingly in the circumstances, the applicant still proceeded with his application for RRT review of the original decision not to grant him a protection visa in the name of Abdi-Rashid Hassan Farah.  The applicant gave evidence before the Tribunal in those proceedings and called a witness who alleged discrimination against Somali Kenyans by the Kenyan authorities.  The Tribunal was aware by then that the applicant had subsequently been granted a protection visa under the name of Zakariya Suleyman.  Not surprisingly, the Tribunal found that the applicant lacked credibility.  It affirmed the delegate’s decision not to grant him a protection visa.

7                     In the meantime, on 9 July 1994, the applicant had married an Australian citizen, Rosalie Bannerman.  They had a daughter, Sabran, who was born on 16 May 1995.  By that time the applicant and his wife were separated.  They have since divorced.

8                     In due course, the applicant was charged with imposing on the Commonwealth in that he untruly represented himself to be Zakariya Suleyman and eligible for a protection visa.  He was convicted and sentenced to a term of imprisonment.  He appealed against the severity of sentence and on 22 April 1998 the Sydney District Court reduced his sentence to one of imprisonment for three months, to be deferred upon the applicant entering into a recognisance to be of good behaviour for two years.

9                     On 10 November 1998 an officer of the Department wrote to the applicant informing him that his protection visa was liable to be cancelled because incorrect information had been provided in the application form.  He was asked to say why his visa should not be cancelled.  By letter dated 18 March 1999 a firm of solicitors responded on the applicant’s behalf.  They conceded that the applicant did not comply with the Migration Act in his application for a protection visa in the name of Zakariya Suleyman.  They requested that the applicant’s visa not be cancelled for a number of reasons.  One of them related to the applicant’s daughter who, according to the letter, the applicant saw each week.

10                  On 29 April 1999 two departmental officers attended at the home of the applicant’s ex-wife.  The purpose of the visit was to establish the extent of the applicant’s contact with his daughter in order to assess the possible impact on the child of the cancellation of the applicant’s visa.  This is a crucial question in the present proceedings, as the sole ground of review relied upon by the applicant is that the Tribunal wrongly failed to treat the best interests of his child as a primary consideration.  Accordingly I shall quote the whole of the substantive part of the report:

“Ms Bannerman conveyed the following:

·        At the time Sabran was born Ms Bannerman and Mr Suleyman aka Farah were separated.

·        Up until the first four months of Sabran’s birth Mr Suleyman aka Farah would visit his daughter approximately twice a week.  He appeared interested and fatherly towards his daughter.

·        When Sabran was approximately 1 year old Ms Bannerman remarried.  For a period of approximately six months Mr Suleyman aka Farah would visit his daughter weekly. At this time Mr Suleyman aka Farah did not pay any child support, but would occasionally give a small amount of money ($40).

·        In 1997 for approximately one year Mr Suleyman aka Farah did not see or contact his daughter.

·        Ms Bannerman claims Mr Suleyman aka Farah was ordered by the Child Support Agency to pay financial support for Sabran.  According to Ms Bannerman, Mr Suleyman aka Farah still does not formerly pay child support.

·        Ms Bannerman claims she was informed by members of the Somali community that Mr Suleyman aka Farah returned to visit his family in Africa.  Mr Bannerman claims she was not aware that Mr Suleyman aka Farah had left Australia during the four months there was no contact with him.  (Department records reveal Mr Suleyman aka Farah departed Australia on 10 November 1998 and returned on 7 March 1999.)

·        Ms Bannerman claims approximately eight weeks ago Mr Suleyman aka Farah arrived at her home to see his daughter, Sabran.  Suleyman aka Farah advises that he will come the next day to take Sabran overnight.  According to Ms Bannerman she did not want to stop Mr Suleyman aka Farah seeing the child, as he is the father.  Mr Suleyman aka Farah arrived the next day.  According to Ms Bannerman the child was physically distressed and did not want to leave her (Ms Bannerman).  Ms Bannerman receives a telephone call, 7.00 am the next morning from Mr Suleyman aka Farah apparently advising Sabran had not stopped crying from the time he had taken her and that the child wants to come home.  Mr Suleyman aka Farah returned Sabran and advised that he will visit Sabran the following week.  Ms Bannerman states they have not seen him since (8 weeks ago).

·        According to Ms Bannerman this is how Sabran perceives her father:

¨      Sabran sees him as a stranger and rejects any contact with him.

¨      Sabran does not wish to call him ‘daddy’.

¨      Sabran has a five month old half brother, Abdalah (Ms Bannerman married another man after Mr Suleyman aka Farah, and has since divorced.)  She calls the father of Abdalah “Baba” which apparently means “father” in Somali.  Apparently Sabran is close to “Baba” and on a weekly basis spends time with him also when he visits or takes his son out for the day/weekend.

In general Ms Bannerman wanted to advise that Mr Suleyman aka Farah is from one of the majority clans, Ogaden.  She believes Mr Suleyman aka Farah does not take any genuine interest in his daughter.  From the age of two he has had limited contact with Sabran.  He is not interested in her welfare, he has never provided food for the child, has only paid child support under duress and she believes his only interest of late in seeing Sabran was of an immigration interest and to maintain a good father image to the Somali community in Auburn.”

11                  On 12 May 1999 the applicant’s visa was cancelled pursuant to s 109 of the Act.  On 10 June 1999 Ms Bannerman wrote a letter to the Department in the following terms:

“To Whom it may Concern

The purpose of my letter to you is to outline my concerns regarding the cancellation of Mr Abdulrashid Hassan Farah’s permanent residency visa.

I am the mother of Mr Farah’s daughter, Sabran Farah, born 16^th of May 1995.

Mr Farah and I have been separated since December 1995.

Approximatley[sic] three weeks ago two officers came to my home in Yagoona without warning and proceeded to ask many questions regarding Mr Farah’s relationship with his daughter, Sabran.

I answered all the questions they asked me to the best of my ability, at the time and currently I am under medication due to a severe nervous disorder.

At the time of the interrogation by the 2 officers I spoke rather angrily and irrationally, as I resented Mr Farah involving me in any way with his affairs.  I had no idea of what was to follow the incident with the two officers.

With hindsight, and a thorough understanding of the possible repercussions in years to come from Sabran’s realisation that she has no father like ‘the other kids do’, and the questions she would likely ask the people around her, including me, as to what happened to him.

I would not like it said to her that Immigration had interviewed Mummy and about a week later Daddy’s legal status was taken away from him and he was placed in detention!

My position is that although Mr Farah and I have no relationship I believe that his daughter, Sabran has an undeniable right to establish a relationship with her father, should she choose to do so, now or in years to come.

I am quite happy to answer any further questions or to follow up the statements I have made in this letter”

12                  On 3 June 1999 the applicant applied to the Tribunal for review of the delegate’s decision.  The application contained the following hand-written statement:

“In the last year I have established strong ties in this country of which my four year old daughter is the prime importance.

In their decision to cancel my visa the immigration have vaguely referred to the rights of my child which in their opinion is insignificant.  I disagree. Every Australian child has a right to have a father and my daughter is no exception.  To suggest otherwise is an affront both to my child and myself.  This decision is no doubt contrary to Australia’s legal and moral obligations under the United Nation’s Convention on the rights of the child.

I am not going to abandon my child whom I wish to take an important role in the development of her welfare and future.”

13                  On 23 December 1999 the Tribunal confirmed the respondent’s decision to cancel the applicant’s protection visa.  The applicant now seeks review of this decision.

Legislative Background

14                  Section 101 of the Act requires that information contained in visa applications be correct:

101  Visa applications to be correct

A non-citizen must fill in his or her application form in such a way that:

(a)   all questions on it are answered; and

(b)   no incorrect answers are given.

15                  Section 107 of the Act requires the Minister to give notice to a person whom he considers did not comply with, inter alia, s 101.  Section 107, as relevant here, provides as follows:

107  Notice of incorrect applications

 (1)    If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)      giving particulars of the possible non-compliance; and

(b)      stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)       if the holder disputes that there was non-compliance; and

(A)            shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance-shows cause why the visa should not be cancelled; or

(ii)   if the holder disputes that there was non-compliance:

(A) give reasons for the non-compliance; and

(B) shows cause why the visa should not be cancelled;

………

(2)        If the visa holder responds to the notice, he or she must do so without making  any incorrect statement.

16                  The Minister complied with s 107 in its notice to the applicant dated 10 November 1998.

17                  Section 108 requires the Minister to decide whether there has been a non-compliance by the visa holder.  That section provides as follows:

108  Decision about non-compliance

The Minister is to:

(a)               consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)               decide whether there was non-compliance by the visa holder in the way described in the notice.

18                  Section 109 empowers the Minister to cancel a visa on the ground of the visa holder’s non-compliance.  That section is in the following terms:

109  Cancellation of visa if information incorrect

(1) The Minister, after:

(a)         deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)         considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)         having regard to any prescribed circumstances;

may cancel the visa.

(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

19                  Regulation 2.41 of the Migration Regulations 1994 (“the Regulations”) sets out the “prescribed circumstances” to which the Minister is required to have regard under s 109(1)(c).

2.41  Whether to cancel visa-incorrect information or bogus document (Act, s 109(1)(c))

For the purposes of paragraph 109(1) (c) of the Act, the following circumstances are prescribed:

“(a)     the correct information;

(b)       the content of the genuine document (if any);

(c)        the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information …;

(d)       the circumstances in which the non-compliance occurred;

(e)        the present circumstances of the visa holder;

(f)        the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g)       any other instances of non-compliance by the visa holder known to the Minister;

(h)       the time that has elapsed since the non-compliance;

(j)        any breaches of the law since the non-compliance and the seriousness of those breaches;

(k)       any contribution made by the holder to the community.”

Issues in this case

20                  In his amended application to this Court, the applicant relied on one ground only, namely that the Tribunal failed to interpret s 109 of the Act and reg 2.41 of the Regulations in conformity with Australia’s obligations under the United Nations Convention on the Rights of the Child (“the Convention”) in that it failed to treat the best interests of the applicant’s daughter as a primary consideration.  This, it is claimed, was an error of law under s 476(1)(e) of the Act.  Section 476, as relevant here, provides as follows:

476  Application for review

(1)    Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

     ……

(e)   that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

     ……

(2)    The following are not grounds upon which an application may be made under subsection (1):

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)     that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

21                  It was submitted by Mr Karp, who appeared for the applicant, that the Tribunal was obliged to treat the best interests of the applicant’s daughter as a primary consideration pursuant to the principles enunciated by the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 (“Teoh”).  This it failed to do.  Mr Beech-Jones, who represented the respondent, disputed that there had been any failure to comply with Teoh in the circumstances of this case.  Moreover, he submitted that even if the Tribunal had failed to act in accordance with the Convention, this could amount only to a failure to afford procedural fairness, which, under s 476(2) of the Act, is not an available ground of review to this Court.

22                  Before discussing these issues it is apposite to quote those parts of the Convention which are relied upon by the applicant.  They are contained in Articles 3 and 9.  As relevant here, those articles provide as follows:

Article 3

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

Article 9

1.       States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, except when the competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  Such determination many be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2.      In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3.      States Parties shall respect the right of the child who is separated from one or both parents to maintain person relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

23                  It is also appropriate at this stage to examine those parts of the Tribunal’s decision which are relevant to this issue.  The Tribunal, in its decision, gave a detailed account of the circumstances which preceded the applicant’s application for a protection visa in the name of Zakariya Suleyman, including the fact that he had an outstanding application under a different identity.  The applicant had attended before the Tribunal and had attempted to explain why he had sought a protection visa under a false name (Suleyman) whilst review proceedings were pending in relation to his earlier application.  He admitted that in his second application he had fabricated an identity and history which had no bearing upon his real identity or history other than that he was an ethnic Somali.  The Tribunal therefore found that there had been a breach of s 101 of the Act.  It went on to discuss the various circumstances which were required to be considered under reg 2.41.  It did so in the following terms:

“In relation to these matters (and using the same numbering as the regulation):

(a)    the correct information is that the applicant is another person with a different history whose claims had previously been considered by the Refugee Review Tribunal and the Department decision affirmed;

(b)    …

(c)    the likely effect of the correct information ‘on a decision to grant a visa’ is that the application in the name of SULEYMAN would not have been granted, further the applicant’s true story had already been assessed by the Department and the Tribunal and the decision affirmed.  There was no appeal against that decision.

(d)    The circumstances of the non-compliance were that the applicant had applied to the Refugee Review Tribunal for review of his application in the name of Farah, and 12 days later he set about engaging in a deception by which he boarded a flight, fabricated a name and story and was eventually granted a visa (which is the subject of the current application for review).  His adviser in their letter of 18 March 1999 gives as the reason for the non-compliance that the applicant was fearful of being deported ‘and returned to his country where he feared persecutions’, this is the reason he also gave the Tribunal Member Mr Bruce Haigh at the hearing of the review of the applicant in the name of Farah.  He also told the Tribunal at that hearing that he was running out of money.

(e)    The present circumstances of the applicant are that he has been married to an Australian citizen (though is no longer), has a young child who is an Australian citizen, he does not work and is engaged in some community activities, as detailed above.

(f)     The subsequent behaviour of the applicant in regard to his obligations under Subdivision C of Division 3 of Part 2 are that he has responded to the notification.

(g)    There are no other instances of non-compliance known to the Minister as detailed in the Department records nor as advised by the applicant.

(h)    The non-compliance occurred from November 1994 through to June 1995 and after in that for a period he continued to use the name Suleyman and travel on that name out of Australia.

(i)      …

(j)     There are no known breaches of the law, as detailed in the Department decision.

(k)    The applicant has been unemployed for most of his period in Australia, he has been involved in two community organisations.”

24                  The Tribunal recognised that its considerations were not confined to matters set out in reg 2.41 (Minister for Immigration and Multicultural Affairs v Baker (1997) 73 FCR 187 at 194).  It noted that the applicant had entered into “an elaborate plan” to mislead the Department.  It concluded that little weight could be attached to his evidence and that he could not be given the benefit of the doubt in relation to any matter.  The Tribunal continued:

“Whilst there is no weighting in the list of prescribed circumstances, it is apparent in the particular circumstances in this case that the correct information, and its likely effect on a decision to grant a visa is crucial.  The correct information is that the applicant is Abdi-Rashid Hassan FARAH a person who arrived in Australia as a student from Kenya.  If that correct information was known the visa under the name of SULEYMAN would not have been granted.” (emphasis in original)

25                  The Tribunal concluded its decision in the following terms:

“I have also considered the applicant’s claim that significant weight should be placed on the fact that he has a young daughter who is a citizen of Australia.  The applicant does not live with her though does, on his evidence which I accept have regular contact with her, and he contributes to her upkeep if he is able.

Having taken all of these matters into account it is clear that the breach by the applicant is serious and was intentional, whist I appreciate that he has said the reason for this was he feared deportation and was running out of money.  I do not accept this as either reasonable nor true.  He had just applied for review to the Refugee Review Tribunal and on that basis alone had the guarantees afforded by the review and subsequent appeal processes.  I accept that the applicant has been married to an Australian citizen and that he has a young child whom he wishes to carry on an involvement with and that the child’s best interests would be served if the father was to remain in Australia.  I also accept that he has been involved in two charity organisations which assist the Somali community overseas.  Apart from this he has been largely unemployed and has presented no other evidence of any significant involvement in or contribution to the Australian community.  Despite his being unemployed he was able to travel overseas late in 1998 for a four month holiday to the USA, Europe and Africa.  Having taken all of these matters into account I consider that the applicant’s 866 visa should be cancelled.”

Discussion of issues

26                  In order to succeed in these proceedings the applicant must show:

1.                  that there was a legitimate expectation that the Tribunal would treat the best interests of the applicant’s daughter as a primary consideration;

2.                  that it failed to do so; and

3.                  that this failure amounted to an error of law under s 476(1)(e) of the Act.

I shall deal with each of these issues.

27                  The first question depends upon whether Articles 3 or 9 of the Convention applied to the proceedings before the Tribunal, a matter to which I now turn.

Did the Convention apply to the Tribunal’s proceedings?

28                  Mr Karp submitted that both Articles 3.1 and 9.1 of the Convention applied to the proceedings before the Tribunal and both of them should have been invoked by the Tribunal in its decision.

29                  I shall be discussing shortly whether the Tribunal’s decision constituted “an action concerning children” so as to invoke the provisions of Article 3.  It is Article 3, in my opinion, which must be the focus of discussion in this case.  For in my view Article 9.1 cannot apply to the applicant’s circumstances.  It is apparent from its terms that this Article is designed to protect a child from being physically separated from the household of its parents, except in accordance with the paragraph.  In other words, Article 9.1 is concerned with the breaking up of households. It cannot apply where, as here, the applicant’s child is already living separately from him.

30                  On the other hand, paragraph 3 of Article 9 might well apply in this case.  This provision requires State parties to “respect” the right of a child who is already separated from a parent to maintain personal relations and direct contact with that parent, except if it is contrary to the child’s best interests.  But this provision requires no more than that the right of the child in this regard be “respected”. The obligation it imposes is not a heavy one.  It is considerably less onerous than the requirement, in Article 3(1), that the best interests of a concerned child be “a primary consideration”. 

31                  It could not be suggested, in my view, that the Tribunal in this case failed to “respect” the rights of the applicant’s daughter to maintain personal relations and direct contact with her father.  That matter was clearly adverted by the Tribunal but was taken to be outweighed by the strong countervailing considerations.

32                  The focus thus returns to Article 3.  Paragraph 1, on which the applicant relies, is said to apply in “all actions concerning children”.  This raises the question as to whether the Tribunal’s decision was an action “concerning children”.  The Tribunal made no express finding on this matter, although it appeared to proceed upon the assumption that the Convention did apply.  Nevertheless, it is a matter which merits discussion here.

33                 The circumstances in Teoh were very different from those which apply in this case as regards the impact of the decision on children.  Mr Teoh and his wife had six children, all aged under ten, who were living in the family home.  Mr Teoh’s wife was a drug addict.  Mr Teoh was not only the breadwinner for the family but he provided emotional and physical support for his wife and children.  There was a serious risk that the family unit would collapse if Mr Teoh were removed from it.  Mr Teoh had been convicted of offences involving the importation and possession of heroin.  The Minister’s delegate ordered that he be deported from Australia, and the Immigration Review Panel rejected an application for reconsideration.  Mr Teoh appealed to the Federal Court and then to the High Court.  The majority of the High Court found that ratification of the Convention by Australia gave rise to a legitimate expectation that in actions concerning children, administrative decision-makers would act in conformity with the Convention and would treat the best interests of the children as “a primary consideration”. In Mr Teoh’s case the majority of the High Court found that he had been denied procedural fairness in that he had not been afforded the opportunity to present a case against a decision which was inconsistent with that legitimate expectation.

34                 Each of the majority judges in Teoh had something to say about what might constitute an “action concerning children”.  Mason CJ and Deane J made the following observations at p 289:

“The crucial question is whether the decision was an ‘action concerning children’.  It is clear enough that the decision was an ‘action’ in the relevant sense of that term, but was the decision an action ‘concerning children’?  The ordinary meaning of ‘concerning’ is ‘regarding, touching, in reference or relation to; about’.  The appellant argues that the decision, thought it affects the children, does not touch or relate to them.  That, in our view, is an unduly narrow reading of the provision, particularly when regard is had to the grounds advanced in support of the application and the reasons given for its rejection, namely that the respondent’s bad character outweighed the compassionate considerations arising from the effect that separation would have on the family unit, notably the young children.  A broad reading and application of the provisions in Art 3, one which gives to the word ‘concerning’ a wide-ranging application, is more likely to achieve the objects of the Convention.” (footnotes omitted)

35                  Toohey J said, at p 302:

“The touchstone in Art 3 is ‘actions concerning children’. The scope of the provision can be gauged if the word ‘concerning’ is given its ordinary meaning of ‘relating to; regarding; about’ or ‘regarding, touching, in reference or relation to; about’.  The refusal of an application for resident status to a parent of dependent children living in Australia, with the direct consequence of deportation for the parent and the breaking up of the family, is an action concerning children.” (footnotes omitted)

36                  Finally, Gaudron J had this to say at p 304:

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

37                 The cancellation of the applicant’s visa, and his consequent departure from Australia, will not affect his daughter in the manner described by either Toohey or Gaudron JJ.  Sabran is not financially dependent on the applicant; his deportation will not result in the breaking up of the family unit.  Nor will his deportation “directly affect” his daughter’s individual welfare.  On the other hand, as Mr Karp submitted, these are inclusionary descriptions of what will constitute actions “concerning children”.  They do not purport to set out criteria which will need to be satisfied in order to attract Article 3.1

38                  The impact which decisions or actions might have on children will range across a very broad spectrum.  The circumstances in Teoh would place that case at or very close to one end of the spectrum.  At the other end of the spectrum, one might find a situation where, for example, a child stood to lose contact with a more distant relative, such as an uncle or aunt, who was not living as part of the family unit but who might otherwise have provided some emotional support or stability for the child.  A decision to deport such a relative could not, in my view, be categorised as an “action concerning children”.  It is cases which fall towards the middle of the spectrum which will present difficulties of categorisation.  And that, in my view, is where the present case lies.  The departure of the applicant from Australia will not deprive his daughter of a breadwinner; nor will it lead to any family breakup.  It is apparent that Sabran is already in an emotionally and physically secure family environment with her mother, her stepfather and her young half-brother  But it will deprive her of any realistic chance of maintaining contact with her own father.  This is no small matter, and in my view is sufficient to bring this case onto that side of the spectrum which enables it to be categorised as “an action concerning children”.  Accordingly, the Tribunal’s decision attracted Article 3 of the Convention so as to create a legitimate expectation that the Tribunal would treat the best interests of the applicant’s daughter as a primary consideration.

Did the Tribunal act in accordance with the Convention?

39                  The applicant submits that the terms of the Tribunal’s decision make it clear that the best interests of the applicant’s daughter were not treated as a primary consideration.  In particular, Mr Karp relies upon the following passage in the Tribunal’s decision, made shortly after the Tribunal discussed the various circumstances prescribed in reg 2.41:

“Whilst there is no weighting in the list of prescribed circumstances it is apparent in the particular circumstances of this case that the correct informationand its likely effect on a decision to grant a visa is crucial.” (emphasis in original)

40                  Mr Karp submits that the Tribunal in this passage was relegating all other considerations, including the interests of the applicant’s daughter, to secondary status.  In response to this contention, Mr Beech-Jones points out that the Tribunal, in the final passages of its decision, referred twice to the “best interests” of the applicant’s daughter and accepted that those interests would be served by her father remaining in Australia.  A reasonable reading of the Tribunal’s reasons shows, he submits, that the best interests of the applicant’s daughter were treated as a primary consideration but, in the particular circumstances of this case, that consideration was outweighed by the strength of the countervailing considerations arising from the seriousness of the applicant’s deception.

41                  There is much to be said for Mr Beech-Jones’ contentions in this regard.  It is difficult to conceive of a more calculated attempt to dishonestly manipulate Australia’s refugee laws than that which was perpetrated by the applicant in this case.  It is almost unthinkable that a person who has behaved in such a manner should be allowed to benefit from his deceit by retaining the very advantage which the deception was designed to achieve in the first place. What the Tribunal was saying in the quoted passage was that, in the particular circumstances of this case, these considerations were so powerful as to outweigh any countervailing considerations.

42                  The Tribunal, was in my view, entirely correct in treating these considerations, adverse to the applicant, as “crucial”.  It is very difficult to see how any contrary considerations, no matter how substantial, could outweigh them.  Moreover the interests of the applicant’s daughter, although a primary consideration under Article 3 of the Convention, did not in the circumstances of this case, so strongly call for the applicant’s retention in Australia as to provide a compelling contrary consideration.  I referred earlier in this judgment to the broad spectrum of decisions which might impact upon children, varying from a close and immediate impact, as in Teoh, to a much less direct or immediate impact.  The further down the spectrum one moves from the Teoh end (if I can call it that), the lesser will be the needs of the children concerned, with a corresponding reduction in the weight to be attached to this consideration.  It will not cease to be a primary consideration, but the weight to be attached to it will diminish commensurately with the reduction in impact upon the children concerned.

43                  In the circumstances of this case, a fair reading of the Tribunal’s decision indicates that it gave every weight to the best interests of the applicant’s daughter.  If anything its findings in this regard were over-generous to the applicant.  I can find no error in the process by which the Tribunal reached its decision.

An Error of law?

44                 Even if, contrary to my finding, the Tribunal failed to treat the best interests of the applicant’s daughter as a primary consideration, this would not constitute an “error of law” or any reviewable error under s 476 of the Act.  As the majority judgments in Teoh made clear, the existence of a legitimate expectation that a decision-maker will treat the best interests of a child as a primary consideration does not necessarily compel the decision-maker to act in that way.  It raises issues of procedural fairness rather than substantive law.  As Mason CJ and Deane J said at pp 291-292:

“The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way.  That is the difference between a legitimate expectation and a binding rule of law.  To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law.  It incorporates the provisions of the unincorporated convention into our municipal law by the back door.  And that, as we have already said, is what Lee and Carr JJ seem to have done because the obligation to initiate inquiries and reports appears to stem from a view that the Minister’s delegate was bound to apply Art 3.1.

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

45                  Section 476(2) of the Act makes it clear that a failure to provide procedural fairness does not constitute a ground of review to this Court.  Even if the Tribunal had erred, as the applicant urges it did, it would not be justiciable in these proceedings.

46                  The applicant attempted to meet this consideration by urging that reg 2.41 is, in part, ambiguous, and that the ambiguity should be resolved in a manner which would accord with Australia’s obligations under the Convention.  In this regard Mr Karp relied on the following observations of Mason CJ and Deane J in Teoh  at p 287:

“But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law.  Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.  That is because Parliament, prima facie, intents to give effect to Australia’s obligations under international law.” (footnotes omitted)

47                 Mr Karp submitted that sub-regs 2.41(e) and (h) were so vague and general in their terms as to be “ambiguous”.  He cited no authority in support of this proposition.  Nor, in my view, is any such authority likely to be found.  The considerations to be taken into account under these sub-regulations might well be broad and extensive.  But the meaning of the provisions themselves is entirely clear.The essence of an “ambiguity” is that the passage be susceptible of more than one meaning (per Mason J, Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 at 350).  There is no hint of an ambiguity, in my view, in either of these sub-regulations.  There is thus no gateway through which it can be said that the Convention imposed a substantive rather than a procedural obligation upon the Tribunal.

Conclusion

48                 It follows from all I have said that the applicant’s challenge to the Tribunal’s decision must fail.  The Tribunal acted in accordance with the Convention and treated the best interests of the applicant’s daughter as a primary consideration, albeit one which could not outweigh the extremely powerful considerations adverse to the applicant.  If, contrary to this finding, the Tribunal did fail to act in accordance with the Convention, this amounted to a denial of procedural fairness which is not a ground of review in this Court.

49                 No error of law has been shown in this case.  The formal orders I make are as follows:

1                    The application is dismissed.

2                    The applicant is to pay the respondents costs.

Associate:

Dated:              12 May 2000