LEI WAN

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Explanatory Statement

1 The judges in this case (Justices Branson, North and Stone) have prepared this statement to assist understanding of the decision of the Court in this appeal. It is intended to explain the function of the Court in a case involving the review of a decision of the Administrative Appeals Tribunal. It must be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.

2 This appeal relates to an application by Mr Wan for a visa to stay in Australia. His application was considered by a delegate of the Minister for Immigration and Multicultural Affairs. The delegate found that Mr Wan is not of good character. This finding meant that the delegate had a discretion to grant or to refuse to grant a visa to Mr Wan. The delegate refused to grant a visa to Mr Wan. The decision of the delegate was reviewed by the Administrative Appeals Tribunal and the decision confirmed.

3 In the circumstances of this case, the law required the Tribunal, in determining whether to confirm the refusal to grant a visa to Mr Wan, to treat the best interests of any child affected by its decision as a primary consideration.

4 Mr Wan has two children, one aged 8 and the other aged 20 months. Both children are Australian citizens.

5 The Full Court has concluded that the Tribunal failed to treat the best interests of Mr Wan’s children as a primary consideration. It follows that Mr Wan is entitled to have the decision of the delegate reviewed again on a proper basis.

6 This does not mean that if the Tribunal decides it would be in the best interests of the children for Mr Wan to be granted a visa, that the Tribunal must grant that visa. It does mean, however, that the Tribunal would only be entitled to refuse to grant the visa if it finds that other relevant considerations outweigh the best interests of the children.

7 The role of the Court in a case like this is to ensure that the Tribunal acts in accordance with the law. As the Tribunal did not treat the best interests of the children as a primary consideration as it was required by law to do, the decision of the Tribunal must be set aside. However, it is for the Tribunal, not the Court, to determine what decision would be in the best interests of the children and, if that decision is that Mr Wan be granted a visa, whether other relevant considerations are of such weight that, nevertheless, Mr Wan should not be granted a visa.

8 The Reasons for Judgment of the Court will be available to the parties at the time judgment is delivered and will be available to the public generally shortly afterwards via the Federal Court’s homepage at www.fedcourt.gov.au.

Federal Court of Australia

Sydney

18 May 2001

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