FEDERAL COURT OF AUSTRALIA

Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897

THE COURT ORDERS THAT:

1.    A writ of prohibition issue to the respondent preventing him from acting upon his purported decision of 28 February 2012 to cancel the applicant’s visa pursuant to s 501A of the Migration Act 1958 (Cth) (“the respondent’s decision”).

2.    A writ of certiorari issue to the respondent to remove the respondent’s decision into this Court, for the purpose of its being quashed.

3.    The respondent pay the applicant’s costs in this Court and in the High Court.

4.    The professional fees charged by the applicant’s counsel in this Court be paid directly to the applicant’s counsel.

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

REASONS FOR JUDGMENT

1    Joseph Lesianawai is a 33 year old Fijian national and a convicted criminal with a history of recurrent violent offending. In August 2007 he was convicted of three offences, the most serious of which resulted in a sentence of nine years’ imprisonment. At the time he committed the most recent series of offences he was on parole for an earlier violent offence.

2    Mr Lesianawai was born in Fiji but has lived in Australia since he was a child and has raised children of his own here. Despite his ties to the Australian community, the Minister for Immigration and Citizenship decided to cancel his visa on character grounds. The Minister’s decision was overturned by the Administrative Appeals Tribunal (“AAT”) but the Minister decided to exercise his power under s 501A(2) of the Migration Act 1958 (Cth) (“the Act”) to reverse the AAT decision and to cancel the visa on the ground that it was in the national interest to do so. Mr Lesianawai applied to the High Court for constitutional writs to set the decision aside and the application was remitted to this Court. Mr Lesianawai contends that in exercising his discretion to cancel the visa the Minister fell into jurisdictional error. For the reasons set out below, he is right.

The legislative scheme

3    The Minister may cancel a visa if he reasonably suspects that the visa holder does not pass “the character test” and the visa holder does not satisfy the Minister that he or she does: s 501(2). For the purposes of the section a person does not pass the character test if, amongst other things, the person has a substantial criminal record, defined in subs (7) to include the circumstance that the person has been sentenced to a term of imprisonment of 12 months or more: s 501(6).

4    A decision by a delegate of the Minister under s 501 is reviewable on its merits in the AAT: s 500 (1)(b).

5    If a delegate of the Minister or (as in this case) the AAT makes a decision not to exercise the power conferred by s 501(2) to cancel a visa, the Act gives the Minister the power to set that decision aside. Section 501A(2) provides that the Minister may do so if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

6    If such a decision is made, written notice must be given to the visa holder that sets out the decision, specifies the provision under which it was made and the effect of the provision and sets out the reasons (other than non-disclosable information) for the decision (s 501G).

7    This power may only be exercised by the Minister personally (s 501A(5)) and, if he does exercise it, his decision is not reviewable under Part 5 or 7 of the Act (s 501A(7)). Nonetheless, this Court has original jurisdiction to review the Minister’s decision under s 476A(1)(c). The jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution: s 476A(2). That means that in order to succeed it is necessary for Mr Lesianawai to show that the Minister’s decision was affected by jurisdictional error.

8    The Minister may issue written directions to a person or body having functions or powers under the Act about the performance of those functions and the exercise of those powers (s 499(1)). From time to time the Minister has exercised his power to issue such directions. In the present case the relevant direction is Direction [no. 41] – Visa refusal and cancellation under s 501 (“the Direction”). That Direction bound the Minister’s delegate and the AAT (s 499(2A)) but, as the Full Court pointed out in Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185 at [10], it did not bind the Minister in exercising his power under s 501A(2).

Factual background

9    Mr Lesianawai arrived in Australia in 1988 at the age of nine in the company of his parents and siblings. The family arrived on a one-month V12 visitor visa. Mr Lesianawai’s father unsuccessfully applied for a protection visa but ultimately, on 19 November 1999, all the members of the family were granted Class BF Transitional (Permanent) visas, which allowed them to remain in Australia permanently.

10    On 30 August 2007 Mr Lesianawai was convicted in New South Wales District Court of the offences of robbery in company, conspiracy to commit an unspecified offence and possession of an unauthorised prohibited firearm. He was sentenced to nine years imprisonment on the first charge, five years and six months on the second and two years on the third. The AAT described the facts underlying these offences as follows:

On 7 April 2005, the Applicant robbed the Rosehill Hotel with two other offenders. One of the other offenders struck the manager of the hotel to the floor and the Applicant stood over the manager and held him down. He then took hold of the licensee and made him walk through the hotel to open the hotel safe. One of the other offenders had a shortened shotgun. The offenders stole $3,761 in the robbery but were not apprehended at this time. Both the manager and licensee sustained injuries as a result of the robbery. Less than a week later, the Applicant was involved in a second armed robbery at another hotel. The Applicant was armed with a shortened shotgun and he, with two other offenders, forced a 23 year old bar attendant, who was pregnant at the time, and a 21 year old staff member, to open the hotel cash registers. Aggressive words were used and there was evidence that the hotel staff and patrons were very frightened. Approximately $3,000 was stolen. On the following day, the Applicant and two of the other offenders robbed a car yard. The robbery was planned and the Applicant was armed with a shotgun. The 19-year-old son of the owner of the car yard was confronted by the Applicant with a shot gun. The owner and his other 21-year-old son were also confronted and the offenders stole two cars, worth about $75,000. The purpose of stealing the cars was apparently to rob a Qantas Credit Union later in the day. The Applicant was subsequently apprehended following a police chase and injured himself in the process, breaking both ankles and his wrist.

11    He has a lengthy criminal history, starting inauspiciously in 1994 (when he was only 16 years old) with numerous convictions, including six counts of robbery in company. He was then sentenced to 12 months juvenile detention. In January 1996 he was convicted and fined for possession of an offensive implement. On 18 July 2000 he was convicted and fined for driving an unregistered vehicle while unlicensed. Later that year he was convicted and fined for damaging property in a hotel. In December 2001, then still only 23 years old, he was charged and later convicted of robbery in company and sentenced to imprisonment for three years with an 18 month non-parole period. Within weeks of the robbery he fired a loaded gun into the air in a public place and sentenced to 12 months imprisonment.

12    On 28 August 2003 the Department of Immigration and Multicultural and Indigenous Affairs wrote to Mr Lesianawai advising him that the Minister intended to cancel his visa. After hearing from him, the Minister apparently decided to take no further action, although Mr Lesianawai was not notified of the decision.

13    During his time in prison Mr Lesianawai completed a number of vocational and anger management courses and the “young offenders program”, in which he received the “most outstanding performance” certificate. In his submission to the Minister he presented a positive and optimistic assessment of his prospects. He claimed he was “focused and motivated” towards his rehabilitation.

14    Mr Lesianawai was released on parole in June 2004, but within 10 months of his release he committed the offences for which he was convicted in August 2007. The sentencing judge assessed his prospects of rehabilitation as “reasonably good”.

15    On 24 November 2008 the Department of Immigration and Citizenship (“the Department”) wrote again to Mr Lesianawai advising him that the Minister intended to cancel his visa and referring him to Direction 21, which was the Ministerial Direction then operating under s 499 of the Act. Once again, he was given the opportunity to make submissions and a further opportunity after a new Direction (Direction 41) came into effect, an opportunity of which he availed himself. Nevertheless, on 12 August 2011 a delegate of the Minister cancelled his visa.

16    Mr Lesianawai is the father of five children. He fathered his first child, who is disabled, and lives with his maternal grandmother, at the age of 17. He married the mother of this child at 18 and three more children were born after the marriage. They are now aged between 11 and 14. In 2004 Mr Lesianawai separated from his wife and entered into a relationship with his wife’s younger sister. They have one child, who was born in 2005.

17    Evidence was presented to the AAT from a number of Mr Lesianawai’s relatives, including his ex-wife, three of the children of the marriage, his parents, his current partner and two brothers. Statements of support were also supplied from friends and work colleagues. According to the reasons the decision in the AAT, they described him as a supportive father and a good worker, with a reformed attitude. They expressed confidence that he would not reoffend. The AAT considered that the age at which Mr Lesianawai arrived in Australia and the links he has established here together constituted a significant factor weighing against the cancellation of his visa. Consequently, despite the seriousness of his criminal history and the risk that he may reoffend, the AAT held that Minister’s decision should be set aside.

18    The decision of the AAT was published on 17 November 2011. Not long afterwards a Notice of Intention to Consider Cancellation of a Visa under s 501A(2) was sent by registered mail to the wrong address. The Notice set out the grounds for possible cancellation of his visa and afforded him an opportunity to comment. It also attached a number of documents including the Direction, the AAT decision and the material that was before the AAT. The Notice was returned unclaimed on 19 December 2011 and the same day the Department sent another Notice in the same form attaching the same documents to a different building on the same street. This time the letter apparently reached Mr Lesianawai, for on 30 January 2012 the Department received a submission from him, consisting of a four page statement and letters of support from his partner, his father, two of his brothers and a family friend.

19    On 28 February 2012 a Departmental officer wrote to Mr Lesianawai advising him that, after carefully considering the matter, the Minister had decided to set aside the AAT’s decision and to cancel his visa pursuant to s 501A(2) and informing him of the consequences of that decision. Attached to the letter was a statement of the Minister’s reasons.

The Minister’s decision

20    The Minister’s statement of reasons referred to Mr Lesianawai’s most recent convictions and sentences and found that he did not pass the character test and that he had not satisfied him that he did.

21    The Minister also found that is in the national interest that the visa be cancelled as those convictions related to offences of violence and were serious, the seriousness also being reflected in the substantial prison terms imposed. The Minister noted the sentencing judge’s comment that the whole community suffers as a result of such offences. He also had regard to Mr Lesianawai’s previous criminal history.

22    The Minister then went on to consider whether to exercise his discretion to cancel the visa.

23    The Minister acknowledged that he was not bound by the Direction but said that the matters set out in Part B of the Direction “provide useful guidance”.

24    The Minister said he gave primary consideration to the protection of the Australian community (taking into account the seriousness and nature of the conduct and the risk that the conduct may be repeated), the age at which Mr Lesianawai commenced living in Australia, the length of time he has lived here and “relevant international obligations”. The application is concerned with the way the Minister dealt with his international obligations concerning Mr Lesianawai’s children.

The proceedings

25    On 22 March 2012 Mr Lesianawai filed an application in the Sydney registry of the High Court for show cause orders seeking writs of prohibition, certiorari, mandamus, habeas corpus and injunctive relief against the Minister. The application was supported by an affidavit which contained an eloquent plea in support of the merits of his case that he should retain his visa and to which were exhibited the Minister’s decision, his statement of reasons and the documents that were before him when he made his decision. An amended application was filed on 18 May 2012 amending the grounds of relief.

26    On 25 June 2012 Gummow ACJ remitted the proceedings to this Court.

27    The amended application contains four grounds. They are that the Minister erred in law by:

(1)    Denying Mr Lesianawai procedural fairness in that he had a legitimate expectation that the Minister would treat the best interests of his children as a primary consideration in deciding whether or not to cancel his visa and the Minister did not do so;

(2)    Misconstruing the character test and failing to apply it correctly;

(3)    Acting in bad faith and “unreasonably on improper grounds” (particulars of which were not supplied);

(4)    Making a decision in conflict with s 201(a)(b)(i)(B) of the Act (which is concerned with the deportation of certain non-citizens).

28    Ultimately, only the first ground was pressed.

The issue

29    The only relevant international obligation the Minister identified he simply described as “best interests of the child”. What follows is the entire discussion of this issue.

24    I gave primary consideration to the best interests of any children who are less than 18 years of age and whose his best interests may be significantly affected by cancellation of Mr LESIANAWAI’s visa.

25.    Mr LESIANAWAI is the biological father of five children living in Australia. The eldest has not been mentioned by him in his written submissions and has apparently lived with the child's grandmother virtually all of his or her life. On the basis of the little evidence available about the child, I have concluded that his or her best interests would not suffer serious damage in the event of the cancellation of Mr LESIANAWAI’s visa.

26.    Of the other four, the three elder children live with their mother and her current partner, where they appear to be well cared for. Accordingly, while acknowledging that they continue to have contact with Mr LESIANAWAI and would like him to remain in Australia, I consider that cancellation of his visa would not deprive them of adequate parenting. Although visa cancellation may not be in their best interests, I consider that the net impact would be relatively limited.

27.    Mr LESIANAWAI has an ongoing active relationship with his youngest daughter, born from his current de facto marital relationship, and I acknowledge that it may be in the best interests of this child for Mr LESIANAWAI’s visa not to be cancelled.

(Emphasis added.)

30    At para 34, after dealing with other considerations, the Minister said:

In reaching my decision, I concluded that given the nature and seriousness of his past criminal offending, it was in the national interest to cancel Mr LESIANAWAI’s visa and that the protection of the Australian community from the possibility of any further offending of the type he has committed several times in the past outweighs the impact of his visa cancellation on the best interests of his youngest daughter (and to a lesser extent, his other children), his long residence in Australia since childhood and any other countervailing considerations identified above.

31    The central issue in this case is whether, despite what he said in para 24 of his reasons, the Minister did in fact treat the best interests of all the children as a primary consideration in reaching his decision to cancel Mr Lesianawai’s visa. If the proper conclusion is that he did not, it is common ground that the application must succeed.

Was the applicant denied procedural fairness?

32    In 1990 the Executive of the Commonwealth ratified the Convention on the Rights of the Child (“the Convention”) and on 16 January 1991 the Convention entered into force for Australia. Article 3(1) of the Convention provides:

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.

33    In Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 the High Court (McHugh J dissenting) held that the refusal of an application for a permanent entry permit to a parent of dependent children living in Australia with the direct result that the parent would be deported and the family broken up was an action concerning children and that ratification of the Convention created a legitimate expectation that, in deciding whether to exercise her discretion to deport the parent, the Minister would act in conformity with it and treat as a primary consideration the best interests of the children. Mason CJ and Deane J said (at 291) that ratification of an international convention is “a positive statement by the executive government of this country to the world and the Australian people that the executive government and its agencies will act in accordance with the Convention”. That positive statement, their Honours continued, was sufficient foundation for the legitimate expectation. Consequently, if a decision-maker proposes to make a decision inconsistent with the legitimate expectation, procedural fairness requires that anyone affected by it be given notice and an adequate opportunity to be heard against the taking of such a course. Cf. Toohey J at 302 and Gaudron J at 305.

34    At 292 Mason CJ and Deane J said that a decision-maker with an eye to the principle enshrined in the Convention would be looking to the children’s best interests as a primary consideration and then asking whether the force of any other consideration outweighed it.

35    Consequently, in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at [32], an appeal from the AAT, a Full Court of this Court said that the tribunal was required to identify what the best interests of the children of the visa applicant required and then to assess whether the strength of any other consideration or the cumulative effect of other considerations outweighed the consideration of the best interests of the children. In that case the Court held that the tribunal fell into jurisdictional error by failing to give proper, genuine and realistic consideration to the best interests of Mr Wan’s children.

36    These principles apply equally to decisions affecting visa applicants and visa holders facing the prospect of their visas being cancelled.

37    In Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501 (“Nweke”) (published after the Minister’s decision in the present case), Jagot J applied the reasoning in Wan to quash a decision of the Minister to cancel a visa on character grounds as a denial of procedural fairness. In Nweke the Minister also said that he gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of the visa. He then went on to say “I accepted the available information that indicated that Mr Nweke has close ties to his three children and is committed to providing them with emotional and financial support. I have considered that Mr Nweke’s children may suffer emotional and financial hardship if his visa is cancelled”. Later, he said he accepted that Mr Nweke had a close relationship with each of his three young children and that “it may be in their best interests” (emphasis added) for his visa not to be cancelled. However, given the serious nature of his past offending, he said he concluded that even a relatively small risk of him reoffending presented an unacceptable risk of harm to the Australian community, which outweighed the best interests of Mr Nweke’s three children and any other countervailing considerations.

38    Her Honour said (at [19]) that there was nothing in the language of the Minister’s decision or his reasons to suggest that he assumed that the children's best interests were for the cancellation of their father’s visa and that the Minister weighed the risk of harm to the Australian community from Mr Nweke’s possible reoffending against those interests. Her Honour considered that the Minister’s reasons as a whole indicated that he either found or assumed that it may be in the children’s best interests if their father’s visa were not cancelled, so that when he came to consider whether the risk of harm to the Australian community from the small risk that Mr Nweke would reoffend outweighed the best interests of the children, he weighed that risk against the fact or assumption that it may be in the children’s best interests that the visa not be cancelled. In the circumstances, her Honour observed, the conclusion the Minister reached was hardly surprising. Her Honour went on to say (at [21]):

Applying the reasoning in Vaitaiki [this is a reference to Vaitaiki v Minister for Immigration and Ethnic Affairs (1988) 150 ALR 608] and Wan it is apparent that the Minister did not in fact treat the best interests of the applicant’s children as a primary consideration in the decision whether or not to cancel the applicant’s visa. The Minister could not do so because he never confronted the central question of what the best interests of the children required him to decide with respect to the proposed deportation of their father. Not having done so as his starting point, the Minister also could not then assess whether any other consideration outweighed the best interests of the children understood as a primary consideration. For these reasons the Minister departed from the legitimate expectation founded on the convention and thus denied the applicant procedural fairness. The Minister’s decision is thus vitiated for jurisdictional error.

39    The Minister did not appeal from her Honour’s judgment and, although critical of aspects of her Honour’s reasoning, Mr Markus, who appeared for the Minister in this Court, did not submit that her Honour was wrong. The full statement of the Minister’s reasons is set out in the judgment at [9]. The reasoning process is identical. In relevant respects the language is the same.

40    I accept, of course, that each case turns on its facts but there is a striking similarity between the way the Minister expressed himself in the statements of reasons in the two cases. There is no good reason why the conclusions should be different.

41    Mr Markus said everything that could possibly be said in favour of the Minister’s position but in the end I was unpersuaded by his argument.

42    Mr Markus submitted that Nweke was not authority for the proposition that in circumstances where a finding is expressed in hypothetical terms, the best interests of the child could not have been treated as a primary consideration. He said that Nweke turned on its own facts.

43    Ordinarily, as a matter of judicial comity, a single judge of this Court should follow the judgment of another single judge of the Court unless persuaded that it is clearly wrong: Cooper v Federal Commissioner of Taxation (2004) 139 FCR 205 at [46], Bahonko v Sterjov (2007) 163 FCR 318 at [8]. Not only am I not persuaded that Jagot J was clearly wrong in Nweke, I am persuaded she was right. If the proper interpretation of the Minister’s reasons is that he made no assumption or finding about what the best interests of the children required, then he could not have given primary consideration to their best interests. Making the assumption or finding was a necessary step in the deliberative process. Mr Lesianawai had a legitimate expectation that the Minister would give primary consideration to the best interests of all his children and not having done so, the Minister’s decision to cancel the visa would have been made in denial of procedural fairness.

44    Mr Markus claimed that the position taken by Mr Lesianawai would give precedence to form over substance. He submitted that in working out what the Minister was doing, significant weight should attach to what he said he did in para 24. Alternatively, he submitted that the Minister should be taken to have assumed that the best interests of the children would not favour cancellation of the visa. He submitted that the use of hypothetical language was “unfortunate” and “unhelpful” but simply reflected the fact that there was an element of prediction, if not speculation, involved in the exercise.

45    In truth, to accede to these submissions would involve the very heresy Mr Markus counselled against. It would be a triumph of form over substance. Merely because the Minister said he gave primary consideration to the best interests of the children does not mean that he did. Indeed, the way in which the Minister expressed himself in para 24 suggests that he did not even go this far. As Mr O’Donnell, who appeared for Mr Lesianawai, put it, at this point in his reasons he was really doing no more than acknowledging his obligation. I say this because of the reference in that statement to the best interests of “any children who are less than 18 years of age and whose best interests may be significantly affected by the cancellation of Mr Lesianawai’s visa”.

46    If, contrary to the interpretation I have placed on the Minister’s statement in para 24, the statement is to be read as an assertion that the Minister did give primary consideration to the best interests of Mr Lesianawai’s children, I have concluded that (with one qualification), that assertion is a hollow one.

47    The qualification relates to the interests of Mr Lesianawai’s oldest child. In this instance, the Minister expressed a conclusion (at para 25) which is capable of being read as a reference to what his best interests entailed. That statement stands in stark contrast to the statements concerning the four younger children.

48    Mr Markus submitted that a “beneficial approach” should be taken to the Minister’s reasons, picking up on what was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Liang”). I am, of course, mindful of the need to avoid over-zealous scrutiny of an administrative decision-maker’s reasons (Liang) and that the decision-maker’s “looseness in … language” or “unhappy phrasing” (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287) should not concern a court on an application for judicial review. But, as Stone J indicated in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26], a beneficial approach to the reasons does not demand that any ambiguity in them must be resolved in the decision-maker’s favour.

49    Mr Markus urged that the statement of reasons should be read together with an issues paper the Minister received from the Department. I have done that. But it does not take the matter any further. The issues paper set out para 10.4.1 of Direction 41, which starts with the proposition that under Australian law it is generally presumed that a child’s best interests will be served if the child remains with the parents but which goes on to identify 15 factors that must be considered “in considering the best interests of the child”. I accept that the Minister read the issues paper. But his failure to advert to the presumption and the way he expressed himself do not indicate that he was acting on the presumption or that he made any assumption about what was actually in the best interests of Mr Lesianawai’s four youngest children. I note that the issues paper recited at para 66 that:

Notwithstanding the evidence that Mr LESIANAWAI maintains contact with his three elder children and that they and their mother wish this to continue, ti si open to you to find that they would not be deprived of adequate parental care and guidance by cancellation of Mr LESIANAWAI’s visa. Also, they would be able to continue to have contact with their father be telephone, letters and emails and perhaps occasional visits, similar to their present contact with him, even if he is not in Australia. Therefore, while acknowledging that visa cancellation would not be in their best interests, you may consider that the extent of any harm would be relatively limited.

50    Para 26 of the Minister’s statement of reasons indicates that he was selective in the way in which he followed this advice. He accepted that these children would not be deprived of adequate parental care and guidance if the visa were cancelled. He also accepted the suggestion that the extent of any harm to them would be “relatively limited”. But he did not acknowledge that visa cancellation would not be in their best interests. He said it may not be.

51    Having regard to the whole of the statement of reasons, I am satisfied that the use of the word “may” was not a mere slip of the tongue, so to speak. It appeared three times in as many paragraphs. I do not consider that the Minister meant to be any more definite than this language suggests. Rather, I am satisfied that (as in Nweke) the Minister either found or assumed (it is not clear which) that the best interests of the four younger children may not be served by cancelling their father’s visa or that their interests may be served by not cancelling it. I accept, as Mr Markus submitted, that some speculation is involved in any predictive exercise. But determining what is in the best interests of the children is not merely a predictive exercise. In any case, the Minister apparently had no difficulty making a finding about the impact cancelling the visa would have on his partner. He said he accepted that she would experience hardship in that event. He also said that Mr Lesianawai would face some hardship reintegrating into Fijian society, although that was an entirely predictive exercise. Furthermore, as I said earlier, in the case of the oldest child, the Minister made a finding in definitive terms. It is understandable that the Minister might have had trouble being definite in his opinions concerning the younger children. He may have thought that Mr Lesianawai’s criminality would be detrimental to them and so struggled with the notion that it was in their best interests that their father remain with them. Although he was invited by the issues paper to acknowledge that visa cancellation would not be in the interests of three of the children, he appears to have shied away from doing so.

52    It is true that in the case of the three children who live with Mr Lesianawai’s ex-wife the Minister made findings about their circumstances and in the case of the youngest child he described the nature of the relationship Mr Lesianawai had with her. These circumstances were undoubtedly relevant to the assessment of their best interests. But the Minister stopped short of making a finding as to what they required. Absent such a finding, the proper inference to be drawn is that he did not give primary consideration to their best interests. That is not to say, as Mr O’Donnell stressed, that the Minister did not go about his task in good faith, honestly and conscientiously. It simply means that he did not complete the task he set for himself. Not having come to a conclusion about what was in the children’s best interests, he could not give that matter the weight Mr Lesianawai was entitled to expect he would give it in the balancing exercise he then went on to undertake.

53    Mr Markus drew attention to the last sentence in para 26, passing over the hypothesis in the first clause and emphasising the statement that “the net impact would be relatively limited”. Presumably the Minister meant that the net impact on the children of the cancellation of their father’s visa would be limited. But this is not a conclusion about what their best interests involved or required. It begs that question. One is driven to ask rhetorically: if the Minister was of the opinion that the best interests of the children did not require the cancellation of the visa, why did he not say so?

54    This is not merely a case where the Minister was obliged to have regard to certain considerations. The expectation Mr Lesianawai had was that the Minister would give preferential treatment to one particular consideration. The Minister could not have given primary consideration to the best interests of the four younger children because he made no finding about what their best interests required. Instead, he simply hypothesised that the cancellation of the visa might not be in their best interests (in the case of three of the children) and (in the case of the youngest child) that it might be in her best interests if it were not.

55    This means that, despite what he said at para 24 of his statement of reasons, the Minister did not in fact give primary consideration to the best interests of Mr Lesianawai’s four youngest children and he was therefore obliged to put Mr Lesianawai on notice that he intended to take that course. Not having done so, he denied him procedural fairness.

56    It follows that the Minister fell into jurisdictional error (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82) and the application must succeed.

Relief

57    The relevant relief sought in the amended application filed in the High Court is as follows:

(1)    That the Minister “be prohibited by the writ of prohibition from acting or taking any further action in regards to his decision given 28 February 2012” (“the decision”);

(2)    That the decision of the Minister be quashed by and with the writ of certiorari;

(3)    That the Minister be ordered and directed to redetermine and reinstate Mr Lesianawai’s visa by the writ of mandamus.

58    Of course, the Minister cannot be ordered to redetermine Mr Lesianawai’s visa, let alone to reinstate it, and the request for mandamus was abandoned during the hearing. Prohibition and certiorari should, however, issue.

59    The Minister should pay the applicant’s costs in this Court and in the High Court.

60    Before I conclude I must express the Court’s gratitude for the assistance received from both Mr Markus and Mr O’Donnell. Both are accomplished advocates. But the Court is particularly grateful to Mr O’Donnell for accepting a referral from the Court under r 4.12 of the Federal Court Rules 2011. Mr O’Donnell entered into a costs agreement with Mr Lesianawai in conformity with the terms of r 4.19(2) stipulating in effect (though not in terms) that he is only liable to pay professional fees if a costs order is made in his favour and costs are paid. In those circumstances I will order (pursuant to r 4.19(3)) that the Minister pay Mr O’Donnell’s professional fees directly to Mr O’Donnell instead of Mr Lesianawai.

Associate:

Dated:    22 August 2012