FEDERAL COURT OF AUSTRALIA

Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408

THE COURT ORDERS THAT:

1.    The Application be allowed.

2.    The decision of the Administrative Appeals Tribunal dated 26 July 2012 be quashed.

3.    The proceedings be remitted to the Administrative Appeals Tribunal for redetermination according to law.

4.    The First Respondent pay the costs of the Applicant.

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

REASONS FOR JUDGMENT

1    By amended originating application for a review of a migration decision the applicant (‘Mr Tauariki’) appeals the decision of the Administrative Appeals Tribunal (’the Tribunal’) made on 26 July 2012: see Re Tauariki and Minister for Immigration & Citizenship [2012] AATA 482.

2    In such decision (‘the decision’) the Tribunal found that Mr Tauariki did not pass the character test contained in s 501(2) of the Migration Act 1958 (Cth) (‘the Act’), because of Mr Tauariki’s criminal convictions. Mr Tauariki had a substantial criminal record within the meaning of s 501(7) of the Act. Accordingly, by virtue of s 501(6) of the Act Mr Tauariki did not pass the character test, which was a prerequisite to his eligibility to hold his Class TY Subclass 444 Special Category (Temporary) Visa (‘the visa’). In consequence, the Tribunal upheld the decision of the respondent (‘the Minister’) made on 30 April 2012 to cancel the visa.

FACTS

3    Mr Tauariki was born in New Zealand in 1975 and came to Australia in 2000. Whilst in New Zealand he had an extensive history of convictions including burglary, common assault, offensive behaviour and theft.

4    Shortly after arriving in Australia he was convicted of drink driving offences and in 2004 was convicted of assault. Thereafter he was convicted of numerous other assaults in 2007, 2008 and twice in 2009. In 2010 he was convicted of contravening a domestic apprehended violence order and in 2011, on two occasions, was convicted of driving with a prescribed concentration of alcohol. On 20 June 2011 he was convicted of common assault. He has served numerous prison sentences resulting from the above offences, some of which appear to have been fuelled by Mr Tauariki’s consumption of alcohol.

5    Direction 41 – Visa Refusal and Cancellation under s 501 of the Act (‘Direction 41’) was issued by the Minister on 3 June 2009. Such direction is expressed (in cl 4(1) thereof) to apply to decision-makers performing functions or exercising powers under s 501 of the Act to refuse to grant a visa or to cancel a visa of a person who does not satisfy the Minister that that person passes the character test. Pursuant to s 499 of the Act, Direction 41 is binding on the Tribunal.

6    In this appeal there is no challenge to the finding that Mr Tauariki does not satisfy the character test. However, pursuant to s 501 of the Act the Minister has a discretion to not cancel Mr Tauariki’s visa, notwithstanding the fact that he does not meet the character test. Clause 10 of Direction 41, entitled ‘Exercising the Discretion’, lists primary considerations for the decision-maker in deciding whether to exercise the discretion or not. Clause 10(1) requires the decision-maker to consider several issues including:

(d)    Relevant international obligations including but not limited to:

(i)    the best interests of the child as described in the Convention on the Rights of the Child (CROC) and …

7    The essential question raised on this appeal is whether, in exercising the discretion, the decision-maker failed to consider the best interests of Mr Tauariki’s children as required by Direction 41.

8    Mr Tauariki resided with his partner, Ms S, in the years preceding the Minister’s decision. Ms S has two children as a result of this relationship. One, a girl (Ms A), is now seven years of age, and a son (Master T), who is three years of age. In addition, he performed the role of stepfather to a son of Ms S (Master C) and a daughter of Ms S, known as Rachel Rarity. For completeness, I mention that Mr Tauariki has two other children aged 17 and 18 years residing in New Zealand.

FINDINGS OF THE TRIBUNAL

9    The decision contains a section entitled ‘The best interests of the children’ which addresses the family relationship. In this section of the decision, the Senior Member stated at [92]:

The best interests of the children are a very important primary consideration. Mr Tauariki has a seven year old daughter, Miss A, and a two and half year old son, Master T. He has lived with Ms S and her five children in earlier times, and claims to have a good relationship with her son Master C, who is still a minor.

10    As appears from the decision, Mr Tauariki also has a sister residing in Australia who spoke of her relationship with Mr Tauariki and with the adult daughter of Ms S, Rachael Rarity. Ms Rarity, who now has her own partner and two children, testified before the Tribunal that Mr Tauariki had been a good stepfather to her.

11    Reference was made to the fact the Ms S’s older children (of a former relationship) had left home, although one daughter, her partner and a young child continued to reside with her temporarily. The decision states at [95]-[96]:

Ms Rarity has two young children who may not get to know Mr Tauariki if he is to return to New Zealand. She told me that he has been an awesome stepfather to her.

Mr Tauariki has been incarcerated for most of his son’s life, although he has spoken to him on the telephone regularly to the extent that one can speak to a baby on the phone. He told me that it was so that Master T would get to know his voice. The Applicant has expressed a desire to be part of the children’s lives, and if he is to return to New Zealand, his children will not have the opportunity of growing up with his presence in the home.

12    As to the living arrangements of the children, the decision stated at [99]:

I am mindful also that all or some of Ms S’s children have been in the home when assaults have taken place. The damage caused to them emotionally, may, according to Dr Lennings, be healed if Mr Tauariki remains sober and is in contact with Ms S, and with them. On the other hand, if he resorts to further bouts of drinking and re-offending, then it would compound the damage, and might play out in their own relationships as those develop when they are growing up.

13    Significantly the Tribunal concluded (at 102):

Mr Tauariki’s family situation weighs in favour of him remaining in Australia, but must be balanced against the remaining primary and other considerations which in my view take precedence.

14    The Tribunal referred to Mr Tauariki’s escalation of his drinking and aggression which is said to have occurred following the death of his mother and siblings. The Senior Member also referred to an assault of Ms S following the birth of their son in 2009 and of the breach of the apprehended violence order.

15    Thereafter the Senior Member referred to other issues concerning Mr Tauariki’s previous life in New Zealand and his involvement in ‘the Mighty Mongrel Mob’ and noted Mr Tauariki’s claim that he left New Zealand to escape from the members of that group.

16    The decision-maker concluded:

I have considered the evidence and arguments and the submissions of both parties, and am satisfied that the primary consideration being the protection of the Australian community weighs heavily in favour of the cancellation of Mr Tauariki’s visa.

The other primary consideration, the best interests of children, principally concerns the welfare of Mr Tauariki’s daughter and son. He is their father, but some or all of Ms S’s children and Miss A and Master T have witnessed Mr Tauariki’s drunken and violent behaviour against Ms S a number of times. Dr Lennings commented that if Mr Tauariki remained alcohol free and was the loving father he purports to be when sober, then any harm suffered by the children may heal. However, I am mindful of his opinion that if they are to be subjected to being in the same house when their mother is again assaulted by Mr Tauariki, then further psychological damage could be done to them. I am satisfied there is a real risk the latter situation may occur.

I am mindful also that if Mr Tauariki continues to drink and offend, then Ms S will not allow him to see her or the children. I am satisfied given the history of drinking and violence, that there is a real risk of the pattern recurring. I am satisfied that the protection of the Australian community would be compromised by Mr Tauariki remaining in Australia. I am not satisfied that Australia should bear the moderate risk of him re-offending here, and the cost to our society thereof.

17    For the above reasons the Tribunal affirmed the decision under review.

APPLICANT’S SUBMISSIONS

18    The applicant submits that jurisdictional error exists in the decision because there was a failure by the Tribunal to perform the required statutory duty or the Tribunal applied the wrong test, and further that there was a failure to provide procedural fairness.

19    The applicant submits that the Tribunal was required to reach a conclusion concerning what was in the best interest of the children and that the decision does not satisfy such requirement. The applicant submits that the references to the children contained in the decision do not demonstrate that any conclusion was reached as to their ‘best interests’. Rather the Tribunal simply concluded that the ‘family situation weighs in favour of him remaining in Australia’. The applicant submits that the best interest of the children was a primary consideration which required the Tribunal to reach a definitive conclusion on this issue.

20    As to the details required to be addressed under cl 10.4.1(5) of Direction 41, Mr Tauariki submits that there was no itemised consideration of the 15 specific factors to be considered. The applicant claims that one factor was not addressed, namely ‘the likely effect that any separation from the person would have on the child’.

21    Further, it is submitted by the applicant that the Tribunal incorrectly weighed up the primary consideration of the best interests of the children and the other primary considerations by treating the primary consideration of protection of the Australian community as the predominant consideration.

22    The second ground of the application relies upon a failure to afford procedural fairness. Under this ground it is claimed that the Tribunal found that there was a real risk that the applicant would not continue to abstain from alcohol. However it is submitted that the applicant was not put on notice that such risk would affect the Tribunal’s conclusion concerning the best interests of the children: cf. Tara v Minister for Immigration and Citizenship [2012] FCA 1146. Accordingly the failure to notify the applicant of this matter resulted in a failure of procedural fairness.

23    Further, the applicant submits there is a breach of legitimate expectation or failure to take into account relevant considerations. It is submitted that the failure to follow Direction 41 constituted a breach of the applicant’s legitimate expectation that the Direction would be followed. For the reasons that follow, it is unnecessary to consider the procedural fairness point raised by the applicant.

CONSIDERATION

Did the Tribunal fail to perform its statutory duty?

24    This issue requires the Court to consider the applicant’s submissions that the Tribunal was required to reach a conclusion whether it was in the best interests of the applicant’s two children and five step children that the applicant remain in Australia.

25    Part B of Direction 41, entitled ‘Exercising the Discretion’, states that ‘decision-makers must take into account the primary considerations in every case’: see cl 9(1). As already stated, cl 10.1(3) requires that the best interests of the child be considered as a primary consideration. Such consideration requires reference to the detailed matters set out in cl 10.4.1(5). It should also be observed that cl 10.4.1(4) states:

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

26    The Tribunal acknowledged that ‘the best interests of the children’ are a very important primary consideration. Having referred to the children and the fact that they were residing with Ms S and after referring to Ms S’s children with whom the applicant had formed the relationship of a stepfather, the Tribunal made the findings that the ‘family situation weighs in favour’ of the applicant remaining in Australia, but this fact had to be balanced against the remaining primary and other considerations. The location of such conclusion appears at the end of the section of the decision entitled ‘The best interests of the children’.

27    The words ‘family situation’ are somewhat vague, and the issue raised requires the Court to decide whether an inference can be drawn that the Tribunal was addressing the interests of the children, and whether the very specific requirements of Direction 41 have been determined. This task requires the Court to assess these issues upon a fair reading of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.

28    In addition to the observations of the Tribunal contained in the section entitled ‘The best interests of the children’, the Tribunal returned to the subject matter of the children in its conclusion. The Tribunal acknowledged that the first task was to weigh up the primary considerations. The Tribunal concluded that the primary consideration of protection of the Australian community ‘weighs heavily in favour of cancellation of Mr Tauariki’s visa’. The Tribunal then made its closing remarks as set out above.

29    It is impossible to draw the conclusion, bearing in mind the content of those paragraphs, that the Tribunal was not mindful of the mandatory consideration of the best interests of the children, as a primary consideration. The Tribunal observed that Master C may miss his father if he returned to New Zealand. However the Senior Member observed that Master C now has a girlfriend and his own life. The Tribunal also referred to the fact that Master C had never visited Mr Tauariki in prison or in immigration detention.

30    The Tribunal made reference to the infant daughter, Miss A. Subsequently the Tribunal observed that Ms S had stated that she ‘refused to expose their children to the negative aspects of a custodial environment by way of visitations’. Further, Miss A was often at school at the allocated times (of prison visits to Mr Tauariki) ‘and she herself has little to say to him’. The Tribunal also referred to the fact that all or some of Ms S’s children had been present when assaults were taking place. The Tribunal observed, inter alia, at [99]:

The damage caused to them emotionally, may, according to Dr Lennings, be healed if Mr Tauariki remains sober and is in contact with Ms S, and with them. On the other hand, if he resorts to further bouts of drinking and re-offending, then it would compound the damage, and might play out in their own relationships as those develop when they are growing up.

31    In view of the above it can be seen that the Tribunal did refer to the effect of the separation of the applicant from his children. The Court is satisfied that those issues were considered.

32    However, the Tribunal did not make specific conclusions relating to the best interests of Ms A or Master C (Mr Tauariki’s children), nor Master T. The Tribunal also discussed the relationship between Mr Tauariki, Ms Rarity and her children, but did not reach any conclusions about what their best interests would be.

33    In Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501 (‘Nweke’) which considered a Minister’s personal decision to cancel a visa under s 501A(2) of the Act, Jagot J (at [21]) found that there had been a denial of procedural fairness in the circumstances because no conclusion had been formed concerning the best interests of the children and in failing to do so the Tribunal member had failed to confront ‘the central question of what the best interests of the children required him to decide with respect to the proposed deportation of their father’.

34    Similarly, in Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897 (‘Lesianawai’) Katzmann J found that the Minister had not reached a conclusion concerning the best interests of the children and therefore had failed to give primary consideration to such requirements, resulting in jurisdictional error. Her Honour stated at [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.

35    The Tribunal in the present proceedings did consider the living condition of the children with Ms S, their age, the extent of their communication with the applicant and of the circumstances prevailing in the home. But it could not be said that the Tribunal stated any conclusions concerning the children’s best interests.

36    The circumstances confronting her Honour in Lesianawai are virtually identical to those now before the Court. The Tribunal did not make an essential finding of what the best interests of the children were. In the absence of a conclusion, it is impossible to know what weight is to be given to such consideration. Therefore, the balancing of the primary consideration of the best interests of the children against the other primary considerations set out in Direction 41 remains incomplete.

37    It was submitted by the Minister that the decision in Nweke was not of direct relevance because it was not made pursuant to Direction 41 but considered instead a personal decision of the Minister.

38    What is clear from the decision of the Full Court in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 is that, at least with regard to the predecessor to Direction 41, it is unnecessary for a decision-maker to systematically go through each of the list of factors before determining what is in the best interests of the child: see also Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185 at [24].

39    However, Direction 41 requires a decision-maker to engage in a balancing exercise; weighing up the various primary considerations separately and cumulatively against each other: Minister for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 292; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 (‘Baker’) at [44]. If no conclusion is expressly stated about one of the primary considerations, then it is not possible for the Tribunal to determine how much it weighs in comparison with the other primary considerations.

40    The Court is satisfied that the correct considerations have been identified which were relevant to the Tribunal’s decision (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 61) and that the Tribunal has engaged in ‘an active intellectual process’ (see Tickner v Chapman (1995) 57 FCR 451 at 462) upon the mandatory consideration of the bests interests of the child. However, the Court accepts Mr Tauariki’s submission that the children’s best interests ‘were left at a level of speculation’.

41    The reference to ‘the family situation’ does not form a conclusion as to the children’s best interests. Given the evidence which the Tribunal received about Mr Tauariki’s connections to adult members of his family who reside in Australia, ‘family situation’ could equally be read as expressing the Tribunal’s opinion about the relationship between Mr Tauariki and his adult family members, which is a secondary consideration under Direction 41.

42    The Minister relied upon the decision of the Full Court in Baker at [55] which states:

We consider that the second ground of appeal should be rejected for the following two reasons. First, it fails to appreciate the legal significance of the Direction. As noted above, the Direction imposes binding requirements on relevant decision-makers. The Direction post-dates Teoh. If there is any inconsistency between the Direction and any passage in Teoh, the Direction necessarily prevails. In our view, while the Direction identifies the best interests of a child as potentially being a primary consideration, it does not elevate that matter above the other primary considerations in paragraph 10.

43    The Full Court in Baker agreed with Tracey J’s consideration of Teoh in Basile v Minister for Immigration and Citizenship (2011) 193 FCR 329 relating to the question of priority. At [46] his Honour observed:

Teoh does not require that the best interests of Mr Basile’s children must be given temporal primacy over the other three primary considerations which are identified in the Direction. The case stands for the proposition that, by ratifying the United Nations Convention on the Rights of the Child, the Australian government has represented that it will act conformably with the terms of the Convention. One of its Articles provided that, in all actions concerning children, administrative authorities of the State would ensure that “the best interests of the child shall be a primary consideration” (emphasis added). Although the Convention had not become part of domestic law, its ratification gave rise to a legitimate expectation that administrative decision-makers would comply with it and would not fail to do so without first affording an affected person the opportunity to argue that the decision-maker should treat the interests of a child as a primary consideration. It was not held that an Australian administrative decision-maker must always accord primacy to the interests of any relevant child much less that such a consideration must be brought into account before any other considerations are selected and weighed by the decision-maker.

44    The above principles however are inapposite to the present circumstances. Here the issue is not the primacy of consideration: rather, that no conclusion was made on the relevant primary consideration, namely the children’s best interests. It follows that jurisdictional error has occurred: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

45    The Court’s finding renders it unnecessary for the applicant to rely upon his remaining grounds. However, for completeness, the Court will address them.

Did the Tribunal fail to consider other relevant matters?

46    Pursuant to this ground, the applicant asserts that the Tribunal did not consider that if the applicant returned to New Zealand he might suffer harm resulting from his previous involvement of the ‘Mighty Mongrel Mob’ of which he was a former member.

47    At [105]–[106] of the decision, the Tribunal stated:

Mr Tauariki also told me that if he did not have a job, the gangs would get him. I am mindful that since being in Australia, the applicant has been regularly employed, generally in the construction industry when he has not been in prison. He is likely to similarly be able to find work in New Zealand.

However, even if there is a possibility Mr Tauariki may still be sought out by a gang, then there may be a consideration of international obligations as a primary consideration in weighing up whether he should be returned to New Zealand. I have undertaken that exercise and am of the opinion that the gang issue does not outweigh the other primary considerations which weigh against Mr Tauariki remaining in Australia.

48    The Court considers that these paragraphs clearly demonstrate that the Tribunal gave adequate consideration to the potential threat to Mr Tauariki from New Zealand gangs. The Court rejects this submission.

Failure to inform of an adverse conclusion

49    The applicant submits that the rules of procedural fairness required the Tribunal to inform the applicant that it may consider, in its deliberation, the risks of the applicant resuming his drinking habits which led to certain of his criminal activities.

50    The respondent’s statement of facts, issues and contentions which were placed before the Tribunal squarely raised the respondent’s contention that the risk of reoffending could be found to be higher if the Tribunal considered that the applicant continued to consume ‘significant amounts of alcohol’. The contentions directly raised the observations of Magistrate Stoddart in sentencing remarks in respect of an offence of 20 June 2011 as follows:

Alcohol has been a real problem for you [the Applicant] for some time and as a result you have been a real problem for other people, particularly the victim in relation to this matter.

51    Accordingly, the applicant, before the Tribunal, was place directly upon notice of the respondent’s contentions. There is no requirement by the Tribunal to inform the applicant that in its decision it would possibly consider whether he would remain sober or otherwise. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] French CJ and Kiefel J said:

Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. [Footnote omitted]

52    Given Mr Tauariki’s history with alcohol, the references to alcohol in previous sentencing decisions; the fact that Mr Tauariki was on an AVO which prohibits contact with Ms S while under the influence of alcohol; and the report of the consultant psychologist before the Tribunal, which stated that Mr Tauariki’s likelihood of reoffending would be contingent upon him avoiding excessive consumption of alcohol, the conclusion that Mr Tauariki would likely continue to drink and consequently reoffend was one which was obviously open on the known material. There was no need for the Tribunal to specifically bring it to the attention of Mr Tauariki. This ground of appeal fails.

53    It follows that the application must be upheld in view of the Court’s finding on Ground 1, the decision quashed, and the proceedings be remitted for determination according to law by the Tribunal.

Associate:

Dated:    13 December 2012