FEDERAL COURT OF AUSTRALIA

Amohanga v Minister for Immigration and Citizenship [2013] FCA 31

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, fixed in the sum of $9,000.

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

REASONS FOR JUDGMENT

Introduction

1    This is an application under s 476A of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 16 July 2012 (“the Decision”). The Decision affirmed a decision of a delegate of the first respondent (“the Minister”) to cancel the applicant’s visa pursuant to s 501 of the Act.

2    It is common ground that the applicant was a person with a substantial criminal record for the purposes of the “character test” in s 501 of the Act and therefore failed that test subject to the exercise of the Minister’s discretion.

3    It is also common ground that this Court has jurisdiction to hear and determine the application under s 476A(1)(b) of the Act. The decision is a privative clause decision under s 474 of the Act and, in order to succeed, the applicant must demonstrate that the Tribunal made a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

4    In his Originating Application filed on 13 November 2012, the applicant challenged the Decision on four grounds:

1.    The Tribunal departed from the legitimate expectation founded on the United Nations Convention on the Rights of the Child that the Tribunal would treat the best interests of the Applicant’s children as a primary consideration in deciding whether or not to affirm the decision to cancel his visa in that the Tribunal Member:

(a)    never confronted the central question of what the best interests of the children required him to decide with respect to the proposed cancellation of the Applicant’s visa;

(b)    failed to assume that the children’s best interests were for the Applicant’s visa not to be cancelled.

2.    The Tribunal Member failed to have regard to the Learned Magistrate’s remarks on sentence when the Local Court passed sentence on the Applicant on or about 25 November 2011.

3.    The Tribunal Member departed from the legitimate expectation that the Tribunal would act in conformity with the International Covenant on Civil and Political Rights so as to ensure that no one shall be arbitrarily deprived of the right to enter his own country in that the Tribunal Member:

(a)    failed to determine that the Applicant’s “own country” for the purposes of the Convention was the Commonwealth of Australia; and

(b)    failed to consider whether the decision to cancel the visa would be an arbitrary one, particularly having regard to the evidence that the Applicant’s behaviour had improved since the birth of his daughter;

4.    The Tribunal Member departed from the legitimate expectation that the Tribunal would act in conformity with the International Covenant on Civil and Political Rights so as to ensure that the family is entitled to protection by society and the State and that no one shall be subjected to arbitrary interference with his family in that the Tribunal Member:

(a)    failed to determine that the decision to cancel the Applicant’s visa would amount to an interference with his family life;

(b)    failed to have regard to the consequences the decision to cancel the visa would have on the Applicant;

(c)    failed to have regard to the consequences the decision to cancel the visa would have on the Applicant’s family, including his relationship with his youngest daughter;

(d)    failed to have regard to the evidence that there existed limited financial means for the Applicant’s family to visit him in New Zealand.

5    Ground 2 was not pressed.

Background

6    The applicant is a 41 year old New Zealand citizen. He has lived in Australia for most of his life. His parents came here in 1978 with their six children, when he was about seven years old.

7    The applicant grew up, and went to school, in western Sydney. In May 1986 when he was 15, he returned to New Zealand with his parents and his younger siblings. They returned to Australia in May 1987. Since then he has only been back to New Zealand once for a short holiday at Easter in April 1998.

8    The applicant was convicted and sentenced for a number of offences up until October 2010. Those offences mainly involved dishonesty and assault. In a letter dated 23 February 2011, the Department of Immigration and Citizenship gave the applicant a formal warning that his visa was liable to cancellation under s 501 of the Act. The letter informed him that a delegate of the Minister had decided not to cancel the visa “on this occasion”, but warned that visa cancellation may be reconsidered if he committed further offences.

9    On 25 November 2011, the applicant was convicted of two further offences; assault occasioning actual bodily harm and breach of an apprehended violence order (“AVO”). He was sentenced to 13 months imprisonment on the assault charge, and nine months for breach of the AVO. The victim was JD, the applicant’s erstwhile domestic partner.

10    On 20 April 2012, and substantially as a result of his additional convictions, a delegate of the Minister cancelled the applicant’s visa.

11    The applicant applied to the Tribunal for a review of the decision to cancel his visa. There was a hearing before the Tribunal. In the Decision, the Tribunal affirmed the decision under review. The applicant’s visa remains cancelled.

Present Relevant Factual Context

12    At [19] of its Reasons for Decision (“RD”), the Tribunal found:

[19]    [The applicant’s] parents and all of his siblings live in Australia. He has numerous family relations, aunties and uncles (more than 20), nieces and nephews (more than 40) and cousins (more than 60), all of whom live in Australia. He is not aware of any relatives who still live in New Zealand.

13    At RD [120] and [121] the Tribunal found:

[120]    [The applicant] says he has no familial ties in New Zealand. There is no evidence to the contrary. I accept therefore that his return to New Zealand, where he lived only briefly, with his parents, when he was 15 is a factor that tells against the appropriateness of cancelling his visa.

[121]    Whether and to what extent any of his immediate family members will be able to visit him is not specifically disclosed by the evidence, and is a matter of inference. The fact that his parents have travelled to New Zealand on occasions in the past perhaps provides some slight indication that they may be capable of some occasional visits to him. His daughter Aria will be funded for visits twice a year. I consider it proper to conclude there is a likelihood that [the applicant] will have few family visits and that the consequential isolation and emotional hardship is another consideration that tells against the cancellation of his visa.

14    At RD [81] the Tribunal found that the applicant had three natural children – a daughter K (now aged 17), JD’s son F (now aged 17) and JD’s infant daughter Aria (now aged 15 months). It is common ground that all are Australian citizens. The Tribunal also found that JD has another daughter – W – whom the applicant says he recognises as his own child.

Ground 1

15    This ground, like grounds 3 and 4, alleges a failure on the part of the Tribunal to accord the applicant procedural fairness based on his “legitimate expectation”, in the case of this ground, that the Tribunal would treat the best interests of the applicant’s children as a primary consideration, in conformity with the United Nations Convention on the Rights of the Child 1989 (“the UNCROC”) to which Australia is a signatory, in deciding whether or not to affirm the Minister’s decision to cancel his visa.

16    Implicit in this ground is that the Tribunal erred in treating the best interests of the applicant’s children as a primary consideration as mandated by Direction [no. 41], the currently applicable direction issued by the Minister under s 499(1) of the Act. The “basic starting point” for this argument, as put by the applicant, was threefold:

(1)    The Tribunal failed to attach any importance at all to the fact that all the applicant’s natural children were Australian citizens;

(2)    the Tribunal never identified in its RD that it had regard to the best interests of the children as a primary consideration; and

(3)    the Tribunal had no regard whatsoever as to whether or not it was in the best interests of K, one of the applicant’s children, that the applicant’s visa be cancelled.

17    As to the first of these “basic starting points”, it was not articulated how the Tribunal erred in failing to acknowledge that all of the applicant’s natural children were Australian citizens. It was not a fact in contest and, even if it were, its relevance to the consideration of whether or not it was in the best interests of the applicant’s children that the applicant’s visa be cancelled was not made out.

18    As to the second, it has no foundation whatsoever. The alleged lack of identification on the part of the Tribunal that regard be had to the best interests of the children as a primary consideration must be evaluated from a consideration of the Tribunal’s reason as a whole, not from some “sniper attack” on individual paragraphs of the RD. The starting point is the manner in which the Tribunal referred to Direction [no. 41], its distinguishment between “the four primary considerations” and seven “other considerations”, the distinction between them, the recitation of the four primary considerations and a number of the other considerations. All this is dealt with at RD [10]–[16]. The Tribunal then proceeded to deal with the primary considerations referred to at RD [15(b)] and [15(c)] at RD [17]–[26], the primary consideration referred to at RD [15(a)] at RD [27]–[80] and the primary consideration at RD [15(d)] – the best interests of the children – at RD [81]–[97]. The Tribunal then went on to deal with the other considerations at RD [98]–[123]. The Tribunal’s conclusion at RD [136]–[138] clearly identifies the best interests of the applicant’s children as one of the primary considerations in the decision-making process, albeit by way of relation back to the reasons which had preceded. At RD [136] the Tribunal wrote:

Three of the primary considerations point, although they do not in my consideration of the relevant circumstances weigh heavily, against visa cancellation. Some of the other considerations also point against cancellation, because of the disruption and hardship to [the applicant], and his family, associated with his removal to New Zealand and the transition that will involve.

19    This is not a case of the kind which came before the Full Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 where the Full Court found that the Tribunal failed to identify “anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan’s application for a visa” (at [26]), but even if that were wrong, it was “inescapable that the Tribunal did not treat the best interests of the children as ‘a primary consideration’ in its determination”, and in so doing denied Mr Wan procedural fairness (at [31]).

20    As to the third, it is true that apart from what is written about K at RD [82], nothing further is written. On the other hand, having regard to what is written at RD [82], that is not surprising; little more, if anything, could be written concerning whether or not it was in the best interests of K that the applicant’s visa be cancelled. At RD [82] the Tribunal found:

K is almost 17 years of age, and still at school. She lives in Penrith with her mother’s family. [The applicant] has had no direct contact with her, except comparatively recently via Facebook. He does not deny his relationship with K (and F) is somewhat distant.

On those findings, and in the absence of any relevant evidence, nothing could be said or written as to whether or not it was in the best interests of K that the applicant’s visa be cancelled.

21    In short, the best interests of each child were dealt with, including K’s, to the extent that the available evidence permitted that course.

22    Moving beyond the “basic starting point”, the applicant submitted that an essential task for the Tribunal was to make a finding whether or not the best interests of Aria required the visa not to be cancelled and for the applicant to remain in Australia. So much may be accepted.

23    The applicant argued that whilst the Tribunal concluded that “it is in Aria’s best interests to facilitate a future relationship with her natural father” (RD [96]) and “to maintain direct contact with [the applicant]” (RD [97]), the Tribunal failed to determine whether Aria’s best interests were for her father’s visa not to be cancelled. The Tribunal thus failed, according to the applicant, to weigh the risk of harm to the Australian community from the applicant’s possible re-offending against those interests.

24    The argument was articulated , more particularly, as follows: when the Tribunal came to consider whether the risk of harm to the Australian community outweighed the best interests of Aria, the Tribunal weighed the risk of harm created by a risk of the applicant’s re-offending against the fact that it was in Aria’s best interests to maintain future contact with her father, not whether it was in her best interests for her father to remain in Australia. Given this balancing exercise, it was not surprising that the Tribunal’s positive finding of a risk of harm outweighed the harm to Aria’s best interests, particularly in circumstances where the Minister had offered to facilitate contact with her father if his visa was cancelled and he had to move to New Zealand.

25    I agree with the Minister’s submission that although there was no explicit conclusion about Aria’s best interests in relation to the cancellation of the applicant’s visa, it is clear, for reasons including those already referred to in [18] above, that the Tribunal’s conclusion amounted to the same thing; namely, that it was in Aria’s best interests for the applicant’s visa not to be cancelled so as to enable the applicant to remain in Australia (because then she would have physical interaction with him more often than under the proposed twice yearly visits to New Zealand): RD [97].

26    What the Tribunal then concluded was that – weighing the best interests conclusion and the inherent difficulties that would be attendant upon Aria’s broader family situation (and, implicitly, the applicant’s presence) – the best interests of Aria that the applicant’s visa not be cancelled were not such as to outweigh the reasons for cancelling the visa.

27    In my view, it was open to the Tribunal to so conclude because, even if it be the case that the applicant had a legitimate expectation, based on what fell from Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 291–292, that the Tribunal would act in conformity with the UNCROC and treat the best interests of the children as a primary consideration, so that if a decision-maker proposed to make a decision inconsistent with that legitimate expectation, procedural fairness would be denied if the affected person were not given the opportunity to present a case against the taking of that course, the Tribunal did act in conformity with the UNCROC and treated the best interests of the children in relation to the cancellation of the applicant’s visa as a primary consideration.

28    Ground 1 of the applicant’s Originating Application cannot be sustained.

Grounds 3 and 4

29    These grounds also allege a failure on the part of the Tribunal to accord the applicant procedural fairness based on his “legitimate expectation”, in the case of ground 3, that the Tribunal would act in conformity with the International Covenant on Civil and Political Rights (“ICCPR”) so as to ensure that the applicant is not arbitrarily deprived of the right to enter his own country; and in the case of ground 4, that the Tribunal would act in conformity with the ICCPR so as to ensure that the applicant is not subjected to arbitrary interference with his family, in circumstances where his family unit is entitled to protection by society and the State.

30    In the case of ground 3, the applicant’s argument was summarised in his written outline as follows:

(1)    Australia has ratified the ICCPR. At 291 of Teoh, Mason CJ and Deane J held that:

[R]atification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the [UNCROC]. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the [UNCROC].

(2)    Article 12(4) of the ICCPR states that “[n]o one shall be arbitrarily deprived of the right to enter his own country”.

(3)    Following Teoh, the applicant had a legitimate expectation that he would not be arbitrarily deprived of the right to enter his own country.

(4)    The Tribunal had to consider whether Australia was the applicant’s “own country” for the purposes of the ICCPR, and whether the decision to cancel his visa was arbitrarily depriving him of the right to enter his own country. It does not matter that this issue, or the ICCPR itself, was not raised by the applicant before the Tribunal. As Mason and Deane J said at 291 of Teoh:

It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the [UNCROC] or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.

(5)    In this case there were adequate materials to support the legitimate expectation. First, the Tribunal found that the applicant had lived nearly all his life in Australia. He thus had no other country of his own. Second, Direction [no. 41] required the Tribunal to give “primary consideration” to “relevant international obligations”.

(6)    Those international obligations include those contained within the ICCPR for the reasons given in Teoh above.

(7)    In this case the Tribunal failed to give any consideration to the ICCPR and failed to give any consideration to whether Australia was the applicant’s own country for the purpose of the ICCPR. The Tribunal thus failed to consider whether the decision to cancel his visa was an arbitrary deprivation of his right to enter his own country.

(8)    The Tribunal departed from the legitimate expectation founded on the ICCPR and thus denied the applicant procedural fairness. The Tribunal’s decision was vitiated by jurisdictional error.

31    In the case of ground 4, the argument went as follows:

(1)    Articles 17 and 23 of the ICCPR relevantly state as follows:

Article 17(1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

…

Article 23(1)

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2)    Following Teoh, the applicant had a legitimate expectation that he would not be subjected to arbitrary interference with his family, in circumstances where his family is entitled to protection by society and the State.

(3)    The Tribunal thus had to consider whether the decision to cancel the applicant’s visa and to deport him to New Zealand, a country where he has no ties apart from his nationality, was “interference with his family”.

(4)    The Tribunal also had to consider whether the interference with the family, if any, was arbitrary.

(5)    In this case there were adequate materials to support the legitimate expectation. First, the applicant had lived nearly all his life in Australia. Second, his family – that is, his parents, siblings and children – live in Australia. Third, the visa cancellation was of a definite nature. Fourth, the Tribunal found that the applicant would have only few visits from his family in the event that he was deported. Fifth, Direction [no. 41] required the Tribunal to give “primary consideration” to “relevant international obligations”.

(6)    Those international obligations include those contained within the ICCPR.

(7)    In this case the Tribunal failed to give any consideration to the ICCPR and, in particular, failed to give any consideration to the question whether the decision to cancel his visa constituted arbitrary interference with his family, in circumstances where his family is entitled to protection by society and the State.

(8)    The Tribunal departed from the legitimate expectation founded on the ICCPR and thus denied the applicant procedural fairness. The Tribunal’s decision was vitiated by jurisdictional error.

32    In response, the Minister submitted that, in the light of the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, Teoh was wrongly decided. According to the Minister, Lam decided that the concept of “legitimate expectation” has no role in procedural fairness and its use should be avoided: Lam at [61]–[63], [81]–[83], [116]–[121], [140]–[148]; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616 at [65].

33    However, the Minister accepted that this Court was bound by Teoh, referring to Nweke v Minister for Immigration and Citizenship [2012] 126 ALD 501; C  Inc v Australian Crime Commission (2008) 251 ALR 424 at [55] per Reeves J; upheld on other grounds in C Incorporated v Australian Crime Commission (2010) 113 ALD 226; and Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22 per Maxwell P at [75]–[79].

34    The Minister submitted that the correct ratio of Teoh is that the UNCROC created a legitimate expectation that a decision-maker would act consistently with the UNCROC. The High Court did not consider the application of the ICCPR and, on that basis, this Court is not bound to apply the decision in respect of the ICCPR.

35    The Minister accepted that Teoh raises a broader proposition for consideration: namely, that Australia being a signatory to any international convention raises a legitimate expectation that a decision-maker will act consistently with that convention (although such an expectation must impliedly, it is submitted, only arise in relation to a relevant international convention). The critical question arises as to whether the binding ratio in Teoh encompasses this broader proposition.

36    The Minister submitted that the High Court in Lam gave a clear indication that it disapproved or doubted significant aspects of the decision and reasoning in Teoh: at [12] per Gleeson CJ; at [28]–[34] per McHugh and Gummow JJ; at [38] per Hayne J; at [47] and [48] per Callinan J. According to the Minister, it is apparent that the High Court now considers that “the phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded”: at [65] per Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10. Given this, the Minister submitted that Teoh should be read narrowly, consistent with its ratio, and not as authority for any broader proposition of the sort that would support a finding that, in the circumstances of this case, the applicant had a legitimate expectation in respect of the ICCPR (although, on the authority of Teoh, the Minister accepted that the applicant did have such an expectation in relation to the UNCROC).

37    I agree with these submissions, with the consequence that I do not regard myself as bound by Teoh insofar as any claim in respect of the ICCPR is concerned.

38    For the applicant to succeed on this ground, the applicant must establish two matters; first, the applicant must show that Australia’s ratification of the ICCPR led to the applicant having a legitimate expectation that the Tribunal would act consistently with the ICCPR; and, second, the applicant must show that upon an objective consideration of the decision it can be shown that the Tribunal did not act consistently with the ICCPR and thereby it may properly be inferred that the Tribunal intended to depart from the ICCPR. This last finding is essential to any application of Teoh because it provides the only basis for the breach of duty of procedural fairness.

39    It was submitted that the applicant’s arguments fail, a submission with which I agree, principally for two reasons. First, the applicant has not demonstrated that the Tribunal’s decision is inconsistent with the ICCPR in the way required to ground a breach of procedural fairness. The most that the applicant can arguably show is that the Tribunal did not explicitly refer to consideration of the ICCPR. More is required. The onus is on the applicant to show that the decision is inconsistent with the ICCPR in order to have any basis for the inference that the Tribunal intended to depart from the applicant’s legitimate expectation.

40    Secondly, there is no inconsistency between the Tribunal’s decision and the terms of the ICCPR and therefore the Tribunal did not, and by extension did not intend to, depart from the terms of the ICCPR. This is because:

(1)    Articles 12(4) and 17 of the ICCPR both prohibit conduct that is arbitrary: either arbitrary deprivation of a right, in the case of Art 12(4), or arbitrary interference with family, in the case of Art 17. The consideration of the applicant’s visa involved a determination according to law in which a number of factors, including the effect on the applicant’s family and personal circumstances, were considered. In my view, it is clear that the process of cancellation and the hearing before the Tribunal could not, on any meaning of the word, be described as arbitrary: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 248 per Ryan J at [45]; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 143 per Sundberg, Marshall and North JJ at [35] and [36].

(2)    The matters that are the subject of Art 23 of the ICCPR were already considered by the Tribunal in the Decision. Article 23(1) relevantly states that the family is “entitled to protection by society and the State”. The Tribunal gave consideration to both the interests of the applicant’s children and the interests of the applicant’s broader family, as well as his relationship with his partner and the hardship that the cancellation of visa may bring about on his family. The Tribunal weighed those matters and made findings that were positive in favour of the applicant but nevertheless found that they did not outweigh the impact of the applicant’s significant criminal record.

41    The Decision is, on a proper reading, consistent with the ICCPR. On an objective reading of the Decision there is nothing in it to suggest that the approach adopted, or the matters considered, by the Tribunal were either incompatible with the ICCPR or matters to which the ICCPR could apply. There is no suggestion of a departure from the ICCPR in the sense discussed in Teoh. In those circumstances, no inference can be drawn about any departure from the ICCPR and no issue of procedural fairness arises.

42    To embrace the words of Gleeson CJ in Lam at [34], the decision must involve more than a mere departure from a representation; unfairness must be demonstrated and, in my view, the applicant has not demonstrated unfairness in the Tribunal’s failure to explicitly refer to consideration of the ICCPR and, in particular, Arts 12(4), 17 and 23 thereof.

43    Grounds 3 and 4 cannot be sustained.

Conclusion

44    The application must be dismissed with costs.

Associate:

Dated:    1 February 2013