FEDERAL COURT OF AUSTRALIA

AZAEH v Minister for Immigration and Border Protection [2015] FCA 414

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal to raise proposed new grounds of appeal be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal): see AZAEH v Minister for Immigration and Border Protection [2014] FCCA 1438 (FCC). The decision of the Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) visa (protection visa). For the reasons outlined below, I would dismiss the appeal.

The facts as Found by the Tribunal

2    The appellant, who is a citizen of Afghanistan, entered Australia in 2012 and applied for a protection visa a little over three months after entry. He claimed that because of his status as a Hazara Shi’a Muslim, he would face a real chance of serious or significant harm in Afghanistan by the Taliban. He claimed to face a real chance of such harm from the Taliban because, whilst working as a taxi driver, he had transported teachers and students, some of whom were girls, in his taxi. He also claimed that his brother, who had been a soldier in the Afghan National Army, had been killed by the Taliban. He claimed that the Afghan authorities could not provide him with state protection.

3    A delegate of the Minister refused to grant him a protection visa, for reasons stated by the delegate at the time; and almost immediately thereafter, the appellant applied to the Tribunal for review of the delegate’s decision. His representative made written submissions on his behalf and the appellant attended a Tribunal hearing, at which he was represented and gave evidence. The Tribunal ultimately affirmed the delegate’s decision to refuse to grant him a protection visa.

4    In its reasons for decision, the Tribunal recorded that it “generally found the applicant [the appellant in this Court] to be a credible witness” and that “his evidence [was] generally consistent with his written claims”. On analysis of the appellant’s evidence and country information, the Tribunal accepted that there was a real risk of significant harm to him if he returned to his home area in Afghanistan. The Tribunal did not accept, however, that the appellant would face a real chance of serious or significant harm from the Taliban in Kabul.

5    The Tribunal found that, having regard to the appellant’s circumstances, it would be reasonable for him to relocate to Kabul. The Tribunal stated as follows:

The applicant admitted at the hearing that he has travelled to Kabul for work and owns a house in Kabul which he purchased. The house is currently rented out and generating income.

In response to this being put to him, the applicant claims that his house in Kabul was small and he would not be able to accommodate his extended family. He claims that the rental income earned from the Kabul property is used to support his family and supplement the farming income. He claims he is unable to sell his family home … because there are other family members with an interest in the property. The applicant agreed he could work as a taxi driver in Kabul but claimed that there are many taxi drivers in Kabul and it was dangerous.

The Tribunal has considered the applicant’s submissions that it would be difficult for him to secure work in Kabul. The Tribunal finds that the applicant is [of a specified age], he is an experienced driver who admitted that he has driven his taxi to Kabul in the past. The Tribunal also notes the applicant has [trade] skills which assisted him to earn a living in the past. The Tribunal finds the applicant’s past work experience and skills provide him with a strong foundation to securing work in Kabul. The Tribunal notes the applicant’s submissions that his house in Kabul is small and would not be able to accommodate his extended family. The Tribunal finds that the applicant’s house in Kabul will provide him with a secure base which can assist him to obtain larger premises to accommodate his family.

The Tribunal has considered the guidance offered by the UNHCR in considering whether in the circumstances it would be reasonable for the applicant to relocate to Kabul. The Tribunal finds in all the circumstances it is a reasonable option open to the applicant. Having considered the applicant’s personal circumstances, the Tribunal finds the applicant is in a unique situation where he owns a house and has the ability to continue work as a taxi driver in Kabul and in this regard he is not reliant on extended family, community or tribe to obtain employment and shelter.

The Tribunal accepts that initially relocation to Kabul may result in a reduction of income which is available from the rental property, however, as stated above the Tribunal finds the applicant would be able to drive a taxi and seek and do [trade] work in the future. The Tribunal finds that there is no real chance that the applicant will be denied the capacity to earn a livelihood for the reason of his race, religion or any other Convention reason in Kabul. The Tribunal finds that there is no real chance that the applicant will be subjected to significant economic hardship for a Convention reason in Kabul.

6    Accordingly, the Tribunal concluded that the appellant did not have a well-founded fear of persecution in relation to Afghanistan as a whole. The Tribunal was therefore not satisfied that he was a person in respect of whom Australia has protection obligations under the Refugees Convention and the Refugees Protocol, as defined in s 5(1) of the Migration Act 1958 (Cth) (Migration Act) or otherwise. The Tribunal was not satisfied that the appellant satisfied s 36(2)(a) or (aa) of the Migration Act.

The decision of the Federal circuit court

7    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, advancing a single ground in support of his contention that the Tribunal’s decision was affected by jurisdictional error. The appellant, who was legally represented, contended that the Tribunal had failed to consider whether it was reasonably practicable for him to return to Kabul, having regard to his personal circumstances, including that he had numerous dependents and that his house in Kabul was too small to accommodate them all: see FCC, [22]-[23], [53], [67]. The Federal Circuit Court rejected this submission, stating (at FCC, [70]):

In my view, a fair reading of the Tribunal’s reasons as a whole indicates that it did consider the practical difficulties confronting the applicant, including issues relating to his accommodation, employment prospects and obligations to his extended family.

The Federal Circuit Court therefore dismissed the appellant’s judicial review application. This is an appeal from that judgment.

the appeal

8    The appellant initially relied on only one ground of appeal (relocation test ground), which was in the following terms:

The Federal Circuit Court erred in not finding that the decision of the Refugee Review Tribunal was affected by jurisdictional error on the ground that the Tribunal did not correctly apply the "internal relocation" test with respect to its assessment of whether relocation was reasonable, in the sense of practical, in a proper, realistic and fair way (SZIED v Minister for Immigration and Citizenship [2007] FCA 1347). The Federal Circuit Court should have found that the Tribunal did not apply the internal rel[ocation] test in a proper, realistic and fair way because the Tribunal had not given the necessary consideration to the reasonableness of relocation in the light of the appellant being responsible for 8 dependents (see [72]-[80] of the decision below).

9    Prior to the hearing, the appellant indicated that he intended to seek leave to raise three further grounds. At the hearing, however, his counsel informed the Court that the appellant was not pursuing one of these proposed grounds. As a result, the appellant sought leave only in relation to the following two grounds:

1.    The Federal Circuit Court erred in not quashing the decision of the Refugee Review Tribunal on the ground that the Refugee Review Tribunal applied the wrong legal test in assessing whether it was “reasonable” for the appellant to relocate to Kabul within the meaning of s 36(2B)(a) of the Migration Act 1958 (Cth), by applying a test that did not accommodate primary consideration to be given to the best interests [of a child].

Particulars

i.    The text and context of s 36(2B)(a) of the Migration Act 1958 (Cth) reveal that no clear meaning is given to the term “reasonable” by the Act itself, and the term is ambiguous.

ii.    The term “reasonable” should be construed in accordance with Australia’s international obligations.

iii.    The Commonwealth of Australia is a party to the Convention on the Rights of the Child.

iv.    The Tribunal decision was an action concerning a child within the meaning of the Convention on the Rights of the Child because it involved a finding that it was reasonable that three children would, or would be expected to, relocate … to Kabul.

v.    The term “reasonable” should be given a meaning that accommodates primary consideration being given to the best interests of a child.

2.    The Federal Circuit Court erred in not quashing the decision of the Refugee Review Tribunal on the ground that the Refugee Review Tribunal failed to afford procedural fairness to the appellant in not giving him notice that it would be making a decision contrary to the legitimate expectation that the best interests of a child will be a primary consideration, and in not giving the appellant an opportunity to advance reasons why the Refugee Review Tribunal should not take that course.

10    The particulars of this second proposed ground were as follows:

Particulars

i.    The Tribunal decision was an action concerning a child within the meaning of the Convention on the Rights of the Child because it involved a finding that it was reasonable that three children would, or would be expected to, relocate … to Kabul.

ii.    The Commonwealth of Australia is a party to the Convention on the Rights of the Child and there exists a legitimate expectation that Officers of the Commonwealth will act conformably with treaties to which the Commonwealth of Australia is a party.

11    The authorities establish that an appellate court has a discretion to permit an appellant to argue a ground on appeal that was not argued below where it considers that it is expedient and in the interests of justice to entertain the ground: see, for example, Water Board v Moustakas (1988) 180 CLR 491 at 497 and Coulton v Holcombe (1986) 162 CLR 1 at 8, citing O’Brien v Komesaroff (1982) 150 CLR 310 at 319. Leave will not be granted where that would work injustice to another party.

12    The Minister did not contend that the grant of leave would work injustice. Rather, the Minister opposed the grant of leave on the basis that the proposed grounds lacked sufficient merit to permit the conclusion that it was expedient and in the interests of justice to entertain them. For the reasons set out below, I accept the Minster’s contention in this regard.

relocation test Ground

13    Under the appellant’s original ground, the appellant contended that the Federal Circuit Court erred in not finding that the Tribunal’s decision involved jurisdictional error because the Tribunal misapplied the legal test relating to internal relocation. The appellant submitted that there was jurisdictional error in that the Tribunal limited its assessment to “the reasonableness of obtaining suitable accommodation” and “did not test other factors … that … arose consequent upon the (implicit) finding that the Appellant’s dependents would also relocate to Kabul”. In written submissions, the appellant submitted that:

[The Federal Circuit Court] erred in not finding that the [Tribunal] had failed to lawfully apply the reasonable relocation test in not considering the “practical realities” concerning the relocation of the Appellant’s dependents to Kabul, even on the assumption that suitable accommodation could be obtained. Issues such as schooling, or familial and traditional ties to the district of the dependents were germane to this necessary assessment. It is this task which the [Tribunal] ignored, and thus, failed to apply the reasonable relocation test, in a proper, realistic and fair way.

14    As noted in the passage at [5] above, the Tribunal found that the appellant’s “house in Kabul will provide him with a secure base which can assist him to obtain larger premises to accommodate his family”. The appellant argued that in making this finding the Tribunal also implicitly found that the appellant’s dependents would move to Kabul on the appellant’s relocation there. This proposition was the foundation for the appellant’s submission at the hearing that, in assessing whether it was reasonable for the appellant to relocate to Kabul, the Tribunal had to turn its mind to the circumstances of the appellant’s dependents. I reject this proposition.

15    The appellant made limited claims about his dependents. He did not refer to the circumstances of his dependents at the time of the hearing or in the future except as discussed by the Tribunal in its reasons. In his protection visa application and in the statutory declaration that accompanied that application, the appellant referred to members of his family, their age and relationship to him. Undated submissions prepared by the appellant’s representative for the benefit of the Minister’s delegate maintained that relocation was not “a viable option” by reference only to country information about the security situation in Afghanistan, including Kabul.

16    Later submissions prepared for the Tribunal referred to the fact that the appellant was married, with three children, and that some other family members were also dependent on him. These submissions argued that relocation to Kabul was “inappropriate”, citing that the appellant came from a small town and had no support network in Kabul; that he would suffer persecution and struggle to find work there; and that “it would be very difficult to successfully relocate his entire family and his dependents there without risk of harm”.

17    The Tribunal’s reasons indicate that the appellant gave some limited evidence about his family at the hearing. The Tribunal noted at [20] of its reasons:

The Tribunal asked the applicant how his family were able to support themselves while he was in Australia. The applicant said that the family farming property generated some income and he also owned a house in Kabul which was rented out.

18    As set out in the passage at [5] above, in response to the Tribunal’s enquiry about his possible relocation to Kabul, the appellant claimed that “his house … was small and he would not be able to accommodate his extended family”; and that “the rental income earned from the Kabul property is used to support his family and supplement the farming income”.

19    The Tribunal accepted that the appellant had a wife, three children and extended family, for whom he provided economic support. The Tribunal’s statement that the appellant’s house in Kabul would provide him with a “secure base which can assist him to obtain larger premises” was responsive to the appellant’s claim that that house was too small to accommodate his extended family. In saying this, the Tribunal simply allowed for the possibility that the appellant might wish to accommodate his wife, children and members of his extended family in Kabul. The Tribunal did not find, expressly or impliedly, that they would, or would have to, relocate to Kabul immediately on the appellant’s relocation there. A key plank in the appellant’s argument in support of this ground is therefore missing and the ground must therefore fail.

20    Further, as will be seen from the above account of the appellant’s statements about his dependents, the appellant did not claim that members of his extended family would or would have to move to Kabul if he were to relocate there. The appellant’s statements in opposition to relocation focussed on the risk of persecution, the risk of physical harm to himself and his family, difficulty in finding work and his own lack of support network. The appellant did not make any claim about the education or social interconnectedness of any dependent children who might move to Kabul.

21    In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Randhawa) at 443, Black CJ observed that “it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere, without giving the issue more specific attention, but the extent of the decision-maker’s task will largely be determined by the case sought to be made out by the applicant”. The Tribunal’s task was to assess the reasonableness of the appellant relocating to another part of his native country by reference to the issues raised by him and on the other material before the Tribunal. The Tribunal’s inquisitorial role does not extend to making an applicant’s case for him: MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348 at 364 [73], citing Randhawa and Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]. In this case as in Randhawa, the appellant raised a number of objections to relocation to Kabul, all of which were considered and addressed by the Tribunal. Having regard to the issues raised by the appellant and the other material before the Tribunal concerning relocation, the internal relocation ground does not disclose jurisdictional error on the Tribunal’s part: cf: NABE v Minster for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at 18-19 [58], 19-20 [60]-[61], 22 [68]. The Tribunal’s findings were responsive to the claims actually made by the appellant concerning his family and the issues raised on the materials. Neither the appellant’s claims nor the other material before the Tribunal required it to consider issues relating to the appellant’s dependent children such as schooling, or their familial and traditional ties. In these circumstances, the way the Tribunal considered the issue of relocation did not disclose an erroneous formulation and application of the internal relocation test.

the first proposed new ground

22    Under the first of the proposed new grounds, the appellant sought to argue that the Tribunal erred in its construction of s 36(2B)(a) of the Migration Act because in assessing whether it would be reasonable for the appellant to relocate to Kabul, the Tribunal did not give primary consideration to the best interests of the appellant’s dependent children. The appellant acknowledged that “primary” in this context did not mean “paramount” or “overwhelming”. The appellant submitted that the Tribunal found that the appellant “has three children and a child nephew that are dependent upon him” and repeated that the Tribunal “implicitly found that an aspect of the reasonableness of the appellant’s relocation to Kabul was that these dependent children would also relocate” to that city.

23    At the time of the Tribunal’s decision, s 36 of the Migration Act relevantly provided that:

(1)    There is a class of visas to be known as protection visas.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa.

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country     generally and is not faced by the non-citizen personally.

…

24    Whilst the Tribunal considered the appellant’s claims under both ss 36(2)(a) and 36(2)(aa), the appellant’s argument under this proposed new ground focussed on ss 36(2)(aa) and 36(2B)(a) of the Migration Act. In written submissions, the appellant submitted that the word “reasonable” in the phrase “reasonable for the non-citizen to relocate” in s 36(2B)(a) was “ambiguous”, “susceptible of a construction consistent with Australia’s international obligations” and to be construed consistently with Australia’s obligations under the Convention on the Rights of the Child (1577 UNTS 3; opened for signature on 20 November 1989; entered into force on 2 September 1990 and ratified by Australia on 16 January 1991) (CROC) and, in particular, article 3(1). Article 3(1) of CROC provides that:

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.

25    At the hearing the appellant withdrew from his submission that the use of the word “reasonable” in s 36(2B)(a) introduced relevant ambiguity. Rather, his counsel submitted that if the terms of a statutory provision “can bear it, they should be given a construction consistent with an international obligation”.

26    The appellant’s counsel argued that, in assessing whether it would be reasonable for the appellant to relocate to Kabul, the Tribunal was required to consider “the practical reality” of the proposed relocation. In considering this practical reality, the Tribunal was required, so the appellant submitted, to take into account the interests of the appellant’s dependent children and to give primary consideration to the children’s best interests. Whilst acknowledging that the visa applicant was the focus of s 36(2B)(a), the appellant submitted that this focus did not exclude “considerations beyond the applicant per se” and that the “best interests of the children are clearly of sufficient connection to that inquiry about the reasonableness of that person relocating”.

27    In written submissions the appellant contended that “[t]he refusal of the visa amounted to ‘action’ within the meaning of Art 3(1) and the finding that children were to relocate gave this action the character of action ‘concerning children’”. To support this contention, the appellant relied on the comments of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh) at 289, submitting that “a finding that relocation is reasonable in the course of conducting a review of an application for a protection visa that had been refused by a delegate is relevantly action within the meaning of article 3(1) of the CROC”; and that “the best interests of children” consideration was “an implied mandatory relevant consideration in the “Peko-Wallsend sense” (referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J)). Counsel for the appellant submitted that article 3(1) of CROC “identifies the character of the interest, and it identifies the level of weight that must be given to that interest, in what is otherwise just an orthodox application of a statutory test [to] the facts before the decision-maker”.

28    Because the Tribunal did not give any consideration to the interests of the appellant’s dependent children, then, so the appellant said, it could not have given primary consideration to the best interests of children. The appellant argued that the Court should infer from this that the Tribunal “did not apply the correct legal test with respect to s 36(2B)(a)” of the Migration Act.

29    There are a number of reasons for rejecting the appellant’s submissions in support of this proposed new ground. The first is that, as already stated, I reject the proposition that the Tribunal found that the appellant’s dependent children would, or would have to, relocate to Kabul on the appellant’s relocation there. This was a key part of the appellant’s argument in support of this ground, which therefore fails in limine.

30    Secondly, the focus of ss 36(2)(aa) and 36(2B)(a) is on the non-citizen in Australia who has made a protection visa application (and is thereby seeking protection). It is this person in respect of whom the Minister must have “substantial grounds for believing that, as a … consequence of the non-citizen being removed … to a receiving country, there is a real risk that the non-citizen will suffer significant harm”: s 36(2)(aa). Section 36(2B)(a) provides, however, that there can be no such risk if the Minister is satisfied that it would be reasonable for that non-citizen to relocate to an area of the receiving country where there will be no real risk of significant harm to him or her. The appellant sought only protection for himself. The family unit provisions were not engaged: see, for example, ss 36(2)(b) and (c). The proposition that a decision-maker in making a decision under s 36(2)(aa) having regard to s 36(2B)(a), in discharging the statutory duty under s 65, must give primary consideration to the best interests of children who are not the subject of (or otherwise within) an application for a protection visa is inconsistent with the statutory scheme, of which these provisions form part. In particular, the question that arises under s 36(2B)(a) is whether or not it would be reasonable for the non-citizen visa applicant (here, the appellant) to relocate to a part of the country where there would not be a significant risk of harm to him. To mandate that primary consideration be given to the best interests of children who are not applicants for protection is, so far as ss 36(2)(aa) and 36(2B)(a) are concerned, to focus on the wrong person.

31    Under s 36(2)(aa) the Minister must reach a satisfaction as to whether the criteria for the grant of a visa have been met and, in the case of s 36(2B)(a), a satisfaction as whether it would be reasonable for the non-citizen to relocate internally. These provisions do not confer discretionary power, the exercise of which may depend on the decision-maker’s consideration of a mandated factor of the kind for which the appellant contends.

32    Thirdly, there is no ambiguity in s 36(2B)(a) and this provision is not susceptible of the construction for which the appellant contends. The principle of statutory construction referred to by Mason CJ and Deane J in Teoh at 287 therefore has no application in the construction of this statutory provision. The use of the word “reasonable” does not introduce ambiguity, although the assessment required under this provision may involve difficult questions of fact and degree. As indicated, the construction for which the appellant contends would, if adopted, involve reading into s 36(2B)(a) a requirement that has no basis in that provision. Such a reading would illegitimately “narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers”, to adopt the language of French J in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [59] (concerning the status of international treaty obligations such as those under CROC in the exercise of power under s 501 of the Migration Act; appeal dismissed in Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 521; special leave refused). See also, for example, AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 at 63 [27] (Tracey J); Re Tracey (2011) 80 NSWLR 261 at 268 [30]-[31] (Spigelman CJ, with whom Beazley J agreed); and Sneddon v Minister for Justice (Cth) (2013) 306 ALR 452 at 468 [53] (Davies J).

33    Finally, in this case, the decision to refuse a protection visa to the appellant did not amount to action concerning children within the meaning of article 3(1) of CROC and, in consequence, article 3(1) of CROC was not engaged on any view. Accepting that a broad reading of article 3(1) is appropriate (see Teoh at 289) for the reasons already stated, the decision did not concern the appellant’s dependent children and did not involve an alteration in their circumstances.

34    This is not to say that the circumstances of dependent children who are not applicants for protection must necessarily be left out of account or their interests treated as merely secondary in an assessment of whether it is reasonable for a protection visa applicant to relocate to another part of the country. The claims made by the visa applicant about his own circumstances and the other material before the decision-maker will shape the extent to which these matters fall for consideration. In the appellant’s case, as previously noted, the appellant’s claims about the circumstances of his dependent children were limited; and the Tribunal’s assessment and findings were wholly responsive to the claims made by the appellant concerning his family and the issues raised on the materials before the Tribunal.

35    There is, however, nothing in the terms of ss 36(2)(aa) or 36(2B)(a) of the Migration Act that warrants the conclusion that in making an assessment of relocation under s 36(2B)(a) primary consideration be given to the best interests of children.

the second proposed new ground

36    This proposed new ground also relied on some of the reasoning in Teoh, particularly at 291-292 (Mason CJ and Deane J), 302 (Toohey J) and, to a lesser extent, 305 (Gaudron J), to the effect that there will be a denial of procedural fairness and consequent jurisdictional error if a decision-maker proposes to make a decision inconsistent with a legitimate expectation that the best interests of a child will be a primary consideration without giving notice to the persons affected and an opportunity to respond.

37    Counsel for the appellant acknowledged that this aspect of the reasoning in Teoh “has been criticised by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam) at 20 [61]-[63], 27-34 [81]-[102] (McHugh and Gummow JJ), 36-39 [116]–[122] (Hayne J), 45-48 [140]-[148] (Callinan J); and Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 658 [65] (Gummow, Hayne, Crennan and Bell JJ).

38    It is unnecessary in this case to explore the ramifications of Teoh or the current outer reaches of its application: see, however, DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th edition, LexisNexis Butterworths, 2014) p 102-105 [3.13]-[3.14]. This is so because, however viewed, Teoh has no application in the present case and, in any event, for the reasons stated already, the Tribunal’s decision to refuse a protection visa to the appellant did not amount to action concerning children within article 3(1) of CROC. Further, for the reasons stated earlier, I reject the proposition that the Tribunal found that the appellant’s dependent children would, or would have to, relocate to Kabul on the appellant’s relocation there. This was also a key part of the appellant’s argument in support of this second proposed new ground.

39    Importantly, as stated above, the appellant did not claim that members of his extended family would have to move to Kabul if he relocated there and he made no claim about the effect of relocation on them if they were to move to Kabul. As already stated, the appellant’s claims before the Tribunal focussed on the risk of persecution, the risk of physical harm to himself and his family, the difficulty in finding work in Kabul and his own lack of support network there. There is nothing in Teoh that indicates that a decision-maker must give primary consideration to the best interests of children when there is no material before the decision-maker (here the Tribunal) to engage that proposition. On the contrary, Teoh indicates that the principle on which the appellant seeks to rely can only expose a defect in the way a decision-maker reached a decision, having regard to the material before the decision-maker: see, for example, Teoh at 292-293 (Mason CJ and Deane J), 293-295 (Toohey J). Further, the paucity of the appellant’s claims concerning his dependent children in a case where the appellant had been given a full opportunity to lay his claims before the Tribunal emphasises that there was no procedural unfairness that might attract the principle for which Teoh is said to be authority: see Lam 9-11 [28]-[29], 12-14 [34]-[38] (Gleeson CJ), 28-32 [87]-[96] (McHugh and Gummow JJ), 34-35 [104]-[106], [122] (Hayne J) and 47-48 [147]-[149] (Callinan J).

40    Finally, as noted already, ss 36(2)(aa) and 36(2B)(a) do not involve the exercise of a discretionary power, the exercise of which would support reasoning of the kind favoured by Mason CJ and Deane J, and Toohey J, in Teoh at 291-292 and 302.

41    Accordingly, for the reasons set out above, I accept the Minister’s submission that the two new grounds proposed by the appellant have insufficient merit to permit the conclusion that there should be a grant of leave to raise them on the appeal. Accordingly, I would refuse leave to amend the appellant’s notice of appeal as he proposed.

disposition

42    For the reasons stated above, I would dismiss the appeal, with costs.

Associate:

Dated:    6 May 2015