Federal Court of Australia

DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184

ORDERS

AND

THE COURT ORDERS THAT:

1.    The appeals be allowed.

2.    The orders made by the Federal Circuit Court dated 27 November 2019 be set aside, save on the question of costs, and in lieu thereof it be ordered as follows:

(a)    the decisions of the second respondent in respect of each appellant be set aside; and

(b)    the matters be remitted to the second respondent to be determined in accordance with law.

3.    The first respondent pay the appellants’ costs of these appeals, as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J.

1    The appellants are a husband and wife who, with their first child, arrived illegally in Australia in 2010. They came from the Islamic Republic of Iran. They are of Arab ethnicity and upon arrival claimed to be “stateless”. They were granted protection visas in 2011. In 2015, following the family’s two visits to Iran, the first respondent (the “Minister”) suspected that the appellants had not been stateless but were in fact citizens of Iran. The appellants now admit that this was so, and accordingly that they had lied in claiming to be stateless. They have since had another child. He is an Australian citizen. Both children are now at school. In 2016, the Minister’s delegate cancelled each visa pursuant to s. 109 of the Migration Act 1958 (Cth.) (the “Act”). Each cancellation decision was affirmed on review by the Administrative Appeals Tribunal (the “Tribunal”). The Federal Circuit Court dismissed an application for judicial review of each Tribunal decision. Each appellant now appeals their respective decisions from the Federal Circuit Court to this Court.

Applicable Legislation

2    Section 101 of the Act requires an applicant for a visa to give no incorrect answers when completing an application form. It provides:

Visa applications to be correct

A non-citizen must fill in or complete his or her application form in such a way that:

(a)    all questions on it are answered; and

(b)    no incorrect answers are given or provided.

3    Section 107 requires a Minister to give the holder of a visa notice of possible non-compliance with s. 101 and an opportunity to respond. The Minister gave the appellants such notices in 2015. Pursuant to s. 108 of the Act, the Minister must consider any response given by a visa holder and decide whether there has been non-compliance in the way described in the relevant notice. If the Minister decides there has been non-compliance, he or she has a discretionary power to cancel the visa pursuant to s. 109 of the Act. Section 109 provides:

Cancellation of visa if information incorrect

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)    considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

   (c)    having regard to any prescribed circumstances;

may cancel the visa.

(2)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

4    Regulation 2.41 of the Migration Regulations 1994 (Cth.) (the “Regulations”) prescribes the circumstances which the Minister must consider for the purpose of exercising the power conferred by s. 109 of the Act. The regulation provides:

Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))

For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

  (a)    the correct information;

  (b)    the content of the genuine document (if any);

(c)    whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

  (d)    the circumstances in which the non-compliance occurred;

  (e)    the present circumstances of the visa holder;

(f)    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g)    any other instances of non-compliance by the visa holder known to the Minister;

  (h)    the time that has elapsed since the non-compliance;

(j)    any breaches of the law since the non-compliance and the seriousness of those breaches;

 (k)    any contribution made by the holder to the community.

5    Part 7 of the Act provides for the review of “Part 7-reviewable decisions” by the Tribunal. Such decisions include decisions to cancel a protection visa. Section 425 provides:

Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

  (2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

6    Section 422B provides:

Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

 (3)    In applying this Division, the Tribunal must act in a way that is fair and just.

The I.T.O.A. Process

7    In 2016, the Minister’s Department notified the appellants that it had commenced an International Treaties Obligations Assessment (“I.T.O.A.”) to ascertain Australia’s non-refoulement obligations to each of the appellants. The Department informed the appellants that the I.T.O.A. would assist it in considering whether or not to cancel each visa. The appellants were invited to respond. A solicitor did so on their behalf. The response maintained that the appellants were stateless at the time of their arrival in Australia and when applying for their protection visas.

8    The Department finalised its I.T.O.A. for each appellant in May 2016. After a consideration of the applicable evidence, the Department decided that the appellants had not been stateless but were citizens of Iran. It also noted that the family since their arrival in Australia had returned to Iran on two occasions — once by both appellants and both children for about three months; and once by the mother and both children for about two months. There was no evidence that on either occasion either appellant or either of their children had been in danger or had been at risk of being targeted by the Iranian authorities. The Department rejected the appellants’ fear of harm arising from their claim that they were stateless. It went on to consider whether the appellants would be exposed to a risk of harm because of their Arab ethnicity. It relied upon a 2016 Department of Foreign Affairs and Trade (“D.F.A.T.”) country information report on the risks of harm in Iran. With respect to Arab Iranians, that report stated as follows:

DFAT assesses that most Arab Iranians do not come to the attention of authorities and are subject to only low levels of adverse attention by the state. However, this risk increases dramatically for Arabs who attempt publicly to assert cultural or political rights ... DFAT assesses that Arabs who become known to Iranian authorities through attempts to enhance or assert cultural or political rights may face harassment on account of their activities if they are perceived to threaten the constitutional foundations or the territorial integrity of the Islamic Republic.

9    That report also stated the following:

Broadly, there is a high level of societal discrimination against Arabs. This can lead to unfair day-to-day treatment, such as in employment and access to housing and services. DFAT considers that such discrimination is usually a result of patronage, nepotism and favouritism reflecting social attitudes rather than official or state-directed policies. Such discrimination against Arabs is rarely coupled with community-level violence.

10    Each I.T.O.A. concluded that there was no evidence that either appellant would attempt to enhance or assert their cultural or political rights if returned to Iran, or that either had come to the adverse attention of the state due to their Arab ethnicity. It followed that, if returned to Iran, neither appellant would be subject to adverse attention amounting to persecution. Accordingly, neither appellant was a refugee within the meaning of Art. 1A of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.

Decisions of the Tribunal

11    It is sufficient if I summarise the decision of the Tribunal with respect to the father, who was assisted at the hearing of his application for review by his registered migration agent. Much of the reasons for decision were directed at the claim the father had made, and which he maintained before the Tribunal, that he was stateless when he arrived in Australia. The Tribunal reviewed the evidence about that issue in some detail. Then, towards the end of the hearing, the father admitted that he had lied to the Department about being stateless. He said that he had in fact been an Iranian citizen when he arrived in Australia, but was told by a people smuggler that it would be best to claim that he was stateless. The Tribunal was thus satisfied that the father had breached s. 101 of the Act, and that there had been non-compliance for the purposes of s. 107 of the Act.

12    The Tribunal then turned to consider whether it should cancel the father’s visa pursuant to s. 109. It recognised, for that purpose, that the power conferred by s. 109 was discretionary, and that it needed to address each of the circumstances prescribed by reg. 2.41. The Tribunal did so. Relevantly under the heading “The present circumstances of the visa holder”, the Tribunal found that prior to the cancellation of his visa, the husband had enjoyed full time employment. The family had also purchased a house in New South Wales.

13     The Tribunal then turned to consider the father’s two children. It reasoned as follows at [49]-[51]:

The applicant’s former representative and in response to the notice of intention to consider cancellation indicated that the applicant holds great fear for his son who is an Australian citizen who would be most impacted by the cancellation. As an Australian citizen, he has the right to domicile in Australia and also has the right to be protected from being separated from his parents. It was submitted that is in the best interest of the applicant’s children to remain with their parents in Australia, consistent with Article 18 of the Convention on the Rights of the Child (CROC), to which Australia is a signatory. Moreover, the Covenant on Civil and Political Rights (ICCPR) should also be taken into consideration. In submissions to the Tribunal received on 3 October 2016, the children’s interests were highlighted.

The Tribunal has carefully considered the interests of the children and the Tribunal has genuine empathy for their circumstances. The Tribunal acknowledges that the children are innocent and in no way did they contribute to the provision of false or misleading information. However it is important to remember that the applicant’s son obtained the Australian citizenship because his parents had been granted permanent residency, which the Tribunal has found to be based on incorrect information. The applicant’s son would not be an Australian citizen had it not been for his parents’ provision of incorrect information. The Tribunal appreciates that the son is innocent but it is clear that he would not have been granted Australian citizenship had it not been for the provision of incorrect information.

On the evidence before it, the Tribunal is satisfied that the two children are young and if returned to Iran, they would have the opportunity to learn Persian and develop their own cultural identity. Although the applicant gave evidence that the children speak English and Arabic, that does not mean that they would not be able to learn Persian or any other language. The Tribunal has carefully considered Australia’s international obligations and the Tribunal is not satisfied that Australia would be in breach of any international instrument, including the CROC, in case of the family returning to Iran.

14    Under the heading “Any other factors?”, the Tribunal considered the father’s claims to fear harm if he were to be returned to Iran. The Tribunal did not accept the truth of those claims because it made an adverse finding about the father’s credit arising from the lies he had told about being stateless. It was otherwise satisfied that Australia would not be in breach of its non-refoulement obligations if the father were to be returned to Iran. The Tribunal reasoned at [65]-[66] as follows:

The applicant has made a number of claims against Iran essentially relating to his claimed Iraqi nationality. In the course of the hearing, the applicant claimed that as an Iraqi, he had suffered harm in Iran. For reasons of the adverse credibility finding, the Tribunal does not accept that the applicant has suffered any of the claimed harm on any basis. In consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real risk or a real chance of the applicant facing significant or serious harm if he were to return to Iran. The Tribunal notes that the applicant did return to Iran and there is no evidence that he suffered any harm on his return. The Tribunal appreciates that this does not necessarily mean that there is not a real chance or real risk of future harm, however, the fact that the applicant did return to Iran without facing any harm is a strong indicator.

In the course of the hearing, the Tribunal discussed with the applicant the international treaties obligations assessment (ITOA) which found that the applicant does not face a real chance or a real risk of serious or significant harm. Although and as explained in the course of the hearing, the Tribunal is not bound to follow the conclusions of the ITOA assessment, the Tribunal has decided to give the assessment significant weight and the Tribunal is satisfied that the conclusions support the Tribunal’s findings. In consideration of the evidence as a whole, the Tribunal is satisfied that if the applicant were to return to Iran, Australia would not be in breach of its non-refoul[e]ment obligations[.]

15    Accordingly, the Tribunal decided to exercise its discretion to affirm the Minister’s visa cancellation decision. This was largely because the father had not complied with the requirements of the Act, particularly s. 101.    

16    Materially the same findings, supported by very similar reasoning, were made in a separate Tribunal decision affirming the visa cancellation decision made in respect of the mother.

The Federal Circuit Court

17    It is unnecessary to summarise the reasoning of the Federal Circuit Court, or the grounds of appeal before it. That is because the appellants were not represented below, and the grounds of appeal before me were entirely different from the grounds of review before the learned primary judge. Suffice to say, the Court below dismissed each application for judicial review made by the appellants in respect of the Tribunal’s decision to affirm each visa cancellation decision made by the Minister.

Grounds of Appeal

18    The appellants initially filed their notices of appeal in December 2019. The appellants’ solicitors and Counsel as recorded on those notices ceased to act for the appellants in around June 2020, following which, prior to the hearing of the appeals, the appellants obtained entirely new legal representation from Legal Aid N.S.W. as well as new Counsel. With a degree of diligence, entirely new proposed grounds of appeal were formulated and served on the Minister in each appeal as annexures to the appellants’ submissions in each appeal. Further amended sets of proposed appeal grounds were then filed and served shortly before the hearing as annexures to the appellants’ reply submissions in each appeal. Before me, the appellants sought leave to rely upon these further amended grounds. The grounds are relevantly the same in each appeal. They are in the following form (reproducing the mother’s grounds):

1.    The primary judge erred in holding (at [33]) that the second respondent (Tribunal) did not fall into jurisdictional error. The primary judge ought to have held that, in deciding to cancel the applicant’s class XA subclass 866 Protection visa (visa), the Tribunal made a jurisdictional error in that it denied the applicant procedural fairness or breached s 425 of the Migration Act 1958 (Act).

Particulars

a.    The applicant made representations to the Tribunal that the decision would affect the interests of her minor children aged 5 and 7 years old and their best interests should be considered: submission at Court Book p 320, at p 326.

b.    By reason of Australia’s accession to the UN Convention on the Rights of the Child (1990) 1577 United Nations 3, procedural fairness required the Tribunal to have regard to the best interests of the minor children as a primary consideration unless otherwise notified to the applicant.

c.    Alternatively, s 425 of the Act obliged the Tribunal to notify the applicant if it did not propose to have regard to the best interests of the minor children as a primary consideration.

d.    The Tribunal did not notify the applicant that it would not treat the best interests of the children as a primary consideration.

e.    In determining whether to exercise a discretion to cancel the applicant’s visa the Tribunal failed to consider, as a primary consideration, the best interests of the children affected by the decision.

2.    The primary judge erred in holding (at [19], [21], and [33]) that the Tribunal did not make a jurisdictional error by making an error of law. The primary judge ought to have held that, in deciding to cancel the applicant’s visa, the respondent Tribunal made an error of law, or proceeded upon a wrong understanding of the law and so made a jurisdictional error.

Particulars

a.    The applicant claimed that she would face harm if returned to Iran on the basis that she is an Arab: at [56] of the Tribunal’s reason; CB 219 [58].

b.    In considering whether the applicant faced a chance of harm in the future, the Tribunal gave ‘significant weight’ to an International Treaties Obligations Assessment carried out by an officer of the respondent Minister’s department on about 23 May 2016 (ITOA): at [57] of the Tribunal’s reasons.

c.    It is implicit that the Tribunal considered that the ITOA was conducted in accordance with law, further and alternatively the Tribunal adopted the reasoning of the ITOA as its own;

  d.    The ITOA was not carried out in accordance with law because:

i.    The Assessor assessed the applicant’s claims on the basis that she was an Arab: [63] of the Assessor’s reasons at CB 219;

ii.    The assessor found, on the basis of country information, that Arabs in Iran face a risk of harm that ‘increases dramatically for Arabs who attempt publicly to assert cultural or political rights’, and that there is a high level of societal discrimination against Arabs which can lead to unfair day-to-day treatment:

iii.    The Assessor found that there was no evidence that the applicant had in the past or would in the future attempt to ‘enhance or assert’ her cultural or political rights: [66].

iv.    In light of these findings, the Assessor should have asked, but did not, why the applicant (or her husband) had not in the past been more politically or culturally active and, moreover, why she (or her husband) would not alter her past behaviour if she were returned to Iran. The Assessor needed to inquire, and make relevant findings, as to whether this was because of the very harm which the Assessor accepted confronted more prominent and active political and cultural proponents.

e.    In the premises, the Assessor’s decision was not made in accordance with law, and the Tribunal made a jurisdictional error by proceeding on the basis that it was.

f.    Further and alternatively, the Tribunal proceeded upon an error of law by adopting the Assessor’s legally flawed reasoning.

19    Before me, the Minister opposed the grant of leave to rely upon these proposed grounds. He accepted that he would not suffer any relevant prejudice if leave were to be granted, but observed, correctly, that the role of this Court, when exercising its appellate jurisdiction, is not to re-hear the trial: AYJ15 v. Minister for Immigration and Border Protection [2016] FCA 863 per Reeves J. at [17]. Having said that, he accepted that a key consideration was whether it was in the interests of justice to grant leave. Here, the appellants were not represented before the Federal Circuit Court; the new grounds appeared to have merit; and the effect of deportation will involve two young children, one of whom is an Australian citizen. I granted the leave sought.

20    I also permitted, upon the application of the appellants and without objection from the Minister, the admission into evidence of two items. The first was the 2016 D.F.A.T. country information report on Iran; the other was the transcript of each Tribunal hearing.

The Submissions of the Appellants

21    The appellants submitted that the Tribunal’s decisions were each infected with two essential jurisdictional errors:

(1)    the first was that the Tribunal had failed to consider the best interests of the appellants’ two young children as a primary consideration which might have outweighed the seriousness of the appellants’ non-compliance with s. 101 of the Act. This ground relied heavily on the reasons for judgment of Mason C.J. and Deane J. in Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 C.L.R. 273; and

(2)    the second was that for the purposes of considering the risk of harm to the appellants if they were to be returned to Iran in preparing the I.T.O.A., the Department failed to ask why the appellants did not, when in Iran, assert their cultural or political rights as ethnic Arabs. The Department should have so asked, and therefore this failure to ask rendered the I.T.O.A. legally invalid. It was thus an error for the Tribunal to have adopted its contents. This ground relied heavily on the reasons for judgment in S395/2002 v. Minister for Immigration and Multicultural Affairs (2003) 216 C.L.R. 473 and in Minister for Immigration and Border Protection v. BBS16 (2017) 257 F.C.R. 111.

22    The first ground concerned the relevance of Art. 3(1) of the United Nations Convention on the Rights of the Child done at New York on 20 November 1989 (“the Convention”), which is in the following form:

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.

The Minister did not dispute that the decisions of the Tribunal were actions concerning children.

23    In Teoh, the appellant had applied for a permanent entry permit. He had a wife and young children in Australia. While the application was pending, the appellant was convicted of certain drug offences. Following review by a panel, it was decided that the needs of the appellant’s family did not justify waiver of the character requirement in the Act, as it then was. The panel recommended the deportation of the appellant. The Minister accepted that recommendation and made an order for his deportation.

24    Mason C.J. and Deane J. recognised that Art. 3 of the Convention did not have the force of law for domestic purposes in Australia. However, upon Australia’s ratification of the Convention, there arose a “legitimate expectation” that any Australian decision maker in an “action concerning children” would act in accordance with the Convention, including Art. 3(1). This did not oblige such a decision maker to act concordantly with that legitimate expectation. The Convention was not a binding law. As their Honours observed at 291:

The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. And that, as we have already said, is what Lee and Carr JJ seem to have done because the obligation to initiate inquiries and reports appears to stem from a view that the Minister’s delegate was bound to apply Art 3.1.

25    However, because of the existence of the legitimate expectation, a decision maker that proposed to make a decision contrary to that expectation was obliged, as a matter of procedural fairness, to disclose that fact to the affected party. Thus, Mason C.J. and Deane J. said at 291-292:

But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.

26    Mason C.J. and Deane J. decided that because the Minister’s delegate had failed to make this necessary disclosure, there had been a breach of the rules of procedural fairness. Their Honours considered the reasons of that delegate and decided that whilst the delegate and the panel had considered the interests of the children, neither gave those interests the necessary primacy as contemplated by Art. 3(1). Thus, at 292, their Honours reasoned as follows:

It can be said that the delegate carried out a balancing exercise in which she considered the plight of Mrs Teoh and the children and recognized that they would face a “very difficult and bleak future” if the respondent were deported. On the other hand, she considered that the respondent had been convicted of very serious offences and this factor outweighed the “compassionate claims”. However, it does not seem to us that the Panel or the delegate regarded the best interests of the children as a primary consideration. The last sentence in the recommendation of the Panel reveals that, in conformity with the departmental instructions, it was treating the good character requirement as the primary consideration. The Panel said:

“The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh’s criminal record”. (emphasis added)

The language of that sentence treats the policy requirement as paramount unless it can be displaced by other considerations. There is no indication that the best interests of the children are to be treated as a primary consideration. A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. The decision necessarily reflected the difference between the principle and the instruction.

The appellants before me placed great reliance on the foregoing passages and said that similar reasoning was followed in the Tribunal’s decisions here.

27    The appellants well understood that the nomenclature of “legitimate expectation” has, since Teoh, fallen out of favour in Australia: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 C.L.R. 1. But they submitted that Teoh remained good law, although the reasoning that led to the result in that case might now be expressed differently. A more “modern” way of expressing the principle to be derived from Teoh could, it was submitted, be found in the judgment in that case of Gaudron J. at 305 as follows:

There is a want of procedural fairness if there is no opportunity to be heard on matters in issue. And there is no opportunity to be heard if the person concerned neither knows nor is in a position to anticipate what the issues are. That is also the case if it is assumed that a particular matter is not in issue and the assumption is reasonable in the circumstances. In my view and for the reasons already given, it is reasonable to assume that, in a case such as the present, the best interests of the children would be taken into account as a primary consideration and as a matter of course. That being so, procedural fairness required that, if the delegate were considering proceeding on some other basis, she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise. It did not, however, require her to initiate inquiries and obtain reports about the future welfare of the children and, in this respect, I agree with the judgment of Mason CJ and Deane J.

28    The appellants cited the more recent decision of Perry J. in Poroa v. Minister for Immigration and Border Protection (2017) 252 F.C.R. 505 for the proposition that Teoh remained good law. There, her Honour observed at 517 [51] as follows:

While the Minister pointed to statements in the authorities casting doubt upon the decision in Teoh, the Minister accepted that the principles in Teoh have not been directly overruled and that, for present purposes, they remain good law: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [81]-[83]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30]. Applying Teoh, I accept that Australia’s ratification of the ICCPR gave rise to a legitimate expectation that the right to found a family would be taken into account. That such an expectation arises is confirmed by Article 2 of the ICCPR pursuant to which each State Party to the ICCPR relevantly undertook “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...” and “to take the necessary steps ... to give effect to the rights recognized in the present Covenant”.

29    The appellants also relied upon an earlier decision of the Full Court of the Federal Court in Wan v. Minister for Immigration and Multicultural Affairs (2001) 107 F.C.R. 133. In that case, the applicant had been refused a permanent residence (general-spouse) visa on character grounds pursuant to s. 501(2) of the Act. He was married to an Australian citizen, and was the father of two children who were also Australian citizens. The Tribunal’s decision was set aside because it had not identified what were the best interests of the children, nor had it treated this factor as a primary consideration. The Full Court applied Teoh.

30    The Full Court in Wan also applied an earlier Full Federal Court decision in Vaitaiki v. Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 A.L.R. 608. In that case the appellant had been convicted of a series of offences and an order for his deportation had been made. The appellant had three older and three younger children in Australia. The deportation decision was affirmed on review by the Tribunal. This Court set aside that decision by consent because the Tribunal had failed to apply Teoh correctly. It should be noted that the Tribunal only had the benefit of the reasons of the Full Federal Court in Teoh v. Minister for Immigration and Ethnic Affairs (1994) 49 F.C.R. 409 at the time it made that decision. However, the High Court in Teoh expressed similar views to that of the majority in the Full Federal Court when it upheld that Court’s decision.

31    At a second hearing before the Tribunal, by which time the High Court had handed down its decision, the Tribunal decided that the procedural fairness mandated by the High Court Teoh decision had been afforded to the appellant by the act of the re-hearing. The Full Court set aside that second Tribunal decision. Burchett J. expressed the test from Teoh in the following way at 612:

In Teoh, the majority of the High Court held, in respect of circumstances not relevantly distinguishable from the present, that if a decision were to be given by an administrator which did not accord with the principle that the best interests of any children concerned were to be a primary consideration, the administrator would first be required to give adequate notice and an opportunity for the presentation of a case against the taking of such a course. This, in the view of Mason CJ and Deane J (at CLR 291-2) was because Australia’s ratification of the United Nations Convention on the Rights of the Child created a legitimate expectation, so as to attract the principle of natural justice, that administrators would act in conformity with the Convention …

32    Burchett J. decided that the second Tribunal decision had not correctly applied Teoh because the Tribunal had not given the best interests of the appellant’s children primary consideration. His Honour said at 616:

However, the tribunal did proceed to give consideration to the facts, and it is necessary to examine its further reasons to see whether, despite its protestations about the validity of its earlier reasons, and the statements to which I have referred, it did in reality take account of the children’s best interests as it was required to do by law. In my opinion, it was certainly required to take them into account, at least as very significant matters, for more than one reason. In the first place, as no notice had been given within the meaning of the majority judgments in Teoh, it was required to take the best interests of the children into account as a primary consideration. That requirement and the legitimate expectation from which it sprang were reinforced, in the circumstances of the second hearing before the tribunal, by the fact that the earlier decision had been set aside, and the matter remitted for determination according to law, on the very basis that the law required, and the parties were agreed, that in the absence of notice to the contrary the best interests of the children must be treated as a primary consideration. There was no foundation for the tribunal’s statement, which misunderstands Teoh that procedural fairness had been afforded to the applicant merely by the holding of a hearing. In addition, and for reasons explained by Gaudron J, at the least the substantive law required the interests of young children who were Australian citizens to be taken into account as very significant matters. The view should not be entertained that, when Parliament provided for the assertion of community interests under the former s 55, it excluded from those interests the well-being of the community’s weakest and most vulnerable members, who are also its future.

33    Branson J. was also of the view that the Tribunal was required to give consideration to the best interests of the children. Her Honour said at 631:

I conclude, in broad agreement with Burchett J, that although the AAT purported to act on the basis that the best interests of the appellant’s children were a primary consideration before it, it did not in fact give proper, genuine and realistic consideration to the children’s best interests: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 414; 121 ALR 436 per Black CJ; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J; Flentjar v Repatriation Commission (Fed C of A, Full Court, 10 October 1997, unreported) at 5.

In the circumstances of the approach which it adopted having regard to the decision of the High Court in Teoh’s case, the AAT was bound to give consideration to the best interests of the children: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; 66 ALR 299 per Mason J. Its failure properly to do so was thus an error of law.

34    The decisions of Wan and Vaitaiki bind me, although there may be a question as to whether Vaitaiki’s precedential force is diminished in the event their Honour’s reasoning relied upon an expression of principle that was agreed between the parties: Coleman v. Power (2004) 220 C.L.R. 1 at 44-45 [79] per McHugh J. In my very respectful view, on one possible view Vaitaiki misstates the principle to be derived from the judgment of Mason C.J. and Deane J. in Teoh. Their Honours in Teoh specifically did not state that a decision maker is bound to take into account the best interests of any children as a primary consideration. That was because Art. 3(1) did not (and does not) form part of the domestic law of Australia. This is made clear in the passage I have set out above from page 291 of the reasons. Rather, a decision maker is obliged to give notice if she or he intends to act inconsistently with the Convention. The giving of notice affords the applicant with an opportunity to answer it. In this way, the error in Teoh may be characterised as a breach of procedural fairness. Vaitaiki perhaps expresses the principle differently. Burchett J. decided that a decision maker was bound to take into account the best interests of the children, unless she or he had given notice that she or he would not do so. Branson J., perhaps on one view, went even further. Her Honour decided that a decision maker more generally was bound to consider the best interests of the children. Neither expression of the principle ostensibly requires the presence of a finding that a decision maker had first proposed to act inconsistently with the Convention; it was sufficient that she or he in fact had so acted. If that is so, it may be the case that this type of error should not really be characterised as a breach of procedural fairness; rather it appears to have transformed into an error of law arising from a failure to take into account a relevant consideration.

35    A possible consequence of the way the test is expressed in Vaitaiki is that a decision maker who mistakenly fails in her or his reasons to consider the best interests of a child as a primary consideration, or who otherwise by her or his reasons is shown to have misunderstood that obligation, will still be found to have breached the rules of procedural fairness even though, in such a case, there is nothing which such a decision maker could relevantly give notice about. For example, a decision maker might earnestly seek to apply Art. 3(1) of the Convention, but fail to give the best interests of a child the correct degree of primacy. Based on Vaitaiki, such a decision maker may possibly have failed to provide procedural fairness, and will thus have erred at law.

36    The appellants submitted that the Vaitaiki approach was supported by recent decisions of this Court. In Nweke v. Minister for Immigration and Citizenship [2012] FCA 266; (2012) 126 A.L.D. 501, a decision to cancel a visa on character grounds pursuant to s. 501A of the Act was set aside because the Minister had failed to treat the best interests of the applicant’s children as a primary consideration. Jagot J. said at 508 [21]:

Applying the reasoning in Vaitaiki 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.

37    Nweke was followed by Katzmann J. in Lesianawai v. Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 A.L.D. 27. In that case, another Ministerial decision to cancel a visa pursuant to s. 501A was set aside because of a failure to identify the best interests of the children as a primary consideration: at 35 [43]. More recently, in CFE16 and CFD16 v. Minister for Immigration & Anor [2020] FCCA 1083, Judge Reithmuller well summarised the applicable principle as follows at [21]:

The real question for these proceedings is whether or not the reasons of the Tribunal member, read as a whole, indicate that the decision-maker did, in fact, have regard to [the best interests of the children] as a primary consideration.

In my view, I am clearly bound to follow and apply the expression of the rule in Teoh, as formulated in Vaitaiki and followed by subsequent decisions of this Court.

38    The appellants submitted that here the Tribunal had failed at [49]-[51], as set out above, to have regard to the best interests of the appellants’ children as a primary consideration. Indeed, the Tribunal had failed to express what those best interests were. Instead, it had confined itself to an expression of general “genuine empathy” and then had merely identified how the children would be able to cope in Iran. Moreover, the reasoning did not demonstrate that the interests of the children was to be a primary consideration when considering whether the appellants’ non-compliance with the Act should result in the cancellation of their visas. It followed, it was said, that the Tribunal had erred in law.

39    The appellants also submitted in the alternative that if Teoh were to be confined to cases where a decision maker proposed to act inconsistently with Art. 3(1) of the Convention, then I should infer that this had taken place here because the reasons had failed to include a consideration of the best interests of the children in the required way.

40    In relation to the second ground, the appellants submitted that the I.T.O.A. decision maker had failed in her or his task in assessing the risk of harm to each appellant if they were to be returned to Iran. In that respect, the appellants pointed out that the 2016 D.F.A.T. country information report concerning Iran made it clear that the threat to Arab Iranians would increase dramatically if such persons were to assert cultural or political rights which were to be perceived as a threat to the constitutional foundations of the Iranian state or its territorial integrity. The threats might include monitoring, summons for questioning, closure of offices or organisations or arrest.

41    In such circumstances, the appellants submitted that the decision maker was obliged to ask why it was that the appellants had not asserted their cultural or political rights as ethnic Arabs in the past. This had never taken place. The appellants referred to S395/2002 v. Minister for Immigration and Multicultural Affairs (2003) 216 C.L.R. 473 where McHugh and Kirby JJ. said the following at 489-490 [41]:

History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention.

42    The appellants submitted that their case was relevantly the same as that considered by the Full Court of this Court in BBS16. In that case, an application for a protection visa made by an Iranian of the Sabean-Mandaean faith had been refused by a delegate of the Minister. That decision was affirmed by the Immigration Assessment Authority (the “I.A.A.”). In considering the risk of harm, the Court found that the I.A.A. had reasoned as follows (at 139-140 [81(d)]):

The IAA then turned its attention to the first respondent’s claim based upon his association with the Arab community. The IAA accepted that he was an Arab and, having regard to country information (including the DFAT report), that there is a high level of societal discrimination against Arabs which can lead to unfair treatment, in areas such as employment and access to housing and services (see [32]). It also noted DFAT’s view that Arab Iranians who do not come to the attention of the authorities are subject to only low levels of adverse attention but that this “risk increases dramatically for Arabs who attempt to publically [sic] assert cultural or political rights”. The IAA concluded at [35] that, putting aside the impermissible new information, the first respondent had not otherwise claimed that he had participated in any political protests in the past and that his profile was not one which would attract adverse attention. Accordingly, there was no real chance of him facing serious harm on account of him being an Arab.

The appellants contended that the foregoing reasoning was relevantly identical to the findings of the I.T.O.A. decision maker here.

43    The Full Court decided that the I.A.A. had erred in so reasoning because it had failed to ask why the applicant in that case had not practiced his religion more extensively. It said at 140 [82] as follows:

Having regard to these findings by the IAA (which did not depend on any of the new information which was discarded by the IAA), in the light of S395 the IAA should have asked why the first respondent had not in the past practised his religion more extensively or been more politically active and, moreover, why he would not alter his past behaviour if he were returned to Iran. The IAA needed to inquire, and make relevant findings, as to whether this was because of the very harm which the IAA accepted confronted more prominent and active religious and political proponents. As McHugh and Kirby JJ observed in S395 at [43] (to similar effect, see Gummow and Hayne JJ at [82]):

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

(Emphasis in original.)

44    The Full Court’s reasoning, it was said, applied here.

The Submissions of the Minister

45    As to the first ground, the Minister submitted that Teoh did not apply here. That was because this case concerned judicial review of decisions of the Tribunal regulated by Pt. 7 of the Act. Section 425 gave the appellants rights to appear before and make submissions to the Tribunal. The effect of s. 422B was to make that an exhaustive statement of the natural justice hearing rule in relation to hearings held before the Tribunal. In that respect, Teoh was a case about a breach of procedural fairness. Here the appellants were heard. They were represented before the Tribunal. They had a clear opportunity to make submissions about the best interests of their children. They both availed themselves of that opportunity. For example, the father’s submissions to the Tribunal directly raised the “best interests” of the children and even cited Vaitaiki and quoted Wan. Thus, the following was submitted:

The applicant has two children, [the first is] 7 years old, and [the second is] 5 years old. [The second] was born in Australia and is an Australian citizen by birth.

The applicant states that their children would have better prospects for lives in Australia than in Iran. He refers to the high standards of children’s safety, freedom, education and health care. We submit that the prospects of lives of the applicant’s children would be better in Australia than in Iran in all of the aspects raised by the applicant.

The question in this context is what the best interests of the children require the decision-maker to decide with respect to the cancellation of the visa rather than what the children should do if the Tribunal were to affirm the decision to cancel the applicant’s visa and if the applicant was then to be removed from Australia [citing Vaitaiki]. This does not mean, however, that this outcome inevitably follows since it is still open to the Tribunal in these circumstances to conclude that the strength of other considerations outweighs the best interests of the children. As per Branson, North and Stone JJ [in Wan at 142 [32]]:

An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion 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 understood as a primary consideration.

We submit that it will be in the best interests of the children that they stay in Australia. [The first son] is 7 years old now. He has been in school in Australia for 2 years. He does not read and write in Persian and he will have difficulties coping with the education system and learning Persian if he is returned to Iran. [The second son] is an Australian citizen. He will start prep next year. He has the right to stay and study in Australia. If the applicant’s visa remains cancelled, [the second son] will be denied the standards of living, health, and education which he is entitled to as an Australian citizen because he will have to return to Iran with his family.

46    The Minister also submitted before me that an examination of the transcript before the Tribunal (tendered, with leave, by the appellants) plainly showed that the Tribunal member was aware of the need to consider the interests of the children and had considered the foregoing submission. At one point the member states:

Clearly, though, the tribunal has to give regard to the interests and needs of the children, and I need to think about that very carefully, and I take it very seriously that there are two young children here.

47    The Minister further submitted that all of the other decisions of this Court, and of the Full Court, as relied upon by the appellants, occurred in different statutory contexts where there was no equivalent to ss. 422B and 425 of the Act. In that respect, the Minister, in my view correctly, emphasised that the content of the need to accord procedural fairness depended upon the immediate statutory context. There are no blanket rules which apply to every type of decision making. In that respect the Minister referred to the following passage from the reasons of Kiefel J. (as her Honour then was), Bell and Keane JJ. in Minister for Immigration and Border Protection v. WZARH (2015) 256 C.L.R. 326 at 335 [30] where their Honours state:

The position has been made sufficiently clear that it is not necessary for this Court to engage again in discussion of the concept of “legitimate expectation” in administrative law or to trace its progress from its controversial origins, to its tentative acceptance in Australian law, to its rejection as a touchstone of the requirement that a decision-maker accord procedural fairness to a person affected by an administrative decision. The “legitimate expectation” of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.

(Footnotes omitted.)

48    In their reply, the appellants contend that the Teoh ground fell within the Tribunal’s obligation to afford procedural fairness within s. 425 of the Act. It followed that the argument did not offend the reach of s. 422B. Alternatively, s. 422B was expressly limited in its field of operation to the “matters” dealt with by Div. 4 of Pt. 7 of the Act. The Teoh ground was not one of those matters. The appellants relied upon a decision of French J. (as his Honour then was) in WAJR v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106; (2004) 204 A.L.R. 624. That case concerned a Tribunal which had not disclosed its concerns about the genuineness of certain documents to the applicant. French J. said at 637-638 [58]-[59]:

Section 425 requires the tribunal to invite an applicant to give evidence and to present arguments relating to the issues arising in relation to the decision under review. On one view, the genuineness of the appellant’s documentary evidence was an issue raised by the tribunal itself and of which the appellant was given no prior notice nor an opportunity to comment before the tribunal made its decision. If that characterisation be correct, then the tribunal’s failure to invite the appellant to make submissions on whether the letters relied upon were genuine, or forgeries, or concoctions, was a failure to comply with s 425. A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review. A failure to comply with s 425 will therefore amount to jurisdictional error and be amenable to the issue of constitutional or prerogative writs on the principles set out in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24.

If it be the case that s 425 has no application to the issue raised in this appeal — that is the question whether the tribunal was obliged to invite comment on an adverse conclusion not implicitly or explicitly an issue in the hearing, then s 425 does not deal with that matter and the requirements of procedural fairness are not excluded in respect of it by s 422B. This may appear to apply a narrow construction to s 422B.

In that respect, it was said by the appellants that a distinction should be drawn between the disclosure of “issues” and “information”. The latter may be addressed by ss. 424A and 424AA, but not the former.

49    As to the second ground of review, the Minister pointed out that the Tribunal had not just considered the I.T.O.A. in considering the risk of harm if the appellants were to be returned to Iran. At [65] (set out above), the claims about harm were rejected for two initial reasons which were relevantly dispositive. The first was a general rejection of the credit of each appellant given that each had been caught lying to the Department as well as to the Tribunal. Because of this, the Tribunal did not accept that the appellants had suffered the harm they had claimed. The second was because each appellant had visited Iran without being harmed and had been able to leave lawfully.

50    The Minister then submitted that any defect in the I.T.O.A. process was neither here nor there. The preparation of the I.T.O.A. was not mandated by any section of the Act. It is a voluntary process designed to assist delegates and the Minister in the exercise of statutory powers; a decision maker is not obliged to rely upon or use an I.T.O.A. which has been prepared. An I.T.O.A. thus does not necessarily affect or touch upon legal rights or entitlements. As the Tribunal recognised here, it was not bound to follow its conclusions. It was simply relied upon by the Tribunal to support the conclusion it had already reached about the risk of harm at [65]. BBS16 was thus entirely distinguishable. In any event, the material before the I.T.O.A. decision maker did not raise the possibility that the appellants would aggressively, or more aggressively, promote their cultural or political rights as ethnic Arabs if returned to Iran: NABE v. Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 F.C.R. 1. The High Court’s decision in S395 was thus said to be factually distinguishable.

51    The Minister also submitted that whilst there is authority for the proposition that an I.T.O.A. decision maker may owe obligations of procedural fairness, because of the voluntary nature of an I.T.O.A., the making of an I.T.O.A. cannot be characterised as a decision that had been lawfully or unlawfully made. In their reply, the appellants disagreed with that proposition and submitted that an I.T.O.A. must not only be prepared in a procedurally fair way but in addition must proceed by reference to correct legal principles. They referred to Plaintiff M61 v. Commonwealth (2010) 243 C.L.R. 319 for this proposition.

52    Finally, the Minister submitted that even if the Tribunal had erred by relying upon a legally flawed I.T.O.A., the error was not material. Because the Tribunal had rejected the credit of each appellant and thus did not believe their claims about having suffered harm to be true, the Tribunal would have equally have rejected any answer they might have given to the person preparing the I.T.O.A. in response to a question about why they had not asserted their cultural or political rights as ethnic Arabs in Iran. In this way, the error could not possibly have affected the Tribunal’s ultimate decisions to affirm the Minister’s decisions in respect of each appellant.

Disposition

53    In relation to the first ground, I have already mentioned that I consider myself bound to follow the decisions of this Court concerning what Teoh decided, including Vaitaiki. I also, very respectfully, consider that I should follow the reasoning of French J. in WAJR. The better view is that the Teoh ground, being part of the obligation to provide procedural fairness, is either subsumed within s. 425 or is not a matter dealt with by Div. 4 of Pt. 7 of the Act (although, I again mention that it may, on one view, possibly be odd to characterise the type of error identified in Vaitaiki as one going to procedural fairness). Finally, I do not consider that the fact that the statutory context before me differs from the statutory contexts considered in the decisions relied upon by the appellants relevantly affects how the Teoh ground should have been considered by the Tribunal. That is because there was no dispute before me that the decisions of the Tribunal were, to use the terminology of the Convention, actions concerning children.

54    The question then is whether I am satisfied that the Tribunal had regard to the best interests of the appellant’s two young children as a primary consideration. That is a short but important point. I agree with the Minister, for the reasons he has supplied, that the Tribunal plainly took into account the best interests of the children. It may be true that it did not expressly state what they were. But in my view, that is because it is obvious what those best interests were. The children, given their history, are plainly better off being raised in Australia than in Iran. That is why the Tribunal had “genuine empathy” for their plight.

55    However, I am not sure that the Tribunal appreciated the significance of the need to give those interests “primary” consideration. As Mason C.J. and Deane J. observed in Teoh, a decision maker applying Art. 3(1) of the Convention would ask whether the “force of any other consideration outweighed” the best interests of the children (at page 292). That process of weighing the importance of the needs of the children against the appellants’ non-compliance with the Act, to see if one “outweighed” the other, does not clearly appear to have taken place. The reference at [52] of the Tribunal’s reasons (for the father) that “[o]n balance” the appellants’ circumstances, including the interests of the children, did not mean that the visa should not be cancelled, does not reveal any real balancing of conflicting considerations. Nor is the issue revisited in the concluding paragraphs [67]-[68] in the reasons concerning the father. For convenience I reproduce them as follows:

In conclusion, the Tribunal has considered all relevant discretionary matters, including those in PAM3. The Tribunal is satisfied and for the stated reasons that the applicant has provided incorrect information in order to achieve a favourable immigration outcome. This amounts to non-compliance with immigration laws which is an important consideration for the Tribunal as it relates to the integrity of the migration program.

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s. 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

56    The deportation to Iran of a husband and wife who arrived in Australia around 10 years ago and who now have two young children at school, one of whom is an Australian citizen, is a serious matter. I do not think I should reject ground one based on guess work as to whether or not the Tribunal appreciated that the best interests of the children was a primary consideration to be weighed against the appellants’ non-compliance with the Act. With respect, the reasons do not expressly state that the decision maker understood that this was what was required, and I am not otherwise prepared to infer that she understood that this was what she needed to do.

57    The safer course, given the gravity of the matter which concerns a child who is an Australian citizen, is rather to accept that ground one is made out. The Tribunal’s decision must be set aside and the matter remitted to it to re-hear the claims of the appellants on the basis that the best interests of their children as a primary consideration are to be considered along with the circumstances of the appellants’ non-compliance with the Act. In that respect, if it matters, in my view the appellants’ non-compliance with the Act was also a very serious matter. Plainly, it will be open to the Tribunal to take care not to reward those who act on the advice of a people smuggler.

58    Because ground one is made out, it also follows that the decision of the Federal Circuit Court must also be set aside (save on the question of costs, discussed further below).

59    I otherwise record, for the sake of finality, that I would not infer from the reasons given below that the Tribunal member had here, prior to the hearing, “proposed to make a decision”, to use the language of Teoh, to act inconsistently with Art. 3(1) of the Convention. The reasoning does not suggest that any such anterior resolution of this kind had been made. On the contrary, I think that the Tribunal member tried her best to consider the best interests of the appellant’s children. She, however, failed to give those interests the required level of primacy in balancing them against the non-compliance of each appellant with the Act.

60    The foregoing reasoning addresses the Tribunal decision relating to the father. The same reasoning applies to the decision in respect of the mother. The two decisions are materially the same, or sufficiently similar.

61    I reject, however, ground two. Assuming for the moment that the I.T.O.A. process was infected with the legal error suggested by the appellants, the Tribunal’s reliance upon it was not unlawful. The Tribunal had already decided to reject the appellants’ claims that they had suffered any harm by reason of their ethnicity ([65] in the reasons for the father; [56] in the reasons for the mother). The I.T.O.A.’s conclusions, which the Tribunal had correctly understood did not bind it, were only used to “support the Tribunal’s findings” which it had already made. The failure by the I.T.O.A. decision maker to ask a question about why the appellants had not asserted their cultural or political rights as ethnic Arabs in Iran did not render that reliance upon the I.T.O.A. conclusions legally erroneous. Moreover, and in any event, for the reasons given by the Minister, which I accept, if the Tribunal did err in relying upon the I.T.O.A., that error was not material in circumstances where the Tribunal had rejected the credit of each appellant on this issue. It was not suggested that the Tribunal erred in any way in making such findings about credit.

62    The appeals should be allowed with costs because I accept that ground one was made out. The Minister submitted that if that were to be the result, I should not disturb the orders made in the Federal Circuit Court about costs. The appellants, other than to point out that I have a broad discretion about the issue of costs, faintly suggested that the orders made in the Federal Circuit Court about costs should be set aside and that I should order instead that each party bear their own costs. On balance, I am not persuaded that I should disturb those costs orders, given that the grounds relied upon in this appeal were entirely new.

Associate:

Dated:    18 August 2020