Federal Court of Australia
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appellant be granted leave to appeal.
2. The appeal be allowed.
3. The orders of the Federal Circuit Court of Australia made on 11 February 2020 be set aside and in lieu thereof it be ordered that:
(a) The decision of the second respondent be set aside.
(b) The matter be remitted to the second respondent for re-hearing and determination according to law.
(c) The first respondent pay the applicant’s costs.
4. The first respondent pay the appellant’s costs of the application for leave to appeal and of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ALLSOP CJ:
1 This is an appeal against orders made by the Federal Circuit Court of Australia delivered on 11 February 2020 dismissing the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) to cancel the appellant’s Partner (Class BC) (Subclass 100) visa (Partner Visa).
2 The appellant, Ms Promsopa, is a citizen of Thailand. Ms Promsopa met her sponsoring partner, Mr Potter, who is an Australian citizen, in March 2011. The couple were married in Bangkok in September 2012. Ms Promsopa applied for a Partner (Class UF) (Subclass 309) visa (Provisional Partner Visa) and a Partner Visa in December 2012, both of which were sponsored by Mr Potter. Ms Promsopa was granted a Provisional Partner Visa in April 2013 and she arrived in Australia in May 2013.
3 In December 2014, Ms Promsopa lodged further information electronically in support of her Partner Visa. As part of that application, Ms Promsopa signed a declaration to the effect that she would inform the Department in writing immediately if she became aware of any change in circumstances (including change of address) or if there was any change in relation to information she had provided in or with the application, while her application was being considered.
4 Ms Promsopa says that her relationship with Mr Potter ceased in January 2015. Around or just after this time, Ms Promsopa commenced a relationship with Mr Walker, a citizen of the UK who is residing in Australia on a temporary visa.
5 Ms Promsopa was granted a Partner Visa in March 2015.
6 In October 2015, Ms Promsopa gave birth to a child, the father of whom is Mr Walker. The child is an Australian citizen.
7 In October 2016, the relationship between Ms Promsopa and Mr Walker ended. Ms Promsopa states that the relationship ended because Mr Walker drank alcohol heavily and subjected her to abuse and violence.
8 Almost three years later, in June 2018, the Minister sent Ms Promsopa a notice of intention to consider cancellation of her visa under s 109 of the Migration Act 1958 (Cth) (the Act). Ms Promsopa did not respond to that notice.
9 In July 2018, Ms Promsopa’s visa was cancelled under s 109 of the Act by a delegate of the Minister on the basis that Ms Promsopa failed to comply with s 104 of the Act by failing to notify the Department of a relevant change in her circumstances prior to the grant of her visa. Ms Promsopa applied to the Tribunal for review of this decision in August 2018.
10 In October 2018, the Tribunal invited Ms Promsopa to comment on information provided to it by Mr Walker and to otherwise provide information about the issues to be considered by the Tribunal. Ms Promsopa provided a written response and documents to the Tribunal later that month, including a number of documents relevant to the Family Court proceedings between Ms Promsopa and Mr Walker.
11 In January 2019, Ms Promsopa attended a hearing before the Tribunal. Ms Promsopa appeared unrepresented, with the assistance of an interpreter. On 7 January 2019, the Tribunal affirmed the delegate’s decision to cancel Ms Promsopa’s visa.
12 On 11 February 2020, the Federal Circuit Court of Australia dismissed Ms Promsopa’s application for judicial review of the Tribunal’s decision. Ms Promsopa appeals that decision in this Court.
The Tribunal’s reasons
13 After outlining the relevant background and law, the Tribunal commenced its reasons (at [6]–[8]) with consideration of whether the notice issued by the Minister in June 2018 complied with the requirements in s 107 of the Act and, at [9]–[17], whether the Ms Promsopa failed to comply with s 104. The Tribunal found that the notice was validly issued in accordance with s 107 and that there was non-compliance with s 104, as described in the notice. The appellant does not challenge these findings.
14 The Tribunal then turned to consider whether the visa should be cancelled pursuant to s 109(1). The Tribunal had regard to each of the “prescribed circumstances” set out in reg 2.41 of the Migration Regulations 1994 (Cth), being:
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;
i) any breaches of the law since the non-compliance and the seriousness of those breaches;
j) any contribution made by the holder to the community.
15 At [20]–[22], the Tribunal found that the decision to grant the visa was based, wholly or partly, on incorrect information; Ms Promsopa was granted a Partner Visa on the basis of being in a spousal relationship with the sponsor. The correct information, which the Minister ought to have been informed of, was that the relationship had ended by March 2015.
16 The Tribunal then considered the circumstances in which the non-compliance occurred. At [25], the Tribunal stated that it did not accept that Ms Promsopa was confused about her obligations to inform the Department of her change of circumstances; the existence of a genuine and an exclusive relationship was central to her eligibility for the visa. The Tribunal stated it was of the view that Ms Promsopa deliberately withheld her relationship breakdown in order to obtain the visa.
17 At [28]–[29], the Tribunal noted the following about Ms Promsopa’s present circumstances:
28. The applicant states that she lives with her daughter. The child’s father calls her daily and takes the child for a few days a week when he is not working. The applicant said that Mr Walker holds a temporary work visa. She said she does not know what would happen in the future but she believes he intends to apply for a permanent visa. The applicant said that if the visa is cancelled, she would return to Thailand with the chid but her former partner does not want that to happen.
29. The applicant states that the child’s father was violent towards her and used to drink a lot before the child was born. He had never been violent towards the child.
18 At [33], the Tribunal considered whether Ms Promsopa had breached the law since the non-compliance, stating:
The applicant told the Tribunal that she has not informed Centrelink about the changes in her visa status and the cancellation of her permanent visa, so she continues to receive Centrelink benefits as a permanent resident. The applicant’s failure to inform Centrelink about her visa status, which may affect her eligibility for the Centrelink benefits, appears to be in breach of the law. In the Tribunal’s view, it is a serious breach because it represents the applicant’s lack of candour when dealing with a government agency.
19 After considering the prescribed circumstances, the Tribunal noted what the Full Court said in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 to the effect that whilst the prescribed circumstances must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case. In this respect, the Tribunal acknowledged at [36] that, if Ms Promsopa’s visa was cancelled, she would be an unlawful non-citizen and may be detained or removed from Australia. The Tribunal noted that there may be certain restrictions on Ms Promsopa’s future travel and future visa applications as a result of the cancellation, and she may also lose certain entitlements acquired from her status as a permanent resident.
20 The Tribunal further noted at [37] that there are no other persons whose visas would be subject to cancellation under s 140 of the Act; Ms Promsopa’s child is an Australian citizen as she was born at the time Ms Promsopa held a permanent visa.
21 At [38]–[45], the Tribunal considered whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child:
38. There is no evidence, and the applicant does not claim that Australia has protection obligations towards her. The Tribunal does not consider that the cancellation would be in breach of Australia’s non-refoulement obligations.
39. The applicant outlines in her submission to the Tribunal the relationship between her, the child and the child’s father. She provided to the Tribunal evidence of the Family Court proceedings and the Parenting Orders. The applicant states that it is in the best interest of her child to have both parents living in the same country. The applicant provided to the Tribunal a copy of the Parenting Orders issued in January 2018 and other materials.
40. The applicant told the Tribunal that the child’s father is not a permanent resident but plans to seek a permanent visa and may include the child in that application. The applicant states that the child’s passport is with the Family Court and she is not able to remove the child from Australia. The Tribunal is mindful that the Family Court papers presented by the applicant show that the applicant travelled to Thailand in February 2017 and the child’s passport was released for that travel but was to be returned to the Registry of the Family Court upon their return to Australia. That would indicate that the child did leave the country and was able to do that in the past. The applicant told the Tribunal that she needed the father’s permission to leave the country with the child and that the child’s father would not allow them to leave the country permanently.
41. The applicant states that she hopes the child will grow up in Australia and will receive an Australian education which is better. The applicant states that Australia has better systems, her daughter speaks English and gets along well with other children. The child will also have access to the Australian health system.
42. The Tribunal has considered the best interests of the child and acknowledges it is a primary consideration. The Tribunal accepts that the best interests of the child may be to have the presence of both parents and the Tribunal acknowledges that the order of the Family Court allows for both parents to have access to the child and to have certain parental responsibilities towards the child. The Tribunal also acknowledges the applicant’s evidence that there may be travel limitations in relation to the child. The child’s father has written to the Tribunal expressing his desire to be with the child and the Tribunal accepts that evidence, which is consistent with the applicant’s own evidence that there is reasonable contact between the child and her father.
43. However, the Tribunal places weight on the fact that the child’s father is not a permanent resident of Australia. While the applicant claims that Mr Walker intends to apply for a permanent visa, the Tribunal finds the applicant’s evidence to be speculative and there is no evidence before the Tribunal to indicate that the application for permanent residence has been made, or that Mr Walker has been granted a permanent visa. It cannot be assumed that he will be granted such a visa in the future. That is, even if the cancellation is set aside, there is no guarantee that the child will be able to stay in Australia in the presence of both parents. If the cancellation is set aside and the applicant can remain in Australia, there is no guarantee that the child’s father will remain in Australia. If the visa is cancelled, the applicant’s daughter can remain in Australia as an Australian citizen, or she may travel to Thailand with the applicant or to the UK with her father. The applicant has not satisfied the Tribunal that the reinstatement of her visa would offer the only opportunity for the child to have the benefit of both parents in the same country. While the Tribunal acknowledges that there are Family Court orders in relation to the child, the Tribunal is mindful that such orders will only apply while the child’s parents reside in Australia. Should Mr Walker not obtain – or choose not to pursue – an Australian permanent visa, the family would need to make other arrangements to enable the child to spend time with both parents.
44. As for the child having a better environment, education, healthcare and other benefits in Australia, the Tribunal is not satisfied that same benefits would not be available to her in Thailand. The applicant’s claims that Australia has better systems are generalised and the applicant has not satisfied the Tribunal that her daughter would be denied access to adequate services in Thailand.
45. The Tribunal has formed the view that the cancellation of the visa would not adversely affect the child’s best interests because the child’s father does not have a right to reside in Australia permanently and the family would need to make arrangements to enable both parents to have access to the child.
22 The Tribunal then summarised its position at [47]–[50], coming to its ultimate conclusion at [51]:
47. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s.104 of the Act because she failed to inform the Department about the changes in her circumstances. The correct information is that the applicant’s relationship with the sponsoring spouse had ended before the applicant was granted the Partner visa and the decision to grant the visa was based on a circumstance which was no longer in existence.
48. There are no other known instances of non-compliance and considerable time has passed since the non-compliance. The Tribunal has formed the view that the applicant had deliberately withheld information from the Department about her relationship with the sponsor because the Tribunal does not accept the applicant’s evidence that she was confused or was unaware of her obligation to inform about the breakdown of her relationship. The Tribunal also notes that there are other breaches of the law as the applicant’s evidence is that she has not informed Centrelink about her visa status. The Tribunal finds that the applicant has not been truthful in her dealings with these government agencies.
49. The Tribunal acknowledges that certain hardship would be caused by the cancelation of the visa and if the applicant were required to leave the country because arrangements may need to be made in relation to the child and access to the child by both parents. As noted above, the Tribunal places weight on the applicant’s evidence that the child’s father is not a permanent resident of Australia and whatever arrangements are presently in place in relation to the child may need to be reconsidered unless he is granted a permanent visa. The Tribunal has formed the view that the best interests of the child would not be adversely affected by the cancellation. However, if the Tribunal were wrong in this assessment, and if it is determined that the best interests of the child do require that the visa not be cancelled, the Tribunal places greater weight on the fact that the information that was the subject of the s.104 obligation was central to the applicant’s eligibility for the visa. That is, if the applicant informed the Department that her relationship with the sponsoring spouse ended in February 2015, before she was granted the permanent visa, the applicant would not have been entitled to the grant of the visa. The Tribunal is also mindful that the child is an Australian citizen only because the applicant was a permanent resident at the time of the child’s birth and she was not entitled to be a permanent resident. The applicant’s failure to inform the Department about changes in her circumstances affected not only the applicant’s visa eligibility but also her daughter’s eligibility for the Australian citizenship. The Tribunal finds that the breach was significant.
50. In the Tribunal’s view, the nature of the breach and the circumstances in which the noncompliance occurred, outweigh other considerations.
51. 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.
The Federal Circuit Court decision
23 There were three grounds raised in the amended application of appeal in the Federal Circuit Court, two of which are relevant to this appeal. Grounds 2 and 3 were:
2. The Tribunal failed to have regard to relevant information, failed to provide procedural fairness to the Applicant and/or constructively failed to exercise its statutory review obligation by failing to consider the Applicant’s claim that the father of the Applicant’s child (Father and Child) would not facilitate the relationship between the Applicant and the Child, and the Applicant would not be in a position to enforce her right to parental responsibility for the Child if the Applicant was not present in Australia, thereby falling into jurisdictional error.
3. The Tribunal failed to have regard to relevant information, failed to provide procedural fairness to the Applicant and/or constructively failed to exercise its statutory review obligation by failing to consider the Applicant’s claim that the Father had exposed the Child to harm and risk, and that there was an ongoing risk of harm to the Child by the Father, thereby falling into jurisdictional error.
24 The primary judge summarised the claims referred to in the grounds at [41] as:
a) Mr Walker would not facilitate the relationship between her and the child if she were to go to Thailand without the child, and she would not be in a position to enforce the current orders if that occurred; and
b) Mr Walker had in the past exposed the child to harm and risk and that there was therefore an ongoing risk of harm to the child by Mr Walker if the child were not to live with the Applicant.
25 The claims were made by Ms Promsopa in October 2018 in response to the Tribunal’s invitation to provide information. The primary judge outlined the substance of the claims made by Ms Promsopa at [37]–[39]:
37. At Court Book, page 223, the Applicant provided a statement which contained her version of events which was submitted was sent in response to the letter that is at Court Book, page 180. In that statement the Applicant said that Mr Walker was not complying with the current Court orders and that he had taken the child for five days a week for three weeks and told the Applicant that he will come and get her if he is not working. The Applicant noted that she had contacted Legal Aid for advice about this issue.
38. Further, in the statement, the Applicant said that, since her visa was cancelled, Mr Walker and his partner have said that they can help her if she agrees with them about contact with the child. She said that Mr Walker says that his present partner is better for the child than the Applicant herself. She said that Mr Walker constantly asked her about her visa and says that he will take care of the child full time in Australia. She said that Mr Walker told her that if she goes back to Thailand that they will help her come back. She says that she believes that Mr Walker and his partner are trying to control her and get her to leave Australia so that Mr Walker can have the child full time and not have to pay her child support which is $650.00 a month.
39. She said that she believes Mr Walker wants her to be kicked out of Australia and for the child to live with him full time. She said that if she were in Thailand she does not believe that Mr Walker will comply with any Court orders they have for shared care between them. She said that she worries that if her visa remains cancelled that Mr Walker could take the child to Scotland, and if the Applicant is in Thailand, she does not believe she would have the power or money to pay a lawyer to fix this. She says that she does not believe that she will be able to get Mr Walker to return the child to her.
26 The primary judge also noted that Ms Promsopa had provided to the Tribunal an affidavit she had sworn in the course of the Family Court proceedings between Ms Promsopa and Mr Walker, in which she outlined the harm that she said had been perpetrated, and had the potential to be further perpetrated, upon her.
27 The primary judge held at [45] that the Tribunal had not specifically engaged with either of the two claims, but that both of the claims “really fit within the ambit of the best interests of the child”. The primary judge stated at [46]–[49]:
46. … The Tribunal has acknowledged that the best interests of the child are that both parents reside in the same country.
47. If both parents reside in the same country, then that is the answer to the claims; not only the two that the Applicant has identified, but really all of the claims that she has made in the response she has given to the Tribunal, and what is contained in her affidavit in the parenting matter. I note that the affidavit in the parenting matter raised concerns, and those concerns were addressed by the orders that the Applicant entered into by consent.
48. It seems to me that there is no need for the Tribunal to go through and identify each specific claim that may have been made out of the material that was put to it, if it has identified what remedy would be able to answer such a claim. In this case, every claim that the Applicant made was able to be answered by the acknowledgement that the best interests of the child were for both parents to be living in the same country. This is why, at paragraph 46, the Tribunal says “The applicant has not raised any other matters for consideration”.
49. Having come to that conclusion the Tribunal says at paragraph 49 that it had “formed the view that the best interests of the child would not be adversely affected by the cancellation”. This is a view that was open on the evidence before the Tribunal. It seems to me that there is no jurisdictional error.
28 The primary judge then addressed the Tribunal’s comments at [49] of its reasons, that even if the best interests of the child would be adversely affected by the cancellation, the Tribunal considered that those considerations were outweighed by the seriousness of the breach of s 104. In dismissing grounds 2 and 3 of the appeal, the primary judge concluded at [51] that it was “clear that even if the Tribunal had made an error, it is not an error which could have realistically affected the final decision”.
The appeal to this Court
29 Ms Promsopa filed a notice of appeal in March 2020. An amended notice of appeal was filed in September 2020 after Ms Promsopa obtained pro bono legal representation. The amended notice of appeal in this Court set out five grounds of appeal:
1A. The learned primary Judge erred in not finding that the second respondent’s (AAT) decision to affirm the delegate’s cancellation decision was vitiated by a denial of procedural fairness in requiring the appellant to answer questions calculated to elicit answers incriminating the appellant, or exposing her to a penalty, without informing the appellant of her right to invoke privilege under ss 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) or under the general law.
2A. The learned primary Judge erred in not finding that the AAT’s decision to affirm the delegate’s cancellation decision was vitiated by a constructive failure to exercise jurisdiction in its treatment of the best interests of the appellant’s Australian citizen child (born October 2015), or erred in finding that that finding was ‘open on the evidence’ (CB 324 at [49]), or erred in not finding that the treatment of the best interests of the child was unreasonable.
3A. The learned primary judge erred in finding at [48] that the AAT was not required to identify each specific claim that may have been made’ because all were ‘answered by the acknowledgment that the best interests of the child were for both parents to be living in the same country’.
4A. The learned primary Judge erred in not finding that the AAT’s decision to affirm the delegate’s cancellation decision was vitiated by a denial of procedural fairness in that the review was conducted in such a way, or was attended by such circumstances, as may invite in the mind of a fair-minded, informed, neutral lay observer that the AAT may not have approached the review with a mind open to persuasion.
5A. The learned primary Judge erred in finding that any error of law was not jurisdictional for want of ‘materiality’ because of the AAT’s reasoning that ‘even if the best interests of the child would be adversely affected by the cancellation, the Tribunal considers that those considerations are outweighed by the gravamen of the breach of s 104 of the Act’ (AB 324 [50]-[51]).
30 Ground 4A is not pressed.
31 Ms Promsopa requires leave to advance grounds 1A and 4A, as neither ground was raised in the Court below. The Minister opposed the grant of leave to rely upon these proposed grounds and ground 2A so far as it exceeded the grounds put below. He accepted that a key consideration was whether it was in the interests of justice to grant leave. Ms Promsopa was represented by different pro bono solicitors and counsel at the hearing before the Federal Circuit Court. Ms Promsopa has sworn an affidavit setting out her experiences with her former solicitors and counsel. It is unnecessary to set out this evidence in any detail. The new grounds appear to have merit, and the effect of deportation will involve a young child who is an Australian citizen. Further, ground 1A concerns the question of when a Tribunal member should administer a caution to self-represented applicants regarding their right to invoke the privilege against self-incrimination, an issue which may be important to the general conduct of future Tribunal proceedings. It is in the interests of justice to allow Ms Promsopa to advance these new grounds. Leave is granted.
Ground 1A
32 The amended notice of appeal contained the following particulars in relation to ground 1A:
1A.1 The AAT sought to elicit material not already before the AAT going to whether the appellant had breached other provisions of Australian law by questioning the appellant about ‘not informing Centrelink about the changes in [her] circumstances and [her] eligibility for Centrelink payments [which] may be another breach of the law’ (AB 299) and whether she had been ‘paying taxes’ while in Australia (AB 299);
1A.2 The AAT did not inform the appellant of her right to invoke privilege under s 62(4) of the AAT Act or under the general law, and did elicit an admission that she had not informed Centrelink of her change in circumstances, resulting in an adverse finding that the appellant ‘appears to be in breach of the law’ being a ‘serious breach’ demonstrating ‘the applicant’s lack of candour when dealing with a government agency’ (AB 255 [33]);
33 The relevant exchange arose in the course of the Tribunal questioning Ms Promsopa “one by one” (see line 138 of the transcript) about each of the prescribed circumstances in reg 2.41. The Tribunal addressed the “correct information” circumstance (reg 2.41(a)) at lines 140–162 of the transcript and the “circumstances of non-compliance” (reg 2.41(d)) at lines 163–165. The questions complained of by Ms Promsopa arose in the course of the Tribunal asking about Ms Promsopa’s present circumstances (reg 2.41(e)), at lines 169–204:
MEMBER: Well, I don't really know much about your present circumstance in terms of family, in terms of work, in terms of settlement. What ... can you, can you mention any of these things to me?
APPLICANT: (through interpreter) OK, so, Since my visa was cancelled, I didn't have the permission to work. Prior to that, I was working as a cleaner, but I can't work anymore. So, my sole, um, income right now is from Centrelink payments. There's no one in my life right now, so I'm alone, just looking after my kid, so that's all I've been doing, just looking after my kid well.
MEMBER: Sorry, what kind of Centrelink payment?
APPLICANT: (through interpreter) Um I think, um, single mother payment and payment for low income family.
MEMBER: But you're not a permanent resident [Applicant speaking at the same time], sorry, you're not a permanent resident. Do you not need to be a permanent resident to receive those payments?
APPLICANT: (through interpreter) Because I didn't tell Centrelink about this changes. Because if I told Centrelink I'm not sure where I'm gonna end up in Australia.
MEMBER: Sorry are you saying that Centrelink doesn't know you're not a permanent resident, and they are making payments to you even though you are not entitled to those payments?
APPLICANT: (through interpreter) OK, so because I've been here for six years, my understanding, I'm still a permanent resident, um I'm not lying to Centrelink it's on the genuine, on my genuineness that I'm telling them that, um, that I'm still a permanent resident.
MEMBER: What you're, what you're saying to me makes no sense whatsoever. You know that your visa has been cancelled - that's the reason you have come to the Tribunal - so I think you know quite well that you are not a permanent resident, and that's the reason you told me you're not working. If you know that you can't work, I don't know why it wouldn't occur to you that you're no longer a permanent resident.
APPLICANT: (through interpreter) Yes, that's right, I haven't been working. Since my visa was cancelled, I haven't worked.
MEMBER: But you know you are not allowed to work because your visa is cancelled because you are no longer a permanent resident. Why did you not inform Centrelink about it?
APPLICANT: (through interpreter) Um, it's my fault, I'll tell Centrelink after the interview today, I didn't know that I needed to inform Centrelink about this changes.
MEMBER: You do realise it's a serious offence under the m [sic], under the Australian laws to be receiving payments that you're not entitled to?
APPLICANT: (through interpreter) I just, I just know that today.
MEMBER: So you didn't think it was a problem for you to receive payments as a permanent, on the basis of you being a permanent resident when you know that you're not a permanent resident?
APPLICANT: (through interpreter) Um, it really, if if I would have known about this, I would have told Centrelink already …
34 After asking further questions about Ms Promsopa’s present circumstances, the Tribunal enquired about any other instances of non-compliance with immigration requirements (reg 2.41(g)) and the time passed since non-compliance (reg 2.41(h)) (see lines 317–325). The Tribunal then addressed the circumstance of “breaches of the law since the non-compliance” (reg 2.41(i)), returning to the topic of the Centrelink payments at lines 326–335:
MEMBER: I will consider any breaches of the law since the non-compliance, and the seriousness of those breaches. It seems to me that not informing Centrelink about the changes in your circumstances and your eligibility for Centrelink payments may be another breach of the law. What would you like to say about that?
APPLICANT: (through interpreter) I really didn't know that I need to tell Centrelink that my permanent residency has been cancelled.
MEMBER: I do find it quite hard to accept that you, that it didn't occur to you that if you are receiving Centrelink payments on the basis of being a permanent resident, and you are no longer a permanent resident, you have to inform Centrelink about the changes in your circumstances.
APPLICANT: (through interpreter) Yep, I admit to, to my guilt.
35 Ms Promsopa was unrepresented before the Tribunal and answered questions with the assistance of an interpreter.
36 The privilege against self-incrimination is a fundamental common law right: Sorby v the Commonwealth of Australia [1983] HCA 10; 152 CLR 281 at 294 (Gibbs CJ), 309 (Mason, Wilson and Dawson JJ) and 311 (Murphy J); Reid v Howard [1995] HCA 40; 184 CLR 1 at 11–12 (Toohey, Gaudron, McHugh and Gummow JJ); and Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190; 273 FCR 638 at [85]–[87]. It is not merely a rule of evidence available in judicial proceedings but is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question: Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 at [44]. The Tribunal is not bound by the rules of evidence, but this does not allow a Tribunal to require a witness to answer questions which exposes her or him to self-incrimination. The privilege against self-incrimination has also been recognised in statute, most particularly in ss 62(3) and 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth). Also, s 371(2)(c) of the Act provides that it is an offence for a witness to fail to answer a question of the Tribunal for the purposes of a review under Pt 5 of the Act. Section 371(3), however, provides an exception to this offence where “answering the question might tend to incriminate the person”.
37 The Tribunal may deny an unrepresented party procedural fairness if its questioning strays into matters about which the unrepresented party could invoke the privilege against self-incrimination without warning the person: Kohli v Minister for Immigration and Border Protection [2018] FCA 540; 74 AAR 433 per Flick J at [33]–[34], citing SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; 159 FCR 1 at [74]–[77], [112] and [160]–[169] where the Full Court found that the Tribunal may deny an unrepresented party procedural fairness in circumstances where it fails to advise the party of the right to invoke client professional privilege. In Kohli, Flick J concluded that the Tribunal failed to advise the appellant of his right to invoke the privilege in respect of questioning about whether he had been driving unlawfully and his involvement in a possible theft. Nevertheless, his Honour held that the failure by the Tribunal occasioned the appellant no practical injustice because he was under no continuing risk of being charged with any unlawful driving offence relating to the events described in the cross-examination, and he denied any wrongdoing in respect of the theft. The evidence going to either or both of the matters also assumed little relevance in the ultimate reasoning and conclusion of the Tribunal. On that basis, Flick J at [39] dismissed the appeal ground, finding that the appellant (who was “well-educated (albeit unrepresented)”) was not deprived of any meaningful opportunity to be heard by reason of any failure to advise him as to his rights against self-incrimination. That description does not fit the appellant here.
38 The Minister submitted that the Tribunal was entitled to undertake the line of questioning set out above at [33] and [34] without issuing a caution about self-incrimination because Ms Promsopa first raised the issue of her receiving Centrelink payments unprompted in response to a question about her present circumstances. Accordingly, the Minister submitted, it was not the questioning by the Tribunal that led to the disclosure of the offence. Whilst Ms Promsopa did state that her “sole income right now is from Centrelink payments”, counsel for Ms Promsopa submitted that the Tribunal could not have reached the conclusions it did at [33] of its reasons in relation to breaches of the law without the information proffered by Ms Promsopa in response to the Tribunal’s further questioning (apparently deliberately and pointedly) about the type of Centrelink payments she was receiving and her knowledge about the requirement to be a permanent resident in order to be eligible to receive those payments. I accept this submission.
39 Whilst the Tribunal does not explicitly state which law it believes Ms Promsopa breached, it is quite clear that the Tribunal is referring to s 66A(2) of the Social Security (Administration) Act 1999 (Cth). Section 66A(2) requires a person who is in receipt of a social security payment to inform the Department of Social Services within 14 days of any event or change in circumstances which might affect that person’s eligibility for that payment. Section 66A renders those who fail to inform the Department of a change in their circumstances liable to prosecution under Pt 7.3 of the schedule to the Criminal Code Act 1995 (Cth), typically the offence of obtaining a financial advantage by deception in s 134.2(1) or obtaining a financial advantage in s 135.2(1) of the Code.
40 As highlighted by counsel for Ms Promsopa, the offence of obtaining a financial advantage in s 135.2(1) of the Code contains a mental element. To make out the offence it must be shown that there was an omission of information as to which there was a duty to supply and the omission was done while knowing or believing that the person was not eligible to receive that financial advantage: s 135.2(1)(ab). Likewise, to establish the offence of obtaining a financial advantage by deception in s 134.2(1) of the Code it is necessary to prove the defendant obtained the financial advantage dishonestly.
41 The questioning by the Tribunal from line 182 onwards was directed to this mental element and the admissions elicited from Ms Promsopa may constitute at least a partial confession to the offence under s 134.2(1) or s 135.2(1). Ms Promsopa could have properly invoked her privilege against self-incrimination and declined to answer the Tribunal’s questions from line 182 onwards as to whether she knew she was not eligible to receive the Centrelink payments. The Tribunal ought to have warned Ms Promsopa about her right to invoke the privilege against self-incrimination.
42 The Minister submitted that the failure by the Tribunal to advise Ms Promsopa of her right to invoke the privilege against self-incrimination occasioned her no practical injustice because the evidence about her failure to advise Centrelink assumed little relevance in the ultimate reasoning and conclusion of the Tribunal. The Minister also submitted that, for this same reason, the error does not amount to jurisdictional error. I reject these submissions. The answers elicited from Ms Promsopa from line 182 onwards allowed the Tribunal to conclude at line 326 of the transcript, and [33] of its reasons, that Ms Promsopa had breached the law. It is clear that the Tribunal considered this a “serious breach” of the law: see lines 198–199 of the transcript, set out above, and [33] of the Tribunal’s reasons. The Tribunal at [33] of its reasons concluded that it is a “serious breach” because it “represents the applicant’s lack of candour when dealing with a government agency”. Thus it clearly made a judgment upon her honesty which could not have been made without the deliberate and pointed questioning to which I have referred. The Centrelink payments were referred to again at [48] of the Tribunal’s reasons, as part of the Tribunal’s concluding remarks which start at [47] and are set out in full above at [22]. Directly after finding in [48] that Ms Promsopa “deliberately withheld information from the Department about her relationship”, the Tribunal stated:
The Tribunal also notes that there are other breaches of the law as the applicant’s evidence is that she has not informed Centrelink about her visa status. The Tribunal finds that the applicant has not been truthful in her dealings with these government agencies.
43 The Tribunal concluded at [50] that the “nature of the breach and the circumstances in which the non-compliance occurred, outweigh other considerations”. It is clear from the progression of the Tribunal’s concluding remarks that the “circumstances in which the non-compliance occurred” includes the Tribunal’s finding that Ms Promsopa is untruthful in her dealings with government agencies. Thus, plainly, the finding that Ms Promsopa had breached the law, supported by the evidence elicited from her during the hearing, was material to the Tribunal’s ultimate conclusion.
44 Further, contrary to the circumstances that faced Flick J in Kohli, there is nothing before me to suggest that Ms Promsopa was not under an ongoing risk of being charged with the offences referred to by the Tribunal in its questioning and, by line 335 of the transcript, after persistent questioning by the Tribunal Ms Promsopa admitted to her knowledge of having to inform Centrelink of changes in her circumstances.
45 In these circumstances, I am satisfied that ground 1A should succeed. The Tribunal was required to inform Ms Promsopa of her right to refuse to answer questions before it embarked on the questioning of the kind seen at line 182 of the transcript. Ms Promsopa was treated unfairly. The Tribunal’s failure to give that warning caused Ms Promsopa not just practical, but real, injustice. The finding was material to the Tribunal’s ultimate conclusion and the evidence procured left Ms Promsopa liable to prosecution under the Code. The Tribunal’s decision should be set aside and the matter remitted to the Tribunal for a hearing in which Ms Promsopa is afforded procedural fairness.
Grounds 2A, 3A and 5A
46 Grounds 2A, 3A and 5A all relate to the Tribunal’s consideration of the best interests of the child and the materiality of that consideration to the Tribunal’s ultimate conclusion.
47 The amended notice of appeal contained the following particulars in relation to ground 2A:
2A.1 The AAT asked itself the wrong question of whether it was in the best interests of the child to be in the same country as both parents (‘may be to have the presence of both parents’ at AB 256-257 [42]), but the correct question was whether the cancellation was, or was not, in the best interests of the child;
2A.2 The AAT failed to consider that the immediate legal consequence of affirming the delegate’s decision would be that the appellant would be taken into immigration detention, separating the child (who could not be detained) and her mother, effectively indefinitely;
2A.3 The AAT failed to recognise that, in the absence of either parent having an entitlement to reside in Australia, the child would alienate the child from her ‘homeland’ and lose the ‘protection and support, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle’ (Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608)
2A.4 The AAT failed to engage with the appellant’s claim that were she to be returned to Thailand without her child, the appellant would not practically be in a position to effectuate contact with the child, especially where the father was antipathetic to such contact (ground 3 below);
2A.5 The AAT failed to engage with the appellant’s claim that the child’s father was an abusive and violent alcoholic and represented a risk to the child which would be un-ameliorated if the appellant were returned to Thailand (ground 3 below);
2A.6 The AAT’s lack of satisfaction ‘that the reinstatement of [the appellant’s] visa would offer the only opportunity for the child to have the benefit of both parents in the same country’ (AB 257 [43]) was illogical or unreasonable, because that was the only or most likely possibility on the evidence before it;
2A.7 No reasonable decision-maker, on a correct understanding of the law, could have concluded that it was in the best interests of the child that the appellant’s visa be cancelled (resulting in the appellant’s immediate detention and removal from Australia).
48 During the hearing of the appeal, counsel for Ms Promsopa identified three ways in which the Tribunal erred in its approach to the best interests of the child. First, it was submitted that the Tribunal failed to assess properly the best interests of the child and thus denied Ms Promsopa procedural fairness in accordance with Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273. Secondly, in failing to assess properly the best interests of the child, the Tribunal purported to apply non-statutory Ministerial guidelines but misconstrued or misunderstood the task, to the effect that what was applied was not the policy but something else. Counsel for Ms Promsopa submitted that this amounts to legal unreasonableness in the sense discussed by Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 at [89]–[91], citing Taveli v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 175; 86 ALR 435 at 453 and Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189 at 208 per French and Drummond JJ. Thirdly, the Tribunal failed to consider in its decision information provided by Ms Promsopa in response to its written invitation, contrary to s 359 of the Act. I will deal with each of these submissions after first identifying the approach taken by the Tribunal when considering the child’s best interests.
49 The Tribunal considered the best interests of Ms Promsopa’s child at [39]–[45] of its reasons, set out above at [21]. The Tribunal acknowledged that the best interests of the child was a primary consideration: [42]. The Tribunal accepted that the best interests of the child “may be to have the presence of both parents”. The Tribunal acknowledged the Family Court orders in place, the evidence that there “may be travel restrictions in relation to the child” and the father’s desire to be with the child. At [43], the Tribunal placed weight on the fact that the child’s father is not an Australian citizen and there was, therefore, “no guarantee that the child will be able to stay in Australia in the presence of both parents”. The Tribunal stated it was not satisfied that cancellation of the visa would provide the only opportunity for the child to have both parents in the same country. If the father returned to the United Kingdom the family would have to make arrangements to enable both parents’ access to the child. At [44], the Tribunal briefly addressed Ms Promsopa’s claims that the child would have a better environment, education and healthcare in Australia, stating:
[T]he Tribunal is not satisfied the same benefits would not be available to her in Thailand. The applicant’s claims that Australia has better systems are generalised and the applicant has not satisfied the Tribunal that her daughter would not be denied access to adequate services in Thailand.
50 Ms Promsopa made a number of claims in relation to the best interests of her daughter, who was approximately three and a half years old at the time of the Tribunal hearing. In response to the Tribunal’s written invitation to provide information, issued in accordance with s 359 of the Act, Ms Promsopa made the following claims:
(1) The father poses a number of risks to the child due to his conduct which included verbally abusive behaviour in the child’s presence, heavy consumption of alcohol which had previously endangered the child, and violent behaviour, both in a domestic and general context (AB 196–198, 202–206, 224).
(2) Ms Promsopa believes that the father’s desire is to have her leave the country so that he may have full-time care of the child. She believes that if she were to leave Australia without the child, the father would not comply with any court orders allowing for shared care and that she would not have the resources available to her in Thailand to remedy this in court. The result of which being that she would be permanently separated from the child (AB 225).
(3) The child will get a better education in Australia than what Ms Promsopa would be able to afford in Thailand. The child attends day care and crèche and has many friends (AB 226).
(4) Ms Promsopa wants the child to have a good relationship with her father, which will be facilitated by the child remaining in Australia. It is in the child’s best interests to have both parents living in the same country (AB 226).
(5) Ms Promsopa and the father have entered into final parenting orders. They have equal shared parental responsibility for the child who lives with Ms Promsopa except for weeks which the father is not rostered for work (AB 230). The final parenting orders contain restrictions on the child’s travel outside Australia and the child’s passport is held by the Family Court of Western Australia Registry (AB 232).
51 By s 359(1), in making its decision the Tribunal was obliged to have regard to the information provided by Ms Promsopa in response to the written invitation.
52 At the hearing before the Tribunal and in response to questions from the Tribunal, Ms Promsopa provided the following additional information:
(1) The child is an Australian citizen (line 232 of the transcript).
(2) The father is a temporary resident of Australia seeking a pathway to permanent residency (AB 297).
(3) If Ms Promsopa’s visa remained cancelled, she would seek to take the child with her to Thailand, however, the father will not agree to that (AB 297). Ms Promsopa would require the consent of the father to relocate with the child to Thailand (AB 300).
(4) There are no plans in place between Ms Promsopa and the father for what will happen regarding the parenting of the child if either parent is required to leave Australia (AB 297).
(5) The child speaks English (AB 302).
(6) Australia has better healthcare and is safer than Thailand (AB 302).
53 As explained above, the Tribunal expressly stated that it considered the best interests of the child and acknowledged that it was a primary consideration. Thus the question is whether, by its reasons, the Tribunal can be shown to have erred in its consideration of the best interests of the child.
54 The Full Federal Court decisions of Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; 150 ALR 608 and Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 provide guidance on how a Tribunal is to give proper, genuine and realistic consideration to the best interests of children affected by the decision. In Wan, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance: see Wan at [26]. The Full Court at [30] set out elements of the best interests of the children which had not been elucidated by the Tribunal: that the children as citizens of Australia would be deprived of the country of their own and their mother’s citizenship and “of its protection and support, socially, culturally and medically, and in the many other ways evoked by, but not confined to, the broad concept of lifestyle”, citing Vaitaiki at 614; the resultant social and linguistic disruption of their childhood as well as the loss of their homeland; the loss of educational opportunities available to the children in Australia; and their resultant isolation from the normal contacts of children with their mother and mother’s family.
55 As I said in Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; 119 FCR 454 at [118], the interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision of the Minister.
56 I note that the Tribunal at [49] of its reasons made some concerning remarks about the citizenship of Ms Promsopa’s child and the means by which she obtained citizenship. The child is a citizen of Australia. There is no reason to distinguish her from any other child who is a citizen of Australia. Her best interests should be assessed in accordance with her status as an Australian citizen.
57 As identified in Ms Promsopa’s submissions to this Court, if Ms Promsopa’s visa is cancelled and she has to return to Thailand with or without her child, her child would either be deprived of the country of her birth and citizenship and the lifestyle it provided, have her childhood disrupted in a social and linguistic sense and lose regular contact with and guidance from her father, or be deprived of contact with and the opportunity for the love, presence and guidance by her mother and primary carer in circumstances where it is claimed that the father poses a risk to the child and is antipathetic to facilitating any relationship between mother and child.
58 The Tribunal briefly addressed the consequences of Ms Promsopa’s child returning with her to Thailand, finding that it was not satisfied that the same benefits regarding environment, education and healthcare would not be available to her in Thailand. The Tribunal, however, did not consider at all the impact that Ms Promsopa’s visa cancellation would have on the child if the child were to stay in Australia following Ms Promsopa’s departure. On Ms Promsopa’s evidence, there was a real possibility that this might occur because Ms Promsopa would need the consent of the child’s father to take her to Thailand and this was not or may not be forthcoming. The Tribunal apparently afforded no significance to the child’s loss of regular contact with, and opportunity for guidance by, her mother, or the disruption to the child’s life which would flow from her primary caregiver’s inability to live in the country. These matters are relevant, indeed central, to the consideration of the child’s best interests. This is a young child, at an age (now 5 years) at which all aspects of her mental, physical, social and educational wellbeing and development could be enhanced by the presence of her mother.
59 Ms Promsopa made a number of claims in relation to the best interests of her child that were not dealt with by the Tribunal. Two such claims were identified by the primary judge: that the father of Ms Promsopa’s child would not facilitate the relationship between Ms Promsopa and her child and Ms Promsopa would not be in a position to her enforce her right to parental responsibility if she were not in Australia; and that the father of Ms Promsopa’s child had exposed the child to harm and risk and there was an ongoing risk of harm to the child by the father. These claims were relevant and ought to have been considered when assessing the best interests of the child. The finding that the best interests of Ms Promsopa’s child would not be adversely affected by her visa being cancelled was not made on the basis of any engagement with these claims or with the wider question to which I have referred. Instead, the Tribunal took a one-dimensional approach to the child’s best interests, focusing almost entirely on the fact that the father held a temporary visa. In this respect the Tribunal failed to have proper regard to the detriment to the child caused by the decision to cancel Ms Promsopa’s visa.
60 The Tribunal identified that it would be in the best interests of Ms Promsopa’s child to have both of her parents in the same country. The fact that the father of the child is in Australia on a temporary visa led the Tribunal to conclude that the best interests of the child would not be adversely affected by cancellation of Ms Promsopa’s visa. With respect, I have difficulty accepting that this is a logical conclusion. The base possibility that the child’s father may have to one day leave Australia and arrangements would have to be made to facilitate the child’s relationship with him does not excuse the Tribunal from failing to consider properly the factors outlined above. Here, the Tribunal acknowledged that the best interests of the child was a primary consideration. In doing so, it was required to give proper, genuine and realistic consideration to the best interests of the child. The one-dimensional approach taken by the Tribunal in its reasons did not satisfy this requirement.
Application of Teoh
61 Counsel for Ms Promsopa submitted that the Tribunal was obliged to give primary consideration to the best interests of Ms Promsopa’s child in deciding whether to affirm the decision to cancel her visa, citing Teoh (1995) 183 CLR 273. This obligation arose due to the legitimate expectation that the Tribunal would not act inconsistently with art 3(1) of the Convention on the Rights of the Child without prior notice: Teoh 183 CLR 271–292 (per Mason CJ and Deane J).
62 The Minister submitted that Teoh was not applicable to decisions made under s 109 of the Act. In oral argument counsel for the Minister argued that the procedural fairness requirements propounded in Teoh only apply to decisions where the Minister or his delegate has an unfettered discretion and s 109 did not contain an unfettered discretion because the Minister or his delegate had to be satisfied of the criteria in subss (a), (b) and (c). I reject that submission. The power to cancel a visa under s 109 is discretionary; the section makes clear that after the Minister decides that there was non-compliance under s 108, considers any response by the visa holder and has regard to any prescribed circumstances, the Minister may cancel the visa.
63 The Minister also submitted that a failure to consider properly the best interests of the child cannot amount to jurisdictional error because it was not a “mandatory consideration”. The Minister refers to two decisions of the Full Court of this Court in support of this argument: Khadgi (2010) 190 FCR 248 and COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148. The Full Court in Khadgi stated that the factors set out in reg 2.41 were mandatory considerations that must be taken into account by the Minister. The Court noted at [68] that the list of factors is not an exhaustive statement of the factors that the Minister might properly consider to be relevant in any given case. That case says nothing on the application of Teoh to s 109. The Minister relies on [28] of COT15 where the Court held that the “present circumstances of the applicant” within the meaning of reg 2.41(e) “is not apt to refer to obligations which Australia owes to other countries under treaty”. Again, this passage in COT15 does not shed light on the application to s 109 of the procedural fairness requirements the subject of Teoh.
64 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] HCA 6; 214 CLR 1. A more “modern” way of expressing the principle derived from Teoh may be found in the judgment of Gaudron J at 183 CLR 305:
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.
65 Ms Promsopa relied upon the Full Court decisions of Vaitaiki and Wan, which both applied Teoh. In Wan, the applicant had been refused a permanent residence (general-spouse) visa on character grounds. He was married to an Australian citizen and was father to two children who were also Australian citizens. Applying Teoh, the Full Court set aside the Tribunal’s decision because the Tribunal had not identified what were the best interests of the child, nor had it treated the factor as a primary consideration. The Full Court in Wan also applied the earlier Full Court decision in Vaitaiki. In that case the appellant, who had three older children and three younger children, had been convicted of a number of offences and an order for his deportation had been made. The Full Court set aside the decision of the Tribunal because it failed to apply Teoh correctly. It should be noted that the Tribunal only had the benefit of the reasons of the Full Court of the Federal Court in Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 182; 49 FCR 409, but the High Court in Teoh expressed similar views to that of the majority in the Full Court when it upheld that Court’s decision. At the second hearing before the Tribunal, the Tribunal decided that procedural fairness had been afforded to the appellant by the act of re-hearing. The Full Court in Vaitaiki set aside that second Tribunal decision. Burchett J expressed the test from Teoh in the following manner 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 …
66 Justice Burchett held that the Tribunal had not given the best interests of the appellant’s children primary consideration, stating 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.
67 Justice Branson agreed with Burchett J. Her Honour held at 630 that the proper focus of the Tribunal must be to identify the result in all the circumstances that would overall be conducive to the best interests of the child.
68 In the recent decision of DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, Steward J held that the Tribunal in reviewing decisions of the Minister to cancel the appellants’ visas under s 109 was bound to take into account the best interests of the appellants’ two children. In coming to this conclusion, his Honour stated that he was bound by the decisions of Wan and Vaitaiki but noted at [34]–[35] that the Full Court in Vaitaiki may have expressed the principle more broadly than Mason CJ and Deane J in Teoh:
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.
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.
69 In DXQ16, the Minister submitted that all of the decisions of this Court and of the Full Court relied upon by the appellants occurred in different statutory contexts where there was no equivalent to s 422B and s 425 of the Act. Section 425(1) states that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. Section 422B states that the Division in which s 422B is set out is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. In response, the appellants submitted that the Teoh ground fell within the Tribunal’s obligation to afford procedural fairness in s 425 and that 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 on a statement by French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106; 204 ALR 624 at [58]–[59], a case which concerned a Tribunal which had not disclosed its concerns about the genuineness of certain documents to the applicant:
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.
70 In finding that Teoh was applicable to decisions made under s 109 and setting aside the Tribunal’s decision, Steward J said the following at [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.
71 The equivalent provisions to s 422B and s 425 which are applicable to the present appeal are s 357A and s 360 in Div 5 of Pt 5. I respectfully agree with his Honour’s conclusions and also consider myself bound to follow the cases referred to by his Honour. Given the one-dimensional approach taken by the Tribunal to the assessment of the best interests of the child, explained above, the Tribunal has failed to consider properly the best interests of the child and has thus failed to afford Ms Promsopa the procedural fairness required by Teoh.
Alternative bases for jurisdictional error
72 I also consider that the Tribunal breached the natural justice requirements afforded by Div 5 of Pt 5 of the Act by failing to have regard in its decision to the information provided by Ms Promsopa in response to its written invitation issued under s 359. The Tribunal was obliged to have regard to any information given in response to that invitation. As discussed above, the Tribunal in its assessment of the best interests of the child did not deal with Ms Promsopa’s claims that:
(a) The father of the child would not facilitate the relationship between her and the child if she were to go to Thailand without the child, and she would not be in a position to enforce the current orders if that occurred; and
(b) The father of the child had in the past exposed the child to harm and risk and that there was therefore an ongoing risk of harm to the child by the father if the child were not to live with Ms Promsopa.
73 As identified by the primary judge, these matters fell within the ambit of the best interests of the child. They are matters which ought to have been considered in the Tribunal’s assessment of the child’s best interests. There was no apparent regard paid to them. To deal with the label “best interests of the child” is not to deal with the substance of the informing considerations that were contained within the information provided.
74 It may also be possible to characterise the Tribunal’s error as legal unreasonableness in the sense discussed by Robertson J in Jabbour. The Tribunal considered the best interests of the child in the context of considering matters set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’ (the Policy). The Policy, according to the Tribunal, “refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters”. The best interests of the child were considered as part of the Tribunal’s assessment, in accordance with the Policy, of “whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child”. Counsel for Ms Promsopa submitted that in failing to assess properly the best interests of the child the Tribunal failed to apply properly the Department’s policy guidelines.
75 The remarks of Robertson J in [89]–[90] were made in the context of a request under s 351 for the Minister to substitute for a decision of the Tribunal a decision that is more favourable to the applicant. The relevant policy document was a Ministerial guideline which described the types of cases that should be referred to the Minister. It was in this context that Robertson J observed at [89] that “departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else”. Justice Robertson’s comments were obiter; his Honour ultimately concluded that legal unreasonableness was not made out. Justice Robertson’s decision has been considered by other single judges of this Court in the context of reviews of decisions by delegates not to refer matters to the Minister for intervention under s 351 and s 417 of the Act: see Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 at [32] (Mortimer J); CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 (Mortimer J); DUE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1187 (O’Bryan J); and Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 (O’Callaghan J). The application of his Honour’s comments to other statutory contexts outside of the context of Ministerial intervention under s 351 and s 417 has not yet been considered.
76 In a number of these single judge reviews, the Minister has submitted that Robertson J’s remarks in Jabbour were wrong, but the Court has found it unnecessary to consider the correctness of the decision: see DUE20 [2020] FCA 1187 where O’Bryan J held at [31] that it was unnecessary to consider the correctness of Jabbour because it could not be said that the delegate’s decision lacked an evident and intelligible justification; and Davis [2020] FCA 791 where O’Callaghan J found at [6] that it was unnecessary to consider the correctness of Jabbour because the impugned decision of the delegate was not legally unreasonable. In Alfred, Mortimer J at [22] approved the principles stated in Jabbour in the context of a request for Ministerial intervention under s 417, but found no legal error in the delegate’s decision.
77 Given my findings above in relation to the application of Teoh and s 359 of the Act, and the limited consideration and application so far of Robertson J’s remarks in Jabbour, it is unnecessary to reach a conclusion that the failure to properly consider the best interests of the child in accordance with Department policy amounts to legal unreasonableness.
Materiality
78 The Minister submitted that even if the Tribunal failed to have proper regard to the best interests of Ms Promsopa’s child, that error is not material given [49] and [50] of the Tribunal’s reasons. The Minister submitted that these paragraphs make it apparent that even if the best interests of Ms Promsopa’s child did require that the visa not be cancelled, the Tribunal’s view was that the nature of the breach and the circumstances in which non-compliance occurred outweighed other considerations, including the best interests of the child. Thus, the Minister submitted, the test outlined by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45], namely whether, if the decision-maker had not made the error identified, that “could realistically have resulted in a different decision”, was not satisfied.
79 The Minister’s submission fails to recognise that the weighing exercise undertaken by the Tribunal in [49] and [50] was done so in the context of the conclusions it made in respect of the content or substance of the child’s best interests. As discussed above, the Tribunal failed to consider a number of important claims in its assessment of the best interests of the child; its conclusion as to what was in the best interests of the child, and the factors that informed that conclusion, were reached without considering all legally necessary material involved. When the Tribunal stated that it would place greater weight on the failure under s 104 “if it were wrong in this assessment” it was referring to its conclusion that the best interests of the child would not be adversely affected by the cancellation. This is not a reference to the correctness or otherwise of the underlying findings made by the Tribunal in relation to the content and circumstances affecting the child’s best interests. The “best interests of the child” is not merely a label; it is an important subject informed by a number of different factors and considerations as to different aspects of the child’s wellbeing, many of which were left unremarked upon by the Tribunal. The weight to be given to the best interests of the child is dependent upon the substance of those best interests and the factors that have informed them. The decision maker failed to address and to give proper consideration to aspects which properly informed the best interests of the child. The substance of the best interests is different to what the decision maker understood it to be. The weight to be given to those best interests in the Tribunal’s ultimate assessment of whether to cancel the visa or not will also be different. It is in this respect that the Tribunal’s error is material; if the Tribunal had properly addressed and then assessed the best interests of the child and had not, in its one-dimensional analysis, incorrectly ascertained the substance of the best interests, then the weight to be given to the best interests of the child in the Tribunal’s ultimate reasoning and conclusion could have been different.
80 As submitted by counsel for Ms Promsopa, there is no indication by the Tribunal in [49] as to how or why it could be wrong about the best interests of the child, which factors in relation to the interests of the child militated in favour of not cancelling Ms Promsopa’s visa and how or why this would be inevitably outweighed by the gravamen of Ms Promsopa’s breach of s 104 of the Act. One is left to speculate as to how the various factors were weighed. If the assessment had been properly undertaken, and Ms Promsopa’s claims had been taken into account in that assessment, then the child’s best interests may have weighed more heavily against the cancellation of the visa and that could have realistically resulted in a different ultimate decision.
81 I also note the recent remarks of Bromberg and Mortimer JJ in DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [113]–[117] about the application of the materiality test set out by the High Court in SZMTA where questions of weight are involved. It is unnecessary for my consideration to deal with those matters.
82 For these reasons, grounds 2A, 3A and 5A should also succeed. I make the following orders:
1. The appellant be granted leave to appeal.
2. The appeal be allowed.
3. The orders of the Federal Circuit Court of Australia made on 11 February 2020 be set aside and in lieu thereof it be ordered that:
(a) The decision of the second respondent be set aside.
(b) The matter be remitted to the second respondent for re-hearing and determination according to law.
(c) The first respondent pay the applicant’s costs.
4. The first respondent pay the appellant’s costs of the application for leave to appeal and of the appeal.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop. |
Associate:
